Reinsurance Claims

INSURANCE CARRIER BATTLES REINSURER FOR EXPENSES IN ADDITION TO LOSSES

December 15, 2014 by Carlton Fields

On December 4, 2014, the Second Circuit addressed whether a facultative reinsurance certificate (“certificate”) covering an umbrella policy obligates a reinsurer to indemnify expense payments in addition to losses. The Court found the certificate ambiguous as to whether the reinsurer’s reimbursement liability included expense payments and consequently remanded and vacated the instant action back to the Northern District of New York.

Utica Mutual Insurance Company (“Utica”) issued an umbrella policy to Goulds Pumps Inc. (“Goulds”), exposing the carrier to significant payment obligations stemming from asbestos claims against Goulds. As reinsurer, Munich Reinsurance America, Inc. (“Munich”) paid out $5 million dollars, the limit under the certificate. Utica filed suit for additional unpaid and future expense payments associated with the Goulds’ policy. The trial court granted summary judgment for Munich reasoning that the certificate’s $5 million limit of liability applied to expenses and therefore Munich’s obligation for reimbursement had been met.

Distinguishing prior case law that found certificates “unambiguously expense-inclusive,” the Second Circuit found this certificate ambiguous as to expense-inclusion. They reasoned that Munich’s obligations to Utica for “losses or damages” to the liability limit on the certificate could be construed as specifically excluding expenses. The Court also noted that “settlement payments,” while not expressly included in the liability limit, were considered part of the calculation. The Court remanded the action to allow the trial court to interpret the certificate’s inclusion or exclusion of expenses. Utica Mut. Ins. Co. v. Munich Reins. Am. Inc., No. 13-4170-cv (2d Cir. Dec. 4, 2014).

This post written by Matthew Burrows, a law clerk at Carlton Fields in Washington, DC.

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REINSURER’S LIABILITY CAPPED AT AMOUNT STATED IN LIABILITY CLAUSES

December 9, 2014 by Carlton Fields

In a case on which we previously reported on January 29, 2014, a federal court in New York recently ruled that a reinsurer was not required to pay amounts in excess of the sums stated in the Liability Clauses of two facultative certificates, even though the word “limit” was not used. Rather, the reinsurer’s liability was stated as a percentage share of the underlying policy limit. The reinsured argued that certain defense expenses must be reimbursed, even though they exceeded the agreed-upon percentage share, because the facultative certificates were silent on whether defense expenses count toward the amount reinsured. Applying Second Circuit and New York law, the court concluded that the contract was unambiguous and that the reinsurer’s overall liability for both indemnity and defense expenses was capped at the amount stated in the Liability Clauses of the facultative certificates. The Court ruled that a percentage share of an underlying policy limit is itself a limit on liability. The court also denied the reinsured’s request for discovery regarding the “custom and practice” related to limit-of-liability provisions in reinsurance contracts. Utica Mutual Insurance Co. v. Clearwater Insurance Co., Case No. 6:13-cv-01178 (USDC N.D.N.Y. Nov. 20, 2014).

This post written by Catherine Acree.

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COURT REJECTS INSURER’S ARGUMENT THAT IT CONTRACTED TO ITS REINSURER ALL OBLIGATIONS OWED UNDER A CEDED POLICY

December 1, 2014 by Carlton Fields

A federal district court has denied an insurer’s motion for summary judgment on a breach of contract claim, rejecting Liberty National Life’s argument that it contracted to its reinsurer all obligations owed under a ceded policy. At issue was a reinsurance and assumption agreement where Liberty ceded to its reinsurer a number of policies. The reinsurer agreed to “assume and carry out all contractual terms, conditions and provisions” in the ceded policies and “assumed the obligations of the liabilities” for all losses and claims arising out of the ceded policies. Liberty argued that the terms of the agreement absolved it from all contractual liability owed to its policyholders. The court disagreed. Though the agreement was an assumption (as opposed to an indemnity) reinsurance agreement and the reinsurer therefore stepped into Liberty’s shoes with respect to the ceded policy, Liberty remained liable unless there was a novation of the ceded policy substituting the reinsurer for Liberty. Finding Liberty had not submitted sufficient evidence to show a novation, the court denied Liberty’s motion for summary judgment on the breach of contract claim. The court did grant Liberty summary judgment on the bad faith claim, finding the plaintiff had failed to show any tortious or unreasonable act on Liberty’s part. The court also rejected arguments as to the inadmissibility of Liberty’s summary judgment evidence, finding that Liberty’s admissions and the agreement itself were admissible and could be considered. Evans v. Liberty National Life Insurance Co., No. 13-CV-0390 (USDC N.D. Okla. Nov. 12, 2014).

This post written by Renee Schimkat.

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CEDENT LOSES MOTION FOR REINSURANCE PAYMENTS DUE TO LATE NOTICE AND “UNSATISFACTORY” PROOF OF LOSS, NOTWITHSTANDING “FOLLOW THE SETTLEMENTS” PROVISIONS

November 24, 2014 by Carlton Fields

In a reinsurance coverage dispute involving coverage for an underlying settlement of asbestos liability, a New York court considered whether the defenses of failure to provide prompt notice and failure to provide satisfactory proof of loss precluded summary judgment in favor of the cedent. The cedent relied on “follow the settlements” provisions contained in each of the relevant four facultative reinsurance certificates. The court, however, was not convinced that these provisions entitled the cedent to coverage. One of the certificates, the court found, provided for prompt notice as a condition precedent to coverage. The court ruled that the cedent, which had submitted notice of claim to the reinsurer in 2010, had been required to provide notice of the asbestos settlement “in 2006 at the latest, when the settlement agreement was executed.” As a result, no prejudice from the late notice needed to be demonstrated, and the reinsurer was not obligated to indemnify the cedent for unpaid losses under that certificate. For the three other reinsurance certificates, which did not contain provisions deeming prompt notice a condition precedent to coverage, the court still denied the cedent summary judgment as premature, finding that the cedent failed to demonstrate that it had satisfied the certificates’ requirements to “provide[] proofs of loss in a form satisfactory to” the reinsurer. The court did rule in favor of the cedent, however, with respect to one of three reinsurance billings, where the reinsurer waived its defenses by making an initial payment without any reservation of rights. Lexington Insurance Co. v. Sirius America Insurance Co., Index No. 651208/2012 (N.Y. Sup. Ct. Sept. 18, 2014).

This post written by Michael Wolgin.

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SEVENTH CIRCUIT DECLINES TO REQUIRE PRE-PLEADING SECURITY FROM URUGUAY’S STATE-OWNED REINSURER AND REFUSES TO COMPEL ARBITRATION

November 18, 2014 by Carlton Fields

The Plaintiff, Pine Top Receivables of Illinois, LLC brought an action in Illinois federal court against Banco de Seguros del Estado, an entity wholly owned by Uruguay. Pine Top claimed that Banco de Seguros owed Pine Top $2,352,464.08 under certain reinsurance contracts. Pine Top’s complaint sought to compel arbitration, and alternately sought entry of judgment for breach of contract. Banco Seguros answered the complaint, and Pine Top moved to strike the answer for failure to post pre-pleading security as required under Illinois’s unauthorized foreign insurer statute, § 215 ILCS 5/123(5).

The trial court held, and the Seventh Circuit affirmed on interlocutory appeal, that Banco Seguros was not required to post security, following Second Circuit precedent which held that an attachment of any sort (like pre-judgment security) was violative of the broad grant of immunity to foreign governments afforded by the Foreign Sovereign Immunities Act.

The Seventh Circuit also affirmed the trial court’s ruling denying Pine Top’s motion to compel arbitration, finding that Pine Top’s rights under the reinsurance contracts, which had been assigned to it by the Liquidator of the defunct primary insurer that originally entered into the agreements with Banco Seguros, were limited to the collections of certain debts, but it was not assigned all rights and duties under the treaties, and thus was not assigned the right to arbitrate. Pine Top Receivables of Illinois, LLC v. Banco de Seguros del Estado, No. 13–1364 (7th Cir. Nov. 7, 2014)

This post written by John Pitblado.

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