Exhibit 10.51
EXCESS WORKERS' COMPENSATION
REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 2007
issued to
AmCOMP Preferred Insurance Company
North Palm Beach, Florida
AmCOMP Assurance Corporation
North Palm Beach, Florida
and
any and all insurance companies which are now or
hereafter come under the same ownership or management as the
AmCOMP Group
North Palm Beach, Florida
TABLE OF CONTENTS
ARTICLE PAGE
I Classes of Business Reinsured 1
II Commencement and Termination 1
III Special Xxxxxxxxxxx 0
XX Xxxxxxxxx (XXXX 00X) 3
V Exclusions 3
VI Retention and Limit 7
VII Reinstatement 8
VIII Definitions 9
IX Other Reinsurance 12
X Federal Terrorism Recovery 12
XI Annuities at Company's Option 12
XII Claims 13
XIII Special Commutation 13
XIV Salvage and Subrogation 15
XV Premium 15
XVI Late Payments 16
XVII Offset and Security 17
XVIII Access to Records (BRMA 1D) 18
XIX Liability of the Reinsurer 18
XX Net Retained Lines (BRMA 32E) 19
XXI Errors and Omissions (BRMA 14F) 19
XXII Currency (BRMA 12A) 19
XXIII Taxes (BRMA 50B) 19
XXIV Federal Excise Tax 19
XXV Reserves 20
XXVI Insolvency 21
XXVII Arbitration 22
XXVIII Service of Suit (BRMA 49C) 23
XXIX Agency Agreement 23
XXX Governing Law (BRMA 71B) 24
XXXI Intermediary (BRMA 23A) 24
Schedule A
EXCESS WORKERS' COMPENSATION
REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 2007
issued to
AmCOMP Preferred Insurance Company
North Palm Beach, Florida
AmCOMP Assurance Corporation
North Palm Beach, Florida
and
any and all insurance companies which are now or
hereafter come under the same ownership or management as the
AmCOMP Group
North Palm Beach, Florida
(HEREINAFTER REFERRED TO COLLECTIVELY AS THE "Company")
by
The Subscribing Reinsurer(s) Executing the
Interests and Liabilities Agreement(s)
Attached Hereto
(HEREINAFTER REFERRED TO AS THE "Reinsurer")
ARTICLE I - CLASSES OF BUSINESS REINSURED
By this Contract the Reinsurer agrees to reinsure the excess liability which may
accrue to the Company under its policies, contracts and binders of insurance or
reinsurance (hereinafter called "policies") in force at the effective date
hereof or issued or renewed on or after that date, and classified by the Company
as Workers' Compensation and Employers Liability business, subject to the terms,
conditions and limitations set forth herein and in Schedule A attached to and
forming part of this Contract.
ARTICLE II - COMMENCEMENT AND TERMINATION
A. This Contract shall become effective at 12:01 a.m., Local Standard Time,
January 1, 2007, with respect to losses arising out of occurrences
commencing at or after that time and date, and shall continue in force
thereafter until terminated.
B. Either party may terminate this Contract at 12:01 a.m., Local Standard Time,
on any January 1 by giving the other party not less than 90 days prior
notice by certified mail.
C. Unless the Company elects that the Reinsurer have no liability for losses
arising out of occurrences commencing at or after the effective time and
date of termination, and so notifies the Reinsurer prior to or as promptly
as possible after the effective date of termination, reinsurance hereunder
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on business in force at the effective time and date of termination shall
remain in full force and effect until expiration, cancellation or next
premium anniversary of such business, whichever first occurs, but in no
event beyond 12 months, plus odd time (not to exceed 18 months in all),
following the effective time and date of termination.
D. Notwithstanding the provisions above, in the event that any policy subject
to this Contract is required by statute, regulation or by order of an
insurance department to be continued in force, the Reinsurer agrees to
extend reinsurance coverage hereunder following the termination of this
Contract with respect to such policy until the first date that the Company
may lawfully non-renew, cancel or terminate such policy, whether or not the
Company actually does non-renew, cancel or terminate such policy. However,
under no circumstances shall runoff coverage under this paragraph exceed 23
months.
E. "Contract year" as used herein shall mean the period from 12:01 a.m., Local
Standard Time, January 1, 2007, to 12:01 a.m., Local Standard Time January
1, 2008, and each subsequent 12-month period (or portion thereof) thereafter
that this Contract continues in force shall be a separate contract year. If
this Contract is terminated on a "runoff" basis, the period from the
effective date of termination through the end of the "runoff" period shall
be a separate contract year and referred to as the "runoff contract year."
ARTICLE III - SPECIAL TERMINATION
A. Notwithstanding the provisions of paragraph B of the Commencement and
Termination Article, either party may terminate this Contract at any time by
giving the other party not less than 30 days prior written notice in the
event any of the following circumstances occur (if terminated by either
party, said termination shall be on a "runoff" basis unless the Company
elects to have such termination on a "cutoff" basis):
1. The other party's policyholders' surplus at the beginning of any
contract year has been reduced by more than 30.0% of the amount of
surplus 12 months prior to that date; or
2. The other party's policyholders' surplus at any time during any contract
year has been reduced by more than 30.0% of the amount of surplus at the
date of the other party's most recent financial statement filed with
regulatory authorities and available to the public as of the beginning
of the contract year; or
3. The other party has become merged with, acquired by or controlled by any
other company, corporation or individual(s) not controlling the other
party's operations previously; however, this subparagraph shall not
apply to the sale of stock to a non-acquiring entity or where the
acquiring company, corporation or individual(s) has an A.M. Best's
rating higher than the rating held by the other party at the beginning
of the contract year; or
4. The State Insurance Department or other legal authority in the other
party's state of domicile has ordered the other party to cease writing
business; or
5. The other party has become insolvent or has been placed into liquidation
or receivership (whether voluntary or involuntary) or proceedings have
been instituted against the other party for the appointment of a
receiver, liquidator, rehabilitator, conservator or trustee in
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bankruptcy, or other agent known by whatever name, to take possession of
its assets or control of its operations; or
6. The other party has ceased writing new or renewal property and casualty
business.
B. Notwithstanding the provisions of paragraph B of the Commencement and
Termination Article, the Company may terminate a Subscribing Reinsurer's
percentage share in this Contract by giving not less than 30 days prior
written notice to the Subscribing Reinsurer in the event the Subscribing
Reinsurer's A.M. Best's rating has been assigned or downgraded below A-
(includes any "Not Rated" rating) and/or Standard & Poor's rating has been
assigned or downgraded below BBB+.
C. Notwithstanding the provisions of paragraph B of the Commencement and
Termination Article, a Subscribing Reinsurer may terminate its percentage
share in this Contract by giving the Company not less than 30 days prior
written notice in the event any of the following circumstances occur (said
termination shall be on a "runoff" basis unless the Company elects to have
such termination on a "cutoff" basis; however, termination shall be on a
"cutoff" basis if the Subscribing Reinsurer terminates because the Company
has failed to pay premium):
1. 51.0% or more of the Company or its portfolio is purchased or sold; or
2. The Company has failed to pay reinsurance premiums in accordance with
this Contract; or
3. A material change has occurred in any two of the Company's three senior
officers (i.e., the Chief Executive Officer, the President, or the Chief
Financial Officer).
ARTICLE IV - TERRITORY (BRMA 51A)
The territorial limits of this Contract shall be identical with those of the
Company's policies.
ARTICLE V - EXCLUSIONS
A. This Contract does not apply to and specifically excludes the following:
1. Reinsurance assumed by the Company under obligatory reinsurance
agreements, except:
a. Agency reinsurance where the policies involved are to be
reunderwritten in accordance with the underwriting standards of the
Company and reissued as Company policies at the next anniversary or
expiration date;
b. Intercompany reinsurance between any of the reinsured companies
under this Contract.
2. Ex-gratia payments.
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3. Risks subject to a deductible in excess of $25,000, or a self-insured
retention excess of $25,000, unless such deductible or self-insured
retention is otherwise mandated by statute or regulatory authority.
4. Nuclear risks as defined in the "Nuclear Incident Exclusion Clause -
Liability - Reinsurance (U.S.A.)" and loss or liability defined in the
"Nuclear Incident Exclusion Clause - Reinsurance - No. 4" attached to
and forming part of this Contract.
5. Pollution liability coverages excluded under the provisions of the
"Pollution Exclusion Clause - General Liability - Reinsurance (BRMA
39C)" attached to and forming part of this Contract.
6. Liability as a member, subscriber or reinsurer of any Pool, Syndicate or
Association, but this exclusion shall not apply to Assigned Risk Plans
or similar state-mandated plans.
7. All liability of the Company arising by contract, operation of law, or
otherwise, from its participation or membership, whether voluntary or
involuntary, in any insolvency fund. "Insolvency fund" includes any
guaranty fund, insolvency fund, plan, pool, association, fund or other
arrangement, however denominated, established or governed, which
provides for any assessment of or payment or assumption by the Company
of part or all of any claim, debt, charge, fee or other obligation of an
insurer, or its successors or assigns, which has been declared by any
competent authority to be insolvent, or which is otherwise deemed unable
to meet any claim, debt, charge, fee or other obligation in whole or in
part.
8. Loss or liability as excluded in the "War Risk Exclusion Clause
(Reinsurance)" attached to and forming part of this Contract. However,
this exclusion shall not apply to an act of terrorism that is certified
by the Secretary of Treasury, in concurrence with the Secretary of State
and the Attorney General of the United States.
9. Operation under the jurisdiction of the United States Xxxxxxxxx and
Harbor Workers' Compensation Act or the Xxxxx Act, except for incidental
exposures (i.e., 10.0% or less of the insured's estimated payroll when
the account is quoted).
10. Operations employing the process of nuclear fission or fusion or
handling of radioactive material, which operations include but are not
limited to:
a. The use of nuclear reactors such as atomic piles, particle
accelerators or generators; or
b. The use, handling or transportation of radioactive materials, or the
use, handling or transportation of any weapon of war or explosive
device employing nuclear fission or fusion.
However, subparagraphs a and b above shall not apply to:
i. The exclusive use of particle accelerators incidental to
ordinary industrial or education research pursuits, or
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ii. The exclusive use, handling or transportation of radioisotopes
for medical or industrial use, or to radium or radium compounds.
11. Operation of docks or wharves as related to port authorities.
12. The manufacturing, mining, refining, processing, distribution,
installation, removal or encapsulment of asbestos.
13. Risks involving known exposure to the following substances:
a. Dioxin;
b. Polychlorinated biphenols;
c. Asbestos.
14. All railway operations except sidetrack agreements.
15. Amusement parks, carnivals or circuses. This exclusion shall not apply
to miniature golf courses or driving range operations.
16. Subaquaeous operations.
17. Underground mining; however, this exclusion shall not be construed to
apply to open-pit quarrying or "surface mining" operations.
18. Blasting operations, except for incidental exposures (i.e., 10.0% or
less of the insured's estimated payroll when the account is quoted).
19. Demolition of buildings or structures in excess of five stories.
20. Shoring and moving of buildings or structures, or underpinning that
involves pier and beam construction, commercial buildings with more than
three stories or hillside building reinforcements. However, this
exclusion shall not apply to foundation repair risks for which neither
the insured nor its employees are in tunnels or are otherwise working
under buildings.
21. Erection or repair of scaffolds if 10.0% or more of the insured's annual
remuneration is attributed to NCCI Class Code 9529.
22. Construction of tunnels or dams.
23. Fireworks, fuses, or any explosive substance (as defined below) as
follows:
a. Manufacturers or importers of such items;
b. Loading of such items into containers for use as explosive objects,
propellant charges or detonation devices and the storage thereof
(except as previously provided for, on an incidental basis, in
exclusion 18);
c. Manufacturers or importers of any product in which such items are an
ingredient;
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d. Handling, storage, transportation or use of such items (except as
previously provided for, on an incidental basis, in exclusion 18).
"Explosive substance" is defined as any substance manufactured for the
express purpose of exploding as differentiated from commodities used
industrially and which are only incidentally explosive.
24. Onshore and offshore gas and oil drilling operations.
25. Operations where principal business includes the use of any owned or
unowned aircraft, or any device or machine intended for and/or aiding in
the achievement of atmospheric flight, projection or orbit, and/or the
ownership or operation of any airport. This exclusion shall not apply
where exposure is incidental (i.e., constitutes 10.0% or less of the
insured's payroll) to the principal business operations and the aircraft
contains eight seats or fewer.
26. Municipal law enforcement organizations and municipal fire fighting
organizations, whether professional or voluntary. This exclusion shall
not apply to off-duty law enforcement officers when employed by an
entity other than a municipality for duties performed within the scope
of the job for which they were hired.
27. Logging or forestry operations.
28. Professional employment organizations (PEOs).
29. Professional sports teams.
30. Operations where the principal business of the risk is manufacturing,
production, distribution, refining or storage of natural or artificial
fuel, gas, butane, propane, liquefied petroleum gases or gasoline. This
exclusion shall not apply to any risk whose principal business
operations are any of the following:
a. Retail gasoline service station, either full or self service, or
retail gasoline marina;
b. Convenience store with gasoline sales with its petroleum gas and/or
storage tanks located below ground.
31. Acts of terrorism, as defined in paragraph G of the Definitions Article,
that:
a. Involve the use, release or escape of nuclear materials; or
b. Directly or indirectly result in nuclear reaction or radiation or
radioactive contamination; or
c. Are carried out by means of the dispersal or application of
pathogenic or poisonous biological or chemical materials where it
appears that one purpose of the act of terrorism was to release such
materials.
32. Business reinsured by the Minnesota Workers' Compensation Reinsurance
Association, whether contractually assumed or imposed by law, including,
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but not limited to, direct or indirect loss, damage, liability, cost or
expense. However, this exclusion shall not apply to:
a. Losses paid within the Company's net retention; or
b. Losses paid in excess of the benefits allowed under Minnesota
Workers' Compensation law.
B. In the event the Company is inadvertently bound on any risk which is
excluded under subparagraph 9 or subparagraphs 14 through 30 of paragraph A
above, the reinsurance provided under this Contract shall apply on such risk
until discovery by the Company of the existence of such risk and for 30 days
thereafter, or for a period of time specific to the applicable state
cancellation requirements, not to exceed 120 days. This limitation shall not
apply as respects Arizona. Coverage shall cease after such time or at policy
anniversary as respects Arizona policies, unless the Company has received
from the Reinsurer written notice of its approval of such risk within 30
days.
C. Notwithstanding the foregoing, any reinsurance falling within the scope of
one or more of the exclusions set forth above that is specially accepted by
the Reinsurer from the Company shall be covered under this Contract and
subject to all of the terms and conditions hereof, except as such terms are
modified by the special acceptance. In the event a reinsurer becomes a party
to this Contract subsequent to one or more special acceptances hereunder,
the new reinsurer shall automatically accept such special acceptance(s) as
being covered hereunder.
ARTICLE VI - RETENTION AND LIMIT
A. As respects all losses subject hereto, except losses arising out of an
occurrence of an act of terrorism, as respects each excess layer of
reinsurance coverage provided by this Contract, the Company shall retain and
be liable for the first amount of ultimate net loss (whether involving any
one or any combination of the classes of business covered hereunder,
regardless of the number of policies under which such loss is payable or the
number of different interests insured), shown as "Company's Retention" for
that excess layer in Schedule A attached hereto, arising out of each
occurrence. The Reinsurer shall then be liable, as respects each excess
layer, for the amount by which such ultimate net loss exceeds the Company's
retention, but the liability of the Reinsurer shall not exceed the amount,
shown as "Reinsurer's Per Occurrence Limit" for that excess layer in
Schedule A attached hereto, as respects any one occurrence.
B. As respects losses arising out of an occurrence of an act of terrorism, as
respects each excess layer of reinsurance coverage provided hereunder, the
Company shall retain and be liable for the first amount of ultimate net
loss, shown as "Company's Retention" for that excess layer in Schedule A
attached hereto, arising out of each occurrence. The Reinsurer shall then be
liable, as respects each excess layer, for the amount by which such ultimate
net loss exceeds the Company's retention, but the liability of the Reinsurer
shall not exceed the amount shown as "Reinsurer's Terrorism Per Occurrence
Limit" for that excess layer in Schedule A attached hereto as respects any
one occurrence of an act of terrorism, nor shall it exceed the amount shown
as "Reinsurer's Contract Year Terrorism Limit" for that excess layer in
Schedule A attached hereto as respects loss or losses arising out of all
occurrences of acts of terrorism during any one contract year.
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C. The Company deems that the maximum Employers Liability policy limit subject
hereto shall not exceed $1,000,000 for policies issued in Texas and
Illinois, or $2,000,000 for all other policies. Policy limits in excess of
the permissible amounts may be submitted by special acceptance to the
Reinsurer for coverage hereunder, subject to the provisions of paragraph C
of the Exclusions Article.
ARTICLE VII - REINSTATEMENT
A. In the event all or any portion of the reinsurance under any excess layer of
reinsurance coverage provided by paragraph A of the Retention and Limit
Article of this Contract is exhausted by loss, the amount so exhausted shall
be reinstated immediately from the time the occurrence commences hereon.
1. As respects each amount so reinstated under the first excess layer, the
Company shall pay no additional premium.
2. As respects each amount so reinstated under the second excess layer, the
Company agrees to pay additional premium equal to the product of the
following:
a. The percentage of the occurrence limit for the second excess layer
reinstated (based on the loss paid by the Reinsurer under that
excess layer); times
b. The earned reinsurance premium for the second excess layer for the
contract year (exclusive of reinstatement premium).
B. Whenever the Company requests payment by the Reinsurer of any loss under the
second excess layer that triggers additional reinstatement premium to be
paid hereunder, the Company shall submit a statement to the Reinsurer of
reinstatement premium due the Reinsurer for that excess layer. If the earned
reinsurance premium for the second excess layer for the contract year has
not been finally determined as of the date of any such statement, the
calculation of reinstatement premium due for that excess layer shall be
based on the annual deposit premium for that excess layer and shall be
readjusted when the earned reinsurance premium for that excess layer for the
contract year has been finally determined. Any reinstatement premium shown
to be due the Reinsurer for the second excess layer as reflected by any such
statement (less prior payments, if any, for that excess layer) shall be
payable by the Company concurrently with payment by the Reinsurer of the
requested loss for that excess layer. Any return reinstatement premium shown
to be due the Company shall be remitted by the Reinsurer as promptly as
possible after receipt and verification of the Company's statement.
C. Notwithstanding anything stated herein, the liability of the Reinsurer under
each excess layer of reinsurance coverage provided by this Contract shall
not exceed any of the following:
1. The amount, shown as "Reinsurer's Per Occurrence Limit" for that excess
layer in Schedule A attached hereto, as respects loss or losses arising
out of any one occurrence which is not an act of terrorism;
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2. The amount, shown as "Reinsurer's Terrorism Per Occurrence Limit" for
that excess layer in Schedule A attached hereto, as respects loss or
losses arising out of any one occurrence of an act of terrorism;
3. The amount, shown as "Reinsurer's Contract Year Limit" for that excess
layer in Schedule A attached hereto as respects loss or losses arising
out of all occurrences commencing during any one contract year; or
4. The amount, shown as "Reinsurer's Contract Year Terrorism Limit" for
that excess layer in Schedule A attached hereto, as respects loss or
losses arising out of all occurrences of acts of terrorism commencing
during any one contract year.
ARTICLE VIII - DEFINITIONS
A. "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 expense, as hereinafter defined) 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 recoveries from subrogation, 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 Contract are not recoverable until the Company's ultimate net
loss has been ascertained.
B. "Loss in excess of policy limits" and "extra contractual obligations" as
used herein shall be defined as follows:
1. "Loss in excess of policy limits" shall mean 90.0% of any amount paid or
payable by the Company in excess of its policy limits, but otherwise
within the terms of its policy, such loss in excess of the Company's
policy limits having been incurred because of, but not limited to,
failure by the Company to settle within the policy limits or by reason
of the Company's alleged or actual negligence or bad faith in rejecting
an offer of settlement or in the preparation of the defense or in the
trial of an action against its insured or reinsured or in the
preparation or prosecution of an appeal consequent upon such an action.
2. "Extra contractual obligations" shall mean 90.0% of any punitive,
exemplary, compensatory or consequential damages paid or payable by the
Company, not covered by any other provision of this Contract and which
arise from the handling of any claim on business subject to this
Contract, such liabilities arising because of, but not limited to,
failure by the Company to settle within the policy limits or by reason
of the Company's alleged or actual negligence or bad faith in rejecting
an offer of settlement or in the preparation of the defense or in the
trial of an action against its insured or reinsured or in the
preparation or prosecution of an appeal consequent upon such an action.
An extra contractual obligation shall be deemed, in all circumstances,
to have occurred on the same date as the loss covered or alleged to be
covered under the policy.
Notwithstanding anything stated herein, this Contract shall not apply to any
loss in excess of policy limits or any extra contractual obligation incurred
by the Company as a result of any fraudulent and/or criminal act by any
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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.
If any provision of this paragraph B shall be rendered illegal or
unenforceable by the laws, regulations or public policy of any state, such
provision shall be considered void in such state, but this shall not affect
the validity or enforceability of any other provision of this Contract or
the enforceability of such provision in any other jurisdiction.
C. "Occurrence" as used herein is defined as an accident or occurrence or a
series of accidents or occurrences arising out of or caused by one event,
whether involving one or more of the Company's policies, except that:
1. As respects Workers' Compensation policies, each occupational or
industrial disease or cumulative injury case contracted by an employee
of an insured shall be deemed to have been caused by a separate
occurrence commencing on:
a. The date of disability for which compensation is payable if the case
is compensable under the Workers' Compensation Law;
b. The date disability due to the disease actually began if the case is
not compensable under the Workers' Compensation Law; or
c. The date of cessation of employment if claim is made after
employment has ceased.
2 . Notwithstanding the provisions of subparagraph 1 above, as respects
losses resulting from occupational or industrial disease and cumulative
injury suffered by employees of an insured for which the employer is
liable as a result of a sudden and accidental event not exceeding 72
hours in duration, all such losses shall be considered one occurrence
and may be combined with losses not classified as occupational or
industrial disease or cumulative injury which arise out of the same
event and the combination of such losses shall be considered as one
occurrence within the meaning hereof.
3 . Notwithstanding the foregoing, the following shall apply to occurrences
involving natural disasters:
a. An occurrence shall be limited to damage, injury or loss arising out
of a natural disaster during any continuous 168 hour period.
b. The Company may choose the date and time when such 168 hour period
commences and if the occurrence is of greater duration than 168
hours, the Company may divide such occurrence into two or more
occurrences, provided no two periods overlap and provided no period
commences earlier than the date and time of the first loss to the
Company in such occurrence.
c. "Natural disaster" shall mean loss caused by the perils of tornado,
cyclone, windstorm, hurricane and hail arising from the same
atmospheric disturbance; earthquake, including ensuing fire,
landslide, mudslide, flood, tidal wave; volcanic eruptions; flood;
tides; tidal wave; landslide/mudslide; and meteors.
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D. "Occupational or industrial disease" shall mean any abnormal condition that
fulfills all of the following conditions:
1. It is not traceable to a definite compensable accident occurring during
the employee's present or past employment; and
2. It has been caused by exposure to a disease producing agent or agents
present in the workers' occupational environment; and
3. It has resulted in a disability or death.
E. "Cumulative injury" is any injury that fulfills all of the following
conditions:
1. It is not traceable to a definite compensable accident occurring during
the employee's present or past employment; and
2. It has occurred from, and has been aggravated by, a repetitive
employment-related activity; and
3. It has resulted in a disability or death.
F. "Loss adjustment expense" as used herein shall mean expenses assignable to
the investigation, appraisal, adjustment, settlement, litigation, defense
and/or appeal of specific claims, regardless of how such expenses are
classified for statutory reporting purposes. Loss adjustment expense shall
include, but not be limited to, interest on judgments, expenses of outside
adjusters and claim-specific declaratory judgment expenses or other legal
expenses and costs incurred in connection with coverage questions and legal
actions connected thereto, but shall not include office expenses or salaries
of the Company's regular employees other than medical management personnel
whose cost the Company will xxxx to specific cases on a time and expense
basis.
G. "Act of terrorism" as used herein shall include all loss, cost or expense,
including fire following, related directly or indirectly from either:
1. Any act of any person or persons either acting on behalf of or in
connection with any organization or group with activities directed
towards overthrowing, intimidating, coercing or influencing any
government DE JURE or DE FACTO or its populace or its economic,
political or social systems, by force, violence, weapons of mass
destruction, disruption or subversion of communication and information
system infrastructures and/or its content thereof, or sabotage, and/or
threat therefrom; or
2. An act of terrorism that is certified by the Secretary of Treasury, in
concurrence with the Secretary of State and the Attorney General of the
United States.
Terrorism losses also include all actual or alleged losses, liabilities,
damages, injuries, defense costs, and costs or expenses directly or
indirectly arising out of, contributed by, caused by, resulting from, or in
connection with any action taken in controlling, preventing, suppressing,
retaliating against, or responding to such acts.
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Notwithstanding the above, in the event of an occurrence which arises out of
an act of workplace violence and is not consistent with the provisions of
subparagraphs 1 and 2 of this paragraph G, such loss shall be covered
hereunder, subject to the provisions of the Exclusions Article and all other
provisions of this Contract and shall not be considered an act of terrorism.
Further, any occurrence which is not or cannot be determined, classified or
certified in accordance with the provisions of subparagraphs 1 and 2 of this
paragraph G shall be covered hereunder and not considered an act of
terrorism.
H. "Declaratory judgment expenses" as used herein shall mean all expenses
incurred by the Company in connection with declaratory judgment actions
brought to determine the Company's defense and/or indemnification
obligations that are assignable to specific policies and claims subject to
this Contract. Declaratory judgment expenses shall be deemed to have been
incurred by the Company on the date of the original loss (if any) giving
rise to the declaratory judgment action. In the event there is no loss other
than declaratory judgment expenses with respect to any claim hereunder, such
expenses shall be deemed loss for purposes of this Contract.
ARTICLE IX - OTHER REINSURANCE
A. The Company shall be permitted to carry facultative reinsurance, recoveries
under which shall inure to the benefit of this Contract.
B. The Company shall be permitted to carry underlying quota share reinsurance
and underlying excess reinsurance, recoveries under which shall inure solely
to the benefit of the Company and be entirely disregarded in applying all of
the provisions of this Contract.
ARTICLE X - FEDERAL TERRORISM RECOVERY
A. Any loss reimbursement the Company receives from the United States
Government under the Terrorism Risk Insurance Act of 2002, as amended by the
Terrorism Risk Insurance Extension Act of 2005 (together the "Terrorism
Act") as a result of occurrences commencing during each contract year shall
inure to the benefit of this Contract in the proportion that the Company's
insured losses (as defined in the Terrorism Act) in that occurrence under
policies reinsured under this Contract bear to the Company's total insured
losses in that occurrence.
B. If a loss reimbursement received by the Company under the Terrorism Act is
based on the Company's insured losses in more than one occurrence and the
United States Government does not designate the amount allocable to each
occurrence, the reimbursement shall be prorated in the proportion that the
Company's insured losses in each occurrence bear to the Company's total
insured losses arising out of all occurrences to which the recovery applies.
ARTICLE XI - ANNUITIES AT COMPANY'S OPTION
A. Whenever the Company is required, or elects, to purchase an annuity or to
negotiate a structured settlement in excess of the retention of this
Contract, either in satisfaction of a judgment or in an out-of-court
settlement or otherwise, the cost of the annuity or the structured
settlement, as the case may be, shall be deemed part of the Company's
Page 12
ultimate net loss, provided such annuity or structured settlement terms
grant the Company full and final release as respects the indemnity portion
of the settlement. Additionally, it is the Company's intent to place all
annuities or structured settlements with a carrier whose A.M. Best's rating
is "A" or better.
B. The terms "annuity" or "structured settlement" shall be understood to mean
any insurance policy, lump sum payment, agreement or device of whatever
nature resulting in the payment of a lump sum by the Company in settlement
of any or all future liabilities which may attach to it as a result of an
occurrence.
C. In the event the Company purchases an annuity which inures in whole or in
part to the benefit of the Reinsurer, it is understood that the liability of
the Reinsurer is not released thereby. In the event the Company is required
to provide benefits not provided by the annuity for whatever reason, the
Reinsurer shall pay its share of any loss.
ARTICLE XII - CLAIMS
A. Whenever a claim or settlement by the Company hereunder is for an amount
greater than $1,000,000 and/or whenever a claim appears likely to result in
a claim under this Contract, the Company shall notify the Reinsurer.
Further, the Company shall notify the Reinsurer whenever a claim involves a
fatality, amputation, spinal cord damage, brain damage, blindness or
extensive xxxxx, regardless of liability, including all subsequent
developments. The Reinsurer shall have the right to participate, at its own
expense, in the defense of any claim or suit or proceeding involving this
reinsurance. The Company shall also provide any additional information that
from time to time may be reasonably required by the Reinsurer to ascertain
liability under this Contract.
B. All claim settlements made by the Company, provided such settlements are
within the terms of this Contract, shall be binding upon the Reinsurer, and
the Reinsurer agrees to pay all amounts for which it is liable upon receipt
of reasonable evidence of the amount paid by the Company.
ARTICLE XIII - SPECIAL COMMUTATION
A. In the event a Subscribing Reinsurer meets one or more of the following
conditions, the Company may require a commutation of that portion of any
excess loss hereunder represented by any outstanding claim or claims,
including any related loss adjustment expense:
1. The Subscribing Reinsurer's A.M. Best's rating has been assigned or
downgraded below A- (including any "Not Rated" rating) and/or Standard &
Poor's rating has been assigned or downgraded below BBB+; or
2. The Subscribing Reinsurer has ceased assuming new and renewal property
and casualty treaty reinsurance business.
"Outstanding claim or claims" shall be defined as known or unknown claims,
including any billed yet unpaid claims. However, unless otherwise mutually
agreed, this paragraph A shall not apply unless the outstanding claim or
claims is for an amount not less than $5,000.
Page 13
B. If the Company elects to require commutation as provided in paragraph A
above, the Company shall submit a Statement of Valuation of the outstanding
claim or claims as of the last day of the month immediately preceding the
month in which the Company elects to require commutation, as determined by
the Company. Such Statement of Valuation shall include the elements
considered reasonable to establish the excess loss and shall set forth or
attach the information relied upon by the Company and the methodology
employed to calculate the excess loss. The Subscribing Reinsurer shall then
pay the amount requested within 30 calendar days of receipt of such
Statement of Valuation, unless the Subscribing Reinsurer needs additional
information from the Company to assess the Company's Statement of Valuation
or contests such amount.
C. If the Subscribing Reinsurer needs additional information from the Company
to assess the Company's Statement of Valuation or contests the amount
requested, the Subscribing Reinsurer shall so notify the Company within 15
calendar days of receipt of the Company's Statement of Valuation. The
Company shall supply any reasonably requested information to the Subscribing
Reinsurer within 15 calendar days of receipt of the notification. Within 30
calendar days of the date of the notification or of the receipt of the
information, whichever is later, the Subscribing Reinsurer shall provide the
Company with its Statement of Valuation of the outstanding claim or claims
as of the last day of the month immediately preceding the month in which the
Company elects to require commutation, as determined by the Subscribing
Reinsurer. Such Statement of Valuation shall include the elements considered
reasonable to establish the excess loss and shall set forth or attach the
information relied upon by the Subscribing Reinsurer and the methodology
employed to calculate the excess loss.
D. If agreement, as outlined in paragraphs A, B and C, cannot be reached,
either party can abandon the commutation effort, or the Company and the
Subscribing Reinsurer may seek to settle any difference by mutually
appointing an independent actuary.
E. If the parties cannot agree on an acceptable independent actuary within 15
calendar days of the date of the Subscribing Reinsurer's Statement of
Valuation, then each party shall appoint an actuary as party arbitrators for
the limited and sole purpose of selecting an independent actuary. If the
actuaries cannot agree on an acceptable independent actuary within 15
calendar days of the date of the Subscribing Reinsurer's Statement of
Valuation, the Company shall supply the Subscribing Reinsurer with a list of
at least three proposed independent actuaries, and the Subscribing Reinsurer
shall select the independent actuary from that list.
F. Upon selection of the independent actuary, both parties shall present their
respective written submissions to the independent actuary. The independent
actuary may, at his or her discretion, request additional information. The
independent actuary shall issue his or her decision within 45 calendar days
after the written submissions have been filed and any additional information
has been provided.
G. The decision of the independent actuary shall be final and binding. The
expense of the independent actuary shall be equally divided between the two
parties. For the purposes of this Article, unless mutually agreed otherwise,
an "independent actuary" shall be an actuary who satisfies each of the
following criteria:
Page 14
1. Is regularly engaged in the valuation of claims resulting from lines of
business subject to this Contract; and
2. Is either a Fellow of the Casualty Actuarial Society or of the American
Academy of Actuaries; and
3. Is disinterested and impartial regarding this commutation.
H. Notwithstanding paragraphs A, B and C above, in the event that the
Subscribing Reinsurer no longer meets any of the conditions specified in
subparagraph 1 or 2 in paragraph A above, this commutation may continue on a
mutually agreed basis.
I. Payment by the Subscribing Reinsurer of the amount requested in accordance
with paragraph B, C or F above, shall release the Subscribing Reinsurer from
all further liability for outstanding claim or claims, known or unknown,
under this Contract and shall release the Company from all further liability
for payments of salvage or subrogation amounts, known or unknown, to the
Subscribing Reinsurer under this Contract.
J. In the event of any conflict between this Article and any other article of
this Contract, the terms of this Article shall control.
K. This Article shall survive the termination of this Contract.
ARTICLE XIV - SALVAGE AND SUBROGATION
The Reinsurer shall be credited with recoveries from salvage (i.e.,
reimbursement obtained or recovery made by the Company, less the actual cost,
excluding salaries of officials and employees of the Company and sums paid to
attorneys as retainer, of obtaining such reimbursement or making such recovery)
on account of claims and settlements involving reinsurance hereunder. Recoveries
therefrom shall always be used to reimburse the excess carriers in the reverse
order of their priority according to their participation before being used in
any way to reimburse the Company for its primary loss. The Company hereby agrees
to enforce its rights to salvage or subrogation relating to any loss, a part of
which loss was sustained by the Reinsurer, and to prosecute all claims arising
out of such rights.
ARTICLE XV - PREMIUM
A. As premium for each excess layer of reinsurance coverage provided by this
Contract, the Company shall pay the Reinsurer the greater of the following
for each contract year (except the runoff contract year, if any):
1. The amount (or pro rata portion thereof if this Contract is terminated
prior to the end of any 12-month contract year in accordance with the
provisions of the Special Termination Article), shown as "Annual Minimum
Premium" for that excess layer in Schedule A attached hereto; or
2. The percentage, shown as "Premium Rate" for that excess layer in
Schedule A attached hereto, of the Company's net earned premium for the
contract year.
Page 15
B. The Company shall pay the Reinsurer an annual deposit premium for each
excess layer of the amount, shown as "Annual Deposit Premium" for that
excess layer in Schedule A attached hereto, in four equal installments of
the amount, shown as "Quarterly Deposit Premium" for that excess layer in
Schedule A attached hereto, on January 1, April 1, July 1 and October 1 of
each contract year (except the runoff contract year, if any). However, no
deposit premium installments shall be due after the effective date of
termination.
C. Within 60 days following the end of each contract year (except the runoff
contract year, if any) and within 60 days following the 12-month period
thereafter, the Company shall provide a report to the Reinsurer setting
forth the premium due hereunder for each excess layer for the contract year,
computed in accordance with paragraph A, and any additional premium due the
Reinsurer for each such excess layer shall be remitted by the Company with
its report. If the premium so computed for any excess layer is less than the
previously paid, but more than the minimum premium, for that excess layer,
the balance shall be returned by the Reinsurer to the Company within 30 days
of the report.
D. In the event this Contract is terminated on a "runoff" basis, the Company
shall pay the Reinsurer premium for each excess layer for the runoff
contract year equal to the percentage, shown as "Premium Rate" for that
excess layer in Schedule A attached hereto, of the Company's unearned
premium for that excess layer applicable to subject business in force on the
effective date of termination, payable in two equal installments on the
first day of each six-month period during the runoff contract year.
E. "Net earned premium" as used herein is defined as the Company's gross earned
premium for the classes of business subject to this Contract (exclusive of
premium for business covered by the Minnesota Workers' Compensation
Reinsurance Association), adjusted for experience modification, discounts,
credits, surcharges, expense constants and deductible credits, plus or minus
the Reinsurer's pro rata share of any premium arising from audit
adjustments, minus premiums paid for facultative reinsurance which inures to
the benefit of this Contract.
ARTICLE XVI - LATE PAYMENTS
A. The provisions of this Article shall not be implemented unless specifically
invoked, in writing, by one of the parties to this Contract.
B. In the event any premium, loss or other payment due either party is not
received by the intermediary named in the Intermediary Article (BRMA 23A)
(hereinafter referred to as the "Intermediary") by the payment due date, the
party to whom payment is due may, by notifying the Intermediary in writing,
require the debtor party to pay, and the debtor party agrees to pay, an
interest penalty on the amount past due calculated for each such payment on
the last business day of each month as follows:
1. The number of full days which have expired since the due date or the
last monthly calculation, whichever the lesser; times
2. 1/365ths of the six-month United States Treasury Xxxx rate as quoted in
THE WALL STREET JOURNAL on the first business day of the month for which
the calculation is made; times
3. The amount past due, including accrued interest.
Page 16
It is agreed that interest shall accumulate until payment of the original
amount due plus interest penalties have been received by the Intermediary.
C. The establishment of the due date shall, for purposes of this Article, be
determined as follows:
1. As respects the payment of routine deposits and premiums due the
Reinsurer, the due date shall be as provided for in the applicable
section of this Contract. In the event a due date is not specifically
stated for a given payment, it shall be deemed due 30 days after the
date of transmittal by the Intermediary of the initial billing for each
such payment.
2. Any claim or loss payment due the Company hereunder shall be deemed due
30 days after the proof of loss and demand for payment is transmitted to
the Reinsurer. If such loss or claim payment is not received within the
30 days, interest will accrue on the payment or amount overdue in
accordance with paragraph B above, from the date the proof of loss and
demand for payment was transmitted to the Reinsurer.
3. As respects any payment, adjustment or return due either party not
otherwise provided for in subparagraphs 1 and 2 above, the due date
shall be as provided for in the applicable section of this Contract. In
the event a due date is not specifically stated for a given payment, it
shall be deemed due 30 days following transmittal of written
notification that the provisions of this Article have been invoked.
For purposes of interest calculations only, amounts due hereunder shall be
deemed paid upon receipt by the Intermediary.
D. Nothing herein shall be construed as limiting or prohibiting a Subscribing
Reinsurer from contesting the validity of any claim, or from participating
in the defense of any claim or suit, or prohibiting either party from
contesting the validity of any payment or from initiating any arbitration or
other proceeding in accordance with the provisions of this Contract. If the
debtor party prevails in an arbitration or other proceeding, then any
interest penalties due hereunder on the amount in dispute shall be null and
void. If the debtor party loses in such proceeding, then the interest
penalty on the amount determined to be due hereunder shall be calculated in
accordance with the provisions set forth above unless otherwise determined
by such proceedings. If a debtor party advances payment of any amount it is
contesting, and proves to be correct in its contestation, either in whole or
in part, the other party shall reimburse the debtor party for any such
excess payment made plus interest on the excess amount calculated in
accordance with this Article.
E. Interest penalties arising out of the application of this Article that are
$50,000 or less from any party shall be waived unless there is a pattern of
late payments consisting of three or more items over the course of any
12-month period.
ARTICLE XVII - OFFSET AND SECURITY
A. Each party hereto has the right, which may be exercised at any time, to
offset any amounts, whether on account of premiums or losses or otherwise,
due from such party to another party under this Contract or any other
Page 17
reinsurance contract heretofore or hereafter entered into between them,
against any amounts, whether on account of premiums or losses or otherwise
due from the latter party to the former party. The party asserting the right
of offset may exercise this right, whether as assuming or ceding insurer or
in both roles in the relevant agreement or agreements.
B. Each party hereby assigns and pledges to the other party (or to each other
party, if more than one) all of its rights under this Contract to receive
premium or loss payments at any time from such other party ("collateral"),
to secure its premium or loss obligations to such other party at any time
under this Contract and any other reinsurance agreement heretofore or
hereafter entered into by and between them ("secured obligations"). If at
any time a party is in default under any secured obligation or shall be
subject to any liquidation, rehabilitation, reorganization or conservation
proceeding, each other party shall be entitled in its discretion, to apply,
or to withhold for the purpose of applying in due course, any collateral
assigned and pledged to it by the former party and otherwise to realize upon
such collateral as security for such secured obligations.
C. The security interest described herein, and the term "collateral," shall
apply to all payments and other proceeds in respect of the rights assigned
and pledged. A party's security interest in collateral shall be deemed
evidenced only by the counterpart of this Contract delivered to such party.
D. Each right under this Article is a separate and independent right,
exercisable, without notice or demand, alone or together with other rights,
in the sole election of the party entitled thereto, and no waiver, delay, or
failure to exercise, in respect of any right, shall constitute a waiver of
any other right. The provisions of this Article shall survive any
cancellation or other termination of this Contract.
E. In the event of the insolvency of a party hereto, offsets shall only be
allowed in accordance with the laws of the insolvent party's state of
domicile.
ARTICLE XVIII - ACCESS TO RECORDS (BRMA 1D)
The Reinsurer or its designated representatives shall have access at any
reasonable time to all records of the Company which pertain in any way to this
reinsurance.
ARTICLE XIX - LIABILITY OF THE REINSURER
A. The liability of the Reinsurer shall follow that of the Company in every
case and be subject in all respects to all the general and specific
stipulations, clauses, waivers and modifications of the Company's policies
and any endorsements thereon. However, in no event shall this be construed
in any way to provide coverage outside the terms and conditions set forth in
this Contract.
B. Nothing herein shall in any manner create any obligations or establish any
rights against the Reinsurer in favor of any third party or any persons not
parties to this Contract.
Page 18
ARTICLE XX - NET RETAINED LINES (BRMA 32E)
A. This Contract 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 Contract), and in calculating the
amount of any loss hereunder and also in computing the amount or amounts in
excess of which this Contract 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
inability arises from the insolvency of such other reinsurer(s) or
otherwise.
ARTICLE XXI - ERRORS AND OMISSIONS (BRMA 14F)
Inadvertent delays, errors or omissions made in connection with this Contract or
any transaction hereunder shall not relieve either party from any liability
which would have attached had such delay, error or omission not occurred,
provided always that such error or omission is rectified as soon as possible
after discovery.
ARTICLE XXII - CURRENCY (BRMA 12A)
A. Whenever the word "Dollars" or the "$" sign appears in this Contract, they
shall be construed to mean United States Dollars and all transactions under
this Contract shall be in United States Dollars.
B. Amounts paid or received by the Company in any other currency shall be
converted to United States Dollars at the rate of exchange at the date such
transaction is entered on the books of the Company.
ARTICLE XXIII - TAXES (BRMA 50B)
In consideration of the terms under which this Contract is issued, the Company
will not claim a deduction in respect of the premium hereon when making tax
returns, other than income or profits tax returns, to any state or territory of
the United States of America or the District of Columbia.
ARTICLE XXIV - FEDERAL EXCISE TAX
A. The Reinsurer has agreed to allow for the purpose of paying the Federal
Excise Tax the applicable percentage of the premium payable hereon (as
imposed under Section 4371 of the Internal Revenue Code) to the extent such
premium is subject to the Federal Excise Tax.
Page 19
B. In the event of any return of premium becoming due hereunder the Reinsurer
will deduct the applicable percentage from the return premium payable hereon
and the Company or its agent should take steps to recover the tax from the
United States Government.
ARTICLE XXV - RESERVES
(Applies only to a reinsurer which (1) does not qualify for full credit with any
insurance regulatory authority having jurisdiction over the Company's reserves,
or (2) which is or becomes rated "B++" or lower or holds a "Not Rated" rating by
A.M. Best or is or becomes rated BBB+ or lower by Standard & Poor's, unless the
Reinsurer has an A.M. Best's rating of "A" or Standard & Poor's rating of "A"
and group policyholders' surplus equal to or above $2,000,000,000 at the
inception of this Contract)
A. As regards policies or bonds issued by the Company coming within the scope
of this Contract, the Company agrees that when it shall file with the
insurance regulatory authority or set up on its books reserves for losses
covered hereunder which it shall be required by law to set up, it will
forward to the Reinsurer a statement showing the proportion of such reserves
which is applicable to the Reinsurer. The Reinsurer hereby agrees to fund
such reserves in respect of known outstanding losses that have been reported
to the Reinsurer and allocated loss adjustment expense relating thereto,
losses and allocated loss adjustment expense paid by the Company but not
recovered from the Reinsurer, plus reserves for losses and allocated loss
adjustment expense incurred but not reported, as shown in the statement
prepared by the Company (hereinafter referred to as "Reinsurer's
Obligations") by Regulation 114 trust accounts, funds withheld, cash
advances or a Letter of Credit, or combination thereof. For purposes of this
Contract, the Lloyd's United States Credit for Reinsurance Trust Fund and
the Hannover Re U.S. Master Trust shall be considered acceptable funding
instruments. The Reinsurer shall have the option of determining the method
of funding provided it is acceptable to the insurance regulatory authorities
having jurisdiction over the Company's reserves.
B. When funding by a Letter of Credit, the Reinsurer agrees to apply for and
secure timely delivery to the Company of a clean, irrevocable and
unconditional Letter of Credit issued by a bank meeting the NAIC Securities
Valuation Office credit standards for issuers of Letters of Credit and
containing provisions acceptable to the insurance regulatory authorities
having jurisdiction over the Company's reserves in an amount equal to the
Reinsurer's proportion of said reserves. Such Letter of Credit shall be
issued for a period of not less than one year, and shall contain an
"evergreen" clause, which automatically extends the term for one year from
its date of expiration or any future expiration date unless 30 days (60 days
where required by insurance regulatory authorities) prior to any expiration
date the issuing bank shall notify the Company by certified or registered
mail that the issuing bank elects not to consider the Letter of Credit
extended for any additional period.
C. The Reinsurer and Company agree that the Letters of Credit provided by the
Reinsurer pursuant to the provisions of this Contract may be drawn upon at
any time, notwithstanding any other provision of this Contract, and be
utilized by the Company or any successor, by operation of law, of the
Company including, without limitation, any liquidator, rehabilitator,
receiver or conservator of the Company for the following purposes, unless
otherwise provided for in a separate Trust Agreement:
Page 20
1. To reimburse the Company for the Reinsurer's Obligations, the payment of
which is due under the terms of this Contract and which has not been
otherwise paid;
2. To make refund of any sum which is in excess of the actual amount
required to pay the Reinsurer's Obligations under this Contract, if so
requested by the Reinsurer;
3. To fund an account with the Company for the Reinsurer's Obligations.
Such cash deposit shall be held in an interest bearing account separate
from the Company's other assets, and interest thereon not in excess of
the prime rate shall accrue to the benefit of the Reinsurer;
4. To pay the Reinsurer's share of any other amounts the Company claims are
due under this Contract.
In the event the amount drawn by the Company on any Letter of Credit is in
excess of the actual amount required for subparagraphs 1 or 3, or in the
case of subparagraph 4, the actual amount determined to be due, the Company
shall promptly return to the Reinsurer the excess amount so drawn. All of
the foregoing shall be applied without diminution because of insolvency on
the part of the Company or the Reinsurer.
D. The issuing bank shall have no responsibility whatsoever in connection with
the propriety of withdrawals made by the Company or the disposition of funds
withdrawn, except to ensure that withdrawals are made only upon the order of
properly authorized representatives of the Company.
E. At quarterly intervals and on an estimated basis 45 days prior to each
December 31, or more frequently as agreed but never more frequently than
quarterly, the Company shall prepare a specific statement of the Reinsurer's
Obligations, for the sole purpose of amending the Letter of Credit, in the
following manner:
1. If the statement shows that the Reinsurer's Obligations exceed the
balance of credit as of the statement date, the Reinsurer shall, within
30 days after receipt of notice of such excess, secure delivery to the
Company of an amendment to the Letter of Credit increasing the amount of
credit by the amount of such difference.
2. If, however, the statement shows that the Reinsurer's Obligations are
less than the balance of credit as of the statement date, the Company
shall, within 30 days after receipt of written request from the
Reinsurer, release such excess credit by agreeing to secure an amendment
to the Letter of Credit reducing the amount of credit available by the
amount of such excess credit.
ARTICLE XXVI - INSOLVENCY
A. In the event of the insolvency of one or more of the reinsured companies,
this reinsurance shall be payable directly to the company or to its
liquidator, receiver, conservator or statutory successor on the basis of the
liability of the company without diminution because of the insolvency of the
company or because the liquidator, receiver, conservator or statutory
successor of the company has failed to pay all or a portion of any claim. It
is agreed, however, that the liquidator, receiver, conservator or statutory
successor of the company shall give written notice to the Reinsurer of the
Page 21
pendency of a claim against the company indicating the policy or bond
reinsured which claim would involve a possible liability on the part of the
Reinsurer within a reasonable time after such claim is filed in the
conservation or liquidation proceeding or in the receivership, and that
during the pendency of such claim, the Reinsurer may investigate such claim
and interpose, at its own expense, in the proceeding where such claim is to
be adjudicated, any defense or defenses that it may deem available to the
company or its liquidator, receiver, conservator or statutory successor. The
expense thus incurred by the Reinsurer shall be chargeable, subject to the
approval of the Court, against the company as part of the expense of
conservation or liquidation to the extent of a pro rata share of the benefit
which may accrue to the company solely as a result of the defense undertaken
by the Reinsurer.
B. Where two or more reinsurers are involved in the same claim and a majority
in interest elect to interpose defense to such claim, the expense shall be
apportioned in accordance with the terms of this Contract as though such
expense had been incurred by the company.
C. It is further understood and agreed that, in the event of the insolvency of
one or more of the reinsured companies, the reinsurance under this Contract
shall be payable directly by the Reinsurer to the company or to its
liquidator, receiver or statutory successor, except as provided by Section
4118(a) of the New York Insurance Law or except (1) where this Contract
specifically provides another payee of such reinsurance in the event of the
insolvency of the company or (2) where the Reinsurer with the consent of the
direct insured or insureds has assumed such policy obligations of the
company as direct obligations of the Reinsurer to the payees under such
policies and in substitution for the obligations of the company to such
payees.
ARTICLE XXVII - ARBITRATION
A. As a condition precedent to any right of action hereunder, in the event of
any dispute or difference of opinion hereafter arising with respect to this
Contract, it is hereby mutually agreed that such dispute or difference of
opinion shall be submitted to arbitration. One Arbiter shall be chosen by
the Company, the other by the Reinsurer, and an Umpire shall be chosen by
the two Arbiters before they enter upon arbitration, all of whom shall be
active or retired disinterested executive officers of insurance or
reinsurance companies or Lloyd's London Underwriters. In the event that
either party should fail to choose an Arbiter within 30 days following a
written request by the other party to do so, the requesting party may choose
two Arbiters who shall in turn choose an Umpire before entering upon
arbitration. If the two Arbiters fail to agree upon the selection of an
Umpire within 30 days following their appointment, the Umpire shall be
appointed in accordance with the procedures of the American Arbitration
Association.
B. Each party shall present its case to the Arbiters within 30 days following
the date of appointment of the Umpire. The Arbiters shall consider this
Contract as an honorable engagement rather than merely as a legal obligation
and they are relieved of all judicial formalities and may abstain from
following the strict rules of law. The decision of the Arbiters shall be
final and binding on both parties; but failing to agree, they shall call in
the Umpire and the decision of the majority shall be final and binding upon
both parties. Judgment upon the final decision of the Arbiters may be
entered in any court of competent jurisdiction.
Page 22
C. If more than one reinsurer is involved in the same dispute, all such
reinsurers shall constitute and act as one party for purposes of this
Article and communications shall be made by the Company to each of the
reinsurers constituting one party, provided, however, that nothing herein
shall impair the rights of such reinsurers to assert several, rather than
joint, defenses or claims, nor be construed as changing the liability of the
reinsurers participating under the terms of this Contract from several to
joint.
D. Each party shall bear the expense of its own Arbiter, and shall jointly and
equally bear with the other the expense of the Umpire and of the
arbitration. In the event that the two Arbiters are chosen by one party, as
above provided, the expense of the Arbiters, the Umpire and the arbitration
shall be equally divided between the two parties.
E. Any arbitration proceedings shall take place at a location mutually agreed
upon by the parties to this Contract, but notwithstanding the location of
the arbitration, all proceedings pursuant hereto shall be governed by the
law of the state in which the Company has its principal office.
ARTICLE XXVIII - SERVICE OF SUIT (BRMA 49C)
(Applicable if the Reinsurer is not domiciled in the United States of America,
and/or is not authorized in any State, Territory or District of the United
States where authorization is required by insurance regulatory authorities)
A. It is agreed that in the event the Reinsurer fails to pay any amount claimed
to be due hereunder, the Reinsurer, at the request of the Company, will
submit to the jurisdiction of a court of competent jurisdiction within the
United States. Nothing in this Article constitutes or should be understood
to constitute a waiver of the Reinsurer's rights to commence an action in
any court of competent jurisdiction in the United States, to remove an
action to a United States District Court, or to seek a transfer of a case to
another court as permitted by the laws of the United States or of any state
in the United States.
B. Further, pursuant to any statute of any state, territory or district of the
United States which makes provision therefor, the Reinsurer hereby
designates the party named in its Interests and Liabilities Agreement, or if
no party is named therein, the Superintendent, Commissioner or Director of
Insurance or other officer specified for that purpose in the statute, or his
successor or successors in office, as its true and lawful attorney upon whom
may be served any lawful process in any action, suit or proceeding
instituted by or on behalf of the Company or any beneficiary hereunder
arising out of this Contract.
ARTICLE XXIX - AGENCY AGREEMENT
If more than one reinsured company is named as a party to this Contract, the
first named company shall be deemed the agent of the other reinsured companies
(subject to the provisions of the Insolvency Article) for purposes of sending or
receiving notices required by the terms and conditions of this Contract, and for
purposes of remitting or receiving any monies due any party.
Page 23
ARTICLE XXX - GOVERNING LAW (BRMA 71B)
This Contract shall be governed by and construed in accordance with the laws of
the State of Florida.
ARTICLE XXXI - INTERMEDIARY (BRMA 23A)
Xxxxxxxx Inc. is hereby recognized as the Intermediary negotiating this Contract
for all business hereunder. All communications (including but not limited to
notices, statements, premium, return premium, commissions, taxes, losses, loss
adjustment expense, salvages and loss settlements) relating thereto shall be
transmitted to the Company or the Reinsurer through Xxxxxxxx Inc. Payments by
the Company to the Intermediary shall be deemed to constitute payment to the
Reinsurer. Payments by the Reinsurer to the Intermediary shall be deemed to
constitute payment to the Company only to the extent that such payments are
actually received by the Company.
IN WITNESS WHEREOF, the Company by its duly authorized representative has
executed this Contract as of the date undermentioned at:
Xxxxx Xxxx Xxxxx, Xxxxxxx,xxxx ______ day of _____________ in the year ________.
____________________________________________________________
AmCOMP Preferred Insurance Company
AmCOMP Assurance Corporation
any and all insurance companies which are now or hereafter
come under the same ownership or management as the AmCOMP
Group
Page 24
SCHEDULE A
EXCESS WORKERS' COMPENSATION
REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 2007
issued to
AmCOMP Preferred Insurance Company
North Palm Beach, Florida
AmCOMP Assurance Corporation
North Palm Beach, Florida
and
any and all insurance companies which are now or
hereafter come under the same ownership or management as the
AmCOMP Group
North Palm Beach, Florida
FIRST SECOND
EXCESS EXCESS
Company's Retention $2,000,000 $5,000,000
Reinsurer's Per $3,000,000 $5,000,000
Occurrence Limit
Reinsurer's Terrorism Per $3,000,000 $5,000,000
Occurrence Limit
Reinsurer's Contract $27,000,000 $10,000,000
Year Limit
Reinsurer's Contract Year $3,000,000 $5,000,000
Terrorism Limit
Annual Minimum Premium $5,152,000 $1,218,800
Premium Rate 2.325% 0.550%
Annual Deposit Premium $6,440,000 $1,523,500
Quarterly Deposit Premium $1,610,000 $380,875
The figures listed above for each excess layer shall apply to each Subscribing
Reinsurer in the percentage share for that excess layer as expressed in its
Interests and Liabilities Agreement attached hereto.
Schedule A
NUCLEAR INCIDENT EXCLUSION CLAUSE - LIABILITY - REINSURANCE (U.S.A.)
(Approved by Lloyd's Underwriters' Fire and Non-Marine Association)
(1) This reinsurance does not cover any loss or liability accruing to the
Reassured as a member of, or subscriber to, any association of insurers or
reinsurers formed for the purpose of covering nuclear energy risks or as a
direct or indirect reinsurer of any such member, subscriber or association.
(2) Without in any way restricting the operation of paragraph (1) of this Clause
it is understood and agreed that for all purposes of this reinsurance all
the original policies of the Reassured (new, renewal and replacement) of the
classes specified in Clause II of this paragraph (2) from the time specified
in Clause III in this paragraph (2) shall be deemed to include the following
provision (specified as the Limited Exclusion Provision):
LIMITED EXCLUSION PROVISION.*
I. It is agreed that the policy does not apply under any liability
coverage, to
(INJURY, SICKNESS, DISEASE, DEATH OR DESTRUCTION
(bodily injury or property damage
with respect to which an insured under the policy is also an insured
under a nuclear energy liability policy issued by Nuclear Energy
Liability Insurance Association, Mutual Atomic Energy Liability
Underwriters or Nuclear Insurance Association of Canada, or would be an
insured under any such policy but for its termination upon exhaustion of
its limit of liability.
II. Family Automobile Policies (liability only), Special Automobile Policies
(private passenger automobiles, liability only), Farmers Comprehensive
Personal Liability Policies (liability only), Comprehensive Personal
Liability Policies (liability only) or policies of a similar nature; and
the liability portion of combination forms related to the four classes
of policies stated above, such as the Comprehensive Dwelling Policy and
the applicable types of Homeowners Policies.
III. The inception dates and thereafter of all original policies as described
in II above, whether new, renewal or replacement, being policies which
either
(a) become effective on or after 1st May, 1960, or
(b) become effective before that date and contain the Limited Exclusion
Provision set out above;
provided this paragraph (2) shall not be applicable to Family Automobile
Policies, Special Automobile Policies, or policies or combination
policies of a similar nature, issued by the Reassured on New York risks,
until 90 days following approval of the Limited Exclusion Provision by
the Governmental Authority having jurisdiction thereof.
(3) Except for those classes of policies specified in Clause II of paragraph (2)
and without in any way restricting the operation of paragraph (1) of this
Clause, it is understood and agreed that for all purposes of this
reinsurance the original liability policies of the Reassured (new, renewal
and replacement) affording the following coverages:
Owners, Landlords and Tenants Liability, Contractual Liability, Elevator
Liability, Owners or Contractors (including railroad) Protective
Liability, Manufacturers and Contractors Liability, Product Liability,
Professional and Malpractice Liability, Storekeepers Liability, Garage
Liability, Automobile Liability (including Massachusetts Motor Vehicle
or Garage Liability)
shall be deemed to include, with respect to such coverages, from the time
specified in Clause V of this paragraph (3), the following provision
(specified as the Broad Exclusion Provision):
BROAD EXCLUSION PROVISION.*
It is agreed that the policy does not apply:
I. Under any Liability Coverage to
(INJURY, SICKNESS, DISEASE, DEATH OR DESTRUCTION
(bodily injury or property damage
(a) with respect to which an insured under the policy is also an insured
under a nuclear energy liability policy issued by Nuclear Energy
Liability Insurance Association, Mutual Atomic Energy Liability
Underwriters or Nuclear Insurance Association of Canada, or would be
an insured under any such policy but for its termination upon
exhaustion of its limit of liability; or
(b) resulting from the hazardous properties of nuclear material and with
respect to which (1) any person or organization is required to
maintain financial protection pursuant to the Atomic Energy Act of
1954, or any law amendatory thereof, or (2) the insured is, or had
this policy not been issued would be, entitled to indemnity from the
United States of America, or any agency thereof, under any agreement
entered into by the United States of America, or any agency thereof,
with any person or organization.
Page 1 of 2
II. Under any Medical Payments Coverage, or under any Supplementary Payments
Provision relating to
(IMMEDIATE MEDICAL OR SURGICAL RELIEF
(first aid,
to expenses incurred with respect to
(BODILY INJURY, SICKNESS, DISEASE OR DEATH
(bodily injury
resulting from the hazardous properties of nuclear material and arising
out of the operation of a nuclear facility by any person or
organization.
III. Under any Liability Coverage to
(INJURY, SICKNESS, DISEASE, DEATH OR DESTRUCTION
(bodily injury or property damage
resulting from the hazardous properties of nuclear material, if
(a) the nuclear material (1) is at any nuclear facility owned by, or
operated by or on behalf of, an insured or (2) has been
discharged or dispersed therefrom;
(b) the nuclear material is contained in spent fuel or waste at any time
possessed, handled, used, processed, stored, transported or disposed
of by or on behalf of an insured; or
(c) the
(INJURY, SICKNESS, DISEASE, DEATH OR DESTRUCTION
(bodily injury or property damage
arises out of the furnishing by an insured of services, materials,
parts or equipment in connection with the planning, construction,
maintenance, operation or use of any nuclear facility, but if such
facility is located within the United States of America, its
territories, or possessions or Canada, this exclusion (c) applies
only to
(INJURY TO OR DESTRUCTION OF PROPERTY AT SUCH NUCLEAR FACILITY
(property damage to such nuclear facility and any property
thereat.
IV. As used in this endorsement:
"hazardous properties" include radioactive, toxic or explosive
properties; "nuclear material" means source material, special nuclear
material or byproduct material; "source material", "special nuclear
material", and "byproduct material" have the meanings given them in the
Atomic Energy Act of 1954 or in any law amendatory thereof; "spent fuel"
means any fuel element or fuel component, solid or liquid, which has
been used or exposed to radiation in a nuclear reactor; "waste" means
any waste material (1) containing byproduct material and (2) resulting
from the operation by any person or organization of any nuclear facility
included within the definition of nuclear facility under paragraph (a)
or (b) thereof; "nuclear facility" means
(a) any nuclear reactor,
(b) any equipment or device designed or used for (1) separating the
isotopes of uranium or plutonium, (2) processing or utilizing spent
fuel, or (3) handling processing or packaging waste,
(c) any equipment or device used for the processing, fabricating or
alloying of special nuclear material if at any time the total amount
of such material in the custody of the insured at the premises where
such equipment or device is located consists of or contains more
than 25 grams of plutonium or uranium 233 or any combination
thereof, or more than 250 grams of uranium 235,
(d) any structure, basin, excavation, premises or place prepared or used
for the storage or disposal of waste, and includes the site on which
any of the foregoing is located, all operations conducted on such
site and all premises used for such operations; "nuclear reactor"
means any apparatus designed or used to sustain nuclear fission in a
self-supporting chain reaction or to contain a xxxxxxxx xxxx of
fissionable material;
(WITH RESPECT TO INJURY TO OR DESTRUCTION OF PROPERTY, THE WORD
"INJURY" OR "DESTRUCTION,"
("property damage" includes all forms of radioactive
contamination of property,
(INCLUDES ALL FORMS OF RADIOACTIVE CONTAMINATION OF PROPERTY.
V. The inception dates and thereafter of all original policies affording
coverages specified in this paragraph (3), whether new, renewal or
replacement, being policies which become effective on or after 1st May,
1960, provided this paragraph (3) shall not be applicable to
(i) Garage and Automobile Policies issued by the Reassured on New
York risks, or
(ii) statutory liability insurance required under Chapter 90,
General Laws of Massachusetts, until 90 days following approval
of the Broad Exclusion Provision by the Governmental Authority
having jurisdiction thereof.
(4) Without in any way restricting the operation of paragraph (1) of this
Clause, it is understood and agreed that paragraphs (2) and (3) above are
not applicable to original liability policies of the Reassured in Canada and
that with respect to such policies this Clause shall be deemed to include
the Nuclear Energy Liability Exclusion Provisions adopted by the Canadian
Underwriters' Association or the Independent Insurance Conference of Canada.
--------------------------------------------------------------------------------
*NOTE. THE WORDS PRINTED IN ITALICS IN THE LIMITED EXCLUSION PROVISION AND IN
THE BROAD EXCLUSION PROVISION SHALL APPLY ONLY IN RELATION TO ORIGINAL
LIABILITY POLICIES WHICH INCLUDE A LIMITED EXCLUSION PROVISION OR A BROAD
EXCLUSION PROVISION CONTAINING THOSE WORDS.
Page 2 of 2
NUCLEAR INCIDENT EXCLUSION CLAUSE REINSURANCE - NO. 4
(1) This reinsurance does not cover any loss or liability accruing to the
Reassured as a member of, or subscriber to, any association of insurers
formed for the purpose of covering nuclear energy risks or as a direct or
indirect reinsurer of any such member, subscriber or association.
(2) Without in any way restricting the operations of Nuclear Incident Exclusion
Clause No. 1B - Liability, No. 2 - Physical Damage, No. 3 - Boiler and
Machinery and paragraph (1) of this clause, it is understood and agreed that
for all purposes as respects the reinsurance assumed by the Reinsurer from
the Reassured, all original insurance policies or contracts of the Reassured
(new, renewal and replacement) shall be deemed to include the applicable
existing Nuclear Clause and/or Nuclear Exclusion Clause(s) in effect at the
time and any subsequent revisions thereto as agreed upon and approved by the
Insurance Industry and/or a qualified Advisory or Rating Bureau.
POLLUTION EXCLUSION CLAUSE - GENERAL LIABILITY - REINSURANCE
A. This reinsurance excludes all loss and/or liability accruing to the
reinsured company as a result of:
1. bodily injury or property damage arising out of the actual, alleged or
threatened discharge, dispersal, release or escape of pollutants:
a. at or from premises owned, rented or occupied by a named insured;
b. at or from any site or location used by or for a named insured or
others for the handling, storage, disposal, processing or treatment
of waste;
c. which are at any time transported, handled, stored, treated,
disposed of, or processed as waste by or for a named insured or any
person or organization for whom a named insured may be legally
responsible; or
d. at or from any site or location on which a named insured or any
contractors or subcontractors working directly or indirectly on
behalf of a named insured are performing operations:
(i) if the pollutants are brought on or to the site or location in
connection with such operations; or
(ii) if the operations are to test for, monitor, clean up, remove,
contain, treat, detoxify or neutralize the pollutants;
2. any governmental direction or request that a named insured test for,
monitor, clean up, remove, contain, treat, detoxify or neutralize
pollutants.
B. Subparagraphs A(1)(a) and A(1)(d)(i) above do not apply to bodily injury or
property damage caused by heat, smoke or fumes from a hostile fire.
C. "Hostile fire" means a fire which becomes uncontrollable or breaks out from
where it was intended to be.
D. "Pollutants" means any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals
and waste. Waste includes material to be recycled, reconditioned or
reclaimed.
WAR RISK EXCLUSION CLAUSE (REINSURANCE)
As regards interests which at time of loss or damage are on shore, no liability
shall attach hereto in respect of any loss or damage which is occasioned by war,
invasion, hostilities, acts of foreign enemies, civil war, rebellion,
insurrection, military or usurped power, or martial law or confiscation by order
of any government or public authority.
Nevertheless, this clause shall not be construed to apply to loss or damage
occasioned by riots, strikes, civil commotion, vandalism or malicious damage.
