DELEGATED AUTHORITIES AGENCIES, AUTHORITIES & LIABILITIES A UK PERSPECTIVE. Tim Goodger
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1 DELEGATED AUTHORITIES AGENCIES, AUTHORITIES & LIABILITIES A UK PERSPECTIVE Tim Goodger
2 Topics A. General Observations B. Legal Principles C. Role of the placing broker D. The Managing Agent E. Disclosure F. The Contract and Specific issues
3 A. General Observation Delegation of underwriting, claim handling, collection of premium Broker or underwriting agency Advantages - distribution channels - cost effective in new business types Renewed interest : 1/3 of Lloyd s business 8bn of premium income
4 A. General Observations (2) Binder = a commercial agreement Not a contract of insurance No industry standard Binders and other agreements must compliment/ be consistent Awareness of duties
5 A. General Observations (3) Full authority Pre-determined risk selection and rates Prior submit
6 B. Legal principles duties/obligations 1) Contractual obligations 2) Common law / agency 3) Lloyd s 4) FCA and/or PRA
7 Legal principles duties/obligations (2) On the coverholder Contract - Express - Implied Tortious (concurrent liability with contract) Fiduciary (as agent) On the underwriter Contract - Express - Implied
8 Legal principles duties/obligations (3) Contractual obligations Coverholder > Insurer Broker (placing the binder) > Coverholder Accounting for premium Coverholder > Broker > Insurer
9 Legal principles duties/obligations (4) Contractual terms Binders generally include: Binding Authority limits Payment of premium and accounting Payment of commission Claims handling/payment of claims
10 Legal principles duties/obligations (5) Contractual terms Auditing/performance review/inspecting records Termination of binder Jurisdiction and law Beware: Changing practices over time
11 Legal principles duties/obligations (6) Common law / agency Obligations on the cover holder - Implied duty to act with reasonable skill and care - Fiduciary duties A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary Bristol & West Building Society V Mothew (1998)
12 Legal principles duties/obligations (7) Common law / agency In practice this means: Always acting in the best interests of the principal Not to make secret profits To act in good faith Not to have conflicts of interest To act within the terms of the authority given A duty to disclose and report material information to the principal Note: Applies to individuals as well as companies
13 Legal principles duties/obligations (8) Authority Actual authority Ostensible authority Delegation of authority - Dilution of authority/limits of authority Ratification
14 Legal principles duties/obligations (9) Lloyd s Intermediaries Byelaw Lloyd s Code of Practice Delegated Underwriting FCA - Authorisation of coverholder and insurer - See - CIC Insurance Company Costa Rica
15 C. The Placing Broker Not a party to the contract Participates in operation of the binder Premium remittances; communications Generally no duty owed to the insurer
16 The Placing Broker (2) Sub-agent of the insurer when binder effected A duty may be assumed - Pryke v Gibbs Hartley Cooper (1991)
17 D. The Managing Agent Authority from syndicate members to enter binders Duty of care to members in contract and tort Lead underwriters/ - Lloyd s Claims Schemes - arbitration process - Limitation of Liability 2m per claim ( 10m per year) - no liability for consequential losses
18 E. Disclosure Disclosure MIA 1906 ss17-19 Misrepresentation Misrepresentation Act 1967
19 Disclosure (2) Personal liability Sphere Drake Insurance v Euro International Underwriting (2003) - Fraudulent misrepresentation - Concealment Fraud unravels all Markel/QBE v Surety Guarantee Consultants (2009)
20 F. The Contract and Specific issues Negotiation and terms Consistency between slip contract and binder Consistency between documents Supplement duties/obligations with express provision
21 The Contract and Specific issues (2) Claims Potential loss of control Binder and Claims Handling Agreement Claims settlement within delegated authority? Detailed framework and reporting structure Differentiate between underwriters
22 The Contract and Specific issues (3) Terminating the Binder Breaches of authority - actionable breach Plan for termination Properly drafted notice Timing of notices
23 The Contract and Specific issues (4) Terminating the Binder Delivery up of insurance documents Handling the run-off - Temple Legal Protection Ltd v QBE Insurance (Europe) Ltd (2008) - Europe Assistance Insurance Limited v Temple Legal Protection Ltd v (2007)
24 The Contract and Specific issues (5) Ownership - Hiscox Underwriting v Dickson Manchester & Co Ltd (2004) Exclusivity - Diverting business - Insurer has right of first refusal Proprietary Rights - Insurance Documentation - Marketing Material Non Solicit
25 To Conclude.. Potential increasing exposure for professional indemnity market Coverholder Broker Managing agents - Consortia - Lloyd s Claims scheme
26 DELEGATED AUTHORITIES AGENCIES, AUTHORITIES & LIABILITIES A UK PERSPECTIVE Tim Goodger
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