SEPTEMBER 2005 Insurance Coverage English Court Rejects Solvent Scheme of Arrangement Proposed by British Aviation Insurance Company Limited INTRODUCTION SOLVENT SCHEMES In response to objections filed by a group of policyholders based in the United States (“Objecting Policyholders”), the English High Court of Justice recently rejected a Solvent Scheme of Arrangement (“Solvent Scheme” or “Scheme”) proposed by British Aviation Insurance Company Limited (“British Aviation”), a solvent London insurer operating in runoff.1 In so holding, the Court emphasized that British Aviation’s proposed Solvent Scheme unfairly sought to “retransfer” risks from British Aviation back to policyholders facing potential future asbestos liabilities. British Aviation has appealed this decision. Since the mid-1990s, insolvent London insurers regularly have proposed Schemes of Arrangement as an alternative to statutory liquidations in order to settle their claims and wind up their affairs. A Scheme of Arrangement is basically a binding contract among the insurer and all of its creditors that dictates how claims are handled and paid. Schemes generally must be approved by a super-majority of the insurer’s creditors and then sanctioned by an English court. Under such Schemes, the insolvent insurer typically will pay some fraction of any settled claims. The British Aviation Order marks the first time that an English court has refused to approve a proposed Scheme of Arrangement and, as a result, this ruling (if upheld on appeal) could greatly influence whether English courts will permit other solvent London insurers to wind up their affairs via Solvent Schemes of Arrangement. As emphasized in the Court’s Order, different classes of policyholders may have fundamentally different interests with respect to proposed Solvent Schemes. Given the divergent interests, and based on their unique facts and circumstances, some policyholders may support and some policyholders may oppose Solvent Schemes in general. The Order in the British Aviation proceeding suggests that English courts will not necessarily approve all proposed schemes and that, therefore, policyholders should take steps to evaluate and protect their particular interests with respect to Solvent Schemes. 1 In the past few years, numerous solvent London insurers in runoff (generally, solvent insurers that no longer issue new policies) also have proposed or announced their intention to propose Solvent Schemes. Although solvent London insurers by definition are in a position to pay claims on a going-forward basis, insurers frequently have touted various perceived advantages of such Schemes. For example, insurers have asserted that policyholders may benefit by obtaining early payments for estimated claims, rather than waiting years for the claims to mature. Insurers also have asserted that Solvent Schemes would simplify the claims agreement process and reduce the delays and costs associated with potential liquidations. As a general matter, Solvent Schemes impose bar dates by which policyholders must file all claims, including contingent and Incurred But Not Reported (“IBNR”) claims. Under Solvent Schemes, the insurer generally will pay 100% of any settled claim. In re British Aviation Insurance Company Ltd., No. 165 of 2005, English High Court of Justice, Chanc. Div. (July 21, 2005)(“Order”). Kirkpatrick & Lockhart Nicholson Graham LLP English courts have approved numerous Solvent Schemes in the past few years, including Schemes proposed by Ludgate Insurance Company and Sphere Drake Insurance Company. It has been reported that approximately sixty (60) solvent London insurers have proposed or are in the process of proposing Solvent Schemes.2 This trend has sparked a considerable amount of controversy in the policyholder community. While Solvent Schemes may benefit certain policyholders (particularly those that are in a position to support contingent claims with actuarial data), their impact on other policyholders remains unclear. For example, under a Solvent Scheme, policyholders would not be able to file claims after the bar date, even if they were unaware of the claims before the bar date. Additionally, some have suggested that (i) it is unclear how Scheme Administrators will value IBNR claims, particularly for policyholders that may have just recently become involved in asbestos-related lawsuits; (ii) it is unclear whether Scheme Administrators will handle claims fairly, given that policyholders arguably lose the threat of suing the insurer if the settlement is not reached or the insurer acts in bad faith; and (iii) it is unclear whether Scheme Adjudicators will handle disputes fairly. BRITISH AVIATION’S PROPOSED SOLVENT SCHEME As noted above, British Aviation is the latest in a series of solvent London insurers that have attempted to wind up their affairs via a Solvent Scheme. British Aviation was incorporated in 1930 and wrote insurance and reinsurance in the aviation sector until approximately 2002.3 It was recognized as a “lead underwriter in the aviation risks in which it participated.”4 British Aviation is a private company, owned directly and indirectly by three major insur- ance companies: Royal & Sun Alliance Insurance Group, AVIVA plc, and AXA Investment Managers UK Holdings Ltd.5 British Aviation is solvent. Its audited balance sheet as of December 31, 2004 shows total assets of £227,136,000 as against total liabilities to third parties of £125,997,000.6 As a result, if the Solvent Scheme had been approved, the three insurance companies that owned British Aviation “stood to receive a substantial return of capital.”7 British Aviation’s proposed Scheme was designed to cover the majority, but not all, of its outstanding liabilities. Specifically, the proposed Scheme applied to insurance and business underwritten by British Aviation during the period February 24, 1930 through December 31, 1990 (as well as certain policies issued by its Canadian branch).8 With respect to business excluded from the proposed Scheme, British Aviation would remain in conventional solvent run-off.9 British Aviation’s main potential liabilities that would have been affected by the proposed Scheme are claims or potential claims by policyholders in the United States under product liability and general liability insurance policies affording coverage for claims arising out of exposure to asbestos, pollution, and other health hazards.10 British Aviation estimated that approximately 93% of its “estimated liabilities before reinsurance” arose from pollution and asbestos claims.11 British Aviation further estimated that approximately 92% of its asbestos liabilities are owed to direct insureds, all of whom are resident in the United States.12 British Aviation held a meeting of creditors on March 15, 2005. Seventy-seven policyholders attempted to vote at the meeting; seventy-two of them were admitted to vote. British Aviation reported that the requisite majority of creditors voted in 2 See Summary Schedule prepared by KWELM Management Services, May 2005. 3 See Order at ¶ 1. 4 Id. at ¶ 3. 5 Id. at ¶ 1. 6 Id. at ¶ 7. 7 Id. at ¶ 11. 8 Id. at ¶ 21. 9 Id. at ¶ 13. 10 Id. at ¶ 3. 11 Id. at ¶ 5. 12 Id. at ¶ 6. 2 SEPTEMBER 2005 KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP favor of the proposed Scheme, although there were disputes concerning who was allowed to vote and how certain policyholders’ claims should be valued for voting purposes.13 Thereafter, eighteen corporations based in the United States filed objections to the proposed Scheme on the following grounds: (1) the process of notifying creditors of the proposed Scheme was fundamentally flawed; (2) the information provided to the policyholders was inadequate; (3) the Court did not have jurisdiction to sanction the plan because the company failed to constitute the classes of its policyholders in a proper manner; (4) only a small minority of British Aviation’s policyholders voted in favor of the proposed Scheme; (5) the proposed Scheme was unfair, and (6) British Aviation failed to make full and frank disclosures concerning the proposed Scheme.14 THE COURT’S ORDER REJECTING THE SOLVENT SCHEME On July 21, 2005, the English High Court of Justice denied British Aviation’s application to the Court for sanction of the proposed Solvent Scheme. In sum, the Court denied British Aviation’s application on the grounds that it did not have jurisdiction to hear the petition because British Aviation had failed to identify and secure the approval of all classes of creditors in a correct manner. The issue presented to the Court was whether British Aviation’s decision to treat all of its creditors as a single class for voting purposes was appropriate or whether certain policyholders—including policyholders with large IBNR claims—should have been treated as a separate class. The Court framed the question of “what is a ‘class’ of creditors” as follows: The relevant question at the outset is: between whom is it proposed that a compromise or arrangement is to be made? Are the rights of those who are to be affected by the scheme proposed such that the scheme can be seen as a single arrangement; or ought the scheme to be regarded, on a true analysis, as a number of linked arrangements?15 13 Id. at ¶¶ 41-44. 14 Id. at ¶¶ 46-52. 15 Id. at ¶ 57 (citing in Re Haw Insurance Company Ltd.). 16 Id. at ¶ 92. 17 Id. at ¶ 83. 18 Id. at ¶ 83. 3 SEPTEMBER 2005 The Court held that the Objecting Policyholders— generally policyholders with IBNR claims—should not have been grouped in the same class with other policyholders, reasoning as follows: In the particular circumstances of a solvent scheme, where a solvent liquidation is not a realistic alternative, those with accrued claims and those with IBNR claims have interests which are sufficiently different as not to make it possible for them sensibly to consult together “in their common interest.” In truth, they do not have a common interest at all.16 In so holding, the Court emphasized the differences between policyholders with accrued claims and policyholders with IBNR claims. The Court noted that policyholders with accrued claims will be paid in full, whether the Scheme was approved or not.17 In contrast, if the Scheme was approved, policyholders with IBNR claims would merely gain the right to have their claim “valued.” If the Scheme was not approved, policyholders with IBNR claims would simply wait for claims to materialize and the insurer would bear the risk of whether such claims would materialize and to what extent. The Court held that “this is what insurance is about. The policyholder bargains for the insurer to bear the risk of a contingency materializing. The insurer is in the risk business; and the policyholder is not. Unlike the policyholder with an accrued claim, who knows the extent of his exposure to that claim, the policyholder with an IBNR claim does not. The essence of the scheme is that it retransfers the risk from the insurer (who had contracted to bear it) to the policyholder (who did not). Thus the rights of a policyholder with an IBNR claim are fundamentally different under the scheme from the rights that he would have in the absence of the scheme.”18 In addition, the Court held that policyholders with IBNR claims had fundamentally different interests than certain creditors who voted in favor of the Scheme who were also reinsurers of British Aviation. The Court held that “as reinsurers, they have a clear interest to cap their own liabilities to the KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP Company under their own reinsurance contracts.”19 As such, the Court held that the creditors that were also reinsurers “ought to have been constituted as a separate class.”20 Given these conflicts among the creditors, the Court held that the “single scheme meeting was not properly constituted. It follows, therefore, that I must hold that I have no jurisdiction to sanction the scheme.”21 Although the Court based its decision on jurisdictional grounds, it stated that “in case I am wrong, I must go on to consider the other grounds of objection.”22 In this dicta, the Court expressed reservations about the overall fairness of the proposed Scheme as well and the conduct of the Creditors’ meeting. The Court stated that “if I had jurisdiction I would not have sanctioned the scheme … [for the following reasons:] ■ The votes allowed to be cast at the scheme meeting did not fairly represent the creditors (and in particular the direct insureds) with substantial IBNR claims; ■ The Estimate Methodology does not provide a clear basis for treating all creditors alike, and results in uncertainty; ■ The Company’s power to revert to runoff is not circumscribed; and ■ The supposed benefits of the scheme are largely benefits to the Company and its shareholders; or are brought into existence by the exigencies of the scheme itself.”23 With respect to the first point, the Objecting Policyholders objected on the grounds that British Aviation had greatly discounted the IBNR claims of certain policyholders that voted against the Scheme, while recognizing multi-million-dollar IBNR claims of policyholders that voted in favor of the Scheme.24 19 Id. at ¶ 93. 20 Id. at ¶ 93. 21 Id. at ¶ 97. 22 Id. at ¶ 97. 23 Id. at ¶ 142. 24 Id. at ¶¶ 103 and 104. 25 Id. at ¶¶ 109-110. 26 Id. at ¶ 141. 27 Id. at ¶ 143. 28 Id. at ¶ 143. 4 SEPTEMBER 2005 While not reaching any definitive conclusions, the Court stated that “I have a very uneasy feeling that these IBNR claims were simply brushed aside.… The real problem is that the votes of the policyholders with IBNR claims have to be estimated using sophisticated and controversial actuarial techniques. In such a case it seems to me that the court must be especially wary of simply waving through a vote in which so many of the dissentients have had a nominal value placed on their claims.”25 The Court further stated that any benefits arising from an early conclusion of the runoff and any associated cost savings would “enure” to British Aviation, rather than the policyholders.26 In conclusion, the Court stated that the “most powerful consideration” was that it is “unfair to require the manufacturers who have bought insurance policies designed to cast the risk of exposure to asbestos claims on insurers to have that risk compulsorily retransferred to them. [British Aviation] is in the risk business; [the policyholders] are not.”27 The Court recognized that while some policyholders may be willing to accept payment in full based on an estimate of their claims, it was unfair to require all policyholders to settle. The Court reasoned that to compel objecting policyholders to take part in the Solvent Scheme “would…require them to do that which it is unreasonable to require them to do.”28 CONCLUSION It remains to be seen whether the British Aviation Order will be upheld on appeal and, if so, what impact it will have in the future on Solvent Schemes. Some commentators believe that Solvent Schemes can be modified in order to ensure court approval. For example, an insurer could insert provisions into a Solvent Scheme that would allow IBNR claimants to vote as a separate class and would provide greater clarity of the estimation methodologies to be used to KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP resolve claims.29 Future Solvent Schemes also could treat insurance policyholder claimants differently from cedent insurer claimants. The impact of this decision can already be seen. For example, at least one Solvent Scheme proposal has been postponed in the wake of this decision. Gordian Runoff (UK) Ltd. (formerly known as GIO (UK) Ltd.) has adjourned its hearing to obtain court approval of its proposed Solvent Scheme. While the future of Solvent Schemes remains to be seen, the British Aviation Order highlights the need for policyholders to evaluate carefully any proposed Solvent Schemes and to take action to protect their interests. Gregory S. Wright gwright@klng.com 202.778.9250 Julia Reynolds Johnson jjohnson@klng.com 202.778.9227 Gregory S. Wright is a partner and Julia Reynolds Johnson is of counsel in the Washington, D.C. office of the law firm of Kirkpatrick & Lockhart Nicholson Graham LLP. They regularly counsel policyholders with respect to a wide variety of insurance coverage claims, including claims against insolvent London insurers. The views expressed in this Alert are not necessarily those of Kirkpatrick & Lockhart Nicholson Graham LLP or of its clients. If you have questions or would like more information about K&LNG’s Insurance Coverage Practice, please contact one of our lawyers listed below. International Contact Boston Dallas Harrisburg London Los Angeles Miami Newark New York Pittsburgh San Francisco Washington 29 Peter J. Kalis John M. Edwards Robert Everett Wolin Carleton O. Strouss Jane V. Harte-Lovelace David P. Schack Daniel A. Casey Anthony P. La Rocco Peter J. Kalis John M. Sylvester Edward P. Sangster Matthew L. 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Ins., Aug. 1, 2005, at 30. www.klng.com BOSTON ■ DALLAS ■ HARRISBURG ■ LONDON ■ LOS ANGELES ■ MIAMI ■ NEWARK ■ NEW YORK ■ PALO ALTO ■ PITTSBURGH ■ SAN FRANCISCO ■ WASHINGTON Kirkpatrick & Lockhart Nicholson Graham (K&LNG) has approximately 1,000 lawyers and represents entrepreneurs, growth and middle market companies, capital markets participants, and leading FORTUNE 100 and FTSE 100 global corporations nationally and internationally. K&LNG is a combination of two limited liability partnerships, each named Kirkpatrick & Lockhart Nicholson Graham LLP, one qualified in Delaware, U.S.A. and practicing from offices in Boston, Dallas, Harrisburg, Los Angeles, Miami, Newark, New York, Palo Alto, Pittsburgh, San Francisco and Washington and one incorporated in England practicing from the London office. This publication/newsletter is for informational purposes and does not contain or convey legal advice. 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