Reinsurance Focus

New reinsurance-related and arbitration developments from Carlton Fields

DESPITE ABSENCE OF FORMAL REINSURANCE AGREEMENT, COURT APPLIES “FOLLOW THE FORTUNES” DOCTRINE AND FINDS BAD FAITH

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In a dispute between reinsurers Trenwick America Reinsurance Corp. and IRC Re Limited regarding the alleged breach by IRC Re of a retrocessional reinsurance agreement, a court applied the “follow the fortunes” doctrine to find that IRC violated the agreement in bad faith. The dispute arose when IRC Re “at the 11th hour” denied the existence of a written reinsurance agreement and refused to pay its share of the liabilities arising from the underlying insurance program. The court found that an unwritten agreement existed based on IRC Re’s conduct (e.g., accepting premium payments), correspondence, and testimony from other parties involved in the program. The 56 page opinion contains extensive discussion regarding the existence and terms of the reinsurance contract, its place in a larger reinsurance program, and IRC’s conduct in the reinsurance dispute. IRC Re was not permitted to raise claim payment defenses due to the “follow the fortunes” doctrine. The court found that the doctrine was customary in the reinsurance industry and was therefore applicable even in the absence of a written agreement. The court further held that IRC Re, its CEO, and IRC Re’s affiliate responsible for managing the underlying insurance program, violated the Massachusetts unfair and deceptive trade practices statute. With the program’s manager and the program’s reinsurer “aligned on the same side” there was “little chance of resolving the claim in a timely fashion and surely without litigation” and they “did everything they could to obfuscate the issues and stall their ultimate resolution.” Trenwick America Reinsurance Corp. v. IRC, Inc., Case No. 07-12160 (USDC D. Mass. Feb. 16, 2011).

This post written by Michael Wolgin.

STATE REINSURANCE AND CAPTIVE DEVELOPMENTS

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The following are select State bills relevant to the areas of reinsurance and captive insurance.

Nonadmitted and Reinsurance Reform: Since our posting of January 18, 2011, the legislatures of Mississippi (HB 785), Vermont (HB 164), and West Virginia (HB 2963) are among other states that have introduced legislation in response to the mandates of the Nonadmitted and Reinsurance Reform Act of 2010 of the Dodd-Frank Act. Vermont’s bill appears to be modeled after the surplus lines proposal approved by the National Conference of Insurance Legislators (“NCOIL”). A companion bill (SB 0036) to HB164 was introduced in Vermont’s Senate. West Virginia’s bill contains an express reference to the surplus lines proposal approved by the National Association of Insurance Commissioners (“NAIC”). Mississippi’s bill, which passed the House of Representatives on February 2, 2011 and was subsequently transmitted to the Senate, does not appear to follow either the NAIC or the NCOIL surplus lines proposal.

Reinsurance and Taxation: Texas’ House of Representatives introduced legislation (HR 243) expressing its opposition to federal legislation (H.R. 3424) introduced in the U.S. House of Representatives and to any other proposal that would limit the use of reinsurance by non-U.S.-based insurance companies. As previously reported in our post of August 17, 2009, H.R. 3424 seeks to amend the Internal Revenue Code of 1986 to disallow the deduction for excess non-taxed reinsurance premiums with respect to the United States risks paid to affiliates.

Captive Insurance: West Virginia introduced legislation (HB 2983) that would, among other things, subject captive insurers organized in the state as risk retention groups to additional provisions of the Insurance Code, including, but not limited to, section fifteen-a, article four (credit for reinsurance; definitions; requirements; trust accounts; reductions from liability; security; effective date). A companion bill (SB 356) to HB 2983 was introduced in West Virginia’s Senate. Additionally, Montana introduced legislation (HB 419) that would establish requirements for the operation of captive insurance companies and for interaction between captive insurance companies and their protected cells. Among other things, the bill revises the qualification for protected cell sponsors and participants.

This post written by Karen Benson.

ARBITRATION AWARD CONFIRMATION DECISIONS

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Preclusive Effect of Prior Litigation

Regale, Inc. v. Thee Dollhouse Prods. N.C., Inc., Case No. 10-280 (USDC E.D.N.C. Jan. 20, 2011) (denying motion to vacate and/or modify award and granting motion to confirm award; no manifest disregard of the law; award did not fail to draw its essence from the agreement; court’s decisions in prior tort case did not preclude decision of contract issues subject to arbitration)

Foreign Awards

Int’l. Trading & Indus. Inv. Co. v. Dynacorp Aerospace Tech., Case No. 09-791 (USDC D.C. Jan. 21, 2001) (confirming arbitration award under the FAA and Convention on Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”); manifest disregard standard does not provide a basis for denying confirmation under the New York Convention; arbitrator did not manifestly disregard Qatari law, notwithstanding Qatari high court’s conclusion that the arbitrator failed to follow Qatari law)

Mistake of Law

Brown v. Pulte Home Corp., Case No. 10-mc-201 (USDC Feb. 14, 2011) (granting plaintiffs’ petition to confirm arbitration award in part and denying petition to vacate award in part; arbitrator’s finding of “liability” in liability phase did not bind the arbitrator to hold for plaintiffs on all counts in damages phase; arbitrator’s alleged mistake of law in refusing to order damages under unfair trade practices and consumer protection law beyond the scope of judicial review)

Contech Constr. Prods., Inc. v. Heierli, Case No. 09-01483 (USDC D.C. Feb. 4, 2011) (granting petition to confirm final award and cross-petition to confirm partial award; fact that the arbitrator may have misapplied the law or rules not a basis for vacating the award under the FAA)

Exceeding Authority; Manifest Disregard of the Law

Westminster Securities Corp. v. Petrocom Energy Ltd., Case No. 10-07893 (USDC S.D.N.Y. Jan. 19, 2011) (granting petition to confirm award and denying motion to vacate award; arbitration panel did not manifestly disregard the law in holding that agreement’s tail provision applied to transaction at issue; panel did not lack the authority to adjudicate unjust enrichment claim)

N.J. Bldg. Laborers Statewide Benefit Funds v. GMAC Constr., Case No. 10-6518 (USDC D.N.J. Jan. 31, 2011) (confirming arbitration award requiring that contributions be made to employee trust funds and benefit plans; no evidence to suggest arbitrator acted in manifest disregard of the law or exceeded his authority)

Popkave v. John Hancock Distribs., LLC, Case No. 10-3680 (E.D. Pa. Feb. 7, 2011) (denying petition to vacate award; arbitrators did not exceed their powers, nor manifestly disregard the law by issuing an award against an entity that may not have been the proper party; the party had not sufficiently educated the arbitrators about the law, and did not independently recognize the law, so they could not have manifestly disregarded it)

Bailey v. Northrop Grumman Ship Sys., Inc., Case No. 08-04685 (USDC E.D. La. Feb. 2, 2011) (denying motion to vacate arbitration award; no statutory grounds under the FAA for vacatur—manifest disregard not a basis for vacatur; arbitrator did not exceed his authority)

Weiner v. Commerce Ins. Co., Case No. 10-P-234 (Mass. Ct. App. Jan. 7, 2011) (affirming vacatur of initial arbitration award because the arbitrator exceeded his authority in declaring UIM claimant’s claim as premature and failing to determine damages; affirming confirmation of subsequent award by a second arbitrator appointed by the court)

Contravention of Public Policy

Kiely Constr. Co. v. Util. Workers Union of Am., Case No. 10-4871 (USDC D.N.J. Jan. 3, 2011) (denying motion to vacate award; award drew its essence from the collective bargaining agreement; award did not contravene public policy)

Nat’l Football League Players Ass’n. v. Nat’l Football League Mgmt. Council, Case No. 10-1671 (USDC S.D. Cal. Jan. 5, 2011) (granting motion to confirm arbitration award requiring application of Tennessee law to workers’ compensation claims brought in California and denying motion to vacate award; no manifest disregard of the law; not contrary to public policy)

Evidence of Partiality or Corruption

Tysinger Motor Co., Inc. v. Chrysler Group, LLC, Case No. 10-554 (USDC E.D. Va. Jan. 7, 2011) (denying motion to vacate award; FAA did not apply, special procedure created by Congress governed, which did not provide for judicial review; even so, there was no evident partiality or corruption by arbitrators)

This post written by Ben Seessel.

BROKER CREATING PRIVATE ANTI-PIRACY NAVY

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An interesting story appeared in the press recently about London broker JLT developing the Convoy Escort Program, what amounts to a private navy that will provide armed escort services to subscribing vessels through pirate waters off the African coast. Although details have not been made public, it appears that shipping companies who have insurance for piracy-related losses are being asked to fund a non-profit corporation that will hire ex-military personnel to provide escorts to several vessels in small convoys. It is thought that if the cost of such services is less than the amounts being paid in ransom that it would be an economically viable option, and will permit the professional military vessels to patrol further from the coast, where pirate activity has been increasing.

This post written by Rollie Goss.

U.K. HIGH COURT ENDORSES EXPOSURE TRIGGER FOR ASBESTOS-RELATED LIABILITIES

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The U.K. Court of Appeals ruled on trigger of coverage issues in a consolidated appeal of cases involving underlying personal injury litigation arising from exposure to asbestos, in light of employers liability policies that generally cover liability for injury “sustained” during the policy year in question. The opinion discusses the unique long latency of mesothelioma, a cancer caused by exposure to asbestos, but which typically does not manifest into disease for as long as forty years or more. The court held generally that the insurer on the risk at the time of exposure — not the time of manifestation of the disease — is responsible for the liability. The ruling is grounded in industry custom, but addresses recent conflicting precedents, generally arising from differing policy wordings over time. The court distinguished a prior ruling, Wasa Int’l Ins. Co. Ltd. v. Lexington Ins. Co., [2009], which involved a conflict between the plain language of a reinsurance contract and a presumption arising from industry custom that insurance and reinsurance cover the same risks, and which ultimately applied the plain policy language as written, despite the presumption. Nevertheless, the court distinguished the Wasa case, noting the varying policy wordings in the employers liability policies at issue. It also recognized the consequences of its ruling on reinsurance liabilities and wordings as well, which it noted have likewise varied over time. Employers’ Liability Insurance “Trigger” Litigation, [2010] EWCA Civ. 1096 (U.K. Court App. Civ. Div. Oct. 8, 2010).

This post written by John Pitblado.