- 36 - challenge might affect the agreement. Mr. Gordon also expected that Guardian would want to recapture the underlying policies. When the third amendment was executed, Mr. Gordon believed that all settlements for amounts due petitioner had been made. In fact, settlement had not been made. As a result of this error, petitioner did not receive from Guardian moneys it was entitled to receive. The third amendment would not have been executed if Mr. Gordon had realized the error. The provision in the third amendment pursuant to which each party waived its rights also appears in the terminating amendments to the reinsurance agreement between UPL and Guardian. When the 1989 Agreement was terminated, neither party had accurate information as to the actual status of the EAB. The accounting information provided by Guardian showed a positive EAB of $140,663. The EAB was actually negative by approximately $260,181. Although the EAB was negative, petitioner made no payment to Guardian, because neither party realized that it was negative. Neither petitioner nor Guardian would have made the decisions each did, if it had had accurate information. OPINION 1. Overview This case takes the Court inside the complex and esoteric world of insurance law, taking into account the technical jargon and standards utilized therein. In making our findings, we have examined volumes of filings, reams of trial testimony, boxes of exhibits, and assorted expert reports. Many of the critical facts were disputed by the parties, and each party introducedPage: Previous 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Next
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