Reinsurance Focus

New reinsurance-related and arbitration developments from Carlton Fields

Journal of Reinsurance, Summer 2006 issue

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The Summer 2006 of the Journal of Reinsurance, which is published by the Intermediaries & Reinsurance Underwriters Association, contains four articles:

Roger Crombie, Bermuda: From Pushbikes to Sidecars

Christopher M. McGhee, The Catastrohpe Bond Market 2005: Riding Out the Storms

Sharon E. Sonnett, The Regulation of Reinsurance: An Analysis of Proposed Legislative Changes

Michael Haravon, Federalization of Insurance/Reinsurance: A Good Idea?

UK Court rejects contention that party may be an additional insured as an undisclosed principal

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A broker was directed to procure a policy on a vessal for the benefit of two parties as co-insureds. It failed to have one party named as an insured. When a loss occurred and the claim of the unnamed party was denied, litigation unsued. The UK Court of Appeal held that losses of the unnamed party resulted from breach of duty by the broker, and that the unnamed party could not be considered to be a co-insured based upon its status as an undisclosed principal of the policy's beneficiary. Talbot Underwriting Ltd. v. Nausch, Hogan & Murray, Inc., [2006] EWCA 889 (June 29, 2006).

SPECIAL FOCUS: solvent schemes of arrangement

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Solvent schemes of arrangement are processes through which solvent companies may commute all policies within the purview of the scheme, effecting a voluntary dissolution or clean reorganization with a relatively short tail. Found predominantly in the UK, they have been subject to some recent court decisions, which have included jurisdictional questions, such as whether such schemes can be imposed where some creditors or policy holders are domiciled in the US or other countries. They are controversial with US companies since they effect a reorganization outside bankruptcy laws or “traditional” US insurance rehabilitation/liquidation proceedings:

  • This process is described by PriceWaterhouse Coopers and Marsh Risk Consulting in special papers found on their web sites.
  • PWC has compiled a guide to specific schemes of arrangement, which describes actual schemes of arrangement administered in the UK.
  • Rhode Island is the first US jurisdiction to adopt a statutory structure providing for such a process, which can be utilized only by companies domiciled under Rhode Island law. Since its adoption in 2002, there have not been any reported court opinions relating to the Rhode Island statutes.  There has been some speculation as to whether the availability of this “abbreviated” form of reorganization might prompt run-off companies, or those preparing to enter a run-off mode, to re-domicile in Rhode Island. 

Court of Appeal explains "manifest disregard of the law" standard

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The United States Court of Appeals for the District of Columbia Circuit, in a securities case, affirmed the refusal of a District Court to vacate an arbitration award. Appellant conceded that none of the four bases for vacating an award articulated by the Federal Arbitration Act were present, but contended that the award should be vacated nevertheless because the award was “in manifest disregard of the law.” The Court described this standard as requiring that a panel ignore well defined, explicit law that was clearly applicable to the case, and that decisions based upon debatable points of law and disputed issues of fact did not satisfy this standard. Kurke v. Oscar Gruss and Son, Inc., Case No. 05-7018 (D.C. Cir. July 18, 2006).

California reinsurance regulation proposals

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Both the California Legislature and Department of Insurance are considering proposed changes to the regulation of reinsurance. The proposed regulations have been particularly controversial, as some have suggested that they contain substantial deviations from NAIC model provisions. The proposed legislation, Assembly Bill 2400, was amended June 19, 2006, while the Insurance Departmented posted revised proposed regulations on its website on June 14.