UK & Europe
Insurance & Reinsurance
Equitas Insurance Ltd v Municipal Mutual Insurance Ltd settled
Last year the Court of Appeal held that the practice of 'spiking' - whereby insurers were entitled to present their reinsurance claims to any exposed policy year of their choice - of mesothelioma claims settled under employers' liability insurance policies should not extend to a reinsurance context.
Accordingly an insurer/reinsured which settles without allocating the loss to any particular year of exposure must present claims to its reinsurer(s) on a pro rata, time on risk, basis.
Municipal Mutual Insurance was granted permission to appeal by the Supreme Court, and that appeal was due to be heard this week. However, the hearing was removed from the list, and we have received notification from the Supreme Court confirming that the matter was “settled before its hearing date".
In absence of a Supreme Court ruling, this issue may arise again in the future, particularly as Flaux LJ had been clearly in favour of spiking when sitting as a judge-arbitrator on this matter prior to the Court of Appeal judgment.
Analysis of the Court of Appeal decision
The Court of Appeal held that the policy reasons which led to the decision in IEG did not apply in the reinsurance context, where other considerations took priority.
The Court of Appeal judgment effectively did away with spiking, and also the pro-rating of retentions and limits. The result was less favourable for reinsureds. First and foremost, the full amount of each year's reinsurance retention applies to the portion of the loss that is allocated to it. Also, the reinsured now bears the full risk of reinsurer insolvencies.
The focus on general contractual principles to limit a reinsured's ability to present its claims however it wishes will continue to be of interest in cases extending beyond the Fairchild enclave (although even in the context of the Fairchild enclave, other considerations may come into play: see, for example, the reference to "differing intensity of exposure", the precise meaning of which is not made clear in the judgment). This was a significant extension of the implied duties of good faith which have previously been applied in insurance and reinsurance cases.
The Compensation Act 2006 provided, broadly, that where an employee has been exposed to asbestos whilst working for various employers, and as a result has contracted mesothelioma, each employer can be sued in full by the employee (this reversed the position established by the House of Lords in Barker v Corus that each employer was liable only for his proportion of the loss).
In Zurich v International Energy Group, the majority of the Supreme Court (although not required to decide the point) opined that, where an insurer has insured an employer for only part of the period of exposure, that insurer must meet the whole of the employer's liability to the employee (although that insurer would also have a right to seek proportionate contributions from other insurers, or the employer (if the employer had not taken out insurance for a part of the period of exposure)).
The issue involved in this case is whether an insurer which was on cover for multiple years can put the whole of its payment to a reinsurer who was on cover for only part of the period (i.e. whether it is possible to 'spike' at the reinsurance level).
That issue was put to Flaux LJ (sitting as a judge-arbitrator) who ruled in favour of spiking. The Court of Appeal gave permission to appeal the award on a question of law pursuant to section 69 of the Arbitration Act 1996. When giving that permission, Gloster LJ expressed a view that certain issues decided by the tribunal were at least open to serious doubt.
Court of Appeal
The Court of Appeal unanimously allowed the appeal against the award and held that an insurer/reinsured which settled without allocating the loss to any particular year of exposure must present claims to its reinsurer(s) on a pro rata, time on risk, basis.
The Court of Appeal held that the exceptions created by the courts to deal with the particular problem of mesothelioma were intended to ensure that victims are compensated. However, once that objective is achieved, the law should return to the fundamental principles of the common law: "put shortly, once unorthodoxy has served its purpose, we should revert to orthodoxy". In relation to the specific arguments raised, it was held as follows: