Settlement allocations of long-tail losses like pollution claims have long been a source of disputes between cedents and reinsurers. Often the allocation of the underlying settlement depends on the allocation methodology used based on the law of the relevant jurisdiction. The issue becomes more complicated where the reinsurance contract is governed by the law of a different … [Read more...] about Cedent Prevails on Back-to-Back Reinsurance Recovery
Reinsurance
Why Reinsurance Arbitration or Mediation Is More Efficient Than Litigation
The battle between whether reinsurance disputes should litigated or arbitrated (or mediated) continues even though most reinsurance disputes are subject to arbitration provisions in the reinsurance contracts. There are arguments on both sides, of course, and no one can argue that arbitration has not become more like litigation. While I favor arbitration and mediation (for … [Read more...] about Why Reinsurance Arbitration or Mediation Is More Efficient Than Litigation
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
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
Insurers need to change business models to drive climate resiliency, report shows
New research published from Capgemini and Efma’s recent World Property and Casualty Insurance Report reveals that climate change is hurting the insurance industry, and that insurers need to change their business models to achieve climate resiliency. The inaugural report titled – “Walking the Talk: How insurers can lead climate change resiliency”, addresses the impacts on … [Read more...] about Insurers need to change business models to drive climate resiliency, report shows
Climate Change and Reinsurance
Climate change is an existential risk to human life. But, before we get to life as we know it potentially disappearing, this commentary will discuss climate change as a significant risk to insurers and reinsurers. Swiss Re first identified the risk in 1979, and today it is one of the most significant concerns for businesses. Here are some statistics. In a 2014 study by Munich … [Read more...] about Climate Change and Reinsurance
The End of ‘Bellefonte’: ‘Global Re’ and the Proper Reading of Facultative Reinsurance Contracts
In late December 2021, the U.S. Court of Appeals for the Second Circuit issued a blockbuster decision grappling with the Erie doctrine, stare decisis, and overturning a decades-old precedent. It was the fourth appellate decision in a lengthy litigation reminiscent of Dickens’ Bleak House. This was not litigation about constitutional rights or environmental justice, but a case … [Read more...] about The End of ‘Bellefonte’: ‘Global Re’ and the Proper Reading of Facultative Reinsurance Contracts
NY DFS Issues Circular Letter Addressing Acquisitions and Disclaimers of Control
On April 19, 2022, the New York Department of Financial Services (“NY DFS”) issued Insurance Circular Letter No. 5 (2022) (the “Letter”). The Letter, entitled “Acquisitions of Control and Disclaimers of Control”, was addressed to all New York domiciled insurers and other interested parties. The purpose of the Letter is to remind insurance industry participants of the … [Read more...] about NY DFS Issues Circular Letter Addressing Acquisitions and Disclaimers of Control
The End of Collateral for Non-US Reinsurers Is Here; An UPDATE on “Reciprocal Reinsurers”
As we previously reported a year ago, the National Association of Insurance Commissioners (NAIC) adopted amendments to the Credit for Reinsurance Model Law (#785) and Credit for Reinsurance Model Regulation (#786) to implement the certain international agreements to eliminate collateral requirements for qualifying reinsurers. The Models created a new category of reinsurers, … [Read more...] about The End of Collateral for Non-US Reinsurers Is Here; An UPDATE on “Reciprocal Reinsurers”
Meet Randi Ellias: Notable Woman in Reinsurance
When Randi joined the Butler Rubin law firm in Chicago over 25 years ago, she was fresh out of law school and eager to get to work. She had served as a summer clerk at the firm and enjoyed the people and the firm culture. Her journey began in the area of reinsurance arbitration and litigation, and often she was the sole woman in the room. In fact, during her first reinsurance … [Read more...] about Meet Randi Ellias: Notable Woman in Reinsurance
Buying English Law When You Place London Market Reinsurance?
Cedents based in the United States should be aware that they may be buying (or, indeed, have already bought years ago) English law to govern interpretation of their reinsurance contracts placed in the London market. In a US court presiding over a lawsuit involving reinsurance placed in London, English law can apply despite the American forum. In any given case, whether the … [Read more...] about Buying English Law When You Place London Market Reinsurance?
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
Disputes Over Arbitrator Qualifications: The Northern District of California Offers Some Guidance
The selection of an arbitration panel can often lead to disputes between the parties regarding things like whether a particular candidate is qualified, whether a challenge to an arbitrator’s qualifications can be addressed pre-award and whether a party that names an unqualified arbitrator should lose the opportunity to name a replacement. In Public Risk Innovations v. Amtrust … [Read more...] about Disputes Over Arbitrator Qualifications: The Northern District of California Offers Some Guidance
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?
Reinsurance Agreements and Initial Disclosures
A recent decision by a North Carolina federal court adds to a list of cases requiring insurance company defendants in coverage actions to produce reinsurance agreements as part of their initial disclosures under Federal Rule of Civil Procedure 26. Although the list may be growing, many of these decisions adopt an overly simplistic, one-size-fits-all approach that fails to … [Read more...] about Reinsurance Agreements and Initial Disclosures
California Supreme Court clarifies the special relationship
On April 1, 2021, the California Supreme Court entered an opinion in Brown v. USA Taekwondo, which involves sexual abuse-related claims against USA Taekwondo (“USAT”) and the United States Olympic Committee (“USOC”). Lowers Courts’ Decisions From 2007 to 2013, then-minors Yazmin Brown, Kendra Gatt and Brianna Bordon (collectively, “Plaintiffs”) were sexually abused by their … [Read more...] about California Supreme Court clarifies the special relationship
Strike and Rank – An Alternative to the Strike and Flip Umpire Selection Process
Umpire selection is one of the most important aspects of a reinsurance (or any other) arbitration because it can have a significant impact on the outcome of your case. Traditionally, parties have utilized the “strike and flip” method of umpire selection where the parties nominate a specified number of candidates, strike all but one of the other side’s candidates and then select … [Read more...] about Strike and Rank – An Alternative to the Strike and Flip Umpire Selection Process
The latest challenge to Ohio’s allocation law
Nearly two decades ago, the Supreme Court of Ohio adopted an “all sums” approach to allocate insurance coverage for progressive injuries among multiple triggered policies. In Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., the Court held that “when a continuous occurrence of environmental pollution triggers claims under multiple primary insurance policies, the … [Read more...] about The latest challenge to Ohio’s allocation law
