RECENT CASE SUMMARIES
Second Circuit Affirms Insured Has No Direct Right of Action Against Reinsurer Absent “Cut- through” Provision
Callon Petroleum Co. v. Nat’l Indemnity Co., 11-241-cv, 2012 U.S. App. LEXIS 13538 (2d Cir. July 3, 2012).
The Second Circuit upheld a district court’s dismissal of claims brought against a reinsurer by an insured who was not a party to the reinsurance agreement. The court pointed out that, as a general rule, the original assured has no right of action against the reinsurer unless the reinsurance agreement contains a “cut-through” provision granting policyholders a direct right of action against the reinsurer that is apparent on the face of the reinsurance agreement. Here, not only was there no cut-through provision in the reinsurance agreement, but there was an express provision that third parties had no rights whatsoever under the agreement. Accordingly, the insured had no direct right of action against the reinsurer.
First Circuit Affirms Summary Judgment Against Cedent
OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of Can., 684 F.3d 237 (1st Cir. 2012).
The First Circuit has affirmed a district court’s denial of summary judgment to the cedent and award of summary judgment to the reinsurer. The dispute was about the alleged obligation of the reinsurer to reinsure the cedent for certain policies issued by the cedent in the early 1980s. The cedent provided coverage to the insured for three years during three consecutive policy periods. The 1980 policy included an endorsement stating that the policy was reinsured by the reinsurer. A facultative certificate, expiring at the conclusion of the 1980 policy, was issued confirming the reinsurer’s obligation to reinsure the cedent for the risk. The cedent did not issue the reinsurance endorsement on either the 1981 or the 1982 policy periods, nor was the facultative certificate issued for this time period. In finding for the reinsurer, the district court held that the facultative certificate was the only contract between the parties and because it states that the reinsurance term ended at the expiration of the 1980 policy, the reinsurer did not reinsure the later policies.
In affirming, the First Circuit held that the cedent, as the party seeking coverage, was unable to prove that the reinsurer agreed to reinsure the 1981 and 1982 policies. In rejecting the cedent’s argument that the reinsurer agreed to reinsure the 1980 policy and any renewals and that the facultative certificate was merely a confirmation of the reinsurance relationship that already existed, the court held that there was no evidence that the reinsurer agreed to provide reinsurance beyond the term of the 1980 policy. In making its decision, the court also examined evidence regarding the flow of premium payments during the three year period in question and found support for the argument that the reinsurer terminated the relationship at the conclusion of the 1980 policy period.
Fourth Circuit Affirms Order Compelling Arbitration Holding That McCarran-Ferguson Does Not Apply
ESAB Group, Inc. v. Zurich Ins. PLC, 685 F.3d 376 (4th Cir. 2012).
In a non-reinsurance case, the Fourth Circuit has affirmed a district court’s exercise of subject-matter jurisdiction and order to compel arbitration. The appeal presented the question of whether the McCarran-Ferguson Act applies such that state law can reverse preempt federal law and invalidate a foreign arbitration agreement. The dispute stems from a state court action brought by the insured challenging the insurer’s refusal to defend and indemnify the insured in products liability actions. The policies issued to the insured contained arbitration clauses requiring any disputes to take place in Sweden. The district court, adopting the reasoning of the Fifth Circuit, held that because the McCarran-Ferguson Act limits its scope to federal statutes, and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention”), not Chapter 2 of the Federal Arbitration Act (“FAA”), directs courts to enforce international arbitration agreements, the McCarran-Ferguson Act could not disrupt the application of traditional preemption rules.
In affirming the district court’s order, the Fourth Circuit held that the scope of the McCarran-Ferguson Act is limited to domestic legislation and therefore does not encompass Chapter 2 of the FAA because Chapter 2 implements the legislation of a treaty. The court stated that Congress did not intend the McCarran-Ferguson Act to “delegate to states the authority to abrogate international agreements that this country has entered into and rendered judicially enforceable.” In so finding, the Fourth Circuit upheld the district court’s order to compel arbitration in Sweden on the basis that state law invalidating arbitration agreements in insurance policies did not apply.
New York Federal Court Compels Production Reinsurance Information
Fireman’s Fund Ins. Co. v. Great Am. Ins. Co. of N.Y., 2012 U.S. Dist. LEXIS 92701 (S.D.N.Y. Jul. 3, 2012).
This insurance coverage suit involved a dispute over the production of reinsurance documents arising out of the sinking and salvage of a dry dock. The court granted the insured’s motion to compel the cedent to produce the file of its reinsurer, as well as other communications or documents maintained on the reinsurance contracts, including communications related to the cedent’s procurement of, and claims made on, its reinsurance contract for the dry dock loss.
The insured initially subpoenaed the reinsurer directly, but after the cedent objected on the ground that the information was protected by the common-interest doctrine, the reinsurer turned the file over to the cedent to handle the dispute. The cedent objected to the insured’s reinsurance information requests on the grounds of relevance and the common-interest doctrine. The insured contended that the cedent failed to establish that the common-interest doctrine applied to the documents it sought and that, even if the common-interest doctrine did apply, it had failed to establish the existence of an underlying privilege. The cedent further argued that the insured had not offered any reasons why the reinsurance communications were relevant to the lawsuit, and that the reinsurance documents were protected by the attorney-client privilege or work-product doctrine.
As to relevancy, the court noted the federal rules provide that a party is entitled to discovery on “any non-privileged matter that is relevant to any party’s claim or defense.” In finding that the information was relevant, the court noted that although “case law is sparse within the Second Circuit” concerning the discoverability of reinsurance information, “the few cases to consider the issue have determined that reinsurance information is indeed discoverable.” Based upon these cases, the broad scope of the federal discovery rule, and that the cedent’s cross-claim asserting fraud put what cedent told its reinsurer about the age and condition of the dry dock in issue, the court held that the cedent’s position that reinsurance documents are generally irrelevant was insufficient to withhold the documents.
The cedent also objected on the basis of relevancy of information on loss reserves. The court ruled, however, that simply because the insured did not specifically articulate a demand for reserve information in its subpoena that was no basis to withhold the information. Moreover, the court held that more recent cases on reserve information have held that document requests seeking reserve information should be evaluated on a case-by-case basis because both, the reserve amounts and changes to reserves, could possibly lead to admissible evidence relating to the insurer’s own beliefs about coverage, liability, and the good faith handling of the claim.
The court also addressed the common-interest privilege, stating that the doctrine is an exception to the general rule that voluntary disclosure of confidential privileged material to a third-party waives any applicable privilege. While the doctrine protects the free flow of information from client to attorney whenever multiple clients share a common interest about a legal matter, the court cautioned that the doctrine was not an independent source of privilege or confidentiality and will not apply if a communication is not protected by the attorney-client privilege or the attorney work-product doctrine.
The cedent objected, alleging that it and its reinsurer had a joint legal interest in the outcome of the dry dock litigation. In ruling against the cedent, the court stated that the parties, exchanging otherwise privileged information, must establish a “common legal, rather than commercial interest,” and it is key that the nature of the interest be identical, not similar. The court also stated that the parties must establish that any exchange of privileged information was made in the course of formulating a common legal strategy, and that the parties understood that the communication was made in furtherance of a shared legal interest. It is also essential that the communication was made in confidence for the purpose of obtaining the attorney’s legal advice in order for the attorney-client privilege to apply.
The court concluded that one must assess whether the evidence suggests that the ceding insurer and its reinsurer have forged a “cooperative and common enterprise towards an identical legal strategy,” suggesting therefore that a case-by-case analysis be applied instead of a categorical rule. Here, the court noted, the evidence showed that the cedent and its reinsurer did not share an identical legal interest. The court was not convinced that the cedent and its reinsurer shared a common legal interest that would entitle the cedent to withhold documents that it produced to its reinsurer. Moreover, the court found that the cedent has not proven or even argued that it disclosed otherwise privileged materials to its reinsurer in the course of formulating a common legal strategy, or for the purpose of obtaining legal advice from the reinsurer. Nor has it presented evidence about the legal necessity of exchanging otherwise protected information.
Therefore, to the extent that the cedent shared otherwise privileged information with its reinsurer, the court ruled any privilege applying to the documents has been waived because the cedent failed to establish that it shared a common legal interest with its reinsurer.
New York Federal Court Adopts Magistrate Judge’s Recommendation and Denies Motion to Dismiss an Action to Enforce Provisions of a Confidentiality Agreement
Utica Mut. Ins. Co. v. INA Reinsurance Co., No. 6:12-cv-00194-DNH-TWD (N.D.N.Y. Jun. 11, 2012).
A New York federal court adopted in whole a magistrate judge’s report and recommendation that a motion to dismiss a suit alleging breaches of confidentiality agreements between a cedent and its reinsurer be denied. The cedent had initiated arbitration against its reinsurer (the “First Reinsurer”) alleging breach of a reinsurer certificate that reinsured certain umbrella policies. As part of the arbitration proceedings and the audit process that had preceded it, the parties had entered into three separate confidentiality agreements—one governing the audit, one outlining the arbitration protocol, and one entered as an order by the arbitration panel. Documents were disclosed by the cedent pursuant to these agreements. At the same time, the cedent commenced litigation in federal court against a second reinsurer who reinsured the same umbrella policies (the “Second Reinsurer”) alleging breach of contract and other claims as a result of a failure to pay reinsurance billings. Both reinsurers were represented by the same outside counsel.
During the course of the proceedings, the cedent claimed that it learned that the First Reinsurer improperly disclosed information to the Second Reinsurer through their common counsel in breach of the confidentiality agreements governing the arbitration proceeding. The confidentiality agreements permitted a party to seek injunctive relief so to remedy the alleged breach the cedent initiated an action in federal court against the First Reinsurer. The First Reinsurer sought to dismiss the federal court action, claiming that the cedent’s suit against it should be referred to arbitration or, in the alternative, that it should be consolidated with the cedent’s already pending federal court proceeding against the Second Reinsurer under the Colorado River abstention doctrine. That doctrine states that where there are duplicative actions involving the same claims, a court should seek to avoid duplication litigation and stay further proceedings.
The magistrate judge concluded, and the court agreed, that neither bases for dismissal were warranted. It noted that arbitration was a matter of contract and that a party cannot be required to submit to arbitration any dispute which it has not agreed to submit. The arbitration agreement in the reinsurance certificates only applied to claims involving the reinsurance certificates, not the distinct confidentiality agreements. In the absence of language in the confidentiality agreements requiring the insurer to submit its breach of confidentiality claims to the arbitration panel, those claims could be pursued in federal court. The court also accepted the magistrate judge’s recommendation that the Colorado River abstention doctrine did not apply. The court noted that the defendants in the cedent’s two lawsuits—the First Reinsurer in one and the Second Reinsurer in the other—were not only different, but did not have interests that were aligned. Each reinsurer had a separate and distinct interest in defending against the cedent’s claims under two separate reinsurance certificates, and the Second Reinsurer had no interest in defending the breach of confidentiality claim against the First Reinsurer. The fact that the two reinsurers shared the same outside counsel was not sufficient to align their interests.
Federal Magistrate Judge Recommends a Finding That the Reinsurer Need Not Prove Prejudice on a Late Notice Defense
AIU Ins. Co. v. TIG Ins. Co., No. 07 Civ. 7052 (S.D.N.Y. Aug. 16, 2012).
In this long-standing dispute over whether facultative certificates are required to respond to asbestos loss notices claimed to be late by the reinsurer, a federal magistrate judge has recommended that the reinsurer’s renewed motion for summary judgment be granted. The dispute involved a series of umbrella policies issued by the cedent to cover the insured’s excess liabilities. The cedent reinsured its exposure through a series of facultative certificates. Each of the facultative certificates stated that “prompt notice shall be given to the Reinsurer by the Company of any occurrence or accident which appears likely to involve this reinsurance.”
In 2001, a series of declaratory judgment actions and third-party actions were commenced over various insurers’ obligations on asbestos bodily-injury claims brought against the insured. In 2006, the cedent settled with the insured and began making payments under the settlement agreement. In 2007, the cedent sought recovery under the facultative certificates for the settlement payments. The reinsurer rejected the cession based on the prompt notice provision of the certificates.
In finding for the reinsurer, the magistrate judge first found that Illinois law, not New York law, applied to the certificates. Illinois law does not require the reinsurer to show prejudice from the late notice. Using New York’s center of gravity or grouping of contacts approach in analyzing choice-of-law, the magistrate judge found that the certificates were countersigned in Illinois, which made them effective, and, therefore, were issued in Illinois. The magistrate judge also found that the place of performance was Illinois, because the claims were submitted to the reinsurer in Illinois, although this factor was not given much weight in the choice-of-law analysis. The remaining factors analyzed by the magistrate judge equally favored New York or Illinois.
After determining that Illinois law governs, the magistrate judge addressed the prejudice issue and found that under Illinois law prompt notice is a prerequisite to coverage under the certificates. The magistrate judge also found that there were no questions of fact as to whether the reinsurer had actual notice of the underlying claim and recommended summary judgment be granted to the reinsurer.
Late notice cases appear infrequently these days. This case provides a detailed analysis on the various elements of a late notice defense, including choice-of-law.
Texas Supreme Court Holds That Stop-loss Insurance of Self-funded Employee Health Plans is Subject to State Regulations for Insurers and is Not Reinsurance
Tex. Dept. of Ins. v. Am. Nat’l Ins. Co., 55 Tex. Sup. J. 705 (Tex. 2012).
The Texas Supreme Court examined a stop-loss insurance agreement purchased by a self-funded employee health benefit plan to determine whether the agreement constituted reinsurance, thereby exempting it from the oversight of the state’s insurance regulator, or whether it was direct insurance, which would make it subject to state regulation.
The court first stated that the Texas Insurance Code failed to define either “stop-loss insurance” or “reinsurance.” The court distinguished between excess insurance, which it considered direct insurance, and reinsurance, by explaining that an excess insurer indemnifies the insured for losses that exceed the amount of primary or other coverage. In a reinsurance agreement, one insurer’s risk is transferred to another insurer, who accepts the risk in exchange for a percentage of the original premium. The court found that stop-loss insurance shares characteristics of both excess insurance and reinsurance.
The court reversed the intermediate appellate court and reinstated the trial court’s ruling that the state’s Insurance Code was ambiguous as to whether stop-loss insurance constituted reinsurance or direct insurance under the Insurance Code. Accordingly, and because the state regulator’s determination that stop-loss insurance constituted direct insurance was reasonable, the court gave deference to the regulator’s construction and agreed that stop-loss insurance sold to a self-funded employee health-benefit plan is not reinsurance, but rather direct insurance subject to regulation under the Texas Insurance Code.
New York State Motion Court Denies Summary Judgment on Post-Merger Dispute
WT Holdings, Inc. v. Argonaut Group, Inc., No. 600925/2009, 2012 N.Y. Misc. LEXIS 3331 (N.Y. Sup. Ct. Jul. 10, 2012).
When insurance and reinsurance companies are purchased or merged, the acquirer often questions whether representations made concerning the ultimate losses of the target company were accurate. In this case, a dispute arose post-merger as to whether losses were incurred and represented fairly that trigger indemnification provisions in the stock purchase agreement. After reviewing the cross-motions for summary judgment, a New York state motion court denied both motions for summary judgment because factual issues remain and neither side was entitled to relief as a matter of law.
The underlying losses involve the target’s liability for losses arising out of the September 11, 2001 attack on the World Trade Center, and whether IBNR reserves should have been set on a one occurrence or two occurrence basis. Other reserves under various contracts were also in issue and questions arose whether representations made by the target as to whether the reserves complied with regulatory and accounting requirements were accurate. Essentially, the acquirer sought indemnification in the form of benefit of the bargain damages for the difference between the case reserves and the total amount of potential losses as indicated in broker advices.
The court did rule that the acquirer was not entitled to indemnification measured by benefit of the bargain damages because of certain provisions in the stock purchase agreement that waived all causes of action. Nevertheless, claims of false representations could not be resolved because of questions of fact and competing expert evidence on the definition of loss and on compliance with accounting standards. Because indemnity contracts are strictly construed, these factual issues precluded judgment as a matter of law.
Pennsylvania State Court Holds Definition of Loss and Expense Is Derived From Underlying Policies Where Facultative Certificate Is on an Excess of Loss Basis
Ace Prop. & Cas. Ins. Co. v. R&Q Reinsurance Co., No. 02290, 2012 Phila. Ct. Com. Pl. LEXIS 128 (May 15, 2012).
A Pennsylvania state court granted a cedent’s motion for summary judgment against its reinsurer and predecessor companies, and decided the contract interpretation issue in the cedent's favor. The dispute focused on the meaning of the terms "loss" and “expense” in multiple facultative reinsurance certificates issued by the reinsurer and in the underlying policies.
In granting summary judgment to the cedent, the court accepted the cedent's position that the definitions should be taken from the definition of "ultimate net loss" in the underlying insurance policies. The facultative certificates provided that the liability of the reinsurer followed that of the cedent, being subject in all respects to the terms and conditions of the cedent's policies, except as otherwise provided.
The cedent purchased facultative reinsurance on four of the underlying insurance policies in which the insured was sued by claimants alleging asbestos bodily injuries. When the claims settled, the cedent submitted proofs of loss, but the reinsurer did not pay them claiming instead that the cedent miscalculated its attachment point by combining indemnity and expenses.
The court, noting that the parties checked the "excess of loss" box on the facultative certificates, and not "contributing excess" or "non-concurrent," ruled that because loss was not defined in the facultative certificates, the definition carried over from the underlying policies. The court agreed with the reinsurer's position, however, that the terms "loss," "expense," and "damage" would be determined by the facultative certificates and not the underlying policies if the facultative certificates were "non-concurrent" instead of "excess of loss.”
Accordingly, the court ruled that the broad "ultimate net loss" definition in the underlying insurance policies should prevail, and that the term "loss" included defense and expenses in addition to indemnity. The court held the cedent was correct in combining indemnity and defense costs to reach its attachment point.
RECENT ENGLISH CASES
Court of Appeal Addresses the Conflict Between Arbitration and Governing Law
Sulamerica CIA Nacional De Seguros SA & Ors v Enesa Engenharia SA & Ors  EWCA Civ 638 (16 May 2012).
A recent decision of the Court of Appeal (Civil Division) of England and Wales confronted the contractual tension when the governing law of an insurance policy appears to undermine the validity of an agreement to arbitrate. The dispute related to two policies of insurance covering risks arising from the construction of a hydroelectric generating plant in Brazil. The insurance was “reinsurance led,” in the sense that the insureds first arranged the terms of the reinsurance and then identified Brazilian fronting companies to issue the direct policies. The direct policies and the reinsurance agreements contained essentially the same terms and were directly negotiated between the insureds and the reinsurers. The policies provided that the governing law of the contracts would be the law of Brazil and that any dispute arising out of the policies would be subject to the exclusive jurisdiction of the courts of Brazil. The contracts included pre-action mediation requirements and, in the event the parties were unable to resolve in mediation the amount due for a claim under the policy, an arbitration clause with the situs of the arbitration in London.
A dispute arose regarding coverage for a claim made by the insureds. The insurers disclaimed coverage on the grounds that the losses were uninsured or excluded by the express terms of the policies. In order to secure a declaration that they were in fact not liable under the policies, the insurers gave notice of arbitration. In response, the insured obtained an injunction from a Brazilian court restraining the insurers from resorting to arbitration, claiming that Brazilian courts were the proper venue for the dispute. The insurers countered by obtaining an injunction from the English courts restraining the insured from proceeding with the Brazilian action. The insurers relied on the presence of the arbitration clause, which required a London arbitration to resolve the question of whether amounts were due under the policy.
The key issue for the Court of Appeal was the impact of the law of Brazil, the governing law of the policies, on the arbitration clause. Under Brazilian law, an arbitration agreement is not enforceable against a party without that party’s consent. Thus, the insured argued, the reference to arbitration in the policy could not override the Brazilian courts’ jurisdiction over the dispute. The lower court had rejected this argument, finding that despite the contract’s overall choice of Brazilian law as the governing law, the reference to London as the site of the arbitration meant that the law of the agreement to arbitrate was the law of England. The Court of Appeals was therefore faced with the apparent conflict between the governing law clause that and the arbitration clause.
Noting that there was no binding precedent, the Court of Appeal began with two propositions it deemed established. First, even if a contract has an overall governing law clause, courts accept that the law governing an agreement to arbitrate could be different. Second, in order to determine the proper law governing the agreement to arbitrate, it was necessary to perform an analysis of whether there was an express choice, an implied choice, or a close and most real connection to one particular law.
Although conceding that there were powerful factors pointing to Brazil as the proper choice of law for the application of the arbitration clause, the Court of Appeal concluded that the choice of London as the site of the arbitration weighed more heavily in favor of the law of England. The court held that the choice of an arbitration forum that is in a different jurisdiction that the governing law of the overall contract contains real legal consequences that would have been foreseeable to the parties, most prominently that the conduct and supervision of the arbitration would fall to the jurisdiction where the arbitration was to be held. The court also noted that if Brazilian law was to govern the arbitration clause, the effectiveness of the clause would be severely constrained by the requirement that the insured consent to arbitration. The court did not believe that the parties intended a result that negated an arbitration agreement. The Court concluded that in light of the choice of a London arbitral forum, and the consequences of applying Brazil law, it was most likely the parties had intended for English arbitration law applied to the arbitration clause. It therefore dismissed the insured’s appeal.
RECENT SPEECHES AND PUBLICATIONS
Larry Schiffer spoke on “Adventures in Contract Wording: The Effect of Ambiguous Contract Language,” at the Contract Wording Discussion Group on June 5, 2012, in New York.
Eridania Perez moderated a panel on “International Arbitration Practice,” at the International Chamber of Commerce’s Young Arbitrator’s Forum on July 17, 2012, in Chicago.
Eridania Perez was a discussion leader at the Reinsurance Association of America’s “The Art of Designing Reinsurance Contracts and Programs,” on July 19, 2012, in New York.
Larry Schiffer moderated a panel on “Understanding and Preparing for Disasters Caused By Terrorist Acts,” at the American Bar Association’s Annual Meeting on August 3, 2012, in Chicago.
David Farber will be speaking on “Medicare Secondary Payer: Current Issues, Future Problems,” at a live webinar on West LegalEdcenter, on September 11, 2012. You can register for this webinar here.
Suman Chakraborty will be a facilitator at The Reinsurance Association of America’s “Re Claims: Reinsurance Claims and Loss Management” seminar on September 13, 2012, in New York City.
Larry Schiffer will be speaking on Technology at the ARIAS-US Educational Seminar on “Difficult Issues in Arbitration – Even For Experienced Arbitrators,” on October 31, 2012, in New York City.
Eridania Perez will be speaking on “International Arbitration Issues,” at the ARIAS-US 2012 Fall Conference on November 2, 2012, in New York City.
Larry Schiffer’s article, “Arbitrating Against a Party in Receivership or Liquidation,” was re-published on ReinsuranceArbitrators.com in August 2012.
Congratulations to John Nonna, co-head of Patton Boggs’ Insurance and Reinsurance Dispute Resolution Practice Group, for being recognized as an Elite Lawyer among leading insurance and reinsurance lawyers by Intelligent Insurer magazine.
Authors contributing to this newsletter are: Editor, Larry P. Schiffer, Suman Chakraborty, Aaron A. Boschee, Alison Wyllie MacLaren, and Linda S. Sikora.