North River Insurance v. ACE American Reinsurance Co.

361 F.3d 134
CourtCourt of Appeals for the Second Circuit
DecidedMarch 15, 2004
DocketDocket No. 02-7902
StatusPublished
Cited by2 cases

This text of 361 F.3d 134 (North River Insurance v. ACE American Reinsurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
North River Insurance v. ACE American Reinsurance Co., 361 F.3d 134 (2d Cir. 2004).

Opinion

HALL, District Judge.

ACE American Reinsurance Company (“ACE”) appeals from the district court’s order granting summary judgment to ap-pellees, North River Insurance Company and International Insurance Company (collectively “North River”), in a lawsuit arising out of a reinsurance bill dispute between the parties. The district court granted summary judgment for North River and ordered ACE to pay the disputed bill, reasoning that the deferential follow-the-fortunes2 doctrine required ACE to accept North River’s allocation. The court also ordered ACE to pay, pursuant to N.Y. C.P.L.R. § 5001, prejudgment interest on North River’s entire, original claim, including interest on a payment that ACE had made to North River before summary judgment motions were filed. For reasons stated below, we affirm the district court’s grant of summary judgment on the reinsurance issue and affirm in part and vacate [137]*137in part the district court’s prejudgment interest award, and remand for further proceedings consistent with this opinion.

BACKGROUND

Simply put, “ [reinsurance is a contract by which one insurer insures the risks of another insurer.” People ex rel. Cont'l Ins. Co. v. Miller, 177 N.Y. 515, 70 N.E. 10, 12 (1904). Under a reinsurance contract, the original insuring entity (the “reinsured”) transfers, or “cedes,” part or all of its risk under its policy of insurance to another entity (the “reinsurer”). When entering into a reinsurance contract, a reinsured agrees to pay a particular premium to a reinsurer in return for the reinsurer assuming the risk of a portion of the reinsured’s potential financial exposure under certain direct insurance policies it has issued to its insured. See Travelers Cas. & Sur. Co. v. Certain Underwriters at Lloyd’s of London, 96 N.Y.2d 583, 734 N.Y.S.2d 531, 760 N.E.2d 319, 322 (2001). In this way, a reinsured spreads its risk of loss from its direct-loss policies among other insurers.

North River insured the Owens-Corning Fiberglass Corporation (“Owens-Corning”) between 1974 and 1983. North River’s policies covered portions of the second, third, fourth, and fifth excess layers of Owens-Corning’s coverage.3 The second excess layer covered per-occurrence losses between $26 million and $76 million. North River insured a portion of this second excess layer in each year between 1974 and 1983. The total, per-occurrence limits of North River’s second layer policies for the ten-year period was $345 million. North River also provided Owens-Corning with coverage in the third, fourth and fifth excess layers of coverage, insuring per-occurrence losses ranging, in certain years, from $76 million to $251 million.

With the exception of $125,000 of coverage in the third excess layer of the 1978-1980 policies, ACE reinsured only portions of the second excess layer policies issued by North River. The facultative reinsurance contracts between ACE and North River each contained a follow-the-fortunes provision, providing that the “liability of the Reinsurer ... shall follow that of the Company.”

Due to its manufacture, sale, and installation of asbestos-containing insulation in the years 1953 through 1973, over 447,000 plaintiffs have named Owens-Corning as a defendant in asbestos-related lawsuits. By 1994, Owens-Corning faced exhaustion of its products liability coverage. Seeking to obtain additional coverage under its policies, Owens-Corning characterized many of its asbestos-related claims as “non-product” claims. Because these claims fell outside of the policies’ products liability coverage, Owens-Corning argued that it was entitled to a new set of policy limits for those claims. In June 1999, Owens-Corning initiated an alternative dispute resolution proceeding under the Wellington Agreement,4 seeking a declaration of its right to coverage under various North River policies. North River raised a number of defenses which, if successful, would have eliminated or dramatically reduced North River’s liability under its policies.

Before the conclusion of that proceeding, North River and Owens-Corning settled [138]*138for $335 million. North River did not concede coverage, and it obtained a full release of liability under all of its policies with Owens-Corning for not only asbestos-related claims, but also for any future, non-asbestos related claims.5

In reaching its decision to settle, North River considered a number of factors, including the likelihood that adjudication on the merits would result in a judgment implicating numerous layers of North River’s policies. It conducted an analysis of possible outcomes and their likelihood if it were to litigate its dispute with Owens-Corning to conclusion. The settlement analysis included a computer model which demonstrated how a given level of Owens-Corning’s “non-product” asbestos damage would impact North River’s policies under particular coverage parameters. North River also utilized decision tree software, which incorporated consideration of coverage parameters and various potential defenses to Owens-Corning’s claims, then applied probability weights to obtain different damage scenarios. At one point, North River’s preliminary decision tree analysis set forth 83 different, probability-weighted, damage and coverage scenarios.

After settling with Owens-Corning, North River sought indemnification from its reinsurers. North River allocated one percent of the cost of the settlement to the “buyback” of North River’s policies with Owens-Corning, which had terminated the policies, releasing all future claims. It allocated payment of that one percent among the reinsurers of all its policies according to the per-occurrence limits of each reinsurance policy. North River then allocated the remaining 99 percent of the cost of the settlement, which it designated as reimbursement for paid, non-product asbestos claims, among its reinsurers using the “rising bathtub” approach,6 consistent with its view of the policies and the Wellington Agreement. The portion of the settlement allocated to pay non-product claims ($332 million) did not exceed North River’s per occurrence limits within the second layer of excess coverage, which level totaled $345 million. In accordance with the reinsurance contracts in the second excess layer of coverage, North River sought $49 million from ACE. North River did not seek indemnification for any portion of the settlement attributed to non-product asbestos claims from its reinsurers of the third, fourth, and fifth excess layers of coverage.

ACE disputes the settlement allocation because North River assigned its entire settlement to ACE’s layer of reinsurance (the second layer), even though North River’s pre-settlement analysis of possible litigation outcomes identified risk of loss in higher layers. ACE argues that it should not have to contribute to the portion of the settlement that, under North River’s pre-settlement analyses, reflected the risk to layers above ACE’s layer of coverage being implicated. ACE’s best estimate of the uncontested amount it owed was approximately $24 million, which it paid to North River three months after North [139]*139River filed suit and approximately eight months after the date of North River’s initial invoice.

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361 F.3d 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-river-insurance-v-ace-american-reinsurance-co-ca2-2004.