UPDATE: SECOND CIRCUIT REMANDS REINSURANCE LIMITS DISPUTE

In the latest opinion emanating from a high-profile reinsurance case that we have been chronicling in this blog, the United States Court of Appeals for the Second Circuit recently vacated a district court’s ruling premised upon the so-called “ Bellefonte rule” applied in reinsurance law, and directed the district court to reassess the facultative reinsurance certificates at issue based on standard rules of contract interpretation.   Global Reinsurance Corp. v. Century Indem. Co. , No. 15-2164, 2018 U.S. App. LEXIS 12121 (2d Cir. May 9, 2018). Our blog posts on prior rulings in this matter can be found here and here .   To briefly recap, Global Re arose from a summary judgment ruling in which the underlying district court, relying largely upon the Second Circuit’s seminal decisions in Bellefonte Reinsurance Co. v. Aetna Casualty & Surety Co., 903 F.2d 910 (2d Cir. 1990) and Unigard Security Ins. Co., Inc. v. North River Ins. Co. , 4 F.3d 1049 (2d Cir. 1993), held that the reinsurer was not obligated to pay defense expenses billed by the cedent over and above the amounts set forth in the “reinsurance accepted” clauses of the facultative certificates at issue.  On appeal, the Second Circuit issued an initial opinion in which it undertook a detailed re-examination of its prior holdings in Bellefonte and Unigard .   The court specifically called into question the Bellefonte court’s conclusion that the reinsurance certificate in that case “unambiguously capped the reinsurer’s liability for both loss and expenses.”   The...
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Updates on The Right to Independent Counsel and Bellefonte Reinsurance Rule

This will serve as an update on two significant decisions in the insurance coverage and reinsurance arenas that we blogged about last year:  (1) Mount Vernon Fire Insurance Company v. Visionaid Inc. , in which the Massachusetts Supreme Judicial Court, answering certified questions from the First Circuit Court of Appeals, found that an insurer’s duty to defend does not include the duty to pay for the prosecution of counterclaims; and (2)  Global Reinsurance Corp. of America v. Century Indemnity Co. , where the Second Circuit Court of Appeals certified a question to the New York Court of Appeals pertaining to the so-called “ Bellefonte rule” applied in reinsurance law.  Click here for our prior post on Global Re  and here for our prior post on Visionaid.   Recently, the First Circuit returned to Visionaid to resolve the sole remaining issue involving the insured’s claimed right to independent counsel.  In an entertaining opinion replete with humorous asides (“[t]he case pits an insured … against its employment-practices liability insurer (say that ten times fast!)”), the court ruled that there was no conflict of interest between the parties justifying the appointment of independent counsel to defend the insured at the insurer’s expense.  And in Global Re , the New York Court of Appeals answered the Bellefonte -related certified question posed by the Second Circuit, finding that there was no presumption or rule of construction imposing a cap which limits the total amount of reinsurance available under a facultative reinsurance certificate.  We delve into...
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RLB Law Group client Andrew Stewart Recently Spoke Out About His Ongoing Case.

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“The families and their lawyers describe a succession of roadblocks as they try to claim payouts, from as little as a few thousand dollars to potentially several million dollars, to help thousands of retired players left mentally infirm, in some cases severely, from years of hits and tackles on the league’s fields.” – The New York Times
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Venturing Into to the World of Pennsylvania’s Wage Payment and Collection Law: Employees Can Recover Prejudgment Interest and Liquidated Damages

The Pennsylvania Supreme Court recently refused to hear an appeal from a venture capital group that had been disappointed by the Superior Court’s en banc decision that a former employee was owed liquidated damages in addition to the $1.26 million already awarded in a compensation dispute.   The case is Andrews v. Cross Atl. Capital Partners, and it is an important case for employers and employees whose compensation packages are tied to equity or otherwise subject to a contract.   Before Andrews , there was an open question in Pennsylvania whether a prevailing employee could recover a 25% liquidated damages penalty under Pennsylvania’s Wage Payment and Collection Law (“WPCL”) and prejudgment interest on the amount of unpaid compensation.   Andrews answered that question in favor of the employee, ruling that in a breach of contract case, an employee can recover both.  Nicholas Andrews worked for Cross Atlantic Capital Partners, Inc. (“Cross Atlantic”) from 1999 to 2000.   Andrews was hired to find, negotiate, and manage investments for Cross Atlantic.   The ultimate goal for Cross Atlantic was to sell the investments at a price that was sufficient to repay its investors and to allow both the investors and Cross Atlantic to realize a profit.   Compensation for Andrews was deferred until the investment funds became sufficiently profitable to make distributions.   Andrews did not have a written employment agreement and his employment ended before the funds he was involved with were sold.   Upon his departure, Andrews entered into a...
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Court Finds No Coverage For Prosecuting Counterclaims

The Massachusetts Supreme Judicial Court recently weighed in on the perennial issue of whether an insurer’s obligation to defend extends to the prosecution of counterclaims on behalf of the insured.  In Mount Vernon Fire Insurance Co. v. Visionaid, Inc., 477 Mass. 343 (2017), the state’s highest court ruled that the duty to defend does not require insurers to fund an insured’s counterclaim, even when it may be intertwined with the defense of a covered claim. The insurer in Visionaid issued an employment practices liability policy to the insured, a manufacturer of lens cleaning and eye safety products.   Under this “claims-made” policy, the insurer had a right and duty to defend, and was obligated to pay 100% of the defense costs for a covered claim.  In the underlying suit, a former employee sued the insured for wrongful termination based on age discrimination.  The insured, in turn, accused the then-employee of misappropriating funds.  The insurer agreed to defend the case subject to a reservation of rights, and appointed panel counsel.  The insured subsequently requested that the insurer pursue and fund a counterclaim for the alleged embezzlement.  The insurer declined to do so, contending that the policy did not require it to prosecute the counterclaim.  The insured countered that the insurer’s position created a conflict of interest justifying the appointment of independent counsel, at the insurer’s expense. The insurer filed a declaratory judgment action in Massachusetts federal district court seeking a ruling that it was not obligated to assert or fund the...
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Southern District of New York Vacates Reinsurance Arbitration Award Based Upon Party Arbitrator Bias and Non-Disclosure

The United States District Court for the Southern District of New York recently vacated an arbitration award against reinsurers based upon the “evident partiality” of the cedent’s party-appointed arbitrator in failing to disclose his significant contacts and relationships with the cedent and its principals.  Certain Underwriting Members at Lloyd’s of London v. Insurance Company of the Americas , No. 16-CV-323 (VSB) and Certain Underwriting Members at Lloyd’s, London Subscribing to Treaty No. 0272/04 v. Insurance Company of the Americas , No. 16-CV-374 (VSB) (S.D.N.Y. March 31, 2017).  Rosenthal Lurie & Broudy represented the Treaty No. 0272/04 underwriters (hereinafter referred to as the “third-layer reinsurers”) in these consolidated matters. The underlying arbitration proceeding involved a dispute as to whether coverage existed for two workers’ compensation claims under a clash catastrophe excess of loss reinsurance agreement.  The arbitration panel consisted of three arbitrators, one appointed by the cedent, another appointed by the first and second-layer reinsurers, and an umpire.  After a four-day hearing, the arbitration panel found in favor of the cedent.  The first and second-layer reinsurers were ordered to pay alleged losses of more than $2.5 million.  In addition, the award provided that in the event one of the claims exceeded $5 million, the third-layer reinsurers would be liable under a separate reinsurance agreement. The first and second-layer reinsurers subsequently filed a motion to vacate the arbitration award in the Southern District of New York, followed by a separate motion to vacate or modify the award by the third-layer reinsurers.  The...
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IS IT BECOMING FASHIONABLE TO CHALLENGE NON-COMPETE AGREEMENTS?

Non-compete agreements are a common way employers seek to prevent key employees from leaving and taking away business.  Employees naturally chafe at the restrictions, but courts have stayed on trend in generally enforcing agreements if the terms are clear and the scope and duration are reasonable.  So, an employer can relax and not worry about litigation, right?  Not so fast.  A recent dispute in the fashion industry shows that an employer seeking to enforce even a well-tailored non-compete agreement may find its own conduct subject to scrutiny.  In February 2016, designer Laura Kim and a co-designer joined the Carolina Herrera fashion house following a twelve-year career with Oscar de la Renta (“ODLR”).  Herrera and ODLR are fierce rivals, so it must have been a coup for Herrera to have Kim join the team.  Kim’s employment contract with Herrera included a six-month non-compete agreement.  Here’s the key language: During your employment, and for six months after leaving the employment of the Company for any reason, you will be required not to engage in, directly or indirectly, any business in competition with the business carried on by the Company.  If the Company elects to enforce this provision and you have not received or will not otherwise receive severance payment from the Company, the Company will pay you during the six-month period of this provision a monthly payment at the rate of 50% of your monthly base salary as of the date of your termination. According to Herrera, Carolina Herrera (the person) specifically...
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NINTH CIRCUIT FINDS NO COVERAGE FOR FDIC CLAIMS UNDER D&O POLICY

In recent years, the Federal Deposit Insurance Corporation (“FDIC”), acting as a receiver, has filed numerous lawsuits against the former directors and officers of banks which failed during the course of the global financial crisis.  These suits generally contend that the alleged malfeasance of the directors and officers at the time led to the banks’ downfall.  A key and frequent issue emanating from these cases is whether the banks’ Directors & Officers (“D&O”) liability insurance policies provide coverage for such losses.  The United States Court of Appeals for the Ninth Circuit recently considered this issue, finding that a so-called “insured-versus-insured” exclusion contained in a D&O policy unambiguously barred coverage for the FDIC’s claims. In Federal Deposit Insurance Corp. v. BancInsure, Inc. , 2017 U.S. App. LEXIS 452 (9 th Cir. Jan. 10, 2017), the FDIC, acting in its capacity as receiver of the failed Security Pacific Bank (“Security Pacific”), filed a declaratory judgment action against its D&O carrier, BancInsure, seeking coverage for losses arising from the former directors’ and officers’ alleged negligence, gross negligence and breach of fiduciary duty.   BancInsure argued that coverage was barred by the D&O policy’s “insured-versus-insured” exclusion, which precluded coverage for claims brought “by, or on behalf of, or at the behest of” Security Pacific, a person insured under the policy, or any “successor, trustee, assignee or receiver”.  The FDIC countered that an exception for shareholder derivative suits set forth in the exclusion applied since its claims were similar to those asserted in such suits, and...
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NEW YORK HIGH COURT TO HELP DECIDE FATE OF IMPORTANT REINSURANCE DOCTRINE

In the latest twist regarding the efficacy of the so-called “ Bellefonte ” rule applied in reinsurance law, the United States Court of Appeals for the Second Circuit has asked the New York Court of Appeals, the state’s highest court, to weigh in on whether there is a hard “cap” on the amount of combined “losses” and “expenses” that a reinsurer may be obligated to pay under a facultative reinsurance certificate even when the reinsured policy paid defense expenses outside of limits. In Global Reinsurance Corp. v. Century Indem. Co. , No. 15-2164 (2d Cir. Dec. 8, 2016), the cedent claimed in the underlying federal district court action that the reinsurer was obligated to pay a share of more than $60 million in defense expenses incurred in connection with thousands of underlying asbestos bodily injury suits.  The reinsurer argued that the dollar amounts set forth in the “reinsurance accepted” sections of the nine facultative reinsurance certificates issued to the cedent (ranging from $250,000 to $2 million) unambiguously capped the amount that the reinsurer was obligated to pay for both losses and expenses combined.  The cedent countered that those limits applied only to “loss” (i.e. settlements and damages), and that the reinsurer was required to pay all expenses in addition to such limits, just as the cedent was obligated to do under the reinsured policy.  On summary judgment, the district court sided with the reinsurer, and, in so doing, relied upon the Second Circuit’s landmark reinsurance decisions in Bellefonte Reinsurance Co....
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FLORIDA SUPREME COURT DECIDES WHAT COVERAGE TEST TO APPLY WHEN MULTIPLE PERILS CAUSE A PROPERTY LOSS

Earlier this month, the Supreme Court of Florida issued its long-awaited decision regarding the applicable standard for determining the availability of insurance coverage where there are multiple, concurrent causes of a property loss. In Sebo v. American Home Assurance Company, Inc., No. SC14-897 (Fla. Dec. 1, 2016), the court, applying the so-called "concurrent cause" doctrine, held that an entire claim may be covered even though one of the causes of the loss is excluded under a first-party property policy. The court suggested, however, that coverage may not apply if it can be established that an excluded peril is the "efficient proximate cause" of the loss.  In Sebo, the insured's $11.2 million home in Naples, Florida sustained serious water damage both before, and in the wake of, Hurricane Wilma in 2005. There was no dispute that the loss was caused by multiple perils, namely, a combination of construction defects, heavy rains and wind. The insurer denied coverage for most of the damage because the insured's "all-risk" property policy specifically excluded damage due to construction defects. The insured subsequently filed an action for declaratory relief against the insurer, and a jury found in favor of the insured in the amount of $8 million. The Second District Court of Appeal, however, reversed and remanded the case for a new trial, holding that the cause of the loss should be examined under the "efficient proximate cause" doctrine rather than the "concurrent cause" theory applied by the trial court.  On appeal, the Supreme Court was...
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And That's Final!

Arbitration proceedings are supposed be simple, quick and final.  But the finality of arbitration has a potential downside as the stakes get higher.  It is unlikely that a losing party can overturn an arbitrator’s decision even if it seems completely at odds with clear legal precedent. A recent case from the Sixth Circuit highlights this problem.  Schaffer v. Multiband Corp. grew out of dispute between trustees of an employee stock ownership plan (ESOP) and the parent company over an indemnification claim.  The US Department of Labor claimed that the trustees had breached their fiduciary duties by permitting the ESOP to pay an inflated price for employer stock.  The trustees settled the claims for $1.45 million each and then demanded contractual indemnification from Multiiband.  Multiband refused and the dispute went to arbitration.   The arbitrator found the indemnification agreements to be invalid under a provision of the Employee Retirement Income Act of 1974 (ERISA), which makes exculpatory agreements unenforceable.  That provision, however, is tempered by another provision of ERISA that permits trustees to obtain insurance for fiduciary breaches as well as DOL guidance and case law that treats indemnification agreements as insurance as long as the benefit plan has no liability for the indemnification.  The trustees should have prevailed and so they filed suit in federal district to vacate the arbititrator's decision.  The trustees faced a high hurdle.  Under the Federal Arbitration Act (FAA) the principle of finality carries the most weight.  A court ‘must' confirm an arbitration award `unless' it is vacated, modified,...
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DOL Focuses on 401(k) Plan Fees

The Philadelphia office of the Employee Benefits Security Administration (EBSA) has made "excessive" plan fees a priority for investigation. There is no bright line to define "execessive fees" but if an investigation determines that 401(k) plan participants are paying higher fees than would otherwise be expected, EBSA will want to find out who is responsible.     The investigation will try to answer questions like:   aWhat do the disclosures look like?  What do the fiduciaries look at? Is there something that justifies the high fees? Is it the fault of the disclosures? Is it the fault of the service provider?  Is it the fault of the named fiduciary plan sponsor?   The document requests associated with these investigations can be quite burdensome. Rosenthal Lurie has a sample request that consists of 23 different categories of documents.  Send us an email and we will forward a copy to you.
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DOL Issues a Model Notice for the Affordable Care Act

Many provisions of the Affordable Care Act (“ACA”) become effective in 2014.  Others are effective this year.  Beginning October 1, 2013, most employers must notify employees of the coverage options available through the Health Insurance Marketplace established by the ACA. Employers are free to create their own notices, but the US Department of Labor has issued a Model Notice that employers can use to fulfill their obligations under the ACA. You may have heard that employers with fewer than fifty employees are not required to offer insurance coverage to their employees and that they are exempt from any penalties.  While that is true, the Notice requirement is technically part of the Fair Labor Standards Act, so many more employers are affected.  Any employer with at least one employee engaged in “interstate commerce” or which has more than $500,000 in sales is covered by the FLSA, so the vast majority of employers will be required to provide the Notice to their employees. The Notice must include the following information: The existence of a new Marketplace as well as contact information and description of the services provided by a Marketplace. The availability of a “premium tax credit” if the employee purchases a qualified health plan through the Marketplace. The Notice must inform employee that if she purchases a qualified health plan through the Marketplace, the employee she may lose the employer contribution (if any) to any health benefits plan offered by the employer and that all or a portion of such contribution...
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New Evidence of Link Between Head Trauma and Brain Disease: NFL Players Should Take Notice

An article published in the scientific journal Brain reported on a study of brain samples taken from 85 people who had documented instances of repeated mild brain injury, including 33 who had played in the NFL. Eighty percent of brains studied showed evidence of chronic traumatic encephalopathy, or C.T.E., a degenerative and incurable disease. Symptoms of C.T.E. are classified as Stages I-IV, with each stage representing progressively worse symptoms, ranging from headaches and difficulty in concentrating to dementia. According to the study: Data on athletic exposure were available for 34 American football players; the stage of chronic traumatic encephalopathy correlated with increased duration of football play, survival after football and age at death. Notably, the study focused on mild, repeated brain injuries, suggesting that the cumulative effects can have significant long-term consequences: The current results establish that a distinctive pattern of neuropathological changes, previously reported primarily in boxers, can also be found in other athletes and military veterans and provide a clear impetus for future studies. . . .[T]his study clearly shows that for some athletes and war fighters, there may be severe and devastating long-term consequences of repetitive brain trauma that has traditionally been considered only mild. The NFL Disability Plan now has a provision providing benefits to eligible players who have a permanent, neuro-cognitive impairment but are not receiving “Line of Duty” or T&P disability benefits or Pension Benefits under the Retirement Plan. It remains to be seen how the Plan will handle these claims and how many...
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