State Anti-Arbitration Statutes, the New York Convention and the McCarran-Ferguson Act

Arbitration provisions in insurance or reinsurance contracts periodically are challenged based on state anti-arbitration statutes.  Often, when non-US insurers or reinsurers are involved, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention“) is raised as a basis to enforce the arbitration provisions in federal court.  The counterpoint to that argument is reverse preemption under the McCarran-Ferguson Act.  This is a heady academic subject that has real world consequences when a party is trying to enforce an arbitration provision in an insurance or reinsurance contract.

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Interplay Between Reinsurance and Self-Insured Workers’ Compensation

There is a somewhat complicated statutory scheme in many states concerning an employer’s ability to self-insure its workers’ compensation obligations. Reinsurance often plays a role where an employer self-insures. Typically, that role is to provide “reinsurance” in excess of a self-insured retention to protect the employer’s top end.  If an employer fails to insure or to qualify as a self-insured entity, many states have workers’ compensation trust funds that step in and pay benefits to injured workers when there is no alternative source of funding.

In a recent case under Massachusetts law, a Massachusetts appeals court addressed the interplay between a reinsurer and a self-insured employer that became insolvent.

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New York Court of Appeals Looks to Policy Language Again to Allocate Risk Proportionately to Insurers

On March 27, 2018, New York’s highest court finally brought closure to an appeal of a 2014 decision denying an insurer’s motion for partial summary judgment in its coverage litigation with its policyholder.  The Court of Appeals’ decision in Keyspan Gas East Corp. v. Munich Reinsurance America, Inc. is available here.  In affirming the Appellate Division’s 2016 reversal of the motion court, this decision is destined to have wide-ranging implications on the insurance market.

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English Court of Appeal Rules on “Experience of Insurance and Reinsurance” Arbitrator Qualifications Includes Legal Experience

In Allianz Insurance PLC (formerly Cornhill Insurance PLC) v. Tonicastar Ltd,  [2018] EWCA Civ 434, the Court of Appeal held that the arbitral qualification of experience of insurance and reinsurance means experience as a lawyer working for the industry and does not mean only those who have worked for the industry qualify.

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March 2018 Reinsurance Newsletter

Our March 2018 Reinsurance Newsletter is now available for your reading pleasure.  This issue covers the Global v. Century decision by the New York Court of Appeals answering the Second Circuit’s certified question as well as our annual review of reinsurance trends in 2017, as well as cases involving reinsurance for the September 11th terrorist attacks and cases on arbitration and discovery.  You can find the newsletter here.

Direct Claims Against Reinsurer Fail to Succeed

Direct actions against reinsurers have been on the rise for some time.  To bring a direct action, a policyholder must get over the contractual privity hurdle and find some basis to show a direct relationship or third-party beneficiary relationship.  Many policyholders try to bring these actions, but they more often than not fail at the motion to dismiss level.  Sure, there are circumstances

where the reinsurer is truly the real party in interest and has the direct responsibility and liability to the policyholder.  In those cases a direct action makes sense, but those cases are few and far between.  Allowing a direct action against a reinsurer where there is no contractual privity or other basis to succeed would disrupt the manner in which risks are spread through the insurance and reinsurance industry.  A recent case, highlighted below, shows how the courts address some of these issues.

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Errors and Omissions and Directors and Officers Clash Gets Some Clarity From the Second Circuit

Most companies that provide specialized or professional services, like stock exchanges, carry both directors and officers liability insurance (“D&O”) and errors and omissions insurance (“E&O”). These coverages are meant to be complimentary and not overlapping.  D&O covers “wrongful acts” by directors and officers.  E&O covers negligent acts in performing professional services.  D&O policies typically exclude coverage for claims that arise out of the provision of professional services. All of this seems clear until the actual facts of the claim arise.  Then the fight becomes which policy or whether both policies are required to respond to a claim.  The Second Circuit recently addressed this issue in the context of claims arising out of an initial public offering on a stock exchange that did not go as well as anticipated.

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FCA Gets Tough on UK Broker and CEO for Breach of Client Money Rules

British Currency Notes

In our last blog post, we predicted a likely up-tick in FCA disciplinary activity in 2018. It seems that we might have been right, as the FCA has already issued fines totalling nearly £2.5 million against fines and individuals in the first few weeks of the New Year.  And the insurance industry has not escaped regulatory scrutiny. On 26 January, the FCA announced big fines on broker One Call Insurance Services Limited (“OCISL”) and its CEO / majority shareholder, John Radford (“Mr Radford”) of £684,000 and £468,000 respectively for breaching FCA rules on client money handling.  In a rare move, the FCA has also prevented OCISL from charging renewal fees to customers for a period of 121 days, which may cost the firm £4.6 million.

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Lack of Inclusion Means Timely Notice of Disclaimer Is Not Required

Typically, courts are strict when it comes to insurance companies disclaiming coverage.  Generally, a disclaimer must be specific and timely for it to have any chance of being effective.  In many

cases, an insurance policy has an exclusion that the insurance company contends precludes coverage.  In other cases, the coverage alleged is just not provided for in the insurance policy.  In a recent case, the United States Court of Appeals for the Second Circuit addressed the difference between a lack of coverage because of an exclusion and because of lack of inclusion and how that difference bears on whether a notice of disclaimer is required.

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The Outlook for UK Regulatory Disputes in 2018

In 2017, the UK’s financial services’ regulator, the Financial Conduct Authority (“FCA”), imposed fines totaling over £229 million for misconduct by regulated businesses and individuals.

Looking back

Whilst 2017 did not see a return to the number or size of fines imposed by the FCA in  2014/2015 (which saw billions of pounds of fines following interbank rate and FX related misconduct), the year did see a tenfold increase in FCA fines from those imposed in 2016, just over £22 million.  This may signify an upward trend in FCA disciplinary action and a possible increase in the size and number of regulatory disputes for all financial services’ businesses in the UK, including participants in the insurance industry.

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