The opinion is from In re The Diocese of Buffalo, N.Y., Case No. 20-10322, Western New York Bankruptcy Court (entered December 27, 2021, Doc. 1487).

The Diocese of Buffalo asks the Bankruptcy Court to refer its Chapter 11 case and related adversary proceedings to mandatory global mediation–it does so twice. Its first request is denied. It’s second is granted . . . but with limitations.

Overview

１．はじめに

保険契約は、何十年間、場合によっては終身期間の契約と なっているものもあります。保険事業者（保険会社を含みます。 以下同様です。）は、契約者保護の観点から、法令により、財 務の健全性を保つことが義務付けられていますが、それでも なお、長期の契約期間中に経済が大きく変動し、経営状態の 良かった保険事業者でも倒産する可能性があります。

1990年代から2000年代にかけて、保険会社の倒産事例が いくつか発生した後は、日本において保険事業者が倒産する ことはしばらくありませんでしたが、2020年に東京地方裁判所 で保険事業者の民事再生の事案が発生しており、今後も保険 事業者の倒産事案が発生する可能性があります。

以下では、保険事業者が倒産した場合を中心に、倒産手続 における保険契約1 の取扱いを解説いたします。

２．保険事業者が倒産した場合

（１） 各倒産手続での共通事項

When Covid hit in March 2020 and the country went into lockdown with an associated dip in economic activity and consumer confidence, the viability of many small and medium sized enterprises was called into question. Many directors will have had cause to consider their obligation to place their company into an insolvency proceeding in order to insulate themselves from personal liability, and in particular liability for wrongful trading (continuing to trade when they knew or ought to have known there was no reasonable prospect of the company surviving).

1. State of the Restructuring Market

1.1 Market Trends and Changes

State of the Restructuring and Insolvency Market

There were 27,359 insolvencies in France as of the end of September 2021, down 25.1% from the same period in 2020, and down 47.9% from September 2019. Such reduction is relatively stable across all sectors, including those most severely affected by the health-related restrictions, such as accommodation and food services (down 44.2% year-on-year) and trade (down 28.1% year on year).

In Ristorante Limited T/A Bar Massimo v Zurich Insurance Plc [2021] EWHC 2538 (Ch), the Court considered the interpretation and legal effect of a question asked by an insurer to a prospective insured around prior insolvency issues. The insured agreed with the insurer’s question, as framed, that there were no prior insolvency issues. Insurers failed in their attempt to avoid the policy for breach of the duty of fair presentation based on alleged misrepresentation. Insolvency events in relation to other companies did not need to be disclosed.

The High Court has set out the principles that apply to the construction of questions in an insurer’s automated online underwriting system and the circumstances in which an insurer’s questions may lead to waiver of the right to be told about certain information. In this case, the Court considered the construction and scope of the insurer’s standard question concerning previous insolvencies, and held that the wording used waived the insurer’s right to be told about other insolvency events not caught by the question.

Background

When a plaintiff obtains judgment against an insured but insolvent defendant in the Cayman Islands is the plaintiff entitled to the policy proceeds or do they have to be paid to the liquidator for the benefit of the defendant's creditors? The answer is yes when the claim involves a vehicle but is less clear in other cases. This article considers the arguments for and against a plaintiff being entitled to the policy proceeds in cases that do not involve a vehicle.

Background

The questions that an insurer asks prospective insureds on an application for insurance, and the answers given in response, can have important ramifications on the parties’ rights and obligations going forward. The proper interpretation of those questions can often prove crucial in determining whether the insured has complied with their obligation to disclose material facts and give a fair presentation of risk. The consequences of any misrepresentation or material non-disclosure can be significant, including denial of coverage by the insurer.

U.S. Court of Appeals for the Third Circuit, September 15, 2021