In an insurance coverage case, a federal court asked the Texas Supreme Court to tell it whether Texas law compels a finding that BP is covered for damages arising from the Deepwater Horizon accident in the Gulf of Mexico. The case involves whether language in an umbrella insurance policy alone determines the extent of BP's coverage as an additional insured.
The NAM filed an amicus brief asking the court to apply traditional contract principles: (1) that the scope of insurance coverage should be determined by the contract and not from external documents unless they are clearly intended to be incorporated into the agreement, and (2) that ambiguous terms should be construed in favor of the insured. Courts should not create a subjective "sophisticated insured" exception to insurance law that has been recognized and applied for more than 125 years. Such an exception would make legal rules change depending on the identity of the party invoking them, would introduce the difficult question of determining who is a sophisticated insured, and would disincentivize insurance companies from making their policies as clear as possible.
The court held in an 8-1 decision that BP was not entitled to this coverage, relying on terms from the drilling contract that were not explicitly incorporated into the insurance policy.
The NAM filed an amicus brief on 4/22/15 supporting BP’s motion for rehearing by the Texas Supreme Court. The NAM’s brief supports BP’s argument that the court should revisit this issue as it has introduced tremendous uncertainty into state insurance law by departing from several long-held principles on insurance law. These principles include: 1) that external terms should only be incorporated into an insurance policy by explicit reference; 2) limitations on insurance coverage must be expressed in clear and unambiguous policy language; 3) the scope of additional insured coverage is determined by the policy and not the underlying contract; and 4) certificates of insurance are informational only and do not confer or abrogate rights.
BP dropped its motion for rehearing on May 27, 2015 after reaching a confidential settlement.