Reinsurance Focus

New reinsurance-related and arbitration developments from Carlton Fields

New York Federal Court Curbs 30(b)(6) Topics and Quashes Non-Party Seeking the Same Testimony

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Defendants wanted to examine GEICO’s Rule 30(b)(6) witness about GEICO’s special investigation unit practices, protocols and guidelines, as well as its resources and procedures devoted to claim verification and fraud detection, as GEICO’s complaint alleged the defendants engaged in insurance fraud. The Court allowed few topics to proceed.

Rule 30(b)(6) depositions are intended to discover the facts and it is improper to use them in order to “ascertain how a party intends to marshal the facts and support its legal theories.” The topics that required GEICO to marshal the evidence GEICO believes constitutes or supports any potential defense to the Complaint were not allowed, nor were topics unrelated to the defendants’ claims or issues in the case.

GEICO also moved to quash two non-party subpoenas it believed was a “back-door attempt by defendants to improperly seek information that was previously requested in counsel’s Fed.R.Civ.P. 30(b)(6) Notice.” GEICO stated the non-parties had no involvement in investigating the insurance claims at issue and the Court agreed, finding the subpoenas to be harassing and unwarranted, granting the motion to quash.

Gov’t Employees Ins. Co. v. Lenex Services, Inc., et al., 16-cv-6030 (USDC EDNY Mar. 16, 2018)

This post written by Nora A. Valenza-Frost.

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Fourth Circuit Finds Employer Cannot Compel Arbitration of Former Employee’s Discrimination Claims

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The U.S. Court of Appeals for the Fourth Circuit recently ruled that two employment-related arbitration clauses did not “clearly and unmistakably” govern a former employee’s discrimination claims, and that the arbitrability of those claims is rightfully decided by the court, rather than an arbitrator.

Plaintiff signed two arbitration agreements with Rent-A-Center (RAC), his former employer, one when he was initially hired in 2002, and a second when he applied for a new position in 2012. Plaintiff was ultimately hired for a different position in 2013, but did not sign a new arbitration agreement with RAC at that time. Plaintiff later filed this action against RAC for discrimination arising out of his 2013 employment. RAC moved for summary judgment and to compel arbitration, arguing Plaintiff’s claims were subject to the 2002 and 2012 arbitration agreements. The district court denied the motion, however, and the Fourth Circuit affirmed.

Citing seminal arbitrability decisions by the U.S. Supreme Court, including one involving RAC, the Fourth Circuit found the parties did not “clearly and unmistakably” intend to arbitrate claims relating to Plaintiff’s 2013 employment. To the contrary, the court found a reasonable juror could conclude from the parties’ actions that they agreed to modify the arbitration agreements to exclude any disputes relating to Plaintiff’s 2013 employment. Given this uncertainty, the court held that the district court, not an arbitrator, had the authority to decide questions of arbitrability (i.e., whether Plaintiff’s claims were subject to arbitration pursuant to the 2002 and 2012 arbitration agreements). For the same reason, the court also affirmed the district court’s denial of summary judgment, finding a genuine issue material fact as to the parties’ intent to arbitrate these particular claims.

Kabba v. Rent-A-Center, Inc., No. 17-1595 (4th Cir. April 13, 2018)

This post written by Alex Silverman.

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New York Federal Court Largely Denies Motions for Summary Judgment on Issues in Breach of Facultative Reinsurance Certificate Dispute But Grants Dismissal of Quasi-Contract Claims

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Defendant, Munich Re, moved for summary judgment relating to defense costs and allocation and Plaintiff, Utica, moved for summary judgment as to Munich Re’s claim for reimbursement. The Court denied the motions with the exception of Utica’s motion for summary judgment with respect to Munich Re’s quasi contract claims.

Munich Re argued Utica’s breach of contract claim should be dismissed because Utica allegedly never notified Munich Re it had added a defense endorsement to an umbrella policy issued to Goulds Pumps Inc. Utica asserted that the follow-the-fortunes doctrine prohibited Munich Re’s argument, and that even if it didn’t, notice would not have been required because issuance of the defense endorsement was an immaterial change that did not prejudice Munich Re. Finding no follow-the-fortunes clause in the reinsurance certificate, the Court looked at the parties’ contract modification argument, finding there to be a question of fact as to whether Munich Re reinsured the defense endorsement.

Munich Re moved for summary judgment regarding defense costs, arguing it had no duty to indemnify Utica for defense costs Utica paid in addition to the umbrella’s limits. Utica opposed the motion and moved for summary judgment on the allocation of defense expenses, arguing that Munich Re had “no valid defense to payment as a matter of law.” The Court found that questions of material fact precluded summary judgment, ruling that the insurance certificates language concerning the payment of expenses and their connection to the umbrella policies was “sufficient to render the Certificate ambiguous.”

Utica argued that, even assuming that reinsurance is unavailable unless the umbrellas themselves provide for defense costs in addition to the limits, Utica was still entitled to summary judgment on the defense costs because the umbrellas provide such coverage and follow-the-fortunes would require Munich Re to pay its share. Munich Re opposed, stating the certificates did not contain a follow-the-fortunes provision and even if they did, “Utica would not be entitled to defense under follow the fortunes because its payment of defense costs in addition to the limits was clearly beyond the scope of the Umbrellas and not in good faith.” After much discussion on the law on follow the fortunes/follow the settlements, the Court declined to imply such a clause into the reinsurance certificates at issue and denied the requests for summary judgment.

Utica also moved for summary judgment dismissing Munich Re’s quasi-contract claims. Munich Re argued there was a basis for finding that the reinsurance certificate did not encompass the events at issue because they did not have any provision providing for reimbursement. The Court disagreed, finding that the claims at issue, including Munich Re’s obligation to pay defense expenses, are governed by the terms of the reinsurance certificate, dismissing Munich Re’ quasi-contract claims.

Additional arguments on various issues raised in the summary judgment motions can be read in the Court’s order.

Utica Mut. Ins. Co. v. Munich Reinsurance Am., Inc., 6:13-cv-00743 (NDNY Mar. 20, 2018)

This post written by Nora A. Valenza-Frost.

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Virginia To License Domestic Insurers To Sell Surplus Lines Insurance

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Virginia has amended its insurance law to allow the licensing of domestic insurers (i.e., insurers incorporated or organized under Virginia law) as “domestic surplus lines insurers” eligible to sell surplus lines insurance within the state.

In order to qualify for such a license, insurers must have a policyholder surplus of $15 million, and their board of directors must pass a resolution seeking this license. The law also provides that “a domestic surplus lines insurer shall be considered a nonadmitted insurer” as the term “nonadmitted insurer” is used in the Nonadmitted and Reinsurance Reform Act of 2010 (15 U.S.C. § 8201 et seq.). When issuing insurance to insureds whose home state is Virginia, such domestic surplus lines insurers will be subject to the same taxes and maintenance assessments as nonadmitted insurers from other states who sell such insurance within the state. They will also be exempt from laws regarding insurance rating plans, policy forms, policy cancellation and nonrenewal, and premium charged to the insured to the same extent as such nonadmitted insurers.

These changes will go into effect July 1, 2018.

2018 Virginia Senate Bill No. 542, Virginia 2018 Regular Session

This post written by Jason Brost.

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Michigan Amends Reinsurance Credit Statute To Conform To NAIC Model Law

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On April 10, 2018 Michigan Governor Rick Snyder (R) signed Michigan Senate Bill 638 into law to amend the state’s insurance code to conform to the National Association of Insurance Commissioner (“NAIC”)’s model law on reinsurance regarding when ceding insurers may claim credit for reinsurance. The Michigan legislative staff has published an analysis of the bill. The Michigan Insurance Code previously authorized reinsurance credit where the reinsurance is ceded to a reinsurer authorized in Michigan or met one of three different sets of requirements. Senate Bill 638 amends those three requirements as follows:

  • Where the Code allows reinsurance credit if the reinsurer is accredited as a Michigan reinsurer, the bill removes a prohibition on receiving credit where the reinsurer’s accreditation was revoked, requires the reinsurer to bear the expense of the state’s examination of its books and records to gain accreditation, removes the specific surplus requirement of $20 million required for accreditation, and institutes instead a requirement that the reinsurer satisfy the state that it has “adequate financial capacity” to meet its reinsurance obligations.
  • Where the Code allows reinsurance credit if the reinsurer maintains a qualified trust fund for reinsurance claims payments, the bill adds provisions regarding single assuming insurers that permanently discontinue writing new business secured by the trust, changes the dates for various criteria of the trusts maintained by groups of underwriters, and adds requirements for groups of unincorporated underwriters under common administration.
  • The bill maintains the Code’s provisions for reinsurance credit if the insured risks are located in jurisdictions where reinsurance is required under local laws and regulations.

The bill also adds two new scenarios that qualify for reinsurance credit:

  • Where the reinsurer is domiciled in or entered through a state that employs standards regarding reinsurance credit “substantially similar” to Michigan’s standards, provided that the reinsurer maintains a surplus of $20 million and submits to Michigan’s books and records examination authority and bears the expense thereof.
  • Where the reinsurer has been certified as a certified reinsurer in Michigan and secures its obligations as provided in the bill and the Code, provided that it meets certain certification requirements.

Additionally, the bill adds provisions governing the suspension and revocation of accreditation and certification under the Code, requiring ceding insurers to manage reinsured assets in proportion to its business and diversify their reinsurance programs, and granting the state Director of Insurance and Financial Services authority to promulgate reinsurance regulations under the Administrative Procedure Act.

The bill takes effect July 9, 2018.

This post written by Thaddeus Ewald .

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