Reinsurance Focus

The European Union’s Solvency II initiative has received considerable trade press exposure, but the NAIC’s Solvency Modernization Initiative has received less attention. Learn about the general outlines of these initiatives in our Special Focus article, Solvency Ho! An Update on U.S. and European Solvency Initiatives.

This post written by John Pitblado.

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By Consent Order dated December 13, 2011, the Florida Office of Insurance Regulation approved the application of Bermuda reinsurer Platinum Underwriters Bermuda, Ltd. to operate in Florida with posting less than 100% collateral. The Order recites Platinum’s fulfillment of statutory criteria, and notes Platinum’s demonstration of $1.366 billion in capital and surplus and favorable ratings from two accepted agencies. According to the Office’s December 14, 2011 press release, Platinum is the sixteenth Bermuda reinsurer approved to use Florida as its port-of-entry state, in addition to a Germany company and a U.K. company. In the Matter of: Platinum Underwriters Bermuda, Ltd., Case No. 122414-11-CO (Fla. Office of Insurance Regulation Dec. 13, 2011).

This post written by John Pitblado.

See our disclaimer.

On November 6, 2011, the NAIC Executive Committee-Plenary adopted revisions to the NAIC’s Credit for Reinsurance Model Law (#785) and Credit for Reinsurance Model Regulation (#786). The revisions, as finally adopted, are substantially in the form covered in our Special Focus analysis of the revisions adopted in September by the Financial Condition (E) Committee, with one notable addition. The Model Law, in new Section 2(J), now imposes certain notification requirements on a ceding company when its reinsurance recoverables from a single reinsurer (or group of assuming companies) exceed specified levels of the ceding company’s surplus or gross written premium. Note: The redlining in these documents is from the NAIC, and apparently shows the differences between the just adopted versions and the previously existing text of the model law and model regulation.

This post written by Anthony Cicchetti.

Underwriters at Lloyd’s, London was approved by Consent Order of the Florida Office of Insurance Regulation to become the seventeenth reinsurer admitted under Florida’s law allowing foreign reinsurers to post reduced collateral, upon demonstration that it is financially sound and highly rated by eligible ratings institutions. As set forth in the Consent Order, Lloyd’s reported capital and surplus of $29.9 billion, well-exceeding Florida’s $250 million requirement. In re Underwriters at Lloyd’s, London (Fla. O.I.R. Oct. 6, 2011).

This post written by Michael Wolgin.

Julian Jeffrey Messent, a reinsurance broker who was head of the Property Division (Americas) of PWS International Limited, a London-based reinsurance broker, was convicted in London in late 2010 of corruption offenses, stemming from his supervision of payments made to various Costa Rican governmental officials. The payments were found to be bribes meant to steer reinsurance placement for Costa Rican government-owned utility organizations to PWS. For his placement of the contracts, Messent received large incentive bonuses between 1999 and 2002 from PWS. After a new President of Costa Rica was elected in 2002, newly appointed Costa Rican officials discovered the improper payments, and both the Costa Rican and U.K. governments undertook criminal investigations which led to Messent’s arrest in 2007. Messent appealed his sentencing of 21 months each on two counts of corruption (to run concurrently), as well as a fine of £100,000. The convictions were affirmed on appeal, the court noting “there can be no doubt that corruption of foreign government officials . . . is at the top end of serious corporate offending both in terms of culpability and harm.” Regina v. Messent, [2011] EWCA Crim 644 (Eng. Ct. App.).

This post written by John Pitblado.

The New York Insurance Department issued Circular Letter No. 9 on July 22, 2011, which provides “guidance and clarification” on the impact of the Nonadmitted and Reinsurance Reform Act of 2010 (“NRRA”) (passed as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act) on surplus line placements in the state. The letter cites to and discusses the various New York state insurance and tax laws which were amended to conform to the NRRA. New York is one of the states which has declined to enter into a surplus insurance premium tax compact, keeping 100% of the tax it collects. The letter clarifies eligibility requirements for non-admitted insurers under NAIC’s Nonadmitted Insurance Model Act, which was codified under New York law; it clarifies exemptions for “exempt commercial purchasers” from satisfying due diligence requirements concerning placement with admitted insurers; and it discusses the “home state” law governing the exclusive regulation of non-admitted insurers by the insurer’s “home state” only. The letter also addresses licensing and taxation issues. Certain of the New York laws, and the NRRA, became effective on July 21, 2011.

This post written by John Pitblado.

The United States Court of Appeals for the Second Circuit has vacated the criminal convictions of Gen Re and AIG executives stemming from a finite reinsurance transaction with undisclosed payments, which allegedly was intended to improve AIG’s financial statements without transferring any significant risk. A jury had convicted all of the defendants on all charges. The matter was remanded for a new trial. After hundreds of pages of briefing and numerous arguments of prosecutorial misconduct, erroneous evidentiary rulings and improper jury charges, the Court of Appeals found only two bases for vacating the convictions: (1) the admission of three bar charts which linked the decline in AIG’s stock price to the transaction at issue; and (2) a jury charge “that allowed the jury to convict without finding causation.”

The stock price evidence was interesting because the court found that “the charged offenses here do not require a showing of loss causation ….” Nevertheless, the prosecution sought to use causation evidence “to humanize its prosecution” and show that the transaction harmed AIG stockholders who had purchased AIG stock for their retirement accounts or the college funds of their children. The evidence presented the defendants with a dilemma: to allow the jury to attribute the full stock price decline to the transaction or introduce prejudicial evidence “of other besetting scandals, wrongdoing, and potentially illegal actions at AIG.” The defendants sought to sidestep the problem by stipulating to materiality, but the government refused. The court found that the district court’s admission of the charts was inconsistent with other rulings on the stock price issue, and was prejudicial to the defendants.

With respect to the jury charge issue, the court noted that the defendants did not specifically object to the causation instruction, which was the product of competing suggestions by counsel, but that the instruction nevertheless warranted reversal under the plain error rule, as it “is improbable, let alone ‘absolute[ly] certain[],’ that the jury based its verdict on a properly instructed ground.”

This opinion contains an extensive but relatively concise discussion of the finite reinsurance transaction at issue, and of the fact that low risk finite reinsurance transactions are acceptable, “and have their uses,” unless they violate FAS 113, the so-called 10-10 rule, entail no risk, and amount to fraud. The court described how this particular transaction was deliberately structured to conceal certain credits and repayments from the companies’ outside auditors. The court rejected all but two of the defendants’ numerous challenges, including allegations that one key prosecution witness had committed perjury, although it suggested that the government be circumspect about how his testimony is presented in a new trial. A major “take away” from this opinion is the clear holding that finite reinsurance transactions can be the basis for criminal convictions of the executives involved in such transactions. United States v. Ferguson, et al., No. 08-6211-CR (2d Cir. August 1, 2011).

This post written by Rollie Goss.

In this Treaty Tip, Tony Cicchetti discusses the significance of “honorable engagement” clauses in reinsurance agreements.

This post written by Tony Cicchetti.

The Florida Office of Insurance Regulation (FOIR) has approved two more Bermuda-based reinsurance companies, Aspen Insurance Ltd. and AXIS Specialty Ltd., to become an “eligible reinsurer” under Florida law and thereby operate in Florida’s property catastrophe reinsurance market with reduced collateral. Ceding insurance companies may now receive full credit on their financial statements for their Aspen or AXIS Specialty property catastrophe reinsurance ceded without full collateral. These approvals bring to fourteen the number of reinsurance companies approved under this program. In re Aspen Insurance Ltd., Case No. 117338-11-CO (FOIR May 6, 2011) and In re AXIS Specialty Ltd., Case No. 117743-11-CO (FOIR May 23, 2011).

This post written by Michael Wolgin.

Alterra Bermuda Limited and Arch Reinsurance Limited were both approved by Consent Order of the Florida Office of Insurance Regulation, to become the eleventh and twelfth reinsurers, respectively, admitted under Florida’s law allowing foreign reinsurers to post reduced collateral, upon demonstration that they are financially sound and highly rated by eligible ratings institutions. As set forth in the respective Orders, Alterra is a Bermuda-based reinsurer with capital and surplus in excess of $1.5 billion, and Arch is a Bermuda-based reinsurer with over $4.2 billion in capital and surplus. In re: Alterra Bermuda Limited, No. 115697-11-CO (Fla. O.I.R. March 23, 2011); In re: Arch Reinsurance Limited, No. 115570-11-CO (Fla. O.I.R. March 31, 2011).

This post written by John Pitblado.