Author: Larry P. Schiffer, Schiffer Law & Consulting PLLC

After 38-years with boutique and global law firms, Larry P. Schiffer launched an independent legal and consulting practice, Schiffer Law & Consulting PLLC, where he provides services as a lawyer, counselor, consultant, mediator, arbitrator and expert witness. He practices commercial, insurance, and reinsurance litigation, arbitration, and mediation. He provides advice on a wide variety of insurance and reinsurance issues, including claims and disputes, policy wording analysis and drafting, insurance insolvency issues, due diligence for transactions and have insurance or reinsurance components, insurance and reinsurance education and other advice. He is available to appear for clients outside of NY at mediations and conferences as needed on a per diem basis. He is active in legal and trade associations where he has held various leadership positions. He has lectured and has been widely published on reinsurance and other insurance topics. He serves as an Expert Commentator on reinsurance for IRMI.com and co-authored the chapter on reinsurance in the New York State Bar Association’s Insurance Law Practice treatise. He is the editor of the ARIAS•U.S. Quarterly. Mr. Schiffer received his J.D. from Albany Law School, where he graduated cum laude, was a member of the Albany Law Review and a member of the Justinian Society, and received his B.A. magna cum laude from Brooklyn College of the City University of New York. He was admitted to practice in New York in 1980.

Arbitration Award Confirmed In the Face of Recapture and Request to Seal Is Denied

Parties to reinsurance arbitrations often file in court to confirm (or vacate) arbitral awards. Some file even though the adverse party has complied with the arbitration award. When doing so, they invariably invoke the confidentiality agreement in the proceeding to seal the award and other related documents used in the petition to confirm. Must the court confirm and must the court seal the documents? We have seen this movie before.

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When Seeking a Default Judgment Proof of Damages Must Be Clear

Chasing down reinsurance proceeds from non-US reinsurers is never easy. Multiple US cedents have had to bring proceedings to collect from a wide variety of non-US reinsurers from around the globe. Many of these reinsurers were or are arms of foreign governments and many have gone insolvent or have been privatized. Not surprisingly, some never appear in US proceedings and then seek to resist default judgments. In a recent case, a cedent obtained a default but was temporarily denied a default judgment because of issues with evidence of damages.

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Missing or Lost Reinsurance Contracts

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Ever wonder about missing or lost reinsurance contracts? Well today is your lucky day. By chance my latest Expert Commentary-Reinsurance for IRMI.com has been published and it discusses missing or lost reinsurance contracts and the circumstances that may lead to the contract having gone missing. You can read the Commentary here (you may have to register).

New York’s Highest Court Rules Direct Physical Loss or Damage Requires Material Alteration or Complete and Persistent Dispossession

The New York Court of Appeals (New York’s highest court for those expecting it to be the supreme court) has finally weighed in on the COVID-19 question of what direct physical loss or damage means in a property policy providing business interruption coverage. Not surprisingly, New York joins the vast majority of state and federal courts and affirmed the order below dismissing the complaint.

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Retrocessionaire Given the Green Light to Pursue Equitable Subrogation Claim Against Law Firm

A retrocessionaire is two steps away from the policy issuing company and the insured so it is a pretty rare day when a retrocessionaire is allowed to pursue a recovery against a law firm that defended an underlying personal injury claim that went south.

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Second Circuit Rejects Attempted End-Around Arbitration Confidentiality Provision

Reinsurance arbitrations are typically cloaked in confidentiality, often through a written confidentiality agreement or order. Some arbitration agreements include confidentiality provisions as well. In recent years, parties have gone to court to confirm reinsurance arbitration awards, sometimes as an end-around the confidentiality agreement. In 2023, the Second Circuit, in a non-reinsurance case, rejected an attempt to do an end-around an arbitration confidentiality provision.

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Securities Fraud Claims Against Reinsurer Based on Loss Reserve Analysis Dismissed

Public reinsurance companies periodically find themselves defending securities fraud claims based on a drop in stock price or losses that affect the company’s bottom line. In a recent case, a fraud claim was based on the failure to disclose historical loss ratios when reporting the reinsurer’s performance.

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A Brief Review of Reinsurance Trends in 2023

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In 2023, arbitrability and who must arbitrate continued to be litigated issues, with courts often sending the parties to arbitration consistent with public policy. Courts also addressed arbitrator bias, allocation, discovery of reinsurance information issues, jurisdiction, and direct right of action. And in one case, the court addressed a lost policy issue.

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Participation In Early Stages of Arbitration Dooms Petition to Stay Arbitration

When a party receives and arbitration demand and there is a dispute about whether there is an agreement to arbitrate between the parties, participating in the early stages of the arbitration may be problematic for a subsequent effort to dispute arbitrability. This issue can arise when there has been an assignment or transfer of a reinsurance agreement or the right to the reinsurance receivables to an assignee who seeks to arbitrate against the original counterparty. In a recent case, a New York state court had to address these issues.

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