Lisa M. Africk, Brown Sims Walter J. Leger, Jr., Leger & Shaw

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1 Bench Bar Conference 2014 Lessons Learned from BP Lisa M. Africk, Brown Sims Walter J. Leger, Jr., Leger & Shaw Corey Maze, Alabama Office of Attorney General Kerry J. Miller, Frilot Steven L. Roberts, Sutherland Asbill Conrad S.P. Williams III, Williams Law Group Phillip A. Wittmann, Stone Pigman April 4, :40 6:10 pm Beau Rivage Resort and Casino Biloxi, Mississippi

2 Lisa M. Africk Shareholder, New Orleans 650 Poydras Street, Suite 2200 New Orleans, Louisiana P: F: E: Areas Of Practice General Civil Litigation Toxic Tort Litigation Product Liability Litigation Transportation Personal Injury/Wrongful Death Defense Insurance Coverage Maritime/Jones Act Employment Law/Title VII Litigation Premises Liability Contract review, drafting and negotiation Most of Ms. Africk s work focuses on complex litigation involving maritime law and related coverage issues. Ms. Africk has been involved in numerous personal injury and fatality cases involving challenging coverage issues. Recently, summary judgment was obtained in a hotly contested helicopter crash case

3 wherein the presiding U.S. District Court Judge adopted much of Ms. Africk s reasoning in his final opinion. Ms. Africk applies the same tenacity and determination to her cases that she applies to her long distance running. Although it may take a while a get there, she is always focused on the ultimate goal and successfully crossing the finish line. She received a Bachelor of Arts degree in 1984 from Tulane University / Newcomb College, and she obtained both a Masters of Social Work and Juris Doctor degree in 1999 from Tulane School of Social Work and Tulane Law School. She is a member of the Louisiana Bar Association, the Federal Bar Association, the New Orleans Bar Association, and the Tulane Inns of Court. Education Tulane Law School Juris Doctor, December 1999 Honors: Cum Laude Tulane School Of Social Work MSW, December 1999 Tulane University, Newcomb College BA, May 1984 Honors: Deans List; Cum Laude Admissions Louisiana, April 2000 U.S. District Court Eastern District of Louisiana U.S. District Court Middle District of Louisiana U.S. District Court Western District of Louisiana U.S. Court of Appeals, Fifth Circuit Memberships & Services Louisiana State Bar Association Federal Bar Association New Orleans Bar Association Tulane Inns of Court Brown Sims Houston New Orleans Miami Disclaimer

4 Attorney Profiles Walter J. Leger Jr. New Orleans, Louisiana Senior Partner phone fax Me Walter J. Leger, Jr., Senior Partner in the law firm of Leger & Shaw, was born in New Orleans, Louisiana in Son of a Bar Pilot and grandson of a Ship Captain, Leger has always had an interest in the maritime industry, and some would say it is in his blood. It was with this background that Leger started his legal career which led to him to be the highly revered attorney that he is today, focusing on admiralty and maritime law. After receiving his Bachelor of Arts degree from Louisiana State University, Leger received his legal education at Tulane University. Leger graduated from Tulane School of Law with a concentration in Maritime Law, he was Managing Editor of the Tulane Maritime Law Journal and received the American Admiralty Law Institute Award. After graduation, Leger worked as an admiralty associate at the Phelps Dunbar law firm. He later formed his own firm, and his practice has been devoted to admiralty and complex litigation. Since 1981, he has been recognized as a "Proctor in Admiralty" by the Maritime Law Association of the United States. He is a member of the Southeast Admiralty Law Institute and the maritime law sections of the American Association of Justice, the Louisiana Association of Justice, and other bar organizations. Over the years he has lectured extensively and written on maritime law and complex litigation topics at Harvard Law School, Tulane Law School, Loyola Law School, the University of New Orleans, LSU Law School, and various law associations. Leger has been known as a prominent attorney in complex litigation. More particularly, he has demonstrated his leadership in major maritime disaster cases (recently including the July 2008 Oil Spill on the Mississippi River), in class action litigation against the tobacco industry, and as special counsel for the Attorney General of the State of Louisiana and the Governor of the State

5 of California. After Hurricane Katrina he was involved in the Murphy Oil Spill Litigation and represented dozens of homeowners and businesses against their insurance companies. Leger has repeatedly been recognized for his leadership and experience. He was appointed by U.S. District Judge Lance Africk as a member of the Claimants' Steering Committee representing businesses and governmental entities damaged as a result of the collision of a ship and barges causing a massive Oil Spill in on the Mississippi River. Also, Leger was appointed by U.S. Judge Peter Beer as Chairman of the Plaintiff's Committee and served as Lead Appellate Counsel in the case of The State of Louisiana, ex rel. v. M/V TESTBANK, et al., C.A. No , U.S.D.C., E.D.La., involving the claims of over 2,000 fishermen and businesses damaged as a result of a ship collision causing the spill of PCP into the Mississippi River Gulf Outlet. The Fifth Circuit's en banc decision and its progeny continue to guide the determination of economic loss damages in maritime collision cases to this day. In 1998, he was appointed by U.S. District Judge Morey Sear as Co-Lead Counsel in the M/V BRIGHT FIELD/Riverwalk Disaster. Other notable maritime cases include but are not limited to M/V INCA TUPAC collision, (U.S.D.C., E.D. La.)(Lead Counsel, collision and explosion involving numerous deaths and burns); M/V POET, (U.S.D.C., E.D.Pa.)(mysterious ship disappearance in Atlantic Ocean with 25 crew lost); M/V TEXACO NORTH DAKOTA, (U.S.D.C., E.D.La.)(fiery ship collision with post hurricane damaged oil platform); M/V MISS CHRIS/Claiborne Ave. Bridge allision and collapse; M/V LEE III/M/V ZIM MEXICO III (Collision in Southwest Pass causing deaths of entire crew and closure of river and port). Leger's experience and leadership extends far beyond admiralty and maritime law. In the Castano Tobacco Litigation, he served on the Trial Team, Discovery Committee, Science Committee, and Administrative Committee. This case was brought against the Tobacco and Cigarette industry in numerous states, including the Castano Tobacco Litigation, California Tobacco Litigation, and the Brown Case. Leger served as Class Counsel, Trial Counsel, Trial Liability Team Captain, and Expert Team Captain in the Scott Tobacco Litigation. This trial lasted three years and is still being appealed. In Louisiana Breast Implant Litigation, Leger served on the Plaintiffs' Steering Committee as Chairman of Discovery Committee and Member of the Strategy Committee, Planning Committee, Administrative Committee, and Law Committee from 1993 until In

6 2005, he was appointed by U.S. District Judge Eldon Fallon to Plaintiffs' Legal Committee in the Murphy Oil Spill Litigation. He was appointed by U.S. District Judge Sarah Vance to Plaintiffs' Legal Committee in the Education Testing Services Litigation. In the Billieson Lead Paint Class Action, he was appointed as Class Counsel. Leger was also a member of F. Lee Bailey's Litigation Sub-Committee in the Bhopal, India/Union Carbide Disaster from 1985 until He has had particular experience in actions involving major collisions, numerous claims, and limitation of liability proceedings. His career has spanned over 30 years in the litigation of individuals, businesses, port authorities, towing companies, barge owners, shipyards, and ship pilots, officers and crew. He has represented clients in the state and federal courts of Louisiana and others, and at U.S. Coast Guard and National Transportation Safety Board hearings. In addition to being an advocate for his client's rights, Leger has also tirelessly served the people of his community and Louisiana as a whole. Walter served as chairman of the St. Bernard Chamber of Commerce five times in the last 15 years, and is a past Chairman of the Board of the New Orleans Regional Chamber of Commerce and Co Chairman of the MetroVision Regional Economic Development Partnership. He currently serves as Chairman of the St. Bernard Economic Development Commission and is a member of the Executive Committee of GNO, Inc. and the Southeast Louisiana Business Council Coalition. In addition to service as Vice Chairman of the Louisiana Recovery Authority, the Louisiana Land Trust and Co Chair of the St. Bernard Citizen's Recovery Committee, he currently serves on the Boards of GNO, Inc., the New Orleans Bar Association, the LSU Health Science Center Foundation, the Delgado Community College Foundation, Nunez Community College, Tulane Cancer Center, LSUHSC Cancer Center, and the Director's Council of the Louisiana Cancer Research Consortium. After Hurricane Katrina, Leger was appointed by Governor Kathleen Blanco to the Louisiana Recovery Authority where he has been one of the LRA's most active members. Governor Bobby Jindal re appointed Leger and he now serves as Vice Chairman. He also serves as Chairman of the Louisiana Land Trust. Leger became well known as the co host with Garland Robinette of a weekly WWL radio show on hurricane recovery issues.

7 He testified before a U.S. Senate Sub Committee on Disaster Recovery whose participants included Louisiana Senator Mary Landrieu, Senator Joseph Lieberman, and then Senator Barack Obama. Leger has appeared on behalf of the homeowners of Louisiana before five Congressional and Senate committees and sub committees and met numerous times with Senate and House of Representatives staff and committee staffs, including the Appropriations and Finance committees, and with U.S. Senators, Congressmen, and editorial and news staff of the New York Times, Washington Post, USA Today, Boston Globe, Los Angeles Times, and Associated Press. He has also made appearances on ABC, NBC, CBS, FOX, CNN, PBS, LPB and numerous local and national television and radio stations.

8 Corey L. Maze Special Deputy Attorney General, State of Alabama Education Undergrad: Auburn University (1999) Law School: Georgetown University (2003) Experience: Alabama Attorney General's Office (2003 Present) Criminal Prosecutor ( ) Prosecuted 6 capital murder trials and 100's of criminal appeals Solicitor General ( ) Argued 3 cases before US Supreme Court and numerous cases in 11th Cir. and AL Supreme Court Complex Civil Litigation (2010 Present) State's Lead attorney in MDL 2179 / AL vs. BP, et al

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10 Steven L. Roberts, Partner 1001 Fannin Street Suite 3700 Houston, TX Office: Steve Roberts has 35-plus years in courtrooms litigating energy, commercial, international insurance, maritime and professional services matters. Recognized nationally for his litigation, insurance and maritime knowledge, Steve tries cases in state and federal courts at both the trial and appellate levels. Steve concentrates much of his practice on complex legal issues surrounding offshore drilling rigs, platforms and vessels of all types including, most recently, representation of the drilling contractor involved in the BP Macondo Oil Spill litigation. Related Practices / Industries Litigation Energy Litigation Environmental Regulatory & Compliance Maritime & Shipping Insurance Class Action Defense Crisis Management Bar Admissions Texas Steve represents both plaintiffs and defendants in commercial lawsuits, including shareholder disputes, breach of contract, fraud, qui tam and intellectual property controversies. His experience also includes matters involving offshore oil and gas deferred and lost production, downhole blow-outs and other energy sector casualty claims, congressional and administrative regulatory matters. Before receiving his undergraduate degree, Steve served as a communications specialist in the U.S. Navy Submarine Service. After completing active duty, he served in the Reserves until While in college, Steve was a correctional officer for the Texas Department of Criminal Justice. Experience Sutherland resolves $32 million volcano eruption case for Lloyd's underwriters. Sutherland resolved a case for underwriters at Lloyd's involving business interruption and property damage claims in excess of $32 million caused by the eruption of Mt. Redoubt in Alaska. Sutherland guides drilling contractor through litigation, crisis management and regulatory inquiries following the Deepwater Horizon oil spill. Sutherland has represented Transocean Offshore Deepwater Drilling Inc. s legal responses in cases and investigations arising from the 2010 oil spill in the Gulf of Mexico. Sutherland represents client in oil rig insurance dispute. ATLANTA AUSTIN GENEVA HOUSTON LONDON NEW YORK SACRAMENTO WASHINGTON, DC

11 Steven L. Roberts continued Sutherland represented a client in a $400 million insurance coverage dispute and rigs-toreef applications in Louisiana and Texas after five rigs sunk in hurricanes. Awards and Rankings Recognized by Chambers USA: Guide to Leading Business Lawyers in the area of insurance law ( ) Selected as a Texas Local Litigation Star by Benchmark Litigation ( ) Named to The Best Lawyers in America in the areas of admiralty & maritime law and personal injury litigation defendants ( ) Selected for inclusion among Texas Super Lawyers ( , ) Professional Activities Member, American Bar Association Member, State Bar of Texas Member, Houston Bar Association Member, International Association of Drilling Contractors Member, College of the State Bar of Texas Member, Texas Association of Defense Counsel Member, Maritime Law Association of the United States Former Member, Admiralty and Maritime Committee Personal Injury Committee, Maritime Law Association of the United States Member, Southeastern Admiralty Law Institute Member, National Advisory Committee of the Tulane Admiralty Law Institute Member, Planning Committee of the University of Texas Admiralty Law Symposium Adjunct Professor of civil trial advocacy, University of Houston Former Co-Editor, Longshore Section, Maritime Adviser s Maritime Personal Injury Report Member, Houston Mariners Club Founder and Board Member, Archway Academy Founding Member, Cornerstone Recovery Presentations The Oilfield in a Post-Macondo World (Multiple presentations) Texas Insurance Law: A Deepwater Horizon Litigation Update & Discussion of Choice of Law Issues (January 2014) Old Library, London Oil Pollution and Environmental Concerns, Procedural Challenges, Emergency Response and Cooperation with Investigations: Lessons Learned and Analyzing Continuing Fallout from Recent Incidents (February 27, February 28, 2013) American Conference Institute s National Forum on Defending and Managing Admiralty & Maritime Litigation ATLANTA AUSTIN GENEVA HOUSTON LONDON NEW YORK SACRAMENTO WASHINGTON, DC

12 Steven L. Roberts continued Deepwater Horizon Update (September 27, 2011) International Association of Claim Professionals (IACP) 2011 Annual Conference International Association of Drilling Contractors (IADC) Contracts & Risk Management Conference (October 13, 2010) Compliance Panel (October 29, October 30, 2008) IADC Contracts & Risk Management Conference (IADC) Contracts & Risk Management Conference Hurricanes Katrina and Rita: Ill Winds Blow Through the Offshore Oil and Gas Industry (November 2006) IADC Conference 2006 Revisions to the Consequential Damages: Provisions of the IADC Standard Contracts (November 2004) 2004 IADC Contracts & Risk Management Conference Settling the Claims of Injured Workers: The Maritime Minefield (September 2004) 13th Annual Admiralty and Maritime Law Conference Education J.D., University of Houston Law Center B.S., summa cum laude, Sam Houston State University ATLANTA AUSTIN GENEVA HOUSTON LONDON NEW YORK SACRAMENTO WASHINGTON, DC

13 Duke Williams received his B.A. degree in history in 1974 from Loyola University of the South in New Orleans, LA. After graduation he joined the U.S. Navy and attended the Aviation Officer Candidate School program at Naval Aviation Schools Command in Pensacola, FL. After being commissioned and receiving his wings, he spent an operational tour with Patrol Squadron Four stationed at Naval Air Station Barbers Point, Hawaii. He then returned to Loyola and obtained his Juris Doctor degree in He started his legal career at the law firm of Phelps, Dunbar, Marks, Claverie & Sims where he became a partner in In 1991 he began his own firm and has since been engaged primarily in representing plaintiffs in litigation involving environmental torts and maritime and aviation casualties. He is a past president and member of the Executive Committee of the Louisiana Association for Justice, a member of the Montana Trial Lawyers Association, the New Orleans, Terrebonne, Federal and Fifth Circuit Bar Associations, and serves as a member of the board of directors of the National Center for Appropriate Technology and the Montana Wildlife Federation. He is currently a member of the Plaintiffs Steering Committee in MDL-2179.

14 PHILLIP A. WITTMANN is a partner at the law firm of Stone Pigman Walther Wittmann L.L.C. He concentrates his practice in commercial litigation, class actions, toxic tort, and products liability matters. He has extensive trial experience and maintains an active litigation practice. Mr. Wittmann is a frequent lecturer at seminars conducted by the Louisiana State and New Orleans Bar Associations, Tulane University, and Louisiana State University on trial practice topics. He has served as a member of the Civil Rules Advisory Committee of the Judicial Conference of the United States, and the House of Delegates of the Louisiana State and American Bar Associations. He is a Past-President of the New Orleans Bar Association and a Fellow of the American College of Trial Lawyers, the American Academy of Appellate Lawyers and the International Society of Barristers. He also served as Chairman of the Louisiana State Board of Legal Specialization and is a former Chairman of the Louisiana State Bar Association Continuing Legal Education Committee. Mr. Wittmann is the 2008 recipient of the Louisiana State Bar Association's Curtis R. Boisfontaine Trial Advocacy Award and the 2010 recipient of the Louisiana Bar Foundation's Distinguished Attorney Award. He has been named to The Best Lawyers in America in the field of business litigation since its initial publication. He has been named to Chambers USA in the field of general commercial litigation. He has also been named to Louisiana Super Lawyers. He received his J.D. degree in 1961 from Tulane Law School where he earned Order of the Coif and Law Review Honors v.2

15 NOBA Bench Bar Conference at Beau Rivage Lessons Learned from BP: Recent Developments & Other Hot Issues Emerging From The BP Litigation Lisa M. Africk, Brown Sims Walter J. Leger, Jr., Leger & Shaw Corey Maze, Alabama Office of Attorney General Kerry J. Miller, Frilot Steven L. Roberts, Sutherland Asbill Conrad S.P. Williams III, Williams Law Group Phillip A. Wittmann, Stone Pigman 1. Procedural Lessons Learned from the BP Litigation a. Aggressive Management of Discovery Process by the magistrate judge b. Claim Filing Process short form, filing process and inventory of plaintiffs c. Major legal Issues decided by early motion practice d. Limited issues at each stage of trial, including those coming up a. Test cases and issues related thereto 2. The Settlement Agreement a. Negotiations leading up to the Settlement Agreement i. Classifications determined to be used and why b. Where the settlement stands today i. Settled issues vs. unresolved issues c. Moratorium claims i. All claims excluded from the class settlement OPA claims 3. The Coverage Issue and its ramifications a. Protocol related to Declaratory Judgment Action by the Intervenors b. Insurance Coverage and Additional Insured Status

16 3/31/2014 Procedural Lessons Learned from the BP Litigation Kerry J. Miller Frilot, LLC Corey Maze State of Alabama Procedural Lessons Learned from the BP Litigation 1) Aggressive Management of Discovery Process by the Court 2) Claim Filing Process In part to define the universe of claimants 3) Major Legal Issues Decided by Early Motion Practice 4) Limited Issues trials at Each Stage of the Case 2 1

17 3/31/2014 Aggressive Management of Discovery Process Weekly discovery conferences with Magistrate Judge Shushan More than 20.5 million documents produced ( ~130 million pgs) More than 400 fact and expert depositions 3 Claim Filing Process, cont. Filing Process Separate dockets reserved for different types of claims, e.g. private plaintiffs, governmental plaintiffs. 4 2

18 3/31/2014 Claim Filing Process, cont. Inventory of Plaintiffs via Plaintiff Profile Forms (Short Form Joinders) 5 Major Legal Issues Decided by Early Motion Practice Jurisdiction OCSLA, OPA, Limitation Action, Maritime Law Indemnities among the various defendants Preemption and choice of law 6 3

19 3/31/2014 Limited Issues Trials at Each Stage of the Case Phase One: Cause of Spill Phase Two: Source Control and Amount of Oil Spilled 7 Limited Issues Trials at Each Stage of the Case BP CWA Penalty Phase Alabama OPA Damages Trial OPA Test Cases including Moratorium Claimants 8 4

20 3/31/2014 The Coverage Issue and its Ramifications Kerry J. Miller Frilot, LLC Steve Roberts Sutherland Asbill & Brennan LLP Lisa Africk Brown Sims P.C. The Coverage Issue and its Ramifications Protocol related to Declaratory Judgment Action by the Interveners 3 Interested Parties TO, BP, & TO s insurers Insurers filed Interpleaders BP is an additional insured for personal injury claims under TO s policies. 2 1

21 3/31/2014 The Coverage Issue and its Ramifications BP, TO, & TO s insurers had different views on the value of some of the claims. Court required BP, TO, & TO s insurers to submit what they believed the fair settlement value for each case. Magistrate Judge Shushan determined fair value after receiving input from BP, TO, and TO s insurers. 3 2

22 3/31/2014 Lessons Learned from BP Part 3: The Impact on Insurance Coverage and Ramifications regarding Additional Insureds How Did We Get Here: The Master Service Agreement The Energy Industry lives and dies by the MSA. Service contracts that govern the relationships of, for example, an Operator or Owner (often the Company in charge of the drilling or workover operations) and a Contractor (a service provider who will perform certain work for the Operator as part of drilling or workover operations). The terms of the MSA are negotiated by the parties. The MSA usually stays in place for years between the parties, and it will govern numerous work assignments on various rigs in various locations, with (usually) some kind of a work order issued prior to the commencement of each job, advising the Contractor of the specifics of that job. Example: BP (Operator) hired Transocean (Contractor) to provide Rig, the Deepwater Horizon (a MODU type rig), for drilling operations at its Macondo Well. 1

23 3/31/2014 Every MSA has these 2 provisions and they are critical to the companies that are parties to these contracts because these provisions regulate what happens under the most important circumstance of all: When Something Goes Wrong....and it will...because it always does The Master Service Agreement Deepwater Horizon Drilling Contract (BP & Transocean) Agreed to Terms: Transocean: Above surface pollution, i.e. from rig BP: All other pollution liabilities, i.e. subsurface Additional Insured Provision: [BP] shall be named as additional insureds in each of [Transocean s] policies, except Workers Compensation for liabilities assumed by [Transocean] under the terms of this Contract. 2

24 3/31/2014 The Master Service Agreement The MSA has 2 critical components: o Indemnity Provision i what each party will be responsible for when something goes wrong (usually personal injury or property damage); o Insurance Provision to make certain that the responsible party can pay for the damage once something goes wrong. Understood to be a separate obligation from the obligation regarding indemnities assumed. Coverage is effected via the Additional Insured (AI) provision. SOMETHING WENT WRONG BP s Argument: Unlimited coverage Consider only the policy; ignore the contract Underwriters & Transocean s Argument: Limit BP s coverage to contractual liabilities assumed by Transocean Consider both the policy and the contract District Court Ruling (November 15, 2011) Look to both the policy and the contractual terms Plain language of policy limited it coverage to that t specified din the additional linsured provision of the contract (MSA) Effectuate the parties intent, evidenced by the detailed allocation of liabilities in the contract (MSA) BP appealed 3

25 3/31/2014 MSA vs. POLICY BP relied on Evanston Ins. Co. v. ATOFINA Petrochems., Inc. Policy controls! 2008 Texas Supreme Court Case: ATOFINA [the additional insured] does not seek [contractual] indemnity from Triple S [the named insured]; it claims instead that it is entitled to indemnification from Evanston by virtue of its status as an additional insured to Triple S. Instead of looking... to the indemnity agreement in the service contract to determine the scope of any coverage, we base our decision on the terms of the umbrella insurance policy itself. Distinguishable Regarding the argument by Excess that the contract did not clearly express an insurance requirement that Atofina be insured for its own negligence, the Court found that the contract is clear enough it requires that ATOFINA shall be named as additional insured in each of Triple S's policies. Transocean and Underwriters argued that BOTH the Policy and the MSA controlled: Additionali Insured coverage exists where Transocean is obliged by any oral or written Insured Contract or where required by written contract, bid or work order Insured Contract, wheneverusedinthispolicy, shall mean any written or oral contract or agreement entered into by the Insured... and pertaining to business under which the Insured assumes the tort liability of another party. Tort Liability means a liability that would be imposed by law in the absence of any contract or agreement. [BP] shall be named as additional insureds in each of [Transocean s] policies, except Workers Compensation for liabilities assumed by [Transocean] under the terms of this Contract. OUTCOME Which round? Round 1: Judge Barbier ruled that BP was an AI for personal injuries/deaths of Transocean employees consistent with the MSA; but he did not find that BP was an unlimited AI for all of BP s other exposures, which is what BP sought. Round 2: That decision was reversed by the Fifth Circuit (3/1/2013), which determined that this case was, with regard to the AI issue, almost identical to the one in Atofina, and thus, pursuant to Texas law, Texas law binds the Court to look only to the insurance provision; The AI requirement is a separate and distinct obligation from the indemnities Transocean agreed to in the MSA with BP; and There is no limiting language in the AI provision (which only requires that BP be named an AI but says no more); THEREFORE: BP is an AI on all of Transocean s policies and there is no limitation as to that coverage. Round 3: Fifth Circuit Panel withdrew its prior opinion, expressly recognized magnitude and wide ramifications, both throughout the oil and gas industry and for insurance law, and determined that the Texas Supreme Court is better suited to decide this issue. The issues were certified to the Texas Supreme Court and there has been no ruling to date. 4

26 3/31/2014 NOW WHAT? There are a number of issues that remain in limbo until the Texas Supreme Court rules on this matter: 1. Contract interpretation whether AUTOFINA compels a finding that BP is covered for the damages at issue because the language of the umbrella policies alone determines the extent of BP s coverage as an additional insured if and so long as the additional insured and indemnity provisions if the Drilling Contract are separate and independent? 2. Whether the doctrine of contra proferentum applies to the interpretation of the insurance coverage provision of the Drilling Contract under the ATOFINA case, given the facts of this case? 3. Issues 1 & 2 above, as certified to the Texas Supreme Court, also bring the issue of the insurability and indemnity of punitive damages into the spot light. BOTTOM LINE: Know your policy language. It s an easy fix for your clients, if you know the problem is there. Make certain that Policy language tracks language of the underlying insured contract (the MSA, service agreement, etc.) If you are the lawyer negotiating the contract, this means you. If you are the broker obtaining the coverage, this also means you. In light of the Atofina / BP Deepwater Horizon decisions, it would seem that this tracking responsibility could easily become a malpractice or errors and omissions issue if ignored by the attorney or broker handling the contract and the necessary language is not included in the relevant policies. 5

27 3/31/2014 6

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