DocketNumber: C.A. No. PB 10-3777
Judges: SILVERSTEIN, J.
Filed Date: 4/25/2011
Status: Precedential
Modified Date: 7/6/2016
"WHEREAS, the creation of jobs and investment in the State of Rhode Island through business expansion and recruitment is of the highest importance; and
"WHEREAS, the financial services industry, which includes insurance . . . has been identified as a major target for greater development because it supports creation of a wide range of good jobs and new investment with minimal environmental impact; and
"WHEREAS, Rhode Island has demonstrated itself to be a competitive location for several highly successful firms in the financial services industry and has modernized key aspects of its insurance laws in the recent years." Id.
In view of that, Governor Almond ordered that the Task Force "be established to develop a legislative and regulatory agenda to establish Rhode Island as a highly competitive state in which to domicile companies in one or more segments of the insurance industry." Id. The Task Force was charged with:
"C. Identify[ing] the specific legal and regulatory barriers to insurance industry expansion in Rhode Island which can be corrected through legislative or regulatory action; and
"D. Develop[ing] specific legislation, in consultation with industry experts, regulators, leadership in the General Assembly, and *Page 3 economic developers, designed to position Rhode Island as the most competitive United States location for one or more target segments of the insurance industry." Id.
In 2002, in response to the Task Force's findings and recommendations, the Rhode Island Legislature enacted the Restructuring Act. The Restructuring Act became effective in 2004, following the promulgation of Insurance Regulation 68 (Reg. 68) by the Insurance Division of the DBR. The Restructuring Act, amended in 2007, sets forth a scheme by which a solvent insurance or reinsurance3 company in run-off4 may propose a commutation plan5 extinguishing its liabilities for past and future claims of its creditors and then terminate its business. *Page 4
Reg. 68 "outline[s] the procedural requirements for insurance companies applying for the implementation of a Commutation Plan."6 See Reg. 68 § 2. It specifies that before a commercial run-off insurer7 may seek court approval and implementation of its proposed commutation plan, the Applicant must first submit the plan for DBR review.8 Id. § 4. Thereafter, DBR has sixty days to review and comment on the proposed commutation plan. Id. Only after an Applicant has addressed DBR's comments, or the sixty day period has expired, may an Applicant apply to this Court for an order calling for a Meeting of Creditors and designating classes of creditors, if any, for the purposes of that meeting.9 Id.
Within ninety days of the submission of an application to this Court, a Meeting of Creditors shall be held to consider the proposed commutation plan. Notice of the meeting shall be provided to all known creditors or representatives of creditors in accordance with §
To determine whether the requisite statutory majority has been obtained, "votes will be calculated according to the aggregate amount of claims specified against the Applicant in respect of insurance and reinsurance contracts detailed in the voting form."See Reg. 68 § 4(c). Those creditors who fail to submit voting or proxy forms in accordance with the requirements of the commutation plan will not be considered to determine value of each creditor's vote at the Meeting of Creditors. Id. Further, the value attributed to each creditor's claim for voting purposes shall be determined on the basis of the information provided by the creditor in its *Page 6 voting form or information available to the Applicant from its existing records. Id. Where an agreement cannot be reached as to the appropriate value of a creditor's claim, for voting purposes only, the Chairman of the Meeting of Creditors shall determine the fair and reasonable value.11 Id. § 4(d).
Within thirty days of the approval of the proposed commutation plan, an Applicant must petition the Court to enter an order confirming the approval. Id. § 4(e). Before confirming the proposed plan and issuing an implementation order, the Court must determine that "implementation of the commutation plan would not materially adversely affect either the interests of the objecting creditors or the interests of assumption policyholders." Sec.
*Page 7"(ii) Subject to any limitations in the commutation plan, enjoin all litigation in all jurisdictions between the Applicant and creditors other than with the leave of the court;
"(iii) Require all creditors to submit information requested by the bar date specified in the plan;
"(iv) Require that upon a noticed application, the Applicant obtain court approval before making any payments to creditors other than, to the extent permitted under the commutation plan, payments in the ordinary course of business, this approval to be based upon a showing that the Applicant's assets exceed the payments required under the terms of the commutation plan as determined based upon the information submitted by creditors under paragraph (iii) of this subdivision;
"(v) Release the Applicant of all obligations to its creditors upon payment of the amounts specified in the commutation plan;
"(vi) Require quarterly reports from the Applicant to the court and commissioner regarding progress in implementing the plan; and
"(vii) Be binding upon the Applicant and upon all creditors and owners of the Applicant, whether or not a particular creditor or owner is affected by the commutation plan or has accepted it or has filed any information on or before the bar date, and whether or not a creditor or owner ultimately receives any payments under the plan." Sec.
27-14.5-4 (c)(2).
Throughout the implementation period, an Applicant is required to make "quarterly reports to [DBR] regarding implementation and administration of the Commutation Plan." See
Reg. 68 § 4(f). Additionally, the Applicant is required to advise the Court of the completion of the commutation plan.See §
In exchange for the State's administration of a commutation plan, the Applicant is required to pay an administrative fee to the DBR in the amount of $125,000, "or any lesser amount that the commissioner shall deem adequate for appropriate and thorough review of the application." Sec.
"[e]very March 15, the commissioner shall assess each run-off insurer an amount equal to the greater of: (i) one thousand dollars ($1,000), or (ii) the sum of that run-off insurer's proportionate share of estimated regulatory expenditure for that calendar year and that run-off insurer's assessment deficit, less its assessment surplus." Sec. §
27-14.5-5 (b)(1).
The calculation of the assessment surplus or deficit shall reflect the total cost of any examinations, and shall include the following expenses: (1) 150% of the total salaries and benefits paid to the examining personnel of DBR engaged in those examinations; (2) all *Page 8 reasonable technology costs related to the examination process; and (3) all necessary and reasonable education and training costs incurred by the state to maintain the proficiency. Id.
Between 1980 and 1986, GTE RE entered into several reinsurance contracts with the Odyssey Insureds.12 See Wakin Affidavit ¶ 1. Specifically, on or about September 15, 1981, GTE RE's predecessor executed a continuous quota share reinsurance treaty with Hudson effective from December 31, 1980 through December 31, 1985 (Hudson Treaty).13Id. ¶ 2. Under Article II of the Hudson Treaty, GTE RE remained liable for its proportionate share of all losses that occurred during the period of its participation as a reinsurer on the Hudson Treaty. Id. GTE RE's share of the Hudson treaty was 4.5% for the years 1981 and 1982, 9% in 1983, 10% in 1984, and 15% in 1985. See Toothman Rebuttal Actuarial Report 13.
Similarly, on or about January 30, 1985, GTE RE's predecessor executed a continuous quota share reinsurance treaty with Clearwater effective from January 1, 1984 through January 1, 1987 *Page 9 (Clearwater Treaty).14 See Wakin Affidavit ¶ 4. Under the Clearwater Treaty, GTE RE also remained liable for all losses occurring prior to January 1, 1987. Id. GTE RE's share of the Clearwater Treaty was 2% in each year. See Toothman Rebuttal Actuarial Report 13.
The instant matter arises out of GTE RE's proposed commutation plan (Commutation Plan). Under its Commutation Plan, GTE RE would now make lump sum payments to each of its creditor-policyholders — rather than wait for claims to arise in the future — in exchange for which GTE RE would be released of all liabilities remaining under its contracts. Id. at 4.
Pursuant to Reg. 68 § 4, GTE RE submitted its Commutation Plan to DBR for review. DBR reviewed the plan for both procedural and substantive compliance with the requirements of the Restructuring Act and implementing regulations. See Dwyer Affidavit ¶¶ 5-6. As part of its review, DBR reviewed over half a dozen drafts of the Commutation Plan, focusing on the plan's effect on creditors, GTE RE's financial proposal, and the dispute resolution procedure. Id. ¶ 5. Additionally, DBR considered: (1) whether the drafting was clear and logical; (2) whether the interests of creditors were sufficiently close for there to be one class of creditors; (3) whether the notice to creditors was appropriate; (4) whether voting procedures methodologies were appropriate; (5) how the Meeting of Creditors and voting was going to be conducted; (6) whether the bar date was sufficiently long; and (7) whether the adjudication procedure was fair. Id. ¶ 6.
DBR also spent considerable time examining the fairness of the Commutation Plan's financial terms to creditors.Id. ¶ 7. Specifically, DBR commissioned an actuarial review to: (1) consider the reasonableness of GTE RE's carried reserves related to agreements subject to the Commutation Plan; (2) test the percentage of cedents with no activity over the last several years; *Page 10 (3) assess the reasonableness of the composite reserve calculation from which initial settlement values are calculated; (4) estimate the total expected costs that GTE RE would face as a result of the Commutation Plan; and (5) assess the reasonableness of the Commutation Plan as it relates to the amounts to be paid to individual creditors. Id. ¶ 7.
DBR's actuary determined: (1) the historical data used in GTE RE's actuarial report was consistent with the historical experience by treaty; (2) the estimated total reserves for the exposures subject to the Commutation Plan were reasonable and conservative; (3) the composite reserve formula was reasonable and conservative in the aggregate; and (4) there was a sufficient adjudicatory process for cedents who object to the composite reserve formula settlements to provide additional or different information to justify different payments under the Commutation Plan. Id. ¶ 8.
Following its investigation and analysis of the Commutation Plan, DBR submitted extensive questions and comments to GTE RE.Id. ¶ 12. GTE RE agreed to make revisions to the plan to address the substantial changes DBR believed to be in the creditors' best interests. Id. Thereafter, DBR concluded that, contingent upon the requested revisions, the Commutation Plan was fair and did not materially adversely affect any creditor.Id. ¶¶ 9, 13. DBR gave its final approval to the Commutation Plan on June 25, 2010. Id. ¶ 13.
On June 28, 2010, in accordance with the Restructuring Act and Reg. 68, GTE RE initiated the instant action by filing a petition for implementation of the Commutation Plan with this Court. On July 21, 2010, following a properly noticed hearing, this Court determined that a single class of creditors was appropriate and granted GTE RE's motion for leave to convene a Meeting of Creditors and for a scheduling order. The Court's Order provided: *Page 11
"Assuming a favorable vote at the Meeting of Creditors, the Court shall conduct a hearing at 11:00 a.m. EST on December 15, 2010 to determine whether implementing the Commutation Plan would not materially adversely affect either the interests of the objecting creditors or the interests of assumption policyholders, and to enter an order implementing the Commutation Plan." See In re GTE Reinsurance Co. Ltd., No. 10-3777 (R.I. Super. Ct. July 21, 2010) (Order).
After GTE RE provided the requisite notice to its creditors, a Meeting of Creditors was held on November 30, 2010. The votes cast at the meeting exceeded the statutory criteria for implementation of the Commutation Plan. GTE RE's Motion for Confirmation of the Vote at the Meeting of Creditors and for an Order Implementing the Commutation Plan ¶ 11. Indeed, at the meeting, thirty-four of thirty-nine cedents, or 87.18% of the single class of creditors, voted in favor of the Commutation Plan.Id. This represented 97.37% of the value of liabilities owed to the voting members of the creditor class that submitted proxy forms and 79% of GTE RE's total composite reserve as of the date of the meeting. Id.
Five cedents, representing 2.13% of GTE RE's total composite reserve as of the date of the Meeting of Creditors, voted against the Commutation Plan. Id. At the meeting, the Odyssey Insureds, through a representative, objected to the valuation ascribed to their claims. The Odyssey Insureds estimated the value of their claims to be in excess of $1,300,000, or almost $300,000 more than what was reported to the National Association of Insurance Commissioners on its December 31, 2009 regulatory filings.Id. ¶ 14(e). However, because the Odyssey Insureds failed to account for the discrepancy, the Chairman disregarded the higher claim value, and valued their current and future claims at $1,069,668. Id.
On December 2, 2010, GTE RE filed its motion to confirm the vote and implement the Commutation Plan at the December 15, 2010 hearing. On December 14, 2010, the Odyssey *Page 12 Insureds filed their objections to the vote and Commutation Plan and challenged the constitutionality of the Restructuring Act. Following several continuances, a hearing was held on March 16, 2011.
Further, it is axiomatic that "`the party challenging the constitutional validity of [a statute] carries the burden of persuading the court that [it] violates an identifiable aspect of the Rhode Island or United States Constitution." Moreau,
Over time, Rhode Island courts have espoused the test devised by the United States Supreme Court when scrutinizing alleged Contract Clause violations. See, e.g., Nonnenmacher v. City ofWarwick,
"Generally we look to see whether the change in law operates as a substantial impairment of a contractual relationship. This inquiry has three elements: whether there is a contract, whether the law in *Page 15 question impairs an obligation or right under that contract, and whether the impairment is substantial. But even if the new law constitutes a substantial impairment, it still will not be deemed unconstitutional as a violation of the applicable contract clauses, if it is reasonable and necessary to carry out a legitimate public purpose." Retired Adjunct Professors,
690 A.2d at 1345 n. 2 (internal citations and quotations omitted); see also Brennan,529 A.2d at 638 .
In the instant matter, neither party disputes, nor does the Court question, the existence of a contractual relationship between GTE RE and the Odyssey Insureds. For that reason, the Court will proceed with its analysis of whether the Restructuring Act impairs the Odyssey Treaties and whether that impairment is substantial.
In assessing the validity of the instant Contract Clause claim, the Court must identify the precise contractual rights that have been impaired. See Equipment Mfrs. Inst., AGCO v.Janklow,
However, impairment alone is not sufficient to violate the Contract Clause. See United States Trust,
It is axiomatic that complete destruction of the rights of a contracting party is not required to find an impermissible impairment. See United States Trust,
While the Court acknowledges that the "essence" of insurance is the transfer of risk, the Court is of the opinion that at its most basic level, the risk involved is essentially about the right to receive, and the obligation to make, a monetary payment when a claim arises. See 1 Steven Plitt, et al., Couch onInsurance 3d § 1:6, at 1-16 (2009) (stating that "insurance is a contract by which one party (the insurer), for a consideration that usually is paid in money, either in a lump sum or at different times during the continuance of the risk, promises to make a certain payment, usually of money, upon the destruction or injury of `something' in which the other party (the insured) has an interest"); see also Kenneth J. Arrow, Insurance, Risk andResource Allocation (1965), reprinted in 4 Collected Papers ofKenneth J. Arrow: The Economics of Information, 77, 78 (1984). Indeed, the risk assumed by GTE RE under the Odyssey Treaties is the responsibility to reimburse the Odyssey Insureds for, or indemnify them against, covered claims and legal fees *Page 18
incurred in defending those claims, up to the treaties' monetary cap.17 See Couch on Insurance
3d § 1:6, at 1-17 (stating that another common definition of insurance is "a contract to pay a sum of money upon the happening of a particular event or contingency"). Put simply, the Odyssey Insureds contracted for the payment of money, and under the Commutation Plan, that is exactly the benefit they will receive.See Mar. 16, 2011 Hearing Tr. 84; see also FaitouteIron Steel Co. v. City of Asbury Park,
This is particularly true where, as here, the Odyssey Insureds have failed to establish beyond a reasonable doubt that the actuarial-based payout will, as a matter of fact, be less than *Page 19 their recovery if GTE RE remained in run-off. Frankly, the evidence before the Court is simply insufficient to establish with any certainty that the Odyssey Insureds indemnification rights would be substantially impaired by the Commutation Plan. Although the Commutation Plan states that "there is a risk that [creditors] may ultimately receive less . . . than they would have received had [GTE RE's] business been run off in the traditional way," it also provides that "given the Composite Reserve methodology . . . used in . . . estimating [creditor's claims], [creditors] potentially may receive more . . . than they would otherwise have received had [GTE RE's] business been run off in the traditional way."See Commutation Plan at 13.
Similarly, in his rebuttal actuarial report, GTE RE's expert, Michael Toothman (Toothman), stated:
"[Although] [u]nder the Commutation Plan . . . the losses covered under the reinsurance contract will now be the responsibility of [the Odyssey Insureds,] [t]hese losses may ultimately be either more than the Commutation Payment or less than the Commutation Payment. . . . [I]t is not clear whether [the Odyssey Insureds'] financial positions will ultimately turn out to be more favorable or less favorable." Toothman Rebuttal Actuarial Report 4-5.
Toothman further explained that the composite reserve figure, used as a starting point for determining the payout to each creditor, "include[d] at least two assumptions that appear[ed] to be very conservative, thereby reducing the possibility that [the Odyssey Insureds] would be adversely affected by the Plan."Id. at 7; see also Mar. 16, 2011 Hearing Tr. 83. In particular, by using U.S. Treasury Strip rates — rates below the 3.5% used by the Odyssey Insureds to discount a portion of their own reserves on their financial statements — to discount the present value of future payouts, GTE RE has ensured that the composite reserve methodology will result in high *Page 20 payouts. Id. Likewise, the survival ratio18 factor used in the composite reserve methodology is not only conservative, but significantly greater than the ratio used by the Odyssey Insureds.Id. Under the Commutation Plan,
"the survival ratio of 25.7 years used to calculate the Composite Reserve is much greater than the survival ratio for asbestos and environmental-related liabilities used by [the Odyssey Insureds]. The survival ratio used by [the Odyssey Insureds] is seven years for asbestos and environmental liabilities combined, eight years for the asbestos-related liabilities and three years for the environmental-related liabilities. [However], a reserve based on survival ratio in excess of 25 will provide a much higher Commutation Payment than would be the case if a survival ratio of seven has been used." Id.
Moreover, this Court is bound by the well-established precedent of our Supreme Court. On several occasions, our Supreme Court has declined to find a substantial impairment of contractual rights where the party raising a Contract Clause challenge failed to provide evidence of definite or actual impairment. See,e.g., Retired Adjunct Professors,
Similarly, in Nonnenmacher, the Warwick City Council passed an ordinance setting the pension benefits of all permanent firefighters placed on the pension list as a result of a service-related *Page 21
injury to 66 2/3% of their highest salary, and limiting recovery in those instances where a firefighter earned additional income from other employment. See
The Court also finds DEPCO particularly instructive. InDEPCO, our Supreme Court held that a statute altering the priority of creditor's claims — even though it exposed some creditors to the risk that they would never recover — did not violate the Contract Clause. See
Accordingly, here, the Court finds that the mere fact that the acceleration of GTE RE's payments under the Commutation Plan may expose the Odyssey Insureds to some risk that those payments will amount to less than their actual claims, does not constitute substantial impairment of the obligations under the Odyssey Treaties and is insufficient to violate the Contract Clause. Although the Odyssey Insureds contend that under Southern Cal. Gas Co. v. Cityof Santa Ana, they need not make an actual showing that the Commutation Plan will cause substantial *Page 22
impairment, the Court finds the Odyssey Insureds' reliance thereon to be unwarranted. See
Therefore, where, as here, it is neither clear nor certain that the Commutation Plan will impair the Odyssey Insureds' rights, the Court finds that an actuarial-based estimated payout of the Odyssey Insureds' present and future claims is not a substantial impairment. Under the circumstances, simply stating that the Commutation Plan may provide for a different payout than originally contracted for is simply insufficient to rise to the level of substantial impairment.
In connection with the arbitration and choice of law provisions, the Restructuring Act, Reg. 68, and the Commutation Plan: (1) prevent any legal or arbitration proceedings from being commenced or continued in order to obtain payment or establish the existence or amount of a claim; (2) provide that the Commutation Plan's dispute resolution procedures trump any dispute resolution procedures in the Odyssey Treaties; (3) require that the Commutation Plan be governed by, and construed in accordance with, the laws of Rhode Island; and (4) grant this Court with the exclusive jurisdiction to hear and determine any suit, action, or proceeding, and to settle any dispute which may arise in connection with the Commutation Plan. Despite these alterations, the Court finds the Supreme Court's analysis in City of El Paso to be instructive. In City of El Paso, the Supreme Court held that a statute eliminating an unlimited right to cure defaults in certain contracts did not substantially impair rights because the particular clause at issue was "not the central undertaking" of the contracts, and the Court did not believe that "the buyer was substantially induced to enter into these contracts on the basis" of that particular clause. See
Even if the Court were to assume that these provisions were a central undertaking or substantial inducement, upon a review of the Commutation Plan, the Court remains convinced that any impairment that may result from their alteration would not be substantial. The Odyssey Insureds object to the substitution of the Odyssey Treaties' tri-partite arbitration provision with the Commutation Plan's single arbitrator provision. However, a review of the Commutation Plan's adjudicatory procedures reveals, that while the alteration may be an impairment, it certainly is not substantial. Rather, the adjudicatory procedures delineated in the Commutation Plan directly address the Odyssey Insureds' concerns over an adjudicator handpicked by GTE RE. Indeed, the Commutation Plan provides the Odyssey Insureds with a mechanism by which to challenge an adjudicator who may have a conflict of interest in relation to a disputed claim, and then seek the appointment of an alternate by agreement or by appointment of this Court. See Commutation Plan § 3.6.8.
Furthermore, despite the alteration, the Commutation Plan allays the risk of any bias or impairment by affording the Odyssey Insureds with the right to appeal the adjudicator's decision to this Court.Id. § 3.6.11. On appeal, the Court is directed to
"determine the standard of review applicable to any legitimate appeal from any of the Commutation Plan Adjudicator's decisions consistent with standards of review following the determination of a dispute by an arbitrator or panel of arbitrators as provided by the Rhode Island Administrative Procedures Act, [G.L. 1956] §42-35-15 (g), the Federal Arbitration Act or similar statute." Id.
Therefore, under the Commutation Plan, this Court is expressly empowered to review the adjudication procedure for "evident partiality" and to serve as the final arbiter of any dispute.See
Likewise, although the Commutation Plan alters the Odyssey Insureds' choice of law by designating Rhode Island law as the governing law, the Court is of the opinion that, under the circumstances, such an impairment is insufficient to amount to a substantial impairment. Here, although the Commutation Plan provides that Rhode Island law shall govern any dispute in connection with the Commutation Plan, nothing in the plan
"shall affect the validity of any other provisions determining governing law and jurisdiction as between the GTE RE and any of its [creditors] whether contained in any contract or otherwise and not relating to any dispute arising out of the Explanatory Statement or any provisions of the Commutation Plan or any action or omission thereunder or in connection with the administration of the Commutation Plan." See Commutation Plan § 10.4.
Accordingly, even if the Court were to assume that the choice of law provision was a substantial inducement for the contracting parties, the alteration of the choice of law provision is only directed at disputes arising out of the Commutation Plan, and New York law still governs the interpretation and application of the Odyssey Treaties. Therefore, the Court finds that the parties' choice of law has not been negated, and the alteration is not a substantial impairment.
The Odyssey Insureds also argue that the Restructuring Act and Commutation Plan impair their contractual rights by fundamentally changing the Odyssey Treaties from bilateral agreements to multilateral agreements. The Court, however, is not persuaded that by allowing a class of creditors to vote on whether or not to approve the Commutation Plan, the Restructuring Act and Commutation Plan convert the Odyssey Treaties from bilateral to multilateral contracts. Despite the creditor vote, the Odyssey Treaties remain contracts between the Odyssey Insureds and GTE RE. Furthermore, regardless of the manner in which the Commutation Plan is approved, the procedure for determining, collecting, and disputing claims is neither subject to, nor contingent upon, the other creditors, but rather, it remains between the Odyssey Insureds and *Page 26 GTE RE. Consequently, the Court finds that the creditor vote does not change the nature of, or substantially impair, the rights of the parties under the Odyssey Treaties.
Here, Bermuda law provides a point of reference to determine the parties' expectations because, at the time the Odyssey Treaties were negotiated and finalized, GTE RE was domiciled *Page 27
in Bermuda and had all the powers granted to a Bermuda corporation under the Bermuda Companies Act. See Blaisdell,
"(1) Where a compromise or arrangement is proposed between a company and its creditors or any class of them or between a company and its members or any class of them, the Court may, on the application in a summary way of the company or of any creditor or member of the company, or, in the case of a company being wound up, of the liquidator, order a meeting of the creditors or class of creditors, or of the members of the company or class of members, as the case may be, to be summoned in such a manner as the Court directs."
Hence, by the very terms of the Companies Act, it is clear that as early as July 14, 1975, Bermuda had legislation in place providing for schemes of arrangement between Bermuda domiciled companies and their creditors. See Bell Aff. ¶¶ 5, 12, 14.
The Odyssey Insureds contend that because Bermuda's Companies Act was not used by a solvent insurance company to run-off its business until the mid-1990s, 20 such a development could not have been part of the parties' reasonable expectations in 1980-81. The Court, *Page 28
however, is simply not persuaded. Even though the first solvent scheme of arrangement did not occur until the 1990s, relevant portions of Bermuda's Companies Act are drawn from, and identical to, prior English law, which has been applied to solvent companies since at least 1917.21 Id. ¶¶ 3, 6-9; see alsoIn re Guardian Assurance Company, 1917 1 Ch 431, 448;Scottish Lion Ins. Co. Ltd. v. Goodrich Corp., [2010] S.C. 349, 364 ¶ 43 (affirming that "[t]here is nothing in [England's Companies Act of 1907] nor in its descendants (down to and including Pt 26 of the Companies Act 2006) to suggest that applications for sanction of a `solvent scheme' are in principle to be dealt with differently from those where the company is insolvent or on the verge of insolvency"). Further, the Court finds that the 1975 Act, by its very terms, applies to both solvent and insolvent companies.See Bell Aff. ¶ 8. The 1975 Act applies both "[w]here a compromise or arrangement is proposed between a company and its creditors . . ." and "in the case of a company being wound up."See 1975 Act § 2. Therefore, in view of this legislative and legal landscape, the Court finds that any party entering into a contract with a Bermuda company after 1975 should be deemed to have reasonably expected that the company could enter into a solvent scheme of arrangement with its creditors. SeeCanada S. Ry. Co v. Gebhard,
The Odyssey Insureds also assert that the Court should not look to the status of Bermuda law, but rather to Rhode Island, as the state that passed the statute at issue. However, even assuming,arguendo, that the Odyssey Insureds are correct, given the status of the law and highly regulated nature of commercial insurance in Rhode Island, the Court finds that the impairment was similarly foreseeable. Indeed, it is generally well-settled that the insurance industry has "historically been the subject of economic regulation." Boneta v. Fernandez,
Moreover, the fact that Rhode Island's pre-existing regulations do not directly address the particular subject matter of the Restructuring Act is of no moment to the Court. It is well settled that to be within a party's reasonable expectations, the new regulation need not be precisely the same as previous regulations. See Energy Reserves,
Consequently, in light of Bermuda's legal and legislative framework, the Court finds that the actions taken by the State under the Restructuring Act were reasonably foreseeable. Moreover, given the highly regulated nature of the commercial insurance industry, the Court finds that the contractual alterations and modifications authorized by the Restructuring Act and Commutation Plan should have been within the reasonable expectations of the parties. For all of the reasons set forth herein, the Court finds that the Restructuring Act and Commutation Plan do not substantially impair the Odyssey Insureds' contractual rights. *Page 31
As the Supreme Court declared in Allied Structural Steel,
"`[i]t is settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which, in its various ramifications, is known as the police power, is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals.'" See438 U.S. at 241 ,98 S. Ct. at 2721 (quoting Manigault v. Springs,199 U.S. 473 ,480 ,26 S. Ct. 127 ,130 (1905)).
However, the Supreme Court has cautioned that the state's police power is not unlimited. See Allied Structural Steel,
It is against this background that the Court recognizes the importance of allowing states the freedom to legislate on social and economic matters of importance to their citizens and to modify the law to meet changing needs and conditions. SeeLefrancois v. State of R.I.,
In this case, it is clear from Governor Almond's Executive Order that the underlying goal of the Task Force was to stimulate Rhode Island's economy by attracting segments of the insurance industry to the State. According to Attorney General Kilmartin, the purpose of the Restructuring Act is to "provide a mechanism to bring the solvent runoff process within the *Page 33 already highly regulated insurance industry, resulting in timely payments to creditors, allowing businesses to change their business model when they deem necessary, and to do so in an expeditious and fair way." See Attorney General Mem. 2-3.
Likewise, the DBR asserts that the Restructuring Act: (1) provides certainty of payment to creditors; (2) avoids a lengthy run-off and limits ongoing administrative costs, adverse claim development, and deteriorating reinsurance collections; (3) promotes fairness in result and prevents unfair preferences amongst creditors; (4) reduces the risk of loss of information interfering with claim processing; (5) allows for more efficient deployment of capital to non-runoff operations; and (6) enhances regulatory oversight over the run-off process.24 See DBR Mem. 10-12. In turn, the DBR contends that the Restructuring Act not only protects creditors domiciled in Rhode Island from the harms of insurance companies in run-off, but also achieves Governor Almond's original objective of making Rhode Island an attractive location for insurance companies — whether or not they are in run-off — and encouraging economic growth and increased investment in industry and jobs. Id.
Moreover, despite the Odyssey Insureds' best efforts, the Court is not persuaded that the Restructuring Act was intended to advance only one party's private interests. See Blue Cross/BlueShield,
Indeed, it is undeniable that economic concerns represent a valid public interest in Rhode Island. See, e.g.,Nonnenmacher,
In light of the foregoing, the Court is satisfied that the Restructuring Act is a legitimate legislative enactment which addresses the State's economic concerns and protects commercial insurance creditors against the harms of run-off. Therefore, the Court is bound to pay due deference to its co-equal branch of government, the General Assembly, and is satisfied that even if the Restructuring Act substantially impaired contractual rights, any impairment is justified by a legitimate public purpose.
Generally, where the affected contract is a private one, "[a]s is customary in reviewing economic and social regulation, . . . courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure."25Id. at 22-23,
Upon a review of the record, the Court is satisfied that the State has done more than merely "mouth the vocabulary of the public weal in order to reach safe harbor." See McGrath v. Rhode IslandRet. Bd.,
Indeed, in response to Governor Almond's directive, the General Assembly enacted a statutory scheme which not only makes Rhode Island an attractive domicile for insurance companies, but also promotes the "[a]ccelerated release of capital to shareholders . . . allowing for more efficient deployment of capital to non-run-off operations" and "attract[s] capital to the industry . . . creat[ing] an active market for investment in run-off companies." See National Association of Insurance Commissioners, AlternativeMechanisms for Troubled Companies: An NAIC WhitePaper, at 13 (Feb. 2010). Although the Restructuring Act may admittedly attract insurance companies who will seek to quickly cease operations at the end of the commutation, the future availability of a "reasonable exit mechanism" will also entice and attract insurance companies not currently in run-off or immediately seeking commutation. Id. It follows therefore, that in both these instances, the Restructuring Act will encourage economic growth and result in increased investment in industry and jobs within the State. See DBR Mem. 10-12; see also DBR Reply 6. *Page 37
Moreover, the Restructuring Act is not a drastic measure, as it provides sufficient safeguards to protect the parties' rights and interests.26 As explained by the DBR and GTE RE's experts: (1) the DBR must review and approve any proposed commutation plan before it can be submitted to the Court; (2) the commutation process is governed by a dispute resolution provision which incorporates the review standards of the Federal Arbitration Act and protects against instances of partiality; (3) the Restructuring Act requires that majorities of voting creditors and supermajorities of voting creditors by value approve a proposed commutation plan; (4) the Restructuring Act requires this Court to determine whether a proposed commutation plan would "materially adversely affect" the interests of objecting creditors; (5) during the implementation period, the Restructuring Act requires quarterly reports regarding implementation and administration of the Commutation Plan to this Court and to the DBR; and (6) the assumptions used for calculating the composite reserve are more conservative than even those used by the Odyssey Insureds and will lead to high actuarial-based early payouts.
In light of the foregoing, the Court finds that "Rhode Island's [Restructuring Act] provides the best domestic resolution process yet devised for solvent `run-offs.'" See John J. Partridge,Rhode Island's Solvent Run-Off Statute 2. As previously articulated, the Restructuring Act is a means to address economic issues endemic to the insurance industry and Rhode Island as a whole. See Exxon Corp. v. Eagerton,
Due process prohibits legislation that retroactively and unreasonably impairs substantive rights. See Landgraf v.USI Film Prods.,
It is well settled, however, that "[e]conomic or social welfare legislation carries a presumption of validity and will be upheld against substantive due process challenges so long as the law bears rational relation to legitimate governmental objectives."Hargreaves v. Reis,
Moreover, our Supreme Court has explained that "[a]lthough a statute has retroactive effect that implicates property rights, it does not necessarily follow that the statute is unconstitutional."Brown,
Accordingly, the Court must first determine whether the Restructuring Act is indeed retroactive in nature. A statute is unconstitutionally retroactive "[o]nly when the adverse effects of the statute are activated by events that occurred before the effective date of its enactment." Rhode Island Insurers'Insolvency Fund v. Leviton Mfg. Co., Inc.,
Even if the Restructuring Act were interpreted as being a retroactive legislation, having already passed constitutional muster under the Contract Clause, 28 the statute would unquestionably survive a due process challenge. See Liberty Mut.,
Furthermore, it appears that the Odyssey Insureds also allege that the Restructuring Act and Commutation Plan's procedures are fundamentally unfair. While it is not entirely clear whether the Odyssey Insureds have raised a procedural due process challenge, the Court will nevertheless address the issue. Procedural due process, which is said to mean fair procedure, is a flexible standard, which varies depending on the nature of the interest affected and the circumstances of the deprivation. See Gorham v. Universityof R.I.,
"The private interests affected by the state's existing procedures, risk of erroneous deprivation under them, probable utility of additional or substitute procedures and the government's interest in maintaining existing procedures, keeping in mind financial and administrative burdens of additional or substitute procedures." Id.
However, as with claims under substantive due process, a party raising a procedural due process challenge must overcome the presumption favoring the Legislature's use of its police powers.See Hoffman v. City of Warwick,
Here, it is undisputed that the Odyssey Insureds possess a property interest created by contract. Nevertheless, the Court finds that the Restructuring Act does not violate the Odyssey Insureds' procedural due process rights. As previously articulated, the Restructuring Act provides for adequate notice and a reasonable and fair mechanism by which to commute the present and future claims of a solvent insurance company's creditors. Indeed, the Court is satisfied that by requiring that any proposed commutation plan be reviewed and approved by the DBR, the creditor-policyholders, and this Court, the Legislature has provided for sufficient safeguards to protect the property and due process interests of any party subjected to the provisions of the Restructuring Act. Additionally, as set forth above, 29 the Court finds that the Commutation Plan not only provides sufficient procedures by which to dispute actions taken *Page 43 during the commutation process, but also protects against an adjudicator's partiality. See §§ 3.6.8 3.6.11.
Lastly, the Odyssey Insureds seem to allege that applying the Restructuring Act to them would violate due process because they lack a sufficient connection to the State. The Odyssey Insureds rely on Phillips Petroleum Co. v. Shutts, to establish that due process prohibits a state from "abrogat[ing] the rights of parties beyond its borders having no relation to anything done or to be done within them." See
Prevailing counsel may present an order consistent herewith which shall be settled after due notice to counsel of record.
"that laws be implemented to regulate the conduct of all run-offs. These laws should ensure that the process is conducted with transparency and fairness, and with appropriate levels of regulator oversight. They should also provide insurers that have commercial policyholders an opportunity to use court proceedings to expeditiously wind up their business with the consent of their policyholders." Id. at 4.
"(1) by first class mail and facsimile to the insurance regulator in each jurisdiction in which the Applicant is doing business; (2) by first class mail to all guarantee associations; (3) pursuant to the notice provisions of reinsurance agreements or, where an agreement has no provision for notice, by first class mail to all reinsures of the Applicant; (4) by first class mail to all insurance agents or insurance producers of the Applicant; (5) by first class mail to all persons known or reasonably expected to have claims against the Applicant including all policyholders, at their last known address as indicated by the records of the Applicant; (6) by first class mail to federal, state, and local government agencies and instrumentalities as their interests may arise; and (7) by publication in a newspaper of general circulation in the state in which the Applicant has its principal place of business and in any other locations that the court overseeing the proceeding deems appropriate." Sec.27-14.5-3 (a).
"If notice is given in accordance with this section, any orders under this chapter shall be conclusive with respect to all claimants and policyholders, whether or not they received it." Sec.
"[t]he severity of an impairment of contractual obligations can be measured by the factors that reflect the high value the Framers placed on the protection of private contracts. Contracts enable individuals to order their personal and business affairs according to their particular needs and interests. Once arranged, those rights and obligations are binding under the law, and the parties are entitled to rely on them." Allied Structural Steel,438 U.S. at 245 ,98 S. Ct. at 2723 .
"Subject to the provisions of any acts which have been passed in any way altering, amending or modifying the same, and of this Act, the common law, the doctrines of equity, and the Acts of Parliament of general application which were in force in England at the date when these Islands were settled, that is to say, on the 11th day of July 1612 shall be, and are hereby declared to be, in force within Bermuda."
City of Pawtucket v. Sundlun ( 1995 )
in-re-workers-compensation-refund-western-national-mutual-insurance ( 1995 )
Faitoute Iron & Steel Co. v. City of Asbury Park ( 1942 )
Canada Southern Railway Co. v. Gebhard ( 1883 )
Pension Benefit Guaranty Corporation v. RA Gray & Co. ( 1984 )
Metropolitan Life Insurance v. Ward ( 1985 )
General Motors Corp. v. Romein ( 1992 )
In Re Board of Directors of Hopewell International Insurance ( 1999 )
Lefrancois v. Rhode Island ( 1987 )
United States Trust Co. of NY v. New Jersey ( 1977 )
Keystone Bituminous Coal Assn. v. DeBenedictis ( 1987 )
McGrath v. Rhode Island Retirement Board ( 1996 )
Delta Holdings, Inc. v. National Distillers and Chemical ... ( 1991 )
Newport Court Club Associates v. Town Council of the Town ... ( 2002 )
Cleveland Board of Education v. Loudermill ( 1985 )
Energy Reserves Group, Inc. v. Kansas Power & Light Co. ( 1983 )