Reinsurance Focus

New reinsurance-related and arbitration developments from Carlton Fields

You are here: Home / Archives for Week's Best Posts

Week's Best Posts

IAIS’S PROPOSED INTERNATIONAL INSURANCE SUPERVISION OUTLINE OPEN FOR COMMENT

by

The International Association of Insurance Supervisors (“IAIS”) has released a “concept paper” describing its proposed Common Framework for the Supervision of Internationally Active Insurance Groups (“ComFrame”). This document is open for comments through August 31, 2011. As summarized in the accompanying Press Release, ComFrame will:

  • Develop methods of operating group-wide supervision of Internationally Active Insurance Groups in order to make group-wide supervision more effective and more reflective of actual business practices;
  • Establish a comprehensive framework for supervisors to address group-wide activities and risks and also establish principles for better supervisory cooperation in order to allow for a more integrated, international approach; and
  • Foster global convergence of regulatory and supervisory measures and approaches.

The IAIS also has published a set of presentation slides which provide an overview of ComFrame.

This post written by Rollie Goss.

UK COURT: EXCESS POINT IN REINSURANCE AGREEMENT “SCALED” TO REFLECT INSURED’S INTEREST IN LOST ASSETS

by

The UK Commercial Court recently ruled on the interpretation of a reinsurance agreement related to wind storm risks for a large independent oil exploration and production venture in the Gulf of Mexico. The dispute concerns the interpretation of the coverage limit provision of a facultative reinsurance policy applied to claims from Hurricane Rita. The provision provided “to pay up to Original Package Policy limits/amounts/sums insured excess of USD250 million (100%) any one occurrence of losses to the original placement.” The cedent calculated the reinsurance claim on the basis that the US $250 million excess point was referable to 100% values of the property, and that since Devon Energy (the insured) had less than a 100% interest, the excess point had to be “scaled” to reflect its lower interest. The Court agreed, finding that the evidence was “overwhelming” that the notation “100%” in the reinsurance agreement “has a recognized and established meaning in the market … [meaning] that the limit or excess scales to reflect the assured’s interest in the relevant assets.” A claim of misrepresentation was also rejected by the court. Gard Marine & Energy Limited v. Tunnicliffe, Case No. 2007 Folio 351, 2011 EWHC 1658 (Comm. Ct. June 30, 2011).

This post written by John Black.

SECOND CIRCUIT REVERSES DISTRICT COURT ON APPLICATION OF STOLT-NIELSEN

by

Recently, a group of retail sales employees appealed to the Second Circuit an order vacating an arbitration award on the ground that the arbitrator had exceeded her authority in light of the Supreme Court’s decision in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758 (2010). The Second Circuit reversed the judgment of the district court, concluding that the district court simply substituted its own interpretation of the parties’ arbitration agreement rather than examining whether the arbitrator had exceeded her authority under Supreme Court precedent. The Second Circuit explained that the district court failed to undertake the appropriate inquiry – whether the arbitrator had the authority to reach the issue at all, not whether the arbitrator decided the issue correctly. The Court noted that the district court had concluded that under Stolt-Nielsen, the arbitrator had improperly ruled that the parties’ arbitration agreement did not prohibit class arbitration. Because this analysis failed to consider the pertinent issue (as noted above), the Second Circuit reversed the judgment of the district court vacating the award and remanded the case with instruction to confirm the award. Jock v. Sterling Jewelers, Inc., No. 10-3247 (2d Cir. July 1, 2011).

This post written by John Black.

COURT COMPELS ARBITRATION AND REFUSES TO DISQUALIFY A PARTY’S SELECTED ARBITRATOR

by

A federal district court compelled arbitration and refused to disqualify a party’s selected arbitrator, notwithstanding that the arbitrator was a former employee and consultant of the objecting party’s parent company. Service Partners, LLC and American Home Assurance Co. entered into a payment agreement for insurance and risk management services that contained an arbitration clause providing that each party would select an arbitrator and the two selected arbitrators would choose a third. The clause prohibited the selection of an arbitrator under either party’s control and, further, provided that, if a party refused or neglected to select an arbitrator, either party could petition a New York state court to appoint one. American Home objected to Service Partners’ selected arbitrator and refused to arbitrate because the arbitrator was a former employee of American Home’s parent, and in the past had served as a party arbitrator for American Home, and as a consultant/expert witness for American Home’s parent. Thus, according to American Home, the arbitrator was not qualified because he knew American Home’s “playbook.”

Service Partners moved to compel arbitration, arguing that nothing in the parties’ agreement or federal law provided for the disqualification of an arbitrator before the entry of an award and, moreover, that the arbitrator was qualified. The federal district court granted the motion to compel. The court first determined that venue was proper–finding that the New York court could only be accessed where no arbitrator had been appointed, not where an arbitrator’s qualifications were in dispute. The court, moreover, held that the arbitrator was qualified under the parties’ agreement because, as a former employee of American Home’s parent, he was not currently under either party’s control. Further, the court held that, absent extraordinary circumstances that did not exist in the case, a challenge to an arbitrator’s qualifications or partiality should be made only after an award is rendered. Serv. Partners, LLC v. Am. Home Assurance Co., Case No. 11-01858 (USDC C.D. Cal. June 20, 2011).

This post written by Ben Seessel.

IMPLEADED REINSURER DISMISSED UNDER CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS

by

The plaintiff in a personal injury suit arising from an automobile accident amended his petition to add Lloyd’s of London to a state court suit initially brought against the alleged tortfeasor and the tortfeasor’s primary insurer (Lloyd’s cedent). Lloyd’s removed the suit to federal court under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and sought dismissal based on the arbitration provisions of its contract with the insurer. The plaintiff did not oppose the dismissal, so long as it was without prejudice, and moved to remand the case back to state court. The court granted Lloyd’s motion to dismiss without prejudice and granted plaintiff’s motion to remand. Rossignol v. Tillman, Case No. 10-3044 (USDC E.D. La. June 17, 2011).

This post written by John Pitblado.