

“Property is a hotbed of activity in
the U.S. right now and is a big area of
interest for our clients.”
Claire Richardson
Hylant Global Captive Solutions
24
they were primarily used as a one-transaction facility,
Palmer said. “What we’re seeing more is organizations
that are using a cell captive akin or similar to how one
may use a pure captive, but just in the format of a cell
captive,” Palmer said.
“At least initially, it seems more daunting to them
to go into a single-parent captive or pure captive and
therefore, they choose to utilize a cell facility to get the
program kicked off, evaluate how well it works within
their organization, and then make a decision whether
they will continue with a cell captive or move on to a fully
owned, single-parent captive at a later date,” Palmer said.
Gedge noted that companies that may have a
market requirement for coverage and the cell captive
can offer “a formalized response because they don’t
necessarily want to buy from the market and what’s
being sold in the market isn’t necessarily appropriate.”
Jeffrey Simpson, partner at Womble Bond
Dickinson, said his firm’s captive practice is dedicating
about half of its time to establishing cell captives. In the
past, cell captives often were set up “as a place where
you put a quick problem you need to solve,” such as a
difficult insurance renewal, he said.
While property coverage is seen as a big driver
among the types of coverage used by cells, Simpson
said they are becoming more sophisticated to include
casualty, workers’ compensation and other coverages as
long as the level of premium paid to the captive or the
financing to support the cell is covering the risk.
“Property is a hotbed of activity in the U.S. right
now and is a big area of interest for our clients,” said
Claire Richardson, senior captive consultant at Hylant
Global Captive Solutions.
Cell Captives’ Limitations
The use of cells and their walled-off assets and
liabilities from other cell owners has not yet been tested
in court, Simpson said. If a cell owner wants absolute
certainty that its assets and liabilities will be segregated,
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incorporating itself is one approach, Simpson said.
Assuming the formalities are followed, he said,
there is a low likelihood that the boundaries between
cells would not be respected. Simpson said that judges
in most jurisdictions will understand and respect the
segregation of assets and liabilities. But, there is nothing
stopping a lawsuit from being filed in a jurisdiction
that does not provide for cell structures and where
those rules might not be followed, he said.
“The matter of domiciles is important because you
want to have both the infrastructure and courts that
are sophisticated enough to understand the context
of and the legal issues around these kinds of captives,”
Simpson said.
Domiciles have a role in the tax implications of
using captives, according to Allan Autry, tax partner at
Johnson Lambert LLP. On state tax implications, all
but 10 states charge premium tax in lieu of income tax.
In the 10 states that charge both, there could be credits
against income tax for premium taxes paid or vice
versa, as each state has its own nuances.
Other considerations from the insured perspective
is self-procurement tax. “The home state of the
insured versus the registered domicile(s) of the captive
insurance company can lead to self-procurement
tax consequences,” Autry said in an email regarding
recently updated IRS regulations about captives.
AM Best is in the process of updating its
Alternative
Risk Transfer
criteria to include the capability to rate cell
captives.
While lower costs and fewer rules around
governance are seen as the draw for using a cell captive,
Gedge said there is a tipping point where the costs of
running a cell, such as audit and actuary costs, match
those of owning a captive.
Luckily, “for the most part, captives do a very good
job of not failing,” Gedge said. “It’s very rare to see
a captive not meet its kind of debtors and creditors
requirements and its insurable requirements.”
Cell Captives