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Will Reinsurers Still 'Follow-the- Settlements'?
In the insurance arena, allocations of claims amounts are frequently the subject of litigation among policyholders and insurers. Courts seek to fashion allocation formulas based upon a number of factors including policy language, legal principles and equitable considerations. In the reinsurance context, allocation questions are generally resolved in arbitration. A number of courts, however, have recently addressed the allocation of claims settlements in the reinsurance context. The issue in reinsurance is whether the reinsurer is bound by the cedents' allocation of a loss or settlement amount to the cedents' policies at issue in the underlying claim. Reinsurers are generally bound to “follow-the-fortunes” or “follow-the-settlements” of a cedent provided the cedent has acted reasonably and in good faith and in accordance with the terms of the reinsurance contracts. Aetna Cas. & Sur. Co. v. Home Ins. Co., 882 F. Supp. 1328, 1346 (S.D.N.Y. 1995). This article surveys recent case law that has addressed the question of whether the “follow-the-settlements” or “follow-the-fortunes” doctrine applies to allocation of claims payments or settlements to reinsured policies.
The 'Follow-the-Settlements' Doctrine
The “follow-the-settlements” or “follow-the-fortunes” doctrine requires a reinsurer to cover settlements made by the reinsured, as long as they are not fraudulent, collusive, or made in bad faith. Aetna Cas. & Sur., 882 F. Supp. at 1346. The doctrine obligates the reinsurer to indemnify a cedent for good faith payment of claims that arguably fall within the scope of the underlying policy that was reinsured. Mentor Ins. Co. (U.K.) Ltd. v. Brankasse, 996 F.2d 506, 517 (2d Cir. 1993). The term “follow-the-fortunes” describes the reinsurer's obligation to follow the ceding insurer's underwriting fortunes, whereas “follow-the-settlements” refers to the duty to follow the actions of the cedent adjusting and settling claims. Aetna Cas. & Sur., 882 F. Supp. at 1346 n.9. However, most commentators and courts use the two terms interchangeably.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?