TRANSPORT INS. CO. v. TIG INS. CO.
202 Cal.App.4th 984 (2012)
Court of Appeals of California, First District, Division Two.
January 13, 2012.
The introduction to the chapter on reinsurance in the most recent edition of the other leading insurance treatise makes the point this way: "Reinsurance has emerged from the shadows in the last 20 years. At the time of the publication of the prior edition of this volume and for many decades before that, the reinsurance relationship was a quiet, low-profile backstage business transaction between insurers and their reinsurers. That transaction was carried out as an `honorable undertaking' or a handshake-based `gentleman's agreement.' Policyholders and their attorneys saw no reason to probe those relationships, and courts had few occasions to interpret reinsurance contracts or adjudicate responsibility for the payment of losses. For a variety of reasons, including the sheer enormity of actual and potential liability for environmental and other claims and a series of insolvencies hitting both insurers and reinsurers, all that now has changed." (14 Appleman on Insurance 2d (Holmes ed. 2000) § 102.1, pp. 2-3, fns. omitted (Appleman).)
In other words, all issues are fair game, including statutes of limitations, which brings us to the case at the heart of much discussion below, and here: Continental Casualty Co. v. Stronghold Ins. Co., Ltd. (2d Cir. 1996) 77 F.3d 16 (Stronghold).
Stronghold, decided in 1996 by the Second Circuit Court of Appeals, was an action by Continental Casualty Co. (Continental), a reinsured, against several reinsurers that had refused to pay based on the statute of limitations. The district court ruled against the reinsurers, and they appealed. The Second Circuit affirmed, holding that the causes of action accrued when Continental notified the "reinsurers of its losses under the reinsurance policies and the reinsurers subsequently denied coverage." (Stronghold, supra, 77 F.3d at p. 18.) But the Court of Appeals went on: "The timeliness of Continental's claims thus turns on a fairly simple question: when were its losses due and payable under the reinsurance policies? The representative policy offered by the parties is hardly a paragon of clarity. But, we are able to discern at least one condition that Continental had to satisfy before its right to indemnity could mature. `Loss, if any, under' the policy is `to be reported to [the reinsurer] as soon as practicable.' ... [W]e construe the notice provision to mean that Continental had to report any actual losses—i.e., payments made on its underlying insurance policies—within a reasonable period of time under the circumstances. [Citation.] We also conclude that Continental was entitled—indeed probably obligated—to wait a reasonable time for the reinsurers to decide whether they would pay or not, and, if so, how much." (Id. at p. 20, citation omitted.)
Finally, and apropos Transport's "utmost good faith" assertions here, the court said this: "Although it has been said that the relationship between a reinsured and its reinsurer is not technically a fiduciary one [citation], centuries of history have treated both as allies, rather than adversaries. [Citation.] It is customary, for example, for both to share the premium paid by the underlying insured for coverage. [Citation.] Often they jointly prepare and defend unfounded claims by overreaching insureds. [Citation.] [¶] Because custom and usage have established a gentility and unity of interest between the reinsured and its reinsurer, [citation], a generation ago, we doubt that the defendants would even have considered asserting a statute of limitations defense. [Citation.] With the collapse of prominent British reinsurers, and the financial distress of Lloyd's of London, times may have changed. [Citations.] As Francois Villon sighed: Ou sont les neiges d'antan? (`Where are the snows of yesteryear?')." (Stronghold, supra, 77 F.3d at pp. 21-22.)
As noted, Stronghold was decided in 1996. This is how Appleman described the case in 2000: "The Second Circuit held that, where a reinsurance contract required that losses be reported to a reinsurer, the loss did not become due and payable by the reinsurer and the statute of limitations on an action against the reinsurer did not commence to run until a reasonable time
elapsed after the ceding insurer gave notice of the loss to the reinsurer."1 (Appleman, supra, § 107.1, p. 534.)
That, then, was the setting when the state of affairs between Transport and its reinsurers reached some significant milestones arising out of Aerojet's claims against Transport.