Reinsurance Focus

New reinsurance-related and arbitration developments from Carlton Fields

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Contract Interpretation

Court refuses to find fiduciary duty in reinsurance relationship

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Employers Reinsurance Corporation (“ERC”) filed suit in Missouri federal court against its reinsured, Massachusetts Mutual Life Insurance Company (“MassMutual”) alleging that MassMutual breached the parties’ reinsurance agreement. MassMutual filed various counterclaims alleging that ERC breached the contract by failing to reimburse it for covered claims under the contract. ERC sought dismissal of MassMutual’s counterclaims for vexatious refusal under Missouri and Kansas law and breach of fiduciary duty.

In dismissing both vexatious refusal claims, the court did not reach the substantive issue of whether the Missouri and Kansas statutes apply to a reinsurance contract, but rather dismissed on the ground that Connecticut law, and not Missouri or Kansas law, applied to the parties’ reinsurance contract. Applying Connecticut law, the court also dismissed MassMutual’s claim for breach of fiduciary duty, concluding that the “defendant has failed to plead sufficient facts in its counterclaim supporting a fiduciary relationship between plaintiff and defendant.” Specifically, the defendants failed “to allege facts that there was a unique degree of trust and confidence between the parties or that plaintiff had superior knowledge, skill, or expertise.” The court added that “[c]considering that Connecticut courts have deemed that there is no fiduciary relationship between an individual policy holder and a sophisticated insurance company, they are not likely to imply one in a reinsurance relationship between two sophisticated insurance companies.” Employers Reinsurance Corp. v. Massachusetts Mutual Life Ins. Co., Case No. 06-0188-CV-W-FJG (W.D.Mo. April 10, 2007).

Reinsurer’s Calculation Of “Incurred Loss” Could Lead To Finding Of Bad Faith

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BJC, a network of hospitals is the sole shareholder of ATG, a captive insurance company that provides insurance for BJC. A dispute arose between ATG and its reinsurer, Columbia Casualty pertaining to the “incurred loss condition” clause in their reinsurance agreement. The incurred loss condition provided that continued coverage would be conditioned upon an incurred loss ratio of less than 75%. A few days before the end of the second policy year, Columbia terminated the agreement, claiming that BJC had exceeded the incurred loss ratio on an aggregate basis and on an individual claim.

Much of the case revolved around the actuarial work Columbia presented to BJC to justify Columbia’s determination that the incurred loss ratio had exceeded 75%. While the Eighth Circuit agreed that Columbia had broad discretion to determine the incurred loss, it held BJC presented sufficient evidence from which a reasonable jury could conclude that Columbia acted in bad faith.

The Court also agreed with the district court’s decision to strike the prayer for punitive damages because ATG’s complaint failed to allege fraud with the particularity required by Federal Rule of Civil Procedure 9(b).

Finally, the Court affirmed the district court’s finding that BCA was precluded from recovering compensatory damages resulting from Columbia’s decision to terminate the Contract because BJC failed to properly quantify its costs.

BJC v. Columbia Casualty, Case No. 06-1326 (8th Cir., February 23, 2007).

Court denies motion to dismiss in a case involving the interpretation of a commutation agreement

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In a terse one sentence ruling, a District Court has denied a motion to dismiss a Complaint alleging a number of claims with respect to a Commutation Agreement of certain reinsurance agreements. The Defendant contended that the Commutation Agreement unambiguously released it from all liabilities, while the Plaintiff countered that the Defendant's reliance on extrinsic evidence in its motion demonstrated that the agreements were not unambiguous, requiring the denial of the motion to dismiss. ACE Tempest Reinsurance, Ltd. v. Converium Reinsurance (North America), Inc., Case No. 06-1059 (USDC S.D.N.Y. Nov. 30, 2006).

Court interprets policy in direct action against reinsurer

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A truck leased from Ryder TRS was involved in an accident, and Frontier Insurance Company provided coverage for the truck. After Frontier was declared insolvent, a party to the accident pursued claims under the policy against Clarendon Insurance Company, which had provided reinsurance to Frontier. The New Hampshire Supreme Court upheld an interpretation of the insurance policy proposed by Clarendon, which limited Clarendon's liability. This opinion discusses some of the general principles of policy interpretation. Warner v. Clarendon Ins. Co., Case No. 2005-415 (N.H. Nov. 2, 2006).

UK Court construes jurisdiction reference in reinsurance slip

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The UK Court of Appeals has interpreted a provision in a reinsurance slip that simply said “Jurisdiction Clause” as being essentially meaningless, evidencing an intention to agree upon a jurisdiction clause, where such an agreement was never reached. The Court considered extrinsic evidence, and declined to import a clause from underlying insurance that provided for jurisdiction in Mauritius. The effect of the decision was to permit the courts to apply UK law to the dispute. Dornoch Ltd. v. Mauritius Union Assur. Co., [2005] EWHC 1887 (Comm.) (April 10, 2006).