SIXTH ANNUAL SYMPOSIUM OCTOBER 2, 2014 BUSINESS MATTERS
SIXTH ANNUAL SYMPOSIUM OCTOBER 2, 2014 BUSINESS MATTERS H A RVA R D C LU B B A C K B AY B O S T O N, M A S S A C H U S E TT S THANK YOU TO OUR SPONSORS Disclaimer
Todays symposium presentations are for educational purposes only. The views expressed by the panelists are their own, and are stated in the context of this educational program. The views expressed do not represent the views of their respective companies, customers, law firms, or clients. The New Reinsurance
Dispute Landscape ROBERT W. HAMMESFAHR HWR CONSULTING LLC Reinsurance Works Capital: Balance Sheet and Earning Protection Risk Transfer
Knowledge Support re Underwriting, Pricing/ Reserving, Claims Arbitrage Regulatory Tax, Currency, Interest Rates Risk Valuation
Key Reinsurance Industry Facts Insurance Premiums: $4.6 trillion 56.8% life/43.2% non-life 82.7% Developed and 17.3% Emerging Source: III August 2014 US Insurance Jobs: 2.4 million
Reinsurance: 27,200 Source: US Bureau of Labor Statistics May 2014 as reported in Bests Review Key Reinsurance Facts Continued Global Reinsurance Revenue: $591 bn (2013) Projected R/I Revenue: $873 bn (2018) Growth: 6.3% to 8% (Excess of GNP Growth?)
Employment Worldwide: 344,000 Number of Reinsurance businesses: 10,920 Products: 1. Life, 2. Accident, Health & Medical, 3. Property and Casualty, Surety & Title, Investment Assets Key Reinsurance Facts Continued Key Reinsurers: Big four: Berkshire, Munich Re, Swiss Re, Hannover Re
Other Large European: Lloyds, SCOR, Partner Re, Ace, XL Asian: China Re, Korean Re, Tao Re, Japanese Bermuda Reinsurers US Reinsurers: RGA Key Reinsurance Facts Continued Total Reinsurance Capital: $540bn ($316bn
or 58% is property cat) Growth of Alternative Capital: $50bn or 14% of $540bn and $40bn or 19% of $316bn) Alternative capital is transforming market and pushing down prices III August 2014 If 2% of $7 trillion of private pension funds invests in AC, AC will be increase to $140 bn ROI of AC: 5% - 8% versus traditional 8% 10% and distress returns of 12%-20%
Nat Cat Losses: 16 US - $231 and 5 Non-US - $84.5 All number Billions Industry, Liability and Service Trends Industry Trends: Offshoring of Reinsurance Hedge Fund Reinsurance: The Float Alternative Capital: Bond Rate Return Model Liability Trends Impact of Economic Crisis and ACA
New Risks Rise of Mediation and ADR Delivery of Services Internet Impact: Transparency, Speed, Decision Maker Model Deconstruction of Reinsurance Data analysis/software tools and new loss models Reinsurance Law Contract Law
Reasonable Expectations v. Strict Construction Source of Decisions, Treaties, Industry Publications, Mock Decisions, Market Practice Follow the Fortunes ARIAS versus UK Arbitrations/Litigation Role of Custom and Practice Lessons Learned Legal Assumptions
Civil versus Anglo Saxon law
Independence/Strength of Judiciary and Bar Common law v. Code Advocacy v. Inquisition legal system Discovery Cultural issues: compensation, negotiation and other expectations Languages Role of academics, economists and business
Lesson Learned continued WTC Subprime Economic Losses California Wildfires KRW Asian Nat Cats Deepwater Pollution/Asbestos/Health Hazard (APH) Reinsurance Dispute Drivers
Objections to Underlying Settlements Recovery after Settlement UK v. US Settlement to avoid criminal fines Misrepresentation and Fraud Disclosure Requirements UK v. US Discovery
Improper Accumulations NatCat versus asbestos Five Claim Predictions Attacks on Neutrality of Arbitration Panels Use of Reinsurance Custom and Practice Focus on Venue and Law Selection Reliance on ADR Rise of New Emerging Risks and Markets
Conclusion New dispute patterns are emerging Legal strategies and tactics really impact loss size and timing Reinsurance claims professionalism is key to industry Reinsurers needs to embrace new risks and
client needs SIXTH ANNUAL SYMPOSIUM OCTOBER 2, 2014 BUSINESS MATTERS H A RVA R D C LU B B A C K B AY B O S T O N, M A S S A C H U S E TT S Developments in Property
Reinsurance PA N E L I S T S : A L E XA N DE R G. HE N L I N E D WA R D S W I L D M A N PA L M E R L L P KRISTIN SUGA HERES ZELLE HOFMANN VOELBEL & MASON LLP JOHN H. PHILLIPS G E N E R A L R E I N S U R A N C E C O M PA N Y
STEPHEN ZERA A I G P R O P E R T Y C A S U A LT Y Disclaimer Todays symposium presentation is for educational purposes only. The views expressed by the panelists are their own, and are stated in the context of this educational
program. The views expressed do not represent the views of their respective companies, customers, law firms, or clients. Developments in Property Reinsurance INSURANCE AND REINSURANCE IN THE AGE OF ECONOMIC SANCTIONS Economic and Trade Sanctions
Economic and trade sanctions have long been used to advance foreign policy goals. The U.S. and other countries/EU are increasingly using sanctions to manage threats to their security, foreign policy, and economies. Office of Foreign Assets Control (OFAC) BNP Paribas: A Cautionary Tale BNP faced criminal charges for decade-long
conspiracy to evade U.S. trade sanctions Agreed to pay a record $8.9 BILLION penalty Takeaway: There are real consequences for ignoring sanctions. In the good old days, things were
simple. States and persons targeted by sanctions were well known, providing insurers with some level of predictability when evaluating and underwriting risks (e.g., Cuba, Iran). Today, the playing field has changed. The United States ever-expanding
sanctions programs and lists of Specially Designated Nationals (SDNs) present new challenges for insurers and reinsurers. Russian oligarchs Emerging terrorist groups
What does this mean for insurers/reinsurers? Many entities with whom business was done routinely are now off-limits. Entire books of business called into question. Increased diligence required at all stages: Underwriting: Can we issue this policy?
Claims: Can we adjust this loss? Payment: Can we pay out on this loss? Can U.S. insurers remain competitive? But theres more! In addition to sanctions imposed by the U.S., companies must worry about sanctions imposed by other countries and economic communities (e.g., EU).
There are significant variations among the sanctions imposed Between a block and a hard place Some countries have blocking statutes or regulations that forbid compliance with certain U.S. sanctions (e.g., Cuba-focused sanctions). This puts some insurers in a tough position:
comply with U.S. sanctions programs or face penalties in another (perhaps their home) country. What can we do? Stay in the know when it comes to sanctions
OFAC website: http://www.treasury.gov/resourcecenter/sanctions/Pages/regulations.aspx Check and recheck . . . and check again Use appropriate policy language Exclusions Geographical limitations Developments in Property Reinsurance THE RISKS OF
R E G U L AT O R Y U N C E R TA I N T Y Emergence Brought to the fore by Superstorm Sandy: New Jersey Executive Order 107
Pronouncements from the New York Department of Financial Services Domestic Developments New York Insurance Circular Letter No. 8 October 28, 2013 http://www.dfs.ny.gov/insurance/circltr/2013/ cl2013_08.pdf International Developments
The Canterbury/Christchurch Earthquakes Canterbury Earthquake September 4, 2010 (7.1 magnitude) Christchurch Earthquakes
February 22, 2011 (7.1 magnitude) June 13, 2011 (6.4 magnitude) International Developments The Canterbury/Christchurch Earthquakes
International Developments Reinsurance in place, but Rates rose heavily New reserving rules and regulations Implications for
Loss modeling Adjustment of loss Concerns about nationalization Developments in Property Reinsurance T H E U N C E RTA I N F U T U R E O F T R I A
Status of TRIAs renewal Terrorism Risk Insurance Act (TRIA) Initially passed in 2002 Renewed in 2005 and 2007 Set to expire on
12/31/14 Competing Bills Looks like TRIA renewal will happen . . . eventually. The U.S. Senate passed a bill approving TRIAs renewal in July.
The House had passed its own bill in June, but has not yet responded to the Senates bill with a new one of its own. Senate and House bills must be reconciled. Sticking Points Length of renewal Program bifurcation for nuclear, biological,
chemical, or radiological attacks Insurer co-pay percentages Program trigger points Developments in Property Reinsurance B A D FA I T H A S A N E L E M E N T O F PROPERTY CLAIMS Origins
Bad faith has long been an element of casualty claims More recent development in world of property claims
Katrina Rita Wilma Bi-Economy Market, Inc. v. Harleysville Ins. Co. of New York, 10 N.Y.3d 187, 886 N.E.2d 127 (2008) Developments
Case Law Jane Street Holding LLC v. Aspen Am. Ins. Co., 2014 WL 28600 (S.D.N.Y. Jan. 2, 2014) Travel Re-Insurance Partners, Ltd. v. Liberty Travel, 2012 WL 1623855 (D.N.J. May 9, 2012)
Implications? Code Upgrades Direct Claims
Reinsurance Developments in Property Reinsurance R I G H T T O A S S O C I AT E & ACCESS TO RECORDS Developments in Property Reinsurance S U P P LY C H A I N R I S K
Developments in Property Reinsurance W E AT H E R R I S K Final Thoughts SIXTH ANNUAL SYMPOSIUM OCTOBER 2, 2014 BUSINESS MATTERS
H A RVA R D C LU B B A C K B AY B O S T O N, M A S S A C H U S E TT S LIABILITY UPDATE A PA N E L D I S C U S S I O N Our Esteemed Panel Randy Leffelman
Munich Re (Chicago) Bill Perry Carter Perry Bailey (London) Jason T. Verdone The Hartford Cyber Liability and Data Breach
H E R E T O S TAY O R T H E N E X T Y 2 K ? Recent Examples J. Law The Facts Cyber liability and data breach issues are
here to stay Data breaches increased 20.5% during first six months of 2014 (Identity Theft Resource Center) Home Depot and Target alone involved some 80 Million customers
The Facts It is not a matter of if, but when the company is likely to the hacked. Advanced Persistent Threats (APTs)
Advanced sophisticated & organized attacks Advanced Specific targeted attacks
Persistent Lateral movement Persistent Maintains access to compromised infrastructure Threats Extraction of personal information Threats Attacks against critical infrastructure Threats Industrial espionage/sabotage Governments, Organized Crime, Hacktivists, Insiders
What are the Issues for Insurers and Reinsurers? Traditional Wisdom Case law involving cyber-liability has largely focused on coverage under general liability policies. But coverage case law will begin to develop as cyber claims are litigated under cyber liability
forms Sony (PlayStation) sought coverage under CGL in a NY court further raising awareness for the need for separate enumerated coverage (cyber) Untested legal environment that varies from jurisdiction to jurisdiction Unsettled legislative environment GL Issues
Coverage A Is there physical damage to tangible property Electronic data exclusions
What if there is damage to the system itself instead of just data theft GL Issues Coverage B Personal and advertising injury
oral or written publication, in any manner, of material that violates a persons right of privacy Is There a Publication? Zurich v. Sony Corp. Hackers stole personal information
Sony: Unauthorized use = publication Zurich: Must be the actions of the insured to constitute a potentially covered publication New York Trial Court ZURICH WINS
But certainly not going to be the end of the case or the debate. Restrictions on GL Coverage When in doubt, exclude it. 2014 ISO form Access or Disclosure of Confidential or Personal Information Exclusion
The Wording Coverage B excludes: Personal and advertising injury arising out of any access to or disclosure of any persons or organizations confidential or personal information, including patents, trade secrets, processing methods, customer lists, financial
information, credit card information, health information or any other type of nonpublic information. Excluded Damages This exclusion applies even if damages are claimed for notification costs, credit monitoring expenses, forensic expenses,
public relations expenses, or any other loss, cost or expense incurred by you or others arising out of any access to or disclosure of any persons or organizations confidential or personal information. Define It With respect to Coverage B Personal and
Advertising Injury Liability, paragraph 14.e of the Definitions section does not apply. April 2013 ISO form. The Market Cyber insurance market is big and getting much bigger
Cyber insurance market is expected to grow to as much as $2B 77% of midsize-to-large companies plan to purchase cyber insurance within the next 12 months (MRe) Other policies can be implicated:
Cyber/Network/Privacy Liability Directors and Officers (including shareholder derivative suits filed on the companys behalf) Errors and Omissions Commercial Crime CGL
Solutions Cyber liability policy forms vary greatly and cover a variety of first party and third-party risks Vendors may be required to purchase cyber insurance as underwriters look into the risk management
controls of the entire supply chain. First Party Cover 1st Party
Data breach, security failure Loss of income/business/network interruption Data loss, hardware damage Forensic investigations, hardening of systems Notice/response costs, crisis management Cyber Extortion
Third Party Cover 3rd Party
Data breach and network security failure Breach of privacy/regulations Negligence, breach of contract, Indemnity Media/multimedia liability Infections of 3rd party systems Other categories of costsunlimited!!
The Future Internet of Things (IoT) technology that relies on sensors to collect data and can be transmitted for analysis and real time updates; Internet of Everything (IoE) the networked connection of people, processes, data and things
Concern for insurance/reinsurance will be ever expanding use and greater potential for disruption in the marketplace Reinsurer Beware What is the exposure of your ceded risks? Who are you reinsuring? Are certain categories of business more
vulnerable than others? What forms are they usingconsistency of coverage Class Action Update US MarketCyber???
United Kingdom and Europe Employer Liability What are the new employment claims? Getting around the WC bar/Exclusive remedy doctrine Insurer responses
Folta v. Ferro Eng., 14 N.E.3d 717 (Ill. App. 2014) Exclusivity provisions of Illinois WC Act do not bar claim against former employer for asbestos-related diseases Worked at plant from 1966 to 1970 Diagnosed with meso 41 years later
Exceptions to the Bar Injury not accidental Injury did not arise from employment Injury not received during course of employment Injury not compensable under the Act
The Courts Answer Not compensable under the Act because: Diagnosis was 41 years after employment and thus long after the 15 year statute of repose
Long after 3 year statute of repose in Illinois Workers Occupational Disease Act The Court Observed Through no fault of his own, plaintiff never had an opportunity to seek compensation under the Act. Thus, his injury was not compensable
Walston v. Boeing, 2014 WL 4648090 (Sept. 18, 2014) Exception to WC bar where employer deliberately injures employee Operative test is whether the employer had actual knowledge that an injury was certain
to occur and willfully disregards that knowledge A Matter of Proof Walston worked at Boeing 1956 to 1995 (lots of asbestos around) Specific incident of exposure in 1985 Failed to show that Boeing had knowledge
that injury was certain to occur. Employer Liability What are the implications for the reinsurer? Social Media #MREBAPanel2
Twitter, Facebook, Instagram New Exposures Employment Cyber-torts But if it isnt private? Predictive Modeling
A new tool for the future The Gloves are Off! Cant We Just Get Along? New Exposures Mean New Problems How is the dialogue evolving Are there are potential solutions Cedent v. Reinsurer
Claim Administration Increased level of scrutiny by reinsurers Impact on the ceding companies Focus on GL/AL cases More claims oriented than accounting Why Now? Internal pressure on reinsurers:
Reserving Cash Flow Amount/accuracy of claim data Underwriting modeling and pricing New Requirements
The Dreaded Audit Scheduling Level of documentation Scope of access to records
Does it Ever End? Claim files? Underwriting files? Legal files? Paper or electronic? Privilege issues? Confidentiality? Copying Impacts
Schedule F concerns More documents More follow up More pressure on brokers The Buck Stops Here The Impacts
SLOWER Payments Internal pressure to collect Reduce turnaround time between direct payment and reinsurer reimbursement Any solutions? Electronic communications Improved data
ACCORD messaging Web portals Secure system access Questions and Comments Randy Leffelman Jason Verdone Bill Perry John Harding
And Dont Forget #MREBA PANEL 2 Many Thanks. SIXTH ANNUAL SYMPOSIUM OCTOBER 2, 2014 BUSINESS MATTERS H A RVA R D C LU B
B A C K B AY B O S T O N, M A S S A C H U S E TT S THE INTERMEDIARYS PERSPECTIVE on Program and Placement Trends, and Dealing with Disputes PA N E L I S T S J O H N C H A P L I N , C O M PA S S R E I N S U R A N C E C O N S U LT I N G D AV E M A C I N T O S H , A O N B E N F I E L D M AT T S TA N W O O D , J LT T O W E R S R E
M I K E M U L L I N S , D AY P I T N E Y M O D E R AT O R SUSA N H ARTN ETT , SUG AR M AN R OG ER S reinsurance intermediaries Brokers who act as intermediaries between reinsurers and ceding companies. For the reinsurer, intermediaries operate as an outside sales force. They also act as advisers to ceding companies in assessing and locating
markets that meet their reinsurance needs. IRMI.com Intermediary A reinsurance broker who negotiates contracts of reinsurance on behalf of the reinsured, receiving a commission for placement and other services rendered. Under the terms of one widely used intermediary clause, premiums paid a broker by a reinsured are
considered paid to the reinsurer, but loss payments and other funds (such as premium adjustments) paid a broker by a reinsurer are not considered paid to the reinsured until actually received by the reinsured. Guycarp.com Key Functions Performed by Reinsurance Intermediaries
Developing Reinsurance Programs on Behalf of Ceding Companies Understanding the ceding companys goals Understanding risk being reinsured Perform catastrophe and other modeling for clients Evaluate the most cost effective means to achieve the ceding companys financial objectives (i.e. Traditional Market or Capital Market)
Emerging Risks and Modeling Key Functions Performed by Reinsurance Intermediaries Placing Reinsurance on Behalf of a Ceding Company
Client Advocate Understanding the market Evaluating market security Educating reinsurers about the ceding company and program and securing participation Key Functions Performed by Reinsurance
Intermediaries Placing Reinsurance on Behalf of a Ceding Company
Negotiating terms and conditions of coverage, which includes obtaining ceding companys approval of terms and conditions prior to going to market Identifying the brokers compensation and obtain ceding companys approval of compensation prior to binding lines Contract drafting expertise Reinsurance Intermediaries should
seek to keep their clients informed and aware of all of the available options in contract wording. Key Functions Performed by Reinsurance Intermediaries Administering the Reinsurance Contracts
Acting as the conduit for information Collecting and transferring premium, commissions and handling claims information (i.e. tracking reserves and transferring loss payments) Managing the relationship to avoid disputes And if Disputes Between Cedents and Reinsurers Cant Be Avoided . . . Is the intermediary
caught in the middle? Disputes Between Cedents and Reinsurers Whose agent is the intermediary? Disputes Between Cedents and Reinsurers Arbitration/Litigation subpoenas and
document requests where are those old contract files, anyway? The Intermediarys Perspective: Topic for Discussion Is the business of reinsurance changing? What are the key drivers in the
purchase and placement of reinsurance today? What are cedents goals in todays market? What does the market look like? What risks are being reinsured and how? Is the brokers role changing? How may this impact parties down the road? Traditional Functions of Reinsurance
Finance The Company can write more business Stabilization The Company can reduce fluctuations in results from year to year
Capacity The Company can write larger policies Catastrophe The Company can protect itself from a major loss occurrence
MReBAs Sixth Annual Symposium Business Matters Industry Trends in 2014 October 2, 2014 Prepared by Aon Benfield Legal Disclaimer Davids comments are his alone and may or may not be representative of Aon Benfields
position or point of view. State of The Market The global reinsurance market is in the depths of a tough market cycle. Intense market competition, sluggish cedent demand, in addition to the onslaught of alternative capital, which is anticipated to drive down prices even further, have been cited as the main contributing reasons for the downgrade market outlook from stable to negative from all leading rating agencies. Swiss Res CUO Matt Weber, at Monte Carlo Rendezvous The traditional reinsurance model is not just under threat from alternative capital, insurance linked
securities (ILS) and capital market investors, but also from external sources, such as corporations and technology companies that could become substitute providers of risk protection. S&P (a) high volume of catastrophe bonds coupled with 11 sidecar transactions totaling $1.4 billion and collateralized reinsurance vehicles, allowed alternative capital to capture approximately a 20 percent market share of property catastrophe reinsurance volume in the 12 month period leading up to June 30, 2014 - Aon Benfields, Capital Revolution Alternative Markets Fuel Dynamic Environment the broadening of investment by ILS investors further eats into the territory of traditional
reinsurers, which forces them to shift capacity to other lines of business where demand can be stagnant. - Moodys Vice President and Senior Credit Officer Kevin Lee, at a recent London press conference The pressure on reinsurance pricing is so intense that it would take two simultaneous shock scenarios to turn rates upward again. - S&P Reinsurance Supply Evolution Continues Global reinsurer capital continued to increase in Q2 2014, up USD15 billion from Q1 to
USD570 billion, and up USD 30 billion, or 6 per cent from year end 2013. Capital market investors participation continues to expand Pricing effect of ongoing convergence is testing the ability of traditional capacity providers to adapt to the changing market environment Source: Individual company reports, Aon Benfield Analytics Bond and Collateralized Market Development Non-traditional market capital has increased 18 percent since year end 2013 to USD58.6 billion
All segments have seen strong increases in 2014 with collateralized ILW capacity up nearly 100 percent to USD3.5 billion Source: Aon Benfield Securities, Inc. Catastrophe Bond Issuance by Year, 2005 to 2014 (Years ending June 30) Source: Aon Benfield Securities, Inc.
Form of Transaction Source: Aon Benfield, Aon Benfield Securities, Inc. An Intermediarys Role In Arbitration Topics For Discussion Background | The Intermediary Clause Panel Subpoenas | The FAA
Intermediaries As Arbitration Parties Intermediary Clause (1) (Intermediary Name) is hereby recognized as the Intermediary negotiating this Contract for all business hereunder. All communicationsrelating thereto shall be transmitted to the Company or the Reinsurer through (Intermediary Name and Address).
Brokers & Reinsurance Markets Assoc., Clause 23A The Intermediary Clause Intermediary as Conduit of Information Intermediary Clause (2) Payments by the Company to the Intermediary shall be deemed to constitute
payment to the Reinsurer. Payments by the Reinsurer to the Intermediary shall be deemed to constitute payment to the Company only to the extent that such payments are actually received by the Company. Brokers & Reinsurance Markets Assoc., Clause 23A The Intermediary Clause
Intermediary as Conduit of Information Intermediary as Holder of Funds Premium Dollars Flowing From Cedent Claim Dollars Flowing From Reinsurer Credit Risk of Intermediary In re: Pritchard & Baird, Inc.,
8 B.R. 265 (D. N.J. 1980) affirmed 673 F.2d 1299 (3d Cir. 1981) Intermediary Clause (2) Payments by the Company to the Intermediary shall be deemed to constitute payment to the Reinsurer. Payments by the Reinsurer to the Intermediary shall be deemed to constitute
payment to the Company only to the extent that such payments are actually received by the Company. Brokers & Reinsurance Markets Assoc., Clause 23A Intermediary Clause (1) (Intermediary Name) is hereby recognized as the Intermediary negotiating this Contract for all business hereunder.
All communicationsrelating thereto shall be transmitted to the Company or the Reinsurer through (Intermediary Name and Address). Brokers & Reinsurance Markets Assoc., Clause 23A Panel Subpoenas The arbitrators may summon in writing any person to attend before them or any of
them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case. 9 USCS 7 Panel Subpoenas Available Legal Arguments Business Considerations
Current Clients Former Clients, Active In The Market Former Clients In Runoff Intermediary As Arbitration Party
International Ins. Agency Services, LLC, 2007 U.S. Dist. LEXIS 22229 (N.D Ill. 2007) THANK YOU TO OUR SPONSORS MReBA SUSTAINING MEMBER FIRMS
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