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Welcome to the first e-edition of the Edwards Wildman Insurance and Reinsurance Review. On the U.S. side, we report on what insurers can do to avoid “institutional bad faith” claims; new federal guidance on fixed indemnity benefits under the Affordable Care Act; and contingent business interruption claims. We also make available a 50-state bad faith survey. On the UK side, we consider the UK Supreme Court decision on legal advice privilege; a decision on the boundaries of a before-the-event (BTE) insurance policy; a decision on the proper forum for a dispute involving business placed in London for a U.S. insured; and a holding that apportionment does not apply to liability insurance. Lastly, we consider the decision of the Hong Kong Court of First Instance on the transfer of long-term business under the Hong Kong Insurance Companies Ordinance. Short synopses of all articles are presented below, as well as listed in the left column of the Review, for your ease of reference. We hope you enjoy this edition of the Edwards Wildman Insurance and Reinsurance Review. Paul Kanesfsky Victoria Anderson
ARTICLES IN THE APRIL 2013 EDITION OF THE REVIEW
Be Proactive to Avoid Claims of Institutional Bad Faith There is a species of bad faith claim that is particularly dangerous – indeed, one might call it a bad faith claim on steroids. What has come to be known as "institutional bad faith" is a claim that attempts to indict the conduct of an entire company, not just that of an individual claims examiner. Such a claim may also be brought as a class action. More >> New Guidance Issued on "Fixed Indemnity" Insurance Benefits Under Affordable Care Act The U.S. Departments of Labor, Health and Human Services, and the Treasury recently released new guidance regarding when "fixed indemnity" insurance policies will qualify as "excepted benefits" under the Patient Protection and Affordable Care Act. The latest (Part XI) in the Departments' series of "FAQs About Affordable Care Act Implementation," dated January 24, 2013, states that the above Departments intend to work with state insurance departments to enforce their interpretation of the rules pertaining to fixed indemnity coverage. More >> Preparing for Contingent Business Interruption Claims in the Wake of Superstorm Sandy The sheer amount of physical damage caused by what was left of Hurricane Sandy when it made landfall in New Jersey on October 29, 2012, is difficult to comprehend fully even now. One likely result is a surge of CBI claims. More >>
Victory and a Warning Shot for Before-the-Event Insurers The Court of Appeal in (1) Christine Brown-Quinn (2) Webster Dixon LLP & Ors v (1) Equity Syndicate Management Ltd (2) Motorplus Ltd [2012] EWCA Civ 1633 examines the boundaries of a before-the-event legal expenses insurance policy and an insured's freedom to choose its lawyer. More >>
In Howden North America Inc & Anr v Ace Eruopean Group Ltd & Ors [2012] EWCA Civ 1624 the Court of Appeal illustrates that there is no guarantee that an English court will find England to be the appropriate forum in insurance cases where the policy is placed in London by London brokers. More >>
In R (on the application of Prudential plc and another) v Special Commissioner of Income Tax and another [2013] UKSC 1 the Supreme Court has decisively ruled, by a majority of 5:2, that legal advice privilege only applies to members of the legal profession. In particular, it will not apply to accountants giving legal advice on taxation matters. More >>
The principle of apportionment has long been applied to marine property losses. The Court of Appeal's decision in ACE European Group & Others v Standard Life Assurance Ltd [2012] EWCA Civ 1713 confirms that this principle, which is largely derived from the practice of averaging in marine underinsurance, has no place in liability insurance. More >>
Hong Kong: Transfer of Long-Term Business and the Court's Role In Re AXA (Hong Kong) Life Insurance Co Ltd, the Court of First Instance reiterated the approach that the Court would take when considering a proposed scheme of transfer of long term business from one insurer to another under section 24 of the Insurance Companies Ordinance. More>>
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