William D. Hager
Sample Issue-by-Issue Reinsurance Specialization

There are of course, hundreds of issues that can arise in insurance and reinsurance arbitration. Set out below are a handful of sample issues to which Mr. Hager shows expertise. His knowledge extends well beyond these issue-by-issue examples, which are intended to be representative.

Notification of Claims.

Issue. Many reinsurance disputes arise over the issue of non-compliance with provisions of the agreement requiring notification of claims. Although each case is of course to be decided on its unique facts and governing language, there are a series of considerations that come to bear on these cases including the type of claims notification clause (i.e., (1) a condition precedent provision to (a) payment (b) attachment of liability or (2) an innominate term). The follow on issues include available remedies such as the degree to which late notice can be asserted as a defense and the result of the condition subsequently being complied with as to the duty to pay.

Overall. Mr. Hager has substantive experience as to notice issues. He has testified as an expert witness as to this issue. In addition, as a regulator whose duties included unwinding insolvent insurers, he litigated this issue on a regular basis (in the form of a reinsurer’s defense). In addition, as a lawyer and financial regulator, Mr. Hager confronted the issue of notice in connection with both primary insurance and other non-insurance transactions on a regular basis and is highly familiar with the applicable criteria that come to bear as to this issue.

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Issue. When a reinsurance transaction goes bad and finger pointing begins, one issue that often arises is the responsibility of the reinsurer (and the insurer in certain cases) to conduct due diligence of the transaction at the outset. The issue can impact liability allocation between brokers, insurers and reinsurers.

Overall. Mr. Hager has substantive experience as to due diligence issues. He has testified as an expert witness as to this issue. In addition, as a regulator whose duties included unwinding insolvent insurers, he litigated this issue on a regular basis (in the form of a reinsurer’s defense). Furthermore, as a lawyer and financial regulator, Mr. Hager confronted the issue of due diligence in connection with major financial transactions on a regular basis and is familiar with the applicable criteria that comes to bear as to this issue.

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Issue. As reinsurance transactions continue to move from being governed by custom and practice to being governed (in some cases) by more legalistic rules, the date the agreement incepts (and for that matter, other critical dates in the agreement) often becomes an issue in transactions. The issue, among other considerations, involves the intent of the parties and whether (1) custom and practice will govern or (2) the usual legal rules of contract formation will govern.

Overall. As a regulator, Mr. Hager confronted this issue on a regular basis, particularly as to year-end reinsurance transactions where the final agreement could be signed months after the recorded year-end reinsurance transaction. In addition, Mr. Hager has testified as an expert in cases where the inception date was critical to liability and case resolution.

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Issue. Reinsurance disputes can include issues relating to the duties of brokers or intermediaries. Those duties can revolve around communication, disclosure, duties to the underlying client in the transaction, due diligence, timing and many others.

Overall. Mr. Hager has substantive experience as to reinsurance intermediary duties. He has testified as an expert witness as to this issue. In addition, as a regulator whose duties included unwinding insolvent insurers, he litigated this issue on a regular basis (in the form of a reinsurer’s defense)

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Issue: With the NAIC requirement of risk transfer in connection with year-end reinsurance transactions (in the past, so called “surplus relief”), measuring whether the risk transferred meets the regulatory criteria can become an issue.

Overall. Mr. Hager has in-depth and highly technical knowledge and hands on experience analyzing and measuring whether sufficient risk has transferred in the reinsurance agreement to qualify against the NAIC standards. This experience is derived from reviewing many such year-end transactions as a regulator and determining their import.

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Issue. Occasionally, reinsurers assert as a defense, regulatory delay in declaring the primary insurer insolvent. That is to say, the reinsurer’s defense alleges that but for the regulatory delay, the primary insurer would have long since been declared insolvent, thereby pre-empting most (if not all) of the reinsurer’s liability to the direct insurer.

Overall. Mr. Hager has significant and substantive experience as to solvency issues. As a regulator, he made daily decisions about whether to proceed against insurers in connection with solvency issues. Those decisions related to both domestic and foreign insurers. With eight years of regulatory experience including significant leadership positions at the NAIC, he is in a position to evaluate the regulatory response to insurers facing questions of solvency. In addition, Mr. Hager has testified as expert witness as this matter.