Windstorm, Storm Surge, Flood Exclusion and Anti-Concurrent Causation Confusion

Back in October, the U.S. Court of Appeals for the Second Circuit issued a Summary Order (no precedential effect) in a Hurricane Sandy storm surge coverage dispute.  The court reversed summary judgment in favor of the insurer and remanded the case back to the district court to assess whether an endorsement’s anti-concurrent causation clause conflicts with or creates an ambiguity concerning a flood exclusion.  The struggle to articulate coverage or non-coverage for storm surge continues.

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Coverage for Government Investigations and Warranty of No Known Claims

Obtaining insurance coverage for a government investigation is often complicated by the type of investigation and the available coverage.  Most policies that cover aspects of government investigations–directors and officers liability policies or errors and omissions policies–are written on a claims-made form and exclude claims that relate back to prior or pending claims.  Very often the insurance company asks for a signed warranty that the insured and its officers are unaware of any actions that might result in a claim during the policy period.

Recently, the United States Court of Appeals for the Second Circuit issued a Summary Order (non-precedential) addressing an attempt to obtain coverage for a government investigation from a new third layer excess insurer.

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New Case on Consolidation in Reinsurance Arbitrations

It’s pretty clear in most jurisdictions that the question of whether disputes under multiple reinsurance contracts should be consolidated is a question for the arbitrators and not the court.  What’s less clear is how the parties get an arbitration panel in place to address the consolidation issue. A California federal court recently addressed this issue. Continue Reading

December 2018 Reinsurance Newsletter

In this edition of the Squire Patton Boggs Reinsurance Newsletter we cover two Second Circuit cases; one on functus officio and the other on a post-Global v. Century decision.  Other cases include state court cases on manifest disregard and functus officio and on whether an arbitration provision was enforceable.  Comments are welcomed.  Please click here to download the newsletter.

Second Circuit Affirms Exception to Functus Officio Rule in Arbitration

In 2017, we discussed a reinsurance case where the district court articulated an exception to the functus officio rule that allows for clarification of an arbitral award.  The Second Circuit has now affirmed that decision and joins the Third, Fifth, Sixth, Seventh and Ninth Circuits in allowing this exception.

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What Happens When a Policyholder Settles Without Involving Its Insurer?

Nobody likes to get sued.  When a lawsuit or a demand letter comes in, the first thing that crosses the mind of the party being sued (or claimed against) is how can I resolve this quickly?  That may be a reasonable visceral reaction to the suit, but what happens when insurance is involved? Continue Reading

Ramifications of Global Re v. Century Indemnity Evident in Second Circuit

In late 2017, the New York Court of Appeals, in Global Reinsurance Corp. of Am. v. Century Indemn. Co., 30 N.Y.3d 508 (2017), provided guidance to the Second Circuit Court of Appeals on how New York law interprets reinsurance contracts and, in particular, the stated limits in facultative certificates and whether those stated limits are presumptive caps on the facultative reinsurer’s liability.  That guidance is evident in a recent case decided by the Second Circuit Court of Appeals in yet another dispute over facultative coverage for asbestos settlement liabilities.

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September 2018 Reinsurance Newsletter

The Squire Patton Boggs September 2018 Reinsurance Newsletter is now available here.  This quarter’s newsletter discusses the recent Second Circuit case on evident partiality, a case on equitable subrogation and reinsurance damages arising out of the 9/11 terrorist attacks and a trial court’s decision to allow evidence of follow-the-settlements on the question of whether the doctrine should be implied into a facultative certificate.  Please enjoy.

Court Allows Damages for Reinsurance Payments Under Equitable Subrogation

In a recent case, a New York federal court in one of the September 11, 2001 lawsuits against Al Qaeda granted plaintiff insurance carriers’ motion for an award of damages on a default judgment against the terrorist organization.  The damages requested included both insurance payments made to insureds as a result of the September 11th terrorist attacks and reinsurance payments made to cedents.  The decision is interesting because of the potential conflict between the traditional concept of privity in reinsurance and the scope of equitable subrogation.

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Second Circuit Holds That New York’s Two Year Contestability Statute Means Two Years

In AEI Life LLC v. Lincoln Benefit Life Co., No. 17-224, 2018 U.S. App. LEXIS 15485 (2d Cir. Jun. 8, 2018), a Trust purchased a $6.5 million life insurance policy on an individual.  On the application, it claimed that the named individual had a net worth of $87 million and an annual income of $1.5 million.  It would later prove that this simply wasn’t true.  But in the meantime, a stranger to the policy deposited money into the Trust, which was used to pay the $205,000 in yearly premiums.

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