Articles by Practice Area
- New international collaboration expands our offering in the Insurance sector
- Legal Update: Is an insurer vicariously liable for an agent’s fraud?
- GL4: Guideline on 'Fit and Proper' Criteria
- D-DAY: Commencement of a New Era of Insurance Regulation in Hong Kong
- Hong Kong Insurance Industry Braces for New Corporate Governance Measures
Items filtered by date: January 2018
Hong Kong law firm, Oldham, Li & Nie (OLN) is pleased to have agreed a new collaboration with international law firm, DAC Beachcroft LLP as it continues to expand and develop new business groups.
The firms will draw on each other’s respective insurance and reinsurance practices and cooperate in additional areas of the law to provide a full range of services to clients in Hong Kong, based on DAC Beachcroft’s extensive insurance practice and OLN’s local Hong Kong expertise and relationships.
Greg Crichton and Adelina Wong will jointly lead the collaboration on behalf of OLN. Prior to joining OLN, Greg Crichton worked for many years in the insurance and reinsurance industry in Asia and was a Director, EVP and General Counsel at American International Assurance (AIA). Adelina Wong was a Senior Legal Counsel of AIA based in Hong Kong, and has significant expertise in Hong Kong’s insurance regulatory environment.
Insurance and reinsurance partner in DAC Beachcroft's Singapore office, Steven Dewhurst, who leads the firm’s Asian practice is driving this collaboration for the firm. Steven is admitted to practice in Hong Kong as well as England and Wales, and has decades of experience in insurance and reinsurance matters. As part of the move, Steven will also become a consultant with OLN.
"Closely collaborating with DAC Beachcroft, and its market leading insurance practice, is a tremendous development for OLN. It brings together a heavy weight team led jointly by Steven, Greg and Adelina, who share a profound knowledge of the global insurance sector and close client relationships in Hong Kong and throughout the Asia Pacific region." Stated Gordon Oldham, Senior Partner of OLN.
DAC Beachcroft Managing Partner, David Pollitt, said: "We are pleased to have formalised this new collaboration with OLN, a firm with deep local and sector knowledge and with which we share a commitment to our clients. Driven by client demand, this goes beyond simply cross-referrals; the new arrangement will enable us to provide comprehensive legal solutions for our multi-national clients in this important region for our business. We look forward to working with them."
For more information, please contact Liz Kenyon on 2868 0696 / email@example.com.
By Adelina Wong, Consultant, Insurance, Oldham, Li & Nie
Vicarious liability is the legal doctrine that holds one party liable for wrongdoing committed by another, typically where the party held liable is superior to or has some right to control the other’s actions. This most commonly arises in the employment context, where an employer is generally held liable for any tort committed by an employee in the course of his/her duties. However, vicarious liability is not limited to the employment relationship and can extend to the relationship between insurer and insurance agent.
Recent cases affirm that the relationship between insurer and agent can give rise to vicarious liability, even though the agent is not the insurer’s employee and the agent’s contract with the insurer explicitly denies any employment relationship. In deciding whether to impose vicarious liability, courts will consider if this is fair, just and reasonable taking into account the overall relationship (including the insurer’s control over the agent) and enterprise risk considerations, including the insurer’s business model, the regulatory framework governing the insurance industry and deterrence of future harm. In Hong Kong, many agents are tied exclusively to one insurer and even non-exclusive agents are bound under the HKFI Code of Practice to represent no more than four insurers, including no more than 2 long-term insurers. These ties between insurer and agent, and the functions performed by the agent on the insurer’s behalf, tend to create circumstances where a court may find vicarious liability.
- Case Analysis
A recent Singapore case, in which a major life insurer was held vicariously liable for an agent’s fraud, is instructive. In that case, the agent had sold the plaintiffs (an elderly Indonesian couple) a fictitious 5-year life insurance policy. Funds remitted by the plaintiffs for the fake policy were used by the agent to buy unauthorized policies in the plaintiffs’ names, which the agent later deceived the plaintiffs into surrendering. The funds were then misappropriated by the agent. Throughout this process, the insurer relied on the agent to liaise with the plaintiffs regarding the policies they held and to transmit instructions as to how to handle their money, refund cheques and surrender proceeds.
In finding the insurer vicariously liable for the agent’s fraud, the Singapore High Court applied a 2-stage test, under which vicarious liability will be imposed where:
- There is a “special relationship” between the tortfeasor (fraud perpetrator) and the defendant making it “fair, just and reasonable” for liability to be imposed; and
- The conduct of the tortfeasor is closely connected to his/her relationship with the defendant, particularly where that relationship materially increases the risk of the fraud being committed.
In applying this test for vicarious liability, the Singapore Court followed an established line of UK and Canadian caw law which identified two policy considerations for imposing liability: 1) effective compensation for the victim; and 2) enterprise risk theory, which holds that an enterprise which engages agents to advance its business interests and creates the risk of those agents committing wrongs against third parties should bear responsibility for the consequences, since it is best placed (and should be incentivized) to manage the risks and prevent wrongdoing.
Under the first stage of the test (requiring a special relationship between tortfeasor and defendant), vicarious liability is no longer restricted to employment relationships and the court will examine the facts to see if the relationship has some of the same fundamental qualities inherent in employer-employee relationships, including control over the tortfeasor (agent) and integration of his/her activities in the defendant’s (insurer’s) enterprise. On the facts of the Singapore case, the court found that these elements were present, noting that even though the agent’s contract with the insurer specifically stated that the agent was not an employee, she represented the insurer exclusively and performed a wide range of functions on the insurer’s behalf. Further, the insurer’s control over her was very similar to that of an employer training, managing, supervising and disciplining its employees.
Turning to the second stage of the test (requiring a sufficient connection between the tortfeasor’s conduct and his/her relationship with the defendant), the court noted that the fraud had been perpetrated in the context of a business model in which insurers relied on agents to promote and market their policies by developing close relationships with high net-worth policy holders. On the facts, the insurer further enhanced the risk of the agent’s fraud by allowing her to perform tasks on both sides without verification, including accepting her word as instructions and authorization from the customer. Given this business framework and the policy justifications of victim compensation and deterrence, the court found that there was a sufficient connection between the agent’s fraud and her relationship with the insurer so as to justify imposing vicarious liability.
- OLN Insights
1. Recent case law confirms that vicarious liability is not confined to employment relationships and can render an insurer liable for its agent’s fraud. Courts will look beyond the agent’s contract with the insurer in assessing if the agent is truly acting as an independent contractor or is effectively controlled by the insurer and integrated within the insurer’s enterprise.
2. Policy considerations, and particularly enterprise risk considerations, may lead a court to hold an insurer vicariously liable for an agent’s fraud in the current regulatory context, which (in Hong Kong as in Singapore) expects insurance companies to take responsibility for the management of its agents, particularly where agents are representing no more than a few insurers, and are seen by the public as representatives of their appointing insurer and an extension of their enterprise.
3. To mitigate exposure, insurers would be well advised to institute more robust controls to verify policyholder instructions rather than relying exclusively on agents to communicate with customers. Verification should be undertaken of significant policy-related requests from policyholders, including instructions on how to apply remitted and/or excess funds and policy surrender requests. For example, policy approval confirmation letters, premium payment letters, policy surrender letters and refund cheques could be mailed directly to the policyholder (with proof of delivery) rather than passed on through the agent.
About OLN's Insurance Practice Group
OLN’s Insurance Practice Group has direct experience of the legal, regulatory and practical challenges facing insurers and reinsurers throughout Asia region. Members of our Group have worked in the insurance industry and have extensive experience working in and advising insurers and reinsurers on contractual and regulatory matters and risk management issues relevant to their businesses. We have particular expertise in the review and drafting of contractual documentation relating to insurance and reinsurance activities, including the development of policy wording for life, accident, medical and health insurance products, and the review and vetting of related proposals, product brochures and training materials. We also have experience advising on disputes over coverage for claims under both life and general insurance policies, and with support from OLN’s Dispute Resolution Group, are well placed to represent clients in all aspects of insurance litigation.
For more information about any other insurance related matters, please contact:
Greg Crichton, Consultant
(852) 2868 0696
Adelina Wong, Consultant
(852) 2868 0696
By Anna Chan, Partner, Dispute Resolution, Oldham, Li & Nie
The Tax Cuts and Jobs Act (the “New Tax Law”), which lowers business and individual tax rates and makes significant changes to the US tax rules, was effected and promulgated into law in late December last year and most of the changes would take effect from 1 January 2018.
The key changes are highlighted below:-
Reduced from 35% to 21%.
The New Tax Law also introduces a 20% deduction for Qualified Business Income including income from a partnership, S corporation or sole proprietorship to the non-corporate taxpayers (with many exclusions and exceptions). This aims to address the disparity of the lower corporate tax rate of 21% and the top individual income tax rate of 37%.
|The top individual income tax rate for taxable years 2018 to 2025 has been reduced from 39.6% to 37%.|
The Corporate Alternative Minimum Tax (“AMT”, which is effectively a prepayment of tax as it generates a minimum tax credit for any AMT paid) of 20% has been abolished and taxpayers may claim a refund on any AMT credits carryforwards:-
The standard deduction is roughly doubled:-
Regarding net operating losses:-
Taking into account of other measures included in the New Tax Law including changes to the itemised deductions, the New Tax Law might not necessarily result in a lower net tax payable for some taxpayers, such changes are as follows:-
The lifetime estate basic exclusion amount in determining the estate and gift tax has been doubled to US$11.2 million per individual (or US$22.4 million per married couple).
Changes to the US international tax rules
- Qualified dividends received by US corporations from foreign subsidiaries would be entitled for a 100% dividends received deduction.
- Accordingly, such dividend would only be taxed at the US individual shareholder’s level when an individual receives such dividend income at his / her individual income tax rate.
- The New Tax Law introduces a new regime of which any accumulated foreign earnings of Controlled Foreign Corporations would be taxed at the rate of 15.5% for cash or cash equivalents and 8% for illiquid assets.
For a deeper discussion or any enquiry, please contact one of our members of the Tax Advisory team.
Every entrepreneur and “startup” business needs to have access to the best commercial and business advice, but the issue of costs is always a problem in the early stages of any business.
OLN fully appreciates this and therefore has implemented an “in house legal counsel service” for startups.
This enables an entrepreneur or a startup company to have access to OLN lawyers, at discounted rates, for general legal advice and problem solving.
When there is more substantive work, such as the drafting of documents, such services and assistance can then be provided at agreed discounted rates.
Should you wish to benefit from this service, please do not hesitate to contact Chris Hooley at firstname.lastname@example.org.