UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTIONS 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2008
Commission File Number: 000-51520
AMERISAFE, INC.
(Exact Name of Registrant as Specified in Its Charter)
Texas | 75-2069407 | |
(State of Incorporation) |
(I.R.S. Employer Identification Number) |
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2301 Highway 190 West, DeRidder, Louisiana | 70634 | |
(Address of Principal Executive Offices) | (Zip Code) |
Registrants telephone number, including area code: (337) 463-9052
Securities registered pursuant to Section 12(b) of the Act:
Title of Class |
Name of Each Exchange on Which Registered |
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Common Stock, par value $0.01 per share | Nasdaq Stock Market LLC |
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x
Indicate by check mark whether the Registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer ¨ |
Accelerated filer x | |
Non-accelerated filer ¨ (Do not check if a smaller reporting company) |
Smaller reporting company ¨ |
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x
The aggregate market value of the voting common stock held by non-affiliates of the Registrant as of June 30, 2008 (the last business day of the Registrants most recently completed second fiscal quarter) was approximately $298.6 million, based upon the closing price of the shares on the NASDAQ Global Select Market on that date.
As of March 1, 2009, there were 18,856,602 shares of the Registrants common stock, par value $.01 per share, outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrants Proxy Statement relating to the 2009 Annual Meeting of Shareholders are incorporated by reference in Items 10, 11, 12, 13 and 14 of Part III of this report.
Page
No. |
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PART I |
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3 | ||||
Item 1 |
4 | |||
Item 1A |
32 | |||
Item 1B |
43 | |||
Item 2 |
43 | |||
Item 3 |
43 | |||
Item 4 |
43 | |||
PART II |
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Item 5 |
44 | |||
Item 6 |
49 | |||
Item 7 |
Managements Discussion and Analysis of Financial Condition and Results of Operations |
51 | ||
Item 7A |
69 | |||
Item 8 |
71 | |||
Item 9 |
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure |
114 | ||
Item 9A |
114 | |||
Item 9B |
116 | |||
PART III |
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Item 10 |
116 | |||
Item 11 |
116 | |||
Item 12 |
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
116 | ||
Item 13 |
Certain Relationships and Related Transactions, and Director Independence |
116 | ||
Item 14 |
116 | |||
PART IV |
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Item 15 |
117 |
This report contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and 21E of the Securities Exchange Act of 1934. You should not place undue reliance on these statements. These forward-looking statements include statements that reflect the current views of our senior management with respect to our financial performance and future events with respect to our business and the insurance industry in general. Statements that include the words expect, intend, plan, believe, project, forecast, estimate, may, should, anticipate and similar statements of a future or forward-looking nature identify forward-looking statements. Forward-looking statements address matters that involve risks and uncertainties. Accordingly, there are or will be important factors that could cause our actual results to differ materially from those indicated in these statements. We believe that these factors include, but are not limited to, the following:
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decreased level of business activity of our policyholders caused by decreased business activity in the industries we target; |
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changes in general economic conditions, including recession, inflation, performance of financial markets, interest rates, unemployment rates and fluctuating asset values; |
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decreased demand for our insurance; |
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greater frequency or severity of claims and loss activity, including as a result of natural or man-made catastrophic events, than our underwriting, reserving or investment practices anticipate based on historical experience or industry data; |
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negative developments in economic, competitive or regulatory conditions within the workers compensation insurance industry; |
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increased competition on the basis of premium rates, coverage availability, payment terms, claims management, safety services, policy terms, types of insurance offered, overall financial strength, financial ratings and reputation; |
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developments in capital markets that adversely affect the performance of our investments; |
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the cyclical nature of the workers compensation insurance industry; |
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changes in the availability, cost or quality of reinsurance and the failure of our reinsurers to pay claims in a timely manner or at all; |
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changes in regulations, laws, rates, or rating factors applicable to us, our policyholders or the agencies that sell our insurance; |
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changes in rating agency policies or practices; |
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loss of the services of any of our senior management or other key employees; |
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changes in legal theories of liability under our insurance policies; |
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the effects of U.S. involvement in hostilities with other countries and large-scale acts of terrorism, or the threat of hostilities or terrorist acts; and |
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other risks and uncertainties described from time to time in the Companys filings with the Securities and Exchange Commission (SEC). |
The foregoing factors should not be construed as exhaustive and should be read together with the other cautionary statements included in this report, including under the caption Risk Factors in Item 1A of this report. If one or more events related to these or other risks or uncertainties materialize, or if our underlying assumptions prove to be incorrect, actual results may differ materially from what we anticipate.
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PART I
Item 1. | Business. |
Overview
We are a specialty provider of workers compensation insurance focused on small to mid-sized employers engaged in hazardous industries, principally construction, trucking, agriculture, logging, oil and gas, maritime and sawmills. Since commencing operations in 1986, we have gained significant experience underwriting the complex workers compensation exposures inherent in these industries. We provide coverage to employers under state and federal workers compensation laws. These laws prescribe wage replacement and medical care benefits that employers are obligated to provide to their employees who are injured in the course and scope of their employment. Our workers compensation insurance policies provide benefits to injured employees for, among other things, temporary or permanent disability, death and medical and hospital expenses. The benefits payable and the duration of those benefits are set by state or federal law. The benefits vary by jurisdiction, the nature and severity of the injury and the wages of the employee. The employer, who is the policyholder, pays the premiums for coverage.
Hazardous industry employers tend to have less frequent but more severe claims as compared to employers in other industries due to the nature of their businesses. Injuries that occur are often severe in nature including death, dismemberment, paraplegia and quadriplegia. As a result, employers engaged in hazardous industries pay substantially higher than average rates for workers compensation insurance compared to employers in other industries, as measured per payroll dollar. The higher premium rates are due to the nature of the work performed and the inherent workplace danger of our target employers. For example, our construction employers generally on average paid premium rates equal to $6.84 per $100 of payroll to obtain workers compensation coverage for all of their employees in 2008.
We employ a proactive, disciplined approach in underwriting employers and providing comprehensive services intended to lessen the overall incidence and cost of workplace injuries. We provide safety services at employers workplaces as a vital component of our underwriting process and to promote safer workplaces. We utilize intensive claims management practices that we believe permit us to reduce the overall cost of our claims. In addition, our audit services ensure that our policyholders pay the appropriate premiums required under the terms of their policies and enable us to monitor payroll patterns that cause underwriting, safety or fraud concerns.
We believe that the higher premiums typically paid by our policyholders, together with our disciplined underwriting and safety, claims and audit services, provide us with the opportunity to earn attractive returns on equity.
AMERISAFE is an insurance holding company and was incorporated in Texas in 1985. We began operations in 1986 by focusing on workers compensation insurance for logging contractors in the southeast United States. In 1994, we expanded our focus to include the other hazardous industries we serve today. Two of our three insurance subsidiaries, American Interstate Insurance Company and Silver Oak Casualty, are domiciled in Louisiana. Our other insurance subsidiary, American Interstate Insurance Company of Texas, is domiciled in Texas.
Competitive Advantages
We believe we have the following competitive advantages:
Focus on Hazardous Industries. We have extensive experience insuring employers engaged in hazardous industries and have a history of profitable underwriting in these industries. Our specialized knowledge of these hazardous industries helps us better serve our policyholders, which leads to greater employer loyalty and policy retention. Our policy renewal rate on voluntary business that we elected to quote for renewal was 91.7% in 2008, 90.8% in 2007 and 91.1% in 2006.
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Focus on Small to Mid-Sized Employers. We believe large insurance companies generally do not target small to mid-sized employers in hazardous industries due to their smaller premium sizes, types of operations, mobile workforces and extensive service needs. We provide enhanced customer services to our policyholders. For example, unlike many of our competitors, our premium payment plans enable our policyholders to better match their premium payments with their payroll costs and cash flow.
Specialized Underwriting Expertise. Based on our 23-year history of insuring employers engaged in hazardous industries, we have developed industry specific risk analysis and rating tools that support our underwriters in risk selection and pricing. We are highly disciplined when quoting and binding new business. We do not delegate underwriting authority to agencies that sell our insurance or to any other third party.
Comprehensive Safety Services. We provide proactive safety reviews of employers worksites, which are often located in rural areas. These safety reviews are a vital component of our underwriting process and also assist our policyholders in loss prevention, and encourage safer workplaces by deploying experienced field safety professionals, or FSPs, to our policyholders worksites. In 2008, more than 88% of our new voluntary business policyholders were subject to pre-quotation safety inspections. Additionally, we perform periodic on-site safety surveys on all of our voluntary business policyholders.
Proactive Claims Management. Our employees manage substantially all of our open claims in-house utilizing intensive claims management practices that emphasize a personal approach and quality, cost-effective medical treatment. As of December 31, 2008, the open indemnity claims per field case manager, or FCM, averaged 50 claims, which we believe is significantly less than the industry average. We believe our claims management practices allow us to achieve a more favorable claim outcome, accelerate an employees return to work, lessen the likelihood of litigation, and more rapidly close claims, all of which ultimately lead to lower overall claim costs.
Strategy
We intend to increase our book value and produce favorable returns on equity using the following strategies:
Focus on Underwriting Profitability. We intend to maintain our underwriting discipline and profitability throughout market cycles. Our strategy is to focus on underwriting workers compensation insurance in hazardous industries and to maintain adequate rate levels commensurate with the risks we underwrite. We will also continue to strive for improved risk selection and pricing, as well as reduced frequency and severity of claims through comprehensive workplace safety reviews, effective medical cost containment measures, and rapid closing of claims through personal, direct contact with our policyholders and their employees.
Increase Market Penetration. Based on data received from the National Association of Insurance Commissioners, or the NAIC, we do not have more than 5.0% of the market share in any state we serve. As a result, we believe we have the opportunity to increase market penetration in those states. Competition in our target markets is fragmented by state and industry. We believe that our specialized underwriting expertise and safety, claims, and audit services position us to profitably increase our market share in our existing principal markets, with minimal increase in field service employees.
Prudent and Opportunistic Geographic Expansion. While we actively market our insurance in 30 states and the District of Columbia, 53.0% of our voluntary in-force premiums were generated in the seven states where we derived 5% or more of our gross premiums written in 2008. We are licensed in an additional 17 states and the U.S. Virgin Islands. Our existing licenses and rate filings will expedite our ability to write policies in these markets when we decide it is prudent to do so.
Leverage Existing Information Technology . We believe our customized operational system, ICAMS, along with the analytical data warehouse that ICAMS feeds, significantly enhances our ability to select risk, write profitable business, and cost-effectively administer our billing, claims, and audit functions.
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Maintain Capital Strength. We plan to manage our capital to achieve our profitability goals while maintaining optimal operating leverage for our insurance company subsidiaries. To accomplish this objective, we intend to maintain underwriting profitability throughout market cycles, optimize our use of reinsurance and produce an appropriate risk adjusted return on our growing investment portfolio.
Industry
Overview . Workers compensation is a statutory system under which an employer is required to pay for its employees medical, disability, vocational rehabilitation and death benefit costs for work-related injuries or illnesses. Most employers satisfy this requirement by purchasing workers compensation insurance. The principal concept underlying workers compensation laws is that employees injured in the course and scope of their employment have only the legal remedies available under workers compensation laws and do not have any other recourse against their employer. An employers obligation to pay workers compensation does not depend on any negligence or wrongdoing on the part of the employer and exists even for injuries that result from the negligence or fault of another person, a co-employee, or, in most instances, the injured employee.
Workers compensation insurance policies generally provide that the insurance carrier will pay all benefits that the insured employer may become obligated to pay under applicable workers compensation laws. Each state has a regulatory and adjudicatory system that quantifies the level of wage replacement to be paid, determines the level of medical care required to be provided and the cost of temporary or permanent impairment and specifies the options in selecting medical providers available to the injured employee or the employer. These state laws generally require two types of benefits for injured employees: (1) medical benefits, which include expenses related to diagnosis and treatment of the injury, as well as any required rehabilitation, and (2) indemnity payments, which consist of temporary wage replacement, permanent disability payments and death benefits to surviving family members. To fulfill these mandated financial obligations, virtually all employers are required to purchase workers compensation insurance or, if permitted by state law or approved by the U.S. Department of Labor, to self-insure. The employers may purchase workers compensation insurance from a private insurance carrier, a state-sanctioned assigned risk pool, or a self-insurance fund, which is an entity that allows employers to obtain workers compensation coverage on a pooled basis, typically subjecting each employer to joint and several liability for the entire fund.
Workers compensation was the fourth-largest property and casualty insurance line in the United States in 2007, according to A.M. Best. Direct premiums written in 2007 for the workers compensation insurance industry were $52 billion, and direct premiums written for the property and casualty industry as a whole were $441 billion, according to A.M. Best. According to the most recent market data reported by the National Council on Compensation Insurance, Inc., or the NCCI, which is the official ratings bureau in the majority of states in which we are licensed, total premiums reported for the specific occupational class codes for which we underwrite business were $15 billion.
Outlook . We believe that current economic conditions will adversely affect our reported gross premiums written and revenues in 2009. In 2008, 73.5% of our gross premiums written were derived from policyholders in the construction, trucking, agriculture and logging industries. As a result, our gross premiums written are, to a significant extent, dependent upon economic conditions in those industries, as well as upon economic conditions generally. Economic activity began to decline in the latter part of 2007 and the decline accelerated in 2008, negatively affecting the construction, trucking, agriculture and logging industries, along with others. We believe that the slowdown in economic activity will continue in 2009. We further believe that the challenges presented by this slowing economic activity will be aggravated by the impact of lower estimated loss costs adopted by a number of states in which we do business. Estimated loss costs provide the basis upon which we calculate the premiums we charge for the insurance we write. Lower loss costs are part of the normal cyclicality of our industry, and we believe they will eventually reverse themselves. However, we cannot predict the timing of any changes in loss costs. Notwithstanding current market conditions, we will continue to focus on market segmentation, effective risk selection, expense management and overall underwriting profitability.
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Policyholders
As of December 31, 2008, we had more than 7,700 voluntary business policyholders with an average annual workers compensation policy premium of $36,653. As of December 31, 2008, our ten largest voluntary business policyholders accounted for 2.2% of our in-force premiums. Our policy renewal rate on voluntary business that we elected to quote for renewal was 91.7% in 2008, 90.8% in 2007 and 91.1% in 2006.
In addition to our voluntary workers compensation business, we underwrite workers compensation policies for employers assigned to us and assume reinsurance premiums from mandatory pooling arrangements, in each case to fulfill our obligations under residual market programs implemented by the states in which we operate. We separately underwrite general liability insurance policies for our workers compensation policyholders in the logging industry on a select basis. Our assigned risk business fulfills our statutory obligation to participate in residual market plans in four states. See RegulationResidual Market Programs below. For the year ended December 31, 2008, our assigned risk business accounted for 1.4% of our gross premiums written, and our assumed premiums from mandatory pooling arrangements accounted for 1.4% of our gross premiums written. Our general liability insurance business accounted for less than 0.5% of our gross premiums written for the year ended December 31, 2008.
Targeted Industries
We provide workers compensation insurance primarily to employers in the following targeted hazardous industries:
Construction. Includes a broad range of operations such as highway and bridge construction, building and maintenance of pipeline and powerline networks, excavation, commercial construction, roofing, iron and steel erection, tower erection and numerous other specialized construction operations. In 2008, our average policy premium for voluntary workers compensation within the construction industry was $37,298, or $6.84 per $100 of payroll.
Trucking. Includes a large spectrum of diverse operations including contract haulers, regional and local freight carriers, special equipment transporters and other trucking companies that conduct a variety of short- and long-haul operations. In 2008, our average policy premium for voluntary workers compensation within the trucking industry was $39,102, or $7.36 per $100 of payroll.
Agriculture. Includes crop maintenance and harvesting, grain and produce operations, nursery operations, meat processing, and livestock feed and transportation. In 2008, our average policy premium for voluntary workers compensation within the agriculture industry was $23,341, or $5.66 per $100 of payroll.
Logging. Includes tree harvesting operations ranging from labor intensive chainsaw felling and trimming to sophisticated mechanized operations using heavy equipment. In 2008, our average policy premium for voluntary workers compensation within the logging industry was $18,552, or $15.79 per $100 of payroll.
Oil and Gas. Includes various oil and gas activities including gathering, transportation, processing, production, and field service operations. In 2008, our average policy premium for voluntary workers compensation within the oil and gas industry was $46,602, or $5.91 per $100 of payroll.
Maritime. Includes ship building and repair, pier and marine construction, inter-coastal construction, and stevedoring. In 2008, our average policy premium for voluntary workers compensation within the maritime industry was $73,769, or $8.02 per $100 of payroll.
Sawmills. Includes sawmills and various other lumber-related operations. In 2008, our average policy premium for the sawmill industry was $27,131, or $8.41 per $100 of payroll.
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Our gross premiums are derived from:
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Direct Premiums. Includes premiums from workers compensation and general liability insurance policies that we issue to: |
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employers who seek to purchase insurance directly from us and who we voluntarily agree to insure, which we refer to as our voluntary business; and |
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employers assigned to us under residual market programs implemented by some of the states in which we operate, which we refer to as our assigned risk business. |
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Assumed Premiums. Includes premiums from our participation in mandatory pooling arrangements under residual market programs implemented by some of the states in which we operate. |
In addition to workers compensation insurance, we also offer general liability insurance coverage only to our workers compensation policyholders in the logging industry on a select basis. As of December 31, 2008, less than 0.6% of our voluntary in-force premiums were derived from general liability policies.
Gross premiums written during the years ended December 31, 2008, 2007 and 2006, and the allocation of those premiums among the hazardous industries we target are presented in the table below.
Gross Premiums Written |
Percentage of
Gross Premiums Written |
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2008 | 2007 | 2006 | 2008 | 2007 | 2006 | |||||||||||||
(In thousands) | ||||||||||||||||||
Voluntary business: |
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Construction |
$ | 127,667 | $ | 136,834 | $ | 132,083 | 41.5 | % | 41.7 | % | 39.7 | % | ||||||
Trucking |
67,072 | 73,064 | 70,221 | 21.8 | % | 22.3 | % | 21.1 | % | |||||||||
Agriculture |
16,487 | 15,778 | 13,681 | 5.3 | % | 4.8 | % | 4.1 | % | |||||||||
Logging |
14,983 | 17,209 | 24,553 | 4.9 | % | 5.3 | % | 7.4 | % | |||||||||
Oil and Gas |
13,308 | 12,505 | 10,578 | 4.3 | % | 3.8 | % | 3.2 | % | |||||||||
Maritime |
8,642 | 8,526 | 9,180 | 2.8 | % | 2.6 | % | 2.8 | % | |||||||||
Sawmills |
3,915 | 5,389 | 4,260 | 1.3 | % | 1.6 | % | 1.3 | % | |||||||||
Other |
47,131 | 46,766 | 51,547 | 15.3 | % | 14.3 | % | 15.5 | % | |||||||||
Total voluntary business |
299,205 | 316,071 | 316,103 | 97.2 | % | 96.4 | % | 95.1 | % | |||||||||
Assigned risk business |
4,344 | 7,554 | 11,936 | 1.4 | % | 2.3 | % | 3.6 | % | |||||||||
Assumed premiums |
4,291 | 4,136 | 4,452 | 1.4 | % | 1.3 | % | 1.3 | % | |||||||||
Total |
$ | 307,840 | $ | 327,761 | $ | 332,491 | 100.0 | % | 100.0 | % | 100.0 | % | ||||||
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Geographic Distribution
We are licensed to provide workers compensation insurance in 47 states, the District of Columbia and the U.S. Virgin Islands. We operate on a geographically diverse basis with no more than 9.6% of our gross premiums written in 2008 derived from any one state. The table below identifies, for the years ended December 31, 2008, 2007 and 2006, the states in which the percentage of our gross premiums written exceeded 3.0% for any of the three years presented.
Percentage of Gross Premiums Written
Year Ended December 31, |
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State |
2008 | 2007 | 2006 | ||||||
Georgia |
9.6 | % | 9.9 | % | 9.1 | % | |||
Louisiana |
8.8 | % | 10.6 | % | 8.9 | % | |||
North Carolina |
8.7 | % | 9.5 | % | 7.5 | % | |||
Oklahoma |
7.5 | % | 4.9 | % | 4.4 | % | |||
Illinois |
6.8 | % | 5.2 | % | 4.6 | % | |||
Virginia |
5.9 | % | 5.8 | % | 6.1 | % | |||
Pennsylvania |
5.6 | % | 4.7 | % | 4.8 | % | |||
Texas |
4.5 | % | 4.1 | % | 5.8 | % | |||
South Carolina |
4.1 | % | 4.8 | % | 4.5 | % | |||
Minnesota |
3.9 | % | 3.8 | % | 4.4 | % | |||
Mississippi |
3.6 | % | 4.6 | % | 4.2 | % | |||
Tennessee |
3.5 | % | 3.9 | % | 4.2 | % | |||
Alaska |
3.3 | % | 3.5 | % | 4.4 | % | |||
Wisconsin |
3.3 | % | 3.4 | % | 2.9 | % | |||
Florida |
3.0 | % | 4.6 | % | 6.5 | % | |||
Arkansas |
2.8 | % | 2.9 | % | 3.8 | % |
Sales and Marketing
We sell our workers compensation insurance through agencies. As of December 31, 2008, our insurance was sold through more than 2,800 independent agencies and our wholly-owned insurance agency subsidiary, Amerisafe General Agency, which is licensed in 27 states. We are selective in establishing and maintaining relationships with independent agencies. We establish and maintain relationships only with those agencies that provide quality application flow from policyholders in our target industries and classes that are reasonably likely to accept our quotes. We compensate these agencies by paying a commission based on the premium collected from the policyholder. Our average commission rate for our independent agencies was 7.4% for the year ended December 31, 2008. We pay our insurance agency subsidiary a commission rate of 8.0%. Neither our independent agencies nor our insurance agency subsidiary has authority to underwrite or bind coverage. We do not pay contingent commissions.
As of December 31, 2008, independent agencies accounted for 89.8% of our voluntary in-force premiums, and no independent agency accounted for more than 1.0% of our voluntary in-force premiums at that date.
Underwriting
Our underwriting strategy is to focus on employers in certain hazardous industries that operate in those states where our underwriting efforts are the most profitable and efficient. We analyze each prospective policyholder on its own merits relative to known industry trends and statistical data. Our underwriting guidelines specify that we do not write workers compensation insurance for certain hazardous activities, including sub-surface mining and manufacturing of ammunition or fireworks.
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Underwriting is a multi-step process that begins with the receipt of an application from one of our agencies. We initially review the application to confirm that the prospective policyholder meets certain established criteria, including that it is engaged in one of our targeted hazardous industries and industry classes and operates in the states we target. If the application satisfies these criteria, the application is forwarded to our underwriting department for further review.
Our underwriting department reviews the application to determine if the application meets our underwriting criteria and whether all required information has been provided. If additional information is required, the underwriting department requests additional information from the agency. This initial review process is generally completed within three days after the application is received by us. Once this initial review process is complete, our underwriting department requests that a pre-quotation safety inspection be performed.
After the pre-quotation safety inspection has been completed, our underwriting professionals review the results of the inspection to determine if a rate quote should be made and, if so, prepare the quote. The rate quote must be reviewed and approved by our underwriting department before it is delivered to the agency. All decisions by our underwriting department, including decisions to decline applications, are subject to review and approval by our management-level underwriters.
Our underwriting professionals participate in an incentive compensation program under which bonuses are paid quarterly based upon achieving premium underwriting volume and loss ratio targets. The determination of whether targets have been satisfied is made 30 months after the relevant incentive compensation period.
Pricing
In the majority of states, workers compensation insurance rates are based upon published loss costs. Loss costs are derived from wage and loss data reported by insurers to the states statistical agent, which in most states is the NCCI. The state agent then promulgates loss costs for specific job descriptions or class codes. Insurers file requests for adoption of a loss cost multiplier, or LCM, to be applied to the loss costs to support operating costs and profit margins. In addition, most states allow pricing flexibility above and below the filed LCM, within certain limits.
We obtain approval of our rates, including our LCMs, from state regulatory authorities. To maintain rates at profitable levels, we regularly monitor and adjust our LCMs. The effective LCM for our voluntary business was 1.46 for policy year 2008, 1.51 for policy year 2007, 1.54 for policy year 2006, 1.56 for policy year 2005 and 1.53 for policy year 2004. If we are unable to charge rates in a particular state or industry to produce satisfactory results, we seek to control and reduce our premium volume in that state or industry and redeploy our capital in other states or industries that offer greater opportunity to earn an underwriting profit.
Safety
Our safety inspection process begins with a request from our underwriting department to perform a pre-quotation safety inspection. Our safety inspections focus on a prospective policyholders operations, loss exposures and existing safety controls to prevent potential losses. The factors considered in our inspection include employee experience, turnover, training, previous loss history and corrective actions, and workplace conditions, including equipment condition and, where appropriate, use of fall protection, respiratory protection, or other safety devices. Our field safety professionals, or FSPs, travel to employers worksites to perform these safety inspections. These initial in-depth analyses allow our underwriting professionals to make decisions on both insurability and pricing. In certain circumstances, we will agree to provide workers compensation insurance only if the employer agrees to implement and maintain the safety management practices that we recommend. In 2008, more than 88% of our new voluntary business policyholders were inspected prior to our offering a premium quote. The remaining voluntary business policyholders were not inspected prior to a premium quote for a variety of reasons, including small premium size or the fact that the policyholder was previously a policyholder subject to our safety inspections.
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After an employer becomes a policyholder, we continue to emphasize workplace safety through periodic workplace visits, assisting the policyholder in designing and implementing enhanced safety management programs, providing safety-related information and conducting rigorous post-accident management. Generally, we may cancel or decline to renew an insurance policy if the policyholder does not implement or maintain reasonable safety management practices that we recommend.
Our FSPs participate in an incentive compensation program under which bonuses are paid semi-annually based upon an FSPs production and their policyholders aggregate loss ratios. The results are measured 33 months after the inception of the subject policy period.
Claims
We have structured our claims operation to provide immediate, intensive, and personal management of claims to guide injured employees through medical treatment, rehabilitation and recovery, with the primary goal of returning the injured employee to work as promptly as practicable. We seek to limit the number of claim disputes with injured employees through early intervention in the claims process.
Our field case managers, or FCMs, are located in the geographic areas where our policyholders are based. We believe the presence of our FCMs in the field enhances our ability to guide an injured employee to the appropriate conclusion in a friendly, dignified and supportive manner. Our FCMs have broad authority to manage claims from occurrence of a workplace injury through resolution, including authority to retain many different medical providers at our expense. Such providers comprise not only our recommended medical providers, but also nurse case managers, independent medical examiners, vocational specialists, rehabilitation specialists and other specialty providers of medical services necessary to achieve a quality outcome.
Following notification of a workplace injury, a FCM will contact the policyholder, the injured employee, and/or the treating physician to determine the nature and severity of the injury. If a serious injury occurs, the FCM will promptly visit the injured employee or the employees family members to discuss the benefits provided. The FCM will also visit the treating physician to discuss the proposed treatment plan. Our FCM assists the injured employee in receiving appropriate medical treatment and encourages the use of our recommended medical providers and facilities. For example, our FCM may suggest that a treating physician refer an injured worker to another physician or treatment facility that we believe has had positive outcomes for other workers with similar injuries. We actively monitor the number of open cases handled by a single FCM in order to maintain focus on each specific injured employee. As of December 31, 2008, we averaged 50 open indemnity claims per FCM, which we believe is significantly less than the industry average.
Locating our FCMs in the field also allows us to build professional relationships with local medical providers. In selecting medical providers, we rely, in part, on the recommendations of our FCMs who have developed professional relationships within their geographic areas. We also seek input from our policyholders and other contacts in the markets that we serve. While cost factors are considered in selecting medical providers, we consider the most important factor in the selection process to be the medical providers ability to achieve a quality outcome. We define quality outcome as the injured workers rapid, conclusive recovery and return to sustained, full capacity employment.
While we seek to promptly settle valid claims, we also aggressively defend against claims we consider to be non-meritorious. Where possible, we purchase annuities on longer life claims to close the claim, while still providing an appropriate level of benefits to an injured employee.
Premium Audits
We conduct premium audits on all of our voluntary business policyholders annually, upon the expiration of each policy, including when the policy is renewed. The purpose of these audits is to verify that policyholders have accurately reported their payroll expenses and employee job classifications, and therefore, have paid us the
11
premium required under the terms of their policies. In addition to annual audits, we selectively perform interim audits on certain classes of business if significant or unusual claims are filed or if the monthly reports submitted by a policyholder reflect a payroll pattern or other aberrations that cause underwriting, safety or fraud concerns. We also mitigate potential losses from under-reporting of premium or delinquent premium payment by collecting a deposit from the policyholder at the inception of the policy, typically representing 15% of the total estimated annual premium, which deposit can be utilized to offset losses from non-payment of premium.
Loss Reserves
We record reserves for estimated losses under insurance policies that we write and for loss adjustment expenses related to the investigation and settlement of policy claims. Our reserves for loss and loss adjustment expenses represent the estimated cost of all reported and unreported loss and loss adjustment expenses incurred and unpaid at a given point in time.
In establishing our reserves, we review the results of analyses using actuarial methodologies that utilize historical loss data from our more than 23 years of underwriting workers compensation insurance. In evaluating the results of those analyses, our management also uses substantial judgment in considering other factors that are not considered in these actuarial analyses. These actuarial methodologies and subjective factors are described in more detail below. Our process and methodology for estimating reserves applies to both our voluntary and assigned risk business, but does not include our reserves for mandatory pooling arrangements. We record reserves for mandatory pooling arrangements as those reserves are reported to us by the pool administrators. We do not use loss discounting when we determine our reserves, which would involve recognizing the time value of money and offsetting estimates of future payments by future expected investment income.
When a claim is reported, we establish an initial case reserve for the estimated amount of our loss based on our estimate of the most likely outcome of the claim at that time. Generally, that case reserve is established within 14 days after the claim is reported and consists of anticipated medical costs, indemnity costs, and specific adjustment expenses, which we refer to as defense and cost containment expenses, or DCC expenses. The most complex claims, involving severe injuries, may take a considerable period of time for us to establish a more precise estimate of the most likely outcome of the claim. At any point in time, the amount paid on a claim, plus the reserve for future amounts to be paid, represents the estimated total cost of the claim, or the case incurred amount. The estimated amount of loss for a reported claim is based upon various factors, including:
|
type of loss; |
|
severity of the injury or damage; |
|
age and occupation of the injured employee; |
|
estimated length of temporary disability; |
|
anticipated permanent disability; |
|
expected medical procedures, costs and duration; |
|
our knowledge of the circumstances surrounding the claim; |
|
insurance policy provisions related to the claim, including coverage; |
|
jurisdiction of the occurrence; and |
|
other benefits defined by applicable statute. |
12
The case incurred amount varies over time due to uncertainties with respect to medical treatment and outcome, length and degree of disability, recurrence of injury, employment availability and wage levels and judicial determinations. As changes occur, the case incurred amount is adjusted. The initial estimate of the case incurred amount can vary significantly from the amount ultimately paid, especially in circumstances involving severe injuries with comprehensive medical treatment. Changes in case incurred amounts is an important component of our historical claim data.
In addition to case reserves, we establish reserves on an aggregate basis for loss and DCC expenses that have been incurred but not reported, or IBNR. Our IBNR reserves are also intended to provide for aggregate changes in case incurred amounts as well as the unpaid cost of recently reported claims for which an initial case reserve has not been established.
The third component of our reserves for loss and loss adjustment expenses is our adjusting and other reserve, or AO reserve. Our AO reserve is established for the costs of future unallocated loss adjustment expenses for all reported and unreported claims. Our AO reserve covers primarily the estimated cost of administering claims. The final component of our reserves for loss and loss adjustment expenses is the reserve for mandatory pooling arrangements.
In establishing reserves, we rely on the analysis of the more than 161,000 claims in our 23-year history. Using statistical analyses and actuarial methods, we estimate reserves based on historical patterns of case development, payment patterns, mix of business, premium rates charged, case reserving adequacy, operational changes, adjustment philosophy and severity and duration trends.
We review our reserves by industry and state on a quarterly basis. Individual open claims are reviewed more frequently and adjustments to case incurred amounts are made based on expected outcomes. The number of claims reported or occurring during a period, combined with a calculation of average case incurred amounts, and measured over time, provide the foundation for our reserve estimates. In establishing our reserve estimates, we use historical trends in claim reporting timeliness, frequency of claims in relation to earned premium or covered payroll, premium rate levels charged and case development patterns. However, the number of variables and judgments involved in establishing reserve estimates, combined with some random variation in loss development patterns, results in uncertainty regarding projected ultimate losses. As a result, our ultimate liability for loss and loss adjustment expenses may be more or less than our reserve estimate.
Our analysis of our historical data provides the factors we use in our statistical and actuarial analysis in estimating our loss and DCC expense reserve. These factors are primarily measures over time of claims reported, average case incurred amounts, case development, duration, severity and payment patterns. However, these factors cannot be solely used as these factors do not take into consideration changes in business mix, claims management, regulatory issues, medical trends, medical inflation, employment and wage patterns, and other subjective factors. We use this combination of factors and subjective assumptions in the use of six well-accepted actuarial methods, as follows:
|
Paid Development Methoduses historical, cumulative paid loss patterns to derive estimated ultimate losses by accident year based upon the assumption that each accident year will develop to estimated ultimate cost in a manner that is analogous to prior years. |
|
Paid Weighted Severity (Generalized Cape Cod) Methodmultiplies estimated ultimate claims for each accident year by a weighted average, trended and developed severity. The ultimate claims estimate is based on paid claim count development. The selected severity for a given accident year is derived by giving some weight to all of the accident years in the experience history rather than treating each accident year independently. |
|
Paid Bornhuetter-Ferguson (B-F) Methoda combination of the Paid Development Method and the Paid Weighted Severity Method, the Paid B-F Method estimates ultimate losses by adding the current actual paid losses to projected unpaid losses. |
13
|
Incurred Development Methoduses historical, cumulative incurred loss patterns to derive estimated ultimate losses by accident year based upon the assumption that each accident year will develop to estimated ultimate cost in a manner that is analogous to prior years. |
|
Incurred Weighted Severity (Generalized Cape Cod) Methodmultiplies estimated ultimate claims for each accident year by a weighted average, trended and developed severity. The ultimate claims estimate is based on incurred claim count development. The selected severity for a given accident year is derived by giving some weight to all of the accident years in the experience history rather than treating each accident year independently. |
|
Incurred B-F Methoda combination of the Incurred Development Method and the Incurred Weighted Severity Method, the Incurred B-F Method projects ultimate losses by adding the current actual incurred losses to the projected unreported losses. |
These six methods are applied to both net and gross data. Due to the volatility and unpredictability of excess losses, several B-F estimates of excess losses are also used to estimate the ultimate losses gross of reinsurance. We then analyze the results and may emphasize or de-emphasize some or all of the outcomes to reflect our judgment of their reasonableness in relation to supplementary information and operational and industry changes. These outcomes are then aggregated to produce a single weighted average point estimate that is the base estimate for loss and DCC expense reserves.
In determining the level of emphasis that may be placed on some or all of the methods, we review statistical information as to which methods are most appropriate, whether adjustments are appropriate within the particular methods, and if results produced by each method include inherent bias reflecting operational and industry changes. This supplementary information may include:
|
open and closed claim counts; |
|
statistics related to open and closed claim count percentages; |
|
claim closure rates; |
|
changes in average case reserves and average loss and DCC expenses incurred on open claims; |
|
reported and ultimate average case incurred changes; |
|
reported and projected ultimate loss ratios; and |
|
loss payment patterns. |
In establishing our AO reserves, we review our past adjustment expenses in relation to paid claims as well as estimated future costs based on expected claims activity and duration.
The sum of our net loss and DCC expense reserve, our AO reserve, and our reserve for mandatory pooling arrangements is our total net reserve for loss and loss adjustment expenses.
As of December 31, 2008, our best estimate of our ultimate liability for loss and loss adjustment expenses, net of amounts recoverable from reinsurers, was $474.7 million, which includes $9.2 million in reserves for mandatory pooling arrangements as reported by the pool administrators. This estimate was derived from the process and methodology described above, which relies on substantial judgment. There is inherent uncertainty in estimating our reserves for loss and loss adjustment expenses. It is possible that our actual loss and loss adjustment expenses incurred may vary significantly from our estimates.
14
As noted above, our reserve estimate is developed based upon our analysis of historical data, and factors derived from that data, including claims reported, average claim amount incurred, case development, duration, severity and payment patterns, as well as subjective assumptions. We view our estimate of loss and DCC expenses as the most significant component of our reserve for loss and loss adjustment expenses.
Additional information regarding our reserve for unpaid loss and loss adjustment expenses as of December 31, 2008, 2007, and 2006 is set forth below:
2008 | 2007 | 2006 | ||||||||||
(In thousands) | ||||||||||||
Gross case loss and DCC reserves |
$ | 375,098 | $ | 392,540 | $ | 375,783 | ||||||
AO reserves |
16,732 | 16,794 | 18,903 | |||||||||
Gross IBNR reserves |
139,463 | 128,069 | 124,492 | |||||||||
Gross unpaid loss, DCC and AO reserves |
531,293 | 537,403 | 519,178 | |||||||||
Reinsurance recoverables on unpaid loss and LAE |
(56,596 | ) | (74,925 | ) | (106,810 | ) | ||||||
Net unpaid loss, DCC and AO reserves |
$ | 474,697 | $ | 462,478 | $ | 412,368 | ||||||
We performed sensitivity analyses to show how our net loss and DCC expense reserve, including IBNR, would be impacted by changes in certain critical assumptions. For our paid and incurred Development methods, we varied both the cumulative paid and incurred loss development factors (LDFs) by plus and minus 20%, both individually and in combination with one another. The results of this sensitivity analysis, using December 31, 2008 data, are summarized below.
Change in Paid LDFs |
Change in
Incurred LDFs |
Resultant Change in
Net Loss and DCC Reserve |
|||||||
Amount ($) |
Percentage |
||||||||
(In thousands) | |||||||||
+20% |
+20 | % | 19,738 | 4.4 | % | ||||
+20% |
0 | % | 8,812 | 2.0 | % | ||||
+20% |
20 | % | (1,990 | ) | (0.4 | )% | |||
0% |
+20 | % | 11,555 | 2.6 | % | ||||
0% |
0 | % | | 0.0 | % | ||||
0% |
20 | % | (10,776 | ) | (2.4 | )% | |||
20% |
+20 | % | 5,926 | 1.3 | % | ||||
20% |
0 | % | (6,581 | ) | (1.5 | )% | |||
20% |
20 | % | (18,033 | ) | (4.0 | )% |
For our paid and incurred Weighted Severity methods, we varied our year-end selected trend factor (for medical costs, defense costs, wage inflation, etc.) by plus and minus 20%. The results of this sensitivity analysis, using December 31, 2008 data, are summarized below.
Change in Severity Trend |
Resultant Change in
Net Loss and DCC Reserve |
|||
Amount ($) | Percentage | |||
(In thousands) | ||||
+20% |
8,544 | 1.9% | ||
20% |
(6,858) | (1.5)% |
15
The Bornhuetter-Ferguson method estimates ultimate loss by averaging Weighted Severity paid or incurred losses and expected future paid or incurred development. To measure sensitivity, we changed this average by plus and minus 20%. The results of this sensitivity analysis, using December 31, 2008 data, are summarized below.
Change in Expected Losses |
Resultant Change in
Net Loss and DCC Reserve |
|||
Amount ($) | Percentage | |||
(In thousands) | ||||
+20% |
10,493 | 2.3% | ||
20% |
(6,890) | (1.5)% |
Reconciliation of Loss Reserves
The table below shows the reconciliation of loss reserves on a gross and net basis for the years ended December 31, 2008, 2007 and 2006, reflecting changes in losses incurred and paid losses.
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(In thousands) | ||||||||||||
Balance, beginning of period |
$ | 537,403 | $ | 519,178 | $ | 484,485 | ||||||
Less amounts recoverable from reinsurers on unpaid loss and loss adjustment expenses |
74,925 | 106,810 | 120,232 | |||||||||
Net balance, beginning of period |
462,478 | 412,368 | 364,253 | |||||||||
Add incurred related to: |
||||||||||||
Current year |
196,776 | 208,021 | 201,711 | |||||||||
Prior years |
(20,387 | ) | (9,490 | ) | (2,227 | ) | ||||||
Total incurred |
176,389 | 198,531 | 199,484 | |||||||||
Less paid related to: |
||||||||||||
Current year |
47,539 | 43,012 | 41,002 | |||||||||
Prior years |
116,631 | 105,409 | 110,367 | |||||||||
Total paid |
164,170 | 148,421 | 151,369 | |||||||||
Net balance, end of period |
474,697 | 462,478 | 412,368 | |||||||||
Add amounts recoverable from reinsurers on unpaid loss and loss adjustment expenses |
56,596 | 74,925 | 106,810 | |||||||||
Balance, end of period |
$ | 531,293 | $ | 537,403 | $ | 519,178 | ||||||
Our gross reserves for loss and loss adjustment expenses of $531.3 million as of December 31, 2008 are expected to cover all unpaid loss and loss adjustment expenses as of that date. As of December 31, 2008, we had 4,793 open claims, with an average of $110,848 in unpaid loss and loss adjustment expenses per open claim. During the year ended December 31, 2008, 6,324 new claims were reported, and 6,831 claims were closed.
As of December 31, 2007, our gross reserves for loss and loss adjustment expenses were $537.4 million. Our reserves decreased from December 31, 2007 to December 31, 2008 as a result of an increase in the current accident year loss ratio combined with a decrease in amounts recoverable from reinsurers, offset by $20.4 million of favorable development in prior accident years. As of December 31, 2007, we had 5,300 open claims, with an average of $101,397 in unpaid loss and loss adjustment expenses per open claim. During the year ended December 31, 2007, 6,899 new claims were reported, and 7,293 claims were closed.
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As of December 31, 2006, our gross reserves for loss and loss adjustment expenses were $519.2 million. Our reserves increased from December 31, 2006 to December 31, 2007 as a result of an increase in the current accident year loss ratio combined with a decrease in the amounts recoverable from reinsurers, offset by $9.5 million of favorable development in prior accident years. As of December 31, 2006, we had 5,694 open claims, with an average of $91,180 in unpaid loss and loss adjustment expenses per open claim. During the year ended December 31, 2006, 6,581 new claims were reported, and 6,942 claims were closed.
Loss Development
The table below shows the net loss development for business written each year from 1998 through 2008. The table reflects the changes in our loss and loss adjustment expense reserves in subsequent years from the prior loss estimates based on experience as of the end of each succeeding year on a GAAP basis.
The first line of the table shows, for the years indicated, our liability including the incurred but not reported loss and loss adjustment expenses as originally estimated, net of amounts recoverable from reinsurers. For example, as of December 31, 1998, it was estimated that $43.6 million would be sufficient to settle all claims not already settled that had occurred on or prior to December 31, 1998, whether reported or unreported. The next section of the table sets forth the re-estimates in later years of incurred losses, including payments, for the years indicated. The next section of the table shows, by year, the cumulative amounts of loss and loss adjustment expense payments, net of amounts recoverable from reinsurers, as of the end of each succeeding year. For example, with respect to the net loss reserves of $43.6 million as of December 31, 1998, by December 31, 2008 (ten years later) $61.7 million had actually been paid in settlement of the claims that relate to liabilities as of December 31, 1998.
The cumulative redundancy/(deficiency) represents, as of December 31, 2008, the difference between the latest re-estimated liability and the amounts as originally estimated. A redundancy means that the original estimate was higher than the current estimate. A deficiency means that the current estimate is higher than the original estimate.
17
Analysis of Loss and Loss Adjustment Expense Reserve Development
Year Ended December 31, | ||||||||||||||||||||||||||||||||||||||||
1998 | 1999 | 2000 | 2001 | 2002 | 2003 | 2004 | 2005 | 2006 | 2007 | 2008 | ||||||||||||||||||||||||||||||
(In thousands) | ||||||||||||||||||||||||||||||||||||||||
Reserve for loss and loss adjustment expenses, net of reinsurance recoverables |
$ | 43,625 | $ | 72,599 | $ | 86,192 | $ | 119,020 | $ | 152,908 | $ | 183,001 | $ | 243,256 | $ | 364,253 | $ | 412,366 | $ | 462,478 | $ | 474,697 | ||||||||||||||||||
Net reserve estimated as of: |
||||||||||||||||||||||||||||||||||||||||
One year later |
49,098 | 75,588 | 96,801 | 123,413 | 155,683 | 196,955 | 265,138 | 362,026 | 402,876 | 442,091 | ||||||||||||||||||||||||||||||
Two years later |
50,764 | 82,633 | 98,871 | 116,291 | 168,410 | 217,836 | 262,601 | 361,181 | 372,520 | |||||||||||||||||||||||||||||||
Three years later |
57,750 | 86,336 | 92,740 | 119,814 | 187,225 | 218,217 | 262,427 | 346,914 | ||||||||||||||||||||||||||||||||
Four years later |
59,800 | 86,829 | 93,328 | 132,332 | 189,098 | 219,114 | 256,790 | |||||||||||||||||||||||||||||||||
Five years later |
60,074 | 87,088 | 101,417 | 134,836 | 190,161 | 214,304 | ||||||||||||||||||||||||||||||||||
Six years later |
61,297 | 90,156 | 104,716 | 136,277 | 186,829 | |||||||||||||||||||||||||||||||||||
Seven years later |
61,578 | 91,170 | 105,391 | 133,588 | ||||||||||||||||||||||||||||||||||||
Eight years later |
62,484 | 91,765 | 100,225 | |||||||||||||||||||||||||||||||||||||
Nine years later |
62,377 | 90,444 | ||||||||||||||||||||||||||||||||||||||
Ten years later |
61,749 | |||||||||||||||||||||||||||||||||||||||
Net cumulative redundancy (deficiency) |
$ | (18,124 | ) | $ | (17,845 | ) | $ | (14,033 | ) | $ | (14,568 | ) | $ | (33,921 | ) | $ | (31,303 | ) | $ | (13,534 | ) | $ | 17,339 | $ | 39,846 | $ | 20,387 | |||||||||||||
Cumulative amount of reserve paid, net of reserve recoveries, through: |
||||||||||||||||||||||||||||||||||||||||
One year later |
26,140 | 45,095 | 51,470 | 51,114 | 66,545 | 73,783 | 40,514 | 110,369 | 105,408 | 116,631 | ||||||||||||||||||||||||||||||
Two years later |
37,835 | 62,141 | 62,969 | 71,852 | 101,907 | 65,752 | 97,091 | 164,354 | 167,852 | |||||||||||||||||||||||||||||||
Three years later |
45,404 | 67,267 | 70,036 | 84,341 | 73,391 | 99,829 | 124,785 | 201,393 | ||||||||||||||||||||||||||||||||
Four years later |
48,184 | 70,894 | 73,680 | 42,919 | 96,884 | 114,594 | 154,799 | |||||||||||||||||||||||||||||||||
Five years later |
50,045 | 72,744 | 38,939 | 59,194 | 110,475 | 136,497 | ||||||||||||||||||||||||||||||||||
Six years later |
50,831 | 58,809 | 49,141 | 76,547 | 128,629 | |||||||||||||||||||||||||||||||||||
Seven years later |
51,863 | 62,550 | 61,307 | 90,575 | ||||||||||||||||||||||||||||||||||||
Eight years later |
52,796 | 67,744 | 68,862 | |||||||||||||||||||||||||||||||||||||
Nine years later |
54,011 | 70,946 | ||||||||||||||||||||||||||||||||||||||
Ten years later |
54,933 | |||||||||||||||||||||||||||||||||||||||
Net reserveDecember 31 |
$ | 43,625 | $ | 72,599 | $ | 86,192 | $ | 119,020 | $ | 152,908 | $ | 183,001 | $ | 243,256 | $ | 364,253 | $ | 412,366 | $ | 462,478 | $ | 474,697 | ||||||||||||||||||
Reinsurance recoverables |
37,086 | 183,818 | 293,632 | 264,013 | 193,634 | 194,558 | 189,624 | 120,232 | 106,810 | 74,925 | 56,596 | |||||||||||||||||||||||||||||
Gross reserveDecember 31 |
$ | 80,711 | $ | 256,417 | $ | 379,824 | $ | 383,033 | $ | 346,542 | $ | 377,559 | $ | 432,880 | $ | 484,485 | $ | 519,176 | $ | 537,403 | $ | 531,293 | ||||||||||||||||||
Net re-estimated reserve |
$ | 61,749 | $ | 90,444 | $ | 100,225 | $ | 133,588 | $ | 186,829 | $ | 214,304 | $ | 256,790 | $ | 346,914 | $ | 372,520 | $ | 442,091 | ||||||||||||||||||||
Re-estimated reinsurance recoverables |
121,225 | 279,252 | 377,641 | 343,388 | 269,085 | 213,734 | 173,453 | 108,639 | 100,684 | 69,014 | ||||||||||||||||||||||||||||||
Gross re-estimated reserve |
$ | 182,974 | $ | 369,696 | $ | 477,866 | $ | 476,926 | $ | 455,914 | $ | 428,038 | $ | 430,243 | $ | 455,553 | $ | 473,204 | $ | 511,105 | ||||||||||||||||||||
Gross cumulative redundancy (deficiency) |
$ | (102,263 | ) | $ | (113,279 | ) | $ | (98,042 | ) | $ | (93,893 | ) | $ | (109,372 | ) | $ | (50,479 | ) | $ | 2,637 | $ | 28,932 | $ | 45,972 | $ | 26,298 | ||||||||||||||
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Our net cumulative redundancy (deficiency) set forth in the table above is net of amounts recoverable from our reinsurers, including Reliance Insurance Company, one of our former reinsurers. In 2001, Reliance was placed under regulatory supervision by the Pennsylvania Insurance Department and was subsequently placed into liquidation. As a result, we recognized losses related to uncollectible amounts from Reliance of $500,000 in 2007, $0 in 2006, $770,000 in 2005, $260,000 in 2004, $1.3 million in 2003, $2.0 million in 2002 and $17.0 million in 2001.
Investments
We derive net investment income from our invested assets. As of December 31, 2008, the carrying value of our investment portfolio, including cash and cash equivalents, was $800.0 million and the fair value of the portfolio was $783.8 million.
Our investment strategy is to maximize after-tax income within the guidelines established by our investment committee. We pay investment management fees based on the fair value of assets under management. Our management investment committee has established a Statement of Investment Policy and Guidelines, and we review the policy with the investment committee of our board of directors periodically, such review including asset allocation for compliance with our policy.
Our fixed maturity portfolio is primarily managed by Prudential Investment Management, Inc., a registered advisory firm and a subsidiary of Prudential Financial, Inc. Our equity securities are managed by us.
We classify all of our fixed maturity securities as held-to-maturity, so we do not reflect any changes in fair value for these securities in our financial statements, unless such changes are deemed to be other than temporary impairments, in which case such impairments flow through our income statement within the category, Net realized gains (losses) on investments. We generally seek to limit our holdings in equity securities to no more than 30% of shareholders equity, plus redeemable preferred stock, on a fair value basis.
See Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operations Investments for further information on the composition and results of our investment portfolio.
The table below shows the carrying values of various categories of securities held in our investment portfolio, the percentage of the total carrying value of our investment portfolio represented by each category and the effective interest rate for the year ended December 31, 2008 based on the carrying value of each category as of December 31, 2008:
Carrying Value |
Percentage
of Portfolio |
Effective Interest
Rate |
|||||||
(In thousands) | |||||||||
Fixed maturity securities: |
|||||||||
State and political subdivisions |
$ | 482,923 | 60.4 | % | 6.1 | % | |||
U.S. agency-based mortgage-backed securities |
92,862 | 11.6 | % | 5.3 | % | ||||
Commercial mortgage-backed securities |
51,610 | 6.4 | % | 5.5 | % | ||||
U.S. Treasury securities and obligations of U.S. Government agencies |
23,024 | 2.9 | % | 4.6 | % | ||||
Corporate bonds |
19,054 | 2.4 | % | 6.7 | % | ||||
Asset-backed securities |
10,803 | 1.3 | % | 9.3 | % | ||||
Total fixed maturity securities |
680,276 | 85.0 | % | 5.9 | % | ||||
Equity securities |
24,431 | 3.1 | % | 3.0 | % | ||||
Cash and cash equivalents |
95,266 | 11.9 | % | 1.7 | % | ||||
Total investments, including cash and cash equivalents |
$ | 799,973 | 100 | % | 5.3 | % | |||
19
As of December 31, 2008, our fixed maturity securities had a carrying value of $680.3 million, which represented 85.0% of the carrying value of our investments, including cash and cash equivalents. For the twelve months ended December 31, 2008, the pre-tax accounting investment yield of our investment portfolio was 4.0% per annum.
The gross unrealized gains and losses on, and the cost and fair value of, our investment portfolio as of December 31, 2008 are summarized as follows:
Cost or
Amortized Cost |
Gross
Unrealized Gains |
Gross
Unrealized Losses |
Fair Value | |||||||||
(In thousands) | ||||||||||||
Fixed maturity securities, held-to-maturity |
$ | 680,276 | $ | 9,156 | $ | (25,348) | $ | 664,084 | ||||
Equity securities, available-for-sale |
25,002 | | (571) | 24,431 | ||||||||
Totals |
$ | 705,278 | $ | 9,156 | $ | (25,919) | $ | 688,515 | ||||
The amortized cost for the fixed maturity securities classified as held-to-maturity includes an unamortized gain of $1.9 million. This gain resulted in 2004 from the difference between each securitys par value and fair value at the date of transfer from available-for-sale to held-to-maturity and is being amortized as a yield adjustment over the respective life of each security.
The table below summarizes the credit quality of our fixed maturity securities as of December 31, 2008, as rated by Standard and Poors.
Credit Rating |
Percentage
of Total Carrying Value |
||
AAA |
53.3 | % | |
AA |
30.7 | % | |
A |
13.6 | % | |
BBB |
2.0 | % | |
BB |
0.3 | % | |
B |
0.1 | % | |
Total |
100.0 | % | |
As of December 31, 2008, the average composite rating of our fixed maturity securities was AA+.
The table below shows the composition of our fixed maturity securities by remaining time to maturity as of December 31, 2008. For securities that are redeemable at the option of the issuer and have a carrying value that is greater than par value, the maturity used for the table below is the earliest redemption date. For securities that are redeemable at the option of the issuer and have a carrying value that is less than par value, the maturity used for the table below is the final maturity date.
Remaining Time to Maturity |
As of December 31, 2008 | |||||
Carrying Value | Percentage | |||||
(In thousands) | ||||||
Less than one year |
$ | 60,826 | 8.9 | % | ||
One to five years |
157,465 | 23.1 | % | |||
Five to ten years |
125,758 | 18.5 | % | |||
More than ten years |
180,952 | 26.6 | % | |||
U.S. agency-based mortgage-backed securities |
92,862 | 13.7 | % | |||
Commercial mortgage-backed securities |
51,610 | 7.6 | % | |||
Asset-backed securities |
10,803 | 1.6 | % | |||
Total |
$ | 680,276 | 100.0 | % | ||
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Reinsurance
We purchase reinsurance to reduce our net liability on individual risks and claims and to protect against catastrophic losses. Reinsurance involves an insurance company transferring to, or ceding, a portion of the exposure on a risk to a reinsurer. The reinsurer assumes the exposure in return for a portion of our premium. The cost and limits of reinsurance we purchase can vary from year to year based upon the availability of quality reinsurance at an acceptable price and our desired level of retention. Retention refers to the amount of risk that we retain for our own account. Under excess of loss reinsurance, covered losses in excess of the retention level up to the limit of the program are paid by the reinsurer. Our excess of loss reinsurance is written in layers, in which our reinsurers accept a band of coverage up to a specified amount. Any liability exceeding the limit of the program reverts to us as the ceding company. Reinsurance does not legally discharge us from primary liability for the full amount due under our policies. However, our reinsurers are obligated to indemnify us to the extent of the coverage provided in our reinsurance agreements.
We believe reinsurance is critical to our business. Our reinsurance purchasing strategy is to protect against unforeseen and/or catastrophic loss activity that would adversely impact our income and capital base. We generally select financially strong reinsurers with an A.M. Best rating of A (Excellent) or better at the time we enter into a reinsurance contract. In addition, to minimize our exposure to significant losses from reinsurer insolvencies, we evaluate the financial condition of our reinsurers and monitor concentrations of credit risk on a continual basis.
2009 Excess of Loss Reinsurance Treaty Program
Effective January 1, 2009, we entered into a new excess of loss reinsurance treaty program related to our voluntary and assigned risk business that applies to losses incurred between January 1, 2009 and the date on which our reinsurance agreements are terminated. Our reinsurance treaty program provides us with reinsurance coverage for each loss occurrence up to $50.0 million, subject to applicable deductibles, retentions, and aggregate limits. However, for any loss occurrence involving only one claimant, our reinsurance coverage is limited to a maximum of $10.0 million for any single claimant, subject to applicable deductibles, retentions and aggregate limits. We have 16 reinsurers participating in our 2009 reinsurance treaty program. Under certain circumstances, including a downgrade of a reinsurers A.M. Best rating to B++ (Very Good) or below, such reinsurer may be required to provide us with security for amounts due under the terms of our reinsurance program. This security may take the form of, among other things, cash advances or letters of credit. If security is required because of a ratings downgrade, the form of security must be mutually agreed to between the reinsurer and us.
Our 2009 reinsurance treaty program provides coverage in the following four layers:
|
First Layer . This layer was part of our 2008 reinsurance treaty program, and is a three-year structured product. It covers losses incurred between January 1, 2008 and January 1, 2011. The treaty affords coverage in two parts up to $4.0 million for each loss occurrence in excess of $1.0 million. Before our reinsurers are obligated to reimburse us under this layer, we are subject to an annual aggregate deductible of $20.0 million under the first part of this coverage and $40.0 million under the second part of this coverage. The limit under the first part of this coverage for all claims, including certain terrorism claims, is $20.0 million in any one year and $40.0 million in the aggregate for all three years covered by this layer. The limit under the second part of this coverage for all claims, including certain terrorism claims, is $20.0 million in the aggregate for all three years covered by this layer. Through December 31, 2008, our losses in this layer had not exceeded the $20 million annual aggregate deductible. |
|
Second Layer . This is a three-year treaty covering losses incurred between January 1, 2009 and January 1, 2012. The treaty affords coverage up to $5.0 million for each loss occurrence in excess of $5.0 million. The aggregate limit for all claims, including terrorism, under this layer is $10.0 million in any one year and $20.0 million in the aggregate for all three years covered by this layer. |
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|
Third Layer . Affords coverage up to $40.0 million for each loss occurrence in excess of $10.0 million. The aggregate limit for all claims, including terrorism, under this layer is $80.0 million. |
The agreement for both parts of the first layer will terminate on January 1, 2011, the agreement for the second layer will terminate on January 1, 2012, and the third layer of coverage will terminate on January 1, 2010. In addition, we may terminate the participation of one or more of our reinsurers under certain circumstances as permitted by the terms of our reinsurance agreements.
At our option, we have the right to commute the reinsurers obligations under the agreement for the first and second layers of coverage at any time after the end of the applicable terms of the agreements. If we commute the reinsurers obligations, we are entitled to receive a portion of the premiums that were paid to the reinsurers prior to the effective dates of the applicable commutations, subject to certain adjustments provided in the agreement.
The table below sets forth the reinsurers participating in our 2009 reinsurance program:
Reinsurer |
A.M. Best
Rating |
|
Arch Reinsurance Company |
A | |
Aspen Insurance Limited |
A | |
Aspen Insurance UK Limited |
A | |
Barbican Syndicate (1) |
A | |
BRT Syndicate (1) |
A | |
Catlin Underwriting Inc. |
A | |
Faraday Syndicate (1) |
A | |
Hannover Reinsurance (Ireland) Limited |
A | |
Hannover Ruckversicherungs-Aktiengesellschaft |
A | |
Harbor Point Reinsurance U.S., Inc. |
A | |
Heritage Syndicate (1) |
A | |
Liberty Syndicate (1) |
A | |
Max at Lloyds ApS - Denmark (1) |
A | |
Munich Reinsurance America, Inc. |
A+ | |
Paris Re |
A | |
QBE Syndicate (1) |
A |
(1) | Member of Lloyds of London syndicate. |
Due to the nature of reinsurance, we have receivables from reinsurers that apply to accident years prior to 2008. The table below summarizes our amounts recoverable from reinsurers as of December 31, 2008.
Reinsurer |
A.M. Best
Rating |
Amounts Recoverable as
of December 31, 2008 |
|||
(In thousands) | |||||
Odyssey America Reinsurance Company |
A | $ | 14,940 | ||
St. Paul Fire and Marine Insurance Company |
A+ | 7,917 | |||
Clearwater Insurance Company |
A | 7,599 | |||
Minnesota Workers Compensation Reinsurance Association |
NR | 6,205 | |||
Finial Reinsurance Company |
A | 5,146 | |||
SCOR Reinsurance Company |
A | 5,125 | |||
Hannover Reinsurance (Ireland) Limited |
A | 4,730 | |||
Aspen Insurance Limited |
A | 4,730 | |||
Clearwater Select Insurance Company |
A | 1,120 | |||
American National Insurance Company |
A+ | 1,114 | |||
Hannover Ruckversicherungs-Aktiengesellschaft (1) |
A | 1,062 | |||
Other (30 reinsurers) |
| 8,075 | |||
Total |
$ | 67,763 | |||
(1) | Current participant in our 2009 reinsurance program. |
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Terrorism Reinsurance
The Terrorism Risk Insurance Act of 2002 (the 2002 Act) was enacted in response to the events of September 11, 2001 and was extended by the Terrorism Risk Insurance Extension Act of 2005 (the 2005 Act) and the Terrorism Risk Insurance Program Reauthorization Act of 2007 (the 2007 Act). The 2002 Act, the 2005 Act and the 2007 Act were designed to ensure the availability of insurance coverage for losses resulting from certain acts of terrorism in the United States. The 2007 Act reauthorizes a federal program, established under the 2002 Act and extended by the 2005 Act, and extends it through the end of 2014. This program provides federal reimbursement to insurance companies for a portion of their losses arising from certain acts of terrorism and requires insurance companies to offer coverage for such acts. The program applies to insured losses arising out of acts that are certified as acts of terrorism by the Secretary of the Treasury in concurrence with the Secretary of State and the Attorney General of the United States. In addition, the program does not provide any reimbursement for any portion of aggregate industry-wide insured losses from certified acts of terrorism that exceed $100.0 billion in any one year and is subject to certain other limitations and restrictions.
For insured losses in 2009, each insurance company is responsible for a statutory deductible under the 2007 Act that is equal to 20% of its direct earned property and casualty insurance premiums. For losses occurring in 2009, the U.S. Federal Government will reimburse 85% of an insurance companys covered losses over the statutory deductible. In addition, no federal reimbursement is available unless the aggregate insurance industry-wide losses from a certified act of terrorism exceed $100.0 million for any act of terrorism occurring in 2009. However, there is no relief from the requirement under the 2007 Act that insurance companies offer coverage for certified acts of terrorism if those acts do not cause losses exceeding these threshold amounts and thus do not result in any federal reimbursement payments.
Under the 2007 Act, insurance companies must offer coverage for losses due to certified acts of terrorism in their workers compensation policies. Moreover, the workers compensation laws of the various states generally do not permit the exclusion of coverage for losses arising from acts of terrorism, including terrorism that involves the use of nuclear, biological, radioactive or chemical agents. In addition, state law prohibits us from limiting our workers compensation insurance losses arising from any one catastrophe or any one claimant. We have reinsurance protection in our 2009 reinsurance treaty program that affords coverage for up to $50 million for losses arising from terrorism but excluding nuclear, biological, radiological and chemical attacks, subject to the deductibles, retentions, definitions and aggregate limits.
Technology
We view our internally developed and purchased management information systems as an integral part of our operations and make a substantial ongoing investment in improving our systems. We provide our field premium auditors, field safety professionals, and field case managers with computer and communication equipment to more timely and efficiently complete the underwriting process. This technology also helps to facilitate communication and to report and monitor claims. All of our systems development and infrastructure operation and maintenance is performed by our information technology professionals, with limited assistance from outside vendors.
Core Systems
ICAMS. Our internally developed Insurance Claims and Accounting Management System, or ICAMS, is an application designed to administer our workers compensation insurance business. ICAMS provides comprehensive rating, analysis, quotation, audit, claims, policy issuance, billings, collections and policy-level accounting transaction processes. By combining the information we obtain in our underwriting process with information on claims billing and claims management, we are able to enhance our services to our policyholders.
RealSafe. RealSafe is an internally developed application that supports our field safety professionals, as well as safety, claims and underwriting departments in our home office, by providing risk assessment and reporting of information to support safety and loss control initiatives.
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CLAIMExpert . CLAIMExpert is a purchased application utilized by our claims department to assist in work flow management. The application distributes all claims-related mail to the appropriate FCM and allows for the use of multiple cost containment vendors. CLAIMExpert also serves as the file repository for claims-related mail and documents, and is web-accessible by our authorized users.
Integrated Document Management System. Our integrated document management system is a purchased application being used by all of our departments outside of Amerisafe General Agency, our wholly owned insurance agency, to store, manage, and facilitate the movement of imaged and other electronic documents. The system allows departmental management to closely monitor and modify employee workloads as needed and facilitates consistent document management throughout the company.
Freedom Enterprise. FFS-Enterprise is a Fiserv product that functions as our general ledger and accounts payable systems using an MS SQL database platform. We also use Fiserv companion products for report writing, check printing and annual statement preparation. Transactions can be manually entered into Enterprise, interfaced via an ASCII file, or copied and pasted from a spreadsheet application. Enterprise is set up to accept transaction detail by department, cost center, line of business and state. Enterprise also offers the capability of batch processing, which enables off-peak hour work.
Freedom Reinsurance System (FRS). FRS is a Fiserv product that provides ceded reinsurance processing. Functions performed by FRS include treaty information management, ceded loss billing and collection and reinsurance accounting.
Audit Unplugged. Audit Unplugged is an internally developed application used by our field premium auditors to input information necessary to complete an interim or final premium audit.
Information Warehouse. Information Warehouse is an internally developed SQL Server-based set of OLAP cubes, queries, and processes that extracts operational data from ICAMS and other of our applications and transforms that data for porting to Freedom Enterprise and fnet.
fnet. fnet is an internally developed data analysis portal. fnet is populated by our Information Warehouse, and used throughout our Company to generate key performance statistics.
Operating Systems
We use Microsoft Active Directory services to provide application access, domain authentication and network services. Our server hardware is predominately Compaq/HP, but includes Dell servers as well. Our production servers are under manufacturer warranties.
Business Continuity/Disaster Recovery
Our Storage Area Network solution provides us with continuous operations using mirrored servers and storage situated in two separate corporate buildings, with built-in failover capabilities to minimize business interruption. We utilize software from Veritas for backup and recovery purposes. Incremental backups are performed daily and full system backups are performed weekly. We use on-site storage for daily and weekly backups and off-site storage for full monthly backups.
Competition
The insurance industry, in general, is highly competitive and there is significant competition in the workers compensation insurance industry. Competition in the insurance business is based on many factors, including premium rates, policy terms, coverage availability, claims management, safety services, payment terms, types of insurance offered, overall financial strength, and financial ratings assigned by independent rating organizations, such as A.M. Best. Some of the insurers with which we compete have significantly greater financial, marketing, and management resources than we do. We may also compete with new market entrants in the future.
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We believe the workers compensation market for the hazardous industries we target is more fragmented and to some degree less competitive than other segments of the workers compensation market. Our competitors include other insurance companies, individual self-insured companies, state insurance pools and self-insurance funds. We estimate that more than 300 insurance companies participate in the workers compensation market. The insurance companies with which we compete vary state by state and by the industries we target. These market conditions are also impacted by lower estimated loss costs adopted by a number of states in which we do business.
Our competitive advantages include our safety service and claims management practices, our A.M. Best rating of A (Excellent), and our ability to reduce claims through implementation of our work safety programs. In addition, we believe that our insurance is competitively priced and our premium rates are typically lower than those for policyholders assigned to the state insurance pools, allowing us to provide a viable alternative for policyholders in those pools.
Ratings
Many insurance buyers and agencies use the ratings assigned by A.M. Best and other rating agencies to assist them in assessing the financial strength and overall quality of the companies from which they are considering purchasing insurance. In April 2008, A.M. Best announced that it had affirmed our financial strength rating of A (Excellent). An A rating is the fourth highest of 15 rating categories used by A.M. Best. The rating has a stable outlook for AMERISAFE and our insurance company subsidiaries.
In evaluating a companys financial and operating performance, A.M. Best reviews the companys profitability, indebtedness and liquidity, as well as its book of business, the adequacy and soundness of its reinsurance, the quality and estimated fair value of its assets, the adequacy of its loss reserves, the adequacy of its surplus, its capital structure, the experience and competence of its management and its market presence. This rating is intended to provide an independent opinion of an insurers ability to meet its obligations to policyholders and is not an evaluation directed at investors.
Employees
As of December 31, 2008, we had 463 full-time employees and five part-time employees. None of our employees is subject to collective bargaining agreements. We believe that our employee relations are good.
Regulation
Holding Company Regulation
Nearly all states have enacted legislation that regulates insurance holding company systems. Each insurance company in a holding company system is required to register with the insurance supervisory agency of its state of domicile and furnish information concerning the operations of companies within the holding company system that may materially affect the operations, management or financial condition of the insurers within the system. Under these laws, the respective state insurance departments may examine us at any time, require disclosure of material transactions and require prior notice of or approval for certain transactions. All transactions within a holding company system affecting an insurer must have fair and reasonable terms and are subject to other standards and requirements established by law and regulation.
Change of Control
The insurance holding company laws of nearly all states require advance approval by the respective state insurance departments of any change of control of an insurer. Control is generally presumed to exist through the direct or indirect ownership of 10% or more of the voting securities of a domestic insurance company or any entity that controls a domestic insurance company. In addition, insurance laws in many states contain provisions that require pre-notification to the insurance commissioners of a change of control of a non-domestic insurance
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company licensed in those states. Any future transactions that would constitute a change of control of American Interstate, Silver Oak Casualty or American Interstate of Texas, including a change of control of AMERISAFE, would generally require the party acquiring control to obtain the prior approval of the department of insurance in the state in which the insurance company being acquired is incorporated and may require pre-notification in the states where pre-notification provisions have been adopted. Obtaining these approvals may result in the material delay of, or deter, any such transaction.
These laws may discourage potential acquisition proposals and may delay, deter or prevent a change of control of AMERISAFE, including through transactions, and in particular unsolicited transactions, that some or all of the shareholders of AMERISAFE might consider to be desirable.
State Insurance Regulation
Insurance companies are subject to regulation and supervision by the department of insurance in the state in which they are domiciled and, to a lesser extent, other states in which they conduct business. American Interstate and Silver Oak Casualty are primarily subject to regulation and supervision by the Louisiana Department of Insurance and Workers Compensation Commission. American Interstate of Texas is primarily subject to regulation and supervision by the Texas Department of Insurance and Workers Compensation Commission. These state agencies have broad regulatory, supervisory and administrative powers, including among other things, the power to grant and revoke licenses to transact business, license agencies, set the standards of solvency to be met and maintained, determine the nature of, and limitations on, investments and dividends, approve policy forms and rates in some states, periodically examine financial statements, determine the form and content of required financial statements and periodically examine market conduct.
Detailed annual and quarterly financial statements and other reports are required to be filed with the state insurance departments in all states in which we are licensed to transact business. The financial statements of American Interstate, Silver Oak Casualty and American Interstate of Texas are subject to periodic examination by the department of insurance in each state in which they are licensed to do business.
In addition, many states have laws and regulations that limit an insurers ability to withdraw from a particular market. For example, states may limit an insurers ability to cancel or not renew policies. Furthermore, certain states prohibit an insurer from withdrawing one or more lines of business from the state, except pursuant to a plan that is approved by the state insurance department. The state insurance department may disapprove a plan that may lead to market disruption. Laws and regulations that limit cancellation and non-renewal and that subject program withdrawals to prior approval requirements may restrict our ability to exit unprofitable markets.
Insurance agencies are also subject to regulation and supervision by the state insurance departments in the states in which they are licensed. Our wholly owned subsidiary, Amerisafe General Agency, Inc., is licensed as an insurance agent in 27 states and as a managing general insurance agency in 12 states. Amerisafe General Agency is domiciled in Louisiana and is primarily subject to regulation and supervision by the Louisiana Department of Insurance, which regulates the solicitation of insurance and the qualification and licensing of agents and agencies that may desire to conduct business in Louisiana.
State Insurance Department Examinations
We are subject to periodic examinations by state insurance departments in the states in which we operate. The Louisiana Department of Insurance generally examines each of its domiciliary insurance companies on a triennial basis. American Interstate Insurance Company and Silver Oak Casualty, Inc. underwent an examination in the first half of 2006 that covered calendar years 2001 through 2005. American Interstate of Texas was formed in December 2004 and began operations in January 2005. Under Texas insurance law, American Interstate of Texas will be subject to examination each year in its first three years of operations. American Interstate Insurance Company and Silver Oak Casualty, Inc. have been notified by the Louisiana Department of Insurance that there will be an examination covering calendar years 2006 through 2008. American Interstate Insurance Company has
26
also been notified of a market conduct review by the Missouri Department of Insurance. American Interstate Insurance Company of Texas is currently undergoing an examination by the Texas Department of Insurance covering calendar year 2008.
Guaranty Fund Assessments
In most of the states where we are licensed to transact business, there is a requirement that property and casualty insurers doing business within each such state participate in a guaranty association, which is organized to pay contractual benefits owed pursuant to insurance policies issued by impaired, insolvent or failed insurers. These associations levy assessments, up to prescribed limits, on all member insurers in a particular state on the basis of the proportionate share of the premium written by member insurers in the lines of business in which the impaired, insolvent or failed insurer is engaged. Some states permit member insurers to recover assessments paid through full or partial premium tax offsets.
Property and casualty insurance company insolvencies or failures may result in additional security fund assessments to us at some future date. At this time, we are unable to determine the impact, if any, such assessments may have on our financial position or results of operations. We have established liabilities for guaranty fund assessments with respect to insurers that are currently subject to insolvency proceedings.
Residual Market Programs
Many of the states in which we conduct business or intend to conduct business, require that all licensed insurers participate in a program to provide workers compensation insurance to those employers who have not or cannot obtain coverage from a carrier on a negotiated basis. The level of required participation in such programs is generally determined by calculating the volume of our voluntarily business in that state as a percentage of all voluntarily business in that state by all insurers. The resulting factor is the proportion of premium we must accept as a percentage of all of premiums in policies included in that states residual market program.
Companies generally can fulfill their residual market obligations by either issuing insurance policies to employers assigned to them, or participating in a reinsurance pool where the results of all policies provided through the pool are shared by the participating companies. We utilize both methods, depending on managements evaluation of the most cost-efficient method to adopt in each state that allows a choice of assigned risk or participation in a pooling arrangement. In 2008, we had assigned risks in four states: Alabama, Alaska, North Carolina and Virginia.
Second Injury Funds
A number of states operate trust funds that reimburse insurers and employers for claims paid to injured employees for aggravation of prior conditions or injuries. The state-managed trust funds are funded through assessments against insurers and self-insurers providing workers compensation coverage in the applicable state. Our recoveries from state-managed trust funds for the years ended December 31, 2008, 2007, and 2006 were $4.5 million, $6.1 million and $8.3 million, respectively. Our cash paid for assessments to state-managed trust funds for the years ended December 31, 2008, 2007, and 2006 was $3.8 million, $5.6 million and $3.1 million, respectively.
Dividend Limitations
Under Louisiana law, American Interstate and Silver Oak Casualty cannot pay dividends to their shareholders in excess of the lesser of 10% of statutory surplus, or statutory net income, excluding realized investment gains, for the preceding 12-month period without the prior approval of the Louisiana Commissioner of Insurance. However, net income from the previous two calendar years may be carried forward to the extent that it has not already been paid out as dividends. Based on reported capital and surplus at December 31, 2008, this requirement limits American Interstates ability to make distributions to AMERISAFE in 2009 to $17.6
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million without approval by the Louisiana Department of Insurance. Further, under Texas law, American Interstate of Texas cannot pay dividends to its shareholder in excess of the greater of 10% of statutory surplus, or statutory net income, for the preceding 12-month period without the prior approval of the Texas Commissioner of Insurance.
Federal Law and Regulations
As of December 31, 2008, we derived 2.6% of our voluntary in-force premiums from employers engaged in the maritime industry. As a provider of workers compensation insurance for employers engaged in the maritime industry, we are subject to the United States Longshore and Harbor Workers Compensation Act, or the USL&H Act, and the Merchant Marine Act of 1920, or Jones Act. We are also subject to regulations related to the USL&H Act and the Jones Act.
The USL&H Act, which is administered by the U.S. Department of Labor, generally covers exposures on the navigable waters of the United States and in adjoining waterfront areas, including exposures resulting from stevedoring. The USL&H Act requires employers to provide medical benefits, compensation for lost wages, and rehabilitation services to longshoremen, harbor workers and other maritime workers who may suffer injury, disability or death during the course and scope of their employment. The Department of Labor has the authority to require us to make deposits to serve as collateral for losses incurred under the USL&H Act.
The Jones Act is a federal law, the maritime employer provisions of which provide injured offshore workers, or seamen, with a remedy against their employers for injuries arising from negligent acts of the employer or co-workers during the course of employment on a ship or vessel.
Privacy Regulations
In 1999, Congress enacted the Gramm-Leach-Bliley Act, which, among other things, protects consumers from the unauthorized dissemination of certain personal information. Subsequently, a majority of states have implemented additional regulations to address privacy issues. These laws and regulations apply to all financial institutions, including insurance companies, and require us to maintain appropriate policies and procedures for managing and protecting certain personal information of our policyholders and to fully disclose our privacy practices to our policyholders. We may also be exposed to future privacy laws and regulations, which could impose additional costs and impact our results of operations or financial condition. In 2000, the National Association of Insurance Commissioners, or the NAIC, adopted the Privacy of Consumer Financial and Health Information Model Regulation, which assisted states in promulgating regulations to comply with the Gramm-Leach-Bliley Act. In 2002, to further facilitate the implementation of the Gramm-Leach-Bliley Act, the NAIC adopted the Standards for Safeguarding Customer Information Model Regulation. Several states have now adopted similar provisions regarding the safeguarding of policyholder information. We have established policies and procedures intended to ensure that we are in compliance with the Gramm-Leach-Bliley related privacy requirements.
Federal and State Legislative and Regulatory Changes
From time to time, various regulatory and legislative changes have been proposed in the insurance industry. Among the proposals that have in the past been or are at present being considered are the possible introduction of federal regulation in addition to, or in lieu of, the current system of state regulation of insurers and proposals in various state legislatures (some of which proposals have been enacted) to conform portions of their insurance laws and regulations to various model acts adopted by the NAIC. We are unable to predict whether any of these laws and regulations will be adopted, the form in which any such laws and regulations would be adopted or the effect, if any, these developments would have on our operations and financial condition.
For information on the Terrorism Risk Act, see ReinsuranceTerrorism Reinsurance.
The National Association of Insurance Commissioners
The NAIC is a group formed by state insurance commissioners to discuss issues and formulate policy with respect to regulation, reporting and accounting of insurance companies. Although the NAIC has no legislative
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authority and insurance companies are at all times subject to the laws of their respective domiciliary states and, to a lesser extent, other states in which they conduct business, the NAIC is influential in determining the form in which such laws are enacted. Model Insurance Laws, Regulations and Guidelines, which we refer to as the Model Laws, have been promulgated by the NAIC as a minimum standard by which state regulatory systems and regulations are measured. Adoption of state laws that provide for substantially similar regulations to those described in the Model Laws is a requirement for accreditation by the NAIC. The NAIC provides authoritative guidance to insurance regulators on statutory accounting issues by promulgating and updating a codified set of statutory accounting practices in its Accounting Practices and Procedures manual. The Louisiana and Texas legislatures have adopted these codified statutory accounting practices.
Under Louisiana law, American Interstate and Silver Oak Casualty are required to maintain minimum capital and surplus of $3.0 million. Under Texas law, American Interstate of Texas is required to maintain minimum capital and surplus of $1.0 million. Property and casualty insurance companies are also subject to certain risk-based capital requirements by the NAIC. Under those requirements, the amount of capital and surplus maintained by a property and casualty insurance company is determined based on the various risk factors related to it. As of December 31, 2008, American Interstate, Silver Oak Casualty, and American Interstate of Texas exceeded the minimum risk-based capital requirements.
The key financial ratios of the NAICs Insurance Regulatory Information System, or IRIS, which ratios were developed to assist insurance departments in overseeing the financial condition of insurance companies, are reviewed by experienced financial examiners of the NAIC and state insurance departments to select those companies that merit highest priority in the allocation of the regulators resources. IRIS identifies 12 industry ratios and specifies usual values for each ratio. Departure from the usual values on four or more of the ratios can lead to inquiries from individual state insurance commissioners as to certain aspects of an insurers business.
The 2008 IRIS results for American Interstate Insurance Company and American Interstate Insurance Company of Texas were within expected values. Out of the 12 ratios, Silver Oak Casualtys ratio of net change in adjusted policyholders surplus was outside the expected range by one percentage point. This unusual value occurred because of Silver Oak Casualtys smaller surplus base and the increased net income for the year.
Statutory Accounting Principles
Statutory accounting principles, or SAP, are a basis of accounting developed to assist insurance regulators in monitoring and regulating the solvency of insurance companies. SAP is primarily concerned with measuring an insurers surplus as regards to policyholders. Accordingly, statutory accounting focuses on valuing assets and liabilities of insurers at financial reporting dates in accordance with appropriate insurance law and regulatory provisions applicable in each insurers domiciliary state.
Generally accepted accounting principles, or GAAP, are concerned with a companys solvency, but are also concerned with other financial measurements, principally income and cash flows. Accordingly, GAAP gives more consideration to appropriate matching of revenue and expenses and accounting for managements stewardship of assets than does SAP. As a direct result, different assets and liabilities and different amounts of assets and liabilities will be reflected in financial statements prepared in accordance with GAAP as compared to SAP.
Statutory accounting principles established by the NAIC and adopted in part by Louisiana and Texas insurance regulators, determine, among other things, the amount of statutory surplus and statutory net income of American Interstate, Silver Oak Casualty and American Interstate of Texas and thus determine, in part, the amount of funds that are available to pay dividends to AMERISAFE.
Website Information
Our corporate website is located at www.amerisafe.com . Our Annual Report on Form 10-K, annual proxy statement and related proxy card will be made available on our web site at the same time they are mailed to
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shareholders. Our quarterly reports on Form 10-Q, periodic reports on Form 8-K and amendments to those reports that we file or furnish pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 are available through our website, free of charge, as soon as reasonably practicable after they have been electronically filed or furnished to the Securities and Exchange Commission, or the SEC. Our website also provides access to reports filed by our directors, executive officers and certain significant shareholders pursuant to Section 16 of the Securities Exchange Act of 1934. In addition, our Corporate Governance Guidelines, Code of Business Conduct and Ethics and charters for the standing committees of our board of directors are available on our website. The information on our website is not incorporated by reference into this report. In addition, the SEC maintains a website, www.sec.gov , that contains reports, proxy and information statements and other information that we file electronically with the SEC.
Executive Officers of the Registrant
The table below sets forth information about our executive officers and key employees.
Name |
Age |
Position |
||
Executive Officers |
||||
C. Allen Bradley, Jr. |
57 | Chairman, President and Chief Executive Officer | ||
Geoffrey R. Banta |
59 | Chief Operating Officer | ||
G. Janelle Frost |
38 | Executive Vice President and Chief Financial Officer | ||
Craig P. Leach |
59 | Executive Vice President, Sales and Marketing | ||
David O. Narigon |
56 | Executive Vice President | ||
Todd Walker |
52 | Executive Vice President, General Counsel, and Secretary | ||
Key Employees |
||||
Allan E. Farr |
50 | Senior Vice President, Enterprise Risk Management | ||
Kelly R. Goins |
43 | Senior Vice President, Underwriting Operations | ||
Cynthia P. Harris |
55 | Senior Vice President, Human Resources/Client Services | ||
Leon J. Lagneaux |
57 | Senior Vice President, Safety Operations | ||
Henry O. Lestage, IV |
48 | Senior Vice President, Claims Operations | ||
Edwin R. Longanacre |
51 | Senior Vice President, Information Technology |
C. Allen Bradley, Jr. has served as Chairman of our board of directors since October 2005, our President since November 2002, our Chief Executive Officer since December 2003 and a Director since June 2003. From November 2002 until December 2003 he served as our Chief Operating Officer. Since joining our company in 1994, Mr. Bradley has had principal responsibility for the management of our underwriting operations (December 2000 through June 2005) and safety services (September 2000 through November 2002) and has served as our General Counsel (September 1997 through December 2003) and Secretary (September 1997 through November 2002). Prior to joining our company, he was engaged in the private practice of law.
Geoffrey R. Banta has served as our Chief Operating Officer since November 2008. From December 2003 to October 2008, he served as Executive Vice President and Chief Financial Officer. Prior to joining our company in 2003, he held the positions of President and Chief Executive Officer from 2001 until November 2003, and Chief Operating Officer from 1996 until 2001, at Scruggs Consulting, an actuarial and management consulting firm. From 1994 to 1996, Mr. Banta was Chief Financial Officer of the Atlanta Casualty Companies, an issuer of non-standard auto insurance whose holding company was a subsidiary of American Financial Group, Inc.
G. Janelle Frost has served as our Executive Vice President and Chief Financial Officer since November 2008. Prior to becoming Chief Financial Officer, Ms. Frost served as Controller since May 2004 and
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Vice President since May 2006. She has been employed with our company since 1992 and served as Assistant Vice President from May 2004 to May 2006 and Deputy Controller from 1998 to April 2004.
Craig P. Leach has served as our Executive Vice President, Sales and Marketing since November 2002. He has served in a variety of sales and key marketing positions within our company since beginning his insurance career with a predecessor to our company in 1980, including Senior Vice President, Sales and Marketing from 1997 until November 2002.
David O. Narigon has served as an Executive Vice President with responsibility for Claims, Information Technology and Premium Audit since September 2006. Prior to joining our company, he provided consulting, mediation, arbitration and expert witness services to the insurance industry through his company, Narigon Consulting & Settlement Services, from March 2005 until August 2006. Prior to March 2005, Mr. Narigon was employed by EMC Insurance Companies where he held the positions of Vice President, Claims from 1988 to June 1998 and Senior Vice President, Claims from June 1998 until March 2005, and President of EMC Risk Services from 1993 until March 2005.
Todd Walker has served as our Executive Vice President, General Counsel and Secretary since September 2006. From 2002 through September 2006, he was engaged in the private practice of law. Prior to 2002, Mr. Walker held various legal positions with Ultramar Diamond Shamrock Corp., a New York Stock Exchange listed refining and marketing company, where he had been employed since 1987.
Allan E. Farr has served as our Senior Vice President, Enterprise Risk Management since April 2004. He has been employed with our company since 1998 and served as Vice President, Underwriting Services from 1999 until 2004.
Kelly R. Goins has served as our Senior Vice President, Underwriting Operations since March 2005. She has been employed with our company since 1986 and served as Vice President, Underwriting Operations from 2000 until March 2005.
Cynthia P. Harris has served as our Senior Vice President, Human Resources/Client Services since January 2003. She has been employed with our company since 1977 and served as Vice President, Policyholder Services and Administration from 1992 until December 2002.
Leon J. Lagneaux has served as our Senior Vice President, Safety Operations since March 2005. He has been employed with our company since 1994 and served as Vice President, Safety Operations from 1999 until March 2005.
Henry O. Lestage, IV has served as our Senior Vice President, Claims Operations since September 2000. He has been employed with our company since 1987 and served as Vice President, Claims Operations from 1998 until 2000.
Edwin R. Longanacre has served as our Senior Vice President, Information Technology since March 2005. He has been employed with our company since 2000 and held the position of Vice President, Information Technology from September 2004 until March 2005 and Information Technology Director from 2000 until September 2004.
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Item 1A. | Risk Factors. |
In evaluating our company, the factors described below should be considered carefully. The occurrence of one or more of these events could significantly and adversely affect our business, prospects, financial condition, results of operations and cash flows.
Risks Related to Our Business
A decline in the level of business activity of our policyholders, particularly those engaged in the construction, trucking, agricultural and logging industries, could negatively affect our earnings and profitability.
In 2008, 73.5% of our gross premiums written were derived from policyholders in the construction, trucking, agriculture and logging industries. Because premium rates are calculated, in general, as a percentage of a policyholders payroll expense, premiums fluctuate depending upon the level of business activity and number of employees of our policyholders. As a result, our gross premiums written are primarily dependent upon economic conditions in the construction, trucking, and logging industries and upon economic conditions generally.
Economic activity began to decline in the latter part of 2007 and we believe this slowdown in work activity will continue in 2009. We believe these current economic conditions will adversely affect our reported gross premiums written and revenues in 2009.
Current economic conditions could adversely affect our financial condition and results of operations.
The economic downturn experienced throughout the United States in 2008 appears to be continuing unabated in 2009. Negative trends in business investment, consumer confidence and spending, the significant declines and volatility of the capital markets, the availability of credit and the rate of unemployment can adversely affect our business. And, although we have not seen material decreases in new business activity or reported payrolls, a prolonged economic downturn could adversely impact our future growth and profitability. Although we continue to closely monitor market conditions, we cannot predict future conditions or their impact on our premium volume, the value of our investment portfolio and our financial performance. As a result of these current economic conditions, we could experience future decreases in business activity and incur additional realized and unrealized losses in our investment portfolio, both of which could adversely affect our financial condition and results of operations.
Our loss reserves are based on estimates and may be inadequate to cover our actual losses.
We record reserves for estimated losses under insurance policies we write and for loss adjustment expenses related to the investigation and settlement of claims. Our reserves for loss and loss adjustment expenses represent the estimated cost of all reported and unreported loss and loss adjustment expenses incurred and unpaid at any given point in time based on known facts and circumstances. Reserves are based on estimates of the most likely ultimate cost of individual claims. These estimates are inherently uncertain.
Substantial judgment is required to determine the relevance of our historical experience and industry information under current facts and circumstances. The interpretation of this historical data can be impacted by external forces, principally frequency and severity of unreported claims, length of time to achieve ultimate settlement of claims, inflation in medical costs and wages, insurance policy coverage interpretations, jury determinations, and legislative changes. Accordingly, our reserves may prove to be inadequate to cover our actual losses. If there are unfavorable changes affecting our assumptions, our reserves may need to be increased.
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Workers compensation claims often are paid over a long period of time. In addition, there are no policy limits on our liability for workers compensation claims as there are for other forms of insurance. Therefore, estimating reserves for workers compensation claims may be more uncertain than estimating reserves for other types of insurance claims with shorter or more definite periods between occurrence of the claim and final determination of the loss and with policy limits on liability for claim amounts. Accordingly, our reserves may prove to be inadequate to cover our actual losses. If we change our estimates, these changes will result in adjustments to our reserves and our loss and loss adjustment expenses incurred in the period in which the estimates are changed. If the estimate is increased, our pre-tax income for the period in which we make the change will decrease by a corresponding amount. In addition, increasing reserves results in a reduction in our surplus and could result in a downgrade in our A.M. Best rating. Such a downgrade could, in turn, adversely affect our ability to sell insurance policies.
Negative developments in the workers compensation insurance industry could adversely affect our financial condition and results of operations.
We principally offer workers compensation insurance. We have no current plans to focus our efforts on offering other types of insurance. As a result, negative developments in the economic, competitive or regulatory conditions affecting the workers compensation insurance industry could have an adverse effect on our financial condition and results of operations. Negative developments in the workers compensation insurance industry could have a greater effect on insurance companies that sell multiple types of insurance.
We operate in a highly competitive industry and may lack the financial resources to compete effectively.
There is significant competition in the workers compensation insurance industry. We believe that our competition in the hazardous industries we target is fragmented and not dominated by one or more competitors. We compete with other insurance companies, state insurance pools and self-insurance funds. Many of our existing and potential competitors are significantly larger and possess greater financial, marketing and management resources than we do. Moreover, a number of these competitors offer other types of insurance in addition to workers compensation and can provide insurance nationwide.
We compete on the basis of many factors, including coverage availability, claims management, safety services, payment terms, premium rates, policy terms, types of insurance offered, overall financial strength, financial ratings and reputation. If any of our competitors offer premium rates, policy terms or types of insurance that are more competitive than ours, we could lose market share. No assurance can be given that we will maintain our current competitive position in the markets in which we currently operate or that we will establish a competitive position in new markets into which we may expand.
If we are unable to realize our investment objectives, our financial condition and results of operations may be adversely affected.
Investment income is an important component of our net income. As of December 31, 2008, our investment portfolio, including cash and cash equivalents, had a carrying value of $800.0 million. For the year ended December 31, 2008, we had $31.0 million of net investment income. Our investment portfolio is managed under investment guidelines approved by our board of directors, and is made up predominately of fixed maturity securities and cash and cash equivalents. Although our investment guidelines emphasize liquidity, diversification and capital preservation, our investments are subject to a variety of risks, including risks related to general economic conditions, interest rate fluctuations, market illiquidity and market volatility. General economic conditions may be adversely affected by U.S. involvement in hostilities with other countries and large-scale acts of terrorism, or the threat of hostilities or terrorist acts.
Interest rates are highly sensitive to many factors, including governmental monetary policies and domestic and international economic and political conditions. Changes in interest rates could have an adverse effect on the value of our investment portfolio and future investment income. Unprecedented low interest rates have had, and
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will continue to have, an adverse effect on our investment income. Additionally, changes in interest rates can expose us to prepayment risks on mortgage-backed securities included in our investment portfolio.
Similarly, during periods of market disruption such as we are currently experiencing, including periods of rapidly widening credit spreads or illiquidity, the fair values of certain of our fixed maturity securities, such as asset-backed and commercial mortgage-backed securities, could be deemed to be other-than-temporarily impaired, even though we have the positive ability and intent to hold these securities to maturity. Further, rapidly changing and unprecedented equity market conditions could materially impact the valuation of the equity securities as reported within our consolidated financial statements and the period-to-period changes in value could vary significantly.
During 2008, we recorded charges for certain securities in our investment portfolio, the fair values of which we determined were other-than-temporarily impaired. These charges are included in Net realized gains (losses) on investments on our consolidated statement of income and totaled $17.3 million for the year ended December 31, 2008. We cannot assure you that our investment portfolio will not suffer additional other-than-temporary investment losses.
These and other factors affect the capital markets and, consequently, the value of our investment portfolio and our future investment income. Any significant decline in our investment income would adversely affect our revenues and net income.
The workers compensation insurance industry is cyclical in nature, which may affect our overall financial performance.
The financial performance of the workers compensation insurance industry has historically fluctuated with periods of lower premium rates and excess underwriting capacity resulting from increased competition followed by periods of higher premium rates and reduced underwriting capacity resulting from decreased competition. Although the financial performance of an individual insurance company is dependent on its own specific business characteristics, the profitability of most workers compensation insurance companies generally tends to follow this cyclical market pattern. In 2008, the workers compensation industry experienced both decreasing loss costs in most of the states in which we write business and intense price competition. Because this market cyclicality is due in large part to the actions of our competitors and general economic factors, we cannot predict the timing or duration of changes in the market cycle. We expect these cyclical patterns will cause our revenues and net income to fluctuate, which may cause the price of our common stock to be more volatile.
If we do not appropriately establish our premium rates, our results of operations will be adversely affected.
In general, the premium rates for our insurance policies are established when coverage is initiated and, therefore, before all of the underlying costs are known. Like other workers compensation insurance companies, we rely on estimates and assumptions in setting our premium rates. Establishing adequate rates is necessary to generate sufficient revenue to offset losses, loss adjustment expenses and other underwriting expenses, and to earn an underwriting profit. If we fail to accurately assess the risks that we assume, we may fail to charge adequate premium rates to cover our losses and expenses, which could reduce our net income and cause us to become unprofitable. For example, when initiating coverage on a policyholder, we estimate future claims expense based, in part, on prior claims information provided by the policyholders previous insurance carriers. If this prior claims information is not accurate, we may underprice our policy by using claims estimates that are too low. As a result, our actual costs for providing insurance coverage to our policyholders may be significantly higher than our premiums. In order to set premium rates appropriately, we must:
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collect and properly analyze a substantial volume of data; |
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develop, test and apply appropriate rating formulae; |
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closely monitor and timely recognize changes in trends; and |
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project both frequency and severity of losses with reasonable accuracy. |
We must also implement our pricing accurately in accordance with our assumptions. Our ability to undertake these efforts successfully, and as a result set premium rates accurately, is subject to a number of risks and uncertainties, principally:
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insufficient reliable data; |
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incorrect or incomplete analysis of available data; |
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uncertainties generally inherent in estimates and assumptions; |
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the complexity inherent in implementing appropriate rating formulae or other pricing methodologies; |
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costs of ongoing medical treatment; |
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uncertainties inherent in accurately estimating retention, investment yields, and the duration of our liability for loss and loss adjustment expenses; and |
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unanticipated court decisions, legislation or regulatory action. |
Consequently, we could set our premium rates too low, which would negatively affect our results of operations and our profitability, or we could set our premium rates too high, which could reduce our competitiveness and lead to lower revenues.
If we are unable to obtain reinsurance on favorable terms, our ability to write policies could be adversely affected.
We purchase reinsurance to protect us from the impact of large losses. Reinsurance is an arrangement in which an insurance company, called the ceding company, transfers insurance risk by sharing premiums with another insurance company, called the reinsurer. Conversely, the reinsurer receives or assumes reinsurance from the ceding company. Our 2009 reinsurance program provides us with reinsurance coverage for each loss occurrence up to $50.0 million, subject to applicable deductibles, retentions and aggregate limits. However, for any loss occurrence involving only one claimant, our reinsurance coverage is limited to $10.0 million for any single claimant, subject to applicable deductibles, retentions and aggregate limits. Our 2009 program calls for us to retain the first $1.0 million of each loss. For losses between $1.0 million and $5.0 million, we are subject to an annual aggregate deductible of $20.0 million before our reinsurers are obligated to reimburse us. The three year aggregate limit for all claims for losses between $1.0 million and $5.0 million is $40.0 million for Part A and $20.0 million for Part B. For losses between $5.0 million and $10.0 million, the three year aggregate limit for all claims for losses between $5.0 million and $10.0 million is $20.0 million. See BusinessReinsurance.
The availability, amount, and cost of reinsurance are subject to market conditions and our experience with insured losses. As a result, any material changes in market conditions or our loss experience could adversely affect our financial performance.
If any of our current reinsurers were to terminate participation in our reinsurance treaty program, we could be exposed to an increased risk of loss.
The 2009 reinsurance treaty programs first casualty excess of loss will terminate on January 1, 2011. The second casualty excess of loss and casualty catastrophe layers terminate on January 1, 2012. When our reinsurance treaty program is terminated and we enter into a new program, any decrease in the amount of
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reinsurance at the time we enter into a new program, whether caused by the existence of more restrictive terms and conditions or decreased availability, will also increase our risk of loss and, as a result, could adversely affect our business, financial condition and results of operations. We currently have 16 reinsurers participating in our reinsurance treaty program, and we believe that this is a sufficient number of reinsurers to provide us with the reinsurance coverage we require. However, it is possible that one or more of our current reinsurers could terminate participation in our program. Regarding the first casualty excess of loss treaty, it is possible that one or more of our current reinsurers could terminate continued participation in this loss layer. In addition, we may terminate the participation of one or more of our reinsurers under certain circumstances as permitted by the terms of our reinsurance agreements. In any of these events, if our reinsurance broker is unable to reallocate the terminated reinsurance among the remaining reinsurers in the program, it could take a significant period of time to identify and negotiate agreements with one or more replacement reinsurers. During this period, we would be exposed to an increased risk of loss, the extent of which would depend on the coverage previously provided by the terminated reinsurance.
We may not be able to recover amounts due from our reinsurers, which would adversely affect our financial condition.
Reinsurance does not discharge our obligations under the insurance policies we write. We remain liable to our policyholders even if we are unable to make recoveries that we are entitled to receive under our reinsurance contracts. As a result, we are subject to credit risk with respect to our reinsurers. Losses are recovered from our reinsurers as claims are paid. In long-term workers compensation claims, the creditworthiness of our reinsurers may change before we recover amounts to which we are entitled. Therefore, if a reinsurer is unable to meet any of its obligations to us, we would be responsible for all claims and claim settlement expenses for which we would have otherwise received payment from the reinsurer.
In the past, we have been unable to recover amounts from our reinsurers. In 2001, Reliance Insurance Company, one of our former reinsurers, was placed under regulatory supervision by the Pennsylvania Insurance Department and was subsequently placed into liquidation. As a result, between 2001 and December 31, 2008, we recognized losses related to uncollectible amounts due from Reliance aggregating $21.8 million.
As of December 31, 2008, we had $67.8 million of recoverables from reinsurers. Of this amount, $56.0 million was unsecured. As of December 31, 2008, our largest recoverables from reinsurers included $14.9 million from Odyssey America Reinsurance Company, $7.9 million from St. Paul Fire and Marine Insurance Company and $7.6 million from Clearwater Insurance Company. If we are unable to collect amounts recoverable from our reinsurers, our financial condition would be adversely affected.
Because we are subject to extensive state and federal regulation, legislative changes may negatively impact our business.
We are subject to extensive regulation by the Louisiana Department of Insurance and the insurance regulatory agencies of other states in which we are licensed and, to a lesser extent, federal regulation. State agencies have broad regulatory powers designed primarily to protect policyholders and their employees, and not our shareholders. Regulations vary from state to state, but typically address:
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standards of solvency, including risk-based capital measurements; |
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restrictions on the nature, quality and concentration of our investments; |
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restrictions on the terms of the insurance policies we offer; |
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restrictions on the way our premium rates are established and the premium rates we may charge; |
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required reserves for unearned premiums and loss and loss adjustment expenses; |
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standards for appointing general agencies; |
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limitations on transactions with affiliates; |
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restrictions on mergers and acquisitions; |
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restrictions on the ability of our insurance company subsidiaries to pay dividends to AMERISAFE; |
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certain required methods of accounting; and |
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potential assessments for state guaranty funds, second injury funds and other mandatory pooling arrangements. |
We may be unable to comply fully with the wide variety of applicable laws and regulations that are continually undergoing revision. In addition, we follow practices based on our interpretations of laws and regulations that we believe are generally followed by our industry. These practices may be different from interpretations of insurance regulatory agencies. As a result, insurance regulatory agencies could preclude us from conducting some or all of our activities or otherwise penalize us. For example, in order to enforce applicable laws and regulations or to protect policyholders, insurance regulatory agencies have relatively broad discretion to impose a variety of sanctions, including examinations, corrective orders, suspension, revocation or denial of licenses, and the takeover of one or more of our insurance subsidiaries. The extensive regulation of our business may increase the cost of our insurance and may limit our ability to obtain premium rate increases or to take other actions to increase our profitability.
A downgrade in our A.M. Best rating would likely reduce the amount of business we are able to write.
Rating agencies evaluate insurance companies based on their ability to pay claims. We are currently assigned a group letter rating of A (Excellent) from A.M. Best, which is the rating agency that we believe has the most influence on our business. This rating is assigned to companies that, in the opinion of A.M. Best, have demonstrated an excellent overall performance when compared to industry standards. A.M. Best considers A rated companies to have an excellent ability to meet their ongoing obligations to policyholders. The ratings of A.M. Best are subject to periodic review using, among other things, proprietary capital adequacy models, and are subject to revision or withdrawal at any time. A.M. Best ratings are directed toward the concerns of policyholders and insurance agencies and are not intended for the protection of investors or as a recommendation to buy, hold or sell securities. Our competitive position relative to other companies is determined in part by our A.M. Best rating. Any downgrade in our rating would likely adversely affect our business through the loss of certain existing and potential policyholders and the loss of relationships with certain independent agencies.
A downgrade in the A.M. Best rating of one or more of our significant reinsurers could adversely affect our financial condition.
Our financial condition could be adversely affected if the A.M. Best rating of one or more of our significant reinsurers is downgraded. For example, our A.M. Best rating may be downgraded if our amounts recoverable from a reinsurer are significant and the A.M. Best rating of that reinsurer is downgraded. If one of our reinsurers suffers a rating downgrade, we may consider various options to lessen the impact on our financial condition, including commutation, novation and the use of letters of credit to secure amounts recoverable from reinsurers. However, these options may result in losses to our company, and there can be no assurance that we could implement any of these options.
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Our business is dependent on the efforts of our executive officers because of their industry expertise, knowledge of our markets and relationships with the independent agencies that sell our insurance.
Our success is dependent on the efforts of our executive officers because of their industry expertise, knowledge of our markets and relationships with our independent agencies. We have entered into employment agreements with each of our executive officers and those agreements expire in March 2011, unless extended. Should any of our executive officers cease working for us, we may be unable to find acceptable replacements with comparable skills and experience in the workers compensation insurance industry and the hazardous industries that we target. As a result, our operations may be disrupted and our business may be adversely affected. We do not currently maintain life insurance policies with respect to our executive officers.
The effects of emerging claim and coverage issues on our business are uncertain.
As industry practices and legal, judicial, social and other environmental conditions change, unexpected and unintended issues related to claims and coverage may emerge. These issues may adversely affect our business by either extending coverage beyond our underwriting intent or by increasing the number or size of claims. In some instances, these changes may not become apparent until after we have issued insurance policies that are affected by the changes. As a result, the full extent of our liability under an insurance policy may not be known until many years after the policy is issued. For example, medical costs associated with permanent and partial disabilities may increase more rapidly or be higher than we currently expect. Changes of this nature may expose us to higher claims than we anticipated when we wrote the underlying policy.
If we cannot sustain our relationships with independent agencies, we may be unable to operate profitably.
We market a substantial portion of our workers compensation insurance through independent agencies. As of December 31, 2008, independent agencies produced 89.8% of our voluntary in-force premiums. No independent agency accounted for more than 1.0% of our voluntary in-force premiums at that date. Independent agencies are not obligated to promote our insurance and may sell insurance offered by our competitors. As a result, our continued profitability depends, in part, on the marketing efforts of our independent agencies and on our ability to offer workers compensation insurance and maintain financial strength ratings that meet the requirements of our independent agencies and their policyholders.
An inability to effectively manage the growth of our operations could make it difficult for us to compete and could affect our ability to operate profitably.
Our continuing growth strategy includes expanding in our existing markets, entering new geographic markets and further developing our agency relationships. Our growth strategy is subject to various risks, including risks associated with our ability to:
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profitably increase our business in existing markets; |
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identify profitable new geographic markets for entry; |
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attract and retain qualified personnel for expanded operations; |
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identify, recruit and integrate new independent agencies; and |
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augment our internal operations and systems as we expand our business. |
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We may require additional capital in the future, which may not be available to us or may be available only on unfavorable terms.
Our future capital requirements will depend on many factors, including state regulatory requirements, the financial stability of our reinsurers and our ability to write new business and establish premium rates sufficient to cover our estimated claims. We may need to raise additional capital or curtail our growth if the capital of our insurance subsidiaries is insufficient to support future operating requirements and/or cover claims. If we had to raise additional capital, equity or debt financing might not be available to us or might be available only on terms that are not favorable. Future equity offerings could be dilutive to our shareholders and the equity securities issued in any offering may have rights, preferences and privileges senior to our common stock.
In addition, under certain circumstances, the sale of our common stock, or securities convertible or exchangeable into shares of our common stock, at a price per share less than the market value of our common stock may result in an adjustment to the conversion price at which shares of our existing convertible preferred stock may be converted into shares of our common stock.
If we cannot obtain adequate capital on favorable terms or at all, we may be unable to support future growth or operating requirements and, as a result, our business, financial condition or results of operations could be adversely affected.
As an insurance holding company, AMERISAFE is dependent on the results of operations of its insurance subsidiaries, and our Companys ability to pay dividends depends on the regulatory and financial capacity of its subsidiaries to pay dividends to AMERISAFE.
AMERISAFE is a holding company that transacts business through its operating subsidiaries, including American Interstate Insurance Company. AMERISAFEs primary assets are the capital stock of these operating subsidiaries. The ability of AMERISAFE to pay dividends to our shareholders depends upon the surplus and earnings of our subsidiaries and their ability to pay dividends to AMERISAFE. Payment of dividends by our insurance subsidiaries is restricted by state insurance laws, including laws establishing minimum solvency and liquidity thresholds, and could be subject to contractual restrictions in the future, including those imposed by indebtedness we may incur in the future. As a result, AMERISAFE may not be able to receive dividends from its insurance subsidiaries and may not receive dividends in amounts necessary to pay dividends on our capital stock. Based on reported capital and surplus at December 31, 2008, American Interstate is permitted under Louisiana insurance law to pay dividends to AMERISAFE in 2009 in an amount up to $17.6 million without approval by the Louisiana Department of Insurance.
We have limited ability to pay dividends on, or repurchase, our common stock without consent from our preferred shareholders and, in the case of dividends, our lenders.
We may not pay dividends on our common stock (other than in additional shares of common stock) or repurchase shares of our common stock without the consent of the holders of two-thirds of the outstanding shares of our convertible preferred stock. In the case of dividends, if holders of our convertible preferred stock consent to the payment of a dividend by us, we must pay a dividend to the holders of our convertible preferred stock on an as-converted to common stock basis equal to the dividend we pay to holders of our common stock. Further, our existing credit agreement requires us to obtain the consent of our lenders in order to pay cash dividends. Currently, we do not intend to pay dividends on our common stock.
Assessments and premium surcharges for state guaranty funds, second injury funds and other mandatory pooling arrangements may reduce our profitability.
Most states require insurance companies licensed to do business in their state to participate in guaranty funds, which require the insurance companies to bear a portion of the unfunded obligations of impaired, insolvent or failed insurance companies. These obligations are funded by assessments, most of which are expected to
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continue in the future. State guaranty associations levy assessments, up to prescribed limits, on all member insurance companies in the state based on their proportionate share of premiums written in the lines of business in which the impaired, insolvent or failed insurance companies are engaged. See BusinessRegulation in Item 1 of this report. Accordingly, the assessments levied on us may increase as we increase our written premium. Some states also have laws that establish second injury funds to reimburse insurers and employers for claims paid to injured employees for aggravation of prior conditions or injuries. These funds are supported by either assessments or premium surcharges based on case incurred losses.
In addition, as a condition to conducting business in some states, insurance companies are required to participate in residual market programs to provide insurance to those employers who cannot procure coverage from an insurance carrier on a negotiated basis. Insurance companies generally can fulfill their residual market obligations by, among other things, participating in a reinsurance pool where the results of all policies provided through the pool are shared by the participating insurance companies. Although we price our insurance to account for obligations we may have under these pooling arrangements, we may not be successful in estimating our liability for these obligations. Accordingly, mandatory pooling arrangements may cause a decrease in our profits.
At December 31, 2008, we participated in mandatory pooling arrangements in 19 states and the District of Columbia. As we write policies in new states that have mandatory pooling arrangements, we will be required to participate in additional pooling arrangements. Further, the impairment, insolvency or failure of other insurance companies in these pooling arrangements would likely increase the liability for other members in the pool. The effect of assessments and premium surcharges or changes in them could reduce our profitability in any given period or limit our ability to grow our business.
We may have exposure to losses from terrorism for which we are required by law to provide coverage.
When writing workers compensation insurance policies, we are required by law to provide workers compensation benefits for losses arising from acts of terrorism. The impact of any terrorist act is unpredictable, and the ultimate impact on us would depend upon the nature, extent, location and timing of such an act. Our 2009 reinsurance treaty program affords limited coverage for up to $50.0 million for losses arising from terrorism, subject to applicable deductibles, retentions and aggregate limits.
Notwithstanding the protection provided by reinsurance and the Terrorism Risk Insurance Extension Act of 2007, the risk of severe losses to us from acts of terrorism has not been eliminated because our reinsurance treaty program includes various sub-limits and exclusions limiting our reinsurers obligation to cover losses caused by acts of terrorism. Accordingly, events constituting acts of terrorism may not be covered by, or may exceed the capacity of, our reinsurance and could adversely affect our business and financial condition. In addition, the Terrorism Risk Insurance Extension Act of 2007 is set to expire on December 31, 2014. If this law is not extended or replaced by legislation affording a similar level of protection to the insurance industry against insured losses arising out of acts of terrorism, reinsurance for losses arising from terrorism may be unavailable or prohibitively expensive, and we may be further exposed to losses arising from acts of terrorism.
Risks Related to Our Common Stock
Our revenues and results of operations may fluctuate as a result of factors beyond our control, which fluctuation may cause the price of our common stock to be volatile.
The revenues and results of operations of our insurance subsidiaries historically have been subject to significant fluctuations and uncertainties. Our profitability can be affected significantly by:
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rising levels of claims costs, including medical and prescription drug costs, that we cannot anticipate at the time we establish our premium rates; |
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fluctuations in interest rates, inflationary pressures and other changes in the investment environment that affect returns on our invested assets; |
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changes in the frequency or severity of claims; |
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the financial stability of our reinsurers and changes in the level of reinsurance capacity and our capital capacity; |
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new types of claims and new or changing judicial interpretations relating to the scope of liabilities of insurance companies; |
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volatile and unpredictable developments, including man-made, weather-related and other natural catastrophes or terrorist attacks; and |
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price competition. |
If our revenues and results of operations fluctuate as a result of one or more of these factors, the price of our common stock may become more volatile.
The trading price of our common stock may decline.
The trading price of our common stock may decline for many reasons, some of which are beyond our control, including, among others:
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our results of operations; |
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changes in expectations as to our future results of operations, including financial estimates and projections by securities analysts and investors; |
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results of operations that vary from those expected by securities analysts and investors; |
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developments in the healthcare or insurance industries; |
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changes in laws and regulations; |
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announcements of claims against us by third parties; |
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future issuances or sales of our common stock, including issuances upon conversion of our outstanding convertible preferred stock; and |
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current and expected economic conditions. |
In addition, the stock market in general has recently experienced significant volatility that often has been unrelated to the operating performance of companies whose shares are traded. These market fluctuations could adversely affect the trading price of our common stock, regardless of our actual operating performance.
Securities analysts may discontinue coverage of our common stock or may issue negative reports, which may adversely affect the trading price of our common stock.
There is no assurance that securities analysts will continue to cover our company. If securities analysts do not cover our company, this lack of coverage may adversely affect the trading price of our common stock. The trading market for our common stock relies in part on the research and reports that securities analysts publish about us or our business. If one or more of the analysts who cover our company downgrades our common stock, the trading price of our common stock may decline rapidly. If one or more of these analysts ceases to cover our company, we could lose visibility in the market, which, in turn, could also cause the trading price of our common stock to decline.
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Future sales of our common stock may affect the trading price of our common stock and the future exercise of options or the exercise of the conversion rights of our convertible preferred stock may lower our stock price.
We cannot predict what effect, if any, future sales of our common stock, or the availability of shares for future sale, will have on the trading price of our common stock. Sales of a substantial number of shares of our common stock in the public market, or the perception that such sales could occur, may adversely affect the trading price of our common stock and may make it more difficult for you to sell your shares at a time and price that you determine appropriate. As of March 1, 2009, there were 18,856,602 shares of our common stock outstanding and 1,214,770 shares of our common stock are issuable upon the conversion of shares of our outstanding convertible preferred stock. Upon conversion, these shares of common stock will be freely tradable without restriction or further registration under the Securities Act. As of December 31, 2008, there were outstanding options exercisable to purchase 1,419,055 shares of our common stock, of which 1,174,055 were granted in November 2005. All options vest 20% each year commencing on the first anniversary of the date of grant. As of December 31, 2008, a total of 872,700 stock options had vested.
The terms of our convertible preferred stock could adversely affect the value of our common stock.
The conversion price of our convertible preferred stock is currently $20.58 per share and our outstanding convertible preferred stock is presently convertible into 1,214,770 shares of common stock. Subject to certain exceptions, the conversion price of our convertible preferred stock may decrease if we issue additional shares of our common stock for less than the market price of our common stock.
Holders of our convertible preferred stock have the right to cause us to file a registration statement with the SEC to sell the shares of common stock issuable upon conversion of the convertible preferred stock. Sales of shares of common stock issuable upon conversion of our convertible preferred stock could adversely affect the trading price of our common stock.
We may not pay dividends on our common stock (other than in additional shares of common stock) or repurchase shares of our common stock without the consent of the holders of two-thirds of the outstanding shares of our convertible preferred stock. In the case of dividends, if holders of our convertible preferred stock consent to the payment of a dividend by us, we must pay a dividend to the holders of our convertible preferred stock on an as-converted to common stock basis equal to the dividend we pay to holders of our common stock.
The terms of our articles of incorporation relating to our convertible preferred stock could impede a change of control of our company. Following a change of control, holders of our convertible preferred stock have the right to require us to redeem their shares at a redemption price of $100 per share. The redemption provisions of our convertible preferred stock could have the effect of discouraging a future change of control of our company.
Provisions of our articles of incorporation and bylaws and the laws of the states of Texas and Louisiana could impede an attempt to replace or remove our directors or otherwise effect a change of control of our company, which could diminish the value of our common stock.
Our articles of incorporation and bylaws contain provisions that may make it more difficult for shareholders to replace or remove directors even if the shareholders consider it beneficial to do so. In addition, these provisions could delay or prevent a change of control of our company that shareholders might consider favorable. Our articles of incorporation and bylaws contain the following provisions that could have an anti-takeover effect:
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election of our directors is classified, meaning that the members of only one of three classes of our directors are elected each year; |
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shareholders have limited ability to call shareholder meetings and to bring business before a meeting of shareholders; |
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shareholders may not act by written consent, unless the consent is unanimous; and |
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our board of directors may authorize the issuance of junior preferred stock with such rights, preferences and privileges as the board deems appropriate. |
These provisions may make it difficult for shareholders to replace management and could have the effect of discouraging a future takeover attempt that is not approved by our board of directors, but which individual shareholders might consider favorable.
We are incorporated in Texas and are subject to Part 13 of the Texas Business Corporation Act. Under this statute, our ability to enter into a business combination with any affiliated shareholder is limited.
In addition, two of our three insurance company subsidiaries, American Interstate and Silver Oak Casualty, are incorporated in Louisiana and the other, American Interstate of Texas, is incorporated in Texas. Under Louisiana and Texas insurance law, advance approval by the state insurance department is required for any change of control of an insurer. Control is presumed to exist through the direct or indirect ownership of 10% or more of the voting securities of a domestic insurance company or any entity that controls a domestic insurance company. Obtaining these approvals may result in the material delay of, or deter, any transaction that would result in a change of control.
Item 1B. | Unresolved Staff Comments. |
None.
Item 2. | Properties. |
We own our 45,000 square foot executive offices located in DeRidder, Louisiana. In addition, we lease an additional 28,000 square feet of office space in DeRidder, Louisiana, pursuant to a lease agreement that has been extended for one year to December 31, 2009 at a rental rate of $267,000 for the year. This lease agreement may be extended for one additional one-year period at our option. We also lease space at other locations for certain of our service and claims representatives.
Item 3. | Legal Proceedings. |
In the ordinary course of our business, we are involved in the adjudication of claims resulting from workplace injuries. We are not involved presently in any legal or administrative proceedings that we believe are likely to have a materially adverse effect on our business, financial condition or results of operations.
Item 4. | Submission of Matters to a Vote of Security Holders. |
During the quarter ended December 31, 2008, no matters were submitted to a vote of shareholders.
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PART II
Item 5. | Market for Registrants Common Equity, Related Stockholder Matters, and Issuer Purchases of Equity Securities. |
Market Information and Holders
Our common stock is traded on the NASDAQ Global Select Market under the symbol AMSF. As of March 1, 2009, there were 29 holders of record of our common stock.
The table below sets forth the reported high and low sales prices of our common stock as quoted on the NASDAQ for the last two fiscal years.
High | Low | |||||
2007 |
||||||
First Quarter |
$ | 19.39 | $ | 15.27 | ||
Second Quarter |
$ | 20.45 | $ | 17.30 | ||
Third Quarter |
$ | 21.25 | $ | 12.75 | ||
Fourth Quarter |
$ | 18.14 | $ | 14.11 | ||
2008 |
||||||
First Quarter |
$ | 15.80 | $ | 12.10 | ||
Second Quarter |
$ | 16.80 | $ | 12.56 | ||
Third Quarter |
$ | 21.61 | $ | 15.46 | ||
Fourth Quarter |
$ | 21.61 | $ | 12.51 |
Dividend Policy
We have not paid cash dividends on our common stock in the prior two years. We currently intend to retain any future earnings to finance our operations and growth. As a result, we do not expect to pay any cash dividends on our common stock for the foreseeable future. Any future determination to pay cash dividends on our common stock will be at the discretion of our board of directors and will be dependent on our earnings, financial condition, operating results, capital requirements, any contractual, regulatory or other restrictions on the payment of dividends by our subsidiaries to AMERISAFE, and other factors that our board of directors deem relevant.
AMERISAFE is a holding company and has no direct operations. Our ability to pay dividends in the future depends on the ability of our operating subsidiaries to pay dividends to us. Our insurance company subsidiaries are regulated insurance companies and therefore are subject to significant regulatory restrictions limiting their ability to declare and pay dividends. See BusinessRegulationDividend Limitations. in Item 1 of this report.
Our ability to pay dividends is also subject to restrictions set forth in our articles of incorporation, which prohibit us from paying dividends on our common stock (other than in additional shares of common stock) without the consent of the holders of two-thirds of the outstanding shares of our convertible preferred stock. If holders of our convertible preferred stock consent to the payment of a dividend by us, we must pay a dividend to the holders of our convertible preferred stock on an as-converted to common stock basis equal to the dividend we pay to holders of our common stock.
Our existing revolving credit agreement contains covenants that restrict our ability to pay dividends on our common stock without the lenders consent. See Liquidity and Capital Resources. in Item 7 of this report.
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Description of Capital Stock
AMERISAFE is authorized to issue 69,000,000 shares of capital stock, consisting of:
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3,000,000 shares of preferred stock, par value $0.01 per share, of which: |
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1,500,000 shares are designated as Series A preferred stock, of which 862,924 shares have been canceled and retired and cannot be reissued; and |
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1,500,000 shares are designated as Series B preferred stock; |
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500,000 shares of convertible preferred stock, par value $0.01 per share, of which: |
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300,000 shares are designated as Series C convertible deferred pay preferred stock of which 250,000 shares have been canceled and retired and cannot be reissued; and |
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200,000 shares are designated as Series D non-voting convertible deferred pay preferred stock; |
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500,000 shares of Series E preferred stock, par value $0.01 per share, of which 317,744 shares have been canceled and retired and cannot be reissued; |
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10,000,000 shares of junior preferred stock, par value $0.01 per share; |
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50,000,000 shares of common stock, par value $0.01 per share; and |
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5,000,000 shares of convertible non-voting common stock, par value $0.01 per share. |
As of March 1, 2009, the following shares of our capital stock were outstanding:
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50,000 shares of Series C convertible preferred stock; |
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200,000 shares of Series D convertible preferred stock; and |
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18,856,602 shares of common stock. |
As of March 1, 2009, there were no outstanding shares of Series A, Series B or Series E preferred stock, junior preferred stock, or non-voting common stock. Our Series C and Series D convertible preferred stock are collectively referred to in this report as our convertible preferred stock.
The following is a summary of certain provisions of our outstanding capital stock and our non-voting common stock (which non-voting common stock is issuable upon conversion of our Series D convertible preferred stock). This summary is qualified in its entirety by the provisions of our articles of incorporation, a copy of which is filed as an exhibit to this report.
Common Stock and Non-Voting Common Stock
Voting. Each holder of our common stock is entitled to one vote for each share on all matters to be voted on by our shareholders. Holders of our common stock vote together as a single class with the holders of our Series C convertible preferred stock. Holders of shares of non-voting common stock are not entitled to vote on any matter to be voted on by our shareholders, except as required by Texas law.
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Dividends. Holders of common stock and non-voting common stock are entitled to receive dividends, on an equal basis, at the time and in the amount as our board may from time to time determine, subject to any preferential amounts payable to holders of our outstanding preferred stock. Our articles of incorporation prohibit us from paying dividends on our common stock and non-voting common stock (other than in additional shares of common stock or non-voting common stock, as applicable) without the consent of the holders of two-thirds of the outstanding shares of our convertible preferred stock. If holders of our convertible preferred stock consent to the payment of a dividend by us, we must pay a dividend to the holders of our convertible preferred stock (on an as-converted to common stock or non-voting common stock basis) equal to the dividend we pay to the holders of our common stock and non-voting common stock.
Stock Repurchases. Our articles of incorporation prohibit us from purchasing or redeeming any shares of our common stock or non-voting common stock without the consent of the holders of two-thirds of the outstanding shares of our convertible preferred stock.
Liquidation. Upon a liquidation and dissolution of our company, the holders of common stock and non-voting common stock are entitled to receive, on an equal basis, all assets available for distribution to shareholders, subject to any preferential amounts payable to holders of our then-outstanding preferred stock.
Issuance and Conversion of Non-Voting Common Stock. Shares of our non-voting common stock are issuable upon conversion of our Series D convertible preferred stock at the option of the holders of our Series D convertible preferred stock. At the option of the holder, each share of non-voting common stock may be converted at any time into one share of common stock.
Convertible Preferred Stock
Voting. Each holder of our Series C convertible preferred stock is entitled to one vote for each share of our common stock into which the Series C convertible preferred stock is convertible on all matters to be voted on by our shareholders. Holders of our convertible preferred stock vote together as a single class with holders of our common stock. The Series D convertible preferred stock is non-voting. However, the holders of Series C convertible preferred stock and Series D convertible preferred stock have the right to vote as a separate class on any amendment to our articles of incorporation that would adversely affect the rights, privileges and preferences of the convertible preferred stock.
In addition, the holders of two-thirds of our convertible preferred stock must approve any payment of a dividend or distribution on our common stock or non-voting common stock (other than in additional shares of common stock or non-voting common stock, as applicable) or the purchase or redemption of any shares of our common stock or non-voting common stock.
Dividends. Prior to the completion of our initial public offering in November 2005, holders of our convertible preferred stock were entitled to receive pay-in-kind dividends at a rate of $7.00 per share per annum, payable in shares of Series E preferred stock. Under the terms of our articles of incorporation, holders of our convertible preferred stock are no longer entitled to receive these pay-in-kind dividends as a result of the redemption and exchange of all outstanding shares of our Series A preferred stock in connection with our initial public offering. However, if the holders of two-thirds of our outstanding convertible preferred stock consent to the payment of a dividend by us to the holders of our common stock or non-voting common stock, the holders of our outstanding convertible preferred stock will receive (on an as-converted to common stock or non-voting common stock basis) a dividend equal to the dividend to be paid to the holders of our common stock and non-voting common stock.
Liquidation Rights. Upon any liquidation, dissolution or winding up of our company, holders of our convertible preferred stock are entitled to receive, in cash, an amount equal to the greater of:
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$100 for each share of convertible preferred stock outstanding, plus the cash value, calculated at $100 per share, of all accrued and unpaid dividends; and |
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the amount distributable to the holders of our convertible preferred stock upon liquidation, dissolution or winding up had the holders converted their shares into common stock or non-voting common stock, as the case may be, in accordance with the terms of the convertible preferred stock immediately prior to liquidation, dissolution or winding up. |
All liquidation payments in respect of shares of our convertible preferred stock are required to be paid before any distribution is made in respect of our Series A preferred stock, junior preferred stock, common stock and non-voting common stock.
Conversion. The Series C convertible preferred stock is convertible into our common stock, and the Series D convertible preferred stock is convertible into our non-voting common stock, in each case at a conversion rate calculated by multiplying the number of shares to be converted by $100 and dividing the result by the then-applicable conversion price, as adjusted from time to time. As of March 15, 2006, the conversion price was $20.58 per share. Our convertible preferred stock is convertible:
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at any time at the option of the holder; |
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at our option at any time following the consummation of any public offering of our equity securities or a change of control of our company if the closing price for our common stock for the prior 20 trading days is, or the proceeds from the change of control results in a value for our outstanding common stock of, at least $651.60 per share; and |
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automatically upon consummation of a public offering of our common stock with gross proceeds to us of at least $40 million at a price to public of at least $651.60 per share, subject to adjustment to reflect stock splits, combinations and stock dividends. |
Conversion Price Adjustments. Subject to certain exceptions, the conversion price will be adjusted if we issue or sell shares of our common stock or non-voting common stock (including options to acquire shares and securities convertible into or exchangeable for shares of common stock or non-voting common stock) without consideration or for a consideration per share less than the market price of our common stock or non-voting common stock in effect immediately prior to the issuance or sale. In that event, the conversion price will be reduced to a conversion price (calculated to the nearest cent) determined by dividing:
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an amount equal to the sum of: |
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the number of shares of common stock and non-voting common stock outstanding immediately prior to the issuance or sale (including as outstanding all shares of common stock and non-voting common stock issuable upon conversion of outstanding convertible preferred stock) multiplied by the then-existing market price of our common stock; plus |
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the consideration, if any, received by us upon the issuance or sale; by |
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the total number of shares of common stock and non-voting common stock outstanding immediately after such issuance or sale (including as outstanding all shares of common stock and non-voting common stock issuable upon conversion of outstanding convertible preferred stock, without giving effect to any adjustment in the number of shares issuable by reason of such issue and sale). |
If we issue or sell shares of common stock or non-voting common stock for cash, the cash consideration received will be deemed to be the amount received by us, without deduction for any expenses incurred or any underwriting commissions or concessions paid or allowed by us. If we issue or sell shares of common stock or non-voting common stock for a consideration other than cash, the amount of the consideration other than cash received shall be deemed to be the fair value of such consideration as determined in good faith by our board of directors, without deduction for any expenses incurred or any underwriting commissions or concessions paid or allowed by us.
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No adjustments to the conversion price are required for issuances of shares of our common stock or non-voting common stock upon any conversion of our convertible preferred stock, under our equity incentive plans or in connection with any acquisition by us.
Redemption. Following a change of control of our company, holders of our convertible preferred stock have the right to require us to redeem their shares at a redemption price of $100 plus the cash value, calculated at $100 per share, of all accrued and unpaid dividends. Our articles of incorporation define a change of control of our company for this purpose to include:
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the sale, lease or transfer of all or substantially all of our assets in one or a series of related transactions to any person; or |
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the acquisition of beneficial ownership by any person, other than Welsh Carson, in one or a series of related transactions, of our voting stock representing more than 50% of the voting power of all outstanding shares of our voting stock, whether by merger, consolidation or otherwise, other than by way of a public offering of our equity securities. |
In addition, we may at any time, on 30 days notice, redeem all, but not less than all, shares of convertible preferred stock at a redemption price of $103.50 plus the cash value, calculated at $100 per share, of any accrued and unpaid dividends. Until payment of the redemption price, we may not make any payment or distribution upon any preferred stock, common stock or non-voting common stock.
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Item 6. | Selected Financial Data. |
The following tables summarize certain selected financial data that should be read in conjunction with our audited financial statements and accompanying notes thereto for the year ended December 31, 2008 included in this report and Item. 7. Managements Discussion and Analysis of Financial Condition and Results of Operations.
Year Ended December 31, | ||||||||||||||||||||
2008 | 2007 | 2006 | 2005 | 2004 | ||||||||||||||||
(In thousands, except share and per share data) | ||||||||||||||||||||
Income Statement Data |
||||||||||||||||||||
Gross premiums written |
$ | 307,841 | $ | 327,761 | $ | 332,491 | $ | 290,891 | $ | 264,962 | ||||||||||
Ceded premiums written |
(19,650 | ) | (20,215 | ) | (19,950 | ) | (21,541 | ) | (21,951 | ) | ||||||||||
Net premiums written |
$ | 288,191 | $ | 307,546 | $ | 312,541 | $ | 269,350 | $ | 243,011 | ||||||||||
Net premiums earned |
$ | 289,493 | $ | 306,906 | $ | 299,303 | $ | 256,568 | $ | 234,733 | ||||||||||
Net investment income |
30,998 | 30,208 | 25,383 | 16,882 | 12,217 | |||||||||||||||
Net realized gains (losses) on investments |
(18,856 | ) | 147 | 7,389 | 2,272 | 1,421 | ||||||||||||||
Fee and other income |
742 | 1,058 | 645 | 561 | 589 | |||||||||||||||
Total revenues |
302,377 | 338,319 | 332,720 | 276,283 | 248,960 | |||||||||||||||
Loss and loss adjustment expenses incurred |
176,389 | 198,531 | 199,484 | 204,056 | 174,186 | |||||||||||||||
Underwriting and certain other operating costs (1) |
14,933 | 26,267 | 35,024 | 31,113 | 28,792 | |||||||||||||||
Commissions |
20,592 | 20,352 | 19,030 | 16,226 | 14,160 | |||||||||||||||
Salaries and benefits |
20,411 | 18,896 | 17,234 | 16,045 | 15,229 | |||||||||||||||
Interest expense |
2,460 | 3,545 | 3,496 | 2,844 | 1,799 | |||||||||||||||
Policyholder dividends (2) |
3,504 | (367 | ) | 6,006 | 4 | 1,108 | ||||||||||||||
Total expenses |
238,289 | 267,224 | 280,274 | 270,288 | 235,274 | |||||||||||||||
Income before taxes |
64,088 | 71,095 | 52,446 | 5,995 | 13,686 | |||||||||||||||
Income tax expense |
20,242 | 20,876 | 15,088 | 65 | 3,129 | |||||||||||||||
Net income |
43,846 | 50,219 | 37,358 | 5,930 | 10,557 | |||||||||||||||
Payment-in-kind preferred dividends |
| | | (8,593 | ) | (9,781 | ) | |||||||||||||
Net income (loss) available to common shareholders |
$ | 43,846 | $ | 50,219 | $ | 37,358 | $ | (2,663 | ) | $ | 776 | |||||||||
Portion allocable to common shareholders (3) |
94.0 | % | 94.0 | % | 88.6 | % | 100.0 | % | 70.2 | % | ||||||||||
Net income (loss) allocable to common shareholders |
$ | 41,215 | $ | 47,211 | $ | 33,099 | $ | (2,663 | ) | $ | 545 | |||||||||
Diluted earnings per common share equivalent |
$ | 2.15 | $ | 2.47 | $ | 1.88 | $ | (1.25 | ) | $ | 2.14 | |||||||||
Diluted weighted average of common share equivalents outstanding |
19,141,688 | 19,079,380 | 17,594,736 | 2,129,492 | 255,280 | |||||||||||||||
Selected Insurance Ratios |
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Current accident year loss ratio (4) |
68.0 | % | 67.8 | % | 67.4 | % | 71.0 | % | 68.5 | % | ||||||||||
Prior accident year loss ratio (5) |
(7.1 | )% | (3.1 | )% | (0.8 | )% | 8.5 | % | 5.7 | % | ||||||||||
Net loss ratio |
60.9 | % | 64.7 | % | 66.6 | % | 79.5 | % | 74.2 | % | ||||||||||
Net underwriting expense ratio (6) |
19.3 | % | 21.3 | % | 23.8 | % | 24.7 | % | 24.8 | % | ||||||||||
Net dividend ratio (2) (7) |
1.2 | % | (0.1 | )% | 2.0 | % | 0.0 | % | 0.5 | % | ||||||||||
Net combined ratio (8) |
81.4 | % | 85.9 | % | 92.4 | % | 104.2 | % | 99.5 | % | ||||||||||
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As of December 31, | ||||||||||||||||
2008 | 2007 | 2006 | 2005 | 2004 | ||||||||||||
(In thousands) | ||||||||||||||||
Balance Sheet Data |
||||||||||||||||
Cash and cash equivalents |
$ | 95,266 | $ | 47,329 | $ | 26,748 | $ | 49,286 | $ | 25,421 | ||||||
Investments |
704,707 | 711,745 | 638,780 | 533,618 | 364,868 | |||||||||||
Amounts recoverable from reinsurers |
67,763 | 77,272 | 109,603 | 122,562 | 198,977 | |||||||||||
Premiums receivable, net |
156,567 | 152,150 | 144,384 | 123,934 | 114,141 | |||||||||||
Deferred income taxes |
33,580 | 26,418 | 29,466 | 22,413 | 15,624 | |||||||||||
Deferred policy acquisition costs |
20,289 | 18,414 | 18,486 | 16,973 | 12,044 | |||||||||||
Deferred charges |
3,381 | 3,553 | 3,548 | 3,182 | 3,054 | |||||||||||
Total assets |
1,107,833 | 1,061,853 | 994,146 | 892,320 | 754,187 | |||||||||||
Reserves for loss and loss adjustment expenses |
531,293 | 537,403 | 519,178 | 484,485 | 432,880 | |||||||||||
Unearned premiums |
137,100 | 138,402 | 137,761 | 124,524 | 111,741 | |||||||||||
Insurance-related assessments |
42,505 | 42,234 | 40,886 | 35,135 | 29,876 | |||||||||||
Debt |
36,090 | 36,090 | 36,090 | 36,090 | 36,090 | |||||||||||
Redeemable preferred stock (9) |
25,000 | 25,000 | 25,000 | 50,000 | 131,916 | |||||||||||
Shareholders equity (deficit) (10) |
253,272 | 208,570 | 158,784 | 97,346 | (42,862 | ) |
(1) | Includes policy acquisition expenses and other general and administrative expenses, excluding commissions and salaries and benefits, related to insurance operations and corporate operating expenses. |
(2) | In 2007, includes a net $1.3 million reduction of dividends accrued for policyholders in Florida. Florida law requires payment of dividends to Florida policyholders pursuant to a formula based on underwriting results from policies written in Florida in a consecutive three-year period. |
(3) | Reflects the participation rights of our convertible preferred stock. See Note 12 to our audited financial statements. |
(4) | The current accident year loss ratio is calculated by dividing loss and loss adjustment expenses incurred for the current accident year by the current years net premiums earned. |
(5) | The prior accident year loss ratio is calculated by dividing the change in loss and loss adjustment expenses incurred for prior accident years by the current years net premiums earned. |
(6) | The net underwriting expense ratio is calculated by dividing underwriting and certain other operating costs, commissions and salaries, and benefits by the current years net premiums earned. |
(7) | The net dividend ratio is calculated by dividing policyholder dividends by the current years net premiums earned. |
(8) | The net combined ratio is the sum of the net loss ratio, the net underwriting expense ratio, and the net dividend ratio. |
(9) | Includes our Series C and Series D convertible preferred stock, each of which is mandatorily redeemable upon the occurrence of certain events that are deemed to be outside our control. In November 2006, 250,000 shares of Series C preferred stock were converted into shares of common stock by the holders in connection with a secondary public offering of common stock. For years prior to 2005, also includes our Series A preferred stock, which was mandatorily redeemable upon the occurrence of certain events that were deemed to be outside our control. In connection with the initial public offering of our common stock in November 2005, all outstanding shares of our Series A preferred stock were redeemed and exchanged for shares of our common stock. |
(10) | In 1997, we entered into a recapitalization transaction that resulted in a $164.2 million charge to retained earnings. |
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Item 7. | Managements Discussion and Analysis of Financial Condition and Results of Operations. |
The following discussion of our financial condition and results of operations should be read in conjunction with our consolidated financial statements and the notes thereto included in Item 8 of this report. This discussion includes forward-looking statements that are subject to risks, uncertainties and other factors described in Item 1A of this report. These factors could cause our actual results in 2009 and beyond to differ materially from those expressed in, or implied by, those forward-looking statements.
Overview
AMERISAFE is a holding company that markets and underwrites workers compensation insurance through its insurance subsidiaries. Workers compensation insurance covers statutorily prescribed benefits that employers are obligated to provide to their employees who are injured in the course and scope of their employment. Our business strategy is focused on providing this coverage to small to mid-sized employers engaged in hazardous industries, principally construction, trucking, agriculture and logging. Employers engaged in hazardous industries pay substantially higher than average rates for workers compensation insurance compared to employers in other industries, as measured per payroll dollar. The higher premium rates are due to the nature of the work performed and the inherent workplace danger of our target employers. Hazardous industry employers also tend to have less frequent but more severe claims as compared to employers in other industries due to the nature of their businesses. We provide proactive safety reviews of employers workplaces. These safety reviews are a vital component of our underwriting process and also promote safer workplaces. We utilize intensive claims management practices that we believe permit us to reduce the overall cost of our claims. In addition, our audit services ensure that our policyholders pay the appropriate premiums required under the terms of their policies and enable us to monitor payroll patterns that cause underwriting, safety or fraud concerns. We believe that the higher premiums typically paid by our policyholders, together with our disciplined underwriting and safety, claims and audit services, provide us with the opportunity to earn attractive returns for our shareholders.
We actively market our insurance in 30 states and the District of Columbia through independent agencies, as well as through our wholly owned insurance agency subsidiary. We are also licensed in an additional 17 states and the U.S. Virgin Islands.
One of the key financial measures that we use to evaluate our operating performance is return on average equity. We calculate return on average equity by dividing annual net income by the average of annual shareholders equity plus redeemable preferred stock. Our return on average equity was 17.1% in 2008, 24.1% in 2007 and 22.6% in 2006. Our overall financial objective is to produce a return on equity of at least 15% over the long-term while maintaining optimal operating leverage in our insurance subsidiaries that is commensurate with our A. M. Best rating.
Investment income is an important element of our net income. Because the period of time between our receipt of premiums and the ultimate settlement of claims is often several years or longer, we are able to invest cash from premiums for significant periods of time. As a result, we are able to generate more investment income from our premiums as compared to insurance companies that operate in other lines of business that pay claims more quickly. From December 31, 2004 to December 31, 2008, our investment portfolio, including cash and cash equivalents, increased from $390.3 million to $800.0 million and produced net investment income of $31.0 million in 2008, $30.2 million in 2007 and $25.4 million in 2006. In the third quarter of 2005, we received $61.3 million from one of our reinsurers pursuant to a commutation agreement. In the fourth quarter of 2005, we completed our initial public offering, and we retained $53.0 million of the net proceeds from the offering. Of the net proceeds we retained, we contributed $45.0 million to our insurance subsidiaries. The remaining $8.0 million was held for general corporate purposes.
The use of reinsurance is an important component of our business strategy. We purchase reinsurance to protect us from the impact of large losses. Our reinsurance program for 2009 includes 16 reinsurers that provide
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coverage to us in excess of a certain specified loss amount, or retention level. Our 2009 reinsurance program provides us with reinsurance coverage for each loss occurrence up to $50.0 million, subject to applicable deductibles, retentions and aggregate limits. However, for any loss occurrence involving only one claimant, our reinsurance coverage is limited to $10.0 million for any single claimant, subject to applicable deductibles, retentions and aggregate limits. Our 2009 program calls for us to retain the first $1.0 million of each loss. For losses between $1.0 million and $5.0 million, we are subject to an annual aggregate deductible of $20.0 million before our reinsurers are obligated to reimburse us. The aggregate limit for all claims for losses between $1.0 million and $5.0 million has two parts, as fully described in BusinessReinsurance in Item 1 of this report. For losses between $5.0 million and $10.0 million, the three year aggregate limit is $20.0 million. As losses are incurred and recorded, we record amounts recoverable from reinsurers for the portion of the losses ceded to our reinsurers.
We retain a significant amount of losses under our reinsurance programs. Based in part, on the cost of reinsurance, we increased our retention level from $500,000 plus 20% of each loss occurrence in 2002, to $1.0 million of each loss subject to an annual aggregate deductible of $20.0 million in 2008. As a result of increases in our retention levels, commutations and collections from our reinsurers in the normal course of business, our amounts recoverable from reinsurers decreased from $77.3 million at December 31, 2007 to $67.8 million at December 31, 2008.
Our most significant balance sheet liability is our reserve for loss and loss adjustment expenses. We record reserves for estimated losses under insurance policies that we write and for loss adjustment expenses related to the investigation and settlement of claims. Our reserves for loss and loss adjustment expenses represent the estimated cost of all reported and unreported loss and loss adjustment expenses incurred and unpaid at any given point in time based on known facts and circumstances. Reserves are based on estimates of the most likely ultimate cost of individual claims. These estimates are inherently uncertain. In addition, there are no policy limits on the liability for workers compensation claims as there are for other forms of insurance. Therefore, estimating reserves for workers compensation claims may be more uncertain than estimating reserves for other types of insurance claims with shorter or more definite periods between occurrence of the claim and final determination of the loss and with policy limits on liability for claim amounts.
Our focus on providing workers compensation insurance to employers engaged in hazardous industries results in our receiving relatively fewer but more severe claims than many other workers compensation insurance companies. Severe claims, which we define as claims having an estimated ultimate cost of more than $500,000, usually have a material effect on each accident years loss reserves (and our reported results of operations) as a result of both the number of severe claims reported in any year and the timing of claims in the year. As a result of our focus on higher severity, lower frequency business, our reserve for loss and loss adjustment expenses may have greater volatility than other workers compensation insurance companies.
For example, for the five year period ended December 31, 2008, we had recorded 137 severe claims, or an average of 27 severe claims per year for accident years 2004 through 2008. The number of severe claims reported in any one year in this five-year period ranged from a low of 18 in 2008 to a high of 31 in 2006 and 2007. The average severity of these claims ranged from $842,000 in 2006 to $1.4 million in 2005. On average, over the five-year period, these severe claims by themselves accounted for 10.1 percentage points of our overall loss and defense and cost containment (DCC) ratio.
Further, the ultimate cost of severe claims is more difficult to estimate, principally due to uncertainties as to medical treatment and outcome and the length and degree of disability. Because of these uncertainties, the estimate of the ultimate cost of severe claims can vary significantly as more information becomes available. As a result, at year end, the case reserve for a severe claim reported early in the year may be more accurate than the case reserve established for a severe claim reported late in the year.
A key assumption used by management in establishing loss reserves is that average per claim case incurred loss and loss adjustment expenses will increase year over year. We believe this increase primarily reflects
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medical and wage inflation. However, changes in per claim case incurred loss and loss adjustment expenses can also be affected by frequency of severe claims in the applicable accident years.
As more fully described in BusinessLoss Reserves in Item 1 of this report, the estimate for loss and loss adjustment expenses is established based upon managements analysis of historical data, and factors and trends derived from that data, including claims reported, average claim amount incurred, case development, duration, severity and payment patterns, as well as subjective assumptions. This analysis includes reviews of case reserves for individual open severe claims in the current and prior years. Management reviews the outcomes from actuarial analyses to confirm the reasonableness of its reserve estimate.
Substantial judgment is required to determine the relevance of our historical experience and industry information under current facts and circumstances. The interpretation of this historical and industry data can be impacted by external forces, principally frequency and severity of unreported claims, length of time to achieve ultimate settlement of claims, inflation in medical costs and wages, insurance policy coverage interpretations, jury determinations and legislative changes. Accordingly, our reserves may prove to be inadequate to cover our actual losses. If we change our estimates, these changes would be reflected in our results of operations during the period in which they are made, with increases in our reserves resulting in decreases in our earnings.
Our gross reserves for loss and loss adjustment expenses at December 31, 2008, 2007 and 2006 were $531.3 million, $537.4 million and $519.2 million, respectively. As a percentage of gross reserves at year end, IBNR represented 26.2% in 2008, 23.8% in 2007 and 24.0% in 2006.
In 2008, we decreased our estimates for prior year loss reserves by $20.4 million, which increased net income by $13.3 million. In 2007, we decreased our estimates for prior year loss reserves by $9.5 million, which increased net income by $6.2 million. In 2006, we decreased our estimates for prior year loss reserves by $2.2 million, which increased net income by $1.4 million.
The workers compensation insurance industry is cyclical in nature and influenced by many factors, including price competition, medical cost increases, natural and man-made disasters, changes in interest rates, changes in state laws and regulations, and general economic conditions. A hard market cycle in our industry is characterized by decreased competition that results in higher premium rates, more restrictive policy coverage terms, and lower commissions paid to agencies. In contrast, a soft market cycle is characterized by increased competition that results in lower premium rates, expanded policy coverage terms, and higher commissions paid to agencies. We believe that the workers compensation insurance industry is in the midst of a soft market cycle. Our strategy in a soft market is to focus on maintaining underwriting profitability, even if this results in premium contraction.
For additional information regarding our loss reserves and the analyses and methodologies used by management to establish these reserves, see the information under the caption BusinessLoss Reserves in Item 1 of this report.
Principal Revenue and Expense Items
Our revenues consist primarily of the following:
Net Premiums Earned. Net premiums earned is the earned portion of our net premiums written. Net premiums written is equal to gross premiums written less premiums ceded to reinsurers. Gross premiums written includes the estimated annual premiums from each insurance policy we write in our voluntary and assigned risk businesses during a reporting period based on the policy effective date or the date the policy is bound, whichever is later.
Premiums are earned on a daily pro rata basis over the term of the policy. At the end of each reporting period, premiums written that are not earned are classified as unearned premiums and are earned in subsequent
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periods over the remaining term of the policy. Our insurance policies typically have a term of one year. Thus, for a one-year policy written on July 1, 2008 for an employer with constant payroll during the term of the policy, we would earn half of the premiums in 2008 and the other half in 2009. On a monthly basis, we also recognize net premiums earned from mandatory pooling arrangements.
We estimate the annual premiums to be paid by our policyholders when we issue the policies and record those amounts on our balance sheet as premiums receivable. We conduct premium audits on all of our voluntary business policyholders annually, upon the expiration of each policy, including when the policy is renewed. The purpose of these audits is to verify that policyholders have accurately reported their payroll expenses and employee job classifications, and therefore have paid us the premium required under the terms of the policies. The difference between the estimated premium and the audited premium is referred to as earned but unbilled premium, or EBUB premium. EBUB premium can be higher or lower than the estimated premium. EBUB premium is subject to significant variability and can either increase or decrease earned premium based upon several factors, including changes in premium growth, industry mix and economic conditions. Due to the timing of audits and other adjustments, actual EBUB premium is generally not determined for several months after the expiration of the policy.
Prior to 2006, we periodically reviewed EBUB premium trends, however, the variability in those trends caused us to conclude that EBUB premium could not be reasonably estimated. As a result, we recorded EBUB premium as gross written premium and earned premium in the period that the premium audit was completed. In 2006, we recorded an estimate for EBUB premium of $5.3 million, or 1.6% of gross premiums written in 2006. At December 31, 2007, our estimate for EBUB premium was $9.0 million, a change of $3.7 million or 1.1% of gross premiums written in 2007. At December 31, 2008, our estimate for EBUB premium was $10.2 million, a change of $1.2 million or 0.4% of gross premiums written in 2008. On a quarterly basis, we review our estimate of EBUB premiums and record an adjustment to premium, related losses and expenses.
Net Investment Income and Net Realized Gains and Losses on Investments . We invest our statutory surplus funds and the funds supporting our insurance liabilities in fixed maturity and equity securities. In addition, a portion of these funds are held in cash and cash equivalents to pay current claims. Our net investment income includes interest and dividends earned on our invested assets, and amortization of premiums and discounts on our fixed-maturity securities. We assess the performance of our investment portfolio using a standard tax equivalent yield metric. Investment income that is tax-exempt is increased by our marginal federal tax rate of 35% to express yield on tax-exempt securities on the same basis as taxable securities. Net realized gains and losses on our investments are reported separately from our net investment income. Net realized gains occur when our investment securities are sold for more than their costs or amortized costs, as applicable. Net realized losses occur when our investment securities are sold for less than their costs or amortized costs, as applicable, or are written down as a result of other-than-temporary impairment. We classify our fixed maturity securities as held-to-maturity and our equity securities as available-for-sale. Net unrealized gains or losses on our equity securities are reported separately within accumulated other comprehensive income on our balance sheet.
Fee and Other Income . We recognize commission income earned on policies issued by other carriers that are sold by our wholly owned insurance agency subsidiary as the related services are performed. We also recognize a small portion of interest income from mandatory pooling arrangements in which we participate.
Our expenses consist primarily of the following:
Loss and Loss Adjustment Expenses Incurred . Loss and loss adjustment expenses incurred represents our largest expense item and, for any given reporting period, includes estimates of future claim payments, changes in those estimates from prior reporting periods and costs associated with investigating, defending, and administering claims. These expenses fluctuate based on the amount and types of risks we insure. We record loss and loss adjustment expenses related to estimates of future claim payments based on case-by-case valuations and statistical analyses. We seek to establish all reserves at the most likely ultimate exposure based on our historical
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claims experience. It is typical for our more serious claims to take several years to settle and we revise our estimates as we receive additional information about the condition of the injured employees. Our ability to estimate loss and loss adjustment expenses accurately at the time of pricing our insurance policies is a critical factor in our profitability.
Underwriting and Certain Other Operating Costs . Underwriting and certain other operating costs are those expenses that we incur to underwrite and maintain the insurance policies we issue. These expenses include state and local premium taxes and fees and other operating costs, offset by commissions we receive from reinsurers under our reinsurance treaty programs. We pay state and local taxes, licenses and fees, assessments, and contributions to state workers compensation security funds based on premiums. In addition, other operating costs include general and administrative expenses, excluding commissions and salaries and benefits, incurred at both the insurance company and corporate level.
Commissions . We pay commissions to our subsidiary insurance agency and to the independent agencies that sell our insurance based on premiums collected from policyholders.
Salaries and Benefits . We pay salaries and provide benefits to our employees.
Policyholder Dividends . In limited circumstances, we pay dividends to policyholders in particular states as an underwriting incentive. Additionally, Florida law requires payment of dividends to Florida policyholders pursuant to a formula based on underwriting results from policies written in Florida over a consecutive three-year period.
Interest Expense . Interest expense represents amounts we incur on our outstanding indebtedness at the then-applicable interest rate.
Income Tax Expense . We incur federal, state, and local income tax expense.
Critical Accounting Policies
Understanding our accounting policies is key to understanding our financial statements. Management considers some of these policies to be very important to the presentation of our financial results because they require us to make significant estimates and assumptions. These estimates and assumptions affect the reported amounts of our assets, liabilities, revenues and expenses and related disclosures. Some of the estimates result from judgments that can be subjective and complex and, consequently, actual results in future periods might differ from these estimates.
Management believes that the most critical accounting policies relate to the reporting of reserves for loss and loss adjustment expenses, including losses that have occurred but have not been reported prior to the reporting date, amounts recoverable from reinsurers, assessments, deferred policy acquisition costs, deferred income taxes, the impairment of investment securities and share-based compensation.
The following is a description of our critical accounting policies.
Reserves for Loss and Loss Adjustment Expenses . We record reserves for estimated losses under insurance policies that we write and for loss adjustment expenses, which include defense and cost containment (DCC) and adjusting and other (AO) expenses, related to the investigation and settlement of policy claims. Our reserves for loss and loss adjustment expenses represent the estimated cost of all reported and unreported loss and loss adjustment expenses incurred and unpaid at any given point in time based on known facts and circumstances.
Our reserves for loss and DCC expenses are estimated using case-by-case valuations based on our estimate of the most likely outcome of the claim at that time. In addition to these case reserves, we establish reserves on
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an aggregate basis that have been incurred but not reported, or IBNR. Our IBNR reserves are also intended to provide for aggregate changes in case incurred amounts as well as the unpaid cost of recently reported claims which an initial case reserves have not been established. The third component of our reserves for loss and loss adjustment expenses is our AO reserve. Our AO reserve is established for those future claims administration costs that cannot be allocated directly to individual claims. The final component of our reserves for loss and loss adjustment expenses is the reserve for mandatory pooling arrangements.
In establishing our reserves, we review the results of analyses using actuarial methods that utilize historical loss data from our more than 23 years of underwriting workers compensation insurance. The actuarial analysis of our historical data provides the factors we use in estimating our loss reserves. These factors are primarily measures over time of the number of claims paid and reported, average paid and incurred claim amounts, claim closure rates and claim payment patterns. In evaluating the results of our analyses, management also uses substantial judgment in considering other factors that are not considered in these actuarial analyses, including changes in business mix, claims management, regulatory issues, medical trends, employment and wage patterns, insurance policy coverage interpretations, judicial determinations and other subjective factors. Due to the inherent uncertainty associated with these estimates, and the cost of incurred but unreported claims, our actual liabilities may vary significantly from our original estimates.
On a quarterly basis, we review our reserves for loss and loss adjustment expenses to determine whether adjustments are required. Any resulting adjustments are included in the results for the current period. In establishing our reserves, we do not use loss discounting, which would involve recognizing the time value of money and offsetting estimates of future payments by future expected investment income. Additional information regarding our reserves for loss and loss adjustment expenses and the actuarial method and other factors used in establishing these reserves can be found under the caption BusinessLoss Reserves in Item 1 of this report.
Amounts Recoverable from Reinsurers . Amounts recoverable from reinsurers represents the portion of our paid and unpaid loss and loss adjustment expenses that are assumed by reinsurers. These amounts are separately reported on our balance sheet as assets and do not reduce our reserves for loss and loss adjustment expenses because reinsurance does not relieve us of liability to our policyholders. We are required to pay claims even if a reinsurer fails to pay us under the terms of a reinsurance contract. We calculate amounts recoverable from reinsurers based on our estimates of the underlying loss and loss adjustment expenses, as well as the terms and conditions of our reinsurance contracts, which could be subject to interpretation. In addition, we bear credit risk with respect to our reinsurers, which can be significant because some of the unpaid loss and loss adjustment expenses for which we have reinsurance coverage remain outstanding for extended periods of time.
Assessments . We are subject to various assessments and premium surcharges related to our insurance activities, including assessments and premium surcharges for state guaranty funds and second injury funds. Assessments based on premiums are recorded as an expense as premiums are earned and generally paid one year after the calendar year in which the policies are written. Assessments based on losses are recorded as an expense as losses are incurred and are generally paid within one year of when claims are paid by us. State guaranty fund assessments are used by state insurance oversight agencies to pay claims of policyholders of impaired, insolvent or failed insurance companies and the operating expenses of those agencies. Second injury funds are used by states to reimburse insurers and employers for claims paid to injured employees for aggravation of prior conditions or injuries. In some states, these assessments and premium surcharges may be partially recovered through a reduction in future premium taxes.
Deferred Policy Acquisition Costs . We defer commission expenses, premium taxes and certain marketing, sales, underwriting and safety costs that vary with and are primarily related to the acquisition of insurance policies. These acquisition costs are capitalized and charged to expense ratably as premiums are earned. In calculating deferred policy acquisition costs, these costs are limited to their estimated realizable value, which gives effect to the premiums to be earned, anticipated losses and settlement expenses and certain other costs we
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expect to incur as the premiums are earned, less related net investment income. Judgments as to the ultimate recoverability of these deferred policy acquisition costs are highly dependent upon estimated future profitability of unearned premiums. If the unearned premiums were less than our expected claims and expenses after considering investment income, we would reduce the deferred costs.
Deferred Income Taxes . We use the liability method of accounting for income taxes. Under this method, deferred income tax assets and liabilities are recognized for the future tax consequences attributed to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities resulting from a tax rate change impacts our net income or loss in the reporting period that includes the enactment date of the tax rate change.
In assessing whether our deferred tax assets will be realized, management considers whether it is more likely than not that we will generate future taxable income during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred tax liabilities, tax planning strategies and projected future taxable income in making this assessment. If necessary, we establish a valuation allowance to reduce the deferred tax assets to the amounts that are more likely than not to be realized.
Impairment of Investment Securities . Impairment of an investment security results in a reduction of the carrying value of the security and the realization of a loss when the fair value of the security declines below our cost or amortized cost, as applicable, for the security, and the impairment is deemed to be other-than-temporary. We regularly review our investment portfolio to evaluate the necessity of recording impairment losses for other-than-temporary declines in the fair value of specific investments. We consider various factors in determining if a decline in the fair value of an individual security is other-than-temporary. Some of the factors we consider include:
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any reduction or elimination of dividends, or nonpayment of scheduled principal or interest payments; |
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the financial condition and near-term prospects of the issuer of the security, including any specific events that may affect its operations or earnings; |
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how long and by how much the fair value of the security has been below its cost or amortized cost; |
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any downgrades of the security by a rating agency; and |
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our intent and ability to keep the security for a sufficient time period for it to recover its value. |
Share-Based Compensation . In accordance with Statement of Financial Accounting Standards (SFAS) No. 123(R) , Share-Based Payment , we are using the modified prospective method to record compensation costs for stock option awards over the applicable vesting periods.
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Results of Operations
The table below summarizes certain operating results and key measures we use in monitoring and evaluating our operations.
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(In thousands) | ||||||||||||
Income Statement Data |
||||||||||||
Gross premiums written |
$ | 307,841 | $ | 327,761 | $ | 332,491 | ||||||
Ceded premiums written |
(19,650 | ) | (20,215 | ) | (19,950 | ) | ||||||
Net premiums written |
$ | 288,191 | $ | 307,546 | $ | 312,541 | ||||||
Net premiums earned |
$ | 289,493 | $ | 306,906 | $ | 299,303 | ||||||
Net investment income |
30,998 | 30,208 | 25,383 | |||||||||
Net realized gains (losses) on investments |
(18,856 | ) | 147 | 7,389 | ||||||||
Fee and other income |
742 | 1,058 | 645 | |||||||||
Total revenues |
302,377 | 338,319 | 332,720 | |||||||||
Loss and loss adjustment expenses incurred |
176,389 | 198,531 | 199,484 | |||||||||
Underwriting and certain other operating costs (1) |
14,933 | 26,267 | 35,024 | |||||||||
Commissions |
20,592 | 20,352 | 19,030 | |||||||||
Salaries and benefits |
20,411 | 18,896 | 17,234 | |||||||||
Interest expense |
2,460 | 3,545 | 3,496 | |||||||||
Policyholder dividends (2) |
3,504 | (367 | ) | 6,006 | ||||||||
Total expenses |
238,289 | 267,224 | 280,274 | |||||||||
Income before taxes |
64,088 | 71,095 | 52,446 | |||||||||
Income tax expense |
20,242 | 20,876 | 15,088 | |||||||||
Net income |
$ | 43,846 | $ | 50,219 | $ | 37,358 | ||||||
Selected Insurance Ratios |
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Current accident year loss ratio (3) |
68.0 | % | 67.8 | % | 67.4 | % | ||||||
Prior accident year loss ratio (4) |
(7.1 | )% | (3.1 | )% | (0.8 | )% | ||||||
Net loss ratio |
60.9 | % | 64.7 | % | 66.6 | % | ||||||
Net underwriting expense ratio (5) |
19.3 | % | 21.3 | % | 23.8 | % | ||||||
Net dividend ratio (2) (6) |
1.2 | % | (0.1 | )% | 2.0 | % | ||||||
Net combined ratio (7) |
81.4 | % | 85.9 | % | 92.4 | % |
As of December 31, | |||||||||
2008 | 2007 | 2006 | |||||||
(In thousands) | |||||||||
Balance Sheet Data |
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Cash and cash equivalents |
$ | 95,266 | $ | 47,329 | $ | 26,748 | |||
Investments |
704,707 | 711,745 | 638,780 | ||||||
Amounts recoverable from reinsurers |
67,763 | 77,272 | 109,603 | ||||||
Premiums receivable, net |
156,567 | 152,150 | 144,384 | ||||||
Deferred income taxes |
33,580 | 26,418 | 29,466 | ||||||
Deferred policy acquisition costs |
20,289 | 18,414 | 18,486 | ||||||
Deferred charges |
3,381 | 3,553 | 3,548 | ||||||
Total assets |
1,107,833 | 1,061,853 | 994,146 | ||||||
Reserves for loss and loss adjustment expenses |
531,293 | 537,403 | 519,178 | ||||||
Unearned premiums |
137,100 | 138,402 | 137,761 | ||||||
Insurance-related assessments |
42,505 | 42,234 | 40,886 | ||||||
Debt |
36,090 | 36,090 | 36,090 | ||||||
Redeemable preferred stock (8) |
25,000 | 25,000 | 25,000 | ||||||
Shareholders equity |
253,272 | 208,570 | 158,784 |
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(1) | Includes policy acquisition expenses, and other general and administrative expenses, excluding commissions and salaries and benefits, related to insurance operations and corporate operating expenses. |
(2) | In 2007, includes a net $1.3 million reduction of dividends accrued for policyholders in Florida. Florida law requires payment of dividends to Florida policyholders pursuant to a formula based on underwriting results from policies written in Florida in a consecutive three-year period. |
(3) | The current accident year loss ratio is calculated by dividing loss and loss adjustment expenses incurred for the current accident year by the current years net premiums earned. |
(4) | The prior accident year loss ratio is calculated by dividing the change in loss and loss adjustment expenses incurred for prior accident years by the current years net premiums earned. |
(5) | The net underwriting expense ratio is calculated by dividing underwriting and certain other operating costs, commissions and salaries, and benefits by the current years net premiums earned. |
(6) | The net dividend ratio is calculated by dividing policyholder dividends by the current years net premiums earned. |
(7) | The net combined ratio is the sum of the net loss ratio, the net underwriting expense ratio, and the net dividend ratio. |
(8) | Includes our Series C and Series D convertible preferred stock, each of which is mandatorily redeemable upon the occurrence of certain events that are deemed to be outside our control. In November 2006, 250,000 shares of Series C preferred stock were converted into shares of common stock by the holders in connection with a secondary public offering of common stock. |
Overview of Operating Results
Year Ended December 31, 2008 Compared to Year Ended December 31, 2007
Gross Premiums Written . Gross premiums written for 2008 were $307.8 million, compared to $327.8 million for 2007, a decrease of 6.1%. The decrease was attributable to a $7.5 million decrease in annual premiums on voluntary policies written during the period, a $9.3 million decrease in premiums resulting from payroll audits and related premium adjustments and a $3.2 million decrease in direct assigned risk premiums.
Net Premiums Written . Net premiums written for 2008 were $288.2 million, compared to $307.5 million for 2007, a decrease of 6.3%. The decrease was primarily attributable to the decline in gross premiums written. As a percentage of gross premiums written, ceded premiums were 6.4% for 2008, compared to 6.2% for 2007.
Net Premiums Earned . Net premiums earned for 2008 were $289.5 million, compared to $306.9 million for 2007, a decrease of 5.7%. The decrease was attributable to a decline in net premiums written offset by earnings from premiums written in the previous four quarters.
Net Investment Income . Net investment income for 2008 was $31.0 million, compared to $30.2 million for 2007, an increase of 2.6%. The change was attributable to a 9.2% increase in our average invested assets, including cash and cash equivalents, from a monthly average of $712.5 million for 2007 to a monthly average of $778.4 million for 2008. Offsetting this growth was a decrease in pre-tax investment yield on our investment portfolio, to 4.0% per annum during 2008 from 4.2% per annum 2007.
Net Realized Gains (Losses) on Investments . Net realized losses on investments for 2008 totaled $18.9 million, compared to gains of $147,000 for 2007. Net realized losses in 2008 were attributable to $1.6 million in realized losses, primarily on the sale of equity securities, and $17.3 million in other-than-temporary impairments of certain equities and asset-backed securities. Other-than-temporary impairments are discussed below in Investment Portfolio. Net realized gains in 2007 were the result of sales of equity securities and calls on fixed maturity securities.
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Loss and Loss Adjustment Expenses Incurred . Loss and loss adjustment expenses (LAE) incurred totaled $176.4 million for 2008, compared to $198.5 million for 2007, a decrease of $22.1 million, or 11.2%. This decrease was a result of lower premiums earned in 2008, as well as an increase in prior year favorable development, from $9.5 million in 2007 to $20.4 million in 2008, further discussed below in Prior Year Development. Our net loss ratio was 60.9% in 2008, compared to 64.7% in 2007.
Underwriting and Certain Other Operating Costs, Commissions and Salaries and Benefits . Underwriting and certain other operating costs, commissions and salaries and benefits for 2008 were $55.9 million, compared to $65.5 million for 2007, a decrease of 14.6%. This decrease was primarily due to $9.5 million of experience-rated commissions from our 2008 reinsurance agreement, covering the $4 million excess of $1 million reinsured layer. This $9.5 million is recorded as an offset to expenses. Additionally, we realized a $4.4 million decrease in insurance-related assessments. Offsetting these expense decreases, accounts receivable write-offs increased $2.2 million, salary and benefits increased $1.5 million and commissions increased $240,000. Our underwriting expense ratio declined from 21.3% in 2007 to 19.3% in 2008.
Interest Expense . Interest expense for 2008 was $2.5 million, compared to $3.5 million for 2007. Weighted average borrowings for both periods were $36.1 million. The weighted average interest rate decreased to 7.2% per annum for 2008 from 9.4% per annum for 2007.
Income Tax Expense. Income tax expense for 2008 was $20.2 million, compared to $20.9 million for 2007. The decrease was primarily attributable to a $7.0 million decrease in our pre-tax income, from $71.1 million for 2007 to $64.1 million for 2008. Our effective tax rate for 2008 was 31.6%, compared to 29.4% for 2007. The increase in the effective tax rate from 2007 to 2008 was attributable to the recording of a $3.0 million valuation allowance for deferred tax assets related to unrealized losses on our investment portfolio. We recognized $18.6 million of realized losses in 2008, for which a deferred tax asset was recorded.
Year Ended December 31, 2007 Compared to Year Ended December 31, 2006
Gross Premiums Written . Gross premiums written in 2007 were $327.8 million, compared to $332.5 million in 2006, a decrease of 1.4%. The decrease was attributable to a $14.3 million decrease in premiums resulting from payroll audits and related premium adjustments, a $1.7 million decrease in direct assigned risk premiums, and a $316,000 decrease in assumed premiums from mandatory pooling arrangements. The decrease in payroll audits and related premium adjustments was the result of a slowing economy and lower loss costs. These decreases were offset by an $11.6 million increase in annual premiums on voluntary policies written during the period.
Net Premiums Written . Net premiums written in 2007 were $307.5 million, compared to $312.5 million in 2006, a decrease of 1.6%. The decrease was attributable to the decrease in gross premiums written and a $265,000 increase in premiums ceded to reinsurers in 2007. As a percentage of gross premiums written, ceded premiums were 6.2% in 2007, compared to 6.0% in 2006.
Net Premiums Earned . Net premiums earned in 2007 were $306.9 million, compared to $299.3 million in 2006, an increase of 2.5%. This increase was attributable to the increase in net premiums written in the previous four quarters.
Net Investment Income . Net investment income in 2007 was $30.2 million, compared to $25.4 million in 2006, an increase of 19.0%. The change was primarily attributable to an increase in our average investment assets, including cash and cash equivalents, from a monthly average of $626.3 million in 2006 to a monthly average of $716.7 million in 2007, an increase of 14.4%. Also contributing to this growth was an increase in the pre-tax accounting yield on our investment portfolio from 4.1% per annum during the period ended December 31, 2006, to 4.2% per annum during the period ended December 31, 2007. The tax-equivalent yield on our investment portfolio was 5.2% per annum for the period ended December 31, 2007, compared to 5.5% for the same period in 2006.
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Net Realized Gains on Investments . Net realized gains on investments in 2007 totaled $147,000, compared to $7.4 million in 2006. Net realized gains in 2007 are primarily from called fixed maturity securities. The net realized gains in 2006 were attributable to actions resulting from a strategic assessment of our investment guidelines as discussed below under Investment Portfolio.
Loss and Loss Adjustment Expenses Incurred . Loss and loss adjustment expenses incurred were $198.5 million in 2007, compared to $199.5 million in 2006, a decrease of $953,000, or 0.5%. This decrease was due to favorable prior accident year development of $9.5 million in 2007, compared to $2.2 million in 2006. This decrease was offset by higher current accident year loss and loss adjustment expenses incurred resulting from increased net premiums earned in 2007 as compared to 2006. Our net loss ratio was 64.7% in 2007, compared to 66.6% in 2006.
Underwriting and Certain Other Operating Costs, Commissions and Salaries and Benefits . Underwriting and certain other operating costs, commissions and salaries and benefits in 2007 were $65.5 million, compared to $71.3 million in 2006, a decrease of 8.1%. This decrease was due in part to $3.7 million from the commutation of several reinsurance agreements, as discussed below in Liquidity and Capital Resources. In addition, insurance-related assessments decreased $1.5 million, professional fees decreased $1.1 million and premium taxes decreased $820,000. Ceding commissions from reinsurers increased $593,000, which acts to reduce underwriting expenses. Offsetting these decreases, salary and benefits increased $1.7 million and commissions increased $1.3 million, due to the increase in gross premiums earned. Our underwriting expense ratio declined from 23.8% in 2006 to 21.3% in 2007.
Interest Expense . Interest expense was $3.5 million in 2007 and 2006. Our weighted average interest rate increased from 9.1% per annum in 2006 to 9.4% per annum 2007. Our weighted average borrowings for both years were $36.1 million.
Policyholder Dividend Expense. Policyholder dividend expense in 2007 was a favorable $367,000, compared to $6.0 million in 2006. The expense in 2006 was mainly attributable to $5.2 million of dividends accrued for Florida policyholders pursuant to a statutory formula based on our underwriting results on policies written in Florida over a consecutive three-year period. The favorable expense in 2007 was mainly attributable to an aggregate dividend accrual reduction of $1.3 million for Florida policyholders.
Income Tax Expense . Income tax expense in 2007 was $20.9 million, compared to $15.1 million in 2006. The increase was primarily attributable to an $18.6 million increase in our pre-tax income, from $52.4 million in 2006 to $71.1 million in 2007. Our effective tax rate in 2007 was 29.4%, compared to 28.8% in 2006.
Liquidity and Capital Resources
Our principal sources of operating funds are premiums, investment income, and proceeds from maturities of investments. Our primary uses of operating funds include payments for claims and operating expenses. We pay claims using cash flow from operations and invest our excess cash in fixed maturity and equity securities. We presently expect that our projected cash flow from operations will provide us sufficient liquidity to fund future operations, including payment of claims and operating expenses, payment of interest on our subordinated notes and other holding company expenses, for at least the next 18 months.
We forecast claim payments based on our historical trends. We seek to manage the funding of claim payments by actively managing available cash and forecasting cash flows on a short- and long-term basis. Cash payments, net of reinsurance, for claims were $164.2 million in 2008, $148.4 million in 2007 and $151.4 million in 2006. Since December 31, 2003, we have funded claim payments out of cash flow from operations, principally premiums, net of amounts ceded to our reinsurers, and net investment income. Our investment portfolio has increased from $390.3 million at December 31, 2004 to $800.0 million at December 31, 2008. We do not presently anticipate selling securities in our investment portfolio to pay claims or to fund operating expenses. Accordingly, we classify our fixed maturity securities in the held-to-maturity category.
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As discussed above under Overview, we purchase reinsurance to protect us against severe claims and catastrophic events. Based on our estimates of future claims, we believe we are sufficiently capitalized to satisfy the deductibles and retentions in our 2009 reinsurance program. We reevaluate our reinsurance program at least annually, taking into consideration a number of factors, including cost of reinsurance, our liquidity requirements, operating leverage and coverage terms.
Even if we maintain our existing retention levels, if the cost of reinsurance increases, our cash flow from operations would decrease as we would cede a greater portion of our written premiums to our reinsurers. Conversely, our cash flow from operations would increase if the cost of reinsurance declined relative to our retention.
Net cash provided by operating activities was $64.9 million in 2008, as compared to $100.4 million in 2007 and $81.8 million in 2006. Major components of cash provided by operating activities in 2008 were net premiums collected of $282.3 million, investment income collected of $33.7 million and amounts recovered from reinsurers of $20.4 million, offset by claim payments of $183.4 million, $58.6 million of operating expenditures, federal taxes paid of $25.0 million, and dividends to policyholders paid of $4.5 million. Major components of cash provided by operating activities in 2007 were net premiums collected of $299.1 million, investment income collected of $31.9 million and amounts recovered from reinsurers of $33.7 million, offset by claim payments of $181.8 million, operating expenditures of $63.6 million and federal taxes paid of $19.6 million. Major components of cash provided by operating activities in 2006 were net premiums collected of $292.5 million, investment income collected of $26.3 million and amounts recovered from reinsurers of $7.9 million, offset by claim payments of $160.2 million, federal taxes paid of $15.2 million and operating expenditures of $66.3 million. Included in these operating expenditures were pre-tax expenses of $1.1 million related to a public offering of common stock by certain of our shareholders. We were obligated to pay these expenses under the terms of a registration rights agreement.
Net cash used by investing activities was $17.3 million in 2008, as compared to $80.8 million in 2007 and $104.8 million in 2006. In 2008, major components of net cash used by investing activities included investment purchases of $147.3 million and net purchases of furniture, fixtures and equipment of $1.3 million, offset by proceeds from sales and maturities of investments of $131.4 million. In 2007, major components of net cash used by investing activities included investment purchases of $625.9 million and net purchases of furniture, fixtures and equipment of $1.5 million, offset by proceeds from sales and maturities of investments of $546.5 million. In 2006, major components of net cash used by investing activities included investment purchases of $256.6 million and net purchases of furniture, fixtures and equipment of $1.2 million, offset by proceeds from sales and maturities of investments of $153.0 million.
Net cash provided by financing activities was $290,000 in 2008, as compared to $989,000 in 2007 and $442,000 in 2006. Major components of cash provided by financing activities in 2008 included proceeds of $251,000 from the exercise of stock options and $39,000 of tax benefit from share-based compensation. Major components of cash provided by financing activities in 2007 included $810,000 of proceeds from the exercise of stock options and $179,000 of tax benefit from share-based compensation. Major components of cash provided by financing activities in 2006 included $428,000 of proceeds from the exercise of stock options and $14,000 of tax benefit from share-based compensation.
Interest on our outstanding subordinated notes accrues at a floating rate equal to the three-month LIBOR plus a marginal rate. Our $10.3 million issuance of subordinated notes due 2034 has a marginal rate of 4.1%, and, as of December 31, 2008, had an effective rate of 8.9%. These notes are prepayable at par beginning in January 2009. Our $25.8 million issuance of subordinated notes due 2034 has a marginal rate of 3.8% and, as of December 31, 2008, had an effective rate of 5.9%. These notes are prepayable at par beginning in April 2009.
In June 2008, we commuted certain reinsurance agreements with Hannover Ruckversicherungs-Aktiengesellschaft (Hannover) covering portions of the 2003, 2004, 2005 and 2006 accident years. As a result of this commutation, we recorded additional pre-tax income of approximately $991,000 in the second quarter of 2008. Hannover remains obligated to the Companys insurance subsidiaries under other reinsurance agreements.
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In July 2008, we commuted certain reinsurance agreements with Partner Reinsurance Company of the U.S. (Partner Re) covering portions of the 2005 and 2006 accident years. As a result of this commutation, we recorded pre-tax income of approximately $703,000 in the third quarter of 2008. Partner Re remains obligated to the Companys insurance subsidiaries under other reinsurance agreements.
In October 2008, we commuted certain reinsurance agreements with Liberty Syndicate Management Limited (Liberty Re) covering portions of the 2005 and 2006 accident years. As a result of this commutation, we recorded pre-tax income of approximately $319,000 in the fourth quarter of 2008. Liberty Re remains obligated to the Companys insurance subsidiaries under other reinsurance agreements.
In December 2008, we commuted certain reinsurance agreements with Aspen Insurance UK Limited (Aspen) covering portions of the 2004, 2005 and 2006 accident years. As a result of this commutation, we recorded pre-tax income of approximately $216,000 in the fourth quarter of 2008. Aspen remains obligated to the Companys insurance subsidiaries under other reinsurance agreements.
In total, we received $17.6 million in cash from commutations in 2008. The majority of that cash has been invested in tax-exempt fixed maturity securities.
In May 2007, we commuted reinsurance agreements with Munich Reinsurance America, Inc. (formerly known as American Reinsurance Company) covering portions of accident years 2002, 2003, and 2004. We received cash of approximately $24.5 million in exchange for releasing Munich Reinsurance America from its reinsurance obligations under the commuted agreements. As a result of these commutations, we recognized $1.7 million of pre-tax income in the second quarter of 2007.
In June 2007, we commuted our First Casualty Excess of Loss Reinsurance Contract with Hannover and Lloyds Underwriters and Companies (Lloyds) covering excess of loss layers for the 2006 accident year. As a result of this commutation, we recorded pre-tax income of $1.0 million in the second quarter of 2007. Hannover and Lloyds remain obligated to the Companys insurance subsidiaries under other reinsurance agreements.
In July 2007, we commuted our Second Casualty Excess of Loss Reinsurance Contract with Hannover and Lloyds covering excess of loss layers for the 2006 accident year. As a result of this commutation, we recorded pre-tax income of $990,000 in the third quarter of 2007.
In total, we received $26.5 million in cash from commutations in 2007. The majority of that cash was invested in fixed maturity securities.
In October 2007, we entered into an agreement providing for a line of credit in the maximum amount of $20.0 million. The agreement expires in October 2010. Under the agreement, advances may be made either in the form of loans or letters of credit. Borrowings under the agreement accrue interest at rates based either on the prime rate or LIBOR. Letters of credit issued under the arrangement accrue fees on undrawn amounts as long as the letters are outstanding. We do not pay a facility fee on amounts available under the line of credit unless they are advanced and outstanding. The facility is unsecured. No borrowings and loans were outstanding under the line of credit at December 31, 2008.
Because our convertible preferred stock is mandatorily redeemable upon the occurrence of certain events that are deemed to be outside of our control, our preferred stock is presented on the balance sheet outside of shareholders equity. As a result of the conversion of 50% of shares of preferred stock into common stock in 2006, we increased shareholders equity by $25.0 million, which is the amount we received when the preferred shares were issued in 1998. Offsetting this increase were expenses of $1.1 million associated with the public offering.
In November 2006, we completed a public offering of 9,071,576 shares of common stock. All of these shares were offered by existing shareholders. In connection with this public offering, holders of 250,000 shares of our convertible preferred stock converted those shares into 1,214,771 shares of our common stock. We did not receive any of the proceeds from this offering.
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AMERISAFE is a holding company that transacts business through its operating subsidiaries, including American Interstate, Silver Oak Casualty and American Interstate of Texas. AMERISAFEs primary assets are the capital stock of these insurance subsidiaries. The ability of AMERISAFE to fund its operations depends upon the surplus and earnings of its subsidiaries and their ability to pay dividends to AMERISAFE. Payment of dividends by our insurance subsidiaries is restricted by state insurance laws, including laws establishing minimum solvency and liquidity thresholds. See BusinessRegulationDividend Limitations in Item 1of this report. Based on reported capital and surplus at December 31, 2008, American Interstate is permitted under Louisiana insurance law to pay dividends to AMERISAFE in 2009 in an amount up to $17.6 million without approval by the Louisiana Department of Insurance.
Investment Portfolio
The principal priorities of our investment portfolio are to provide capital preservation and liquidity. The portfolios secondary priority is to provide maximized after-tax income. We presently expect to maintain sufficient liquidity from funds generated by operations to meet our anticipated insurance obligations and operating and capital expenditure needs. Excess funds from operations will be invested in accordance with our investment policy and statutory requirements. Because we have the positive intent and ability to hold our fixed maturity securities to maturity, we classify these securities as held-to-maturity.
We allocate our portfolio into three categories: cash and cash equivalents, fixed maturity securities and equity securities. Cash and cash equivalents include cash on deposit, pooled short-term money market funds and certificates of deposit. Our fixed maturity securities include obligations of the U.S. Treasury or U.S. agencies, obligations of states and their subdivisions, long-term certificates of deposit, U.S. Dollar-denominated obligations of the U.S. corporations, U.S. agency-based mortgage-backed securities, commercial mortgage-backed securities and asset-backed securities. Our equity securities principally include four value-based exchange traded funds.
Under Louisiana and Texas law, as applicable, each of American Interstate, Silver Oak Casualty and American Interstate of Texas is required to invest only in securities that are either interest-bearing or eligible for dividends, and must limit its investment in the securities of any single issuer to five percent of the insurance companys assets. As of December 31, 2008, we were in compliance with these requirements.
We employ diversification policies and balance investment credit risk and related underwriting risks to minimize our total potential exposure to any one business sector or security.
As of December 31, 2008, our investment portfolio, including cash and cash equivalents, totaled $800.0 million, an increase of 5.4% from December 31, 2007. Our fixed maturity securities are classified as held-to-maturity, as defined by SFAS No. 115, Accounting for Certain Investments in Debt and Equity Securities . As such, the reported value of those securities is equal to their amortized cost, and is not impacted by changing interest rates. In 2006 and 2007, we invested in VRDOs, which are long-term bonds that bear floating interest rates and provide investors with the option to tender or put the bonds at par, generally on a daily, weekly or monthly basis. Due to the fact that we purchased these securities with the intent to hold less than thirty days, we classified VRDOs as available-for-sale, as defined by SFAS No. 115. As such, VRDOs were reported at fair value on our balance sheet. We sold all of our available-for-sale fixed maturity securities as of January 15, 2008. Our equity securities are also classified as available-for-sale and reported at fair value. At December 31, 2008, net unrealized losses for our equity securities were $571,000. Net unrealized losses for our equity securities were $752,000 at December 31, 2007.
On January 1, 2008, we adopted SFAS No. 157, Fair Value Measurements, which establishes a fair value hierarchy and requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. As disclosed in Note 19 of the financial statements, our securities available-for-sale are classified using Level 1 inputs. We did not elect the fair value option prescribed under SFAS No. 159, The Fair Value Option for Financial Assets and Financial Liabilities, for any financial assets or financial liabilities in 2008.
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The composition of our investment portfolio, including cash and cash equivalents, as of December 31, 2008 is shown in the following table.
Carrying Value |
Percentage
of Portfolio |
|||||
(In thousands) | ||||||
Fixed maturity securities: |
||||||
State and political subdivisions |
$ | 482,923 | 60.4 | % | ||
U.S. agency-based mortgage-backed securities |
92,862 | 11.6 | % | |||
Commercial mortgage-backed securities |
51,610 | 6.4 | % | |||
U.S. Treasury securities and obligations of U.S. Government agencies |
23,024 | 2.9 | % | |||
Corporate bonds |
19,054 | 2.4 | % | |||
Asset-backed securities |
10,803 | 1.4 | % | |||
Total fixed maturity securities |
680,276 | 85.1 | % | |||
Equity securities (1) |
24,431 | 3.0 | % | |||
Cash and cash equivalents |
95,266 | 11.9 | % | |||
Total investments, including cash and cash equivalents |
$ | 799,973 | 100.0 | % | ||
(1) | Equity securities represented 8.8% of shareholders equity plus redeemable preferred stock as of December 31, 2008. |
For our securities classified as available-for-sale, the securities are marked to market as of the end of each calendar quarter. As of that date, unrealized gains and losses are recorded against Accumulated Other Comprehensive Income (Loss), except when such securities are deemed to be other-than-temporarily impaired. For our securities classified as held-to-maturity, unrealized gains and losses are not recorded in the financial statements until realized or until a decline in fair value, below amortized cost, is deemed to be other-than-temporary.
We regularly review our investment portfolio to evaluate the necessity of recording impairment losses for other-than-temporary declines in the fair value of our investments. We consider various factors in determining if a decline in the fair value of an individual security is other-than-temporary. The key factors we consider are:
|
any reduction or elimination of dividends, or nonpayment of scheduled principal or interest payments; |
|
the financial condition and near-term prospects of the issuer of the applicable security, including any specific events that may affect its operations or earnings (e.g., changes in coverage ratios); |
|
how long and by how much the fair value of the security has been below its cost or amortized cost; |
|
any downgrades of the security by a rating agency; and |
|
our intent and ability to keep the security for a sufficient time period for it to recover its value. |
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The following table summarizes, as of December 31, 2008, the fair value of, and the amount of unrealized losses on, our investment securities, segregated by the time period each security has been in a continuous unrealized loss position:
As of December 31, 2008 | ||||||||||||||||||
Less Than 12 Months | 12 Months or Greater | Total | ||||||||||||||||
Fair Value of
Investments with Unrealized Losses |
Gross
Unrealized Losses |
Fair Value of
Investments with Unrealized Losses |
Gross
Unrealized Losses |
Fair Value of
Investments with Unrealized Losses |
Gross
Unrealized Losses |
|||||||||||||
(in thousands) | ||||||||||||||||||
Fixed maturity securities: |
||||||||||||||||||
States and political subdivisions |
$ | 153,218 | $ | 4,763 | $ | 51,797 | $ | 5,118 | $ | 205,015 | $ | 9,881 | ||||||
U.S. agency-based mortgage-backed securities |
982 | 2 | 3,144 | 22 | 4,126 | 24 | ||||||||||||
Commercial mortgage-backed securities |
| | 39,929 | 11,682 | 39,929 | 11,682 | ||||||||||||
U.S. Treasury securities and obligations of U.S. Government agencies |
2,591 | 37 | | | 2,591 | 37 | ||||||||||||
Corporate bonds |
12,455 | 351 | 2,938 | 332 | 15,393 | 683 | ||||||||||||
Asset-backed securities |
1,069 | 22 | 5,742 | 3,019 | 6,811 | 3,041 | ||||||||||||
Total fixed maturity securities |
170,315 | 5,175 | 103,550 | 20,173 | 273,865 | 25,348 | ||||||||||||
Equity securities |
1,948 | 85 | 21,394 | 486 | 23,342 | 571 | ||||||||||||
Total |
$ | 172,263 | $ | 5,260 | $ | 124,944 | $ | 20,659 | $ | 297,207 | $ | 25,919 | ||||||
We reviewed all securities with unrealized losses in accordance with the impairment policy described above. We determined that the unrealized losses in the fixed maturity securities portfolio related primarily to changes in market interest rates since the date of purchase, current conditions in the capital markets and the impact of those conditions on market liquidity and prices generally, and the transfer of the investments from the available-for-sale classification to the held-to-maturity classification in January 2004. We expect to recover the carrying value of these securities since management has the positive intent and ability to hold the securities until they mature.
In 2008, we recorded aggregate impairment charges of $17.3 million with respect to two asset-backed securities, two equity securities and four value-based exchange traded funds in our investment portfolio. The impairment charges are included in Net realized gains (losses) on investments for 2008.
Of the $17.3 million of impairment charges, $14.0 million related to four value-based exchange traded funds. The value of these securities fell throughout 2008 in line with other major indices during a volatile market cycle. As of December 31, 2008, the unrealized losses on these exchange-traded funds exceeded 35% of cost. While we believe some portion of the value will be regained as the economy recovers, such recoveries can not be determined to be in the near term. These securities were impaired using the market close price on the last day of the year.
Also, impairments of $3.1 million related to one asset-backed security. We determined to impair this security because, among other things, the credit rating of the security had been downgraded to below investment grade, and the fair value of the security had been less than 80% of its amortized cost for ten consecutive months. We believe that the factors resulting in the impairment of this asset-backed security were generally specific to this security and do not impact our other investments. This security was impaired at fair value as of December 31, 2008.
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The pre-tax investment yield on our investment portfolio was 4.0% per annum during the twelve months
Prior Year Development
The Company recorded favorable prior accident year loss and loss adjustment expense development of $20.4 million in 2008. The table below sets forth the favorable or unfavorable development for accident years 2007 and 2006 and, collectively, all accident years prior to 2006.
Favorable/(Unfavorable)
Development |
||||
Accident Year |
Year Ended
December 31, 2008 |
|||
(in millions) | ||||
2007 |
$ | (10.0 | ) | |
2006 |
16.1 | |||
Prior to 2006 |
14.3 | |||
Total net development |
$ | 20.4 | ||
In recent periods, we increased our efforts to close prior year claims in those circumstances where the claim could be settled for less than the corresponding case reserve amount (which amount represents estimated ultimate cost to settle the claim, undiscounted). As a result of these efforts, our claims closure rate accelerated in 2008, which in turn contributed to favorable prior accident year development recorded in 2008. While we intend to continue to seek to settle claims on a more accelerated basis, we do not presently anticipate that the claims closure rate will continue to increase as the number of existing, prior year open claims decreases, on a percentage basis, compared to the total number of open claims.
The table below sets forth the number of open claims as of December 31, 2008, 2007 and 2006, and the numbers of claims reported and closed during the years then ended.
Twelve Months Ended December 31, | |||||||||
2008 | 2007 | 2006 | |||||||
Open claims at beginning of period |
5,300 | 5,694 | 6,055 | ||||||
Claims reported |
6,324 | 6,899 | 6,581 | ||||||
Claims closed |
(6,831 | ) | (7,293 | ) | (6,942 | ) | |||
Open claims at end of period |
4,793 | 5,300 | 5,694 | ||||||
At December 31, 2008, our case incurred amounts for certain accident years, particularly 2006 and 2007, have not developed to the degree management previously expected. The assumptions we used in establishing our reserves for these accident years were based on our 23 years of historical claims data. However, as of December 31, 2008, actual results for these two accident years have been better than our assumptions would have predicted. We do not presently intend to modify our assumptions for establishing reserves in light of these recent results for the 2006 and 2007 accident years. However, if actual results for current and future accident years are consistent with, or better than, our results in these recent accident years, our historical claims data will reflect this change and, over time, will impact the reserves we establish for future claims.
Our reserves for loss and loss adjustment expenses are inherently uncertain and our focus on providing workers compensation insurance to employers engaged in hazardous industries results in our receiving relatively fewer but more severe claims than many other workers compensation insurance companies. As a result of this focus on higher severity, lower frequency business, our reserve for loss and loss adjustment expenses may have greater volatility than other workers compensation insurance companies. For additional information, see BusinessLoss Reserves.
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Contractual Obligations and Commitments
We manage risk on certain long-duration claims by settling these claims through the purchase of annuities from unaffiliated life insurance companies. In the event these companies are unable to meet their obligations under these annuity contracts, we could be liable to the claimants, but our reinsurers remain obligated to indemnify us for all or part of these obligations in accordance with the terms of our reinsurance contracts. As of December 31, 2008, the present value of these annuities was $81.8 million, as estimated by our annuity providers. Substantially all of the annuities are issued or guaranteed by life insurance companies that have an A.M. Best rating of A (Excellent) or better. For additional information, see Note 17 to our consolidated financial statements in Item 8 of this report.
We lease equipment and office space under noncancelable operating leases. Future minimum lease payments at December 31, 2008, were as follows:
Year |
Future Minimum
Lease Payments |
||
(In thousands) | |||
2009 |
$ | 616 | |
2010 |
176 | ||
2011 |
31 | ||
$ | 823 | ||
Rental expense was $804,000 in 2008, $921,000 in 2007 and $1.4 million in 2006.
The table below provides information with respect to our long-term debt and contractual commitments as of December 31, 2008.
Contractual Obligations |
Payment Due By Period | ||||||||||||||
Total |
Less Than
1 Year |
1-3 Years | 4-5 Years |
More Than
5 Years |
|||||||||||
(In thousands) | |||||||||||||||
Subordinated notes (1) |
$ | 36,090 | $ | | $ | | $ | | $ | 36,090 | |||||
Loss and loss adjustment expenses (2) |
531,293 | 207,736 | 190,734 | 77,037 | 55,786 | ||||||||||
Loss-based insurance assessments (3) |
13,858 | 5,419 | 4,975 | 2,009 | 1,455 | ||||||||||
Capital lease obligations |
168 | 58 | 110 | | | ||||||||||
Operating lease obligations |
823 | 616 | 207 | | | ||||||||||
Purchase obligations |
2,629 | 1,636 | 993 | | | ||||||||||
Total |
$ | 584,861 | $ | 215,465 | $ | 197,019 | $ | 79,046 | $ | 93,331 | |||||
(1) | Amounts do not include interest payments associated with these obligations. Interest rates on our subordinated notes are variable and may change on a quarterly basis. See Liquidity and Capital Resources above for further discussion of our subordinated notes. |
(2) |
The loss and loss adjustment expense payments due by period in the table above are based upon the loss and loss adjustment expense estimates as of December 31, 2008 and actuarial estimates of expected payout patterns and are not contractual liabilities as to a time certain. Our contractual liability is to provide benefits under the policy. As a result, our calculation of loss and loss adjustment expense payments due by period is subject to the same uncertainties associated with determining the level of loss and loss adjustment expenses generally and to the additional uncertainties arising from the difficulty of predicting when claims (including claims that have not yet been reported to us) will be paid. For a discussion of our loss and loss adjustment expense process, see BusinessLoss Reserves in Item 1 of this report. Actual payments of loss and loss adjustment expenses by period will vary, perhaps materially, from the amounts shown in the table above to the extent that current estimates of loss and loss adjustment expenses vary from actual ultimate claims amounts and as a result of variations between expected and actual payout patterns. See Risk Factors |
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Risks Related to Our BusinessOur loss reserves are based on estimates and may be inadequate to cover our actual losses in Item 1A of this report for a discussion of the uncertainties associated with estimating loss and loss adjustment expenses. |
(3) | We are subject to various annual assessments imposed by certain of the states in which we write insurance policies. These assessments are generally based upon the amount of premiums written or losses paid during the applicable year. Assessments based on premiums are generally paid within one year after the calendar year in which the policies are written, while assessments based on losses are generally paid within one year after the loss is paid. When we establish a reserve for loss and loss adjustment expenses for a reported claim, we accrue our obligation to pay any applicable assessments. If settlement of the claim is to be paid out over more than one year, our obligation to pay any related loss-based assessments extends for the same period of time. Because our reserves for loss and loss adjustment expenses are based on estimates, our accruals for loss-based insurance assessments are also based on estimates. Actual payments of loss and loss adjustment expenses may differ, perhaps materially, from our reserves. Accordingly, our actual loss-based insurance assessments may vary, perhaps materially, from our accruals. |
Off-Balance Sheet Arrangements
We have no off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures, or capital resources.
Item 7A. | Quantitative and Qualitative Disclosures About Market Risk. |
Market risk is the risk of potential economic loss principally arising from adverse changes in the fair value of financial instruments. The major components of market risk affecting us are credit risk, interest rate risk, and equity price risk. We currently have no exposure to foreign currency risk.
Credit Risk
Credit risk is the potential loss arising principally from adverse changes in the financial condition of the issuers of our fixed maturity securities and the financial condition of our reinsurers.
We address the credit risk related to the issuers of our fixed maturity securities by investing in fixed maturity securities that are rated BBB or higher by Standard & Poors. We also independently, and through our outside fixed maturity securities investment manager, monitor the financial condition of all issuers of our fixed maturity securities. To limit our risk exposure, we employ diversification policies that limit our credit exposure to any single issuer or business sector.
We are also subject to credit risk with respect to our reinsurers. Although our reinsurers are obligated to reimburse us to the extent we cede risk to them, we are ultimately liable to our policyholders on all risks we have reinsured. As a result, reinsurance contracts do not limit our ultimate obligations to pay claims and we might not collect amounts recoverable from our reinsurers. We address this credit risk by initially selecting reinsurers with an A.M. Best rating of A- (Excellent) or better and by performing, along with our reinsurance broker, periodic credit reviews of our reinsurers. If one of our reinsurers suffers a credit downgrade, we may consider various options to lessen the risk of asset impairment including commutation, novation and letters of credit. See Managements Discussion and Analysis of Financial Condition and Results of OperationsLiquidity and Capital Resources in Item 7 of this report.
Interest Rate Risk
Interest rate risk is the risk that we may incur losses due to adverse changes in interest rates. As of December 31, 2008, we had fixed maturity securities with a fair value of $664.1 million and a carrying value of $680.3 million. These securities are all subject to interest rate risk, but because we classify all of our fixed
69
maturity securities as held-to-maturity, changes in fair values have no effect on the carrying value of our portfolio. We manage our exposure to interest rate risk with respect to these securities by investing in investment-grade securities with moderate effective duration.
We are also subject to interest rate risk on our subordinated debt securities, which have quarterly adjustable interest rates based on LIBOR plus a fixed margin. As such, fluctuations in interest rates have a direct effect on interest expense associated with our subordinated debt securities.
The table below summarizes the interest rate risk associated with our fixed maturity securities by illustrating the sensitivity of the fair value and carrying value of our fixed maturity securities as of December 31, 2008 to selected hypothetical changes in interest rates, and the associated impact on our shareholders equity. We show no changes to carrying values and shareholders equity because we classify all of our fixed maturity securities as held-to-maturity.
Hypothetical Change in Interest Rates |
Fair Value |
Estimated
Change in Fair Value |
Carrying
Value |
Estimated
Change in Carrying Value |
Hypothetical
Percentage Increase (Decrease) in Shareholders Equity |
||||||||||
200 basis point increase |
$ | 615,075 | $ | (49,009 | ) | $ | 680,276 | $ | | | |||||
100 basis point increase |
639,888 | (24,196 | ) | 680,276 | | | |||||||||
No change |
664,084 | | 680,276 | | | ||||||||||
100 basis point decrease |
682,917 | 18,833 | 680,276 | | | ||||||||||
200 basis point decrease |
702,753 | 38,669 | 680,276 | | |
Equity Price Risk
Equity price risk is the risk that we may incur losses due to adverse changes in the market prices of the equity securities we hold in our investment portfolio. We classify our portfolio of equity securities as available-for-sale and carry these securities on our balance sheet at fair value. Accordingly, adverse changes in the market prices of our equity securities result in a decrease in the value of our total assets and shareholders equity. In order to minimize our exposure to equity price risk, we invest primarily in exchange traded funds representing broad, diversified portfolios. In addition, we limit the percentage of equity securities held in our investment portfolio to a 30% or less of shareholders equity, plus redeemable preferred stock. As of December 31, 2008, the equity securities in our investment portfolio had a fair value of $24.4 million, representing 8.8% of shareholders equity plus redeemable preferred stock on that date. See BusinessInvestments in Item 1 of this report.
70
Item 8. | Financial Statements and Supplementary Data. |
Page | ||
Audited Financial Statements as of December 31, 2008 and 2007 and for the three years in the period ended December 31, 2008: |
||
72 | ||
73 | ||
74 | ||
75 | ||
76 | ||
77 | ||
Financial Statement Schedules: |
||
110 | ||
Schedule VI. Supplemental Information Concerning Property-Casualty Insurance Operations |
113 | |
Schedules I, III, IV and V are not applicable and have been omitted. |
71
R eport of Independent Registered Public Accounting Firm
The Board of Directors
AMERISAFE, Inc. and Subsidiaries
We have audited the accompanying consolidated balance sheets of AMERISAFE, Inc. and Subsidiaries as of December 31, 2008 and 2007, and the related consolidated statements of income, changes in shareholders equity, and cash flows for each of the three years in the period ended December 31, 2008. Our audits also include the financial statement schedules listed in the Index at Item 15. These financial statements and schedules are the responsibility of the Companys management. Our responsibility is to express an opinion on these financial statements and schedules based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of AMERISAFE, Inc. and Subsidiaries at December 31, 2008 and 2007 and the consolidated results of their operations and their cash flows for each of the three years in the period ended December 31, 2008, in conformity with U.S. generally accepted accounting principles. Also, in our opinion, the related financial statement schedules, when considered in relation to the basic financial statements taken as a whole, present fairly in all material respects the information set forth therein.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), AMERISAFE, Inc. and Subsidiaries internal control over financial reporting as of December 31, 2008, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated March 9, 2009, expressed an unqualified opinion thereon.
/s/ Ernst & Young LLP
New Orleans, Louisiana |
March 9, 2009 |
72
A MERISAFE, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(In thousands, except share data)
December 31, | ||||||
2008 | 2007 | |||||
Assets |
||||||
Investments: |
||||||
Fixed maturity securitiesheld-to-maturity, at amortized cost (fair value $664,084 and $640,037 in 2008 and 2007, respectively) |
$ | 680,276 | $ | 639,691 | ||
Fixed maturity securitiesavailable-for-sale, at fair value (cost $0 and $32,425 in 2008 and 2007, respectively) |
| 32,425 | ||||
Equity securitiesavailable-for-sale, at fair value (cost $25,002 and $40,381 in 2008 and 2007, respectively) |
24,431 | 39,629 | ||||
Total investments |
704,707 | 711,745 | ||||
Cash and cash equivalents |
95,266 | 47,329 | ||||
Amounts recoverable from reinsurers |
67,763 | 77,272 | ||||
Premiums receivable, net |
156,567 | 152,150 | ||||
Deferred income taxes |
33,580 | 26,418 | ||||
Accrued interest receivable |
7,247 | 7,079 | ||||
Property and equipment, net |
5,542 | 5,407 | ||||
Deferred policy acquisition costs |
20,289 | 18,414 | ||||
Deferred charges |
3,381 | 3,553 | ||||
Other assets |
13,491 | 12,486 | ||||
$ | 1,107,833 | $ | 1,061,853 | |||
Liabilities, redeemable preferred stock and shareholders equity |
||||||
Liabilities: |
||||||
Reserves for loss and loss adjustment expenses |
$ | 531,293 | $ | 537,403 | ||
Unearned premiums |
137,100 | 138,402 | ||||
Reinsurance premiums payable |
| 720 | ||||
Amounts held for others |
8,450 | 2,972 | ||||
Policyholder deposits |
42,368 | 41,516 | ||||
Insurance-related assessments |
42,505 | 42,234 | ||||
Federal income tax payable |
1,221 | | ||||
Accounts payable and other liabilities |
30,534 | 28,946 | ||||
Subordinated debt securities |
36,090 | 36,090 | ||||
829,561 | 828,283 | |||||
Redeemable preferred stock: |
||||||
Series A nonconvertible$0.01 par value, $100 per share redemption value: |
||||||
Authorized shares1,500,000; issued and outstanding sharesnone in 2008 and 2007 |
| | ||||
Series C convertible$0.01 par value, $100 per share redemption value: |
||||||
Authorized shares300,000; issued and outstanding shares50,000 in 2008 and 2007 |
5,000 | 5,000 | ||||
Series D convertible$0.01 par value, $100 per share redemption value: |
||||||
Authorized shares200,000; issued and outstanding shares200,000 in 2008 and 2007 |
20,000 | 20,000 | ||||
25,000 | 25,000 | |||||
Shareholders equity: |
||||||
Preferred stock: Series E nonconvertible$0.01 par value, $100 per share redemption value: |
||||||
Authorized500,000; issued and outstanding sharesnone in 2008 and in 2007 |
| | ||||
Common stock: |
||||||
Voting$0.01 par value authorized shares50,000,000 in 2007 and 2006; issued and outstanding shares18,856,602 in 2008 and 18,813,040 in 2007 |
188 | 188 | ||||
Additional paid-in capital |
175,163 | 173,589 | ||||
Accumulated earnings |
77,076 | 33,230 | ||||
Accumulated other comprehensive income |
845 | 1,563 | ||||
253,272 | 208,570 | |||||
$ | 1,107,833 | $ | 1,061,853 | |||
See accompanying notes.
73
A MERISAFE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(In thousands, except share data)
Year Ended December 31, | |||||||||||
2008 | 2007 | 2006 | |||||||||
Revenues |
|||||||||||
Premiums earned |
$ | 289,493 | $ | 306,906 | $ | 299,303 | |||||
Net investment income |
30,998 | 30,208 | 25,383 | ||||||||
Net realized gains (losses) on investments |
(18,856 | ) | 147 | 7,389 | |||||||
Fee and other income |
742 | 1,058 | 645 | ||||||||
Total revenues |
302,377 | 338,319 | 332,720 | ||||||||
Expenses |
|||||||||||
Loss and loss adjustment expenses incurred |
176,389 | 198,531 | 199,484 | ||||||||
Underwriting and certain other operating costs |
14,933 | 26,267 | 35,024 | ||||||||
Commissions |
20,592 | 20,352 | 19,030 | ||||||||
Salaries and benefits |
20,411 | 18,896 | 17,234 | ||||||||
Interest expense |
2,460 | 3,545 | 3,496 | ||||||||
Policyholder dividends |
3,504 | (367 | ) | 6,006 | |||||||
Total expenses |
238,289 | 267,224 | 280,274 | ||||||||
Income before income taxes |
64,088 | 71,095 | 52,446 | ||||||||
Income tax expense |
20,242 | 20,876 | 15,088 | ||||||||
Net income |
43,846 | 50,219 | 37,358 | ||||||||
Preferred stock dividends |
| | | ||||||||
Net income available to common shareholders |
$ | 43,846 | $ | 50,219 | $ | 37,358 | |||||
Earnings per share |
|||||||||||
Basic |
$ | 2.19 | $ | 2.52 | $ | 1.88 | |||||
Diluted |
$ | 2.15 | $ | 2.47 | $ | 1.88 | |||||
Shares used in computing earnings per share |
|||||||||||
Basic |
18,814,508 | 18,767,210 | 17,579,829 | ||||||||
Diluted |
19,141,688 | 19,079,380 | 17,594,736 | ||||||||
See accompanying notes.
74
A MERISAFE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS EQUITY
(In thousands, except share data)
Common Stock |
Additional
Paid-In Capital |
Accumulated
Earnings (Deficit) |
Accumulated
Other Comprehensive Income |
Total | ||||||||||||||||
Shares | Amount | |||||||||||||||||||
Balance at January 1, 2006 |
17,424,054 | $ | 174 | $ | 145,206 | $ | (54,346 | ) | $ | 6,312 | $ | 97,346 | ||||||||
Comprehensive income: |
||||||||||||||||||||
Net income |
| | | 37,358 | | 37,358 | ||||||||||||||
Other comprehensive income: |
||||||||||||||||||||
Change in unrealized gains, net of tax |
| | | | (2,284 | ) | (2,284 | ) | ||||||||||||
Comprehensive income |
| | | | | 35,074 | ||||||||||||||
Common stock issued upon conversion of Series C preferred stock |
1,214,771 | 12 | 24,988 | | | 25,000 | ||||||||||||||
Common stock issued upon exercise of options |
47,500 | 1 | 427 | | | 428 | ||||||||||||||
Restricted common stock issued |
18,773 | | 168 | | | 168 | ||||||||||||||
Share-based compensation |
| | 754 | | | 754 | ||||||||||||||
Tax benefit of share-based compensation |
| | 14 | | | 14 | ||||||||||||||
Balance at December 31, 2006 |
18,705,098 | 187 | 171,557 | (16,988 | ) | 4,028 | 158,784 | |||||||||||||
Comprehensive income: |
||||||||||||||||||||
Net income |
| | | 50,219 | | 50,219 | ||||||||||||||
Other comprehensive income: |
||||||||||||||||||||
Change in unrealized gains, net of tax |
| | | | (2,465 | ) | (2,465 | ) | ||||||||||||
Comprehensive income |
| | | | | 47,754 | ||||||||||||||
Common stock issued upon exercise of options |
90,049 | 1 | 810 | | | 811 | ||||||||||||||
Restricted common stock issued |
17,893 | | 269 | | | 269 | ||||||||||||||
Share-based compensation |
| | 774 | | | 774 | ||||||||||||||
Tax benefit of share-based compensation |
| | 179 | | | 179 | ||||||||||||||
Balance at December 31, 2007 |
18,813,040 | 188 | 173,589 | 33,230 | 1,563 | 208,570 | ||||||||||||||
Comprehensive income: |
||||||||||||||||||||
Net income |
| | | 43,846 | | 43,846 | ||||||||||||||
Other comprehensive income: |
||||||||||||||||||||
Change in unrealized gains, net of tax |
| | | | (718 | ) | (718 | ) | ||||||||||||
Comprehensive income |
| | | | | 43,128 | ||||||||||||||
Common stock issued upon exercise of options |
27,896 | | 251 | | | 251 | ||||||||||||||
Restricted common stock issued |
15,666 | | 269 | | | 269 | ||||||||||||||
Share-based compensation |
| | 1,015 | | | 1,015 | ||||||||||||||
Tax benefit of share-based compensation |
| | 39 | | | 39 | ||||||||||||||
Balance at December 31, 2008 |
18,856,602 | $ | 188 | $ | 175,163 | $ | 77,076 | $ | 845 | $ | 253,272 |
See accompanying notes.
75
A MERISAFE, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
Operating activities |
||||||||||||
Net income |
$ | 43,846 | $ | 50,219 | $ | 37,358 | ||||||
Adjustments to reconcile net income to net cash provided by operating activities: |
||||||||||||
Depreciation |
1,188 | 1,729 | 1,960 | |||||||||
Net amortization/accretion of investments |
3,018 | 2,778 | 2,272 | |||||||||
Deferred income taxes |
(6,775 | ) | 4,376 | (5,824 | ) | |||||||
Net realized (gains) losses on investments |
18,856 | (147 | ) | (7,389 | ) | |||||||
(Gain) loss on sale of asset |
13 | 1 | (82 | ) | ||||||||
Share-based compensation |
1,285 | 1,043 | 922 | |||||||||
Changes in operating assets and liabilities: |
||||||||||||
Premiums receivable |
(4,418 | ) | (7,766 | ) | (20,450 | ) | ||||||
Accrued interest receivable |
(168 | ) | (1,158 | ) | (1,324 | ) | ||||||
Deferred policy acquisition costs and deferred charges |
(1,703 | ) | 67 | (1,879 | ) | |||||||
Other assets |
(1,005 | ) | (1,275 | ) | (2,024 | ) | ||||||
Reserve for loss and loss adjustment expenses |
(6,110 | ) | 18,225 | 34,693 | ||||||||
Unearned premiums |
(1,302 | ) | 641 | 13,237 | ||||||||
Reinsurance balances |
8,788 | 31,985 | 13,578 | |||||||||
Amounts held for others and policyholder deposits |
6,329 | 3,225 | 1,451 | |||||||||
Accounts payable and other liabilities |
3,081 | (3,512 | ) | 15,323 | ||||||||
Net cash provided by operating activities |
64,923 | 100,431 | 81,822 | |||||||||
Investing activities |
||||||||||||
Purchases of investments held-to-maturity |
(142,146 | ) | (127,156 | ) | (214,627 | ) | ||||||
Purchases of investments available-for-sale |
(5,158 | ) | (498,766 | ) | (41,972 | ) | ||||||
Proceeds from maturities of investments held-to-maturity |
94,153 | 61,898 | 61,182 | |||||||||
Proceeds from sales and maturities of investments available-for-sale |
37,211 | 484,635 | 91,859 | |||||||||
Purchases of property and equipment |
(1,336 | ) | (1,451 | ) | (1,330 | ) | ||||||
Proceeds from sales of property and equipment |
| 1 | 86 | |||||||||
Net cash used in investing activities |
(17,276 | ) | (80,839 | ) | (104,802 | ) | ||||||
Financing activities |
||||||||||||
Proceeds from stock option exercise |
251 | 810 | 428 | |||||||||
Tax benefit from share-based payments |
39 | 179 | 14 | |||||||||
Net cash provided by financing activities |
290 | 989 | 442 | |||||||||
Change in cash and cash equivalents |
47,937 | 20,581 | (22,538 | ) | ||||||||
Cash and cash equivalents at beginning of year |
47,329 | 26,748 | 49,286 | |||||||||
Cash and cash equivalents at end of year |
$ | 95,266 | $ | 47,329 | $ | 26,748 | ||||||
Supplemental disclosure of cash flow information |
||||||||||||
Interest paid |
$ | 2,697 | $ | 3,403 | $ | 2,655 | ||||||
Income taxes paid |
$ | 25,022 | $ | 19,629 | $ | 18,638 | ||||||
See accompanying notes.
76
A MERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
1. | Summary of Significant Accounting Policies |
Organization
AMERISAFE, Inc. is an insurance holding company incorporated in the state of Texas. The accompanying consolidated financial statements include the accounts of AMERISAFE and its subsidiaries: American Interstate Insurance Company (AIIC) and its insurance subsidiaries, Silver Oak Casualty, Inc. (SOCI) and American Interstate Insurance Company of Texas (AIIC-TX), Amerisafe Risk Services, Inc. (RISK) and Amerisafe General Agency, Inc. (AGAI). AIIC and SOCI are property and casualty insurance companies organized under the state of Louisiana. AIIC-TX is a property and casualty insurance company organized under the laws of the state of Texas. RISK, a wholly-owned subsidiary of the Company, is a claims and safety service company servicing only affiliated insurance companies. AGAI, a wholly owned subsidiary of the Company, is a general agent for the Company. AGAI sells insurance, which is underwritten by AIIC, SOCI and AIIC-TX, as well as by nonaffiliated insurance carriers. The assets and operations of AGAI are not significant to that of the consolidated entity.
The terms AMERISAFE, the Company, we, us, or our refer to AMERISAFE, Inc. and its consolidated subsidiaries, as the context requires.
The Company provides workers compensation and general liability insurance for companies primarily in special trade groups, including construction, trucking, agriculture and logging. Assets and revenues of AIIC represent approximately 99% of comparable consolidated amounts of the Company for each of 2008, 2007 and 2006.
Basis of Presentation
The accompanying consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation. The consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States (GAAP). The preparation of financial statements in accordance with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reported period. Actual results could differ from those estimates.
Certain prior year amounts have been reclassified to conform with the current year presentation.
Investments
The Company has the ability and positive intent to hold these investments until maturity. Therefore, investments in held-to-maturity fixed maturity securities are recorded at amortized cost. Available-for-sale fixed maturity securities and equity securities are recorded at fair value. Temporary changes in the fair value of the available-for-sale fixed maturity and equity securities are reported in shareholders equity as a component of other comprehensive income, net of deferred income taxes.
Investment income is recognized as it is earned. The discount or premium on fixed maturities is amortized using the constant yield method. Anticipated prepayments, where applicable, are considered when determining the amortization of premiums or discounts. Realized investment gains and losses are determined using the specific identification method.
77
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
The Company regularly reviews the fair value of its investments. Impairment of an investment security results in a reduction of the carrying value of the security and the realization of a loss when the fair value of the security declines below the cost or amortized cost, as applicable, for the security and the impairment is deemed to be other-than-temporary. The Company regularly reviews its investment portfolio to evaluate the existence of other-than-temporary declines in the fair value of investments. The Company considers various factors in determining if a decline in the fair value of an individual security is other-than-temporary, including but not limited to a reduction or interruption in scheduled cash flows, the financial condition of the issuer, how long and how much the fair value has been below amortized cost, downgrades, and the Companys intent to sell or ability to hold the security.
If the Company determines that the decline in fair value is other-than-temporary, the Company adjusts the cost basis of the investment and reports an impairment charge in net realized gains (losses) on investments in the consolidated statements of income in the period in which the Company makes this determination.
Cash and Cash Equivalents
Cash equivalents include pooled short-term money market funds and certificates of deposit with an original maturity of three months or less.
Premiums Receivable
Premiums receivable consist primarily of premium-related balances due from policyholders. The Company considers premiums receivable as past due based on the payment terms of the underlying policy. The balance is shown net of the allowance for doubtful accounts. Receivables due from insureds are charged off when a determination has been made that a specific balance will not be collected based upon the collection efforts of Company personnel. An estimate of amounts that are likely to be charged off is established as an allowance for doubtful accounts as of the balance sheet date. The estimate is primarily comprised of specific balances that are considered probable to be charged off after all collection efforts have ceased, as well as historical trends and an analysis of the aging of the receivables.
Property and Equipment
The Companys property and equipment, including certain costs incurred to develop or obtain software for internal use, are stated at cost less accumulated depreciation. Depreciation is calculated primarily by the straight-line method over the estimated useful lives of the respective assets, generally 39 years for the building and three to seven years for all other fixed assets.
Deferred Policy Acquisition Costs
The direct costs of acquiring and renewing business are capitalized to the extent recoverable and are amortized over the effective period of the related insurance policies in proportion to premium revenue earned. These capitalized costs consist mainly of sales commissions, premium taxes and other underwriting costs. The Company evaluates deferred policy acquisition costs for recoverability by comparing the unearned premiums to the estimated total expected claim costs and related expenses, offset by anticipated investment income. The Company would reduce the deferred costs if the unearned premiums were less than expected claims and expenses after considering investment income, and report any adjustments in amortization of deferred policy acquisition costs. There were no adjustments necessary in 2008, 2007 or 2006.
78
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
Reserves for Loss and Loss Adjustment Expenses
Reserves for loss and loss adjustment expenses represent the estimated ultimate cost of all reported and unreported losses incurred through December 31. The Company does not discount loss and loss adjustment expense reserves. The reserves for loss and loss adjustment expenses are estimated using individual case-basis valuations, statistical analyses and estimates based upon experience for unreported claims and their associated loss and loss adjustment expenses. Such estimates may be more or less than the amounts ultimately paid when the claims are settled. The estimates are subject to the effects of trends in loss severity and frequency. Although considerable variability is inherent in these estimates, management believes that the reserves for loss and loss adjustment expenses are adequate. The estimates are continually reviewed and adjusted as necessary as experience develops or new information becomes known. Any adjustments are included in current operations.
Subrogation recoverables, as well as deductible recoverables from policyholders, are estimated using individual case-basis valuations and aggregate estimates. Deductibles that are recoverable from policyholders and other recoverables from state funds, decrease the liability for loss and loss adjustment expenses.
The Company funds its obligations under certain settled claims where the payment pattern and ultimate cost are fixed and determinable on an individual claim basis through the purchase of annuities. These annuities are purchased from unaffiliated carriers and name the claimant as payee. The cost of purchasing the annuity is recorded as paid loss and loss adjustment expenses. To the extent the annuity funds estimated future claims, reserves for loss and loss adjustment expense are reduced.
Premium Revenue
Premiums on workers compensation and general liability insurance are based on actual payroll costs or production during the policy term and are normally billed monthly in arrears or annually. However, the Company generally requires a deposit at the inception of a policy.
Premium revenue is earned on a pro rata basis over periods covered by the policies. The reserve for unearned premiums on these policies is computed on a daily pro rata basis.
The Company estimates the annual premiums to be paid by its policyholders when the Company issues the policies and records those amounts on the balance sheet as premiums receivable. The Company conducts premium audits on all of its voluntary business policyholders annually, upon the expiration of each policy, including when the policy is renewed. The purpose of these audits is to verify that policyholders have accurately reported their payroll expenses and employee job classifications, and therefore have paid the Company the premium required under the terms of the policies. The difference between the estimated premium and the audited premium is referred to as earned but unbilled premium, or EBUB premium. EBUB premium can be higher or lower than the estimated premium. EBUB premium is subject to significant variability and can either increase or decrease earned premium based upon several factors, including changes in premium growth, industry mix and economic conditions. Due to the timing of audits and other adjustments, actual EBUB premium is generally not determined for several months after the expiration of the policy.
The Company reviews its estimate of EBUB premiums on a quarterly basis and records an adjustment to premium, related losses, and expenses as warranted.
Reinsurance
Reinsurance premiums, losses and allocated loss adjustment expenses are accounted for on a basis consistent with those used in accounting for the original policies issued and the terms of the reinsurance contracts.
79
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
Amounts recoverable from reinsurers include balances currently owed to the Company for losses and allocated loss adjustment expenses that have been paid to policyholders, amounts that are currently reserved for and will be recoverable once the related expense has been paid and experience-rated commissions recoverable upon commutation.
Upon managements determination that an amount due from a reinsurer is uncollectible due to the reinsurers insolvency, or other matters, the amount is written off.
Ceding commissions are earned from certain reinsurance companies and are intended to reimburse the Company for policy acquisition costs related to those premiums ceded to the reinsurers. Ceding commission income is recognized over the effective period of the related insurance policies in proportion to premium revenue earned and is reflected as a reduction in underwriting and other operating costs.
Experience-rated commissions are earned from certain reinsurance companies based on the financial results of the applicable risks ceded to the reinsurers. These commission revenues on reinsurance contracts are recognized during the related reinsurance treaty period and are based on the same assumptions used for recording loss and allocated loss adjustment expenses. These commissions are reflected as a reduction in underwriting and other operating costs and are adjusted as necessary as experience develops or new information becomes known. Any such adjustments are included in current operations. Experience-rated commissions reduced underwriting and other operating costs by $13.6 million in 2008, $3.8 million in 2007 and $66,000 in 2006.
Fee and Other Income
The Company recognizes income related to commissions earned by AGAI as the related services are performed.
Advertising
All advertising expenditures incurred by the Company are charged to expense in the period to which they relate and are included in underwriting and other operating costs in the consolidated statements of income. Total advertising expenses incurred were $469,000 in 2008, $493,000 in 2007 and $447,000 in 2006.
Income Taxes
The Company accounts for income taxes using the liability method. The provision for income taxes has two components, amounts currently payable or receivable and deferred amounts. Deferred income tax assets and liabilities are recognized for the differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred income tax assets and liabilities are measured using tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred income tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date.
The Company considers deferred tax assets to be recoverable if it is probable that the related tax losses can be offset by future taxable income. The Company includes reversal of existing temporary differences, tax planning strategies available and future operating income in this assessment. To the extent the deferred tax assets exceed the amount expected to be recovered in future years, the Company records a valuation allowance for the amount determined unrecoverable.
80
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
Insurance-Related Assessments
Insurance-related assessments are accrued in the period in which they have been incurred. The Company is subject to a variety of assessments related to insurance commerce, including those by state guaranty funds and workers compensation second-injury funds. State guaranty fund assessments are used by state insurance oversight agencies to cover losses of policyholders of insolvent or rehabilitated insurance companies and for the operating expenses of such agencies. These mandatory assessments may be partially recovered through a reduction in future premium taxes in certain states. Assessments related to premiums are generally paid one year after the calendar year in which the premium is written, while assessments related to losses are generally paid within one year of when the loss is paid.
Policyholder Dividends
The Company writes certain policies for which the policyholder may participate in favorable claims experience through a dividend. An estimated provision for workers compensation policyholders dividends is accrued as the related premiums are earned. Dividends do not become a fixed liability unless and until declared by the respective Boards of Directors of AMERISAFEs insurance subsidiaries. The dividend to which a policyholder may be entitled is set forth in the policy and is related to the amount of losses sustained under the policy. Dividends are calculated after the policy expiration. The Company is able to estimate the policyholder dividend liability because the Company has information regarding the underlying loss experience of the policies written with dividend provisions and can estimate future dividend payments from the policy terms. Additionally, Florida law requires payment of dividends to Florida policyholders pursuant to a formula based on underwriting results from policies written in Florida over a consecutive three-year period.
Variable Interest Entities
In December 2003, the Company formed Amerisafe Capital Trust I (ACT I) for the sole purpose of issuing $10,000,000 in trust preferred securities. ACT I used the proceeds from the sale of these securities and the Companys initial capital contribution to purchase $10,310,000 of subordinated debt securities from the Company. The debt securities are the sole assets of ACT I, and the payments under the debt securities are the sole revenues of ACT I.
In April 2004, the Company formed Amerisafe Capital Trust II (ACT II) for the sole purpose of issuing $25,000,000 in trust preferred securities. ACT II used the proceeds from the sale of these securities and the Companys initial capital contribution to purchase $25,780,000 of subordinated debt securities from the Company. The debt securities are the sole assets of ACT II, and the payments under the debt securities are the sole revenues of ACT II.
The Company concluded that the equity investments in ACT I and ACT II (collectively, the Trusts) are not at risk since the subordinated debt securities issued by the Company are the Trusts sole assets. Accordingly, the Trusts are considered variable interest entities. The Company is not considered to be the primary beneficiary of the Trusts and has not consolidated these entities.
Earnings Per Share
The Company applies the two-class method to compute basic earnings per share (EPS). This method calculates earnings per share for each class of common stock and participating security. Income available to common shareholders is allocated to common shares and participating securities to the extent that each security
81
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
shares in earnings as if all earnings for the period had been distributed. The amount of earnings allocated to common shares is divided by the weighted-average number of common shares outstanding for the period. Participating securities that are convertible into common stock are included in the computation of basic EPS if the effect is dilutive.
Diluted EPS include potential common shares assumed issued under the treasury stock method, which reflects the potential dilution that would occur if any outstanding options or warrants were exercised or restricted stock becomes vested, and includes the if converted method for participating securities if the effect is dilutive. The two-class method of calculating diluted EPS is used in the event the if converted method is anti-dilutive.
Stock-Based Compensation
The Company recognizes the impact of its share-based compensation in accordance with Financial Accounting Standards Board (FASB) Statement No. 123 (R) (revised 2004) Share-Based Payment . All share-based grants are recognized as compensation expense over the vesting period.
Recent Accounting Pronouncements
In December 2007, the FASB issued FASB Statement No. 141(R), Business Combinations (SFAS No. 141(R). SFAS No. 141(R) establishes principles and requirements for how an acquiring company recognizes and measures in its financial statements the identifiable assets and goodwill acquired, the liabilities assumed and any noncontrolling interest in the acquired company. It also establishes disclosure requirements to enable the evaluation of the nature and financial effects of the business combination. SFAS No. 141(R) is effective for fiscal years beginning after December 15, 2008. The impact of adopting SFAS No. 141(R) has not been determined since the Company has not had any business combinations.
In December 2007, the FASB issued SFAS No. 160, Noncontrolling Interests in Consolidated Financial Statements an amendment of ARB No. 51 (SFAS No. 160). SFAS No. 160 amends ARB No. 51 to establish accounting and reporting standards for the noncontrolling interest in a subsidiary and for the deconsolidation of a subsidiary. SFAS No. 160 requires that (a) the ownership interests in subsidiaries held by parties other than the parent be clearly identified, labeled, and presented in the consolidated statement of financial position within equity, but separate from the parents equity; (b) the amount of consolidated net income attributable to the parent and to the noncontrolling interest be clearly identified and presented on the face of the consolidated statement of income; (c) changes in a parents ownership interest while the parent retains its controlling financial interest in its subsidiary be accounted for consistently; (d) when a subsidiary is deconsolidated, any retained noncontrolling equity investment in the former subsidiary be initially measured at fair value; and (e) sufficient disclosures are made that clearly identify and distinguish between the interests of the parent and the interests of the noncontrolling owners. SFAS No. 160 is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2008. The Company currently does not have any noncontrolling interests that will be impacted by SFAS No. 160.
In May 2008, the FASB issued SFAS No. 162, The Hierarchy of Generally Accepted Accounting Principles (SFAS No. 162). SFAS No. 162 identifies the sources of accounting principles and the framework for selecting the principles to be used in the preparation of financial statements of nongovernmental entities that are presented in conformity with GAAP (the GAAP hierarchy). The FASB believes that the GAAP hierarchy should be directed to entities because it is the entity (not its auditor) that is responsible for selecting accounting principles for financial statements that are presented in conformity with GAAP. Accordingly, the FASB concluded that the GAAP hierarchy should reside in the accounting literature established by the FASB and has issued SFAS No. 162 to achieve that result. This Statement is effective 60 days following the SECs approval of the Public
82
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
Company Accounting Oversight Board amendments to AU Section 411, The Meaning of Present Fairly in Conformity With Generally Accepted Accounting Principles . The FASB does not expect that SFAS No. 162 will result in a change in current practice; however, transition provisions have been provided in the unusual circumstance that the application of the provisions of SFAS No. 162 results in a change in practice. The Company does not anticipate that the adoption of SFAS No. 162 will have a material effect on the Companys financial position or results of operations.
In June 2008, the FASB issued FASB Staff Position No. EITF 03-6-1, Determining Whether Instruments Granted in Share-Based Payment Transactions Are Participating Securities (FSP EITF 03-6-1). FSP EITF 03-6-1 addresses whether instruments granted in share-based payment transactions are participating securities prior to vesting and, therefore, need to be included in the earnings allocation in computing earnings per share (EPS) under the two-class method described in paragraphs 60 and 61 of FASB Statement No. 128, Earnings Per Share . FSP EITF 03-6-1 states that unvested share-based payment awards that contain non-forfeitable rights to dividends or dividend equivalents (whether paid or unpaid) are participating securities and are to be included in the computation of EPS pursuant to the two-class method. FSP EITF 03-6-1 is effective for financial statements issued for fiscal years beginning after December 15, 2008, and interim periods within those years. All prior-period EPS data presented is to be adjusted retrospectively (including interim financial statements, summaries of earnings, and selected financial data) to conform with the provisions of FSP EITF 03-6-1. Early application is not permitted. Currently, the Company does not have any unvested awards that contain non-forfeitable rights to dividends or dividend equivalents. The Company does not anticipate that the adoption of FSP EITF 03-6-1 will have a material effect on the Companys financial position or results of operations.
In October 2008, the FASB issued FASB Staff Position No. FAS 157-3, Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active (FSP FAS 157-3). FSP FAS 157-3 clarifies the application of FASB SFAS No. 157, Fair Value Measurements (SFAS No. 157) in a market that is not active. FSP FAS 157-3 applies to financial assets within the scope of accounting pronouncements that require or permit fair value measurements in accordance with SFAS No. 157. FSP FAS 157-3 was effective upon issuance, including prior periods for which financial statements have not been issued. Revisions resulting from a change in the valuation technique or its application will be accounted for as a change in accounting estimate. The disclosure provisions for a change in accounting estimate are not required for revisions resulting from a change in valuation technique or its application The adoption of FSP FAS 157-3 did not have an effect on the Companys financial position or results of operations.
In January 2009, the FASB issued FASB Staff Position No. EITF 99-20-1, Amendments to the Impairment Guidance of EITF Issue No. 99-20 (FSP EITF 99-20-1). FSP EITF 99-20-1 amends the impairment guidance in EITF Issue No. 99-20, Recognition of Interest Income and Impairment on Purchased Beneficial Interests and Beneficial Interests that Continue to be Held by a Transferor in Securitized Financial Assets , to achieve more consistent determination of whether an other-than-temporary impairment has occurred. FSP EITF 99-20-1 also retains and emphasizes the objective of an other-than-temporary impairment assessment and the related disclosure requirements in SFAS No. 115, Accounting for Certain Investments in Debt and Equity Securities , and other related guidance. FSP EITF 99-20-1 is effective for interim and annual reporting periods ending after December 15, 2008, and is to be applied prospectively. Retrospective application to a prior interim or annual reporting period is not permitted. The Company does not anticipate that the adoption of EITF 99-20-1 will have a material effect on the Companys financial position or results of operations.
83
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
2. | Investments |
The gross unrealized gains and losses on, and the cost and fair value of, those investments classified as held-to-maturity at December 31, 2008 are summarized as follows:
Cost or
Amortized Cost |
Gross
Unrealized Gains |
Gross
Unrealized Losses |
Fair Value | ||||||||||
(In thousands) | |||||||||||||
U.S. Treasury securities and obligations of U.S. Government agencies |
$ | 23,024 | $ | 1,792 | $ | (37 | ) | $ | 24,779 | ||||
States and political subdivisions |
482,923 | 4,836 | (9,881 | ) | 477,878 | ||||||||
U.S. agency-based mortgage-backed securities |
92,862 | 2,411 | (24 | ) | 95,249 | ||||||||
Commercial mortgage-backed securities |
51,610 | | (11,682 | ) | 39,928 | ||||||||
Asset-backed securities |
10,803 | | (3,041 | ) | 7,762 | ||||||||
Corporate bonds |
19,054 | 117 | (683 | ) | 18,488 | ||||||||
Totals |
$ | 680,276 | $ | 9,156 | $ | (25,348 | ) | $ | 664,084 | ||||
The gross unrealized gains and losses on, and the cost and fair value of, those investments classified as available-for-sale at December 31, 2008 are summarized as follows:
Cost |
Gross
Unrealized Gains |
Gross
Unrealized Losses |
Fair Value | ||||||||||
(In thousands) | |||||||||||||
Equity securities |
$ | 25,002 | $ | | $ | (571 | ) | $ | 24,431 | ||||
The gross unrealized gains and losses on, and the cost and fair value of, those investments classified as held-to-maturity at December 31, 2007 are summarized as follows:
Cost or
Amortized Cost |
Gross
Unrealized Gains |
Gross
Unrealized Losses |
Fair Value | ||||||||||
(In thousands) | |||||||||||||
U.S. Treasury securities and obligations of U.S. Government agencies |
$ | 47,648 | $ | 555 | $ | (23 | ) | $ | 48,180 | ||||
States and political subdivisions |
406,351 | 3,109 | (1,818 | ) | 407,642 | ||||||||
U.S. agency-based mortgage-backed securities |
99,617 | 609 | (706 | ) | 99,520 | ||||||||
Commercial mortgage-backed securities |
51,630 | 315 | (58 | ) | 51,887 | ||||||||
Asset-backed securities |
14,637 | | (1,521 | ) | 13,116 | ||||||||
Corporate bonds |
19,808 | 72 | (188 | ) | 19,692 | ||||||||
Totals |
$ | 639,691 | $ | 4,660 | $ | (4,314 | ) | $ | 640,037 | ||||
84
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
The gross unrealized gains and losses on, and the cost and fair value of, those investments classified as available-for-sale at December 31, 2007 are summarized as follows:
Cost |
Gross
Unrealized Gains |
Gross
Unrealized Losses |
Fair Value | ||||||||||
(In thousands) | |||||||||||||
Variable rate demand obligations |
$ | 32,425 | $ | | $ | | $ | 32,425 | |||||
Equity securities |
40,381 | 618 | (1,370 | ) | 39,629 | ||||||||
Totals |
$ | 72,806 | $ | 618 | $ | (1,370 | ) | $ | 72,054 | ||||
A summary of the cost or amortized cost and fair value of investments in fixed maturity securities, classified as held-to-maturity at December 31, 2008, by contractual maturity, is as follows:
Cost or
Amortized Cost |
Fair Value | |||||
(In thousands) | ||||||
Maturity: |
||||||
Due in 2009 |
$ | 60,826 | $ | 61,161 | ||
In 2010 through 2013 |
157,465 | 158,406 | ||||
In 2014 through 2018 |
125,758 | 126,668 | ||||
After 2018 |
180,952 | 174,909 | ||||
Mortgage-backed and asset-backed securities |
155,275 | 142,940 | ||||
Totals |
$ | 680,276 | $ | 664,084 | ||
At December 31, 2008, there were $25,000 of cash and short-term investments and $18,908,740 of held-to-maturity investments on deposit with regulatory agencies of states in which the Company does business.
85
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
A summary of the Companys realized gains and losses on sales, calls or redemptions of investments for 2008, 2007 and 2006 is as follows:
Fixed
Maturity Securities Available for Sale |
Equity
Securities |
Other | Total | |||||||||||||
(In thousands) | ||||||||||||||||
Year ended December 31, 2008 |
||||||||||||||||
Proceeds from sales |
$ | 32,425 | $ | 4,786 | $ | | $ | 37,211 | ||||||||
Gross realized investment gains |
$ | | $ | 468 | $ | | $ | 468 | ||||||||
Gross realized investment (losses) |
| (2,086 | ) | | (2,086 | ) | ||||||||||
Net realized investment (losses) |
| (1,618 | ) | | (1,618 | ) | ||||||||||
Impairments |
| (14,133 | ) | (3,156 | ) | (17,289 | ) | |||||||||
Other, including (losses) on calls and redemptions |
| | 51 | 51 | ||||||||||||
Net realized investment gains (losses) |
$ | | $ | (15,751 | ) | $ | (3,105 | ) | $ | (18,856 | ) | |||||
Year ended December 31, 2007 |
||||||||||||||||
Proceeds from sales |
$ | 484,635 | $ | | $ | | $ | 484,635 | ||||||||
Gross realized investment gains |
$ | 17 | $ | $ | | $ | 17 | |||||||||
Gross realized investment (losses) |
(6 | ) | | | (6 | ) | ||||||||||
Net realized investment gain |
11 | | | 11 | ||||||||||||
Other, including (losses) on calls and redemptions |
| | 136 | 136 | ||||||||||||
Net realized investment gains (losses) |
$ | 11 | $ | | $ | 136 | $ | 147 | ||||||||
Year ended December 31, 2006 |
||||||||||||||||
Proceeds from sales |
$ | 2,000 | $ | 89,859 | $ | | $ | 91,859 | ||||||||
Gross realized investment gains |
$ | | $ | 10,601 | $ | | $ | 10,601 | ||||||||
Gross realized investment (losses) |
| (3,142 | ) | | (3,142 | ) | ||||||||||
Net realized investment gain |
| 7,459 | | 7,459 | ||||||||||||
Other, including gains on calls and redemptions |
(5 | ) | | (65 | ) | (70 | ) | |||||||||
Net realized investment gains (losses) |
$ | (5 | ) | $ | 7,459 | $ | (65 | ) | $ | 7,389 | ||||||
Major categories of the Companys net investment income are summarized as follows:
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(In thousands) | ||||||||||||
Gross investment income: |
||||||||||||
Fixed maturity securities |
$ | 28,879 | $ | 27,441 | $ | 22,261 | ||||||
Equity securities |
931 | 874 | 1,522 | |||||||||
Cash and cash equivalents |
2,351 | 3,056 | 2,674 | |||||||||
Total gross investment income |
32,161 | 31,371 | 26,457 | |||||||||
Investment expenses |
(1,163 | ) | (1,163 | ) | (1,074 | ) | ||||||
Net investment income |
$ | 30,998 | $ | 30,208 | $ | 25,383 | ||||||
86
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
The following table summarizes the gross unrealized losses on securities that were at a loss for either less than twelve months or twelve months or longer:
Less Than
Twelve Months |
Twelve Months
or Longer |
|||||||||||||
Fair
Value |
Unrealized
Losses |
Fair
Value |
Unrealized
Losses |
|||||||||||
(In thousands) | ||||||||||||||
December 31, 2008: |
||||||||||||||
Fixed maturity securities |
$ | 70,315 | $ | (5,176 | ) | $ | 103,550 | $ | (20,173 | ) | ||||
Equity securities |
1,948 | (85 | ) | 21,394 | (486 | ) | ||||||||
December 31, 2007: |
||||||||||||||
Fixed maturity securities |
$ | 104,866 | $ | (2,011 | ) | $ | 198,763 | $ | (2,303 | ) | ||||
Equity securities |
22,809 | (1,370 | ) | | |
The Company regularly reviews its investment portfolio to evaluate the necessity of recording impairment losses for other-than-temporary declines in the fair value of our investments. The Company considers various factors in determining if a decline in the fair value of an individual security is other-than-temporary. The key factors considered are:
|
any reduction or elimination of dividends, or nonpayment of scheduled principal or interest payments; |
|
the financial condition and near-term prospects of the issuer of the applicable security, including any specific events that may affect its operations or earnings; |
|
how long and by how much the fair value of the security has been below its cost or amortized cost; |
|
any downgrades of the security by a rating agency; and |
|
the Companys intent and ability to keep the security for a sufficient time period for it to recover its value. |
The Company reviewed all securities with unrealized losses in accordance with the impairment policy described above. The Company determined that the unrealized losses in the fixed maturity securities portfolio related primarily to changes in market interest rates since the date of purchase, current conditions in the capital markets and the impact of those conditions on market liquidity and prices generally, and the transfer of the investments from the available-for-sale classification to the held-to-maturity classification in January 2004. With the exception of certain securities deemed to be other-than-temporarily impaired, the Company expects to recover the carrying value of these securities since management has the positive intent and ability to hold the securities until they mature.
In 2008, the Company recorded aggregate impairment charges of $17.3 million with respect to two asset-backed securities, two equity securities and four value-based exchange traded funds in its investment portfolio. Of the $17.3 million of impairment charges, $14.0 million related to four value-based exchange traded funds. The value of these securities fell throughout 2008 in line with other major indices during a volatile market cycle. As of December 31, 2008, the unrealized losses on these exchange-traded funds exceeded 35% of cost. While the Company believes some portion of the value will be regained as the economy recovers, such recoveries can not be determined to be in the near term. These securities were impaired using the market close price on the last day of the year.
87
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
In addition, an impairment of $3.1 million was recorded related to one asset-backed security. The Company determined to impair this security because, among other things, the credit rating of the security had been downgraded to below investment grade, and the fair value of the security had been less than 80% of its amortized cost for an extended period of time. The Company believes that the factors resulting in the impairment of this asset-backed security were generally specific to this security and do not impact its other investments. This security was impaired at fair value as of December 31, 2008.
3. | Premiums Receivable |
Premiums receivable consist primarily of premium-related balances due from policyholders. The balance is shown net of the allowance for doubtful accounts. The components of premiums receivable are shown below:
December 31, | ||||||||
2008 | 2007 | |||||||
(In thousands) | ||||||||
Premiums receivable |
$ | 159,795 | $ | 154,702 | ||||
Allowance for doubtful accounts |
(3,228 | ) | (2,552 | ) | ||||
Premiums receivable, net |
$ | 156,567 | $ | 152,150 | ||||
The following summarizes the activity in the allowance for doubtful accounts:
December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(In thousands) | ||||||||||||
Balance, beginning of year |
$ | 2,552 | $ | 2,510 | $ | 2,214 | ||||||
Provision for bad debts |
3,340 | 1,605 | 1,839 | |||||||||
Write-offs |
(2,664 | ) | (1,563 | ) | (1,543 | ) | ||||||
Balance, end of year |
$ | 3,228 | $ | 2,552 | $ | 2,510 | ||||||
In 2006, the Company recorded an estimate for EBUB premium of $5.3 million, or 1.6% of gross premiums written in 2006. At December 31, 2007, the Companys revised estimate for EBUB premium was $9.0 million, a change of $3.7 million or 1.1% of gross premiums written in 2007. At December 31, 2008, the Companys revised estimate for EBUB premium was $10.2 million, a change of $1.2 million or 0.4% of gross premiums written in 2008.
4. | Deferred Policy Acquisition Costs |
The Company incurs certain costs related to acquiring policies. These costs are deferred and expensed over the life of the related policies. Major categories of the Companys deferred policy acquisition costs are summarized as follows:
December 31, | ||||||
2008 | 2007 | |||||
(In thousands) | ||||||
Agents commissions |
$ | 13,487 | $ | 12,247 | ||
Premium taxes |
3,404 | 3,143 | ||||
Deferred underwriting expenses |
3,398 | 3,024 | ||||
Total deferred policy acquisition costs |
$ | 20,289 | $ | 18,414 | ||
88
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
The following summarizes the activity in the deferred policy acquisition costs:
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(In thousands) | ||||||||||||
Balance, beginning of year |
$ | 18,414 | $ | 18,486 | $ | 16,973 | ||||||
Policy acquisition costs deferred |
42,811 | 40,918 | 41,939 | |||||||||
Amortization expense during the year |
(40,936 | ) | (40,990 | ) | (40,426 | ) | ||||||
Balance, end of year |
$ | 20,289 | $ | 18,414 | $ | 18,486 | ||||||
5. | Property and Equipment |
Property and equipment consist of the following:
December 31, | ||||||||
2008 | 2007 | |||||||
(In thousands) | ||||||||
Land and office building |
$ | 4,580 | $ | 4,492 | ||||
Furniture and equipment |
6,067 | 6,005 | ||||||
Software |
7,665 | 7,050 | ||||||
Automobiles |
93 | 93 | ||||||
18,405 | 17,640 | |||||||
Accumulated depreciation |
(12,863 | ) | (12,233 | ) | ||||
Real estate, furniture and equipment, net |
$ | 5,542 | $ | 5,407 | ||||
Furniture and equipment included property held under capital leases of $156,000 and $70,000 at December 31, 2008 and 2007, respectively, and software included property held under capital leases of $191,000 and $88,000 at December 31, 2008 and 2007, respectively. Accumulated depreciation includes $168,000 and $105,000, respectively, that is related to these properties. The capital lease obligations related to these properties are included in accounts payable and other liabilities.
Future minimum lease payments related to the capital lease obligations are detailed below (in thousands):
2009 |
$ | 58 | ||
2010 |
63 | |||
2011 |
47 | |||
Less amount representing interest |
(2 | ) | ||
Present value of net minimum lease payments |
$ | 170 | ||
89
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
6. | Reinsurance |
The Company cedes certain premiums and losses to various reinsurers under quota share and excess-of-loss treaties. These reinsurance arrangements provide for greater diversification of business, allow management to control exposure to potential losses arising from large risks, and provide additional capacity for growth. Ceded reinsurance contracts do not relieve the Company from its obligations to policyholders. The Company remains liable to its policyholders for the portion reinsured to the extent that any reinsurer does not meet the obligations assumed under the reinsurance agreements. To minimize its exposure to significant losses from reinsurer insolvencies, the Company evaluates the financial condition of its reinsurers and monitors concentrations of credit risk arising from similar geographic regions, activities, or economic characteristics of the reinsurers on a continual basis. The effect of reinsurance on premiums written and earned in 2008, 2007 and 2006 was as follows:
2008 Premiums | 2007 Premiums | 2006 Premiums | ||||||||||||||||||||||
Written | Earned | Written | Earned | Written | Earned | |||||||||||||||||||
(In thousands) | ||||||||||||||||||||||||
Gross |
$ | 307,841 | $ | 309,143 | $ | 327,761 | $ | 327,121 | $ | 332,491 | $ | 319,253 | ||||||||||||
Ceded |
(19,650 | ) | (19,650 | ) | (20,215 | ) | (20,215 | ) | (19,950 | ) | (19,950 | ) | ||||||||||||
Net premiums |
$ | 288,191 | $ | 289,493 | $ | 307,546 | $ | 306,906 | $ | 312,541 | $ | 299,303 | ||||||||||||
The amounts recoverable from reinsurers consist of the following:
December 31, | ||||||
2008 | 2007 | |||||
(In thousands) | ||||||
Unpaid losses recoverable: |
||||||
Case basis |
$ | 43,439 | $ | 58,354 | ||
Incurred but not reported |
13,157 | 16,571 | ||||
Paid losses recoverable |
1,332 | 1,990 | ||||
Experience-rated commissions recoverable |
9,835 | 357 | ||||
Total |
$ | 67,763 | $ | 77,272 | ||
Amounts recoverable from reinsurers consists of ceded case reserves, ceded incurred but not reported (IBNR) reserves, paid losses recoverable and experience-rated commissions recoverable. Ceded case and ceded IBNR reserves represent the portion of gross loss and loss adjustment expense liabilities that are recoverable under reinsurance agreements, but are not yet due from reinsurers. Paid losses recoverable are receivables currently due from reinsurers for ceded paid losses. The Company considers paid losses recoverable outstanding for more than 90 days to be past due. At December 31, 2008, there were no paid losses recoverable that were past due. Experience-rated commissions recoverable represents earned commission from certain reinsurance companies based on the financial results of the applicable risks ceded to the reinsurers.
The Company received reinsurance recoveries of $19,852,000 in 2008, $33,745,000 in 2007 and $7,860,000 in 2006.
90
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
At December 31, 2008, unsecured reinsurance recoverables from reinsurers that exceeded 1.5% of statutory surplus of the Companys insurance subsidiary are shown below (in thousands). The A.M. Best Company rating for the reinsurer is shown parenthetically.
Odyssey America Reinsurance Corporation (A) |
$ | 14,940 | |
St. Paul Fire & Marine Insurance Company (A+) |
7,917 | ||
Clearwater Insurance Company (A) |
7,599 | ||
Minnesota Workers Compensation Reinsurance Association (NR) |
6,205 | ||
Finial Reinsurance Company (A) |
5,146 | ||
SCOR Reinsurance Company (A) |
5,125 | ||
Hannover Reinsurance (Ireland) Limited (A) |
4,730 | ||
Aspen Insurance Limited (A) |
4,730 | ||
Other reinsurers |
11,371 | ||
Total reinsurance recoverables |
67,763 | ||
Letters of credit and funds held |
11,765 | ||
Total unsecured reinsurance recoverables |
$ | 55,998 | |
7. | Income Taxes |
The Companys deferred income tax assets and liabilities are as follows:
December 31, | ||||||||
2008 | 2007 | |||||||
(In thousands) | ||||||||
Deferred income tax assets: |
||||||||
Discounting of net unpaid loss and loss adjustment expenses |
$ | 23,257 | $ | 19,223 | ||||
Unearned premiums |
11,979 | 11,990 | ||||||
Accrued expenses and other |
2,192 | 1,774 | ||||||
Accrued policyholder dividends |
1,647 | 1,990 | ||||||
Capital loss carryforward on impaired securities |
5,997 | | ||||||
Accrued insurance-related assessments |
4,850 | 6,002 | ||||||
Total deferred tax assets |
49,922 | 40,979 | ||||||
Less valuation allowance |
3,011 | | ||||||
Net deferred income tax assets |
46,911 | 40,979 | ||||||
Deferred income tax liabilities: |
||||||||
Deferred policy acquisition costs |
(8,521 | ) | (7,741 | ) | ||||
Deferred charges |
(1,039 | ) | (1,093 | ) | ||||
Unrealized gain on securities available-for-sale |
(455 | ) | (841 | ) | ||||
Property and equipment and other |
(253 | ) | (429 | ) | ||||
Salvage and subrogation |
(3,063 | ) | (4,457 | ) | ||||
Total deferred income tax liabilities |
(13,331 | ) | (14,561 | ) | ||||
Net deferred income taxes |
$ | 33,580 | $ | 26,418 | ||||
91
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
The components of consolidated income tax expense (benefit) are as follows:
Year Ended December 31, | |||||||||||
2008 | 2007 | 2006 | |||||||||
(In thousands) | |||||||||||
Current: |
|||||||||||
Federal |
$ | 26,292 | $ | 16,168 | $ | 20,606 | |||||
State |
725 | 332 | 306 | ||||||||
27,017 | 16,500 | 20,912 | |||||||||
Deferred: |
|||||||||||
Federal |
(6,775 | ) | 4,376 | (5,824 | ) | ||||||
Total |
$ | 20,242 | $ | 20,876 | $ | 15,088 | |||||
The Company recorded a valuation allowance in 2008 for unrealized losses resulting from other-than-temporary impairments.
Income tax expense (benefit) from operations is different from the amount computed by applying the U.S. federal income tax statutory rate of 35% to income before income taxes as follows:
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(In thousands) | ||||||||||||
Income tax computed at federal statutory tax rate |
$ | 22,431 | $ | 24,883 | $ | 18,356 | ||||||
Tax-exempt interest, net |
(5,175 | ) | (4,245 | ) | (3,145 | ) | ||||||
State income tax |
725 | 332 | 306 | |||||||||
Dividends received deduction |
(197 | ) | (142 | ) | (236 | ) | ||||||
Valuation allowance |
3,011 | | | |||||||||
Other |
(553 | ) | 48 | (193 | ) | |||||||
$ | 20,242 | $ | 20,876 | $ | 15,088 | |||||||
The Company recognizes interest and penalties related to uncertain tax positions in income tax expense. There were no such uncertain positions as of December 31, 2008 and 2007.
Tax years 2004 through 2008 are subject to examination by the federal and state taxing authorities. There are no income tax examinations currently in process.
8. | Line of Credit |
In October 2007, the Company entered into an agreement providing for a line of credit in the maximum amount of $20 million. The agreement expires in October 2010. Under the agreement, advances may be made either in the form of loans or letters of credit. Borrowings under the agreement accrue interest at rates based either on the prime rate or LIBOR. Letters of credit issued under the arrangement accrue fees on undrawn amounts as long as the letters are outstanding. The Company does not pay a facility fee on amounts available under the line of credit unless they are advanced and outstanding. The facility is unsecured. No borrowings or letters of credit were outstanding under the line of credit arrangement at December 31, 2008 or 2007.
92
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
9. | Subordinated Debt Securities |
On December 16, 2003, the Company entered into a trust preferred securities transaction pursuant to which it issued $10,310,000 aggregate principal amount of subordinated debt securities due in 2034. To effect the transaction, the Company formed a Delaware statutory trust, Amerisafe Capital Trust I (ACT I). ACT I issued $10,000,000 of preferred securities to investors and $310,000 of common securities to the Company. ACT I used the proceeds from these issuances to purchase the subordinated debt securities. The Company pays interest on its ACT I subordinated debt securities quarterly at a rate equal to LIBOR plus 4.10% per annum (8.9% at December 31, 2008). ACT I pays interest on its preferred securities at the same rate. The Company subordinated debt securities and ACT I preferred securities were repayable on or after January 8, 2009. Payments of principal, interest and premium, if any, on the ACT I preferred securities are guaranteed by the Company.
On April 29, 2004, the Company entered into a second trust preferred securities transaction pursuant to which it issued $25,780,000 aggregate principal amount of subordinated debt securities due in 2034. To effect the transaction, the Company formed a Delaware statutory trust, Amerisafe Capital Trust II (ACT II). ACT II issued $25,000,000 of preferred securities to investors and $780,000 of common securities to the Company. ACT II used the proceeds from these issuances to purchase the subordinated debt securities. The Company pays interest on its ACT II subordinated debt securities quarterly at a rate equal to LIBOR plus 3.80% per annum (5.9% at December 31, 2008). ACT II pays interest on its preferred securities at the same rate. The Company subordinated debt securities and ACT II preferred securities are repayable on or after April 29, 2009. Payments of principal, interest and premium, if any, on the ACT II preferred securities are guaranteed by the Company.
93
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
10. | Loss and Loss Adjustment Expenses |
The following table provides a reconciliation of the beginning and ending reserve balances, net of related amounts recoverable from reinsurers, for 2008, 2007 and 2006:
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(In thousands) | ||||||||||||
Reserves for loss and loss adjustment expenses (LAE) |
$ | 537,403 | $ | 519,178 | $ | 484,485 | ||||||
Less amounts recoverable from reinsurers on unpaid loss and LAE |
74,925 | 106,810 | 120,232 | |||||||||
Reserves for loss and LAE, net of related amounts recoverable from reinsurers, at beginning of year |
462,478 | 412,368 | 364,253 | |||||||||
Add: |
||||||||||||
Provision for loss and LAE for claims occurring in the current year, net of reinsurance |
196,776 | 208,021 | 201,711 | |||||||||
Change in estimated loss and LAE for claims occurring in prior years, net of reinsurance |
(20,387 | ) | (9,490 | ) | (2,227 | ) | ||||||
Incurred losses during the current year, net of reinsurance |
176,389 | 198,531 | 199,484 | |||||||||
Less loss and LAE payments for claims, net of reinsurance, occurring during: |
||||||||||||
Current year |
47,539 | 43,012 | 41,002 | |||||||||
Prior years |
116,631 | 105,409 | 110,367 | |||||||||
164,170 | 148,421 | 151,369 | ||||||||||
Reserves for loss and LAE, net of related amounts recoverable from reinsurers, at end of year |
474,697 | 462,478 | 412,368 | |||||||||
Add amounts recoverable from reinsurers on unpaid loss and LAE |
56,596 | 74,925 | 106,810 | |||||||||
Reserves for loss and LAE |
$ | 531,293 | $ | 537,403 | $ | 519,178 | ||||||
The Companys reserves for loss and loss adjustment expenses, net of amounts recoverable from reinsurers, at December 31, 2007 were decreased in 2008 by $20.4 million. Reserves at December 31, 2006 were decreased in 2007 by $9.5 million, and at December 31, 2005 reserves were decreased in 2006 by $2.2 million. The revisions to the Companys reserves reflect new information gained by claims adjusters in the normal course of adjusting claims and then reflected in the financial statements when the information becomes available. It is typical for more serious claims to take several years to settle and the Company continually revises estimates as more information about claimants medical conditions and potential disability becomes known and the claims get closer to being settled.
The anticipated effect of inflation is implicitly considered when estimating liabilities for loss and loss adjustment expenses. Average severities are projected based on historical trends adjusted for implemented changes in underwriting standards, policy provisions and general economic trends. These anticipated trends are monitored based on actual development and are modified if necessary.
94
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
11. | Statutory Accounting and Regulatory Requirements |
The Companys insurance subsidiaries file financial statements prepared in accordance with statutory accounting principles prescribed or permitted by the insurance regulatory authorities of the states in which the subsidiaries are domiciled. Statutory-basis shareholders capital and surplus at December 31, 2008, 2007 and 2006 of the directly owned insurance subsidiary, AIIC, and the combined statutory-basis net income and realized investment gains for all AMERISAFEs insurance subsidiaries for the three years in the period ended December 31, 2008, were as follows (in thousands):
2008 | 2007 | 2006 | ||||||||
(unaudited) | ||||||||||
Capital and surplus |
$ | 276,338 | $ | 241,022 | $ | 196,017 | ||||
Net income (loss) |
36,975 | 54,620 | 38,591 | |||||||
Realized investment gains (losses) |
(18,856 | ) | 147 | 7,389 |
Property and casualty insurance companies are subject to certain risk-based capital (RBC) requirements specified by the National Association of Insurance Commissioners. Under these requirements, a target minimum amount of capital and surplus maintained by a property/casualty insurance company is determined based on the various risk factors related to it. At December 31, 2008, the capital and surplus of AIIC and its subsidiaries exceeded the minimum RBC requirement.
Pursuant to regulatory requirements, AIIC cannot pay dividends to the Company in excess of the lesser of 10% of statutory surplus, or statutory net income, excluding realized investment gains, for the preceding 12-month period, without the prior approval of the Louisiana Commissioner of Insurance. However, for purposes of this dividend calculation, net income from the previous two calendar years may be carried forward to the extent that it has not already been paid out as dividends. AIIC paid $10.0 million in dividends to the Company in 2008 and $9.0 million in 2007; however, no such dividends were paid to the Company in 2006. Based upon the above described calculation, AIIC could pay to the Company dividends of up to $17.6 million in 2009 without seeking regulatory approval.
12. | Capital Stock |
Common Stock
The Company is authorized to issue 50,000,000 shares of common stock, par value $0.01 per share. At December 31, 2008, there were 18,856,602 shares of common stock issued and outstanding.
On November 21, 2006, the Company completed a secondary public offering of 9,071,576 shares of common stock. All of these shares were offered by existing shareholders. The Company did not receive any of the proceeds from this offering. In connection with the offering, certain selling shareholders converted 250,000 shares of the Companys outstanding Series C convertible preferred stock into 1,214,771 shares of common stock.
At December 31, 2008, 1,214,770 shares of common stock were issuable upon conversion of all outstanding shares of Series C and Series D convertible preferred stock, based on the conversion price on that date of $20.58.
95
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
Non-Voting Common Stock
The Company is authorized to issue 5,000,000 shares of convertible non-voting common stock, par value $0.01 per share. Shares of non-voting common stock are issuable upon conversion of outstanding shares of the Companys Series D convertible preferred stock at the option of the holder of the Series D convertible preferred stock. At the option of the holder, each share of non-voting common stock may be converted at any time into one share of common stock. There were no shares of non-voting common stock outstanding at December 31, 2008 and 2007 or issued during the three-year period ended December 31, 2008.
Series A Preferred Stock
The Company is authorized to issue 1,500,000 shares of Series A preferred stock, par value $0.01 per share, of which 862,924 shares have been canceled and retired and cannot be reissued. No shares of Series A preferred stock were outstanding at December 31, 2008 and 2007.
Series B Preferred Stock
The Company is authorized to issue 1,500,000 shares of Series B preferred stock, par value $0.01 per share. There were no shares of Series B preferred stock outstanding at December 31, 2008 and 2007 or issued during the three-year period ended December 31, 2008.
Series C and Series D Convertible Preferred Stock
The Company is authorized to issue 500,000 shares of convertible preferred stock, par value $0.01 per share, of which 300,000 shares are designated as Series C convertible deferred pay preferred stock and 200,000 shares are designated as Series D non-voting convertible deferred pay preferred stock (collectively, the Convertible Preferred Stock). The terms of the Series C and Series D convertible preferred stock are identical, except that holders of Series C convertible preferred stock are entitled to vote (on an as-converted to common stock basis) on all matters to be voted on by shareholders of the Company.
If holders of two-thirds of the outstanding shares of Convertible Preferred Stock consent to the payment of a dividend by the Company to the holders of common stock or non-voting common stock, holders of Convertible Preferred Stock will receive (on an as-converted to common stock or non-voting common stock basis) a dividend equal to the dividend paid to holders of common stock and non-voting common stock.
The Series C convertible preferred stock is convertible at the option of the holder into shares of common stock at a rate of $100 per share divided by the then-applicable conversion price. The Series D convertible preferred stock is convertible at the option of the holder into shares of non-voting common stock at a rate of $100 per share divided by the then-applicable conversion price. In turn, each share of non-voting common stock is convertible at the option of the holder into one share of common stock. As of December 31, 2008, the conversion price was $20.58 per share and the outstanding shares of Convertible Preferred Stock were convertible into 1,214,770 shares of common stock.
Subject to certain exceptions, the conversion price will be adjusted if the Company issues or sells shares of common stock or non-voting common stock (including options to acquire shares and securities convertible into or exchangeable for shares of common stock or non-voting common stock) without consideration or for a consideration per share less than the market price of the common stock or non-voting common stock in effect immediately prior to the issuance or sale. In that event, the conversion price will be reduced to a conversion price
96
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
(calculated to the nearest cent) determined by dividing (1) an amount equal to the sum of (a) the number of shares of common stock and non-voting common stock outstanding immediately prior to the issuance or sale (including as outstanding all shares of common stock and non-voting common stock issuable upon conversion of outstanding Convertible Preferred Stock) multiplied by the then-existing market price of the common stock; plus (b) the consideration, if any, received by the Company upon the issuance or sale, by (2) the total number of shares of common stock and non-voting common stock outstanding immediately after such issuance or sale (including as outstanding all shares of common stock and non-voting common stock issuable upon conversion of outstanding Convertible Preferred Stock, without giving effect to any adjustment in the number of shares issuable by reason of such issue and sale).
If the Company issues or sells shares of common stock or non-voting common stock for cash, the cash consideration received will be deemed to be the amount received by the Company, without deduction for any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company. If the Company issues or sells shares of common stock or non-voting common stock for a consideration other than cash, the amount of the consideration other than cash received shall be deemed to be the fair value of such consideration as determined in good faith by the board, without deduction for any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company.
No adjustments to the conversion price are required for issuances of shares of common stock or non-voting common stock upon any conversion of Convertible Preferred Stock, under the Companys equity incentive plans or in connection with any acquisition by the Company.
The Convertible Preferred Stock is automatically convertible into shares of common stock upon consummation of a public offering of shares of common stock with gross proceeds of at least $40,000,000 to the Company at a price to the public of at least $651.60 per share (subject to adjustment to reflect stock splits, combinations and stock dividends). In addition, the Convertible Preferred Stock is convertible at the Companys option upon consummation of a public offering of its equity securities if the closing price of the common stock for the 20 trading days prior to consummation results in, or concurrently with the disposition of substantially all of the assets of the Company or a change of control of more than 50% of the voting power of all outstanding shares of voting stock, other than through a public offering of equity securities (collectively, a Change of Control), if the proceeds from the transaction result in, a value for the outstanding common stock of at least $651.60 per share.
The Company may redeem all, but not less than all, of the outstanding shares of Convertible Preferred Stock at a price per share of $103.50 plus accrued and unpaid dividends. Upon a Change of Control, the Convertible Preferred Stock is mandatorily redeemable at the Redemption Price upon a Change of Control.
The Convertible Preferred Stock is classified outside of permanent equity because the shares are mandatorily redeemable at $100 plus the cash value (calculated at the rate of $100 per share) of all accrued and unpaid dividends per share from the most recent quarterly dividend payment date to the redemption date.
No shares of Convertible Preferred Stock were issued during the three-year period ended December 31, 2008. On November 21, 2006, 250,000 shares of Series C convertible preferred stock were converted into 1,214,771 shares of common stock. The 250,000 shares of Series C preferred stock exchanged were canceled and retired and cannot be reissued.
At December 31, 2008, there were 50,000 shares of Series C convertible preferred stock and 200,000 shares of Series D convertible preferred stock issued and outstanding.
97
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
Series E Preferred Stock
The Company is authorized to issue 500,000 shares of Series E preferred stock, par value $0.01 per share, of which 317,744 shares have been redeemed by the Company. Theses shares have been canceled and retired and cannot be reissued.
Junior Preferred Stock
The Companys board has the authority, without further action by the shareholders, to issue up to 10,000,000 shares of junior preferred stock, par value $0.01 per share, in one or more series. In addition, the board may fix the rights, preferences and privileges of any series of junior preferred stock it may determine to issue, subject to the rights, preferences and privileges of the Convertible Preferred Stock. There were no shares of junior preferred stock outstanding at December 31, 2008 and 2007 or issued during the three-year period ended December 31, 2008.
Liquidation Provisions
In the event of any liquidation or dissolution of the Company, the holders of Convertible Preferred Stock will receive $100 for each outstanding share before any distributions are made to holders of any other then-outstanding series of preferred stock, junior preferred stock, common stock or non-voting common stock. Any remaining net assets will be distributed first to holders of common stock and non-voting common stock, subject to any other preferential amounts payable to holders of any then-outstanding series of preferred stock or junior preferred stock.
13. | Stock Options and Restricted Stock |
2005 Incentive Plan
The AMERISAFE 2005 Equity Incentive Plan (the 2005 Incentive Plan) is administered by the Compensation Committee of the Board and is designed to provide incentive compensation to executive officers and other key management personnel. The 2005 Incentive Plan permits awards in the form of incentive stock options, as defined in Section 422(b) of the Internal Revenue Code of 1986, non-qualified stock options, restricted shares of common stock and restricted stock units. The maximum number of shares of common stock that may be issued pursuant to option grants and restricted stock and restricted stock unit awards under the 2005 Incentive Plan is 1,900,000 shares, subject to the authority of the Board to adjust this amount in the event of a merger, consolidation, reorganization, stock dividend, stock split, combination of shares, recapitalization or similar transaction affecting the common stock. Officers, other key employees, consultants and other persons performing services for the Company that are equivalent to those typically provided by Company employees are eligible to participate in the 2005 Incentive Plan. However, only employees (including Company officers) can receive grants of incentive stock options.
Stock options granted under the 2005 Incentive Plan have an exercise price of not less than 100% of the fair value of the common stock on the date of grant. However, any stock options granted to holders of more than 10% of the Companys voting stock will have an exercise price of not less than 110% of the fair value of the common stock on the date of grant. Stock option grants are exercisable, subject to vesting requirements determined by the Compensation Committee, for periods of up to ten years from the date of grant, except for any grants to holders of more than 10% of the Companys voting stock, which will have exercise periods limited to a maximum of five years. Stock options generally expire 90 days after the cessation of an optionees service as an employee. However, in the case of an optionees death or disability, the unexercised portion of a stock option remains exercisable for up to one year after the optionees death or disability. Stock options granted under the 2005 Incentive Plan are not transferable, except by will or the laws of descent and distribution.
98
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
The Company uses the Black-Scholes-Merton option pricing model to estimate the fair value of each option on the date of grant. The expected terms of options are developed by considering the Companys historical attrition rate for those employees at the officer level, who are eligible to receive options. Further, the Company aggregates individual awards into homogenous groups based upon grant date. Expected volatility is estimated using daily historical volatility for six companies within the property and casualty insurance sector. The Company believes that historical volatility of this peer group is currently the best estimate of expected volatility of the market price of the Companys common shares. The dividend yield is assumed to be zero as the Company has not historically paid cash dividends nor expects to pay cash dividends in the near future. The risk-free interest rate is the yield on the grant date of U.S. Treasury zero coupon securities with a maturity comparable to the expected term of the options.
As of December 31, 2008, the Company had made awards of stock options under the 2005 Incentive Plan on September 1, 2006, September 25, 2006, March 2, 2007, January 24, 2008 and November 10, 2008. At December 31, 2008, 280,609 shares of common stock were available for future awards under the 2005 Incentive Plan.
The assumptions used in the Black-Scholes-Merton pricing model for options granted on the above option grant dates were as follows:
2008 | 2007 | 2006 | ||||
Expected Volatility |
23.5% 29.0% | 27.1% | 28.0% 28.2% | |||
Weighted-Average Risk-Free Interest Rate |
3.1% 3.2% | 4.5% | 4.5% 4.7% | |||
Weighted-Average Expected Life |
6.5 years | 6.5 years | 6.5 years | |||
Expected Dividend Yield |
0.0% | 0.0% | 0.0% |
The following table summarizes information about the stock options outstanding under the 2005 Incentive Plan at December 31, 2006, 2007 and 2008:
Shares |
Weighted-
Average Exercise Price |
Weighted-
Average Remaining Contractual Life (in years) |
||||||
Outstanding at January 1, 2006 |
1,548,500 | $ | 9.00 | 9.9 | ||||
Granted |
100,000 | 10.46 | | |||||
Exercised |
(47,500 | ) | 9.00 | | ||||
Canceled, forfeited, or expired |
(209,000 | ) | 9.00 | | ||||
Outstanding at December 31, 2006 |
1,392,000 | 9.10 | 8.9 | |||||
Exercisable at December 31, 2006 |
258,400 | 9.00 | 8.9 | |||||
Outstanding at January 1, 2007 |
1,392,000 | 9.10 | 8.9 | |||||
Granted |
50,000 | 17.65 | | |||||
Exercised |
(90,049 | ) | 9.00 | | ||||
Canceled, forfeited, or expired |
| | | |||||
Outstanding at December 31, 2007 |
1,351,951 | 9.43 | 9.0 | |||||
Exercisable at December 31, 2007 |
446,751 | 9.00 | 8.9 | |||||
Outstanding at January 1, 2008 |
1,351,951 | 9.43 | 9.0 | |||||
Granted |
95,000 | 15.23 | | |||||
Exercised |
(27,896 | ) | 9.00 | | ||||
Canceled, forfeited, or expired |
| | | |||||
Outstanding at December 31, 2008 |
1,419,055 | 9.82 | 8.2 | |||||
Exercisable at December 31, 2008 |
707,255 | 9.20 | 7.9 | |||||
99
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
The weighted-average grant date fair values of options granted during 2008, 2007 and 2006 were $5.38, $6.71 and $4.06, respectively. Cash received from option exercises was $251,000, $810,000 and $428,000 in 2008, 2007 and 2006, respectively. Total tax benefits realized for tax deductions from option exercises were $45,000, $170,000 and $10,500 in 2008, 2007 and 2006, respectively. The total intrinsic value of options exercised during 2008, 2007 and 2006 was $237,000, $791,000 and $200,000, respectively. The fair value of shares vested during 2008, 2007 and 2006 was $1,072,000, $1,005,000 and $1,093,000, respectively. The aggregate intrinsic value of vested shares outstanding as of December 31, 2008, 2007 and 2006 was $8,010,000, $2,879,000 and $1,669,000, respectively.
In February 2008, the compensation committee of the Board approved incentive compensation awards to each of the Companys executive officers for services rendered in 2007. The awards were composed of cash bonuses and grants of restricted common stock. The restricted stock awards were made pursuant to the Companys 2005 Incentive Plan and vest on the first anniversary of the date of grant. The fair value of the restricted stock at the date of grant was $121,000.
The following table summarizes information about the restricted stock outstanding under the 2005 Incentive Plan at December 31, 2008:
Shares |
Weighted-Average
Grant-Date Fair Value per Share |
|||||
Nonvested balance at January 1, 2006 |
| $ | | |||
Granted |
15,946 | 10.66 | ||||
Vested |
| | ||||
Forfeited |
(3,283 | ) | 10.66 | |||
Nonvested balance at December 31, 2006 |
12,663 | 10.66 | ||||
Granted |
13,030 | 17.65 | ||||
Vested |
(12,663 | ) | 10.66 | |||
Forfeited |
| |||||
Nonvested balance at December 31, 2007 |
13,030 | 17.65 | ||||
Granted |
9,918 | 13.15 | ||||
Vested |
(13,030 | ) | 17.65 | |||
Forfeited |
| |||||
Nonvested balance at December 31, 2008 |
9,198 | 13.15 | ||||
The Company recognized compensation expense of $1,177,000, $973,000 and $850,000 in 2008, 2007 and 2006, respectively, related to the 2005 Incentive Plan.
2005 Restricted Stock Plan
The AMERISAFE 2005 Non-Employee Director Restricted Stock Plan (the 2005 Restricted Stock Plan) is administered by the Compensation Committee of the Board and provides for the automatic grant of restricted stock awards to non-employee directors of the Company. Restricted stock awards to non-employee directors are generally subject to terms including non-transferability, immediate vesting upon death or total disability of a director, forfeiture of unvested shares upon termination of service by a director and acceleration of vesting upon a change of control of the Company. The maximum number of shares of common stock that may be issued pursuant to restricted stock awards under the 2005 Restricted Stock Plan is 50,000 shares, subject to the authority
100
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
of the Board to adjust this amount in the event of a merger, consolidation, reorganization, stock split, combination of shares, recapitalization or similar transaction affecting the common stock. At December 31, 2008, there were 29,227 shares of common stock available for future awards under the 2005 Restricted Stock Plan.
Under the 2005 Restricted Stock Plan, each non-employee Director is automatically granted a restricted stock award for a number of shares equal to $15,000 divided by the closing price of the Companys common stock on the date of the annual meeting of shareholders at which the non-employee Director is elected or is continuing as a member of the Board. Each restricted stock award vests on the date of the next annual meeting of shareholders following the date of grant, subject to the continued service of the non-employee Director.
As of December 31, 2008, there were 6,468 shares of restricted stock outstanding under the 2005 Restricted Stock Plan, all of which will vest on the date of the annual meeting of shareholders in 2009.
The following table summarizes information about the restricted stock outstanding under the 2005 Restricted Stock Plan at December 31, 2008:
Shares |
Weighted-Average
Grant-Date Fair Value per Share |
|||||
Nonvested balance at January 1, 2006 |
3,332 | $ | 9.00 | |||
Granted |
6,110 | 12.27 | ||||
Vested |
(3,332 | ) | 9.00 | |||
Forfeited |
| | ||||
Nonvested balance at December 31, 2006 |
6,110 | 12.27 | ||||
Granted |
6,085 | 17.66 | ||||
Vested |
(5,030 | ) | 12.42 | |||
Forfeited |
(1,222 | ) | 12.27 | |||
Nonvested balance at December 31, 2007 |
5,943 | 17.66 | ||||
Granted |
6,468 | 16.22 | ||||
Vested |
(5,943 | ) | 17.66 | |||
Forfeited |
| | ||||
Nonvested balance at December 31, 2008 |
6,468 | 16.22 | ||||
The Company recognized compensation expense of $108,000 in 2008, $70,000 in 2007 and $72,000 in 2006 related to the 2005 Restricted Stock Plan. Total tax expense realized for tax from vesting of restricted stock was $3,000 in 2008. In 2007 and 2006, total tax benefits realized for tax deductions from vesting of restricted stock was $9,000 and $4,000, respectively.
14. | Earnings Per Share |
Diluted earnings per share includes common shares assumed issued under the treasury stock method, which reflects the potential dilution that would occur if any outstanding options are exercised. Diluted earnings per share also includes the if converted method for participating securities if the result is dilutive. The two-class method of calculating diluted earnings per share is used whether the if converted result is dilutive or anti-dilutive.
101
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
The calculation of basic and diluted EPS for the years ended December 31, 2008, 2007 and 2006 are presented below.
For the Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(In thousands, except per share amounts) | ||||||||||||
Basic EPS: |
||||||||||||
Net income |
$ | 43,846 | $ | 50,219 | $ | 37,358 | ||||||
Preferred stock dividends |
| | | |||||||||
Income available to common shareholders |
$ | 43,846 | $ | 50,219 | $ | 37,358 | ||||||
Amount allocable to common shareholders |
94.0 | % | 94.0 | % | 88.6 | % | ||||||
Income allocable to common shareholders |
$ | 41,215 | $ | 47,211 | $ | 33,099 | ||||||
Weighted-average common shares outstanding |
18,815 | 18,767 | 17,580 | |||||||||
Basic earnings per share |
$ | 2.19 | $ | 2.52 | $ | 1.88 | ||||||
Diluted EPS: |
||||||||||||
Income allocable to common shareholders |
$ | 41,215 | $ | 47,211 | $ | 33,099 | ||||||
Dividends on participating securities |
| | | |||||||||
Income allocable to common shareholders after assumed conversions |
$ | 41,215 | $ | 47,211 | $ | 33,099 | ||||||
Weighted average common shares outstanding |
18,815 | 18,767 | 17,580 | |||||||||
Diluted effect: |
||||||||||||
Stock options |
304 | 295 | | |||||||||
Restricted stock |
23 | 17 | 15 | |||||||||
Weighted average diluted shares outstanding |
19,142 | 19,079 | 17,595 | |||||||||
Diluted earnings per share |
$ | 2.15 | $ | 2.47 | $ | 1.88 | ||||||
102
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
The table below sets forth the calculation of the percentage of net income allocable to common shareholders, or the portion allocable to common shareholders. Under the two-class method, unvested stock options, and out-of-money vested stock options are not considered to be participating securities.
Years Ended | |||||||||
2008 | 2007 | 2006 | |||||||
Numerator: |
|||||||||
Basic weighted average common shares |
18,814,508 | 18,767,210 | 17,579,829 | ||||||
Add: Other common shares eligible for common dividends: |
|||||||||
Weighted average restricted shares and stock options (including tax benefit component) |
327,180 | 312,170 | 14,907 | ||||||
Weighted average participating common shares |
19,141,688 | 19,079,380 | 17,594,736 | ||||||
Denominator: |
|||||||||
Weighted average participating common shares |
19,141,688 | 19,079,380 | 17,594,736 | ||||||
Add: Other classes of securities, including contingently issuable common shares and convertible preferred shares: |
|||||||||
Weighted average common shares issuable upon conversion of Series C preferred shares |
242,953 | 242,953 | 1,301,301 | ||||||
Weighted average common shares issuable upon conversion of Series D preferred shares |
971,817 | 971,817 | 971,817 | ||||||
Weighted average participating shares |
20,356,458 | 20,294,150 | 19,867,854 | ||||||
Portion allocable to common shareholders |
94.0 | % | 94.0 | % | 88.6 | % |
103
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
15. | Other Comprehensive Income |
Pre-Tax
Amount |
Tax Expense |
Net-of-Tax
Amount |
||||||||||
(In thousands) | ||||||||||||
December 31, 2008 |
||||||||||||
Unrealized loss on securities: |
||||||||||||
Unrealized loss on available-for-sale securities |
$ | (271 | ) | $ | (95 | ) | $ | (176 | ) | |||
Less amortization of differences between fair value and amortized cost for fixed maturity security transfer |
(1,286 | ) | (450 | ) | (836 | ) | ||||||
Less reclassification adjustment for losses realized in net income |
452 | 158 | 294 | |||||||||
Net unrealized loss |
(1,105 | ) | (387 | ) | (718 | ) | ||||||
Other comprehensive income |
$ | (1,105 | ) | $ | (387 | ) | $ | (718 | ) | |||
December 31, 2007 |
||||||||||||
Unrealized loss on securities: |
||||||||||||
Unrealized loss on available-for-sale securities |
$ | (2,686 | ) | $ | (940 | ) | $ | (1,746 | ) | |||
Less amortization of differences between fair value and amortized cost for fixed maturity security transfer |
(1,532 | ) | (536 | ) | (996 | ) | ||||||
Less reclassification adjustment for losses realized in net income |
425 | 148 | 277 | |||||||||
Net unrealized loss |
(3,793 | ) | (1,328 | ) | (2,465 | ) | ||||||
Other comprehensive income |
$ | (3,793 | ) | $ | (1,328 | ) | $ | (2,465 | ) | |||
December 31, 2006 |
||||||||||||
Unrealized gain on securities: |
||||||||||||
Unrealized gain on available-for-sale securities |
$ | 1,983 | $ | 694 | $ | 1,289 | ||||||
Less amortization of differences between fair value and amortized cost for fixed maturity security transfer |
(1,637 | ) | (573 | ) | (1,064 | ) | ||||||
Less reclassification adjustment for losses realized in net income |
(3,860 | ) | (1,351 | ) | (2,509 | ) | ||||||
Net unrealized loss |
(3,514 | ) | (1,230 | ) | (2,284 | ) | ||||||
Other comprehensive income |
$ | (3,514 | ) | $ | (1,230 | ) | $ | (2,284 | ) | |||
16. | Employee Benefit Plan |
The Companys 401(k) benefit plan is available to all employees. The Company matches up to 2% of employee compensation for participating employees, subject to certain limitations. Employees are fully vested in employer contributions to this plan after five years. Contributions to this plan were $311,000 in 2008, $296,000 in 2007 and $275,000 in 2006.
17. | Commitments and Contingencies |
The Company is a party to various legal actions arising principally from claims made under insurance policies and contracts. Those actions are considered by the Company in estimating reserves for loss and loss adjustment expenses. In the opinion of management, the ultimate disposition of these matters will not have a material adverse effect on the Companys consolidated financial position or results of operations.
The Company provides workers compensation insurance in several states that maintain second-injury funds. Incurred losses on qualifying claims that exceed certain amounts may be recovered from these state funds. There is no assurance that the applicable states will continue to provide funding under these programs.
104
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
The Company manages risk on certain long-duration claims by settling these claims through the purchase of annuities from unaffiliated carriers. In the event these carriers are unable to meet their obligations under these contracts, the Company could be liable to the claimants. The following table summarizes (in thousands) the fair value of the annuities at December 31, 2008, that the Company has purchased to satisfy its obligations. The A.M. Best Company rating is shown parenthetically.
Life Insurance Company |
Statement Value
of Annuities Exceeding 1% of Statutory Surplus |
||
American General Life Insurance (A) |
$ | 21,203 | |
Pacific Life and Annuity Company (A++) |
10,129 | ||
New York Life Insurance Company (A++) |
8,134 | ||
Aviva Life Insurance Company (A+) |
7,758 | ||
Metropolitan Life Insurance Company (A+) |
7,052 | ||
Genworth Life Insurance Company (A) |
5,672 | ||
Liberty Life Assurance Company of Boston (A) |
4,976 | ||
Monumental Life Insurance Company (A+) |
3,129 | ||
John Hancock Life Insurance Company (A++) |
2,778 | ||
Other |
10,992 | ||
$ | 81,823 | ||
Substantially all of the annuities are issued or guaranteed by life insurance companies that have an A.M. Best Company rating of A (Excellent) or better.
The Company leases equipment and office space under noncancelable operating leases. At December 31, 2008, future minimum lease payments are as follows (in thousands):
2009 |
$ | 616 | |
2010 |
176 | ||
2011 |
31 | ||
$ | 823 | ||
Rental expense was $804,000 in 2008, $921,000 in 2007 and $1.4 million in 2006.
18. | Concentration of Operations |
The Company derives its revenues primarily from its operations in the workers compensation insurance line of business. Total net premiums earned for the different lines of business are shown below:
2008 | 2007 | 2006 | ||||||||||||||||
Dollars | Percent | Dollars | Percent | Dollars | Percent | |||||||||||||
(Dollars in thousands) | ||||||||||||||||||
Workers compensation |
$ | 288,037 | 99.5 | % | $ | 305,366 | 99.5 | % | $ | 297,227 | 99.3 | % | ||||||
General liability |
1,456 | 0.5 | % | 1,540 | 0.5 | % | 2,075 | 0.7 | % | |||||||||
Total net premiums earned |
$ | 289,493 | 100.0 | % | $ | 306,906 | 100.0 | % | $ | 299,303 | 100.0 | % | ||||||
105
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
Net premiums earned during 2008, 2007 and 2006 for the top ten states in 2008 and all others are shown below:
2008 | 2007 | 2006 | ||||||||||||||||
Dollars | Percent | Dollars | Percent | Dollars | Percent | |||||||||||||
(Dollars in thousands) | ||||||||||||||||||
Georgia |
$ | 27,609 | 9.5 | % | $ | 29,393 | 9.6 | % | $ | 28,800 | 9.6 | % | ||||||
Louisiana |
26,361 | 9.1 | 31,756 | 10.3 | 26,120 | 8.7 | ||||||||||||
North Carolina |
26,287 | 9.1 | 28,304 | 9.2 | 19,442 | 6.5 | ||||||||||||
Oklahoma |
18,836 | 6.5 | 13,615 | 4.5 | 12,993 | 4.3 | ||||||||||||
Illinois |
17,643 | 6.1 | 16,521 | 5.4 | 15,079 | 5.0 | ||||||||||||
Virginia |
16,867 | 5.8 | 18,348 | 6.0 | 17,643 | 5.9 | ||||||||||||
Pennsylvania |
15,265 | 5.3 | 14,215 | 4.6 | 14,941 | 5.0 | ||||||||||||
Texas |
12,971 | 4.5 | 14,275 | 4.7 | 16,562 | 5.5 | ||||||||||||
South Carolina |
12,183 | 4.2 | 14,292 | 4.7 | 14,122 | 4.7 | ||||||||||||
Mississippi |
11,393 | 3.9 | 13,948 | 4.5 | 12,313 | 4.1 | ||||||||||||
All others |
104,078 | 36.0 | 112,239 | 36.5 | 121,288 | 40.7 | ||||||||||||
Total net premiums earned |
$ | 289,493 | 100.0 | % | $ | 306,906 | 100.0 | % | $ | 299,303 | 100.0 | % | ||||||
19. | Fair Values of Financial Instruments |
The Company determines fair value amounts for financial instruments using available third-party market information. When such information is not available, the Company determines the fair value amounts using appropriate valuation methodologies. Nonfinancial instruments such as real estate, property and equipment, deferred policy acquisition costs, deferred income taxes and loss and loss adjustment expense reserves are excluded from the fair value disclosure.
Cash and Cash Equivalents The carrying amounts reported in the accompanying consolidated balance sheets for these financial instruments approximate their fair values.
Investments The fair values for fixed maturity and equity securities are based on prices obtained from a third-party investment manager.
Subordinated Debt Securities The carrying value of the Companys subordinated debt securities approximates the estimated fair value of the obligations as the interest rates on these securities are comparable to rates that the Company believes it presently would incur on comparable borrowings.
106
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
The following table summarizes the carrying or reported values and corresponding fair values for financial instruments:
December 31, | ||||||||||||
2008 | 2007 | |||||||||||
Carrying
Amount |
Fair
Value |
Carrying
Amount |
Fair
Value |
|||||||||
(In thousands) | ||||||||||||
Assets: |
||||||||||||
Fixed maturity securities |
$ | 680,276 | $ | 664,084 | $ | 672,116 | $ | 672,462 | ||||
Equity securities |
24,431 | 24,431 | 39,629 | 39,629 | ||||||||
Cash and cash equivalents |
95,266 | 95,266 | 47,329 | 47,329 | ||||||||
Liabilities: |
||||||||||||
Subordinated debt securities: |
||||||||||||
ACT I |
10,310 | 10,310 | 10,310 | 10,310 | ||||||||
ACT II |
25,780 | 25,780 | 25,780 | 25,780 |
Effective January 1, 2008, the Company adopted SFAS No. 157, Fair Value Measurements (SFAS No. 157), which defines fair value, establishes a framework for measuring fair value and expands disclosures about fair value measurements. In February 2008, the FASB issued Staff Position (FSP) 157-2, Effective Date of FASB Statement SFAS No. 157 (FSP 157-2). This FSP delays the effective date of SFAS No. 157 for all non-financial assets and non-financial liabilities, except those that are recognized or disclosed at fair value on a recurring basis (at least annually), to fiscal years beginning after November 15, 2008, and interim periods within those fiscal years. The Company does not expect the adoption of FSP 157-2 to have a material effect on its consolidated financial statements or results of operations.
The Company determined the fair values of its financial instruments based on the fair value hierarchy established in SFAS No. 157, which requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. The standard defines fair value, describes three levels of inputs that may be used to measure fair value, and expands disclosures about fair value measurements.
Fair value is defined in SFAS No. 157 as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Fair value is the price to sell an asset or transfer a liability and, therefore, represents an exit price, not an entry price. Fair value is the exit price in the principal market (or, if lacking a principal market, the most advantageous market) in which the reporting entity would transact. Fair value is a market-based measurement, not an entity-specific measurement, and, as such, is determined based on the assumptions that market participants would use in pricing the asset or liability. The exit price objective of a fair value measurement applies regardless of the reporting entitys intent and/or ability to sell the asset or transfer the liability at the measurement date.
SFAS No. 157 requires the use of valuation techniques that are consistent with the market approach, the income approach and/or the cost approach. The market approach uses prices and other relevant information generated by market transactions involving identical or comparable assets and liabilities. The income approach uses valuation techniques to convert future amounts, such as cash flows or earnings, to a single present amount on a discounted basis. The cost approach is based on the amount that currently would be required to replace the service capacity of an asset, also known as current replacement cost. Valuation techniques used to measure fair value are to be consistently applied.
107
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
In SFAS No. 157, inputs refer broadly to the assumptions that market participants would use in pricing the asset or liability, including assumptions about risk, for example, the risk inherent in a particular valuation technique used to measure fair value (such as a pricing model) and/or the risk inherent in the inputs to the valuation technique. Inputs may be observable or unobservable:
|
Observable inputs are inputs that reflect the assumptions market participants would use in pricing the asset or liability developed based on market data obtained from sources independent of the reporting entity. |
|
Unobservable inputs are inputs that reflect the reporting entitys own assumptions about the assumptions market participants would use in pricing the asset or liability developed based on the best information available in the circumstances. |
Valuation techniques used to measure fair value are intended to maximize the use of observable inputs and minimize the use of unobservable inputs. SFAS No. 157 establishes a fair value hierarchy that prioritizes the use of inputs used in valuation techniques into the following three levels:
|
Level 1 inputs are quoted prices (unadjusted) in active markets for identical assets or liabilities that the reporting entity has the ability to access at the measurement date. |
|
Level 2 inputs are inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly. Level 2 inputs include quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, inputs other than quoted prices that are observable for the asset or liability, or inputs that are derived principally from or corroborated by observable market data. |
|
Level 3 inputs are unobservable inputs for the asset or liability. Unobservable inputs are to be used to measure fair value to the extent that observable inputs are not available, thereby allowing for situations in which there is little, if any, market activity for the asset or liability at the measurement date. |
In general, fair value is based upon quoted market prices, where available. If such quoted market prices are not available, fair value is based upon internally developed models that primarily use, as inputs, observable market-based parameters.
Securities classified by the Company as available-for-sale investments were reported at fair value utilizing mostly Level 1 inputs. The fair value measurements consider quoted prices in active markets for identical assets. Level 2 inputs such as previous day and subsequent day trade prices were used if a trade for the security was not made on the date of measurement.
At December 31, 2008, assets and liabilities measured at fair value on a recurring basis are summarized below:
Level 1
Inputs |
Level 2
Inputs |
Level 3
Inputs |
Total Fair
Value |
|||||||||
Securities available for sale |
$ | 23,341 | $ | | $ | | $ | 23,341 | ||||
108
AMERISAFE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2008
In addition, the Company held common securities in unconsolidated variable interest entities of $1,090,000, which are carried at cost.
At December 31, 2008, all fixed maturity securities were classified as held-to-maturity and carried at amortized cost.
In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial Assets and Financial Liabilities (SFAS No. 159), which permits entities to choose to measure many financial instruments and certain other items at fair value, and establishes presentation and disclosure requirements for similar assets and liabilities measured at fair value. SFAS No. 159 was effective for fiscal years beginning after November 15, 2007. The Company did not elect the fair value option for any financial assets or financial liabilities as of January 1, 2008, the effective date of the standard and has not elected the option for any financial assets or financial liabilities subsequent to the effective date.
20. | Quarterly Financial Data (Unaudited) |
The following table represents unaudited quarterly financial data for the years ended December 31, 2008 and 2007.
Three Months Ended | ||||||||||||||
March 31 | June 30 | September 30 | December 31 | |||||||||||
(In thousands, except per share amounts) | ||||||||||||||
2008 |
||||||||||||||
Premiums earned |
$ | 74,300 | $ | 72,143 | $ | 71,284 | $ | 71,766 | ||||||
Net investment income |
7,817 | 7,405 | 7,712 | 8,064 | ||||||||||
Net realized gains (losses) on investments |
8 | 53 | (2,921 | ) | (15,996 | ) | ||||||||
Total revenues |
82,266 | 79,830 | 76,275 | 64,006 | ||||||||||
Income before income taxes |
16,739 | 17,585 | 19,050 | 10,714 | ||||||||||
Net income |
11,923 | 12,827 | 13,359 | 5,737 | ||||||||||
Net income allocable to common shareholders |
11,208 | 12,057 | 12,571 | 5,399 | ||||||||||
Earnings per share: |
||||||||||||||
Basic |
0.60 | 0.64 | 0.67 | 0.29 | ||||||||||
Diluted |
0.59 | 0.63 | 0.65 | 0.28 | ||||||||||
Comprehensive income |
9,313 | 11,353 | 11,680 | 10,782 | ||||||||||
2007 |
||||||||||||||
Premiums earned |
$ | 75,881 | $ | 77,106 | $ | 79,637 | $ | 74,282 | ||||||
Net investment income |
6,925 | 7,433 | 7,924 | 7,926 | ||||||||||
Net realized gains on investments |
| 36 | 91 | 20 | ||||||||||
Total revenues |
82,945 | 84,713 | 88,293 | 82,368 | ||||||||||
Income before income taxes |
11,885 | 15,629 | 16,347 | 27,234 | ||||||||||
Net income |
8,418 | 11,362 | 11,819 | 18,620 | ||||||||||
Net income allocable to common shareholders |
7,913 | 10,683 | 11,112 | 17,505 | ||||||||||
Earnings per share: |
||||||||||||||
Basic |
0.42 | 0.57 | 0.59 | 0.93 | ||||||||||
Diluted |
0.42 | 0.56 | 0.58 | 0.92 | ||||||||||
Comprehensive income |
8,216 | 11,740 | 11,552 | 16,246 |
109
S
chedule II. Condensed Financial
AMERISAFE, INC.
CONDENSED BALANCE SHEETS
December 31, | ||||||
2008 | 2007 | |||||
(In thousands) | ||||||
Assets |
||||||
Investments: |
||||||
Equity securitiesavailable-for-sale, at fair value |
$ | 3,038 | $ | 1,090 | ||
Investment in subsidiaries |
288,385 | 254,647 | ||||
Total investments |
291,423 | 255,737 | ||||
Cash and cash equivalents |
20,251 | 11,731 | ||||
Deferred income taxes |
757 | 433 | ||||
Notes receivable from subsidiaries |
| 560 | ||||
Property and equipment, net |
2,523 | 2,341 | ||||
Other assets |
617 | 838 | ||||
$ | 315,571 | $ | 271,640 | |||
Liabilities, redeemable preferred stock and shareholders equity |
||||||
Liabilities: |
||||||
Accounts payable and other liabilities |
$ | 1,083 | $ | 1,980 | ||
Note payable to subsidiaries |
126 | | ||||
Subordinated debt securities |
36,090 | 36,090 | ||||
Total liabilities |
37,299 | 38,070 | ||||
Redeemable preferred stock: |
||||||
Series C convertible$0.01 par value, $100 per share redemption value: |
||||||
Authorized shares300,000; issued and outstanding shares50,000 in 2008 and 2007 |
5,000 | 5,000 | ||||
Series D convertible$0.01 par value, $100 per share redemption value: |
||||||
Authorized shares200,000; issued and outstanding shares200,000 in 2008 and 2007 |
20,000 | 20,000 | ||||
25,000 | 25,000 | |||||
Shareholders equity |
253,272 | 208,570 | ||||
$ | 315,571 | $ | 271,640 | |||
110
Schedule II. Condensed Financial Information of Registrant(Continued)
AMERISAFE, INC.
CONDENSED STATEMENTS OF INCOME
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(In thousands) | ||||||||||||
Revenues |
||||||||||||
Net investment income |
$ | 612 | $ | 1,028 | $ | 1,300 | ||||||
Fee and other income |
7,157 | 8,318 | 8,268 | |||||||||
Total revenues |
7,769 | 9,346 | 9,568 | |||||||||
Expenses |
||||||||||||
Other operating costs |
5,847 | 5,789 | 7,217 | |||||||||
Interest expense |
2,763 | 3,815 | 3,971 | |||||||||
Total expenses |
8,610 | 9,604 | 11,188 | |||||||||
(Loss) before income taxes and equity in earnings of subsidiaries |
(841 | ) | (258 | ) | (1,620 | ) | ||||||
Income tax expense (benefit) |
(286 | ) | (82 | ) | 95 | |||||||
(Loss) before equity in earnings of subsidiaries |
(555 | ) | (176 | ) | (1,715 | ) | ||||||
Equity in net income of subsidiaries |
44,401 | 50,395 | 39,073 | |||||||||
Net income |
$ | 43,846 | $ | 50,219 | $ | 37,358 | ||||||
111
Schedule II. Condensed Financial Information of Registrant(Continued)
AMERISAFE, INC.
CONDENSED STATEMENTS OF CASH FLOWS
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(In thousands) | ||||||||||||
Operating activities |
||||||||||||
Net cash provided by (used in) operating activities |
$ | 1,497 | $ | (7,712 | ) | $ | 1,030 | |||||
Investing activities |
||||||||||||
Purchases of investments |
(3,577 | ) | | | ||||||||
Proceeds from sales of investments |
1,545 | | | |||||||||
Purchases of property and equipment |
(1,235 | ) | (1,339 | ) | (1,328 | ) | ||||||
Capital contributions from (to) subsidiary |
10,000 | 8,500 | | |||||||||
Net cash provided by (used in) investing activities |
6,733 | 7,161 | (1,328 | ) | ||||||||
Financing activities |
||||||||||||
Proceeds from stock option exercise |
251 | 810 | 428 | |||||||||
Tax benefit from share-based payments |
39 | 179 | 14 | |||||||||
Net cash provided by financing activities |
290 | 989 | 442 | |||||||||
Change in cash and cash equivalents |
8,520 | 438 | 144 | |||||||||
Cash and cash equivalents at beginning of year |
11,731 | 11,293 | 11,149 | |||||||||
Cash and cash equivalents at end of year |
$ | 20,251 | $ | 11,731 | $ | 11,293 | ||||||
112
S
chedule VI. Supplemental
AMERISAFE, INC. AND SUBSIDIARIES
Deferred
Policy Acquisition Cost |
Reserves for
Unpaid Loss and Loss Adjustment Expense |
Unearned
Premium |
Earned
Premium |
Net
Investment Income |
Loss and
LAE Related to Current Period |
Loss and
LAE Related to Prior Periods |
Amortization
of Deferred Policy Acquisition Costs |
Paid Claims
and Claim Adjustment Expenses |
Net
Premiums Written |
|||||||||||||||||||||||
(In thousands) | ||||||||||||||||||||||||||||||||
2008 |
$ | 20,289 | $ | 531,293 | $ | 137,100 | $ | 289,493 | $ | 30,998 | $ | 196,776 | $ | (20,387 | ) | $ | (40,936 | ) | $ | 164,170 | $ | 288,191 | ||||||||||
2007 |
18,414 | 537,403 | 138,402 | 306,906 | 30,208 | 208,021 | (9,490 | ) | (40,990 | ) | 148,421 | 307,546 | ||||||||||||||||||||
2006 |
18,486 | 519,178 | 137,761 | 299,303 | 25,383 | 201,711 | (2,227 | ) | (40,426 | ) | 151,369 | 312,541 |
113
Item 9. | Changes in and Disagreements with Accountants on Accounting and Financial Disclosure. |
None.
Item 9A. | Controls and Procedures. |
Evaluation of Disclosure Controls and Procedures
Under the supervision and with the participation of our management, including our chief executive officer and chief financial officer, we have evaluated the effectiveness of our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934, as amended (the Exchange Act)) as of the end of the period covered by this report. Based on that evaluation, our chief executive officer and chief financial officer concluded that our disclosure controls and procedures were effective as of the end of the period covered by this report to provide reasonable assurance that information we are required to disclose in reports that are filed or submitted under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms specified by the SEC. We note that the design of any system of controls is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving the stated goals under all potential future conditions.
Managements Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) under the Securities and Exchange Act of 1934. Our internal control over financial reporting is a process designed under the supervision of our chief executive officer and our chief financial officer, and effected by our board of directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of the financial statements for external purposes in accordance with generally accepted accounting principles.
Management has assessed the effectiveness of the Companys internal control over financial reporting as of December 31, 2008. In making this assessment, management used the criteria described in Internal ControlIntegrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on managements assessment under the framework in Internal ControlIntegrated Framework, our management has concluded that internal control over financial reporting was effective as of December 31, 2008.
Our independent registered public accounting firm, Ernst & Young LLP, has audited the effectiveness of internal controls over financial reporting, as stated in their report included herein.
Changes in Internal Control Over Financial Reporting
There have not been any changes in our internal control over financial reporting during the fourth quarter of the period covered by this report that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Limitations on Controls
Because of its inherent limitations, management does not expect that our disclosure control and our internal control over financial reporting will prevent or detect all misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions or that the degree of compliance with policies and procedures may deteriorate. Any control system, no matter how well designed and operated, is based upon certain assumptions and can only provide reasonable, not absolute assurance that its objectives will be met. Further, no evaluation of controls can provide absolute assurance that misstatements due to errors or fraud will not occur or that all control issues and instances of fraud, if any within the Company, have been detected.
114
Report of Independent Registered Public Accounting Firm
The Board of Directors
AMERISAFE, Inc. and Subsidiaries
We have audited AMERISAFE, Inc. and Subsidiaries internal control over financial reporting as of December 31, 2008, based on criteria established in Internal ControlIntegrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). AMERISAFE, Inc. and Subsidiaries management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Managements Report on Internal Control Over Financial Reporting. Our responsibility is to express an opinion on AMERISAFE, Inc. and Subsidiaries internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
A companys internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A companys internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the companys assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, AMERISAFE, Inc. and Subsidiaries maintained, in all material respects, effective internal control over financial reporting as of December 31, 2008, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated financial statements of AMERISAFE, Inc. and Subsidiaries as of December 31, 2008 and 2007, and the related consolidated statements of income, changes in shareholders equity, and cash flows for each of the three years in the period ended December 31, 2008 and our report dated March 9, 2009 expressed an unqualified opinion thereon.
/s/ Ernst & Young LLP
New Orleans, Louisiana |
March 9, 2009 |
115
Item 9B. | Other Information. |
None.
PART III
Item 10. | Directors, Executive Officers and Corporate Governance. |
The information required by Item 10 with respect to our executive officers and key employees is included in Part I of this report.
The information required by Item 10 with respect to our directors is incorporated by reference to the information included under the caption Election of Directors in our Proxy Statement for the 2009 Annual Meeting of Shareholders. We plan to file such Proxy Statement within 120 days after December 31, 2008, the end of our fiscal year.
The information required by Item 10 with respect to compliance with Section 16 of the Exchange Act is incorporated by reference to the information included under the caption Section 16(a) Beneficial Ownership Reporting Compliance in our Proxy Statement for the 2009 Annual Meeting of Shareholders.
The information required by Item 10 with respect to our audit committee and our audit committee financial expert is incorporated by reference to the information included under the caption The Board, Its Committees and Its CompensationAudit Committee in our Proxy Statement for the 2009 Annual Meeting of Shareholders.
The information required by Item 10 with respect to our code of business conduct and ethics for executive and financial officers and directors is posted on our website at www.amerisafe.com in the Investor Relations section under GovernanceCode of Conduct. We will post information regarding any amendment to, or waiver from, our code of business conduct and ethics on our website in the Investor Relations section under Governance.
Item 11. | Executive Compensation. |
The information required by Item 11 is incorporated by reference to the information included under the captions Executive Compensation, The Board, Its Committees and Its CompensationDirector Compensation, Compensation Committee Interlocks and Insider Participation, Compensation Discussion and Analysis and Compensation Committee Report in our Proxy Statement for the 2009 Annual Meeting of Shareholders.
Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters. |
The information required by Item 12 is incorporated by reference to the information included under the captions Security Ownership of Management and Certain Beneficial Holders and Equity Compensation Plan Information in our Proxy Statement for the 2009 Annual Meeting of Shareholders.
Item 13. | Certain Relationships and Related Transactions, and Director Independence. |
The information required by Item 13 with respect to certain relationships and related transactions is incorporated by reference to the information included under the caption Executive CompensationCertain Relationships and Related Transactions in our Proxy Statement for the 2009 Annual Meeting of Shareholders.
The information required by Item 13 with respect to director independence is incorporated by reference to the information included under the caption The Board, Its Committees and Its CompensationDirector Independence in our Proxy Statement for the 2009 Annual Meeting of Shareholders.
Item 14. | Principal Accountant Fees and Services. |
The information required by Item 14 with respect to the fees and services of Ernst & Young LLP, our independent registered public accounting firm, and the audit committees pre-approved policies and procedures, are incorporated by reference to the information included under the caption Independent Public Accountants in our Proxy Statement for the 2009 Annual Meeting of Shareholders.
116
PART IV
Item 15. | Exhibits and Financial Statement Schedules. |
The following consolidated financial statements and schedules are filed in Item 8 of Part II of this report:
Page | ||
Financial Statements: |
||
74 | ||
75 | ||
76 | ||
77 | ||
78 | ||
79 | ||
Financial Statement Schedules: |
||
112 | ||
Schedule VI. Supplemental Information Concerning Property-Casualty Insurance Operations |
115 | |
(Schedules I, III, IV and V are not applicable and have been omitted.) |
Exhibits: |
|||
3.1 | Amended and Restated Articles of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Companys Registration Statement on Form S-1, Amendment No. 3 (File No. 333-127133), filed October 31, 2005) | ||
3.2 | Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Companys Annual Report on Form 10-K filed March 6, 2008) | ||
10.1 | * | Employment Agreement, dated March 1, 2008 by and between the Company and C. Allen Bradley, Jr. (incorporated by reference to Exhibit 10.1 to the Companys Annual Report on Form 10-K filed March 6, 2008). | |
10.2 | * |
Employment Agreement, dated March 1, 2008 by and between the Company and Geoffrey R. Banta (incorporated by reference to Exhibit 10.2 to the Companys Annual Report on Form 10-K filed March 6, 2008) |
|
10.3 | * | Employment Agreement, dated March 1, 2008 by and between the Company and Craig P. Leach (incorporated by reference to Exhibit 10.3 to the Companys Annual Report on Form 10-K filed March 6, 2008) | |
10.4 | * | Employment Agreement, dated March 1, 2008 by and between the Company and C. David O. Narigon (incorporated by reference to Exhibit 10.4 to the Companys Annual Report on Form 10-K filed March 6, 2008). | |
10.5 | * | Employment Agreement, dated March 1, 2008 by and between the Company and Todd Walker (incorporated by reference to Exhibit 10.5 to the Companys Annual Report on Form 10-K filed March 6, 2008) | |
10.6 | * | Employment Agreement, dated November 1, 2008 by and between the Company and G. Janelle Frost (incorporated by reference to Exhibit 10.1 to the Companys Quarterly Report on Form 10-Q filed November 7, 2008) | |
10.7 | * | AMERISAFE, Inc. 2005 Equity Incentive Plan (incorporated by reference to Exhibit 10.6 to the Companys Registration Statement on Form S-1, Amendment No. 3 (File No. 333-127133), filed October 31, 2005) | |
10.8 | * |
Form of Incentive Stock Option Award Agreement for the AMERISAFE, Inc. 2005 Equity Incentive Plan (incorporated by reference to Exhibit 10.7 to the Companys Registration Statement on Form S-1, Amendment No. 3 (File No. 333-127133), filed October 31, 2005) |
117
Exhibits: |
||
10.9* | Form of Non-Qualified Stock Option Award Agreement for the AMERISAFE, Inc. 2005 Equity Incentive Plan (incorporated by reference to Exhibit 10.8 to the Companys Registration Statement on Form S-1, Amendment No. 3 (File No. 333-127133), filed October 31, 2005) | |
10.10* | Form of Restricted Stock Award Agreement for the AMERISAFE, Inc. 2005 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K, filed March 15, 2006) | |
10.11* | AMERISAFE, Inc. 2005 Non-Employee Director Restricted Stock Plan (incorporated by reference to Exhibit 10.9 to the Companys Registration Statement on Form S-1, Amendment No. 3 (File No. 333-127133), filed October 31, 2005) | |
10.12* | Form of Restricted Stock Award Agreement for the AMERISAFE, Inc. 2005 Non-Employee Director Restricted Stock Plan (incorporated by reference to Exhibit 10.10 to the Companys Registration Statement on Form S-1 (File No. 333-127133), filed August 3, 2005) | |
10.13* | Form of Director and Officer Indemnification Agreement (incorporated by reference to Exhibit 10.11 to the Companys Registration Statement on Form S-1 (File No. 333-127133), filed August 3, 2005) | |
10.14* | AMERISAFE, Inc. 2008 Management Annual Incentive Compensation Plan (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed February 29, 2008). | |
10.15 | Second Casualty Excess of Loss Reinsurance Contract, effective as of January 1, 2005, issued to the Company by the reinsurers and named therein (incorporated by reference to Exhibit 10.13 to the Companys Registration Statement on Form S-1 (File No. 333-127133), filed August 3, 2005) | |
10.16 | Workers Compensation Catastrophe Excess of Loss Reinsurance Contract, effective as of January 1, 2005, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.14 to the Companys Registration Statement on Form S-1 (File No. 333-127133), filed August 3, 2005) | |
10.17 | Second Casualty Excess of Loss Reinsurance Contract, effective as of January 1, 2006, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.2 to the Companys Quarterly Report on Form 10-Q, filed August 14, 2006) | |
10.18 | Workers Compensation Catastrophe Excess of Loss Reinsurance Contract, effective as of January 1, 2006, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.4 to the Companys Quarterly Report on Form 10-Q, filed August 14, 2006) | |
10.19 | Casualty Catastrophe Excess of Loss Reinsurance Contract, effective as of January 1, 2006, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.5 to the Companys Quarterly Report on Form 10-Q, filed August 14, 2006) | |
10.20 | First Casualty Excess of Loss Reinsurance Contract, effective as of January 1, 2007, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.1 to the Companys Quarterly Report on Form 10-Q, filed August 8, 2007) | |
10.21 | Second Casualty Excess of Loss Reinsurance Contract, effective as of January 1, 2007, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.2 to the Companys Quarterly Report on Form 10-Q, filed August 8, 2007) | |
10.22 | First and Second Casualty Catastrophe Excess of Loss Reinsurance Contract, effective as of January 1, 2007, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.3 to the Companys Quarterly Report on Form 10-Q, filed August 8, 2007) | |
10.23 | Third Casualty Catastrophe Excess of Loss Reinsurance Contract, effective as of January 1, 2007, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.4 to the Companys Quarterly Report on Form 10-Q, filed August 8, 2007) |
118
Exhibits: |
||
10.24 |
Managed Program Agreement, dated effective December 1, 2008 between Amerisafe Risk Services, Inc. and Express Scripts, Inc. |
|
10.25 | Amended and Restated Registration Rights Agreement, dated March 18, 1998, by and among the Company and the shareholders of the Company named therein (incorporated by reference to Exhibit 4.1 to the Companys Registration Statement on Form S-1 (File No. 333-127133), filed August 3, 2005) | |
10.26 | First Casualty Excess of Loss Reinsurance Contract, effective as of January 1, 2008, issued to the Company by the reinsurers and named therein (incorporated by reference to Exhibit 10.1to the Companys Current Report on Form 8-K, filed February 15, 2008) | |
10.27 | Second Casualty Excess of Loss Reinsurance Contract, effective as of January 1, 2008, issued to the Company by the reinsurers and named therein (incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form 8-K, filed February 15, 2008) | |
10.28 | Casualty Catastrophe Excess of Loss Reinsurance Contract, effective as of January 1, 2008, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.3 to the Companys Current Report on Form 8-K, filed February 15, 2008) | |
10.29 | Second Casualty Excess of Loss Reinsurance Agreement, effective as of January 1, 2009 issued to the Company by Hannover Reinsurance (Ireland), Limited. | |
10.30 | Casualty Catastrophe Excess of Loss Reinsurance Contract, effective as of January 1, 2009 issued to the Company by the reinsurers named therein. | |
10.31 | Global Commutation and Release Agreement dated May 16, 2007 between and among Amerisafe, Inc.; American Interstate Insurance Company, American Interstate Insurance Company of Texas, and SilverOak Casualty, Inc. and Munich Reinsurance America, Inc. (incorporated by reference to Exhibit 10.32 to the Companys Annual Report on Form 10-K filed March 6, 2008). | |
21.1 | Subsidiaries of the Company (incorporated by reference to Exhibit 21.1 to the Companys Registration Statement on Form S-1 (File No. 333-127133), filed August 3, 2005) | |
23.1 | Consent of Ernst & Young LLP | |
24.1 | Powers of Attorney for our directors and certain executive officers | |
31.1 | Certification of C. Allen Bradley filed pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
31.2 | Certification of G. Janelle Frost filed pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
32.1 | Certification of C. Allen Bradley and G. Janelle Frost filed pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
* | Management contract, compensatory plan or arrangement |
119
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized on March 9, 2009.
AMERISAFE, INC. | ||
By: |
/s/ C. Allen Bradley, Jr. |
|
C. Allen Bradley, Jr. | ||
Chairman, President and Chief Executive Officer |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities indicated on March 9, 2009.
/s/ C. Allen Bradley, Jr. C. Allen Bradley, Jr. |
Chairman, President, Chief Executive Officer and Director (Principal Executive Officer) |
|
/s/ G. Janelle Frost G. Janelle Frost |
Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) |
|
* Thomas W. Hallagan |
Director | |
* Jared A. Morris |
Director | |
* Millard E. Morris |
Director | |
* Daniel Phillips |
Director | |
* Randall Roach |
Director | |
* Sean M. Traynor |
Director | |
* Austin P. Young, III |
Director |
Todd Walker, by signing his name hereto, does hereby sign this Annual Report on Form 10-K on behalf of the above-named directors of AMERISAFE, Inc. on this 9th day of March 2009, pursuant to powers of attorney executed on behalf of such directors and contemporaneously filed with the Securities and Exchange Commission.
*By: |
/s/ Todd Walker |
|
Todd Walker, Attorney-in-Fact |
120
EXHIBIT INDEX
Exhibits: |
||
3.1 | Amended and Restated Articles of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Companys Registration Statement on Form S-1, Amendment No. 3 (File No. 333-127133), filed October 31, 2005) | |
3.2 | Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Companys Annual Report on Form 10-K filed March 6, 2008) | |
10.1* | Employment Agreement, dated March 1, 2008 by and between the Company and C. Allen Bradley, Jr. (incorporated by reference to Exhibit 10.1 to the Companys Annual Report on Form 10-K filed March 6, 2008) | |
10.2* | Employment Agreement, dated March 1, 2008 by and between the Company and Geoffrey R. Banta (incorporated by reference to Exhibit 10.2 to the Companys Annual Report on Form 10-K filed March 6, 2008) | |
10.3* | Employment Agreement, dated March 1, 2008 by and between the Company and Craig P. Leach (incorporated by reference to Exhibit 10.3 to the Companys Annual Report on Form 10-K filed March 6, 2008) | |
10.4* | Employment Agreement, dated March 1, 2008 by and between the Company and C. David O. Narigon (incorporated by reference to Exhibit 10.4 to the Companys Annual Report on Form 10-K filed March 6, 2008) | |
10.5* | Employment Agreement, dated March 1, 2008 by and between the Company and Todd Walker (incorporated by reference to Exhibit 10.5 to the Companys Annual Report on Form 10-K filed March 6, 2008) | |
10.6* | Employment Agreement, dated November 1, 2008 by and between the Company and G. Janelle Frost (incorporated by reference to Exhibit 10.1 to the Companys Quarterly Report on Form 10-Q filed November 7, 2008) | |
10.7* | AMERISAFE, Inc. 2005 Equity Incentive Plan (incorporated by reference to Exhibit 10.6 to the Companys Registration Statement on Form S-1, Amendment No. 3 (File No. 333-127133), filed October 31, 2005) | |
10.8* | Form of Incentive Stock Option Award Agreement for the AMERISAFE, Inc. 2005 Equity Incentive Plan (incorporated by reference to Exhibit 10.7 to the Companys Registration Statement on Form S-1, Amendment No. 3 (File No. 333-127133), filed October 31, 2005) | |
10.9* | Form of Non-Qualified Stock Option Award Agreement for the AMERISAFE, Inc. 2005 Equity Incentive Plan (incorporated by reference to Exhibit 10.8 to the Companys Registration Statement on Form S-1, Amendment No. 3 (File No. 333-127133), filed October 31, 2005) | |
10.10* | Form of Restricted Stock Award Agreement for the AMERISAFE, Inc. 2005 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K, filed March 15, 2006) | |
10.11* | AMERISAFE, Inc. 2005 Non-Employee Director Restricted Stock Plan (incorporated by reference to Exhibit 10.9 to the Companys Registration Statement on Form S-1, Amendment No. 3 (File No. 333-127133), filed October 31, 2005) | |
10.12* | Form of Restricted Stock Award Agreement for the AMERISAFE, Inc. 2005 Non-Employee Director Restricted Stock Plan (incorporated by reference to Exhibit 10.10 to the Companys Registration Statement on Form S-1 (File No. 333-127133), filed August 3, 2005) | |
10.13* | Form of Director and Officer Indemnification Agreement (incorporated by reference to Exhibit 10.11 to the Companys Registration Statement on Form S-1 (File No. 333-127133), filed August 3, 2005) |
121
Exhibits: |
||
10.14* | AMERISAFE, Inc. 2008 Management Annual Incentive Compensation Plan (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed February 29, 2008). | |
10.15 | Second Casualty Excess of Loss Reinsurance Contract, effective as of January 1, 2005, issued to the Company by the reinsurers and named therein (incorporated by reference to Exhibit 10.13 to the Companys Registration Statement on Form S-1 (File No. 333-127133), filed August 3, 2005) | |
10.16 | Workers Compensation Catastrophe Excess of Loss Reinsurance Contract, effective as of January 1, 2005, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.14 to the Companys Registration Statement on Form S-1 (File No. 333-127133), filed August 3, 2005) | |
10.17 | Second Casualty Excess of Loss Reinsurance Contract, effective as of January 1, 2006, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.2 to the Companys Quarterly Report on Form 10-Q, filed August 14, 2006) | |
10.18 | Workers Compensation Catastrophe Excess of Loss Reinsurance Contract, effective as of January 1, 2006, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.4 to the Companys Quarterly Report on Form 10-Q, filed August 14, 2006) | |
10.19 | Casualty Catastrophe Excess of Loss Reinsurance Contract, effective as of January 1, 2006, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.5 to the Companys Quarterly Report on Form 10-Q, filed August 14, 2006) | |
10.20 | First Casualty Excess of Loss Reinsurance Contract, effective as of January 1, 2007, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.1 to the Companys Quarterly Report on Form 10-Q, filed August 8, 2007) | |
10.21 | Second Casualty Excess of Loss Reinsurance Contract, effective as of January 1, 2007, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.2 to the Companys Quarterly Report on Form 10-Q, filed August 8, 2007) | |
10.22 | First and Second Casualty Catastrophe Excess of Loss Reinsurance Contract, effective as of January 1, 2007, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.3 to the Companys Quarterly Report on Form 10-Q, filed August 8, 2007) | |
10.23 | Third Casualty Catastrophe Excess of Loss Reinsurance Contract, effective as of January 1, 2007, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.4 to the Companys Quarterly Report on Form 10-Q, filed August 8, 2007) | |
10.24 |
Managed Program Agreement, dated effective December 1, 2008 between Amerisafe Risk Services, Inc. and Express Scripts, Inc. |
|
10.25 | Amended and Restated Registration Rights Agreement, dated March 18, 1998, by and among the Company and the shareholders of the Company named therein (incorporated by reference to Exhibit 4.1 to the Companys Registration Statement on Form S-1 (File No. 333-127133), filed August 3, 2005) | |
10.26 | First Casualty Excess of Loss Reinsurance Contract, effective as of January 1, 2008, issued to the Company by the reinsurers and named therein (incorporated by reference to Exhibit 10.1to the Companys Current Report on Form 8-K, filed February 15, 2008) | |
10.27 | Second Casualty Excess of Loss Reinsurance Contract, effective as of January 1, 2008, issued to the Company by the reinsurers and named therein (incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form 8-K, filed February 15, 2008) | |
10.28 | Casualty Catastrophe Excess of Loss Reinsurance Contract, effective as of January 1, 2008, issued to the Company by the reinsurers named therein (incorporated by reference to Exhibit 10.3 to the Companys Current Report on Form 8-K, filed February 15, 2008) |
122
Exhibits: |
||
10.29 | Second Casualty Excess of Loss Reinsurance Agreement, effective as of January 1, 2009 issued to the Company by Hannover Reinsurance (Ireland), Limited. | |
10.30 | Casualty Catastrophe Excess of Loss Reinsurance Contract, effective as of January 1, 2009 issued to the Company by the reinsurers named therein. | |
10.31 | Global Commutation and Release Agreement dated May 16, 2007 between and among Amerisafe, Inc.; American Interstate Insurance Company, American Interstate Insurance Company of Texas, and SilverOak Casualty, Inc. and Munich Reinsurance America, Inc. (incorporated by reference to Exhibit 10.32 to the Companys Annual Report on Form 10-K filed March 6, 2008). | |
21.1 | Subsidiaries of the Company (incorporated by reference to Exhibit 21.1 to the Companys Registration Statement on Form S-1 (File No. 333-127133), filed August 3, 2005) | |
23.1 | Consent of Ernst & Young LLP | |
24.1 | Powers of Attorney for our directors and certain executive officers | |
31.1 | Certification of C. Allen Bradley filed pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
31.2 | Certification of G. Janelle Frost filed pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
32.1 | Certification of C. Allen Bradley and G. Janelle Frost filed pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
* | Management contract, compensatory plan or arrangement |
123
Exhibit 10.24
|
Client Contracting Steve Adams Toni Bazzell Jill Bone Megan Gracey Judy Mercille Melody Seckel April Witt Ellen Wynne |
November 18, 2008
Mr. Chris Lestage
Amerisafe Risk Services, Inc
2301 Highway 190 West
DeRidder, LA 70634 NM
Dear Mr. Lestage:
Enclosed is your copy of the fully executed Managed Program Workers Compensation Agreement for Amerisafe Risk Services, Inc.
If you have not already received, you will be receiving a survey regarding your experience with our Contract Process. We value your input and would really appreciate if you could take a few minutes to complete this survey.
Your confidence in our company is appreciated and we will continually strive to be an excellent provider of healthcare management services. If you have any questions or comments, please contact your Account Director.
Sincerely, |
|
Ellen Wynne Associate Contract Analyst |
/ew
Enclosure
John Haubrich, Account Director
WORKERS COMPENSATION
MANAGED PROGRAM AGREEMENT
THIS WORKERS COMPENSATION MANAGED PROGRAM AGREEMENT (Agreement) will be effective as of the date set forth in Section 6.1 and is entered into by and between EXPRESS SCRIPTS, INC., a Delaware corporation on behalf of itself and its subsidiaries (ESI), and AMERISAFE RISK SERVICES, INC., a Louisiana corporation (Sponsor).
SECTION I - DEFINITIONS
The following terms shall have the meanings set forth below:
Average Wholesale Price or AWP means the average wholesale price of a prescription drug as identified by drug pricing services such as First Data Bank or other source recognized in the retail prescription drug industry selected by ESI for all clients. The applicable AWP for prescriptions shall be the 11-digit NDC on the date dispensed, and those filled in (a) Participating Pharmacies will be the AWP for the package size from which the prescription drug was dispensed, and (b) in the Mail Service Pharmacy the AWP for the lesser of; (i) the NDC code for the package size from which the prescription drug was dispensed, or (ii) package sizes of 100 units or 16 ounce quantities, or the next larger quantity if such specified quantities are not available.
Covered Drugs means those prescription drugs, supplies and other items that are covered by the Program, each as indicated in the Set-Up Forms.
Eligibility Files means the list submitted by Sponsor to ESI in reasonably acceptable electronic format indicating persons eligible for drug benefit coverage services under the Program.
Formulary means a list of FDA-approved prescription drugs and supplies which is determined by Sponsor.
Generic Drug means a prescription drug, whether identified by its chemical, proprietary, or non-proprietary name, that is therapeutically equivalent and interchangeable with drugs having an identical amount of the same active ingredient(s) and approved by the FDA.
Injured Worker means each person who Sponsor determines is eligible to receive prescription drug benefits as indicated in the Eligibility Files.
Mail Service Pharmacy means a duly licensed pharmacy operated by ESI or its subsidiaries, where prescriptions are filled and delivered to Injured Workers via the mail.
Paper Bill means any Prescription not submitted on-line by a Participating Pharmacy (e.g., paper claims by Injured Workers, non-participating pharmacies and Third Party Billers).
Participating Pharmacy means any licensed pharmacy with which ESI has executed an agreement to provide Covered Drugs to Injured Workers.
Prescription means an on-line pharmacy claim, Paper Bill, or Short Fill Prescription submitted for payment as a result of dispensing a Covered Drug to an Injured Worker.
Program means Sponsors prescription benefit plan for Injured Workers.
Set-Up Form means a document form provided to Sponsor by ESI, which, when completed and signed by Sponsor, will describe the essential elements, including coverage rules, of the Program.
Short Fill Prescription means a prescription submitted to a Participating Pharmacy by a person who is not yet considered an eligible Injured Worker, but with respect to whom Sponsor (or such persons employer) has authorized preliminary coverage based on documentation provided by such person.
Third Party Biller means any entity which contracts directly with a Participating Pharmacy to either purchase a Participating Pharmacys prescription receivables or to provide administrative prescription billing services on behalf of a Participating Pharmacy.
SECTION II - SCOPE OF SERVICES
2.1 Eligibility/Set Up . Sponsor will submit a completed Set-Up Forms and Eligibility Files (initial and updated) on a mutually determined basis, and ESI will accurately implement the Set-Up Forms and Eligibility Files. Changes to the Set-Up Forms must be documented on ESIs standard amendment forms. Sponsor will be responsible for all Prescriptions during the period of the Injured Workers eligibility as indicated on the Eligibility File, except in the event of ESIs negligence. ESI will not be responsible for Prescriptions for retroactively termed Injured Workers.
2.2 Pharmacy Network .
(a) Participating Pharmacies . ESI will maintain a network of Participating Pharmacies as identified in Exhibit A , and will make available an updated list of Participating Pharmacies on-line. ESI maintains multiple networks, and periodically consolidates networks or migrates clients to other networks, in order to capitalize on certain operational efficiencies and other benefits associated with a streamlined network offering. ESI will require each Participating Pharmacy to meet ESIs participation requirements, including but not limited to licensure, insurance and provider agreement requirements. Copies of the Participating Pharmacy participation requirements are available upon request. ESI does not direct or exercise any control over the professional judgment exercised by any pharmacist in dispensing prescriptions or otherwise providing pharmaceutical related services at a Participating Pharmacy.
(b) Mail Service Pharmacy . Injured Workers may have prescriptions filled through the Mail Service Pharmacy. Subject to applicable law, ESI may communicate with Injured Workers regarding the availability and use of the Mail Service Pharmacy.
2.3 Prescription Processing .
(a) On-Line Prescription Processing . ESI will perform on-line prescription processing services for Covered Drugs dispensed by a Participating Pharmacy or Mail Service Pharmacy. Such services include verifying eligibility and processing Prescriptions. ESI will perform a standard concurrent drug utilization review (DUR) analysis of each on-line Prescription submitted for processing in order to assist the dispensing pharmacist and prescribing physician in identifying potential drug interactions, incorrect prescriptions or dosages, and certain other circumstances that may be indicative of inappropriate prescription drug usage. ESIs DUR processes are not intended to substitute for the professional judgment of the prescriber, the dispensing pharmacist or any other health care professional providing services to the Injured Worker. If requested by Sponsor, ESI shall process Paper Bills in accordance with the rules in the Set-Up Forms and ESIs standard procedures. In all cases, Sponsor shall have the final responsibility for all decisions with respect to coverage under the Program.
(b) Approval of Exception to Formulary . In the event an Injured Worker requests coverage for a prescription drug that is not considered a Covered Drug under the Program, ESI shall contact Sponsor to determine if Sponsor desires to approve coverage for such drug. If approved by Sponsor, ESI shall approve Injured Workers request for coverage and the drug shall be treated as a Covered Drug for that particular Injured Worker for the period or number of fills specified by Sponsor. ESI shall rely solely on the direction of the Sponsor as to coverage, and ESI shall not undertake, and is not required hereunder, to determine medical necessity or the Prescriptions relationship to injury compensability, appropriateness of therapies, or to substitute ESIs judgment for the professional judgment and responsibility of the physician or Sponsor.
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(c) Call Center . ESI will provide 24-hours a day, 7-days a week toll-free telephone, IVR and Internet support to assist Sponsor, Sponsors agents and Injured Workers with eligibility and benefits verification, location of Participating Pharmacies or other related concerns.
2.4 Program Management .
(a) Clinical Services . ESI shall provide to Sponsor general support and consultative services regarding the Program. ESI will provide the Formulary, clinical, safety and/or trend programs selected by Sponsor as indicated in the Set-Up Forms.
(b) Reporting . ESI will provide Sponsor with ESIs standard on-line workers compensation management information reports. ESI and Sponsor may, from time to time, mutually develop customized reporting to meet Sponsors needs. In this event, such customized reporting may include a separate charge, if any, as mutually agreed upon by ESI and Sponsor.
(c) Prescription Data . ESI will retain Sponsors Prescription utilization data in media and formats determined by ESI for a total of seven (7) years from the date the prescription is filled. Thereafter ESI will dispose of such data in accordance with its standard policies and practices and applicable state and federal law. ESI may use both during and after the term of this Agreement and/or transfer to third parties the anonymized drug and related medical data collected by ESI or provided to ESI by Sponsor for research, provider profiling and other databases for benchmarking, drug trend, cost analyses, cost comparisons or other business purposes of ESI.
(d) Sponsor Audits . Provided that this Agreement has been duly executed by Sponsor and Sponsor is current in the payment of invoices under this Agreement, Sponsor may audit the prescription management services provided pursuant to this agreement on an annual basis (unless additional audits are warranted), consistent with the Audit Protocol set forth in Exhibit B . Sponsor may use an independent third party auditor (Auditor), so long as such Auditor does not have a conflict of interest with ESI (as determined by ESI acting reasonably and in good faith), and provided that Sponsors Auditor executes a mutually acceptable confidentiality agreement.
SECTION III - FEES; BILLING AND PAYMENT
3.1 Fees . The fees for Prescriptions and administrative services are set forth in Exhibit A (Fees).
3.2 Billing and Payment . (a) ESI will bill Sponsor weekly for all applicable Fees specified in Exhibit A .
(b) Payment . Sponsor agrees to pay ESI by wire, debit or ACH transfer within fourteen (14) calendar days from the date of Sponsors receipt of the ESI invoice. Sponsor shall be responsible for all costs of collection, and agrees to reimburse ESI for such costs and expenses, including reasonable attorneys fees. Any amounts not paid by the due date thereof shall bear interest at the prime lending rate (as published by The Wall Street Journal on the date interest begins to accrue) plus two percent (2%) per annum or, if lower, the highest interest rate permitted by law. Sponsor shall pay the full amount owed and shall notify ESI of any disputed amount.
SECTION IV - CONFIDENTIALITY
4.1 Confidentiality of Prescription Utilization . ESI shall maintain confidentiality and security of Injured Workers as required by applicable law and regulations. In no event will ESI release or disclose to third parties Prescription records without the written approval of the Sponsor or the subject Injured Worker.
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4.2 Confidential Information . Each party agrees that certain information of the other party, including, but not limited to this Agreement, and (a) with respect to ESI: reporting packages, proprietary applications, system formats, databanks, clinical or formulary management operations or programs, ESI developed DUR guidelines, ExpressComp ® and clinical and other manuals, prescription drug evaluation criteria, drug pricing information, and Participating Pharmacy agreements; and (b) with respect to Sponsor: Eligibility Files, business operations and strategies, shall constitute confidential and proprietary information (Confidential Information). Neither party shall use the others Confidential Information, or disclose it to any third party, at any time during or after termination of this Agreement, except as specifically contemplated by this Agreement or upon prior written consent. Upon termination of this Agreement, each party shall cease using the others Confidential Information, and all such information shall be returned or destroyed upon the owners direction. Sponsor will not, and will not permit any third party acting on Sponsors behalf to, access, attempt to access, test or audit ESls Systems or any other system or network connected to ESIs Systems. Confidential Information does not include information which is or becomes generally available to the public; was within the recipients possession or knowledge prior to its being furnished to the recipient pursuant to this Agreement, or is independently developed by the recipient under circumstances not involving a breach of this Agreement. Without limiting the foregoing, Sponsor will not: (i) access or attempt to access any portion or feature of ESI Systems, by circumventing the ESI Systems access control measures, either by hacking, password mining or any other means; or (ii) probe, scan, audit or test the vulnerability of ESIs Systems, nor breach the security or authentication measures of ESIs System.
SECTION V - COMPLIANCE WITH LAW; PRICING BENCHMARKS
5.1 Change in Law . Each party shall be responsible for ensuring its compliance with any laws and regulations applicable to its business, including maintaining any necessary licenses and permits. Sponsor shall be responsible for any governmental or regulatory charges and taxes imposed upon the services provided hereunder, other than taxes based on the net income of ESI. If there is a change in federal, state or local laws or regulations or the interpretation thereof, that, among other things, materially burdens ESI, requires ESI to increase payments or shorten payment times for Covered Drugs to Participating Pharmacies, or change the scope of services hereunder, then there shall be an appropriate modification of the services, reimbursement rates, and administrative fees such that the parties are returned to their comparable economic position as of the Effective Date. If the parties cannot agree on a modification or adjusted fee or rates, then either party may terminate the Agreement on thirty (30) days prior written notice to the other.
5.2 Pricing Benchmarks . The parties understand that there are currently extra-market industry, legal, government and regulatory activities, which may lead to changes relating to, or elimination of, the AWP pricing index that could alter the financial positions of the parties as intended under this Agreement. The parties agree that, upon entering into this Agreement and thereafter, their mutual intent has been and is to maintain pricing stability as intended and not to advantage either party to the detriment of the other. Accordingly, to preserve this mutual intent, if ESI undertakes any or all of the following: (a) changes the AWP source across its book of business (e.g., from First DataBank to MediSpan); or (b) maintains AWP as the pricing index with an appropriate adjustment as described below, in the event the AWP methodology and/or its calculation is changed, whether by the existing or alternative sources; or (c) transitions the pricing index from AWP to another index or benchmark (e.g., to Wholesale Acquisition Cost), Participating Pharmacy and Mail Service Pharmacy rates will be modified as reasonably and equitably necessary to maintain the pricing intent under this Agreement. ESI shall provide Sponsor with at least ninety (90) days notice of the change (or if such notice is not practicable, as much notice as is reasonable under the circumstances), and written illustration of the financial impact of the pricing source or index change (e.g., specific drug examples). If Sponsor disputes the illustration or the financial impact of the pricing source, the parties agree to cooperate in good faith to resolve such disputes.
5.3 Fiduciary Acknowledgements . ESI offers pharmacy benefit management services, products and programs (PBM Products) for consideration by all clients, including Sponsor. The general parameters of the PBM Products, and the systems that support these products, have been developed by ESI as part of ESIs administration of its business as a PBM. The parties agree that they have negotiated the financial terms of this Agreement in an arms-length fashion. Sponsor acknowledges and agrees that neither it nor the Program intends for ESI to be a fiduciary of the Program, and neither will name ESI or any of ESIs
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wholly-owned subsidiaries as a plan fiduciary. Sponsor further acknowledges and agrees that neither ESI nor any of ESIs wholly-owned subsidiaries have any discretionary authority or control respecting management of the Plans prescription benefit program, or exercise any authority or control respecting management or disposition of the assets of the Plan or Sponsor. Sponsor further acknowledges that it is responsible for the Plans benefit design, coverage rules and determinations relating to the Plan. Upon reasonable notice, ESI will have the right to terminate PBM Services to the Program in a state requiring a pharmacy benefit manager to be a fiduciary to Sponsor or an Injured Worker in any capacity.
5.4 Disclosure of Certain Financial Matters . In addition to any administrative fees that may be paid to ESI pursuant to this Agreement, ESI derives margin from fees and revenue in one or more of the ways described in the ESI Financial Disclosure to PBM Clients set forth in Exhibit C hereto (Financial Disclosure to ESI PBM Clients). In negotiating any of the fees and revenues described in the Financial Disclosure to ESI PBM Clients or in this Agreement, ESI acts on its own behalf, and not for the benefit of or as agent for the Sponsor, Injured Workers, or any employee welfare benefit plan. Sponsor and Injured Workers each acknowledge and agree that ESI will retain all revenues, manufacturer rebates, and administrative fees, if any, interest thereon and all Participating Pharmacy discounts, if any, in addition to any administrative and other fees paid by Sponsor to ESI. Client acknowledges for itself, its Injured Workers and the Program that, except as may be expressly provided herein, neither it, any Injured Worker, nor the Program, has a right to receive, or possesses and beneficial interest in, any such revenues, discounts or payments.
SECTION VI - TERM AND TERMINATION; DEFAULT AND REMEDIES
6.1 Term . (a) This Agreement will commence as of the later of November 1, 2008 or the date that is ten (10) days following ESIs execution of this Agreement (Effective Date), and will continue for a period of three (3) years (Initial Term), subject to termination or extension in accordance with the terms of Section 6.2 below. Thereafter, this Agreement will automatically renew with the same terms and conditions as set forth herein for successive one (1) year renewal terms, subject to the right of termination as otherwise provided herein.
(b) Not less than ninety (90) days prior to the end of the initial or any renewal term of this Agreement either party may notify the other party in writing that it wishes to terminate this Agreement. If no such written notification is given, this Agreement shall continue with the same terms and conditions as set forth herein for an additional one (1) year renewal term, subject to the right of termination as otherwise provided herein. If such notice is given, this Agreement shall terminate on the last day of the then current term.
6.2 Termination for Breach or Default . Either party may give the other written notice of a material, substantial and continuing breach of this Agreement. If the breaching party has not cured said breach within thirty (30) days from the date such notice was sent, this Agreement may be terminated at the option of the non-breaching party. If the amount of time commercially reasonable for the breach to be cured is longer than thirty (30) days, this Agreement may not be terminated by the non-breaching party pursuant to this provision until such commercially reasonable period of time has elapsed; provided, however, that in no event shall such period exceed sixty (60) days.
6.3 Termination for Non-Payment .
(a) ESI may terminate or suspend its performance hereunder immediately and cease providing or authorizing provision of Covered Drugs to Injured Workers upon two (2) days written notice if Sponsor fails to pay ESI or provide acceptable security in accordance with the terms of this Agreement.
(b) At any time, if ESI has reasonable grounds for insecurity as to the ability of Sponsor to meet its financial commitments hereunder based on payment record, Sponsors latest financial information, claims volume, or regulatory filings, ESI may require adequate assurance of Sponsors future performance, which may include the requirement that Sponsor provide security (e.g., deposit or letter of credit) to ESI.
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6.4 Remedies .
(a) A partys right to terminate this Agreement under this Section 6 shall not be exclusive of any other remedies available to the terminating party under this Agreement or otherwise, at law or in equity.
(b) Neither party shall lose any rights under this Agreement or be liable in any manner for any delay to perform its obligations under this Agreement that are beyond a partys reasonable control, including, without limitation, any delay or failure due to labor disputes, riots, earthquakes, storms, floods or other extreme weather conditions, fires, explosions, acts of terrorism, epidemics, embargoes, war or other outbreak of hostilities, government acts or regulations, the failure or inability of carriers, suppliers, delivery services, or telecommunications providers to provide services necessary to enable a party to perform its obligations hereunder, or any other reason where failure to perform is beyond the partys reasonable control, and is not caused by the negligence, intentional conduct or misconduct of the defaulting party; provided, however, that this clause may not be invoked to excuse a partys payment obligations hereunder.
(c) ESIs liability to Sponsor hereunder shall in no event exceed the actual proximate losses or damages to Sponsor caused by ESIs breach of this Agreement. In no event shall either party or any of their respective affiliates, directors, employees or agents, be liable for any indirect, special, incidental, consequential, exemplary or punitive damages, or any damages for lost profits relating to a relationship with a third party, however caused or arising, whether or not they have been informed of the possibility of their occurrence.
6.5 Indemnification .
(a) ESI will indemnify and hold Sponsor harmless from and against any loss, cost, damage, expense or other liability, including, without limitation, reasonable costs and attorney fees (Costs) incurred in connection with any and all third party claims, suits, investigations or enforcement actions (Actions) which may be asserted against, imposed upon or incurred by Sponsor and arising as a result of (i) ESIs negligent acts or negligent omissions or willful misconduct in performing its obligations under this Agreement, or (ii) ESIs breach of this Agreement.
(b) Sponsor will indemnify and hold ESI harmless from and against any Costs for Actions which may be asserted against, imposed upon or incurred by ESI and arising as a result of (i) Sponsors negligent acts or negligent omissions or willful misconduct, (ii) Sponsors benefit design and coverage decisions, or (iii) Sponsors breach of this Agreement.
(c) The indemnified party shall notify the indemnifying party in writing promptly upon learning of any action for which indemnification may be sought hereunder, and shall tender the defense of such Action to the indemnifying party. No party shall indemnify the other with respect to any action settled by without the indemnified partys written consent.
6.6 Obligations Upon Termination . Sponsor shall pay ESI in accordance with this Agreement for all claims for Covered Drugs dispensed and services provided to Sponsor and Injured Workers on or before the effective date of termination (Termination Date). Prescriptions submitted with ESI after sixty (60) days from the Termination Date shall be forwarded to Sponsor for adjudication and payment. Sponsor shall pay all fees or other charges due and payable to ESI under this Agreement within ninety (90) days after the Termination Date. Notwithstanding the preceding, ESI may request that Sponsor pay a reasonable deposit in the event ESI is requested to process after the Termination Date claims incurred on or prior to such date.
6.7 Survival . The parties rights and obligations under the 2.4(c), Sections IV through VII shall survive termination of this Agreement.
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SECTION VII - MISCELLANEOUS
7.1 Notice . Any notice or document required or permitted to be delivered pursuant to this Agreement must be in writing and shall be deemed to be effective upon mailing and must be either (a) deposited in the United States Mail, postage prepaid, certified or registered mail, return receipt requested, or (b) sent by recognized overnight delivery service, in either case properly addressed to the other party at the address set forth below, or at such other address as such party shall specify from time to time by written notice delivered in accordance herewith:
Express Scripts, Inc.
Attn: President
One Express Way
St. Louis, Missouri 63121
With copy to Legal Department via Fax No. (800) 417-8163
Amerisafe Risk Services, Inc.
Attn: Chris Lestage
2301 Highway 190 West
DeRidder, Louisiana 70634
7.2 Independent Parties . No provision of this Agreement is intended to create or shall be construed to create any relationship between ESI, on the one hand, and Sponsor, on the other hand, other than that of independent entities contracting with each other solely for the purpose of effecting the provisions of this Agreement. Neither party, nor any of their respective representatives, shall be construed to be the partner, agent, fiduciary, employee, or representative of the other and neither party shall have the right to make any representations concerning the duties, obligations or services of the other except as consistent with the express terms of this Agreement or as otherwise authorized in writing by the party about which such representation is asserted.
7.3 Successors and Assigns . This Agreement will be binding upon, and inure to the benefit of and be enforceable by, the respective successors and permitted assigns of the parties hereto; provided that this Agreement may be assigned by Sponsor upon ESIs written consent following a standard credit review.
7.4 Integration; Amendments . This Agreement and any Exhibits hereto constitute the entire understanding of the parties hereto and supersedes any prior oral or written communication between the parties with respect to the subject matter hereof. No modification, alteration, or waiver of any term, covenant, or condition of this Agreement shall be valid unless in writing and signed by both parties.
7.5 Choice of Law . This Agreement shall be construed and governed in all respects according to the laws in the State of Missouri, without regard to the rules of conflict of laws thereof.
7.6 Waiver . The failure of either party to insist upon the strict observation or performance of this Agreement or to exercise any right or remedy shall not be construed as a waiver of any subsequent breach of this Agreement or impair or waive any available right or remedy.
7.7 Severability . In the event that any provision of this Agreement is invalid or unenforceable, such invalid or unenforceable provision shall not invalidate or affect the other provisions of this Agreement which shall remain in effect and be construed as if such provision were not a part hereof; provided that if the invalidation or unenforceability of such provision shall, in the opinion of either party to the Agreement, have a material effect on such partys rights or obligations under this Agreement, then the Agreement may be terminated by such party upon thirty (30) days written notice by such party to the other party.
7.8 Third Party Beneficiary Exclusion . This Agreement is not a third party beneficiary contract, nor shall this Agreement create any rights on behalf of Injured Workers as against ESI. Sponsor and ESI reserve the right to amend, cancel or terminate this Agreement without notice to, or consent of, any Injured Worker.
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7.9 Liability Insurance . Each party will maintain such policies of general liability, professional liability and other insurance of the types and in amounts customarily carried by their respective businesses. Proof of such insurance will be available upon request. ESI agrees, at its sole expense, to maintain during the term of this Agreement or any renewal hereof, commercial general liability insurance, pharmacists professional liability insurance for the Mail Service pharmacies, and managed care liability with limits, excess of a self insured retention, in amounts of not less than $5,000,000 per occurrence and in the aggregate. ESI does not maintain liability insurance on behalf of any Participating Pharmacy, but does contractually require such pharmacies to maintain a minimum amount of commercial liability insurance or, when deemed acceptable by ESI, to have in place a self-insurance program.
7.10 Trademarks . Each party acknowledges each other partys sole and exclusive ownership of its respective trade names, commercial symbols, trademarks, and servicemarks, whether presently existing or later established (collectively Marks). No party shall use the other partys Marks in advertising or promotional materials or otherwise without the owners prior written consent; provided, however, that the parties may publicize the fact that ESI provides prescription drug benefit management services.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year below set forth.
EXPRESS SCRIPTS, INC. | AMERISAFE RISK SERVICES, INC. | |||
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EXHIBIT A
PHARMACY REIMBURSEMENT RATES
I. General. Sponsor shall pay to ESI the amounts set forth below, including, in all cases, applicable sales or excise tax or other governmental surcharge, if any. The fees below do not apply to specialty drug products. The parties acknowledge that it is ESls intention that the fees set forth in this Exhibit A relating to Participating Pharmacy services apply with respect to all Participating Pharmacies; provided , the parties also acknowledge that there are certain regulatory and other factors inherent in the workers compensation area that may impact the amount that a Participating Pharmacy or other entity claims or is otherwise entitled to be paid for providing pharmacy services to an Injured Worker (including, but not limited to, situations in which a Third Party Biller is involved, where a pharmacy unilaterally breaches its Participating Pharmacy Agreement, where state law requires or can be interpreted to require that such pharmacy be paid at the state workers compensation fee schedule or such other rate that is higher than the rate that it has negotiated with ESI). In such event, or if there is any change in Federal or applicable state law or regulation (including the interpretation of existing laws or regulations by a court or administrative agency) during the term of this Agreement and in consequence thereof, ESI is required to payments for Covered Drugs to Participating Pharmacies in the applicable jurisdiction under its provider agreements, the Plan fees set forth below will be increased by the same amount. Additionally, upon published changes in state fee schedules, ESI will update pricing adjudication systems within a reasonable timeframe.
II. | Participating Pharmacy Rates . |
ExpressComp National Network |
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Brand Ingredient Cost |
Year 1: Lower of State Fee Schedule or AWP - 6% | |
Year 2: Lower of State Fee Schedule or AWP - 8% | ||
Year 3: Lower of State Fee Schedule or AWP - 9% | ||
Generic Ingredient Cost |
Year 1: Lower of State Fee Schedule or AWP -12% | |
Year 2: Lower of State Fee Schedule or AWP -15% | ||
Year 3: Lower of State Fee Schedule or AWP -18% | ||
Compound Drugs |
Combined AWP plus applicable service fee | |
Dispensing Fee/Rx |
$3.00 | |
Administrative Fee/Rx |
$0.00 |
III. | Mail Pharmacy Rates. |
Brand Ingredient Cost |
AWP 12% | |
Generic Ingredient Cost |
AWP 40% | |
Compound Drugs |
Combined AWP plus applicable service fee | |
Dispensing Fee/Rx |
$2.00 | |
Administrative Fee/Rx |
$0.00 | |
Minimum Rate/Rx |
$8.99 |
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IV. | Administrative Services : |
PBM Services |
Associated Fees |
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Customer Service for Injured Workers |
No additional charge | |
Electronic Prescription Adjudication |
No additional charge | |
Implementation Support |
No additional charge | |
Eligibility Submission Electronic/on-line Submission |
No additional charge | |
Manual Submission |
No additional charge | |
Paper Bills (i.e., Injured Worker, Sponsor, Third Party Biller, and non-Participating Pharmacy submitted Prescriptions) |
No additional charge | |
Pharmacy Help Desk |
No additional charge | |
Pharmacy Network Management |
No additional charge | |
Pharmacy Reimbursement |
No additional charge | |
Software Training for Access to Our On-Line System(s) |
No additional charge | |
Branch Claims Office Training |
No additional charge | |
Short Fill Capabilities |
No additional charge | |
Retail to Home Delivery Programs |
No additional charge | |
Network Compliance Program |
No additional charge | |
PDRx |
$125/hour | |
Clinical Services (as selected by Sponsor) |
No additional charge | |
Reporting Services |
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Trend Central |
No additional charge | |
Standard Reports: |
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ExpressComp Trend Central Tool |
No additional charge | |
Billing Reports |
No additional charge | |
Implementation Package |
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Injured Worker Communications Packet includes 1 ID card Mailed Directly to Injured Worker |
No additional charge | |
Replacement Cards |
No additional charge | |
Customized Communication Materials |
Pricing upon request | |
Network Development Upon Request |
No additional charge | |
Program Setup |
No additional charge |
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EXHIBIT B
AUDIT PROTOCOL
1. | AUDIT PRINCIPLES |
ESI recognizes the importance of its clients ensuring the integrity of their business relationship by engaging in periodic audits of their financial arrangements with ESI. ESI provides this audit right to each and every client. In granting this right, ESIs primary interest is to facilitate a responsive and responsible audit process. In order to accomplish this goal, for all clients, ESI has established the following Protocol. Our intent is in no way to limit Sponsors ability to determine that ESI has properly and accurately administered the financial aspects of the Agreement, but rather to create a manageable process in order to be responsive to our clients and the independent auditors that they may engage. If Sponsor has any concern that this Protocol will prohibit Sponsor from fully confirming its financial arrangement with ESI, we encourage Sponsor to express such concern at the audit kick-off meeting.
2. | AUDIT PREREQUISITES |
A. | The financial aspects of the Agreement can be broken down into the following two main components. Sponsor has the right to audit any or all of these components, if applicable: |
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Claims |
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Performance Guarantees |
At Sponsors discretion, Sponsor may conduct an audit of each component separately, or may combine all components in one audit. In addition to the above audit rights, Sponsor may address general claim inquiries, which do not require an audit, by contacting Sponsors ESI Account Management team at any time.
B. | ESI will provide all data reasonably necessary for Sponsor to determine that ESI has performed in accordance with contractual terms. |
C. | ESI engages a national accounting firm, at its sole cost and expense, to conduct a SAS 70 audit on behalf of its clients. Upon request, ESI will provide the results of its most recent SAS 70 audit. Testing of the areas covered by the SAS 70 is not within the scope of Sponsors audit rights (i.e., to confirm the financial aspects of the Agreement) and is therefore not permitted. However, if requested, ESI will explain the SAS 70 audit process and findings to Sponsor in order for Sponsor to gain an understanding of the SAS 70. |
D. | ESI recommends that the initial audit period for a claims audit cover a timeframe not to exceed twenty-four (24) months immediately preceding the request to audit (the Audit Period). This Audit Period allows a reasonable amount of time for both parties to conclude the audit before claims data is archived off the adjudication system. ESI will accommodate reasonable requests to extend the Audit Period, but this may delay ESIs response time to audit findings due to the age of the claims. |
3. | AUDIT FINDINGS |
A. | Following Sponsors initial audit, Sponsor (or its Auditor) will provide ESI with a written report of suspected errors, if any. In order for ESI to evaluate Sponsors audit report, Sponsor shall provide an electronic data file in a mutually agreed upon format containing either a representative sample of claims, or the entire suspected error population, and the dollar amount associated with the suspected errors. |
B. | If Sponsor provides the entire suspected error population, consistent with generally accepted industry audit standards, ESI will evaluate a statistically valid sample of claims in order to provide a timely response. ESI will use commercially reasonable best efforts to respond to the audit report in no more than thirty (30) days from ESIs receipt of the report. Please be aware, however, that audits that require evaluation of six (6) or more findings typically require additional time to respond due to the complex nature of such audits. Our pledge to respond within the foregoing timeframe is predicated on a good faith and cooperative effort between Sponsor and/or its Auditor and ESI. |
C. | Following ESIs evaluation of Sponsors (or its Auditors) audit report, if the audit findings warrant an increase in the Audit Period or the number of contracts reviewed, then ESI and Sponsor will mutually determine the scope of further analysis. |
D. | Sponsor agrees that once audit results are accepted by both parties, the audit shall be considered closed and final. |
E. | ESI shall promptly pay overpayments (or Sponsor shall promptly pay underpayments, if applicable) upon closure of the audit. |
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EXHIBIT C
FINANCIAL DISCLOSURE TO ESI PBM CLIENTS
Express Scripts is a provider of pharmaceutical benefits management (PBM) and other related services to thousands of client groups including managed care organizations, health insurers, employer groups, third party administrators and government entities. Express Scripts subsidiary companies, some of which provide services related to supporting our PBM services, include ESI Mail Pharmacy Service, Inc., CuraScript, Inc., Express Scripts Specialty Distribution Services, Inc., and Phoenix Marketing Group, LLC. This disclosure provides an overview of the revenue sources that allow us to deliver competitive pricing arrangements to our clients.
Express Scripts offers its clients, either directly or through its subsidiary companies, a variety of services related to the management of prescription drug benefits. The specific services provided to each client are documented under the Pharmacy Benefit Management Agreement, or other similar agreement, with our client. Express Scripts PBM services typically include claims processing and adjudication, pharmacy network contracting and management, formulary development and management, rebate management and administration, trend management, and clinical program development and fulfillment. Some of our clients also utilize our mail service pharmacy to provide their Injured Workers with convenient access to safe and affordable prescription drugs through home delivery. In addition to the administrative fees paid to us by our clients for these core PBM services, Express Scripts derives revenue from other sources, including arrangements with pharmaceutical manufacturers and retail pharmacies. Some of this revenue relates to utilization of products by Injured Workers of the clients for whom we provide PBM services.
Network Pharmacies Express Scripts contracts for its own account with retail pharmacies to dispense prescription drugs to injured Workers of the clients for whom we provide PBM services. The rates paid by Express Scripts to these pharmacies differ from one network of pharmacies to the next, and among pharmacies within a network. Express Scripts generally contracts with clients to be paid an ingredient cost for drugs dispensed in a given retail network selected by the client at a uniform rate that applies to all pharmacies in the selected network. Thus, where the rate paid by a client exceeds the rate negotiated with a particular pharmacy, Express Scripts will realize a positive margin on the applicable prescription. The reverse may also be true, resulting in negative margin for Express Scripts. In addition, when Express Scripts receives payment from a client before payment to a pharmacy is due, Express Scripts retains the benefit of the use of the funds between these payments.
Manufacturer Rebates and Associated Administrative Fees Express Scripts contracts for its own account with pharmaceutical manufacturers to obtain rebates attributable to the utilization of certain prescription products by individuals who receive benefits from clients for whom we provide PBM services. Rebate amounts vary based on the volume of utilization as well as the benefit design and formulary position applicable to utilization of a product. Express Scripts often pays all or a portion of the rebates it receives to a client based on the clients PBM services agreement. Express Scripts retains the financial benefit of the use of any funds held until payment is made to a client. In connection with our maintenance and operation of the systems and other infrastructure necessary for managing and administering the rebate process, Express Scripts also receives administrative fees from pharmaceutical manufacturers participating in the rebate program discussed above. The services provided to participating manufacturers include making certain drug utilization data available, as allowed by law, for purposes of verifying and evaluating the rebate payments. The administrative fees paid to Express Scripts by manufacturers for participation in the rebate program do not exceed 3.5% of the AWP of the rebated products.
Pharmacy Dispensing and Distribution Express Scripts has several licensed pharmacy subsidiaries, including our specialty pharmacies. These entities purchase prescription drug inventories, either directly from manufacturers or from drug wholesalers, for dispensing to patients or for distribution to physician offices. Purchase discounts off the acquisition cost of these products are made available by manufacturers in the form of both up-front and retrospective discounts. Such discounts are not considered part of the rebates paid to Express Scripts by manufacturers in connection with our rebate program. While rebates are directly attributable to the utilization of pharmaceutical products by individuals who receive benefits from clients for whom we provide PBM services, product acquisition price discounts are based on a pharmacys inventory needs and, in the case of specialty pharmacies, the performance of related patient care service obligations. The purchase discounts obtained by these facilities are not based on any clients benefit design. When an Express Scripts subsidiary pharmacy dispenses or distributes a product from its inventory, the purchase price paid for the dispensed product, including applicable dispensing fees, may be greater or less than the pharmacys acquisition cost for the product net of purchase discounts. In general, our pharmacies realize an overall positive margin between this net acquisition cost and the amounts paid for the dispensed products.
Pharmaceutical Program Services Our specialty pharmacies, including CuraScript, Inc. and Express Scripts Specialty Distribution Services, Inc., receive compensation from manufacturers for their administration of programs related to the distribution of certain pharmaceutical products. This compensation is based on the fair market value of the services provided and is unrelated to the drug formulary development process or drug utilization applicable to the clients for whom we provide PBM services. Examples of these services include (i) administering patient assistance programs for indigent patients; (ii) administering product sample distribution programs; and (iii) dispensing prescription medications to patients enrolled in clinical trials.
Data Reporting Express Scripts sells certain data resulting from its PBM and pharmacy services to healthcare data aggregators and similar entities from time to time. We do not sell any data unless we are permitted to do so by the terms of our client contract and by applicable patient privacy laws. In addition, as a condition to receiving access to certain products, a specialty pharmaceutical manufacturer often will require a purchasing specialty pharmacy to report selected information to the manufacturer regarding the pharmacys service levels and other de-identified dispensing-related data with respect to patients who receive such manufacturers product. A portion of the discounts or other compensation made available to our specialty pharmacies represents compensation for such reporting. All such reporting activities are conducted in compliance with applicable patient privacy laws.
Other Pharmaceutical Manufacturer Services Phoenix Marketing Group, LLC specializes in the provision of sample fulfillment, sample accountability, alternative sampling, direct mail fulfillment, and literature fulfillment services for pharmaceutical manufacturers. Because its services involve only warehousing and fulfillment-related functions, this subsidiary entity does not review products clinically and it never uses, sells or has access to Express Scripts client or injured Worker information. Compensation paid to Phoenix Marketing Group, LLC by pharmaceutical manufacturers is based on the fair market value of such services, as established most often through an RFP process, and any such compensation is unrelated to the drug formulary development process or drug utilization applicable to the clients for whom Express Scripts provides PBM services.
July, 2005: THIS EXHIBIT REPRESENTS ESIS CURRENT FINANCIAL POLICIES. THIS EXHIBIT MAY NOT BE REVISED OR MODIFIED. ESI MAY PERIODICALLY UPDATE ITS FINANCIAL DISCLOSURES TO REFLECT CHANGES IN ITS BUSINESS PROCESSES.
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TO: | MSC Pharmacy Services Client | |
FROM: | Artemis Emslie, Sr. Director, Workers Compensation Account Management | |
DATE: | September 18, 2008 | |
SUBJECT: | Express Scripts Integration Client Communication |
In our communication dated September 16, 2008 that addressed pending changes to Contact Information, Remittance & Billing Information and File Transfer Protocol address, three items that were referenced in the letter were inadvertently excluded from your mailing:
ATTACHMENT A: FINANCIAL DISCLOSURE TO ESI PBM CLIENTS
ATTACHMENT B: ESI AUDIT PROTOCOL
ATTACHMENT C: W9 tax form with Express Scripts Federal Tax ID
Your account teams will reach out to follow up on the communication. We apologize for any confusion.
ATTACHMENT A: FINANCIAL DISCLOSURE TO ESI PBM CLIENTS
Express Scripts is a provider of pharmaceutical benefits management (PBM) and other related services to thousands of client groups including managed care organizations, health insurers, employer groups, third party administrators and government entities. Express Scripts subsidiary companies, some of which provide services related to supporting our PBM services, include ESI Mail Pharmacy Service, Inc., CuraScript, Inc., Express Scripts Specialty Distribution Services, Inc., and Phoenix Marketing Group, LLC. This disclosure provides an overview of the revenue sources that allow us to deliver competitive pricing arrangements to our clients.
Express Scripts offers its clients, either directly or through its subsidiary companies, a variety of services related to the management of prescription drug benefits. The specific services provided to each client are documented under the Pharmacy Benefit Management Agreement, or other similar agreement, with our client. Express Scripts PBM services typically include claims processing and adjudication, pharmacy network contracting and management, formulary development and management, rebate management and administration, trend management, and clinical program development and fulfillment. Some of our clients also utilize our mail service pharmacy to provide their members with convenient access to safe and affordable prescription drugs through home delivery. In addition to the administrative fees paid to us by our clients for these core PBM services, Express Scripts derives revenue from other sources, including arrangements with pharmaceutical manufacturers and retail pharmacies. Some of this revenue relates to utilization of products by members of the clients for whom we provide PBM services.
Network Pharmacies Express Scripts contracts for its own account with retail pharmacies to dispense prescription drugs to members of the clients for whom we provide PBM services. The rates paid by Express Scripts to these pharmacies differ from one network of pharmacies to the next, and among pharmacies within a network. Express Scripts generally contracts with clients to be paid an ingredient cost for drugs dispensed in a given retail network selected by the client at a uniform rate that applies to all pharmacies in the selected network. Thus, where the rate paid by a client exceeds the rate negotiated with a particular pharmacy, Express Scripts will realize a positive margin on the applicable prescription. The reverse may also be true, resulting in negative margin for Express Scripts. In addition, when Express Scripts receives payment from a client before payment to a pharmacy is due, Express Scripts retains the benefit of the use of the funds between these payments.
Manufacturer Rebates and Associated Administrative Fees Express Scripts contracts for its own account with pharmaceutical manufacturers to obtain rebates attributable to the utilization of certain prescription products by individuals who receive benefits from clients for whom we provide PBM services. Rebate amounts vary based on the volume of utilization as well as the benefit design and formulary position applicable to utilization of a product. Express Scripts often pays all or a portion of the rebates it receives to a client based on the clients PBM services agreement. Express Scripts retains the financial benefit of the use of any funds held until payment is made to a client. In connection with our maintenance and operation of the systems and other infrastructure necessary for managing and administering the rebate process, Express Scripts also receives administrative fees from pharmaceutical manufacturers participating in the rebate program discussed above. The services provided to participating manufacturers include making certain drug utilization data available, as allowed by law, for purposes of verifying and evaluating the rebate payments. The administrative fees paid to Express Scripts by manufacturers for participation in the rebate program do not exceed 3.5% of the AWP of the rebated products.
Pharmacy Dispensing and Distribution Express Scripts has several licensed pharmacy subsidiaries, including our specialty pharmacies. These entities purchase prescription drug inventories, either directly from manufacturers or from drug wholesalers, for dispensing to patients or for distribution to physician offices. Purchase discounts off the acquisition cost of these products are made available by manufacturers in the form of both up-front and retrospective discounts. Such discounts are not considered part of the rebates paid to Express Scripts by manufacturers in connection with our rebate program. While rebates are directly attributable to the utilization of pharmaceutical products by individuals who receive benefits from clients for whom we provide PBM services, product acquisition price discounts are based on a pharmacys inventory needs and, in the case of specialty pharmacies, the performance of related patient care service obligations. The purchase discounts obtained by these facilities are not based on any clients benefit design. When an Express Scripts subsidiary pharmacy dispenses or distributes a product from its inventory, the purchase price paid for the dispensed product, including applicable dispensing fees, may be greater or less than the pharmacys acquisition cost for the product net of purchase discounts. In general, our pharmacies realize an overall positive margin between this net acquisition cost and the amounts paid for the dispensed products.
Pharmaceutical Program Services Our specialty pharmacies, including CuraScript, Inc. and Express Scripts Specialty Distribution Services, Inc., receive compensation from manufacturers for their administration of programs related to the distribution of certain pharmaceutical products. This compensation is based on the fair market value of the services provided and is unrelated to the drug formulary development process or drug utilization applicable to the clients for whom we provide PBM services. Examples of these services include (i) administering patient assistance programs for indigent patients; (ii) administering product sample distribution programs; and (iii) dispensing prescription medications to patients enrolled in clinical trials.
Data Reporting Express Scripts sells certain data resulting from its PBM and pharmacy services to healthcare data aggregators and similar entities from time to time. We do not sell any data unless we are permitted to do so by the terms of our client contract and by applicable patient privacy laws. In addition, as a condition to receiving access to certain products, a specialty pharmaceutical manufacturer often will require a purchasing specialty pharmacy to report selected information to the manufacturer regarding the pharmacys service levels and other de-identified dispensing-related data with respect to patients who receive such manufacturers product. A portion of the discounts or other compensation made available to our specialty pharmacies represents compensation for such reporting. All such reporting activities are conducted in compliance with applicable patient privacy laws.
Other Pharmaceutical Manufacturer Services Phoenix Marketing Group, LLC specializes in the provision of sample fulfillment, sample accountability, alternative sampling, direct mail fulfillment, and literature fulfillment services for pharmaceutical manufacturers. Because its services involve only warehousing and fulfillment-related functions, this subsidiary entity does not review products clinically and it never uses, sells or has access to Express Scripts client or member information. Compensation paid to Phoenix Marketing Group, LLC by pharmaceutical manufacturers is based on the fair market value of such services, as established most often through an RFP process, and any such compensation is unrelated to the drug formulary development process or drug utilization applicable to the clients for whom Express Scripts provides PBM services.
July, 2005
THIS EXHIBIT REPRESENTS ESIS CURRENT FINANCIAL POLICIES. THIS EXHIBIT MAY NOT BE REVISED OR MODIFIED. ESI MAY PERIODICALLY UPDATE ITS FINANCIAL DISCLOSURES TO REFLECT CHANGES IN ITS BUSINESS PROCESSES
ATTACHMENT B: ESI AUDIT PROTOCOL
1. | AUDIT PRINCIPLES |
ESI recognizes the importance of its clients ensuring the integrity of their business relationship by engaging in periodic audits of their financial arrangements with ESI. ESI provides this audit right to each and every client. In granting this right, ESIs primary interest is to facilitate a responsive and responsible audit process. In order to accomplish this goal, for all clients, ESI has established the following Protocol. Our intent is in no way to limit Clients ability to determine that ESI has properly and accurately administered the financial aspects of the Agreement, but rather to create a manageable process in order to be responsive to our clients and the independent auditors that they may engage. If Client has any concern that this Protocol will prohibit Client from fully confirming its financial arrangement with ESI, we encourage Client to express such concern at the audit kick-off meeting.
2. | AUDIT PREREQUISITES |
A. | The financial aspects of the Agreement can be broken down into the following two main components. Client has the right to audit any or all of these components, if applicable: |
|
Claims |
|
Performance Guarantees |
At Clients discretion, Client may conduct an audit of each component separately, or may combine all components in one audit. In addition to the above audit rights, Client may address general claim inquiries, which do not require an audit, by contacting Clients ESI Account Management team at any time.
B. | ESI will provide all data reasonably necessary for Client to determine that ESI has performed in accordance with contractual terms. |
C. | ESI engages a national accounting firm, at its sole cost and expense, to conduct a SAS 70 audit on behalf of its clients. Upon request, ESI will provide the results of its most recent SAS 70 audit. Testing of the areas covered by the SAS 70 is not within the scope of Clients audit rights (i.e., to confirm the financial aspects of the Agreement) and is therefore not permitted. However, if requested, ESI will explain the SAS 70 audit process and findings to Client in order for Client to gain an understanding of the SAS 70. |
D. | ESI recommends that the initial audit period for a claims audit cover a timeframe not to exceed twenty-four (24) months immediately preceding the request to audit (the Audit Period). This Audit Period allows a reasonable amount of time for both parties to conclude the audit before claims data is archived off the adjudication system. ESI will accommodate reasonable requests to extend the Audit Period, but this may delay ESIs response time to audit findings due to the age of the claims. |
3. | AUDIT FINDINGS |
A. | Following Clients initial audit, Client (or its Auditor) will provide ESI with a written report of suspected errors, if any. In order for ESI to evaluate Clients audit report, Client shall provide an electronic data file in a mutually agreed upon format containing either a representative sample of claims, or the entire suspected error population, and the dollar amount associated with the suspected errors. |
B. | If Client provides the entire suspected error population, consistent with generally accepted industry audit standards, ESI will evaluate a statistically valid sample of claims in order to provide a timely response. ESI will use commercially reasonable best efforts to respond to the audit report in no more than thirty (30) days from ESIs receipt of the report. Please be aware, however, that audits that require evaluation of six (6) or more findings typically require additional time to respond due to the complex nature of such audits. Our pledge to respond within the foregoing timeframe is predicated on a good faith and cooperative effort between Client and/or its Auditor and ESI. |
C. | Following ESIs evaluation of Clients (or its Auditors) audit report, if the audit findings warrant an increase in the Audit Period or the number of contracts reviewed, then ESI and Client will mutually determine the scope of further analysis. |
D. | Client agrees that once audit results are accepted by both parties, the audit shall be considered closed and final. |
E. | ESI shall promptly pay overpayments (or Client shall promptly pay underpayments, if applicable) upon closure of the audit. |
Exhibit 10.29
INTERESTS AND LIABILITIES AGREEMENT
(the Agreement)
of
HANNOVER REINSURANCE (IRELAND) LIMITED
(the Subscribing Reinsurer)
with respect to the
SECOND CASUALTY EXCESS OF LOSS
REINSURANCE CONTRACT
(the Contract)
issued to
AMERICAN INTERSTATE INSURANCE COMPANY
DeRiddcr, Louisiana
and
AMERICAN INTERSTATE INSURANCE COMPANY OF TEXAS
Austin, Texas
AND
SILVER OAK CASUALTY, INC.
DeRidder, Louisiana
and
any other insurance companies which are now or hereafter come under the ownership,
control or management of Amerisafe, Inc.
(the Company)
The Subscribing Reinsurer shall have a 100.00% share in the interests and liabilities of the Reinsurer as set forth in the Contract attached hereto and executed by the Company.
This Agreement shall commence at 12:01 a.m., Standard Time, January 1, 2009 and shall continue in force until 12:01 a.m., Standard Time, January 1, 2012.
IN WITNESS WHEREOF, the Subscribing Reinsurer by its duly authorized representative has executed this Agreement as of the date specified below:
Signed this 7 th day of January, 2009.
HANNOVER REINSURANCE (IRELAND) LIMITED | ||||||||
By | /s/ Thomas Doran | /s/ Donna Gallagher |
|
|||||
Print Name | Thomas Doran | Donna Gallagher | ||||||
Title | Associate Director | Asst. Underwriter |
AMERICAN INTERSTATE INSURANCE COMPANY
DeRidder, Louisiana
and
AMERICAN INTERSTATE INSURANCE COMPANY OF TEXAS
Austin, Texas
and
SILVER OAK CASUALTY, INC.
DeRidder, Louisiana
and
any other insurance companies which are now or hereafter come under the ownership,
control or management of Amerisafe, Inc.
SECOND CASUALTY EXCESS OF LOSS
REINSURANCE CONTRACT
TABLE OF CONTENTS
I |
BUSINESS COVERED | 1 | ||
II |
TERM | 2 | ||
III |
SPECIAL TERMINATION | 2 | ||
IV |
DEFINITIONS | 4 | ||
Act of Terrorism |
4 | |||
Declaratory Judgment Expense |
5 | |||
Extra Contractual Obligations/Loss in Excess of Policy Limits |
5 | |||
Loss Adjustment Expense |
5 | |||
Loss Occurrence |
6 | |||
Net Earned Premium |
7 | |||
Written Premium |
7 | |||
Policy |
7 | |||
Contract Year |
7 | |||
Policy Year Manual Payroll (excluding clerical) |
7 | |||
Ultimate Net Loss |
8 | |||
V |
TERRITORY | 8 | ||
VI |
EXCLUSIONS | 8 | ||
VII |
TERRORISM RISK INSURANCE PROGRAM REAUTHORIZATION ACT | 11 | ||
VIII |
COVERAGE | 11 | ||
IX |
MATERIAL CHANGE | 12 | ||
X |
REINSURANCE PREMIUM | 14 | ||
XI |
FUNDS WITHHELD ACCOUNT | 15 | ||
XII |
NOTICE OF LOSS AND LOSS SETTLEMENTS | 17 | ||
XIII |
LIABILITY OF REINSURERS | 17 | ||
XIV |
LATE PAYMENTS | 17 | ||
XV |
REPORTS AND REMITTANCES | 18 | ||
XVI |
COMMUTATION | 19 | ||
XVII |
NOTIONAL EXPERIENCE ACCOUNT | 21 | ||
XVIII |
ANNUITIES AT THE COMPANYS OPTION | 21 | ||
XIX |
SUNSET | 22 | ||
XX |
SUBROGATION | 22 | ||
XXI |
ERRORS AND OMISSIONS | 22 | ||
XXII |
OFFSET | 23 | ||
XXIII |
CURRENCY | 23 |
XXIV |
TAXES | 23 | ||
XXV |
FEDERAL EXCISE TAX | 23 | ||
XXVI |
NET RETAINED LINES | 24 | ||
XXVII |
THIRD PARTY RIGHTS | 24 | ||
XXVIII |
SEVERABILITY | 24 | ||
XXVIX |
GOVERNING LAW | 24 | ||
XXX |
ACCESS TO RECORDS | 25 | ||
XXXI |
CONFIDENTIALITY | 25 | ||
XXXII |
INSOLVENCY | 25 | ||
XXXIII |
ARBITRATION | 26 | ||
XXXIV |
UNAUTHORIZED REINSURANCE | 28 | ||
XXXV |
SERVICE OF SUIT | 31 | ||
XXXVI |
MODE OF EXECUTION | 32 | ||
XXXVII |
ENTIRE AGREEMENT | 32 | ||
XXXVIII |
INTERMEDIARY | 32 | ||
Nuclear Incident Exclusion Clause - Liability - Reinsurance - U.S.A. |
SECOND CASUALTY EXCESS OF LOSS
REINSURANCE CONTRACT
(the Contract)
between
AMERICAN INTERSTATE INSURANCE COMPANY
DeRidder, Louisiana
and
AMERICAN INTERSTATE INSURANCE COMPANY OF TEXAS
Austin, Texas
and
SILVER OAK CASUALTY, INC.
DeRidder, Louisiana
and
any other insurance companies which are now or hereafter come under the ownership,
control or management of Amerisafe, Inc.
(collectively the Company)
and
THE SUBSCRIBING REINSURER(S) EXECUTING THE
INTERESTS AND LIABILITIES AGREEMENT(S)
ATTACHED HERETO
(the Reinsurer)
ARTICLE I
BUSINESS COVERED
By this Contract the Reinsurer agrees to reinsure the excess liability of the Company under its Policies that are in force at the effective time and date hereof or issued or renewed at or after that time and date, and classified by the Company as Workers Compensation, Employers Liability, including but not limited to coverage provided under the U.S. Longshore and Harbor Workers Compensation Act, Jones Act, Outer Continental Shelf Lands Act and any other Federal Coverage extensions and General Liability business, subject to the terms, conditions and limitations hereafter set forth.
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ARTICLE II
TERM
A. | This Contract shall apply to all losses occurring during the period 12:01 a.m., Standard Time, January 1, 2009 (as set forth in the Companys policies) to 12:01 a.m., Standard Time, January 1, 2012. |
B. | Upon the expiration or termination of this Contract, the entire liability of the Reinsurer for losses occurring subsequent to the date of expiration or termination shall cease concurrently with the date of expiration or termination of this Contract. |
C. | If this Contract expires or is terminated while a Loss Occurrence covered hereunder is in progress, the Reinsurers liability hereunder shall, subject to the other terms and conditions of this Contract, be determined as if the entire Loss Occurrence had occurred prior to the expiration of this Contract, provided that no part of such Loss Occurrence is claimed against any renewal or replacement of this Contract. |
D. | The Reinsurer shall have no right to either terminate or commute this Contract other than as set forth in paragraph G of the MATERIAL CHANGE ARTICLE or paragraph A of the COMMUTATION ARTICLE or paragraph B of the SPECIAL TERMINATION ARTICLE. |
E. | This Contract shall continue in force and shall apply, subject to all of the terms and limits hereof, to the Companys Ultimate Net Loss until this Contract has been commuted in accordance with the terms of the COMMUTATION ARTICLE or until all Ultimate Net Loss has been paid by the Reinsurer in accordance with the terms of the COVERAGE ARTICLE. |
ARTICLE III
SPECIAL TERMINATION
A. | The Company may terminate a subscribing reinsurers share in this Contract by giving 90 days written notice to the subscribing reinsurer upon the happening of any one of the following circumstances: |
1. | A State Insurance Department or other legal authority orders the subscribing reinsurer to cease writing business, or |
2. | The subscribing reinsurer has become insolvent or has been placed into liquidation or receivership (whether voluntary or involuntary), or there has been instituted against it proceedings for the appointment of a receiver, liquidator, rehabilitator, conservator, or trustee in bankruptcy, or other agent known by whatever name, to take possession of its assets or control of its operations, or |
3. |
For any period not exceeding 12 months which commences no earlier than 12 months prior to the inception of this Contract, the subscribing reinsurers policyholders |
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surplus, as reported in the financial statements of the subscribing reinsurer, has been reduced by 20.0% or more, or |
4. | The subscribing reinsurer has become merged with, acquired or controlled by any company, corporation, or individual(s) not controlling the subscribing reinsurers operations previously, or |
5. | The subscribing reinsurer has reinsured its entire liability under this Contract without the Companys prior written consent, or |
6. | The subscribing reinsurer receives an A. M. Best rating of lower than A-, or an S&P financial strength rating of lower than A-, or |
7. | The subscribing reinsurer has ceased writing new and renewal reinsurance for the lines of business covered hereunder, or |
8. | The Companys outside auditors determine during the first two months of the Term of the Contract that the Contract does not provide sufficient risk transfer to constitute reinsurance in accordance with the Financial Accounting Standards Board Statements guidelines. |
B. | A subscribing reinsurer may terminate their share of this Contract by giving 90 days written notice to the Company upon the happening of any one of the following circumstances: |
1. | A State Insurance Department or other legal authority orders the Company to cease writing business, or |
2. | The Company has become insolvent or has been placed into liquidation or receivership (whether voluntary or involuntary), or there has been instituted against it proceedings for the appointment of a receiver, liquidator, rehabilitator, conservator, or trustee in bankruptcy, or other agent known by whatever name, to take possession of its assets or control of its operations, or |
3. | The Company has become merged with, acquired or controlled by any company, corporation, or individual(s) not controlling the subscribing reinsurers operations previously. |
C. | In the event of termination in accordance with paragraph A or B, above, the following shall apply as respects reinsurance premium and reinsurance limits: |
1. | If terminated prior to or at the expiration of Contract Year 1, the reinsurance premium shall be prorated as of the termination date for Contract Year 1. The Reinsurers limit of liability in respect of all losses occurring during the term of this Contract shall be equal to the limits available any one Contract Year under the COVERAGE ARTICLE being $10,000,000 prorated as of the termination date. |
2. |
If terminated at any time during Contract Year 2 or Contract Year 3, the reinsurance premium shall be the premium for any full Contract Year prior to the termination date |
3
plus the reinsurance premium for the Contract Year in which the termination occurs, prorated as of the termination date. The Reinsurers limit of liability in respect of all losses occurring during the Contract Year in which the termination occurs shall be equal to the limits available any one Contract Year under the COVERAGE ARTICLE being $10,000,000 prorated as of the termination date. The Reinsurers limit of liability in respect of all losses occurring during the term of this Contract shall be equal to the limits available during the term of this Contract under the COVERAGE ARTICLE being $20,000,000 prorated as of the termination date and subject to a minimum of $ 10,000,000. |
D. | In the event the Company terminates a subscribing reinsurers share in this Contract under the provision of this Article, the Company has the option, but not obligation, to commute the subscribing reinsurers past liabilities for losses in accordance with the COMMUTATION ARTICLE. |
E. | In the event the Company terminates a subscribing reinsurers share in this Contract under the provision of this Article, the Company shall have the option to require the subscribing reinsurer to fund its share of outstanding loss and Loss Adjustment Expense reserves, reserves for losses and Loss Adjustment Expense incurred but not reported to the Company (IBNR as determined by the Company) and any other balances or financial obligations. Within 30 days of the Companys written request to fund, the subscribing reinsurer shall provide to the Company a clean, unconditional, evergreen, irrevocable letter of credit or a trust agreement which establishes a trust account for the benefit of the Company. The method of funding must be acceptable to the Company, shall be established with a financial institution suitable to the Company, shall comply with any applicable state or federal laws or regulations involving the Companys ability to recognize these agreements as assets or offsets to liabilities in such jurisdictions and shall be at the sole expense of the subscribing reinsurer. The Company and the subscribing reinsurer may mutually agree on alternative methods of funding or the use of a combination of methods. This option is available to the Company at any time there remains any outstanding liabilities of the subscribing reinsurer. Notwithstanding the foregoing, the Company shall not require funding in accordance with this subparagraph in the event the subscribing reinsurer has otherwise fully funded its obligations under this Contract in a manner acceptable to the Company. |
ARTICLE IV
DEFINITIONS
A. | Act of Terrorism |
Act of Terrorism as used herein shall mean any act that is certified as an act of terrorism under the Terrorism Risk Insurance Program Reauthorization Act of 2007 and any other extensions or amendments thereto (TRIPRA).
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B. | Declaratory Judgment Expense |
Declaratory Judgment Expense as used herein shall mean all expenses incurred by the Company in connection with a declaratory judgment action brought to determine the Companys defense and/or indemnification obligations that are allocable to a specific claim subject to this Contract. Declaratory Judgment Expense shall be deemed to have been incurred on the date of the original loss (if any) giving rise to the declaratory judgment action.
C. | Extra Contractual Obligations/Loss in Excess of Policy Limits |
1. | Extra Contractual Obligations |
This Contract shall protect the Company for any Extra Contractual Obligations which as used herein shall mean any punitive, exemplary, compensatory or consequential damages, other than Loss in Excess of Policy Limits, paid or payable by the Company as a result of an action against it by its insured, its insureds assignee or a third party claimant, by reason of alleged or actual negligence, fraud or bad faith on the part of the Company in handling a claim under a Policy subject to this Contract.
An Extra Contractual Obligation shall be deemed to have occurred on the same date as the loss covered or alleged to be covered under the Policy.
2. | Loss in Excess of Policy Limits |
This Contract shall protect the Company for any Loss in Excess of Policy Limits which as used herein shall mean an amount that the Company would have been contractually liable to pay had it not been for the limit of the original Policy as a result of an action against it by its insured, its insureds assignee or a third party claimant. Such loss in excess of the limit shall have been incurred because of failure by the Company to settle within the Policy limit, or by reason of alleged or actual negligence, fraud, or bad faith in rejecting an offer of settlement or in the preparation of the defense or in the trial of any action against its insured or in the preparation or prosecution of an appeal consequent upon such action.
3. | Notwithstanding anything stated herein, this paragraph C shall not apply where an Extra Contractual Obligation and/or Loss in Excess of Policy Limits has been incurred due to an adjudicated finding of fraud and/or criminal act committed by a member of the Board of Directors or a corporate officer or any employee of the Company acting individually or collectively or in collusion with a member of the Board of Directors or a corporate officer or a partner of any other corporation or partnership. |
D. | Loss Adjustment Expense |
Loss Adjustment Expense as used herein shall mean all costs and expenses allocable to a specific claim that are incurred by the Company in the investigation, appraisal, adjustment, settlement, litigation, defense or appeal of a specific claim, including court costs and costs
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of supersedeas and appeal bonds, and including 1) pre-judgment interest, unless included as part of the award or judgment; 2) post-judgment interest; 3) legal expenses and costs incurred in connection with coverage questions and legal actions connected thereto, including Declaratory Judgment Expense; and 4) a pro rata share of salaries and expenses of Company field employees, and expenses of other Company employees who have been temporarily diverted from their normal and customary duties and assigned to the field adjustment of losses covered by this Contract. Loss Adjustment Expense does not include unallocated loss adjustment expense. Unallocated loss adjustment expense includes, but is not limited to, salaries and expenses of employees, other than (4) above, and office and other overhead expenses.
E. | Loss Occurrence |
Loss Occurrence as used herein shall mean any one disaster or casualty or accident or loss or series of disasters or casualties or accidents or losses arising out of or caused by one event. Within the context of this definition and except for Occupational Disease and Cumulative Trauma, the Company shall be the sole judge of what constitutes one event.
1. | As respects losses resulting from Occupational or Industrial Disease or Cumulative Trauma, each employee shall be considered a separate Loss Occurrence subject to the following: |
Losses resulting from Occupational or Industrial Disease or Cumulative Trauma suffered by employees of an insured for which the employer is liable, as a result of a sudden and accidental event not exceeding 72 hours in duration, shall be considered one Loss Occurrence and may be combined with losses classified as other than Occupational or Industrial Disease or Cumulative Trauma which arise out of the same event and the combination of such losses shall be considered as one Loss Occurrence within the meaning hereof.
Occupational or Industrial disease is any abnormal condition that fulfills all of the following conditions:
1. It is not traceable to a definite compensable accident occurring during the employees past or present employment
2. It has been caused by exposure to a disease producing agent or agents present in the workers occupational environment.
3. It has resulted in death or disability.
Cumulative Trauma is an injury that fulfils all of the following conditions:
1. It is not traceable to a definite compensable accident occurring during the employees past or present employment and shall be as defined by applicable statutes or regulations.
2. It has occurred from and has been aggravated by a repetitive employment related activity.
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3. It has resulted in death or disability.
2. | As respects General Liability policies where the Companys limit of liability for Products and Completed Operations coverages is determined on the basis of the insureds aggregate losses during a policy period, all such losses proceeding from or traceable to the same causative agency shall, at the Companys option, be deemed to have been caused by one occurrence commencing at the beginning of the policy period, it being understood and agreed that each renewal or annual anniversary date of the policy involved shall be deemed the beginning of a new policy period. |
F. | Net Earned Premium |
Net Earned Premium as used herein is defined as the gross earned premium of the Company for the classes of business reinsured hereunder, less the earned portion of premiums ceded by the Company for reinsurance which inures to the benefit of this Contract, less dividends paid or accrued.
G. | Written Premium |
Written Premium as used herein is defined as used in the companys data system.
H. | Policy |
Policy or Policies as used herein shall mean the Companys binders, policies and contracts providing insurance or reinsurance on the classes of business covered under this Contract.
I. | Contract Year |
Contract Year as used herein shall mean each 12-month period as follows:
1. | Contract Year 1: 12:01 a.m., Standard Time, January 1, 2009 (as set forth in the Companys policies) to 12:01 a.m., Standard Time, January 1, 2010. |
2. | Contract Year 2: 12:01 a.m., Standard Time, January 1, 2010 (as set forth in the Companys policies) to 12:01 a.m., Standard Time, January 1, 2011. |
3. | Contract Year 3: 12:01 a.m., Standard Time, January 1, 2011 (as set forth in the Companys policies) to 12:01 a.m., Standard Time, January 1, 2012. |
J. | Policy Year Manual Payroll (excluding clerical) |
Policy Year Manual Payroll (excluding clerical) shall mean manual payroll as used for applying manual premium rates for policies incepting or renewed during the calendar year excluding manual payroll for Manual Class Codes 8810 and 953. The 2008 Policy year manual payroll (excluding clerical) is estimated to be $3,632,660,713.
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K. | Ultimate Net Loss |
Ultimate Net Loss shall mean the actual loss, including any pre-judgment interest which is included as part of the award or judgment, Second Injury Fund assessments that can be allocated to specific claims, Loss Adjustment Expense, 90% of Loss in Excess of Policy Limits, and 90% of Extra Contractual Obligations, paid or to be paid by the Company on its net retained liability after making deductions for all recoveries, subrogations and all claims on inuring reinsurance, whether collectible or not; provided, however, that in the event of the insolvency of the Company, payment by the Reinsurer shall be made in accordance with the provisions of the INSOLVENCY ARTICLE. Nothing herein shall be construed to mean that losses under this Contract are not recoverable until the Companys Ultimate Net Loss has been ascertained.
Notwithstanding the definition of Ultimate Net Loss herein, the provisions of paragraph D of the COVERAGE ARTICLE as respects the Minnesota Workers Compensation Reinsurance Association shall apply.
ARTICLE V
TERRITORY
The territorial limits of this Contract shall be identical with those of the Companys Policies.
ARTICLE VI
EXCLUSIONS
A. | This Contract does not apply to and specifically excludes the following: |
1. | Reinsurance assumed by the Company under obligatory reinsurance agreements, except: |
a. | Agency reinsurance where the policies involved are to be reunderwritten in accordance with the underwriting standards of the Company and reissued as Company policies at the next anniversary or expiration date; and |
b. | Intercompany reinsurance between any of the reinsured companies under this Contract. |
2. | Nuclear risks as defined in the Nuclear Incident Exclusion ClauseLiabilityReinsuranceU.S.A. (NMA 1590 21/9/67) attached hereto. |
3. | Liability as a member, subscriber or reinsurer of any Pool, Syndicate or Association, including Assigned Risk Plans or similar plans; however, this exclusion shall not apply to liability under a Policy specifically designated to the Company from an Assigned Risk Plan or similar plan. |
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4. | All liability of the Company arising by contract, operation of law, or otherwise, from its participation or membership, whether voluntary or involuntary, in any Insolvency Fund. Insolvency Fund includes any guaranty fund, insolvency fund, plan, pool, association, fund or other arrangement, however denominated, established or governed, which provides for any assessment of or payment or assumption by the Company of part or all of any claim, debt, charge, fee or other obligation of an insurer, or its successors or assigns, which has been declared by any competent authority to be insolvent, or which is otherwise deemed unable to meet any claim, debt, charge, fee or other obligation in whole or in part. |
5. | Any Act of Terrorism directly or indirectly involving the use of nuclear, chemical, biological or radiological devices. |
6. | Business written to apply in excess of a deductible of more than $25,000, and business issued to apply specifically in excess over underlying insurance. However, if the Company is required, by any state regulation, to provide a deductible of more than $25,000, this exclusion shall not apply. |
7. | Workers Compensation where the principal exposure, as defined by the governing class code, is: |
a. | Operation of aircraft, but only if the annual estimated policy premium is $250,000 or more; |
b. | Operation of Railroads, subways or street railways; |
c. | Operation or navigation of vessels or barges; |
d. | Manufacturing, assembly, packing or processing of fireworks, fuses, nitroglycerine, magnesium, pyroxylin, ammunition or explosives. This exclusion does not apply to the assembly, packing or processing of explosives when the estimated annual premium is under $250,000 and does not apply to the commercial use of explosives |
e. | Underground mining. |
8. | As respects General Liability policies, exposures, other than those identified below, as included in the General Liability section of the Companys Commercial Lines Manual: |
a. | Class 97111 Logging; |
b. | Class 58873 Sawmill; |
c. | Class 59984 Woodyard and Drivers; |
d. | Class 95410 Grading of Land; |
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e. | Class 45819 Lumber Yard; |
f. | Class 10073 Repair Shops and Drivers; |
g. | Class 43822 Timber Cruiser; |
h. | Class 99793 Truckmen Not Otherwise Classified; |
i. | Class 91591 Contractors Subcontracted Work Other Than Construction; |
j. | Class 49452 Vacant Land. |
9. | All excess of loss reinsurance assumed by the Company. |
10. | Business written by the Company on a co-indemnity basis where the Company is not the controlling carrier. |
11. | As regards interests which at the time of loss or damage are on shore, no liability shall attach hereto in respect to any loss or damage which is occasioned by war, invasion, hostilities, acts of foreign enemies, civil war, rebellion, insurrection, military or usurped power, or martial law or confiscation by order of any government or public authority. This War Exclusion Clause shall not, however, apply to interests which at time of loss or damage are within the territorial limits of the United States of America (comprising the Fifty States of the Union, the District of Columbia and including bridges between the United States of America and Mexico provided they are under United States ownership), Canada, St. Pierre and Miquelon, provided such interests are insured under policies containing a standard war or hostilities or warlike operations exclusion clause. |
12. | Any kind of damage (bodily injury, property damage or personal and advertising injury) arising directly or indirectly out of, caused by, in connection with, or in any way related to the inhalation of diacetyl. Additionally, the Reinsurer shall not have any duty to pay any defense costs arising from any suit seeking damages on account of any such injury. |
B. | Notwithstanding the foregoing, insureds regularly engaged in operations not excluded under paragraph A above, but whose operations may include one or more perils excluded therein, shall not be excluded from coverage afforded by this Contract, provided said operations are incidental to the main operations of the insured. Notwithstanding the foregoing, coverage extended under this paragraph for incidental operations of an insured shall not apply to exposures excluded under subparagraphs 1 though 5 and 11 of paragraph A above. The Company shall be the judge of what constitutes an incidental part of the insureds operation. |
C. |
Except for subparagraphs 1 through 5 and 11 of paragraph A above, if the Company is inadvertently bound or is unknowingly exposed (due to error or automatic provisions of policy coverage) on a risk otherwise excluded in paragraph A above, such exclusion shall be waived. The duration of said waiver will not extend beyond the time that notice of such coverage has been received by a responsible underwriting authority of the Company and |
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for a period not exceeding 30 days thereafter, or such longer period required to conform with any notice of cancellation provisions prescribed by regulatory authorities, such period not to exceed 12 months plus odd time (not exceeding 18 months). |
D. | If the Company is required to accept an assigned risk which conflicts with one or more of the exclusions set forth in subparagraph 6 of paragraph A, reinsurance shall apply, but only for the difference between the Companys retention and the limit required by the applicable state statute, and in no event shall the Reinsurers liability exceed the limit set forth in the Coverage Article. |
E. | Notwithstanding the foregoing, any reinsurance falling within the scope of one or more of the exclusions set forth above that is specially accepted by the Reinsurer from the Company shall be covered under this Contract and be subject to the terms hereof. |
F. | Should a court of competent jurisdiction invalidate any exclusion or expand coverage of the original Policy of the Company, any amount of Loss for which the Company would not be liable, except for such invalidation or expansion of coverage, shall not be subject to any of the exclusions, conditions and limitations hereinafter set forth under this Contract. |
ARTICLE VII
TERRORISM RISK INSURANCE PROGRAM REAUTHORIZATION ACT
A. | The Reinsurer will indemnify the Company for all loss resulting from Acts of Terrorism (excluding Acts of Terrorism caused by or result from nuclear, biological, chemical or radiological events), but only to the extent that such losses are recoverable under the terms and conditions of this contract and that such losses only include that portion of loss that is not recoverable under the Terrorism Risk Insurance Program Reauthorization Act of 2007 (TRIPRA) and any subsequent amendments. Under no circumstances will Reinsurers fund any losses recoverable under TRIPRA. In the event of a subsequent recovery under TRIPRA in respect of any paid loss under this Contract, that recovery shall inure to the benefit of the Reinsurers. |
ARTICLE VIII
COVERAGE
A. | The Reinsurer shall be liable for the amount of Ultimate Net Loss in excess of the Companys retention, being $5,000,000 each Loss Occurrence, subject to a limit of liability to the Reinsurer of $5,000,000 each Loss Occurrence. The Reinsurers liability in respect of all losses occurring during the term of this Contract shall not exceed $10,000,000 any one Contract Year or $20,000,000 over all Contract Years. |
B. | As respects General Liability business, the Reinsurer shall be liable for the amount of Ultimate Net Loss in excess of the Companys retention above subject to a maximum recovery of $10,000,000 for each Contract year. |
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C. | The Company shall be permitted to purchase (or maintain) other reinsurance which inures to the benefit of this Contract. |
D. | The Company shall be permitted to carry excess of loss reinsurance applying to Workers Compensation risks in the State of Minnesota, actual recoveries under which shall inure to the benefit of this Contract. Such coverage shall be provided through the Minnesota Workers Compensation Reinsurance Association. Notwithstanding the treatment of inuring coverage in the definition of Ultimate Net Loss, the liability of the Reinsurer for Minnesota Workers Compensation risks is not released. |
E. | As respects Employers Liability and General Liability, the maximum net subject Policy limit (except statutory where required by law) as respects any one Policy shall be $2,000,000 or the Company shall be deemed to have purchased inuring excess facultative reinsurance for subject Policy limits in excess of $2,000,000. |
ARTICLE IX
MATERIAL CHANGE
The Company shall not introduce material changes in its generally established practices, including but not limited to claims, acceptance and underwriting policies, its inuring reinsurance protection and loss reserving process (including the allocation of loss adjustment expenses between allocated and unallocated) in any manner which materially affects this Contract, unless the Company has received the prior written approval from the Reinsurer.
A. | Prior to the start of each of Contract Year 2 and Contract Year 3, a determination shall be made as respects whether a Material Change to the underlying Business Covered by this Contract has occurred. |
B. |
The Company shall provide to Reinsurer, no later than August 15 th of each of 2009 and 2010, a schedule of the distribution of Written Premium by Governing Class Group for the five Governing Class Groups enumerated in paragraph C below. Written Premium for purposes of this Article shall be: |
1. | With respect to the determination for Contract Year 2: actual Written Premium from the effective date of this Contract, being January 1, 2009 through July 31, 2009 plus projected Written Premium from August 1, 2009 through December 31, 2010, and |
2. | With respect to the determination for Contract Year 3: actual Written Premium from the effective date of this Contract, being January 1, 2009 through July 31, 2010 plus projected Written Premium from August 1, 2010 through December 31, 2011. |
3. | To the extent that the percentage distribution of Written Premium for each of the five Governing Class Groups is within the applicable ranges listed in paragraph C below, no Material Change in Business Covered shall have been deemed to occur and the operation of this Contract shall continue without change or modification. |
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4. | To the extent that the percentage distribution of Written Premium for any of the five Governing Class Groups falls outside the applicable ranges listed in paragraph C below, or to the extent that the Logging component of the Lumber Governing Class Group exceeds five percentage points, a Material Change in Business Covered shall have been deemed to occur. |
C. | The ranges for the five Governing Class Groups shall be as follows: |
Construction No less than 25% nor more than 45%
Trucking No less than 18% nor more than 30%
Lumber No less than 5% nor more than 15%
Roofing No less than 5% nor more than 15%
Manufacturing No less than 2% nor more than 12%
All such percentages being calculated as Written Premium for the applicable Governing Class Group as calculated under paragraph B above for the period specified therein divided by total Written Premium for all Governing Class Groups as calculated under paragraph B above for the period specified therein.
D. |
The Company shall provide to Reinsurer, no later than August 15 th of each of 2009 and 2010, a calculation of Policy Year Manual Payroll (excluding clerical) for the current Contract Year. Policy Year Manual Payroll (excluding clerical) for purposes of this Article shall be: |
1. | With respect to the determination for Contract Year 2: actual policy year manual payroll from the effective date of this Contract, being January 1, 2009 through July 31, 2009 plus projected policy year manual payroll from August 1, 2009 through December 31, 2009, in each case excluding policy year manual payroll in Manual Class Codes 8810 and 953, and |
2. | With respect to the determination for Contract Year 3: actual policy year manual payroll from the first day of Contract Year 2, being January 1, 2010 through July 31, 2010 plus projected policy year manual payroll from August 1, 2010 through December 31, 2010, in each case excluding policy year manual payroll in Class Codes 8810 and 953. |
3. | To the extent that Policy Year Manual Payroll (excluding clerical) as determined above for Contract Year 2 is not less than $3,087,000,000 nor more than $4,178,000,000, no Material Change in Business Covered shall have been deemed to occur and the operation of this Contract shall continue without change or modification. |
4. | To the extent that Policy Year Manual Payroll (excluding clerical) as determined above for Contract Year 2 is less than $3,087,000,000 or more than $4,178,000,000, a Material Change in Business Covered shall have been deemed to occur. |
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5. | To the extent that Policy Year Manual Payroll (excluding clerical) as determined above for Contract Year 3 is not less than $2,724,000,000 nor more than $4,541,000,000, no Material Change in Business Covered shall have been deemed to occur and the operation of this Contract shall continue without change or modification. |
6. | To the extent that Policy Year Manual Payroll (excluding clerical) as determined above for Contract Year 3 is less than $2,724,000,000 or more than $4,541,000,000, a Material Change in Business Covered shall have been deemed to occur. |
E. | A Material Change shall have been deemed to occur if the Company acquires, during the term of this Contract, any insurance or reinsurance company having annual subject premium of $20,000,000 or more. |
F. | If a Material Change has been deemed to occur under paragraphs B, D or E above for any Contract Year, Company and Reinsurer shall mutually agree to such modifications of this contract as shall be deemed necessary to reflect the Material Change, including but not limited to, changes in Exclusions, Reinsurance Premium, the Reinsurers fixed expenses or any other Contract features or the adoption of new limitations or changes in coverage. |
G. | If a Material Change has been deemed to occur under paragraphs B or D above for either Contract Year 2 or Contract Year 3, and the Company and Reinsurer are not able to mutually agree to the necessary modifications described in paragraph F above, then the Company or the Reinsurer may terminate the Contract at the end of Contract Year 1 or Contract Year 2 as applicable, by the provision of 90 calendar days prior written notice by certified mail. If such notice of cancellation is not received, the operation of this Contract shall continue without change. |
H. | In the event of termination in accordance with paragraph G, above, the reinsurance premium shall be the full premium for Contract Year 1 if terminated at the end of Contract Year 1 and the full premium for both Contract Year 1 and Contract Year 2 if terminated at the end of Contract Year 2. The Reinsurers limit of liability in respect of all losses occurring during the term of this Contract shall be $10,000,000 if terminated at the end of Contract Year 1 and $13,333,333 if terminated at the end of Contract Year 2. |
I. | If a Material Change has been deemed to occur under paragraph E above for any Contract Year and the Company and Reinsurer are not able to mutually agree to the necessary modifications described in paragraph F above, then this Contract shall not apply to the acquired company and any business written by such acquired company shall be excluded. |
ARTICLE X
REINSURANCE PREMIUM
A. | As premium for the reinsurance provided hereunder, the Company shall pay the Reinsurer 0.862% of its Net Earned Premium for the term of this Contract, subject to a minimum annual premium of $2,500,000 for each of the three Contract Years. |
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B. | For each Contract Year, the Company shall pay the Reinsurer a deposit premium of $2,500,000 in four equal installments of $625,000 on each January 1, April 1, July 1 and October 1. |
C. | Within 90 days after the expiration of each Contract Year, the Company shall provide a report to the Reinsurer setting forth the premium due hereunder, computed in accordance with paragraph A, and any additional premium due the Reinsurer or return premium due the Company shall be remitted promptly. |
D. | If losses ceded to this Contract exceed $5,000,000 for all Contract Years, the Company shall pay an additional premium equal to 40% of the ceded losses in excess of $5,000,000, subject to a maximum additional premium of $2,000,000 for all Contract Years. The additional premium shall be in proportion to the amount of incurred losses ceded under this contract in excess of $5,000,000 and shall be deemed due and payable at the inception of this Contract. |
ARTICLE XI
FUNDS WITHHELD ACCOUNT
A. | At the subscribing reinsurers option, the Company shall retain any and all Reinsurance Premiums due hereunder on a Funds Withheld basis, provided however that payment of the subscribing reinsurers fixed expenses at a rate of 30% of the Reinsurance Premium (excluding any additional premium) shall be paid in cash to the subscribing reinsurer at such time as the respective Reinsurance Premiums are due and shall not be affected by the terms of this FUNDS WITHHELD ACCOUNT ARTICLE. |
B. | In consideration of the subscribing reinsurer choosing this Funds Withheld option, the Company agrees (i) to calculate a Notional Funds Withheld Account Balance from the inception of this Contract until there is a complete and final release of all of the Reinsurers obligations to the Reinsured under this Contract and (ii) that the Notional Funds Withheld Account Balance (as defined below) may be offset by the Reinsurer against liability of any nature whatsoever (whether then contingent, due and payable, or in the future becoming due) that it may then have, or in the future may have, under this Contract and (iii) such offset shall occur as a condition precedent to any payments by the Reinsurer hereunder. |
C. | As of the close of each calendar quarter, and at any other time as required, the Company shall calculate the balance of the Notional Funds Withheld Account as follows: |
1. | 100% of the balance of the Notional Funds Withheld Account from the immediately preceding calendar quarter (at the Inception Date of this Contract, the starting balance is zero unless an additional premium becomes due in which case the starting balance shall be the amount of the additional premium); less |
2. |
100% of the Companys Ultimate Net Loss paid or deemed paid by the Reinsurer since the preceding calendar quarter; plus |
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3. | The Reinsurance Premium, excluding any additional premium, deemed received by the Reinsurer since the preceding calendar quarter; less |
4. | The Reinsurers fixed expenses at a rate of 30% of (3) above; plus |
5. | The interest credit since the preceding calendar quarter. Such interest credit shall be equal to the result of the interest crediting rate applied to the quarter end sum of [1 minus 2 plus 3 minus 4]. |
The interest crediting rate shall be equal to one fourth (0.25) of the greater of:
a. | The five (5) year U.S. Treasury note rate as published in the Wall Street Journal on the first business day of each Contract Year minus fifty (50) basis points, or |
b. | 5.0%. |
D. | A subscribing reinsurer may terminate the Funds Withheld election under this FUNDS WITHHELD ACCOUNT ARTICLE by giving 15 days written notice to the Company upon the happening of any one of the following circumstances: |
1. | A State Insurance Department or other legal authority orders the Company to cease writing business, or |
2. | The Company has become merged with, acquired or controlled by any company, corporation, or individual(s) not controlling the subscribing reinsurers operations previously, or |
3. | The Company receives an A. M. Best rating of lower than B + +, or |
4. | The Companys policyholders surplus, as reported in the combined financial statements of the Company, has been reduced below $192,800,000. |
Upon such termination, a subscribing reinsurer may, at its sole discretion, elect either;
1. | To have the Notional Funds Withheld Account balance, calculated as of the date of termination transferred to them, such transfer occurring within 5 business days of the date of termination, or |
2. | To have the Notional Funds Withheld Account balance, calculated as of the date of termination transferred to a Trust Fund, such transfer occurring within 5 business days of the date of termination. The Company shall maintain the Trust Fund Balance to be equal to the Notional Funds Withheld Account balance at each quarter end including the requisite Interest Credit required thereon. |
In the event that the Company does not fulfill either of the above contractual obligations, the subscribing reinsurer shall have the right to terminate and commute this Contract pursuant to the terms of the SPECIAL TERMINATION ARTICLE and paragraphs C and E of the COMMUTATION ARTICLE. Upon the receipt of the Commutation Settlement Amount, the Company shall provide the subscribing
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reinsurer with a complete and final release of any further liability under this Contract, or so deemed.
E. | For all avoidance of doubt, it is intended that if a subscribing reinsurer chooses the Funds Withheld option as described above then the Notional Funds Withheld Account Balance as calculated above at any date shall equal the subscribing reinsurers share of the Notional Experience Account, as calculated in the NOTIONAL EXPERIENCE ACCOUNT ARTICLE as of that same date. |
ARTICLE XII
NOTICE OF LOSS AND LOSS SETTLEMENTS
All loss settlements made by the Company that are within the terms and conditions of this Contract (including but not limited to ex gratia payments) shall be binding upon the Reinsurer, and the Reinsurer agrees to pay all amounts for which it may be liable upon receipt of satisfactory evidence of the amount paid by the Company. Upon receipt of the Summary Report as described below in the REPORTS AND REMITTANCES ARTICLE, the Reinsurer agrees to promptly pay or allow, as the case may be, its share of each such settlement in accordance with this Contract.
ARTICLE XIII
LIABILITY OF REINSURERS
All reinsurances for which the Reinsurer shall be liable by virtue of this Contract shall be subject in all respects to the same rates, terms, conditions, interpretations and waivers and to the same modifications, alterations, and cancellations, as the respective policies to which such reinsurances relate, the true intent of the parties to this Contract being that the Reinsurer shall follow the fortunes of the Company.
ARTICLE XIV
LATE PAYMENTS
(The provisions of this article shall not be implemented unless specifically invoked, in writing, by one of the parties to the Contract)
A. | In the event any premium, loss or other payment due either party is not received by the Intermediary hereunder by the payment due date, the party to whom payment is due may, by notifying the Intermediary in writing, require the debtor party to pay, and the debtor party agrees to pay, an interest penalty on the amount past due calculated for each such payment on the last business day of each month as follows: |
1. | The number of full days which have expired since the due date or the last monthly calculation, whichever the lesser; times |
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2. | 1/365ths of a rate equal to the 90-day Treasury Bill rate as published in The Wall Street Journal on the first business day following the date a remittance becomes due plus 300 basis points; times |
3. | The amount past due, including accrued interest. |
It is agreed that interest shall accumulate until payment of the original amount due plus interest penalties have been received by the Intermediary.
B. | The establishment of the due date shall, for purposes of this Article, be determined as follows: |
1. | As respects the payment of deposits and premiums due the Reinsurer, the due date shall be as provided for in the applicable section of this Contract. |
2. | Any claim or loss payment due the Company hereunder shall be deemed due 10 business days after the proof of loss or demand for payment is transmitted to the Reinsurer. If such loss or claim payment is not received within the 10 days, interest will accrue on the payment or amount overdue in accordance with the interest penalty calculation above, from the date the proof of loss or demand for payment was transmitted to the Reinsurer. |
3. | As respects any payment, adjustment or return due either party not otherwise provided for in subparagraphs 1 and 2 of this paragraph, the due date shall be as provided for in the applicable section of this Contract. |
C. | For purposes of interest calculation only, amounts due hereunder shall be deemed paid upon receipt by the Intermediary. The validity of any claim or payment may be contested under the provisions of this Contract. If the debtor party prevails in an arbitration, or any other proceeding, there shall be no interest penalty due. Otherwise, any interest will be calculated and due as outlined above. |
D. | Interest penalties arising out of the application of this Article that are $100 or less from any party shall be waived unless there is a pattern of late payments consisting of three or more items over the course of any 12-month period. |
ARTICLE XV
REPORTS AND REMITTANCES
A. | Quarterly Reports and Remittances: |
1. | While this Contract is in force, within 60 calendar days from the end of each calendar quarter, the Company shall supply to the Reinsurer a Quarterly Statement, as filed with the Louisiana Department of Insurance and a Summary Report listing: |
a. | The Companys quarterly Net Earned Premium. |
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b. | The aggregate amount of Ultimate Net Loss, including paid, case outstanding, and IBNR components of this total. |
c. | The portion of paid, case outstanding, and IBNR Ultimate Net Loss ceded under this Contract from inception of this Contract and for the quarter. |
d. | Claims reserved by the Company at 50% of its retention hereunder. |
e. | A report showing the Notional Funds Withheld Account Balance as calculated in the FUNDS WITHHELD ACCOUNT ARTICLE (if applicable). |
All for business covered during the term of this Contract as reflected in the Quarterly Statement.
2. | While this contract is in force, within 60 calendar days from the end of each calendar quarter, the subscribing reinsurers shall supply to the Company a report showing the Notional Experience Account Balance as calculated in the NOTIONAL EXPERIENCE ACCOUNT ARTICLE. |
3. | Quarterly within 5 business days from the beginning of each calendar quarter, the Company shall pay to the Reinsurer the reinsurance premium as stipulated in the REINSURANCE PREMIUM ARTICLE. |
4. | Payment to the Company of quarterly ceded paid loss amounts due from the Reinsurer, or payment to the Reinsurer of quarterly ceded paid loss adjustments due from the Company, shall be in arrears and shall be made within 45 calendar days from actual receipt by the Reinsurer of the Summary Report in paragraph A.1, above. |
B. | The Company shall furnish to the Reinsurer, upon its written request, any and all actuarial, accounting or statistical data as may be required by the Reinsurer for regulatory filing purposes, reserve setting or any other reasonable purpose. |
ARTICLE XVI
COMMUTATION
A. | The Reinsurer may cancel and commute this Contract at any time with 90 calendar days advance written notice by certified mail, but only in the event(s) of: |
1. | Payment by the Reinsurer of the overall aggregate limit; or |
2. | Failure by the Company to pay any amounts when due under this Contract, if such default is not cured within 30 calendar days following receipt by certified mail by the Company of notice of such default from the subscribing reinsurer. |
B. | At any time after expiration or termination of this Contract the Company may commute this Contract with 90 calendar days advance written notice by certified mail, but only if the Notional Experience Account balance is greater than zero. |
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C. | As provided within the SPECIAL TERMINATION ARTICLE, upon the Companys termination of a subscribing reinsurers share in the Contract upon the happening of any one of the enumerated circumstances, the Company has the option, but not the obligation, to commute this Contract with written notice. |
D. | Upon Commutation by the Reinsurer in accordance with paragraph A, above, or Commutation by the Company in accordance with paragraph B, above, the following shall occur: |
1. | The Notional Experience Account balance shall be calculated as stipulated in the NOTIONAL EXPERIENCE ACCOUNT ARTICLE, as of the date of commutation. |
2. | The Commutation Settlement Amount will be equal to the amount under paragraph D.1, above, and the Reinsurer shall remit to the Company this Commutation Settlement Amount within 5 U.S. business days following such calculation. |
3. | Upon receipt of the Commutation Settlement Amount, the Company shall provide the Reinsurer with a complete and final release of any further liability under this Contract, or so deemed; concurrently, the Company shall release any Letters of Credit provided by the Reinsurer under the UNAUTHORIZED REINSURANCE ARTICLE. In the event that any or all Letters of Credit have not been released within 5 business days of the receipt of the Commutation Settlement Amount, it is agreed that the Reinsurer can bill the Company at any time and the Company has to pay to the Reinsurer an annualized fee of 200 bps on the amount of any Letters of Credit not released 5 business days after the receipt of the Commutation Settlement Amount. |
E. | Upon Commutation by the Company in accordance with paragraph C above and the SPECIAL TERMINATION ARTICLE, the Commutation Settlement Amount shall be the greater of the amount calculated in paragraph D or the net present value of outstanding ceded reserves including incurred but not reported losses. |
If the Reinsurer disputes the Commutation Settlement Amount established by the Company under this paragraph E, then such dispute shall be settled by a panel of three actuaries, one to be chosen by each party and the third by the two so chosen. If either party refuses or neglects to appoint an actuary within 30 days, the other party may appoint two actuaries. If the two actuaries fail to agree on the selection of a third actuary within 30 days of their appointment, each of them shall name two, of whom the other shall decline one and the decision shall be made by drawing lots. All the actuaries shall be Fellows of the Casualty Actuarial Society or members of the American Academy of Actuaries. All of the actuaries shall be independent of either party to this Contract. Each party shall bear the cost of their appointed actuary (or actuary appointed for them if they fail to make a timely appointment) and shall share the cost evenly of the third actuary.
The settlement agreed upon by a majority of the panel of actuaries shall be final and binding on both parties and set forth in a sworn written document expressing their professional opinion that said value is fair for the complete mutual release of all liabilities in respect of such reserves.
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ARTICLE XVII
NOTIONAL EXPERIENCE ACCOUNT
As of the close of each calendar quarter, and at any other time as stipulated in the COMMUTATION ARTICLE, the subscribing reinsurer shall calculate the value of the Notional Experience Account as follows:
1. | 100% of the balance of the Notional Experience Account from the immediately preceding calendar quarter (at the Inception Date of this Contract, the starting balance is zero unless an additional premium becomes due in which case the starting balance shall be the amount of the additional premium); less |
2. | 100% of the Companys Ultimate Net Loss paid by the Reinsurer since the preceding calendar quarter; plus |
3. | The Reinsurance Premium, excluding any additional premium, deemed received by the Reinsurer since the preceding calendar quarter; less |
4. | The Reinsurers fixed expenses at a rate of 30% of (3) above; plus |
5. | The interest credit since the preceding calendar quarter. Such interest credit shall be equal to the result of the interest crediting rate applied to the quarter end sum of [1 minus 2 plus 3 minus 4]. |
The interest crediting rate shall be equal to one fourth (0.25) of:
a. | The five (5) year U.S. Treasury note rate as published in the Wall Street Journal on the first business day of each Contract Year minus fifty (50) basis points if the subscribing reinsurer elects to receive premium on a funds transferred basis, or |
b. | The greater of i) the five (5) year U.S. Treasury note rate as published in the Wall Street Journal on the first business day of each Contract Year minus fifty (50) basis points, or ii) 5.0% if the subscribing reinsurer elects the provisions of the FUNDS WITHHELD ACCOUNT ARTICLE. |
ARTICLE XVIII
ANNUITIES AT THE COMPANYS OPTION
A. | Whenever the Company is required, or elects, to purchase an annuity or to negotiate a structured settlement, either in satisfaction of a judgment or in an out-of-court settlement or otherwise, the cost of the annuity or the structured settlement, as the case may be, shall be deemed part of the Companys Ultimate Net Loss. |
B. |
The terms annuity or structured settlement shall be understood to mean any insurance policy, lump sum payment, agreement or device of whatever nature resulting in the |
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payment of a lump sum by the Company in settlement of any or all future liabilities which may attach to it as a result of an occurrence. |
C. | In the event the Company purchases an annuity which inures in whole or in part to the benefit of the Reinsurer, it is understood that the liability of the Reinsurer is not released thereby. In the event the Company is required to provide benefits not provided by the annuity for whatever reason, the Reinsurer shall pay its share of any loss. |
ARTICLE XIX
SUNSET
Seven (7) years after the expiration of this Contract (i.e., January 1, 2019), the Company shall advise the Reinsurer of any Loss Occurrences attaching to this Contract which have not been finally settled and which may result in a claim by the Company under this Contract. No liability shall attach hereunder for any claim or claims not reported to the Reinsurer within this 7-year period. If a loss arising out of a Loss Occurrence is reported during this period, all losses arising out of the same Loss Occurrence shall be deemed reported under this paragraph regardless of when notification of loss is provided.
If the Notional Experience Account balance is positive and the Company does not commute this Contract on or before December 31, 2018, the Company shall pay to the Reinsurer in cash each January 1, beginning January 1, 2019, an annual charge equal 200 basis points times the then current balance in the Notional Experience Account.
ARTICLE XX
SUBROGATION
The Reinsurer shall be credited with subrogation or salvage recoveries (i.e., reimbursement obtained or recovery made by the Company, less Loss Adjustment Expense incurred in obtaining such reimbursement or making such recovery) on account of claims and settlements involving reinsurance hereunder. Subrogation or salvage recoveries thereon shall always be used to reimburse the excess carriers in the reverse order of their priority according to their participation before being used in any way to reimburse the Company for its primary loss. The Company, at its sole option and discretion, may enforce its rights to subrogation relating to any loss, a part of which loss was sustained by the Reinsurer, and may prosecute all claims arising out of such rights.
ARTICLE XXI
ERRORS AND OMISSIONS
Any inadvertent delay, omission or error shall not be held to relieve either party hereto from any liability which would attach to it hereunder if such delay, omission or error had not been made, provided such omission or error is rectified upon discovery.
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ARTICLE XXII
OFFSET
The Company and each subscribing reinsurer may offset any balance or amount due from one party to the other under this Contract or any other contract heretofore or hereafter entered into between the Company and such subscribing Reinsurer, whether acting as assuming reinsurer or ceding company. The party asserting the right of offset may exercise such right any time whether the balances due are on account of premiums or undisputed losses or otherwise.
ARTICLE XXIII
CURRENCY
A. | Whenever the word Dollars or the $ sign appears in this Contract, they shall be construed to mean United States Dollars and all transactions under this Contract shall be in United States Dollars. |
B. | Amounts paid or received by the Company in any other currency shall be converted to United States Dollars at the rate of exchange at the date such transaction is entered on the books of the Company. |
ARTICLE XXIV
TAXES
In consideration of the terms under which this Contract is issued, the Company will not claim a deduction in respect of the premium hereon when making tax returns, other than income or profits tax returns, to any state or territory of the United States of America, the District of Columbia or Canada.
ARTICLE XXV
FEDERAL EXCISE TAX
(Applicable to those subscribing reinsurers who are domiciled outside the United States of America, excepting subscribing reinsurers exempt from Federal Excise Tax,)
A. | The subscribing reinsurer has agreed to allow for the purpose of paying the Federal Excise Tax the applicable percentage of the premium payable hereon (as imposed under Section 4371 of the Internal Revenue Code) to the extent such premium is subject to the Federal Excise Tax. |
B. | In the event of any return of premium becoming due hereunder the subscribing reinsurer will deduct the applicable percentage from the return premium payable hereon and the Company or its agent should take steps to recover the tax from the United States Government. |
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ARTICLE XXVI
NET RETAINED LINES
A. | This Contract applies only to that portion of any Policy which the Company retains net for its own account and, in calculating the amount of any loss hereunder and also in computing the amount or amounts in excess of which this Contract attaches, only loss or losses in respect of business covered which the Company retains net for its own account shall be included. |
B. | The amount of the Reinsurers liability hereunder in respect of any loss or losses shall not be increased by reason of the inability of the Company to collect from any other reinsurer(s), whether specific or general, any amounts which may have become due from such reinsurer(s), whether such inability arises from the insolvency of such other reinsurer(s) or otherwise. |
ARTICLE XXVII
THIRD PARTY RIGHTS
This Contract is solely between the Company and the Reinsurer, and in no instance shall any other party have any rights under this Contract except as expressly provided otherwise in the INSOLVENCY ARTICLE.
ARTICLE XXVIII
SEVERABILITY
If any provision of this Contract shall be rendered illegal or unenforceable by the laws or regulations of any state, such provision shall be considered void in such state, but this shall not affect the validity or enforceability of any other provision of this Contract or the enforceability of such provision in any other jurisdiction.
ARTICLE XXVIX
GOVERNING LAW
This Contract shall be governed as to performance, administration and interpretation by the laws of the State of Louisiana, exclusive of that states rules with respect to conflicts of law, except as to rules with respect to credit for reinsurance in which case the applicable rules of all states shall apply.
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ARTICLE XXX
ACCESS TO RECORDS
The Reinsurer or its designated representatives shall have access to the books and records of the Company on matters relating to this reinsurance at all reasonable times for the purpose of obtaining information concerning this Contract or the subject matter hereof.
ARTICLE XXXI
CONFIDENTIALITY
A. | The Reinsurer, except with the express prior written consent of the Company, shall not directly or indirectly, communicate, disclose or divulge to any affiliated company, or to any third party, any knowledge or information that may be acquired either directly or indirectly during the placement of this contract or obtained as a result of a claims or underwriting the inspection of the Companys books, records and papers for the purpose of this Contract. The restrictions as outlined in this Article shall not apply to communication or disclosures that the Reinsurer is required to make to its statutory auditors, retrocessionaires, legal counsel, consulting actuaries, arbitrators involved in any arbitration procedures under this Contract or disclosures required upon subpoena or other duly-issued order of a court or other governmental agency or regulatory authority. |
B. | The following information shall not be subject to this Article: |
Information that is or becomes publicly available or in the public domain, unless due to an unauthorized act or omission on the part of the Reinsurer or by other persons permitted to receive such information under this Article, in violation of this Contract.
Information in the possession of the Reinsurer or any other persons permitted to receive such information under this Article that prior to disclosure by the Company, was not known by the Reinsurer to have been provided on a confidential basis.
Information that was independently created or derived by the Reinsurer without reference to or reliance upon confidential information.
ARTICLE XXXII
INSOLVENCY
A. |
In the event of the insolvency of the Company, this reinsurance shall be payable directly to the Company or to its liquidator, receiver, conservator or statutory successor, with reasonable provision for verification, on the basis of reported claims allowed by the liquidation court without diminution because of the insolvency of the Company or because the liquidator, receiver, conservator or statutory successor of the Company has failed to pay all or a portion of any claim. It is agreed, however, that the liquidator, receiver, conservator or statutory successor of the Company shall give written notice to the |
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Reinsurer of the pendency of a claim against the Company indicating the Policy or bond reinsured which claim would involve a possible liability on the part of the Reinsurer within a reasonable time after such claim is filed in the conservation or liquidation proceeding or in the receivership, and that during the pendency of such claim, the Reinsurer may investigate such claim and interpose, at its own expense, in the proceeding where such claim is to be adjudicated, any defense or defenses that it may deem available to the Company or its liquidator, receiver, conservator or statutory successor. The expense thus incurred by the Reinsurer shall be chargeable, subject to the approval of the Court, against the Company as part of the expense of conservation or liquidation to the extent of a proportionate share of the benefit which may accrue to the Company solely as a result of the defense undertaken by the Reinsurer. Where two or more subscribing reinsurers are involved in the same claim and a majority in interest elect to interpose defense to such claim, the expense shall be apportioned in accordance with the terms of this Contract as though such expense had been incurred by the Company. |
B. | It is further agreed that, in the event of the insolvency of the Company, the reinsurance under this Contract shall be payable directly by the Reinsurer to the Company or its liquidator, receiver, conservator, or statutory successor, except (1) where this Contract specifically provides another payee of such reinsurance in the event of the insolvency of the Company or (2) where the Reinsurer with the consent of the direct insured or insureds has assumed such Policy obligations of the Company as direct obligations of the Reinsurer to the payee under such Policies and in substitution for the obligations of the Company to such payees. |
C. | In the event of the insolvency of any company or companies listed in the designation of Company under this Contract, this Article shall apply only to the insolvent company or companies. |
ARTICLE XXXIII
ARBITRATION
A. | As a condition precedent to any right of action hereunder, any irreconcilable dispute arising out of the interpretation, performance or breach of this Contract, including the formation or validity thereof, whether arising before or after the expiry or termination of the Contract, shall be submitted for decision to a panel of 3 arbitrators. Notice requesting arbitration will be in writing and sent by certified mail, return receipt requested, or such reputable courier service as is capable of returning proof of receipt of such notice by the recipient to the party demanding arbitration. |
B. | The Company shall have the option to either litigate or arbitrate where: |
1. | The Reinsurer makes any allegation of misrepresentation, non-disclosure, concealment, fraud or bad faith; or |
2. | The Reinsurer experiences any of the circumstances set forth in subparagraphs 1 through 7 of paragraph A of the SPECIAL TERMINATION ARTICLE. |
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C. | One arbitrator shall be appointed by each party. If either party fails to appoint its arbitrator within 30 days after being requested to do so by the other party, the latter, after 10 days notice by certified mail or reputable courier as provided above of its intention to do so, may appoint the second arbitrator. |
D. | The two arbitrators shall, before instituting the hearing, appoint an impartial third arbitrator who shall preside at the hearing. If the 2 arbitrators are unable to agree upon the third arbitrator within 30 days of their appointment, the Company shall petition the American Arbitration Association to appoint the third arbitrator. If the American Arbitration Association fails to appoint the third arbitrator within 30 days of being requested to do so, either party may request a district court judge of the federal district court having jurisdiction over the geographical area in which the arbitration is to take place, or if the federal court declines to act, the state court having general jurisdiction in such area to select the third arbitrator from a list of 6 individuals (3 named by each arbitrator previously appointed). All arbitrators shall be disinterested active or former senior executives of insurance or reinsurance companies or Underwriters at Lloyds, London. |
E. | Within 30 days after notice of appointment of all arbitrators, the panel shall meet and determine timely periods for briefs, discovery procedures and schedules for hearings. The panel shall be relieved of all judicial formality and shall not be bound by the strict rules of procedure and evidence. Unless the panel agrees otherwise, arbitration shall take place in DeRidder, Louisiana but the venue may be changed when deemed by the panel to be in the best interest of the arbitration proceeding. Insofar as the arbitration panel looks to substantive law, it shall consider the law of the State of Louisiana. The decision of any 2 arbitrators when rendered in writing shall be final and binding. The panel is empowered to grant interim relief as it may deem appropriate. |
F. | The panel shall make its decision considering the custom and practice of the applicable insurance and reinsurance business as promptly as possible following the termination of the hearings. Judgment upon the award may be entered in any court having jurisdiction thereof. |
G. | If more than one subscribing reinsurer is involved in arbitration where there are common questions of law or fact and a possibility of conflicting awards or inconsistent results, all such subscribing reinsurers shall constitute and act as one party for purposes of this Article and communications shall be made by the Company to each of the subscribing reinsurers constituting the one party; provided, however, that nothing therein shall impair the rights of such subscribing reinsurers to assert several, rather than joint defenses or claims, nor be construed as changing the liability of the subscribing reinsurers under the terms of this Contract from several to joint. |
H. | Each party shall bear the expense of its own arbitrator and shall jointly and equally bear with the other party the cost of the third arbitrator. The remaining costs of the arbitration shall be allocated by the panel. The panel may, at its discretion, award such further costs and expenses as it considers appropriate, including but not limited to attorneys fees, to the extent permitted by law. |
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ARTICLE XXXIV
UNAUTHORIZED REINSURANCE
(Applies only to a subscribing reinsurer who does not qualify for full credit with any insurance regulatory authority having jurisdiction over the Companys reserves.)
A. | As regards Policies or bonds issued by the Company coming within the scope of this Contract, the Company agrees that when it shall file with the insurance regulatory authority or set up on its books reserves for losses covered hereunder which it shall be required by law to set up, it will forward to the subscribing reinsurer a statement showing the proportion of such reserves which is applicable to the subscribing reinsurer. The subscribing reinsurer hereby agrees to fund such reserves in respect of known outstanding losses that have been reported to the subscribing reinsurer and allocated loss adjustment expense relating thereto, losses and allocated loss adjustment expense paid by the Company but not recovered from the subscribing reinsurer, plus reserves for losses incurred but not reported, unearned premium and any positive Notional Experience Account balance accrued by the Company, as shown in the statement prepared by the Company (hereinafter referred to as subscribing reinsurers obligations) by funds withheld, cash advances, qualified trust, or a Letter of Credit. The subscribing reinsurer shall have the option of determining the method of funding provided it is acceptable to the insurance regulatory authorities having jurisdiction over the Companys reserves. All costs associated with the method of funding shall be borne solely by the subscribing reinsurer. |
B. | When funding by a Letter of Credit, the subscribing reinsurer agrees to apply for and secure timely delivery to the Company of a clean, irrevocable and unconditional Letter of Credit issued by a bank and containing provisions acceptable to the insurance regulatory authorities having jurisdiction over the Companys reserves in an amount equal to the subscribing reinsurers proportion of said reserves. Such Letter of Credit shall be issued for a period of not less than one year, and shall be automatically extended for one year from its date of expiration or any future expiration date unless 30 days (60 days where required by insurance regulatory authorities) prior to any expiration date the issuing bank shall notify the Company by certified or registered mail that the issuing bank elects not to consider the Letter of Credit extended for any additional period. |
C. | The subscribing reinsurer and Company agree that the Letters of Credit provided by the subscribing reinsurer pursuant to the provisions of this Contract may be drawn upon at any time, notwithstanding any other provision of this Contract, and be utilized by the Company or any successor, by operation of law, of the Company including, without limitation, any liquidator, rehabilitator, receiver or conservator of the Company for the following purposes, unless otherwise provided for in a separate Trust Agreement: |
1. | To reimburse the Company for the subscribing reinsurers obligations, the payment of which is due under the terms of this Contract and which has not been otherwise paid; |
2. | To make refund of any sum which is in excess of the actual amount required to pay the subscribing reinsurers obligations under this Contract; |
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3. | To fund an account with the Company for the subscribing reinsurers obligations. Such cash deposit shall be held in an interest bearing account separate from the Companys other assets, and interest thereon not in excess of the prime rate shall accrue to the benefit of the subscribing reinsurer; |
4. | To pay the subscribing reinsurers share of any other amounts the Company claims are due under this Contract. |
In the event the amount drawn by the Company on any Letter of Credit is in excess of the actual amount required for subparagraph 1 or 3 or, in the case of subparagraph 4, the actual amount determined to be due, the Company shall promptly return to the subscribing reinsurer the excess amount so drawn. All of the foregoing shall be applied without diminution because of insolvency on the part of the Company or the subscribing reinsurer.
D. | The issuing bank shall have no responsibility whatsoever in connection with the propriety of withdrawals made by the Company or the disposition of funds withdrawn, except to ensure that withdrawals are made only upon the order of properly authorized representatives of the Company. |
E. | At quarterly intervals and immediately following each reinsurance premium payment, the Company shall prepare a specific statement of the subscribing reinsurers obligations, for the sole purpose of amending the Letter of Credit as set forth in subparagraphs 1 and 2 below. For avoidance of doubt, the subscribing reinsurers obligation under this paragraph E shall include any positive balance of the Notional Experience Account as calculated under the NOTIONAL EXPERIENCE ACCOUNT ARTICLE: |
1. | If the statement shows that the subscribing reinsurers obligations exceed the balance of credit as of the statement date, the subscribing reinsurer shall, within 30 days after receipt of notice of such excess, secure delivery to the Company of an amendment to the Letter of Credit increasing the amount of credit by the amount of such difference. |
2. | If, however, the statement shows that the subscribing reinsurers obligations are less than the balance of credit as of the statement date, the Company shall, within 30 days after receipt of written request from the subscribing reinsurer, release such excess credit by agreeing to secure an amendment to the Letter of Credit reducing the amount of credit available by the amount of such excess credit. |
F. | With regard to funding in whole or in part by any Trust Account, it is agreed that the subscribing Reinsurer shall enter into a trust agreement and establish a Trust Account hereunder for the sole benefit of the Company with a trustee (Trustee). The Trustee and the trust agreement shall comply with all applicable requirements of regulatory authorities having jurisdiction over the Company. |
G. |
The Reinsurer agrees that the assets deposited into the Trust Account shall consist only of currency of the United States of America, certificates of deposit issued by a United States bank and payable in United States legal tender, and investments of the types specified in paragraphs (1), (2), (3), (8) and (10) of Section 1404(a) of the New York Insurance Law, |
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provided such investments are issued by an institution that is not the parent, subsidiary or affiliate of either the Grantor or the Beneficiary (Authorized Investments). |
H. | The Reinsurer, prior to depositing assets with the Trustee, shall execute all assignments and endorsements in blank, and shall transfer legal title to the Trustee of all shares, obligations or any other assets requiring assignments, in order that the Company, or the Trustee upon direction of the Company, may whenever necessary negotiate any such assets without consent or signature from the Reinsurer or any other entity. |
I. | The Reinsurer shall deposit in the Trust Account Authorized investments at least equal in value to one hundred percent (100%) of the Reinsurers Obligations (less the value of the balance of credit available under any Letter(s) of Credit). |
J. | At quarterly intervals and immediately following each reinsurance premium payment, the Company shall determine if the Trust Account is adequately funded with respect to the Companys liabilities reinsured under the Contract. If the Company determines that the fair market value of the Authorized Investments held in the Trust Account is less than one hundred percent (100%) of the Reinsurers Obligations, the Company shall send the Reinsurer a notice specifying the amount of the inadequacy and the Reinsurer shall deposit such amount in the Trust Account within 30 days of receipt of such notice. |
K. | All settlements of account under the Trust Agreement between the Company and Reinsurer shall be made in cash or its equivalent. |
L. | The Reinsurer and the Company agree that the assets in the Trust Account may be withdrawn by the Company at any time, notwithstanding any other provisions in the Contract, provided such assets are applied and utilized by the Company or any successor of the Company by operation of law, including, without limitation, any liquidator, rehabilitator, receiver or conservator of the Company, without diminution because of the insolvency of the Company or the Reinsurer, only for the following purposes: |
1. | To reimburse the Company for the Reinsurers share of the Obligations paid by the Company under the terms and provisions of the reinsured policies; |
2. | To fund an account specifically established by the Company in an amount at least equal to the deduction, for reinsurance ceded, from the Companys liabilities ceded under this Contract. Such amount shall include, but not be limited to, amounts for policy reserves, and reserves for claims and losses incurred (including losses incurred but not reported); and |
3. | To pay any other amounts, consistent with the terms of this Contract, which the Company has calculated to be due to it. |
M. |
If and to the extent that the laws and regulations governing the Companys right to obtain statutory financial statement credit for the reinsurance provided pursuant to this Contract are amended such that the Reinsurer is no longer required to secure 100% of its share of the Obligations, the Company acknowledges and agrees that the Reinsurers obligation to |
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provide such security shall immediately and automatically be reduced to the extent permitted by such amended laws and regulations. |
ARTICLE XXXV
SERVICE OF SUIT
(This Article is applicable if the subscribing reinsurer is not domiciled in the United States of America and/or is not authorized in any State, Territory or District of the United States where authorization is required by insurance regulatory authorities. This Article is not intended to conflict with or override the obligation of the parties to arbitrate their disputes in accordance with the ARBITRATION ARTICLE.)
A. | In the event of the failure of the subscribing reinsurer to pay any amount claimed to be due hereunder, the subscribing reinsurer, at the request of the Company, shall submit to the jurisdiction of a court of competent jurisdiction within the United States. Nothing in this Article constitutes or should be understood to constitute a waiver of the subscribing reinsurers rights to commence an action in any court of competent jurisdiction in the United States, to remove an action to a United States District Court, or to seek a transfer of a case to another court as permitted by the laws of the United States or of any state in the United States. The subscribing reinsurer, once the appropriate court is selected, whether such court is the one originally chosen by the Company and accepted by subscribing reinsurer or is determined by removal, transfer, or otherwise, as provided for above, shall comply with all requirements necessary to give said court jurisdiction and, in any suit instituted against any of them upon this Contract, and shall abide by the final decision of such court or of any appellate court in the event of an appeal. |
B. | Service of process in such suit may be made upon the agent for the service of process (agent) named below, depending on the jurisdiction where the Company chooses to bring suit: |
1. |
If the suit is brought in the State of California, the law firm of Mendes and Mount, 445 South Figueroa Street, 38 th Floor, Los Angeles, California 90071 shall be authorized and directed to accept service of process on behalf of the subscribing reinsurer in any such suit; |
2. | If the suit is brought in the State of New York, the law firm of Mendes and Mount, 750 Seventh Avenue, New York, New York 10019 shall be authorized and directed to accept service of process on behalf of the subscribing reinsurer in any such suit; |
3. | If the suit is brought in any state other than California or New York, either of the agents described in subparagraphs 1 or 2 above shall be authorized and directed to accept service of process on behalf of the subscribing reinsurer in any such suit; or |
4. |
If the subscribing reinsurer has designated an agent in the subscribing reinsurers Interests and Liabilities Agreement attached hereto, then that agent shall be authorized and directed to accept service of process on behalf of the subscribing reinsurer in any suit. However, if an agent is designated in the subscribing reinsurers |
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Interests and Liabilities Agreement and the agent is not located in California as respects a suit brought in California or New York as respects a suit brought in New York, in keeping with the laws of the states of California and New York which require that service be made on an agent located in the respective state if a suit is brought in that state, the applicable office of Mendes and Mount stipulated in subparagraphs 1 and 2 above must be used for service of suit unless the provisions of paragraph C of this Article apply. |
C. | Further, pursuant to any statute of any state, territory or district of the United States that makes provision therefor, the subscribing reinsurer hereby designates the Superintendent, Commissioner or Director of Insurance, or other officer specified for that purpose in the statute, or his successor or successors in office, as its true and lawful attorney upon whom may be served any lawful process in any action, suit or proceedings instituted by or on behalf of the Company or any beneficiary hereunder arising out of this Contract, and hereby designates the above-named as the person to whom the said officer is authorized to mail such process or a true copy thereof. |
ARTICLE XXXVI
MODE OF EXECUTION
This Contract may be executed either by an original written ink signature of paper documents, by an exchange of facsimile copies showing the original written ink signature of paper documents, or by electronic signature by either party employing appropriate software technology as to satisfy the parties at the time of execution that the version of the document agreed to by each party shall always be capable of authentication and satisfy the same rules of evidence as written signatures. The use of any one or a combination of these methods of execution shall constitute a legally binding and valid signing of this Contract. This Contract may be executed in one or more counterparts, each of which, when duly executed, shall be deemed an original.
ARTICLE XXXVII
ENTIRE AGREEMENT
This Contract shall constitute the entire agreement between the parties with respect to the business being reinsured hereunder. There are no understandings between the parties other than as expressed in this Contract. Any change or modification to this Contract shall be null and void unless made by amendment to this Contract and signed by both parties.
ARTICLE XXXVIII
INTERMEDIARY
Willis Re Inc., One Galleria Tower, 13355 Noel Road, Suite 400, Dallas, Texas 75240-6643 is hereby recognized as the intermediary negotiating this Contract and through whom all communications relating thereto shall be transmitted to the Company or the Reinsurer.
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However, all communications concerning accounts, claim information, funds and inquiries related thereto shall be transmitted to the Company or the Reinsurer through Willis Re Inc., 5420 Millstream Road, P.O. Box 3000, McLeansville, North Carolina 27301-3000. Payments by the Company to Willis Re Inc. shall be deemed to constitute payment to the Reinsurer and payments by the Reinsurer to Willis Re Inc. shall be deemed to constitute payment to the Company only to the extent that such payments are actually received by the Company.
IN WITNESS WHEREOF , the Company by its duly authorized representative has executed this Contract as of the date specified below:
Signed this day of , 200 .
AMERICAN INTERSTATE INSURANCE COMPANY
AMERICAN INTERSTATE INSURANCE COMPANY OF TEXAS
SILVER OAK CASUALTY, INC.
By |
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NUCLEAR INCIDENT EXCLUSION CLAUSE LIABILITY REINSURANCE U.S.A.
(1) This reinsurance does not cover any loss or liability accruing to the Reassured as a member of, or subscriber to, any association of insurers or reinsurers formed for the purpose of covering nuclear energy risks or as a direct or indirect reinsurer of any such member, subscriber or association.
(2) Without in any way restricting the operation of paragraph (1) of this Clause it is understood and agreed that for all purposes of this reinsurance all the original policies of the Reassured (new, renewal and replacement) of the classes specified in Clause II of this paragraph (2) from the time specified in Clause III in this paragraph (2) shall be deemed to include the following provision (specified as the Limited Exclusion Provision):
Limited Exclusion Provision.*
I. | It is agreed that the policy does not apply under any liability coverage, |
to | (injury, sickness, disease, death or destruction, |
(bodily injury or property damage |
with respect to which an insured under the policy is also an insured under a nuclear energy liability policy issued by Nuclear Energy Liability Insurance Association, Mutual Atomic Energy Liability Underwriters or Nuclear Insurance Association of Canada, or would be an insured under any such policy but for its termination upon exhaustion of its limit of liability. |
II. | Family Automobile Policies (liability only), Special Automobile Policies (private passenger automobiles, liability only), Farmers Comprehensive Personal Liability Policies (liability only), Comprehensive Personal Liability Policies (liability only) or policies of a similar nature; and the liability portion of combination forms related to the four classes of policies stated above, such as the Comprehensive Dwelling Policy and the applicable types of Homeowners Policies. |
III. | The inception dates and thereafter of all original policies as described in II above, whether new, renewal or replacement, being policies which either |
(a) become effective on or after 1st May, 1960, or
(b) become effective before that date and contain the Limited Exclusion Provision set out above; provided this paragraph (2) shall not be applicable to Family Automobile Policies, Special Automobile Policies, or policies or combination policies of a similar nature, issued by the Reassured on New York risks, until 90 days following approval of the Limited Exclusion Provision by the Governmental Authority having jurisdiction thereof.
(3) Except for those classes of policies specified in Clause II of paragraph (2) and without in any way restricting the operation of paragraph (1) of this Clause, it is understood and agreed that for all purposes of this reinsurance the original liability policies of the Reassured (new, renewal and replacement) affording the following coverages:
Owners, Landlords and Tenants Liability, Contractual Liability, Elevator Liability, Owners or Contractors (including railroad) Protective Liability, Manufacturers and Contractors Liability, Product Liability, Professional and Malpractice Liability, Storekeepers Liability, Garage Liability, Automobile Liability (including Massachusetts Motor Vehicle or Garage Liability)
shall be deemed to include, with respect to such coverages, from the time specified in Clause V of this paragraph (3), the following provision (specified as the Broad Exclusion Provision):
Broad Exclusion Provision.*
It is agreed that the policy does not apply:
I. | Under any Liability Coverage, |
to | (injury, sickness, disease, death or destruction |
(bodily injury or property damage |
(a) | with respect to which an insured under the policy is also an insured under a nuclear energy liability policy issued by Nuclear Energy Liability Insurance Association, Mutual Atomic Energy Liability Underwriters or Nuclear Insurance Association of Canada, or would be an insured under any such policy but for its termination upon exhaustion of its limit of liability; or |
(b) | resulting from the hazardous properties of nuclear material and with respect to which (1) any person or organization is required to maintain financial protection pursuant to the Atomic Energy Act of 1954, or any law amendatory thereof, or (2) the insured is, or had this policy not been issued would be, entitled to indemnity from the United States of America, or any agency thereof, under any agreement entered into by the United States of America, or any agency thereof, with any person or organization. |
II. | Under any Medical Payments Coverage, or under any Supplementary Payments Provision relating |
to | (immediate medical or surgical relief, |
(first aid, |
to | expenses incurred with respect to (bodily injury, sickness, disease or death |
(bodily injury |
resulting from the hazardous properties of nuclear material and arising out of the operation of a nuclear facility by any person or organization.
1
III. | Under any Liability Coverage to (injury, sickness, disease, death or destruction |
(bodily injury or property damage
resulting from the hazardous properties of nuclear material, if
(a) | the nuclear material (1) is at any nuclear facility owned by, or operated by or on behalf of, an insured or (2) has been discharged or dispersed therefrom; |
(b) | the nuclear material is contained in spent fuel or waste at any time possessed, handled, used, processed, stored, transported or disposed of by or on behalf of an insured; or |
(c) | the (injury, sickness, disease, death or destruction |
(bodily injury or property damages
arises out of the furnishing by an insured of services, materials, parts or equipment in connection with the planning, construction, maintenance, operation or use of any nuclear facility, but if such facility is located within the United States of America, its territories, or possessions or Canada, this exclusion (c) applies only to
(injury to or destruction of property at such nuclear facility
(property damage to such nuclear facility and any property threat.
IV. | As used in this endorsement: |
Hazardous properties include radioactive, toxic or explosive properties; nuclear material means source material, special nuclear material or byproduct material; source material, special nuclear material, and byproduct material have the meanings given them in the Atomic Energy Act of 1954 or in any law amendatory thereof; spent fuel means any fuel element or fuel component, solid or liquid, which has been used or exposed to radiation in a nuclear reactor; waste means any waste material (1) containing byproduct material and (2) resulting from the operation by any person or organization of any nuclear facility included within the definition of nuclear facility under paragraph (a) or (b) thereof; nuclear facility means
(a) any nuclear reactor,
(b) any equipment or device designed or used for (1) separating the isotopes of uranium or plutonium, (2) processing or utilizing spent fuel, or (3) handling, processing or packaging waste,
(c) any equipment or device used for the processing, fabricating or alloying of special nuclear material if at any time the total amount of such material in the custody of the insured at the premises where such equipment or device is located consists of or contains more than 25 grams of plutonium or uranium 233 or any combination thereof, or more than 250 grams of uranium 235,
(d) any structure, basin, excavation, premises or place prepared or used for the storage or disposal of waste, and includes the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operations; nuclear reactor means any apparatus designed or used to sustain nuclear fission in a self-supporting chain reaction or to contain a critical mass of fissionable material;
(With respect to injury to or destruction of property, the word injury or destruction
(property damage includes all forms of radioactive contamination of property
(includes all forms of radioactive contamination of property.
V. | The inception dates and thereafter of all original policies affording coverages specified in this paragraph (3), whether new, renewal or replacement, being policies which become effective on or after 1st May, 1960, provided this paragraph (3) shall not be applicable to |
(i) Garage and Automobile Policies issued by the Reassured on New York risks, or
(ii) statutory liability insurance required under Chapter 90, General Laws of Massachusetts, until 90 days following approval of the Broad Exclusion Provision by the Governmental Authority having jurisdiction thereof.
(4) Without in any way restricting the operation of paragraph (1) of this Clause, it is understood and agreed that paragraphs (2) and (3) above are not applicable to original liability policies of the Reassured in Canada and that with respect to such policies this Clause shall be deemed to include the Nuclear Energy Liability Exclusion Provisions adopted by the Canadian Underwriters Association of the Independent Insurance Conference of Canada.
* | NOTE: The words printed in italics in the Limited Exclusion Provision and in the Broad Exclusion Provision shall apply only in relation to original liability policies which include a Limited Exclusion Provision or a Broad Exclusion Provision containing those words. |
21/9/67
N.M.A. 1590
BRMA 35A
2
Exhibit 10.30
INTERESTS AND LIABILITIES AGREEMENT
(the Agreement)
of
ARCH REINSURANCE COMPANY
(the Subscribing Reinsurer)
with respect to the
CASUALTY CATASTROPHE EXCESS OF LOSS
REINSURANCE CONTRACT
(the Contract)
issued to
AMERICAN INTERSTATE INSURANCE COMPANY
DeRidder, Louisiana
and
AMERICAN INTERSTATE INSURANCE COMPANY OF TEXAS
Austin, Texas
and
SILVER OAK CASUALTY, INC.
DeRidder, Louisiana
and
any other insurance companies which are now or hereafter come under the ownership,
control or management of Amerisafe, Inc.
(the Company)
The Subscribing Reinsurer shall have a 5.00% share in the interests and liabilities of the Reinsurer as set forth in the Contract attached hereto and executed by the Company.
This Agreement shall commence at 12:01 a.m., Standard Time, January 1, 2009 and shall continue in force until 12:01 a.m., Standard Time, January 1, 2010.
The share of the Subscribing Reinsurer in the interests and liabilities of the Reinsurer shall be several and not joint with the share of any other subscribing reinsurer. In no event shall the Subscribing Reinsurer participate in the interests and liabilities of the other subscribing reinsurers.
IN WITNESS WHEREOF, the Subscribing Reinsurer by its duly authorized representative has executed this Agreement as of the date specified below:
Signed this 7 th day of January, 2009.
ARCH REINSURANCE COMPANY | ||
By |
|
INTERESTS AND LIABILITIES AGREEMENT
(the Agreement)
of
ASPEN INSURANCE UK LIMITED
(the Subscribing Reinsurer)
with respect to the
CASUALTY CATASTROPHE EXCESS OF LOSS
REINSURANCE CONTRACT
(the Contract)
issued to
AMERICAN INTERSTATE INSURANCE COMPANY
DeRidder, Louisiana
and
AMERICAN INTERSTATE INSURANCE COMPANY OF TEXAS
Austin, Texas
and
SILVER OAK CASUALTY, INC.
DeRidder, Louisiana
and
any other insurance companies which are now or hereafter come under the ownership,
control or management of Amerisafe, Inc..
(the Company)
The Subscribing Reinsurer shall have a 10.00% share in the interests and liabilities of the Reinsurer as set forth in the Contract attached hereto and executed by the Company
This Agreement shall commence at 12:01 a.m., Standard Time, January 1,2009 and shall continue in force until 12:01 a.m., Standard Time, January 1, 2010.
The share of the Subscribing Reinsurer in the interests and liabilities of the Reinsurer shall be several and not joint with the share of any other subscribing reinsurer . In no event shall the Subscribing Reinsurer participate in the interests and liabilities of the other subscribing reinsurers.
IN WITNESS WHEREOF, the Subscribing Reinsurer by its duly authorized representative has executed this Agreement as of the date specified below:
Signed this 7 th day of January, 2009.
ASPEN INSURANCE UK LIMITED | ||
By |
|
INTERESTS AND LIABILITIES AGREEMENT
(the Agreement)
of
CATLIN UNDERWRITING, INC.
(For and on behalf of Lloyds Syndicate #2003)
(the Subscribing Reinsurer)
with respect to the
CASUALTY CATASTROPHE EXCESS OF LOSS
REINSURANCE CONTRACT
(the Contract)
issued to
AMERICAN INTERSTATE INSURANCE COMPANY
DeRidder, Louisiana
and
AMERICAN INTERSTATE INSURANCE COMPANY OF TEXAS
Austin, Texas
and
SILVER OAK CASUALTY, INC,
DeRidder, Louisiana
and
any other insurance companies which are now or hereafter come under the ownership,
control or management of Amerisafe, Inc.
(the Company)
The Subscribing Reinsurer shall have a 9.00% share in the interests and liabilities of the Reinsurer as set forth in the Contract attached hereto and executed by the Company
This Agreement shall commence at 12:01 a.m., Standard Time, January 1,2009 and shall continue in force until 12:01 a.m., Standard Time, January 1,2010.
The share of the Subscribing Reinsurer in the interests and liabilities of the Reinsurer shall be several and not joint with the share of any other subscribing reinsurer. In no event shall the Subscribing Reinsurer participate in the interests and liabilities of the other subscribing reinsurers.
IN WITNESS WHEREOF, the Subscribing Reinsurer by its duly authorized representative has executed this Agreement as of the date specified below:
Signed this 9 th day of February, 2009.
CATLIN UNDERWRITING, INC. | ||
(For and on behalf of Lloyds Syndicate #2003) |
||
By |
|
INTERESTS AND LIABILITIES AGREEMENT
(the Agreement)
of
HANNOVER RUCKVERSICHERUNG AG
(the Subscribing Reinsurer)
with respect to the
CASUALTY CATASTROPHE EXCESS OF LOSS
REINSURANCE CONTRACT
(the Contract)
issued to
AMERICAN INTERSTATE INSURANCE COMPANY
DeRidder, Louisiana
and
AMERICAN INTERSTATE INSURANCE COMPANY OF TEXAS
Austin, Texas
and
SILVER OAK CASUALTY, INC.
DeRidder, Louisiana
and
any other insurance companies which are now or hereafter come under the ownership,
control or management of Amerisafe, Inc.
(the Company)
The Subscribing Reinsurer shall have a 7.50% share in the interests and liabilities of the Reinsurer as set forth in the Contract attached hereto and executed by the Company.
This Agreement shall commence at 12:01 a.m., Standard Time, January 1, 2009 and shall continue in force until 12:01 a.m., Standard Time, January 1, 2010.
The share of the Subscribing Reinsurer in the interests and liabilities of the Reinsurer shall be several and not joint with the share of any other subscribing reinsurer. In no event shall the Subscribing Reinsurer participate in the interests and liabilities of the other subscribing reinsurers.
IN WITNESS WHEREOF, the Subscribing Reinsurer by its duly authorized representative has executed this Agreement as of the date specified below:
Signed this 19 th day of January, 2009.
Our Ref.: 1179208
HANNOVER RUCKVERSICHERUNG AG | ||
By |
|
|
North American Treaty Dpt. |
INTERESTS AND LIABILITIES AGREEMENT
(the Agreement)
of
HARBOR POINT REINSURANCE U.S., INC.
(the Subscribing Reinsurer)
with respect to the
CASUALTY CATASTROPHE EXCESS OF LOSS
REINSURANCE CONTRACT
(the Contract)
issued to
AMERICAN INTERSTATE INSURANCE COMPANY
DeRidder, Louisiana
and
AMERICAN INTERSTATE INSURANCE COMPANY OF TEXAS
Austin, Texas
and
SILVER OAK CASUALTY, INC.
DeRidder, Louisiana
and
any other insurance companies which are now or hereafter come under the ownership,
control or management of Amerisafe, Inc.
(the Company)
The Subscribing Reinsurer shall have a 5.00% share in the interests and liabilities of the Reinsurer as set forth in the Contract attached hereto and executed by the Company.
This Agreement shall commence at 12:01 a.m., Standard Time, January 1, 2009 and shall continue in force until 12:01 a.m., Standard Time, January 1, 2010.
The share of the Subscribing Reinsurer in the interests and liabilities of the Reinsurer shall be several and not joint with the share of any other subscribing reinsurer. In no event shall the Subscribing Reinsurer participate in the interests and liabilities of the other subscribing reinsurers.
IN WITNESS WHEREOF, the Subscribing Reinsurer by its duly authorized representative has executed this Agreement as of the date specified below:
Signed this 7 th day of January, 2009.
HARBOR POINT REINSURANCE U.S., INC. | ||
By |
|
INTERESTS AND LIABILITIES AGREEMENT
(the Agreement)
of
MUNICH REINSURANCE AMERICA, INC.
(the Subscribing Reinsurer)
with respect to the
CASUALTY CATASTROPHE EXCESS OF LOSS
REINSURANCE CONTRACT
(the Contract)
issued to
AMERICAN INTERSTATE INSURANCE COMPANY
DeRidder, Louisiana
and
AMERICAN INTERSTATE INSURANCE COMPANY OF TEXAS
Austin, Texas
and
SILVER OAK CASUALTY, INC.
DeRidder, Louisiana
and
any other insurance companies which are now or hereafter come under the ownership,
control or management of Amerisafe, Inc.
(the Company)
The Subscribing Reinsurer shall have a 10.00% share in the interests and liabilities of the Reinsurer as set forth in the Contract attached hereto and executed by the Company.
This Agreement shall commence at 12:01 a.m., Standard Time, January 1, 2009 and shall continue in force until 12:01 a.m., Standard Time, January 1, 2010.
The share of the Subscribing Reinsurer in the interests and liabilities of the Reinsurer shall be several and not joint with the share of any other subscribing reinsurer. In no event shall the Subscribing Reinsurer participate in the interests and liabilities of the other subscribing reinsurers.
IN WITNESS WHEREOF, the Subscribing Reinsurer by its duly authorized representative has executed this Agreement as of the date specified below:
Signed this 22 nd day of January, 2009.
MUNICH REINSURANCE AMERICA, INC. | ||
By |
|
INTERESTS AND LIABILITIES AGREEMENT
(the Agreement)
of
PARIS RE
(the Subscribing Reinsurer)
with respect to the
CASUALTY CATASTROPHE EXCESS OF LOSS
REINSURANCE CONTRACT
(the Contract)
issued to
AMERICAN INTERSTATE INSURANCE COMPANY
DeRidder, Louisiana
and
AMERICAN INTERSTATE INSURANCE COMPANY OF TEXAS
Austin, Texas
and
SILVER OAK CASUALTY, INC.
DeRidder, Louisiana
and
any other insurance companies which are now or hereafter come under the ownership,
control or management of Amerisafe, Inc.
(the Company)
The Subscribing Reinsurer shall have a 10.00% share in the interests and liabilities of the Reinsurer as set forth in the Contract attached hereto and executed by the Company.
This Agreement shall commence at 12:01 a.m., Standard Time, January 1, 2009 and shall continue in force until 12:01 a.m., Standard Time, January 1, 2010.
The share of the Subscribing Reinsurer in the interests and liabilities of the Reinsurer shall be several and not joint with the share of any other subscribing reinsurer. In no event shall the Subscribing Reinsurer participate in the interests and liabilities of the other subscribing reinsurers.
IN WITNESS WHEREOF, the Subscribing Reinsurer by its duly authorized representative has executed this Agreement as of the date specified below:
Signed this 9 th day of January, 2009.
PARIS RE | ||
By |
|
INTERESTS AND LIABILITIES AGREEMENT
(the Agreement)
of
UNDERWRITERS AT LLOYDS, LONDON
AS SET FORTH IN THE SIGNING PAGE(S) ATTACHED HERETO
(the Subscribing Reinsurer)
with respect to the
CASUALTY CATASTROPHE EXCESS OF LOSS
REINSURANCE CONTRACT
(the Contract)
issued to
AMERICAN INTERSTATE INSURANCE COMPANY
DeRidder, Louisiana
and
AMERICAN INTERSTATE INSURANCE COMPANY OF TEXAS
Austin, Texas
and
SILVER OAK CASUALTY, INC.
DeRidder, Louisiana
and
any other insurance companies which are now or hereafter come under the ownership,
control or management of Amerisafe, Inc.
(the Company)
The Subscribing Reinsurer shall have a share in the interests and liabilities of the Reinsurer as set forth in the Contract attached hereto and executed by the Company. The Subscribing Reinsurers percentage share shall equal the sum of the final signed lines percentage share(s) as executed on the attached signing page(s) for Lloyds Underwriters.
This Agreement shall commence at 12:01 a.m., Standard Time, January 1, 2009 and shall continue in force until 12:01 a.m., Standard Time, January 1, 2010.
The share of the Subscribing Reinsurer in the interests and liabilities of the Reinsurer shall be several and not joint with the share of any other subscribing reinsurer. In no event shall the Subscribing Reinsurer participate in the interests and liabilities of the other subscribing reinsurers.
IN WITNESS WHEREOF, the Subscribing Reinsurer by its duly authorized representative has executed this Agreement per the attached signing page(s).
UMR | : B0576UPX4990 (93948003-004-09) | |
Reinsured | : Amerisafe Insurance Company | |
Type | : Casualty Catastrophe Excess of Loss Reinsurance Contract |
WRITTEN LINES
B.I.P.A.R. Statement |
In a co-reinsurance placement, following reinsurers may, but are not obliged to, follow the premium charged by the lead reinsurer. |
Reinsurers may not seek to guarantee for themselves terms as favourable as those which others subsequently achieve during the placement. |
Reinsurer and Reference: |
|
Written Line: 15% Ref.: BQ511D09A000
Final Signed Line: 10.00 %
Line Conditions:
Dated:
Written Lines Page 1 of 8
Willis Limited, a Lloyds broker, authorised and regulated by the Financial Services Authority.
Registered Office: 51 Lime Street, London EC3M7DQ..Registered Number 181116 England and Wales.
UMR | : B0576UPX4990 (93948003-004-09) | |
Reinsured | : Amerisafe Insurance Company | |
Type | : Casualty Catastrophe Excess of Loss Reinsurance Contract |
WRITTEN LINES
B.I.P.A.R. Statement |
In a co-reinsurance placement, following reinsurers may, but are not obliged to, follow the premium charged by the lead reinsurer. |
Reinsurers may not seek to guarantee for themselves terms as favourable as those which others subsequently achieve during the placement. |
Reinsurer and Reference: |
|
Written Line: 15% Ref.:
Final Signed Line: 10.00%
Line Conditions:
Dated:
Written Lines Page 2 of 8
Willis Limited, a Lloyds broker, authorised and regulated by the Financial Services Authority.
Registered Office: 51 Lime Street, London EC3M7DQ. Registered Number 181116 England and Wales.
UMR | : B0576UPX4990 (93948003-004-09) | |
Reinsured | : Amerisafe Insurance Company | |
Type | : Casualty Catastrophe Excess of Loss Reinsurance Contract |
WRITTEN LINES
B.I.P.A.R. Statement |
In a co-reinsurance placement, following reinsurers may, but are not obliged to, follow the premium charged by the lead reinsurer. |
Reinsurers may not seek to guarantee for themselves terms as favourable as those which others subsequently achieve during the placement. |
Reinsurer and Reference: |
|
Written Line: 7 1 / 2 % Ref: 1706409AX000
Final Signed Line: 5.50%
Line Conditions:
Dated:
Written Lines Page 3 of 8
Willis Limited, a Lloyds broker, authorised and regulated by the Financial Services Authority.
Registered Office: 51 Lime Street, London EC3M7DQ. Registered Number 181116 England and Wales.
UMR |
: | B0576UPX4990 (93948003-004-09) | ||
Reinsured |
: | Amerisafe Insurance Company | ||
Type |
: | Casualty Catastrophe Excess of Loss Reinsurance Contract |
WRITTEN LINES
B.I.P.A.R. Statement
In a co-reinsurance placement, following reinsurers may, but are not obliged to, follow the premium charged by the lead reinsurer.
Reinsurers may not seek to guarantee for themselves terms as favourable as those which others subsequently achieve during the placement.
Reinsurer and Reference: |
|
Written Line: 20 % Ref.: CAHNT 2056 A
Final Signed Line: 3.50%
Line Conditions:
Dated:
Written Lines Page 4 of 8
Willis Limited, a Lloyds broker, authorised and regulated by the Financial Services Authority.
Registered Office: 51 Lime Street, London EC3M7DQ. Registered Number 181116 England and Wales.
UMR |
: | B0576UPX4990 (93948003-004-09) | ||
Reinsured |
: | Amerisafe Insurance Company | ||
Type |
: | Casualty Catastrophe Excess of Loss Reinsurance Contract |
WRITTEN LINES
B.I.P.A.R. Statement
In a co-reinsurance placement, following reinsurers may, but are not obliged to, follow the premium charged by the lead reinsurer.
Reinsurers may not seek to guarantee for themselves terms as favourable as those which others subsequently achieve during the placement.
Reinsurer and Reference: |
|
Final Signed Line: 3.75%
Line Conditions:
Dated:
Written Lines Page 5 of 8
Willis Limited, a Lloyds broker, authorised and regulated by the Financial Services Authority.
Registered Office: 51 Lime Street, London EC3M7DQ. Registered Number 181116 England and Wales.
UMR |
: | B0576UPX4990 (93948003-004-09) | ||
Reinsured |
: | Amerisafe Insurance Company | ||
Type |
: | Casualty Catastrophe Excess of Loss Reinsurance Contract |
WRITTEN LINES
B.I.P.A.R. Statement
In a co-reinsurance placement, following reinsurers may, but are not obliged to, follow the premium charged by the lead reinsurer.
Reinsurers may not seek to guarantee for themselves terms as favourable as those which others subsequently achieve during the placement
Reinsurer and Reference: |
|
Written Line: 15% Ref.: 113136 0109 FC
Final Signed Line: 10.00%
Line Conditions:
Dated:
Written Lines Page 6 of 8
Willis Limited, a Lloyds broker, authorised and regulated by the Financial Services Authority.
Registered Office: 51 Lime Street, London EC3M7DQ. Registered Number 181116 England and Wales.
UMR |
: | B0576UPX4990 (93948003-004-09) | ||
Reinsured |
: | Amerisafe Insurance Company | ||
Type |
: | Casualty Catastrophe Excess of Loss Reinsurance Contract |
WRITTEN LINES
B.I.P.A.R. Statement
In a co-reinsurance placement, following reinsurers may, but are not obliged to, follow the premium charged by the lead reinsurer.
Reinsurers may not seek to guarantee for themselves terms as favourable as those which others subsequently achieve during the placement.
Reinsurer and Reference: |
|
Written Line: 7 1 / 2 % Ref.:
Final Signed Line: 750%
Line Conditions:
Dated:
Written Lines Page 7 of 8
Willis Limited, a Lloyds broker, authorised and regulated by the Financial Services Authority.
Registered Office: 51 Lime Street, London EC3M7DQ. Registered Number 181116 England and Wales.
UMR |
: | B0576UPX4990 (93948003-004-09) | ||
Reinsured |
: | Amerisafe Insurance Company | ||
Type |
: | Casualty Catastrophe Excess of Loss Reinsurance Contract |
WRITTEN LINES
B.I.P.A.R. Statement
In a co-reinsurance placement, following reinsurers may, but are not obliged to, follow the premium charged by the lead reinsurer.
Reinsurers may not seek to guarantee for themselves terms as favourable as those which others subsequently achieve during the placement.
Reinsurer and Reference: |
|
Written Line: 12 1 / 2 % Ref.: 8049290300
Final Signed Line: 3.25%
Line Conditions:
Dated:
Written Lines Page 8 of 8
Willis Limited, a Lloyds broker, authorised and regulated by the Financial Services Authority.
Registered Office: 51 Lime Street, London EC3M7DQ. Registered Number 181116 England and Wales.
AMERICAN INTERSTATE INSURANCE COMPANY
DeRidder, Louisiana
and
AMERICAN INTERSTATE INSURANCE COMPANY OF TEXAS
Austin, Texas
and
SILVER OAK CASUALTY, INC.
DeRidder, Louisiana
and
any other insurance companies which are now or hereafter come under the ownership,
control or management of Amerisafe, Inc.
CASUALTY CATASTROPHE EXCESS OF LOSS
REINSURANCE CONTRACT
TABLE OF CONTENTS
ARTICLE |
PAGE | |||
I |
BUSINESS COVERED | 1 | ||
II |
TERM | 1 | ||
III |
SPECIAL TERMINATION | 2 | ||
IV |
DEFINITIONS | 3 | ||
Act of Terrorism |
3 | |||
Declaratory Judgment Expense |
4 | |||
Extra Contractual Obligations/Loss in Excess of Policy Limits |
4 | |||
Loss Adjustment Expense |
4 | |||
Loss Occurrence |
5 | |||
Net Earned Premium |
5 | |||
Policy |
6 | |||
Ultimate Net Loss |
6 | |||
V |
TERRITORY | 6 | ||
VI |
EXCLUSIONS | 6 | ||
VII |
TERRORISM RISK INSURANCE PROGRAM REAUTHORIZATION ACT | 8 | ||
VIII |
COVERAGE | 9 | ||
IX |
REINSTATEMENT | 10 | ||
X |
SPECIAL ACCEPTANCE | 10 | ||
XI |
ACCOUNTING BASIS | 11 | ||
XII |
REINSURANCE PREMIUM | 11 | ||
XIII |
NOTICE OF LOSS AND LOSS SETTLEMENTS | 11 | ||
XIV |
LIABILITY OF REINSURERS | 12 | ||
XV |
LATE PAYMENTS | 12 | ||
XVI |
ANNUITIES AT THE COMPANYS OPTION | 13 | ||
XVII |
AGENCY AGREEMENT | 14 | ||
XVIII |
SUBROGATION | 14 | ||
XIX |
ERRORS AND OMISSIONS | 14 | ||
XX |
OFFSET | 14 | ||
XXI |
CURRENCY | 15 | ||
XXII |
TAXES | 15 | ||
XXIII |
FEDERAL EXCISE TAX | 15 | ||
XXIV |
UNAUTHORIZED REINSURANCE | 15 | ||
XXV |
NET RETAINED LINES | 17 | ||
XXVI |
THIRD PARTY RIGHTS | 17 |
XXVII |
SEVERABILITY | 18 | ||
XXVIII |
GOVERNING LAW | 18 | ||
XXIX |
ACCESS TO RECORDS | 18 | ||
XXX |
SUNSET AND COMMUTATION | 18 | ||
XXXI |
INSOLVENCY | 20 | ||
XXXII |
ARBITRATION | 21 | ||
XXXIII |
SERVICE OF SUIT | 22 | ||
XXXIV |
ENTIRE AGREEMENT | 23 | ||
XXXV |
MODE OF EXECUTION | 23 | ||
XXXVI |
INTERMEDIARY | 24 | ||
Nuclear Incident Exclusion Clause - Liability - Reinsurance - U.S.A. |
CASUALTY CATASTROPHE EXCESS OF LOSS
REINSURANCE CONTRACT
(the Contract)
between
AMERICAN INTERSTATE INSURANCE COMPANY
DeRidder, Louisiana
and
AMERICAN INTERSTATE INSURANCE COMPANY OF TEXAS
Austin, Texas
and
SILVER OAK CASUALTY, INC.
DeRidder, Louisiana
and
any other insurance companies which are now or hereafter come under the ownership,
control or management of Amerisafe, Inc.
(collectively the Company)
and
THE SUBSCRIBING REINSURER(S) EXECUTING THE
INTERESTS AND LIABILITIES AGREEMENT(S)
ATTACHED HERETO
(the Reinsurer)
ARTICLE I
BUSINESS COVERED
By this Contract the Reinsurer agrees to reinsure the excess liability of the Company under its Policies in force at the effective time and date hereof or issued or renewed at or after that time and date, and classified by the Company as Workers Compensation, Employers Liability, including but not limited to, coverage provided under the U.S. Longshore and Harbor Workers Compensation Act, Jones Act, Outer Continental Shelf Land Act and any other Federal Coverage extensions and General Liability business, subject to the terms, conditions and limitations hereafter set forth.
ARTICLE II
TERM
A. | This Contract will apply to all losses occurring during the period January 1, 2009, 12:01 a.m. Standard Time (as set forth in the Companys policies), to January 1, 2010, 12:01 a.m. Standard Time. |
1
B. | Upon the expiration or termination of this Contract, the entire liability of the Reinsurer for losses occurring subsequent to the date of expiration shall cease concurrently with the date of expiration of this Contract. |
C. | Notwithstanding the above, upon expiration or termination of this Contract, the Company shall have the option of requiring that the Reinsurer shall remain liable for losses occurring under Policies in force on the expiration or termination date of this Contract until the next renewal, termination, or natural expiration date of such Policies or until 12 months (plus odd time, not to exceed 18 months in all) following the date of expiration (whichever occurs first). |
D. | If this Contract expires while a Loss Occurrence covered hereunder is in progress, the Reinsurers liability hereunder shall, subject to the other terms and conditions of this Contract, be determined as if the entire Loss Occurrence had occurred prior to the expiration of this Contract, provided that no part of such Loss Occurrence is claimed against any renewal or replacement of this Contract. |
ARTICLE III
SPECIAL TERMINATION
A. | The Company may terminate a subscribing reinsurers share in this Contract by giving written notice to the subscribing reinsurer upon the happening of any one of the following circumstances: |
1. | A State Insurance Department or other legal authority orders the subscribing reinsurer to cease writing business, or |
2. | The subscribing reinsurer has become insolvent or has been placed into liquidation or receivership (whether voluntary or involuntary), or there has been instituted against it proceedings for the appointment of a receiver, liquidator, rehabilitator, conservator, or trustee in bankruptcy, or other agent known by whatever name, to take possession of its assets or control of its operations, or |
3. | For any period not exceeding 12 months which commences no earlier than 12 months prior to the inception of this Contract, the subscribing reinsurers policyholders surplus, as reported in the financial statements of the subscribing reinsurer, has been reduced by 20.0% or more, or |
4. | The subscribing reinsurer has become merged with, acquired or controlled by any company, corporation, or individual(s) not controlling the subscribing reinsurers operations previously, or |
5. | The subscribing reinsurer has reinsured its entire liability under this Contract without the Companys prior written consent, or |
6. | The subscribing reinsurer receives an A. M. Best rating of lower than A-, or an S&P financial strength rating of lower than A-, or |
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7. | The subscribing reinsurer has ceased writing new and renewal reinsurance for the lines of business covered hereunder. |
B. | In the event of such termination, the liability of the subscribing reinsurer shall be terminated, at the Companys option, either in accordance with the cutoff provisions of paragraph B of the TERM ARTICLE or in accordance with the runoff provisions of paragraph C of the TERM ARTICLE, and such termination shall be effective as of the date the subscribing reinsurer receives written notice of termination pursuant to paragraph A above. |
C. | In the event the Company terminates a subscribing reinsurers share in this Contract under the provisions of this Article, the Company shall have the option to commute the excess liabilities of the subscribing reinsurer. If this commutation option is exercised, the provisions of the paragraphs B through G of the SUNSET AND COMMUTATION ARTICLE shall apply. |
D. | In the event the Company terminates a subscribing reinsurers share in this Contract under the provision of this Article, the Company shall have the option to require the subscribing reinsurer to fund its share of ceded unearned premium, outstanding loss and Loss Adjustment Expense reserves, reserves for losses and Loss Adjustment Expense incurred but not reported to the Company (IBNR as determined by the Company) and any other balances or financial obligations. Within 30 days of the Companys written request to fund, the subscribing reinsurer shall provide to the Company a clean, unconditional, evergreen, irrevocable letter of credit or a trust agreement which establishes a trust account for the benefit of the Company. The method of funding must be acceptable to the Company, shall be established with a financial institution suitable to the Company, shall comply with any applicable state or federal laws or regulations involving the Companys ability to recognize these agreements as assets or offsets to liabilities in such jurisdictions and shall be at the sole expense of the subscribing reinsurer. The Company and the subscribing reinsurer may mutually agree on alternative methods of funding or the use of a combination of methods. This option is available to the Company at any time there remains any outstanding liabilities of the subscribing reinsurer. Notwithstanding the foregoing, the Company shall not require funding in accordance with this subparagraph in the event the subscribing reinsurer has otherwise fully funded its obligations under this Contract in a manner acceptable to the Company. |
ARTICLE IV
DEFINITIONS
A. | Act of Terrorism |
Act of Terrorism as used herein shall mean any act that is certified as an act of terrorism under the Terrorism Risk Insurance Program Reauthorization Act of 2007 and any other extensions or amendments thereto (TRIPRA).
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B. | Declaratory Judgment Expense |
Declaratory Judgment Expense as used herein shall mean all expenses incurred by the Company in connection with a declaratory judgment action brought to determine the Companys defense and/or indemnification obligations that are allocable to a specific claim subject to this Contract. Declaratory Judgment Expense shall be deemed to have been incurred on the date of the original loss (if any) giving rise to the declaratory judgment action.
C. | Extra Contractual Obligations/Loss in Excess of Policy Limits |
1. | Extra Contractual Obligations |
This Contract shall protect the Company for any Extra Contractual Obligations which as used herein shall mean any punitive, exemplary, compensatory or consequential damages, other than Loss in Excess of Policy Limits, paid or payable by the Company as a result of an action against it by its insured, its insureds assignee or a third party claimant, by reason of alleged or actual negligence, fraud or bad faith on the part of the Company in handling a claim under a Policy subject to this Contract.
An Extra Contractual Obligation shall be deemed to have occurred on the same date as the loss covered or alleged to be covered under the Policy.
2. | Loss in Excess of Policy Limits |
This Contract shall protect the Company for any Loss in Excess of Policy Limits which as used herein shall mean an amount that the Company would have been contractually liable to pay had it not been for the limit of the original Policy as a result of an action against it by its insured, its insureds assignee or a third party claimant. Such loss in excess of the limit shall have been incurred because of failure by the Company to settle within the Policy limit, or by reason of alleged or actual negligence, fraud, or bad faith in rejecting an offer of settlement or in the preparation of the defense or in the trial of any action against its insured or in the preparation or prosecution of an appeal consequent upon such action.
3. | This paragraph C shall not apply where an Extra Contractual Obligation and/or Loss in Excess of Policy Limits has been incurred due to an adjudicated finding of fraud committed by a member of the Board of Directors or a corporate officer of the Company acting individually or collectively or in collusion with a member of the Board of Directors or a corporate officer or a partner of any other corporation or partnership. |
D. | Loss Adjustment Expense |
Loss Adjustment Expense as used herein shall mean all costs and expenses allocable to a specific claim that are incurred by the Company in the investigation, appraisal, adjustment, settlement, litigation, defense or appeal of a specific claim, including court costs and costs of supersedeas and appeal bonds, and including 1) pre-judgment interest, unless included as part of the award or judgment; 2) post-judgment interest; 3) legal expenses and costs
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incurred in connection with coverage questions and legal actions connected thereto, including Declaratory Judgment Expense; and 4) a pro rata share of salaries and expenses of Company field employees, and expenses of other Company employees who have been temporarily diverted from their normal and customary duties and assigned to the field adjustment of losses covered by this Contract. Loss Adjustment Expense does not include unallocated loss adjustment expense. Unallocated loss adjustment expense includes, but is not limited to, salaries and expenses of employees, other than (4) above, and office and other overhead expenses.
E. | Loss Occurrence |
Loss Occurrence as used in this Contract shall mean any one disaster or casualty or accident or loss or series of disasters or casualties or accidents or losses arising out of or caused by one event. The Company shall be the sole judge of what constitutes one event as outlined herein and in the original Policy.
1. | As respects losses resulting from Occupational or Industrial Disease or Cumulative Trauma, each employee shall be considered a separate Loss Occurrence subject to the following: |
Losses resulting from Occupational or Industrial Disease or Cumulative Trauma suffered by employees of an insured for which the employer is liable, as a result of a sudden and accidental event not exceeding 72 hours in duration, shall be considered one Loss Occurrence and may be combined with losses classified as other than Occupational or Industrial Disease or Cumulative Trauma which arise out of the same event and the combination of such losses shall be considered as one Loss Occurrence within the meaning hereof.
A loss with respect to each employee affected by an Occupational Disease or Cumulative Trauma shall be deemed to have been sustained by the Company on the date of the beginning of the disability for which compensation is payable.
The terms Occupational or Industrial Disease and Cumulative Trauma as used in this Contract shall be as defined by applicable statutes or regulations.
2. | As respects General Liability policies where the Companys limit of liability for Products and Completed Operations coverages is determined on the basis of the insureds aggregate losses during a policy period, all such losses proceeding from or traceable to the same causative agency shall, at the Companys option, be deemed to have been caused by one occurrence commencing at the beginning of the policy period, it being understood and agreed that each renewal or annual anniversary date of the policy involved shall be deemed the beginning of a new policy period. |
F. | Net Earned Premium |
Net Earned Premium as used herein is defined as gross earned premium of the Company for the classes of business reinsured hereunder, less the earned portion of premiums ceded by the Company for reinsurance which inures to the benefit of this Contract and less dividends paid or accrued.
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G. | Policy |
Policy or Policies as used herein shall mean the Companys binders, policies and contracts providing insurance or reinsurance on the classes of business covered under this Contract.
H. | Ultimate Net Loss |
Ultimate Net Loss shall mean the actual loss, including any pre-judgment interest which is included as part of the award or judgment, Second Injury Fund assessments that can be allocated to specific claims, Loss Adjustment Expense, 90% of Loss in Excess of Policy Limits, and 90% of Extra Contractual Obligations, paid or to be paid by the Company on its net retained liability after making deductions for all recoveries, subrogations and all claims on inuring reinsurance, whether collectible or not; provided, however, that in the event of the insolvency of the Company, payment by the Reinsurer shall be made in accordance with the provisions of the INSOLVENCY ARTICLE. Nothing herein shall be construed to mean that losses under this Contract are not recoverable until the Companys Ultimate Net Loss has been ascertained.
Notwithstanding the definition of Ultimate Net Loss herein, the provisions of paragraph H of the COVERAGE ARTICLE as respects the Minnesota Workers Compensation Reinsurance Association shall apply.
ARTICLE V
TERRITORY
The territorial limits of this Contract shall be identical with those of the Companys Policies.
ARTICLE VI
EXCLUSIONS
A. | This Contract does not apply to and specifically excludes the following: |
1. | Reinsurance assumed by the Company under obligatory reinsurance agreements, except: |
a. Agency reinsurance where the policies involved are to be reunderwritten in accordance with the underwriting standards of the Company and reissued as Company policies at the next anniversary or expiration date; and
b. Intercompany reinsurance between any of the reinsured companies under this Contract.
2. | Nuclear risks as defined in the Nuclear Incident Exclusion Clause Liability Reinsurance U.S.A. (NMA 1590 21/9/67) attached hereto. |
3. | Liability as a member, subscriber or reinsurer of any Pool, Syndicate or Association, including Assigned Risk Plans or similar plans; however, this exclusion shall not |
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apply to liability under a Policy specifically designated to the Company from an Assigned Risk Plan or similar plan. |
4. | All liability of the Company arising by contract, operation of law, or otherwise, from its participation or membership, whether voluntary or involuntary, in any Insolvency Fund. Insolvency Fund includes any guaranty fund, insolvency fund, plan, pool, association, fund or other arrangement, however denominated, established or governed, which provides for any assessment of or payment or assumption by the Company of part or all of any claim, debt, charge, fee or other obligation of an insurer, or its successors or assigns, which has been declared by any competent authority to be insolvent, or which is otherwise deemed unable to meet any claim, debt, charge, fee or other obligation in whole or in part. |
5. | Any Act of Terrorism involving the use of nuclear, chemical, biological or radiological devices. |
6. | Business written to apply in excess of a deductible of more than $25,000, and business issued to apply specifically in excess over underlying insurance. However, if the Company is required, by any state regulation, to provide a deductible of more than $25,000, this exclusion shall not apply. |
7. | Workers Compensation where the principal exposure, as defined by the governing class code, is: |
a. | Operation of aircraft, but only if the annual estimated policy premium is $250,000 or more; |
b. | Operation of Railroads, subways or street railways; |
c. | Operation or navigation of vessels or barges; |
d. | Manufacturing, assembly, packing or processing of fireworks, fuses, nitroglycerine, magnesium, pyroxylin, ammunition or explosives. This exclusion does not apply to the assembly, packing or processing of explosives when the estimated annual premium is under $250,000 and does not apply to the commercial use of explosives; |
e. | Underground mining. |
8. | As respects General Liability policies, exposures other than those identified below, as included in the General Liability section of the Companys Commercial Lines Manual: |
a. | Class 97111 Logging; |
b. | Class 58873 Sawmill; |
c. | Class 59984 Woodyard and Drivers; |
d. | Class 95410 Grading of Land; |
e. | Class 45819 Lumber Yard; |
f. | Class 10073 Repair Shops and Drivers; |
g. | Class 43822 Timber Cruiser; |
h. | Class 99793 Truckmen Not Otherwise Classified; |
i. | Class 91591 Contractors Subcontracted Work Other Than Construction; |
j. | Class 49452 Vacant Land. |
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B. | Notwithstanding the foregoing, insureds regularly engaged in operations not excluded under paragraph A above, but whose operations may include one or more perils excluded therein, shall not be excluded from coverage afforded by this Contract, provided said operations are incidental to the main operations of the insured. Notwithstanding the foregoing, coverage extended under this paragraph for incidental operations of an insured shall not apply to exposures excluded under subparagraphs 1 though 5 of paragraph A above. The Company shall be the judge of what constitutes an incidental part of the insureds operation. |
C. | Except for subparagraphs 1 through 5 of paragraph A above, if the Company is inadvertently bound or is unknowingly exposed (due to error or automatic provisions of policy coverage) on a risk otherwise excluded in paragraph A above, such exclusion shall be waived. The duration of said waiver will not extend beyond the time that notice of such coverage has been received by a responsible underwriting authority of the Company and for a period not exceeding 30 days thereafter, or such longer period required to conform with any notice of cancellation provisions prescribed by regulatory authorities, such period not to exceed 12 months plus odd time (not exceeding 18 months). |
D. | If the Company is required to accept an assigned risk which conflicts with one or more of the exclusions set forth in subparagraph 6 of paragraph A, reinsurance shall apply, but only for the difference between the Companys retention and the limit required by the applicable state statute, and in no event shall the Reinsurers liability exceed the limit set forth in the Coverage Article. |
E. | Notwithstanding the foregoing, any reinsurance falling within the scope of one or more of the exclusions set forth above that is specially accepted by the Reinsurer from the Company shall be covered under this Contract and be subject to the terms hereof. |
F. | Except for subparagraphs 1 through 5 of paragraph A above, should a court of competent jurisdiction invalidate any exclusion or expand coverage of the original Policy of the Company, any amount of Loss for which the Company would not be liable, except for such invalidation or expansion of coverage, shall not be subject to any of the exclusions, conditions and limitations hereinafter set forth under this Contract. |
ARTICLE VII
TERRORISM RISK INSURANCE PROGRAM REAUTHORIZATION ACT
A. | Any financial assistance the Company receives under the Terrorism Risk Insurance Program Reauthorization Act of 2007 (TRIPRA) and any other replacements, extensions or amendments thereto, shall apply as follows: |
1. | Except as provided in subparagraph 2 below, any such financial assistance shall inure solely to the benefit of the Company and shall be entirely disregarded in applying all of the provisions of this Contract. |
2. |
If losses occurring hereunder result in recoveries made by the Company both under this Contract and under TRIPRA, and such recoveries, together with any other reinsurance recoverables made by the Company applicable to said losses, exceed the |
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total amount of the Companys insured losses, any amount in excess thereof shall reduce the Ultimate Net Loss subject to this Contract for the losses to which the TRIPRA financial assistance applies. These recoveries shall be returned in proportion to each Reinsurers paid share of the loss. |
B. | Nothing herein shall be construed to mean that the losses under this Contract are not recoverable until the Company has received financial assistance under TRIPRA. |
ARTICLE VIII
COVERAGE
A. | The Reinsurer shall be liable for the Ultimate Net Loss in excess of $10,000,000 as a result of any one Loss Occurrence. The Reinsurers liability in respect of any one Loss Occurrence shall not exceed $40,000,000. |
B. | The Reinsurers liability in respect of Ultimate Net Loss amounts recoverable hereunder for an Act of Terrorism (as defined in the definition of Act of Terrorism) occurring during the term of this Contract shall not exceed $40,000,000. This paragraph is not subject the REINSTATEMENT ARTICLE. |
C. | The Reinsurers liability in respect of all losses occurring during the term of this Contract shall not exceed $80,000,000. |
D. | As respects the statutory portion of any Workers Compensation Policy, the Companys Ultimate Net Loss subject to this Contract shall not exceed $10,000,000 as respects any one employee, each Loss Occurrence. |
E. | The Company shall be permitted to purchase (or maintain) other reinsurance which inures to the benefit of this Contract. |
F. | The Company shall be permitted to carry underlying reinsurance, recoveries under which shall inure solely to the benefit of the Company and be entirely disregarded in applying all of the provisions of this Contract. |
G. | As respects Employers Liability and General Liability, the maximum net subject Policy limit (except statutory where required by law) as respects any one Policy shall be $2,000,000 or the Company shall be deemed to have purchased inuring excess facultative reinsurance for subject Policy limits in excess of $2,000,000. |
H. | The Company shall be permitted to carry excess of loss reinsurance applying to Workers Compensation risks in the State of Minnesota, actual recoveries under which shall inure to the benefit of this Contract. Such coverage shall be provided through the Minnesota Workers Compensation Reinsurance Association. Notwithstanding the treatment of inuring coverage in the definition of Ultimate Net Loss, the liability of the Reinsurer for Minnesota Workers Compensation risks is not released. |
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ARTICLE IX
REINSTATEMENT
A. | Should all or any part of the Reinsurers limit of liability be exhausted as a result of a Loss Occurrence, the sum so exhausted shall be reinstated from the date the Loss Occurrence commenced. |
B. | For each amount so reinstated, the Company agrees to pay an additional premium at the time of the Reinsurers payment of the loss calculated in accordance with the following formula: |
1. | The percentage of the Reinsurers limit of liability exhausted for the Loss Occurrence; times |
2. | The Net Earned Premium for the term of this Contract (exclusive of reinstatement premium). |
The dollar amount resulting from the multiplication of subparagraphs 1 and 2 above shall equal the reinstatement premium. If at the time of the Reinsurers payment of a loss hereon, the reinsurance premium as calculated under this Contract is unknown, the calculation of the reinstatement premium shall be based upon the deposit premium subject to adjustment when the reinsurance premium is finally established.
C. | Nevertheless, the Reinsurers liability hereunder shall not exceed $40,000,000 in respect of any one Loss Occurrence, and shall be further limited to $80,000,000 in respect of all losses occurring during the term of this Contract. |
ARTICLE X
SPECIAL ACCEPTANCE
From time to time the Company may request a special acceptance applicable to this Contract. For purposes of this Contract, in the event each subscribing reinsurer whose share in the interests and liabilities of the Reinsurer is 20% or greater agree to a special acceptance, such agreement shall be binding on all subscribing reinsurers. If such agreement is not achieved, such special acceptance shall be made to this Contract only with respect to the interests and liabilities of each subscribing reinsurer who agrees to the special acceptance. Should denial for special acceptance not be received within 3 working days of said request, the special acceptance shall be deemed automatically agreed. In the event a reinsurer becomes a party to this Contract subsequent to one or more special acceptances hereunder, the new reinsurer shall automatically accept such special acceptance(s) as being covered hereunder.
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ARTICLE XI
ACCOUNTING BASIS
All premiums and losses under this Contract shall be reported on an accident year accounting basis. Unless specified otherwise herein, all premiums shall be credited to the period during which they earn, and all losses shall be charged to the period during which they occur.
ARTICLE XII
REINSURANCE PREMIUM
A. | As premium for the reinsurance provided hereunder, the Company shall pay the Reinsurer 0.5172% times its Net Earned Premium for the term of this Contract subject to a Minimum Premium of $ 1,200,000. |
B. | The Company shall pay the Reinsurer a Deposit Premium of $ 1,500,000 payable in quarterly installments on January 1, April 1, July 1 and October 1. |
C. | Within 90 days after the expiration of this Contract, the Company shall provide a report to the Reinsurer setting forth the premium due hereunder, computed in accordance with paragraph A, and if the premium so computed is greater than the previously paid Deposit Premium, the balance shall be remitted by the Company with its report. |
D. | If this Contract expires on a runoff basis, the Company shall pay to the Reinsurer a premium for the runoff period equal to the expiring rate times its Net Earned Premium for the runoff period. The runoff premium shall be calculated and paid within 90 days after the end of each three-month period during the runoff period. There shall be no minimum premium requirement for the runoff period. |
ARTICLE XIII
NOTICE OF LOSS AND LOSS SETTLEMENTS
A. | As soon as practicable, the Company shall advise the Reinsurer of all bodily injury claims or losses involving any of the following: |
1. | Any claim or loss reserved at 50.0% or more of the Companys retention under this Contract. |
2. | Any claim involving any of the following injuries where the Companys incurred loss is greater than or equal to $500,000: |
a. | Fatality. |
b. | Spinal cord injuries (e.g., quadriplegia, paraplegia). |
c. | Brain damage (e.g., seizure, coma or physical/mental impairment). |
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d. | Severe burn injuries resulting in disfigurement or scarring. |
e. | Total or partial blindness in one or both eyes. |
f. | Major organ (e.g., heart, lungs). |
g. | Amputation of a limb or multiple fractures. |
B. | The Company shall also advise the Reinsurer promptly of all losses which, in the opinion of the Company, may result in a claim hereunder and of all subsequent developments thereto which, in the opinion of the Company, may materially affect the position of the Reinsurer. |
C. | When so requested in writing, the Company shall afford the Reinsurer or its representatives an opportunity to be associated with the Company, at the expense of the Reinsurer, in the defense of any claim, suit or proceeding involving this reinsurance, and the Company and the Reinsurer shall cooperate in every respect in the defense of such claim, suit or proceeding. |
D. | All loss settlements made by the Company that are within the terms and conditions of this Contract (including but not limited to ex gratia payments) shall be binding upon the Reinsurer. Upon receipt of satisfactory proof of loss, the Reinsurer agrees to promptly pay or allow, as the case may be, its share of each such settlement in accordance with this Contract. |
ARTICLE XIV
LIABILITY OF REINSURERS
All reinsurances for which the Reinsurer shall be liable by virtue of this Contract shall be subject in all respects to the same rates, terms, conditions, interpretations and waivers and to the same modifications, alterations, and cancellations, as the respective policies to which such reinsurances relate, the true intent of the parties to this Contract being that the Reinsurer shall follow the fortunes of the Company.
ARTICLE XV
LATE PAYMENTS
A. | In the event any premium, loss or other payment due either party is not received by the Intermediary hereunder by the payment due date, the party to whom payment is due may, by notifying the Intermediary in writing, require the debtor party to pay, and the debtor party agrees to pay, an interest penalty on the amount past due calculated for each such payment on the last business day of each month as follows: |
1. | The number of full days which have expired since the due date or the last monthly calculation, whichever the lesser; times |
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2. | 1/365ths of a rate equal to the 90-day Treasury Bill rate as published in The Wall Street Journal on the first business day following the date a remittance becomes due; times |
3. | The amount past due, including accrued interest. |
It is agreed that interest shall accumulate until payment of the original amount due plus interest penalties have been received by the Intermediary.
B. | The establishment of the due date shall, for purposes of this Article, be determined as follows: |
1. | As respects the payment of deposits and premiums due the Reinsurer, the due date shall be as provided for in the applicable section of this Contract. |
2. | Any claim or loss payment due the Company hereunder shall be deemed due 10 business days after the proof of loss or demand for payment is transmitted to the Reinsurer. If such loss or claim payment is not received within the 10 days, interest will accrue on the payment or amount overdue in accordance with the interest penalty calculation above, from the date the proof of loss or demand for payment was transmitted to the Reinsurer. |
3. | As respects any payment, adjustment or return due either party not otherwise provided for in subparagraphs 1 and 2 of this paragraph, the due date shall be as provided for in the applicable section of this Contract. |
C. | For purposes of interest calculation only, amounts due hereunder shall be deemed paid upon receipt by the Intermediary. The validity of any claim or payment may be contested under the provisions of this Contract. If the debtor party prevails in an arbitration, or any other proceeding, there shall be no interest penalty due. Otherwise, any interest will be calculated and due as outlined above. |
D. | Interest penalties arising out of the application of this Article that are $100 or less from any party shall be waived unless there is a pattern of late payments consisting of three or more items over the course of any 12-month period. |
ARTICLE XVI
ANNUITIES AT THE COMPANYS OPTION
A. | Whenever the Company is required, or elects, to purchase an annuity or to negotiate a structured settlement, either in satisfaction of a judgment or in an out-of-court settlement or otherwise, the cost of the annuity or the structured settlement, as the case may be, shall be deemed part of the Companys Ultimate Net Loss. |
B. | The terms annuity or structured settlement shall be understood to mean any insurance policy, lump sum payment, agreement or device of whatever nature resulting in the payment of a lump sum by the Company in settlement of any or all future liabilities which may attach to it as a result of an occurrence. |
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C. | In the event the Company purchases an annuity which inures in whole or in part to the benefit of the Reinsurer, it is understood that the liability of the Reinsurer is not released thereby. In the event the Company is required to provide benefits not provided by the annuity for whatever reason, the Reinsurer shall pay its share of any loss. |
ARTICLE XVII
AGENCY AGREEMENT
If more than one reinsured company is named as a party to this Contract, the first named company will be deemed the agent of the other reinsured companies for purposes of sending or receiving notices required by the terms and conditions of this Contract and for purposes of remitting or receiving any monies due any party.
ARTICLE XVIII
SUBROGATION
The Reinsurer shall be credited with subrogation recoveries (i.e., reimbursement obtained or recovery made by the Company, less Loss Adjustment Expense incurred in obtaining such reimbursement or making such recovery) on account of claims and settlements involving reinsurance hereunder. Subrogation recoveries thereon shall always be used to reimburse the excess carriers in the reverse order of their priority according to their participation before being used in any way to reimburse the Company for its primary loss. The Company, at its sole option and discretion, may enforce its rights to subrogation relating to any loss, a part of which loss was sustained by the Reinsurer, and may prosecute all claims arising out of such rights.
ARTICLE XIX
ERRORS AND OMISSIONS
Any inadvertent delay, omission or error shall not be held to relieve either party hereto from any liability which would attach to it hereunder if such delay, omission or error had not been made, provided such omission or error is rectified upon discovery.
ARTICLE XX
OFFSET
The Company and the Reinsurer may offset any balance or amount due from one party to the other under this Contract or any other contract heretofore or hereafter entered into between the Company and the Reinsurer, whether acting as assuming reinsurer or ceding company. The party asserting the right of offset may exercise such right any time whether the balances due are on account of premiums or losses or otherwise.
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ARTICLE XXI
CURRENCY
A. | Whenever the word Dollars or the $ sign appears in this Contract, they shall be construed to mean United States Dollars and all transactions under this Contract shall be in United States Dollars. |
B. | Amounts paid or received by the Company in any other currency shall be converted to United States Dollars at the rate of exchange at the date such transaction is entered on the books of the Company. |
ARTICLE XXII
TAXES
In consideration of the terms under which this Contract is issued, the Company will not claim a deduction in respect of the premium hereon when making tax returns, other than income or profits tax returns, to any state or territory of the United States of America, the District of Columbia or Canada.
ARTICLE XXIII
FEDERAL EXCISE TAX
(Applicable to those subscribing reinsurers who are domiciled outside the United States of America, excepting subscribing reinsurers exempt from Federal Excise Tax.)
A. | The subscribing reinsurer has agreed to allow for the purpose of paying the Federal Excise Tax the applicable percentage of the premium payable hereon (as imposed under Section 4371 of the Internal Revenue Code) to the extent such premium is subject to the Federal Excise Tax. |
B. | In the event of any return of premium becoming due hereunder the subscribing reinsurer will deduct the applicable percentage from the return premium payable hereon and the Company or its agent should take steps to recover the tax from the United States Government. |
ARTICLE XXIV
UNAUTHORIZED REINSURANCE
(Applies only to a subscribing reinsurer who does not qualify for full credit with any insurance regulatory authority having jurisdiction over the Companys reserves.)
A. |
As regards Policies or bonds issued by the Company coming within the scope of this Contract, the Company agrees that when it shall file with the insurance regulatory authority or set up on its books reserves for losses covered hereunder which it shall be required by |
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law to set up, it will forward to the subscribing reinsurer a statement showing the proportion of such reserves which is applicable to the subscribing reinsurer. The subscribing reinsurer hereby agrees to fund such reserves in respect of known outstanding losses that have been reported to the subscribing reinsurer and allocated Loss Adjustment Expense relating thereto, losses and allocated Loss Adjustment Expense paid by the Company but not recovered from the subscribing reinsurer, plus reserves for losses incurred but not reported, as shown in the statement prepared by the Company (hereinafter referred to as subscribing reinsurers obligations) by funds withheld, cash advances or a Letter of Credit. The subscribing reinsurer shall have the option of determining the method of funding provided it is acceptable to the insurance regulatory authorities having jurisdiction over the Companys reserves. |
B. | When funding by a Letter of Credit, the subscribing reinsurer agrees to apply for and secure timely delivery to the Company of a clean, irrevocable and unconditional Letter of Credit issued by a bank and containing provisions acceptable to the insurance regulatory authorities having jurisdiction over the Companys reserves in an amount equal to the subscribing reinsurers proportion of said reserves. Such Letter of Credit shall be issued for a period of not less than one year, and shall be automatically extended for one year from its date of expiration or any future expiration date unless 30 days (60 days where required by insurance regulatory authorities) prior to any expiration date the issuing bank shall notify the Company by certified or registered mail that the issuing bank elects not to consider the Letter of Credit extended for any additional period. |
C. | The subscribing reinsurer and Company agree that the Letters of Credit provided by the subscribing reinsurer pursuant to the provisions of this Contract may be drawn upon at any time, notwithstanding any other provision of this Contract, and be utilized by the Company or any successor, by operation of law, of the Company including, without limitation, any liquidator, rehabilitator, receiver or conservator of the Company for the following purposes, unless otherwise provided for in a separate Trust Agreement: |
1. | To reimburse the Company for the subscribing reinsurers obligations, the payment of which is due under the terms of this Contract and which has not been otherwise paid; |
2. | To make refund of any sum which is in excess of the actual amount required to pay the subscribing reinsurers obligations under this Contract; |
3. | To fund an account with the Company for the subscribing reinsurers obligations. Such cash deposit shall be held in an interest bearing account separate from the Companys other assets, and interest thereon not in excess of the prime rate shall accrue to the benefit of the subscribing reinsurer; |
4. | To pay the subscribing reinsurers share of any other amounts the Company claims are due under this Contract. |
In the event the amount drawn by the Company on any Letter of Credit is in excess of the actual amount required for subparagraph 1 or 3, or in the case of subparagraph 4, the actual amount determined to be due, the Company shall promptly return to the subscribing reinsurer the excess amount so drawn. All of the foregoing shall be applied without diminution because of insolvency on the part of the Company or the subscribing reinsurer.
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D. | The issuing bank shall have no responsibility whatsoever in connection with the propriety of withdrawals made by the Company or the disposition of funds withdrawn, except to ensure that withdrawals are made only upon the order of properly authorized representatives of the Company. |
E. | At annual intervals, or more frequently as agreed but never more frequently than quarterly, the Company shall prepare a specific statement of the subscribing reinsurers obligations, for the sole purpose of amending the Letter of Credit, in the following manner: |
1. | If the statement shows that the subscribing reinsurers obligations exceed the balance of credit as of the statement date, the subscribing reinsurer shall, within 30 days after receipt of notice of such excess, secure delivery to the Company of an amendment to the Letter of Credit increasing the amount of credit by the amount of such difference. |
2. | If, however, the statement shows that the subscribing reinsurers obligations are less than the balance of credit as of the statement date, the Company shall, within 30 days after receipt of written request from the subscribing reinsurer, release such excess credit by agreeing to secure an amendment to the Letter of Credit reducing the amount of credit available by the amount of such excess credit. |
ARTICLE XXV
NET RETAINED LINES
A. | This Contract applies only to that portion of any Policy which the Company retains net for its own account (prior to deduction of any underlying reinsurance specifically permitted in this Contract), and in calculating the amount of any loss hereunder and also in computing the amount or amounts in excess of which this Contract attaches, only loss or losses in respect of that portion of any Policy which the Company retains net for its own account shall be included. |
B. | The amount of the Reinsurers liability hereunder in respect of any loss or losses shall not be increased by reason of the inability of the Company to collect from any other reinsurer(s), whether specific or general, any amounts which may have become due from such reinsurer(s), whether such inability arises from the insolvency of such other reinsurer(s) or otherwise. |
ARTICLE XXVI
THIRD PARTY RIGHTS
This Contract is solely between the Company and the Reinsurer, and in no instance shall any other party have any rights under this Contract except as expressly provided otherwise in the INSOLVENCY ARTICLE.
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ARTICLE XXVII
SEVERABILITY
If any provision of this Contract shall be rendered illegal or unenforceable by the laws or regulations of any state, such provision shall be considered void in such state, but this shall not affect the validity or enforceability of any other provision of this Contract or the enforceability of such provision in any other jurisdiction.
ARTICLE XXVIII
GOVERNING LAW
This Contract shall be governed as to performance, administration and interpretation by the laws of the State of Louisiana, exclusive of that states rules with respect to conflicts of law, except as to rules with respect to credit for reinsurance in which case the applicable rules of all states shall apply.
ARTICLE XXIX
ACCESS TO RECORDS
The Reinsurer or its designated representatives shall have access to the books and records of the Company on matters relating to this reinsurance at all reasonable times for the purpose of obtaining information concerning this Contract or the subject matter hereof. Notwithstanding the above, the Reinsurer shall not have any access to the books and records of the Company if it is not current in all undisputed payments due to the Company.
ARTICLE XXX
SUNSET AND COMMUTATION
A. | Ten years after the expiration of this Contract, the Company shall advise the Reinsurer of any Loss Occurrences attaching to this Contract which have not been finally settled and which may result in a claim by the Company under this Contract. No liability shall attach hereunder for any claim or claims not reported to the Reinsurer within this ten year period. If a loss arising out of a Loss Occurrence is reported during this period, all losses arising out of the same Loss Occurrence shall be deemed reported under this paragraph regardless of when notification of loss is provided. |
B. | If both parties agree to commute the unsettled losses subject to the Contract, then the Reinsurers liability for all such unsettled losses shall then be commuted. |
C. |
It is understood that commutation of all such losses shall be made using tabular reserving methods. For each loss, the nominal ultimate value of the Companys Ultimate Net Loss shall be established by projecting out future medical and indemnity payments and loss expenses by year based on appropriate trends and escalations applied to annual cost estimates. The Contract limit and retention (where applicable) shall then be applied to the |
18
nominal ultimate value of the Companys Ultimate Net Loss to determine the nominal ultimate Contract loss. Mortality factors and discount factors shall then be applied by year to the nominal ultimate Contract loss. The discounted, mortality adjusted projected annual loss payments shall be summed to determine the present value (commutation price) of the ultimate Contract loss. The medical escalation, discount and mortality factors are described in paragraph C. |
D. | The following factors shall be utilized in establishing the commutation price: |
1. | Medical Escalation Rate |
The medical escalation rate shall be a reasonable estimate of future medical inflation.
2. | Discount Rate |
The discount rate shall be the annualized 10-year US Treasury Bill rate at the Valuation Date.
3. | Mortality Tables |
Mortality factors shall be based on the most recent mortality table at the Valuation Date from the Vital Statistics of the United States as published by the US Department of Health and Human Services, Center for Disease Control and Prevention. Factors for extension beyond age 85 shall also be included.
4. | Impairment |
Impairment factors shall be based on the individual claim characteristics.
Any other method of calculating the commutation price of one or more losses subject to this Contract may be used as mutually agreed between the Company and the Reinsurer.
E. | If the Company and the Reinsurer cannot agree on a commutation value, the effort can be abandoned. Alternatively, the Company and the Reinsurer may mutually agree to settle any difference using a panel of three actuaries, one to be chosen by each party and the third by the two so chosen. If either party refuses or neglects to appoint an actuary within 30 days, the other party may appoint two actuaries. If the two actuaries fail to agree on the selection of a third actuary within 30 days of their appointment, each of them shall name two, of whom the other shall decline one and the decision shall be made by drawing lots. All the actuaries shall be regularly engaged in the valuation of Workers Compensation claims and shall be Fellows of the Casualty Actuarial Society or members of the American Academy of Actuaries. All of the actuaries shall be independent of either party to this Contract. |
F. | The settlement agreed upon by a majority of the panel of actuaries shall be final and binding on both parties and set forth in a sworn written document expressing their professional opinion that said value is fair for the complete mutual release of all liabilities in respect of such reserves. |
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G. | The Reinsurers commutation payment shall be due within 7 days following the date the Company and the Reinsurer agree to the commutation price. Such payment by the Reinsurer shall constitute both a complete release of the Reinsurer of its liability for all losses, known or unknown, under this Contract, and a complete release of the Company of its liabilities and obligations, known or unknown, under this Contract. |
H. | This Article shall survive the expiration of this Contract. |
ARTICLE XXXI
INSOLVENCY
A. | In the event of the insolvency of the Company, this reinsurance shall be payable directly to the Company or to its liquidator, receiver, conservator or statutory successor, with reasonable provision for verification, on the basis of the liability of the Company without diminution because of the insolvency of the Company or because the liquidator, receiver, conservator or statutory successor of the Company has failed to pay all or a portion of any claim. It is agreed, however, that the liquidator, receiver, conservator or statutory successor of the Company shall give written notice to the Reinsurer of the pendency of a claim against the Company indicating the Policy or bond reinsured which claim would involve a possible liability on the part of the Reinsurer within a reasonable time after such claim is filed in the conservation or liquidation proceeding or in the receivership, and that during the pendency of such claim, the Reinsurer may investigate such claim and interpose, at its own expense, in the proceeding where such claim is to be adjudicated, any defense or defenses that it may deem available to the Company or its liquidator, receiver, conservator or statutory successor. The expense thus incurred by the Reinsurer shall be chargeable, subject to the approval of the Court, against the Company as part of the expense of conservation or liquidation to the extent of a proportionate share of the benefit which may accrue to the Company solely as a result of the defense undertaken by the Reinsurer. |
B. | Where two or more subscribing reinsurers are involved in the same claim and a majority in interest elect to interpose defense to such claim, the expense shall be apportioned in accordance with the terms of this Contract as though such expense had been incurred by the Company. |
C. | It is further agreed that, in the event of the insolvency of the Company, the reinsurance under this Contract shall be payable directly by the Reinsurer to the Company or its liquidator, receiver, conservator, or statutory successor, except as provided by Section 4118(a) of the New York Insurance Law or except 1) where this Contract specifically provides another payee of such reinsurance in the event of the insolvency of the Company or 2) where the Reinsurer with the consent of the direct insured or insureds has assumed such Policy obligations of the Company as direct obligations of the Reinsurer to the payee under such Policies and in substitution for the obligations of the Company to such payees. |
D. | In the event of the insolvency of any company or companies listed in the designation of Company under this Contract, this Article shall apply only to the insolvent company or companies. |
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ARTICLE XXXII
ARBITRATION
A. | As a condition precedent to any right of action hereunder, any irreconcilable dispute arising out of the interpretation, performance or breach of this Contract, including the formation or validity thereof, whether arising before or after the expiry or termination of the Contract, shall be submitted for decision to a panel of 3 arbitrators. Notice requesting arbitration will be in writing and sent by certified mail, return receipt requested, or such reputable courier service as is capable of returning proof of receipt of such notice by the recipient to the party demanding arbitration. |
B. | The Company shall have the option to either litigate or arbitrate where: |
1. | The Reinsurer makes any allegation of misrepresentation, non-disclosure, concealment, fraud or bad faith; or |
2. | The Reinsurer experiences any of the circumstances set forth in subparagraphs 1 through 7 of paragraph A of the SPECIAL TERMINATION ARTICLE. |
C. | One arbitrator shall be appointed by each party. If either party fails to appoint its arbitrator within 30 days after being requested to do so by the other party, the latter, after 10 days notice by certified mail or reputable courier as provided above of its intention to do so, may appoint the second arbitrator. |
D. | The two arbitrators shall, before instituting the hearing, appoint an impartial third arbitrator who shall preside at the hearing. If the 2 arbitrators are unable to agree upon the third arbitrator within 30 days of their appointment, the Company shall petition the American Arbitration Association to appoint the third arbitrator. If the American Arbitration Association fails to appoint the third arbitrator within 30 days of being requested to do so, either party may request a district court judge of the federal district court having jurisdiction over the geographical area in which the arbitration is to take place, or if the federal court declines to act, the state court having general jurisdiction in such area to select the third arbitrator from a list of 6 individuals (3 named by each arbitrator previously appointed). All arbitrators shall be disinterested active or former senior executives of insurance or reinsurance companies or Underwriters at Lloyds, London. |
E. | Within 30 days after notice of appointment of all arbitrators, the panel shall meet and determine timely periods for briefs, discovery procedures and schedules for hearings. The panel shall be relieved of all judicial formality and shall not be bound by the strict rules of procedure and evidence. Unless the panel agrees otherwise, arbitration shall take place in DeRidder, Louisiana but the venue may be changed when deemed by the panel to be in the best interest of the arbitration proceeding. Insofar as the arbitration panel looks to substantive law, it shall consider the law of the State of Louisiana. The decision of any 2 arbitrators when rendered in writing shall be final and binding. The panel is empowered to grant interim relief as it may deem appropriate. |
F. |
The panel shall make its decision considering the custom and practice of the applicable insurance and reinsurance business as promptly as possible following the termination of the |
21
hearings. Judgment upon the award may be entered in any court having jurisdiction thereof. |
G. | If more than one subscribing reinsurer is involved in arbitration where there are common questions of law or fact and a possibility of conflicting awards or inconsistent results, all such subscribing reinsurers shall constitute and act as one party for purposes of this Article and communications shall be made by the Company to each of the subscribing reinsurers constituting the one party; provided, however, that nothing therein shall impair the rights of such subscribing reinsurers to assert several, rather than joint defenses or claims, nor be construed as changing the liability of the subscribing reinsurers under the terms of this Contract from several to joint. |
H. | Each party shall bear the expense of its own arbitrator and shall jointly and equally bear with the other party the cost of the third arbitrator. The remaining costs of the arbitration shall be allocated by the panel. The panel may, at its discretion, award such further costs and expenses as it considers appropriate, including but not limited to attorneys fees, to the extent permitted by law. |
ARTICLE XXXIII
SERVICE OF SUIT
(This Article is applicable if the subscribing reinsurer is not domiciled in the United States of America and/or is not authorized in any State, Territory or District of the United States where authorization is required by insurance regulatory authorities. This Article is not intended to conflict with or override the obligation of the parties to arbitrate their disputes in accordance with the ARBITRATION ARTICLE.)
A. | In the event of the failure of the subscribing reinsurer to pay any amount claimed to be due hereunder, the subscribing reinsurer, at the request of the Company, shall submit to the jurisdiction of a court of competent jurisdiction within the United States. Nothing in this Article constitutes or should be understood to constitute a waiver of the subscribing reinsurers rights to commence an action in any court of competent jurisdiction in the United States, to remove an action to a United States District Court, or to seek a transfer of a case to another court as permitted by the laws of the United States or of any state in the United States. The subscribing reinsurer, once the appropriate court is selected, whether such court is the one originally chosen by the Company and accepted by subscribing reinsurer or is determined by removal, transfer, or otherwise, as provided for above, shall comply with all requirements necessary to give said court jurisdiction and, in any suit instituted against it upon this Contract, and shall abide by the final decision of such court or of any appellate court in the event of an appeal. |
B. | Service of process in such suit may be made upon the agent for the service of process (agent) named below, depending on the jurisdiction where the Company chooses to bring suit: |
1. |
If the suit is brought in the State of California, the law firm of Mendes and Mount, 445 South Figueroa Street, 38 th Floor, Los Angeles, California 90071 shall be |
22
authorized and directed to accept service of process on behalf of the subscribing reinsurer in any such suit; |
2. | If the suit is brought in the State of New York, the law firm of Mendes and Mount, 750 Seventh Avenue, New York, New York 10019 shall be authorized and directed to accept service of process on behalf of the subscribing reinsurer in any such suit; |
3. | If the suit is brought in any state other than California or New York, either of the agents described in subparagraphs 1 or 2 above shall be authorized and directed to accept service of process on behalf of the subscribing reinsurer in any such suit; or |
4. | If the subscribing reinsurer has designated an agent in the subscribing reinsurers Interests and Liabilities Agreement attached hereto, then that agent shall be authorized and directed to accept service of process on behalf of the subscribing reinsurer in any suit. However, if an agent is designated in the subscribing reinsurers Interests and Liabilities Agreement and the agent is not located in California as respects a suit brought in California or New York as respects a suit brought in New York, in keeping with the laws of the states of California and New York which require that service be made on an agent located in the respective state if a suit is brought in that state, the applicable office of Mendes and Mount stipulated in subparagraphs 1 and 2 above must be used for service of suit unless the provisions of paragraph C of this Article apply. |
C. | Further, pursuant to any statute of any state, territory or district of the United States that makes provision therefor, the subscribing reinsurer hereby designates the Superintendent, Commissioner or Director of Insurance, or other officer specified for that purpose in the statute, or his successor or successors in office, as its true and lawful attorney upon whom may be served any lawful process in any action, suit or proceedings instituted by or on behalf of the Company or any beneficiary hereunder arising out of this Contract, and hereby designates the above-named as the person to whom the said officer is authorized to mail such process or a true copy thereof. |
ARTICLE XXXIV
ENTIRE AGREEMENT
This Contract shall constitute the entire agreement between the parties with respect to the business being reinsured hereunder. There are no understandings between the parties other than as expressed in this Contract. Any change or modification to this Contract shall be null and void unless made by amendment to this Contract and signed by both parties.
ARTICLE XXXV
MODE OF EXECUTION
This Contract may be executed either by an original written ink signature of paper documents, by an exchange of facsimile copies showing the original written ink signature of paper documents, or by electronic signature by either party employing appropriate software technology as to satisfy
23
the parties at the time of execution that the version of the document agreed to by each party shall always be capable of authentication and satisfy the same rules of evidence as written signatures. The use of any one or a combination of these methods of execution shall constitute a legally binding and valid signing of this Contract. This Contract may be executed in one or more counterparts, each of which, when duly executed, shall be deemed an original.
ARTICLE XXXVI
INTERMEDIARY
Willis Re Inc., One Galleria Tower, 13355 Noel Road, Suite 400, Dallas, Texas 75240-6643 is hereby recognized as the intermediary negotiating this Contract and through whom all communications relating thereto shall be transmitted to the Company or the Reinsurer. However, all communications concerning accounts, claim information, funds and inquiries related thereto shall be transmitted to the Company or the Reinsurer through Willis Re Inc., 5420 Millstream Road, P.O. Box 3000, McLeansville, North Carolina 27301-3000. Payments by the Company to Willis Re Inc. shall be deemed to constitute payment to the Reinsurer and payments by the Reinsurer to Willis Re Inc. shall be deemed to constitute payment to the Company only to the extent that such payments are actually received by the Company.
IN WITNESS WHEREOF, the Company by its duly authorized representative has executed this Contract as of the date specified below:
Signed this day of , 200 .
AMERICAN INTERSTATE INSURANCE COMPANY
AMERICAN INTERSTATE INSURANCE COMPANY OF TEXAS
SILVER OAK CASUALTY, INC.
By |
24
NUCLEAR INCIDENT EXCLUSION CLAUSE - LIABILITY - REINSURANCE - U.S.A.
(1) This reinsurance does not cover any loss or liability accruing to the Reassured as a member of, or subscriber to, any association of insurers or reinsurers formed for the purpose of covering nuclear energy risks or as a direct or indirect reinsurer of any such member, subscriber or association.
(2) Without in any way restricting the operation of paragraph (1) of this Clause it is understood and agreed that for all purposes of this reinsurance all the original policies of the Reassured (new, renewal and replacement) of the classes specified in Clause II of this paragraph (2) from the time specified in Clause III in this paragraph (2) shall be deemed to include the following provision (specified as the Limited Exclusion Provision):
Limited Exclusion Provision.*
I. | It is agreed that the policy does not apply under any liability coverage, |
to | ( injury, sickness, disease, death or destruction, |
(bodily injury or property damage |
with respect to which an insured under the policy is also an insured under a nuclear energy liability policy issued by Nuclear Energy Liability Insurance Association, Mutual Atomic Energy Liability Underwriters or Nuclear Insurance Association of Canada, or would be an insured under any such policy but for its termination upon exhaustion of its limit of liability. |
II. | Family Automobile Policies (liability only), Special Automobile Policies (private passenger automobiles, liability only), Farmers Comprehensive Personal Liability Policies (liability only), Comprehensive Personal Liability Policies (liability only) or policies of a similar nature; and the liability portion of combination forms related to the four classes of policies stated above, such as the Comprehensive Dwelling Policy and the applicable types of Homeowners Policies. |
III. | The inception dates and thereafter of all original policies as described in II above, whether new, renewal or replacement, being policies which either |
(a) become effective on or after 1st May, 1960, or
(b) become effective before that date and contain the Limited Exclusion Provision set out above; provided this paragraph (2) shall not be applicable to Family Automobile Policies, Special Automobile Policies, or policies or combination policies of a similar nature, issued by the Reassured on New York risks, until 90 days following approval of the Limited Exclusion Provision by the Governmental Authority having jurisdiction thereof.
(3) Except for those classes of policies specified in Clause II of paragraph (2) and without in any way restricting the operation of paragraph (1) of this Clause, it is understood and agreed that for all purposes of this reinsurance the original liability policies of the Reassured (new, renewal and replacement) affording the following coverages: Owners, Landlords and Tenants Liability, Contractual Liability, Elevator Liability, Owners or Contractors (including railroad) Protective Liability, Manufacturers and Contractors Liability, Product Liability, Professional and Malpractice Liability, Storekeepers Liability, Garage Liability, Automobile Liability (including Massachusetts Motor Vehicle or Garage Liability) shall be deemed to include, with respect to such coverages, from the time specified in Clause V of this paragraph (3), the following provision (specified as the Broad Exclusion Provision):
Broad Exclusion Provision.*
It is agreed that the policy does not apply:
I. | Under any Liability Coverage, |
to | (injury, sickness, disease, death or destruction |
(bodily injury or property damage |
(a) with respect to which an insured under the policy is also an insured under a nuclear energy liability policy issued by Nuclear Energy Liability Insurance Association, Mutual Atomic Energy Liability Underwriters or Nuclear Insurance Association of Canada, or would be an insured under any such policy but for its termination upon exhaustion of its limit of liability; or
(b) resulting from the hazardous properties of nuclear material and with respect to which (1) any person or organization is required to maintain financial protection pursuant to the Atomic Energy Act of 1954, or any law amendatory thereof, or (2) the insured is, or had this policy not been issued would be, entitled to indemnity from the United States of America, or any agency thereof, under any agreement entered into by the United States of America, or any agency thereof, with any person or organization.
II. | Under any Medical Payments Coverage, or under any Supplementary Payments Provision relating |
to | (immediate medical or surgical relief, |
(first aid, to expenses incurred with respect |
to | (bodily injury, sickness, disease or death |
(bodily injury |
resulting from the hazardous properties of nuclear material and arising out of the operation of a nuclear facility by any person or organization.
III. | Under any Liability Coverage |
to | (injury, sickness, disease, death or destruction |
(bodily injury or property damage |
resulting from the hazardous properties of nuclear material, if
(a) the nuclear material (1) is at any nuclear facility owned by, or operated by or on behalf of, an insured or (2) has been discharged or dispersed therefrom;
(b) the nuclear material is contained in spent fuel or waste at any time possessed, handled, used, processed, stored, transported or disposed of by or on behalf of an insured; or
1
(c) the ( injury, sickness, disease, death or destruction
(bodily injury or property damages
arises out of the furnishing by an insured of services, materials, parts or equipment in connection with the planning, construction, maintenance, operation or use of any nuclear facility, but if such facility is located within the United States of America, its territories, or possessions or Canada, this exclusion (c) applies only to
(injury to or destruction of property at such nuclear facility
(property damage to such nuclear facility and any property threat.
IV. | As used in this endorsement: |
Hazardous properties include radioactive, toxic or explosive properties; nuclear material means source material, special nuclear material or byproduct material; source material, special nuclear material, and byproduct material have the meanings given them in the Atomic Energy Act of 1954 or in any law amendatory thereof; spent fuel means any fuel element or fuel component, solid or liquid, which has been used or exposed to radiation in a nuclear reactor; waste means any waste material (1) containing byproduct material and (2) resulting from the operation by any person or organization of any nuclear facility included within the definition of nuclear facility under paragraph (a) or (b) thereof; nuclear facility means
(a) any nuclear reactor,
(b) any equipment or device designed or used for (1) separating the isotopes of uranium or plutonium, (2) processing or utilizing spent fuel, or (3) handling, processing or packaging waste,
(c) any equipment or device used for the processing, fabricating or alloying of special nuclear material if at any time the total amount of such material in the custody of the insured at the premises where such equipment or device is located consists of or contains more than 25 grams of plutonium or uranium 233 or any combination thereof, or more than 250 grams of uranium 235,
(d) any structure, basin, excavation, premises or place prepared or used for the storage or disposal of waste, and includes the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operations; nuclear reactor means any apparatus designed or used to sustain nuclear fission in a self-supporting chain reaction or to contain a critical mass of fissionable material;
(With respect to injury to or destruction of property, the word injury or destruction
(property damage includes all forms of radioactive contamination of property
(includes all forms of radioactive contamination of property.
V. | The inception dates and thereafter of all original policies affording coverages specified in this paragraph (3), whether new, renewal or replacement, being policies which become effective on or after 1st May, 1960, provided this paragraph (3) shall not be applicable to |
(i) Garage and Automobile Policies issued by the Reassured on New York risks, or
(ii) statutory liability insurance required under Chapter 90, General Laws of Massachusetts, until 90 days following approval of the Broad Exclusion Provision by the Governmental Authority having jurisdiction thereof.
(4) Without in any way restricting the operation of paragraph (1) of this Clause, it is understood and agreed that paragraphs (2) and (3) above are not applicable to original liability policies of the Reassured in Canada and that with respect to such policies this Clause shall be deemed to include the Nuclear Energy Liability Exclusion Provisions adopted by the Canadian Underwriters Association of the Independent Insurance Conference of Canada.
* | NOTE: The words printed in italics in the Limited Exclusion Provision and in the Broad Exclusion Provision shall apply only in relation to original liability policies which include a Limited Exclusion Provision or a Broad Exclusion Provision containing those words. |
21/9/67
N.M.A. 1590
BRMA 35A
2
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors
AMERISAFE, Inc.
We consent to the incorporation by reference in Registration Statements No. 333-129980 pertaining to the 2005 Non-Employee Director Restricted Stock Plan and No. 333-129982 pertaining to the 2005 Equity Incentive Plan of AMERISAFE, Inc. of our reports dated March 9, 2009, with respect to the consolidated financial statements and schedules of AMERISAFE, Inc., and the effectiveness of internal control over financial reporting of AMERISAFE, Inc. as of December 31, 2008, included in the Annual Report on Form 10-K for the year ended December 31, 2008.
/s/ Ernst & Young LLP | ||||
New Orleans, Louisiana |
||||
March 9, 2008 |
Exhibit 24.1
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned hereby constitutes and appoints C. Allen Bradley, Jr., G. Janelle Frost and Todd Walker, and each of them, the true and lawful attorney or attorneys-in-fact, with full power of substitution and resubstitution, for him and in his name, place and stead, to sign on his behalf as a director or officer or both, as the case may be, of AMERISAFE, Inc. an Annual Report on Form 10-K for the fiscal year ended December 31, 2008 under the Securities Exchange Act of 1934, as amended, and to sign any or all amendments thereto and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney or attorneys-in-fact, and each of them with or without the others, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
/s/ C. Allen Bradley, Jr. |
/s/ Millard E. Morris |
|||
C. Allen Bradley, Jr. |
Millard E. Morris | |||
/s/ G. Janelle Frost |
/s/ Daniel Phillips |
|||
G. Janelle Frost |
Daniel Phillips | |||
/s/ Thomas W. Hallagan |
/s/ Randall Roach |
|||
Thomas W. Hallagan |
Randall Roach | |||
/s/ Jared A. Morris |
/s/ Sean M. Traynor |
|||
Jared A. Morris |
Sean M. Traynor | |||
/s/ Austin P. Young, III |
||||
Austin P. Young, III |
Dated: March 5, 2009
Exhibit 31.1
CERTIFICATIONS
I, C. Allen Bradley, Jr., certify that:
1. I have reviewed this Annual Report on Form 10-K of AMERISAFE, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: March 9, 2009 |
/s/ C. Allen Bradley, Jr. |
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C. Allen Bradley, Jr. | ||||
Chairman, President and Chief Executive Officer (Principal Executive Officer) |
Exhibit 31.2
CERTIFICATIONS
I, G. Janelle Frost, certify that:
1. I have reviewed this Annual Report on Form 10-K of AMERISAFE, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: March 9, 2009 |
/s/ G. Janelle Frost |
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G. Janelle Frost | ||||
Executive Vice President and Chief Financial Officer (Principal Financial Officer) |
Exhibit 32.1
CERTIFICATION PURSUANT TO 18 U.S.C. § 1350,
AS ADOPTED PURSUANT TO § 906
OF THE SARBANES-OXLEY ACT OF 2002
In connection with the filing of the Annual Report on Form 10-K of AMERISAFE, Inc., a Texas corporation (the Company), for the year ended December 31, 2008, as filed with the Securities and Exchange Commission on the date hereof (the Report), each of the undersigned officers of the Company certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that, to such officers knowledge:
1. The report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of the dates and for the periods expressed in the Report.
Date: March 9, 2009 |
/s/ C. Allen Bradley, Jr. |
|||
C. Allen Bradley, Jr. | ||||
Chairman, President and Chief Executive Officer (Principal Executive Officer) |
||||
/s/ G. Janelle Frost |
||||
G. Janelle Frost | ||||
Executive Vice President and Chief Financial Officer (Principal Financial Officer) |
The foregoing certification is being furnished solely pursuant to 18 U.S.C. § 1350 and is not being filed as part of the Report or as a separate disclosure document.