INSURANCE LAW ALERTJULY/AUGUST 2014T

his Alert discusses recent decisions relating to excess coverage, pro rata allocation andlate notice under a claims-made policy. In addition, we report on rulings addressing

the number of occurrences and the calculation of “actual cash value” under a fire policy.
Finally, we discuss a decision holding that a non-signatory to a reinsurance contract is not
required to participate in arbitration and three noteworthy discovery-related decisions.

• Fifth Circuit Rules That Umbrella Policies May Be Triggered Even When Underlying
Insurance Is Exhausted by Claims Not Covered by the Umbrella Policies

The Fifth Circuit ruled that excess policy language did not require underlying coverage to be exhausted by claims
that are covered by the excess policies themselves. Indemnity Ins. Co. of N. America v. W&T Offshore, Inc., 2014 WL
2853586 (5th Cir. June 23, 2014). (click here for full article)• Indiana Court of Appeals Applies Pro Rata Allocation to Continuous Bodily Injury
ClaimsThe Indiana Court of Appeals ruled that exposure to toxic substances causing bodily injury should be allocated pro
rata among multiple policies. Thomson Inc. v. Insurance Co. of N. America, 2014 WL 2772834 (Ind. Ct. App. June 19, 2014).
(click here for full article)• Failure to Provide Notice “As Soon As Practicable” Bars Claims-Made Coverage,
Says New Jersey Appellate Court

A New Jersey appellate court ruled that there is no coverage under a claims-made policy where a policyholder failed
to provide notice of a complaint “as soon as practicable,” even where the policyholder provided the notice within thepolicy period. Templo Fuente De Vida Corp. v. National Union Fire Ins. Co., No. 2014 WL 2533810 (N.J. App. Div.
June 6, 2014). (click here for full article)• Non-Signatory to Reinsurance Contract Not Required to Participate in Arbitration,
Says Illinois Court

An Illinois federal district court refused to compel a non-signatory to a reinsurance contract to join an ongoingarbitration between the contracting parties. Transatlantic Reinsurance Co. v. National Indem. Co., 2014 WL 2862280 (N.D.
Ill. June 24, 2014). (click here for full article)• Eighth Circuit Rules That Two Deaths Arose From One Occurrence
The Eighth Circuit held that the drowning deaths of two people in the same pool arose from one occurrence forpurposes of general liability coverage. Fellowship of Christian Athletes v. AXIS Ins. Co., 2014 WL 3377796(8th Cir. July 11, 2014). (click here for full article)
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INSURANCE LAW ALERTJULY/AUGUST 2014

• Sixth Circuit Rules That Term “Obsolescence” in “Actual Cash Value” Provision
Does Not Include Decrease in Market ValueThe Sixth Circuit ruled that “economic obsolescence,” as measured by a property’s decreased market value, should
not be considered when calculating the Actual Cash Value of property damage under a fire loss policy. Whitehouse
Condo. Grp., LLC v. Cincinnati Ins. Co., 2014 WL 2743480 (6th Cir. June 17, 2014).
(click here for full article)• New York Commercial Division Adopts Rule to Reduce Privilege Log Expenses
New York’s Chief Administrative Judge adopted Rule 11-b of the Rules of Practice for the Commercial Division
establishing a preference for parties to use “categorical designations” in lieu of traditional document-based logs.
(click here for full article)• D.C. Court of Appeals Clarifies Scope of Attorney-Client Privilege With Respect toInternal Investigation Documents

The Court of Appeals for the District of Columbia ruled that a company’s internal investigation documents areprotected by attorney-client privilege so long as obtaining or providing legal advice was one the of the significant
purposes of the internal investigation. In re Kellogg Brown & Root, Inc., 2014 WL 2895939 (D.C. Cir. June 27, 2014).
(click here for full article)• Florida Appellate Court Rules That Claim Files Do Not Lose Qualified Work-ProductProtection at Termination of ClaimA Florida appellate court ruled that an insurer’s claim file did not lose qualified work-product protection when theclaim was closed with no litigation having materialized. State Farm Florida Ins. Co. v. Marascuillo, 2014 WL 2968831(Fla. Ct. App. July 3, 2014).
(click here for full article)• Minnesota Court Addresses Discoverability of Reinsurance Communications andLoss Reserve Information

A Minnesota federal district court affirmed a magistrate judge’s order compelling the production of reinsurance
communications and loss reserve information. National Union Fire Ins. Co. v. Donaldson Co., Inc., 2014 WL 2865900 (D.
Minn. June 24, 2014).
(click here for full article)

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INSURANCE LAW ALERTJULY/AUGUST 2014

Excess Alert:

provision or the definition of Retained Limit specifies
how the $161 million ‘limit[ ] of the underlying policies’
must be reached or states that the Retained Limit
refers exclusively to sums covered by the Umbrella
Policy.” The court contrasted the policy at issue with an
exhaustion provision from another case that explicitly
provided that underlying insurance would not be
considered exhausted unless it was exhausted byclaims covered by the excess policy.

Fifth Circuit Rules That Umbrella
Policies May Be Triggered Even
When Underlying Insurance Is
Exhausted by Claims Not Coveredby the Umbrella Policies
Reversing a Texas district court’s summary
judgment decision in favor of excess insurers, theFifth Circuit ruled that excess policy language did not
require underlying coverage to be exhausted by claims
that are covered by the excess policies themselves.
Indemnity Ins. Co. of N. America v. W&T Offshore, Inc.,
2014 WL 2853586 (5th Cir. June 23, 2014).
W&T, an energy exploration and development
company, purchased certain primary insurance policies
and several umbrella policies. While the primaryenergy policies covered W&T’s own property damageand extra expenses, the umbrella policies covered only
third-party claims against W&T. When the primarypolicies were exhausted by more than $150 million in
extra expenses W&T incurred from Hurricane Ike, theumbrella insurers sought a declaration of no liability,
arguing that their policies took effect only if W&T’s
primary insurance became exhausted by claims that
also were covered by the umbrella policies (specifically,claims by third parties). A Texas district court granted
the excess insurers’ summary judgment motion,
holding that the primary insurance only can become
exhausted for purposes of accessing the umbrella
coverage by claims covered by the umbrella policies.
The Fifth Circuit reversed.
The Coverage Provision in each umbrella policy
obligated the insurers to pay sums in excess of the
Retained Limit, defined as the greater of the amountof underlying insurance or the amount of self-insured
retention not covered by the underlying insurance. The
court noted that “[n]othing in the text of the Coverage

The court also rejected the insurers’ reliance on aprovision that referred to exhaustion “by payment of
one or more claims that would be insured by our Policy.”
The court reasoned that when read in conjunction withother policy provisions, this clause did not govern
the circumstances under which the Retained Limit
is depleted, but rather described the excess insurers’
additional obligations if the underlying policies were
exhausted by payment of claims that were also covered

This edition of the Insurance Law Alert
was prepared by Michael D. Kibler(mkibler@stblaw.com/310-407-7515)
andCraig S. Waldman (cwaldman@stblaw.
com/212-455-2881) with contributions by
Karen Cestari (kcestari@stblaw.com).

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JULY/AUGUST 2014

under the excess policies.
The decision turns on specific policy language anddoes not create a blanket rule of law concerning howumbrella coverage is triggered by the exhaustion ofunderlying coverage.

Allocation Alert:

Indiana Court of Appeals Applies
Pro Rata Allocation to Continuous
Bodily Injury Claims
The Indiana Court of Appeals reversed a lower
court’s application of an “all sums” allocation
methodology, holding that exposure to toxic substances
causing bodily injury should instead be allocated pro
rata among multiple policies. Thomson Inc. v. Insurance
Co. of N. America, 2014 WL 2772834 (Ind. Ct. App. June
19, 2014).
The coverage dispute arose out of a class action filed
by Taiwanese workers alleging bodily injury resulting
from exposure to toxins during the course of factory
work and through drinking and use of contaminatedwater at factory-owned dormitories. Coverage litigation
between the company and its primary and umbrella
insurers has involved myriad issues, including, among
others, trigger, the applicability of various policy
exclusions, late notice, the known loss doctrine andthe payment of self-insured retentions. Of particularsignificance are two rulings relating to allocation andthe number of occurrences.
An Indiana trial court had ruled that under the“all sums” regime adopted in Allstate Ins. Co. v. Dana,
759 N.E.2d 1049 (Ind. 2001), each triggered policy
could be deemed responsible for the entire amountof indemnity due, up to applicable policy limits. The
Indiana Court of Appeals reversed, finding Dana
inapposite to the specific policy language at issue.
The court distinguished Dana on the grounds that thepolicy language at issue in Dana included the phrase“all sums” in reference to indemnity obligations. The
policies at issue, however, contained the phrase “thosesums” and also conditioned coverage on injury or
damage that occurs “during the policy period.” Thecourt reasoned that this distinction was dispositive
inasmuch as the language before it unambiguously
required losses to be allocated on a pro rata basis
among triggered policies. The court remanded anddirected the trial court to use its discretion in selecting
a pro rata apportionment method, noting that options
included fact-driven allocation based on injuries, timeon the risk, or a “years and limits” approach.
The court also addressed a number-of-occurrences
dispute, ruling that the thousands of bodily injury
claims constituted two occurrences arising from thetwo different contexts by which workers were exposed
to toxins (at the factory while performing their workand at the dormitories where they lived). In reaching
its two-occurrence decision, the court rejected thepolicyholder’s argument that each individual claim
constituted a separate occurrence due to differences inthe timing and method of exposure and the different
injuries caused by the exposure. The court explainedthat the two-occurrence finding was supported bya cause-oriented approach and was based on policy
language defining an occurrence as “continuous orrepeated exposure to substantially the same general
harmful conditions.”
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Late Notice Alert:

National Union notice. The court also held that
National Union was not required to establish prejudicein order to deny coverage based on late notice, relying
on New Jersey Supreme Court precedent requiring ashowing of prejudice to support a late notice defense
under occurrence-based policies and not claims-madepolicies.

Failure to Provide Notice “As SoonAs Practicable” Bars Claims-MadeCoverage, Says New Jersey
Appellate Court
A New Jersey appellate court ruled that there
is no coverage under a claims-made policy where apolicyholder failed to provide notice of a complaint“as soon as practicable,” even where the policyholder
provided the notice within the policy period and where
there was no showing of prejudice to the insurer. Templo
Fuente De Vida Corp. v. National Union Fire Ins. Co., 2014
WL 2533810 (N.J. App. Div. June 6, 2014).
National Union issued a one-year policy to First
Independent that covered losses for claims made andreported during the policy period. The notice provisionstated that “as a condition precedent to the obligations of
the Insurer,” the policyholder must “give written noticeto the Insurer of any Claim made against an Insured
as soon as practicable and either: (1) anytime during
the Policy Period … or (2) within [thirty] days after theend of the Policy Period.” The appellate court held that
this provision imposed a two-fold notice requirement:that notice be provided during the policy period andthat the notice be provided as soon as practicable. First
Independent failed to meet the latter requirement
by waiting approximately six months before giving

Arbitration Alert:

Non-Signatory to Reinsurance
Contract Not Required toParticipate in Arbitration,
Says Illinois Court
An Illinois federal district court refused to compel
a non-signatory to a reinsurance contract to join an
ongoing arbitration between the contracting parties.
Transatlantic Reinsurance Co. v. National Indem. Co., 2014
WL 2862280 (N.D. Ill. June 24, 2014).
Continental and Transatlantic Reinsurance
entered into an excess of loss reinsurance agreementthat required all disputes between the parties to beresolved by arbitration. Continental later entered into
two separate transactions with National Indemnity
Company (“NICO”): (1) a Loss Portfolio Transfer(“LPT Agreement”), whereby Continental purchased
reinsurance from NICO for asbestos and environmental
risks; and (2) an Administrative Service Agreement(“ASA Agreement”), providing for the administrationof reinsurance recoveries by Resolute, an affiliate
of NICO. When a dispute between Continental andTransatlantic Reinsurance arose as to reinsurance
recoveries,
Continental
initiated
arbitration.
Approximately a year after arbitration commenced,
Transatlantic Reinsurance demanded that NICO join
the arbitration, and when NICO refused, filed a petition
seeking to compel NICO’s participation.
In denying Transatlantic’s petition to compel
arbitration, the court first cited the general rule that5

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JULY/AUGUST 2014a party may not be compelled to arbitrate absent anagreement to do so. In certain circumstances, the court
noted, a non-signatory to an arbitration agreement canbe compelled to arbitrate under theories of assumption,agency, estoppel, veil piercing or incorporation byreference. The court concluded that none of these
theories applied.
First, the court rejected Transatlantic Reinsurance’s
argument that the reinsurance agreement was
sufficiently broad to bind NICO as a non-signatory.
Although the arbitration clause governed “any dispute”
arising out of the transaction, it also specified thatthe dispute must “arise between the COMPANY andthe REINSURERS.” Second, the court held that NICO
did not expressly or implicitly assume the obligation
to arbitrate by entering into separate reinsurance
agreements with Continental. Third, the court
concluded that the reinsurance agreement was
not incorporated by reference into the LPT or ASA
Agreements. In this context, the court emphasizedthat the mere reference to Continental’s reinsurance
agreements in the LPT and ASA Agreements (i.e.,language stating that NICO agreed to provide
reinsurance collection services “in accordance withthe contractual terms of the applicable Third Party
Reinsurance Agreements”) was insufficient toestablish incorporation by reference. Rather, the court
held that there must be an express or unambiguous

intent to incorporate an arbitration clause into anotheragreement. Finally, the court held that NICO was
not estopped from disclaiming arbitration because
estoppel applies only where a non-signatory seeksa direct benefit from the contract containing thearbitration clause, and Transatlantic failed to establishthat NICO had sought a direct benefit under thereinsurance contract between Transatlantic andContinental.
A New York federal district court similarly denied
a petition to compel NICO to arbitrate in a related case.
Transatlantic Reinsurance Co. v. National Indemnity Co.,
No. 14 Civ. 2109 (S.D.N.Y. July 22, 2014).

Number of Occurrences
Alert:

Eighth Circuit Rules That Two
Deaths Arose From One Occurrence
Affirming a Missouri district court decision,
the Eighth Circuit held that the near simultaneousdrowning deaths of two people in the same pool arosefrom one occurrence for purposes of general liability
coverage. Fellowship of Christian Athletes v. AXIS Ins. Co.,2014 WL 3377796 (8th Cir. July 11, 2014).

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Property Insurance Alert:

The families of two decedents sued a camp for
negligence and loss of consortium after two children
drowned at a pool party. The camp, in turn, sued its
general liability insurers seeking a determination
as to whether the claims constituted one or two
occurrences. The policy defined an “occurrence” as “anaccident, including continuous or repeated exposure
to substantially the same general harmful conditions.”
The district court granted Axis’s summary judgment
motion, finding that the drownings were caused by
one occurrence. The Eighth Circuit affirmed.

Sixth Circuit Rules That the Term
“Obsolescence” in “Actual Cash
Value” Provision Does Not Include
Decrease in Market ValueThe Sixth Circuit affirmed a district court summary
judgment order, holding that “economic obsolescence,”
as measured by a property’s decreased market value,
should not be considered when calculating the ActualCash Value (“ACV”) of property damage under a fireloss policy. Whitehouse Condo. Grp., LLC v. Cincinnati Ins.
Co., 2014 WL 2743480 (6th Cir. June 17, 2014).
Cincinnati Insurance’s fire loss policy covered
the destruction of a condominium building owned
by Whitehouse. The parties disputed the amount ofcoverage due. The policy required Cincinnati Insurance
to pay the ACV of the building at the time of loss. ACV
is defined as the “replacement cost less a deduction thatreflects depreciation, age, condition and obsolescence.”
Cincinnati Insurance argued that the undefined term
“obsolescence” includes consideration of “economic
obsolescence,” which refers to a decrease in market
value prior to the loss. Whitehouse argued that theterm refers only to “functional obsolescence,” from a

The Eighth Circuit, interpreting Missouri law,applied a cause-oriented approach, focusing onwhether a single act “is considered the accident fromwhich all claims flow.” The court reasoned that thecamp’s alleged negligence in allowing the boys—bothof whom were known to be non-swimmers—to swim
and in training the supervising counselors was one
such single act. The court declined to adopt a “time andspace test” which would require the accidents to occur“simultaneously or almost simultaneously,” noting that
Missouri law has not endorsed such an approach. The
court also refused to find two occurrences based on
the fact that each victim was supervised by a different
counselor, explaining that the cause test focuses on the
conduct of the insured camp. In any event, the court
noted that the record established that the two victims
were in the pool during the same one-hour period andwere discovered at the same time.
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loss in value due to something inherent in the building
itself, like outdated technology or building materials.
A Michigan district court agreed with Whitehouseand granted summary judgment. The Sixth Circuit
affirmed.
The Sixth Circuit held that the term obsolescence,as “commonly understood,” does not include a decline
in market value. The court explained that “economic
obsolescence” is a specialized term of art, and that
under Michigan law, contract terms should be afforded
their commonly-used meaning rather than specialized
definitions. The court stated that “an insured would
be unlikely to think she was paying for insurance that
accounted for a reduction in market value where theinsurance contract did not specifically list it.”for parties to use “categorical designations,” whereappropriate, in lieu of traditional document-based logs,
which have become costly and time-consuming inmany complex litigation matters. Parties are directed
to meet and confer at the outset of litigation to discuss
the scope of privilege review and the use of proposed
privilege categories. Although the rule allows litigants
to demand a document-by-document log, cost-shifting
penalties may be imposed against a party making
such request. The rule also requires the identificationof a “Responsible Attorney” with supervisory
responsibility over the privilege review process.
Although the rule will not likely eliminate the needfor document-specific privilege logs, it is expected
to lessen the burden associated with privilege log
production by reducing the categories of documents
for which such specificity is required. The rule coexists with, rather than replaces, New York CPLR
3122 (governing the exchange of privilege logs), andbecomes effective September 2, 2014.

Discovery Alerts:

New York Commercial Division
Adopts Rule to Reduce Privilege
Log Expenses

D.C. Court of Appeals Clarifies
Scope of Attorney-Client
Privilege With Respect to Internal
Investigation Documents

Last month, New York’s Chief Administrative
Judge adopted new Rule 11-b of the Rules of Practicefor the Commercial Division, with a goal of reducing
the expense and litigation associated with the creationof privilege logs. The rule establishes a preference

The Court of Appeals for the District of Columbia
ruled that a company’s internal investigation
documents are protected by attorney-client privilege
so long as “obtaining or providing legal advice was
one the of the significant purposes of the internal
investigation … even if there were also other purposes
for the investigation and even if the investigation was
mandated by regulation.” In re Kellogg Brown & Root,
Inc., 2014 WL 2895939 (D.C. Cir. June 27, 2014).
The Court of Appeals reasoned that the privileged
status of internal investigation documents is governed
by Upjohn Co. v. United States, 449 U.S. 383 (1981),
which held that attorney-client privilege applies to8

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JULY/AUGUST 2014

Florida Appellate Court Rules That
Claim Files Do Not Lose Qualified
Work-Product Protection at
Termination of Claimcommunications between a company’s employees
and its counsel. The court explained that Upjohn was
controlling, notwithstanding that the investigation
at issue was conducted without input from outside
counsel by non-attorneys acting at the direction of
the in-house legal department. The court rejected
the notion that privilege does not attach where
the internal investigation is undertaken to comply
with administrative or other mandated regulations
rather than traditional litigation. The court similarly
dismissed the argument that privilege does not apply
where interviewed employees were not expressly
informed that the purpose of the interview was toassist the company in obtaining legal advice.
The ruling is significant in several respects. First,
it explicitly rejects a stringent “but for” test, underwhich communications are deemed privileged only iftheir sole purpose is to obtain or provide legal advice.
Rather, the ruling makes clear that so long as one of thesignificant purposes of the investigation is to obtain orprovide legal advice, the privilege applies. Second, theruling illustrates that the participation of non-attorneys
in internal investigation communications does not
eliminate privilege protection. Rather, under Kellogg,
the critical issue is whether non-attorneys are acting as
agents for, or at the direction of counsel in connection
with the provision of legal advice to the company.

A Florida appellate court ruled that a trial court
erred in concluding that an insurer’s claim file lost
qualified work-product protection when the claim wasclosed with no litigation having materialized. State

Farm Florida Ins. Co. v. Marascuillo, 2014 WL 2968831(Fla. Ct. App. July 3, 2014).
State Farm issued payment to homeowners in2004 in connection with a sinkhole claim. In 2010, thehomeowners reported another sinkhole claim to State
Farm, which the insurer denied based on an expert
inspection which concluded that the damage was9www.simpsonthacher.com

JULY/AUGUST 2014

caused by improper remediation of the 2004 sinkholerather than new sinkhole activity. The homeowners
sued State Farm, and during the course of discovery
sought the production of documents pertaining to
the 2004 claim file. State Farm moved for a protective
order. The trial court denied the motion as to the 2004
claim file on the grounds that the 2004 claim had been
resolved. State Farm appealed.
The appellate court held that under Florida law,
the work-product doctrine protects documents createdin anticipation of litigation from disclosure, andcontinues to apply even after litigation terminates orwhere it never materializes. The court concluded thatthe homeowners may be entitled to the protected claim
file documents only upon a showing of good cause or
exceptional circumstances.

insurer’s position as to the applicability of specificpolicy language. The magistrate judge also deemed
loss reserve information relevant, explaining that suchinformation might relate to the reasonableness of theinsurer’s settlement offers. As discussed in our May
and June 2014 Alerts, other courts have refused tocompel the production of loss reserves or have ruledthat the discoverability of reserve information turns
on whether the loss reserve calculations were claimspecific or generated automatically. Here, however, thedistrict court affirmed the magistrate judge’s order onreserves primarily based on what it deemed “abundant
precedent supporting discovery of reserve informationin cases involving allegations of bad faith.”
Finally, the court affirmed the magistrate judge’s
order compelling the production of reinsurance
communications as relevant to the policyholder’s bad
faith counterclaim. Noting that discovery rulings in
the reinsurance context are split and applying adeferential standard of review to the magistrate
judge’s discovery order, the district court concluded
that the magistrate judge’s finding that reinsurance
communications were relevant to the insurer’s
knowledge and claims handling was not “contrary to
law or clearly erroneous.” As discussed in our April andMay 2014 Alerts, other courts have refused to compel
the production of reinsurance communications.

Minnesota Court Addresses
Discoverability of Reinsurance
Communications and Loss Reserve
Information
A Minnesota federal district court affirmed amagistrate judge’s order compelling the productionof reinsurance communications and loss reserve
information. National Union Fire Ins. Co. v. Donaldson Co.,
Inc., 2014 WL 2865900 (D. Minn. June 24, 2014). National
Fire and American Home initiated suit against theirpolicyholder, Donaldson, to recover certain amounts
paid to settle underlying claims arising out of alleged
manufacturing defects. Donaldson counterclaimed forbreach of the covenant of good faith and fair dealing.
Donaldson sought discovery of underwriting files,
reserves and reinsurance information. When theinsurers objected, Donaldson moved to compel.
A federal magistrate judge granted the motion,
finding that the material was relevant to theinsurer’s “formulation of their position on coverage.”In particular, the magistrate judge found that
underwriting communications were relevant to the10

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Simpson Thacher has been an international leader in the practice of insurance and reinsurance law for
more than a quarter of a century. Our insurance litigation team practices worldwide.

Barry R. Ostrager(212) 455-2655
bostrager@stblaw.com

Lynn K. Neuner(212) 455-2696
lneuner@stblaw.com

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trobinson@stblaw.com

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mgarvey@stblaw.com“Simpson is clearly the platinum standard in this space.”—Chambers USA 2014

The contents of this publication are for informational purposes only. Neither this publication nor the lawyers who authored it are rendering
legal or other professional advice or opinions on specific facts or matters, nor does the distribution of this publication to any person constitutethe establishment of an attorney-client relationship. Simpson Thacher & Bartlett LLP assumes no liability in connection with the use of thispublication. The information contained in this memorandum does not represent, and should not be regarded as, the view of any particularclient of Simpson Thacher.

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