In 2022, arbitration issues continued to arise, with the courts enforcing the right to arbitrate and leaving much of the decision making to arbitration panels. Courts also continued to avoid non-existent presumptions and, instead, focused on the words of the contract to reach decisions on contract limits and following issues. And courts continued to allow for the discovery of reinsurance information.
Arbitration
Most reinsurance arbitrations fall under the Federal Arbitration Act (“FAA”). In the reinsurance context, questions of arbitrability and the powers of the arbitrators arise often. In 2022, courts continued the trend to exercise their authority to compel arbitration and leave many questions of arbitrability to the arbitrators. The courts also enforced arbitral subpoenas, a crucial element to compelling testimony at arbitration.
Arbitrability and Motions to Compel Arbitration
Enforcing arbitration rights is complicated when the contracts with an arbitration clause are assigned or where a receiver is involved. Who has the right to compel arbitration and was the arbitration demand properly served are questions that arise.
In Darag Deutchland AG v. Logo, LLC, No. 654800/2021 (N.Y. Sup. Ct., N.Y. Co., Mar. 3, 2022), a dispute arose over reinsurance recoverables from retrocessional agreements. The petitioner acquired the liabilities of a retrocessionaire from a defunct company that obtained the liabilities through a loss portfolio transfer. The respondent acquired the claim from the liquidator of the retrocedent. The retrocedent’s successor demanded arbitration against the retrocessionaire’s successor. The retrocessionaire’s successor claimed that there was no arbitration agreement between the successors and that service of the arbitration demand was ineffective.
In ruling in favor of arbitration (and the retrocedent’s successor) in a cryptic decision, the court found that service of the arbitration demand by registered mail was effective when the postal authorities first attempted to deliver the mail and that New York favors and encourages arbitration.
In certain relationships, a non-signatory to a contract with an arbitration clause may be compelled to arbitrate because of the benefits the non-signatory gained from the contract. In Travelers Indemnity Co. v. Alto Independent School District, No. 3:21CV00909(SALM) (D. Ct, Jul. 28, 2022), several school districts were insured by an educational risk management cooperative. The cooperative was reinsured, in part, by the reinsurer through a facultative certificate. The facultative certificate contained an arbitration clause. It also allowed the reinsurer to assume the duty to investigate and defend claims after claims exceeded the retentions set forth in the declarations.
The insured school districts sued both the risk management cooperative and the reinsurer when property claims were allegedly not paid in full. In response to the lawsuit, the reinsurer moved to compel arbitration.
Although the insured school districts were not signatories to the facultative certificate, the cedent nonetheless argued that the insureds were bound to arbitrate because they directly benefited from the facultative certificate, i.e., direct benefits estoppel. The court analyzed the theory of direct benefits estoppel in detail and ultimately rejected the argument.
In dismissing the cedent’s complaint, the court relied on a Texas appellate court decision in the related Texas actions that held one of the school districts was not bound by the facultative certificate’s arbitration provision. But the court went further and explained why direct benefits estoppel did not apply.
The court conceded that the reinsurer’s claims handling obligations arose from the facultative certificate, but pointed out that “the mere fact that [the reinsurer’s] duty to perform such obligations only came to be because of the Facultative Certificate is insufficient to invoke direct-benefits estoppel.” Moreover, the court found that the reinsurer’s alleged liability did not arise solely from the facultative certificate. The reinsurer’s liability was instead “premised on insurance code, tort, and DTPA duties that are general, noncontract obligations.” The court concluded that “[i]n sum, [the reinsurer] has failed to establish that direct-benefits estoppel applies because it has not shown that [the insureds’] claims ‘arise[] solely from the contract or must be determined by reference to it[.]'”
Powers of the Arbitration Panel
Who decides whether a contractual time limitation in a reinsurance contract on when arbitration can be brought applies to bar arbitration? In Alliance Health & Life Insurance Co. v. American National Insurance Co., No. 21-2995 (6th Cir. Jul. 22, 2022) (Not Recommended for Publication), the cedent sued the reinsurer for breach of their Medical Excess Reinsurance Agreement. The reinsurer moved to compel arbitration and to dismiss. The parties disputed whether a three-year limitation in the reinsurance agreement on commencing arbitration precluded arbitration. The district court dismissed the complaint after holding that the question was for the arbitrator in the first instance. The Sixth Circuit affirmed.
In affirming, the circuit court addressed the issue of arbitrability and discussed the federal case law on the distinction between substantive and procedural questions of arbitrability. The court noted that time limitations have been considered procedural and therefore for the arbitrator to decide.
As to the cedent’s arguments, the court stated that “[b]ecause [the cedent] fails to appreciate the distinction between substantive and procedural questions of arbitrability, its arguments as to who decides miss the mark.” The court rejected the cedent’s claim that the arbitration clause was narrow, noting that “the clause covers ‘any dispute . . . with reference to the interpretation of this Agreement or their rights with respect to any transaction involved.'” Thus, the court held, this encompassed “the determination of whether the contractual time limit precludes arbitration.”
As most courts have decided, procedural issues, such as time limitations, are for the arbitrator to decide and not the courts. That trend continued in 2022.
Arbitrators have the power to issue subpoenas when necessary. Those subpoenas may be enforced in court. In reinsurance arbitrations, subpoenas are issued relatively rarely, but they do happen.
In Symetra Life Insurance Co. v. Administrative Systems Research Corp., International, No. 21-2742 (6th Cir. Nov. 7, 2022)(Not Recommended for Publication), the district court granted the cedent’s petition to compel compliance with an arbitral subpoena. The subpoena was issued by an arbitration panel in a reinsurance dispute concerning allegations of breach of an employee benefits plan reinsurance agreement when the reinsurer failed to indemnify the cedent for a settlement between it and a dialysis provider.
The subpoena compelled the custodian of records of the third-party administrator (“TPA”) of two of the employee benefit plans to appear with documents before an arbitration hearing in Michigan. The TPA was affiliated with the reinsurer. The TPA moved to quash the subpoena before the arbitration panel and the panel denied the motion and issued the subpoena.
The cedent petitioned the Michigan federal court to compel the third-party administrator to comply with the subpoena. The Magistrate Judge ruled that the arbitration panel was sitting in Michigan and ordered compliance even though the cedent had argued in an earlier proceeding that the arbitration panel would only ever sit in Washington. The district court agreed with the Magistrate Judge and issued judgment enforcing the subpoena.
On appeal, the TPA raised many issues, which the court rejected. These included a challenge to the court’s subject matter jurisdiction (“Because it does not appear to “a legal certainty” that the subpoenaed documents’ value is $75,000 or less, we find that the district court had subject matter jurisdiction”), standard of review by the district court (“Because this analysis would be proper under either the “clearly erroneous or contrary to law” standard or the de novo standard, we see no reason to remand the case”), where the arbitration panel sits, judicial and collateral estoppel (changed circumstances), compliance with Section 7 of the FAA (“Under a straightforward reading of the statute’s text, the subpoena was a proper exercise of the panel’s section 7 powers”), and materiality (materiality should be left for the arbitration panel).
Where the arbitration panel is sitting is an issue that often gets raised in resisting an arbitral subpoena. In an earlier proceeding, the cedent argued that the panel could only sit in Washington because the reinsurance contract named Washington the seat of arbitration. But it turned out that the venue for arbitration was disputed and that main hearing ended up being set in Texas. The court rejected the TPA’s argument that Section 7 of the FAA meant that the panel may sit in only one location, the site of the final hearing. The court held that “the FAA’s text contains no such restriction, and we decline [the TPA]’s invitation to read additional terms into the statute.” The court also noted that the arbitration panel declared that it was sitting in Michigan for the hearing on the subpoena.
Preclusive Effect of a Prior Arbitration Award
In White Rock Insurance Co. PCC Limited v. Lloyd’s Syndicate 4242, No. 15309-15309A (N.Y. App. Div. 1st Dep’t, Feb. 15, 2022), the appellate court affirmed the motion court’s ruling that the reinsurer’s complaint was precluded by the parties’ prior arbitration award. The court found that merely because a related trust agreement did not have an arbitration clause did not mean that a different result was required.
The court ruled that the broad arbitration clause in the reinsurance contract, which provided that “[a]ll disputes and differences arising under or in connection with this Contract shall be referred to arbitration,” was sufficient to bring in the terms of the trust agreement. As the court held, “h]ere, there is a reasonable relationship between the reinsurance contract and White Rock’s argument that its liability under that contract is limited to the amount in the trust account.”
As it did before the motion court, the reinsurer argued that the trust agreement was not before the arbitration panel. The court rejected this argument and found that “plaintiff’s conduct during the arbitration made clear that it acquiesced to the panel’s consideration of the trust agreement, as it submitted evidence regarding the trust agreement and argued that the contracts at issue, as well as the parties’ commercial relationship, included the trust agreement.” Ultimately, the court held that “the claims in the arbitration are part of the same transaction as the claims in this action.”
This decision continues the trend of courts holding that broad arbitration clauses will incorporate related transactional documents even if those related documents do not have arbitration clauses themselves, especially where issues under the related documents are brought before the arbitration panel.
Follow-the-Settlements/Follow-the-Fortunes
Courts have long held that a cedent’s settlement allocation decisions fall within the follow-the-fortunes/follow-the-settlements doctrines. In Fireman’s Fund Insurance Co. v. OneBeacon Insurance Co., No. 20-4282 (2d Cir. Sep. 15, 2022), the Second Circuit addressed an appeal of a grant of summary judgment to the cedent, which compelled the reinsurer to follow the settlements of the cedent in its allocation and cession of asbestos settlements. The key issue was whether the exhaustion of underlying excess policies by actual payments was required by the reinsured excess policy and the reinsurance contract.
In affirming the district court, the Second Circuit spent considerable time discussing whether exhaustion by actual payment of the underlying excess policies was required. The court agreed with the district court and found that the ambiguity in the language, which did not expressly require exhaustion by actual payment of losses, meant that the exhaustion requirement could be satisfied by a below-limits settlement of the underlying policies.
On the follow-the-settlements issue, the circuit court relied on its precedents and set forth the well-known aspects of the doctrine. Where, as here, the reinsurance contract contains a “follow-the-settlements” clause, the reinsurer must indemnify there insured for the settled claim “as long as the settlement decision `is in good faith, reasonable, and within the terms of the applicable policies.'” The follow-the-settlements principle applies also “to a cedent’s post-settlement allocation decisions, . . . as long as the allocation meets the typical follow-the-settlements requirements.” Importantly, a follow-the-settlements provision “does not alter the terms or override the language” of the policies at issue. Instead, “it simply requires payment where the cedent’s good-faith payment is at least arguably within the scope of the insurance coverage that was reinsured.” (citations omitted).
The court held that the reinsurance contract’s attachment point was not contingent upon payment by the underlying insurers. The court concluded that “[t]he parties could have agreed to reinsurance coverage that was far narrower in scope than the excess policy itself, but we find no suggestion in the text of the reinsurance contract that they intended to do so here.” “Because [the cedent] has adequately supported its position that [its insured’s] covered losses exceeded the attachment point of the reinsurance policy, we conclude that the portion of the settlement allocated to Policy 3 is covered by the reinsurance policy.”
But where there is no express following clause or the recovery sought is beyond the scope of coverage, courts will have no problem denying a cedent’s claim.
In Public Risk Management of Florida v. Munich Reinsurance America, Inc., No. 21-11774 (11th Cir. Jun. 29, 2022), an insurer of public entities sought reinsurance coverage for an underlying claim involving a Section 1983 claim that the local government interfered with a property owner’s rights by allowing beach access through the property owner’s property. The circuit court affirmed summary judgment granted to the reinsurer.
The cedent claimed that there was an express follow-the-fortunes clause and, even if there was none, the court should infer the follow-the-fortunes doctrine and compel the reinsurer to follow the cedent’s good faith settlement. In rejecting the cedent’s arguments, the court held that there was no express follow-the-fortunes clause and, in fact, the language of the reinsurance contract precluded the follow-the-fortunes concept.
The court also rejected the cedent’s argument that the doctrine should be implied by inference. While the court did not reach the issue of whether the doctrine could ever be inferred under the right circumstances, it declined to infer the application of the follow-the-fortunes doctrine under the circumstances of this case and in particular because of the specific language inconsistent with the application of the doctrine.
The court’s analysis and holding is consistent with recent trend where courts focus on the specific language of the contract and not on presumptions and inferences.
In Utica Mutual Insurance Co. v. Abeille General Insurance Co., 2022 NY Slip Op 03815 (N.Y. App. 4th Dep’t Jun. 10, 2022), the cedent sought reinsurance recoveries for defense costs paid under umbrella policies for underlying asbestos settlements where the primary policies had been exhausted. The reinsurance contracts covering the umbrella policies had express follow-the-settlements provisions. The reinsurers denied the claims stating that defenses costs were not covered under the umbrella policies and the reinsurance contract.
Both sides moved for partial summary judgment and the motion court denied both motions. Each side appealed. The appeals court modified the order and granted the reinsurers’ motion, holding that there was no coverage for defense costs under the umbrella policies and the reinsurance contracts.
On the merits, the court concluded that the motion court properly determined that the reinsurers established that its interpretation of the umbrella policies, i.e., that those policies did not cover defense costs in the underlying actions because those costs were covered by the primary insurance policies, is the only fair construction of those policies. The court held that “the unambiguous terms of the umbrella policies establish that [reinsurers] were not required to reimburse [cedent] under the reinsurance contracts for the disputed defense costs related to the underlying actions.”
On the follow-the-settlements argument, the court agreed with the reinsurers that, contrary to the motion court’s determination, the follow-the-settlements doctrine did not alter the analysis above. There was no dispute that the reinsurance contracts contained an express follow-the-settlements clause. The court explained the way the follow-the-settlement clause mandates the reinsurers to follow the good faith claims determinations of the cedent. But, as the court stated, there are limitations to the doctrine.
The follow-the-settlements doctrine “insulates a reinsured’s liability determinations from challenge by a reinsurer unless they are fraudulent, in bad faith, or the payments are clearly beyond the scope of the original policy or in excess of [the reinsurer’s] agreed-to exposure” (citations omitted). The court concluded that in this case, “the reimbursement sought by [cedent} from [reinsurers] was beyond the scope of coverage in the umbrella policies and, thus, the follow-the-settlements doctrine does not apply under the circumstances.” A neat and clean analysis based on the plain reading of the relevant contracts, which contrasts with the prior trend of reading presumptions into reinsurance contracts.
Discovery and Sealing
Production of Reinsurance Information
Parties routinely seek reinsurance information in insurance coverage cases and the courts routinely allow production of reinsurance information. Two cases in 2022 continued the trend of requiring production of reinsurance information.
In Williams International Co., LCC v. Zurich American Insurance Co., No. 4:20-cv-13277 (E.D. Mich. Mar. 7, 2022), the policyholder moved to compel production of reinsurance agreements. In granting the motion in part, the court held that the reinsurance agreements were covered by Federal Rule of Civil Procedure 26(a)(1)(A)(iv) and should have been produced as part of the insurance company’s initial disclosures (requiring disclosure of “any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.” The court noted that the rule is absolute and no showing of relevance is necessary. Accordingly, the court ordered the insurance company to produce any reinsurance agreement, whether treaty or facultative, along with any declarations sheets.
Not all was lost for the insurance company, however. The policyholder’s request for “[a]ll documents [and/or] communications concerning” the reinsurance was rejected on vagueness, relevance and ambiguity grounds. In other words, you can ask for relevant reinsurance agreements but if you ask for other documents the request must be more specific and relevant to the underlying dispute.
In Computer Sciences Corp. v. Endurance Risk Solutions Insurance Co., No. 1:20-cv-01580-MKV (S.D.N.Y. Mar. 10, 2022), the court ruled, among other things, that the insurance company’s communications with its reinsurers about the disputed claim were relevant and must be produced. Notably, the policyholder asked for the reinsurance agreements, which the insurer said had no relevance where there was no issue as to the insurer’s ability to satisfy any judgment. The court focused instead on reinsurance communications involving the disputed claim and ordered those communications produced.
These cases are part of a continuing trend where the courts have allowed reinsurance information to be produced in insurance coverage disputes.
Sealing
Whether courts will seal reinsurance arbitration documents when the parties come to court for judicial relief has been a significant topic for several years. Most courts refuse to seal arbitration information when motions to vacate or confirm an arbitration award are made. But that is not always the case.
In Washington Schools Risk Management Pool v. American Re-Insurance Co., No. C-21-0874-LK (W.D. Wash., Apr. 20, 2022), a Magistrate Judge was asked to seal materials filed with reply papers on applications to declare that the arbitration clause was inapplicable to the dispute and to compel arbitration. The court granted the motion largely relying on the reinsurer’s representation-which was not controverted by the cedent-that the parties would enter into a confidentiality order/agreement in the form of the ARIAS-U.S. model and, therefore, sealing the materials in the reply papers was appropriate.
Even though neither party had yet signed a confidentiality agreement, the reinsurer told the court-again unopposed-that “there appears to be a substantial likelihood that they (and the Arbitration Panel) ultimately will execute the ARIAS-US Form, `as is’ or as modified in response to revisions to be proposed by [the pool].” Accordingly, the reinsurer argued that the arbitration panel may require the parties to go back to court to ask that these arbitration materials be sealed.
The court took it on faith that some form of the ARIAS-U.S. confidentiality agreement will apply to the arbitration requiring the parties to ask the court to seal any arbitration material submitted to the court. Given the lack of opposition to the motion by the cedent, the strong likelihood that the ARIAS-U.S. form would be used and that the form requires arbitration information to be sealed, the court found that sealing the reply materials was warranted.
Direct Right of Action
To sustain a claim against reinsurers there must be a contractual relationship between the party making the claim and the reinsurers. That is the prevailing rule in all jurisdictions, subject to rare exceptions. Nevertheless, policyholders, when left without a recovery from their insurer, will try to make out a claim directly against their insurer’s reinsurers.
In 2022, in a complicated credit insurance/reinsurance transaction involving a special purpose vehicle, a policyholder left without an insurance recovery tried again to recover its loss from its insurer’s reinsurers. Unfortunately for the policyholder, the trend in denying a direct claim by a policyholder against a reinsurer continued.
In Vantage Commodities Financial Services I, LLC v. Assured Risk Transfer PCC LLC, 31 F.4th 800 (D.C. Cir. 2022), a finance company obtained credit insurance through a special purpose vehicle, which in turn obtained reinsurance from several reinsurers. The finance company issued a loan and ultimately the borrower defaulted. The finance company sought recovery under the special purpose vehicle and the parties arbitrated the claim. The finance company prevailed in arbitration but the special purpose vehicle did not have the assets to pay the award and the reinsurers all disclaimed under the terms of the reinsurance agreements.
The finance company sued the special purpose vehicle, the reinsurers and the brokers in federal court seeking, among other things, a direct recovery from the reinsurers. The district court dismissed the finance company’s breach of contract and declaratory judgment claims and ultimately granted summary judgment to the reinsurers (and the brokers).
On appeal, the circuit court affirmed the district court’s dismissal of the finance company’s breach of contract and declaratory judgment claims because, as the district court concluded, the finance company failed to plead facts sufficient to show a contractual relationship with the reinsurers. As the court found, the reinsurance agreements created no contractual relationship with the finance company. Instead, the agreements were “solely between [ART] and the Reinsurer[s]” and “nothing contained in th[e] Agreement[s] shall create any obligations or establish any rights against the Reinsurer[s] in favor of any person or entity not a party hereto.”
The court rejected the finance company’s attempt to analogize these facts with those in cases where a direct relationship was alleged. The court also affirmed the district court’s grant of summary judgment on the remaining allegations, finding that there was no evidence to support the finding of an implied contract. In fact, the only evidence of consideration being exchanged was between the finance company and the special purpose vehicle and the separate exchange between the special purpose vehicle and the reinsurers. The lack of evidentiary support for any of its claims doomed the finance company’s appeal.
Legacy Claims
It is quite common to have a transaction where a company essentially takes over another company and reinsures its obligations 100%. Several years later, the acquiring reinsurer may sell the acquired ceding company as a “clean shell.” Of course, the new acquiring company buying the shell wants the original 100% reinsurance agreement to remain in force. After 10 years or more, sometimes things go awry.
In Sparta Insurance Co. v. Pennsylvania General Insurance Co., No. 21-11205-FDS (D. Mass. Aug. 9, 2022), the acquirer of a supposed “clean shell” sought a declaratory judgment in federal court against the seller when, allegedly, after ten years or more, legacy claims against the “shell company” that were supposedly 100% reinsured by the shell’s seller were not being administered or paid.
In analyzing whether the complaint was sufficient to withstand a motion to dismiss, the court stated that “[w]hile it is far from clear, it appears that the complaint thus alleges that claims are not being administered or paid on a wholesale basis in violation of the SPA and the reinsurance agreement. In other words, it appears to allege that claims are not being declined on an individualized basis, according to individualized coverage determinations, but that all claims are being declined, regardless of the underlying issues.” The seller’s argument focused on the lack of individualized claims being denied as injuries to the buyer. The court made it clear that the allegations of the wholesale lack of claims administration and payment is sufficient to survive the motion to dismiss.
Ultimately, the court denied the seller’s motion to dismiss and allowed the buyer’s case to move forward. But the court noted that “[w]hile additional facts and details will surely be critical to resolve a motion for summary judgment, ‘their absence does not support a motion to dismiss'” (citations omitted).
Legacy reinsurance liabilities against certain non-US reinsurers that have gone into insolvency or have been absorbed by non-US governments remain an issue for many US ceding companies. Some US ceding companies have fought long and hard to win arbitrations, enter judgments and then try to enforce those judgments against the non-US reinsurers or their governments. Success in doing this has been up and down.
In TIG Insurance Co. v. Republic of Argentina, No. 18-mc-00129 (DLF) (D. D.C. Aug. 23, 2022), the cedent moved for a writ of attachment against a building in Washington, D.C. owned by Argentina in an effort to enforce two judgments. The first was against the now defunct Caja Nacional de Ahorro y Segurro, a state-owned reinsurer in Argentina. The second judgment was against Argentina directly. Both were default judgments. Obviously, Argentina objected and sought to preclude the writ of attachment.
In deciding in favor of Argentina, the court ultimately concluded that Argentina did not waive sovereign immunity and vacated the judgment against Argentina because the issuing court did not have jurisdiction to enter the judgment. The court noted that “[s]imply agreeing to handle Caja’s claims and litigation, without any indication of how, provided no guidance on Argentina’s subjective intent to subject itself to arbitration or to U.S. law.” This is important because if a foreign government that has taken over a reinsurance company agrees to be bound by the arbitration clause in a US-based reinsurance agreement, then it will likely have waived its sovereign immunity and a judgment like the cedent had in this case could be enforced (assuming there is something in the US to enforce it against).
Tortious Interference
With the proliferation of runoff companies, which either take over distressed reinsurers or absorb legacy reinsurance obligations, comes claims by insureds and cedents against those companies and their affiliated administrators for various alleged offenses. For example, claims of tortious interference with contract have been brought against several runoff entities and their affiliates.
In Stonegate Insurance Co. v. Enstar (US) Inc., No. 21 C 3523, N.D. Ill. Oct. 18, 2022), the court heard, for the second time, a motion to dismiss a tortious interference with contract claim brought by a cedent against an acquired reinsurer’s affiliated companies. Essentially, the cedent claimed that the affiliates directed the reinsurer to breach its contracts with the cedent and delay payments and apply improper offsets. The dispute with the reinsurer was sent to arbitration and this case was only against the affiliates.
In dismissing the tortious interference claim for the second, and final, time, the court noted that “Illinois also recognizes a conditional privilege in tortious-interference claims where a defendant acts ‘to protect an interest which the law deems to be of equal or greater value than the plaintiff’s contractual rights'” (citations omitted). In other words, under Illinois law, “[a] defendant-agent is conditionally privileged to interfere with its principal’s contracts.” This is the rub in bringing these cases against these affiliated entities that manage the legacy reinsurance obligations.
To overcome this conditional privilege, which the court already found existed because of the relationships between the affiliates and the reinsurer, the cedent bore the burden to plead and prove that the affiliates’ conduct was malicious or unjustified. The court held that it was not. In dismissing the complaint, the court concluded that ” [the cedent’s] tortious-interference claim against Defendants [ ] is, at heart, simply repackaged breach-of-contract claims against [the reinsurer].
