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WEIL, GOTSHAL & MANGES LLP

Stephen Karotkin (pro hac vice) 

(stephen.karotkin@weil.com) 

Ray C. Schrock, P.C. (pro hac vice) 

(ray.schrock@weil.com) 

Jessica Liou (pro hac vice) 

(jessica.liou@weil.com) 

Matthew Goren (pro hac vice) 

(matthew.goren@weil.com) 

767 Fifth Avenue 

New York, NY 10153-0119 

Tel: 212 310 8000 

Fax: 212 310 8007 

KELLER & BENVENUTTI LLP 

Tobias S. Keller (#151445) 

(tkeller@kellerbenvenutti.com) 

Jane Kim (#298192) 

(jkim@kellerbenvenutti.com) 

650 California Street, Suite 1900 

San Francisco, CA 94108 

Tel: 415 496 6723 

Fax: 650 636 9251 

Attorneys for Debtors

and Debtors in Possession 

UNITED STATES BANKRUPTCY COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

In re: 

PG&E CORPORATION,

 - and - 

PACIFIC GAS AND ELECTRIC 

COMPANY,

Bankruptcy Case 

No. 19-30088 (DM) 

Chapter 11 

(Lead Case) 

(Jointly Administered) 

DECLARATION OF JANAIZE MARKLAND IN 

SUPPORT OF D&O INSURANCE MOTION 

Date: July 9, 2019 

Time: 9:30am, Pacific Time 

Place: United States Bankruptcy Court 

 Courtroom 17, 16th Floor 

 San Francisco, CA 94102 

 

Objection Deadline: July 2, 2019 

 4:00 p.m. (Pacific Time) 

Debtors.

 Affects PG&E Corporation 

 Affects Pacific Gas and Electric Company 

 Affects both Debtors 

* All papers shall be filed in the Lead Case, 

No. 19-30088 (DM). 

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I, Janaize Markland, pursuant to section 1746 of title 28 of the United States Code, hereby 

declare under penalty of perjury that the following is true and correct to the best of my knowledge, 

information, and belief: 

1. I hold the position of Senior Director, Enterprise and Operational Risk Management 

& Insurance at Pacific Gas and Electric Company, as debtor and debtor-in-possession (and together 

with PG&E Corporation, the “Debtors”) in the above-captioned Chapter 11 Cases (the “Chapter 

11 Cases”). In my current role, I direct the Debtors’ enterprise and operational risk management 

program framework and manage its $5 billion insurance portfolio. I joined the Debtors in 2000, 

and have held numerous roles in the compliance and risk since that time. I have a B.Sc. in chemistry 

from the University of British Columbia and masters’ degree in environment and management from 

Royal Roads University. 

2. Except as otherwise indicated herein, the facts set forth in this Declaration are based 

upon my personal knowledge, my review of relevant documents, and information provided to me 

by the Debtors’ employees or the Debtors’ legal, restructuring, and financial advisors. If called 

upon to testify, I would testify competently to the facts set forth in this Declaration. I am authorized 

to submit this Declaration on behalf of the Debtors. 

3. This Declaration is submitted in support of the Motion Pursuant to 11 U.S.C. §§ 

105(a) and 363(b) and Fed. R. Bankr. P. 2002 and 6004(h) Authorizing Debtors to Purchase 

Directors and Officers Insurance (the “Motion”)1 filed contemporaneously herewith. 

 

1

 Capitalized terms used but not otherwise herein defined shall have the meanings ascribed to such 

terms in the Motion. 

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The Debtors’ Existing D&O Coverage and Pre-Bankruptcy Wildfire Claims 

4. The Debtors recently announced the appointment of William Johnson as the new 

Chief Executive Officer and President of PG&E Corp., and the appointment of eleven new 

directors to the Board of Directors of PG&E Corp. (collectively, the “New Directors and 

Officers”). 

5. As is customary in the Debtors’ industry, prior to the Petition Date, the Debtors 

regularly purchased and maintained primary and excess directors and officers (“D&O”) liability 

insurance to cover any claims asserted against their directors and officers in connection with the 

exercise of such individuals’ duties and responsibilities as directors and officers. The Debtors’ 

directors and officers, including the New Directors and Officers, currently are insured under D&O 

insurance policies issued for the policy period May 20, 2018 to May 20, 2020 (the “2018 

Policies”).2 

6. The 2018 Policies provide the Debtors and their directors and officers with $300 

million in total available coverage limits. The first $200 million in D&O insurance coverage under 

the 2018 Policies is available to the Debtors as entities (e.g., for securities claims) and the Debtors’ 

individual directors and officers for a wide variety of claims. The next $100 million in available 

coverage under the 2018 Policies is dedicated to the individual directors and officers and cannot 

be accessed by the Debtors themselves. This D&O-dedicated insurance is referred to as Side A 

“DIC” (difference in conditions) coverage (the “Side A Coverage”). The coverage limits under 

the 2018 Policies are not available for claims that are found to be related to previous claims noticed 

during prior policy periods. 

7. The Side A Coverage also provides for two reinstatement limits of $90 million each. 

If the Side A Coverage is exhausted by a claim or series of related claims, and a new and unrelated 

claim is asserted against the Debtors’ directors and officers, $90 million of coverage would be 

 

2

 The policy period for the 2018 Policies initially was one year. Prior to the Petition Date, the 

Debtors extended the policy period to 2020. 

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“reinstated” and made available to respond to the subsequent claim or series of claims. In the event 

another new and unrelated claim or series of claims is asserted, then a second reinstatement would 

be made available to provide an additional $90 million of coverage. Again, the additional coverage 

limits under the Side A Coverage reinstatements are not available for claims that are found to be 

related to previous claims. Moreover, as discussed in further detail below, the 2018 Policies and 

the reinstatement limits prioritize payment of new claims arising from pre-chapter 11 wrongful acts 

over payment of new claims arising from post-chapter 11 wrongful acts. 

8. In addition to the 2018 Policies, the Debtors’ prior D&O insurance policies issued 

for the period May 20, 2017 to May 20, 2018 (the “2017 Policies”), provide the Debtors and the 

directors and officers with $250 million in total coverage limits, the first $200 million of which is 

shared and the next $50 million in Side A DIC coverage. The 2018 Policies and 2017 Policies are 

“claims-made” policies, which means that they provide coverage, subject to all terms and 

conditions, for claims first asserted during the policy period. 

9. Prior to the Petition Date, certain claims were brought against the Debtors’ directors 

and officers arising from the 2017 and 2018 Northern California wildfires. See, e.g., Lentine v. 

Williams, Case No. CGC-17-562553 (Cal. Super. Ct.). The Debtors provided notice of these claims 

under the 2017 Policies and the 2018 Policies, as appropriate. Specifically, claims first asserted 

during the policy period of the 2017 Policies were noticed under the 2017 Policies. Claims first 

asserted during the policy period of the 2018 Policies were noticed under both the 2017 Policies 

and 2018 Policies. 

The Current Directors and Officers May Lack Coverage Under the 2018 Policies 

Under Certain Circumstances 

10. The Debtors’ primary D&O insurer has acknowledged defense coverage for the 

claims arising from the 2017 and 2018 Northern California wildfires, subject to a reservation of 

rights (as is customary). Based on correspondence from and discussions with the Debtors’ D&O 

insurers, however, it is unclear whether the insurers ultimately will treat claims arising from the 

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2017 wildfires and the 2018 wildfires as a single “Claim” (as defined in the 2017 Policies), and at 

least one carrier has indicated an intention to do so. If the D&O insurers take the position that 

claims from the 2017 and 2018 wildfires constitute a single “Claim,” they may contend that all the 

wildfire claims trigger coverage only under the 2017 Policies. Under these circumstances, in the 

unfortunate event of a postpetition wildfire, the insurers may similarly attempt to treat any new 

claims as part of the same single “Claim” triggering only the 2017 Policies. Under these 

circumstances, the available coverage under the 2017 Policies could be exhausted as a result of the 

prepetition claims noticed to the insurers, which would leave no coverage under the 2017 Policies 

for the New Directors and Officers.3 

11. Alternatively, claims arising from the 2018 wildfires may be found to be distinct 

from the prior claims. Under these circumstances, coverage under the 2018 Policies would be 

available to respond to claims arising from the 2018 wildfires, which may significantly impair or 

exhaust the 2018 Policies. If postpetition claims are asserted against the New Directors and 

Officers, and the 2018 Policies are impaired or exhausted, and the reinstatements are also 

unavailable for any reason, the New Directors and Officers could lack insurance coverage to pay 

for the defense and indemnification of any postpetition claims. 

12. This potential lack of coverage is exacerbated by certain priority of payment 

provisions in the 2018 Policies (and the 2017 Policies). Even in a situation where the 2018 Policies 

are triggered, the 2018 Policies prioritize payment of claims alleging wrongful acts by the Debtors’ 

board and/or officers prior to the Petition Date. Specifically, if the amount of Loss (defined in the 

2018 Policies to include, without limitation, defense expenses, settlements, and judgments) under 

the 2018 Policies exceeds the available coverage limits, the 2018 Policies prioritize the payment of 

 

3

 By setting forth potential positions that the insurers may assert with respect to coverage under the 

2017 and 2018 Policies, the Debtors are not waiving any rights or admitting the validity of any 

positions that may be taken by the insurers. The Debtors reserve all of their rights to dispute any 

such positions under the policies and at law in any appropriate forum. 

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any Loss first to claims arising from alleged wrongful acts prior to the commencement of the 

Chapter 11 Cases and then to any Loss for claims arising from alleged wrongful acts after the 

commencement of the Chapter 11 Cases. These priority-of-payment provisions create a risk to the 

New Directors and Officers that the $300 million in coverage limits available under the 2018 

Policies may be exhausted by claims relating to the prepetition period before claims, if any, relating 

to the postpetition period arise or can be paid. 

13. If the $300 million in coverage limits currently available under the 2018 Policies 

were to be exhausted through payment of claims arising from prepetition conduct, as stated above, 

the Side A Coverage would provide up to $90 million in reinstatement limits only for any new, 

unrelated claim, and then another $90 million in reinstatement limits for a second unrelated claim. 

As stated, it is not clear what position the carriers may take with respect to coverage in the 

unfortunate event of any subsequent, postpetition wildfires. In addition, a similar prioritization of 

payment risk also exits with respect to the reinstatement limits because the reinstatement limits also 

prioritize payment of new claims arising from prepetition wrongful acts over new claims arising 

from postpetition wrongful acts. 

The Debtors’ Efforts to Procure Additional Insurance Coverage for the New 

Directors and Officers 

14. Because of the prioritization risk under the 2018 Policies, including with respect to 

the reinstatement limits, and the risk of exhaustion of the 2017 Policies and/or 2018 Policies on 

account of existing claims, the Debtors have explored ways to secure additional D&O insurance 

limits dedicated to claims, if any, that may be asserted against the New Directors and Officers with 

respect to post-chapter 11 conduct. Such coverage would be available to the extent the 2018 

Policies are exhausted through the payment of claims arising from any pre-bankruptcy wrongful 

acts or are otherwise unavailable to pay claims asserted during the Chapter 11 Cases. 

15. The Debtors explored three potential options for securing additional coverage that 

would address these risks: (i) traditional insurance; (ii) an Isosceles Trust; and (iii) the EIS Policy. 

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16. The Debtors’ insurance broker, Marsh USA, Inc. (“Marsh”), spent significant time 

compiling and reviewing proposals from various insurers for additional Side A DIC coverage. The 

quotes Marsh received, however, were very costly. Based on the proposals obtained by Marsh, to 

obtain an additional $100 million in limits for the Debtors’ new directors, the premium would be 

in the range of approximately $20 million (20% of limits), and this amount would be fully earned, 

which means no premium would be returned to the Debtors, even if the policies were never 

accessed. Furthermore, based on the Marsh proposals, to obtain an additional $100 million in limits 

for only the Debtors’ new directors and the newly appointed CEO of PG&E Corp. (but no other 

officers) would be even more costly – with a premium in the range of approximately $30 million 

(30% of limits). Further, many of the traditional insurance proposals included defense cost sublimits, which would restrict the amount of coverage available for defense expenses incurred in 

connection with any covered claims. The insurer-proposed terms and conditions also lacked clarity 

regarding coverage that would be available in the event claims were to arise from any new (postpetition) wildfire. Lastly, the proposed coverage would only be available upon exhaustion of the 

existing $300 million in limits under the 2018 Policies. 

17. The Debtors also considered an Isosceles Trust. Isosceles is a Bermuda-based 

company that issues insurance and reinsurance policies. The Isosceles Trust would be self-funded. 

The full amount of the Debtors’ contribution (e.g., $50 million) plus premium, plus interest, and 

investment proceeds would be available for return to the Debtors if not accessed. The Debtors 

would fully collateralize the Trust through payment of: (a) a 5% premium ($2.5 million on $50 

million), returnable on termination of the Trust; (b) $15,000-$25,000 one-time setup fee; and (c) 

$100,000 per year in Trust fees and administration. The $100,000 estimated annual fee (or 

$500,000 over the 5-year term of the policy) was the estimated expense of “renting” a captive cell 

from Isosceles. During discussions, however, Isosceles indicated that it was unable to retain any 

risk within the cell, and would need to obtain reinsurance. This created issues that were not present 

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with respect to the EIS cell, and the Debtors were of the view that such reinsurance would be 

extremely difficult, if not impossible, to obtain, casting doubt on Isosceles’ ability to consummate 

the proposed transaction. Moreover, the Debtors did not have any prior experience with Isosceles 

and were uncertain as to how it may operate and handle claims. 

 The EIS Policy 

18. In my view, the EIS Policy is the preferable option, as it is the lowest cost of the 

viable options available to the Debtors, and provides the Debtors and their current officers and 

directors with the most effective coverage. 

19. EIS is a sponsored captive insurance facility that the Debtors would utilize via a 

contractual agreement to participate in a dedicated protected cell. The Debtors have an existing 

relationship with EIS, which facilitates the Debtors insuring other risks, including property loss. 

The Debtors have been securing captive insurance coverage through EIS since May 2017. 

20. EIS is a wholly-owned stock insurance subsidiary of Energy Insurance Mutual 

Limited (EIM) and was formed to provide a facility that would meet the specific business 

requirements of EIM’s members (including other utilities) for the placement and management of 

alternative risk related products. As described on its website (https://eimltd.com/): 

a. EIM’s “Mission and Vision” are directed toward serving member 

companies like the Utility and it is committed to providing risk 

solutions specifically needed by its membership, including industryfocused policy language and customized risk solutions through EIS. 

b. EIS was originally incorporated in Bermuda on May 27, 1992 under 

the Companies Act of 1981 as Energy Insurance (Bermuda) Ltd. 

Upon completing redomestication requirements and moving onshore 

to South Carolina, EIB was renamed EIS on December 1, 2006. 

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c. EIS is licensed to conduct insurance operations in South Carolina and 

authorized to write insurance, reinsurance, or coinsurance for a 

Member or group of Members through the use of “Mutual Business 

Programs.” EIS contracts with Energy Captive Management LLC 

(ECM), a subsidiary of EIM, as its captive manager to conduct the 

business of EIS and the Mutual Business Programs. 

d. In 2018, the Captive Insurance Companies Association (CICA) 

honored EIS with the CICA 2018 Outstanding Captive Award stating 

“The Outstanding Captive Award is presented to a captive insurance 

company or risk retention group that has shown creative uses for a 

captive, been successful in managing the captive in terms of net 

results and usefulness to its owners, has prevailed over difficult times 

or situations, and has gained acceptance, recognition, and a positive 

reputation among rating agencies, regulators and colleagues in the 

captive industry.” 

21. To secure the EIS Policy, upon Court approval, the Debtors would make a premium 

payment of $10 million (returnable as discussed below) and a capital contribution of $40 million 

for a total of $50 million, to the protected cell. In return, the EIS Policy would provide $50 million 

in Side A DIC insurance limits that would be available to the Debtors’ current directors and officers, 

including the New Directors and Officers, for a term of five years or until cancellation at the 

Debtors’ direction. Funds delivered to EIS would be invested, and the Debtors’ representatives 

would be able to recommend to EIS various options with respect to the investments. Net assets of 

the Mutual Business Program created for this policy would be available for distribution to the 

Debtors upon termination of the policy and/or dissolution of the Mutual Business Program, subject 

to a participation agreement and South Carolina Department of Insurance approval (as is 

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customary). If no claims arise against the insured directors and officers, then $50 million plus 

investment income less any tax liability or other expenses incurred would be the net assets available 

for distribution to the Debtors. Because the EIS protected cell structure is only available to EIM 

Mutual Participant Companies, including the Debtors, and is provided as a service to them, any 

expenses are expected to be minimal (e.g., under $100,000 over the 5-year term) and would be paid 

first out of any available investment income. Accordingly, the terms of the EIS policy are far 

superior to the traditional proposals procured by Marsh that would result in $20-$30 million in 

estate funds being paid out to insurers. The Debtors’ premium costs for the EIS Policy would be 

split between PG&E Corp. and the Utility, with the allocation based on the percentage of directors 

and officers from each entity covered by the policy. 

22. The EIS Policy would provide coverage for any claims if, for any reason, the 2018 

Policy does not provide coverage to the New Directors and Officers. For example, if the current 

D&O insurers were to assert that the current D&O policy bars them from paying the New Directors’ 

and Officers’ any amounts, including defense costs, because the 2018 Policy prioritizes payment 

of claims arising from pre-chapter 11 wrongful acts, the EIS Policy would be available to provide 

coverage. 

23. In terms of claims handling, EIS would not control the defense of any claims. If a 

claim triggering the EIS Policy were tendered, EIS would confer with the Debtors’ risk 

management team concerning the defense of the claim. Once a defense budget is established, EIS 

would place a reserve on its books and issue payments upon instructions from the Debtors. 

24. I believe the EIS Policy provides the New Directors and Officers with appropriate 

insurance coverage in the event a claim is asserted against them and the 2018 Policies are not 

available to provide defense or indemnity for such claim. Moreover, the EIS Policy provides a 

mechanism whereby the Debtors’ assets may be invested, and the Debtors may realize a return on 

this investment and a return of unearned premium to the extent the EIS Policy is not drawn down. 

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By contrast, a traditional D&O policy would require the payment of premiums that would be lost 

to the Debtors irrespective of whether the policy were accessed, and the scope of coverage would 

be uncertain. 

25. It is my view that the EIS Policy is essential to attract and retain board members and 

senior officers and to provide them with adequate coverage to enable them to carry out their duties 

during the pendency of the Chapter 11 Cases. 

Rationale for Securing the EIS Policy 

26. I believe there are ample business justifications that support the purchase of the EIS 

Policy. This additional $50 million in coverage is critical and appropriate because, as discussed 

above, there are circumstances under which the New Directors and Officers may not have coverage 

for claims that may arise from alleged conduct after the Petition Date. Accordingly, in order to 

attract and retain board members and qualified senior management during the pendency of the 

Chapter 11 Cases, the Debtors respectfully submit that the EIS Policy provides a layer of protection 

that is essential. 

27. The Debtors’ directors and officers are focused on the reorganization of the Debtors’ 

businesses, and maximizing value for all of their economic stakeholders. As noted above, the 

Debtors believe that the purchase of the EIS Policy will provide the Debtors’ directors and officers 

with appropriate coverage, indeed coverage that is customarily provided to officers and directors 

in similar capacities. This will inure to the benefit of all parties in interest and the value to be 

derived therefrom will more than offset any cost incurred in purchasing the EIS Policy. As noted 

above, given the structure of the EIS Policy, if no claims are made against it, the Debtors are entitled 

to a return (net of taxes and expenses) of the $50 million premium and the capital contributions, as 

well as any investment income earnt on this amount. 

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28. The Debtors’ directors and officers are engaged in a process designed to maximize 

value for the benefit of the economic stakeholders in these cases. Under the circumstances they are 

entitled to have customary insurance coverage in place. 

29. As a matter of good corporate governance, this coverage is necessary and 

appropriate not only to ensure the ongoing service and dedication of the Debtors’ directors and 

officers, but to ensure that their personal assets and livelihood are not exposed. Further, to the 

extent it is necessary for the Debtors to recruit new directors and senior officers, failing to have 

adequate D&O insurance available is likely to cause the Debtors’ significant difficulty in recruiting 

qualified candidates for these roles. 

30. For these reasons, I believe that the Debtors’ decision to purchase the EIS Policy is 

in the best interest of their estates, creditors, and all parties in interest and represents a reasonable 

exercise of their business judgment. 

 

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Pursuant to 28 U.S.C. § 1746, I declare under the penalty of perjury, that the foregoing 

is true and correct to the best of my knowledge, information, and belief, and that this declaration was 

executed at San Francisco, California on June 10, 2019. 

/s/ Janaize Markland

Janaize Markland

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