FILED: NEW YORK COUNTY CLERK 12/31/ :34 PM INDEX NO /2002 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 12/31/2014

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1 FILED NEW YORK COUNTY CLERK 12/31/ PM INDEX NO /2002 NYSCEF DOC. NO. 92 RECEIVED NYSCEF 12/31/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x UNITED STATES FIDELITY & GUARANTY COMPANY, et al., -against- Plaintiffs, AMERICAN RE-INSURANCE COMPANY, et al., Defendants x Index No /02 IAS Part 3 Hon. Eileen Bransten REQUEST FOR ORAL ARGUMENT MEMORANDUM OF LAW IN SUPPORT OF USF&G S MOTION TO DETERMINE PROPER SCOPE OF TRIAL Mary Kay Vyskocil Chet A. Kronenberg George S. Wang Jonathan M. Weiss SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY Telephone (212) Facsimile (212) Attorneys for Plaintiffs United States Fidelity & Guaranty and St. Paul Fire & Marine Insurance Company

2 TABLE OF CONTENTS Page PRELIMINARY STATEMENT... 1 BACKGROUND... 4 A. The Underlying Insurance Coverage Action... 5 B. The Settlement of the Underlying Insurance Coverage Action... 6 C. Reinsurance Billing... 7 D. This Litigation... 8 E. Remand ARGUMENT Reinsurers Are Precluded From Litigating Or Relitigating Any Issue Other Than The Two Specific Issues The Court Of Appeals Remanded For Factual Determination CONCLUSION i

3 TABLE OF AUTHORITIES Cases General Accident Insurance Company v. Superior Court, 55 Cal. App. 4th 1444 (1st Dist. 1997)... 5 In re Western Asbestos Company et al., No T, at 9 (N.D. Cal. Bkr. Feb. 3, 2004)... 7 Travelers Casualty & Surety Company v. Insurance Company of North America, 609 F.3d 143 (3d Cir. 2010)... 3, 4 United States Fidelity & Guaranty Company v. American Re- Insurance Company, 20 N.Y.3d 407 (2013)... passim United States Fidelity & Guaranty Company v. American Re- Insurance Company, 93 A.D.3d 14 (1st Dep t 2012)... 6, 8, 16 United States Fidelity & Guaranty Company v. American Re- Insurance Company, No /02, 2010 WL (N.Y. Sup. Ct. Aug. 17, 2010)... 8 ii

4 Plaintiffs United States Fidelity and Guaranty Company and St. Paul Fire and Marine Insurance Company (collectively, USF&G ) respectfully submit this memorandum of law in support of its motion for an order properly limiting the scope of the issues to be tried. Specifically, USF&G requests an order from the Court that (1) The two issues remanded from the Court of Appeals for trial are Question 1. Whether parties bargaining at arm s length, in a situation where reinsurance was absent, could reasonably have given no value to the bad faith claims? Question 2. Whether the values assigned to lung cancer [$200,000], asbestosis [$50,000], pleural thickening [$20,000] and other cancer claims [$20,000] could reasonably have been agreed on in arm s length bargaining in the absence of reinsurance? (2) Resolution of these questions will depend on whether the parties to the underlying settlement bargained at arm s length and reasonably could have given no value to the bad faith claims and assigned the above-referenced values to the abovereferenced disease types in the absence of reinsurance. (3) At trial, a de novo review of USF&G s potential asbestos liability, claim values, the settling parties methodology for assessing USF&G exposure and/or the theoretical value of the bad faith claims is impermissible. PRELIMINARY STATEMENT By this motion, USF&G seeks the Court s resolution of the radically divergent views the parties have on the scope of what is to be tried. To prepare for trial, the parties need to know whether they will be (a) presenting the jury with a focused case limited to the two issues of fact remanded by the Court of Appeals, as envisioned by Plaintiff USF&G, or instead (b) relitigating de novo USF&G s exposure in the underlying action and the settling parties methodology in 2002 by which they assessed USF&G s exposure, as envisioned by Defendant Reinsurers (the Reinsurers ). There can be no reasonable disagreement on the two precise factual issues to be tried. The Court of Appeals stated both questions with specificity in its opinion

5 Question 1. Whether parties bargaining at arm s length, in a situation where reinsurance was absent, could reasonably have given no value to the bad faith claims? Question 2. Whether the values assigned to lung cancer [$200,000], asbestosis [$50,000], pleural thickening [$20,000] and other cancer claims [$20,000] could reasonably have been agreed on in arm s length bargaining in the absence of reinsurance? Ex. A, (Court of Appeals Opinion), U.S. Fid. & Guar. Co. v. Am. Re-Ins. Co., 20 N.Y.3d 407, (2013). 1 These questions focus on the settling parties agreement (i) to assign no value for settlement purposes to the bad faith claims Western MacArthur Corporation ( Western MacArthur ) asserted against USF&G (which prior rulings have held are not covered under the reinsurance treaty at issue here); and (ii) to value lung cancer claims at $200,000 (which exceeds the $100,000 retention in the reinsurance treaty) as compared to the below-$100,000 valuations assigned to other claims. In light of the above, USF&G envisions a short trial in which the individuals who participated in the underlying settlement negotiations will testify about whether the parties bargained at arm s length and whether reinsurance played any role in their decision to give no value to the bad faith claims and to assign a $200,000 valuation to pending and future lung cancer claims. The Reinsurers, by contrast, envision a lengthy trial in which expert witnesses, as opposed to percipient witnesses, will conduct a de novo review of MacArthur s and of USF&G s exposure on account of asbestos-related claims, claim values, the settling parties methodology in 2002 to assess USF&G s exposure, and the theoretical value of the bad faith claims asserted by Western MacArthur but never tried. 1 All citations to Ex. refer to exhibits annexed to the Affirmation of Jonathan Zelig, dated December 31, 2014 (the Zelig Affirmation ). 2

6 The question upon remand is, however, not what some expert (or even the jury) thinks is the most correct, objective and/or reasonable valuation of the lung cancer or bad faith claims. Rather, the question on remand is whether parties bargaining at arm s length, in a situation where reinsurance was absent, could reasonably have agreed to what they did. Id. at 425 (emphasis added). In fact, the Court of Appeals expressly defined a reasonable allocation as one that the parties to the settlement of the underlying insurance claims might reasonably have arrived at in arm s length negotiations if the reinsurance did not exist. Id. at 420. The Court of Appeals specifically stated Cedents are not the fiduciaries of reinsurers, and are not required to put the interests of reinsurers ahead of their own. Id. It further explained that, [w]hen several reasonable allocations are possible, the law, as several courts have recognized, permits a cedent to choose the one most favorable to itself. Id. at 421. In their letter-briefs to this Court, Reinsurers have distorted the relevant standard and misrepresented the Court of Appeals decision. In their November 17, 2014 submission, for example, Reinsurers parse the requirement that the allocation be reasonable as a requirement that the allocation must be legitimate. Defendants Submission of the Issues to Be Determined At Trial at 1 (quoting Court of Appeals Opinion). But Reinsurers neglect to quote the full Court of Appeals citation, which is critical to an understanding of the actual standard at issue. The Court of Appeals held We mean by reasonable essentially what we take the Third Circuit to mean by legitimate The reinsured s allocation must be one that the parties to the settlement of the underlying insurance claims might reasonably have arrived at in arm s length negotiations if the reinsurance did not exist. Ex. A (Court of Appeals Opinion), 20 N.Y.3d at 421 (citing Travelers Cas. & Sur. Co. v. Ins. Co. of N. Am., 609 F.3d 143, (3d Cir. 2010) (emphasis added)). Reinsurers pluck the words legitimate and reasonable from 3

7 the Court of Appeals opinion and ascribe meanings to them completely at odds with how the Court of Appeals explicitly defined those terms in this context. Indeed, the Court of Appeals quotes directly from the Third Circuit s INA decision, which expressly stated that legitimate in this context means non-reinsurance-related. Ex. A, (Court of Appeals Opinion), 20 N.Y.3d at 420 ( legitimate (i.e., non-reinsurance-related) ) (quoting Travelers Cas. & Sur. Co., 609 F.3d at ). The factual issues to be resolved at trial relate only to whether there were nonreinsurance-related justifications for the settling parties decisions not to allocate any of the settlement amount to Western MacArthur s bad faith claims and to value certain pending and future diseases at certain values for settlement purposes. Reinsurers attempt to expand the scope of the trial beyond the two grounds on which the Court of Appeals remanded the case, to put USF&G on trial for the bad faith claims that were settled, and to second-guess the methodology by which USF&G evaluated its exposure in order to arrive at a settlement is impermissible. As the Court of Appeals put it The reinsurers other arguments are without merit. Ex. A, (Court of Appeals Opinion), 20 N.Y.3d at 429. BACKGROUND This is a dispute over breach of a reinsurance treaty between USF&G and Reinsurers. The reinsurance treaty at issue here contained, as contracts of reinsurance commonly do, what is often referred to as a follow the fortunes or follow the settlements clause. Id. at 418. The follow the fortunes clause reads in relevant part All claims in which this reinsurance is involved, when allowed by [USF&G], shall be binding upon the Reinsurers, which shall be bound to pay or allow, as the case may be, their proportion of such loss..... [USF&G] shall have the right to defend, settle, or compromise any such claim, suit or proceeding, and such 4

8 action on the part of [USF&G] shall be binding upon the Reinsurers. Ex. B, (Reinsurance Treaty) at 6 (emphasis added). As the Court of Appeals noted, [i]t is well established... that a clause like this ordinarily bars challenge by a reinsurer to the decision of a party in USF&G s position called in reinsurance jargon the cedent, because it has ceded part of its risk to its reinsurers to settle a case for a particular amount. Ex. A, (Court of Appeals Opinion), 20 N.Y.3d at 418. A. Underlying Insurance Coverage Action The reinsurance claim in this case stems from USF&G s 2002 settlement of an underlying coverage dispute between USF&G and Western MacArthur. Western MacArthur, which had never been a policyholder of USF&G, claimed the right to coverage under policies that USF&G had issued to another entity Western Asbestos. In the late 1960s, Western Asbestos dissolved and its business operations were taken over by Western MacArthur. USF&G disputed Western MacArthur s right to sue under insurance policies allegedly issued to Western Asbestos. The California Court of Appeals agreed. It held that USF&G had no obligations to Western MacArthur and that USF&G had a valid basis for its decision not to defend or indemnify Western MacArthur. Gen. Accident Ins. Co. v. Superior Court, 55 Cal. App. 4th 1444, 1445 (1st Dist. 1997). Through maneuvering, Western MacArthur escaped the impact of the 1997 California appellate decision. First, it resurrected the then-defunct Western Asbestos so that it could posthumously assign its insurance rights to Western MacArthur. Then, Western MacArthur had Western Asbestos intervene in the coverage action as a co-plaintiff. USF&G argued that such a fictitious and obviously self-serving assignment of insurance rights to Western MacArthur was null and void. But the trial court rejected this defense mid-trial on April 19, 5

9 2002, effectively creating (though of course subject to appeal) USF&G s potential liability to Western MacArthur. Ex. C, (First Department Opinion), U.S. Fid. & Guar. Co. v. Am. Re-Ins. Co., 93 A.D.3d 14, 18 (1st Dep t 2012). B. Settlement of the Underlying Insurance Coverage Action During settlement negotiations, the asbestos plaintiffs asserted that Western MacArthur faced more than $5 billion in liability and that USF&G owed coverage for more than $2 billion of that exposure. Ex. D, (McClain Aff.) at 5; Ex. E, (Yessman Aff.) at 2, 5. USF&G ultimately settled for $987 million by, among other things, strongly hewing to its coverage positions including challenging Western MacArthur s standing to claim coverage through Western Asbestos and by getting its counter-parties to agree that the underlying policies (which could not be located) had a per person limit of $200,000 per claim. As the Court of Appeals observed, the settlement amount was approximately half the amount of the compensatory damages portion of a settlement demand Western MacArthur made to USF&G a few weeks before the settlement. Ex. A, (Court of Appeals Opinion), 20 N.Y.3d at 424. [T]he people who negotiated the settlement of the coverage litigation all agreed that the settlement gave no value to the bad faith claims. Id. USF&G did not believe it acted in bad faith, and MacArthur was willing to abandon its bad faith claim. See Ex. F, (McClain Dep. Tr.) at ( I believe when we started talking about settlement we said our demands reflected their exposure in the tort system and were not increasing our demands for bad faith claims. ). Ex. E, (Yessman Aff.) at 13 ( USF&G did not pay any monies under the Settlement Agreement for bad faith or other extra-contractual liability. ). Ex. G, (Pedlar Aff.) at 15 ( The USF&G claim was settled for substantially less than the Debtors demand without regard to any bad faith claims against USF&G. ). 6

10 With respect to pending and future claims, the parties agreed, in assessing USF&G s exposure during settlement negotiations in order to arrive at an overall settlement amount, that they would be valued as follows (i) mesothelioma $500,000; (ii) lung cancer $200,000; (iii) other cancer $20,000; (iv) asbestosis $50,000; and (v) pleural $20,000. See Ex. A, (Court of Appeals Opinion), 20 N.Y. 3d at ; see also Ex. E, (Yessman Aff.) at 9; Ex. D, (McClain Aff.) at 7. These valuations were expressly approved by the Bankruptcy Court presiding over the MacArthur entities bankruptcy case in the context of the creation of procedures for the distribution of settlement monies from a trust to pay personal injury claimants. See Ex. H, (Memorandum Decision After Confirmation Hearing), In re Western Asbestos Co., et al., No T, at 9 n.13, 37, (N.D. Cal. Bkr. Feb. 3, 2004) (Tchaikovsky, J.) (rejecting objector s contention that the values were too high and holding that the settlement was in good faith as a matter of law ). 2 C. Reinsurance Billing After the settlement, USF&G billed its reinsurers for their share of the losses under the Treaty. In preparing the reinsurance cession, USF&G used the number of claimants and values that derived from the parties settlement negotiations. Due to the $100,000 retention in the Treaty, USF&G did not bill the reinsurers for claims that the parties agreed during settlement negotiations were valued below $100,000. For claims exceeding $100,000, USF&G reduced such claims by the $100,000 retention amount. As a result, USF&G retained 2 As contemplated by the Settlement Agreement, the MacArthur entities filed for bankruptcy protection and sought an injunction against future claims against both the MacArthur entities and USF&G, in exchange for the creation of a trust fund for the compensation of existing and future asbestos claimants. On February 3, 2004, the U.S. Bankruptcy Court confirmed the reorganization plan and held that the Settlement Agreement was made in good faith as a matter of law. Ex. H, (Memorandum Decision After Confirmation Hearing), In re Western Asbestos Company, et al., No T, at 37 (N.D. Cal. Bkr. Feb. 3, 2004). 7

11 approximately 60% of the underlying settlement for its own account. It billed Reinsurers for only 40% of the $987 million it had paid on account of MacArthur s asbestos liability. The follow the fortunes clause in the Treaty required USF&G s reinsurers to promptly pay their proportion of the reinsured loss. The reinsurance treaty provides that Reinsurers share of any loss hereunder shall be paid to the Company upon proof of the payment thereof by the Company... provided, however, that the Reinsurers in any event shall have a period of fortyeight (48) hours, after receipt of such written notice from the Company, to mail or otherwise dispatch their payment. Ex. B, (Reinsurance Treaty) at 7. Even though the reinsurance treaty requires USF&G s reinsurers to follow the settlement, USF&G s reinsurers refused to pay one cent to USF&G. USF&G was thus forced to commence this litigation. D. This Litigation American Re-Insurance Company ( AmRe ) filed this lawsuit in For the past 12 years, Reinsurers have raised one excuse after another to avoid the follow the fortunes doctrine and postpone for as long as possible their contractual obligation to reimburse USF&G. Finally, after eight years of litigation, Justice Lowe denied all of Reinsurers summary judgment arguments and granted summary judgment in favor of USF&G in He held that Reinsurers numerous arguments were precisely the kind of re-litigation that the follow the fortunes doctrine is designed to avoid. Ex. I, (Trial Court Opinion), U.S. Fid. & Guar. Co. v. American Re-Ins. Co., No /02, 2010 WL , at *12 (N.Y. Sup. Ct. Aug. 17, 2010). Then, in a 4-1 decision, the First Department similarly rejected Reinsurers efforts to avoid the follow the fortunes clause, affirming the denial of Reinsurers summary judgment motions and the granting of summary judgment to USF&G. See Ex. C, (First Department Opinion), 93 A.D.3d at By Order dated June 14, 2006, the parties were realigned and USF&G became the plaintiff. 8

12 Like Justice Lowe and the First Department, the Court of Appeals rejected Reinsurers arguments to escape the follow the fortunes clause in the reinsurance treaty. [A]lmost all courts to consider the question have held, and we join them in holding, that a follow the settlements clause does require deference to a cedent s decisions on allocation. As other courts have observed, there seems to be no good alternative to giving a measure of deference to a cedent s allocation decisions. To review each decision de novo would invite long litigation over complex issues that courts may not be well equipped to resolve, creating cost and uncertainty and making the reinsurance market less efficient. Deference to a cedent s decisions makes for a more orderly and predictable resolution of claims. Ex. A, (Court of Appeals Opinion), 20 N.Y.3d at 419. (citations omitted) (emphasis added). Reinsurers are doing exactly what the Court of Appeals deemed inappropriate i.e., asking this Court to review each decision de novo, which would invite long litigation over complex issues that courts are not well equipped to resolve. Id. The Court of Appeals explained that deference to USF&G s allocation decision was required not only by hornbook reinsurance principles, but also by the language of the reinsurance treaty at issue Id. (emphasis added). The language of the follow the settlements clause in this case supports the conclusion that precedent and policy suggest. The words [a]ll claims... when allowed by the Company, shall be binding upon the Reinsurers imply discretion in the cedent to decide which claims should be considered allowed, and to what extent. And the clause gives the reinsurers a measure of protection against abuse by allowing the reinsurers to take a role in defending claims and requiring that the cedent and the reinsurers cooperate in every respect in the defense or control of claims, while preserving the cedent s right to... settle, or compromise any such claim by action that shall be binding upon the Reinsurers. If reinsurers think that they are not adequately protected by this language, their remedy is to negotiate better terms. 9

13 While holding that the follow the fortunes doctrine applies to a cedent s allocation decisions, the Court of Appeals explained that those decisions are not immune from scrutiny. Instead, they must be reasonable, which the Court of Appeals expressly defined as follows Id. at 420. We mean by reasonable essentially what we take the Third Circuit to mean by legitimate The reinsured s allocation must be one that the parties to the settlement of the underlying insurance claims might reasonably have arrived at in arm s length negotiations if the reinsurance did not exist. The Court of Appeals cautioned that [r]easonableness does not imply disregard of a cedent s own interests. Cedents are not the fiduciaries of reinsurers, and are not required to put the interests of reinsurers ahead of their own. Id. The Court specifically explained that When several reasonable allocations are possible, the law, as several courts have recognized, permits a cedent to choose the one most favorable to itself. Id. at 421. We think it unrealistic to expect that the cedent will not be guided by its own interests in making the choice [of allocation]. Id. [T]he cedent s motive should generally be unimportant. Id. The Court of Appeals further explained that while a symmetry in pre and postsettlement allocation may suggest the reasonableness of the latter, reasonableness cannot be established merely by showing that the cedent s allocation for reinsurance purposes is the same as the allocation that the cedent and the insurance claimants actually adopted in settling the underlying insurance claims. The fact that they did adopt it does not prove that they would have, or reasonably could have, adopted it if reinsurance did not exist. Id. at 421 (emphasis added). In this way, the Court of Appeals re-affirmed that the litmus test for the reasonableness of the settling parties valuation decisions and their decision not to allocate any of the settlement to 10

14 MacArthur s bad faith claims was whether parties negotiating at arm s-length could have reached those same decisions if reinsurance were not in the picture. The Court of Appeals affirmed summary judgment for USF&G on every issue in this action, except for the two precise factual issues that the Court of Appeals remanded for trial. See id. at 429 ( The reinsurers other arguments are without merit. ). First, the Court of Appeals acknowledged that the people who negotiated the settlement of the coverage litigation all agreed that the settlement gave no value to the bad faith claims, id. at 424, but remanded for factual determination of whether parties bargaining at arm s length, in a situation where reinsurance was absent, could reasonably have given no value to the bad faith claims. Id. at 425. Second, the Court of Appeals remanded for determination of [w]hether the values assigned to lung cancer [$200,000], asbestosis [$50,000], pleural thickening [$20,000] and other cancer [$20,000] claims could reasonably have been agreed on in arm s length bargaining in the absence of reinsurance. Id. at Reinsurers have never argued that any of the pending and future disease claims valued below the $100,000 retention in the reinsurance treaty (asbestosis [$50,000], pleural thickening [$20,000] and other cancer claims [$20,000] were undervalued. Thus, the only issue here is whether the settling parties could reasonably have agreed upon the $200,000 value for pending and future lung cancer claims in the absence of reinsurance. The Court of Appeals rejected all of the Reinsurers other arguments The reinsurers other arguments are without merit. Id. at 429. As a result, the Court of Appeals 4 As to mesothelioma, the Court of Appeals stated that it is clear from the record[] that the claims for the most serious disease, mesothelioma, were reasonably valued above the $200,000 cap. Id. at

15 modified summary judgment with respect to the two aforementioned factual issues and otherwise affirmed the grant of summary judgment in favor of USF&G Accordingly, the order of the Appellate Division should be modified, without costs, to grant USF&G s motion for summary judgment in part and to deny it in part in accordance with this opinion, and as so modified affirmed. Id. 5 E. Remand Upon remand, Reinsurers refuse to acknowledge that the Court of Appeals affirmed the grant of summary judgment in favor of USF&G and against Reinsurers on all but two specific factual questions. Reinsurers have offered six expert reports challenging virtually every decision made in connection with the settlement negotiations, the resulting settlement and the subsequent allocation. For example, Reinsurers valuation expert, Charles Bates, calculates USF&G s liability for asbestos losses to be $135 million over $852 million less than the underlying settlement amount of $987 million and speculates that the balance of the settlement therefore must have been on account of Western MacArthur s bad faith claim. Ex. J, (Bates Expert Rebuttal Report) at However, Western MacArthur and every other expert in the underlying insurance coverage action and the Western MacArthur bankruptcy case calculated USF&G s asbestos exposure in excess of $2 billion. Regardless of who is right or wrong, the overarching problem with Bates analysis is that he is not analyzing the right question. The only relevant question here is whether the agreed allocation of no value to bad faith claims and a $200,000 value to lung cancer could have been agreed upon in arm s length negotiations in the absence of reinsurance. 5 The substantial majority of the issues that Reinsurers seek to litigate including the number and value of mesothelioma claims, the value of default judgment claims, reevaluation of the exposure faced by MacArthur and USF&G and settlement methodologies are all off limits under the Court of Appeals decision. 12

16 ARGUMENT Reinsurers Are Precluded From Litigating Or Relitigating Any Issue Other Than The Two Specific Issues The Court Of Appeals Remanded For Factual Determination The Court of Appeals took pains to delineate the two questions of material fact that it was remanding for trial. At the end of the two sections in which the Court of Appeals articulated what it deemed to be triable issues of fact, the Court of Appeals spelled out exactly what must be decided at trial No Value To Bad Faith Claims In short, we find it impossible to conclude, as a matter of law, that parties bargaining at arm s length, in a situation where reinsurance was absent, could reasonably have given no value to the bad faith claims. This issue must be decided at trial. Ex. A, (Court of Appeals Opinion), 20 N.Y.3d at 425. Claim Values Whether the values assigned to lung cancer, asbestosis, pleural thickening and other cancer claims could reasonably have been agreed on in arm s length bargaining in the absence of reinsurance presents an issue of fact. Id. at 426 (emphasis added). The Court of Appeals could not have been clearer. These are the two, and only two, questions to be tried. Id. All other issues have been conclusively determined The reinsurers other arguments are without merit. Id. at 429. The Court of Appeals made clear that [t]o review each decision de novo would invite long litigation over complex issues that courts may not be well equipped to resolve.... Id. at 419. In clear and flagrant disregard of this directive, and flying in the face of black-letter follow the fortunes law, Reinsurers seek to escape the narrow scope of remand and conduct a trial focused on a de novo review of (i) MacArthur s asbestos exposure and USF&G s potential liability and the methodology the settling parties employed in 2002 to analyze USF&G s exposure; and (ii) the theoretical value of Western MacArthur s bad faith claim. For example, Reinsurers expert Bates argues that the settling parties overestimated the number of pending and 13

17 future claims for which USF&G could be held responsible, assigned disease values to such claims that were too high, and applied inflation and discount rates incorrectly to assess USF&G s liability for future claims. Ex. K, (Bates Expert Report) at 62-79, , , , , , 252, 264. In fact, Bates unabashedly offers his own corrected reinsurance billing reflecting Bates de novo analysis of what he thinks the correct billing should have been based on his own hindsight assessment of USF&G s exposure on account of asbestos claims. Id. at 266. But the Court of Appeals opinion bars Reinsurers from substituting their or their experts judgment in lieu of that of the underlying settling parties. Ex. A, (Court of Appeals Opinion), 20 N.Y.3d at The question for the jury is whether the settling parties could reasonably have, in the absence of reinsurance, agreed, as they did, to assign no value to the bad faith claims and value pending and future lung cancer claims at $200,000 for settlement purposes. Whether an expert could or would come up with a different set of valuations twelve years later is irrelevant. Similarly, Reinsurers experts McKinnon and Pillsbury opined that USF&G faced billions of dollars of exposure on account of Western MacArthur s bad faith claims and that, as a result, the overwhelming majority of the $987.5 million settlement must have been on account of extra-contractual liability. Ex. L, (McKinnon Expert Report) at 26-30; Ex. M, (Pillsbury Expert Report) at 5, 84. However, the issue is not what McKinnon or Pillsbury believed, but rather whether the settling parties could reasonably have, in the absence of reinsurance, assigned no value to the bad faith claims. Ex. A, (Court of Appeals Opinion), 20 N.Y.3d at Reinsurers may examine and cross-examine percipient witnesses on this issue, but they cannot instead conduct a de novo review particularly through hired experts of what they believe the bad faith claims were worth. 14

18 The crux of the dispute can be characterized as follows. USF&G understands the issue for trial to be whether the settling parties could have reached the decisions they did regarding valuation of lung cancer and other claims and discharge of bad faith claims without compensation in the absence of reinsurance. Reinsurers insist the issue for trial is whether the settling parties evaluation of USF&G s liability was objectively correct. Under the Court of Appeals decision, and under the follow the fortunes doctrine, the Reinsurers should not be permitted to substitute their own judgment on liability in place of the settlement decisions of the parties. Such second-guessing is exactly what the follow the fortunes doctrine is intended to preclude. Id. at 418. Not only do Reinsurers and their experts fail to address the right question, they also openly flout the Court of Appeals holdings. For example Bates devotes dozens of pages of his reports to attacking the value allocated to mesothelioma claims as unreasonably high in most cases. Ex. K, (Bates Expert Report) at ; But the Court of Appeals held that it is clear from the record[] that claims for the most serious disease, mesothelioma, were reasonably valued above the $200,000 cap. Ex. A, (Court of Appeals Opinion), 20 N.Y.3d at 424. Reinsurers expert Paul Thomson spends nearly a third of his expert report arguing that USF&G improperly failed to keep the Reinsurers advised of the litigation and settlement discussions. See Ex. N, (Thomson Expert Report) at 6, 8-15, Yet the First 6 At his deposition, Bates called the Court of Appeals statement absolutely absurd. When read this passage in the Court of Appeals decision and asked whether mesothelioma claims were reasonably valued above $200,000, Bates responded that it most decidedly is too high of a number, as an average and it is most decidedly wrong to assume that all mesothelioma claims would be above $200,000. That s an absolutely absurd assumption to make. Ex. O, (Bates Dep. Tr.) at (emphasis added); see also id. at ( Q Okay. So, let me read that again. The second sentence here reads, It seems to be undisputed (and in any event, is clear from the record) that the claims for the most serious disease, mesothelioma, were reasonably valued above the $200,000 cap. Do you see that? A I see that. Q Do you agree with that statement? A No. ). 15

19 Department held in this case (as affirmed by the Court of Appeals) [T]he record demonstrates that the reinsurers were kept duly advised of the course of the underlying litigation and settlement negotiations. The reinsurers manifestly had the right, under the treaty, to associate in the defense of the claim, but chose not to do so. Ex. C, (First Department Opinion), 93 A.D.3d at 20 n.3. 7 Reinsurers improperly attempt to relitigate the reasonableness of the allocation of $169 million to the default judgments in the underlying settlement capped at $200,000 per claim. See Defendants Submission of the Issues to be Determined at Trial, at 6; Ex. K, (Bates Expert Report), at 20, ; Ex. N, (Thomson Expert Report), at However, AmRe argued before the Court of Appeals that paying the per claim policy limit of $200,000 for default judgments for lesser disease types such as pleural thickening or asbestosis was palpably improper and an overbilling that at barest minimum presents a triable issue of fact as to the validity of USF&G s reinsurance billing numbers, 8 and in response, the Court of Appeals rejected AmRe s argument as being without merit. Ex. A, (Court of Appeals Opinion), 20 N.Y.3d at 429. Reinsurers must recognize the unassailable fact that the Court of Appeals did not vacate the judgment below, as they repeatedly insist, but rather affirmed summary judgment for USF&G on all but two discrete and interrelated issues of fact, which it remanded for trial. Indeed, this Court previously noted that the Court of Appeals, basically, affirmed except for two issues, what they consider to be issues of fact. Ex. P, (Sept. 19, 2013 Hr g Tr.) at Reinsurers attempt to use expert testimony to re-litigate nearly every compromise, assumption and decision USF&G made in the context of negotiating the underlying settlement in this case 7 8 Furthermore, Thomson opines that this alleged failure to notify represents a breach of USF&G s duty of utmost good faith. Ex. N, (Thomson Expert Report) at 28. And yet, the First Department rejected, as did the Court of Appeals, Defendants assertion that USF&G has breached its duty of utmost good faith to them as the reinsurers. Ex. C, (First Department Opinion), 93 A.D.3d at 20 (holding that [d]espite these allegations of rampant bad faith, the record demonstrates that the reinsurers were kept duly advised ). Ex. Q, (Brief for Defendant-Appellant American Re-Insurance Company), United States Fid. & Guan. Co. v. American Re-ins. Co., 20 N.Y.3d 404 (2013) (No ), 2012 WL , at *26. 16

20 constitutes precisely the kind of comprehensive second-guessing that the Court of Appeals proscribed. that CONCLUSION For the foregoing reasons, USF&G respectfully moves this Court for an Order (1) The two issues remanded from the Court of Appeals for trial are Question 1. Whether parties bargaining at arm s length, in a situation where reinsurance was absent, could reasonably have given no value to the bad faith claims? Question 2. Whether the values assigned to lung cancer [$200,000], asbestosis [$50,000], pleural thickening [$20,000] and other cancer claims [$20,000] could reasonably have been agreed on in arm s length bargaining in the absence of reinsurance? (2) Resolution of these questions will depend on whether the parties to the underlying settlement bargained at arm s length and reasonably could have given no value to the bad faith claims and assigned the above-referenced values to the abovereferenced disease types in the absence of reinsurance. (3) At trial, a de novo review of USF&G s potential asbestos liability, claim values, the settling parties methodology for assessing USF&G exposure and/or the theoretical value of the bad faith claims is impermissible. Dated December 31, 2014 SIMPSON THACHER & BARTLETT LLP By /s/ Mary Kay Vyskocil Mary Kay Vyskocil Chet A. Kronenberg George S. Wang Jonathan M. Weiss Jonathan S. Zelig 425 Lexington Avenue New York, NY Telephone (212) Facsimile (212) Attorneys for Plaintiffs United States Fidelity & Guaranty and St. Paul Fire & Marine Insurance Company

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