Thoughts on the 2016 Presidential election

Thomas Friedman and Richard Painter suggested in their columns today that Trump may not believe much of what he said while campaigning.  That seems plausible, and may give some people hope.

Even so, the 60 million people who voted for Trump yesterday said a big “fuck you” to women and minority communities including Latinos, African-Americans, LGBT folks, recent non-European immigrants, Jews, and Muslims. They also rejected the consensus of informed (“elite”) opinion (Republicans and Democrats) that Trump was unfit for the office of President.

What is likely to happen when all three branches of government are controlled by the Republican Party?

Congress

·       Tax cuts unlikely to help the middle class very much;

·       Repeal of Affordable Care Act and a return to laissez-faire health insurance provided primarily by employers;

·       Reintroduction of bills to privatize Medicare (and perhaps Social Security);

·       No progress on legislation to inhibit climate change;

·       Continued friction between Tea Party and traditional Republicans resulting in inaction on infrastructure spending, trade agreements, and meaningful tax reform.

Supreme Court

·       Nomination and confirmation of a justice likely to vote to overrule Planned Parenthood v. Casey and Roe v. Wade;

·       More decisions friendly to corporate interests and campaign spending;

·       More decisions creating exceptions to anti-discrimination legislation based on religious beliefs.

Executive Branch

·       Repeal of executive orders affecting the energy industries;

·       Repeal of executive orders affecting pharmaceutical companies;

·       Reduced enforcement of civil rights laws;

·       Reduced enforcement of securities laws;

·       Continued inaction on proliferation of firearms with high-capacity magazines.

Notes on the Insurance Act 2015

The Insurance Act 2015 has passed both Houses of Parliament and is expected to become law in the UK in March 2015.

The Act abolishes some features of the common law that are still followed (at least in the maritime law) in the United States, having been adopted by state and federal courts in the 19th century, see e.g., M'Lanahan v. Universal Ins. Co., 26 U.S. (1 Pet.) 170, 185 (1828); Stipcich v. Metropolitan Life Ins. Co., 277 U.S. 311, 316 (1928), and modifies sections of the Marine Insurance Act of 1906 which has served U.S. lawyers as a guide to the common law of marine insurance.

Part 1 sets out a few definitions.

Part 2 introduces and defines the duty of fair presentation. "Before a contract of insurance is entered into, the insured must make to the insurer a fair presentation of the risk." s. 3(1). "Fair presentation" is defined in terms of what must be disclosed, which is set out in s. 3(3). Circumstances that need not be disclosed if the insurer does not inquire are set out in general terms in s. 3(5). The extent to which knowledge will be imputed to the insured and the insurer is set out in ss. 4 and 5, respectively. Whether a failure to disclose is material and, if so, actionable are explored in ss. 7 and 8, respectively.

Part 3 abolishes the rule that a breach of warranty in a contract of insurance results in the discharge of the insurer's liability, and sets out what the consequences of a breach of a warranty will be henceforth. It also makes express changes to ss. 33 and 34 of the Marine Insurance Act of 1906.

Part 4 sets out remedies for fraudulent claims.

Part 5 abolishes the rule permitting a party to avoid a contract of insurance on the ground that the utmost good faith has not been observed by the other party, and modifies the rule (to the extent required by this Act and the 2012 consumer legislation) that a contract of insurance is a contract based on the utmost good faith. It also invalidates any contractual term that would put an insured in a worse position with respect to representations than it would be under this Act. 

Part 6 amends the Third Parties (Rights Against Insurers) Act 2010 by making the changes to it that were thought necessary or advisable before the law came into force.

Part 7 contains technical provisions required to harmonize this Act with existing legislation.

There are explanatory notes provided by the UK Treasury that explain the Act in greater detail. 

For further reading on the law as it was, see Thomas J. Schoenbaum, The Duty of Utmost Good Faith in Marine Insurance Law: A Comparative Analysis of American and English Law, 29 J.Mar.L.Com. 1 (1998).

Proposed changes to the Marine Insurance Act of 1906?

What happens to uberrimae fidei in the United States when the UK Parliament amends the Marine Insurance Act of 1906?

According to Business Insurance, Insurance Bill, HL2014-15, was introduced in the House of Lords, the U.K. Parliament's upper chamber, in late July 2014. It is expected by the Law Commission and industry experts to receive royal assent — by which Queen Elizabeth II signs it into law — by March 2015 and go into effect soon thereafter. The bill would reform measures contained in the Marine Insurance Act 1906 that applies to commercial insurance contracts written in the United Kingdom. The legislation would change current practices that include insurers being able to avoid paying claims if any part of an insurance submission contains a misrepresentation — even if that information is not pertinent to the claim.

In February 2015, the House of Commons unanimously passed the Insurance Bill that will update the Marine Insurance Act 1906.

In the United States, the rule has no statutory foundation. It is instead based on two centuries of case law. Congress could amend the federal maritime law; however, there has never been much enthusiasm in Congress for changes to the maritime law that were not backed by the entire marine industry.

Chelsea Gardens in the spring

Assessing damages for injury to a pet

Last Thursday, I was sitting as an arbitrator in the Small Claims Court in Brooklyn.
Ms. Petrova had sued Mr. Domenico because his dog (she said pit bull; he said terrier) had savaged her schnauzer, which she claimed was a service dog (she had no visible infirmities but said she had MS).  There didn't seem to be any argument about liability. The photographs showing the injuries were gruesome. The dog was not leashed or tied, and somehow got out of his yard. Mr. Domenico did not dispute that the dog had previously injured another dog, and been the subject of a Daily News article.
On the day of the incident, Mr. Domenico went to the animal hospital and paid $3400 as a deposit against the final bill. He was advised that the total bill would be within a range from $6300-$8400. The final bill was $6300, even though the separately enumerated charges exceeded that sum, but Mr. Domenico had stopped returning Ms. Petrova's phone calls by that point, so Ms. Petrova had to use her credit card to pay the balance of $2900.
Ms. Petrova sued Mr. Domenico for about $5000, the limit in the Small Claims Court. She showed me the receipt for $2900, and said she had extra expenses for travelling to the animal hospital, medication for the dog, and other things. She had no receipts for those expenses.
For his part, Mr. Domenico had not seen the final bill, had been told the dog had tumors, and was not going to pay for any care the dog would have needed regardless of the mauling.
Without a lot of time to spend on the case, I awarded Ms. Petrova $2900.
Thinking about it afterwards, it occurred to me that plaintiff could have argued that she was in the zone of danger and was entitled to compensation for her emotional distress. She might even have argued that the dog was entitled to compensation. It also occurred to me that defendant could have argued that it was wasteful to spend $6300 for surgery on an old dog, when plaintiff could have purchased a new dog for less money.
On reflection, it seems that we are probably unwilling to accept either argument. We treat dogs as more than property, so the defense argument that works for old cars doesn't work for dogs. However, we treat dogs as less than people, so we don't award damages for their pain and suffering. We might award damages for emotional distress, but I need to research that...

Ten years in insurance defense

The Appellate Division, First Department, cited two of my cases in a recent opinion, Cruz v. New York City Housing Authority, 2012 NY Slip Op 01505 (Feb. 28, 2012). They were elevator cases in which the defendants were granted summary judgment and the plaintiffs were denied leave to appeal.

That makes me proud and sad at the same time. It means that after ten years in the business of insurance defense, I actually have a body of work worth citing. That’s not bad for a third career, but it also means that I’ve been away from marine insurance for a long time.

Violating trade sanctions

BusinessInsurance.com reported on June 30 that General Re had been fined for violating trade sanctions against Iran as a result of its participation in Steamship Mutual's excess coverage from 1998-2001. In 2005, General Re paid its share of two claims incurred by National Iranian Tanker Co. totalling $310,000. The fine was said to be $59,130, and OFAC announced that "the transactions do not constitute an egregious case." You can read the press release at http://www.treasury.gov/resource-center/sanctions/CivPen/Documents/06292011.pdf.


General Re reportedly turned itself in to the Office of Foreign Assets Control ("OFAC"), blamed the violations on "certain claims personnel", installed "enhanced sanctions compliance software", and implemented training programs for their claims people.  Blaming the claims people seems unfair. Cliff Burns, who writes Export law Blog, points out that "OFAC guidance to the insurance industry makes clear that the issuance of the reinsurance to Steamship for its NITC policy would itself have violated OFAC rules without regard to whether any claims were actually made or paid to Steamship." However, the statute of limitations had run on the issuance of the policy itself. 


I was working in P&I when that contract was written in 1998, and I remember how hard it was to get people to take sanctions seriously back then.  The world has certainly changed. Steamship Mutual declined to renew the Iranian fleet this year, and no other Group Club would pick them up.

King Lear

Gwen and I saw King Lear with Derek Jacobi last night at BAM, and it was thrilling. His Lear was vivid, human, and prey to so many emotions. He strutted when he prompted his daughters to say how much they loved him; he was incredulous when Cordelia wouldn't follow suit; he was childishly happy to be free of kingship and then petulant when Goneril chided him about his retinue; he was rash when he left Regan's home for the moor; he lost his mind by degrees; he gradually woke to the peril he was in; he walked on carrying Cordelia and whispered, "I killed the knave who was a-hanging thee." He made all of that wonderful poetry serve the character. Some of the most famous lines came out like throwaways, because this Lear was not a philosopher; he was a vain king who had lost everything.

Goneril and Regan were stylish, and surprisingly modern, in slim black dresses (while the men were running around with swords), and distinct characters. Goneril in particular was quite sympathetic toward the beginning. Her complaints about Lear's retinue came out as the reasonable concerns of a woman whose houseguests were becoming far too much trouble. Regan was less aggressive at first, but picked up strength as she learned from her sister. Although Kent and others saw the two women as evil from the start, and Edmund is shown eavesdropping on their conversation and learning to be evil at the end of the first act, this production showed them growing more evil under Edmund's influence as time went on. They become violent monsters, and no one was sorry when their deaths were announced.

Gloucester, Edmund, Edgar and Kent were all well-cast. Kent's disguise was convincing, and Edgar was almost unrecognizable as Poor Tom. Edmund was handsome, athletic, but unsure enough to be persuasively baffled by the women's attention. 

I wish Jerry Zimler could have seen this production. I hope he would have liked it; the production tried hard to make up for the play's dramatic flaws. I know it would have held his attention and that he would have had a lot to say about it. 

Google font directory

Google is making free high-quality fonts available to web designers. Read more at http://code.google.com/webfonts. I will be very surprised if this does not change the appearance of the Web substantially.

Website Redesign

Thanks to a new book called "fluid web technology", I have been redesigning the website at www.johnsandercock.com. I think the new format is more readable and easier on the eyes. Let me know what you think.

Is that a Convention Limit of Liability?

The London Steam-Ship Owners' Mutual Insurance Assn. Ltd. covers the Shen Neng 1 for liabilities up to 20 million Australian dollars ($18.4 million) arising from the spill, said Ian Barr, claims director at London-based A. Bilbrough & Co. Ltd., which manages the P&I club.

That doesn't seem like much cover, unless Barr is being cute about the limitation fund.

London brokers take a dim view

There is reason to be suspicious whenever London marine professionals express their opinion of markets and vendors outside the Square Mile, but I was struck by Tysers' very personal opinion of The American Club's 2009 Annual Report.

CEO Joe Hughes would make a very successful politician – an entertaining and educated speaker able to talk forever without actually answering any of the questions. Except for the entertaining bit, the Annual Report mirrors Joe’s personal

qualities. In the Report’s “highlights”, we are advised there was a small decline in tonnage but nowhere is the current tonnage figure mentioned (it is down to just over 13m GT, making them the smallest Club in the Group); we are also told that Standard and Poors has reaffirmed the Club’s financial strength – “stable outlook maintained” but no mention is made that the rating is only BB-. Elsewhere in the Report, we are told the Club’s “underwriting results continue to be at the

leading edge of market performance” Very Blairite and the failure to mention this is after unbudgeted calls in eight of the last nine years can only be an oversight. Finally, there is an intriguing note on the last page of the Accounts informing that on 17th December 2008 (the Club works to a calendar year end) the Club borrowed $10 million from Deutsche Bank on a line of credit. Perhaps the members would be interested to know the need for this line?

Producer Compensation Transparency

The Producer Compensation Transparency Regulation being discussed by the NY Insurance Department would require insurance agents and brokers in New York to notify buyers of their right to request information on the compensation the producers receive from insurers in connection with insurance placements.

Business Insurance's sources say it is likely to go into effect soon.

Website updates

I recently added links to several brokers' P&I Reports (Aon, A.J. Gallagher, and Tysers), updated the data in the Pool Claims table, and updated my list of reported cases.

Aon says Club behavior is "inexcusable"

I don't know Stephen Hawke, head of Aon's marine liability team in London; I've been away from the market too long. He's probably a decent fellow, but no broker has the right to criticize Club underwriters for running underwriting deficits.
In Aon's P&I Mid-Term Review, the Clubs are exhorted to seek only single-digit increases from shipowners at the next renewal and upbraded for continuing to run underwriting deficits when they know they can no longer rely on investment income. This pious nonsense was evidently printed over Mr. Hawke's signature.
The brokers are not only not the solution. They are a large part of the problem. Clubs know what the losses are likely to be. They have actuaries, and loads of data. They would not run underwriting deficits but for the pressure the brokers bring to bear on Clubs who dare to tell the brokers' precious risk managers that their loss record demands a greater than usual increase.
The rest of the problem is shipowners who think they can game the system. They're only cheating themselves. Mutuals don't make losses. Eventually, the members will have to make up the deficits. All they gain by not paying proper premiums up front is weaker Clubs.

Elysian is back

Roger Ingles emailed me today to say:

"I notice on your site that people have wondered where Elysian had got to – the answer is that we went walkabout for a while and have now returned with a totally new website, which is now just starting to fill up. Here one can read current news in the market and also run queries on financial data for all the clubs over the last 7 years. The global statistics will begin to appear over the next few months as the reporting cycle concludes and we move towards general increases. Same web address: www.elysian-insurance.com and the same slightly British accent !"

Welcome back. Elysian was one of the best sources of P&I news on the Web, if not the best, and the cheeky tone was a refreshing change from all of the piety in Club Circulars and Annual Reports. I hope it comes back, too.

P&I Clubs are likely to increase call levels

A report from A.M. Best Co. Inc. states the obvious after concluding that P&I clubs struggling with soaring claims are likely to increase call levels as they change their underwriting approaches.
Members of the International Group of P&I Clubs have collectively failed to make a technical profit in any financial year since 1999 despite large increases in call levels. Many Clubs have adopted more forward-looking approaches to pricing and those changes are likely to result in further increases in calls. The clubs are expected to rely less on investment income to produce surplus as equity markets have become volatile. High-value claims have had a big impact on the clubs’ underwriting results but it is unclear whether recent large claims mark the beginning of a long-term trend.
The report is free to BestWeek subscribers at http://www.bestweek.com/. Nonsubscribers can download it for $55.

Is there a similar maritime rule?

The Appellate Division, Second Department last week declined to recognize a claim based on the negligent issuance of an insurance policy. Katchalova v. Perchikov, 2007 NY Slip Op 06640.

In their words:

The wrongful death and pain and suffering causes of action, premised upon
the alleged negligent issuance of life insurance policies, fail to state a
cause of action. New York does not presently recognize such a theory of
recovery based on the negligent issuance of an insurance policy (see Katchalova v Borger, 7 Misc 3d 966). Indeed, the circumstances of this case [Perchikov allegedly murdered the plaintiff's decedent in order to obtain the proceeds of the life insurance policies that she took out naming him as the beneficiary -ed.] do not even fall under any of the scenarios pursuant to which other jurisdictions have recognized such a theory of recovery (see Katchalova v Borger, supra; Bajwa v Metropolitan Life Ins. Co., 208 Ill 2d 414; Bacon v Federal Kemper Life Assur. Co., 400 Mass 850; Life Ins. Co. of Georgia v Lopez, 443 So 2d 947, 948 [Fla. 1983]; Burton v John Hancock
Mut. Life Ins. Co., 164 Ga App 592 [1982]; Ramey v Carolina Life Ins. Co., 135
SE 2d 362 [S.C. 1964]; Liberty Natl Life Ins. Co. v Weldon, 100 So 2d 696 [Ala.
1957]). Thus, the plaintiff seeks to recover pursuant to a theory of negligent issuance of an insurance policy under circumstances in which no other court has recognized such a claim. We decline to recognize such a claim in this case.

No duty to disclose contingent commissions?

The Appellate Division, First Department (the intermediate appellate state court in Manhattan) has just dismissed several (but not all) of the causes of action in a case against brokers DeWitt Stern, holding that contingent commission agreements between brokers and insurers are not illegal, and, in the absence of a special relationship between the parties, the defendant brokers had no duty to disclose the existence of the contingent commission agreement. The broker/client relationship, even though it had existed for some time, was not sufficient to impose a fiduciary duty on the brokers. (Plaintiff's allegations of negligence and breach of contract survived the motion to dismiss.)

See Hersch v. DeWitt Stern Group, 2007 NY Slip Op 06567 (1st Dept., Sept. 6, 2007).

I have no idea whether this decision will have any effect on whatever proceedings Marsh, Aon, and Willis are still involved in as a result of the Spitzer investigations. Be interesting to watch.

The TUTOVA

This case was an attempt by Steamship Mutual to resist payment under a Club letter. The full text of the decision is here. I may have more about it later.