What’s a “tow”?

Three tugboats towed a barge; one of the tugboats served as the “lead” while the other two assisted. One of the assisting tugboats had an accident and sank. The question for the Fifth Circuit in Continental Insurance v. L&L Marine Transportation was whether the sunken boat was a “tow” of the lead boat, and thus came within the coverage of the insurance policy for the lead. (As distinct from a TOW missile, right.) Reviewing dictionaries and court precedent, the Court concluded that “tow” describes a situation where “some ship or boat is being provided extra motive power from another ship or boat by being pushed or pulled,” which was not the case here. The Court rejected an argument based on the maritime “dominant mind” doctrine – a concept derived from the duty of a lead boat in a flotilla to navigate resonably – as bearing only on potential tort liability and not the issue of interpreting the terms of this insurance policy. No. 17-30424 (Feb. 15, 2018).

No notice, no coverage

The question of timely notice to a carrier can give rise to close questions about insurance coverage. Nautilus Ins. Co. v. Miranda-Mondragon, however, presented a straightforward issue: “The first notice Nautilus received of the lawsuit came from Miranda-Mondragon’s counsel 41 days after the state court entered default judgment . . . . The delayed notice prejudiced Nautilus as a matter of law and relieved Nautilus of liability under the policy.” No. 17-20261 (Oct. 20, 2017, unpublished).

“Accident” is not “Sickness.”

Ramirez, on work trips to West Texas, contracted a fungal infection that led to the loss of an eye. His employee insurance plan would pay benefits “if an employee is injured as a result of an Accident, and that Injury is independent of Sickness and all other causes.” Based on the definitions of “Accident and “Sickness” in the policy, the Fifth Circuit affirmed summary judgment for the insurer. Ramirez tried to come within a “carve-back” provision at the end of the “Accident” definition, which extended coverage to “bacterial infection that is the natural and foreseeable result of an accidental external bodily Injury or accidental food poisoning, but the Court concluded that “neither the policy’s language nor its structure indicates that this provision applies beyond those two specific occurrences.” Ramirez v. United of Omaha Life Ins. Co., No. 16-11660 (Oct. 6, 2017).

Does an insurer’s delay for an appraisal create a Prompt Payment problem?

In Mainali v. Covington Specialty Ins. Co., the Fifth Circuit addressed “whether a payment made to comply with an appraisal award, which in most if not all cases is going to be paid after the 60-day window [set by the Texas Prompt Payment statute], is subject to [a statutory] penalty.” In an Erie analysis, the Court followed intermediate Texas authority that held such a payment was not subject to those statutory penalties, observing: “Covington was not trying to avoid payment of the claim; it was invoking a contractually agreed to mechanism for assessing the amount it owed.” No. 17-10350 (revised Sept. 27, 2017).

“Cross suits” exclusion does not apply between general and sub

Sterling Homes, the general contractor on a residential construction project, successfully sued Espinoza, a painting subcontractor, for a fire loss over $1 million. Espinoza’s insurer denied coverage because Sterling Homes was an “additional insured” on Espinoza’s policy, which the insurer said brought the Sterling-Espinoza dispute within the policy’s “cross suits” (or “insured v. insured”) exclusion.. The Fifth Circuit concluded that the plain terms of the exclusion would cover parties that were named as “additional insureds,” in addition to the actualy purchasers of a policy. But as to the specific claims at issue, the Court further held that the exclusion was only intended to apply to Sterling Homes’s liability arising rom Espinoza’s operations, as “nothing in the plain language of the subcontracting agreement obligating Espinoza to name Sterling Homes as an additional insured suggests the parties intended for Espinoza to lose insurance overage in the event Sterling Homes needed to sue him.” Certain Underwriters at Lloyd’s v. Sterling Custom Homes

Is asbestos an “irritant”?

The issue in Longhorn Gasket & Supply Co. v. U.S. Fire Ins. Co. was whether asbestos was within the scope of a pollution exclusion that applied to  “irritants, contaminants or pollutants.” Acknowledging a dearth of Texas case law on the subject, and lack of a clear trend in opinions nationally, the Fifth Circuit concluded that asbestos was an “irritant” under the commonly-accepted meaning of that term, and the underlying claims thus fell within the scope of the exclusion. The Court then held that because “[w]e have concluded that the pollution exclusion applies . . . the burden shifts to [the insured] to attempt to apply an exception to the exclusion”; in this case whether “such discharge, dispersal, release or escape is sudden and accidental.” No. 15-41625 (Aug. 18, 2017).

Services disparaged, injury covered.

The Fifth Circuit reversed a summary judgment for the insured in a dispute about “advertising injury” coverage, finding that the underlying pleading “alleged misrepresentations . . . directed at a particular potential customer in reference to a particular project that a competitor was undertaking. It thus impugned a particular competitor and its services by necessary implication” (thus distinguishing KLN Steel Prods. Co. v. CNA Ins. Cos., 278 S.W.3d 429 (Tex. App.–San Antonio 2008, pet. denied)). This brought the claim within the policy, which covered “injury . . . arising out of the oral or written publication, in any manner, or material that disparages a person’s or organization’s goods, products or services.” Uretek (USA), Inc. v. Continental Casualty Co., No. 15-20104 (July 28, 2017).


May be injury, but not “advertising injury”

Laney Chiropractic v. Nationwide Mutual Ins. Co. presented a dispute about whether “advertising injury,” covered by insurance, was raised by a complaint about a competitor’s statements about a chiropractic massage technique. The Fifth Circuit affirmed summary judgment for the insurer, finding, inter alia: “[W]hen an insured is accused of using another’s product, they are generally not using another’s ‘advertising idea.’ . . . And that is precisely what the Underlying Complaint alleges. It alleges that Laney unlawfully used a patented product . . . and then advertised the product on its website.” Arguments based on alleged trade dress and slogan infringement failed for similar reasons. No. 16-1183 (July 28, 2017)

Sorry, Servisiar.

Servisair bought a workers’ compensation policy from Liberty Mutual, “There is no dispute that Servisair significantly over-allocated payroll to clerical employees, which is a considerably less expensive classification.” Thus, after the payroll period ended and an audit concluded, Liberty Mutual billed Servisair for $3.6 million in additional premium. Servisair alleged a mistake in the “underlying factual basis” relied upon “in negotiating and agreeing to the policy,” but the Fifth Circuit sided with Liberty Mutual, noting that the policy expressly stated: “If the final premium is more than the premium [Servisair] paid to [Liberty Mutual], [Servisair] must pay [Liberty Mutual the balance.” In other words, “[t]his is an open-ended obligation with no limit on the amount of additional premium Servisair might ultimately owe.” In sum: “Servisair made a deal that, in retrospect, it did not like. That does not allow it to rewrite or avoid its obligations.” Liberty Mutual Ins. Co. v. Servisair, LLC, No. 16-20472 (June 27, 2017, unpublished).

No mistake about the mistake.

In Richard v. Anadarko Petroleum Corp., the Fifth Circuit required reformation of a contract on the grounds of mutual mistake, to the detriment of non-party Liberty Mutual, acknowledging that “[c]ourts must guard against parties’ ‘attempts to make an end-run around the parol-evidence rule,’ which forecloses the use of parol evidence to interpret unambiguous terms, ‘by framing [their] argument[s] as a request for reformation.” Here, reformation was appropriate even considering the effect on Liberty Mutual, given (1) its lack of reliance on the contract, (2) the general consistency of the terms in the reformed contract with industry practice, and (3) course of performance. No. 16-30216 (March 2, 2017).

Sorry, the policy limits apply there too.

Federal Insurance agreed to pay defense costs in ongoing commercial litigation against its insureds, subject to its position that under the policy, payment of defense costs deplete the policy limits. The relevant clause said: “[T]he Limit of Liability under the Fiduciary Coverage Section is $1 million, subject to a $1 million aggregate limit, and a $10,000.00 Retention, with Defnse Costs eroding or depleting those limits.” The Fifth Circuit agreed with Federal, rejecting arguments based on the limit potentially implicating conflict-of-interest concerns for counsel, and policy issues raised by applicable state statutes in the health care area. In sum: “Under Mississippi law, insurance policies are to be enforced according to their provisions.” Federal Ins. Co. v. Singing River Health System, Ni. 15-60774 (March 1, 2017).

No punitive damages for insurance claim denial

A church in Hattiesburg, Mississippi proved that its insurer did not properly handle its claim resulting from tornado damage (right), resulting in a damages award of over $1,000,000. The Fifth Circuit affirmed against challenges by both sides; as to the church’s request for punitive damages, it held: “Taking the facts in the light most favorable to Mount Carmel, GuideOne’s alleged conduct did not rise to the necessary level of an independent tort that would warrant punitive damages. Mount Carmel merely alleges that GuideOne had ‘knowledge of the financial harm that would result’ from its cancellation of the policy. But this type of knowledge is likely present for many cancellations and alone is not sufficient to rise to the level of an independent tort. Accordingly, it does not warrant punitive damages.” GuideOne Elite Ins. Co. v. Mount Carmel Ministries, No. 15-60915 (Jan. 23, 2017, unpublished).

No known claim about potential future discovery sanctions

iillusionistOneBeacon Ins. Co. v. Welch & Assocs. involved insurance coverage for an attorney malpractice claim, arising for an exclusion for knowledge about “any actual or alleged act, error, omission or breach of duty arising out of the rendering or the failure to render professional legal services.” Since even the carrier agreed that “[o]n its face, this covers every single thing an attorney does or does not do, wrongful or not,” the Fifth Circuit found that the exclusion could not be applied literally without making the contract illusory. Focusing on the alleged “wrongful act,” the Court found that the relevant lawyer’s awareness of a discovery order and potential dispute was not equivalent to knowledge that a rare death-penalty sanction award would result. The Court also sustained an award of additional violations for an intentional violation of the Insurance Code with respect to the handling of the claim. No. 15-20402 (Nov. 14, 2016).

No insurance coverage for suit by creditors.

flower-arrangementColor Star Growers (a wholesale distributor of flowers) went into bankruptcy; their lenders sued the Verbeeks in Texas state court, alleging that they fraudulently induced the loans to Color Star. The Verbeeks sought a defense from the D&O carrier for their company. The insurer successfully obtained summary judgment based on the policy’s “Creditor Exclusion” and the Fifth Circuit affirmed. The exclusion said: “The Insurer shall not be liable to pay any Loss on account of, and shall not be obligated to defend, any Claim brought or maintained by or on behalf of . . . [a]ny creditor of a company or organization in the creditor’s capacity as such, whether or not a bankruptcy or insolvency proceeding involving the company or organization has been commenced.” Rejecting the Verbeeks’ arguments that the state court plaintiffs were suing as “administrative agents” or “investors” rather than creditors, the Court observed that “the alleged facts giving rise to the underlying litigation relate entirely to the state court plaintiffs’ loan agreements with Color Star . . . .” The Court went on to affirm as to the duty to indemnify as well. Marke Am. Ins. Co. v. Verbeek, No. 15-51099 (Sept. 27, 2016, unpublished).

No coverage for dive into earlier lawsuit

diving-helmetCal Dive International sued Schmidt (a commercial diver), and Edwards (Schmidt’s attorney in a previous personal injury suit against Cal Dive), alleging that Schmidt had misrepresented his injuries, and seeking restitution of contingent fees paid to Edwards. Cal Dive specifically alleged that it did not believe Edwards knew of the purported fraud. Edwards sought coverage for defense costs, and the Fifth Circuit reversed a judgment in his favor: “Cal Dive’s complaint, for which Edwards seeks defense from Continental, contains no allegations against Edwards, save for his receipt of settlement funds in the nature of attorney’s fees as a result of his client’s alleged fraud. Acts or omissions in the rendering of legal services by Edwards to his client, Schmidt, are simply not at issue.” Edwards v. Continental Casualty Co., No. 15-30827 (Nov. 2, 2016).

No, your “computer fraud” policy does not cover that.

hacker-images-03Apache Corporation had an insurance policy for computer fraud, which said: “We will pay for loss of, and loss from damage to, money, securities and other property resulting directly from the use of any computer to fraudulently cause a transfer of that property from inside the premises or banking premises: (a) to a person (other than a messenger) outside those premises; or (b) to a place outside those premises.” (emphasis added) The Fifth Circuit, after a “detailed — albeit numbing — analysis of the cited authorities,” concluded that the weight of the case law did not create coverage under this policy for the following events:

  1. Apache received a call from a vendor (actually, a criminal posing as the vendor) asking that Apache change its payments to a new bank account.
  2. Apache asked for a formal request on the vendor’s letterhead; one arrived about a week later by email with an attachment on letterhead (from a domain used by the criminals to further pose as the vendor);
  3. Apache called the number on the letterhead to verify the request, and after thinking it had confirmed the authenticity of the request, began sending payments to a new bank account.

While computer use obviously played a role in the deception, the Court noted: “To interpret the computer-fraud provision as reaching any fraudulent scheme in which an email communication was part of the process would . . . convert the computer-fraud provision to one for general fraud.” Apache Corp. v. Great Am. Ins. Co., No. 15-20499 (Oct. 18, 2016, unpublished).

Refinery ownership not inherently undiscoverable

refinerypicThe parties in AIG Specialty Ins. Co. v. Tesoro Corp. disputed whether limitations had run on an insurance coverage claim involving the identity of the named insured (and in turn, whether that entity owned a refinery subject to difficult environmental remediation orders). As a matter of contract law, the Court agreed that mere receipt of an insurance policy does not necessarily bar a reformation claim. But under Texas limitations principles, the insured could not establish that the insurer had “specialized knowledge” about the subject of refinery ownership, or that the mistake in the policy was inherently undiscoverable — especially then “the mistake is evident from the face of the document.” No. 15-50953 (Oct. 17, 2016).

How an insurer can show prejudice

insurancepolicyThe unfortuante Noreen Johnson sought to recover from her insurer after her home suffered wind damage from Hurricane Isaac, and then caught fire roughly two years later. The insurer successfully defended against her claim based on her failure to cooperate as required by the policy. In addition to showing her failure to provide required information, the insurer was able to establish prejudice, in that (1) “by significantly altering the state of the house before GeoVera’s agent could appraise it, Johnson effectively negated GeoVera’s appraisal right, as GeoVera could no longer inspect the extent of the smoke damage,” and (2) “by refusing to sit for an examination under oath until over a year after the fire . . . [t]he delay caused Johnson to forget information vital to protect GeoVera from fraud during the claims process.” Johnson v. GeoVera Specialty Ins. Co., No. 15-30803 (Sept. 27, 2016, unpublished).

Twombly, Insurance Coverage, and The Odyssey

scylla-and-charybdisInsurance coverage litigation provided another example of the tension between the “Scylla” of pleading — the “plead more detail” command from Twombly and Iqbal — and its “Charybids” — the principle of insurance law that “[a]ll doubts regarding the duty to defend are resolved in favor of the insured.” Fed Ins. Co. v. Northfield Ins. Co., No. 14-20633 (Sept. 16, 2016). Here, ltigation about pollution liability led to a dispute about whether a “pollution exclusion” eliminated the duty to defend. The Fifth Circuit reversed a summary judgment in favor of the insurer, noting: “ExxonMobil’s petition does not attach any of the petitions in the Louisiana Litigation. ExxonMobil’s petition provides very little information about the nature of the claims made in the Louisiana Litigation, for which ExxonMobil seeks indemnity and defense costs from [the insured].” As a result, “because of the breadth and generality of the allegations in ExxonMobil’s state court petition, we cannot say that all of the claims fall clearly within the exclusion.”

No causation, no theft coverage.

Pink-PantherTesoro, an oil refiner and marketer, submitted a claim to National Union under its commercial crime insurance policy, involving the forgery of key documents by a Tesoro employee about the account of Enmex, a substantial Tesoro customer. The Fifth Circuit reasoned that the “Employee Theft” provision of the policy required a showing of an unlawful taking, and that Tesoro failed to show had “the forged letters of credit and security agreement induced Tesoro to continue selling fuel to Enmex or what evidence supports this assertion . . . In sum, Tesoro failed to offer any evidence that it would have acted differently had it known the Enmex account was actually not secured.” Tesoro Refining v. National Union, No. 15-50405 (July 29, 2016).

Duty to indemnify? Too early to tell.

insurance community chestLitigation about the failed drilling of an oil well led to insurance litigation under Louisiana’s Direct Action Statute. The district court granted summary judgment to the insured as to its insurers’ duty to indemnify, and the Fifth Circuit reversed, finding that the indemnity issue was not yet justiciable: “[I]t is readily apparent that ‘facts can be developed’ at trial that would support a finding that at least some of [the insured’s] conduct related to the failed directional drilling project triggered coverage under the relevant policies. Beyond the already existing testimony . . . [the insured] points to a number of witnesses who were not deposed but who could testify at trial on relevant issues such as subcontractors, surveyors, and consultants.” Solstice Oil & Gas LLC v. Seneca Ins. Co., No. 15-30874 (July 21, 2016).

Insurance Staredown

staredownExtensive tornado damage to a building at the University of Southern Mississippi led to a hard-fought dispute among insurers. The Fifth Circuit’s detailed affirmance of the district court’s opinion turned on this observation about the losing insurer’s postition: “Were this construction adopted, insurers who covered the same risk would be incentivized to enter into a stare-down, each waiting for the other to blink first in order to seize the opportunity to deny coverage. Such an outcome is neither reasonable nor commercially practicable.” Southern Ins. Co. v. AffiliateTexasBarToday_TopTen_Badge_Smalld FM Ins. Co., No. 15060742 (July 21, 2016). (The opinion also features a rare appellate shout-out to T.S. Eliot’s The Hollow Men.)

“Professional services” exclusion applies, except when it does not.

one hand clappingIndividuals injured in an industrial accident sued DP Engineering; the resulting insurance coverage litigation turned on whether the policies’ “professional services” exclusion applies. As to the duty to defend, after careful review of the underlying pleadings, the Fifth Circuit found that “[t]he facts alleged do not include administrative, non-professional activities,” but rather all involved “injuries that ‘arise out of’ DP Engineering’s . . . allegedly negligent engineering services.” However, the Court found error in resolving the duty to indemnify on the pleadings, as “[t]he allegations in the underlying lawsuits . . . do not conclusively foreclose that facts adduced a trial may show DP Engineering also provided non-professional services, which would be covered under the policy.” Hartford Casualty Ins. Co. v. DP Engineering LLC, No. 15-10443 (June 29, 2016).

No insurance coverage for ecstasy overdose

rave pictureRonald Crose, an overly enthusiastic raver, took ecstasy and suffered a stroke not long after. A suit on his health insurance policy followed; at issue was an exclusion for “[l]oss due to being . . . under the influence of any narcotic.” The Fifth Circuit agreed that ecstasy was a “narcotic” within the meaning of the exclusion, rejecting as overly technical the argument that “narcotic” refers only to “drugs derived from a plant” (as opposed to a “hallucinogen” such as ectasy). The Court went on to find that under applicable Texas law, “due to” required more than “but for” causation, but did not require proof that the narcotic was the sole cause of injury. Crose v. Humana Ins. Co., No. 15-50559 (May 23, 2016).

Prompt notice, please.

PlazaHotel-e1358970876918In July 2009, hail damaged the then-dormant Dallas Plaza Hotel (right), owned by Hamilton Properties. Hamilton inspected the property in November 2010, emailed an insurance agent in February 2011, and filed a claim in October 2011.  The Fifth Circuit agreed that Hamilton had failed to give reasonably prompt notice, noting that it had no explanation for the long delay, and that while the insurer had been able to investigate the claim: “It is undisputed that because of Hamilton’s delay, AIC lost access to critical evidence, including the condition of the twelfth floor before and after the July hailstorm and up until the end of the coverage period.” Hamilton Properties, Inc v. American Ins. Co., No. 15-10382 (April 14, 2016, unpublished).