Regulator Objects But Court Clears Bid for $200M From Liquidated Insurer’s Owners

By | June 22, 2021

A panel of the 1st District Court of Appeal last week reversed a San Francisco County Superior Court decision, rejecting arguments by the California Department of Insurance that allowing the creditors’ lawsuit to proceed would interfere with liquidation proceedings.

The panel ruled that an injunction barring legal claims against the CastlePoint estate — which was imposed when the insurance commissioner liquidated the company — does not block six of the 10 causes of actions listed in the lawsuit.

The judges wrote that they are “not persuaded that allowing these claims to proceed in New York will deplete the assets of the CastlePoint estate or disrupt the liquidation plan.”

CastlePoint started out as Tower Group International, Ltd., a Bermuda-based group of 10 insurance companies. Tower borrowed $175 million from Alesco Preferred Funding and other investors by selling trust preferred securities, known as TruPS.

When Tower’s stock price declined in 2013, its shareholders sold the company for $143 million to ACP, a reinsurer owned by the Karfunkel Family Trust. The Karfunkels quickly sold off much of Tower’s assets to AmTrust and National General Holdings Corp.

Tower’s financial condition continued to deteriorate. In 2016 the company reached an agreement with regulators in six states to merge all of the Tower companies into CastlePoint and enter into a conservation plan. The California Insurance Department was appointed conservator. The department later liquidated the company and started the process of selling off its assets to pay unresolved claims.

Alesco and other plaintiffs in October 2017 filed a lawsuit in Manhattan that accuses the Karfunkel family, AmTrust and other defendants of conspiring to loot Tower Group by selling off the best assets while leaving the carrier’s poor performing book of business to be conserved as CastlePoint. The suit says the defunct company now owes $220 million on the TruPS securities, including interest. The lawsuit seeks to recover that money from the Karfunkels, AmTrust and National General, whom they accuse of fraud and unjust enrichment.

There’s one catch. After Insurance Commissioner Dave Jones was appointed as conservator of CastlePoint in 2016, he agreed to accept a $200 million contribution from the AmTrust, National General and the Karfunkel Trust to pay pending claims. The conservation agreement also enjoins the insurance carrier’s creditors from pursuing claims against the Karfunkel Trust, ACP, AmTrust and Tower without the insurance department’s approval. In 2016, Jones released those parties from any claim the insurance department may have concerning their involvement with CastlePoint.

When the creditors sought permission to proceed with their lawsuit, Jones argued that doing so would be “inequitable” because “it would deny the defendants the benefit of their bargain…purchased at a cost of over $200 million,” according to a footnote in the opinion.

The appellate court said it found that argument “remarkable.”

“If the Commissioner is suggesting he is authorized to sell protection from third party claims that will not interfere with the liquidation of CastlePoint, he is mistaken,” the panel said.

The panel said some of the claims in the New York lawsuit clearly would potentially interfere with the liquidation process. The court said claims that sought compensation for actions that took place as part of the conservation and liquidation process were clearly barred by the injunction.

The court said other causes of action that are not related to the conservation and liquidation, such as breach of contract, breach of fiduciary duty and tortious interference may proceed against the Karfunkel family, Tower and ACP.

Topics Carriers

About Jim Sams

Sams is editor of ClaimsJournal.com, the online resource and daily newsletter for property/casualty insurance claims professionals. ClaimsJournal is a member of the Wells Media Group. Sams can be reached at jsams@wellsmedia.com More from Jim Sams

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