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Political risk, trade credit markets may hinge on Trump tariffs

The Trump administration’s imposition of tariffs and the threat of an impending trade war with China could eventually result in reduced capacity and higher rates in the political risk and trade credit insurance market. But although there is already some evidence of increased submissions by policyholders, it is too soon to see how the situation will develop, experts say. “What I think everyone is potentially worried about is escalation into a full-scale trade war where doors shut,” said Andrew Grant, a London-based partner with law firm Clyde & Co, although the majority view is matters will not reach that point. The situation, though unpredictable, is clearly heating up: The Trump administration imposed tariffs on $34 billion of Chinese product as of Friday. And, as expected, China immediately retaliated, imposing a similar 25% tariff on 545 products, including cars, soybeans and lobsters, that are also worth a total of $34 billion, while charging the U.S. with starting “the largest trade war in economic history.” The Trump administration has also imposed tariffs on foreign steel, aluminum, solar panels and washing machines from countries including Canada, Mexico, the European Union and Japan, but China is of particular concern because of the extent of its trading relationship with the United States. The often-intertwined political risk and trade credit markets are competitive, with plenty of capacity for now, experts say. “The political risk and trade credit market continues to expand,” with more than 60 companies offering coverage and the total number increasing each year, said Daniel Riordan, president of political risk, credit and bond insurance in New York for XL Group Ltd., which does business as XL Catlin. “It continues to be a specialty area that is attractive to private carriers as well as government providers, who are still quite active in the market,” he said. But the current situation could lead to increased rates. “I would definitely look for increased insurance costs across the board for direct foreign investments in countries” where there is trade conflict, said Marc Wagman, New York-based managing director, trade credit and political risk practice group, for Arthur J. Gallagher & Co. “Anytime you’re operating in an environment where the cost of regulatory compliance increases … it’s reasonable to expect there would be inherent increases in the cost of insuring risks across a wide spectrum” because “that just makes insurers nervous,” he said. But the impact in the political risk and trade credit sector, if any, will take time to emerge, say experts. “On the short-term trade side at this point in time, there hasn’t been any change yet in underwriting appetite for risks both foreign and domestic,” said Mr. Wagman. “There’s a real lag in how long this is going to take to cycle through,” he said. “We’re not going to see it until I would say, at the earliest, one year from now.” Mr. Riordan also said steel and aluminum companies “prepurchase supplies six to 12 months in advance, sometimes longer.” “The issue we see now” is the situation “may lead to a change in how U.S. creditors are treated in foreign markets, especially China,” said Clay Sasse, New York-based managing director with Aon P.L.C.’s trade credit practice. “Foreign creditors don’t always have a simple and easy time” of going through other countries’ court systems, he said, and debtors “may feel emboldened” into believing they have more of a home court advantage than they did a year ago. Claims could arise from governments issuing punitive new rules that prevent companies from operating in foreign countries, Mr. Riordan said. Those can often be as equally difficult as tariffs, he said. Meanwhile, submissions are up, say observers. “We have seen some uptick in submission activity, particularly from trading companies and exporters,” said Mr. Riordan. “There’s heighted interest there,” which is normal, he said. “This is front-page news. If you’re on the board of directors of a major trading company or exporter, you’re going to be concerned about it. Your risk management teams should be thinking about it” and assessing the situation, said Mr. Riordan. Evan Freely, New York-based managing director for Marsh L.L.C., who leads its credit specialties practice, said, “Definitely, we’re seeing more submissions,” although “I can’t specifically attribute it to tariffs, because we don’t ask that question per se.” “It’s one of maybe three or four issues driving the increase in applications, especially in those industries affected by this, whose supply chain might include steel or aluminum” or the electronics sector, Mr. Freely said. Other issues of concern, he said, include political issues in Mexico, Turkey and Colombia, North Korea, and Brexit. In addition, U.S. relations with Russia, are a “burning issue that’s always there,” he said, in addition to the unrest in the Middle East. Capacity would lessen before rates go up, Mr. Freely said. “Rates typically go up after the industry collectively takes losses. It would be a capacity issue first and a rates issue second. There’s so much competition here now from an underwriting standpoint that there’s probably less pressure on the rates to go up.” https://www.businessinsurance.com/article/20180710/NEWS06/912322545/Political-risk-trade-credit-insurance-markets-may-hinge-on-Trump-tariffs

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South Dakota officials move to liquidate Sioux Falls insurance company [Reliamax]

A circuit court judge on Wednesday approved a petition to place a Sioux Falls company that insures and services student loans into liquidation. ReliaMax Surety Co. will have all remaining assets liquidated by the South Dakota Division of Insurance, which filed the petition in Hughes County Circuit Court on June 12. Dawn Dovre, a spokeswoman for the division, said the state moved to liquidate ReliaMax because the company is insolvent. The order allows the Division of Insurance to take possession of the company’s property and conduct business in the interim while winding down its affairs. “The next step of the process includes notifying policy holders, claimants and other interested parties of the liquidation status and providing established procedures to file claims,” Division of Insurance Director Larry Deiter said in a release. Mark Payne, the company’s president, did not return a message left at his office. Founded in 2006, ReliaMax initially provided insurance to banks and other lenders in the private student loan industry. By 2014, the company insured $2 billion worth of student loans. Meta Financial Group, the holding company for Meta Bank, announced to shareholders that ReliaMax insured nearly $190 million worth of the bank’s student loan portfolio. “ReliaMax and its predecessor companies have been providing private student loan insurance for over 25 years, and we are disappointed to learn of their pending insolvency,” Meta Financial Group Chairman and CEO J. Tyler Haahr said in a release. “While we expect to ultimately recover a substantial portion of our unearned premiums, the timing and amounts are unclear at this time.” Although ReliaMax announced in 2014 that its line of business was expanding, behind the scenes there were problems. The Division of Insurance conducted a market conduct examination and found the company was violating state law by transacting business in states where it had no license. The state fined the company $25,000. The company and its founder and CEO, Michael VanErdewyk, were also sued by former employees who said they were swindled out of their investments into ReliaMax, including one employee who took out a second mortgage on his home to invest $50,000. VanErdewyk, the lawsuit said, had claimed to be a business guru who had built successful companies. But, the lawsuit said, he had “a pattern of raising money from investors and then losing money; and paying himself very well regardless of the success or failure of the company.” The lawsuit alleged that behavior continued after ReliaMax was formed. “VanErdewyk has squandered company assets, used them for non-business purposes, demanded and received compensation that reflects neither his actual talent nor the company’s actual profits, and has generally treated the assets and income of ReliaMax as ‘his’ money to do with as he pleased,” the lawsuit claimed. The lawsuit settled, and the terms were confidential. The last time the state liquidated an insurance company was in 2012, when the state liquidated Northern Plains Insurance Co. of Watertown, Dovre said. https://www.argusleader.com/story/news/2018/06/27/south-dakota-officials-move-liquidate-sioux-falls-based-reliamax/739878002/

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Trade credit insurance claims hit nine-year high

There were more insurance claims made across England and Wales to cover the non-payment of debts in the first quarter of this year than at any time since 2009. That is according to data from the Association of British Insurers (ABI), which reveals that the number of claims jumped by 50% on the previous three months to reach 3,966 This coincided with a 13% increase in the number of corporate insolvencies recorded, with the collapse of construction giant Carillion having a far-reaching impact on businesses. “This is a tough time to be in business and it is not getting any easier,” ABI assistant director, head of property, commercial and specialist lines,” Mark Shepherd, said. “The collapse of Carillion dramatically highlighted how the ripple effect of a company failure can have a devastating impact throughout the supply chain.” The ABI data is based on the records of trade credit insurers AIG, Atradius, Coface, Euler Hermes, Markel International, QBE, Tokio Marine HCC, XL and Zurich. It was found that 44 new claims were made every day during the first three months of this month – the highest number recorded since the third quarter of 2009. The value of domestic claims paid hit a record-breaking £54m, with no other quarter ever seeing that much paid out Shepherd said the commercial environment remains challenging for customers, suppliers, and insurers, but that the latest figures highlight the safety net trade credit insurance provides “Never has the importance of trade credit insurance been greater – the survival of any business could be at risk without it,” he continued. “With too many firms at the mercy of non-payment of debts, the time has come for trade credit insurance to become an essential part of every businesses’ contingency planning.” http://www.theactuary.com/news/2018/06/trade-credit-insurance-claims-hit-nine-year-high/

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Less money, faster turnaround: why escrow can be the best option for commercial surety bonds

People are predisposed to take the path of least resistance. And yet, when an individual, association, non-profit or business needs to attain a commercial surety bond that necessitates collateral to satisfy an entity they’re working with – typically a government agency – some turn to banks for lines of credit (LOCs), even though that might not be the best route for them. “Right now, with the way banks are with the line of credit, most clients feel that the bank is charging too much to have a line of credit issued,” said Melanie Stokes, commercial surety manager at Allstar Surety. “Some charge as much as $1,600 just to have a small line of credit issued versus coming to us and we’re writing it and putting it through escrow. With escrow, all we’re going to charge is a $250 fee to hold those funds versus the line of credit.” It’s not just about the money, though that’s a critical reason why going with escrow over LOCs is better suited for certain clients, like those who don’t want to deal with a bank, have credit issues, or have a bond that requires 100% collateral. According to Stokes, many people still don’t even know that escrow is an option with commercial surety bonds, even if it can also be a faster way to get the collateral for a bond. “I’m slowly going that route because it’s a little easier than the line of credit,” said Stokes. “I prefer the escrow over the line of credit – one reason being that with the line of credit, they have to go through the bank and it takes at least seven days to get the line of credit. If they need that bond within 24 hours, then that’s going to sideline that bond until we can get the original line of credit.” Stokes recently worked on a license and permit bond where her client was required to put up the collateral because of past issues with credit, which meant he couldn’t go through the standard market. The process of setting up a line of credit, putting up the amount and then the fees associated with the LOC would’ve set him back $5,000. Instead, the client provided $250 for escrow until the license and permit bond was no longer needed. Allstar Surety is one of the largest surety brokers in the US and offers surety bonds for a wide range of clients. Their agents are experienced in satisfying requests for court bonds, probate bonds, and many other types of non-contract bonds. Under its umbrella, Allstar Financial Group also has its own in-house escrow company, National Escrow, which means its agents have the resources they need at their fingertips to help clients with commercial and contract surety bonds.

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Ga. Justices Toss Punitive Damages Against Surety for Conservator’s Theft

The Georgia Supreme Court ruled that punitive damages a probate judge entered against the conservator could not be levied against the insurance company that provided the surety bond. The Georgia Supreme Court has ruled the issuer of a surety bond is not responsible for a $150,000 punitive damages award a probate court levied against it and the conservator of an incapacitated woman after the judge determined the conservator had looted the funds. The finding overturns a Georgia Court of Appeals ruling that left Ohio Casualty Co., which served as the surety for the conservator, on the hook not only for $167,000 in misappropriated funds, but jointly and severally liable for $150,000 in punitive damages as well. “Our argument was that there’s never been a case in Georgia where a surety was assessed for punitive damages unless the statute calling for the bond—which are required by law—specified that penalties were available,” said Bovis, Kyle, Burch & Medlin partner Tim Burson. “These bonds are essentially guarantees that guardians and estate administrators will fulfill their fiduciary duties,” he said. “Probate cases like this are ripe for people who don’t just mishandle the estate’s assets, but get sticky fingers and actually take money. If the lower courts’ rulings had stood, such relatively pricey bonds could have been more difficult for sureties to write, he said. “These bonds have become among the hardest to get, and they’re getting harder. To conceptualize that we could be responsible for unlimited punitive damages is one of those things that make us take a second look,” said Burson, who represented Ohio Casualty Insurance and parent Liberty Mutual, along with firm partners William Bryant and John Burch. The attorney for the current conservator, Richard Neville of Cummings’ Neville & Cunat, declined to discuss the case. Craig Oakes of Lawrenceville’s Bryant & Oakes, who represents the now-replaced conservator, Emanuel Gladstone, said the decision “speaks for itself.” As detailed in the justices’ ruling and other documents, the case began in 2015 when Forsyth County Probate Court Judge Lynwood Jordan Jr. appointed Gladstone to be the conservator for his wife, Jacqueline, who suffered from dementia. Jordan set a $430,000 bond that Ohio Casualty posted and appointed an attorney to oversee the management of the conservatorship. Several months later, the attorney raised concerns that Emmanuel Gladstone had not provided a proper asset management plan and was making unapproved expenditures. Jordan removed Gladstone and appointed another conservator. Following a hearing, Jordan issued an order finding that—while some of Emmanuel Gladstone’s expenditures were justified—there were improper withdrawals from the account, including $80,000 he withdrew just before Jordan replaced him. Jordan ordered Gladstone and Ohio Mutual to repay $167,000 and, finding Gladstone breached his fiduciary duty, another $150,000 in joint and several punitive damages. Ohio Casualty immediately paid the $167,000, Burson said, then both Gladstone and Ohio Casualty filed separate appeals with the Georgia Court of Appeals, with the surety challenging only the punitive damages awarded against it. In March 2017, the appeals court upheld both the actual and punitive damages award against Gladstone and Ohio Casualty. In the section dealing with Ohio Casualty’s appeal, the appeals court found that, while the relevant law “requires that a conservator’s bond ‘be in a value equal to the estimated value of the estate,’ if it is secured by a licensed commercial surety, it does not necessarily follow, as the surety argues, that recovery is limited to actual loss.” Read More … https://www.law.com/dailyreportonline/2018/05/11/ga-justices-toss-punitive-damages-against-surety-for-conservators-theft/

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SBA Recognizes the Office of Surety Guarantees Award Winners

WASHINGTON, June 13, 2018 /PRNewswire-USNewswire/ — The U.S. Small Business Administration recognizes the Office of Surety Guarantees award winners for their continued work to help small contracting businesses acquire surety bonds Three SBA surety bond partners were selected to receive awards based on their participation, activity, claims and recovery and their commitment to helping small businesses obtain contracts with both government and private sector entities. Travelers Casualty and Surety Company of America was recognized as Surety of the Year. The Fedeli Group and Marcia D. Smith of Bond Specialist were honored as Surety Agency of the Year and Surety Agent of the Year, respectively. Bill Manger, Associate Administrator for the SBA’s Office of Capital Access said, “Our partners in the Surety Bond Guarantee Program have done an incredible job helping America’s small businesses and these awards are a testament to the importance of the work being done to help entrepreneurs obtain bonding and compete for contracts in a strong U.S. economy.” Surety of the Year award recipient, Travelers Casualty and Surety Company of America, has been a participant in the SBA’s Surety Bond Guarantees preferred program since 1990, and has assisted small and emerging contractors over the years through their Construction Services Express program in Exton, Pennsylvania. For more than 160 years, Travelers has earned a reputation as leading property casualty insurer. Their expertise and focus on innovation have made them a leader in personal, business and specialty insurance. “We are proud of our partnership with the Small Business Administration, and extremely honored to receive its designation as Surety of the Year,” said Bob Raney, Senior Vice President for Construction Services, Bond & Specialty Insurance at Travelers. “Travelers has a long history of helping contractors of all sizes and trades succeed, and we look forward to continuing our dedicated work with the SBA.” Surety Agency of the Year, the Fedeli Group, is a locally owned, multi-line insurance agency located in the Cleveland, Ohio suburb of Independence. They have been working with the SBA since 2007, writing bonds and insurance in Ohio, the surrounding states and much of the United States. Founded in 1988, the Fedeli Group works closely with their clients providing consultative services and innovative solutions to their risk management needs. Surety Agent of the Year, Marcia D. Smith of Bond Specialist (dba Marcia Smith Surety) entered the surety business in 1973, and worked for several major agencies and companies before starting Bond Specialist Insurance Services in 1990. Smith found the SBA Surety Bond Guarantees program to be a perfect partner for many of her clients. She placed her first client in the SBA’s SBG program in the late 1980’s and continues doing so today. The SBA Surety Bond Guarantees program has 32 surety partners and 350 active agents nationwide, and has guaranteed more than 10,000 bonds with a contract value of over six billion. More information about the SBA’s Surety Bond Guarantees program is available on the SBA.gov website. For further assistance, surety companies may contact the Acting Director of the Office of Surety Guarantees, [email protected]. https://www.prnewswire.com/news-releases/sba-recognizes-the-office-of-surety-guarantees-award-winners-300665862.html

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Was 2017 the Tipping Point for the Bail Bonds Industry?

OLDWICK, N.J.–(BUSINESS WIRE)–As reform measures across the United States significantly diminish or eliminate the need for defendants to post cash bail, the business currently handled by bail bonds agents and insurance specialists may cease to exist, according to a new A.M. Best special report. The Best’s Market Segment Report, titled, “Was 2017 the Tipping Point for the Bail Bonds Industry?” notes that critics of the U.S. bail system charge that it unfairly targets poor Americans, and now state and federal government officials have introduced numerous bills aimed at reducing cash bail as a means of pretrial detainment. Even narrow policy changes, such as the use of risk assessment tools created by data scientists and criminal-justice researchers, could help meaningfully diminish the use of pretrial incarceration across the country, though moves such as these pose a danger to the surety market’s bail bonds insurance sector. According to the report, declines have already set in, with bail bonds insurance premiums and face amounts falling in 2017, representing what looks to be a tipping point for the bail bonds industry. Net premiums written (NPW) at six of the top 10 writers of bail bonds insurance fell in 2017, and out of the nine companies whose surety bonds portfolios are composed solely or predominantly of bail bonds business, four saw a decline in NPW. For three of those four, the year-over year percentage drop was in the double digits. The total face amount of all bail bonds written increased every year from 2009 to 2016, but declined in 2017 by 4.5%, in line with the 3.8% year-over-year decline in NPW for the bail bonds segment. The legislative reform efforts advocated at federal, state and local levels have met heavy protestations from the bail bonds industry. Opponents of reform view the bail bonds system as a vital component of the criminal justice system and caution that current pretrial release systems in a number of states have led to what they have characterized as skyrocketing failure-to-appear rates and the release of dangerous criminals. With extensive reforms enacted either in 2017 or currently under consideration in a majority of states, a decided shift away from requiring money bail seems to be at hand. This appears to be particularly true with regard to misdemeanor and low-level felony cases and is likely going to be the rule more than the exception in the future. The impact could result in a significant shrinking of the surety bonds market’s bail bonds segment. A.M. Best believes that, although some surety companies have somewhat diversified portfolios, the potential impact of any reforms on the bail bonds specialty writers will be substantial. Companies that write bail bonds countrywide, or at least in multiple states, should be better able than single-state or even smaller regional insurers to adjust their strategies, and to focus on states where cash bail practices have not been substantially changed. https://www.businesswire.com/news/home/20180607005572/en/Best%E2%80%99s-Market-Segment-Report-2017-Tipping-Point

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Kentucky amends law allowing surface coal mining and reclamation permit applications to submit their own bonds

At the beginning of April, Kentucky governor signed a bill that amends portions of chapters of the Kentucky Revised Statutes (KRS) that relate to mining. The 40-page bill introduces numerous new provisions with regards to different types of mining operations and procedures in the state. Among these are also a handful of requirements related to applicants and holders of surface coal mining and reclamation permits. These include a change to requirements related to hearings related to civil penalties, a different bonding requirement for such licensees, and a requirement regarding extensions to an area covered by a permit. For a brief overview of the changes that apply to surface coal mining and reclamation permit applicants, see below! Kentucky House Bill 261 House Bill 261 introduces a somewhat lengthy list of changes to KRS Chapters 350, 351, and 352 (see here for a summary of all changes). A number of these changes also relate to surface coal mining and reclamation permits in the state. In short, the amendments in the bill that concern these permits include: The removal of the requirement for civil penalty assessments to be placed in an escrow account prior to formal hearings related to the amount of such assessment The removal of the option for such permit holders to submit their own reclamation bonds without separate sureties in lieu of the performance bond required under existing law With the exception of incidental boundary revisions, extensions of the area covered by a permit can only be made through a separate application or an amendment to the permit Mining for limestone, dolomite, sand, gravel, clay, fluorspar, or other vein minerals cannot be conducted without a permit unless such mining is for personal, noncommercial use and complies with the requirements delineated in the newly created section KRS 350.240 to 350.280 The above are the most important amendments made by the bill to the provisions that concern surface coal mining and reclamation permit applicants and holders. If you are new to surety bonds, see the next section for a brief explanation of how bonds function and what a reclamation performance bond is. Surety Bonds for Surface Coal Mining and Reclamation Surety bonds are a form of financial guarantee agreements often required by the state from various businesses as a pre-licensing requirement. These agreements serve the purpose of guaranteeing that licensed and bonded individuals and businesses will comply with the legal provisions for their profession. They further serve as a form of protection to the state and/or the public in cases in which a bonded party violates legal provisions, causing damages or losses. For example, the Surface Mining Control and Reclamation Act (SMCRA) requires that to obtain a coal mining permit, applicants must furnish a so-called reclamation performance bond. When a surety company issues such a bond for a mining company, it basically guarantees that the latter will comply with the reclamation plan approved in its permit. If the permit holder fails to reclaim the site as required by their permit, the bond serves as a guarantee that the state will have sufficient funds available to reclaim the site. These funds are covered by the surety company which backs the bond financially. In certain cases, instead of extending funds for the reclamation to be completed, a surety may be allowed to conduct the reclamation instead. Yet, in the end, if a surety covers a bond claim by extending funds, the bonded mining company must reimburse the surety in full. In other words, the surety only serves as a guarantee but the final liability is carried by the mining company itself. The change to the surety bond requirement in Kentucky may be a precaution on behalf of lawmakers to make sure that bonds posted by permit applicants are actually capable of serving the purpose they are intended for. What do you think about the Bill and its provisions? Will these changes affect mining companies in any significant way? Let us know what you think in the comments! Open + Home>Power>Kentucky amends law allowing surface coal mining and reclamation permit applications to submit their own bonds Kentucky amends law allowing surface coal mining and reclamation permit applications to submit their own bonds June 6, 2018 By Vic Lance, Founder and President of Lance Surety Bond Associates At the beginning of April, Kentucky governor signed a bill that amends portions of chapters of the Kentucky Revised Statutes (KRS) that relate to mining. The 40-page bill introduces numerous new provisions with regards to different types of mining operations and procedures in the state. At the beginning of April, Kentucky governor signed a bill that amends portions of chapters of the Kentucky Revised Statutes (KRS) that relate to mining. The 40-page bill introduces numerous new provisions with regards to different types of mining operations and procedures in the state. Among these are also a handful of requirements related to applicants and holders of surface coal mining and reclamation permits. These include a change to requirements related to hearings related to civil penalties, a different bonding requirement for such licensees, and a requirement regarding extensions to an area covered by a permit. For a brief overview of the changes that apply to surface coal mining and reclamation permit applicants, see below! Kentucky House Bill 261 House Bill 261 introduces a somewhat lengthy list of changes to KRS Chapters 350, 351, and 352 (see here for a summary of all changes). A number of these changes also relate to surface coal mining and reclamation permits in the state. In short, the amendments in the bill that concern these permits include: The removal of the requirement for civil penalty assessments to be placed in an escrow account prior to formal hearings related to the amount of such assessment The removal of the option for such permit holders to submit their own reclamation bonds without separate sureties in lieu of the performance bond required under existing law With the exception of incidental boundary revisions, extensions of the area covered by a

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Sompo International completes acquisition of Lexon Surety Group

Bermudian property and casualty (P/C) re/insurer Sompo International Holdings (SI) has acquired Lexon Surety Group (Lexon), the second largest independent surety insurer in the United States. Lexon is comprised of Lexon Insurance Company, Bond Safeguard Insurance Company and Fortress National Group. The acquisition is expected to positively impact the subsidiaries’ financial strength ratings. Lexon staff and office locations are to be integrated with SI’s Surety business under the leadership of Christopher Sparro, Chief Executive Officer (CEO) of U.S. Insurance Brian Beggs, Executive Vice President (EVP), Sompo International Surety will lead the combined operation and will relocate to Lexon’s headquarters in Mt. Juliet, Tennessee. SI is to continue offering the same array of commercial and contract surety bonds, court and probate bonds, and U.S. Custom bonds products Lexon has offered since 2001. Commenting on the acquisition, Sparro said, “We are very excited to welcome Lexon into our U.S. Insurance operation. They have an excellent reputation and their technical underwriting proficiency is closely aligned with our corporate culture. The combined organization will be one of the ten leading insurers in the U.S. surety market, significantly contributing to our strategic expansion in the U.S.” Beggs added, “Lexon has a reputation for quality products and strong distribution relationships which are highly complementary to our current surety capabilities. Their nationwide network of agents and brokers coupled with expertise in specialty niches such as energy will enable us to substantially accelerate the growth of our primary surety portfolio.” https://www.reinsurancene.ws/sompo-international-completes-acquisition-of-lexon-surety-group/

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California Supreme Court Addresses “Good Faith” Construction Disputes Under Prompt Payment Laws

It’s been a rollercoaster. But the ride appears to be over. In United Riggers & Erectors, Inc. v. Coast Iron & Steel Co., Case No. S231549 (May 14, 2018), the California Supreme Court addressed whether a direct contractor can withhold payment from a subcontractor based on the “good faith dispute” exception of the state’s prompt payment laws if the “dispute” concerns any dispute between the parties or whether the dispute must be directly relevant to the specific payment that would otherwise be due. California’s Prompt Payment Laws California has a number of construction-related prompt payment laws scattered throughout the state’s Civil Code, Public Contracts Code and Business and Professions Code. Their application depends on the type of construction involved, whether public or private; the type of payment involved, whether a progress payment or retention; and who is paying, whether it’s a private owner, public entity, direct contractor, or subcontractor. While the application of these statutes vary they are structured similarly and provide for payment by a private owner, public entity, direct contractor, or subcontractor to lower-tiered parties within certain time-frames, ranging from seven days to 45 days. The failure to comply can subject these entities to prompt payment penalties of two percent per month, which exceeds the interest rate on many credit cards. Penalties, in other words, can be substantial. However, each of these statutes provide a “good faith” or “bona fide” dispute exception, in which a higher-tiered party can withhold from a lower-tiered party up to 150 percent of any amount disputed in “good faith” or in which there is a “bona fide” dispute, without being subject to the prompt payment statute’s credit card-like penalties for non-payment. At issue in United Riggers, was whether the good faith withholding exception applies to any disputes between the parties or only to disputes directly related to the payment that is due. Thus, for example, can a direct contractor who is back charging a subcontractor for defective work withhold up to 150 percent from a pay application submitted by that subcontractor, or is the good faith withholding exception limited to disputes related to that specific pay application? In United Riggers, the California Supreme Court, addressing this issue with respect to one of the state’s prompt payment statutes, Civil Code section 8814, found that the good faith withholding exception only applies if there is a “good faith” dispute as to a specific pay application. Read More … https://www.jdsupra.com/legalnews/california-supreme-court-addresses-good-15471/

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