Reinsurance Focus

New reinsurance-related and arbitration developments from Carlton Fields

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Brokers / Underwriters

NEW YORK DEPARTMENT CHANGES COURSE ON BROKER CONTINGENT COMMISSION ARRANGEMENTS

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The New York Insurance Department has issued a new regulation, Regulation No. 194 (effective January 1, 2011), which addressees contingent compensation arrangements for brokers in the placement of insurance. While this Regulation contains an express exception stating that it does not apply to the placement of reinsurance, this Regulation is a major shift from the approach taken by former New York Attorney General Eliot Spitzer in this area, and the potential impact of this change in policy on the placement of reinsurance is unclear. The Regulatory Impact Statement for Regulation 194 states that ‘[t]here is nothing inherently improper about incentive-based compensation arrangement[s] between an insurer and the producer,” so long as there is proper disclosure of the arrangement. The Department has also published an Assessment of Public Comments relating to this regulation, and has amended its settlement agreements with three major brokers, Aon, Marsh and Willis, to permit them to engage in contingent commission arrangements subject to the disclosures required by Regulation 194. The Independent Insurance Agents and Brokers of New York, a trade association, has announced that it plans to sue to attempt to block the implementation of this regulation, on the ground that it imposes an undue burden on its members and exceeds the authority of the Department.

This post written by Rollie Goss.

PERSONAL ACCIDENT REINSURANCE DISPUTE SETTLES FOR $130 MILLION

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On July 29, 2009, we reported on Willis Limited (“Willis”) settling a dispute with American Reliable Insurance Company and Assurant General Insurance Limited over alleged irregularities in Willis’ placement of personal accident reinsurance. Willis has now settled a similar placement dispute with CNA Financial Corporation for $130 million. The settlement includes a release and waiver of all claims and no admission of wrongdoing. Willis has filed a Form 8-K relating to this settlement.

This post written by Dan Crisp.

THIRD CIRCUIT AFFIRMS APPROVAL OF SETTLEMENTS IN CONSOLIDATED INSURANCE BROKERAGE ANTITRUST LITIGATION

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In a 94 page opinion, the Third Circuit Court of Appeals has affirmed the approval of the class settlement of certain consolidated cases of alleged insurance brokerage antitrust litigation arising from the New York Attorney General “bid-rigging” investigation in 2004. The district court approved proposed settlements involving the Zurich-affiliate defendants (see prior post dated March 5, 2007) and the Arthur J. Gallagher & Co.-affiliate defendants (see prior posts dated September 25, 2007 and October 15, 2007), and denied the objections to the proposed settlements. The objectors to the Zurich settlement challenged the attorneys fee award to class counsel as based on improper inclusion of work done on other non-settled aspects of related litigation, failure to properly account for work done on behalf of the public by attorneys general involved in the litigation, class counsel’s performance of its gatekeeper function, and the overall amount of the fees, which totaled approximately $29,000,000. The objectors to the Gallagher settlement challenged the amount of the settlement, the requirements of the proposed claim form, the allocation of settlement funds, and whether the requirements of class certification were met. The Third Circuit Court affirmed the district court’s approval of both settlements and the attorneys fee award in the Zurich settlement, and affirmed the denial of each of the objections. In re Insurance Brokerage Antitrust Litigation, Nos. 07-1759 et al (3d Cir. Sept. 8, 2009).

This post written by John Pitblado.

DISTRICT COURT DENIES AON’S MOTION FOR NEW TRIAL; ADDS INTEREST TO DAMAGES

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We have previously reported on the ongoing action between UNG and Aon for indemnity and contribution. On July 24, 2009, the Eastern District of Pennsylvania decided two post-trial motions arising out of a reinsurance agreement between United National Insurance Co. (“UNG” as plaintiff) and its Italian reinsurer Riunione Adriatica di Sicurta and UNG’s broker, Aon, Ltd. (defendant). In 1999 RAS commenced arbitration seeking to rescind the reinsurance agreement alleging it had been misled by one or both of the other parties. The arbitrator ruled in favor of RAS; UNG subsequently filed the present action for indemnity or contribution against Aon. The jury, applying Pennsylvania law, returned a $16.8 million dollar indemnification verdict for UNG. Following the trial, Aon filed a Motion for Judgment as a Matter of Law or for a New Trial. UNG, for its part, filed a motion for a discretionary grant of interest on its awarded damages.

The district court denied Aon’s motion for a new trial, holding that it was reasonable for a jury to conclude that Aon was in the business of supplying information as a broker (and did so in connection with this reinsurance agreement). The court found no error in the jury’s conclusions, and found it inappropriate to order a new trial. Conversely, the court granted UNG's motion to alter or amend the judgment, finding that an interest award was appropriate under Pennsylvania law, and applied the interest grant to the entire award including attorneys’ fees and costs. The court granted UNG an additional $8.2 million in damages. United Nat’l Ins. Co. v. Aon Ltd., Case No. 04-539 (USDC E.D. Pa. July 24, 2009).

This post written by John Black.

WILLIS REACHES SUBSTANTIAL SETTLEMENT OF PERSONAL ACCIDENT REINSURANCE DISPUTE

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Willis Group Holdings Limited has filed a Form 8-K with the Securities and Exchange Commission describing the settlement reached by one of its subsidiaries, Willis Limited, with American Reliable Insurance Company and Assurant General Insurance Limited (“the Assurant companies”). The settlement pertains to personal accident reinsurance placed with and on behalf of the Assurant companies in the excess of loss market in London and elsewhere. Willis acted as the reinsurance broker for the transactions, which led to the Assurant companies suing Willis in the UK Commercial Court in London, alleging irregularities in Willis' placement of reinsurance. Under the settlement, Willis will pay the Assurant companies a total of $139 million.

This post written by Rollie Goss.