A Reminder of Why Insurance Companies Matter
Its entirely politically incorrect in 2015, and rightfully so, to ever equate litigation (or football, or anything else) to war, but that doesn’t change the fact that there are historical lessons to be learned from military history and wonderful allusions and metaphors to be drawn from it. See, for instance, my early article on excessive fee litigation under ERISA, which predicted that early defense rulings would eventually give way to favorable plaintiff rulings; to capture that idea of fortune shifting from one side to the other, I borrowed, for the article’s title, the American Civil War concept of the high water mark, which was the furthest point north that the Confederacy advanced into Pennsylvania before the tide turned on the Confederacy once and for all.
This morning, again, something about litigation drew me back, for a historical reference, to the Civil War, namely to the battle of the Wilderness, where soldiers fought among such dense forests that they effectively could not see the forest for the trees, in a nearly literal sense. Those of us who litigate insurance related disputes on a regular basis often likewise get lost in the trees, focused on the specific details of whether a particular claim is covered or not, and whether an insurer did the right thing (or acted in bad faith, to use the legal concept) in a particular situation.
However, the picture of the insurance industry, from 30,000 feet and looking at the forest as a whole, is brighter than that which a narrower focus on the specifics of an individual claim would otherwise paint. Eamonn Freeman, Managing Director of an insurance company based in Ireland, has created an interactive presentation of the world’s largest disasters, and the scale of the insurance payments arising from them. As you flip through it, just think how much worse the suffering from these catastrophes would have been without insurance companies, which is the most interesting lesson, I think, that you can take from the presentation.
In Deepwater Now: Texas Supreme Court Weighs in on Additional Insured Issues
I absolutely love this story on the Fifth Circuit asking the Texas Supreme Court to consider the scope of insurance coverage for claims arising out of the Deepwater Horizon oil spill loss; the case itself is fascinating as well. The reason is that insurance coverage law is an odd little area, in that massive numbers of decisions in that area are issued each year, and yet most do little more than move the chains a little bit in terms of refining or redefining the law in this area. This point is well-illustrated, for those of you who like support for a proposition, by Randy Maniloff’s on-going series of excellent coverage newsletters, aptly titled Coverage Opinions, which details the continuing flow of judicial decisions in this area.
At the same time, though, the history of insurance coverage law is written in big letters, by the big dollar cases that bring out the best lawyers and arguments that the industry and the policyholder bar have to offer; it is these cases that drive the development of the case law in new directions, and often rewrite the framework in which insurance coverage disputes are analyzed and decided for the next few decades. It was the big money exposures of asbestos and Superfund – issues now so old that they could have been referenced in a retro-movie like Argo, in the same way it featured rotary phones to add period authenticity - that gave rise to much of the case law that currently governs most disputes over trigger and allocation. Likewise, the issues at the heart of the Deepwater Horizon coverage dispute are additional insured and coverage for contractual indemnity obligations that have been floating around insurance coverage law for the entire length of my career, with often inconsistent results; a major decision in a high profile case like Deepwater Horizon is almost certain to reframe those discussions for many years going forward.
At the Intersection of Insurance and Plan Fiduciaries
Well, given the title of this blog, I couldn’t exactly let this decision pass unnoticed. In this decision from the Court of Appeals of New York, Federal Insurance Company v. IBM, the Court denied insurance coverage for IBM under an excess fiduciary liability (apparently) policy, for a settlement by IBM of a claim that amendments to benefit plans in the 1990s violated ERISA. The Court, in short, found that the claim did not invoke IBM’s status as a fiduciary under ERISA, essentially because it involved settlor, rather than fiduciary, functions. The Court applied standard rules of policy interpretation, under which insurance policy language must be given a reasonable construction under the circumstances, to conclude that policy language that applied to claims against a fiduciary involving ERISA meant claims where the insured qualified as a fiduciary under that statute, and did not, contrary to IBM’s arguments, involve any broader meaning of the word fiduciary.
Three points about the case interested me, which I thought I would mention. The first is the case’s status as an exemplar of a phenomenon of insurance work that I have frequently mentioned in the past, which is that all major litigation disputes end up in court twice: the first time as against the insured, and the next time as against the insurer, involving the question of whether that first dispute is covered under the insurance policies held by that insured.
The second is that the case illustrates one of the most important aspects of another theme of this blog, which is the importance of what I have come here to call defensive plan building, which is a fancy way of saying developing benefit plans and affiliated structures that protect plan sponsors and fiduciaries from liability. Having liability insurance in place to protect them from the costs and potential liabilities of litigation is crucial. While in this case IBM can easily afford the uncovered exposure, this will not be the case for the vast majority of plan sponsors. Careful attention to the scope of, and holes within, insurance coverage for benefit plan operations is crucially important.
And finally, the humorous aspect of the decision is the third item, consisting of IBM being put in the position, to seek coverage, of having to argue for a broad definition of fiduciary in the context of a plan dispute. As we know from the controversy over the Department of Labor’s recent attempt to expand the definition of fiduciary under ERISA to catch more fish, most entities run from the label of fiduciary like a groom from a shotgun wedding.
We Take Requests: More on Excess Insurance
Permalink | A loyal blog reader wrote in recently noting a glaring omission of this blog, notably the absence of a subcategory heading over on the left hand side of the blog collecting case law and comments on excess insurance issues. I have added the menu option over there, so readers can find excess cases easily. And to get the ball rolling, I have relocated one of my favorite insurance related blog posts from the past few months, discussing the obligations - or lack thereof- of excess carriers to follow the settlement decisions of underlying primary carriers, over to that new category heading. You can find it there now.
But as a grand opening special, I also thought I would note today this decision out of the United States District Court for the District of Rhode Island discussing a range of issues involving both primary and excess coverage for that golden oldie of insurance coverage law, environmental clean up. The issue that was most interesting to me in the opinion, as it has the most transferability to other types of cases, has to do with when an excess carrier’s defense obligations kick in. The case presented the old chestnut of when an excess carrier, whose policy technically does not attach - or come into play - on a loss until the policies underneath it have been exhausted, begins to have a defense obligation with regard to the claim at issue. The court acknowledged the general rule, relied upon by the excess insurer to try to avoid a defense obligation, that the excess carrier cannot have an obligation to contribute to the defense until the loss exceeds the primary coverage. However, the court manipulated that principle to tack a current defense obligation onto the excess carrier even though the primary policy underneath it had not yet been exhausted by finding that the excess carrier’s defense obligation was triggered without regard to whether or not the underlying primary policy had already paid out its full policy in defense costs, so long as the insured’s incurred defense costs already exceeded the amount of the primary policy. Its an interesting result to me, because the biggest issue, in my book, when it comes to excess policies is the tricky interchange of how and when obligations move out of the primary policy and onto the excess carrier. This case is a neat example of that.
The case is Emhart v. Home Insurance, and you can find it here.
Bad Faith Failure to Settle and the Obligations of Excess Carriers
Permalink | I wanted to return for a moment to a decision from the Massachusetts Supreme Judicial Court from earlier this month, Allmerica Financial Corporation v. Certain Underwriters at Lloyds' London, in which the court held that an excess carrier that had issued a follow form policy to an insured was not bound by or required to follow the settlement decisions of the insured's primary carrier, to whose policy the excess carrier's policy followed form. For those of you who may not be familiar with follow form policies, they are excess policies that incorporate - or borrow or "follow form" to - the same terms and exclusions as are contained in the primary policy issued to the mutual insured of both the excess carrier and the primary carrier. There's nothing very surprising in this holding, and anyone knowledgeable about the practices of the insurance industry since the time of, oh, say the end of the civil war, would know that excess carriers who have issued following form policies do not abdicate to the primary insurer the right to decide whether to spend the excess carrier's money as part of a settlement. So nothing too surprising in the court's opinion, to that extent.
But what might be surprising to some or interesting to others is the fact that, while the law may well be that excess carriers are not bound by the settlement decisions of underlying primary carriers, they may well be exposed to significant bad faith liability, in particular under Massachusetts' unfair trade practices statute, if they refuse to join in on such a settlement. As a general rule in Massachusetts, by statute insurers are obligated to agree to a reasonable settlement of a claim and, by statute, can be hit with multiple damage awards if they fail to do so. Now, think about it, and play out the scenario in which the primary carrier elects to settle, even if the amount will exceed the limits of the primary policy and require some payment by the excess carrier. Presumably, the primary carrier is doing so because settlement on those terms is reasonable. Well then, what about the excess carrier? If it refuses to go along, has it committed a breach of the obligation to reach a reasonable settlement by refusing to participate in the settlement reached by the primary carrier, which was premised on the participation of the excess carrier in the settlement?
There are a lot of ins and outs to this, and I would have to write a full blown law review article here to address them all. But for now, my point is only this. It is one thing for the state's highest court to say that an excess carrier is not obligated by the terms of a follow form policy to join in a settlement reached by the primary carrier, but it is an entirely different question whether other sources of legal obligation, such as the state's unfair trade practices act, impose an obligation to the contrary. I would argue that they don't and shouldn't, but outside of the digital confines of this blog, I certainly don't get the last word on this subject.
It should be noted, however, that the Supreme Judicial Court did nod at this issue in its opinion, and in so doing suggested both that excess carriers have a great deal of leeway in deciding whether to settle a case where the loss will be in excess of the primary policy's limits and that it should not be easy to show that an excess carrier committed bad faith by declining to participate in an arguably reasonable settlement to which the primary carrier was willing to commit. The Court, in a footnote, explained that the question of the excess carrier's bad faith obligations was not at issue, but cited Hartford Casualty Insurance Company v. New Hampshire Insurance Company, a 1994 decision, as reflecting current Massachusetts law on the duty an excess carrier “owes to its insured not to act negligently in refusing to settle a case.” Indeed, the Court then went one step further and, in a different footnote, expressly declared that the Court’s conclusion in Allmerica with regard to the follow form obligations of excess carriers with regard to settlements “should not be construed to limit the settlement responsibilities of insurers articulated in” Hartford Casualty.
The Hartford Casualty case set forth a very high standard for imposing bad faith liability on a carrier that fails to settle a case, finding that there is only a bad faith failure to settle if no reasonable insurer at all would have failed to settle the case on the terms presented to it. That's a pretty high standard. I would argue, given the Supreme Judicial Court's deliberate citation of that case in two footnotes in a case, Allmerica, that didn't require the Court to even address issues of bad faith failure to settle, that the Court was reinforcing that bad faith failure to settle claims can only be maintained against excess carriers - even ones that issued follow form policies and even where the primary carrier wants to settle - if the very high bar set forth in the 1994 Hartford Casualty case is met.