2017 Commutations & Networking Forum - AIRROC
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Winter 2017-2018 LEVERAGING LEGACY LIABILITY Vol. 13 No. 3 www.airroc.org 2017 Commutations & Networking Forum IBT OR NOT TO BE? • SOMEBODY’S WATCHING • AIRROC & EECMA SHINE TOGETHER PRECIOUS METALS • GETTING ARTSY IN JERSEY • HONORING JOHNSON • AWARDS FOR TWO
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EDITOR’S NOTES A Hazy Shade of Winter Maryann Taylor Our gallant Editor, Peter Scarpato, with a “how to” guide to develop, use the Robotics Process Automation is has passed the pen to me while he and employ this tool. As always, Barbara changing the insurance industry and recuperates from scheduled surgery. provides practical and pragmatic advice finally, an interactive session on What is Warm regards and best wishes from all on the implementation of a watch list Discoverable? of us on the Publication Committee to program in Eyeballing Excellence. Tribute was paid to Stephen Johnson Peter for a swift recovery! Our colleague and reporter of Stradley Ronon and former It has been a long, strange year. As the extraordinaire, Connie O’Mara, Deputy Insurance Commissioner of world changes before our eyes, we can provides a bird’s eye view on the Mega Pennsylvania as the AIRROC 2017 count on AIRROC as it continues its Superfund Symposium that was held in Person of the Year. The 6th Annual Trish steady journey to raise the bar by being a Philadelphia. The program provided Getty Scholarship was awarded to two trusted educator, network provider, and an in-depth analysis for environmental recipients, Ashley Myers and Samantha collaborative facilitator in enhancing claims experts in the field in the first, String, both juniors majoring in Risk and improving industry standards, of what we hope to be many, joint Management and Insurance at St. honoring professionalism and shining collaborations between AIRROC and John’s University. AIRROC’s charitable a light on individuals who demonstrate EECMA. fundraising initiatives were presented that hallmark. The adage that many Carolyn Fahey, our cherished Executive to the Loud N Clear Foundation, a New hands make light work has never been Director, highlights the relevance of our Jersey addiction treatment program, and exemplified more by the support and featured feathered friends on the cover the Waipa Foundation in honor of our contribution of our membership to the with another successful Commutation departed friend Doug Andrews, former AIRROC mission. and Networking Forum in the books. Eaglestone CEO. We round out the issue One is Silver and the other Gold weaves with Present Value, by Fran Semaya and We begin this issue with Luann Petrellis’ together the hosting state of New Jersey Peter Bickford. article Separate but Not Equal in which she returns to a recurring theme: touting where AIRROC members flock each On behalf of the Publication Committee, Rhode Island’s Insurance Business year to gather and the importance of we wish you a joyous holiday season Transfer (“IBT”) legislation and then relationships in this industry. This with peace and cheer in the comparing and contrasting it with year’s Forum did not disappoint with New Year! Connecticut’s division statute. an enchanting kick off dinner at the In the words of Peter Zimmerli Museum. The Education Scarpato, “Let us hear Next, Eleni Iacovides provides another program showcased presentations from you.” l installment in her continuing series, The from renowned professionals in the Legacy Market: Resistance. Protection. industry on a host of topics summarized Equivalence. Vision. That Order. This by Publication Committee members article provides a look to the future and Maryann Taylor, Vice Chair of Robert Goodman, Connie O’Mara and dishes on hot topics being discussed in AIRROC Matters, is a Partner Ben Gonson. These topics included the legacy space. at the New York -based UK Employers Liability Portfolios, Barbara Murray follows her earlier a look at the Evolving Insurance law firm of D’Amato & article that introduced the watch list as Workforce, the ripple effect of Viking Lynch, LLP. mtaylor@ an effective management tool (Fall 2017) Pump on the allocation landscape, how damato-lynch.com AIRROC®Publication Committee Editor & Chair Peter H. Bickford Carolyn Fahey Frederick J. Pomerantz Design & Illustration Peter A. Scarpato pbickford@pbnylaw.com carolyn@airroc.org fpomerantz@goldbergsegalla.com Myers Creative Services peter.scarpato@brandywineholdings.com Jenna Buda Benjamin Gonson Francine L. Semaya nicole@myerscreative.net jbuda@allstate.com bgonson@nicolettilaw.com flsemaya@gmail.com Vice Chair The AIRROC® Matters Editorial Maryann Taylor Mitchell Cohen Robert D. Goodman Vivien Tyrell mcohen@wechco.com vivien.tyrell@rpc.co.uk Board welcomes authors’ new and mtaylor@damato-lynch.com robert.goodman@saul.com reprinted with permission articles on Bina T. Dagar Jeffrey D. Grossman Greg Wyles current topics of interest to AIRROC’s Assistant Editor bdagar@ameyaconsulting.com jgrossman@stradley.com greg.wyles@aig.com membership. The Board reserves the Connie D. O’Mara right to edit submissions for content Randi Ellias Nicholas H. Horsmon Marketing Consultant connie@cdomaraconsulting.com rellias@butlerrubin.com and/or space. nhorsmon@law.gwu.edu Gina Pirozzi gina@gpirozzi.com AIRROC MATTERS / WINTER 2017–2018 3
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AIRROC Board of Directors & Officers 2018 Leah Spivey (Chair) Munich Re America Vol. 13 No. 3 WINTER 2017–2018 www.airroc.org Michael Fitzgerald (Co-Vice Chair) QBE North America William Teich (Co-Vice Chair) The Hartford Marianne Petillo (Treasurer) ROM Reinsurance Editor’s Notes Management Company A Hazy Shade of Winter Maryann Taylor 3 Jose Martinez, Jr. (Secretary)* CNA regulatory Karen Amos Resolute Management Services Andrew Hill Zurich Legacy Solutions Separate but Not Equal Luann M. Petrellis 6 Edward Gibney Vice President, R&Q AIRROC Board of Directors & Officers 2018 9 William Goldsmith AIG AIRROC Advisory Council 2018 10 Ivan Jaffa RiverStone ReSources LLC David Kenyon Swiss Re TOOLBOX André Lefebvre Arrowpoint Capital The Legacy Market Eleni Iacovides 11 William Littel Allstate Betsy Mitchell Armour Risk Management Inc. TooLBOX David Presley Enstar (US) Eyeballing Excellence Barbara K. Murray 14 Peter Scarpato Brandywine Group of Insurance and AIRROC Reinsurance Companies Mega Superfund Symposium Connie D. O’Mara 20 Carolyn Fahey (Executive Director)* Susan Aldridge (General Counsel)* Norton Rose Present Value Fulbright News & Events / Mark Your Calendar *Non-Board member Francine L. Semaya & Peter H. Bickford 22 AIRROC Executive Committees Advertisers in this Issue 22 Governance Committee Co-Chair William Goldsmith AIG AIRROC Update Co-Chair Bill Littel Allstate One is Silver and the other Gold Education Committee Message from the Executive Director Carolyn Fahey 24 Chair Karen Amos Resolute Management Services Vice Chair J. Marcus Doran Armour Risk Commutations & Networking FORUM 2017 25 Finance Committee EDUCATIONAL PANELS Chair Michael Fitzgerald QBE • Legacy UK Employers Liability Robert Goodman 26 Vice Chair Marianne Petillo ROM Re • The Evolving Insurance Workforce Connie D. O’Mara 27 Marketing/Member Recruitment Committee • What is Discoverable? You be the Judge! Robert Goodman 28 Co-Chair David Kenyon Swiss Re • A New Allocation Landscape Under In Re Viking Pump Co-Chair Ivan Jaffa RiverStone ReSources Robert Goodman 29 October Event Committee • Robotics Process Automation Ben Gonson 33 Chair Edward Gibney R&Q Solutions LLC Thanks to Our Sponsors 33 Publication Committee Chair / Editor-in-Chief Peter A. Scarpato Brandywine AIRROC Person of the Year 2017 Stephen Johnson Vice Chair Maryann Taylor D’Amato & Lynch Connie D. O’Mara 36 CLIP Committee Trish Getty Scholarship Recipients Chair Marianne Petillo ROM Re Ashley Myers and Samantha String 36 AIRROC Advisory Council Illustrations / R. Edwards Photo Montage of Commutations & Networking Forum 2017 39 David Alberts Mayer Brown LLP Photos / Jean-Marc Grambert Debra Hall Hall Arbitrations and SagePoint Solutions Stephen Magnotta Group LLC Stephen Johnson Stradley Ronan Stevens & Young LLP Copyright Notice AIRROC® Matters is published three times per year to provide insights and commentary on U.S. legacy Steve McElhiney EWI Re, Inc. business, to educate members and the public, stimulating discussion and fostering innovation to advance the industry’s interests. Publishing and editorial decisions are based on the editor’s judgment of writing quality, relevance to AIRROC® members’ interests Connie O’Mara O’Mara Consulting LLC and timeliness of submissions. Sandra Santomenno Towers Watson Published articles should not be deemed to reflect the views of any AIRROC® member, unless so stated. AIRROC® endorsement of any views expressed in articles should not be inferred, unless so stated. AIRROC Board Liaison Marianne Petillo ROM Re AIRROC® Matters magazine is published by the Association of Insurance and Reinsurance Run-off Companies. ©2018. All rights reserved. No reproduction of any portion of this issue is allowed without the publisher’s prior written permission. AIRROC MATTERS / WINTER 2017–2018 5
REGULATORY Separate but Not Equal Division vs. Insurance Business Transfer Restructuring Legislation The RI IBT is a court sanctioned novation of transferred policies from one carrier (that does not have to be a Rhode Island company) to another (that does have to be a Rhode Island company). Approval of an RI IBT is a multi-layered, transparent process that includes both regulatory and Recent developments indicate that judicial review and approval. Like the U.S. regulators are responding to U.K. Part VII transfer, the RI IBT results in a novation of the transferred policies, these market realities. In 2015, providing finality to the transferring company. Rhode Island passed regulations In May of 2017, the state of Connecticut providing for “insurance business passed Public Act 17-2 authorizing domestic insurers to divide. Hartford, transfers” for commercial P&C a Connecticut domiciled carrier that is one of the state’s largest employers, runoff business. The Rhode Island supported the law. The new statute allows a Connecticut domestic insurer to divide Insurance Business Transfer (RI into two or more insurers and allocate IBT) is modeled on the U.K.’s Part assets and obligations, including insurance policies, to the new companies (i.e., new VII Transfer that has been British or resulting insurers). Resulting insurers are deemed legal successors to the dividing law for almost 20 years and has insurer and any assets and obligations are allocated to them as a result of succession resulted in hundreds of successful and by direct or indirect transfer. Regula– tory approval of the plan of division is transfers of insurance business. required. A public hearing may take place, but no formal court approval is required. The commissioner must approve a plan of division unless (a) the interest of any policyholder or interest holder will not be adequately protected, or (b) the proposed division constitutes a fraudulent transfer. There is no requirement for policyholder approval. While there are some similarities between the Connecticut division legislation and the RI IBT legislation, the differences in effect and application are striking. Connecticut Division Statute The Connecticut division statute is very similar to Pennsylvania’s Business Corporations Law that also provides a procedure for companies to divide their business into separate entities. However, the Pennsylvania division statute has not enjoyed wide application. It was used once, in 1996, when the state insurance department approved a plan of restructure that placed all of ACE 6 AIRROC MATTERS / WINTER 2017–2018
Luann M. Petrellis While the Connecticut protections and guaranty fund coverage. Connecticut Insurance Commissioner division legislation may Asset adequacy and investments also are is enforceable outside of Connecticut. important issues. In addition, a company Article IV, Section 1 of the U.S. provide an option for that considers taking advantage of the Constitution mandates that full faith and variable annuities, there are division statute needs to take into account credit be given “in each State to the public other lines of insurance that state licensing requirements for the new acts, records, and judicial proceedings of can challenge its effective company, notice to policyholders, and every other state.” It is unclear whether concerns about policyholder rights and regulatory approval alone would be application. protections. recognized and enforced in any other U.S. state without a court order. ---------------------------------- Importantly, the CT division legislation was promoted by a company that seeks to USA’s Domestic Property and Casualty use it for its variable life annuity business. Insurance Business Transfer (IBT) Insurance Group’s runoff business within Variable annuities involve a standard In contrast, insurance business transfers Century Indemnity Insurance Company, and recognized reserving process to (IBTs) are used worldwide and apply a subsidiary of Brandywine Holdings. determine the ultimate payout for the to all lines of business, both live and Importantly, this transaction involved liabilities. Therefore, the variability in runoff. In the U.K. alone there have been only commercial property and casualty reserve outcomes should be minimal, hundreds of successful transfers, none liabilities. The process survived legal and ultimately, the sales process between of which have subsequently encountered challenge, but, since then, no company the buyer and the seller will determine financial difficulties. has used the statute. whether more or fewer assets are The Connecticut division statute requires necessary to consummate the transaction. Currently, Rhode Island minimal financial disclosure. The plan of While the Connecticut division is the only state that has division need only include “the manner legislation may provide an option for legislation providing for IBTs. of allocating [certain property] between variable annuities, there are other lines of or among the resulting insurers … the insurance that can challenge its effective The RI IBT is a multi-layered manner of distributing interests in the application. This is particularly so with transparent review process. new insurers to the dividing insurer or long term care insurance, which involves its interest holders … and a reasonable an entirely different set of risks and ---------------------------------- description of policies or other liabilities, considerations, including policyholder items of capital, surplus or other protections and rate increases. One of property the domestic insurer proposes the key problems for the long term care The IBT is a flexible restructuring tool. It to allocate to a resulting insurer.” There industry is the high level of uncertainty can be used to combine similar business is no independent review of financial associated with long term care reserves from two or more subsidiaries, putting information. A public hearing is at and the reserving practices the industry all into a single company; to separate out the discretion of the state insurance currently uses. In the case of a division, different books of business, putting them commissioner and there is no judicial uncertainty about ultimate liabilities for into separate companies; or to transfer review. The commissioner has the long term care legacy liabilities likely business between third parties. In contrast, authority to approve a plan of division will result in concern that the unknown the Connecticut division statute applies unless the commissioner finds that (a) exposure will be shifted to policyholders solely to Connecticut domestic companies, the interest of any policyholder or interest through future rate increases. In the case allowing them to separate business only holder will not be adequately protected, of variable annuities, the buyer or seller within their corporate structure. or (b) the proposed division constitutes a will absorb pricing risks, but in long term Currently, Rhode Island is the only state fraudulent transfer. care there is a high probability that future that has legislation providing for IBTs. In the case of consumer lines of insurance experience variables will be borne by the The RI IBT is a multi-layered transparent such as long term care, a division policyholder in the form of rate increases. review process. It requires notice to all statute like the one in Pennsylvania or An additional consideration is that the policyholders and extensive financial Connecticut may not provide sufficient Connecticut division approval process disclosure by both the transferring transparency and review requirements is solely regulatory and whether the and assuming companies. Both the to ensure a successful transfer. The division would be enforceable in all regulator in the transferring company’s applicability of the division legislation relevant U.S. jurisdictions is unclear. home state and the RI regulator must to certain lines of insurance raises Courts would apply the constitutional approve the IBT plan. The review important questions regarding its principle of full faith and credit if asked process also includes a report of an utilization particularly as to policyholder to examine whether the approval of the independent expert that must evaluate AIRROC MATTERS / WINTER 2017–2018 7
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REGULATORY Separate but Not Equal (continued) the impact of the transfer on all affected the IBT review process far exceeds the for insurers and reinsurers. When and if policyholders, including transferring Connecticut division legislation in terms Rhode Island (and/or another states) does and non-transferring policyholders and of scope and effectiveness, the Rhode adopt legislation that applies the IBT to policyholders of the assuming company, Island statute’s restriction to P&C runoff all lines of business, then U.S. (re)insurers if any. Because of this analysis, a resulting does limit its application. There are will have an effective, flexible restructuring good bank/bad bank scenario is avoided. ongoing discussions about potentially tool with multiple safeguards to protect There also is a court hearing, during expanding the IBT to all lines of business. policyholder rights. l which policyholders have the right to The opinions stated herein are those of the voice their concerns. If the court finds Conclusion: The IBT shows author and do not necessarily reflect those of that policyholders are not materially real promise Pricewaterhouse Coopers or its affiliates. adversely affected, then it will approve Companies need restructuring tools that the IBT plan and implement a novation have wide application to address a chang- of the transferred policies. It is only after Luann Petrellis is a ing business and regulatory environment. this multi-layered transparent review Managing Director with The Connecticut division statute does not process that the transferring company is PricewaterhouseCoopers have wide application and appears to be released from liability on the transferred specializing in developing more a legislative response to the particu- policies. In short, the RI IBT is a proven strategies for insurance lar needs of an important local company. business model with an approval process restructuring and The IBT is a proven business model, hav- that is a carefully monitored, transparent runoff. She drafted ing been used successfully worldwide as a review that balances the needs of all the RI regulations restructuring tool for all lines of business. stakeholders to the transaction. providing for insurance The experience of the U.K. runoff market business transfers. Currently, the RI IBT only applies to has proven that a well-designed IBT pro- luann.m.petrellis@pwc.com commercial P&C runoff liabilities. While cess can be an effective restructuring tool AIRROC Board of Directors & Officers 2018 Back Row – left to right: David Presley (Enstar US); David Kenyon (Swiss Re); Bill Goldsmith (AIG); Bill Littel (Allstate). Middle Row – left to right: Jose Martinez, Jr., Secretary (CNA); Marianne Petillo, Treasurer (ROM Re); Karen Amos (Resolute Management Services); Ivan Jaffa (RiverStone ReSources); Andre Lefebvre (Arrowpoint Capital). Front Row – left to right: Betsy Mitchell (Armour Risk Management); Ed Gibney (R&Q); Leah Spivey, Chair (Munich Re America); Michael Fitzgerald, Co-Vice Chair (QBE); Carolyn Fahey, AIRROC Executive Director; Andrew Hill (Zurich). Not Pictured: Bill Teich, Co-Vice Chair (The Hartford); Peter Scarpato, Editor & Chair of AIRROC Matters (Brandywine Group). AIRROC MATTERS / WINTER 2017–2018 9
AIRROC Advisory Council 2018 Front Row, left to right: Sandra Santomenno (Willis Towers Watson); Connie O’Mara; Stephen Johnson (Stradley Ronon); Carolyn Fahey, AIRROC Executive Director. Back Row, left to right: Marianne Petillo, Board Liaison (ROM Re); Steve McElhiney (EWI RE); David Alberts (Mayer Brown). Not Pictured: Debra Hall Drawing on our Restructuring heritage to unlock value for runoff operations. A&M drives Performance Improvement through strategy, operations and analytics. We provide Regulatory Support to navigate complex and challenging environments. 49016
TO O L B OX The Legacy Market Resistance. Protection. Equivalence. Vision. That Order. Eleni Iacovides In The Legacy Market article that ran in the Spring 2017 issue, we discussed the various legacy acquiring market can proudly a transfer of a line of business that they exit and capital release tools boast zero failure. This, without any wish to continue to underwrite. How available to the European insurance qualification or footnote, delivers the will the acquirer treat their customers? market with each providing certainty and reputational promise made Who may still have a policy with the to clients and, most importantly, to insurer (a concern that is especially different degrees of finality and policyholders. relevant in relation to direct policies, capital relief. The second Legacy such as automobile or homeowner’s Across the Atlantic, more than two Market article which ran in the Fall years on, the Rhode Island statute policies)? Who will handle their claims? issue, discussed the first finality remains “unused,” while rumours that Will the acquirer unduly delay payment statute available in the U.S. and the first transaction will be announced of claims? Will the acquirer try to treat in the early part of 2018 are widespread. policyholders less fairly given that the steps taken by other states to adopt This will be a welcome step in the acquirer would not be interested in any a similar framework. This third right direction. But why is it taking so future business? article in the Legacy series will long? Why is the U.S. market not as These are all valid concerns, but express discuss where we are today and enthusiastic as the European market a failure to see the transaction in its the concerns and challenges we about the availability of legal and/ entirety, which includes looking at or economic finality for non-core or understand are currently being unwanted portfolios? Certain concerns it from the acquirer’s point of view. discussed in the market. Acquirers’ core business is insurers’ non- have been consistently raised that provide core or unwanted business. In order for While approaching the end of another valid and varied reservations of a market them to be in a position to succeed, to busy year, the European legacy market that is normally state-focused and state- continue to grow, to meet their business can look back and be proud for the managed and one that has consistently plans, to satisfy their shareholders’ transactions signed, approved, closed, resisted federal legislation on any expectations and to achieve the plethora and, of course, last but not least, for those insurance aspect. I outline below some of business goals that all businesses rumoured to be in exclusive discussions widely-discussed concerns and offer have, they have to build a reputation of with the various acquirers. The year may some thoughts from experience gained in reliability and credibility so that they can end with some surprising results, all of the last few decades in Europe. continue to acquire more portfolios and which will add to the growing attraction to grow their own balance sheet. The of the legacy space and the increasing Reputation reputation of the seller is only one side trust and consequent collaboration Insurers are understandably concerned of the same coin. The acquirer is just as between sellers and buyers. about their reputations when considering keen to preserve its own reputation in The mechanism is long established, tried the transfer of a portfolio. This is order to gain more business from the and tested, and with no failures. The particularly relevant when considering same client, new clients, to grow, and AIRROC MATTERS / WINTER 2017–2018 11
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TO O L B OX The Legacy Market (continued) to avoid any regulatory issues that may It would seem to me that that’s a good thing in terms of a global follow from policyholder complaints. It is industry like insurance. obvious how the parties’ interests in any this step goes a long way to It would seem to me that this step goes a transaction are aligned. recognising that regulators, long way to recognising that regulators, no matter where they are, no matter where they are, and insurers, Policyholder protection and insurers, no matter no matter where they are, have a common Policyholder protection is a key driver where they are, have a goal: “to supervise insurers and reinsur- in any transaction approval process. It is ers in the interest of policyholders and common goal… quite rightly the most important driver other consumers.” It should follow from for the approving regulator or court. The this, that any regulator, whether a U.S. approving regulator or court must be sat- ---------------------------------- state commissioner, a regulator of a EU isfied that policyholders will be protected member state, or the U.K. courts would in the hands of the new owner. The tions would be completed with certainty, review, assess, and approve a transfer with examination process before approval is not concerned with potential challenges the same overriding principle. Does it not long and thorough, whether this is done by other states that do not have similar then follow that all we need in order for by a regulator in the EU, or by a judge legislation; they would not be dependent the Rhode Island process to be embraced in the U.K. or Rhode Island. The Inde- on judicial interpretation on whether or by the industry and other states is a rela- pendent Expert’s report, commissioned not another state court’s decision should tively small leap of faith? by the Rhode Island Department, would receive full faith and credit. Reciprocity consider all interested parties, and will be and equivalence are key ingredients to Status quo or utopia? an important element of the process as a level playing field in business transac- In the EU, 28 member states (until Brexit, to whether or not the transfer is sound; tions from which certainty would flow. hard or soft, hits us) have a uniform legal the regulator will only approve a trans- Certainty is key to business transactions framework and a set of rules that governs fer if satisfied that policyholders will be and to business success. statutory portfolio transfers. The U.S. and just as protected, if not better protected, the EU Covered Agreement commits that after the transfer. Equally, the acquiring U.S. and EU Covered Agreement stated based collateral will be eliminated insurer must show that its own solvency The Bilateral Agreement between the for EU insurers and reinsurers that meet is sound pre- and post-transfer. Regula- U.S. and the EU on Prudential Measures the consumer protection standards tion 68 provides that both the home and Regarding Insurance and Reinsurance, set out in the agreement. So, if the EU the receiving regulators be involved in in short, the “Covered Agreement,” and the U.S. can reach agreement on the approval process and that the court’s provides a level playing field between reciprocity based on the mutual respect approval is required to effectuate the U.S. and EU insurers that, principally, of each other’s legal and regulatory transfer. Any new process is bound to be removes the need for authorisation and encountered with reluctance or doubt. frameworks, can U.S. states perhaps collateral in each other’s jurisdiction. achieve this reciprocity, in time? Or The success of the process will be entirely This is certainly a major step in terms of dependent on the actual success of the perhaps, take an even bigger leap of faith recognition, reciprocity, and equivalence and find a way to agree that this aspect transactions themselves. And this can that enables insurers and reinsurers to only be seen once the process is used. of insurance law and regulation will be engage in transactions in each other’s governed on federal level? This would territory acknowledging each other’s certainly achieve a level playing field for State v. Federal legal framework regulatory framework, noting the benefits insurers, states, and commissioners while and regulation of enhancing regulatory certainty and providing uniform and equal protection In the Legacy article published in the acknowledging that group supervision for policyholders. Is that not what we Fall 2017 issue of AIRROC Matters, I of insurers and reinsurers enables would call “win win” situation? l questioned whether or not a EU-style supervisory authorities to form sound legal finality would be possible in the judgments of the financial position of absence of Federal legislation on this these groups. The Covered Agreement Eleni Iacovides, Group aspect of insurance law. State commis- further “encourages the exchange of Chief Client Officer sioners are understandably protective information between supervisory at DARAG Group Ltd. of their insurance industry and their authorities in order to supervise e.iacovides@darag.eu policyholders. A uniform system would insurers and reinsurers in the interest of ensure that all transactions are reviewed policyholders and other consumers.” In in the same way and are decided within plain English, it says: if you are regulated the same legal and regulatory framework, by a sound regulatory system and respect thus rendering state issues less relevant. basic insurance principles, then we trust In a uniform system, business transac- that you do without further checks. And AIRROC MATTERS / WINTER 2017–2018 13
TO O L B OX Eyeballing Excellence 3% Establishing and Executing an Effective Watch List Process/Policy A well-executed watch list process - Consistent reporting of facts, By guiding a consistent approach to can significantly benefit P&C coverages, and issues; identifying which exposures to include - Exposure calculations under on the watch list and staying abreast of insurance companies. From the current developments and emerging various scenarios; initial establishment of the process, trends, the process owner helps - Specific reporting formats; which includes identifying which - Routine intervals for reporting; management better understand and exposures and claims to include, to execute the defined watch list process. - Process for updates as new the ongoing review of the process information emerges; Leading practices also suggest that a as new exposures and claim types company should formally document its • Open lines of communication for effec- watch list process and routinely review emerge, the actuarial, claims, tive information gathering/sharing among the process for necessary adjustments. and underwriting departments underwriting, reinsurance, claims, actu- A routine review facilitates up-to-date significantly impact the success of arial, and risk management departments; documentation that reflects existing a watch list process. Open lines • Reporting of findings to internal stake- resources and protocols as well as holders for potential remediation initiatives. emerging issues that require assessment of communication among these and reporting. An organizational culture departments can pave the way for A clear vision statement serves as a driven by open communication across all guide in defining exposures or claims a successful watch list process. stakeholders is well suited to develop and assigned to a watch list, including the maintain an effective watch list process. key members of management (notably Creating a watch list leaders from claims, actuarial, and In order to make effective use of watch underwriting departments) involved Identifying watch list exposures lists, a company should have a thoughtful in performing a watch list assessment. The external environment, including and comprehensive process in place to While this component may appear changes in laws and regulations, drives determine which exposures to monitor obvious, a company should not the exposures selected to appear on a and how management should consider underestimate the value of the vision watch list. Much like organizational goals this information. Watch list processes of statement in maintaining the proper and objectives, which change over time, leading companies typically include the focus of the watch list over time. the evolving nature of watch list exposures following items: necessitate routine assessment of and Critical to a successful watch list process • A vision statement to establish the goal is the determination of the process adjustment to the criterion underlying the of the watch list program; owner and the associated roles and watch list assessment process. • Clear ownership and lines of responsibilities. The owner of the watch The criteria used to assess exposures for accountability; list process, typically a chief reserving inclusion on a watch list may include: actuary, a claims department leader, • A defined process that includes: • Types of coverage, time periods, or another executive, plays a critical - Identification of key risks to assess; role in establishing accountability and geographical regions of business - Assignment of appropriate and and facilitating the timely sharing of underwritten; available resources; information among various stakeholders. • Limits and attachment points; Developments on claims Identification of new exposures to Other industry emerging exposures currently reported add to the watch list not yet prime for formal addition to the watch list Coverage interpretations/rulings Trigger for placing the loss on the list Types of losses Changes in filing trends or exposures/damages Filing trends Coverages impacted Industry perspective/strategies/reserving Coverage and jurisdictional issues Filing and exposure trends practices Exposure/damages estimates Updates on resolution strategies Applicable industry reserving trends Revisions to applicable scenarios Proposed resolution strategies 14 AIRROC MATTERS / WINTER 2017–2018
Barbara K. Murray Information included on a watch list Watch list triggers Existing claims Potential claims Reinsurance profile Loss will potentially exceed a defined Claim number Lines of business Reinsurance program structure financial threshold Lines of business State in which the loss occurred Gross/net positions reflected in the • Assess from a gross and net Potential coverages at risk potential outcome scenarios State in which loss occurred perspective generated Policies currently exposed • Years underwritten • Consider what is material Notice provision and confirmation of • Period/terms • Coverages afforded • Address losses impacting multiple notice issued to the reinsurers timely insureds • Coverages afforded • Volume of policies written Issues that may give rise to reinsurer Loss type has been defined as a trigger • Policy limits*/attachment points Exposure disputes • Historical adverse development Exposure • Limits exposed/attachment points • Severity of injury • Remaining limits/aggregates • Potential range of damages • Filing trends • Deductible limits/balances Description of potential loss (filing • Outcomes may have significant • Underlying coverage exhaustion trends/severity) impact on other claims or • Loss/expense payments to date underwriting strategies Jurisdictional/coverage issues • Estimated full level of damages Emerging losses that may present Potential outcomes significant exposure in the future Description of loss Date of loss Claims in which several insured risks are subject to a common loss Jurisdictional/coverage issues Potential outcomes *written and remaining per occurrence / aggregate policy limits by year and coverage type • Legal trends such as new court filings, their deep knowledge of the underlying Claims personnel may carry out rulings regarding legal interpretations exposures, claims personnel often have an scenario testing and litigation risk and procedural requirements, and jury early awareness of emerging loss trends analyses due to the complex nature of verdicts; and case law changes, which may impact watch list exposures and the associated • New claim filings (inclusive of the selection of watch list claims or loss coverage interpretation issues, such underlying carrier exposures), as well as types. A well–run claims department as what constitutes an occurrence reserve and payment patterns by industry, will establish processes for routinely and or the allocation of exposure across company, and carrier; consistently tracking key issues and the various defendants or carriers. By • New business strategies; and associated exposures. carrying out several assessments, each • Discontinued business exiting strategies. Leading claims department watch list incorporating different assumptions processes typically include a quarterly as to legal outcomes and ultimate Asbestos, pollution, health hazard, and assessment, as per chart on page 14. damages, the claims department other complex exposures are perhaps The head of the claims department can provide management and the most commonly found on watch lists, but prescient companies effectively typically performs an assessment, relying actuarial department a range of utilize their claims and actuarial on information he or she gathers from possible outcomes to consider. These departments to stay abreast of current the claims team, underwriters, and assessments facilitate early identification trends and identify emerging exposures reinsurance departments (similar to a of claims with the potential to breach and new claim types to incorporate into routine large loss assessment process) excess coverage layers and, thus, early their watch list process. and shares the findings with the actuarial notification to reinsurers. Without such department. The assessment includes assessments, these claims are at risk for The role of the claims department a factual investigation incorporating future reinsurance denials due to late Claims personnel typically play an the applicable coverage parameters and reporting of claims, unexpected reserve important role in identifying exposures assessment of potential liabilities under development, and poorly developed to include on a watch list. Thanks to various scenarios as follows. litigation strategies. AIRROC MATTERS / WINTER 2017–2018 15
Moving Forward. Meeting Goals. Progress Realized. Our lawyers can help you with: Regulatory issues applicable to run-off business and associated transactions Assumption reinsurance and loss portfolio transfers A Law Firm with Tax issues associated with run-off transactions National and Litigation and arbitration of insurance, reinsurance International Reach and agency matters Lew Hassett Robert “Skip” Myers Jr. Ward Bondurant Co-Chair Co-Chair 404.504.9532 404.504.7762 202.898.0011 wbondurant@mmmlaw.com lhassett@mmmlaw.com rmyers@mmmlaw.com Jessica Pardi Joe Holahan Tony Roehl 404.504.7662 202.408.0705 404.495.8477 jpardi@mmmlaw.com jholahan@mmmlaw.com troehl@mmmlaw.com www.mmmlaw.com Atlanta Beijing Raleigh-Durham Savannah Washington, DC Strategic Alliance Office - São Paulo
TO O L B OX Eyeballing Excellence (continued) The role of the actuarial department premium values, underwriting office and list process should rely on adherence current underwriting goals/criteria. to sound policies that encourage both The actuarial function fills several key compliance and accountability. Companies should regularly re-assess roles in the watch list process. Because the criteria for inclusion of claims The implementation of a robust watch they typically analyze aggregate data, ac- and exposures on a watch list and the list process will promote the timely tuaries have a different perspective from related assessment process in light of the identification of significant claims, claims professionals and may identify dif- continual evolution of organizational facilitate appropriate reserving and ferent potential watch list exposures and goals and objectives, as well as the underwriting actions, optimize litigation emerging claim types by leveraging their external environment (e.g., changes in and resolution strategies, and lead knowledge of industry and reserving laws and regulations). to improved overall underwriting trends. Actuaries also may be responsible results. Successful watch list practices for quantifying the potential liability as- sociated watch list claims, as well as their Challenges and opportunities include a multidisclinary team of stakeholders defining watch list impact on underwriting and incurred but One of the most common challenges in triggers and monitoring the assessment not reported (IBNR) reserves. Because a watch list process is the timeliness of process. Leading practices suggest that claims and actuarial professionals have updates, assessments, and quality review. companies leverage this information in different perspectives, facilitating collabo- The difficulty lies in the speed with developing and implementing long-term ration between these functions is advan- which unexpected new developments can occur in the underlying exposures underwriting and claims strategies. l tageous to insurers. or external influences. Accordingly, the Vicki A. Fendley contributed to this article. Information included on a watch list process for adding or updating items on the watch list should be clear and flexible All company watch lists do not include Barbara K. Murray, enough to allow authorized individuals the same information. The data, which to add new items and make ad hoc Director at PwC is contingent upon the nature of the risk, updates as new claims information Actuarial Services. legal issues, and the underlying business or developments in pertinent events barbara.k.murray@ or exposure, may include what is in the emerge. Companies should maintain pwc.com chart on page 15. available resources to carry out assessments when the need arises. Using watch lists for more than the core claims and actuarial assessments may Aligning a watch list assessment with require a company to collect additional the reserve study schedule can provide data. For instance, a company that wants efficiencies and valuable insights that For more information: Marc Oberholtzer, Principal, to consider watch list exposures in management can leverage to make marc.oberholtzer@pwc.com, Samantha Lee, Senior ongoing underwriting and pricing also decisions. As with any organizational Associate, Samantha.x.lee@pwc.com and Vicki will need to gather rating information, process, quality assurance of the watch Fendley, Director, vicki.a.fendley@us.pwc.com. SM Putting digital to work in reinsurance With the acquisition of Inpoint Operations, Genpact becomes the premier partner to help you achieve your goals. Whether commuting legacy liabilities, discovering missed cessions, re-engineering your operations, or reducing expenses, Genpact can partner with you at any point on your journey to success. genpact.com/lean digital AIRROC MATTERS / WINTER 2017–2018 17
F E A T U R ED CONTINUING E Mega Superfund Symposium ACRONYM FEST: ICYMI1, EECMA2 and AIRROC3 In a joint undertaking on September 7th in Philadelphia, EECMA and AIRROC presented a symposium on Mega Superfund Sites. In what seemed like a veritable snowstorm of acronyms, participants learned about the challenges that arise under CERCLA4 in dealing with Mega Superfund Sites such as Portland Harbor, the Lower Passaic River, and other contaminated sediments sites where remediation costs are estimated in the billions. Panelists discussed key developments in the remediation and cost sharing negotiations of the largest and most complex environmental sites in the country as well as innovative strategies for dealing with the financial and technology challenges that they pose. EECMA is an informal association of major and minor, domestic and international, property and casualty insurers and reinsurers. The members of EECMA are focused on continued education about the many issues surrounding environmental, asbestos, and other long-term exposure litigation that continues to challenge our policyholders and us. Every year, EECMA organizes a two day conference that includes industry specific cutting-edge topics presented by attorneys, consultants, and insurance professionals in the U.S. and throughout the world who are experts in their respective fields. EECMA’s 2018 Conference will be held in Orlando, Florida on April 25-27, 2018. CWF5 stated that, “AIRROC was very pleased to have the opportunity to collaborate with EECMA to produce this program. AIRROC hasn’t done a program that focused on these issues before and they are important to our members. A big thanks to EECMA and our sponsors for helping to make this happen.” Gregory Kelder offered, “EECMA appreciated the partnership with AIRROC and the opportunity to develop an agenda and assemble a group of experts that focused on the multifaceted complexities of large Superfund Sites.” The event got rave reviews from those who were there: “Excellent comprehensive deep dive by fantastic speakers into what they said may potentially be a multi-billion dollar environmental claim exposure for the insurance industry. EECMA and AIRROC provide the very best bang for the buck in their formidable knowledge sharing.” Michael Diggin, Swiss Re. “Speakers were prepared and interesting. Excellent informative event.” Laura Archie, Argo Group. “Great deep dive into sediments, no pun intended. The collaboration between EECMA and AIRROC was a winning combination.” Leah Spivey, Munich Re. l photos / Stephen Magnotta Connie D. O’Mara, connie@cdomaraconsulting.com 1. In Case You Missed It 2. Emerging and Environmental Claims Manager Association 3. Association . . . oh, you know this one 4. Comprehensive Environmental Response, Compensation, and Liability Act 5. Carolyn “Wadsworth” Fahey 20 AIRROC MATTERS / WINTER 2017–2018
PRESENT VALUE News & Events OPTIS partners, the number of insurance Regulatory News Covered Agreement Update agency mergers and acquisitions rose Both the U.S. and the European Union from 350 for the first nine months of Federal Insurance Office (EU) signed the Covered Agreement on 2016 to 457 in 2017. Further, the largest A bill to reform the Federal Insurance September 22, 2017. Full implementation M&A transaction reported in the first Office (FIO) was introduced in the U.S. in the U.S. may take up to five years half of 2017 was from the brokerage House of Representatives (H.R. 3861, until all U.S. jurisdictions amend their section: the acquisition of USI by an the Federal Insurance Office Reform current reinsurance collateral requirement investor group that included private Act of 2017). Under H.R. 3861, the laws and regulations to conform to the equity firm KKR and Canadian pension FIO would essentially be barred from mandates of the Covered Agreement. At fund CDPQ for $4.3 billion. the signing of the Covered Agreement, domestic insurance issues, including the U.S. issued a policy statement, which On the legacy front, the the authority to engage in broad provided that the Covered Agreement most interesting information gathering activities or issue “affirms the U.S. system of insurance transaction (up to our subpoenas. The FIO would be moved to regulation, including the role of state column deadline) was a the Office of International Affairs within insurance regulators as the primary portfolio acquisition by the U.S. Treasury Department and be supervisors of the business of insurance.” insurance and largely limited to international matters. U.S. regulators were pleased with the reinsurance legacy specialist Compre State insurance regulators and many in reaffirmation of the authority and primacy Group (“Compre”) from Swiss company, the insurance industry agree with the of state regulation and insurers and AXA Insurance Ltd (“AXA”), formerly proposed diminished authority of the FIO. reinsurers are elated with the removal Winterthur Swiss Insurance Company. of “local presence” requirements in EU The acquired Cybersecurity jurisdictions. While EU insurers and portfolio of The National Association reinsurers will benefit from the provisions insurance and of Insurance of the Covered Agreement, post-Brexit, reinsurance Commissioners adopted Lloyds and London insurers will have to business in run-off the Insurance Data wait to see if a similar agreement will be was underwritten Security Model Law on negotiated between the U.S. and United by RW Gibbon October 24, 2017. The Kingdom. (Underwriting Agencies) Ltd. and RW model law, which was adopted after seven Gibbon & Son Ltd. (the Gibbon pools) between 1962-1964. Compre has versions and much criticism from the industry, includes many, but not all, of the Industry News provided AXA with finality in all requirements of New York Regulation respects regarding its participation in the A report issued in 500 (23NYCRR500), creates rules for Gibbon pools for an undisclosed sum. November by Willis insurance companies, producers, and According to its press release, the Towers Watson P.L.C. other licensed entities “covering data acquisition represents Compre’s 26th predicted that merger portfolio deal and 10th acquisition of a security, investigation and notification of and acquisition company in run-off. breach. The requirements include the (M&A) activity in the creation and maintenance of information insurance industry should increase for security program based on ongoing risk assessment, overseeing third-party the rest of 2017 and several years to come. In fact, M&A activity continued strong New Member service providers, investigating data into the second half of 2017 – just not in SunPoint Reinsurance limited breaches and notifying regulators of a the insurer and reinsurer sectors. (“SunPoint”), an international run-off cybersecurity event.” According to an October 2017 report by reinsurance company, has become a 10 Alvarez & Marsal 30 Freeborn 16 Morris Manning & 2 Saul Ewing Arnstein & ADVERTISERS 42 Budd Larner 38 Gardere Martin, LLP Lehr LLP IN THIS 8 Butler Rubin Saltarelli & Boyd LLP 17 Genpact 12 Kennedys CMK 43 Mound Cotton Wollan & Greengrass LLP 42 Squire Patton Boggs 42 Stradley Ronon ISSUE 37 Crowell Moring 35 Locke Lord LLP 44 Norton Rose Fulbright 34 Stroock & Stroock & 31 EY 19 Mayer Brown 42 Rubin, Fiorella & Lavan 4 Foley & Lardner LLP Friedman LLP 18 White and Williams LLP 22 AIRROC MATTERS / WINTER 2017–2018
Francine L. Semaya & Peter H. Bickford member of AIRROC. “As a veteran of intellectual property, immigration, the legacy insurance and reinsurance and foreign investment services to WINTER 2018 arena,” said SunPoint’s CEO—Global Saul Ewing’s focus on representing Head of P&C Run-off—Karl Wall, “I insurers, reinsurers and others in the cannot overemphasize the value of insurance industry. AIRROC membership to SunPoint. Whether the objective is to network Sean Thomas with others who face similar challenges Keely, formerly in runoff, to collect reinsurance balances with Hogan Lovells on legacy books, or to resolve related in New York, has JANUARY 11-13 disputes in a commercial manner, joined Freeborn ABA Torts Trial and Insurance AIRROC is a valued and trusted partner. & Peters LLP Practice Section (TIPS) AIRROC’s mission of promoting the (“Freeborn”) as a partner in the 44th Annual Midwinter Symposium interests of entities with legacy business Litigation Practice Group and a Coral Gables, FL and enhancing knowledge both within member of the Insurance and www.americanbar.org and beyond the reinsurance arena is yet Reinsurance Industry Team in another important aspect of AIRROC Freeborn’s New York City office. membership that SunPoint recognizes.” Freeborn, an AIRROC partner law JANUARY 17 firm, recently expanded into the New AIRROC Regional Education Day York City market through its New York, NY People (and firms) combination with Hargraves, www.airroc.org McConnell & Costigan P.C. Sean on the Move can be reached at skeely@freeborn.com. FEBRUARY 7-9 In October, the American IAIR 2018 Insurance Insurance & International Resolution Workshop Reinsurance Legacy Group (“AIG”) Scottsdale, AZ Association (“IRLA”), made a couple www.iair.org a UK-based market of important body for insurance additions to its FEBRUARY 13-15 and reinsurance legacy professionals, legal and regulatory presence by RAA Cat Risk Management elected a new director, Darren Truman naming Lucy Fato as General Orlando, FL of Enstar Group. Mr. Truman joins Paul Counsel and Thomas Leonardi as Corver of R&Q, Simon Barnes of Zurich Executive Vice President, www.reinsurance.og Centrally Managed Business and Mark Government Affairs, Public Policy Hallam of Swiss Re, who were and Communications. Fato, who has MARCH 13-14 unanimously re-elected. Also, at its held several top legal positions in the AIRROC Spring annual awards dinner in November, the insurance industry including at Membership Meeting IRLA presented Bob Howe of AXA Marsh & McLennan, will oversee New York, NY Liability Managers (UK) Branch with its AIG’s global legal, compliance, www.airroc.org Service to Legacy Award for 2017, and regulatory, and government affairs Victor Nelligan of PriceWaterhouse– function. Leonardi, who previously Coopers LLP as its 2017 Legacy Young MARCH 24-27 served as the Professional. Commissioner of NAIC Spring Meeting In September, Philadelphia-based Insurance at the Milwaukee, WI law firm Saul Ewing merged with Connecticut www.naic.org Chicago-based Arnstein & Lehr to Insurance form the firm of Saul Ewing Arnstein Department, and as & Lehr LLP, with 400-plus attorneys in an investment banker and venture Delaware, Florida, Illinois, Maryland, capitalist, will oversee AIG’s global If you are aware of items that may qualify for the next Massachusetts, New Jersey, New York, public policy and government affairs “Present Value,” such as upcoming events, comments or Pennsylvania, and the District of and build lines of communication developments that have, or could impact our membership, Columbia. In addition to expanding its with the numerous regulators that please email Fran Semaya at flsemaya@gmail.com or Peter territorial reach, the combined firm is oversee AIG at the state, federal, and Bickford at pbickford@pbnylaw.com. expected to add expertise in the fields of international levels. l AIRROC MATTERS / WINTER 2017–2018 23
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