Policyholders contemplating insurance coverage settlements with low-level insurers should use caution to preserve their ability to access higher-level excess policies. Excess insurers are increasingly disputing that underlying policies are properly exhausted where policyholders elect to settle with underlying insurers for less than full limits. The issue can be further complicated if the policyholder seeks protection under the bankruptcy laws against long-tail liabilities, as a recent case illustrates.
Ever since the U.S. Court of Appeals for the Second Circuit decided Zeig v. Mass. Bonding & Insurance Co. in 1928, it has been well-settled that a policyholder can compromise a disputed claim with its insurer for less than the full limits of the policy without putting its rights to excess coverage at risk.
In most financing transactions, particularly project finance transactions, lenders seek to obtain security over all of a borrower’s assets. One crucial asset that sometimes does not get sufficient attention is insurance proceeds. Lenders are accustomed to ensuring access to the borrower’s insurance coverage through “additional insured” or “loss payee” provisions.
The availability of a debtor’s insurance policy can have a significant impact on its chapter 11 case. Indeed, in certain chapter 11 cases insurance proceeds may be a creditor’s only opportunity to potentially receive a recovery on meritorious claims. Relying on insurance proceeds, however, is not infallible. An insurance policy may, for example, contain a coverage exclusion that would preclude a claim. For instance, nearly all directors’ and officers’ liability insurance policies traditionally include an insured v.
A common query with D&O insurance coverage is whether post-insolvency claims against the insolvent company’s directors and officers trigger the Insured vs. Insured exclusion found in most D&O policies. This issue arises when claims are brought on behalf of the insolvent company against directors in an attempt to recover money for creditors.
On May 10, 2016, the Supreme Court of the State of New York, New York County, entered an Order of Liquidation as to Health Republic Insurance of New York (HRINY) based upon a petition filed by the Acting Superintendent of the New York Department of Financial Services, Maria Vullo. The Order was entered upon the filing of an
Better late than never, the Third Party (Rights Against Insurers) Act of 2010 finally came into force in an amended form on 1 August 2016. It applies across the UK, with minor variances between Scotland and England and Wales. The Act updates third party creditors’ rights against insurers under the 1930 Act of the same name, permitting a streamlined and more cost-efficient procedure for creditors’ claims against insurers in circumstances where the insured company/ individual which took out the liability insurance has suffered an insolvency event.
Historic Position
A key question in any litigation is whether the defendant can satisfy a judgment. Where the defendant is both insolvent and insured a further issue is whether the claimant can ultimately recover payment from the insurer. This may be possible under the Third Parties (Rights against Insurers) Act 1930 ("1930 Act") but there are a number of significant hurdles for a third party to overcome before it can benefit from the application of the1930 Act.
The 1st August 2016 sees the coming into force of the Third Parties (Rights Against Insurers) Act 2010. The 2010 Act will replace the Third Parties (Rights Against Insurers) Act 1930, and will hopefully make it easier for claimants who have claims against insolvent defendants to bring in the defendant’s insurer.
The 1930 Act
Third Parties (Rights Against Insurers) Act 2010: in force from 1 August 2016
In August 2016 significant changes to English insurance law will take effect.
On 1 August 2016 the Third Parties (Rights Against Insurers) Act 2010 (the 2010 Act) will come into force. The 2010 Act will be swiftly followed by the Insurance Act 2015, which will come into force on 12 August 2016.
Third Parties (Rights Against Insurers Act) 2010