American Re and other reinsurers sued USF&G seeking a declaratory judgment with respect to reinsurance they had issued USF&G that covered asbestos risks. USF&G had agreed to pay approximately $975 million for ultimate distribution to asbestos claimants, while its insured, Western MacArthur Company, filed for bankruptcy. USF&G sought to recover approximately $400 million from its reinsurers. The reinsurers sought discovery of how USF&G had allocated the underlying risks to a single policy year as well as information about the preparation and presentation of the reinsurance claim. USF&G contended that the documents were protected by attorney-client and work product privileges. The lower court had allowed broad discovery, but the appellate panel restricted the scope of discovery to the preparation of the reinsurance claim, which had been covered in a deposition in the underlying case, thus placing the preparation of the claim at issue despite the existence of an applicable privilege. American Re-Insurance Co. v. United States Fid. & Guar. Co., 07 NY Slip Op 04523 (App. Div. First Dept. May 29, 2007).
Arbitration / Court Decisions
Survey on US run-off operations
PriceWaterhouse Coopers has published an interesting report on a survey that it conducted relating to US run-off operations. The report covers various aspects of run-off operations and strategies. Especially combined with the recent Lloyd’s report on capitalization and operation of Lloyd’s run-off syndicates, which was the subject of a post on this blog on May 28, this makes interesting reading.
COURT HOLDS DISPUTE OVER SETTLEMENT OF DISPUTES UNDER REINSURANCE ADMINISTRATION AGREEMENT ARBITRABLE
Trustmark Insurance and American General Assurance entered into a Reinsurance Administration Agreement with Transamerica Occidental Life Insurance, pursuant to which Transamerica provided administration services. Trustmark cancelled the Agreement, and a dispute arose as to Transamerica’s performance of the Agreement and whether it was entitled to further payments for services that it had provided pursuant to the Agreement. Trustmark and Transamerica reached a “settlement” of the dispute, which later fell apart. There was no written settlement agreement, and although the Agreement contained an arbitration provision, no party sought arbitration of the dispute under the Agreement.
Trustmark sued Transamerica, seeking to compel performance of the settlement agreement. Transamerica moved to compel arbitration. The District Court held that even though there was no written settlement agreement, the arbitration provision of the Reinsurance Administration Agreement covered any dispute “relating to” the parties’ performance of the Agreement, including Transamerica’s claim for further payments under the Agreement. The court therefore compelled arbitration of the substance of the dispute that was covered by the “settlement agreement.” Trustmark Insurance Co. v. Transamerica Occidental Life Insurance Co., Case No. 06-5561 (N.D.Ill. May 1, 2007).
UK COURT DECLINES TO FIND REINSURANCE COVERAGE DESPITE FOLLOW THE FORTUNES PROVISION SINCE DAMAGES OUTSIDE POLICY PERIOD
This case involves a situation in which a U.S. court found that an insurance policy covered a portion of damages incurred prior to and after a policy period based upon a manifestation coverage trigger. The insured then entered into a settlement agreement, and sought coverage from its reinsurers for the amount of the settlement. The resulting reinsurance dispute was litigated in a UK court. The UK court found that even though it was apparent that the insured had acted in good faith and prudently in negotiating the settlement to minimize its loss, the reinsurance did not cover damage that occurred outside the time period of the coverage of the reinsurance agreement. This decision illustrates an important area of risk for companies which may have their insurance and reinsurance governed by different applicable law, whether the laws of different U.S. states, which may have different coverage trigger or damage allocation theories, or the laws of a U.S. state and the UK. Care should be taken in establishing reinsurance programs to attempt to avoid such a scenario. Wasa International Ins. Co. v. Lexington Ins. Co., [2007] EWHC 896 (Queen’s Bench Commercial Court April 25, 2007).
CONNECTICUT SUPREME COURT UPHOLDS AAA ARBITRATION AWARD DESPITE VACANCY ON ARBITRATION PANEL
C.R. Klewin Northeast (“Klewin”) entered into a contract with the city of Bridgeport (“the City”) for the construction of a multipurpose sports arena. After construction was completed, a dispute arose regarding whether Klewin was entitled to additional compensation due to design changes. The dispute was submitted to an arbitration panel pursuant to the contract. Under the applicable AAA rules, the dispute would ordinarily be heard by a panel of three arbitrators. However, when one of the arbitrators resigned due to illness, the two remaining arbitrators chose to proceed with the arbitration over the City’s objection. After 37 days of hearings, the arbitration panel awarded Klewin $6,020,231, plus interest. The trial court confirmed the award.
The City raised several issues on appeal. First, the City argued that the arbitration panel lacked jurisdiction because the underlying contract was procured illegally and thus void. The Court rejected this argument, holding that the defense of contract illegality was a question for the arbitrators, at least in the first instance, because the challenge related to the entire contract rather than just its arbitration clause.
Second, the City challenged the trail court’s ruling that the City waived the defense of contract illegality though its conduct in the arbitration. In upholding this ruling, the Court explained that the City’s attempt to raise the defense on the 20th day of hearings was, in essence, “too little, too late.”
Finally, the City argued that the arbitration panel lacked jurisdiction because it had only two members. In rejecting this argument, the Court noted that in the event of a vacancy, the AAA rules authorize the remaining arbitrators to continue with the hearing “unless the parties agree otherwise.” C.R. Klewin Northeast, LLC v. City of Bridgeport, Case No. 17590 (Conn. Apr. 17, 2007).