The Late Notification and the Ex Gratia Settlement
A Nigerian insurer writes a property risk with a sum insured of ₦200 million and cedes 60% of the surplus above a ₦20 million retention to a facultative reinsurer. The facultative slip contains a clause: 'Notification of any claim likely to exceed 50% of the retention shall be given within 7 days, such notification being a condition precedent to liability.' A fire occurs in August. The cedant investigates, disputes liability with the insured, and only notifies the reinsurer in late September, 45 days after the loss. The cedant eventually settles at ₦120 million, of which ₦30 million is paid ex gratia to preserve a long-standing relationship. The reinsurer declines the entire cession, alleging breach of the notification clause.
1. Analyse the effect of the 45-day notification on the reinsurer's liability.
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Step 1 - Characterise the clause. The words 'condition precedent to liability' are significant. If the clause is a true condition precedent, failure to notify within 7 days discharges the reinsurer from liability for that claim, regardless of prejudice. But courts look at substance as well as form: is this a notice of loss clause or a claims control clause? A claims control clause gives the reinsurer the right to control the defence and is enforced strictly. A notice clause is construed more flexibly, and late notice may not defeat the claim unless the reinsurer can show prejudice.
Step 2 - Prejudice. The reinsurer should be asked what it would have done differently in the 38 days. If the cedant had already investigated and reserved its position, and the reinsurer could still have joined the investigation, prejudice may be hard to show. If the delay allowed the insured to settle on unfavourable terms, prejudice is easier to establish.
Step 3 - Actual knowledge. Check bordereaux, monthly reports and broker correspondence. If the reinsurer knew of the fire through another channel, it may be taken to have had notice, or to have waived the strict time limit.
Step 4 - The cedant's own conduct. The cedant's decision to dispute liability with the insured does not excuse notification; the clause requires notification of a claim likely to exceed the threshold, not of an admitted claim.
Conclusion: the reinsurer's position is strongest if the clause is a claims control clause and prejudice can be shown. If it is a notice clause and the reinsurer knew of the loss and suffered no prejudice, a total denial is likely to fail in arbitration or litigation.
2. Can the reinsurer be required to share in the ₦30 million ex gratia payment?
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No, on ordinary principles. A reinsurer is bound by a settlement only under a follow-the-settlements clause, and even then only where the cedant has acted honestly, in a businesslike way and within the terms of the original policy. Follow-the-settlements does not extend to:
- ex gratia payments, which are made without admission of liability;
- payments that are ex parte or outside the cover;
- settlements entered into without proper investigation.
The ex gratia element is by definition not a liability of the cedant under the policy. If the cedant chose to pay ₦30 million to preserve a relationship, that is a commercial decision the reinsurer did not agree to fund.
Calculation of the ceded share:
- Admitted claim: ₦120m − ₦30m = ₦90m.
- Retention: ₦20m.
- Ceded amount: ₦70m.
- Reinsurer's 60% share: ₦42m, not the ₦60m that would follow from the full ₦120m.
Caveat: the cedant should still check whether the facultative slip contains a clause obliging the reinsurer to follow the cedant's settlements 'without question'. Even then, ex gratia payments are usually excluded, and the cedant must prove the underlying liability. The cedant should also consider whether the ex gratia element was within its delegated claims authority.
3. What should the cedant do next, and what lessons should it build into its reinsurance programme?
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Immediate steps:
- Preserve the file. Assemble the full claim file, investigation notes, reserve history and settlement rationale.
- Test the clause. Obtain a legal opinion on whether the 7-day clause is a condition precedent or a notice requirement, and on the prejudice question.
- Open without prejudice discussions. Offer to accept the ₦42m cession on the admitted claim and to drop the ex gratia element, while asserting that late notice caused no prejudice.
- Check the broker's records for earlier notification and for any acknowledgement by the reinsurer.
Lessons for the programme:
- Diarise notification triggers at the level of the treaty threshold, not the cedant's commercial instinct. A claim 'likely to exceed' 50% of retention triggers notice even if liability is disputed.
- Notify on a precautionary basis with a reservation of rights; a precautionary notice costs little and preserves the cession.
- Separate ex gratia payments from the contractual claim file and obtain reinsurer consent before paying.
- Review facultative slips for 7-day clauses; many cedants negotiate 30 or 45 days, or delete the condition-precedent wording.
- Train claims and reinsurance staff on the difference between a claims control clause and a notice clause.