The insurer’s right of subrogation is equitable in nature, even if not based in contract. However, since the insurer steps into the shoes of its insured and is limited to the rights of its insured, an integral part of the investigation process is determining what rights the insured has. Whether or not the insured can settle with the tortfeasor and that whether the settlement … [Read more...] about New York Preserves Subrogation Rights
Legal Case Law
Pesky Facts Result in a Denial of Summary Judgment in a Post-Settlement Allocation Case
Since the 1970s cedents and reinsurers have been battling over long-term environmental pollution damage. Disputes have arisen over the number of retentions that the cedent should take, the manner in which settlement with the insured should be allocated and other issues. In a recent case, a reinsurer sought summary judgment on a cedent’s breach of contract claim over a specific … [Read more...] about Pesky Facts Result in a Denial of Summary Judgment in a Post-Settlement Allocation Case
Back-to-Back and Belly-to-Belly: Coextensive Reinsurance Coverage
When a ceding insurer purchases reinsurance, it generally expects that its reinsurer will respond to the ceding insurer's claims to the same extent that the ceding insurer covers the underlying claim unless otherwise stated in the reinsurance contract. In other words, ceding insurers often expect back-to-back reinsurance coverage. While this is not true in every reinsurance … [Read more...] about Back-to-Back and Belly-to-Belly: Coextensive Reinsurance Coverage
Arbitration in the Courts
DC district court reaches conflicting decisions whether EU high court’s landmark decision deprives US courts of jurisdiction to enforce investors’ arbitral awards against Spain. 9REN Holding SARL v. Kingdom of Spain, No. 1:19-cv-1871-TSC (D.D.C. Feb. 15, 2023); Blasket Renewable Investments LLC v. Kingdom of Spain, No. 21-3249 (RJL) (D.D.C. March 31, 2023). The Slovak … [Read more...] about Arbitration in the Courts
Eleventh Circuit Joins Its Sister Circuits in Holding that the FAA’s Grounds for Vacating Domestic Awards Are Available to Challenge International Arbitration Awards Rendered in the United States or Decided under U.S. Law
We recently wrote about the Eleventh Circuit’s May 2022 decision in Corporacion AIC, S.A. v. Hidroelectrica Santa Rita S.A. (AICSA v. HSR), holding that FAA grounds for vacating domestic arbitration awards are not available to challenge international arbitration awards. The Eleventh Circuit reheard the case en banc, as urged by the three judge panel in its May 2022 opinion, … [Read more...] about Eleventh Circuit Joins Its Sister Circuits in Holding that the FAA’s Grounds for Vacating Domestic Awards Are Available to Challenge International Arbitration Awards Rendered in the United States or Decided under U.S. Law
Arbitration in the Courts
Functus Officio gets a new exception: Second Circuit holds that district courts remand of unreasoned award to arbitrator does not violate the functus officio doctrine. Smarter Tools, Inc. v. Chongqing SENCI Import & Export Trade Co., Ltd., No. 21-724, (2d Cir. January 17, 2023). The functus officio doctrine – Latin for having “completed one’s office” – dictates … [Read more...] about Arbitration in the Courts
Recent Judicial Interpretations of Facultative Certificates
I. Introduction Most reinsurance disputes are resolved in private before panels of industry experts, who are experienced in the unique practices, nomenclature, and statutory accounting that comprise the business of insurance and reinsurance. These disputes often embrace financial and other obligations arising under many different insurance policies, with losses that may … [Read more...] about Recent Judicial Interpretations of Facultative Certificates
Just Decided – New Jersey Supreme Court: Insurers Can Look to Extrinsic Evidence to Deny a Defense
Last week, the New Jersey Supreme Court decided Norman International, Inc. v. Admiral Insurance Company, No. 086155 (N.J. Aug. 11, 2022). At issue was coverage for a work-site injury and the interpretation of a policy exclusion for operations or activities performed by an insured in certain counties in New York. The case is significant in terms of addressing causation for … [Read more...] about Just Decided – New Jersey Supreme Court: Insurers Can Look to Extrinsic Evidence to Deny a Defense
Follow-the-Fortunes Rejected By 11th Circuit
Follow-the-fortunes is a reinsurance concept that often is misconstrued. Some wish to impose it on every reinsurance contract regardless of whether a follow-the-fortunes clause exists. Cedents invoke it to compel payment from their reinsurers. In a recent case, the Eleventh Circuit had an opportunity to weigh in on whether the follow-the-fortunes doctrine should be inferred … [Read more...] about Follow-the-Fortunes Rejected By 11th Circuit
QuickStudy: Dobbs and the Future of Health Plan Abortion Coverage
The Supreme Court’s June 24 ruling in Dobbs v. Jackson Women’s Health eliminating the constitutional right to an abortion, and leaving states to regulate or restrict the procedure, has created a complex and tangled web of federal and state laws surrounding abortion. The challenge is particularly fraught for health plans that wish to provide coverage of medically necessary … [Read more...] about QuickStudy: Dobbs and the Future of Health Plan Abortion Coverage
The Real Issue In The Sex In A Car Case That Everyone Is Talking About
And Now for Something Completely Different…Auto Insurer Covers Insured’s Dashboard Dalliance?? In M.O. v. GEICO General Ins. Co. No. WD84722 (Mo. Ct. App. June 7, 2022), a Missouri appellate court has confirmed a $5.2M arbitration award against GEICO in favor of petitioner M.O. who alleged that having unprotected sex with GEICO’s insured in his 2014 Hyundai Genesis caused her … [Read more...] about The Real Issue In The Sex In A Car Case That Everyone Is Talking About
Arbitration in the Courts
Absent diversity of citizenship, federal courts lack jurisdiction over petitions to confirm or vacate domestic arbitration awards, even where the underlying claims arise under federal law. U.S. Federal courts are courts of limited jurisdiction, which Congress and the Constitution have defined to include two main categories: “diversity” jurisdiction (suits between citizens of … [Read more...] about Arbitration in the Courts
Massachusetts Federal Court Rejects Adria Towers, Finds Construction Defects Not an “Occurrence”
In an important ruling for insurers, U.S. District Court Judge Patti Saris found that Massachusetts does not follow the position taken in Cypress Point Condo Association v. Adria Towers, LLC, 226 N.J. 403, 418 (2016), i.e., it does not hold that "faulty workmanship claims [should be recognized] as ... an 'occurrence,' thus triggering coverage, 'so long as the allegedly … [Read more...] about Massachusetts Federal Court Rejects Adria Towers, Finds Construction Defects Not an “Occurrence”
New York’s Second Department Splits from First Department
DOES AN INSURER HAVE AN ENTITLEMENT TO RECOUP DEFENSE COSTS WHEN NO DUTY TO INDEMNIFY EXISTS? In a case of first impression for the New York Supreme Court, Appellate Division, Second Department, the court chose not to follow prior decisions of its sister court and federal courts applying New York law. The Second Department held that an insurer could not recover defense costs … [Read more...] about New York’s Second Department Splits from First Department
The Second Circuit Decision in Utica Mutual v. Munich Re: Some Clarity on Three Fronts
On July 29, 2021, the United States Court of Appeals for the Second Circuit issued its ruling on the appeal of Utica Mutual Insurance Company (“Utica”) from the decision of the United States District Court for the Northern District of New York in the dispute between Utica and Munich Reinsurance America, Inc. (“MRAm”). The court affirmed the decision of the court below that MRAm … [Read more...] about The Second Circuit Decision in Utica Mutual v. Munich Re: Some Clarity on Three Fronts
The Scope of an Arbitration Panel’s Authority
Raymond Mastrangelo, a Partner with Mound Cotton Wollan Greengrass LLP, moderated a panel discussion with three of the insurance and reinsurance arbitration community’s most experienced and respected arbitrators: Susan Claflin, Claflin Consulting Services LLC, Ann Field, Senior Managing Director of Client Services, Aon, and Howard Page, HR Page Consulting LLP. The panel topic … [Read more...] about The Scope of an Arbitration Panel’s Authority
A Look at the Legal Landscape
The education sessions of the 2021 Summer Membership Meeting began with “A Look at the Legal Landscape” of COVID-19 Business Interruption (“BI”) claims, presented by John O’Bryan, Partner, Freeborn & Peters, Michael Merlo, Executive Vice President and Chief Counsel, Aon, and Kay E. Wilde, Director of Reinsurance Assumed Claims, Allstate Insurance Company. The panel treated … [Read more...] about A Look at the Legal Landscape
Reinsurance Arbitration Awards – An Uphill Battle?
A long-running dispute between Pennsylvania National Mutual Casualty Insurance Company and one of its reinsurers, Everest Reinsurance Company, recently culminated in the unsealing of an award from an arbitration to which Everest had not been a party. Everest was able to obtain this result despite the fact that Penn National had withdrawn its petition to confirm the award (and … [Read more...] about Reinsurance Arbitration Awards – An Uphill Battle?
Uncertainty > Risk: Lessons for Legal Thought from the Insurance Runoff Market
Abstract: Insurance ideas inform legal thought: from tort law, to health law, to theories of distributive justice. Within legal thought, insurance is often conceived as an ideal type in which insurers distribute determinable risks through contracts that fix the parties’ obligations in advance. This ideal type has normative appeal because, among other reasons, it explains how … [Read more...] about Uncertainty > Risk: Lessons for Legal Thought from the Insurance Runoff Market
Same Virus, Different Outcomes
State and federal courts across the country are grappling with insurance coverage litigation, as insureds who suffered business losses due to government-mandated shutdowns look to their property insurers for relief. These cases present the following key issue for courts: does the alleged presence of the COVID-19 virus on property constitute physical damage to that … [Read more...] about Same Virus, Different Outcomes
