Expense Calculation Workshop. Who Gets the Money?

Transcription

1 Expense Calculation Workshop Who Gets the Money? July 17, 2018 Exercises and Contract Language

2 Who Gets the Money Exercises Index I. Expense Calculation Formula Page 3 II. Exercise # 1 Pages 4-5 III. Exercise # 2 Pages 6-7 IV. Exercise # 3 Pages 8 10 V. Exercise # 4 Pages VI. Contract Language Pages

3 I. Covering Expenses under Reinsurance XOL Contracts Three Standard Methods Pro-rated: LAE is in addition to the cedent s limit under the treaty. Share is calculated by formula, based on the amount of loss ceded to reinsurers and the cedent s retention. Ground Up Loss* - Retention = % x Expenses = Pro-rated Expense Ground Up Loss Included: This means the LAE is part of the treaty limit and is included with the loss/indemnity incurred (paid and reserve) when incurred/reserves to the layer are being calculated. Excluded: This means LAE is not covered by the treaty. Not common. *Not to exceed loss ceded to the layer. 3

4 I. CALCULATION EXERCISE #1 Facts Dr. Stephen Kiley, a radiologist, is insured through Last Hope Insurance Company ( LHIC ), a medical malpractice carrier and has a $1,000,000 primary policy and a $5,000,000 excess policy. Expenses are covered in addition to the limit under the policies. This claim involves a medical malpractice lawsuit brought by a 50-year-old female rendered an incomplete quadriplegic when Dr. Kiley failed to identify and diagnose a faceted fracture. The plaintiff is married with two minor children ages 9 and 15. LHIC, who defended Dr. Kiley, decided to take the case to trial. During the 1 st week of trial, LHIC and the plaintiff entered into a high-low agreement of $400,000 to $4,000,000. The jury returned a verdict of $5,500,000 for the plaintiff and $500,000 loss of consortium for her husband, resulting in LHIC s payment of $4,000,000. Paid expense is $58, with $57, paid through trial and $1,000 post verdict to finalize the process. Assume only these facts in answering the question. PART 1 You are LHIC. What do you cede under your reinsurance program? What is your net retention? Assume the reinsurance program information provided is the only reinsurance LHIC has purchased. Reinsurance Treaty Coverage: 1 st Layer: $4,000,000 x $1,000,000 2 nd Layer: $5,000,000 x $5,000,000 How are expenses handled? Are there any special provisions? Paid LHIC 1st Casualty XOL Retention: Loss to Contract: Pro-rata Expenses: Loss to the Contract Expense to the Contract: LHIC s Net Retention: Paid Expense LHIC 2nd Casualty XOL Retention: Loss to Contract: Pro-rata Expenses: Loss to the Contract: Expenses to the Contract: Expense: 4

5 PART 2 You are the reinsurer, Do It Right ( DIR ). Calculate your share payable to LHIC: Paid Loss due to LHIC: Paid Expense due to LHIC: Total Amount due to LHIC: 5

6 III. CALCULATION EXERCISE #2 Facts Dr. Casey, a radiologist, is insured through LHIC, a medical malpractice carrier and has only a $250,000 primary policy with no excess policy. Expenses are in addition to the limit under the policy. A medical malpractice lawsuit that includes a loss of consortium action was brought against the insured by a 50-year-old female who is now an incomplete quadriplegic allegedly due to the Insured s failure to identify and diagnose a faceted fracture. The plaintiff is married with two minor children ages 9 and 15. During discovery, the LHIC claims staff came to the conclusion it had a fully defensible case and refused to enter into settlement discussions. Dr. Casey requested LHIC attempt to settle within her policy limit, but LHIC refused and the case went to trial. During the 1 st week of trial Dr. Casey (not LHIC) and the plaintiffs entered into a high-low agreement of $100,000 to $2,000,000. The jury returned a verdict of $5,500,000 for the plaintiffs that included an award for $500,000 loss of consortium for her husband. Due to the high / low agreement, LHIC paid $2,000,000 and an additional $58, in expenses incurred through trial. PART 1 You are LHIC. What do you cede under your reinsurance program? What is your net retention? Assume the information provided represents the only reinsurance coverage LHIC purchases. Reinsurance Treaty Coverage: 1 st Layer: $4,000,000 x $1,000,000 2 nd Layer: $5,000,000 x $5,000,000 How are expenses handled? Are there any special provisions that apply? Paid Paid Expense LHIC 1 st Casualty XOL LHIC 2 nd Casualty XOL Minus Policy Limit: Minus Policy Limit: XPL: XPL: 85%: 85% Plus Policy Limit: Plus Policy Limit: Adjusted Adjusted Minus Retention: Minus Retention: Loss to Contract: Loss to Contract: 6

7 Expense Calculation: Expense Calculation: Loss to the Contract: Expense to the Contract: LHIC s Net Retention: Expense to the Contract: Loss to the Contract: Expense: PART 2 You are reinsurer DIR. Calculate your share payable to LHIC: Paid Loss due to LHIC: Paid Expense due to LHIC: Total Amount due to LHIC: 7

8 IV. CALCULATION EXERCISE #3 Facts Dr. Kildare, a radiologist, is insured through LHIC, a medical malpractice carrier, and has a $10,000,000 primary policy with no excess policy. Expenses are covered in addition to the limit under the policy. This claim involves a medical malpractice lawsuit brought by a 40-year-old male rendered a complete quadriplegic due to the insured s failure to identify and diagnose a faceted fracture. The plaintiff is married and has two minor children ages 3 and 6. LHIC s investigation reveals Dr. Kildare is liable and confirms the plaintiff s medicals and wage loss (current and future) are $7,000,000. Plaintiff was a reinsurance broker earning in excess of $1,000,000 annually. Given these facts, LHIC decided to settle for the full $10,000,000 policy limit. Paid expenses are $125,000. PART 1 You are LHIC. What do you cede under your reinsurance program? What is your net retention? Assume the information provided represents the only reinsurance coverage LHIC has. In this case, the LHIC reinsurance program includes facultative and treaty quota-share and treaty excess of loss coverage and is structured as follows: Facultative Certificate: $4,000,000 x $1,000,000 Quota-Share: 50% of $1,000,000 Treaty: 1 st XOL: $1,000,000 x $1,000,000 2 nd XOL: $3,000,000 x $2,000,000 3 rd XOL: $5,000,000 x $5,000,000 Both the facultative and the treaties respond to expenses on a prorata in addition to the limit basis Assume the Facultative Certificate inures to the benefit of the Treaties Assume the Quota -Share Treaty does not inure to the benefit of the Treaty XOL layers Assume Do It Right only participates on the 1 st XOL Layer All other terms in the sample treaty language apply. Note: facultative wording has not been supplied; for the purposes of this exercise, please do not assume any unstated terms. Paid Paid Expense: 8

9 Facultative Certificate ($4M x 1M) Retention: Net Maximum Limit Loss to Fac: Casualty Quota Share (50% of 1M) Minus Inuring Fac: Net Max Loss to QS: Cession at 50%: Loss to Quota- Share: 1 st Casualty XOL ($1M x 1M) Minus Inuring Fac: Net Max Loss to 1 st Layer Minus Retention: Final Loss to 1st: XOL: 2 nd Casualty XOL ($3M x 2M) Minus Inuring Fac Net Max Loss to 2 nd Layer: Minus Retention: Final Loss to 2 nd XOL: 3rd Casualty XOL($5M x 5M) Minus Inuring Fac: Net Max Loss to 3 rd Layer: Minus Retention: Final Loss to 3 rd XOL: Expense Calculation: Final Expense to Fac: Expense Calculation: Final Expense to QS: Expense Calculation: Final Expense to 1st XOL: Expense Calculation: Final Expense to 2 nd XOL: Expense Calculation: Final Expense to 3 rd XOL: 9

10 LHIC Recovery Loss Expense Total Facultative Quota Share 1 st XOL 2 nd XOL 3 rd XOL Total LHIC s Net Retention Expense: PART 2 You are reinsurer DIR. Calculate your share payable to LHIC: Paid Loss due to LHIC: Paid Expense due to LHIC: Total Amount due to LHIC: 10

11 V. CALCULATION EXERCISE #4 Facts: Dr. Welby is insured by LHIC under a policy with limits of $250,000 and expenses are in addition to the limit. This is a medical malpractice lawsuit where the plaintiff alleged Dr. Welby failed to properly treat leukopenia, resulting in the death of a 40-year-old married female with two minor children. Plaintiffs seek loss of companionship, mental pain and suffering, loss of support and services and loss of instruction and guidance for the two minor children. The demand was $240,999 at mediation but no offers were made. Trial was held and the jury returned a plaintiff verdict in the amount of $10,000,000. The judge also awarded post judgment interest at 7%. LHIC considered its options and decided to file an appeal but had to post a bond for $11,900,000. The cost of the bond was $119,000. Within a few weeks, the parties to the action settled all claims for $6,550,000. LHIC incurred $265,800 in expenses through trial and an additional $12,800 in legal fees to prepare the appeal, negotiate settlement and complete the closing documents. Part 1 You are the medical malpractice insurer LHIC. What do you cede under your reinsurance program? What is your net retained loss? Assume the reinsurance program information provided is the only reinsurance LHIC has purchased. Reinsurance Treaty Coverage: 1 st Layer: $4,000,000 x $1,000,000 2 nd Layer: $5,000,000 x $5,000,000 How are expenses handled under the contracts? Are any special clauses applicable? How did the negotiated settlement impact the cedent and reinsurers? Paid Paid Expense Pre-judgment: Paid Expense Post-judgment: Total Paid Expense: 11

12 LHIC 1st Casualty XOL LHIC 2 nd Casualty XOL Minus Policy Limit: Minus Policy Limit: XPL: XPL: 85%: 85%: Plus Policy Limit: Plus Policy Limit: Adjusted Adjusted Max Loss to 1 st Layer: Minus Retention: Minus Retention: Final Final 1st XOL Expense Calculations: Prejudgment Exp: Post-judgment Exp: Total Payment Due under the 1st XOL: Loss to the Contract: Total Expense Total Due from 1 st XOL: 2 nd XOL Expense Calculations: Prejudgment Exp: Post judgment Exp: Total Payment Due under the 2 nd XOL: Loss to Contract: Total Expense Total Due from Second Excess: LHIC Retains the Following Net Pre Judgment Expense: Post Judgment Expense: Total Expense Retained Net: PART 2 Do It Right s Share Calculation: You are reinsurer DIR. Calculate your share payable to LHIC. Paid Loss due to LHIC: Paid Expense due to LHIC: Total due to LHIC: 12

13 VI. CONTRACT LANGUAGE (EXCERPTS TO BE USED IN THE WORKSHOP CALCULATIONS) Assumptions and Clarifications Assume 100% cession by Medical Malpractice Insurer LHIC. Assume DIR does not participate on the 2 nd Casualty Excess of Loss Layer Contract Language Included: 1. Interests and Liabilities Page for DIR 2. Selected Clauses from the LHIC Reinsurance Agreement 3. 1 st Layer Retention and Limits Article 4. 2 nd Layer Retention and Limits Article 13

14 1. INTERESTS AND LIABILITIES PAGE FOR DO IT RIGHT REINSURANCE COMPANY CASUALTY FIRST EXCESS OF LOSS REINSURANCE AGREEMENT ( Agreement ) Issued to Medical Malpractice Insurer (referred to as the Company ) By Do It Right, (hereinafter referred to as, with other participants, if any, the Reinsurers ) Under the terms of this Agreement the above Reinsurer agrees to assume severally and not jointly with other participants 15% of the liability described in the attached Agreement, Exhibit I, the Casualty First Excess Retentions and Limits Article and, as consideration, the Reinsurer shall receive a 15% share of the premium named therein. 14

15 2. LHIC REINSURANCE AGREEMENT SELECTED CLAUSES APPLICABLE TO THE 1 ST AND 2 ND EXCESS OF LOSS LAYERS MEDICAL MALPRACTICE INSURER FIRST AND SECOND CASUALTY EXCESS OF LOSS REINSURANCE AGREEMENT PREAMBLE The Company shall cede and the Reinsurers agree to accept the net excess liability resulting from claims made or losses occurring on original policies on all risks attaching during the term of this Agreement, subject to the following conditions: ARTICLE 2 BUSINESS COVERED A. This Agreement shall reinsure all business written or renewed by the Company with effective or renewal dates on or after the inception of this Agreement and classified by the Company as Physicians, Surgeons, Dentists and Allied Health Care Professional Liability; Healthcare Facility Professional Liability (including ancillary coverages); Healthcare Facility Umbrella Liability; Managed Care Organization Liability; General Liability; and Personal and Commercial Umbrella Liability. B. The Company may issue excess policies. Where the Company issues an underlying and an excess policy covering the same insured, premium and liability to be treated hereunder as if one underlying risk is covered. ARTICLE 8 NET RETAINED LINES A. This Agreement applies only to that portion of any policy which the Company retains net for its own account (prior to deduction of any underlying reinsurance specifically permitted in this Agreement), and in calculating the amount of any loss hereunder and also in computing the amount or amounts in excess of which this Agreement attaches, only loss or losses in respect of that portion of any policy which the Company retains net for its own account shall be included. B. The amount of the Reinsurer s liability hereunder in respect of any loss or losses shall not be increased by reason of the inability of the Company to collect from any other reinsurer(s), whether specific or general, any amounts which may have become due from such Reinsurer(s), whether such liability arises from the insolvency of such Reinsurer(s) otherwise. 15

16 ARTICLE 9 ULTIMATE NET LOSS Ultimate net loss as used herein is defined as the sum or sums (including loss in excess of policy limits, extra contractual obligations and any loss adjustment expenses, as hereinafter defined, which reduces the Company s limit of liability under the policy involved) paid or payable by the Company in settlement of claims and in satisfaction of judgments rendered on account of such claims, after deduction of all salvage, all recoveries and all claims on inuring insurance or reinsurance, whether collectible or not. Nothing herein shall be construed to mean that losses under this Agreement are not recoverable until the Company s ultimate net loss has been ascertained. ARTICLE 10 LOSS ADJUSTMENT EXPENSE A. Loss adjustment expense as used herein shall mean expenses allocable to the investigation, defense and/or settlement of specific claims, including 1) prejudgment interest, unless included as part of the award or judgment, 2) postjudgment interest and 3) legal expenses and costs incurred in connection with coverage questions and legal actions connected thereto; but not including office expenses or salaries of the Company s regular employees. In addition, any costs awarded to a claimant by an order of the court also shall be considered loss adjustment expense. B. With respect to legal expenses and costs incurred in direct connection with declaratory judgment actions brought to resolve policy language coverage disputes between the Company and its insured, such expenses shall, for the purposes of this Agreement, not exceed an amount equal to the applicable limit of the policy or policies involved unless agreed by Reinsurers. ARTICLE 11 LOSS IN EXCESS OF ORIGINAL POLICY LIMITS A. Loss in excess of policy limits shall mean 85% of any amount paid or payable by the Company in excess of its policy limits (regardless of the amount of the original policy limit), but otherwise within the terms of its policy the Insured is legally obligated to pay to a third party claimant because of the Company s alleged or actual negligence or bad faith in rejecting a settlement within policy limits, or in discharging its duty to defend or prepare the defense in the trial of an action against its Insured, or in discharging its duty to prepare or prosecute an appeal consequent upon such an action. A loss in excess of policy limits shall be deemed to have occurred on the same date as the loss covered or alleged to be covered under the policy. B. Notwithstanding anything stated herein, this Agreement shall not apply to any loss in excess of policy limits incurred by the Company as a result of any 16

17 fraudulent and/or criminal act by any officer or director of the Company acting individually or collectively or in collusion with any individual or corporation or any other organization or party involved in the presentation, defense or settlement of any claim covered hereunder. ARTICLE 12 EXTRA CONTRACTUAL OBLIGATIONS A. Extra contractual obligations shall mean 85% of any punitive, exemplary, compensatory or consequential damages, other than loss in excess of policy limits, paid or payable by the Company (regardless of the amount of the original policy limit) as a result of alleged negligence or bad faith on the part of the Company in handling a claim under a policy of the Company. An extra contractual obligation shall be deemed to have occurred on the same date of the loss covered or alleged to be covered under the policy. B. Notwithstanding anything stated herein, this Agreement shall not apply to any extra contractual obligation incurred by the Company as a result of any fraudulent and/or criminal act by any officer or director of the Company acting individually or collectively or in collusion with any individual or corporation or any other organization or party involved in the presentation, defense or settlement of any claim covered hereunder. 17

18 3. 1 st LAYER RETENTION AND LIMITS ARTICLE CASUALTY FIRST EXCESS RETENTIONS AND LIMITS ARTICLE 1. The Reinsurers shall indemnify the Company up to a limit of liability A. Per Claim Coverage: $4,000,000 of ultimate net loss each insured, each claim in excess of $1,000,000 of ultimate net loss each insured, each claim ( Per Claim Coverage ). B. Notwithstanding the foregoing, the limits and retentions of this Agreement set forth above, in respect of policies covering multiple insureds shall always follow the application of the limits as provided by the Company s original policies, i.e., claims against multiple insureds subject to one limit shared by such insureds under the original policy shall be subject to the one reinsurance limit and retention hereunder, and claims against multiple insureds subject to separate reinsurance limits and retentions hereunder. C. In the event of a loss hereunder, loss adjustment expense incurred by the Company in connection herewith which does not reduce the Company s limit of liability under the policy involved shall be shared by the Company and the Reinsurers in the proportion the ultimate net loss paid or payable by the Reinsurers bears to the total loss paid or payable by the Company, prior to any reinsurance recoveries, but after deduction of all salvage, subrogation and other recoveries. If a verdict or judgment is reduced by any process other than by trial court, resulting in an ultimate saving to the Reinsurers, or a judgment is reversed outright, the expenses incurred in securing such reduction or reversal shall be shared by the Company and the Reinsurers in the proportion that each benefits from such reduction or reversal, and the expenses incurred up to the time of the original verdict or judgment which do not reduce the Company s limit of liability under the policy involved shall be shared in proportion of each party s interest in such original verdict or judgment. The Reinsurers liability of such loss adjustment expense shall be in addition to its liability for ultimate net loss. D. The ultimate net loss subject to this Agreement shall apply in excess of (and thereby not include) any self-insured deductible or retention held by the original insured. 18

19 4. 2 ND LAYER RETENTION AND LIMITS ARTICLE CASUALTY SECOND EXCESS RETENTIONS AND LIMITS ARTICLE 1. The Reinsurers shall indemnify the Company up to a limit of liability A. Per Claim Coverage: $5,000,000 of ultimate net loss each insured, each claim in excess of $5,000,000 of ultimate net loss each insured, each claim ( Per Claim Coverage ). B. Notwithstanding the foregoing, the limits and retentions of this Agreement set forth above, in respect of policies covering multiple insureds shall always follow the application of the limits as provided by the Company s original policies, i.e., claims against multiple insureds subject to one limit shared by such insureds under the original policy shall be subject to one reinsurance limit and retention hereunder, and claims against multiple insureds subject to separate limits under the original policy shall be subject to separate reinsurance limits and retentions hereunder. C. In the event of a loss hereunder, loss adjustment expense incurred by the Company in connection therewith which does not reduce the Company s limit of liability under the policy involved shall be shared by the Company and the Reinsurers in the proportion the ultimate net loss paid or payable by the Reinsurers bears to the total loss paid or payable by the Company, prior to any reinsurance recoveries, but after deduction of all salvage, subrogation and other recoveries. If a verdict or judgment is reduced by any process other than by trial court, resulting in an ultimate saving to the Reinsurers, or a judgment is reversed outright, the expenses incurred in securing such reduction or reversal shall be shared by the Company and the Reinsurers in the proportion that each benefits from such reduction or reversal, and the expenses incurred up to the time of the original verdict or judgment which do not reduce the Company s limit or liability under the policy involved shall be shared in proportion to each party s interest in such original verdict or judgment. The Reinsurers liability for such loss adjustment expense shall be in addition to its liability for ultimate net loss. D. The ultimate net loss subject to this Agreement shall apply in excess of (and hereby not include) any self-insured deductible or retention held by the original insured 19