Reinsurance Focus

New reinsurance-related and arbitration developments from Carlton Fields

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Reinsurance Regulation

FURTHER DEVELOPMENT IN STATE CREDIT FOR REINSURANCE REQUIREMENTS

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As the legislative seasons comes to a close in many states, several states have enacted modifications to their credit for reinsurance requirements to move towards the revised Credit for Reinsurance Model Act. The Missouri legislature adopted HB 133 and the Rhode Island legislature adopted HB 5608. The Georgia Department of Insurance adopted regulations (120-2-78) designed to help implement the Georgia legislature’s earlier adoption of revised credit for reinsurance requirements.

This post written by Rollie Goss.

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SUMMARY JUDGMENT DENIAL AFFIRMED AGAINST MAURICE GREENBERG AND HOWARD SMITH IN ALLEGED SHAM FINITE REINSURANCE CASE

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In affirming the appellate division’s order against former American International Group, Inc. executives Maurice Greenberg and Howard Smith, the New York Court of Appeals held that claims brought by the State’s Attorney General had enough support to withstand summary judgment. The case, which began in 2005, centers on reinsurance transactions between AIG and General Reinsurance Corporation. The Attorney General alleges that Greenberg and Smith entered AIG into transactions which did little to actually allocate risk amongst the parties but, instead, were used by AIG to increase certain financial metrics. These transactions would benefit AIG’s stock price once better financial numbers were reported in their insurance business. The Attorney General alleges Greenberg and Smith violated the Martin Act and engaged in common law fraud by entering AIG into these contracts.

New York’s high court decided two questions: first, whether the information known by Greenberg and Smith presented an issue of fact for trial; and second, whether the Attorney General was barred from attaining equitable relief from Greenberg and Smith. The court acknowledged that previous criminal proceedings against the two defendants did find enough evidence for conspiracy based on telephone conversations between Greenberg and the General Reinsurance’s CEO. The court also found sufficient evidence in the record to proceed to trial, and allowed for equitable relief to proceed as well. People v. Greenberg, No. 63 (N.Y. June 25, 2013).

This post written by Brian Perryman.

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ARKANSAS, FLORIDA, MISSOURI, AND TEXAS PASS CAPTIVE INSURANCE COMPANY LEGISLATION

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In an attempt to attract more captive insurance companies to the state, Arkansas passed a bill on March 21, 2013 that provides a tax break to captive insurance companies that meet certain requirements. S. B. 789, 89th Gen. Assem., Reg. Sess. (Ark. 2013). Effective July 1, 2013, captive insurance companies that meet certain capital and surplus requirements in the state of Florida may become licensed to provide worker’s compensation and employer’s liability insurance. H. B. 1191, Reg. Sess. (Fl. 2013). Missouri amended its captive insurance law effective August 28, 2013 to allow for the formation of sponsored captive insurance companies, which are defined as captive insurance companies in which one or more sponsors provide the capital and surplus, that insure the risks only of its participants, and fund its liability to participants through protected cells. S. B. 287, 97th Gen. Assem., Reg. Sess. (Mo. 2013)(full text and summary). Texas also recently passed legislation authorizing the licensing of pure captive insurance companies and the imposition of fees and taxes on those companies. The Texas legislation took affect in May 2013. S. B. 734 (Tx. 2013).

This post written by Abigail Kortz.

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NEW YORK DEPARTMENT ISSUES HIGH PROFILE CRITICISM OF CAPTIVES; SOME OTHER COMMISSIONERS NOT IMPRESSED

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On June 11, 2013 the New York Department of Financial Services released a report titled Shining A Light On Shadow Insurance: A Little-Known Loophole That Puts Insurance Policyholders And Taxpayers At Greater Risk (“the NY Report”). The NY Report describes an investigation that the New York Department initiated in July 2012 into the practice of reinsuring term and universal life insurance policies with non-New York domiciled captive insurers which are subject to “looser reserve and regulatory requirements.” Receiving publicity in a New York Times article, the NY Report pledges to continue the investigation, urges the NAIC to develop enhanced disclosure requirements for “shadow insurance,” urges the Federal Insurance Office (“FIO”) and the NAIC to conduct a “similar investigation,” and suggests “an immediate national moratorium on approving additional shadow insurance transactions until those investigations are complete ….”

As reported previously in Reinsurance Focus, the NAIC formed a special working group of the Financial Condition (E) Committee in November 2011, which has been investigating the use of captives, including the possible use of captives to evade regulatory accounting rules concerning reserves. The working group, of which New York has been an active member, approved a white paper containing its recommendations on June 6, 2013, shortly before the release of the NY Report, which inexplicably failed even to mention the existence of the NAIC’s on-going inquiry. The approved NAIC white paper recommends a number of changes to accounting and other rules. In order to promote uniformity of practice, the NAIC working group has recommended that some of the proposed changes be included in the NAIC’s accreditation requirements rather than in merely optional guidelines which may or may not be adopted by individual states. In another instance of curious timing, the NY Report recommended that the FIO establish a task force to look into issues relating to captives, while it is public knowledge that the FIO already had established such a task force.

The insurance commissioners of Delaware, Louisiana (the current NAIC President) and Tennessee have, according to news reports, rejected the call in the NY Report for a moratorium, stating that: (1) many transactions engaged in by captives are appropriate and lawful, not involving the “shadow insurance” allegations contained in the NY Report; (2) captives can be regulated properly, if necessary with additional resources applied by the state insurance departments; and (3) the current NAIC captives initiative will continue and proceed to a proper conclusion.

This post written by Rollie Goss.

See our disclaimer.

ALABAMA, PENNSYLVANIA, AND LOUISIANA ADOPT CREDIT FOR REINSURANCE REGULATIONS

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Alabama, Pennsylvania, and Louisiana have joined the ranks of several other states that have adopted regulations nearly identical to the NAIC Credit for Reinsurance Model Regulation, which allows a ceding insurer to receive a credit for reinsurance as an asset or reduction from liability when insurance is ceded to a reinsurer that meets certain requirements. Alabama’s Credit for Reinsurance Regulation passed the House and the Senate on April 18, 2013 and May 2, 2013, respectively, and takes effect on January 1, 2014. H. B. 199, Reg. Sess. (Ala. 2013). Pennsylvania amended its Requirements for Qualified and Certified Reinsurers on May 25, 2013 with an effective date of June 24, 2013 to mirror recent amendments to the NAIC Model Regulation. Pa. Ins. Dep’t., Requirements for Qualified and Certified Reinsurers, 43 Pa.B. 2816 (May 25, 2013). Louisiana passed a bill effective May 23, 2013 which allows reinsurance credits to captive insurers under certain conditions. S. B. 120, Reg. Sess. (La. 2013).

This post written by Abigail Kortz.

See our disclaimer.