AMENDED AND RESTATED REINSURANCE POOLING AGREEMENT
Exhibit 10.90
AMENDED AND RESTATED
REINSURANCE POOLING AGREEMENT
REINSURANCE POOLING AGREEMENT
This Agreement is effective as of 12:01 a.m. on the 1st day of January, 1995, among the Erie
Insurance Exchange, a Pennsylvania reciprocal interinsurance exchange (hereinafter referred to as
the “Exchange”), the Erie Insurance Company, a Pennsylvania stock insurance company (hereinafter
referred to as the “Company”), and Erie Insurance Company of New York, a New York stock insurance
company (hereinafter referred to as “ERIE-New York”). This Agreement supersedes the Reinsurance
Pooling Agreement between the Exchange and the Company, which was in effect from January 1, 1992
until the effective date of this Agreement. It is amended and restated as of 12:01 a.m. January 1,
2007.
ARTICLE I — PREAMBLE
The purpose of this Agreement is to pool, or share proportionately among the parties, the results
of property and casualty insurance underwriting operations through reinsurance; to reduce
administrative and executive expenses; and to produce for each party a broader distribution of risk
by line of insurance. The Exchange, the Company, and ERIE-New York are affiliated and are under
the same executive management. This Agreement is made to recognize that each company is a member
of the same holding company system and a member of the Erie Insurance Group (hereinafter referred
to as “The ERIE Group”), subject to group decisions and strategies designed primarily to promote
the stability and success of The ERIE Group and that each company will accordingly share
proportionately in the combined property and casualty insurance underwriting operations of The ERIE
Group.
ARTICLE II — AGREEMENT
In consideration of the agreements and mutual promises contained herein, the parties hereto make
the following Agreement effective as of 12:01 a.m., Eastern Standard Time, January 1, 1995. Such
Agreement shall remain in effect until cancelled as provided in Article XI.
ARTICLE III — DEFINITIONS
For the purposes of this Agreement, the following terms shall have the meanings indicated below:
(a) “Net Policy Liabilities” shall mean the gross direct liabilities with respect to insurance
policies and reinsurance assumed less reinsurance ceded to reinsurers other than the parties to
this Agreement.
(b) “Respective Percentage Share” shall mean the participation percentage set forth next to
the name of each company in Exhibit A, attached hereto and made a part hereof.
163
(c) “Underwriting Expenses” shall mean all expenses incurred individually or collectively by
the Exchange, Company, and ERIE-New York in the acquisition of insurance and reinsurance business,
the issuance of insurance policies and contracts, and the rendering of services under the
contracts, including premium taxes, licenses and fees, and such other underwriting expenses
relating to insurance operations as may be mutually agreeable to the parties excluding federal and
foreign income taxes, investment expenses and any other expenses not related to underwriting
operations.
(d) “Dividends” to policyholders shall be treated as Underwriting Expenses.
(e) “Net”, as used herein shall mean net after giving effect to ceded reinsurance transactions
with other insurers or reinsurers, if any, which inure to the benefit of the parties to this
Agreement.
(f) “Insurance Policies” shall include all insurance or reinsurance agreements, contracts,
policies, certificates, binders, endorsements, or agreements of insurance or reinsurance issued or
renewed by the Exchange, Company, or ERIE-New York for which they may become obligated.
(g) “Loss Adjustment Expense” shall include both allocated loss adjustment expense and
unallocated loss adjustment expense.
(h) “Accounting Period” shall mean calendar quarter (i.e. March 31, June 30, September 30, and
December 31 of each year).
ARTICLE IV — LIABILITIES — BUSINESS CEDED
The Company and ERIE-New York each individually agrees to cede and transfer to the Exchange and the
Exchange agrees to assume and reinsure:
(a) 100% of all Net Policy Liabilities under all Insurance Policies of the Company and
ERIE-New York respectively, outstanding and in force at 12:01 a.m., Eastern Standard Time, January
1, 1995.
(b) 100% of the Net Policy Liabilities, automatically from inception, under all Insurance
Policies issued or assumed by the Company and ERIE-New York respectively, with effective dates on
and after January 1, 1995, during the continuation of this Agreement.
(c) 100% of the Net liability of the Company and ERIE-New York respectively, for unpaid losses
(including both reported and unreported losses), unpaid loss adjustment expenses, underwriting
expenses due and unpaid prior to January 1, 1995, and unpaid dividends to policyholders.
164
ARTICLE V — PREMIUMS AND RESERVES — BUSINESS CEDED
The Company and ERIE-New York each individually agrees to pay to the Exchange the following:
(a) 100% of the unearned premium reserves of the Company and ERIE-New York respectively,
carried for the Net Policy Liabilities assumed and reinsured by the Exchange under Article IV(a)
hereof as shown on the records of the Company and ERIE-New York respectively, as of 12:01 a.m.,
Eastern Standard Time, January 1, 1995.
(b) 100% of the premiums received by the Company and ERIE-New York respectively, for business
ceded and transferred to the Exchange under Article IV(b) hereof less the costs of any reinsurance
placed with reinsurers other than the Exchange.
(c) 100% of the reserves carried by the Company and ERIE-New York respectively, for losses
(including both reported and unreported losses), loss adjustment expense, underwriting expenses
(including dividends to policyholders) as shown on the records of the Company and ERIE-New York
respectively, as of 12:01 a.m., Eastern Standard Time, January 1, 1995.
ARTICLE VI — LIABILITIES RETROCEDED
Following the assumption and reinsurance of the liabilities of the Company and ERIE-New York
respectively, as set forth in Article IV hereof, the Exchange shall retrocede and transfer to the
Company and ERIE-New York each company’s individual Respective Percentage Share of the following:
(a) 100% of all Net Policy Liabilities under all Insurance Policies of the Exchange
outstanding and in force at 12:01 a.m., Eastern Standard Time, January 1, 1995.
(b) 100% of the Net Policy Liabilities, automatically from inception, under all Insurance
Policies issued or assumed by the Exchange with effective dates on and after January 1, 1995,
during the continuation of this Agreement.
(c) 100% of the Net Policy Liability of the Exchange for unpaid losses (including both
reported and unreported losses), unpaid loss adjustment expenses, underwriting expenses due and
unpaid prior to January 1, 1995, and unpaid dividends to policyholders.
ARTICLE VII — PREMIUMS AND RESERVES — BUSINESS RETROCEDED
Following the payment of the premiums and reserves of the Company and ERIE-New York respectively,
as set forth in Article V hereof, the Exchange shall retrocede and transfer to the Company and
ERIE-New York each company’s individual Respective Percentage Share of the following:
(a) 100% of the Exchange’s unearned premium reserves carried for its Net Policy Liabilities
under all Insurance Policies of the Exchange outstanding and in force as of 12:01 a.m., Eastern
Standard Time, January 1, 1995.
(b) The Exchange’s premiums received by the Exchange for its own account and all premiums
received by the Exchange pursuant to Article V(b) hereof for business assumed from
165
the Company and ERIE-New York respectively, under Article IV(b) hereof, less all Underwriting
Expenses incurred by the Exchange in relation to such business and less all reinsurance placed with
insurers or reinsurers other than the parties to this Agreement by the Exchange for its own account
or for the joint account of the Exchange, Company and ERIE-New York.
(d) 100% of the reserves carried by the Exchange for losses (including both reported and
unreported losses), loss adjustment expense, underwriting expenses (including dividends to
policyholders) as shown on the records of the Exchange as of 12:01 a.m., Eastern Standard Time,
January 1, 1995.
ARTICLE VIII — AGENTS’ BALANCES/OUTSTANDING ACCOUNTS
The Company and ERIE-New York hereby agree to sell, transfer, assign and the Exchange hereby agrees
to purchase all rights, title and interest of the Company and ERIE-New York in their agents’
balances, uncollected premiums and all other accounts relating to underwriting operations,
including underwriting pools and associations as they exist at 12:01 a.m., Eastern Standard Time,
January 1, 1995, at statutory book value. The Exchange hereby agrees to sell, transfer and assign
and the Company and ERIE-New York hereby agree to purchase their Respective Percentage Shares of
the total agents’ balances, uncollected premiums and all other accounts relating to underwriting
operations at statutory book value immediately after and including the transfers effected by the
first sentence of this paragraph.
Underwriting assets and related liabilities of the Exchange, the Company, and ERIE-New York arising
after 12:01 a.m., Eastern Standard Time, January 1, 1995, shall be pro-rated according to the
Respective Percentage Share of the companies.
Notwithstanding anything to the contrary herein contained, the Company and ERIE-New York hereby
agree for purposes of statutory financial statements, to assume their Respective Percentage Share
of any amounts disallowed the Exchange on account of reinsurance effected with so-called
unauthorized reinsurers and any amounts disallowed the Exchange for non-admitted agents’ balances
and uncollected premiums.
ARTICLE IX — OBLIGATIONS
The Exchange agrees to act on behalf of the Company and ERIE-New York to fulfill all the respective
obligations of the Company and ERIE-New York under the Insurance Policies reinsured hereby and to
adjust and pay all claims thereunder and to pay all Underwriting Expenses (including dividends to
policyholders) on behalf of the Company and ERIE-New York, and the Company and ERIE-New York hereby
agree to the Exchange acting on their behalf with respect to such matters. The adjustment of
claims and claim payments for policies written by ERIE-New York will be made in accordance with
guidelines established by the Board of Directors of ERIE-New York. It is the purpose and intent of
this Agreement that all reinsurance hereunder shall be subject in all respects to the same rates,
terms, conditions, interpretations, waivers, the exact proportion of premiums paid without
deduction for brokerage, and to the same modifications, alterations and cancellations as the
respective insurances of the companies to which such reinsurance relates, the true intent of this
Agreement being that the reinsurer shall in every case to which this Agreement applies and in the
Respective Percentage Share set forth
166
herein follow the fortunes of the reinsured. This Agreement is solely between and for the benefit
of the parties hereto and the acceptance of reinsurance hereunder shall not create any right or
legal relation whatsoever between the primary insured and any party to this Agreement other than
the company issuing the original insurance contract to such insured.
ARTICLE X — ACCOUNTS AND SETTLEMENTS
The Exchange, the Company, and ERIE-New York shall keep sufficient records for the express purpose
of recording therein the amounts and other particulars of the reinsurance ceded and assumed between
the parties hereto. Each party to this Agreement shall have the right to examine, at the offices
of the other parties at all reasonable times, all books and records of the other parties relating
to any business which is the subject of this Agreement. This right shall survive termination of
this Agreement and shall continue so long as any party has any rights or obligations under this
Agreement.
Copies of all Insurance Policies thereto which come within the scope of this Agreement shall be
available to all companies which are parties to this Agreement. Each company which is a party
hereto will make its financial data available to every company for the purpose of recording those
inter-company transactions necessitated by this Agreement and shall provide such financial
information in sufficient detail and in mutually acceptable form to prepare monthly financial and
quarterly and annual filings with all applicable insurance departments and other regulatory
authorities.
The Exchange shall render to the Company and to ERIE-New York at such periods as are mutually
agreed upon (but not less frequently than quarterly), a statement showing net premiums received,
Underwriting Expenses (including dividends paid to policyholders), net losses and loss adjustment
expenses paid during the accounting period. Reasonable approximations may be substituted when
necessary, for interim accounting, but there shall be an annual adjustment to the exact amounts.
The companies shall settle accounts between them by payment of such amounts as may be owing within
30 days after the end of the accounting period.
Each quarter the Exchange shall render to the Company and to ERIE-New York a report of all accruals
required to adjust cash transactions to the accounting basis required for accounting in accordance
with generally accepted practices for preparation of the NAIC form of annual statement, and to
adjust the expense allowance to the accrual basis.
To the extent that transfers of non-cash assets may be required to effectuate the settlements
herein provided, such transfers shall be made at fair market values as of the date such transfers
are made.
ARTICLE XI — TERMINATION
This Agreement may be terminated by mutual agreement stating the terms and conditions therefore or
by any party giving to the other parties not less than 90 days advance written notice stating when,
as of the end of any calendar year such termination shall be effective. Upon termination of this
Agreement each party shall remain responsible and liable for its Respective Percentage Share of Net
Policy Liabilities ceded and transferred and assumed and reinsured prior to the termination date.
Liability for accidents or occurrences after the termination date of this Agreement under Insurance
Policies written or renewed after the termination of this Agreement
167
shall cease to be included within Net Policy Liabilities. Such new or renewed Insurance Policies,
and their related assets and reserves, shall be restored to the party that issued or renewed them,
through a process of regular settlement transactions following termination of this Agreement.
ARTICLE XII — INSOLVENCY CLAUSE
Each party hereby agrees that in the event of the insolvency of any party, this Agreement shall be
so construed that the reinsurance due hereunder shall be payable directly to the insolvent party or
its liquidator, receiver, or statutory successor by the reinsurer on the basis of the liability of
the insolvent party under the contract or contracts reinsured without diminution because of the
insolvency. It is further agreed that the liquidator, the receiver, or the statutory successor of
the insolvent party shall give written notice to the reinsurer of the pendency of a claim against
the insolvent party on the policy reinsured within a reasonable time after such claim is filed in
the solvency proceedings; that during the pendency of such claim the reinsurer may investigate such
claim and interpose at their own expense in the proceeding where such claim is to be adjudicated
any defense or defenses which they may deem available to the insolvent party or its liquidator,
receiver, or statutory successor; that the expenses thus incurred by the reinsurer shall be
chargeable subject to court approval against the insolvent party as part of the expense of
liquidation to the extent of the proportionate benefit which may accrue to the insolvent party
solely as a result of the defense undertaken by the reinsurer.
It is further agreed and understood that as to all reinsurance made, ceded, renewed or otherwise
becoming effective hereunder, the reinsurance shall be payable by the reinsurer directly to the
insolvent party or to its liquidator, receiver or statutory successor.
ARTICLE XIII — ARBITRATION
As a condition precedent to any right of action hereunder, in the event of any 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 before a panel of three
arbitrators, all of whom shall be active or retired disinterested officers of property and casualty
insurance companies, reinsurance companies or underwriters at Lloyd’s, London. One arbitrator
shall be chosen by each party to the dispute, and the third, an umpire, to be chosen by the other
two arbitrators before they enter upon arbitration. In the event of any party refusing or
neglecting to appoint an arbitrator within 90 days after the other party requests it to do so, or
if the arbitrators fail to appoint an umpire within 60 days after they have accepted their
appointments, such arbitrator or umpire, as the case may be, shall, upon the application of any
party, be appointed by The American Arbitration Association and the arbitrators and the umpire
shall thereupon proceed. The arbitrators 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 majority of the arbitrators
shall be final and binding on all parties. Each party shall bear the expense of its own arbitrator
and shall jointly and equally bear the other expenses of the umpire and of the arbitration. Any
such arbitration shall take place in Erie, Pennsylvania, or such other place as may be mutually
agreed.
168
ARTICLE XIV — ERRORS AND OMISSIONS
The parties to this Agreement will use due diligence in promptly and accurately reporting all
transactions under this Agreement. It is agreed, however, that any errors or omissions occurring
through clerical error, accident or oversight, of any party to this Agreement shall not invalidate
any of the provisions of this Agreement; and the party making such error agrees to correct it
immediately upon discovery.
ARTICLE XV — AMENDMENTS
This Agreement may be altered or amended in any respect at any time and from time to time by mutual
consent of the parties either by an endorsement or addendum executed by the parties hereto or by
correspondence signed by a responsible officer of each party, and such endorsement or addendum or
correspondence shall be binding on the parties and be deemed to be an integral part of this
Agreement.
ARTICLE XVI — OTHER PROVISIONS
1. This Agreement shall not apply to the investment operations, liabilities for Federal and foreign
income tax, or other operations unrelated to the insurance underwriting of the parties hereto.
2. In the event that the Company is not licensed in New York and/or the Exchange is not an
accredited reinsurer in New York, the Exchange agrees to post a letter of credit collateralizing
the business ceded to it by ERIE-New York.
IN WITNESS WHEREOF, the parties hereto have affixed their signatures.
| ERIE INSURANCE EXCHANGE by Erie Indemnity Company Attorney-in-Fact |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| President and Chief Executive Officer | ||||
| ERIE INSURANCE COMPANY |
||||
| By: | /s/ J.R.Van Gorder | |||
| J. R. Xxx Xxxxxx | ||||
| Senior Executive Vice President, Secretary and General Counsel | ||||
| ERIE-NEW YORK |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx | ||||
| Executive Vice President and Chief Financial Officer | ||||
169
ERIE INSURANCE GROUP
EFFECTIVE January 1, 1995
AMENDED AND RESTATED January 1, 2007
EXHIBIT A
| Participating Insurer | Respective Percentage Share | |||
Erie Insurance Exchange |
94.5 | % | ||
Erie Insurance Company |
5.0 | % | ||
ERIE-New York |
0.5 | % | ||
170
