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West Virginia Amends Credit For Reinsurance Statute To Conform To NAIC Model, Effective January 1, 2019

West Virginia House Bill 4230, approved by Governor Justice on March 27, amends the statutory requirements relating to when an insurer may claim credit for reinsurance to conform to the NAIC model law....more

Court Applies The “Intertwined-Ness Test” To Find That A Non-Signatory Could Invoke Equitable Estoppel To Compel Arbitration

The court applied a two-part “intertwined-ness test” to determine whether an arbitration agreement allowed a non-signatory to invoke equitable estoppel to compel arbitration....more

Delegation Clause Must Clearly Contemplate Arbitrability Of Disputes With Non-Signatories To Be Enforced In Those Disputes

A delegation clause that gave the arbitrators “exclusive jurisdiction over the entire matter in dispute, including any question as to its arbitrability,” was found insufficient to require submission to the arbitrators of...more

The FAA’s Presumption In Favor Of Arbitration Does Not Require Arguable Ambiguities In Arbitration Agreements To Be Interpreted As...

In a dispute over the scope of a mandatory arbitration provision, the Sixth Circuit rejected the argument that it is required by the Federal Arbitration Act’s presumption in favor of arbitration to interpret an arbitration...more

Objection, Interrupted

It’s a cardinal rule that to preserve an argument at trial, counsel must make a contemporaneous objection. Even cardinal rules, however, have their exceptions....more

Arbitration Agreement Selecting Maryland Law Held Unenforceable As To Private Attorney General Claims Brought Under California Law

A choice of law provision within an arbitration agreement selecting Maryland law was held unenforceable in so far as it would result in waiver of claims under the California Private Attorneys General Act (PAGA), contrary to...more

Participation In Litigation To Avoid A Default Judgment Does Not Waive A Party’s Right To Compel Arbitration

An employer did not waive its right to compel arbitration under an employment agreement by seeking to set aside a default in an employment discrimination suit brought against it by its employee. ...more

When Relying On A Prior Acts Exclusion To Deny Coverage, Be Sure To Connect The Dots

In Certain Underwriters at Lloyd’s of London v. Federal Deposit Ins. Corp., No. 16-16702 (11th Cir. Jan. 23, 2018), the Eleventh Circuit concluded that a “prior acts” exclusion in a D&O policy did not bar coverage where the...more

Wyoming Enacts Legislation And Adopts New Regulations Governing Credit For Reinsurance And Term And Universal Life Insurance...

New regulations relating to credit for reinsurance and term and universal life insurance reserve financing took effect in Wyoming on November 30, 2017. The regulations implement amendments to Wyoming statutes that took effect...more

Insurance Receiver’s Preemption Argument Under Mccarran-Ferguson Fails To Avoid Arbitration Of Reinsurance Dispute

The receiver for Gramercy Insurance Company sought to avoid arbitration of a reinsurance dispute with Contractor’s Bonding, Ltd., by arguing the FAA was reverse preempted under the McCarran-Ferguson Act....more

The Federal Arbitration Act Does Not Grant Arbitrators The Power To Compel Pre-Hearing Production Of Documents From Non-Parties

While the FAA grants arbitrators authority to compel non-parties to appear before them and produce documents at a hearing, it does not authorize them to compel pre-hearing production. The Ninth Circuit Court of Appeals joined...more

Insurer’s Attempt To Shield Documents From Discovery Through Assertion Of The Mediation Privilege And A Relevancy Objection Is...

In a breach of contract and bad faith case emanating from an insurer’s refusal to settle an underlying case within policy limits, the insurer was unsuccessful in its attempt to protect documents from discovery by assertion of...more

Ninth Circuit: Unconscionability Arguments Directed Solely At Class Action Waiver Provisions In Arbitration Agreements Are...

Utilizing a “sweeping reading of Concepcion,” as characterized by the concurring opinion, the Ninth Circuit has ruled that arguments that “a class action waiver, by itself, is unconscionable under state law or that an...more

The Allegation Of Non-Arbitrable Private Attorney General Claims Does Not Prevent Arbitration Of Individual Claims Raised...

A contractual arbitration clause may not be avoided by the allegation of “private attorney general” claims that are not arbitrable on public policy grounds in conjunction with claims raised on an individual basis that would...more

12/14/2017  /  Arbitration , Employment Litigation , PAGA

Iowa And Virginia Insurance Regulators Adopt The NAIC’s Term Model Rules Governing Term And Universal Life Insurance Reserve...

Insurance regulators in Iowa and Virginia have adopted the NAIC’s Model Rules regulating term and universal life insurance reserve financing. The stated purpose of the rules is “to establish uniform, national standards...more

Odyssey Reinsurance Obtains $3.2 Million Default Judgment And Injunctions Stemming From Fraudulent Transfers Made By Underwriter

Odyssey Reinsurance Company obtained a $3.2 million default judgment on October 4, 2017, against Cal-Regent Insurance Services Corporation and Pacific Brokers Insurance Services (“PBIS”) as a result of fraudulent transfers...more

Long-Time Reinsurance Attorney Ruled Not Qualified To Arbitrate 9/11 World Trade Center Reinsurance Dispute

An attorney with “considerably more than ten years’ experience of insurance and reinsurance law” has been deemed unqualified to arbitrate a reinsurance dispute stemming from the September 11, 2001 terrorist attack on the...more

Procedural Arbitrability Questions Are For The Arbitrator, Not The Judge, Unlike Substantive Arbitrability Questions

Allegations of failure to follow the contractually-required dispute resolution procedure raise “procedural questions,” which must be asked of the arbitrator. In contrast, “substantive arbitrability questions,” also referred...more

Applied Underwriters, Inc., Loses Argument To Enforce Mandatory Forum Selection Clause In Reinsurance Contract

On September 12, the District Court for Connecticut denied a motion to transfer predicated on a mandatory forum selection clause in a reinsurance contract. The contract was one of several entered into by Applied Underwriters,...more

Lender-Affiliated Captive Reinsurer Obtains Dismissal Of Mortgage Insurance Lawsuit Brought By Illinois Director Of Insurance

The suit arose out of an arrangement where lenders would refer borrowers to (now-defunct) Triad Guaranty Insurance Company (Triad) to obtain private mortgage insurance. The lender-affiliated captive insurance company would...more

Seventh Circuit Affirms Dismissal Of Post-Liquidation Reinsurance Claim As Time-Barred

We previously posted on the trial court’s ruling addressing the statute of limitations in this case on June 23, 2016. By way of background, the underlying contract between the insurer and the reinsurer required the insurer to...more

State Contract Law Governs Which Parties May Enforce An Arbitration Agreement

Courts must apply state contract law principles to determine who may enforce an arbitration agreement. These “background principles of state contract law regarding the scope of agreements (including the question of who is...more

CFPB Issues Final Rule Prohibiting Class Action Waiver Arbitration Agreements In Certain Consumer Financial Contracts

The Consumer Financial Protection Bureau issued a final rule on July 10, 2017, prohibiting providers of certain consumer financial products and services from including within consumer agreements a requirement that any future...more

Georgia Revamps Law Governing Captive Insurance Companies

Significant changes to Georgia law governing captive insurance companies took effect on July 1, 2017. The changes relate to the permitted corporate structure of captive insurance companies, new restrictions on risks that may...more

Eleventh Circuit Defers To Arbitrator’s Interpretation Of Forum Selection Clause In International Dispute And Affirms Award

Questions of arbitral venue, even in international arbitration, are presumptively for the arbitrator to decide. The court so ruled despite arguments from an Israeli company that the arbitrator’s interpretation of an...more

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