1 REINSURANCE BRIEF CASES May to August 2007 Brief case contents: 1. Obligation to pay reinsurance brokerage 2. Brokers placing duties 3. Enforcement of a foreign judgment 4. Interpretation of a reinsurance contract 5. Follow the settlements clauses 6. Law Commissions Insurance Consultation Paper 7. The Reinsurance Directive 8. Activities and events The contents of this document are copyright Mills & Reeve LLP. All rights reserved. This document contains general advice and comments only and therefore specific legal advice should be taken before reliance is placed upon it in any particular circumstances.
2 Obligation to pay reinsurance brokerage XL SPECIALITY INSURANCE COMPANY v CARVILL AMERICA INC, Connecticut Superior Court, Middletown, USA, 31 May 2007 This dispute over reinsurance brokerage has visited both sides of the Atlantic. In May 2005 the Court of Appeal in England in Carvill America Inc v Camperdown UK Ltd & others (2005) considered at an interlocutory stage the position regarding brokerage where a reinsurance contract is terminated. In May 2007 the Connecticut Superior Court considered the same issue at trial. XL Speciality Insurance Company ("XL") appointed Carvill America Inc ("Carvill") to act as its reinsurance broker. XL paid gross premium to Carvill, who in turn passed on net premium to reinsurers after deducting brokerage. Reinsurers had agreed to remunerate Carvill "as is customary in the industry". XL terminated Carvill s appointment mid-way through the period of cover following a dispute which arose between the parties. XL subsequently appointed Benfield in place of Carvill to whom it paid the remaining gross premium. Benfield passed on to reinsurers the net premium having withheld, upon XL s instructions, the portion of premium that would otherwise have been paid to Carvill by way of brokerage. An issue arose as to when the brokerage was earned, ie, whether it was on the placement of a reinsurance contract or only when the premium in question becomes due and payable or is paid. Carvill issued proceedings in England against reinsurers and XL in respect of the European brokerage and separately it sought payment from XL in the US in respect of the American brokerage. In the English proceedings, Carvill argued that it was customary in the London and European market for reinsurers to be liable to pay the brokerage. Alternatively, as against XL, Carvill argued that there was an express or implied term in its retainer that rendered XL liable to pay the gross premium either to reinsurers or to Carvill. XL applied to have Carvill s claim set aside. The Court of Appeal dismissed the application on the ground that it was arguable that such an implied term existed in the retainer between XL and Carvill. In so doing, the Court of Appeal did not comment on the Commercial Court s reluctance to find that there was a custom in the London reinsurance market that places the responsibility to pay brokerage on reinsurers. The claim subsequently settled before trial. In the US proceedings, Carvill sought payment of the brokerage being withheld by XL in respect of reinsurance contracts placed before termination of Carvill s appointment. The Connecticut Superior Court held that in the US reinsurance market brokerage is earned on the inception of a reinsurance contract and that the obligation to pay such brokerage falls upon the reinsurers, irrespective of whether the retainer between the broker and the reinsured is terminated. Carvill was therefore awarded damages in the sum of USD$5 million in respect of the outstanding brokerage and interest, on the basis that XL did not forward the full amount of the premium to reinsurers through its new broker Benfield. Historically there has been a discernable lack of case law in relation to reinsurance brokerage, and a degree of uncertainty over what the reinsurance market practice is as regards the obligation to pay brokerage. Whilst the position on this side of the Atlantic remains open for discussion, the US Court in Connecticut has confirmed that it is the obligation of reinsurers to pay brokerage (in its entirety as identified on the slip) and that this obligation will continue notwithstanding termination of the reinsurance broker s appointment as broker of record for an insurance company. Brokers placing duties UNITED INSURANCE COMPANY OF LIBYA v AON LIMITED, Commercial Court, 5 July 2007 National Oil Corporation ("National Oil") was the state-owned Libyan oil corporation which was insured, in accordance with Libyan law, through a locally-admitted insurer, which in turn was reinsured 100% in the international markets.
3 In 2004 the United Insurance Company of Libya ("United Insurance") appointed Aon to place the reinsurance of the National Oil risk which United Insurance fronted. Subsequently, United Insurance asked Aon to place the reinsurance of another Libyan company, General Company for Chemical Industries ("Chemical Industries") on the basis that the risk was attached to the National Oil cover. Shortly after, United Insurance asked Aon to replace the Chemical Industries cover as a stand-alone risk at a higher cost. United Insurance also retained Aon s commission on the placement. In 2005 United Insurance appointed Aon in relation to the renewal of the National Oil risk. However, there had been disagreement about the ceding commission payable to United Insurance the previous year and this continued in relation to the 2005 renewal. Aon eventually advised United Insurance that it was unable to submit terms due to the dispute. Aon quoted to another Libyan insurer which tendered successfully for National Oil s 2005 business. United Insurance commenced proceedings against Aon alleging that: In relation to the 2004 National Oil placement, Aon was in breach of fiduciary duty in misrepresenting and concealing the commission that it had earned and that consequently Aon was obliged to account to United Insurance for all the brokerage received. In relation to the Chemical Industries cover, Aon was in breach of contract for not placing the risk in accordance with its instructions from United Insurance since, as an attachment to the National Oil risk, there was a risk of avoidance once it became known that the two companies were not related. In relation to the 2005 National Oil renewal, Aon had acted in breach of contract and fiduciary duty by inducing United Insurance to instruct Aon as its sole broker, then failing to inform it in good time that it would refuse to tender if the commission was not agreed. Consequently Aon was obliged to account to United Insurance for all brokerage received from the other Libyan insurer. Aon counterclaimed for its unpaid commission in relation to the Chemical Industries placement. United Insurance was unsuccessful on all counts. Mr Justice Langley held that the commission for the 2004 year was agreed freely, if reluctantly, by United Insurance, who had not been misled in any way. United Insurance had originally told Aon that Chemical Industries and National Oil had cross-ownership and instructed that the Chemical Industries cover should be placed as an attachment to the National Oil cover. Aon was entitled to recover its unpaid commission under its counterclaim. In relation to the 2005 National Oil tender, Mr Justice Langley held that there was no pre-existing exclusive agency governing Aon s and United Insurance s relationship. United Insurance itself had chosen to seek competitive tenders from other brokers. Ceding commission had been an issue from the previous year and Aon had warned United Insurance that if it was not agreed, Aon would not quote to United Insurance. Although there was a continuing "relationship" between Aon and United Insurance in the sense of working together on the tender, there was never an agreement on the terms upon which that might occur. There was no relevant contract nor did Aon owe any fiduciary duty to United Insurance. Both knew that other brokers and local insurers were interested and neither agreed to exclusivity. Mr Justice Langley closed by observing that United Insurance s case had not been improved by including references to fiduciary duties. Although the judge s finding, that there was no basis upon which Aon should be ordered to pay to United Insurance either its profits or its "entire receipts", appears to have been made based upon the facts of the case, it would appear to suggest that it may not be easy for a reinsured to establish a fiduciary duty in the context of a typical reinsured-broker relationship. Enforcement of a foreign judgment HIH CASUALTY & GENERAL INSURANCE LIMITED v JLT RISK SOLUTIONS LIMITED, Court of Appeal, 12 July 2007 JLT Risk Solutions Limited ("JLT") placed insurance in relation to film finance with HIH Casualty & General Insurance Limited ("HIH") ("the Insurance Policy") and arranged HIH s outwards reinsurance of the risk ("the Reinsurance Contract"). The Reinsurance Contract was back to back with the Insurance Policy.
4 HIH paid a claim under the Insurance Policy and then sought to recover under the Reinsurance Contract. HIH s reinsurers refused to indemnify HIH and claimed that there was a breach of warranty, as fewer films were produced than was warranted in the Insurance Policy. HIH sought to recover those sums in negligence from JLT based upon JLT s alleged failure in its duties post placement. JLT had known the number of films was to be reduced through risk management reports that had been provided via JLT to HIH. At first instance (reported in Reinsurance Brief Cases January April 2006) HIH argued that JLT s duty post placement was to "alert" HIH to any matters of potential concern on coverage. The number of films to be produced fell within that category. Mr Justice Langley agreed. He held that JLT s duty went beyond acting as a mere postbox, but ultimately HIH was unsuccessful because, on the facts, HIH was unable to show that JLT s breach of duty had caused any loss. On appeal, the Court of Appeal largely upheld the findings of Mr Justice Langley. It held that on the specific facts of the case, JLT owed a post-placement duty to HIH. "Where a broker has been at the centre of devising and structuring a risky scheme of that sort for insurers and reinsurers, as JLT was, it is plainly a strong candidate for post-placement monitoring obligations of the sort alleged here." The Court of Appeal acknowledged that "there was undoubtedly a fine margin of decision" and "somewhat meagre primary evidence" as to whether JLT was in breach of its post-placement duty. However, it felt that Mr Justice Langley s findings were open to him on the evidence, so should not be disturbed. The Court of Appeal decided that JLT should have specifically drawn HIH s attention to the film reductions indicated in the risk management reports. The Court of Appeal also upheld the finding that HIH had not proved that its loss was caused by JLT s breach of duty. HIH was not alive to the potential risk from the film reductions. Had it been, it would have instructed JLT to alert reinsurers and take their views. However, the cause of the loss was said to be in HIH paying the insured s claims when it had no legal liability to do so and when it was aware that reinsurers had not agreed to the reduction in the number of films. The Court of Appeal have confirmed that brokers can owe a duty to monitor events and draw their clients attention to potential coverage issues post-placement. However, brokers will take comfort from the fact it appears that it is only in exceptional circumstances that such a duty will be owed. Interpretation of a reinsurance contract KOREA NATIONAL INSURANCE CORPORATION v ALLIANZ GLOBAL CORPORATE & SPECIALITY AG, Commercial Court, 24 July 2007 Korea National Insurance Corporation ("KNIC") insured a North Korean airline under an aviation hull and liability policy. KNIC was reinsured by Allianz Global Corporate & Speciality AG ("Allianz") and other reinsurers (together "the Reinsurers") under an aircraft third party liability reinsurance policy ("the Reinsurance Contract"). The Reinsurance Contract was subject to North Korean law and jurisdiction. A helicopter covered by the insurance crashed into a warehouse causing substantial damage. The owner of the warehouse brought a claim against the airline, which in turn obtained an arbitration award against KNIC. The Reinsurers refused to indemnify KNIC, which subsequently commenced proceedings in North Korea against Allianz on its own behalf and on behalf of the other reinsurers in its representative capacity. Allianz declined to attend the hearing in the North Korean court and KNIC obtained a judgment which it then sought to enforce in England. Allianz sought to defend the enforcement proceedings by arguing that (1) the use of "representative" proceedings constituted a defect in the judgment of the North Korean court; (2) KNIC had committed a fraud on the North Korean court by failing to inform it that the dispute had been conditionally settled between the parties and that all rights and obligations under the Reinsurance Contract were discharged; and (3) the North Korean court lacked jurisdiction to hand down a judgment in light of this settlement. Allianz claimed that the Reinsurers had agreed with KNIC to pay the total indemnity limit under the Reinsurance Contract, but in local currency (as opposed to in Euros in accordance with the currency conversion clause in the Reinsurance Contract). Alternatively, if there was not a settlement of the reinsurance claim, Allianz said that at the very least this constituted a variation of the conversion clause.
5 KNIC applied for summary judgment in the enforcement proceedings on the grounds that Allianz s defences had no reasonable prospect of success. Mr Justice David Steel held that KNIC was entitled to commence "representative" proceedings in England against Allianz on the ground that Allianz shared the same interest as the other reinsurers it was said to represent. Consequently, it did not matter that KNIC had only served proceedings on Allianz alone, and any judgment against Allianz would be deemed to bind all the Reinsurers. Furthermore, it was held that KNIC had a similar entitlement to commence representative proceedings in North Korea pursuant to the relevant local legislation. As to the existence of a settlement (or alternatively a variation to the terms of the Reinsurance Contract), the judge found that given the size of the claim and the significance of the currency conversion clause, it was "wholly improbable if not inconceivable" that the parties would have considered that a settlement had been reached without a written record of the agreement. The contemporary correspondence from Allianz s solicitors was clearly inconsistent with the notion that a settlement had been achieved. Summary judgment was given to KNIC. This case serves to highlight the importance of recording in writing any agreement, or indeed, any variation to the terms of a reinsurance contract. This case also illustrates the potential issues which may arise by agreeing choice of law and jurisdiction clauses of territories with which reinsurers may not be entirely familiar. In this case, since the judge decided that the effectiveness of any variation to the Reinsurance Contract was subject to North Korean law, the Reinsurers required expert evidence from a North Korean lawyer. The Reinsurers appeared to encounter practical difficulties in finding a suitable expert lawyer to assist them in the proceedings in England. Follow the settlements clauses AEGIS ELECTRICAL & GAS INTERNATIONAL SERVICES COMPANY LIMITED v CONTINENTAL CASUALTY COMPANY, Queen s Bench Division, 25 July 2007 Aegis Electrical & Gas International Services Company Limited ("Aegis") provided "all risks" cover for an oil refinery in Aruba. It obtained facultative reinsurance with Continental Casualty Company ("Continental") in respect of onshore property, ie, the reinsurance cover was narrower in scope than the insurance cover: they were not "back to back". The reinsurance included a condition which stated "to follow the terms, clauses, conditions, exceptions and settlements of the original policy wording as far as applicable hereto". When Continental s underwriter had initialled the slip she referred to and appended two additional clauses ("the Additional Conditions"). The Additional Conditions defined "Accident" as meaning "a sudden and accidental breakdown of an object or part thereof, which manifests itself at the time of the occurrence by physical damage that necessitates repair or replacement of the Object or part thereof". It then provided that "Accident shall not mean or include any loss or damage" resulting from specified events or of specified kind, including "(f) from explosion ". Aegis settled claims arising from two incidents at the oil refinery and sought to recover from Continental. Continental denied that either loss fell within the scope of the reinsurance. The first issue concerned how the Additional Conditions affected the scope of the reinsurance cover. Continental argued that the Additional Conditions restricted the scope of the reinsurance cover to losses from an Accident, as defined. In response Aegis submitted that the Additional Conditions could not impinge on the provisions of the reinsurance contract contained in the slip. It argued that the type of risks covered by the reinsurance contract was defined in the slip as "Machinery breakdown, boiler explosion and business interruption following for onshore assets only". Accordingly, the reinsurance applied to all such losses. Aegis argued that the purpose of the Additional Conditions was to amend two relatively incidental provisions in the underlying insurance contract. (As stated above, the reinsurance contract included a follow the settlements clause.) Mr Justice Smith considered that it would be surprising that the parties should decide to tinker with the effect of the follow the settlements provision in the reinsurance cover in the minor and oblique way suggested by Aegis. He therefore preferred Continental s view that the Additional Conditions defined the scope of cover under the reinsurance contract. Accordingly, Continental was not liable to Aegis in respect of the first loss.
6 The dispute regarding the second loss concerned whether it arose from an explosion, which was excluded from the definition of Accident in the Additional Conditions. The exclusion would only apply if explosion was the proximate cause of the loss. Continental argued that the loss was caused by an explosion. Aegis disputed this. Aegis also argued that the follow the settlements clause prevented Continental from disputing the factual basis upon which Aegis settled the underlying claim (which Aegis argued was not on the basis that there was an explosion), and that Continental was confined to arguing whether on that basis the loss fell within the reinsurance contract as a matter of law. Mr Justice Smith considered expert evidence relating to the cause of the loss and the meaning of the term explosion, which should be interpreted as a matter of ordinary usage. On the facts he was not persuaded that there was any explosion. The second loss was therefore covered by the reinsurance contract. Mr Justice Smith s conclusion meant that it was unnecessary for him to consider Aegis argument in relation to the follow the settlements clause. Nevertheless, he went on to decide that the manner in which the claim was settled by Aegis did not exclude the possibility that the loss had resulted from an explosion, but that he would have rejected Aegis argument in any event. The insurance and reinsurance cover were not back to back and, accordingly, it did not follow that a loss which falls within the original cover would fall within the reinsurance cover, or would do so only subject to legal questions about what the reinsurance covers. The clause did not preclude Continental from disputing the basis on which Aegis settled the claim or the facts that they recognised as the basis for settling it. The Law Commission s and the Scottish Law Commission s joint consultation paper Insurance Contract Law: Misrepresentation, Non-Disclosure and Breach of Warranty by the Insured Insurance law has been criticised over a number of years for not keeping pace with the times since it was codified in the Marine Insurance Act Following the publication of a number of "Issues Papers", the Law Commission and the Scottish Law Commission (jointly the "Law Commissions") issued their joint consultation paper in July (the "Consultation Paper") which sets out a number of proposed reforms. These concentrate in particular on three areas of insurance law: (1) pre-contract misrepresentation and non-disclosure; (2) warranties and similar terms; and (3) the position of intermediaries (ie, brokers) who are wholly or partly responsible for pre-contract misrepresentations or non-disclosures. Although the Consultation Paper is predominantly concerned with protecting consumers and small businesses, the Law Commissions believe their proposed remedies (the "default regime") should be the same in both reinsurance and insurance unless a good case is made for distinguishing them. In relation to business insurance (including reinsurance), the Law Commissions propose to restrict the scope of the current duty of disclosure. In order to found an action under the business "default regime", a reinsurer would have to show that the reinsured knew, or a reasonable reinsured would have appreciated, that the non-disclosed fact was one that a reinsurer would want to know about. As regards misrepresentation, it is proposed that a reinsurer would additionally have to show that the representation was one which a "reasonable person" in the circumstances would not have made. The introduction of the requirement of reasonableness would mean that a reinsured who has acted honestly and reasonably should not lose cover. The Law Commissions have suggested that the test of reasonableness should be applied flexibly and depend upon such matters as the type of market, whether the reinsured received professional advice, and the clarity of the questions asked by reinsurers. Parties to non-consumer contracts, including reinsurance contracts, will be able to contract out of the default regime, subject to a number of "special controls" which may apply if one of the other parties is a small business and/or the contract is written on one of the parties standard terms.
7 There is some ambiguity about how the "default regime" would operate in the context of reinsurance using Lloyd s standard wordings. For example, the Law Commissions proposals, when strictly translated into a reinsurance context, mean that special controls would apply to prevent reinsurers from contracting out of the default regime where this would defeat the reinsureds reasonable expectations of cover. However, it is not clear whether Lloyd s wordings would be considered "standard terms" on the basis that, although they are standard wordings, they are often selected by both parties to the contract. The "default regime" covering the use of warranties in business insurance (including reinsurance) provides that a breach of warranty would not defeat any claim if it can be shown that the event or circumstance constituting the breach did not contribute to the loss. A breach of warranty would entitle the reinsurer to terminate cover for the future, but would not automatically discharge the reinsurer from liability. It is proposed that reinsurers who contract out of the default regime would not be entitled to rely on a warranty, exception or definition of the risk if this would render the cover substantially different from that which the reinsured reasonably expected. The Law Commissions anticipate that this will depend upon how the contract was presented to the reinsured but this appears to be at odds with the fact that reinsurance contracts are often heavily negotiated between the parties. The Law Commissions are seeking views on their proposals, including whether avoidance should be retained as a default remedy for negligent misrepresentations and non-disclosures or whether the remedy should be available only in relation to dishonest conduct. Responses have been invited before 16 November Although the full joint consultation paper (some 400 pages) setting out the Law Commissions proposals can be found at a helpful 19 page summary can be found at The Reinsurance Directive Currently there is no harmonisation in the regulation of reinsurance across the EEA, with each Member State deciding independently whether or not to regulate reinsurance. However, this is soon to change as the Reinsurance Directive is due to be implemented by Member States by 10 December The Reinsurance Directive is an interim measure intended to harmonise the prudential regulation of reinsurance across Member States pending the implementation of the Solvency II project, which will introduce a solvency system for the insurance industry as a whole. In summary, the main elements of the Reinsurance Directive are as follows. It applies to pure reinsurers, ie, those which carry on only reinsurance business. The activities of those entities which carry on both insurance and reinsurance are governed by the Insurance Directives. Each Member State is required to regulate reinsurers whose head office is in its territory. Reinsurers in the UK are already regulated by the FSA so to a large extent in the UK little will change. A passport regime will exist so that reinsurers that are authorised in one Member State will be able to conduct business in another Member State, whether by establishing a branch or by simply providing services from their home state or another Member State. Non-EEA reinsurers will be required to obtain authorisation in each Member State unless they establish a subsidiary in a Member State. The Directive sets out prudential rules for the supervision of reinsurance undertakings. These include the establishment of technical provisions, ie, the amount that a reinsurance undertaking must set aside to pay its contractual commitments, and rules on the investment of assets covering those technical provisions. The Directive also lays down rules on solvency margins and minimum capital requirements, along with rules on measures to be adopted by the regulators if reinsurers are in financial difficulty. Each Member State will be able to authorise reinsurers who have their head office within its territory to transfer all or part of its portfolio to an accepting office in the EEA if the home states of the accepting office meets the necessary solvency requirements. The Directive also sets out provisions relating to finite reinsurance and insurance special purpose vehicles.
8 The UK already regulates reinsurance in much the same way as insurance, and the changes necessary to implement the Reinsurance Directive have already been implemented. Accordingly, the changes to reinsurance in the UK are likely to be less profound than elsewhere in the EEA. Activities and events Our reinsurance team has attended and shall be attending a number of the annual market rendez-vous over the coming weeks and months. Paul Cha attended the Reinsurance Rendezvous in Monte Carlo in September. Peter Driscoll shall be in New Jersey at the AIRROC/CAVELL Commutations & Networking Rendez-vous on October and in Cologne at the GLOBAL/CAVELL Commutations & Networking Rendez-vous on 3-5 December. We look forward to catching up with clients, contacts and friends alike at these forthcoming events. For further information contact: Geoff Barrett Partner Peter Driscoll Partner Paul Cha Consultant Neil Davis Partner Editorial team: Paul Cha Tom Filby Debra Kirkwood Claire Roake Mills & Reeve is a national law firm with 79 partners and a total staff of over 770, operating from offices in Birmingham, Cambridge, London and Norwich. Mills & Reeve LLP is a limited liability partnership regulated by the Law Society and registered in England and Wales with registered number OC Its registered office is at Fountain House, 130 Fenchurch Street, London, EC3M 5DJ, which is the London office of Mills & Reeve LLP. A list of members may be inspected at any of the LLP's offices. The term "partner" is used to refer to a member of Mills & Reeve LLP. September 2007