LLR: Insurance & Reinsurance

Jurisdiction - United States - Fronting - Bermuda insurance company organized by Minnesota hospitals to provide liability insurance for members - Company not admitted in United States and providing workers’ compensation coverage through reinsurance of fronting carrier - Company and fronting carrier in liquidation - Whether liquidator of fronting company stated valid claim against members of company.

Jurisdiction - Lloyd’s - US federal court -Diversity and ancillary jurisdiction - Reinsured’s complaint against reinsurers, syndicates at Lloyd’s - Syndicates’ Names including Illinois residents - Whether complete diversity of citizenship lacking -Whether ancillary jurisdiction conferred by reinsurers’ counterclaim alleging racketeering - Whether court should exercise discretion in favour of retaining jurisdiction.

Jurisdiction - Texas - Foreign reinsures -Reinsurance provided by Malaysian reinsurer, through reinsurance brokers acting outside United States, to foreign primary insurer of Texas company - Insolvency of primary insurer - Whether Texas court had jurisdiction over reinsurer.

Arbitration - United States - Asbestos claims - US primary insurer’s petition for arbitration allowed by state court - Reinsurers’ petition to remove case to federal court - Three reinsurers not taking part in petition - Whether “defect in removal procedure” - 9 USC section 205, 28 USC section 1447(d) - Convention on the Recognition and Enforcement of Foreign Arbitral Award - Whether writ of mandamus available.

Insolvency - Trust fund - Risk retention group - Reinsurance arrangements requiring trust fund established in Iowa - Trust account established in name of reinsurer’s proposed successor - Proposed successor placed in receivership - Declaratory judgment by default against reinsurer in favour of reinsured - Whether judgment precluded proposed successor from asserting claim against fund - Whether proposed successor had any rights or interests to trust funds.

Slip - Construction - “subject to reinsurance and security” added to acceptance of reinsurance line slip - Whether term of reinsurance or created condition precedent to reinsurer’s liability - Alleged misrepresentation and non-disclosure.

Misrepresentation - Broker - Reinsurer’s defence to Order 14 proceedings based on alleged misrepresentation - Whether broker offered to negotiate retrocession contract as agent for original clients - Whether triable issue or arguable defence that reinsured authorized broker to undertake responsibility for placing retrocession cover on behalf of reinsurers - Market practice.

Agency - Broker - Whether instructed by reinsured to obtain reinsurance - Broker offering retrocession cover to reinsurer.

Non-disclosure - Order 14 proceedings - Whether merits if any of non-disclosure defence in relation to reinsurance sufficient to disentitle reinsured from obtaining summary judgment.

Practice - Order 14 proceedings - Reinsurance dispute - Whether suitable for determination in proceedings for summary judgment under Order 14 where pleadings extensive and evidence voluminous.

Notice - Excess of loss - Duty on ceding excess of loss insurer to give “prompt notice” of “any occurrence or accident... likely to involve this reinsurance” - Custom and practice in reinsurance industry.

Notice - Promptness - New York - “any event or development which might result in a claim” - Whether reinsurer discharged from liability where reinsured failed to give timely notice of claim - Whether New York law applicable - Whether reinsurance to be distinguished from insurance.

Jurisdiction - Reinsurance dispute - Domicile - Place of performance - Writ issued in England by United States cedants against Greek reinsurer - Whether cedants had good arguable case that place of performance of obligation was London - Whether telex messages exchanged between parties indicated no binding agreement - Whether cedants’ case disclosed serious issue calling for trial - Whether instructions by cedants’ agent to reinsurer to have cheque available in London could constitute variation of contractual requirement that payment was to be made in Boston - Civil Jurisdiction and Judgments Act 1982 (Brussels Convention) articles 2, 5.

Excess of loss - Bad faith - Claims Service Contract - Primary insurance carrier failing to settle claim made against insured within primary policy limits - Whether breach of any duty to excess insurers - Whether primary carrier under obligation to notify excess underwriters of modification of primary insurance contract - Whether Claims Service Contract modified primary insurance contract between primary carrier and insured.

Reinsurance - Wording - “with 120 days NCAD” - Whether contract automatically renewed if prescribed notice of cancellation not given.

Estoppel - Estoppel by convention - Whether evidence clearly and unequivocally established agreed interpretation of wording “with 120 days NCAD” in reinsurance contracts.

Reinsurance - Indemnity - Payment by original insurer in respect of material damage - Whether made under legal liability - Whether fronting insurer liable to reimburse insured - Whether, where original insurer prima facie not bound to indemnify insured, insured would have been entitled to rectification of policy.

Taxation - United States - Reinsurance company in United States reinsuring risks under quota share retrocession treaty with Swiss reinsurer - Whether company required to report and prove gross figures shown on Swiss reinsurer’s statements and not simply net amount of income or loss - Whether statements were admissible in evidence as to existence of losses and expenses of Swiss reinsurer, but not amounts thereof - Whether US company had satisfied its burden of proof as to claimed amounts of losses and expenses and allowable amounts.

Contractor’s all risks - United States -Malaysian construction project - Action against insurers and reinsurer under CAR and DIC policies - Insurers’ motions for summary judgment - Whether site owner, broker and foreign non-party reinsurers were indispensable parties - Whether policy wordings were ambiguous - Whether genuine issues of material fact existed as to coverage under policies.

Broker - Instructions - Evidence - Facultative reinsurance of business interruption cover - Conflict of evidence between reinsured and broker placing reinsurance - Original insurance effective November 1, 1981 - Reinsurance cover arranged by broker on January 22, 1982 - Occurrence on January 19, 1982, leading to total loss claim on original insurance - Allegation by reinsured that broker was instructed to effect binding reinsurance on January 19 - Burden of proof.

Insolvency - Winding-up petition - Application to strike out - Excess of ultimate net loss reinsurance contracts - Alleged non-payment of claims - Whether precondition of reinsurer’s liability that reinsured should actually have paid assureds - Whether valuation of contingent underlying liabilities was “loss settlement” or “compromise settlement” - Whether petitioner had provided “reasonable evidence” of claims.

Procedure - Discovery - United States - Audit reports on managing agent prepared for New York liquidator of reinsured - Whether reports protected from disclosure in liquidator’s action against reinsurer.

Insolvency - Preferential transfer - Letters of credit to secure reinsurance obligations of reinsurer - Bank providing standby letters of credit to reinsureds before collateral properly transferred - Bank reimbursing itself by liquidating collateral transferred to bank two to three weeks after issuance of letters of credit - Reinsurer in liquidation - Whether bank received preferential transfers.

Arbitration - Reinsurance dispute -Appointment - Whether reinsured forfeited right to appoint arbitrator by failing to name candidate within time specified in arbitration clause - Authority of reinsurer’s attorneys to accept service - Whether application to compel arbitration was sufficient to state claim.

Aviation reinsurance - Quota share treaties - Whether quota share treaties constituted partnership - Inward excess of loss risk - Whether misrepresentation or lack of fair presentation of terms of contract to underwriter by plaintiffs existed in placing insurance risk - Dispute over way in which terms were expressed - Whether defendants could avoid treaties - Whether plaintiffs could recover US$520,000 already paid out - Whether defendants could recover US$275,000 - Marine Insurance Act 1906, sections 18 and 20.

Non-disclosure - Misrepresentation - Fair presentation -Renewal of casualty excess of loss treaty for 1982 - Earlier years’ records - Whether long record, including years 1977-79, provided by broker and available to reinsurers’ underwriter - Risk broked to concentrate underwriter’s mind on short record covering years 1980-1981 - Whether prudent underwriter would have wanted to see long record - Whether doctrine of waiver defeated any reliance on non-disclosure.

Affirmation - Non-disclosure/misrepresentation defence by reinsurers - Whether reinsurers invoked or asserted contractual right - Whether reinsurers had requisite knowledge of matters on which they could rely - Whether reinsurers entitled to period of time to consider whether or not to avoid - Whether that should include inquiries of witnesses on other side - Whether reinsurers acted in way only consistent with intention not to treat contract as at an end.

Non-disclosure - Additional losses - Applicability of errors and omissions clause to precontractual material misrepresentation - Whether additional losses should have been known to reassured and communicated to broker - Whether additional losses material to contract should have been disclosed when final presentation took place - Whether reinsurers had affirmed contract or were estopped from reliance on non-disclosure - Effect of knowledge through loss borderaux.

Illegality - Pool - Unauthorised members - Marine, non-marine and aviation pools managed on behalf of members in London - Pool agreement providing for automatic retrocession by fronting company to other pool members - Insurance companies not authorized to carry on business as insurance companies by Insurance Companies Acts 1974-1981 - Whether alleged retrocessions illegal and void - Whether Financial Services Act 1986 applicable to contracts retrospectively.

Contract - Construction - Run-off reinsurance agreement - Reinsurer agreeing to “... pay and make good all claims, returns, reinsurance premiums and other outgoings” payable by reinsured - No “follow the settlements” clause - Whether reinsurer liable for all relevant payments which had been paid or settled honestly - Whether “payable” necessarily meant that claims must be legally payable under antecedent obligation deriving from original policies - Whether reinsurer precluded from challenging settlements effected by reinsured - Whether reinsured, if not legally liable to insured, could recover payments from reinsurer on proof that such payments constituted reasonable compromise on issue of liability - Whether reinsured had established requirements for rectification.

Jurisdiction - Casualty excess reinsurance treaties - Arbitration and service of suit clause incorporated - Disputes over asbestos claims - Whether arbitration clause subverted effect of service of suit clause - Whether service of suit clause applied to action involving determination as to whether parties’ disputes were subject to arbitration - Whether Foreign Arbitral Convention precluded contractual waiver of removal rights.

United States - Security - Foreign retrocessionaires sued by liquidator of Kentucky cedant - Choice of law doctrine - Whether New York had greater concern with issue of pre-answer security than Kentucky - Whether lawful service under Kentucky law sufficient to permit application of NY insurance law to retrocessionaires - Whether liquidator had waived right to demand that retrocessionaires post pre-answer security - Whether service of suit clause in reinsurance treaties constituted explicit waiver of sovereign immunity by foreign retrocessionaires.

United States - Security - Unauthorized foreign reinsurers - Pre-answer security - Ohio - Action against London market reinsurers - Whether scope of section 3901.18 limited to actions in which jurisdiction asserted under preceding section which expressly excluded reinsurance transactions from its coverage - Whether security requirement of section 3901.18(A)(1) inapplicable where plaintiff sought only declaratory relief.

Security - Pre-answer security - New York Insurance Law 1213 - Whether requirement to post security contingent upon manner of service - Whether inapplicable to foreign reinsurers - Whether seeking prejudgment security at inception of litigation amounted to waiver of provisions of Insurance Law - Whether requirement of $10 million security constituted deprivation of due process.

Insolvency - Action by liquidator of insolvent reinsurance company, former captive, against former owners, retrocessionaires, cedants and managers - Whether defence of fraud and remedy of rescission for fraudulent inducement available - Whether retrocessionaires of insolvent reinsurer could avoid contractual obligations - Whether corporate veil should be pierced - Alleged question of fact as to whether reinsurance company was undercapitalized - Whether former owner’s dominance of captive resulted in fundamental unfairness to retrocessionaires - Whether fact that reinsurance company was insolvent rendered dividends paid by it illegal - Whether state insurance officials could be liable for failure to perform duties properly.

Account - Quota share treaty - Statements of account - Failure to object by reinsurer - Contention that material not supplied in computer-readable form - Whether agreement to pay particular amount might be implied - Reinsurer’s obligation to post letter of credit where amounts not known - Whether reinsured entitled to summary judgment.

Arbitration - Arbitration clause - United States (Colorado) - Slips placing property reinsurance of Colorado School District’s property coverage on London market including phrase “Arbitration Clause” - No policy prepared - Whether London reinsurers move to dismiss or stay action in Colorado should be allowed - Whether plaintiffs had failed to state claims upon which relief might be granted - Whether US domestic reinsurers were indispensable parties.

Broker - Jurisdiction - United States (Colorado) - London broker placing reinsurance for Colorado School Districts Self-Insurance Pool - Allegation that property reinsurance not placed on a per occurrence basis as requested - London reinsurers’ assertion that reinsurance was placed on a per risk, per building basis - Whether broker subject to jurisdiction of Colorado court.

Arbitration - United States - Default judgment - Foreign insurance company not appearing at arbitration - Award against company confirmed by default judgment - Motion by company to set aside default judgment on grounds that failure to come forward earlier was “mistake” or “excusable neglect” and that it had meritorious defense.

Arbitration - Arbitration clause - Incorporation by reference - Dispute between American retrocessionaires and Venezuelan retrocedant - Whether parties had agreed on arbitration - Whether New York Convention on Recognition and Enforcement of Foreign Arbitral Awards or Inter-American Convention on International Commercial Arbitration applied - Whether 1977 facultative reinsurance agreement (FRA) between direct insurers and London reinsurers included by reference in 1989 policy also incorporating London Following Clause - Whether FRA’s London arbitration clause binding on retrocessionaires - Whether phrase “subject to” sufficient to bind retrocessionaires to arbitration clause.

United States - Antitrust - Jurisdiction - Immunity - Alleged boycott of ISO CGL “occurrence” form by US domestic insurers and reinsurers and London market reinsurers - Alleged conspiracy - Whether US domestic insurance companies forfeited antitrust immunity under section 2(b) of McCarran-Ferguson Act by conspiring with foreign reinsurers - Whether principles of international comity counselled against US court exercising jurisdiction over conduct of London market reinsurers - Meaning of “boycott”.

Lloyd’s - Premiums Trust Deed - Meaning of “other monies” - Whether taking out of personal stop loss policies part of “underwriting business” - Whether stop loss policies taken out “in connection with” underwriting business - Whether recoveries made by Names under stop loss policies subject to trusts created by Lloyd’s Premiums Trust Deed - Personal stop loss recoveries by Names - Whether within trust fund created by the Premiums Trust Deed - Whether Name estopped from denying that recoveries from his personal stop loss insurances had been assigned to his Premiums Trust Fund - Whether Names validly and effectively assigned contractual right to receive personal stop loss recoveries to trustees under their Premiums Trust Deeds.

Environmental impairment liability - United States - Illinois reinsured claiming against London market reinsurers - Motion by reinsured to dismiss amended counterclaim by reinsurers - Counterclaim that reinsured (a) breached implied covenants; (b) induced reinsurers to participate in reinsurance programme through fraudulent misrepresentations, and (c) mishandled claim - Allegations (a) of civil conspiracy between reinsured and others involved in programme and (b) that reinsured and others committed acts of racketeering - Whether counterclaim should be allowed or dismissed.

Misrepresentation - Breach of contract - United States -”Facultative” reinsurance - Reinsurance business ceded to retrocessionaires under “System and Non-System” (SANS) treaties -Representation by cedant that ceded business would be facultative reinsurance - Treaties business in fact assumed by “automatic” and/or “semi-automatic” methods whereby underwriter delegated authority to source company - Whether cedant breached treaty terms and fraudulently induced retrocessionaires to enter into SANS Treaties.

Run-off - Pool - Reinsurance of pool members’ liabilities - Whether reinsured or reinsurer placed in direct contractual relationship with agency (pool manager) - Whether agency acted for reinsured, reinsurer or both - Whether reinsurer liable to reinsured in respect of any claim under original policies which had not been settled or resisted conscientiously by agency - Whether reinsurers entitled to put reinsured to strict proof of claims - Whether reinsured obliged to produce to reinsurers any further and, if so, what information in respect of claims - Whether reinsured or reinsurer obliged to discharge agency’s proper expenses - Whether reinsured under contractual duty to reinsurer to take prudent and businesslike steps in and about the monitoring, investigation and effecting of reinsurance recoveries which would inure to the reisinsurers’ benefit and credit - Whether reinsured discharged any such duty by permitting agency to take such steps and credit reinsurers - Whether under reinsurance contract agency owed contractual duty and/or duty of care to reinsurers - Whether agency under contractual duty and/or duty of care to reinsurers to take prudent and businesslike steps in and about the monitoring, investigation and effecting of reinsurance recoveries.

Lloyd’s - Name - Contract with Lloyd’s and Underwriting Agent - US citizen - Whether choice of forum and law provisions in Name’s contract with Lloyd’s valid and enforceable - Whether provisions in Name’s contract with Underwriting Agent requiring arbitration in England and application of English law valid and enforceable - Whether agreement requiring arbitration void as against public policy because several of Name’s claims grounded in US securities legislation - Allegation that provisions were induced by fraud.

Follow fortunes - Marine - TLO - Definition of loss transaction - Bona fide settlement by insurer under deductible policy - Claim against reinsurer on CTL basis after original claim by insured settled on partial loss basis - Whether evidence supported findings that notice of abandonment was not treated in insurance industry as prerequisite to claim for total loss - Whether waiver an accepted practice.

Arbitration clause - Stay of action - Ambiguity - Reinsurance treaties incorporating US service of suit clause and arbitration clause - Whether service of suit clause took precedence over arbitration clause - Whether arbitration clause unfair - Whether treaties ambiguous.

Jurisdiction - United States (New York) - Forum non conveniens - Action by Minnesota retrocessionaire against French retrocedants and London brokers - Allegations of fraud, breach of fiduciary duty, breach of duty of good faith and fair dealing and negligence - Balancing of factors.

Arbitration clause - Interpretation - Setoff - “irreconcilable difference.. as to interpretation of this Agreement” - Illinois law creating statutory right of setoff between insolvent insurance company and any other person - Whether dispute as to setoff a dispute over “interpretation” of contract.

Agency - Deposits - Underwriting and managing agent - Deposits placed in name of principals - Principals insolvent - Whether agent had interest in deposits either by way of charge or as beneficiary under constructive trust - Whether trust relationship was constituted by agency agreement - Whether deposits part of specified fund available for payment of debts due from principal to agent.

Arbitration - Authority of arbitrator - Security - Reinsurance agreement providing for collateral to secure reinsurer’s obligations - Disputes referred to arbitration - Interim award that reinsurer should pay deposit into escrow account - Whether arbitrators had authority to order posting of collateral.

Subrogation - Stop loss - Indemnity - Recovery by assured from wrongdoer - Whether assured entitled to be indemnified against loss (excess) which he had agreed to bear - Whether insurer subrogated to rights of his assured has equitable proprietary right (lien) on recovery fund - Whether interest of insurer attached also to right of action vested in assured which, if enforced, would yield such fund.

Practice - Discovery - United States - Communications between primary insurers and their reinsurers - Whether relevant, for discovery purposes, when policyholder alleges its costs in defending action are covered by liability insurance it purchased from defendant primary insurers - Applicability of attorney-client privilege and work-product doctrine.

Follow the settlements - Construction - “liable or not liable” - Whether reassured relieved of obligation to settle claims in businesslike way - Whether reassured discharged obligation by appointing reputable adjuster - Whether burden of proof lay on reinsurer to displace reassured’s right to rely on “follow settlements” clause - Whether implied term entitled reinsurer to obtain documents and information from reassured to enable reinsurer reasonably to satisfy himself that claim under “follow settlements” clause fell within terms of reinsurance policy and had been settled in compliance with businesslike obligation.

Arbitration - Confidentiality - Qualification - Documents engendered in arbitration between reassured and reinsurer - Reassured, unsuccessful in arbitration, intending to commence proceedings against broker - Whether disclosure by reassured of reasoned award, and possibly other documents, to broker would breach implied obligation of confidentiality - Distinction between reasoned award and other documents - Whether qualification in duty of confidence should be implied, as matter of business efficacy, where it was reasonably necessary for establishment or protection of arbitrating party’s legal rights -Whether, if it were reasonably necessary in order to run off reinsurance contracts, reassured would be entitled to disclose award and reasons to broker - Position of pleadings, witness statements, disclosed documents in arbitration and transcripts.

Notice - Waiver - Failure to communicate - Whether prejudice demonstrated - Whether action for breach of good faith lay in tort.

Pool - Authority - Fronting - Excess of loss treaty underwritten by pool underwriter - Whether pool member used as front in treaty was party to treaty - Whether pool underwriter was authorized expressly to bind pool member for percentage lines exceeding percentage stated in pool agreement - Construction of pool agreement - Whether pool underwriter had apparent or ostensible authority to use pool member as front - Whether pool member had ratified treaty - Interest on loss settlements.

Follow the fortunes - Asbestos-related claims - Notice - Whether reinsurer bound to reimburse reinsured for payments made on original insured’s behalf - Effect of reinsured’s participation in Wellington Agreement and payments through Claims Facility - Whether reinsurer’s right to associate did extend to decisions which might involve original insurance - Whether reinsurer not liable on grounds of untimely notice.