The Law

Legal Spotlight

A look at the latest decisions affecting the industry.
By: | September 2, 2014 • 6 min read

Excess Policy Off-Limits to Company

In 2008, Martin Resource Management Corp. (MRMC), a company with $3 billion in annual sales, was accused in a Texas state court of wrongdoing in a shareholder derivative action filed by two brothers, which affected control of the company.

MRMC eventually settled that litigation for an undisclosed price in 2012, including repurchase of all shares held by Scott D. Martin and SKM Partnership Ltd. About the same time, the corporation filed suit against its primary and excess D&O insurers for defense in the underlying litigation.


The company later settled its suit against Zurich American Insurance Co. — which held a $10 million primary D&O policy from Feb. 1, 2008 to Feb. 1, 2009 — for less than the policy limit, according to court documents. MRMC also settled with Arch Insurance Co., which had issued a $10 million excess policy, in a confidential agreement.

That left Axis Insurance Co., which also held a $10 million excess policy, as the remaining insurer in the MRMC lawsuit. In seeking summary dismissal of the litigation, Axis argued that its policy was not triggered because the underlying limit in the Zurich policy was not “exhausted by actual payment.”

The corporation argued that the Axis policy language was ambiguous — that it did not “clearly state that ‘actual payment requires payment of the full limit of the underlying Zurich policy’ by Zurich alone,” according to court documents.

MRMC also argued that entering a settlement agreement was consistent with Texas public policy, and that by allowing excess insurers to “escape their coverage obligations based solely on settlements with underlying insurers for less than total policy limits, policyholders will have no choice but to fight every coverage case to the bitter end to avoid forfeiture of their excess coverage.”

The Harris County Judicial District of Texas disagreed with MRMC’s position, and dismissed the case. On appeal to the U.S. District Court for the Eastern District of Texas, a federal judge agreed with the lower court, stating that “it is clear that in order to trigger the Axis policy, Zurich must have paid the full amount of its limit of liability as specified in the Zurich policy.”

Scorecard: Axis need not pay up to the $10 million in excess policy limits.

Takeaway: Efforts to emphasize portions of policy language in isolation are usually unsuccessful. Policy language must be read in context of the entire policy.

Checkout Practices Negate Coverage

Since August 2009, Urban Outfitters (UO) has collected ZIP code information at checkout, in violation of Massachusetts law, according to a class-action lawsuit filed by customers.

Similar allegations were filed against the company in California, claiming the practice of collecting ZIP codes since February 2010 violated the Song-Beverly Credit Card Act of 1971.

09012014_legal_spotlight_shopA third suit, filed in the District of Columbia, against UO and its Anthropologie subsidiary made similar accusations — that the ZIP code collection since June 2010 violated the district’s laws.

While slightly different, the state and district regulations generally forbade companies from requesting “personal identification information;” from misrepresenting the fact that providing such information was not required to complete a purchase; from engaging in unfair and deceptive business practices; and from invading customer privacy.

UO sought indemnification and duty-to-defend coverage from OneBeacon America Insurance Co., which had issued successive commercial general liability and umbrella policies beginning July 7, 2008 and ending July 7, 2010. OneBeacon also issued a similar policy for July 7, 2010 to July 7, 2011, which was a “fronting” policy for which the Hanover Insurance Group is responsible. Hanover issued successive CGL and umbrella policies from July 7, 2011 to July 7, 2013.


When coverage was denied, UO and Anthropologie sought a court declaration that the insurers must defend and/or indemnify them. The carriers asked for dismissal of the case — and the insurers’ motions were ultimately granted by the U.S. District Court for the Eastern District of Pennsylvania.

Judge Stewart Dalzell agreed with the carriers that, in the District of Columbia case, there was no coverage under the “personal and advertising injury provision” because the information was not “published,” under the common use of the word, as it was shared only between the insured and its customer.

In the California case, the court found that the companies did “publicize” the information by sharing it with third parties for marketing purposes, but that coverage should be denied because of an exclusion in the policies for statutory violations.

The court also rejected coverage for the action in Massachusetts, which alleged the receipt of junk mail was a “breach of their privacy,” because the term, “privacy” is confined to “secrecy interests,” and not to “intrusions upon seclusion.”

Scorecard: The carriers did not have to indemnify or pay for a defense. In just one of the lawsuits, each statute violation subjected the corporations to $1,500 per violation.

Takeaway: The collection of ZIP code information leaves organizations vulnerable to a variety of legal claims.

Insurer Did Not Have to Pay for Defense

In 2002, Paul Schoen filed a lawsuit alleging securities claims against Amerco, the parent of truck rental company U-Haul, which was founded by his father and is controlled by the Schoen family.

Amerco sought coverage under its directors’ and officers’ policy issued by National Union Fire Insurance Co., and was denied. The insurer cited “insured vs. insured” provisions, which excluded coverage for any claims involving “any security holder of the company” and unless such a claim was “totally without the solicitation of, or assistance of, or active participation of, or intervention of, any member of the Schoen family.”

09012014_legal_spotlight_courtroomAfter that claim was denied, two more lawsuits were filed against Amerco, and all three were consolidated by the courts. National Union again denied coverage, citing the participation of Paul Schoen. The situation reoccurred when two additional actions were filed, and all were consolidated into one court action.

In 2006, pursuant to a ruling of the Nevada Supreme Court, which reversed a lower court order dismissing the case, the plaintiffs were permitted to amend their pleadings. Instead of filing separate complaints, as the court permitted, they filed a single consolidated complaint, with Paul Schoen’s counsel acting as lead counsel.

Six years later, the cases were settled, with the plaintiffs gaining “nothing by way of settlement,” and court costs for Amerco exceeding $9 million.


In 2013, the company filed suit against National Union, alleging breach of contract and bad faith in denying the claim. Those allegations were rejected in May by a federal judge in the U.S. District Court for the District of Arizona.

In the opinion, Judge Paul G. Rosenblatt ruled that the claims in the consolidated court action “were not prosecuted totally independently of Paul Schoen, totally without Schoen’s assistance, and totally without Schoen’s active participation, and therefore the exclusion provisions apply.”

Scorecard: National Union Fire Insurance Co. will not have to pay a $9 million claim for defense costs in a shareholder lawsuit.

Takeaway: Regardless of the complexity of the litigation, the policy language was unambiguous as to its exclusions.

The late Anne Freedman is former managing editor of Risk & Insurance. Comments or questions about this article can be addressed to [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.


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.


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?


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.


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.


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]