Shaving of Limits Has Limits of Its Own

May 2013 • Lockton Companies

L O C K T O N C O M P A N I E S

ERIC SILVERSTEINSenior Vice President

Risk Practices404.460.0707

esilverstein@lockton.com

When an underlying carrier does not pay its limit, the insured company may find itself at an impasse. After all, excess insurance does not trigger until the underlying limit is reached. That’s where “shaving of limits” comes into play. It’s a hot topic among risk managers and a rather tricky issue to navigate. This paper will help you make sense of it all.

What Is Shaving of Limits?

For companies that want to quickly settle a claim, protect their reputation and move on, the answer may be to shave the limits. In other words, they write a check to cover the amount not paid by the underlying carrier. Once that check is written and the limit is shaved, the excess insurance presumably becomes available. But that is not always what happens.

Different Interpretations, Different Expectations.

The vast majority of excess policies do not recognize the reduction of an underlying limit unless the limit is exhausted through payment by the underlying insurer.

For example, let’s say there is a $25 million loss and your underlying insurer has a $5 million limit. Unless they pay every penny of that limit, the excess insurer does not have to pay. Several recent court cases have upheld this interpretation.

For companies that want to quickly settle

a claim, protect their reputation and move

on, the answer may be to shave the limits.

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On the surface, this seems grossly unfair. If an insured company spends a few dollars to facilitate a settlement, should they not be rewarded?

As you might expect, the answer to this is both yes and no. Insurers have a great deal of concern over the removal of clauses that require payment in full by the underlying insurer. In general, there is a disciplined process to excess settlement that leads to a more predictable pattern of payments. Insurers often follow the fortunes of the primary insurer for better or worse. If “follow the fortunes” is the linchpin of the excess industry, does removing that requirement threaten its very foundation? This logic may be a bit extreme, but some insurers view the issue this way.

Most of the insurers who refuse to provide shaving of limits wording in their excess liability policies routinely include it in their directors and officers policies.

In practice, large claims often include multiple claimants. Frequently, a settlement cannot be reached as a consequence of a single claimant’s refusal to settle. On occasion, an insured may decide to settle, regardless of the insurer’s position, in order to facilitate the most effective settlement for everyone involved. In these instances, a shaving of limits provision may very well be advantageous.

When we address the shaving of limits issue with the insurance market, what we find is that the position of insurers varies based on the issue at hand.

Virtually all insurers include wording that addresses the issue of insolvency of the underlying insurer.

However, when the issue of partial payment of settlement arises, the field narrows. Removing all restriction is rare.

Three Court Cases Illuminate the Issue

Goodyear Tire & Rubber Co. v. Nat’l Union Fire Insurance Company of Pittsburgh, PA, 694 F.3d 781 (6th Cir. 2012)

This case involved a coverage dispute that led to a partial settlement by an underlying insurer. Although the claim was in excess of the attachment, the underlying insurer had settled with the insured for an amount lesser than the policy limit. As a consequence, the court ruled that excess coverage was not available.

JP Morgan Chase & Co. v. Indian Harbor Ins. Co., 98 A.D. 3d 18 (1st Dep’t 2012)

This is a complicated case where multiple claims were settled without clarification that could have matched policies to specific portions of the settlement. The result raised a question about whether the underlying limits had been exhausted.

Preferred Construction, Inc., v. Illinois Nat. Ins. Co, No. 11-4339-cv, 2012 WL 3735056 (2d. Cir. Aug. 30, 2012)

Exhaustion of underlying limits ruled a condition precedent if coverage is to apply.

When we address the shaving of limits issue

with the insurance market, what we find is

that the position of insurers varies based on

the issue at hand.

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How to Protect Yourself

The first action is to review your excess policy. Chances are you will find the wording in one of four places: 1) Insuring Agreement, 2) Maintenance of Underlying Insurance, 3) When a Loss is Payable, or 4) Limits of Insurance. When the intent is clearly not to provide coverage, you are most likely to find an exception written in the insuring agreement.

1) Insuring Agreements (examples)

“. . . If underlying insurance does not pay a ‘loss’ for reasons other than the exhaustion of an aggregate limit of insurance, then we will not pay such ‘loss.’” – Ace Catastrophe Liability Plus Policy XSC-27266 (05/09)

“. . . If any underlying insurance does not pay damages, for reasons other than exhaustion of an aggregate limit of insurance, then we shall not pay such damages.” – Firemans Fund 5503 10 02R

The examples above suggest intent is to only pay upon exhaustion of underlying insurance by payment of the underlying insurer.

2) Maintenance of Underlying Insurance (example)

“If such underlying insurance is not maintained in full effect or if any limits of liability of underlying insurance are unavailable due to bankruptcy or insolvency of the underlying insurer, then the insurance afforded by this policy will apply in the same manner as if such underlying insurance and limits of liability had been in effect, available, so maintained or unchanged.” – Ace Catastrophe Liability Plus Policy XSC-27266 (05/09)

The example above is a common exception for insolvency of the underlying insurer. This type of clause is also often found in the bankruptcy or insolvency provision in the conditions section of many policies.

3) When a Loss is Payable (example)

“Coverage under this policy will not apply unless and until the insured or the insured’s underlying insurance has paid or is obligated to pay the full amount of the total limits of all underlying insurance shown in item 6.B. of the declarations.” – Zurich Excess Policy U-EXS-100-CW (01/12)

This example affirms that the insurer’s intent is to consider shaving of limits via payment by the insured.

In general, when affirmative coverage is provided, the terms “by or on behalf of ” and “insured or underlying insurer” are used in conjunction with “exhaustion of underlying limits.”

The insurer’s intent is not always clear. In these cases, it is safe to assume that the insurer does not intend to provide an opportunity for shaving of limits.

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4) Limits of Insurance (example)

“We will not make payment under this policy unless and until: The total applicable limits of scheduled underlying insurance have been exhausted by payment of loss to which this policy applies and any applicable, other insurance have been exhausted by payment of loss.” – Chartis Umbrella Prime Form 80517 (11/09)

Although the above wording does not specifically require payment by the underlying insurer, AIG takes the position that this is implied and further supported by the definition of loss.

What About a Retained Limits Form?

If you have a retained limits form or endorsement, chances are that shaving of limits is less of an issue. Some insurers will volunteer retained limits wording options as a way to resolve the shaving of limits issue. However, keep in mind that retained limits wording in many cases stands on its own. This could create problems in consistency with coverage in underlying layers and possible issues with continuity in defense coverage.

Endorsement Wording

Most endorsements are manuscript and require a detailed review of the policy for continuity in terms. However, the basis of a well-written endorsement should:

� Modify the insuring agreement.

� Clearly include an obligation paid by or on behalf of the insured as eroding the underlying limit.

� Not include restrictions in addition to those previously included in the form.

Shaving of limits wording can be an advantage; however, most issues are settled in good faith. Modifying the policy will serve to trigger the policy, but does not necessarily mean that the entire amount of the underlying claim will be covered. Be cautious about distinguishing between triggering coverage and where coverage attaches. The insurer may take the position that although the policy has been triggered, a portion of the underlying settlement is uncovered. Consequently, coverage could attach at a greater amount than you may have thought.

Your Lockton excess casualty team has access to sample wording and is well-versed on the issues associated with shaving of limits.

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Excess Casualty Practice Panel Members

Practice Leader U.S.

Tim DeSett Eric Silverstein 816-960-9960 404-460-0707 tdesett@lockton.com esilverstein@lockton.comExcess Casualty Practice Panel Members

Practice LeaderTim DeSett

816-960-9960tdesett@lockton.com

Debbie Goldstine312-669-6888

dgoldstine@lockton.com

UK/BERMUDATony Hardy

011-44-20-7933-2893thardy@uk.lockton.com

Jonathan Stokes215-794-7202

jstokes@lockton.com

Marjorie Hughes816-960-9737

mhughes@lockton.com

Nicole Lindstrom816-960-9563

nlindstrom@lockton.com

U.S.Eric Silverstein404-460-0707

esilverstein@lockton.com

Dirk vanHeyst646-572-7331

dvanheyst@lockton.com

Bruce Schneider

Jason Riley312-669-6783

jriley@lockton.com

Paul Primavera (Claims)202 414 2620

646-572-7334bschneider@lockton.com

Mark Nieman213-689-2316

mnieman@lockton.com

Wendy Chen213-689-2403

chen@lockton com 202-414-2620pprimavera@lockton.com

Vince Gaffigan314-812-3227

vgaffigan@lockton.com

Amanda Pocius314 812 3808Nicole Holcomb

wchen@lockton.com

Eric Silverstein404-460-0707

Stacy Seaberg713-458-5232

sseaberg@lockton com

Rex Cook214-720-3424

rcook@lockton.com

Stephen Brown214 720 3454

314-812-3808apocius@lockton.com

Nicole Holcomb303-414-6051

nholcomb@lockton.com

Shawn Matthews303-414-6235

shmatthe@lockton.com

esilverstein@lockton.com

Greg Cohen404-460-0728

gcohen@lockton.com

1g\Unit_Lewis\2013\excess casualty practice update draft march 2013.pptx\***

sseaberg@lockton.com

Clay Brooks713-458-5481

cbrooks@lockton.som

214-720-3454sbrown@lockton.com

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