15
Special Clauses and Endorsements
by John F. Langen*
This chapter is written to acquaint the reader
with the basic intent of the following clauses: Follow-the-Fortunes, Losses
in Excess of Original Policy Limits, Extra Contractual Obligations, Aggregate
Extension, Interlocking, and the Guaranty Agreement, often referred to as
the Cut-through Endorsement. The contractual language currently used in the
U.S. marketplace will be illustrated and analyzed, with problem areas
highlighted. The clauses and endorsements herein are examples only and are
not offered as holy writ. Moreover, there are various clauses readily available
in the industry to express the intent of the parties. Nothing can replace
the art of proper contract drafting with a full understanding of the clauses
employed.
CLAUSES
Follow the Fortunes
Intent. Treaty reinsurance was not developed in a
buyer-or-seller- beware environment, but rather with the intent that both
parties could develop an honorable and profitable relationship. Historically,
the industry has relied upon the basic principles of utmost good faith
(uberrima fides) and follow-the-fortunes. The concept of
follow-the-fortunes originated during the early history of insurance. At
that time, underwriters agreed to share in the profits or losses of merchants
as they conducted their trade around the world. While the use of the
Follow-the-Fortunes clause can be traced to more than a century ago, it continues
to generate considerable discussion in current contracts.
Although the concepts of utmost good faith and
follow-the-fortunes work in tandem, only the latter will be discussed here.
The intent of the follow-the-fortunes concept is illustrated by the following
clause from a pro rata treaty.
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* Senior Vice President, Alexander Reinsurance Intermediaries,
Inc., One Landmark Square Suite 2101, Stamford, Connecticut 06901. An
autobiography appears at the end of the chapter.