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New reinsurance-related and arbitration developments from Carlton Fields

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Industry Background

CONSECO AND J. C. PENNEY SETTLE DISPUTE OVER SALE OF INSURANCE COMPANY

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On November 28, 2007, we reported on a dispute involving the sale by Conseco Insurance Company of two insurance subsidiaries to J. C. Penney. The post described a decision transferring a case pending in Conseco’s home venue of Indiana to California, where another action relating to the dispute was pending. Less than two months after the transfer order was entered, the parties filed a notice of settlement of their dispute. No details are available about the settlement. Conseco Ins. Co. v. J. C. Penney Life Ins. Co., Case No. 07-6901 (USDC C.D. Cal. 11/8/2007).

This post written by Rollie Goss.

ENGLISH COURT OF APPEALS RESOLVES DISPUTE ARISING FROM SALE OF SHARES IN LLOYD’S BROKER

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Claimant, Square Mile Partnership (“Square Mile”), entered into an agreement with Robert Bruce Fitzmaurice Group (“RBF Group”) for the purchase of the shares of Robert Bruce Fitzmaurice (“RBF”), RBF Group’s direct subsidiary, a Lloyd’s broker. The agreement provided for the transfer of RBF’s “accumulated net worth” to Square Mile. The day before completion of the agreement, the transfer took place in favor of Fitzmaurice McCall (“Fitzmaurice”), RBF’s ultimate holding company. The amount of the payment was calculated on the basis of RBF’s distributable dividends.

After completion of the agreement, a dispute arose between Square Mile and Fitzmaurice concerning the exact meaning of the expression “accumulated net worth.” According to Square Mile, it referred only to RBF’s distributable profits, while according to Fitzmaurice it meant the whole of RBF’s net assets.

The court concluded that the expression “accumulated net worth” was intended to cover all the nets assets of RBF. As to Square Mile’s argument that the amount actually transferred from RBF Group to Fitzmaurice a day before completion of the agreement, the court explained that to the extent to which this argument relied on evidence of precontractual negotiations it could not be admitted. While English law does offer some exceptions to the general rule that precontractual negotiations are inadmissible as evidence for the interpretation of a written agreement, the Court concluded that the exceptions were not warranted in this case. The Square Mile Partnership Ltd v. Fitzmaurice McCall Ltd, [2006] EWCA Civ. 1689 (Dec. 18, 2006).

Congress Considers Renewal of Terrorism Risk Insurance Act

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The Terrorism Risk Insurance Act, which is implemented through the Terrorism Insurance Program of the Department of the Treasury, expires at the end of 2007. A bill had been filed to extend the program for 10 years and add coverage for group life insurance and nuclear, chemical, biological and radiological risks. A Treasury official has stated that the program must be temporary and short-term, should provide for increased participation by the private sector in the covered risks, and rejected the proposal for inclusion of group life insurance. During a prior renewal of the program, the Treasury Department opposed adding group life insurance to the coverage of the program. The proposed renewal bill is H.R. 2761.

Russell index may include Bermuda insurers and reinsurers

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Russell Investment Group reportedly is updating its criteria for including companies in its market indexes, with the likely result that companies incorporated in Bermuda could be considered for inclusion in the indexes. There is speculation in the media that this could result in the inclusion of Bermuda-based insurers and reinsurers for the first time, and that a recent increase in the share price of such companies may have been related to speculation with respect to this issue. See the story.

UK FSA issues Financial Risk and Market Evaluation

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The Financial Services Authority, which regulates the UK insurance markets, has issued a report titled Financial Risk Outlook 2007, a 115 page report which evaluates priority risks in the financial markets, economic and financial conditions, developments in the industry, consumer's engagement with the industry, financial crime, and the legal and regulatory framework of the financial markets. While there is not a specific section discussing the reinsurance markets, there is a brief discussion of general insurance markets and life insurance in particular.