چکیده:
Today, individuals, industry owners, and especially insurers are seeking to obtain insurance coverage to ensure compensation for damages incurred. In this regard, sometimes two or three parties are related to each other: the insured, the insurer, and, if necessary, the third-party beneficiary. In this context, insurers also take action to conclude insurance contracts with other insurers to guarantee damages, which is referred to as reinsurance or retrocession. However, in the event of damage, insureds attempt to recourse not to their direct insurer, but to the reinsurer, and they have sometimes succeeded in this arena. However, in this article, the reasons for the impossibility of the insured to recourse to the reinsurer are examined with a look at the judicial practice of England and America.
خلاصه ماشینی:
It is even more interesting to know that the judicial practice of England and America often rejects the policyholder’s recourse to the reinsurer based on this very reason and does not accept it, and extends the dominance of this principle even in cases where the ceding insurer or direct insurer goes bankrupt (199623, Hall; 1983: 290, Nutter).
As in America, the first case in this regard was in favor of the liquidator of the bankrupt ceding insurer in recourse to reinsurance proceeds without the prior condition of paying damages to the primary policyholder (440: 1938, Harold).
In confirmation of this practice, about thirty years after the decision in cases involving the pro rata clause, the Supreme Court of the United States ruled that the liquidator of the bankrupt ceding insurer could resort to reinsurance proceeds without paying damages.
The perception of reinsurance as an indemnity type emerged in America in 1937, although previously in this country's law, the liquidator of the ceding insurer had the right to recourse 2 to reinsurance proceeds without paying damages to policyholders (Harold, 1938: 44).
These clauses in the contract emphasize the indemnity nature of reinsurance and the lack of the policyholder’s right to recourse against the reinsurer, and policyholders do not have the right to file a direct claim against the reinsurer unless the ceding insurer has incurred damage by paying actual damages to policyholders and third parties.
However, these clauses have been prohibited by law in the United States in some cases, including the bankruptcy of the ceding insurer, and the liquidator is authorized to resort to the reinsurer before paying compensation to policyholders or third-party claimants (200229, Tianfu).
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