Day 1: 2019 Miami Latin American Claims (Re)Insurance Forum

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Welcome Cocktail Pictures: 2019 Miami Latin American Claims (Re)Insurance Forum

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Fiscal Liability Proceedings in Colombia

 

Bogota, Colombia - view of capital city downtown from Monserrate

In recent years, the amount of fiscal liability proceedings has been increasing substantially. Insurance companies have been called into those proceedings. This has resulted in many awards against insurers some of which have ignored the rules and principles of insurance contracts, and decisions by the Council of State and Supreme Court.
This situation has caused understandable concern in the market—the most relevant aspects of these proceedings are explained below.

What are fiscal liabilities proceedings?
The Office of the Comptroller General (CGR in Spanish) has a constitutional mandate to supervise the correct management of state property, including funds. Through fiscal liability proceedings, the CGR seeks to determine whether public officers and private parties that deal with public property funds have managed them properly.  If damage or financial detriment has been caused to the State due to fraud or gross negligence of those being investigated, those persons will be asked to pay monetary compensation for the damage caused.
The proceedings end with an administrative decision that, as in other civil code countries, is subject to appeal before the contentious-administrative courts.

Who can be held fiscally liable?
In this context, government agencies will never be liable as they are the victims—only public officers (civil servants) and private persons (whether people or companies) can be made liable. Sometimes the CGR adopts a broad interpretation of the notion of what is handling or administering public funds to broaden the spectrum of potentially liable parties and include persons who strictly are not performing those activities, thus going beyond its powers.

Insurers’ role 
Article 44 Law 610 2000 states that in cases where there is an insurance policy covering the possible liable person or the property or contracts that are being investigated by the Office of the General Comptroller, the insurer shall be called into the proceedings as a potentially liable third party and may be ordered to pay compensation to the State.

Types of policies likely to be involved in fiscal liability proceedings
1. Surety
2. D&O Policies for Public Officers
3. Crime Policies
4. D&O

Contraloría’s Decisions that affect the insurance market
Several decisions of the Contraloría have caused concern of late with high profile cases related to corruption being investigated. The most popular matters concern:

1. Multiple policies’ periods: In cases involving losses occurring over time by continued actions or omissions of public officers—or individuals that manage or administer public funds—the DGR has triggered multiple policy periods, accumulating insured limits. By doing so, the Contraloría ignores the insurance contract rules and principles, the agreed terms and conditions, and the insured limits.

2. Title V of the Colombian Commercial Code regulates the insurance contract.  The CGR determined that its provisions were not applicable to them, deeming that the provisions of the Code were only applicable to private contracts and theirs are investigations of public nature.

3. Exclusions: In some matters, the CGR has ordered insurers to pay in instances were exclusions were applicable, therefore ignoring the terms and conditions of the insurance contract.

4. Claims made: CGR has also ignored claims made clauses arguing that they are not essential to the insurance contract, they limit insurer’s responsibility unduly, are abusive, and that insurance contracts shall answer to the general interest.

The approach of the CGR goes against multitude of well settled principles of insurance and commercial law.

What is being done?

In addition to contesting the admin CGR decisions before the courts, local and international markets have been active before the Insurers Association (Fasecolda) and several government agencies to raise awareness of the implications and promote dialogue with  CGR and congress. Kennedys is acting for several markets in different appeals and initiatives.

Currently in Congress
There are two bill initiatives currently in Congress.

The first initiative was filed by the former Comptroller Edgardo José Maya (Bill No. 099 of 2018). This bill (i) modifies the requirements to start a fiscal liability proceeding making them more strict in respect of evidence of the damage, (ii) changes the fiscal liability limitation period, (iii) specifies that the payment for anticipated termination of the fiscal liability proceeding includes indexation, (iv) determines that the testimony of the investigated persons is not a requirement to issue an accusation writ or indictment and that those testimonies can take place after the accusation writ or indictment is issued, and (v) modifies the quantum required for a second instance appeal.

The second bill seeks to amend the Constitution and was filed by current Comptroller Carlos Felipe Córdoba (Constitutional Amendment No. 355 of 2019). The initiative (i) establishes that Fiscal control will be concomitant and preventive and not only subsequent and selective, (ii) unifies the Jurisdiction of the CGR specifying that said Office will have  prevailing competition to exercise fiscal control over any territorial entity, and (iii) determines that the CGR will have judicial functions and judicial police functions.
Very much a developing story that we will be following closely. We will be discussing these issues at the Miami Latin American Claims (Re) Insurance Forum this week.

Authors: Monica Tocarruncho, Partner, Kennedys in Colombia; Catalina Botero, Senior Associate, Kennedys in Colombia and Alex Guillamont, Head of Latin America and Caribbean practice at Kennedys.

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Peru: Update on Claims Made

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A few weeks ago, we wrote about the validity of the “claims made” policies in Peru, in connection to a non-binding opinion issued by the Peruvian Insurance Regulator (SBS). The SBS concluded in such opinion, that liability policies (even regarding financial lines) should be underwritten under occurrence basis according to the Peruvian Insurance Contract Law.

In our article, we wrote that it was hoped that the SBS reconsidered their position, as it was well intended but technically inaccurate. They did it!

On 17 May 2019, the SBS published a draft bill regulating (and therefore, accepting, as they were doing de facto) the validity of “claims made” policies. We applaud the disposition of the SBS in order to move forward with solid legal grounds. These should be welcome news for all players in the insurance sector.

The draft bill provides that those clauses in a liability insurance establishing that third party claims should be made within the policy period or in the extended period agreed therein, must be negotiated entirely between the parties. It is required that insurers and brokers inform of the consequences of agreeing such policies to the insured. The draft bill also allows insurers to provide retroactive coverage, if the parties are unaware of claims within such period.

The draft bill is now open for public comment until 17 June 2019. After this period, the feedback received will be considered by the regulator, and it is expected that the bill will be enacted shortly thereafter.

Draft bill (in Spanish) available at: http://nuevo.sbs.gob.pe/normativa-y-estandares/normativa/prepublicacion-de-proyectos-normativos

We look forward to discussing further at the upcoming Miami Latin American Claims (Re)Insurance Forum.

Authors:
Marco Rivera Noya, Partner. Kennedys in Peru.
Alex Guillamont, Head of Latin America and Caribbean practice. Kennedys.

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2019 Miami Latin American Claims (Re)Insurance Forum is sold out!

 

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More than 200 delegates from 15 countries across the region and beyond.

QLDG and Kennedys thank you all for your support one more year. We look forward to meeting you all in Miami next month. The 36 carriers attending, 7 international reinsurance brokers and a significant number of experts from a variety of fields will surely add to the debate.

Special thanks to our 2019 sponsors: our welcome cocktail patron Abaco and Advanta, Crawford, Envista Forensics, IRB Brasil Re, J.S. Held, Rimac, R&G Espinosa and Sedgwick for their continued sponsorship.

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Peru: Claims Made Policies still valid

Machu Piccu

1. There has been a lot of talk, perhaps too much talk, following the recent non-binding opinion of the legal counsel of the local regulator SBS against the universally-accepted “claims made” system of insuring certain liability risks.  The SBS opinion is unhelpful and misguided, but relatively inoffensive, and the markets can continue underwriting on this basis.

2. This is the conclusion we and the rest of the market that attended a recent market-wide discussion on the topic we organised in Lima have arrived to.  Certain carriers also explained that they are taking this up jointly, under the auspices of industry association APESEG, to try and get SBS to reverse its opinion as it does no justice to market practice locally or the law in Peru.

3. Our partners in Peru have lodged numerous queries with SBS on a number of issues in the past.  This query was no different.  Several carriers and underwriters had queried whether “claims made” was accepted in Peru and therefore, unilaterally, this firm decided to ask SBS for its opinion.  Our apologies for any confusion in this respect.

4. Although the Insurance Contract Act of 2013 is silent about “claims made”—whilst earlier drafts of the law expressly allowed it—it is a constitutional right in Peru to allow whatever is not prohibited.  That, and the market reality that the SBS knows well, as there are several carriers with “claims made” policies registered with the regulator, and reserves set up and notified accordingly, should have been the guiding principle of the response.

5. Instead, the SBS responded that, per article 78 of the Act, the limitation period for the insured to request coverage under any insurance policy is 10 years, and therefore, policies should be underwritten under “occurrence” basis, and that any shortening of the limitation period would render the policy null and void.  It is hoped that the SBS will reconsider, as under “claims made” the rights of the insured insofar as limitation goes are intact.  It is just that the period of cover is restricted to “claims made” against the insured in the policy period, for events that took place in the past. This system provides underwriters with greater certainty, as the insured is requested to disclose any known third party claim or circumstance (defined widely) upon each renewal, therefore allowing the closure of years of account more quickly and efficiently managing reserves.

6. No doubt the SBS was well intended in their attempt to protect insureds—always an overriding concern of regulators—but “claims made” is legal, not against the limitation rights under local law, and equally as important for insureds, priced competitively thanks to the availability of several reinsurance markets that prefer it to “occurrence” as they can bracket the risk more accurately.

7. In the recent market event in Lima, it became apparent that local carriers and reinsurance brokers intend to continue to offer “claims made” policies.  It is also clear that APESEG is taking the matter forward with the SBS, and perhaps lawmakers, in order to get the Act to expressly recognise “claims made” as in akin jurisdictions such as Mexico, Spain, or Brazil (via regulatory circular).  In Colombia, whilst “claims made” is expressly allowed in the law and the insurance regulator is of the view that insureds are adequately protected under such policies, the Contraloria, the watchdog for adequate funding of public works, is fudging the issue, as will be discussed in our next article and the upcoming Miami Latin American Claims (Re)Insurance Forum. See the program HERE

8. The SBS has no power to declare policies illegal.  It is highly unlikely insureds would take this matter to court, as asking the courts to declare policies null and void, if by chance granted, would have unintended consequences, as there would be no cover at all, with premium being returned to the insured in exchange for resolving the contract.

9. Unfortunately, there is no “large risk” provision in the Insurance Contract Act making it clear that the contract has been entered into by grown-ups, making the intervention of regulators or courts unnecessary in their quest to protect the rights of the insured, who is usually (but often mistakenly) seen as the weaker party in need of tutelage by the authorities.  As ever, clear language evidencing that the policy was entered into consciously, and that the insured understands and agrees its terms and conditions, including “claims made”, would be welcome.  A signature by the insured would also help.

This article was written by Marco Rivera Noya – Partner at Kennedys in Peru and Alex Guillamont – Head of Latin america and Caribbean practice for Kennedys CMK

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2019 Miami Latin American Claims (Re)Insurance Forum is almost sold-out. Just a few seats left!

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The 2019 Miami Latin American Claims (Re)Insurance Forum, organized by Kennedys CMK and QLDG, is pleased to announce that it has reached almost 90% of venue capacity.

Thank you to those of you who already registered, we have more than 180 delegates and experienced industry speakers. (Re)Insurance companies confirmed: AGCS, AIG, Aseguradora General, Aspen-Re, ASSA, AXA-XL, Axis Capital, Beazley, Brit, Chubb, Continental Seguros, Everest Re, Generali, Hannover Re, Helvetia, Hiscox MGA, IRB Brasil Re, Liberty, Munich Re, Rimac, Scor, Starr, StarStone, SURA, Swiss Re, Trans Re, Validus Re, Zurich.

Many thanks to our welcome cocktail patron Abaco as well as Advanta, Crawford, Envista Forensics, IRB Brasil Re, J.S. Held, Rimac, R&G Espinosa and Sedgwick for their continued sponsorship.

This is an exclusive event, attendance is by invitation and only 15 seats are available.

The Program can be found HERE.

Registration
To register, please click HERE and use the code FORUM2019 (case sensitive)

Simultaneous translation in Spanish and English available.

For information about the Forum, please contact:
Juan E. Lopez-Santini: jlopez@qldg.com
Hilda Welcker: hilda.welcker@kennedyscmk.com

ALL 9 sponsors

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