SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
For the Quarterly Period Ended September 30, 2004
or
For the Transition Period from ____ to ____.
Commission File Number 1-15202
W. R. BERKLEY CORPORATION
(203) 629-3000
None
Indicate by check mark whether the registrant (1) 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 and (2) has been subject to such filing requirements for the past 90 days.Yes x No o
Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act.)Yes x No o
Number of shares of common stock, $.20 par value, outstanding as of November 1, 2004: 84,144,023
Part I – FINANCIAL INFORMATION
ITEM 1. Financial Statements
W. R. Berkley Corporation and Subsidiaries
See accompanying notes to consolidated financial statements.
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W. R. Berkley Corporation and SubsidiariesNotes to Unaudited Consolidated Financial StatementsSeptember 30, 2004
1. GENERAL
The accompanying consolidated financial statements should be read in conjunction with the following notes and with the Notes to Consolidated Financial Statements included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2003. Reclassifications have been made in the 2003 financial statements as originally reported to conform them to the presentation of the 2004 financial statements.
The income tax provision has been computed based on the Company’s estimated annual effective tax rate, which differs from the federal income tax rate of 35% principally because of tax-exempt investment income.
Basic earnings per share data are based upon the weighted average number of shares outstanding during the period. Diluted earnings per share data reflect the potential dilution that would occur if options granted under employee stock-based compensation plans were exercised.
In the opinion of management, the financial information reflects all adjustments that are necessary for a fair presentation of financial position and results of operations for the interim periods. Seasonal weather variations and natural and man-made catastrophes can have a significant impact on the results of any one or more reporting periods.
2. RECENT ACCOUNTING PRONOUNCEMENTS
In January 2003, the FASB issued Interpretation No. 46, “Consolidation of Variable Interest Entities” (“FIN 46”), which was replaced in December 2003 by FIN 46R. FIN 46R addresses consolidation issues surrounding special purpose entities and certain other entities, collectively termed variable interest entities (“VIE”). A VIE is an entity in which equity investors do not have the characteristics of a controlling financial interest or do not have sufficient equity at risk for the entity to finance its activities without additional subordinated financial support from other parties. FIN 46R requires VIEs to be consolidated by their primary beneficiaries. The Company adopted FIN 46R in 2003, except for the consolidation provisions which were adopted on January 1, 2004.
As a result of adopting the consolidation provisions of FIN 46R, the Company deconsolidated the W. R. Berkley Capital Trust (the “Trust”). The Company owns preferred securities of the Trust that were previously accounted for at the date of purchase as an extinguishment of debt and eliminated in consolidation. The impact of de-consolidating the Trust was to increase fixed maturity securities by $13,787,000 and to increase junior subordinated debentures by $14,906,000, as of January 1, 2004. The difference between these two amounts, which was $727,000 after income taxes, was reported on the Company’s consolidated statement of operations as a cumulative effect of change in accounting principle.
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W. R. Berkley Corporation and SubsidiariesNotes to Unaudited Consolidated Financial Statements (Continued)September 30, 2004
3. COMPREHENSIVE INCOME
The following is a reconciliation of comprehensive income (dollars in thousands):
4. STOCK-BASED COMPENSATION
The Company adopted FASB Statement No. 148, “Accounting for Stock-Based Compensation – Transition and Disclosure – an amendment of FASB Statement No. 123”, effective as of January 1, 2003. Under the prospective method of adoption selected by the Company, the fair value recognition provisions of FASB 148 are applied to all employee awards granted, modified or settled after January 1, 2003. The following table illustrates the effect on net income and earnings per share as if the fair value based method had been applied to all outstanding and unvested awards in each period (dollars in thousands, except per share data).
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5. INVESTMENTS
The cost, fair value and carrying value of fixed maturity securities and equity securities are as follows (dollars in thousands):
6. REINSURANCE CEDED
The Company reinsures a portion of its exposures principally to reduce its net liability on individual risks and to protect against catastrophic losses. Estimated amounts recoverable from reinsurers are reported net of reserves for uncollectible reinsurance ($2.5 million as of September 30, 2004). The following amounts arising under reinsurance ceded contracts have been deducted in arriving at the amounts reflected in the statement of operations (dollars in thousands):
7. RETIREMENT BENEFITS
Effective August 19, 2004, the Company entered into an agreement to provide retirement benefits to the Company’s chief executive officer and chairman of the board. Retirement benefits are reported in accordance with FASB Statement No. 87, “Employers’ Accounting for Pensions”. As of August 19, 2004, the projected benefit obligation of $17,277,000 was recorded as a liability with a corresponding deferred asset that will be amortized as a prior service cost over the estimated remaining service period. For the three months ended September 30, 2004, the retirement benefit expense was $283,000. The key actuarial assumptions used to derive the projected benefit obligation and related expense are a discount rate of 6.0%, a rate of compensation increase of 5.0% per year and a retirement age of 72.
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8. INDUSTRY SEGMENTS
The Company’s operations are presently conducted in five segments of the insurance business: specialty lines of insurance, regional property casualty insurance, alternative markets, reinsurance, and international.
Our specialty segment underwrites complex and sophisticated third-party liability risks, principally within the excess and surplus lines, professional liability, and commercial transportation markets. The specialty business is conducted through nine operating units. The companies within the segment are divided along the different customer bases and product lines that they serve. The specialty units deliver their products through a variety of distribution channels depending on the customer base and particular risks insured. The customers in this segment are highly diverse.
Our regional subsidiaries provide commercial insurance products to customers primarily in 32 states. Key clients of this segment are small-to-mid-sized businesses and governmental entities. The regional subsidiaries are organized geographically, which provides them with the flexibility to adapt to local market conditions, while enjoying the superior administrative capabilities and financial strength of the Company. The regional operations are conducted through four geographic regions based on markets served: Midwest, New England, Southern (excluding Florida) and Mid Atlantic.
Our alternative markets operations specialize in developing, insuring, reinsuring and administering self-insurance programs and other alternative risk transfer mechanisms. Our clients include employers, employer groups, insurers, and alternative market funds seeking less costly, more efficient ways to manage exposure to risks. In addition to providing primary and excess workers’ compensation insurance, the alternative markets segment also provides a wide variety of fee-based third-party administrative services.
Our reinsurance operations specialize in underwriting property casualty reinsurance on both a treaty and a facultative basis. The principal reinsurance units are facultative reinsurance, which writes individual certificates and program facultative business, treaty reinsurance, which functions as a traditional reinsurer in specialty and standard reinsurance lines, and Lloyd’s reinsurance, which writes quota share reinsurance with certain Lloyd’s syndicates.
Our international segment includes our operations in Argentina and the Philippines. In Argentina, we currently offer commercial and personal property casualty insurance. In the Philippines, we provide savings and life products to customers, including endowment policies to pre-fund education costs and retirement income. Our operations in the U.K. are reported in our specialty segment.
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8. INDUSTRY SEGMENTS (continued)
Summary financial information about the Company’s operating segments is presented in the following table. Income (loss) before income taxes by segment consists of revenues less expenses related to the respective segment’s operations, including allocated investment income. Identifiable assets by segment are those assets used in or allocated to the operation of each segment.
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Identifiable assets by segment are as follows (dollars in thousands):
Net premiums earned by major line of business are as follows (dollars in thousands):
9. DEBT
In August 2004, the Company issued $150 million aggregate principal amount of 6.15% senior notes due in August 2019. The notes were issued at 99.375% of their face value amount and the net proceeds to the Company after expenses were $147,817,000.
10. COMMITMENTS, LITIGATION AND CONTINGENT LIABILITIES
The Company’s subsidiaries are regularly engaged in the defense of claims arising out of the conduct of the insurance business. The Company does not believe that such litigation, individually or in the aggregate, will have a material effect on its financial condition or results of operations.
The New York State Attorney General and other regulators have commenced investigations, legal actions and general inquiries concerning alleged anti-competitive activities in the insurance industry. These allegations include improper sales practices as well as other non-competitive behaviors. Upon learning of this, the Company on its own initiative commenced an internal review with the assistance of outside counsel. The internal review is focused on our relationships with our distribution channels. The internal review is not yet complete.
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SAFE HARBOR STATEMENT
This is a “Safe Harbor” Statement under the Private Securities Litigation Reform Act of 1995. Any forward-looking statements contained herein, including statements related to our outlook for the industry and for our performance for the year 2004 and beyond, are based upon the Company’s historical performance and on current plans, estimates and expectations. The inclusion of this forward-looking information should not be regarded as a representation by us or any other person that the future plans, estimates or expectations contemplated by us will be achieved. They are subject to various risks and uncertainties, including but not limited to, the cyclical nature of the property casualty industry, the long-tail and potentially volatile nature of the reinsurance business, product demand and pricing, claims development and the process of estimating reserves, the uncertain nature of damage theories and loss amounts, natural and man-made catastrophic losses, including as a result of terrorist activities, increases in the level of our retention, the impact of competition, the availability of reinsurance, the ability of our reinsurers to pay reinsurance recoverables owed to us, investment risks, including those relating to fixed income securities, merger arbitrage investments, and other equity securities, exchange rate and political risks relating to our international operations, legislative and regulatory developments, including those related to alleged anti-competitive or other improper sales practices in the insurance industry, changes in the ratings assigned to us by ratings agencies, the availability of dividends from our insurance company subsidiaries, our ability to successfully acquire and integrate companies and invest in new insurance ventures, our ability to attract and retain qualified employees, and other risks detailed from time to time in the Company’s filings with the Securities and Exchange Commission. These risks could cause actual results of the industry or our actual results for the year 2004 and beyond to differ materially from those expressed in any forward-looking statement made by or on behalf of the Company. Any projections of growth in the Company’s net premiums written and management fees would not necessarily result in commensurate levels of underwriting and operating profits. Forward-looking statements speak only as of the date on which they are made.
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Item 2.
Management’s Discussion and Analysis of FinancialCondition and Results of Operations
Overview
W. R. Berkley Corporation is an insurance holding company that provides, through its subsidiaries, commercial property casualty insurance products and services. The Company’s principal focus is casualty business. The Company’s primary sources of revenues and earnings are insurance and investments.
The profitability of the Company’s insurance business is affected primarily by the adequacy of premium rates. The ultimate adequacy of premium rates is not known with certainty at the time a property casualty insurance policy is issued because premiums are determined before claims are reported. The ultimate adequacy of premium rates is affected mainly by the severity and frequency of claims, which are influenced by many factors, including natural and other disasters, regulatory measures and court decisions that define and change the extent of coverage and the effects of economic inflation on the amount of compensation due for injuries or losses. General insurance prices are also influenced by the available insurance capacity, i.e., the level of policyholders’ surplus employed in the industry and the industry’s willingness to deploy that capital.
An insurer’s profitability is also affected by its investment income. The Company’s invested assets, which are derived from its own capital and cash flow from its insurance business, are invested principally in fixed income securities. The return on fixed income securities is affected primarily by general interest rates and the credit quality and duration of the securities. The Company also invests in equity securities, including equity securities related to merger arbitrage and convertible arbitrage strategies. Investment returns are impacted by government policies and overall economic activity.
Critical Accounting Estimates
Management considers estimates and assumptions relating to reserves for losses and loss expenses to be critical to the portrayal of the Company’s financial condition and results since these estimates and assumptions are based on complex and subjective judgments, often including the interplay of specific uncertainties with related accounting and actuarial measurements. Such estimates are also susceptible to change as significant periods of time may elapse between the occurrence of an insured loss, the report of the loss to the insurer, the ultimate determination of the cost of the loss and the insurer’s payment of that loss.
To recognize liabilities for unpaid losses, either known or unknown, insurers establish reserves, which is a balance sheet account representing estimates of future amounts needed to pay claims and related expenses with respect to insured events which have occurred. Our loss reserves reflect our best estimates of the cost of settling all such claims.
In general, when a claim is reported, claims personnel establish a “case reserve” for the estimated amount of the ultimate payment. The estimate represents an informed judgment based on general reserving practices and reflects the experience and knowledge of the claims personnel regarding the nature and value of the specific type of claim. Reserves are also established on an aggregate basis to provide for losses incurred but not yet reported to the insurer, potential inadequacy of case reserves, the estimated expenses of settling claims, including legal and other fees and general expenses of administrating the claims adjustment process, and a provision for potentially uncollectible reinsurance. Reserves are established based upon the then current legal interpretation of coverage provided.
In examining reserve adequacy, several factors are considered in addition to the economic value of losses. These factors include historical data, legal developments, changes in social attitudes and economic conditions, including the effects of inflation. The actuarial process relies on the basic assumption that past experience, adjusted judgmentally for the effects of current developments and anticipated trends, is an appropriate basis for predicting future
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outcomes. Reserve amounts are necessarily based on management’s informed estimates and judgments using data currently available. As additional experience and other data become available and are reviewed, these estimates and judgments are revised. This may result in increases or decreases to reserves for insured events of prior years. The reserving process implicitly recognizes the impact of inflation and other factors affecting loss costs by taking into account historical claim patterns and perceived trends.
Reserves do not represent an exact calculation of liability. Rather, reserves represent an estimate of what management expects the ultimate settlement and claim administration will cost. While the methods for establishing the reserves are well tested over time, some of the major assumptions about anticipated loss emergence patterns are subject to unanticipated fluctuation. These estimates, which generally involve actuarial projections, are based on management’s assessment of facts and circumstances then known, as well as estimates of future trends in claims severity and frequency, judicial theories of liability and other factors, including the actions of third parties which are beyond the Company’s control. The variables described above are affected by both internal and external events, such as inflation, judicial and litigation trends, reinsurance coverage and legislative changes.
The inherent uncertainties of estimating reserves are greater for certain types of liabilities, where long periods of time elapse before a definitive determination of liability is made. In periods with increased economic volatility, it becomes more difficult to accurately predict claim costs. Reserve estimates are continually refined in an ongoing process as experience develops and further claims are reported and settled. Adjustments to reserves are reflected in the results of the periods in which such estimates are changed. Because setting reserves is inherently uncertain, the Company cannot assure that its current reserves will prove adequate in light of subsequent events.
Management determines the loss reserves included in the Company’s financial statements based upon an actuarially derived point estimate. The Company uses a variety of actuarial techniques and methods to derive the actuarial point estimate. These methods include paid loss development, incurred loss development, paid and incurred Bornhuetter-Ferguson methods and frequency and severity methods. This actuarial data is analyzed by line of business, coverage, and accident or policy year, as appropriate, for each operating unit. Industry loss experience is also used to supplement the Company’s own data in selecting “tail factors” and in areas where the Company’s own data is limited.
The establishment of loss reserves includes consideration of qualitative factors that may affect the ultimate losses. These qualitative considerations include, among others, the impact of re-underwriting initiatives, changes in the mix of business, changes in distribution sources and changes in policy terms and conditions. Examples of changes in terms and conditions that can have a significant impact on reserve levels are the use of aggregate policy limits, the expansion of coverage exclusions, whether or not defense costs are within policy limits and changes in deductibles and attachment points.
Following is a summary of the Company’s reserves for losses and loss expenses by business segment as of September 30, 2004 and December 31, 2003:
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Following is a summary of the Company’s reserves for losses and loss expenses by major line of business as of September 30, 2004 and December 31, 2003:
Following is a summary of the Company’s major components of the Company’s reserves for losses and loss expenses as of September 30, 2004 and December 31, 2003:
For the nine months ended September 30, 2004, the Company reported losses and loss expenses of $1.9 billion, of which $200 million represented an increase in estimates for claims occurring in prior years. The increases in estimates for claims occurring in prior years by segment were $80 million for reinsurance, $62 million for specialty, $33 million for regional, $23 million for alternative markets and $2 million for international. The estimate for claims occurring in accident years prior to accident year 2003 increased by $232 million and the estimate for claims occurring in accident year 2003 decreased by $32 million. The overall increase in prior year reserves was primarily related to the reinsurance, general liability and workers’ compensation lines of business, which increased $80 million, $87 million and $31 million, respectively.
The increase in prior year reserves for reinsurance business was primarily a result of higher than expected claims reported by ceding companies. The Company sets its initial loss estimates based principally upon information obtained during the underwriting process and adjusts these estimates as additional information becomes available. As certain reinsurance contracts have matured, the Company has adjusted its estimates of ultimate losses to reflect a higher level of known losses as well as a pattern of delayed loss reporting by some ceding companies.
The increase in prior year reserves for general liability is generally due to higher than expected legal expenses incurred in the defense of claims in certain classes of business. Prior year ultimate loss ratios were also adjusted upwards to recognize that claim costs for certain classes of business are emerging over a longer period of time and at a higher level than expected.
The increase in prior year reserves for workers’ compensation was generally due to higher than expected medical cost inflation. This resulted principally from increased utilization of the health care system by injured workers and more expensive and higher usage of prescription drugs.
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Results of Operations for the First Nine Months of 2004 Compared with the First Nine Months of 2003
Following is a summary of gross premiums written, net premiums written, premiums earned, loss ratios (losses and loss expenses incurred expressed as a percentage of premiums earned), expense ratios (underwriting expenses expressed as a percentage of premiums earned) and combined ratios (sum of loss ratio and expense ratio) for each of our business segments for the nine months ended September 30, 2004 and 2003 (dollars in thousands):
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Results of Operations
The following table presents the Company’s net income and net income per share for the nine months ended September 30, 2004 and 2003 (amounts in thousands, except per share data).
The increase in net income in 2004 compared with 2003 reflects higher profits from underwriting activity as well as higher investment income. The improvement in underwriting results reflects higher insurance prices, improved terms and conditions and growth in more profitable lines of business. The improved underwriting results were partially offset by losses of $32 million attributable to Hurricanes Charley, Frances, Ivan and Jeanne.
Gross Premiums Written. Gross premiums written were $3.5 billion in 2004, up 11% from 2003. The increase in gross premiums written in 2004 was a result of higher prices as well as new business. Although prices generally increased during the first nine months of 2004, the Company is experiencing an increased level of price competition. A summary of gross premiums written in 2004 compared with 2003 by business segment follows:
Net Premiums Written. Net premiums written were $3.2 billion in 2004, up 17% from 2003. Net premiums grew more than gross premiums due to a reduction in the portion of gross premiums ceded to reinsurers. The decrease in premiums ceded to reinsurers was a result of the termination of an aggregate reinsurance agreement effective December 31, 2003 and to the planned reduction in reinsurance purchases. Premiums ceded under the aggregate reinsurance agreement were $110 million in the first nine months of 2003.
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Premiums Earned. Premiums earned increased 28% in 2004 compared with 2003. Insurance premiums are earned ratably over the policy term, and therefore premiums earned in 2004 are related to premiums written during both 2003 and 2004. The growth rate for 2004 earned premiums reflects the underlying growth in net premiums written of 35% for all of 2003 and 17% for the first nine months of 2004.
Net Investment Income. Following is a summary of net investment income for the nine months ended September 30, 2004 and 2003 (dollars in thousands):
Net investment income increased 36% in 2004 compared with 2003. Average invested assets (including cash and cash equivalents) increased 37% to $7.0 billion in 2004 compared with $5.1 billion in 2003. The increase was a result of cash flow from operations and the proceeds from debt issued during 2004 and 2003. The average annualized gross yield on investments was 4.1% in 2004 compared with 4.7% in 2003. The lower yield in 2004 reflects the decrease in general interest rate levels, an increase in the portion of the portfolio invested in tax-exempt securities and a planned reduction in the portfolio duration. Interest on funds held under reinsurance treaties decreased by $24 million due to the termination of an aggregate reinsurance agreement effective December 31, 2003.
Realized Investment Gains and Losses. Realized investment gains and losses result from sales of securities and from provisions for other than temporary impairment in securities. Realized investment gains were $45 million in 2004 and $61 million in 2003. Realized gains in 2004 resulted primarily from the sale of common and preferred equity securities and the sale of high yield fixed income securities. Realized gains in 2003 resulted primarily from the sale of fixed income securities in order to decrease the duration of the portfolio and to increase the portion of the portfolio invested in state and municipal securities. There were no provisions for other than temporary impairment in the first nine months of 2004 or 2003.
Service Fees. The alternative markets segment offers fee-based services to help clients develop and administer self-insurance programs, primarily for workers’ compensation coverages. Service fees increased 9% in 2004 compared with 2003 primarily as a result of an increase in service fees for managing assigned risk plans.
Losses and Loss Expenses. Losses and loss expenses increased 28% in 2004 compared with 2003 primarily as a result of the increased premium volume and higher weather-related losses. Weather-related losses were $58 million compared to $35 million in the corresponding 2003 period. Weather-related losses in 2004 include losses of $32 million attributable to Hurricanes Charley, Frances, Ivan and Jeanne. The consolidated loss ratio decreased to 63.6% in 2004 from 63.7% in 2003. A summary of loss ratios in 2004 compared with 2003 by business segment follows:
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Other Operating Costs and Expenses. Following is a summary of other operating costs and expenses for the nine months ended September 30, 2004 and 2003 (dollars in thousands):
Underwriting expenses increased 23% in 2004 compared with 2003 as a result of higher premium volume. The consolidated expense ratio decreased to 27.1% in 2004 from 28.0% in 2003. The decrease is due to a 28% increase in earned premiums with no significant increase in underwriting expenses other than commissions and premium taxes.
Service company expenses represent the costs associated with the alternative market’s fee-based business. The increase in service expenses of 5% compared with 2003 was commensurate with the increase in service fee revenues of 9%.
Other costs and expenses represent primarily general and administrative expenses for the corporate office and costs associated with our foreign operations. Other costs and expenses increased to $38 million in 2004 from $33 million in 2003 due to higher compensation costs.
Interest Expense. Interest expense increased 23% to $48 million as a result of the issuance of $200 million of 5.875% senior notes in February 2003, $150 million of 5.125% senior notes in September 2003 and $150 million of 6.15% senior notes in August 2004.
Income taxes. The effective income tax rate was 31% in 2004 and 2003. The effective tax rate differs from the federal income tax rate of 35% primarily because of tax-exempt investment income and state income taxes.
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Results of Operations for the Third Quarter of 2004 Compared to the Third Quarter of 2003
Following is a summary of gross premiums written, net premiums written, premiums earned, loss ratios (losses and loss expenses incurred expressed as a percentage of premiums earned), expense ratios (underwriting expenses expressed as a percentage of premiums earned) and combined ratios (sum of loss ratio and expense ratio) for each of our business segments for the three months ended September 30, 2004 and 2003 (dollars in thousands):
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The following table presents the Company’s net income and net income per share for the three months ended September 30, 2004 and 2003 (amounts in thousands, except per share data).
The increase in net income in 2004 compared with 2003 reflects higher profits from underwriting activity as well as higher investment income. The improvement in underwriting results reflects higher insurance prices, improved terms and conditions and growth in more profitable lines of business.
Premiums. Gross premiums written were $1.2 billion in 2004, up 6% from 2003. The increase in gross premiums written in 2004 was a result of higher prices as well as new business. A summary of gross premiums written in 2004 compared with 2003 by business segment follows:
Net premiums written and premiums earned increased 13% and 24%, respectively, compared with the third quarter of 2003. The reasons for the quarterly change in net and earned premiums were consistent with the reasons for the year-to-date changes described above.
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Net Investment Income. Following is a summary of net investment income for the three months ended September 30, 2004 and 2003 (dollars in thousands):
Net investment income increased 39% in 2004 compared with 2003. Average invested assets (including cash and cash equivalents) increased 35% to $7.4 billion in 2004 compared with $5.5 billion in 2003. The increase was a result of cash flow from operations and the proceeds from debt issued during 2004 and 2003. The average annualized gross yield on investments was 3.9% in 2004 compared with 4.4% in 2003. The lower yield in 2004 reflects the decrease in general interest rate levels, an increase in the portion of the portfolio invested in tax-exempt securities and a planned reduction in the portfolio duration. Interest on funds held under reinsurance treaties decreased by $8 million due to the termination of an aggregate reinsurance agreement effective December 31, 2003.
Realized Investment Gains and Losses. Realized investment gains and losses result from sales of securities and from provisions for other than temporary impairment in securities. Realized investment gains were $5 million in 2004 and $3 million in 2003. Realized gains in 2004 resulted primarily from the sale of common and preferred equity securities and the sale of high yield fixed income securities. There were no provisions for other then temporary impairment in the third quarter of 2004 or 2003.
Service Fees. The alternative markets segment offers fee-based services to help clients develop and administer self-insurance programs, primarily for workers’ compensation coverages. Service fees increased 10% in 2004 compared with 2003 primarily as a result of an increase in service fees for managing assigned risk plans.
Losses and Loss Expenses. Losses and loss expenses increased 27% in 2004 compared with 2003 primarily as a result of the increased premium volume and higher weather-related losses. The consolidated loss ratio increased to 65.2% in 2004 from 63.8% in 2003. The primary reasons for the increase in the loss ratio in 2004 were as follows:
Other than as described above, the reasons for the changes in quarterly loss ratios by segment were consistent with the reasons for the changes in the year-to-date loss ratios described above.
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Other Operating Costs and Expenses. Following is a summary of other operating costs and expenses for the three months ended September 30, 2004 and 2003 (dollars in thousands):
Underwriting expenses increased 18% in 2004 compared with 2003 as a result of higher premium volume. The consolidated expense ratio decreased to 26.7% in 2004 from 27.9% in 2003. The decrease is due to a 24% increase in earned premiums with no significant increase in underwriting expenses other than commissions and premium taxes.
Service company expenses represent the costs associated with the alternative market’s fee-based business.
Other costs and expenses represent primarily general and administrative expenses for the corporate office and costs associated with our foreign operations. Other costs and expenses increased to $13 million in 2004 from $8 million in 2003 due to higher compensation costs.
Interest Expense. Interest expense increased 21% to $17 million as a result of the issuance of $150 million of 5.125% senior notes in September 2003 and $150 million of 6.15% senior notes in August 2004.
Income taxes. The effective income tax rate was 29% in 2004 and 28% in 2003. The effective tax rate differs from the federal income tax rate of 35% primarily because of tax-exempt investment income and state income taxes.
Investments
As part of its investment strategy, the Company establishes a level of cash and highly liquid short-term and intermediate-term securities that, combined with expected cash flow, is believed adequate to meet foreseeable payment obligations. The Company also attempts to maintain an appropriate relationship between the average duration of the investment portfolio and the approximate duration of its liabilities, i.e., policy claims and debt obligations.
The carrying value of the Company’s investment portfolio and investment-related assets as of September 30, 2004 and December 31, 2003 were as follows (dollars in thousands):
Fixed Maturities. The Company’s investment policy with respect to fixed maturity securities is generally to purchase instruments with the expectation of holding them to their maturity. However, active management of the available for sale portfolio is considered necessary to maintain an approximate matching of assets and liabilities as well as to adjust the portfolio as a result of changes in financial market conditions and tax considerations. At September 30, 2004 (as compared to December 31, 2003), the fixed maturities portfolio mix was as follows: U.S. Government securities were 15% (14% in 2003); state and municipal securities were 54% (46% in 2003); corporate securities were 10% (14% in 2003); mortgage-backed securities were 18% (21% in 2003); and foreign
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bonds were 3% in 2004 (5% in 2003).
The Company’s philosophy related to holding or selling fixed maturity securities is based on an objective of maximizing total return. The Company generally attempts to match the duration of those assets held as insurance reserves with the expected payout pattern of those liabilities within a range of one year. However, based on managements’ view of expected interest rate changes and total rate of return opportunities over the foreseeable future, the Company may decide to shorten or extend the duration of the investment portfolio. In a period in which management believes that interest rates will be rising, the duration of the fixed income portfolio will generally be shortened in order to mitigate the impact of an interest rate rise on the market value of the portfolio. The sale of longer-term investments in order to shorten the duration may result in realized gains; however, there is no reason to expect these gains to continue in future periods. During 2003 and 2004, the Company shortened the duration of the investment portfolio by increasing the portion of the portfolio invested in cash and cash equivalents.
Equity Securities Available for Sale. Equity securities available for sale primarily represent investments in common and preferred stocks of publicly traded banks, utilities and real estate investment trusts.
Equity Securities Trading Account. The trading account is comprised of direct investments in arbitrage securities and investments in arbitrage-related limited partnerships that specialize in merger arbitrage and convertible arbitrage strategies. Merger arbitrage is the business of investing in the securities of publicly held companies that are the targets in announced tender offers and mergers. Convertible arbitrage is the business of investing in convertible securities with the goal of capitalizing on price differentials between these securities and their underlying equities. The Company increased its investment in merger arbitrage securities by $73 million during the first nine months of 2004.
Investments in Affiliates. At September 30, 2004 (as compared to December 31, 2003), investments in affiliates were as follows: equity in Kiln plc was $50 million ($40 million in 2003); real estate partnerships were $109 million ($58 million in 2003); structured finance partnerships were $45 million ($18 million in 2003); and other investments were $19 million ($11 million in 2003).
Securities in an Unrealized Loss Position. The following table summarizes, for all securities in an unrealized loss position at September 30, 2004, the aggregate fair value and gross unrealized loss by length of time those securities have been continuously in an unrealized loss position (dollars in thousands):
Liquidity and Capital Resources
As a holding company, the Company derives cash from its subsidiaries in the form of dividends, tax payments and management fees. Maximum amounts of dividends that can be paid without regulatory approval are prescribed by statute. During 2004, the maximum amount of dividends which can be paid without regulatory approval is approximately $197 million, of which $10 million was paid during the nine months ended September 30, 2004. The ability of the holding company to service its debt obligations is limited by the ability of the insurance subsidiaries to pay dividends. In the event dividends, tax payments and management fees available to the holding company were inadequate to service its debt obligations, the Company would need to raise capital, sell assets or restructure its debt obligations.
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Cash flow provided from operating activities increased to $1.1 billion during the nine months ended September 30, 2004 from $970 million during the comparable period of 2003. The increase in operating cash flow in 2004 was primarily due to a higher level of cash flow from underwriting activities (premium collections less paid losses and underwriting expenses). Cash flow provided by operating activities in 2004 is net of $73 million transferred to the arbitrage trading account.
Accumulated other comprehensive income, which represents after-tax unrealized gains on investments and foreign currency translation, decreased to $97 million at September 30, 2004 from $120 million at December 31, 2003. The decrease in unrealized gains on investments was primarily due to the realization of gains as a result of investment sales.
At September 30, 2004, the Company’s outstanding debt was $817 million (face amount). The maturities of the debt are $40 million in 2005, $100 million in 2006, $89 million in 2008, $150 million in 2010, $200 million in 2013, $150 million in 2019, $76 million in 2022 and $12 million in 2023. The Company also has $210 million (face amount) of junior subordinated debentures that mature in 2045.
At September 30, 2004, stockholders’ equity was $2.0 billion and total capitalization (stockholders’ equity and debt) was $3.0 billion. The percentage of the Company’s capital attributable to debt was 34% at September 30, 2004 compared with 34% at December 31, 2003.
Item 3. Quantitative and Qualitative Disclosure About Market Risk
The Company’s market risk generally represents the risk of loss that may result from the potential change in the fair value of the Company’s investment portfolio as a result of fluctuations in prices, interest rates and currency exchange rates. The Company attempts to manage its interest rate risk by maintaining an appropriate relationship between the average duration of the investment portfolio and the approximate duration of its liabilities, i.e., policy claims and debt obligations.
The duration of the investment portfolio decreased from 4.1 years at December 31, 2003 to 3.4 years at September 30, 2004. The overall market risk relating to the Company’s portfolio has remained similar to the risk at December 31, 2003.
Item 4. Controls and Procedures
The Company’s management, including its Chief Executive Officer and Chief Financial Officer, has conducted an evaluation of the effectiveness of the Company’s disclosure controls and procedures pursuant to Securities Exchange Act Rule 13a-14 as of the end of the period covered by this quarterly report. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that the Company has in place effective controls and procedures designed to ensure that information required to be disclosed by the Company in the reports it files or submits under the Securities Exchange Act and the rules there under, is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms. There have been no significant changes in internal controls, or in factors that could significantly affect internal controls, subsequent to the date the Chief Executive Officer and Chief Financial Officer completed their evaluation.
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PART II – OTHER INFORMATION
Item 1. Legal Proceedings
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.
Set forth below is a summary of the shares repurchased by the Company during the quarter and the number of shares remaining authorized for purchase by the Company.
On August 3, 2004, the Company issued an aggregate of 500,000 Restricted Stock Units (“RSUs”) to certain of its employees. Each RSU represents the right to receive one share of common stock and is conditioned on the employee’s satisfying certain requirements outlined in the award agreement. The RSU’s vest after five years of continuous employment. The shares were not registered under the Securities Act of 1933 in reliance on the exemption provided in Section 4(2) thereof for transactions not involving a public offering.
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Item 5. Other Information
Supplemental Benefits Agreement
On August 19, 2004, the Company entered into a Supplemental Benefits Agreement with William R. Berkley, the Company’s Chairman and Chief Executive Officer. Under the agreement, upon the earliest to occur of: (a) Mr. Berkley’s resignation from employment as Chief Executive Officer for any reason; (b) any termination of his employment by the Company other than for “cause”; or (c) termination of his employment by reason of his death, Mr. Berkley will be entitled to an annual retirement benefit equal to the greater of (1) $1,000,000, or (2) fifty percent (50%) of his highest average three-year compensation over the prior ten fiscal years, but not exceeding one hundred fifty percent (150%) of his average five-year compensation over the prior five fiscal years. If such termination occurs following Mr. Berkley’s 72nd birthday, he will be entitled to an enhanced retirement benefit, actuarially increased to reflect the passage of time from the date Mr. Berkley attained age 72 until the date of such termination. The retirement benefit will be paid annually for the remainder of Mr. Berkley’s life, and if he predeceases his spouse, fifty percent (50%) of such benefit will be paid annually to his spouse for the remainder of her life. Mr. Berkley may elect to have his spouse receive one hundred percent (100%) of the retirement benefit following his death, provided, that, in such event, the retirement benefit will be reduced by an amount such that the payments made to Mr. Berkley and his spouse following such election will be the actuarial equivalent to the payments that would otherwise been made had no such election occurred.
Under the agreement, Mr. Berkley and his spouse will also be entitled to receive continued health insurance coverage for the remainder of their respective lives. During the two-year period following his termination or, if longer, the period that Mr. Berkley performs consulting services to Company or remains Chairman of the Board, he will be entitled to continue to receive certain perquisites, including continued use of the Company plane and a car and driver, in a manner consistent with his prior use of such perquisites. Additionally, for so long as Mr. Berkley requests, following such termination, the Company is required to provide him with office accommodations and support, including secretarial support, in a manner consistent with that provided prior to such termination. To the extent that any benefits under the agreement or otherwise result in the imposition of an excise tax under Section 4999 of the Internal Revenue Code, Mr. Berkley will receive an additional payment to hold him harmless against such excise tax.
The agreement prohibits Mr. Berkley from competing against the Company for two years following his resignation of employment other than for “good reason,” during which time, Mr. Berkley has agreed to be available to provide consulting services to the Company.
The above summary is qualified in its entirety by reference to the Supplemental Benefits Agreement, which is incorporated by reference in its entirety and filed as Exhibit 10.1 to this Quarterly Report on Form 10-Q.
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Item 6. Exhibits
Number
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SIGNATURES
Pursuant to the requirements 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.