Reinsurance Focus

New reinsurance-related and arbitration developments from Carlton Fields

JULY 2011 NAIC REINSURANCE TASK FORCE MEETING UPDATE

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On July 11, 2011, the NAIC Reinsurance Task Force held an interim meeting in New York City. The meeting addressed issues raised by comments to the task force’s two exposure drafts of the Credit for Reinsurance Model Law and Credit for Reinsurance Model Regulation, which were initially posted in February 2011. The Task Force discussed whether mandatory contract clauses should be included in the models; what requirements an assuming insurer must meet in order to be approved as a certified reinsurer; what specific information certified reinsurers should be required to file; issues regarding multiple beneficiary trusts; issues relating to reporting requirements for ceding insurers; proposed changes to the ratings/collateral matrix; issues regarding the revocation of certification; issues regarding restrictions to limit so-called “concentration risk;” special issues concerning life reinsurance contracts; clarification with respect to the application process; and whether the model language should be clarified to refer to “substantially similar financial solvency regulation” as opposed to “substantially similar credit for reinsurance standards.”

The Task Force posted two revised exposure drafts on its website on July 26, 2011 (see links above), which are open for comment through the close of business on August 24, 2011.

This post written by John Pitblado.

U.K. COURT AFFIRMS 21-MONTH SENTENCE FOR REINSURANCE BROKER CONVICTED OF GOVERNMENT CORRUPTION

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Julian Jeffrey Messent, a reinsurance broker who was head of the Property Division (Americas) of PWS International Limited, a London-based reinsurance broker, was convicted in London in late 2010 of corruption offenses, stemming from his supervision of payments made to various Costa Rican governmental officials. The payments were found to be bribes meant to steer reinsurance placement for Costa Rican government-owned utility organizations to PWS. For his placement of the contracts, Messent received large incentive bonuses between 1999 and 2002 from PWS. After a new President of Costa Rica was elected in 2002, newly appointed Costa Rican officials discovered the improper payments, and both the Costa Rican and U.K. governments undertook criminal investigations which led to Messent’s arrest in 2007. Messent appealed his sentencing of 21 months each on two counts of corruption (to run concurrently), as well as a fine of £100,000. The convictions were affirmed on appeal, the court noting “there can be no doubt that corruption of foreign government officials . . . is at the top end of serious corporate offending both in terms of culpability and harm.” Regina v. Messent, [2011] EWCA Crim 644 (Eng. Ct. App.).

This post written by John Pitblado.

COURT CONFIRMS ARBITRATION AWARD ADDING PREPAYMENT PROVISION TO REINSURANCE TREATY

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Citing the treaty’s honorable engagement clause, a federal district court denied a group of reinsurers’ motion to vacate an arbitration award in which the arbitrators had fashioned a remedy requiring prompt payment of all disputed and undisputed claims. Certain London market reinsurers had entered into a reinsurance treaty with Century Indemnity Company that indemnified Century for certain liabilities arising out of asbestos litigation. The agreement did not contain a “Reports and Remittances” clause dictating when claims should be paid, but provided that the “liability of the Reinsurers shall follow that of the Company in every case.” The treaty also included an “honorable engagement” clause, directing the arbitrators to interpret the agreement to effect its general purpose.

Facing significant losses due to a flood of asbestos litigation, the reinsurers imposed a program in which Century would have to meet documentation requirements before claims were paid. When payments became delayed, Century initiated arbitration. The arbitrators issued an interim order requiring the reinsurers to promptly pay 100% of all undisputed claims and 75% of any disputed claims, finding that arrangement would effectuate the general purpose of the parties’ agreement. After several years of paying claims pursuant to this arrangement, the reinsurers moved to vacate the award when the arbitrators, who had retained jurisdiction over the matter, made the award final. Citing the “honorable engagement” clause, the court denied the motion to vacate and confirmed the award, holding that the arbitrators had the power to fashion the remedy even though it included obligations not explicitly bargained for by the parties. Harper Insurance Ltd. v. Century Indemnity Co., Case No. 10 Civ. 7866 (USDC S.D.N.Y. July 28, 2011).

This post written by Ben Seessel.

NEW YORK CLARIFIES NEWLY EFFECTIVE DODD-FRANK REINSURANCE PROVISIONS

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The New York Insurance Department issued Circular Letter No. 9 on July 22, 2011, which provides “guidance and clarification” on the impact of the Nonadmitted and Reinsurance Reform Act of 2010 (“NRRA”) (passed as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act) on surplus line placements in the state. The letter cites to and discusses the various New York state insurance and tax laws which were amended to conform to the NRRA. New York is one of the states which has declined to enter into a surplus insurance premium tax compact, keeping 100% of the tax it collects. The letter clarifies eligibility requirements for non-admitted insurers under NAIC’s Nonadmitted Insurance Model Act, which was codified under New York law; it clarifies exemptions for “exempt commercial purchasers” from satisfying due diligence requirements concerning placement with admitted insurers; and it discusses the “home state” law governing the exclusive regulation of non-admitted insurers by the insurer’s “home state” only. The letter also addresses licensing and taxation issues. Certain of the New York laws, and the NRRA, became effective on July 21, 2011.

This post written by John Pitblado.

REINSURANCE HELD NOT EXCLUDED FROM COVERAGE BASED ON LIABILITY LIMIT AND CLAIM REPORTING PROVISIONS

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In a dispute arising between Anthem Insurance (now known as Wellpoint) and what the court described as one of its excess reinsurers, Twin City Fire Insurers, Anthem sought defense and indemnification for several state and federal lawsuits alleging improper denial of reimbursement. Twin City denied coverage, arguing that those suits “related back” to the claim preceding its policy period and were accordingly excluded from coverage. An Indiana trial court agreed with Twin City, and Anthem subsequently appealed to the state appeals court. The Indiana Court of Appeals reversed and remanded, holding that none of the subject policy provisions operated to exclude such coverage. The court held specifically that the reinsurance agreement covered “claims made” and found no basis to read the agreement as excluding coverage retrospectively based on notice of claims preceding the inception of coverage. The court additionally found inapplicable Twin City’s attempt to superimpose the “prior notice exclusion” onto the agreement. Wellpoint, Inc. v. National Union Fire Ins. Co., No. 05-2011 (Ind. Ct. App. July 20, 2011).

This post written by John Black.