Insurance Law Alert

June 2015

In This Issue
Eleventh Circuit Rules in Policyholder’s Favor on “Occurrence” Issue andContractual Liability Exclusion
Reversing an Alabama federal district court decision, the Eleventh Circuit ruled that faulty
workmanship constitutes a covered “occurrence” and that a contractual liability exclusion does
not bar coverage for breach of warranty claims. Penn. Nat’l Mut. Cas. Ins. Co. v. St. Catherineof Siena Parish, 2015 WL 3609353 (11th Cir. June 10, 2015). (click here for full article)“Simpson Thacher &Bartlett LLP’s expertisein coverage and reinsurance
disputes ‘is unparalleled in theinsurance space’ and places it as‘the go-to firm for significant
and complex matters.’”–Legal 500 US 2015

Missouri Court Rules That Ensuing Loss Provision Does Not Restore
Coverage for Losses Caused by Design Defect
A Missouri federal district court ruled that an ensuing loss provision does not restore coverage
because the construction-related property damage was caused entirely by an excluded event.
Performing Arts Community Improvement District v. Ace American Ins. Co., 2015 WL
3491292 (W.D. Mo. June 3, 2015). (click here for full article)

Statutory Pre-Suit Procedures for Construction Defect Claims Do Not
Trigger Duty to Defend, Says Florida Court
A Florida federal district court ruled that invoking a “notice and repair” statute does notconstitute a “suit” for purposes of triggering an insurer’s duty to defend. Altman Contractors,
Inc. v. Crum & Forster Specialty Ins. Co., 2015 WL 3539755 (S.D. Fla. June 4, 2015).
(click here for full article)

Fourth Circuit Rules That Additional Insured Coverage is Not Limited toVicarious Liability for Named Insured’s Actions
The Fourth Circuit ruled that an insurer is required to defend a real estate developer underan additional insured endorsement even though no claims were asserted against the named
insured contractor. Capital City Real Estate, LLC v. Certain Underwriters at Lloyd’s London,
2015 WL 3606861 (4th Cir. June 10, 2015). (click here for full article)

Supreme Court of New Jersey Broadly Defines “Successful Claimant”
under Fee-Shifting Statute
The Supreme Court of New Jersey ordered an insurer to pay statutory attorneys’ fees as a
“successful claimant” to a factory owner even though a jury found that the factory owner was
not entitled to recover damages in the underlying construction defect litigation. Occhifinto v.
Olivio Construction Co., LLC, 2015 WL 2095767 (N.J. May 7, 2015). (click here for full article)

Simpson Thacher & Bartlett LLP

1

New York Court Finds Reinsurance Certificates Ambiguous as to Whether
Limits Apply to Expenses
A New York federal district court ruled that a reinsurance certificate is ambiguous as towhether expenses are excluded from the reinsurance limits of liability. Utica Mutual Ins. Co. v.
R&Q Reinsurance Co., No. 6:13-CV-1332 (N.D.N.Y. June 4, 2015). (click here for full article)

Choice of Law Governed by Texas Insurance Statute Rather Than Policy’s
Choice-of-Law Provision, Says Texas Court
A federal bankruptcy court ruled that a Texas statute requires application of Texas law to an
insurance coverage dispute even though the parties expressly agreed to application of New
York law. In re: ATP Oil & Gas Corp., No. 12-36187 (S.D. Tex. Bankr. June 5, 2015).
(click here for full article)

Montana Supreme Court Endorses Notice-Prejudice Rule
The Montana Supreme Court ruled that a liability insurer must establish prejudice in order
to avoid paying defense costs and indemnity based on late notice. Atlantic Cas. Ins. Co. v.
Greytak, 2015 WL 3444507 (Mont. May 29, 2015). (click here for full article)

Newly-Enacted Texas Law Imposes Strict Requirements on Asbestos
Claimants
This month, Texas passed legislation requiring claimants in asbestos and silica personal injury
lawsuits to provide notice of any trust claims and to disclose trust claim material. H.B. 1492.
(click here for full article)2

Construction
DefectCoverage Alerts:

Eleventh Circuit Rules in
Policyholder’s Favor on“Occurrence” Issue and Contractual
Liability Exclusion
Reversing an Alabama federal district court
decision, the Eleventh Circuit ruled thatfaulty workmanship constituted a covered“occurrence” and that a contractual liability
exclusion did not bar coverage for breach of
warranty claims. Penn. Nat’l Mut. Cas. Ins.
Co. v. St. Catherine of Siena Parish, 2015 WL
3609353 (11th Cir. June 10, 2015).

court had held that the exclusion applied tobreach of implied warranty claims that aroseout of the parties’ contractual relationship.
The Eleventh Circuit reversed, finding that
under Alabama precedent, contractual
liability exclusions apply “only where theinsured agree[s] to indemnify another party”
and do not extend to breach of express or
implied warranty claims, even when they ariseout of contract. The Fifth Circuit, applying
Louisiana law, has likewise interpreted acontractual liability exclusion to apply only
where the alleged injury would not haveoccurred “but for” a breach of contract.
See May 2012 Alert.

The coverage dispute arose out of the faulty
installation of a new roof for a parish. The
contractor’s insurer defended a suit about
the faulty workmanship under a reservationof rights. After a jury entered a verdict
against the contractor, the insurer filed suit,seeking a declaration that it had no duty to
indemnify the judgment. An Alabama district
court ruled in the insurer’s favor, findingthat a contractual liability exclusion barred
coverage. The Eleventh Circuit reversed.
The Eleventh Circuit ruled that the negligent
construction claims alleged an “occurrence,”
defined as “an accident, including continuousor repeated exposure to substantially thesame general harmful conditions.” The court
explained that although faulty work itself
is not an accident or occurrence, there isan occurrence when the faulty work results
in damage to other property. On this basis
and because the faulty roof work at issue
damaged the building’s ceilings and decks,
the court found an “occurrence.” Althoughsome courts have endorsed a similar damageto-other-property approach to construction
defect coverage, others have refused to doso, emphasizing that the presence or absenceof consequential damage is irrelevant to theoccurrence question. See May, October andDecember 2013 Alerts; April 2010 Alert;
February 2011 Alert.
The Eleventh Circuit also ruled that acontractual liability exclusion that precluded
coverage for damages “by reason of theassumption of liability in a contract oragreement” did not bar coverage. The district

Missouri Court Rules That Ensuing
Loss Provision Does Not Restore
Coverage for Losses Caused by
Design DefectAn ensuing loss provision provides coverage
for a loss that occurs when an event that is
excluded from coverage causes a subsequentand distinct event that is covered. Whenseeking coverage pursuant to an ensuing loss
provision, policyholders frequently argue
that an intervening (and non-excluded) event
contributed to a loss that originated froman excluded event. In a recent decision, aMissouri federal district court rejected thisargument and ruled that that constructionrelated property damage was caused entirely
by an excluded event. Performing Arts
Community Improvement District v. Ace
American Ins. Co., 2015 WL 3491292 (W.D.
Mo. June 3, 2015).
3

The coverage dispute arose out of losses
related to defects in the design andconstruction of a parking garage. The original
design plan called for a maximum of 18
inches of fluid fill against a retaining wall, but
the contractor subsequently increased theamount to 36 inches. During construction,
the wall cracked. A structural engineer
determined that the failure of the wall wascaused by the increase in fill amount. On
this basis, the contractor’s insurer denied
coverage, citing a design defect exclusion.
Plaintiff filed suit, alleging breach of contract.
Plaintiff argued that the ensuing loss
provision restored coverage because excessive
pressure caused by the additional fill was an
ensuing event that caused the loss. The court
disagreed and granted the insurer’s summary
judgment motion.
The court rejected plaintiff’s attempt to“divorce the defective design from the losses it
caused.” The court explained that an ensuingloss must be “distinct and subsequent” tothe excluded loss, which was not the casehere. The court stated: “[t]his case presents
no subsequent event. A defective wall was
created (because it was built in accordancewith defective plans), and the defective wall
failed. There was no ensuing event thatcaused the wall to fail. Plaintiff[ ] submits[that] the build-up of lateral pressures wasan ensuing event, but this is simply anotherway of saying the wall was defectively
designed.” As the court noted, numerous
other jurisdictions have rejected policyholder
efforts to separate losses from excluded
causes in order to obtain coverage under
ensuing loss provisions.

Statutory Pre-Suit Procedures forConstruction Defect Claims Do
Not Trigger Duty to Defend, Says
Florida Court
Addressing an issue of first impression under
Florida law, a Florida federal district court
ruled that invoking a “notice and repair”
statute does not constitute a “suit” forpurposes of triggering an insurer’s duty to
defend. Altman Contractors, Inc. v. Crum &Forster Specialty Ins. Co., 2015 WL 3539755(S.D. Fla. June 4, 2015).
A condominium served a contractor with a
Notice of Claim pursuant to a Florida statutethat sets forth pre-suit procedures for aproperty owner to assert construction defectclaims against a contractor. The contractor
sought defense and indemnity from its
insurer. The insurer refused to defend on thebasis that there was no “suit” as required by
the policy. The court agreed and granted theinsurer’s motion for summary judgment.
The policy defined “suit” as a “civil
proceeding.” The contractor argued that thenotice at issue constitutes a civil proceeding
because it is “an act or step that is part of alarger action or step taken in the prosecutionof an action.” The court disagreed, explainingthat the statute provides only “a mechanism
to guide the parties to enter into discussions
with one another. No part of [the statute]provides for a setting where the parties
would appear before anyone to assist
with this process. There is no procedure
contained therein that results in a decision ordelineation of private rights and remedies.”4

Other courts have concluded that pre-suitprocedures are not “suits” for purposesof an insurer’s duty to defend. Outside of
the construction defect context, courts
have issued mixed decisions as to whether
administrative procedural requirements
and actions, including the issuance of a PRP
letter in environmental contamination suits,
constitute a “suit” triggering an insurer’s
defense obligation. See January and May 2013
Alerts; February 2011 Alert.

Fourth Circuit Rules That
Additional Insured Coverage is Not
Limited to Vicarious Liability for
Named Insured’s Actions
The Fourth Circuit ruled that an additional
insured endorsement does not limit coverage
to instances in which an additional insured
is alleged to be vicariously liable for the actsof the named insured. The court therefore
held that an insurer was required to defend
a real estate developer in a negligence action
even though no claims were asserted against
the named insured contractor. Capital City
Real Estate, LLC v. Certain Underwriters at
Lloyd’s London, 2015 WL 3606861 (4th Cir.
June 10, 2015).

Capital City, a real estate developer,
contracted with Marquez Brick Work, Inc. toperform foundation work. In connection withthe contract, Marquez Brick secured generalliability insurance from the Underwriters.
The policy’s additional insured endorsement
provided coverage to Capital City “but onlywith respect to liability for … ‘property
damage’ … caused in whole or in party
by: 1. [Marquez’s] acts or omissions;or 2. The acts or omissions of those actingon [Marquez’s] behalf; in the performance of[Marquez’s] ongoing operations for [Capital
City].” During the course of Marquez’s
construction work, a wall collapsed. A suit
was filed against Capital City and several
other parties, but not Marquez. Capital City
filed a third-party complaint against Marquez
and sought coverage from the Underwriters
based on the additional insured endorsement.
A Maryland federal district court granted theUnderwriters’ summary judgment motion,
finding that the Underwriters had a duty to
defend Capital City “only if the underlying
complaint had alleged that Capital City
was vicarious liable for the actions of its
subcontractor.” The Fourth Circuit reversed.
The Fourth Circuit ruled that theendorsement provides coverage for property
damage caused by Marquez, “either inwhole or in part, regardless of whether theunderlying complaint seeks to hold Capital
City vicariously liable for Marquez’s acts oromissions.” Here, although the underlying
complaint did not mention Marquez,
it alleged negligence in the excavation
and renovation in which Marquez was
undisputedly involved. Therefore, the court
concluded that “it cannot be said that thecomplaint does not seek to hold [Capital City]
liable for property damage ‘caused in whole orin part’ by Marquez.” The court distinguisheda scenario in which a complaint alleged
negligence solely on the part of the additional
insured, noting that “perhaps [that] would bea different case.”
Courts disagree as to whether additional
insured coverage is limited to circumstancesin which the additional insured is held
vicariously liable for the named insured’s
negligence, or whether it extends to acts of
the additional insured’s own negligence,
so long as the injury has some connection
to the operations of the named insured.
As reported in our March 2013 Alert, theMinnesota Supreme Court, addressing policy
language similar to that at issue in Capital
City, limited additional insured coverage
to instances of vicarious liability and ruledthat an insurer was not required to provide
additional insured coverage to a contractor
where the named insured sub-contractor had
not committed negligence. Engineering &Construction Innovations, Inc. v. L.H. BolducCo., 825 N.W.2d 695 (Minn. 2013).

5

Attorneys’ Fees
Alert:

Supreme Court of New Jersey
Broadly Defines “Successful
Claimant” under Fee-Shifting
StatuteThe Supreme Court of New Jersey ruled thata factory owner was entitled to statutory
attorneys’ fees as a “successful claimant”
in litigation against a contractor’s insurer
even though a jury found that the factoryowner was not entitled to recover damages.
Occhifinto v. Olivio Construction Co., LLC,
2015 WL 2095767 (N.J. May 7, 2015).
A factory owner sued a contractor alleging
negligent construction. The contractor’sinsurer sought a declaration that it had no
duty to defend or indemnify the claims.
The factory owner defended that action asa third-party beneficiary of the contractor’s
liability policy. A trial court ruled that thepolicy provided coverage for the claims.
Thereafter, the negligent construction suitproceeded to trial, and a jury found that thecontractor breached its duty of care, but did
not proximately cause the property damage.
Therefore, no damages were awarded. After
trial, the factory owner moved to collectattorneys’ fees from the insurer pursuant
to N.J. Rule 4:42-9(a)(6), which authorizes
fee shifting in “an action upon a liability
or indemnity policy of insurance in favorof a successful claimant.” The trial court
denied the motion, ruling that the factoryowner was not a “successful claimant”
because no damages were awarded in the
negligent construction trial. The appellate
division affirmed.

The Supreme Court of New Jersey reversed,
ruling that the factory owner was a “successful
claimant” because in the coverage action,
the trial court had ruled that the insurer
was required to defend and, if necessary,
indemnify the negligent construction claims.
The court held that a party does not needto prevail on all issues in the underlying
litigation in order to be a “successful
claimant.” Rather, under New Jersey
precedent, a “successful claimant” is a party
that “succeed[s] on any significant issue inlitigation which achieves some benefit theparties sought in bringing suit.” Applying
this standard, the court deemed the factoryowner a successful claimant because hesecured a successful coverage ruling as a“third-party beneficiary of a liability policy,”
notwithstanding the absence of an underlying
damage award requiring indemnification.
The impact of Occhifinto may be limited.
First, attorneys’ fee awards under N.J.
Rule 4:42-9(a)(6) are not mandatory andare within the sound discretion of a trial
court. Second, because Rule 4:42-9(a)(6)
is procedural, its application is generally
limited to actions filed in New Jersey state
court and should not extend to federal cases
or out-of-state cases applying New Jersey
substantive law.

Reinsurance Alert:

New York Court Finds Reinsurance
Certificates Ambiguous as toWhether Limits Apply to Expenses
Our December 2014 Alert reported ona Second Circuit decision holding that areinsurance certificate was ambiguous as
to whether expenses were excluded fromthe reinsurance limits of liability. Utica

6

Mutual Ins. Co. v. Munich Reins. Am.,
Inc., 2014 WL 6804553 (Dec. 4, 2014). The
decision was significant in its analysis of
New York precedent. In particular, Munich
distinguished a trio of cases that are widely
cited for the proposition that facultativereinsurance limits presumptively include
expenses. See Unigard Sec. Ins. Co. v. North
River Ins. Co., 4 F.3d 1049 (2d Cir. 1993);
Bellefonte Reins. Co. v. Aetna Cas. & Sur. Co.,
903 F.2d 910 (2d Cir. 1990); Excess Ins. Co.
v. Factory Mutual Ins. Co., 822 N.E.2d 768(N.Y. 2004). This month, a New York federal
district court followed suit and ruled that areinsurance certificate with nearly identicallanguage was ambiguous as to whether it
was expense inclusive. Utica Mutual Ins. Co.
v. R&Q Reinsurance Co., No. 6:13-CV-1332(N.D.N.Y. June 4, 2015).
Utica issued primary and umbrella policies
to an underlying insured. INA Reinsurance
reinsured a portion of Utica’s liability
pursuant to a facultative certificate thatwas later assumed by R&Q. The certificate
included a $1 million per occurrence limit andprovided reinsurance “subject to the terms
hereon and the general conditions set forth on
the reverse side hereof.” The parties disputed
whether expenses were included in the $1
million limit. Citing to Unigard, Bellefonteand Excess, R&Q argued that its liability wascapped at $1 million, inclusive of expenses.
The court disagreed. Employing the same
reasoning as Munich, the court found thatthe certificate did not include the language at
issue in Unigard and Bellefonte that expressly
made all of the reinsurer’s obligations subject
to the limit of liability. Rather, the language
was nearly identical to the language at issue
in Munich – providing indemnification
against “loss or damage which [Utica] islegally obligated to pay … subject to theReinsurance Accepted limits shown in the
Declarations … .” Adhering to Munich’s
rationale, the court reasoned that “the factthat ‘losses or damages’ [were] ‘subject to’
the limit of liability reasonably implie[d] that
expenses [were] not.” Although the certificate
at issue did include an overarching “subject
to” clause in its preamble (unlike the one
at issue in Munich), the court found that
this language did not expressly refer to theliability limit. The court ruled that extrinsic
evidence must be considered in deciding
whether the reinsurance limit of liability
includes expenses.

Choice of Law
Alert:

Choice of Law Governed by Texas
Insurance Statute Rather Than
Policy’s Choice-of-Law Provision,
Says Texas Court
A federal bankruptcy court ruled that a Texas
statute requires application of Texas law to an
insurance coverage dispute even though theparties expressly agreed to application of New
York law. In re: ATP Oil & Gas Corp., No.
12-36187 (S.D. Tex. Bankr. June 5, 2015).

ATP Oil & Gas sought coverage undera maritime insurance policy for certain
pollution-related losses. ATP did not disputethat it failed to provide “immediate notice”
of an occurrence that gave rise to a claim, as
required by the policy. However, ATP argued
that it was still entitled to coverage because
the insurer did not suffer prejudice. The
insurance policy expressly stated that New
York law would govern matters of contract
interpretation. Although New York statutory
law requires a showing of prejudice in certain
late notice cases, see N.Y. Ins. Law § 3420, it
does not apply to insurance “in connection
with ocean going vessels,” as was the casehere.
Notwithstanding the policy’s New York choiceof law provision, the court held that the policy
was ambiguous as to choice of law. The court
explained that “a policy of insurance, bynecessity, incorporates applicable state law
insurance requirements into the terms of thepolicy.” Texas statutory law provides that any
7insurance contract issued to a Texas citizen
is held to be a contract “made and enteredinto” and “governed [by]” Texas law. Tex. Ins.
Code § 21.42. Under Texas Supreme Court
precedent, an insurer must demonstrateprejudice in order to deny coverage basedon late notice. Addressing the conflict
between “statutorily mandated Texas law”
and “contract-mandated New York law,” thecourt held that the conflict must be resolvedin favor of the insured such that Texas
law applies.

deny coverage for late notice. The Montana
Supreme Court ruled that prejudice isrequired, explaining that “a condition
that results in a forfeiture is to be strictlyinterpreted against the party for whose benefit
it was created.” A majority of jurisdictions
have adopted the notice-prejudice rule foroccurrence-based policies. However, mostcourts strictly enforce time-specific noticerequirements and notice requirements inclaims-made policies as condition precedents
to coverage, regardless of prejudice.

Late Notice Alert:

Asbestos Alert:

Montana Supreme Court Endorses
Notice-Prejudice Rule
Answering a question certified by theNinth Circuit, the Montana Supreme Court
ruled that a liability insurer must establish
prejudice in order to avoid defense andindemnity based on late notice. Atlantic Cas.
Ins. Co. v. Greytak, 2015 WL 3444507 (Mont.
May 29, 2015).
The insurance policy at issue required thepolicyholder to provide notice “as soon aspracticable of an ‘occurrence’ of an offense
which may result in a claim.” The insurersought a declaration that it had no duty toprovide coverage based on non-compliancewith the notice provision. A Montana
federal district court agreed, ruling that thepolicyholder’s untimely notice excused theinsurer from providing coverage regardlessof prejudice. On appeal, the Ninth Circuit
certified to the Montana Supreme Court
the question of whether Montana follows
the “notice-prejudice” rule such that aninsurer must establish prejudice in order to

Newly-Enacted Texas Law Imposes
Strict Requirements on Asbestos
Claimants
On June 16, Texas passed legislation
requiring claimants in asbestos or silica
personal injury lawsuits to provide notice ofa trust claim. H.B. 1492. More specifically,
the new law requires a claimant to identify
all pending trust claims and to disclose trust
claim material, including documentation
filed with any asbestos trust. Under the
statute, a defendant can seek sanctions
for non-compliance. The statute also gives
courts discretion to stay asbestos trials until
a claimant gives notice of all trust claims,
and/or to modify a judgment based on,among other things, the filing of a trust
claim following trial. H.B. 1492. The law,which takes effect on September 1, 2015, isdesigned to foster transparency and fairness
in asbestos injury lawsuits and to restrict
claimants’ ability to “double-dip” by receiving
compensation via trust claims and litigation
judgments/settlements.

8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.
Mary Kay Vyskocil+1-212-455-3093
mvyskocil@stblaw.com

Lynn K. Neuner+1-212-455-2696
lneuner@stblaw.com

Tyler B. Robinson+44-(0)20-7275-6118
trobinson@stblaw.com

Andrew S. Amer
+1-212-455-2953
aamer@stblaw.com

Chet A. Kronenberg+1-310-407-7557
ckronenberg@stblaw.com

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+1-212-455-2228
gwang@stblaw.com

David J. Woll
+1-212-455-3136
dwoll@stblaw.com

Bryce L. Friedman+1-212-455-2235
bfriedman@stblaw.com

Deborah L. Stein+1-310-407-7525
dstein@stblaw.com

Mary Beth Forshaw+1-212-455-2846
mforshaw@stblaw.com

Michael D. Kibler+1-310-407-7515
mkibler@stblaw.com

Craig S. Waldman+1-212-455-2881
cwaldman@stblaw.com

Andrew T. Frankel+1-212-455-3073
afrankel@stblaw.com

Michael J. Garvey+1-212-455-7358
mgarvey@stblaw.com

Elisa Alcabes+1-212-455-3133
ealcabes@stblaw.com

This edition of the
Insurance Law Alert was
prepared by Mary Beth Forshaw(mforshaw@stblaw.com/+1-212455-2846) and Bryce L. Friedman(bfriedman@stblaw.com/+1-212-4552235) with contributions
by Karen Cestari(kcestari@stblaw.com).

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 constitute the establishment of an
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Please click here to subscribe to the Insurance Law Alert.
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