Part I of a Two-Part Post
Introduction
Effective October 1, 2009 the House of Lords will be replaced by the Supreme Court of the United Kingdom (more information here). In what may be among its last official acts, on July 30, 2009 the House decided an important reinsurance case concerning the scope of a reinsurer’s indemnity obligation to a U.S. cedent under English law. See Lexington Insurance Co. v. AGF Insurance Co. [2009] UKHL 40. The reinsurance contract was back-to-back with the reinsured policy in all but one respect: it was governed by English law, while the insurance policy was, in the event of coverage litigation, potentially subject to the laws of any number of U.S. jurisdictions, depending on venue, applicable choice of law rules and other considerations. Relying on a long-line of English law precedent, and distinguishing other precedent, the House ruled that a proportional facultative reinsurer was not obligated to indemnify the cedent for the reinsurer’s share of the entire amount of a judgment a state court in Washington rendered against the cedent. The judgment resulted from a Washington Supreme Court decision which, applying Pennsylvania law, ruled that the cedent was jointly and severally liable under its policy for property damage caused by environmental contamination that occurred before, during and after the cedent’s three-year policy period. The House said that, judgment or no judgment, the reinsurer agreed to reinsure only loss or damage occurring during the coterminous, three-year period of the reinsurance contract, and the reinsurer’s obligation was limited to its share of that loss.
The House’s decision is likely to be controversial. In this Part I of a two-part post, we shall discuss the controversy and seek to allay it a bit. In Part II we’ll walk the reader through that reasoning and offer some parting comments.
The Controversy
Complex environmental-contamination and asbestos-related claims are anything if not costly. American insurers have been fighting an expensive, multi-front war with their insureds for many years over the scope and extent of their liability for these claims. They raise a myriad of issues and are potentially governed by the laws of at least fifty different jurisdictions (some sympathetic to insurers, some not). These jurisdictions have adopted different approaches to resolving the issues (some favorable to insurers, some not), which means that no matter where may be the venue, complex choice-of-law questions are likely to arise. And the coverage actions usually involve multiple insurers, sites, claimants, years of coverage, and layers of coverage. The amount at stake and the concomitant expense can be staggering. For the most part, these claims and coverage disputes — let alone how some courts might resolve them — could not reasonably have been anticipated at the time when most of the occurrence policies on which they arose were written (generally prior to 1980 and sometimes going back to the 1930s). Continue Reading »
