U.K. Court Dismisses Retrocessionaire’s Defense In “Follow The Settlements” Dispute

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A British retrocessionaire sued its retroceding reinsurer in a coverage dispute regarding the “follow the settlements” doctrine. The primary insurer at issue, ACE INA Overseas Insurance Company, insured Tesco, which operated 212 commercial premises in Thailand that were destroyed in a flood in late 2011. The loss was initially estimated by adjusters to result in £90-100 million ultimate loss payout. Tesco initially demanded and made claim for £125,300,000 in losses. After interposing coverage defenses, ACE ultimately settled the claim for £82,400,000.

Tokio Marine Europe Insurance participated in an excess of loss reinsurance treaty that was triggered by the claim, and had retroceded a portion of that risk to Novae Corporate Underwriting, Ltd. Novae challenged whether it was bound by the “follow the settlements” clause, which typically precludes challenges to the cedent’s settlement on reasonableness grounds. It refused Tokio’s claim and Tokio brought suit. Novae interposed a legal defense that the “follow the settlements” clause is understood to import both a “reasonableness” of the settlement component, and a “professionalism” in adjusting component. Novae’s defense was based on the latter. It alleged ACE had failed to have the underlying coverage issues properly vetted under Thai law. Tokio moved for summary judgment on the defense. The Court granted Tokio’s motion, finding that “notwithstanding that ACE did not further investigate the coverage afforded by the Local Policy, including the scope for deductibles, and did not delve more deeply into the question whether the high rain fall was the sole source or original cause of Tesco’s loss before concluding the settlement, Novae’s defence that ACE, in failing to take these steps, failed to act properly or in a businesslike manner has no prospect of success.” Tokio Marine Europe Insurance Ltd v. Novae Corporate Underwriting Ltd., [2014] EWHC 2105 (U.K..High Ct. Justice, Comm. Div., July 2, 2014)

 

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Carlton Fields Jorden Burt on:

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