Tag Archives: ceding company

A Dangerous Misunderstanding on the Reinsurance Broker’s Role

Reinsurance represents one of the most valuable but least understood assets for insurance companies. Unfortunately, it is sometimes, without much further consideration, assigned to be monitored by someone at the insurance company who is not savvy about reinsurance and who has other, primary job duties. As a result, by default, it can be the broker who sold the program who is left to advise management on such important issues as recovery, premium calculations and interpretation. Many insurance companies act as if the broker is a fiduciary working for them. This approach provides for a direct conflict of interest that the company ceding responsibility is often totally unaware of. Deferring reinsurance oversight to the broker is not an appropriate course of action.The misunderstood relationship with the broker

A recent court case (Workmen’s Auto Insurance Co. v. Guy Carpenter & Co., B211660 (c/w B213853)) specifically determined that the reinsurance broker does not owe a fiduciary duty to a reinsured company. The court rejected the company’s argument that the broker, as the company’s agent, had heightened duties including those of honesty, loyalty, integrity and faithful service, as well as a duty to make a full and fair disclosure of facts.

It was asserted that the broker breached its duty by failing to secure timely payments, failing to secure the best available terms of reinsurance and acting with the intent to injure the company by incurring inflated commissions. The court said the question was whether the broker was the company’s agent and, if so, whether that agency imposed fiduciary duties on the broker as a matter of law such that the broker can be held civilly liable for breaching those duties.

The court said that an “independent insurance broker is not an agent of the insurer, but rather is an agent of the insured.” But the court also said that a broker “cannot be sued for breach of fiduciary duty in a manner that conflicts with existing insurance law. In reaching this conclusion, we confess that agency law and insurance law are in conflict, resulting in a legal conundrum.”

The company suggested to the court that case law and statutory law involving insurance brokers should not be applied to reinsurance intermediary-brokers because they have far more complex and comprehensive relationships with their clients. The court responded that such an argument should have been brought up sooner and ultimately allowed the broker to prevail because of procedural rather than substantive issues.

Comparing the relationship of an insurance broker with an insured to the reinsurance broker’s relationship with a reinsured is amazingly naïve. Somehow, it escaped the court’s attention that the reinsurance transaction is not strictly regulated, and that applying the same rules to a relatively non-regulated transaction was inappropriate at best. Perhaps the court believed that insurance case law developed in a vacuum, and that it was not tempered by regulatory oversight and legislative consumerism.

Still, the author assumes that the court would apply its same “(il)-logic” to other reinsurance brokers.

The aha moment

The broker itself defines “broker” as a reinsurance intermediary that negotiates contracts on behalf of the reinsured. Yet the broker says it does not have the traditional duties imposed in the agency-principal relationship.

The attitude by the broker is, in my opinion, the single biggest takeaway for companies ceding management of their reinsurance. It is confirmation that is incorrect to believe that your broker owes you the duties of honesty, loyalty, integrity and faithful service as well as a duty to make a full and fair disclosure of facts, and that it is acceptable for brokers to generate inflated commissions. It is now been made clear that, when push comes to shove, the standards to which your reinsurance broker is held are not really a whole lot different than when you are buying a used car, where statements made concerning the sale are considered “puffing”; just an opinion or judgment that is not made as a representation of fact.

Companies that delegate reinsurance risk management to a broker may themselves be breaching fiduciary duties to stakeholders. That is, while the case concluded that the broker does not have a fiduciary duty to the reinsured, courts are quick to confirm that officers of the reinsured do have a fiduciary duty to the reinsured.   Obviously, officers cannot meet their fiduciary duties by assigning those duties to someone whom the court has found to have no fiduciary obligation to the reinsured.

I do not fault the particular broker in its defense. The issue is not the particular broker in the case or brokers in general; the real issue is the willful ignorance of the reinsured. Not questioning the motives of the broker is naïve. Remember, the broker, like the used car salesman,  makes his money based on how much comes out of your pocket in the sales transaction.  Risk management requires truly understanding the environment in which you operate.

The above case is not unique in bringing to light the ignorance of courts concerning reinsurance. Judges have been known to throw up their hands when dealing with reinsurance and admit that they do not understand what is being presented.  In the case of Indiana Lumbermans Mutual Insurance Co. v. Reinsurance Results, Inc., in the U.S. Court of Appeals for the Seventh Circuit, Case Number: 07-1823, the court stated:

“The lawyers’ oral arguments were excellent. But their briefs, although well written and professionally competent, were difficult for us judges to understand because of the density of the reinsurance jargon in them. There is nothing wrong with a specialized vocabulary – for use by specialists. Federal district and circuit judges, however, with the partial exception of the judges of the court of appeals for the Federal Circuit (which is semi-specialized), are generalists. We hear very few cases involving reinsurance, and cannot possibly achieve expertise in reinsurance practices except by the happenstance of having practiced in that area before becoming a judge, as none of us has.”

Ignorance is only part of the problem

The reinsured holds much power but is afraid of using it. The playing field is certainly not level to begin with, but all too often the ceding company’s management exacerbates this lopsided power arrangement. It is amazing how ceding company management knows instinctively that their clients have many alternatives, but somehow believe that they, as a client of the reinsurance broker, have no alternatives. Companies often do everything they can to protect the “long-term broker relationship.”

This demonstrates a complete lack of understanding by ceding company management of their own fiduciary duties. The fiduciary duties of officers of insurance companies are to the company stakeholders, not to the reinsurance brokers.

This lack of understanding should be of particular interest to regulators overseeing insurance. All states now have a statute or regulation pertaining to recognizing a company in “hazardous financial condition”; one telltale sign is the lack of competence and fitness of those in management. Breaching a fiduciary duty could indicate lack of fitness.

Most insurance companies are ultimately in business to make money and serve their clients. Mistakenly believing that you are in business to make friends and keep long-term broker relations will put you out of business.  Reinsurance is a commodity. Thinking of it as anything else makes you an uninformed consumer.

Your reality – the Wild West

Your business (insurance) is a highly regulated one that owes a fiduciary duty to its clients. To stay in business, you must depend on reinsurance, offered by an entity (reinsurers) that is, for all intents and purposes, unregulated. Additionally, this commodity must be purchased in certain quantities or an agency (AM Best) that gauges how viable you are will let everyone know that you face questions.  You may have to go through a salesman (broker) that the courts have determined owes you no fiduciary duties, and whose income is based on how much it can sell you. That is, there is no  incentive for “your” agent to advise you of ways to reduce your costs. To people in other industries, it would appear that “your” agent actually doesn’t work for you.

If the commodity you purchased turns out not to be what it was said to be, then you must arbitrate the matter with the entity that offered it. Reinsurance arbitration has proven to be every bit as costly and time-consuming as litigation but offers none of the advantages or safety nets provided by the courts. In spite of naïve judges, the court system is a better option. Judges are naïve only because reinsurance transactions so seldom land in court. Courts are a vastly superior forum that offers reason, rules and stare decisis, where precedent is followed, records are published and the same issues do not have to be determined multiple times. In arbitration, if a decision is made that is unfavorable, you may not appeal the decision. If this same scenario has been arbitrated before, you will never know it, because there is neither precedent nor a record. The outcome will not be determined by legal construction of the commodity you purchased and a set of interpretive construction rules but by the “custom and practice” of the industry, which coincidentally is neither written down nor uniformly agreed upon or adhered to. Arbitration only provides an advantage for the unregulated party to the transaction; it in no way benefits the regulated party. If the commodity you purchased does not measure up to the set of standards your regulator imposes, your regulator will punish you, not the entity that produced the commodity. Additionally, your clients to whom you owe a fiduciary duty have no recourse against the producer of the defective commodity you purchased even if it caused you to go out of business.

Substitute ANY other industry for insurance, reinsurance and broker in this scenario and you will quickly discern the absolute draconian forum in which you must operate.  Now you can see why I don’t believe that the ceding company has a reasonable basis to believe that deferring reinsurance oversight to the broker is appropriate.

The next time you sign your broker-of-record contract, try this experiment:

Ask to insert the clause  – “the broker agrees and understands that it is acting as a fiduciary for the Company in all matters in which it services the Company, with all duties and standards imposed in a fiduciary capacity.” While the court was not willing to assign such duties, the broker is free to contractually assume them!

Addressing Objections to a Second Look at a Reinsurance Recovery

Most ceding companies avail themselves of catastrophe reinsurance, a product that pays anywhere from 90 to 100% of aggregated event loss after the ceding company’s retention up to the limits obtained. Generally the retention is determined as some fraction of the company’s surplus and the exposure profile of the company from any one catastrophe. The ceding company wants that retention high enough to not merely be swapping dollars with the reinsurer for frequency events, but low enough that the “shock” of the sudden demand for cash to pay claims does not impair the company.When a broker tells a ceding company what the rate-on-line is for a catastrophe treaty … (the rate for a limit of coverage) or the inverse of a payback period, that number is not assuming any reinstatement of limits occurring. The reinsurers have now worked it that the reinstatement premium will in effect accelerate the payback period and increase the actual rate-on-line by requiring 100% as to time in reinstatement calculations. This was not always the case — at one time the reinsurer only charged for the reinstatement limits at a pro rated factor of the time remaining on the treaty.

Catastrophe reinsurance is somewhat unique in that its limits must be reinstated, but reinstating those limits now generally comes at a price higher than the original limits costs. This is so because the reinstated limits are only good for the remainder of the treaty period, not for the entire annual contract period as were the original limits. For example, suppose a Texas ceding company had a catastrophe treaty for the period from Jan 1, 2012 to December 31, 2012 and a hurricane came through Houston on October 1, 2012, exhausting the cedant’s treaty limit. The cost to reinstate that entire limit is the same dollars as it was to initially secure the original limit, but the second limit is good only from October 1, 2012 to December 31, 2012. Thus, the limits costs are the same for a three-month period reinstatement as they were for a twelve-month original limit of the same amount.

Reinsurers may tell ceding companies at renewal time that they are renewing at the expiring rate, but what the ceding company must be aware of is that a reinsurer’s practice is not unlike the federal government saying it will not raise tax rates, but then taking away some deductions so that the net effect is to increase the tax owed. At renewal, the ceding company may find that because of some change in the treaty definitions initiated by the reinsurer, it will have to pay more for the treaty even thought the “rate” stayed the same. The net effect may be that while the rate did not change, the measurement against that rate did change, making the actual treaty costs increase or coverage decrease.

Consider also that if the ceding company had been carrying its original limits equal to the one in one hundred year storm, and such limits were appropriate, the reinstatement limit is now being carried for a second one in one hundred year event occurring in the same year, but happening again in the next three months, a highly unlikely scenario. The reinsurer is actually making the ceding company reinstate the catastrophe limit at a higher cost for an event that is even less likely to occur … but never fear, the reinsurer will offer to sell the ceding company yet another product that will cover the reinstatement costs … a treaty now for a charge slightly below the reinstatement costs that will pay the reinstatement premiums for the catastrophe treaty so that the ceding company will have reinstatement limits available in the event a second one in one hundred year catastrophe strikes within the next three months. (A pre loss, pre pay option treaty so to speak, where the ceding company can prepay the reinstatements now at a discounted rate!)

One of the primary attributes making for sound-rating analysis is the law of large numbers. That is, enough units are insured providing that sufficient losses are experienced in order to provide predictability to an event. By its very nature, catastrophes are generally unusual events as far as the individual ceding company is concerned. Regional ceding companies may experience an event that exceeds its retention only once every several years. Reinsurers thus, by in large, do not price catastrophe treaties for ceding companies on the individual cedant’s catastrophe experience.

Rates for catastrophe insurance are based on “cat models.” Cat models are used against the ceding company’s risk locations and dollars of exposure at those locations. That is, all other things being equal, having 5 billion dollars of insurance exposure along the coast where the models predict a hurricane will strike will cost the ceding company more to reinsure than 5 billion dollars of inland exposure, where the models show the effects of a hurricane are less intense.

During any catastrophe, claims are filed in multiples of what the ceding company may be used to dealing with on a normal basis, and the ceding company may be required to utilize the services of independent adjusters to augment their own claims personnel services. The combination of high volume, tyranny of the urgent, and utilization of temporary staff provides ample opportunity for mistakes in coding, reinsurance reinstatement premium calculations, and event identification.

Event identification is simply the realization that the loss may not be correctly identified to the named event covered. Not all policyholders may immediately turn in a claim, and a claim that is turned in months after the event may be miscoded and missed in reinsurance recovery. Additionally, not all reinsurance recovery is utilized because the cedant did not realize that certain subsequent events are covered.

For example, suppose a claim is paid and closed, and a recovery is made from the reinsurer for the event. Two years later the ceding company receives a suit alleging bad faith and deceptive practices and other allegations that the claim was mishandled. Many insurance companies will put its Errors and Omissions carrier on notice of the allegation being made. However, not all will notify the reinsurer of possible additional development under the treaty for the catastrophe under the ECO/XPL* portion of the cat treaty, which treaty has already been tapped. The ceding company will likely have a per claim retention under its Errors and Omissions policy, plus it is responsible for the stated limits of the policy it issued to the insured before its Errors and Omissions coverage kicks in. Whereas the cat treaty retention has already been met, meaning the ECO/XPL coverage of the cat contract will essentially provide Errors and Omissions coverage sooner to the cedant.

Additionally, depending on the definition of net retained loss under the treaty, it is possible under given circumstances that the ceding company could collect twice for the same Errors and Omissions loss, once under the treaty’s ECO/XPL and if large enough, additionally under its Errors and Omissions policy. An argument by the reinsurer that a collection under the Errors and Omissions policy inures to the treaty should be challenged with a claim that then the premium of the Errors and Omissions policy must similarly reduce the measure (earned premium) against the rate the reinsurer is charging. In other words the reinsurer does not get the inuring benefit of the Errors and Omissions without a corresponding allowance for its costs to the cedant. However, the cedant may be better off arguing the definition of retained loss under the treaty than to argue for the inuring costs.

During the turmoil of a catastrophic event, it is entirely likely that other reinsurance treaties will be overlooked or receive lesser attention. Most per risk treaties have a single occurrence limit, so that the per risk treaty is not used for catastrophic events. However, in many instances the per risk treaty inures to the cat treaty, so that the costs of the per risk treaty reduces the measure against which the cat rate is multiplied. In other words the costs of the per risk treaty reduces the costs of the cat treaty, because technically, the per risk treaty is supposed to be used up to the measure of its occurrence limit before the cat treaty is utilized; the recovery paid by the per risk treaty reduces the catastrophe loss.

As well, premiums may be missed or double paid, inuring contracts overlooked, or checks directed to the wrong reinsurer. I have seen the case during a catastrophe where a premium payment check was directed to the wrong Lloyds Syndicate, and such Syndicate was either so disorganized or so unethical, that it did not return the misdirected funds until after a formal request was made by the ceding company for the return over a year later. You can’t tell me the Syndicate thought that it was entitled to the money or did not realize it was not in the ceding company’s program.

The reinsurers are not your “friends.” They are not in the business to watch out for the interests of the ceding company — reinsurers are in business to make money, just as ceding companies are in business to make money. In 2010, just the top five reinsurers wrote over 98 billion dollars in premiums.

In a brokered market, the intermediaries do not only work for the interests of the ceding companies — they are in many cases dual agents. The word “intermediary” means go between, and for purposes of finances, intermediaries are the agent of the reinsurer, as provided in a standard intermediary clause ever since the federal case of 673 F.2d 1301; The Matter of Pritchard & Baird, Inc., which held that for purposes of money transfer, the broker is the agent of the reinsurer. Money received by the intermediary from the ceding company is considered money to the reinsurer, but money received by the intermediary from the reinsurer is not considered money to the ceding company.

Even all these years after Pritchard and Baird, I have recently witnessed where an unscrupulous reinsurer told the ceding company that it must collect from the intermediary the refund funds portion representing the intermediary brokerage fees. I have also witnessed where this same ceding company signed and agreed to placement slip terms but some 9 months later when the contract wording was finally provided, change the minimum premiums to equal the deposit premiums within the contract, successfully slipping this change by the cancer chemo patient general manager of the small ceding company and then arguing that it had no record of any change. Such behavior is inexcusable and would never have been caught without an independent reinsurance recovery review.

If reinsurers did things right, then the National Association of Insurance Commissioners would not have needed to adopt a rule requiring that final contract wordings must be signed within 9 months of the contract’s effective date to allow for accounting treatment as prospective, as opposed to retroactive, reinsurance.

It’s absurd to think that this type of rule should be necessary in the first place. The 9-month rule, which really comes out of Part 23 of SSAP 62, requires that the reinsurance contract be finalized — reduced to written form and signed within 9 months after commencement of the policy period. In effect the reinsurers being remiss in generating a timely reinsurance contract punishes the ceding company. The National Association of Insurance Commissioners also found it necessary to adopt the so-called 90-day rule. This rule requires the US ceding companies to take a penalty to surplus in an amount equal to 20% of reinsurance recoverables on paid losses 90 days past due. The rule also requires a 20% penalty to surplus for all recoverables due from so-called “slow payers.”

In effect reinsurers have been so remiss in generating timely contracts and paying bills in a timely manner that the National Association of Insurance Commissioners had to create rules to prod them into doing the right thing by punishing the ceding company if they don’t.

It also never ceases to amaze me the attitude of ceding companies in their thrill of receiving a 25% ceding commission from the reinsurer in a proportional treaty for business that costs the ceding company 33% to generate. Or how the reinsurer now “did them a favor” by allowing a 27% ceding commission in the renewal. Or how that so called quota share treaty that the reinsurer is supposedly a “partner” in has a catastrophe cap included for the benefit of the reinsurer. If this represents what it is like to partner and be the “friend” of ceding companies, then the plaintiff’s bar should certainly also be considered a friend of ceding companies.

Reinsurance intermediaries are required to be licensed in most states. Penalties are imposed on unlicensed intermediaries. In some states, led by New York through its Rule & Regulation 98, reinsurance intermediaries must have written authorization from a reinsured before procuring reinsurance for the reinsured. The reinsurance intermediary must provide the reinsured with written proof that a reinsurer has agreed to assume the risk. The reinsurance intermediary also must inquire into the financial condition of the reinsurer and disclose its findings to the reinsured and disclose every material fact that is known regarding the reinsured to the reinsurer.

Record keeping requirements also exist, mandating that the reinsurance intermediary keep a complete record of the reinsurance transaction for at least 10 years after the expiration of the reinsurance contract. Reinsurance intermediaries under these regulations are now responsible as fiduciaries for funds received as reinsurance intermediaries. Funds on reinsurance contracts must be kept in separate, identifiable accounts and may not be comingled with the reinsurance intermediaries’ own funds.

Most of the time the intermediary’s sales pitch to the ceding company emphasizes how it has a great relationship with the reinsurers, the inference being that such a relationship will ultimately provide for a better price for the ceding company in the negotiation process, as if the reinsurer will do a “favor” for the intermediary which will directly benefit the ceding company. Such fairy tale thinking is best left to children’s books and not in the board rooms of ceding companies. The truth is the intermediary is more dependent for its success on the relationship it has with the reinsurer than it is on the ceding company, and the intermediary is not about to alienate the reinsurer for the sake of a ceding company.

In the brokered market, the ceding company typically has no say in the treaty terms. What most small to medium ceding companies fail to realize is that just as an insurance policy that it issues is subject to being a contract of adhesion by virtue of the legal maxim of contra proferentem, so too is the reinsurance treaty to the reinsurer.

The Latin phrase “contra proferentem” is a standard in contract law, which provides that if a clause in a contract appears to be ambiguous, it should be interpreted against the interests of the person who insisted that the clause be included. In other words, if you speak ambiguously in a contract, your words can literally be used against you. This is designed to discourage people from including ambiguous or vague wording in contracts because it would run against their interests. This is a decisive advantage for many ceding companies in what are often ambiguously defined treaties produced by reinsurers.

All too often the ceding company simply falls in line with what the reinsurer says is the proper interpretation of the treaty language. Whether such complicity is reflective of the incorrect notion that the reinsurer is their “friend” and operates in its best interests or just ignorance, the fact is that ceding companies are often not fully utilizing the product for which they have dearly paid.

The services offered by such entities as Boomerang Recoveries, LLC provide for the ceding company a second look at the treaties it purchased and how it structured its recoveries from its various treaties. Every “touch point” along the recovery process provides for possible missed opportunity. An expressed reluctance by a ceding company to have its recoveries reviewed by an independent reinsurance professional represents misplaced loyalties. The loyalty of a ceding company is to its policyholders or its stockholders, not to its reinsurers.

Good faith and fair dealing owed by a ceding company to the reinsurer does not include foregoing rightful reinsurance recoveries or agreeing with every position of the reinsurer. In this day of increased litigation for Errors and Omissions and Directors and Officers issues, ceding companies should be more concerned with demonstrating their due diligence and exhibiting fiduciary responsiveness by trying to recover every dollar that they are entitled to receive under the treaty contracts, than in worrying about what reinsurers may think about an independent review of its reinsurance recovery process.

Think of it this way, if the ceding company obtained some tax advice on a return it had filed which showed that by refiling, it would be refunded $1,000,000 on the taxes it paid to Uncle Sam, will the officers of that company argue that filing an 1120X (Corporate Amended Tax Return) is a bad idea because it might look like an admission that the company had not taken every deduction entitled to it when it was originally filed or that the IRS might think poorly of the company? That would be absurd, but so too are the arguments that recasting and review of past reinsurance recoveries is a bad idea.

As we have seen:

  1. Every touch point in the recovery process is a potential to miss recovery … its just human nature to make more mistakes at the time of crisis than otherwise.
  2. Catastrophe treaties are not priced for individual company experience, but by models, so that additional recoveries will not directly impact the future rate charged the ceding company.
  3. Reinsurers are not in business to be your friend. Ceding companies pay sufficient premiums to collect all that they are entitled to collect under the treaty.
  4. Reinsurers will not tell ceding companies when a mistake is made or that it owes a ceding company more money.
  5. Intermediaries do not make a commission and are not paid to assure that the ceding company appropriately and fully utilizes the treaties that are placed.
  6. Reinsurance treaties are esoteric and a ceding company cannot rely on an intermediary to watch out for its best interests or interpret contracts in its favor.
  7. Increasing Directors and Officers exposures demand that officers and managers demonstrate their due diligence and the full filling of fiduciary duties. Even if no additional funds are shown as recoverable after a review, the effort is demonstrative of duties fulfilled.
  8. Intermediaries are dual agents and primarily “sell” their services to ceding companies by emphasizing the great relationship they have with reinsurers. Ceding companies need to understand that great reinsurer relationships do not mean better terms for ceding companies or that the intermediary is willing to sacrifice that relationship for the sake of the ceding company. Indeed, intermediary relationships with reinsurers are an extension of and built upon their loyalty to those reinsurers, not the ceding companies.
  9. Reinsurance treaties follow the legal maxim that ambiguities are construed against the drafter of the contract. Ceding companies need a truly independent expert that is not tied to the reinsurer, as is the intermediary, to argue for them and review recoveries on their behalf.

Cronyism has no place in today’s economy. Insurance managers are not reinsurance recovery experts, and utilizing the services of independent reinsurance recovery experts should be thought of as no different than utilizing the services of legal or tax experts to maximize the financial position of the ceding company. The deference ordinarily given to a reinsurer by a ceding company is substantially more than it would ever give to say, an insurer that carried its fleet auto coverage or its Directors and Officers coverage. Ceding companies should stop thinking of reinsurance as some sort of friendship pact and start considering it as they would any other insurance protection it purchased for its financial stability.

* Excess of policy limits, extra contractual obligations