The Law

Legal Spotlight

A look at the latest decisions impacting the industry.
By: | October 1, 2013 • 6 min read

Actors’ Union Denied Coverage

Federal Insurance Co. won a summary judgment in a lawsuit filed by the Screen Actors Guild Inc. that alleged breach of contract because the insurer refused coverage for indemnity.oldtv

SAG had been sued by Ken Osmond, an actor best known for his role as Eddie Haskell on Leave It to Beaver, and others in a 2007 class action that accused the union of collecting more than $8 million in foreign royalties since 1996 and holding the funds for an “unreasonably long period of time.”

Federal agreed to provide defense coverage to SAG, but said its D&O liability and entity liability coverage only covered wrongful acts if the claim “is reported to the company in writing in the manner and within the time provided” in the policy.

The policy also excluded coverage for a loss arising from the insured gaining “any profit, remuneration or advantage to which such insured was not legally entitled.”

In September 2010, SAG settled the action, agreeing to pay 90 percent of the funds within three years, and in March, a court approved the settlement. As part of that final order, the court awarded Osmond $315,000 for an “enhancement payment” and for counsel fees.

SAG requested reimbursement of that award from Federal, which was rejected by the carrier. The U.S. District Court in the Central District of California agreed with the insurer, ruling that Federal owed no duty to indemnify SAG for the award, and that “without coverage there can be no liability for bad faith on the part of the insurer.”

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Scorecard: Federal Insurance Co. did not have to pay $330,000 in fees and expenses to the actors union as part of its settlement of a class-action lawsuit.

Takeaway: The ruling is in line with a recent state appeals court case, which held that liability policies do not cover class-action attorneys’ fees in breach-of-contract claims because there is no wrongful act and no loss.

Court Rejects Death Payment

The estate of a man killed in a drilling rig accident saw its legal judgment balloon from a proposed settlement of $250,000 to an initial trial judgment of $15 million and eventually to $72 million plus interest, down to nothing when a Texas court ruled the original “judgment was not the result of a fully adversarial trial.”

Randall Jay Seger was killed on July 13, 1992, when a Diatom Drilling Co. rig he was working on collapsed. Diatom notified its comprehensive general liability insurers of the accident, but the carriers were not notified of a lawsuit filed against Diatom about a year later. That suit “sat virtually dormant until 1998,” at which time Diatom demanded its CGL insurers provide a defense.

The insurers refused, contending the death was not a covered occurrence and that they had not received timely notice of the litigation. The insurers also refused a series of settlement demands, which successively declined from $500,000 (the policy limits of the CGL policy) to $250,000.

Prior to trial on March 27, 2001, Diatom’s counsel withdrew from representation, and the company’s general partner, Cynthia Gillman, was treated more like “a witness rather than a party” to the litigation, according to a ruling by the Court of Appeals for the 7th District of Texas. The result was a $15 million verdict in favor of Seger’s parents.

Gillman assigned Diatom’s rights against the CGL insurers to the parents, who later filed suit seeking damages, claiming the insurers wrongfully refused to defend Diatom and negligently failed to settle the case. Prior to trial, the Segers settled their claims against all remaining solvent CGL insurers except Yorkshire Insurance Co. Ltd., and Ocean Marine Insurance Co. Ltd.

During the trial, the court directed that damages should be based on the initial judgment, and the jury returned a verdict in favor of the parents.

On appeal, the case was remanded back to the trial court for a new trial, which resulted in judgment awards of $72 million, which was indicated as “the current amount of the underlying judgment.”

The insurers appealed again, presenting seven issues, but they only needed the first: that the “only evidence of damages offered by the Segers was the underlying judgment, but that judgment was not the result of a fully adversarial trial.”

The court ruled it was irrelevant that the insurers believed there was “pre-trial collusion” between Diatom and the Segers to maximize the amount of damages, because that argument would only come into play if the judgment was valid.

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Scorecard: Two comprehensive general liability insurers did not have to pay $72 million to the parents of a man killed when a drilling rig collapsed.

Takeaway: Relying on underlying judgment as proof of damages is insufficient when the initial trial proceeding did not include evidence that supported such damages.

Insurer Said Scientology Clinic Misled It

Evanston Insurance Co. filed suit against a drug and rehabilitation treatment center, saying its professional liability policy was issued based on “false, deceptive and misleading” statements about the organization.

In particular, Evanston alleges that Narconon of Georgia and Association for Better Living and Education International (ABLE), based in California, “misrepresented their connections to Scientology,” and misrepresented the addiction program’s effectiveness, the “scientific evidence” supporting the program, the existence of required licenses and the training given to staff.

The rehabilitation program consists of written course materials and a “New Life Detoxification Program,” which includes “exercise, large doses of vitamins and minerals, sweating in a sauna and following a diet of fresh vegetables and lots of liquids,” according to court documents.sauna

In addition, the insurer alleged that Narconon misled it when it said it ran an in-patient facility instead of an out-patient facility.

The lawsuit comes after a handful of former patients filed a class-action lawsuit against Narconon and ABLE, all claiming they each invested between $10,000 and $50,000, and that none of them “achieved sobriety or sufficient tools for managing their addictions,” according to the underlying lawsuit.

That underlying lawsuit alleges fraudulent misrepresentation, breach of contract, unjust enrichment and multiple violations of Georgia’s Racketeer Influenced and Corruption Organizations (RICO) statute, among other allegations.

The policy issued by Evanston, subject to a $10,000 per claim deductible, provides $1 million for each claim and $3 million in the annual aggregate for errors or omissions from Aug. 19, 2011 and prior to June 25, 2012. After that date, the limits are $3 million for each claim and $3 million in the annual aggregate.

Evanston said it is entitled to rescind its policy based on the “misrepresentations with the actual intent to deceive and those representations materially affected the acceptance of the risk and hazard assumed by Evanston.”

It also argued it had no duty to defend or indemnify the organization because the clinic’s actions “do not constitute ‘professional services’ as those services are defined in the policy.”

Scorecard: The insurer’s policy limits, subject to a $10,000 per claim deductible, provide $1 million for each claim, up to $3 million in the annual aggregate from 2011 to 2012, and an annual aggregate of $3 million from 2012 to 2013.

Takeaway: Insurers may want to institute more robust due diligence procedures before accepting insureds.

Anne Freedman is managing editor of Risk & Insurance. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Exclusive | Hank Greenberg on China Trade, Starr’s Rapid Growth and 100th, Spitzer, Schneiderman and More

In a robust and frank conversation, the insurance legend provides unique insights into global trade, his past battles and what the future holds for the industry and his company.
By: | October 12, 2018 • 12 min read

In 1960, Maurice “Hank” Greenberg was hired as a vice president of C.V. Starr & Co. At age 35, he had already accomplished a great deal.

He served his country as part of the Allied Forces that stormed the beaches at Normandy and liberated the Nazi death camps. He fought again during the Korean War, earning a Bronze Star. He held a law degree from New York Law School.

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Now he was ready to make his mark on the business world.

Even C.V. Starr himself — who hired Mr. Greenberg and later hand-picked him as the successor to the company he founded in Shanghai in 1919 — could not have imagined what a mark it would be.

Mr. Greenberg began to build AIG as a Starr subsidiary, then in 1969, he took it public. The company would, at its peak, achieve a market cap of some $180 billion and cement its place as the largest insurance and financial services company in history.

This month, Mr. Greenberg travels to China to celebrate the 100th anniversary of C.V. Starr & Co. That visit occurs at a prickly time in U.S.-Sino relations, as the Trump administration levies tariffs on hundreds of billions of dollars in Chinese goods and China retaliates.

In September, Risk & Insurance® sat down with Mr. Greenberg in his Park Avenue office to hear his thoughts on the centennial of C.V. Starr, the dynamics of U.S. trade relationships with China and the future of the U.S. insurance industry as it faces the challenges of technology development and talent recruitment and retention, among many others. What follows is an edited transcript of that discussion.


R&I: One hundred years is quite an impressive milestone for any company. Celebrating the anniversary in China signifies the importance and longevity of that relationship. Can you tell us more about C.V. Starr’s history with China?

Hank Greenberg: We have a long history in China. I first went there in 1975. There was little there, but I had business throughout Asia, and I stopped there all the time. I’d stop there a couple of times a year and build relationships.

When I first started visiting China, there was only one state-owned insurance company there, PICC (the People’s Insurance Company of China); it was tiny at the time. We helped them to grow.

I also received the first foreign life insurance license in China, for AIA (The American International Assurance Co.). To date, there has been no other foreign life insurance company in China. It took me 20 years of hard work to get that license.

We also introduced an agency system in China. They had none. Their life company employees would get a salary whether they sold something or not. With the agency system of course you get paid a commission if you sell something. Once that agency system was installed, it went on to create more than a million jobs.

R&I: So Starr’s success has meant success for the Chinese insurance industry as well.

Hank Greenberg: That’s partly why we’re going to be celebrating that anniversary there next month. That celebration will occur alongside that of IBLAC (International Business Leaders’ Advisory Council), an international business advisory group that was put together when Zhu Rongji was the mayor of Shanghai [Zhu is since retired from public life]. He asked me to start that to attract foreign companies to invest in Shanghai.

“It turns out that it is harder [for China] to change, because they have one leader. My guess is that we’ll work it out sooner or later. Trump and Xi have to meet. That will result in some agreement that will get to them and they will have to finish the rest of the negotiations. I believe that will happen.” — Maurice “Hank” Greenberg, chairman and CEO, C.V. Starr & Co. Inc.

Shanghai and China in general were just coming out of the doldrums then; there was a lack of foreign investment. Zhu asked me to chair IBLAC and to help get it started, which I did. I served as chairman of that group for a couple of terms. I am still a part of that board, and it will be celebrating its 30th anniversary along with our 100th anniversary.

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We have a good relationship with China, and we’re candid as you can tell from the op-ed I published in the Wall Street Journal. I’m told that my op-ed was received quite well in China, by both Chinese companies and foreign companies doing business there.

On August 29, Mr. Greenberg published an opinion piece in the WSJ reminding Chinese leaders of the productive history of U.S.-Sino relations and suggesting that Chinese leaders take pragmatic steps to ease trade tensions with the U.S.

R&I: What’s your outlook on current trade relations between the U.S. and China?

Hank Greenberg: As to the current environment, when you are in negotiations, every leader negotiates differently.

President Trump is negotiating based on his well-known approach. What’s different now is that President Xi (Jinping, General Secretary of the Communist Party of China) made himself the emperor. All the past presidents in China before the revolution had two terms. He’s there for life, which makes things much more difficult.

R&I: Sure does. You’ve got a one- or two-term president talking to somebody who can wait it out. It’s definitely unique.

Hank Greenberg: So, clearly a lot of change is going on in China. Some of it is good. But as I said in the op-ed, China needs to be treated like the second largest economy in the world, which it is. And it will be the number one economy in the world in not too many years. That means that you can’t use the same terms of trade that you did 25 or 30 years ago.

They want to have access to our market and other markets. Fine, but you have to have reciprocity, and they have not been very good at that.

R&I: What stands in the way of that happening?

Hank Greenberg: I think there are several substantial challenges. One, their structure makes it very difficult. They have a senior official, a regulator, who runs a division within the government for insurance. He keeps that job as long as he does what leadership wants him to do. He may not be sure what they want him to do.

For example, the president made a speech many months ago saying they are going to open up banking, insurance and a couple of additional sectors to foreign investment; nothing happened.

The reason was that the head of that division got changed. A new administrator came in who was not sure what the president wanted so he did nothing. Time went on and the international community said, “Wait a minute, you promised that you were going to do that and you didn’t do that.”

So the structure is such that it is very difficult. China can’t react as fast as it should. That will change, but it is going to take time.

R&I: That’s interesting, because during the financial crisis in 2008 there was talk that China, given their more centralized authority, could react more quickly, not less quickly.

Hank Greenberg: It turns out that it is harder to change, because they have one leader. My guess is that we’ll work it out sooner or later. Trump and Xi have to meet. That will result in some agreement that will get to them and they will have to finish the rest of the negotiations. I believe that will happen.

R&I: Obviously, you have a very unique perspective and experience in China. For American companies coming to China, what are some of the current challenges?

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Hank Greenberg: Well, they very much want to do business in China. That’s due to the sheer size of the country, at 1.4 billion people. It’s a very big market and not just for insurance companies. It’s a whole range of companies that would like to have access to China as easily as Chinese companies have access to the United States. As I said previously, that has to be resolved.

It’s not going to be easy, because China has a history of not being treated well by other countries. The U.S. has been pretty good in that way. We haven’t taken advantage of China.

R&I: Your op-ed was very enlightening on that topic.

Hank Greenberg: President Xi wants to rebuild the “middle kingdom,” to what China was, a great country. Part of that was his takeover of the South China Sea rock islands during the Obama Administration; we did nothing. It’s a little late now to try and do something. They promised they would never militarize those islands. Then they did. That’s a real problem in Southern Asia. The other countries in that region are not happy about that.

R&I: One thing that has differentiated your company is that it is not a public company, and it is not a mutual company. We think you’re the only large insurance company with that structure at that scale. What advantages does that give you?

Hank Greenberg: Two things. First of all, we’re more than an insurance company. We have the traditional investment unit with the insurance company. Then we have a separate investment unit that we started, which is very successful. So we have a source of income that is diverse. We don’t have to underwrite business that is going to lose a lot of money. Not knowingly anyway.

R&I: And that’s because you are a private company?

Hank Greenberg: Yes. We attract a different type of person in a private company.

R&I: Do you think that enables you to react more quickly?

Hank Greenberg: Absolutely. When we left AIG there were three of us. Myself, Howie Smith and Ed Matthews. Howie used to run the internal financials and Ed Matthews was the investment guy coming out of Morgan Stanley when I was putting AIG together. We started with three people and now we have 3,500 and growing.

“I think technology can play a role in reducing operating expenses. In the last 70 years, you have seen the expense ratio of the industry rise, and I’m not sure the industry can afford a 35 percent expense ratio. But while technology can help, some additional fundamental changes will also be required.” — Maurice “Hank” Greenberg, chairman and CEO, C.V. Starr & Co. Inc.

R&I:  You being forced to leave AIG in 2005 really was an injustice, by the way. AIG wouldn’t have been in the position it was in 2008 if you had still been there.

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Hank Greenberg: Absolutely not. We had all the right things in place. We met with the financial services division once a day every day to make sure they stuck to what they were supposed to do. Even Hank Paulson, the Secretary of Treasury, sat on the stand during my trial and said that if I’d been at the company, it would not have imploded the way it did.

R&I: And that fateful decision the AIG board made really affected the course of the country.

Hank Greenberg: So many people lost all of their net worth. The new management was taking on billions of dollars’ worth of risk with no collateral. They had decimated the internal risk management controls. And the government takeover of the company when the financial crisis blew up was grossly unfair.

From the time it went public, AIG’s value had increased from $300 million to $180 billion. Thanks to Eliot Spitzer, it’s now worth a fraction of that. His was a gross misuse of the Martin Act. It gives the Attorney General the power to investigate without probable cause and bring fraud charges without having to prove intent. Only in New York does the law grant the AG that much power.

R&I: It’s especially frustrating when you consider the quality of his own character, and the scandal he was involved in.

In early 2008, Spitzer was caught on a federal wiretap arranging a meeting with a prostitute at a Washington Hotel and resigned shortly thereafter.

Hank Greenberg: Yes. And it’s been successive. Look at Eric Schneiderman. He resigned earlier this year when it came out that he had abused several women. And this was after he came out so strongly against other men accused of the same thing. To me it demonstrates hypocrisy and abuse of power.

Schneiderman followed in Spitzer’s footsteps in leveraging the Martin Act against numerous corporations to generate multi-billion dollar settlements.

R&I: Starr, however, continues to thrive. You said you’re at 3,500 people and still growing. As you continue to expand, how do you deal with the challenge of attracting talent?

Hank Greenberg: We did something last week.

On September 16th, St. John’s University announced the largest gift in its 148-year history. The Starr Foundation donated $15 million to the school, establishing the Maurice R. Greenberg Leadership Initiative at St. John’s School of Risk Management, Insurance and Actuarial Science.

Hank Greenberg: We have recruited from St. John’s for many, many years. These are young people who want to be in the insurance industry. They don’t get into it by accident. They study to become proficient in this and we have recruited some very qualified individuals from that school. But we also recruit from many other universities. On the investment side, outside of the insurance industry, we also recruit from Wall Street.

R&I: We’re very interested in how you and other leaders in this industry view technology and how they’re going to use it.

Hank Greenberg: I think technology can play a role in reducing operating expenses. In the last 70 years, you have seen the expense ratio of the industry rise, and I’m not sure the industry can afford a 35 percent expense ratio. But while technology can help, some additional fundamental changes will also be required.

R&I: So as the pre-eminent leader of the insurance industry, what do you see in terms of where insurance is now and where it’s going?

Hank Greenberg: The country and the world will always need insurance. That doesn’t mean that what we have today is what we’re going to have 25 years from now.

How quickly the change comes and how far it will go will depend on individual companies and individual countries. Some will be more brave than others. But change will take place, there is no doubt about it.

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More will go on in space, there is no question about that. We’re involved in it right now as an insurance company, and it will get broader.

One of the things you have to worry about is it’s now a nuclear world. It’s a more dangerous world. And again, we have to find some way to deal with that.

So, change is inevitable. You need people who can deal with change.

R&I:  Is there anything else, Mr. Greenberg, you want to comment on?

Hank Greenberg: I think I’ve covered it. &

The R&I Editorial Team can be reached at [email protected]