A REINSURER S RIGHT TO INSPECT

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1 A REINSURER S RIGHT TO INSPECT Introduction The very nature of reinsurance means that, more often than not, reinsurers are not privy to details about how the reinsured manages claims and losses. The right to inspect can provide a reinsurer with the means of ascertaining whether the reinsured is managing claims and losses in accordance with the terms of the reinsurance contract. So when does an reinsurer have the right to inspect? Important considerations include whether: the reinsured has a contractual right to inspect; there are any limitations on the reinsured s right to inspect; there are any steps the reinsured should take to protect its right to inspect. Is there a contractual right to inspect? The wording of the reinsurance contract is obviously an important factor in determining what right, if any, a reinsurer has to inspect (assuming that the reinsurance agreement is recorded in writing). Even in the absence of an express term, there may still be an implied term allowing a reinsurer to inspect. For example: in Phoenix v Halvanon, 1 reinsurers sought to conduct an inspection where no express provision existed. Hobhouse J found that, on the principle of business efficacy, there must be an implied duty on a cedant to obtain, file or otherwise keep in a proper manner, all accounting, claims and other documents and records and make them reasonably available to the reinsurer. This decision was made in the context of facultative contract of reinsurance; in Charman v Guardian Royal Exchange 2 in considering a reinsurer s obligation to follow the reinsured s settlements, the court was prepared to imply a term that the reinsured would provide reinsurers with information and documents showing the claim that was made and how the claim was dealt with, including the provision of any reports from loss adjusters. An implied term allowing a reinsurer to inspect is usually limited in scope and will not necessarily include a right allowing the reinsured to conduct an audit. Obviously, an express term is preferable for avoiding ambiguity and any arguments as to the scope of any such right. These days, most reinsurance contracts include an express clause allowing a reinsurer the right to inspect or audit a reinsured s books and records. This right to inspect can be as broad or as narrow as the particular contract wording provides, as Hoffman LJ said: Reinsurers are free to stipulate for whatever rights of inspection they please. This is a matter of commercial negotiation between the parties. 3 1 Phoenix General Insurance Co of Greece SA v Halvanon Insurance Co Ltd [1985] 2 Lloyd s Rep Charman v Guardian Royal Exchange Assurance Plc [1992] 2 Lloyd s Rep Société Anonyme d Intermediaries Luxembourgeois (SAIL) v Farex Gie [1995] LRLR 116, 151

2 2 The right to inspect is usually included in reinsurance contracts by reinsurers because it can have multiple uses. It can allow a reinsurer to: prepare for the annual renewal of reinsurance agreements; investigate changes in underwriting and premium activity such as loss reporting patterns and premium volumes; determine the adequacy of loss reserves and identify any unreported losses; evaluate the performance of the reinsurance contract. In particular, the reinsurer can monitor the business underwritten by the reinsured, how claims are handled by the reinsured, and whether the reinsured is complying with the terms of the reinsurance contract; assess the reinsured s skill and experience; determine whether the reinsured acted reasonably and in good faith in handling underlying claims and in settling and ceding claims to the reinsurer; properly identify defences available to the reinsurer and to satisfy itself that the reinsured s claim is properly due. Are there any limitations on the right to inspect? Assuming there is a contractual right to inspect, the scope and any limitations on the right to inspect will be determined by the wording of the clause. An inspection clause usually will include some or all of the following: The reinsurer has a right to inspect all books and documents relating to business ceded to the reinsurer under the reinsurance agreement. The right of inspection survives contract termination. The inspection right vests in the reinsurer or in any of its authorised representatives. Access for inspection will be allowed at all reasonable times. Inspection includes the right to conduct an audit. However, the wording of the clause will not be the only determining factor. This is particularly so in circumstances where there is a dispute between the reinsurer and reinsured. Other factors that may have some bearing on the scope of the right to inspect are: 4 the circumstances in which the reinsurer s request to inspect is made, in particular, its timeliness; whether a substantial reason has been put forward as to why inspection is requested and required, and as to what a reinsurer hopes to find upon inspection; whether the reinsurer has been given or refused access to the reinsured s records. The most common dispute which arises in respect of the reinsurer s right to inspect is when the reinsured makes a claim under a follow the settlements clause and a reinsurer is concerned about paying out under such a clause before it is has been given inspection of relevant documents. This type of dispute highlights the importance of an inspection clause and demonstrates that it is a powerful tool for reinsurers. The following cases are examples of the court s willingness to uphold a reinsurer s right to inspect in this type of dispute. In Re A Company Nos /91 and /91 Ex parte Pritchard [1992] 1 Re LR 288 (Pritchard) In Pritchard, reinsured members of three Lloyd s syndicates and a reinsurer were subject to a treaty of reinsurance. Under the treaty, the reinsurer s liability arose upon it being given notice of loss together with reasonable evidence of the amount paid. But the reinsurer s actual liability depended upon settlement by the reinsured being within the conditions of the 4 Pacific & General Insurance Co Ltd (in liquidation) v Baltica Insurance Co (UK) Ltd [1996] L.R.L.R. 8, 11

3 3 original policy and the reinsurance treaty. This was a matter entirely within the reinsureds knowledge and whilst the treaty provided the reinsured could not be required to provide further particulars of its claim, its books shall be open to the inspection of an authorised representative of the reinsurers at any reasonable time during the continuance of this reinsurance or of any liability hereunder. In August 1990 the reinsurer s agent wrote to the reinsureds brokers and asked to exercise the right of inspection. After some discussion about the scope of the inspections, the reinsureds refused to allow inspection until payment of outstanding claims had been received. The reinsurer was unwilling to pay outstanding claims until it had been given the opportunity to inspect. Neither party budged from this position for one year until the reinsureds presented a winding up petition against the reinsurer seeking payment of unpaid claims. The reinsurer made an ex parte application seeking an injunction to restrain the advertisement of the winding up petition, arguing that the reinsureds refusal to allow inspection raised the inference that the debt was disputed in good faith and on substantial grounds. Justice Hoffman referred to the submission that the obligation to pay and the obligation to give access were concurrent obligations and that, therefore, a reinsurer had no right to refuse to make a payment until it had exercised the right to inspect. This may be true at the point when no request to inspect has been made and refused. But I think that the situation is different if inspection has not been allowed. That is, in my judgment, sufficient given the particular terms of the reinsurance treaty to raise the inference that there is a dispute on substantial grounds. Just as a refusal to pay an indisputable debt gives rise to an inference that the reinsurer cannot pay and is therefore insolvent so it seems to me that a refusal to allow an inspection to which the [reinsurer] is plainly entitled gives rise to an inference that there are matters in the possession of the syndicates which would justify non payment by the [reinsurer]. It would, in my view, be unfair to allow the syndicates to enforce their claim by a winding up petition when they have flatly refused to allow any inspection at all. If there was evidence that the proposed inspection was excessive in scope or otherwise in bad faith, I would take a different view. In circumstances where the terms of the reinsurance treaty allowed the reinsured to make claims without providing particulars, Justice Hoffman held that the contractual right to inspect the reinsured s books and papers provided protection to the reinsurer for it to satisfy itself that a claim was properly due. An injunction restraining the advertisement of the winding up petition was allowed. Pacific & General Insurance Co Ltd (in liquidation) v Baltica Insurance Co (UK) Ltd [1996] L.R.L.R. 8 The reinsurer successfully relied on its right to inspection to resist an application for summary judgment. The relevant follow the settlements clause included: In the event of a claim arising hereunder notice shall be given to the Reinsurers... as soon as practicable, and all papers in connection therewith shall be at the command of the Reinsurers on this reinsurance or parties designated by them for inspection. Rix J found that a court should look at the following considerations: whether the reinsured has given or refused to the reinsurers the latter s contractual rights of inspection; the circumstances in which the claim to inspect comes forward. If a reinsurer does not invoke his right to inspect until the very last moment when he is under the lash of a claim for summary judgment pursuant to a follow the settlements clause, the court will be reluctant to refuse summary judgment on the basis that if inspection belatedly takes place something may turn up; whether some substantial reason has been put forward as to why inspection is requested or required and as to what a reinsurer hopes to find upon such inspection. If the point, if made good on inspection, is one which could arguably give rise to a defence, then that is something that may be relevant to the court s decision. Rix J went on to say that the structure of the clause is that whilst the reinsurer must pay a loss settlement upon provision of reasonable evidence of payment, the notice and inspection provisions in the clause are given to the reinsurer as his protection against what could

4 4 otherwise be a unilateral assertion on the part of the reinsured as to the former s obligation to indemnify. Odyssey (Bermuda) Ltd v Reinsurance Australia Corporation Ltd [2001] NSWSC 266 (Odyssey) Odyssey held a US $10 million reinsurance policy with Reinsurance Australia covering three years from 1 January The policy provided a follow the settlements clause binding Reinsurance Australia to all loss settlements made by Odyssey which were within the terms of the original policies and the reinsurance policy. The policy also provided an access to records clause. On 29 March 2000, Odyssey made a claim in respect of a Turkish earthquake falling within the policy period. On 16 May 2000 Reinsurance Australia received a commutation proposal for $91 million. From 15 May 2000, Reinsurance Australia sought to inspect Odyssey s records pursuant to the access to records clause in order to validate the commutation proposal. Odyssey initially refused to allow Reinsurance Australia to inspect its documents until all outstanding claims it had with Reinsurance Australia were paid. Inspection was subsequently allowed after Reinsurance Australia commenced arbitration proceedings to enforce the access to records clause. During inspection in July 2000, Reinsurance Australia identified three grounds upon which the debt was disputed. Odyssey issued a statutory demand on Reinsurance Australia on 9 June 2000 claiming monies under the reinsurance policy. Reinsurance Australia applied under section 459H Corporations Act 2001 (Cth) seeking to set aside the statutory demand on a number of grounds including on the basis that Odyssey s refusal to allow inspection amounted to a breach of contract. Reinsurance Australia argued that this breach of contract led to an inference that there was a genuine dispute as to the existence of the debt. Master Macready held at first instance that there was a genuine dispute in relation to the debt and that the statutory demand should be set aside. In doing so, he considered whether the refusal by Odyssey to allow inspection amounted to a breach of contract. The reinsurer is not normally privy to the details of the loss claims. Indeed these are matters which are peculiarly within the knowledge of the reinsured. For this reason, absent an access to records clause, the reinsurer has no means of knowing whether the conditions [of the reinsurance contract] are fulfilled. Plainly the purpose of the access to records clause... is to provide protection for the reinsurer in these circumstances. It was found that Odyssey understood that inspection was sought in respect of the commutation proposal and the Turkish earthquake claim. As Odyssey nevertheless refused inspection until outstanding claims were paid, Reinsurance Australia was entitled to conclude that the claim required investigation before payment. On appeal, His Honour Windeyer J held that it was possible to have a genuine dispute or at least put forward a plausible contention as to doubt about liability when inspection of material relevant to liability is denied. What steps a reinsured should take to protect its right to inspect Always make the request on a reservation of rights basis Reinsurers are aware that in Australia reinsurance contracts are not regulated by the Insurance Contracts Act. This means that the common law of contract applies including waiver, affirmation, estoppel or election. An inspection of the reinsured s documents without an express reservation of rights may be interpreted as an affirmation of the contract. In Iron Trades v Imperio 5, reinsurers, through their solicitors, invoked their right to inspect the reinsured s books and records without any reservation of rights or non-waiver leading Hobhouse J to comment: This was the express invocation of a contractual right. No qualification or reservation of rights was introduced and it can only have been a further affirmation of the contract. 6 5 Iron Trades Mutual Insurance Co. Ltd v Companhia de Seguros Imperio [1991] 1 Re. L.R Iron Trades Mutual Insurance Co. Ltd v Companhia de Seguros Imperio [1991] 1 Re. L.R. 213

5 5 Make a request to inspect in a timely manner A court will be reluctant to refuse summary judgment pursuant to a follow the settlements clause if a reinsurer does not invoke its right to inspect until the very last moment when they are under the lash of the claim. 7 However, the situation may be different if timely requests for inspection are made. In American Home Assurance Company & Ors v Instituto Nacional De Reaseguros, 8 a reinsurer was provided with access at any reasonable time to all records of the reinsured pertaining in any way to the reinsurance agreement. The reinsured provided the reinsurer with quarterly statements of accounts from 1984 to 1987 showing the balancing owing by the reinsurer to the reinsured on each occasion. The reinsurer did not object to nor make any inquiries on any of the quarterly statements. The reinsured applied for summary judgment in the amount of $241,030. Following the reinsured s application for summary judgment, the reinsurer sought to exercise its right of inspection, to which the reinsured refused. Haight DJ held that it was a commercially reasonable position for the reinsured to refuse to allow access in light of the reinsurer s failure to object to the statements of accounts or pay them. In New York, agreements to pay a particular amount may be implied if a party receiving a statement of account fails to object to its contents within a reasonable time. Accordingly, the reinsurer was ordered to prove any mistakes supporting an adjustment of the stated account or to pay the claim. If the circumstances were such that it was difficult or expensive for the reinsurer to prove such mistakes, the reinsurer had to pay the price for failing to object or inquire within a reasonable time. In Gerling Global Reinsurance Corporation U.S. Branch v Safety Mutual Casualty Corporation, 9 a reinsurer argued it had suffered loss as a result of the reinsured under-accounting for its premiums. The reinsurer made claims of fraudulent concealment and active fraud against the reinsured, claiming that the reinsured concealed its manner of calculating premiums. Sweet DJ held that the reinsurer s claim for fraudulent concealment was untenable in light of the reinsurer having an express right to access all books and records of the reinsured pertaining in any way to the reinsurance. Accordingly, in the absence of any indication that the reinsured failed to honour the access clause, the access clause defeated the reinsurer s claim for fraudulent concealment. Conclusion In light of the cases mentioned above, the following guidance is provided to reinsurers in relation to their right to inspect. Recommended access to records clause A reinsurer should ensure that their right to inspect is contained in the contract and includes some or all of the following: The reinsurer has a right to inspect all books and documents relating to business ceded to the reinsurer under the reinsurance agreement. The right of inspection survives contract termination. The inspection right vests in the reinsurer or in any of its authorised representatives. Access for inspection will be allowed at all reasonable times. Inspection includes the right to conduct an audit. The appropriate time to inspect Reinsurers should consider whether claim payments, when made, have been substantiated or if an ambiguity has arisen requiring investigation. If an ambiguity arises, the request for inspection should be made without delay. The advantages of timely inspection should be weighed against the likely costs and complexity of the investigation required. Ultimately, the appropriate time to inspect is dependent on the circumstances of the case. 7 Pacific & General Insurance Co Ltd (in liquidation) v Baltica Insurance Co (UK) Ltd [1996] L.R.L.R. 8, U.S. Dist. LEXIS U.S. Dist. LEXIS 13864

6 6 Course of action where an reinsured refuses to allow a reinsurer to inspect Access to records and notice of loss clauses in reinsurance policies generally preclude reinsureds from denying reinsurers access to material showing whether or not a debt is owing. A reinsured s refusal to allow inspection leads to the inference that there is a dispute on substantial grounds. However, given the importance of maintaining business relationships and in the spirit of cooperation, a reinsurer and reinsured should attempt to resolve this dispute via informal methods. A reinsurer should attempt to clarify the specific reasons why access is being denied and whether their request is legitimate. Reinsurers should also consider identifying which documents are already on file and requesting documents with a degree of specificity. Failing the above, reinsurers can take steps to enforce their right to inspect in accordance with any arbitration clause in the reinsurance contract. November 2014 This article was prepared by Julia Turner This article was prepared by Paul O Brien, Director, Julia Turner, Senior Associate and Joelene Luu, Solicitor. Paul O Brien can be contacted on or at pobrien@ypol.com.au, Julia Turner can be contacted on or at jturner@ypol.com.au and Joelene Luu can be contacted on or at jluu@ypol.com.au. On 1 September 2007, three of the leading insurance and commercial litigators of Phillips Fox joined forces with the established and respected insurance and commercial litigation specialist, Yeldham Lloyd Associates to create our firm. We are a specialist incorporated legal practice. We are focused on insurance, reinsurance and commercial litigation. Our directors are recognised locally and internationally as among the best in their fields. They are supported by an experienced and talented team. We are accessible, straightforward and responsive. We are about providing the best legal service at a reasonable cost. For more information on our firm please visit DISCLAIMER LEVEL 2, 39 MARTIN PLACE SYDNEY NSW 2000 DX 162 SYDNEY T: F: YPOL PTY LTD TRADING AS YELDHAM PRICE O BRIEN LUSK ACN LIABILITY LIMITED BY A SCHEME APPROVED UNDER PROFESSIONAL STANDARDS LEGISLATION. LEGAL PRACTITIONERS EMPLOYED BY YPOL PTY LIMITED ARE MEMBERS OF THE SCHEME This paper was prepared by YPOL (Julia Turner and Joelene Luu). This update is intended to provide a general summary only and does not purport to be comprehensive. It is not, and is not intended to be, legal advice. YPOL Pty Limited