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

Week's Best Posts

COURT BINDS INSURER TO ARBITRATION AWARD EVEN THOUGH NOT A PARTY TO THE ARBITRATION AND IT HAD NO DUTY TO DEFEND

April 14, 2009 by Carlton Fields

On February 20, 2009, the California Court of Appeals handed down an opinion considering whether an arbitration award and resulting judgment could be considered a “loss” under the terms of an insurance policy. This action arose out of an insurance agreement issued by Executive Risk Indemnity, Inc. (“ERII”) to STARS Holding Company (“STARS”). A former client (“Jones”) of STARS initiated an arbitration proceeding against the firm for faulty investment advice. Though it was aware of the proceedings, ERII chose not to participate in the arbitration. An award was levied against STARS, and the California Court of Appeals determined that ERII was bound by that decision. This appeal arose out of the ensuing coverage action between Jones (to whom STARS assigned its rights under the underlying insurance policy) and ERII.

The court determined that because ERII was bound by the results of the arbitration proceeding between its insured, STARS, and the injured party, Jones, it could not now contest the validity of STARS’s liability to Jones or the amount of damages established by the judgment. The court concluded that “when an insurer (1) is duly notified of the underlying claim against the insured; and (2) is given a full opportunity to protect its interests, the resulting judgment – if obtained without fraud or collusion – is binding against the insurer in any later coverage litigation on the claim involving its insured.” This rule applied despite the fact that ERII had no contractual duty to defend under the indemnity-only policy at issue. Thus, the court reversed and remanded for further proceedings to determine if ERII was required to indemnify STARS. Executive Risk Indem., Inc. v. Jones, Case No. 05-444352 (Cal. Ct. App. Feb. 20, 2009).

This post written by John Black.

Filed Under: Arbitration Process Issues, Week's Best Posts

NAIC CONSIDERATION OF REINSURANCE REGULATORY MODERNIZATION AND COLLATERAL CHANGES PROCEEDS

April 13, 2009 by Carlton Fields

At the spring meeting of the NAIC, the Reinsurance Task Force (meeting summary) voted not to proceed with a proposed reinsurance collateral model bulletin, but voted to expose a proposed reinsurance collateral guidance memo for a comment period ending April 23, 2009. The Task Force also voted to expose for a comment period a draft of a federal statute for a reinsurance regulatory modernization framework (comment period expires April 23, 2009). The desire is to submit the proposed bill for consideration by Congress in the current session. The Finance (E) Committee adopted the report of the Task Force (meeting summary).

This post written by Rollie Goss.

Filed Under: Reinsurance Regulation, Week's Best Posts

SECOND CIRCUIT’S FINDING THAT PLAINTIFF WAIVED THE RIGHT TO ARBITRATE IS BINDING ON THE DISTRICT COURT

April 7, 2009 by Carlton Fields

After Interdigital, Inc. (“Interdigital”) brought two suits against Nokia Corporation (“Nokia”) for patent infringement before the International Trade Commission and in the District of Delaware, Nokia petitioned the Southern District of New York for injunctive and declaratory relief and to compel arbitration pursuant to an arbitration clause contained in two contracts that allegedly licensed the patents to Nokia. The New York district court granted Nokia’s requested injunctive relief prohibiting Interdigital from proceeding against Nokia prior to the completion of arbitration proceedings and issued an order compelling arbitration, but the Second Circuit reversed the injunction and order compelling arbitration, concluding that Nokia waived its right to arbitrate its license claim through prior litigation and remanded the case to the district court. Upon remand, the district court stated that the Second Circuit’s finding that Nokia had waived its right to arbitrate is binding on the court and dismissed with prejudice the counts for injunctive relief and an order to compel arbitration. In regards to the requested declaratory relief that Nokia and its affiliates are licensed to the asserted patents, the court concluded that Nokia’s claim was a compulsory counterclaim and, thus, dismissed the third claim deferring to the earlier-filed action in the District of Delaware for the resolution of the claims. Nokia Corp. v. Interdigital, Inc., Case No. 08-1507 (USDC S.D.N.Y. Mar. 5, 2009).

This post written by Dan Crisp.

Filed Under: Arbitration Process Issues, Week's Best Posts

FEDERAL COURT STRIKES AIG’S DEFENSES AND DISMISSES SOME OF ITS THIRD PARTY CLAIMS IN ACTION BROUGHT BY NATIONAL WORKERS COMPENSATION REINSURANCE POOL

April 6, 2009 by Carlton Fields

As reported in our post on March 27, 2008, The National Council on Compensation Insurance, Inc. (“NCCI”), as attorney-in-fact for participating companies of the National Workers Compensation Reinsurance Pool (collectively “The Pool”) sued AIG and certain of its subsidiaries for allegedly engaging in a fraudulent scheme to avoid paying their proportionate share of the insurance costs in the residual market for workers compensation insurance.

AIG asserted a number of special defenses and counterclaims to NCCI’s complaint, and asserted third-party claims against certain members of the Pool. The defenses and claims were all generally based on the theory that various Pool members engaged in a premium accounting methodology similar to that utilized by AIG and found by the New York Attorney General to have been unlawful in various respects in its investigation of AIG. NCCI moved to strike the special defenses, and moved to dismiss the counterclaims. Affected members of the Pool moved to dismiss the third-party claims. The Court granted NCCI’s motion to strike each of the special defenses, but denied its motion to dismiss the counterclaims, finding that NCCI is itself a party, and not merely a representative of Pool members. The Court granted in part and denied in part the Pool members’ motion to dismiss, allowing AIG to maintain claims for breach of fiduciary duty, fraud, and unjust enrichment against specified Pool members. The Court held that New York law applies to these common law claims. National Council on Compensation Ins., Inc. v. American International Group, Inc., Case No. 07-2898 (USDC N.D.Ill. Feb. 23, 2009).

This post written by John Pitblado.

Filed Under: Reinsurance Claims, Week's Best Posts

REINSURANCE FOCUS BLOG UPGRADE

April 2, 2009 by Carlton Fields

We are upgrading Reinsurance Focus at the end of this week. You will see a new look and new features to provide added value to our readers. The changes include:

  • A different look, which is pleasing to read and helps us more effectively utilize the screen space to convey information to our readers.
  • A hyperlinked table of contents near the top of the side bar, with periodic links in the side bar back to the top of the page, to provide more efficient navigation. A “NEW” flag will be posted for two weeks by the titles of side bar items that have been amended, so that you can more easily find new content.
  • A new substantive feature towards the top of the side bar titled “Treaty Tips,” which provides guidance for the drafting of reinsurance agreements. A new “tip” will be posted approximately once a month.
  • More frequent Special Focus posts, which provide treatment of a topic of interest in greater depth than our normal blog posts. John Pitblado is the editor for these posts, and John would appreciate suggestions for topics of interest to our readers.
  • If you open an individual post by itself, you can e-mail that post to a colleague with a comment.

We hope that these changes improve your experience with our blog. Thanks for visiting us!

This post written by Rollie Goss.

Filed Under: About This Blog, Week's Best Posts

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