Names cite negligence and fraud as reasons not to pay

Litigation is delaying settlement, as William Gleeson explains

THERE are two reasons why Lloyd's names have not paid up. Some have run out of money. Having paid all they have, they cannot meet their Lloyd's losses even if they wanted to. However, many others are refusing to pay because they are angry at the way their affairs have been managed by the professionals at Lloyd's.

Essentially, there are two types of claim that have caused what will be - by next month - more than £9bn of losses over the last five years.

The first category, which has given rise to big headlines, is the catastrophe losses - resulting from big hurricanes hitting the United States, the Piper Alpha disaster in the North Sea, US earthquakes, storm damage in Europe and the Exxon Valdes disaster off the coast of Alaska.

These losses were incurred on what is infamously known as the London excess of loss, or LMX, market - an extremely complicated market structure to which the underwriters failed properly to track their exposure. This is expected to be the last year that LMX business causes Lloyd's to report a loss.

The other type of claim that is cleaning out Lloyd's comes from the US third-party general liability business. Under such policies, anybody who was exposed to asbestos as long ago as the 1940s has been been able to claim damages from employers and asbestos manufacturers for asbestos- related diseases.

Although many of these workers were exposed to risk decades ago, the claims only started to hit the market in the early 1980s, when the disease began to be diagnosed widely in the American population.

The time lag between issuing cover and the claim being made means this business is called long tail.

The fraud claims focus on the way names say they were not informed about what they say were "known-about" losses from asbestos and pollution-related claims that were emerging in the late 1970s and early 1980s. The long- tail claims are hitting the market at the rate of £1bn a year and are expected to continue for many years yet.

These policies cover such a wide range of liabilities that they have faced Lloyd's with a potentially crippling liability for the clean-up of polluted industrial sites in the US.

This liability emerged as result of environmental legislation introduced in US in 1982. Names complain that this is retrospective legislation, and they should not therefore be liable for it.

It is quite possible that the market would have had sufficient resources to meet one or other of these types of liabilities, but not both.

As well as the negligence claims that form the basis of the legal actions that resulted in large payouts, the names also claim they are the victims of sharp practice. Some claim they are the victims of fraud - a defence, they say, that means they are not liable to meet losses.

Many claim they were recruited into the market throughout the 1980s to meet losses that the market's professionals could foresee. The more names there are, the more resources there are to meet losses.

These names have simply stopped paying out of anger. To defend themselves, they have started a set of legal actions in the courts that claim they were the victims of fraud. The cases are not expected to be heard in in the UK until the end of this year.

There is a similar case in California, where US names are trying to show they have also been fraud victims.

Lloyd's cannot go through the courts to recover losses from names until the fraud claims have been resolved. These could take years to work their way through the legal system, as the losers are likely to want to appeal - all the way up to the European Courts of Justice.