Triggering Coverage Over Layers of Self Insurance Construing Risk Retention Clauses

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1 BARGER & WOLEN LLP Triggering Coverage Over Layers of Self Insurance Construing Risk Retention Clauses By Travis Wall, Partner February

2 Triggering Coverage over Layers of Self Insurance Construing Risk Retention Clauses By Travis Wall Many companies choose to retain the liability for some levels of coverage and then purchase excess insurance over these levels. This is typically an option for larger, sophisticated companies for whom certain levels of liability or loss are a certainty. Because these losses are predicable, the premiums to purchase the primary insurance would be high. Retaining the risk for these losses allows companies to manage liability and reduce premiums. See CSX Trans. Inc. v. Continental Ins. Co., 343 Md. 216, 244 (1996) (explaining the reasons for a self-insured retention). A policyholder s retention of risk is sometimes referred to as self insurance. Many courts and commentators contend that this term is a misnomer, reasoning that a company s decision to retain risks is not a form of insurance but actually the absence of insurance: [S]elf-insurance... is equivalent to no insurance.... and is repugnant to the [very] concept of insurance. Richardson v. GAB Business Services, Inc., 161 Cal. App. 3d 519, 523 (1984). This distinction is not just a question of semantics. If a company s decision to retain risk is characterized as a form self insurance, courts may treat the company like any other insurer when applying excess other insurance clauses. Sometimes an occurrence triggers coverage over multiple policy periods, and the insured may have chosen to self insure for one or more of those years. The question then arises whether the policyholder should be treated like another insurer If a company s decision to retain risk is characterized as a form self insurance, courts may treat the company like any other insurer when applying excess other insurance clauses. in allocating liability. The resolution of this issue may turn upon whether these gaps in coverage are considered a form of self insurance or no insurance. An insured s retention of risk can take numerous forms, such as self-insured retentions (often referred to as SIRs), deductibles, fronting policies, and retrospective premiums. Companies sometimes combine these features in risk management plans. For example, a company could have a large self-insured retention and then a deductible above this limit. A corporation might choose to use a self-insured retention for certain risks, such as product liability claims, and then purchase primary coverage for premises claims or other types of liability. Selfinsured retentions or deductibles could have aggregate limits or apply per occurrence or per claim. Sometimes a self-insured retention is eroded only by the payment of claims; in others situations, both defense and indemnity costs erode a limit. The manner in which a policyholder retains liability for certain risks can have significant ramifications for both primary and excess insurers. Courts have not been precise in their handling of risk retention clauses. Court opinions often conflate selfinsured retentions, deductibles, and other forms of self insurance. Even insurers sometimes use the terms selfinsured retention and deductible interchangeably even though they are different concepts. Some courts and commentators have equated a retained limit in an excess policy with a self-insured retention. That is not entirely accurate. A retained limit in an excess policy might refer to any kind of underlying limit or combination of limits, including self-insured retentions, deductibles, and underlying insurance. The imprecision in the use of terms underscores the danger of relying upon labels alone when interpreting these insurance provisions. When construing any risk retention clause, one must always analyze the text of the 1

3 TRIGGERING COVERAGE OVER LAYERS OF SELF-INSURANCE particular provision in context of the policy as a whole. Self-Insured Retentions and Deductibles A true self-insured retention is a component of an excess policy. The insurer provides pure excess coverage, and the insurer s obligations to defend or indemnify is not triggered until the self-insured retention is exhausted. Spaulding Composites Co., Inc. v. Aetna Cas. & Sur. Co., 176 N.J. 25, 36 n.4 (2003) ( Excess insurance is secondary coverage that ordinarily attaches only after a predetermined amount of primary insurance or self-insured retention has been exhausted ). The policyholder typically has claims handling and defense responsibilities until the selfinsured retention is satisfied. Monroe Guar. Ins. Co. v. Langreck, 816 N.E.2d 485, (Ind. App. 2004) (holding that insurer has no claims handling responsibility until the SIR is exhausted). Many sophisticated companies prefer self-insured retentions for this very reason. They retain the risk for a predictable level of loss and can avoid having to interact with insurers in the claims handling process for most claims. Insurers only become involved when a claim exceeds a significant level and becomes a catastrophic claim. A deductible, by contrast, is normally a component of a primary policy. With a deductible, the policy must respond to the claim from dollar one but the insurer has the right to recoup the amount of the deductible from the insured. As one federal district court explained: A self-insured retention] differs from a deductible in that a SIR is an amount that an insured retains and covers before Courts have not been precise in their handling of risk retention clauses. Court opinions often conflate self-insured retentions, deductibles, and other forms of self insurance. Even insurers sometimes use these terms selfinsured retention and deductible interchangeably even though they are different concepts. insurance coverage begins to apply. Once a SIR is satisfied, the insurer is then liable for amounts exceeding the retention less any agreed deductible.... Policyholders frequently employ SIRs to forego increased premiums where they face high frequency, low severity losses.... In contrast, a deductible is an amount that an insurer subtracts from a policy amount, reducing the amount of insurance. With a deducible, the insurer has the liability and defense risk from the beginning and then deducts the deductible amount from the insured coverage. In re September 11th Liability Insurance Coverage Cases, 333 F. Supp. 2d 111, 124 n.7 (S.D.N.Y. 2004). The insurer is liable for the loss from the beginning and then seeks reimbursement from its policyholder for the deductible amount. This feature can be significant when a policyholder becomes insolvent. With a deductible, the primary insurer could be liable to pay for the loss and may have to seek reimbursement from its bankrupt policyholder. With a self-insured retention, the excess or umbrella policy is not triggered until the SIR is exhausted. The inability of the policyholder to satisfy the selfinsured retention might mean that the excess policy is never triggered, or, at the very least, that the excess insurer s liability would only involve those sums that exceed the retention amount. Unlike an SIR, the satisfaction of a deductible reduces policy limits and thus erodes the amount of insurance available under the applicable policy. If the deductible applies per claim or per occurrence and is non-aggregating, it is possible that the application of multiple deductibles could erode policy limits without the insurer being liable for the payment of a single claim. 2

4 CONSTRUING RISK RETENTION CLAUSES Fronting Policies A fronting policy can take various forms. In one incarnation, the insurer issues a policy to the insured in which a deductible equals the policy s limits. There is no expectation that the insurer will be liable for any portion of the loss. The policyholder either pays the claims directly or agrees to reimburse the insurer for all payments it must make. Aerojet- General Corp. v. Trans. Indemnity Co., 17 Cal. 4th 38, n.3 (1997); MacDonald v. Pac. Employers Ins. Co., 264 F. Supp. 2d 576, (N.D. Ohio 2002). Companies sometimes use reinsurance to create a fronting arrangement. The primary carrier issues a policy and then cedes the risk to a reinsurer, which is controlled by the policyholder or is a captive of the policyholder. Again, absent the insolvency of the reinsurer, there is no expectation that the primary insurer will be liable for any claim. The primary insurance policy essentially functions as a front in which the insurer issues a policy covering the company that complies with any regulatory or licensing requirements but the policyholder or captive reinsurer maintains the ultimate risk of loss. A California Court of Appeal described a fronting policy as one which does not indemnify the insured but which is issued to satisfy financial responsibility laws of various jurisdictions by guaranteeing to third persons who are injured that their claims against [the insured] will be paid. Columbia Casualty Co. v. Northwestern Nat. Ins. Co., 231 Cal. App. 3d 457, 471 (1991). The policyholder in effect pays a small premium to rent the insurer's license. If the insurer maintains the responsibility to administer claims, the premium would be increased to reflect this additional cost. The South Carolina Supreme Court explained: A fronting policy, of which there are various forms, is one or more steps removed from true self-insurance. It has been defined as a legal risk management device, typically used by large corporations operating in multiple states, in which the corporation pays a discounted premium to an insurer. The insurer maintains licensing and filing capabilities in a particular state or states, and issues an insurance policy covering the corporation in order to comply with the insurance laws and regulations of each state. Croft v. Old Republic Ins. Co., 365 S.C. 402, 414 (2005). These arrangements may not be risk free for the primary insurer. There is a risk that the policyholder or reinsurer will be unable to pay a claim, leaving the insurer potentially liable for a loss. Id. at 415 (holding that fronting policies do involve transfer of risk). In fact, precisely because of this risk, some courts have held that a fronting policy should be subject to the same statutory and regulatory requirements as any other type of insurance. Id at ; see also Gilchrist v. Gonsor, 104 Ohio St. 3d 599, 601 (2004) (Moyer, There is a risk that the policyholder or reinsurer will be unable to pay a claim, leaving the insurer potentially liable for a loss. [P]recisely because of this risk, some courts have held that a fronting policy should be subject to the same statutory and regulatory requirements as any other type of insurance. C.J., concurring) (reasoning that the fronting policy was a form of insurance because it exposed the insurer to some risk). Triggering Excess Coverage above Self Insurance There is conflicting authority with respect to the trigger of coverage over self-insured retentions. The majority view is that an excess carrier above a selfinsured retention has no obligation to defend or indemnity until the retention is fully exhausted. E.g. City of Oxnard v. Twin City Fir Ins. Co., 37 Cal. App. 4th 1072, 1078 (1995). This would be true even if the underlying complaint alleged damages that exceed the SIR. Id. A basic feature of excess insurance is that the 3

5 TRIGGERING COVERAGE OVER LAYERS OF SELF-INSURANCE carrier s obligations are not triggered until the exhaustion of primary insurance, a self-insured retention, or any other retained limit. A primary insurer has the sole duty to defend lawsuits until its limits are exhausted, even if the alleged damages exceed the primary carrier s limits of liability. A policyholder that negotiated an SIR should be treated no differently. In Oxnard, two excess insurers issued successive policies to the City of Oxnard. The first had an SIR of $100,000 per occurrence; the second, $200,000 per occurrence. Each policy stated that excess coverage was being provided and that coverage was only available after Oxnard became legally obligated for a loss in excess of its retained limit. Oxnard was sued and tendered the defense to all of its carriers including the excess insurers. Some primary insurers participated in the defense pursuant to a joint defense agreement with the city. The excess insurers refused on the grounds that the insured had not exhausted the underlying SIR. Oxnard eventually settled the lawsuit. Based on its percentage of participation specified in the joint defense agreement, Oxnard s share of the settlement was $99,857. Id. at Oxnard then sued its excess carriers on the ground that they breached duties to defend and to indemnify. The city contended that the carriers had a duty to defend because the underlying complaint alleged damages that potentially exceeded the SIR. The court rejected this claim, noting that Oxnard was confusing two distinct concepts: whether the underlying claim alleged the type of occurrence that was potentially covered by the policy and whether the amount of claimed damages exceeded underlying policy limits. Id. at Different rules apply to primary and excess layers. Although a primary insurer might have a duty to defend a claim that merely alleges a potentially covered occurrence, excess insurers have no similar duty until underlying limits are actually exhausted. Id. Oxnard was solely liable for its defense costs attributable to the extent of its SIR, just as a primary insurer is responsible for defense expenses attributable to the extent of its coverage. Id. at Because the city s net liability did not exceed any SIR, neither excess carrier had any duty to defend or indemnify. The Oxnard holding is consistent with the approach in most jurisdictions. E.g. United States Fire Ins. Co. v. Scottsdale Ins. Co., 264 S.W.3d 160, 173 (Tex. App. 2008) (duties to defend and indemnify not triggered until SIRs exhausted); Allianz Ins. Co. v. Guidant Corp. 884 N.E. 2d 405, 420 (Ind. App. 2008) (duty to defend triggered only after SIR is actually exhausted even if claim potentially seeks damages in excess of SIR); Hormel Foods Corp. v. Northbrook Prop. & Cas. Ins. Co., 938 F. Supp. 555, 560 (D. Minn. 1996), aff d 131 F.3d 143 (8th Cir. 1997) (insured had obligation to pay all defense costs until SIR was exhausted). Some courts have held that a duty to defend can arise even before exhaustion of the SIR. In Alwell v. Meadowcrest Hospital, 971 So.2d 411 (La. App. 2007), the policy had a self-insured retention of $150,000. The insurer contended that it did not have any duty to defend or indemnify until the all underlying limits were satisfied including the SIR. Id. at 415. The court rejected this argument, holding that though the insurer may not have duty to indemnify until after exhaustion of the SIR, the duty to defend was triggered immediately. Id. The court justified the holding on the ground that the policy s SIR was not insurance that must be exhausted prior to triggering a duty to defend. Id. The reasoning of this case is not clear and appears to blur the distinction between primary and excess coverage. The Third Circuit reached a similar conclusion in Cooper Laboratories, Inc. v. Int l Surplus Lines Ins. Co., 802 F.2d 667 (3d Cir. 1986) (applying New Jersey law). There, the insurer contended that it had no obligation to defend a lawsuit until actual exhaustion of a $1,000,000 self-insured retention. The claimant made a settlement demand of $3,500,000 and the case eventually settled for $1,900,000. The insured tendered the defense to the excess carrier upon receipt of the $3,500,000 4

6 CONSTRUING RISK RETENTION CLAUSES demand, and the excess carrier refused to defend. The court held that the mere allegation of damages exceeding the self-insured retention created a potential for coverage and thereby triggered a duty to defend. Cooper Laboratories, 802 F.2d at 676. The district court was ordered on remand to allocate the fees expended to reflect the respective interests of Cooper and ISLIC and disallow Cooper what it would have expended to protect its own interest had ISLIC accepted the defense. Id. Other courts have suggested that excess carriers can waive the right to assert a self-insured retention if the excess carrier breaches a duty to defend. The reasoning of such cases displays a fundamental misunderstanding of the nature of excess insurance and the proper trigger of coverage. In an unpublished opinion, a federal district court in Michigan held that an insurer had no right to enforce a $2,000,000 selfinsured retention because the insurer breached its defense obligations. Stryker Corp. v. XL Ins. Am. Inc., No. 4:01-CV- 157 (W.D. Mich. Jan. 4, 2008). If the policy were a true excess policy, this limit could not be waived because the excess carrier should not have any duty to defend until the limit is satisfied. In other words, the policyholder must satisfy this limit in order to trigger excess coverage in the first place, and thus this limit could not possibly be waived by a failure to defend. In justifying this decision, the federal district court relied primarily on the Sixth Circuit s reasoning in Capitol Reproduction, Inc. v. Hartford Ins. Co., 800 F.2d 617 (6th Cir. 1986). In Capitol Reproduction, the insurer issued two policies to the insured, a primary policy with a $50,000 per occurrence limit and an umbrella policy with a per occurrence limit of $1,000,000. Capitol Reproduction, 800 F.2d at 619. In the event that neither the underlying policy nor any other collectible insurance applied to the occurrence, the umbrella policy dropped down and The insurer argued that, even under the umbrella primary coverage, it had no duty to defend or indemnify until exhaustion of the retained limit. In support, the insurer cited authority holding that excess carriers have no duty to defend until exhaustion of the applicable self-insured retention. acted as primary insurance subject to a retained limit of $25,000. The case ultimately settled for $62,500, and the insured incurred $1, in attorney in fees. The primary policies contained exclusions that precluded coverage. The umbrella policy, however, did not contain the same exclusion and thus provided first dollar coverage. Id. at 624. Applying Michigan law, the Sixth Circuit held that the carrier breached a duty to defend the claim and, for this reason, waived any right to offset the amount of the retained limit against the settlement costs and attorney fees. Id. Capitol Reproduction should have limited application in the excess context. The opinion mistakenly refers to the umbrella primary coverage as a form of excess insurance, when the umbrella policy in that instance was acting as primary insurance. See id. at 624 (describing excess coverage under the policy as claims not covered by the underlying policies but covered in the umbrella policy ). Thus, the retained limit in that case should be construed as a component of a primary policy. This situation is distinguishable from pure excess insurance in which there should be no duty to defend or indemnify until after a selfinsured retention is exhausted. Self-Insured Retentions in Primary Policies Policies that provide primary coverage sometimes contain clauses labeled self-insured retentions or retained limits. These limits typically are small, apply per claim or occurrence, and are eroded by defense costs as well as indemnity payments. Different rules of construction might apply when a self-insured retention is deemed to be part of a primary policy. The existence of a retained limit does not always transform a policy into a form of excess insurance 5

7 TRIGGERING COVERAGE OVER LAYERS OF SELF-INSURANCE even if that policy may not provide first dollar coverage. See Padilla Constr. Co. v. Trans. Ins. Co., 150 Cal. App. 4th 984 (2007). The policyholder in Padilla was sued for property damage that extended over multiple policy periods. A primary policy in one year had a $25,000 self-insured retention, which expressly provided that the insurer had no obligation to defend or indemnify until the $25,000 limit was exhausted. Id. at 992. Defense costs eroded that limit. Id. Other provisions made clear, however, that the policy was intended to provide primary coverage. A dispute arose as to whether an umbrella insurer in an earlier policy year had a duty to drop down and provide first dollar coverage. The resolution of this issue turned, in part, on whether the SIR should be treated like a retained limit underlying an excess policy or whether the limit was an integral part of the primary policy itself. The court held that the SIR was a creature of the primary policy and that general rules pertaining to SIRs did not apply. Id. at The policyholder had an obligation to exhaust all applicable primary coverage before triggering the excess policy; this included the requirement that the policyholder exhaust its SIR. The court reasoned that treating the SIR as separate from the primary policy itself would obliterate the distinction between primary and excess insurance and defeat the reasonable expectations of the parties. Id. An SIR in a primary policy also may be construed to apply only to the duty to indemnify but not to the duty to defend. See Legacy Vulcan Corp, v. Super. Ct. (Transport Ins. Co.), 184 Cal. App. 4th 677 (2010). In Legacy Vulcan, an umbrella insurer issued a policy with two coverage parts. The first coverage part provided that the policy was excess to all policies listed on the schedule of insurance and all other collectible underlying insurance. The second coverage part provided that the policy would act as primary insurance if the underlying policies listed schedule of insurance did not cover the claim. This coverage was subject to a retained limit of $100,000. The court concluded that the second coverage applied and that the policy should be treated like primary insurance. Id. at 690. The insurer argued that, even under the umbrella primary coverage, it had no duty to defend or indemnify until exhaustion of the retained limit. In support, the insurer cited authority holding that excess carriers have no duty to defend until exhaustion of the applicable self-insured retention. Id. at 694. The Legacy Vulcan court rejected this authority on the ground that it did not apply where a policy plainly is intended to be a primary policy. Id. at 696. The court held that, absent express language to the contrary, a self-insured retention or retained limit in a policy providing primary coverage affects only the duty to indemnify and not the duty to defend. Id. The insurer must defend immediately even though the duty to indemnify would not be triggered until exhaustion of the selfinsured retention. This authority teaches that different presumptions could apply depending upon whether a policy is intended to provide primary or excess coverage. When a primary policy contains a self-insured retention or retained limit, courts will likely presume that the duty to defend is triggered immediately. This presumption can be overcome through express provisions stating that there is no duty to defend until the limit is exhausted through the payment of claims. The presumption is reversed, however, if the policy is excess. Courts will likely presume that there is no defense obligation until the retained limit is exhausted through the payment of claims, unless there is express language stating the insurer will provide a defense prior to exhaustion. 6

8 ABOUT TRAVIS WALL TRAVIS WALL is a partner in Barger & Wolen s San Francisco office. He has been with the firm since 2004, practicing civil litigation with an emphasis on complex business disputes, securities litigation, and insurance coverage and bad faith. He practices in both federal and state courts and has appellate experience. Mr. Wall s insurance litigation experience includes coverage and bad faith litigation, stop-loss coverage, ERISA claims, class actions and unfair business practices claims. He has represented insurance companies in complex coverage disputes involving widely publicized sexual abuse claims against religious institutions. He has represented both excess and primary insurances in coverage disputes involving allocation of liability in asbestos and pollution claims. He has extensive experience in consumer and investor litigation, including complex disputes concerning asset-backed securities, collateralized debt obligations and structured investment vehicles. Mr. Wall has handled numerous securities arbitrations before the Financial Industry Regulatory Authority (FINRA) involving claims of fraud, unauthorized trading, unsuitable investment recommendations, and professional negligence. Mr. Wall also has experience in real estate and condemnation actions. He represented a railroad in a complex contract dispute with a pipeline company regarding an easement affecting 1800 miles of the railroad right of way. 650 California Street Ninth Floor San Francisco, CA P. (415) Mr. Wall is admitted to practice in California state courts and before the United States District Court for the Northern, Central, Eastern, and Southern Districts of California, the District of Colorado, and the Ninth Circuit Court of Appeals. Mr. Wall received his J.D. from the University of California, Berkeley, Boalt Hall School of Law in 1997, where he was a Member and Senior Articles Editor for the California Law Review ( ). In addition, he received his M.A. in Modern French History from the University of California, Los Angeles (1992), and his B.A. from the University of California, Berkeley, with high honors (1988). 7

9 ATTORNEY ADVERTISING Barger & Wolen LLP client alerts are periodically issued to keep our clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The comments contained herein do not constitute legal opinion and should not be regarded as a substitute for legal advice. Prior results described do not guarantee a similar outcome Barger & Wolen LLP. All Rights Reserved. 8

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