Thursday, March 6, 2014 Houston, TX. 2:45 4:00 p.m. LESSONS LEARNED? WHAT S NEXT?

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1 Thursday, March 6, 2014 Houston, TX 2:45 4:00 p.m. LESSONS LEARNED? WHAT S NEXT? Presented by David B. Goodwin Partner Covington & Burling LLP The Deepwater Horizon insurance litigation persists and continues to impact the insurance industry. This session will look at the timeline of the litigation and where we are now. It will then consider the issues looking at laws of other states and English law to identify differences that affect insurance laws. The discussion will conclude with a look forward and the questions about whether we should/can change the indemnity structure. Copyright 2014 International Risk Management Institute, Inc. 1

2 Notes This file is set up for duplexed printing. Therefore, there are pages that are intentionally left blank. If you print this file, we suggest that you set your printer to duplex. 2

3 David B. Goodwin Partner Covington & Burling LLP David Goodwin is partner in the firm s San Francisco office and a member of the Insurance Coverage, Arbitration, and Appellate practice groups. He is one of the nation s leading insurance coverage practitioners, ranked in the highest tier by Chambers USA both nationally and in California. Law360 has named him one of the country s top three most valuable players in the insurance practice area. Chambers USA described him as one of the strongest players around in contentious insurance cases and a world-class litigator and an expert in insurance disputes. Who s Who Legal calls him a superb coverage lawyer. With nearly 30 years of experience representing corporate policyholders in insurance coverage disputes and litigation, his practice runs the gamut of insurance issues, including major property damage and business interruption losses, errors and omissions, fidelity, crime, financial guarantee, and director and officer claims, offshore and onshore construction insurance disputes, and marine, products liability, and environmental insurance matters. Mr. Goodwin has served as a party arbitrator in numerous insurance arbitrations. He also is a highly experienced appellate advocate who has argued more than 50 appeals. He is a vice-chair of Covington s Litigation practice. He also has served as an adjunct professor at the University of California at Berkeley Law School, where he taught courses on insurance law. Mr. Goodwin received a B.A. and M.A. from the University of Oxford and his J.D. from Stanford Law School where he was articles editor for the Stanford Law Review. 3

4 Notes This file is set up for duplexed printing. Therefore, there are pages that are intentionally left blank. If you print this file, we suggest that you set your printer to duplex. 4

5 Lessons Learned? What s Next? Presented By: David B. Goodwin Partner Covington & Burling LLP IRMI.com IRMI.com.cwww 1 Introduction What We re Going To Discuss Recap: The Deepwater Horizon Insurance Litigation: Where We Are Now A Hypothetical Claim: Who Wins? English and American Insurance Law: Some Key Differences Is There Another Way? 2 5

6 The Deepwater Horizon Insurance Litigation: Where We Are Now 3 The Drilling Contract Back in 1998, drilling contract negotiated between predecessors of Transocean (TO) and BP Contract amended frequently to cover a variety of operations, including the use of the Deepwater Horizon rig TO agreed in the drilling contract to procure insurance, and the parties gave each other knock-for-knock indemnities In exchange, BP paid substantial dayrates to TO 4 6

7 The Insurance Actions : A Recap After the April 20, 2010, accident, BP tendered its claim to the CGL insurers as an additional insured The insurers filed two parallel declaratory judgment actions, one filed by the primary insurer (Ranger) and the other by the excess insurers Texas law governs the insurance policies Transferred to New Orleans MDL All agree: BP is an additional insured Issue is not existence of BP s coverage but the scope of BP s coverage (i.e., pollution) 5 Three Sets of Contractual Provisions The insurance policies: Who is insured? The drilling contract: What insurance must the contractor provide? The drilling contract: What indemnities has the contractor promised to the owner/operator? 6 7

8 BP s Arguments The scope of coverage depends upon what the insurance policies provide, and the policies do not limit coverage to the scope of the indemnities that TO gave BP The policies do not incorporate the drilling contract And if they did, the drilling contract does not limit the scope of additional insured coverage to the indemnities 7 The Insurers (and Transocean s) Arguments The sole purpose of additional insured coverage is to backstop the indemnities Everyone in the industry knows that To the extent the court must look at the contract language, the drilling contract limits the scope of BP s additional insured coverage to the backstop And the policies incorporate the drilling contract 8 8

9 So What Happened? BP asked the court to decide whether BP or the insurers are right as a matter of law. The insurers and Transocean agreed that BP presented a pure question of law. Let s start with the contract and insurance policy language. 9 Drilling Contract Is an Insured Contract There is no dispute that the drilling contract is an insured contract, i.e., a contract in which TO assumes tort liability of another Under the drilling contract, TO assumes the tort liability of [BP] to pay for Bodily Injury, Property Damage, [or] Personal Injury. That means that BP is an additional insured : No one disputes this 10 9

10 Drilling Contract: Insurance EXHIBIT C. INSURANCE REQUIREMENTS 1. The insurance required to be carried by CONTRACTOR under this Contract is as follows [Contract identifies nine types of coverages TO must purchase, among them] Comprehensive General Liability, including contractual liability insuring the indemnity agreement as set forth in the Contract with a combined single limit of not less than $10,000,000 covering bodily injury, sickness, death and property damage. 11 Drilling Contract: Indemnities TO agrees to hold BP harmless against any claims by TO employees or by employees of TO subcontractors for bodily injury or wrongful death. BP agrees to hold TO harmless from and against any loss or liability for pollution or contamination, including control and removal thereof, arising out of or connected with operations under this Contract hereunder and not assumed by [TO in the sub-provision] above

11 Insurers Argument on the Drilling Contract The insurers and TO argue that Exhibit C, 3 of the drilling contract limits coverage to the scope of TO s indemnity to BP. Paragraph 3 provides: [BP]... and affiliated companies shall be named as additional insureds in each of [TO s] policies, except Workers Compensation for liabilities assumed by [TO] under the terms of this Contract. The insurers and TO argue that the phrase for liabilities assumed by [TO] under the terms of this Contract modifies each of [TO s] policies and not Workers Compensation 13 BP s Response Exhibit C is in the drilling contract, not the policies Exhibit C states minimum Insurance Requirements Insurers reading requires insertion of a missing comma (i.e., [BP]... and affiliated companies shall be named as additional insureds in each of [TO s] policies, except Workers Compensation[,] for liabilities assumed by [TO] under the terms of this Contract ) The policies contain no indemnity-based limitation on coverage even though such language was known and available Three recent Texas law cases ATOFINA, Aubris, and Pasadena Refining are consistent with BP s reading and hold that indemnities and insurance are separate obligations 14 11

12 Fifth Circuit Decision Opinion issued March 2013, ruling in favor of BP Holding: Under Texas law, insurance coverage depends upon what the insurance policies provide, not on what the drilling contract says, unless the insurance policies expressly limit coverage to the minimums set forth in the drilling contract The policies impose no such limitations on coverage The insurance and indemnity provisions in the drilling contract are separate and independent promises that TO made to BP 15 Certification to Texas Supreme Court Insurers and Transocean seek rehearing The Fifth Circuit denies rehearing but certifies two questions to the Texas Supreme Court 1. Whether Evanston Ins. Co. v. ATOFINA Petrochems., Inc., 256 S.W.3d 660 (Tex. 2008), 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 of the drilling contract are separate and independent 16 12

13 Certification to Texas Supreme Court 2. Whether the doctrine of contra proferentem applies to the interpretation of the insurance coverage provision of the drilling contract under the ATOFINA case, 256 S.W.3d at 668, given the facts of this case 17 Contra Proferentem Issue Traditional rules of insurance policy interpretation Should a different rule apply to so-called sophisticated insureds? If so, who is sophisticated? What effect would such a rule have on insurance world? Should a different rule apply to specially drafted policy language? What about the drilling contract? 18 13

14 So What s Really at Stake Are Two fundamental principles of Texas law: Do the words of the insurance contract govern coverage? And how should a court interpret contract terms? 19 14

15 What If New York Law Applies? 20 Issues One and Two New York reads the insurance policy as drafted; a service contract not incorporated unless the policy says so explicitly New York has not adopted a sophisticated insured exception, with the possible exception of specially manuscripted policy language 21 15

16 What If English Law Applies? 22 Trite but True England and America are two countries separated by a common language. George Bernard Shaw 23 16

17 Never More True Than in Insurance Same purposes Same provisions Same (or similar) common law doctrines Including the general notion that the contract text governs Vastly different understandings and outcomes 24 Follow the Money ( ) When You Think of London, What Industry Comes to Mind? Not oil and gas Not manufacturing But insurance (and other financial services) 25 17

18 And with Good Reason 26 So, No Surprise These are differences that make a difference in our respective insurance laws

19 When I Say Up, You Say Down Five Select Doctrines That Make the Point: Contra proferentem Effect of nondisclosure in applications Late notice Duty to cooperate Coverage for settlements 28 Contra Proferentem England [G]enerally regarded as the last resort R&R Dev. Ltd. v. AXA Ins. UK plc, [2009] EWHC 2429 (Ch) [D]oes not apply if [a clause s] meaning becomes clear in the context of the overall policy or if there is extraneous evidence relating to the risk to show what the parties intended Colinvaux s Law of Insurance 3.10; see also Young v. Sun Alliance & London Ins. Ltd., [1977] 1 W.L.R. 104 If the broker drafted the language, contra proferentem applies against the insured Colinvaux s Law of Insurance

20 Contra Proferentem United States If a provision has more than one reasonable interpretation, a court must interpret it in favor of the insured, provided that interpretation is not unreasonable, and even if the insurer s interpretation is more reasonable Aubris Res. LP v. St. Paul Fire & Marine Ins. Co., 566 F.3d 483 (5th Cir. 2009) [P]ro-insured rule in which any ambiguity in the relevant policy language is automatically construed in favor of coverage, without any need to evaluate extrinsic evidence concerning the parties intent 1 Law and Practice of Insurance Coverage Litigation Effect of Nondisclosure in Applications England [A]ssured must disclose every material circumstance which is known to the assured, and the assured is deemed to know every circumstance which, in the ordinary course of business, ought to be known by him If the assured fails to make such disclosure, the insurer may avoid the contract Every circumstance is material which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk Marine Insurance Act 1906,

21 Effect of Nondisclosure in Applications United States Insurer will have far more difficulty in rescinding a policy if the information that was not disclosed by the insured was not encompassed by the questions asked in the application 1 Insurance Claims and Disputes 2:27 (collecting cases) In some states, materiality is a subjective test (i.e., did the insurer rely on the misrepresentation?) Flores v. First Penn Pac. Life Ins., 215 F.3d 1332 (9th Cir. 2000) In Texas, insurer must show insured s intent to deceive to prevail on misrepresentation defense to breach of contract Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278 (Tex. 1994) 32 Late Notice England: [A] late notice that caused no prejudice at all, would, if timely notice were a condition precedent, be destructive of any indemnity for a connected claim HLB Kindsons v. Lloyd s Underwriters, [2009] Lloyd s Rep IR 178 United States: Insurer typically must prove prejudice in order to avoid liability based on a late notice defense Crocker v. National Union Fire Ins. Co. of Pittsburgh, Pa., 466 F.3d 347 (5th Cir. 2006) 33 21

22 Duty To Cooperate England: Documents passing between the assured and the solicitors are not privileged vis-a-vis the insurers who are entitled to be informed of the progress of the claims Formica Ltd. v. Export Credits Guarantee Dep t, [1994] C.L.C United States: [C]ooperation clause does not imply a duty to produce documents protected by attorney-client privilege where insurer does not seek these documents in order to cooperate, but to succeed in coverage dispute Remington Arms Co. v. Liberty Mut. Ins. Co., 142 F.R.D. 408 (D. Del. 1992) 34 Coverage for Settlements England: Insured must show that underlying judgment or settlement was right as a matter of law Skandia Int l Corp. v NRG Victory Reinsurance Ltd., [1998] Lloyd s Rep IR 439 United States: [I]nsured need not establish actual liability to the party with whom it has settled so long as a potential liability on the facts known to the [insured is] shown to exist Luria Bros. & Co. v. Alliance Assur. Co., 780 F.2d 1082 (2d Cir. 1986) 35 22

23 So What Would an English Court Do? Question 1: Plain language Custom and practice? What about settlements? Question 2:?? 36 23

24 Lessons Learned: What s Next? 37 Where Do We Stand? How does a business protect itself against liabilities from risky projects and activities Solutions Traditional insurance and indemnification Current ERM; self-insurance; more limited commercial insurance; indemnification 38 24

25 Problems Exposed by DWH Liabilities may be far greater than expected Cross-indemnities could expose indemnitors to much higher than expected liability for the misconduct of others Contractual risk allocation can be counterintuitive and create perverse incentives Insurance relationships are uncertain, and market capacity is not big enough to pass off substantial risk 39 Should We Rethink Indemnities? The current fallback position Contractor is responsible for its employees Owner is responsible for most pollution The gross negligence conundrum Rationale for current fallback position Owner has greater resources Owner has greater ability to manage risks Is that true? Mesh with legal requirements?? Should/Can we change the indemnity structure? 40 25

26 Questions/Thanks David B. Goodwin Covington & Burling LLP March