“Twisting in the Wind: Covered Agreement Dangling by Uncertainty and Politics,” AIRROC Matters

In an article for AIRROC Matters,  Frederick J. Pomerantz examines the uncertain status of the “Covered Agreement,” a novel multilateral insurance agreement between the United States and the European Union. Early advocates hoped that the agreement would result in an “equivalency recognition” between U.S. and EU insurance regulatory systems. According to state insurance regulators, the agreement falls short of this, but does include provisions that would bring these insurance markets closer by eliminating obstacles for U.S. reinsurers doing business in the EU
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EU and U.S. Negotiators Reach Covered Agreement

On January 13, 2017, former U.S. Treasury Secretary Jacob Lew and former U.S Trade Representative Michael Froman notified Congressional leaders that U.S. negotiators reached a covered agreement with EU officials entitled “Bilateral Agreement between the European Union and the United States of America On Prudential Measures Regarding Insurance and Reinsurance” (Covered Agreement). The covered agreement covers three main areas of prudential insurance supervision: 1) group supervision; 2) reinsurance; and 3) exchange of information between supervisory authorities. The U.S. Treasury Department
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Leaders of Major House Committee Wade into Equivalency Discussions

On August 17, 2016, the Chairman and Ranking Member of the House Ways and Means Committee waded into the ongoing discussions between U.S. and EU leaders regarding equivalency with the EU’s Solvency II and negotiation of a covered agreement. Chairman Kevin Brady and Ranking Member Sander Levin sent a letter to U.S. Treasury Secretary Jacob Lew and United States Trade Representative (USTR) Michael Froman expressing concern that Solvency II “unfairly discriminates against U.S. insurance and reinsurance (“(re)insurance”) business.” EU regulators
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D.C. Circuit Appeals Court to IRS: Hands Off Wholly Foreign Retrocession Agreements

In Validus Reinsurance Ltd. v. United States of America, the D.C. Circuit Court of Appeals decided whether 26 U.S.C. § 4371, which taxes premiums on certain reinsurance policies issued by foreign reinsurers, applies where the reinsurance contract is between two wholly foreign entities. Validus Reinsurance is a Bermuda-domiciled company located in Bermuda that provides reinsurance for companies either incorporated in the United States or doing business in the U.S. It also purchases retrocession contracts from wholly foreign entities to cover
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Breach of Reinsurance Contract and Bad Faith Claims Survive Dismissal, District Court Rules

In Old Republic National Title Insurance Co. v. First American Title Insurance Co., 2015 U.S. Dist. LEXIS 44693, the U.S. District Court for the Middle District of Florida refused to dismiss portions of a cedent’s breach of contract claim, bad faith claim, and demand for declaratory judgment against a reinsurer. The reinsurance dispute arose when a cedent negotiated a $41 million settlement with the underlying insured, and the reinsurer paid its portion of the claim under a reservation of rights.
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New York Department of Financial Services Superintendent Continues Criticism of “Shadow Insurance” Transactions in Letter to U.S. Senate Committee

New York Department of Financial Services (DFS) Superintendent Benjamin Lawsky continued his attack against the use of so-called “shadow insurance” in an April 27, 2015 letter to the Honorable Sherrod Brown, Ranking Member of the U.S. Senate Committee on Banking, Housing, and Urban Affairs. In the letter, Lawsky called on regulators to initiate measures to address this “textbook example of regulatory arbitrage in order to protect the efficacy of our state-based system of regulation” and hopes to stimulate a national
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Second Circuit Finds No Coverage Based on Late Notice Issue To a Reinsurer

The U.S. Court of Appeals for the Second Circuit affirmed a district court’s ruling that late notice, alone, was sufficient to defeat a cedent’s claim. In Granite State Insurance Co. v. Clearwater Insurance Co., No, 14-1494-cv, 2015 WL 1474605 (2d Cir. Apr. 2, 2015), the court was forced to determine whether Illinois law on late notice to a reinsurer was settled, or if it should instead apply New York’s prejudice requirement. Granite State Insurance Company, the cedent, settled a large
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1st Circuit is “Honorably Engaged” by Reinsurance Arbitration Award

In First State Insurance Co. v. National Casualty Co., No. 14-1644, 2015 WL 1263147 (1st Cir. Mar. 20, 2015) the U.S. Court of Appeals for the First Circuit addressed a motion to vacate an arbitration award related to multiple reinsurance and retrocessional agreements. The decision was the court’s first to address the operation and effect of a so-called “honorable engagement” provision in an arbitration clause. The case arose out of multiple agreements between First State Insurance Company and New England
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The “Reinsurance Professional’s Deskbook: A Practical Guide” is now available

The Reinsurance Professional’s Deskbook: A Practical Guide, a new treatise featuring Goldberg Segalla founding partner Thomas F. Segalla as editor, is now available for purchase. Co-produced by leading legal publisher Thomson Reuters and DRI – The Voice of the Defense Bar, the largest organization of defense lawyers in the country, the deskbook is a comprehensive resource that explores in depth traditional insurance and reinsurance concepts as well as emerging trends in today’s insurance markets, with a focus on practical assessment
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Third Circuit Affirms Denial of Reinsurance Contract Rescission

Munich Reinsurance America, Inc. (“Munich”) provided reinsurance coverage to Everest National Insurance Co. (“Everest”) on workers compensation claims.  Munich then sought reinsurance coverage for its own liability and did so from Continental Casualty Insurance Co. (“Continental”).  Eventually, the independent underwriter that represented Continental in the deal informed Munich that it no longer underwrote coverage for Continental.  At that time, the underwriter suggested replacing Continental with American National Insurance Company (“ANICO”).  Munich gave the underwriter the same files Munich received from
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