In Re the Liquidation of Integrity Insurance

935 A.2d 1184, 193 N.J. 86, 2007 N.J. LEXIS 1425
Supreme Court of New Jersey·Decided December 13, 2007·Published·Cited by 46 cases

Opinions

Justice RIVERA-SOTO

delivered the opinion of the Court.

This appeal presents the latest — and not yet final — chapter in the now almost twenty-one-year-old liquidation of Integrity Insurance Company (Integrity). Determining that claims against Integrity’s reinsurers that have been incurred but not reported (IBNR claims) could be included as part of the most recent final distribution plan, the Chancery Division also established a mechanism, via a special master and in substitution of contractually agreed-upon arbitration provisions, for the determination of those IBNR claims. The Appellate Division, however, reversed in both respects, concluding that IBNR claims do not qualify for participation in the final distribution of an insolvent insurer’s liquidated estate pursuant to N.J.S.A. 17:30C-28(a), and that the special master dispute resolution mechanism adopted by the Chancery Division could not be sustained.

The plain language of N.J.S.A. 17:30C-28(a) requires that, in order to be cognizable in liquidation, a claim against the liquidated estate must be “absolute against the insurer on or before the last day fixed for filing of proofs of claim against the assets of [an insolvent] insurer[.]” That language does not permit the substitution of estimated claims for “absolute” ones, even when those estimated claims result from the application of sophisticated actuarial estimation methodologies. Because the very claims that would have been subject to the special master dispute resolution process cannot be part of the insolvent insurer’s estate, whether that process may override the contractually provided arbitration process becomes moot.

[89]*89I.

We previously summarized the history of this case as follows:

Prior to 1986, [Integrity] was a property and casualty insurer licensed to transact business in every state. Most of its risks were subject to reinsurance. Many of the risks (for example, environmental and products liability) were not expected to translate into reportable claims until many year's after the policies were issued. In addition, Integrity wrote excess and umbrella policies, under which a duty to pay does not arise until underlying coverages are exhausted.
In December 1986, the Superior Court, Chancery Division entered an order declaring Integrity to be insolvent. The court directed the rehabilitation of Integrity and appointed the New Jersey Commissioner of Insurance and his statutory successors in office as rehabilitators. On March 27, 1987, the court ordered Integrity into liquidation, and appointed the Commissioner as liquidator pursuant to N.J.S.A. 17:30C-9. The Commissioner was directed to marshal Integrity’s assets and liquidate its liabilities for the benefit of all claimants against its estate.
On June 17, 1996, the Commissioner filed a Final Dividend Plan (FDP) with the court to effect the early termination of the Integrity estate. That novel plan to wind up Integrity’s affairs essentially reduced the actuarial estimates of Integrity’s future liabilities to present value. Briefly summarized, under the FDP, the liquidator was to (1) estimate and allow the present value of all Contingent Claims, including claims for IBNR losses; (2) collect from reinsurers the present value of any reinsurance that will be due on such claims; (3) arrive at a final determination of Integrity’s assets and liabilities; (4) calculate the percentage to be paid on the Fourth Priority [policyholder] claims; and (5) pay a final dividend on all claims accorded Fourth Priority or higher status. The FDP will require Integrity’s reinsurers to pay off approximately [ ]800 million dollars of debt.
[In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 80, 754 A.2d 1177 (2000) (footnote omitted).]

One commentator has described that “novel plan” — the process of estimating IBNR claims — thusly:

A new and significant issue arising in insurer insolvency proceedings with significant impact on reinsurers is the authority of liquidators to estimate the value of contingent claims. Liability insurers facing environmental and similar “long-tail” claims may face substantial losses that have already occurred but which have not yet been reported. These losses are referred to in the insurance industry as IBNR (incurred but not reported losses). Ordinarily, a' liquidation proceeding for an insolvent insurer would continue until all claims become fixed. But awaiting the fixation of claims in some contexts would result in substantial delays in resolving the proceedings. In the meantime, there may be losses of potential reinsurance recoveries due to intervening reinsurer insolvencies, and the administrative costs of the proceeding would continue to mount.
One approach recently tried by receivers and liquidators of insolvent insurance companies is to estimate ... the value of IBNR claims and seek reinsurance [90]*90recoveries based upon the estimated value. Reinsurers have resisted the estimation approach, understandably fearing an incentive to inflate reinsurance claims on an available deep pocket.
[14-106 AppUman on Insurance 2d § 106.9 (2007).]

Ultimately allowing IBNR claims as part of Integrity’s final distribution plan, the Chancery Division explained that the Commissioner of Banking and Insurance (Liquidator) had presented “three possible options with respect to the conclusion of Integrity’s liquidation.” In re Liquidation of Integrity Ins. Co., 299 N.J.Super. 677, 680, 691 A.2d 898 (Ch.Div.1996). It succinctly outlined those options:

The first option involves a run-off approach and continuing the liquidation until all or substantially all contingent claims become absolute as to value and amount. This option, the Liquidator argues, would result in continuing the liquidation for at least another 10 years (likely longer), thereby delaying the full final dividend to claimants and policyholders, and causing the Estate to incur administrative expenses over the next 10 years of approximately $45 million.
The second option involves a cut-off approach whereby the Estate’s liability for any [IBNR] losses would be terminated. The Liquidator argues that this approach would be manifestly unfair to many policyholders and third parties with contingent claims who would lose any recourse to the assets of Integrity’s Estate.....
The third alternative ... proposes to estimate and, in appropriate cases, allow contingent claims at their net present value using an independent actuarial consulting firm, and collect any reinsurance that may be due on the claims. The Liquidator contends that such an approach will: (1) protect the interests of claimants with contingent claims, (2) abbreviate the delay in making final payment to claimants, (3) maximize the assets of the Estate, (4) reduce administrative expenses, and (5) lighten the burden of Integrity’s insolvency on the [state insurance guarantee associations] and the insurance-consuming public. If such a plan is implemented, the Liquidator hopes to conclude the liquidation of Integrity’s Estate within three years.
[Id, at 680-81, 691 A.2d 898.]

Free access — add to your briefcase to read the full text and ask questions with AI

In Re the Liquidation of Integrity Insurance, 935 A.2d 1184, 193 N.J. 86, 2007 N.J. LEXIS 1425 (N.J. 2007).

935 A.2d 1184 (In Re the Liquidation of Integrity Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

In the Matter of Registrant A.D.
119 A.3d 241 (New Jersey Superior Court App Division, 2015)
In re Ambassador Insurance Company, Inc.
2015 VT 4 (Supreme Court of Vermont, 2015)
Newfield Fire Company No. 1 v. the Borough of Newfield
107 A.3d 686 (New Jersey Superior Court App Division, 2015)
C.A. v. Eric Bentolila, M.D. (071702)
99 A.3d 317 (Supreme Court of New Jersey, 2014)
In Re Princeton Office Park v. Plymouth Park Tax Services (069521)
93 A.3d 332 (Supreme Court of New Jersey, 2014)
State of New Jersey v. J.B.W.
85 A.3d 1010 (New Jersey Superior Court App Division, 2014)
In re Wheeler
81 A.3d 728 (New Jersey Superior Court App Division, 2013)
American International Insurance v. 4M Interprise, Inc.
70 A.3d 757 (New Jersey Superior Court App Division, 2013)
Correctional Med. Servs. v. State
43 A.3d 1174 (New Jersey Superior Court App Division, 2012)
O'BOYLE v. Borough of Longport
42 A.3d 910 (New Jersey Superior Court App Division, 2012)
Pitman v. MONROE SAVINGS BANK
40 A.3d 1148 (New Jersey Superior Court App Division, 2012)