Hunton Insurance Recovery Blog

The Texas Supreme Court has reversed a lower appellate court decision and found that insurers of Anadarko Petroleum Corp. cannot use their own policy wording to avoid coverage for more than $100 million of Anadarko’s defense costs stemming from the 2010 Deepwater Horizon disaster.  Law360 interviewed Hunton’s Sergio F. Oehninger about the substantial impact the decision will have for policyholders in Texas and elsewhere.  Oehninger explained how the decision corrects fundamental errors by the lower court in the construction of insurance policies and how it illustrates the proper way to construe words chosen by the insurer that operate to limit or preclude coverage.  In the Anadarko matter, the London market policy contained a “joint venture” provision that capped joint venture liabilities at $37.5 million.  The insures applied the cap after paying that amount to Anadarko.  The Texas Supreme Court rejected the insurers’ argument and the decision of the court below, finding that the joint venture provision applies only to “liabilities” – that is, amounts Anadarko becomes legally obligated to pay to a third party.  Defense costs, in contrast, are not amounts paid to a third party and, thus, are not “liabilities” within the context of the joint venture provision.  The Court also drew on other policy provisions to support the distinction, including provisions that specifically refer separately to “liabilities” and “defense expenses.”  “The Texas Supreme Court’s reversal of the appellate panel’s ruling serves as a clear pronouncement of both insurance policy construction rules and proper appellate review in Texas,” Oehninger said.  “In this regard, the Supreme Court’s opinion serves to ‘right the ship’ and bring Texas case law back in line with precedent.”

Summary

Reversing a Texas Court of Appeals decision that allowed Anadarko’s Lloyd’s of London excess insurers to escape coverage for more than $100 million in defense costs incurred in connection with claims from the Deepwater Horizon well blowout, the Supreme Court of Texas held that the insurers’ obligations to pay defense costs under an “energy package” liability policy are not capped by a joint venture coverage limit for “liability” insured.  Anadarko Petroleum Corp. et al. v. Houston Casualty Co. et al., No. 16-1013 (Tex. Jan. 25, 2019).

As reported yesterday in Business Insurance, Lloyd’s of London underwriters have agreed to insure digital currency storage company, Kingdom Trust Co., against theft and destruction of cryptocurrency assets.  The cover comes after almost a decade-long search by Kingdom Trust for insurance to cover its crypto-assets.  According to the BI, Kingdom Trust sees the availability of insurance as a key factor in bringing institutional investors into the marketplace by dispelling concerns about lack of traditional safeguards in the emerging crypto-asset space.

The California Court of Appeal has affirmed that Lloyd’s of London and other insurers cannot escape coverage for $132.5 million in settlements arising from the 2008 Chatsworth train crash, in which 25 individuals were killed and more than 130 injured. In Those Certain Underwriters at Lloyd’s, London v. Connex Railroad LLC, No. B276373, 2018 WL 1871278 (Cal. App. 2d Dist. Apr. 19, 2018), the Second District Court of Appeal affirmed the Los Angeles Superior Court’s ruling, discussed in our November 9, 2015 blog post, that the insurers were obligated to indemnify Connex Railroad for the settlements.

Kanye West’s touring company, Very Good Touring, Inc. (Very Good), and its insurer, Lloyd’s of London (Lloyd’s), have resolved their dispute over event cancellation coverage for West’s “Life of Pablo” Tour, which experienced canceled shows due to West’s health condition. The settlement resolved all claims and counterclaims.

In a prior blog post, we discussed Kanye West's touring company's, Very Good Touring, Inc. ("Very Good"), lawsuit against its insurer, Lloyd's of London ("Lloyd's"), for withholding almost $10 million in coverage after the cancellation of shows on West's "Life of Pablo" Tour. On Tuesday, August 29, 2017, Lloyd's responded by counterclaiming against Very Good and West, alleging that the loss was due to their failure to abide by policy conditions.

Hollywood is not off to a great start for the month of August. Kanye West's touring company, Very Good Touring, Inc. ("Very Good"), sued insurance company Lloyd's of London ("Lloyd's") on Tuesday in California federal court for withholding almost $10 million in coverage for the shows on West's "Life of Pablo" Tour that were canceled due to West's health condition. In Very Good Touring, Inc. v. Cathedral Syndicate, et al., No. 2:17-cv-05693 (C.D. Cal. filed Aug. 1, 2017), the touring company characterized Lloyd's delay in providing a coverage opinion as "emblematic of a broader modus operandi of the insurers of never-ending post-claim underwriting where the insurers hunt for some contrived excuse not to pay."

Last month's post summarized key findings from the recent emerging risk report issued by Lloyd's of London and risk-modeling firm Cyence, highlighting several key findings about cyber risks and the cyber insurance market more generally. In this post, we provide a closer look at some of the more significant cyber coverage issues discussed in the report, a full copy of which can be found here.

As discussed in prior posts, recent cyber events, such as the “Wanna Cry” ransomware attack, serve as important reminders to policyholders that cyber insurance should remain a priority for any business facing potential exposure from a cyber event. A recent report further underscores the potential impact of a major global cyber event, estimating that the resulting loss could exceed $53 billion worldwide, on par with the damage caused by catastrophic natural disasters such as hurricanes.

Earlier this week, Lloyd’s of London issued an emerging risk report, co-authored with risk-modeling firm Cyence, that examines several plausible cyber-risk scenarios to help insurers and policyholders understand cyber liability and risk exposures in an area that the report concludes is relatively underdeveloped compared with other classes of insurance.

Lemonade, a new insurance start-up that intends to offer peer-to-peer insurance in the US, received a recent boost when it announced that several well-known insurers, including Lloyd’s of London underwriters and Berkshire Hathaway’s National Indemnity Company, have signed up to provide reinsurance backing to the new venture.