ISSUE FOCUS
Dr Som Majumdar discusses the effect of being
Role of Reinsurance Brokers
on Duty of Disclosure
- A New Zealand Case Study
“In the business world, the rear-
view mirror is always clearer than
windshield”
- Warren Buffett
PREFACE
A
ll contracts of reinsurance
are subject to “uberrimae
fidei”, where prevailing
practices and accepted norms are
presumed to be the guiding factors
for effecting the validity of
reinsurance. Therefore, where
reinsurance contracts lead to
dispute on conflicts of law, they are
resolved:
• first, on the basis of express
intentions of the parties,
• next, on the implied intentions
inferred from other statements
of parties
and, should these criteria prove
insufficient,
• by the law applicable at the
place of performance of
contract. Unless otherwise
clearly stated on the body of the
contract, the place of
performance of the
reinsurances contract appears
to be the place where the
indemnity is provided.
In the realm of contracts of
catastrophe excess of loss
a reinsurance broker in the matter of disclosure
of material facts; and how it affects the
contractual relationship between the reinsured
and the reinsurer.
A reinsurance broker
is a person who
negotiates and effects
reinsurance contracts
on behalf of and for
the benefit of another
viz. the reinsured -
with a third party, the
reinsurer.
reinsurance, where the common law
condition of duty of good faith is
transformed to contractual duty of
utmost good faith by virtue of
signing the underwriting slips; the
role of reinsurance brokers are
significantly wider than the
traditional direct line of business.
Since excess of loss contracts, unlike
proportional treaties, are annual
contracts which are usually
renegotiated at every renewal; the
duty of disclosure is revived on each
renewal and within that context,
the reinsurance brokers carry an
enormous burden of duties such that
no breach is effected in furnishing
the desired information. The
brokers’ roles are therefore
continuous whilst in the formation
of contract, during the subsistence
of the contract and finally to
provide servicing of the contracts
in form of accounting and claims
servicing.
Although the reinsurance brokers
perform numerous invaluable
functions in concluding the
reinsurance contracts to the
satisfaction of the reassured and the
reinsurer, the present submission
will however restrict to the study
of broker’s responsibility in adhering
to the principles of “uberrimae
fidei”. It will also examine, per se,
the definition of reinsurance broker
as per applicable law and ascertain
at what point in time the knowledge
obtained by the broker can be
attributed to the insurer and thus
maintain that the duty of utmost
good faith has been duly observed.
DEFINITION OF REINSURANCE
BROKERS
A reinsurance broker is a person who
negotiates and effects reinsurance
contracts on behalf of and for the
benefit of another viz. the reinsured
- with a third party, the reinsurer.
From this, it is clear that
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reinsurance brokers are agents, and
are therefore subjected to the law
of agents (Reference: “Bowstead on
Agency”, and Cockerell and Shaw,”
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 Insurance Broking and Agency”).
Although the law of agency applies
to both insurance and reinsurance
broking, the courts have never
attempted to make any distinction
between the two.
It is also clear that a reinsurance
broker is the agent of the cedant
and cannot act for anyone else in
the same transaction without the
cedant’s informed consent. The role
played by brokers in insurance
market is as old as that of insurers.
(“Brokers have been an integral part
of the Lloyd’s market from
inception” - R L Carter,
“Reinsurance” ). Lloyd’s brokers are
the intermediaries to place business
with the Lloyd’s Underwriters and
these brokers are so named because
they have paid the necessary
subscription and complied with
other regulations to enable them to
place business at Lloyd’s; and on
broker’s notepaper is often seen
“and at Lloyd’s” which often
signifies that the broker is also a
Lloyd’s broker.
The majority of reinsurance brokers
now operating in London are
subsidiaries of larger broking groups
but have a measure of
independence. At the other end of
the scale are countries like
Australia, New Zealand, Japan etc.
where the reinsurance brokers are
positioned as “intermediaries” to
modify or alter the Common Law
position as regards a principal or
agent. In order to establish their
credence within the context of
reinsurance contracts, a special
clause known as “Intermediaries
Clause” is usually inserted. This
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typical clause sets out to define the
role of reinsurance broker, despite
the fact that he is not a party to
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the contract, ensuring that both
premium and losses pass through his
office. This signifies the only area
in which the Common Law has been
altered in relation to claims where
but for this clause, there could be
direct settlement from the
Reinsurers to the Reinsured.
Hugh Cockerell and Gordon Shaw in
their book “Insurance Broking and
Agency , The Law and The Practice,
London (1979) regarded the broker
as the agent of the reinsured even
though he is reimbursed by
commission from the reinsurer (Page
42 Ch. 4). The book also cited a few
case laws from UK Court providing
some judicial support in defining the
broker. The reinsurance broker may
in some cases be the agent of both
parties; for ceding office in effecting
the policy and for the reinsurer in
collecting the premium (Ref: Minnett
v Forrester (1811) and Equitable Life
Assurance Society v General
Accident Assurance Corporations Ld
(1904).
It is also clear that a
reinsurance broker is
the agent of the
cedant and cannot act
for anyone else in the
same transaction
without the cedant’s
informed consent.
However, since the current case
study pertains to New Zealand, it
may be pertinent to note the
definition of reinsurance broker
within the context of New Zealand
law. Section 10(1) of the New
Zealand Insurance Law Reform Act
1977 provides that a representative
of an insurer who acts for the insurer
during negotiations for a contract
of insurance, and so acts within his
actual or apparent authority, is
deemed to be the insurer’s agent at
all times during the negotiations
until the contract comes into being
(Ref: Gold Star Insurance Company
Limited & Anor v Gaunt (1972) 7 ANZ
Insurance cases.
Section 10 (3) of the Insurance Law
Reform Act 1977 of New Zealand
defines a representative of the
insurer as including “Any person
entitled to receive from the insurer
commission or other valuable
consideration, in consideration for
such persons arranging, negotiating,
soliciting, or procuring the contract
of insurance between a person other
than himself and such insurer”. Case
law has confirmed that these
provisions will apply to an insurance
broker concerned in the negotiation
of an insurance contract provided
that the broker meets the definition
of representative of the insurer in
section 10(3). (Ref: Helicopter
Equipment Ltd v The Marine
Insurance Company Limited (1986)
1 NZLR 448). Accordingly, the
application of this section will
generally turn on whether the
broker has in fact received
commission or other valuable
consideration from the insurer for
their attendance in respect of the
contract of insurance. This
relationship between reinsurance
broker and the reinsurer is further

corroborated by virtue of presence
of “Intermediaries Clause” under
the contract of reinsurance (Ref: A
Review of Typical Reinsurance
Clauses, 2nd ed. 1988 RDG of NSW
Australia).
FUNCTIONAL ROLE OF
REINSURANCE BROKER
Since early days of insurance and
reinsurance, the brokers have been
an integral part of the Lloyd’s
market from its inception. The
functional role of a typical
reinsurance broker is well described
by Prof. R L Carter in his book,
“Reinsurance” (1979) saying “. . .
to professionally advise their client
concerning the best type of
reinsurance programme, proper
retentions and adequate capacity
based upon their experience and
knowledge of market availability
and then place the resultant
programme for the client with
secure markets at competitive price
or terms ….” Notwithstanding being
more than an introductory agent, an
important part of the broker’s role
is to bridge the information gap
between the ceding company and
the reinsurer. The benefits of the
market research activities of the
professional reinsurance broker
following their versatile knowledge
and expertise also extend to the
handling of the more mundane risks.
It would be virtually impossible
without the assistance of brokers to
complete placement of specialist
covers like Oil & Gas installation,
Nuclear Risks, Satellites etc. or
catastrophe covers which have to
be dispersed over a large number
of reinsurers.
CASE STUDY – LOCAL AUTHORITY
PROTECTION PROGRAMMME
(LAPP), NEW ZEALND (PLAINTIFF)
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c.'.E!:lall
The benefits of the
market research
activities of the
professional
reinsurance broker
following their
versatile knowledge
and expertise also
extend to the
handling of the more
mundane risks.
v NEW INDIA ASSURANCE
(DEFENDANT), HIGH COURT OF
AUCKLAND
Background of the case:
The events that gave rise to the
dispute in question were two
earthquakes that occurred at the
end of 2010 and February 2011 (Q1
and Q2) which caused substantial
damage to relevant infrastructure
assets located in the Waimakariri
District Council (WDC) and
Christchurch City Council (CCC).
These local authorities were
participants in the LAPP scheme.
The plaintiff alleges that combined
losses sustained by CCC and WDC for
Q1 and Q2 exceeded the total
amount recoverable under the
reinsurance programme which LAPP
had funds to meet. LAPP accordingly
made claims on its insurers that
included New India Assurance for
the full amount of Cover Limit under
three layers of the catastrophe
excess of loss cover arranged by
AON.
New India rejected the claim on the
ground of non-disclosure of material
fact and also applied for a stay of
the proceedings initiated by LAPP
on the basis that the matter should
be referred to arbitrations provided
in the insurance contracts as there
is a dispute between the parties.
Against New India’s repudiation of
the claim, LAPP applied for
summary judgement under r 12.2
High Court Rules and opposed the
defendant’s application for a stay
on the basis that there is no dispute
between the parties which could be
referred to arbitration. LAPP also
argued that material information in
the form of changes in trust deed
were disclosed to New India’s
broker; and New India is deemed to
have the knowledge of this
disclosure by operation of Sec.10
Insurance Law Reform Act 1977, or
alternatively, non-disclosure was
not material.
THE ISSUES IN THE CASE
The opposition gave rise to a
number of subordinate issues,
including:
• whether for the purposes of the
Insurance Law Reform Act 1977,
section 10, the broker, AON
Benfield was indeed the agent
of New India;
• whether there had been non-
disclosure;
• whether any non-disclosure was
material
• whether New India’s application
for a stay of High Court
proceedings can be admitted on
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ground that there was a
submission to arbitration
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JUDGEMENT OF THE ASSOCIATE
JUDGE J P DOOGUE IN THE HIGH
COURT OF AUCKLAND
The honourable court gave a verdict
pursuant to Rule 11.5 of the High
Court Rules by entering judgement
against the Defendant (New India)
for the amounts claimed by the
Plaintiff (LAPP).
1. The court upheld the view that
section 10(3) applies hereon
whereby AON Benfield was
considered to be the
representative of New India by
virtue of ‘Intermediary Clause’
whereby the commission was
4. Finally, from the deliberations of
deducted from the reinsurance
premium collected by insurer
(Ref: Helicopter Equipment Ltd
v Marine Insurance Company
(1986) 1 NZLR 468). The
provisions of ‘Intermediaries
Clause’ appear to have been set
in motion.
2. There was no non-disclosure
because pursuant to section
10(2) of the Insurance Law
Reform Act 1977, full disclosure
was deemed to have been made
to New India as a result of
disclosures made by LAPP to
AON Benfield as a should be established that there
‘representative’ of New India
and therefore if the agent
acquires a knowledge of a
material fact, that could be
attributed to the insurer.
3. It was held that failure by the
defendant to ask for a copy of
the trust deed shows that the
terms of the deed were not
material to a decision to
underwrite a risk, and to fix the
if the nondisclosure is of
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premium. The honourable court
upheld the view that the
elements of materiality issue
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need to be considered. The first
question is whether non-
disclosure is capable of being
material is a matter of law.
Whether it is actually material,
is a matter of fact. (Laws of New
Zealand Insurance at [326]. The
court therefore held the view
that failure to disclose the
changes to the two trust deeds
between the 1993 iteration and
that for 2007 were not material
non-disclosures justifying the
avoidance of the policy and
therefore plaintiff’s application
for summary judgement stays.
expert witness statements of
both sides, it follows that the
issue is whether New India has
an arguable defence. As the
court’s conclusion is that there
is no arguable defence to LAPP’s
summary judgement application
because non-disclosure was not
material, there is no dispute
between the parties capable of
being referred to arbitration.
When the common law
condition of duty of
utmost good faith is
transformed to
contractual duty of
utmost good faith by
virtue of signing the
proposal form by the
insured, it is irrelevant
a material fact or not.
The application for a stay of
proceedings is dismissed.
CONCLUSION
From the above case history, the
following major issues now
emerged:
• When the common law
condition of duty of utmost good
faith is transformed to
contractual duty of utmost good
faith by virtue of signing the
proposal form by the insured,
it is irrelevant if the
nondisclosure is of a material
fact or not. However, Law
Reform Commission Act 1977 of
New Zealand clearly outlines
the elements of materiality in
deciding the non-disclosure
issue to avoid the insurance
contract.
• The broker is deemed to be the
representative of the reinsurer
and therefore any information
the broker holds on the contract
of insurance is deemed to have
been known by the insurer.
• In order to activate the
arbitration clause contained in
the body of the contract, it
is a dispute in matter of fact and
not matter of law.
• Questions of fact ought not to
be determined at summary
judgment, but questions of law
may be.
The author is a former underwriter
of GIO Re Sydney; and is currently
I
Director of International Business
of Kaden Boriss Lawyers, Australia.
Views expressed are personal.