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US Legal - Cutting through the contract.

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| September 01, 2003 | COPYRIGHT 2003 Financial Times Ltd. This material is published under license from the publisher through the Gale Group, Farmington Hills, Michigan.  All inquiries regarding rights should be directed to the Gale Group. (Hide copyright information)Copyright

(From Reinsurance)

Byline: Peter Chaffetz and Steven Schwartz.

One of the most basic principles of reinsurance is that the reinsurance contracts are strictly between the cedant and the reinsurer. Yet, on 26 June, a Pennsylvanian court chose to ignore this principle by ruling that four major policyholders of two companies in liquidation could recover reinsurance proceeds directly from the companies' reinsurers.

The court entered this order in Koken v Legion Insurance Company, No. 183 MD (Pa. Commis Ct.), notwithstanding the fact that there was no explicit cut-through provision in the relevant contracts and over the objection of the Pennsylvania insurance commissioner and an intervening reinsurer.

(We refer to the two affiliated companies that are the subject of this dispute collectively as 'Legion').

It is not unusual to see major policyholders attempt to recover from reinsurers when a state supervisory proceeding interrupts the flow of claim payments but it is exceedingly rare for such challenges to succeed.

Normally, two related principles defeat such claims.

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