EXHIBIT 10(cr)
Blanket Retrocession Agreement
Effective: October 1, 2003
issued to
Dorinco Reinsurance Company
Midland, Michigan
by
American Hallmark Insurance Company of Texas
Dallas, Texas
Table of Contents
Article Page
I Business Reinsured 1
II Commencement and Termination 1
III Territory 2
IV Exclusions 2
V Concurrency of Conditions 3
VI Retention and Limit 3
VII Definitions 5
VIII Loss Notices and Settlements 5
IX Salvage and Subrogation 6
X Reinsurance Premium 6
XI Offset (BRMA 36C) 6
XII Access to Records (BRMA 1D) 6
XIII Liability of the Retrocessionaire 6
XIV Net Retained Lines (BRMA 32B) 7
XV Errors and Omissions (BRMA 14F) 7
XVI Taxes (BRMA 50B) 7
XVII Currency (BRMA 12A) 7
XVIII Unauthorized Retrocessionaires 7
XIX Insolvency 9
XX Arbitration 9
XXI Service of Suit (BRMA 49D) 10
XXII Governing Law (BRMA 71B) 10
XXIII Entire Agreement 11
XXIV Intermediary (BRMA 23A) 11
Blanket Retrocession Agreement
Effective: October 1, 2003
issued to
Dorinco Reinsurance Company
Midland, Michigan
(hereinafter referred to as the "Reinsurer")
by
American Hallmark Insurance Company of Texas
Dallas, Texas
(hereinafter referred to as the "Retrocessionaire")
Article I - Business Reinsured
A. By this Agreement the Reinsurer obligates itself to retrocede to the
Retrocessionaire and the Retrocessionaire obligates itself to accept a
part of the Reinsurer's share in the interests and liabilities of the
"Reinsurer" as respects subject business (as hereinafter defined) under
the Quota Share Reinsurance Agreement, effective October 1, 2003,
(hereinafter referred to as the "Original Agreement") made and entered
into by and among the Reinsurer, Old American County Mutual Fire
Insurance Company (hereinafter referred to as the "Issuing Company")
and American Hallmark General Agency, Inc., Dallas, Texas (hereinafter
referred to as the "General Agent"). A copy of the Original Agreement
is attached to and forms part of this Agreement.
B. "Subject business" as used herein shall mean the losses retroceded
hereunder as respects the "loss corridor" provisions set forth in
paragraph A of Article VI.
Article II - Commencement and Termination
A. This Agreement shall become effective at 12:01 a.m., Central Standard
Time, October 1, 2003, with respect to losses under policies allocated to
underwriting years commencing at or after that time and date, and shall
continue in force thereafter until the Original Agreement is terminated.
This Agreement shall terminate automatically upon termination of the
Original Agreement.
B. Unless otherwise mutually agreed, reinsurance hereunder on subject
business in force on the effective date of termination shall remain
in full force and effect until expiration, cancellation or next premium
anniversary of such subject business, whichever first occurs, but in
no event beyond 12 months following the effective date of termination,
subject, however, to regulatory requirements regarding policy
cancellations and non-renewals.
C. "Underwriting year" as used in this Agreement shall mean the period from
12:01 a.m., Central Standard Time, October 1, 2003 until 12:01 a.m.,
Central Standard Time, October 1, 2004, and each subsequent 12-month
period (or portion thereof if the Original Agreement terminates prior to
the end of a 12-month underwriting year) shall be a separate underwriting
year. All premiums and losses from policies ceded under the Original
Agreement and allocated to an underwriting year shall be credited or
charged, respectively, to such underwriting year, regardless of the date
said premiums earn or such losses occur. It is understood that a policy
will be allocated to the underwriting year which is in effect as of:
1. The effective date of such policies, with respect to all new
policies; and
2. The renewal date of such policies, with respect to term policies with
renewals of one year or less.
Such policies shall remain in the same underwriting year, as originally
allocated, until the next renewal date or premium anniversary date, at
which time such policies shall be allocated to the underwriting year in
effect as of the date provided above. The term of any policy issued with
respect to subject business hereunder shall not exceed 12 months.
Article III - Territory
The territorial limits of this Agreement shall be identical with those of
the Original Agreement.
Article IV - Exclusions
A. This Agreement does not apply to and specifically excludes the following:
1. Any Automobile business not classified as a Private Passenger
Automobile.
2. Garagekeepers Legal Liability.
3. Vendors Single Interest.
4. Nuclear risks as defined in the "Nuclear Incident Exclusion Clause -
Physical Damage - Reinsurance" and the "Nuclear Incident Exclusion
Clause - Liability - Reinsurance" attached to and forming part of
this Agreement.
5. Liability as a member, subscriber or reinsurer of any Pool, Syndicate
or Association, but this exclusion shall not apply to Assigned Risk
Plans or similar plans.
6. Mobile homes.
7. Automobile dealers.
8. Automobile Liability with respect to any vehicle used principally as:
a. A taxicab, public or livery conveyance or bus, it being understood
that this exclusion does not apply to school or church buses;
b. An ambulance, fire department or law enforcement vehicle;
c. A racing or exhibition vehicle.
9. Loss or damage caused by or resulting from war, invasion,
hostilities, acts of foreign enemies, civil war, insurrection,
military or usurped power, martial law or confiscation by order of
any government of public authority, but not excluding loss or damage
which would be covered under a policy or standard form containing a
standard War Exclusion Clause.
10. Loss or damage or cost or expenses arising from seepage and/or
pollution and/or contamination, other than contamination from smoke
damage. Nevertheless, this exclusion does not preclude any payments
of the cost of the removal of debris of property damage by a loss
otherwise covered hereunder, but subject always to a limit of 25.0%
of the Issuing Company's Property business loss under the original
policy.
B. If any subject business falling within the scope of one or more of the
exclusions is assigned to the Issuing Company under an Assigned Risk
Plan, such exclusion(s) shall not apply, it being understood and agreed
that the limits of liability extended by the Issuing Company as respects
such policies shall not exceed the minimum statutory limits of liability
prescribed in such Assigned Risk Plan.
C. If the Reinsurer is bound, without the knowledge and contrary to the
instructions of the Reinsurer's supervisory underwriting personnel,
on any subject business falling within the scope of one or more of the
exclusions set forth in this Article, these exclusions shall be suspended
with respect to such subject business until 30 days after an underwriting
supervisor of the Reinsurer acquires knowledge of such subject business.
Article V - Concurrency of Conditions
This Agreement shall follow in all respects the terms and conditions of
the Original Agreement (including addenda thereto when accepted by the
Retrocessionaire), provided the terms and conditions of the Original
Agreement are not inconsistent with the terms and conditions of this
Agreement. The Reinsurer agrees to transmit all notices and information
pertaining to the subject matter of this Agreement as promptly as possible
after receipt thereof.
Article VI - Retention and Limit
A. The Retrocessionaire shall be liable for 100% of the amount by which
losses incurred exceed 65.5% of premiums earned under the Original
Agreement for each underwriting year hereunder. However, the
Retrocessionaire's liability under this paragraph shall not exceed
17.5% of premiums earned for each underwriting year hereunder and shall
hereinafter be referred as the "loss corridor." The Reinsurer shall
calculate, report and make any adjustments to the loss corridor in
conjunction with the provisions under the Premium and Commission Article
under the Original Agreement.
B. As respects the liability of the Retrocessionaire for ultimate net
loss under the loss corridor, including incurred but not reported loss
reserves (hereinafter referred to as "IBNR"), the Retrocessionaire or
the General Agent, on behalf of the Retrocessionaire, agree to fund the
foregoing amounts by securing an irrevocable letter of credit containing
an "evergreen clause" from a federally chartered or mutually acceptable
bank, or other securities subject to the approval of the Reinsurer.
C. Any funding requirements as respects the loss corridor will be completed
within 45 days after the end of each underwriting year.
D. In the event the Retrocessionaire's policyholders' surplus drops to the
levels shown below, in addition to the funding requirements set forth in
paragraph B above, the Retrocessionaire or the General Agent, on behalf
of the Retrocessionaire, will secure additional funding (based on
percentages as set forth below of the Retrocessionaire's limit of
liability under the loss corridor), by an irrevocable letter of credit
containing an "evergreen clause" from a federally chartered or mutually
acceptable bank, or other securities subject to the approval of the
Reinsurer:
Reinsurer's Policyholders' Additional
Surplus Funding
$7,500,000 to $6,500,000 5.0%
$6,500,000 to $5,500,000 10.0%
$5,500,000 and below 17.5%
Such additional funding shall be required to be secured immediately,
notwithstanding the Retrocessionaire's liability under the loss corridor,
and shall be the greater of the Retrocessionaire's liability under the
loss corridor or the funding requirements set forth in this paragraph D.
E. "Losses incurred" as used herein shall mean the balance of the following,
all as respects losses and loss adjustment expenses ceded under the
Original Agreement:
1. Ceded losses paid and the allowance for loss adjustment expenses as
of the effective date of calculation; plus
2. The ceded reserves for losses outstanding as of the effective date of
calculation; plus
3. As respects the second and each subsequent agreement year under the
Original Agreement, plus the debit or minus the credit from the
preceeding agreement year under the Original Agreement.
As respects the funding requirements for the loss corridor set forth
above, losses incurred shall include:
1. As respects the first calculation of the loss corridor for the
underwriting year, an amount representing IBNR equal to 7.5% of the
premiums earned for policies allocated to the underwriting year;
2. As respects the second calculation of the loss corridor for the
underwriting year, an amount representing IBNR equal to 3.0% of the
premiums earned for policies allocated to the underwriting year;
3. As respects the third and each subsequent calculation of the loss
corridor for the underwriting year, no IBNR shall be included.
F. "Premiums earned" as used herein shall mean ceded net written premiums
allocated to the underwriting year (i.e., net of cancellations and return
premiums), less the unearned portion thereof as of the effective date of
calculation, all as respects premiums ceded under the Original Agreement.
Article VII - Definitions
A. "Ultimate net loss" as used herein is defined as the sum or sums
(including the allowance for loss adjustment expense, as hereinafter
defined) paid or payable by the Reinsurer in settlement of claims and
in satisfaction of judgments rendered on account of claims, after the
deduction of all recoveries and all claims on inuring insurance or
reinsurance, whether collectible or not. Nothing herein shall be
construed to mean that losses under this Agreement are not recoverable
until the Reinsurer's ultimate net loss has been ascertained.
B. "Loss adjustment expense" as used herein shall mean expenses allocable
to the investigation, defense and/or settlement of specific claims,
including litigation expenses, interest on judgments and costs, expenses
and fees resulting from a declaratory judgment or injunctive action
brought by an insured or other person, but not including office expenses
or salaries of the Reinsurer's regular employees. The liability of the
Retrocessionaire for loss adjustment expense hereunder shall equal 10.0%
of premiums earned for the underwriting year.
Article VIII - Loss Notices and Settlements
A. Whenever a loss sustained by the Reinsurer appears likely to result in a
claim hereunder, the Reinsurer shall notify the Retrocessionaire, and the
Retrocessionaire shall have the right to participate in the adjustment of
the loss at its own expense.
B. All loss settlements made by the Reinsurer, provided they are within the
terms of this Agreement, shall be binding upon the Retrocessionaire, and
the Retrocessionaire agrees to pay all amounts for which it may be liable
upon receipt of reasonable evidence of the amount paid (or scheduled to
be paid) by the Reinsurer.
Article IX - Salvage and Subrogation
The Retrocessionaire shall be credited with salvage (i.e., reimbursement
obtained or recovery made by the Reinsurer, less the actual cost, excluding
salaries of officials and employees of the Reinsurer and sums paid to
attorneys as retainer, of obtaining such reimbursement or making such
recovery) on account of claims and settlements involving reinsurance
hereunder. Salvage thereon shall always be used to reimburse the excess
carriers in the reverse order of their priority according to their
participation before being used in any way to reimburse the Reinsurer
for its primary loss.
Article X - Reinsurance Premium
A. As premium for the reinsurance provided hereunder for each underwriting
year, the Reinsurer shall pay the Retrocessionaire 2.0% of the premium's
earned under the Original Agreement for policies allocated to the
underwriting year.
B. Within 60 days after the end of each month, the Reinsurer shall report
the premiums earned under the Original Agreement for the month. The
premium due the Retrocessionaire, at the rate shown in paragraph A, shall
be paid by the Reinsurer with its report. Any adjustments to the premium
paid to the Retrocessionaire for each underwriting year shall be made
within 45 days after 12 months following the end of the underwriting
year.
Article XI - Offset (BRMA 36C)
The Reinsurer and the Retrocessionaire shall have the right to offset any
balance or amounts due from one party to the other under the terms of this
Agreement. The party asserting the right of offset may exercise such right
any time whether the balances due are on account of premiums or losses or
otherwise.
Article XII - Access to Records (BRMA 1D)
The Retrocessionaire or its designated representatives shall have access at
any reasonable time to all records of the Reinsurer which pertain in any way
to this reinsurance.
Article XIII - Liability of the Retrocessionaire
A. The liability of the Retrocessionaire shall follow that of the Reinsurer
in every case and be subject in all respects to all the general and
specific stipulations, clauses, waivers and modifications of the Issuing
Company's policies and any endorsements thereon. However, in no event
shall this be construed in any way to provide coverage outside the terms
and conditions set forth in this Agreement.
B. Nothing herein shall in any manner create any obligations or establish
any rights against the Retrocessionaire in favor of any third party or
any person or persons not party to this Agreement.
Article XXX - Xxx Xxxxxxxx Xxxxx (XXXX 00X)
A. This Agreement applies only to that portion of any policy which the
Reinsurer retains net for its own account, and in calculating the amount
of any loss hereunder and also in computing the amount or amounts in
excess of which this Agreement attaches, only loss or losses in respect
of that portion of any policy which the Reinsurer retains net for its own
account shall be included.
B. The amount of the Retrocessionaire's liability hereunder in respect of
any loss or losses shall not be increased by reason of the inability of
the Reinsurer to collect from any other retrocessionaire(s), whether
specific or general, any amounts which may have become due from such
retrocessionaire(s), whether such inability arises from the insolvency
of such other retrocessionaire(s) or otherwise.
Article XV - Errors and Omissions (BRMA 14F)
Inadvertent delays, errors or omissions made in connection with this
Agreement or any transaction hereunder shall not relieve either party from
any liability which would have attached had such delay, error or omission
not occurred, provided always that such error or omission is rectified as
soon as possible after discovery.
Article XVI - Taxes (BRMA 50B)
In consideration of the terms under which this Agreement is issued, the
Reinsurer will not claim a deduction in respect of the premium hereon when
making tax returns, other than income or profits tax returns, to any state
or territory of the United States of America or the District of Columbia.
Article XVII - Currency (BRMA 12A)
A. Whenever the word "Dollars" or the "$" sign appears in this Agreement,
they shall be construed to mean United States Dollars and all
transactions under this Agreement shall be in United States Dollars.
B. Amounts paid or received by the Reinsurer in any other currency shall be
converted to United States Dollars at the rate of exchange at the date
such transaction is entered on the books of the Reinsurer.
Article XVIII - Unauthorized Retrocessionaires
A. If the Retrocessionaire is unauthorized in any state of the United States
of America or the District of Columbia, the Retrocessionaire agrees to
fund its share of the Reinsurer's outstanding loss and loss adjustment
expense reserves (including IBNR) by:
1. Clean, irrevocable and unconditional letters of credit issued and
confirmed, if confirmation is required by the insurance regulatory
authorities involved, by a bank or banks meeting the NAIC Securities
Valuation Office credit standards for issuers of letters of credit
and acceptable to said insurance regulatory authorities; and/or
2. Cash advances; and/or
3. Other securities subject to prior approval by the Reinsurer;
if, without such funding, a penalty would accrue to the Reinsurer on any
financial statement it is required to file with the insurance regulatory
authorities involved. The Retrocessionaire, at its sole option, may fund
in other than cash if its method and form of funding are acceptable to
the insurance regulatory authorities involved and to the Reinsurer.
B. With regard to funding in whole or in part by letters of credit, it
is agreed that each letter of credit will be in a form acceptable to
insurance regulatory authorities involved, will be issued for a term
of at least one year and will include an "evergreen clause," which
automatically extends the term for at least one additional year at each
expiration date unless written notice of non-renewal is given to the
Reinsurer not less than 30 days prior to said expiration date. The
Reinsurer and the Retrocessionaire further agree, notwithstanding
anything to the contrary in this Agreement, that said letters of credit
may be drawn upon by the Reinsurer or its successors in interest at any
time, without diminution because of the insolvency of the Reinsurer or
the Retrocessionaire, but only for one or more of the following purposes:
1. To reimburse itself for the Retrocessionaire's share of losses and/or
loss adjustment expense paid under the terms of the subject business
reinsured hereunder, unless paid in cash by the Retrocessionaire;
2. To reimburse itself for the Retrocessionaire's share of any other
amounts claimed to be due hereunder, unless paid in cash by the
Retrocessionaire;
3. To fund a cash account in an amount equal to the Retrocessionaire's
share of any ceded outstanding loss and loss adjustment expense
reserves (including IBNR) funded by means of a letter of credit which
is under non-renewal notice, if said letter of credit has not been
renewed or replaced by the Retrocessionaire 10 days prior to its
expiration date;
4. To refund to the Retrocessionaire any sum in excess of the actual
amount required to fund the Retrocessionaire's share of the
Reinsurer's ceded outstanding loss and loss adjustment expense
reserves (including IBNR), if so requested by the Retrocessionaire.
In the event the amount drawn by the Reinsurer on any letter of credit is
in excess of the actual amount required for B(1), or B(3), or in the case
of B(2), the actual amount determined to be due, the Reinsurer shall
promptly return to the Retrocessionaire the excess amount so drawn.
Article XIX - Insolvency
A. In the event of the insolvency of the Reinsurer, this reinsurance shall
be payable directly to the Reinsurer or to its liquidator, receiver,
conservator or statutory successor on the basis of the liability of the
Reinsurer without diminution because of the insolvency of the Reinsurer
or because the liquidator, receiver, conservator or statutory successor
of the Reinsurer has failed to pay all or a portion of any claim.
It is agreed, however, that the liquidator, receiver, conservator
or statutory successor of the Reinsurer shall give written notice to
the Retrocessionaire of the pendency of a claim against the Reinsurer
indicating the reinsurance contract reinsured which claim would involve
a possible liability on the part of the Retrocessionaire within a
reasonable time after such claim is filed in the conservation or
liquidation proceeding or in the receivership, and that during the
pendency of such claim, the Retrocessionaire may investigate such claim
and interpose, at its own expense, in the proceeding where such claim is
to be adjudicated, any defense or defenses that it may deem available to
the Reinsurer or its liquidator, receiver, conservator or statutory
successor. The expense thus incurred by the Retrocessionaire shall be
chargeable, subject to the approval of the Court, against the Reinsurer
as part of the expense of conservation or liquidation to the extent of a
pro rata share of the benefit which may accrue to the Reinsurer solely as
a result of the defense undertaken by the Retrocessionaire.
B. It is further understood and agreed that, in the event of the insolvency
of the Reinsurer, the reinsurance under this Agreement shall be payable
directly by the Retrocessionaire to the Reinsurer or to its liquidator,
receiver or statutory successor, except as provided by Section 4118(a)
of the New York Insurance Law or except (1) where this Agreement
specifically provides another payee of such reinsurance in the event of
the insolvency of the Reinsurer or (2) where the Retrocessionaire with
the consent of the original reinsured or reinsureds has assumed such
contract obligations of the Reinsurer as direct obligations of the
Retrocessionaire to the payees under such contracts and in substitution
for the obligations of the Reinsurer to such payees.
Article XX - Arbitration
A. As a condition precedent to any right of action hereunder, in the event
of any dispute or difference of opinion hereafter arising with respect
to this Agreement, it is hereby mutually agreed that such dispute or
difference of opinion shall be submitted to arbitration. One Arbiter
shall be chosen by the Reinsurer, the other by the Retrocessionaire,
and an Umpire shall be chosen by the two Arbiters before they enter
upon arbitration, all of whom shall be active or retired disinterested
executive officers of insurance or reinsurance companies or Lloyd's
London Underwriters. In the event that either party should fail to
choose an Arbiter within 30 days following a written request by the other
party to do so, the requesting party may choose two Arbiters who shall
in turn choose an Umpire before entering upon arbitration. If the two
Arbiters fail to agree upon the selection of an Umpire within 30 days
following their appointment, each Arbiter shall nominate three candidates
within 10 days thereafter, two of whom the other shall decline, and the
decision shall be made by drawing lots.
B. Each party shall present its case to the Arbiters within 30 days
following the date of appointment of the Umpire. The Arbiters shall
consider this Agreement as an honorable engagement rather than merely as
a legal obligation and they are relieved of all judicial formalities and
may abstain from following the strict rules of law. The decision of the
Arbiters shall be final and binding on both parties; but failing to
agree, they shall call in the Umpire and the decision of the majority
shall be final and binding upon both parties. Judgment upon the final
decision of the Arbiters may be entered in any court of competent
jurisdiction.
C. Each party shall bear the expense of its own Arbiter, and shall jointly
and equally bear with the other the expense of the Umpire and of the
arbitration. In the event that the two Arbiters are chosen by one party,
as above provided, the expense of the Arbiters, the Umpire and the
arbitration shall be equally divided between the two parties.
D. Any arbitration proceedings shall take place at a location mutually
agreed upon by the parties to this Agreement, but notwithstanding the
location of the arbitration, all proceedings pursuant hereto shall be
governed by the law of the state in which the Reinsurer has its principal
office.
Article XXI - Service of Suit (BRMA 49D)
(Applicable if the Retrocessionaire is not domiciled in the United States of
America, and/or is not authorized in any State, Territory or District of the
United States where authorization is required by insurance regulatory
authorities)
A. It is agreed that in the event the Retrocessionaire fails to pay any
amount claimed to be due hereunder, the Retrocessionaire, at the request
of the Reinsurer, will submit to the jurisdiction of a court of competent
jurisdiction within the United States. Nothing in this Article
constitutes or should be understood to constitute a waiver of the
Retrocessionaire's rights to commence an action in any court of competent
jurisdiction in the United States, to remove an action to a United States
District Court, or to seek a transfer of a case to another court as
permitted by the laws of the United States or of any state in the United
States.
B. Further, pursuant to any statute of any state, territory or district of
the United States which makes provision therefor, the Retrocessionaire
hereby designates the Superintendent, Commissioner or Director of
Insurance or other officer specified for that purpose in the statute, or
his successor or successors in office, as its true and lawful attorney
upon whom may be served any lawful process in any action, suit or
proceeding instituted by or on behalf of the Reinsurer or any beneficiary
hereunder arising out of this Agreement.
Article XXII - Governing Law (BRMA 71B)
This Agreement shall be governed by and construed in accordance with the
laws of the State of Texas.
Article XXIII - Entire Agreement
This Agreement contains the entire agreement between the parties as to
the subject matter hereof. No waiver, modification, variation, change or
amendment to this Agreement shall be binding on either party unless reduced
to writing and signed by a duly authorized officer of each party.
Article XXXX - Xxxxxxxxxxxx (XXXX 00X)
Xxxxxxxx Inc. is hereby recognized as the Intermediary negotiating this
Agreement for all business hereunder. All communications (including but not
limited to notices, statements, premium, return premium, commissions, taxes,
losses, loss adjustment expense, salvages and loss settlements) relating
thereto shall be transmitted to the Reinsurer or the Retrocessionaire
through Xxxxxxxx Inc., 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000.
Payments by the Reinsurer to the Intermediary shall be deemed to constitute
payment to the Retrocessionaire. Payments by the Retrocessionaire to the
Intermediary shall be deemed to constitute payment to the Reinsurer only
to the extent that such payments are actually received by the Reinsurer.
In Witness Whereof, the parties by their duly authorized representatives
have executed this Agreement as of the dates undermentioned at:
Midland, Michigan,this ______ day of ________________ in the year ________.
__________________________________________________________
Dorinco Reinsurance Company
Dallas, Texas,this ______ day of ___________________ in the year _________.
__________________________________________________________
American Hallmark General Agency, Inc.
Dallas, Texas,this ______ day of ___________________ in the year _________.
__________________________________________________________
American Hallmark Insurance Company of Texas
Nuclear Incident Exclusion Clause - Physical Damage - Reinsurance (U.S.A.)
1. This Reinsurance does not cover any loss or liability accruing to the
Reassured, directly or indirectly and whether as Insurer or Reinsurer,
from any Pool of Insurers or Reinsurers formed for the purpose of
covering Atomic or Nuclear Energy risks.
2. Without in any way restricting the operation of paragraph (1) of this
Clause, this Reinsurance does not cover any loss or liability accruing
to the Reassured, directly or indirectly and whether as Insurer or
Reinsurer, from any insurance against Physical Damage (including business
interruption or consequential loss arising out of such Physical Damage)
to:
I. Nuclear reactor power plants including all auxiliary property on the
site, or
II. Any other nuclear reactor installation, including laboratories
handling radioactive materials in connection with reactor
installations, and "critical facilities" as such, or
III. Installations for fabricating complete fuel elements or for
processing substantial quantities of "special nuclear material,"
and for reprocessing, salvaging, chemically separating, storing
or disposing of "spent" nuclear fuel or waste materials, or
IV. Installations other than those listed in paragraph (2) III above
using substantial quantities of radioactive isotopes or other
products of nuclear fission.
3. Without in any way restricting the operations of paragraphs (1) and
(2) hereof, this Reinsurance does not cover any loss or liability
by radioactive contamination accruing to the Reassured, directly or
indirectly, and whether as Insurer or Reinsurer, from any insurance on
property which is on the same site as a nuclear reactor power plant or
other nuclear installation and which normally would be insured therewith
except that this paragraph (3) shall not operate
(a) where Reassured does not have knowledge of such nuclear reactor power
plant or nuclear installation, or
(b) where said insurance contains a provision excluding coverage
for damage to property caused by or resulting from radioactive
contamination, however caused. However on and after 1st January 1960
this sub-paragraph (b) shall only apply provided the said radioactive
contamination exclusion provision has been approved by the
Governmental Authority having jurisdiction thereof.
4. Without in any way restricting the operations of paragraphs (1), (2) and
(3) hereof, this Reinsurance does not cover any loss or liability by
radioactive contamination accruing to the Reassured, directly or
indirectly, and whether as Insurer or Reinsurer, when such radioactive
contamination is a named hazard specifically insured against.
5. It is understood and agreed that this Clause shall not extend to risks
using radioactive isotopes in any form where the nuclear exposure is not
considered by the Reassured to be the primary hazard.
6. The term "special nuclear material" shall have the meaning given it
in the Atomic Energy Act of 1954 or by any law amendatory thereof.
7. Reassured to be sole judge of what constitutes:
(a) substantial quantities, and
(b) the extent of installation, plant or site.
Note.-Without in any way restricting the operation of paragraph (1) hereof,
it is understood and agreed that
(a) all policies issued by the Reassured on or before 31st December 1957
shall be free from the application of the other provisions of this
Clause until expiry date or 31st December 1960 whichever first occurs
whereupon all the provisions of this Clause shall apply.
(b) with respect to any risk located in Canada policies issued by the
Reassured on or before 31st December 1958 shall be free from the
application of the other provisions of this Clause until expiry date
or 31st December 1960 whichever first occurs whereupon all the
provisions of this Clause shall apply.
12/12/57
N.M.A. 1119
BRMA 35B
Nuclear Incident Exclusion Clause - Liability - Reinsurance (U.S.A.)
(Approved by Lloyd's Underwriters' Fire and Non-Marine Association)
(1) This reinsurance does not cover any loss or liability accruing to the
Reassured as a member of, or subscriber to, any association of insurers
or reinsurers formed for the purpose of covering nuclear energy risks or
as a direct or indirect reinsurer of any such member, subscriber or
association.
(2) Without in any way restricting the operation of paragraph (1) of this
Clause it is understood and agreed that for all purposes of this
reinsurance all the original policies of the Reassured (new, renewal
and replacement) of the classes specified in Clause II of this paragraph
(2) from the time specified in Clause III in this paragraph (2) shall be
deemed to include the following provision (specified as the Limited
Exclusion Provision):
Limited Exclusion Provision.*
I. It is agreed that the policy does not apply under any liability
coverage, to
(injury, sickness, disease, death or destruction
(bodily injury or property damage
with respect to which an insured under the policy is also an insured
under a nuclear energy liability policy issued by Nuclear Energy
Liability Insurance Association, Mutual Atomic Energy Liability
Underwriters or Nuclear Insurance Association of Canada, or would
be an insured under any such policy but for its termination upon
exhaustion of its limit of liability.
II. Family Automobile Policies (liability only), Special Automobile
Policies (private passenger automobiles, liability only), Farmers
Comprehensive Personal Liability Policies (liability only),
Comprehensive Personal Liability Policies (liability only) or
policies of a similar nature; and the liability portion of
combination forms related to the four classes of policies stated
above, such as the Comprehensive Dwelling Policy and the applicable
types of Homeowners Policies.
III. The inception dates and thereafter of all original policies as
described in II above, whether new, renewal or replacement, being
policies which either
(a) become effective on or after 1st May, 1960, or
(b) become effective before that date and contain the Limited
Exclusion Provision set out above;
provided this paragraph (2) shall not be applicable to Family
Automobile Policies, Special Automobile Policies, or policies or
combination policies of a similar nature, issued by the Reassured
on New York risks, until 90 days following approval of the Limited
Exclusion Provision by the Governmental Authority having jurisdiction
thereof.
(3) Except for those classes of policies specified in Clause II of
paragraph (2) and without in any way restricting the operation of
paragraph (1) of this Clause, it is understood and agreed that for all
purposes of this reinsurance the original liability policies of the
Reassured (new, renewal and replacement) affording the following
coverages:
Owners, Landlords and Tenants Liability, Contractual Liability,
Elevator Liability, Owners or Contractors (including railroad)
Protective Liability, Manufacturers and Contractors Liability,
Product Liability, Professional and Malpractice Liability,
Storekeepers Liability, Garage Liability, Automobile Liability
(including Massachusetts Motor Vehicle or Garage Liability)
shall be deemed to include, with respect to such coverages, from the
time specified in Clause V of this paragraph (3), the following provision
(specified as the Broad Exclusion Provision):
Broad Exclusion Provision.*
It is agreed that the policy does not apply:
I. Under any Liability Coverage to
(injury, sickness, disease, death or destruction
(bodily injury or property damage
(a) with respect to which an insured under the policy is also an
insured under a nuclear energy liability policy issued by Nuclear
Energy Liability Insurance Association, Mutual Atomic Energy
Liability Underwriters or Nuclear Insurance Association of
Canada, or would be an insured under any such policy but for
its termination upon exhaustion of its limit of liability; or
(b) resulting from the hazardous properties of nuclear material and
with respect to which (1) any person or organization is required
to maintain financial protection pursuant to the Atomic Energy Act
of 1954, or any law amendatory thereof, or (2) the insured is, or
had this policy not been issued would be, entitled to indemnity
from the United States of America, or any agency thereof, under
any agreement entered into by the United States of America, or
any agency thereof, with any person or organization.
II. Under any Medical Payments Coverage, or under any Supplementary
Payments Provision relating to
(immediate medical or surgical relief
(first aid,
to expenses incurred with respect to
(bodily injury, sickness, disease or death
(bodily injury
resulting from the hazardous properties of nuclear material and
arising out of the operation of a nuclear facility by any person or
organization.
III. Under any Liability Coverage to
(injury, sickness, disease, death or destruction
(bodily injury or property damage
resulting from the hazardous properties of nuclear material, if
(a) the nuclear material (1) is at any nuclear facility owned by, or
operated by or on behalf of, an insured or (2) has been discharged
or dispersed therefrom;
(b) the nuclear material is contained in spent fuel or waste at any
time possessed, handled, used, processed, stored, transported or
disposed of by or on behalf of an insured; or
(c) the
(injury, sickness, disease, death or destruction
(bodily injury or property damage
arises out of the furnishing by an insured of services, materials,
parts or equipment in connection with the planning, construction,
maintenance, operation or use of any nuclear facility, but if such
facility is located within the United States of America, its
territories, or possessions or Canada, this exclusion (c) applies
only to
(injury to or destruction of property at such nuclear facility
(property damage to such nuclear facility and any property
thereat.
IV. As used in this endorsement:
"hazardous properties" include radioactive, toxic or explosive
properties; "nuclear material" means source material, special nuclear
material or byproduct material; "source material", "special nuclear
material", and "byproduct material" have the meanings given them in
the Atomic Energy Act of 1954 or in any law amendatory thereof;
"spent fuel" means any fuel element or fuel component, solid or
liquid, which has been used or exposed to radiation in a nuclear
reactor; "waste" means any waste material (1) containing byproduct
material and (2) resulting from the operation by any person or
organization of any nuclear facility included within the definition
of nuclear facility under paragraph (a) or (b) thereof; "nuclear
facility" means
(a) any nuclear reactor,
(b) any equipment or device designed or used for (1) separating the
isotopes of uranium or plutonium, (2) processing or utilizing
spent fuel, or (3) handling processing or packaging waste,
(c) any equipment or device used for the processing, fabricating or
alloying of special nuclear material if at any time the total
amount of such material in the custody of the insured at the
premises where such equipment or device is located consists of or
contains more than 25 grams of plutonium or uranium 233 or any
combination thereof, or more than 250 grams of uranium 235,
(d) any structure, basin, excavation, premises or place prepared or
used for the storage or disposal of waste, and includes the site
on which any of the foregoing is located, all operations conducted
on such site and all premises used for such operations; "nuclear
reactor" means any apparatus designed or used to sustain nuclear
fission in a self-supporting chain reaction or to contain a
xxxxxxxx xxxx of fissionable material;
(With respect to injury to or destruction of property, the word
"injury" or "destruction,"
("property damage" includes all forms of radioactive contamination
of property,
(includes all forms of radioactive contamination of property.
V. The inception dates and thereafter of all original policies affording
coverages specified in this paragraph (3), whether new, renewal or
replacement, being policies which become effective on or after 1st
May, 1960, provided this paragraph (3) shall not be applicable to
(i) Garage and Automobile Policies issued by the Reassured on New
York risks, or
(ii) statutory liability insurance required under Chapter 90,
General Laws of Massachusetts, until 90 days following
approval of the Broad Exclusion Provision by the Governmental
Authority having jurisdiction thereof.
(4) Without in any way restricting the operation of paragraph (1) of this
Clause, it is understood and agreed that paragraphs (2) and (3) above
are not applicable to original liability policies of the Reassured in
Canada and that with respect to such policies this Clause shall be
deemed to include the Nuclear Energy Liability Exclusion Provisions
adopted by the Canadian Underwriters' Association or the Independent
Insurance Conference of Canada.
*NOTE. The words printed in italics in the Limited Exclusion Provision
and in the Broad Exclusion Provision shall apply only in relation
to original liability policies which include a Limited Exclusion
Provision or a Broad Exclusion Provision containing those words.
