(Article from Insurance Law Alert, November 2024)
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Holding
The Tenth Circuit affirmed that an increase in a monthly cost of insurance (“COI”) rate, which stemmed in part from the insurer’s loss of reinsurance, did not violate the terms of the policy. PHT Holding I LLC v. Sec. Life of Denver Ins. Co., 2024 U.S. App. LEXIS 28834 (10th Cir. Nov. 13, 2024).
Background
PHT Holding owned universal life insurance policies issued by Security Life. When Security Life originally priced the policies, it had reinsurance that that covered 90% of the death benefits payable under the policies. But when reinsurance premiums subsequently increased, Security Life’s parent company cancelled some of the reinsurance policies, which resulted in Security Life “recapturing” certain liabilities it had previously ceded to reinsurers. With a resulting loss on its balance sheet, Security Life thereafter increased certain policies’ COI rates—used to calculate monthly deductions from policyholders’ accounts—which helps Security Life fund the payout of any death benefits. Security Life implemented a 9.25% increase in the COI rate applicable to one line of policies and a 42.3% increase in the COI rate applicable to another line of policies.
Advance Trust, the predecessor to PHT and owner of five policies that were affected by the increase, filed a putative class action against Security Life. The complaint alleged breach of contract based on three theories: (1) breach of the cost of insurance provision by relying on impermissible factors in setting the new COI rates, (2) breach of the nonparticipating provisions by increasing COI rates to recoup past losses, and (3) breach of the cost of insurance provision by raising COI rates on a non-uniform basis across all universal life policy lines.
A Colorado district court granted summary judgment to Security Life on the first two bases but denied it on the third. Thereafter, the parties settled the third issue and the district court entered final judgment as to the first two issues. PHT appealed only the ruling as to the second issue (breach of the nonparticipating provisions).
Decision
Because PHT did not appeal the district court’s ruling on the cost of insurance provision, the Tenth Circuit accepted the district court’s conclusions that (1) the provision gives Security Life “substantial discretion” to set COI rates (so long as the company considers “certain mortality factors” and rates are uniformly raised across premium classes and below established maximums), and (2) Security Life’s increase in the COI rates did not violate the provision. The Tenth Circuit explained that because the cost of insurance provision is the only provision in the policy that addresses Security Life’s authority to set COI rates, the fact that Security Life complied with that provision when it raised COI rates is fatal to PHT’s appeal.
The nonparticipating provisions at issue on appeal state only that the policy is “nonparticipating,” meaning that it “does not participate in [the insurer’s] surplus earnings” and “is not eligible for dividends.” The Tenth Circuit noted that these provisions are unambiguous, entirely distinct from and unrelated to the cost of insurance provisions and provide only that the policyholders do not receive dividends. As such, the court held the nonparticipating provisions do not restrict Security Life’s ability to implement COI rate increases.
Comments
The court pointed to the conceptual distinction between participating and nonparticipating insurance as further support for its conclusion that nonparticipating provisions do not concern COI rates. Participating insurance pays dividends to policyholders, which represents a share of the insurer’s surplus earnings, whereas nonparticipating insurance makes no such payments. Thus, an insurer’s profits or losses (such as Security Life’s losses stemming from its reduction in reinsurance) are entirely irrelevant for a nonparticipating policy. However, where, as here, a cost of insurance provision in a nonparticipating policy gives the insurer discretion to set the COI rate, the insurer may consider its losses when adjusting the COI rate.