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Archive for the ‘Internal Controls’ Category

What is the Statute of Limitations for a Reinsurance Claim under New York Law and When does it Begin to Run?

March 4th, 2014 Claims Handling, Contract Interpretation, Internal Controls, New York Court of Appeals, New York State Courts, Nuts & Bolts, Nuts & Bolts: Reinsurance, Practice and Procedure, Reinsurance Arbitration, Reinsurance Claims, Statute of Limitations, United States Court of Appeals for the Second Circuit Comments Off on What is the Statute of Limitations for a Reinsurance Claim under New York Law and When does it Begin to Run?

Part II

In Part I (here) we determined the probable success of Reinsurer R’s motion to dismiss turns on whether the reinsurance contract expressly makes Cedent C’s presentation of claims a condition precedent to R’s obligation to pay them.  This Part II discusses in some detail New York law pertinent to contract statute-of-limitations accrual as it existed both before and after the Second Circuit’s 1996 decision in Continental Cas. Co. v. Stronghold Ins. Co., 77 F.3d 16 (2nd Cir. 1996), and before the New York Court of Appeals decided Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 N.Y.3d 765, 771 (2012).

Parts III and IV will discuss Stronghold and Hahn in some detail, and explain why we believe Stronghold misapplied New York law by concluding that the reinsurance contract before it expressly conditioned the reinsurers’ obligation to pay on the cedent presenting claims for payment. This Part II provides readers with the background required to understand better why we think that is so. Continue Reading »

What is the Statute of Limitations for a Reinsurance Claim under New York Law and When does it Begin to Run?

February 24th, 2014 Claims Handling, Contract Interpretation, Internal Controls, New York Court of Appeals, New York State Courts, Nuts & Bolts, Nuts & Bolts: Reinsurance, Practice and Procedure, Reinsurance Claims, Statute of Limitations, United States Court of Appeals for the Second Circuit Comments Off on What is the Statute of Limitations for a Reinsurance Claim under New York Law and When does it Begin to Run?

Part I

Wendy “Bulldog” Worrylittle is a partner in a New York City law firm who has just landed her first reinsurance case. Her client, Cedent C, an insurance company domiciled and licensed to do business in New York, told her that the case involves a single excess-of-loss contract between C and participants in a reinsurance pool fronted by Reinsurer R, which is domiciled in Delaware and has its principal place of business in South Carolina. The reinsurance contract does not contain an arbitration agreement, but provides that “New York shall govern this contract,” and that R consents to personal jurisdiction in any court of competent jurisdiction in New York State.

The dispute concerns three reinsurance claims, which R has not paid. Each arose out of C’s settlements with three of  its insureds, each one of which had commenced a declaratory judgment action against C seeking a declaration of coverage for asbestos or environmental property damage or bodily injury claims brought by third parties. Cedent C tells Wendy that each of the claims was billed a month or so shy of six-years ago, the parties negotiated for a few years and R subsequently informed C in writing that it rejected the claims as presented.

Cedent C asks Wendy to commence an action against R in the United States District Court for the Southern District of New York. Wendy notes that a statute-of-limitations issue may be looming, as she recalls that New York’s statute of limitations for a breach of contract claim is six years and that it runs from the date of the breach. In light of the potential statute-of-limitations problem, she quickly confirms her understanding outline.

Based on what she remembers and has confirmed about the statute of limitations, and on her limited knowledge of the facts, she reasons that, because the reinsurance contract expressly contemplates that C will present claims through a reinsurance intermediary, the statute of limitations cannot have begun to run at any time prior to C billing R. She does not consider whether the statute of limitations might have begun to run at any earlier time, because R could not have breached the contract at any time prior to C presenting the claims, let alone giving R an opportunity to decide whether to pay them.

So Wendy files and serves C’s complaint within the six-year period as measured from the dates on which C presented the claims. Upon the deadline for responding to the complaint, Reinsurer R, represented by Karen “Cardozo” Iknowlaw, files not an answer but a motion to dismiss on the ground that C’s claims are time barred. Before reading the papers, Wendy’s all-to-quick temper flares and she vows to seek sanctions against Karen, who, in Wendy’s view, obviously knows nothing about the law, let alone the facts.

Is Reinsurer R’s Motion to Dismiss Well-founded?

Wendy quite correctly concluded that C’s suit is for breach of contract and that New York’s breach-of -contract statute of limitations is six years, which is ordinarily calculated from the date of breach.[1] But her analysis was off the mark because she did not ascertain and analyze all the potentially relevant facts and law.

Although as a general rule the contract statute of limitations begins to run at the time of the breach, there is an exception that is particularly pertinent in the reinsurance context, and which is somewhat counterintuitive. Recall that C billed R for the claims nearly six years ago. Wendy’s client did not mention, and Wendy did not ask about, the dates on which the claims were settled and the corresponding dates by which C could reasonably have been expected to present each claim to R. Wendy apparently did not consider this information relevant to the statute of limitations issue, but it can be outcome determinative of it. Continue Reading »

The Great Debate Over Written Claims Guidelines and Procedures

February 18th, 2010 Asbestos-Related Claims, Bad Faith, Claims Guidelines and Procedures, Claims Handling, Claims Spot, Environmental Contamination Claims, Internal Controls, Late Notice, Reinsurance Claims, Utmost Good Faith 1 Comment »

Our friend and fellow Long Islander Marc Lanzkowsky, Founder and Principal of Lanzko Consulting, Inc., recently launched the blog Claims Spot, which discusses and comments on direct, excess and reinsurance-related claims issues.  Marc has done a great job with Claims Spot and, not surprisingly, his blog is drawing some heavy traffic. 

A controversial issue that Marc has been covering is whether or not insurance companies should have in place written claims guidelines and procedures.  One school of thought is fearful of their use (or abuse) by insureds in coverage actions.  For example, a company employee might mistakenly not follow written guidelines and procedures in the course of handling a claim, and a dispute might arise as a result.  The insured will legitimately be able to argue  that the company’s handling of the claim did not comply with its own guidelines and procedures, and that, accordingly, the company mishandled the claim.  Proponents of this view will say that having claims guidelines and procedures is fine as long as they are merely aspirational and not in writing. 

Others advocate the “damned if you do, damned if you don’t” view.  If a large, professional insurer has no written guidelines and procedures, then the insured’s refrain in a coverage or bad faith action will be that the company is grossly negligent because it lacks the internal or external controls necessary to regulate a very significant portion of its business operations.   But if the company has written claims guidelines and procedures, then surely they will come back to haunt it in the event of litigation.  

Others, including Marc, believe the benefits associated with well-drafted and carefully considered claims guidelines and procedures outweigh the costs associated with formulating and implementing them, and, more importantly, whatever costs might be incurred by the insured’s potential use or abuse of the procedures in the event of a dispute.  Drawing on his experience as a lawyer and a claims executive for two major insurance companies, Marc offers assistance to companies that are interested in implementing written claims guidelines and procedures or improving existing ones. 

Marc recently brought the discussion up to the reinsurance level in his post, “Absence of Procedures to Notify Reinsurance is a Basis for Bad Faith.”   He was kind enough to mention what inspired his thoughtful post — an interesting discussion he and I had about the subject not long ago over a delicious sushi and bento box lunch at Misaki — Manhasset, New York’s best (and only) Japanese restaurant. 

As Marc points out there has been law in the Second Circuit for some time stating that a ceding company’s failure to have in place procedures for notifying reinsurers of claims can constitute bad faith, which may relieve a reinsurer of liability for a late-noticed claim without any showing of prejudice.    That is a pretty good argument for having in place written, ceded-claims handling procedures designed to ensure timely notice to reinsurers.    

In the reinsurance-late-notice context the cost-benefit analysis is probably less challenging than it might be in the direct-insurance-bad-faith context.  If the ceding company does not have in place written guidelines and procedures, and cannot establish by credible and consistent testimony the existence of unwritten guidelines and procedures, then, at least in a case pending in court (as opposed to arbitration), the reinsurer may get a “pass” on a claim based on late notice without any showing of prejudice.  (Prejudice has been defined as “tangible economic injury.”)

On the other hand, if the ceding company has written procedures in place, but they are not followed in a given case, then that, in conjunction with other evidence, may establish that notice was late.  But the reinsurer still has to show prejudice to be relieved of liability.   

So in our hypothetical, counsel for the reinsurer may be able to make some hay at a deposition concerning the cedent’s failure to follow its own guidelines and procedures.  But points scored at depositions can be (and in this case are) ephemeral:  without evidence of prejudice, failure to comply with the guidelines is, for all practical purposes, irrelevant.  

In this day and age of internal controls and corporate responsibility, it seems to us that appropriate written claims guidelines and procedures can benefit insurers, cedents and reinsurers, provided they are carefully drafted, implemented and managed.  We offer the following, very general and non-exclusive list of things companies might consider:   

1.  If written claims procedures are to be adopted and implemented they should be carefully prepared by claims experts and reviewed by experienced counsel.   Poorly drafted and ill-conceived written claims procedures are probably worse than none at all. 

2. Careful thought should be given to privilege issues associated with in-house or outside attorney review of draft guidelines and the involvement of counsel in other aspects of the drafting and implementation process.   The process should be carefully managed and attention should be paid to the company’s document retention policies as respects the maintenance or destruction of drafts.   Remember, in a future litigation or arbitration the insured’s attorneys will likely request prior drafts and depositions of all involved in the preparation and implementation process.  While the insured may or may not be successful in obtaining all the discovery it seeks, it will likely get at least some of it.  

3.  Written claims procedures should be drafted to confer upon claims personnel an appropriate degree of discretion where such discretion is appropriate.   Locking adjusters into particular claims positions without regard to the facts, circumstances and practical realities can cause a myriad of problems. 

4.  To the extent claims procedures provide a certain period of time within which a particular action must be taken, and to the extent that the period is not an inflexible one provided by law or contract, flexibility should be built in to account for minor delays caused by special circumstances or the press of business.   

5.  If written claims guidelines and procedures are to be adopted, the company should ensure claims personnel take them very seriously and do their best to abide by them at all times.   

6.  Written claims procedures should be subject to periodic review by in-house counsel and the claims department to ensure that they comply with current legislation and recent case law developments. 

7.  Outside counsel handling coverage or other, claims-related matters for the company should keep the company’s general counsel apprised of any problems that might be caused or exacerbated by written guidelines and procedures.