Reorganization and Liquidation

NEW YORK FEDERAL BANKRUPTCY COURT FINDS INSURANCE INSOLVENCY PROCEEDING DOES NOT “REVERSE – PREEMPT” BANKRUPTCY COURT JURISDICTION

February 2, 2016 by John Pitblado

In a recent adversary proceeding in the chapter 11 case involving Ames Department Stores, Inc. (“Ames”), Lumbermens Mutual Casualty Company (“Lumbermen’s”) argued that under the McCarran-Ferguson Act, the issues in dispute between it and Ames should be decided in Illinois state court as part of Lumbermens’ insolvency proceedings.

The procedural history and the issues in the case between Ames and Lumbermens can be found here. In short, Ames filed a Chapter 11 bankruptcy in New York in 2001. In 2006, a dispute between Lumbermens and Ames commenced, which centered around the ownership of an approximate $8 million trust account. By 2012, Lumbermens entered state rehabilitation proceedings in Illinois. Lumbermens’ rehabilitator challenged the bankruptcy court’s jurisdiction over the adversary proceeding in New York federal court, arguing for the issues to be addressed in Illinois state court as part of Lumbermens’ ongoing insolvency proceeding. The court granted the rehabilitator’s motion to withdraw reference, and requested a report and recommendation on Lumbermens’ jurisdictional motion from a New York federal bankruptcy court.

The New York bankruptcy court first found that it had authority to hear all the claims at issue. Next, it determined whether the McCarran-Ferguson Act applied to “reverse – preempt” federal law. The court utilized a three part analysis to determine whether the McCarran-Ferguson Act applies and whether a federal statute can be reverse preempted by a state law. First, the court considered whether the Bankruptcy Code, the federal law at issue, specifically relates to the business of insurance, and concluded that it does not. Next, the court considered whether the state law at issue relates to the business of insurance, finding that the Illinois statute, relegating jurisdiction to the Illinois state court, was to ensure orderly and predictable liquidations of insurance companies. Thus, the court found that the state law at issue was enacted for the purpose of regulating the business of insurance. Finally, with respect to the third prong, whether allowing the case to proceed in federal bankruptcy court would “impair, invalidate, or supersede” Illinois state law, the court found that the bankruptcy court’s jurisdiction would not contravene Illinois law in any meaningful way, because any bankruptcy court judgment would remain subject to the priority scheme of the Illinois insurance insolvency proceeding. Therefore, the court held that hearing the adversary proceeding in federal bankruptcy court would not impair, invalidate or supersede Illinois insurance law, and thus, found that the Bankruptcy Code was not reverse – preempted by McCarran-Ferguson.

In re Ames Department Stores Inc., et al., No. 01-42217 (REG) (Bankr. S.D.N.Y. Dec. 7, 2015).

This post written by Jeanne Kohler.

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NEW JERSEY APPELLATE COURT AFFIRMS RULING THAT SOLVENT INSURERS NOT RESPONSIBLE FOR PORTIONS OF INSOLVENT INSURERS

January 27, 2016 by Carlton Fields

Earlier this month, a New Jersey appellate court affirmed a lower court’s ruling that the insured, not solvent insurers, was responsible for the liability apportioned to policies not covered by New Jersey’s Property Liability Insurance Guaranty Association (PLIGA). The insured, Ward Sand and Materials Company (Ward), was sued by the New Jersey Department of Environmental Protection related to cleanup of municipal waste accepted at a sand mining facility from 1970 to 1991.

Prior to litigation, three of Ward’s insurers—Mission National Insurance Company, Integrity Insurance Company, and Western Employers Insurance Company—had been declared insolvent. During the litigation, two of Ward’s insurers, Reliance Insurance Company and Home Insurance Company, were declared insolvent. Following a multi-million dollar settlement in the environmental litigation, Ward brought suit against its primary and excess insurance carriers, as well as PLIGA, seeking an order allocating insurance coverage for the settlement. PLIGA settled with Ward on behalf of the insolvent insurers, but the trial court issued a decision requiring Ward to assume any sums allocated to its insolvent insurers in excess of the payments by PLIGA.

Ward filed a motion for reconsideration, which the trial court denied, and then appealed the decision. After all of the relevant insurers had become insolvent but before the litigation in this case, the New Jersey legislature amended the statute regarding PLIGA to clarify that exhaustion of underlying policies had only occurred once all available insurance limits had been met. The New Jersey Supreme Court held that this meant that “for the years in which PLIGA is standing in the palce of an insolvent carrier in a long-tail environmental contamination case, the insured—not the solvent insurer—is compelled to make payments before accessing statutory benefits under the PLIGA Act.” Thus, the appellate court affirmed the trial court’s determination that Ward was responsible for the shares allocated to its insolvent insurers. Ward Sand and Materials Co. v. The TransAmerica Insurance Company, No. A-1479-13T1 (N.J. Super. Ct. App. Div. Jan. 12, 2016).

This post written by Zach Ludens.
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NEW HAMPSHIRE COURT APPROVES COMMUTATIONS CONCERNING THE HOME INSURANCE COMPANY

September 2, 2015 by Carlton Fields

A superior court in New Hampshire has entered two orders – one concerning Arrowood Surplus Lines Insurance Company, the other concerning Providence Washington Insurance Company – approving commutations regarding The Home Insurance Company. Separate motions – one for Arrowood, the other for Providence Washington – were brought by New Hampshire’s Insurance Commissioner as Home’s liquidator regarding liabilities ceded from Home to Arrowood and Providence Washington to Home. Home has been in liquidation since 2003. In the Matter of the Liquidation of the Home Insurance Co., No. 03-E-0106 (N.H. Super. Ct. June 15, 2015).

This post written by Zach Ludens.

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SERVICE OF SUIT CLAUSE WAIVES REINSURERS’ RIGHTS TO REMOVE CASE TO FEDERAL COURT

July 1, 2015 by Carlton Fields

A federal district court in New Hampshire has held that a service of suit clause contained in reinsurance contracts waives the reinsurers’ rights to remove a litigation brought against them in state court by the Insurance Commissioner of the State of New Hampshire, in his capacity as liquidator for the Home Insurance Company. The liquidator had filed the action in state court to collect reinsurance under the contracts. The reinsurers removed the case to federal court and the liquidator moved to remand, citing the reinsurance contracts’ service of suit clause which states that the reinsurer “will submit to the jurisdiction of any court of competent jurisdiction within the United States” and will “abide by the final decision of any such Court.”

The liquidator argued the clause was a mandatory forum selection clause requiring litigation in the forum chosen by the insured, and thereby constituted a waiver by the reinsurers of their right to remove. The reinsurers contended that the clause was a permissive forum selection clause which constituted merely a consent to jurisdiction and did not mandate litigation in any particular forum. The court agreed with the liquidator and granted the motion to remand, finding the clause mandated exclusive jurisdiction in the New Hampshire state court. The court denied, however, the liquidator’s request for costs and expenses, finding the removal was “not objectively unreasonable.” Sevigny v. British Aviation Insurance Co., Case No. 15-cv-127 (USDC D.N.H. June 16, 2015).

This post written by Renee Schimkat.

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REINSURER PLACED UNDER ORDER OF REHABILITATION

March 19, 2015 by Carlton Fields

An Illinois circuit court entered an agreed order of rehabilitation against a reinsurer, Millers Classified Insurance Company, following a complaint for rehabilitation filed by the Illinois Department of Insurance. Millers Classified’s board of directors had passed a corporate resolution on December 16, 2014 agreeing to the entry of the order of rehabilitation. The effect of the order was to create an estate comprising of all of the company’s assets and liabilities to be managed by an appointed rehabilitator. The order specifically allowed all policies where Millers Classified was the ceding company to remain in place subject to further review. All policies where Millers Classified was the assuming or retrocessional reinsurer were cancelled on a cut-off basis effective upon the order’s entry. State of Illinois ex. rel. Stephens v. Millers Classified Insurance Co., Case No. 2015CH (Ill. Cir. Ct. Jan. 20, 2015).

This post written by Leonor Lagomasino.

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