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eligibility for Chapter 15 recognition and relief in the U.S. Part D discusses the very few decisions rendered by U.S. courts in re/insurer Chapter 15 cases filed to date which address issues specific to re/insurers, as opposed to those generic to Chapter 15 cases involving any debtor. 3 Part E considers the central objections articulated thus far by policyholder counsel to Chapter 15 relief in aid of solvent schemes of arrangement. 4 2. Chapter 15 Re/Insurance Cases Filed Through February 2009 CASE(S) Globale Ruckversicherun, Global General and Reinsurance Co Ltd Thomas Klaus Freudenstein as Foreign Rep FOREIGN PROCEEDIN G COUNTRY United Kingdom DISPOSITION Run‐Off Scheme Part of AXA pool (see below) Recognized Global General as Main Proceeding, Globale as Non‐Main Bluepoint Re Ltd Bermuda Provisional Liquidation Recognized as Main Proceeding Sphere Drake Insurance Ltd ING Re (UK) Limited United Kingdom United Kingdom Run‐Off Scheme Recognized as Main Proceeding Run‐Off Scheme Recognized as Main Proceeding REPORTED DECISIONS FILED IN U.S. BANKRUPTCY COURT FOR New York Southern Dist New York, Southern Dist New York, Southern Dist New York Southern Dist CASE # 08‐14939 08‐14940 Jointly Administere d Cases DATE FILED 10 Decembe r 2008 08‐13169 13 August 2008 08‐12832 22 July 2008 08‐10018 04 January 2008 3 Comprehensive exploration of key issues adjudicated to date respecting Chapter 15 is beyond the scope of this work. The author (smelnik@eapdlaw.com) can direct the reader to several recent compendia. In addition, as of this writing, the following court decisions on issues raised by Chapter 15 have been reported: In re Bancredit Cayman Limited, 2007 WL 3254369 (Bankr. Nov. 2, 2007), aff’d, 2008 WL 919533 (Mar. 31 2008), further disposition, 2008 WL 5396618 (Bankr. Nov. 25, 2008); In re Basis Yield Alpha Fund, Decision and Order on Motion for Summary Judgment Seeking Recognition as foreign main proceeding, 381 B.R. 37 (Bankr. S.D.N.Y. Jan. 16, 2007); In re Bear Stearns High‐Grade Structured Credit Strategies Master Fund, Ltd., 374 B.R. 122 (Bankr. S.D.N.Y. 2007), aff’d, 389 B.R. 325 (S.D.N.Y. 2008); In re Betcorp, __ B.R. ___, 2009 WL 606437 (Bankr. D. Nev. 2009) (on appeal); In re Condor Insurance Limited, 2008 WL 2858943 (Bankr. S.D. Miss. July 17, 2008), aff’d, 2009 WL 321627 (S.D. Miss. Feb 9, 2009); In re Ephedra Products Liability Litigation, 349 Bankr. 333 (2006); In re Ernst & Young, Inc, as Receiver of Klyties Developments, Inc, 383 B.R. 773 (Bankr. D. Colo. 2008); In re Ho Seok Lee, 348 BR 799 (Bankr. W.D. Wash. 2006); In re Iida, 377 B.R. 243 (BAP 9th Cir. 2007); In re Loy, 380 B.R. 154 (Bankr. E.D. Va. 2007); In re Oversight & Control Comm’n of Avanzit, SA, 385 B.R. 525 (Bankr. S.D.N.Y. 2008); In re Petition of Lloyd, No 05‐60100(BRL), 2005 WL 3764946 (Bankr. S.D.N.Y. Dec. 7, 2005); In re Pro‐Fit Holdings, Ltd, 391 B.R. 850 (Bankr. C.D. Cal. 2008); In re Ran, 390 B.R. 257 (Bankr. S.D. Tex. Houston Div 2008); In re SPhinX, Ltd, 351 B.R. 103 (Bankr. S.D.N.Y. 2006), aff’d, 371 B.R. 10 (S.D.N.Y. 2007); In re Tradex Swiss AG, 384 B.R. 34 (Bankr. D. Mass. 2008); In re Tri‐Cont. Exch Ltd, 349 B.R. 627 (Bankr. E.D. Cal. 2006); Lavie v Ran, 384 B.R. 469 (S.D. Tex. 2008); US v JA Jones Constr Group, 333 B.R. 637 (E.D.N.Y. 2005). 4 Only one of these objections has been asserted via formal objection filed in any Chapter 15 case to date (see In re Greyfriers Insurance Company Limited, et al., eleven (11) jointly administered Chapter 15 cases filed September 18, 2007 re “WFUM” pool solvent scheme participants, Bankruptcy Court for the Southern District of New York Case Nos. 07‐12934‐43).
CASE(S) Highland Insurance Company (UK) Ltd In re Greyfriars Insurance Company Limited, et al. ~ PRO Insurance Solutions Limited as foreign representative of: Greyfriars Insurance Company Limited, Sovereign Insurance (UK) Limited, Allianz Insurance PLC, Heddington Insurance (U.K.) Limited, Mitsui Sumitomo Insurance Company (Europe) Limited, The Ocean Marine Insurance Company Limited, Oslo Reinsurance Company (UK) Limited, The Sea Insurance Company Limited, Tokio Marine Europe Insurance Limited, WauSau Insurance Company (U.K.) Limited, Allianz Global Corporate & Specialty (France), [“WFUM POOL cases”] Condor Insurance Ltd FOREIGN PROCEEDIN G COUNTRY United Kingdom United Kingdom Cayman/ Nevis DISPOSITION Administration Recognized as Main Proceeding Pool Run‐Off Scheme Contested Ch 15: Policyholders objected arguing US bankruptcy court should not grant Ch 15 relief absent a full inquiry into scheme creditor protections. Ch 15 Recog. granted over obj as Main Prcdng re all but Allianz, Recognized as Non‐Main Filing to prevent collection of assets in US to satisfy arb award Contested Ch 15; Recognized as Main Proceeding REPORTED DECISIONS 2008 WL 2858943 (Bankr. S.D. Miss. July 17, 2008), aff’d, 2009 WL 321627 (SD Miss. 2/9/09) FILED IN U.S. BANKRUPTCY COURT FOR New York Southern Dist New York Southern Dist Mississippi Southern Dist CASE # DATE FILED 07‐13970 18 Dec. 2007 07‐12934 thru 07‐12943 Jointly Administere d Cases 18 Sept 2007 07‐51045 26 July 2007
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REFERENCE HANDBOOK ON INSURANCE COM
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Contributing Editors Cross‐Border
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Formal Proceedings ‐ Constitution
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Priorities ‐ Interstate Claimants
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Part III PART IV APPENDIX D. Bermud
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Rhode Island Statutes TITLE 27 Insu
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(17) "Policyholder" means an insure
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(3) All creditors, assumption polic
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(2) If, at any time, the conditions
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Run‐Off New York Seaton Ins. Co.
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as writs of seizure, were necessary
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Igel v. Phillips, 183 A.D. 220, 169
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wind up its affairs, even if the no
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insolvency, including the issue of
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over action would: (i) defeat domic
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the Commissioner of Insurance on be
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Sixth Circuit AmSouth Bank v. Dale,
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action did not automatically preclu
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proceedings. The New York insurance
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independent receivership proceeding
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Connecticut Florida Grasso v. City
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instance, because the regulation of
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company filed a motion for declarat
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Commissioner of Ins. v. Mid‐Ameri
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district court had exclusive jurisd
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SEC v. Republic National Life Ins.
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legislature granted exclusive juris
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Rejecting the liquidator's motion,
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time as an administrative claim had
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mandate application of Florida's in
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This simple declarative sentence pr
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its earlier holding [Bonura v. Unit
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In re Application for an Order Stay
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to prosecution of claims against hi
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were closely intertwined, the entir
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South Carolina Texas New South Life
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the insurance code. The trial court
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within the meaning of the insurance
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was overbroad in delaying indefinit
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financial institutions to transfer
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entities were in fact a "single bus
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the company in that other state to
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easoning that: 1) its earlier findi
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McConnell v. All‐Coverage Insuran
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company. The court also found that
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impermissible because they were not
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contrary appellate court judgment,
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exhaust the pro rata shares of solv
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asserted a priority despite the fac
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The question presented was whether
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Cir. 2000). The Ninth Circuit adopt
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entity with those conferred or with
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Pennsylvania court had exclusive ju
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liquidator argued that Ohio’s sta
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Vermont Costle v. Fremont Indemnity
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(“Munich”) and NAC Reinsurance
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Pine Top Ins. Co. v. Continental Re
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incapable of being performed," foun
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completion of the plan of arbitrati
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the policy make specific provision
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the catastrophe policy prevents “
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sought only money damages. 3 Hence,
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Commissioner has reasonable grounds
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policyholders were brought against
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a supervision‐release order for a
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secure a court‐ordered receiversh
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no liability exists for any acts ta
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stay of any proceeding in which an
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Fields v. Fidelity General Ins. Co.
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Illinois insurance code is vested i
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Michigan Daniel v. Citizens' Mutual
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appointment of a receiver to wind u
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independent actuarial firm, and all
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owned by one corporation, proposed
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den'd, 126 N.J. 389 (1991). The cou
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constitutional the statute under wh
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The circuit judge's denial of plain
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duplication provision of the PPCIGA
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New York National Union Fire Ins. C
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insurance companies pursuant to sta
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Matter of Morgan, 277 N.Y. 203, 14
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Alabama Arizona California Moody v.
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Schenek v. Citizens Casualty Co., 6
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disclosed in its annual statement.
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insurance company, the court held t
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Pennsylvania's interest in investig
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Pennsylvania Commonwealth ex rel. C
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non‐mandatory preference for the
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Powers and Duties of the Rehabilita
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the insolvency clause of a reinsura
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Financial Indemnity Company v. Supe
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ecause they had constructive notice
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Illinois law does not provide the D
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claimed. Although the code allows t
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040(3)(a) or 304‐33.190(2). Rathe
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to the state's unemployment compens
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State ex rel. ISC Financial Corp. v
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authorizing the Liquidator to prope
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implement the statutory liquidation
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that trust claimants will recover a
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showing that the rehabilitator’s
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insurer, sued former owner of insur
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Brainard v. Foster, Civil Action No
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Flowers v. Tennessee Trucking Ass
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the insurer under Texas law; and th
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state court against B.C. Rogers, an
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People ex rel. Baylor v. Multi‐St
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equiring the insurer to produce doc
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failed to demonstrate to the contra
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intervention. It is not an abuse of
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eview the actions of the insurance
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not reported losses (IBNR). The Sup
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Commonwealth tort claims against th
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Liquidation Act. On a petition for
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defendant to bring the action to th
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Main Ins. Co. v. Bradford, Williams
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proceedings against an insolvent Ne
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Matter of Title, Etc., Co. of Buffa
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the R.C. 3955.19 stay provision as
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Casualty Insurance Guaranty Associa
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property without a hearing. The Cou
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consent of the liquidators, the bro
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ecording of an order of liquidation
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Florida Imagine Ins. Co. v. State o
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executory contracts, and the insure
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procured new policies in a solvent
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Safeway liable for the entire amoun
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even lower interest rate than that
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North Carolina Texas North Carolina
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an individual and official capacity
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enterprise with United States Gener
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were not ultra vires acts. There we
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authorized by state law to petition
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Stamp v. Touche Ross & Co., 263 Ill
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control, or possession of the insur
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offers to compromise because severa
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insolvent insurer brought an action
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"interested parties" in a proceedin
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Assets of the Insolvent Insurer's E
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Garamendi v. SDI Vendome, No. CV 02
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for personal injury claim brought a
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transacting any insurance business
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Bent v. Hart, 10 Mo. App. 143 (1881
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discretion allowed policyholders to
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In re New State Life Ins. Co., 23 P
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ecover a subscription fund executed
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Pursuant to D.C. Code Ann. § 35‐
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ecause all the directors of the dis
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agree on whether Kentucky statutory
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W. J. Jones & Son v. Independence I
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precluding liquidator's avoidance o
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association's directors for monies
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a Transit insured. Fifteen months l
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court granted the motion. On appeal
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unearned portion of the premium was
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the insolvent Mission Insurance Com
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Drake v. Rollo, 7 Fed. Cas. Pg. 105
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judge to act as presiding judge ove
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$25,000 compromise would be paid to
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express purpose is to avoid financi
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einsurance contract against moneys
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provision and therefore its ruling
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complaint, the defendants would not
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as an offset against the insolvent
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Swiss Re made payments to Protectiv
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directors were not included in that
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purported rescission by the company
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members. The court further held tha
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instituting of the receivership pro
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would prevent a multiplicity of act
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assessments against members of a do
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Richards v. Hale, 14 O.C.D. 468, 1
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Wetmore v. Scalf, 85 S.C. 285, 67 S
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mutual insurance company because Wi
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out liquidation assessment powers i
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their insurer became insolvent. Any
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insolvent carrier, sought to interp
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The Home Insurance Co. v. Hooper, 2
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coverage. The court held that cover
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insurance, and that Mission was not
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contract. Further, as the parties t
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agreement. The Colorado receiver cl
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preliquidation assets that could be
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agreements with Legion Insurance Co
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prediction, and was neither arbitra
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Guaranty Association (“PPCIGA”)
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contrary holding would permit these
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People ex rel. Bolton v. Progressiv
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where the solvency of the company,
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agent of all premiums collected by
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subsequent to institution of delinq
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corporate mismanagement and account
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Mendel v. Garner, 283 Ark. 473, 678
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The lower court denied the claim be
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definition, a “covered claim,”
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Missouri MSEJ, LLC, v. Transit Cas.
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medical malpractice action, which i
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Suit was transferred to the court o
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within policy limits. The insolvent
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alleged negligence of an insured of
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Arkansas Colorado Florida Baldwin
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liquidator was entitled to rely upo
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Ohio Covington v. Ind. Dep’t of N
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River abstention doctrines did not
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directly against manufacturer. The
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insurance commissioner entered into
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un ten months and twenty‐six days
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policies were delivered, the state
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Accordingly, the manufacturer sough
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Sizemore v. United Physicians Ins.
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insolvency. The court found for pla
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equires all claims against the rece
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cancelled by order of the court, th
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Dewey v. Davis, 82 Wis. 500, N.W. 7
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April 18, the filing of the Missour
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Texas Buckner v. Lloyd's Ins. Co. o
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payment by the California Insurance
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the tortfeasors to recover its paym
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Ga. App. 660, 440 S.E.2d 254 (1994)
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Act. The Court also noted that whet
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opportunity to settle.” The court
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jurisdictions that did find associa
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Ohio Lake Hospital System, Inc. v.
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award. It became insolvent, however
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Rhulen advanced claim payments to T
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entitled to coverage from the Illin
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the negligence claim, brought by th
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insurer did not thereby release fro
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when contingent claims must necessa
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In Matter of Liquidation Of Integri
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from the time damages are certain o
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In re N.Y. Surety Co., 723 N.Y.S.2d
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Governmental/Superpriority Claims S
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Reliance Ins. Co. v. Shriver, Inc.,
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Georgia Boyd v. Wright, 148 Ga. 216
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policyholders, judgment creditors o
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when it appears that such funds or
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within the insurance statutes. Cred
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Priorities ‐ Federal U.S. Supreme
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statute was preempted by the federa
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instituting or taking further actio
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Florida Dilme v. SBP Serv., Inc. an
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Massachusetts Commissioner of Insur
Page 649 and 650: New York Finkelstein v. Van Schaick
Page 651 and 652: Texas Op. Att'y. Gen. WW‐795 (Tex
Page 653 and 654: Illinois People ex rel. Potts v. Co
Page 655 and 656: Arizona Colorado State ex rel. Low
Page 657 and 658: equirements had not been complied w
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Page 661 and 662: commissioner certain securities for
Page 663 and 664: State ex rel. Cincinnati Life Assn'
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Page 667 and 668: State ex rel. Burgess v. Crabbe, 11
Page 669 and 670: jurisdiction over the attorneys in
Page 671 and 672: Pennsylvania Lewycka v. Springfield
Page 673 and 674: meaning, held that the Indiana clai
Page 675 and 676: Rose v. Fid. Mut'l Life Ins. Co., 2
Page 677 and 678: uniform law or that it was necessar
Page 679 and 680: of incorporation of a mutual insure
Page 681 and 682: jurisdiction over that litigation f
Page 683 and 684: ehabilitation in Indiana and had ob
Page 685 and 686: Krueger v. Tabor, 546 So.2d 1317 (L
Page 687 and 688: and, because of the guarantees, for
Page 689 and 690: Rhode Island injunction by arguing
Page 691 and 692: In prior proceedings in this case,
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Page 695 and 696: Bryant v. Shields, Britton & Fraser
Page 697 and 698: against the Wisconsin Insurance Sec
Page 699: PART II Cross‐Border Run‐Offs a
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Page 705 and 706: • The Court in which the Chapter
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Page 711 and 712: arrangement, including solvent run
Page 713 and 714: 5. Chapter 15 ~ Official Text 1501.
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Page 735 and 736: MB Group Plc, Re (1989) 5 B.C.C. 68
Page 737 and 738: issued a third circular which state
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Page 741 and 742: The Judge (Roger Kaye Q.C.) allowed
Page 743 and 744: the agreement would not be avoided
Page 745 and 746: submitted that cover had been provi
Page 747 and 748: liquidators and in the English bank
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Stein so that he could pursue it. B
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Part III of the Winding‐up and Re
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v. Proceedings in Canada to Assist
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D. Bermuda ‐‐ The Bermuda Persp
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Hong Kong Court to restructure the
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Excluded Lines - Ocean Marine Louis
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Covered Claim - Unearned Premium co
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Oregon Corvallis Aero Service, Inc.
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purposes of joint and several liabi
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Affiliated FM Ins. Co. v. State, 33
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Heninger v. Riley, 317 Pa. Super. 5
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assumed the obligations of Dr. Lucc
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Florida Hawaii Fernandez v. Florida
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Case Law Digest Supplement LIFE & H
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Texas Messagephone, Inc., et al v.
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were invested in four group annuity
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Alaska Arizona Illinois Unisys Corp
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Minnesota Honeywell, Inc. v. Minnes
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plan participants rather than the G
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esponsible for attorneys’ fees an
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Alaska Arizona Indiana Unisys Corp.
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Federal Jurisdiction - Preemption c
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Supreme Court California New York U
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Assessments Assessments - In Genera
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the sales transaction is not uncons
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State Department of Insurance Insur
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Kentucky State Department of Insura
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New Jersey New Mexico State Departm
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Virginia Washington State Departmen
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© 2009 National Association of Ins
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CO Marcy Morrison Commissioner (Wes
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KS Sandy Praeger Commissioner NAIC
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NH Roger A. Sevigny Commissioner NA
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TN Leslie A. Newman Commissioner (V
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NAIC OFFICES NAIC Central Office: 2
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GUARANTY FUND DIRECTORY Updated 02/
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