Claims And Issues

MORE: BP's Catastrophe Settlements: Contribution, Indemnity Claims Coming Against Nonsettling Defendants.

   And Their Liability Insurance Companies.  This updates a post published here on Friday, August 20, 2010.

   Reports continue to be published about questions and concerns regarding conditions of the BP Catastrophic Settlements Fund.  In order to receive any part of the reported "$20 Billion" in that Fund, people and businesses must among other things Release all Claims against nonparties other than BP.  See James C. McKinley, Jr., "Details Faulted in Plan to Pay Oil Spill Claims/Critics Say BP Benefits" p. A1, col. 1 (New York Times Nat'l ed., Saturday, August 21, 2010).

   Soon the reporting may include a focus on the real apparent motivation of BP behind this particular condition on its payment of Catastrophic Settlement money:  To preserve BP's Contribution and Indemnity Claims against the nonsettling potential Defendants.

   And to lay the foundation for Claims against their Liability Insurance Companies.

Dennis Wall is Co-Author of the leading book on Insurance Coverage for Catastrophe Claims, "CATClaims:  Insurance Coverage for Natural and Man-Made Disasters" (West Publishing Company 2008; 2010 Supplement in process).  Mr. Wall will be a featured speaker on several panels which will address the BP Oil Spill Catastrophe.  On September 15, 2010, he will be a featured speaker on a panel addressing "BP Oil Spill Damages Claims:  The Coverage Predicates" at the September 15, 2010 Seminar of the Insurance Law Committee sponsored by the Orange County Bar Association in Orlando, Florida.   Mr. Wall will speak on a panel at the American Conference Institute's Bad Faith Litigation Conference in Orlando, Florida on November 30, 2010 on "Dealing With Catastrophic Disasters:  How to Properly Investigate and Handle Overwhelming Claims".

Please Read The Disclaimer.

BP's Catastrophic Settlements: Contribution, Indemnity Claims Coming Against Nonsettling Defendants.

   And Their Liability Insurance Companies.

   A previously unreported condition of settling with BP for sums paid out of its infamous "$20 Billion Settlement Fund" has just been reported:  Settling Claimants will have to waive their Claims and Causes of Action against nonsettling potential Defendants.  These nonsettling potential Defendants include the owner of the Deepwater Horizon rig and virtually every other corporation that had a role in causing the deaths of 11 people and many alleged Damages to many other people and businesses.  See Ian Urbina, "BP Settlements Likely to Shield Top Defendants/Lawsuit Waiver is Seen" p. A1, col. 1 (New York Times Nat'l ed., Friday, August 20, 2010).

   A law professor in Tennessee is quoted in the article as suggesting that BP is requiring a waiver as to all nonsettling parties because BP wants to prevent them from making claims against BP.  Perhaps.  Another motivation is suggested by reality.

   It is central to every concept of Contribution and Indemnity both, that in order to recover on such Claims a settling party must plead and prove that it -- in this case, BP -- has paid more than its fair share of the loss, up to all of the loss (and very often, in the case of indemnity, also that it was made vicariously liable by the actions or omissions of the nonsettling defendants).  In this reality, BP is introducing the concept of whether it is acting in Good Faith in setting the conditions on its "settlement fund".  In any case, it is clear that BP is acting proactively to secure its own Claims for Contribution and Indemnity against other potential Defendants. 

   And, by doing that, to trigger the Liability Insurance Coverages of those other potential Defendants.

Dennis Wall is Co-Author of the leading book on Insurance Coverage for Catastrophe Claims, "CATClaims:  Insurance Coverage for Natural and Man-Made Disasters" (West Publishing Company 2008; 2010 Supplement in process).  Mr. Wall will be a featured speaker on several panels which will address the BP Oil Spill Catastrophe.  On September 15, 2010, he will be a featured speaker on a panel addressing "BP Oil Spill Damages Claims:  The Coverage Predicates" at the September 15, 2010 Seminar of the Insurance Law Committee sponsored by the Orange County Bar Association in Orlando, Florida.   Mr. Wall will speak on a panel at the American Conference Institute's Bad Faith Litigation Conference in Orlando, Florida on November 30, 2010 on "Dealing With Catastrophic Disasters:  How to Properly Investigate and Handle Overwhelming Claims".

Please Read The Disclaimer.

"Bursting Bubble" Presumption in Sinkhole Insurance Coverage Case.

   In a "sinkhole insurance coverage case," a Florida intermediate appellate court ruled in favor of the Appellant Policyholder and ordered a New Trial in a recent 2-to-1 decision:  Download Warfel v. Universal Insurance Co. of North America (Fla. 2d DCA Case No. 2D08-3134 Opinion Filed December 9, 2009).

   The majority on the appellate panel ruled that in the first Trial, the Trial court "should not have instructed the jury on an evidentiary presumption that impermissibly shifted the burden of proof" to the Policyholder in that case.  Download Warfel v. Universal Insurance Co. of North America (Fla. 2d DCA Case No. 2D08-3134 Opinion Filed December 9, 2009), attached Official Slipsheet Opinion at 1-2.  The evidentiary presumption arose under Florida Statute Section 627.7073(1)(c)(2005), brought forward without material change.  The Florida Statute addresses the "'findings, opinions, and recommendations of [an] engineer and professional geologist'" concerning proof of Sinkhole Damage, in basic terms.  Id.

   The Statute also provides an evidentiary presumption but one about which the Jury is not to be told, the majority for the Appellate Court held in this case.  Download Warfel v. Universal Insurance Co. of North America (Fla. 2d DCA Case No. 2D08-3134 Opinion Filed December 9, 2009), at 8.  The presumption provided by Section 627.7073(1)(c) is instead "a 'vanishing' or 'bursting bubble' presumption that affected only Mr. Warfel's burden of producing evidence."  Download Warfel v. Universal Insurance Co. of North America (Fla. 2d DCA Case No. 2D08-3134 Opinion Filed December 9, 2009), at 7.  The Appellate Court reversed because the Trial Judge had instead instructed the Jury in the first Trial that the Policyholder had the burden to prove by a preponderance of the evidence that the findings, opinions, and conclusions in the only report apparently in evidence, were not correct. 

Please Read The Disclaimer.