Herbies’ ‘baseball’ deal saves Winterthur $830m

Herbert Smith’s insurance litigation team has saved insurance company Winterthur $830m (£468.9m) through a ‘baseball arbitration’ with XL Insurance.

Partners David Reston and Chris Foster, instructing 7 King’s Bench Walk co-head Julian Flaux QC, negotiated the settlement on behalf of Winterthur following the sale of its international insurance operations to XL in 2001.

The companies agreed at the time of the sale that reserves would be reviewed after three years and a balancing payment made if necessary. Significant losses meant Winterthur had to make the payment, but there was a difference of $900m (£508.4m) between the amounts proposed by the two companies.

The ‘baseball’ process used for the settlement was originally a method used to resolve disputes over baseball players’ salaries. It is designed to force negotiation, as well as the production of realistic settlement figures. Winterthur and XL both valued the disputed sum before an independent actuary reported on it, arriving at a result closer to Winterthur’s valuation.

Winterthur is expected to pay in the region of $575m (£324.6m), resulting in a net charge of around $830m (£468.9m) to XL.

Clifford Chance and 20 Essex Street acted for XL.