A little shift in 5th Circuit federal officer (1442) removal?

Under § 1442, an action “against or directed to . . . any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office” may be removed to federal court. 28 U.S.C. § 1442(a)(1). To remove, a defendant must show: “(1) that it is a person within the meaning of the statute, (2) that it has ‘a colorable federal defense,’ (3) that it ‘acted pursuant to a federal officer’s directions,’ and (4) ‘that a causal nexus exists between [its] actions under color of federal office and the plaintiff’s claims.’”

A woman dies of mesothelioma. Her heirs sue Avondale Shipyard in state court, alleging she got mesothelioma from her father, who worked at Avondale in the 1940s, building tugs for the US government. Avondale removes under 1442, saying it was doing US government work to US government spec under US government rules. Thus, 1442 removal. The district court reverses, saying Avondale was responsible for safety: 

1442 does not support removal where defendant government contractors “were free to adopt the safety measures the plaintiffs now allege would have prevented their injuries.” 805 F.3d at 174. The Legendres provide unrebutted evidence that although the government required Avondale to use asbestos in the construction of the tugs, the government did nothing to restrict Avondale’s safety practices. In Bartel, the government required the defendants to use ships containing asbestos, but did nothing to restrict the defendants’ safety measures. Between the two, the causal nexus analysis is, as highlighted by us in Savoie, "nearly identical."

But what's more interesting is at the end. Interpreting 2011 amendments to 1442, some courts have suggested that all you need is a nexus, not a cause. Under that theory, it could be that removal is appropriate under these circumstances. But what ho? A circuit split?? Supreme Court bound? We shall see.

My 2c: if I were Avondale I wouldn't take this to the Supreme Court. The Court, as currently constructed, jealously guards states' rights in such circumstances. See for instance this prior post about a 5-4 decision on an easy topic, with four votes saying "give more power to the states," despite seemingly clear statutory language. 1442 is a harder topic, and it seems likely you could get five+ votes to keep removal jurisdiction from growing significantly.  

Less-than-Careful insuring language => no summary judgment

I pass along this case because it's a little interesting. 

A person with an accidental-death insurance policy, which purports to cover him for accidental deaths, but not for lingering diseases, gets west nile virus and dies. Seems pretty accidental, no? Should be easy. 

But the policy has narrower language than all that. It requires either drowning or 'a visible contusion or wound,' Furthermore, the policyholder was morbidly obese, with diabetes, and the policy requires that the sudden / accidental death be the 'sole cause' of death. Finally, the policy expressly excludes disease. 

So it isn't a huge surprise that the district court granted summary judgment for the insurer. The Fifth Circuit reversed, finding that the insurer's position would render coverage illusory. The better reading, the Court held, is that a mosquito bite + west nile is amply sudden and accidental. A bite is also a wound or a contusion. Sure, but what about the exclusion of disease? Isn't WNE a disease? Yes it is, says the Fifth Circuit, but that's not enough: the Court says "yes, but that's only for disease existing when the accident happened; it doesn't exclude death from disease":

Gloria argues that a proper construction of Exclusion Four is the exclusion applies only “to conditions existing when the accident happened” and does not apply to “a condition caused by the accidental injury;” and we find that construction reasonable for purposes of this appeal.

So the case gets reversed and remanded. Fair result? I suppose it depends on whether you look at the type of policy or the specific policy language. 

Victory

And lo, as day follows night, every once in a while, victory follows defeat. 

Who's an invitee? One with physical presence on the premises of another, for mutual benefit. You when you're in a store, or in a hotel. A vessel company tried to argue it was the invitee of a liftboat company because its vessel was working for the liftboat. What about 'on the premises?' It was close enough for a lift basket transfer. Why does it matter? If the company was an invitee, it's entitled to indemnity. If not, it is responsible for its own fault. 

Happily, the district court agreed that the company isn't an invitee because it doesn't have physical presence on the premises of another. Close isn't good enough. The Fifth Circuit, in a brief opinion, affirmed. 

Now for something completely different

When not fighting over marine or insurance or contract or transactions (!) or the like, your scribe takes outsized interest in the First Amendment and IP. Fun stuff. 

In that vein I pass along an excellent read on somebody else's problem: a $1.6 billion (!!) suit against Spotify for failure to send notice to songwriters that their songs are being used, as part of a compulsory license scheme. Payoff paragraph:

Legally speaking, the lawsuit isn’t about whether Spotify is supposed to pay “10.5% of revenue minus PRO payments” and whether it was willing to do so. It’s about whether it sent along a piece of paper to a songwriter’s last known address letting them know that they were going get paid. And because they supposedly didn’t, Wixen is asking for $150,000 in statutory damages per song. That’s an expensive piece of missing paper — totaled up, it’s why the lawsuit is for $1.6 billion.

The whole article is well worth a read. 

Defeat

I have had occasion to add a new loss to my list of failures. I convinced the district court, but the Fifth Circuit reversed. 

The good news: I told my client I wouldn't bill them if I lost, so they don't have to pay for the work. 

The bad news: I don't know why I lost, unless you take it the judges are just legal realists: you can't be a tug and a tow, so there's no need to parse the precise language of the complaint. Something I keep coming back to is how to contend with probability. I won in front of the district court. You'd think that would mean I'd have a great chance on appeal, for two reasons: first, district judges get some deference - particularly, those experienced in the subject matter; second and more importantly, federal judges usually get the right answer. Then I lost, and the panel didn't ask me a question. 

So this article about probabilities is significant. 

When we think probabilistically, we are less likely to use adverse results alone as proof that we made a decision error, because we recognize the possibility that the decision might have been good but luck and/or incomplete information (and a sample size of one) intervened.

Maybe we made the best decision from a set of unappealing choices, none of which were likely to turn out well.

Maybe we committed our resources on a long shot because the payout more than compensated for the risk, but the long shot didn’t come in this time.

Maybe we made the best choice based on the available information, but decisive information was hidden and we could not have known about it.

Maybe we chose a path with a very high likelihood of success and got unlucky.

The problem, for which I don't have an easy answer: with such a small sample size, how do you figure out which is which? 

An outbreak of reason regarding discovery in New York

You get in a terrible accident. The other side is suspicious about your claims of recovery (or lack thereof). They want your instagram / facebook account information. You don't want to provide it - it's private, after all. What do?

The New York appellate division did something weird. It said the plaintiff must produce everything that the plaintiff is going to introduce at trial. That seems a terrible result, giving the plaintiff carte blanche to craft a narrative regardless of truth. Then the New York Court of Appeals (the highest state court in NY) fixed it. Complete disclosure isn't required, but neither is privacy: 

Rather than applying a one-size-fits-all rule at either of these extremes, courts addressing disputes over the scope of social media discovery should employ our wellestablished rules – there is no need for a specialized or heightened factual predicate to avoid improper “fishing expeditions.” In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate – for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.

The next frontier: what happens when you have proof a plaintiff deleted her social media account? Does that lead to a spoliation charge? I'd have to think it would. 

Maritime jurisdiction? Swoon

A vessel captain was in a collision. He was fired. He hired-on with another company. He was about to transfer bunker fuel with his prior employer's vessel, but when the prior employer found out they said "nuh-uh. That first accident is still open." So his then-employer fired him. 

He filed suit in Harris County. His employer removed it to federal court, arguing that maritime claims can be removed (which, to be discussed elsewhere, is a theory that was all the rage a couple years ago but now it's fallen onto hard times. Once upon a time, your scribe won that argument, only to lose it six months later when the same judge, in a different case, reversed himself.)  

The employer, Navig8, also argued there was no jurisdiction against it in Texas. The district court, surprisingly, agreed. The Fifth Circuit then affirmed. This is impressive: it would have been easy for Judge Hughes in Houston just to send it back to state court, but instead he ruled that Navig8 didn't have adequate contacts in Texas for general jurisdiction (which was surely correct), and next, that it didn't purposefully avail itself enough to subject it to specific jurisdiction in Texas. But wait. Wasn't the captain working in waters for the Port of Houston, in Texas waters, when his former employer got him kicked off the job? Sure was, but that's not enough:

The contacts Cpt. Sangha identifies to support specific jurisdiction— email communications from two Navig8 representatives located outside the country to Cpt. Sangha’s then-supervisor in Alabama, an employment contract between Cpt. Sangha and Marine Consultants allegedly confected in Houston,2 that the email communications were targeted at a contract formed in Texas,and that the emails concerned work that was to be performed in Texas—are legally insufficient to support a finding of specific jurisdiction. Navig8’s contacts with the state have to be purposeful “and not merely fortuitous,” Walden, 134 S. Ct. at 1123 (noting that “[d]ue process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the ‘random, fortuitous, or attenuated’ contacts he makes by interacting with persons affiliated with the State”) (quoting Burger King, 471 U.S. at 475). Even though Navig8’s email communications happened to affect Cpt. Sangha while he was at the Port of Houston, this single effect is not enough to confer specific jurisdiction over Navig8.

No personal jurisdiction? No lawsuit. 

The Fifth Circuit affirmed on all grounds. 

So we have a new loophole to get your jurisdictional arguments heard by federal courts instead of state courts! Remove it on a maybe-thin removal ground, then tell the district court it can rule on jurisdiction before it rules on the motion to remand. Only I suspect it will be the rare district court that follows Judge Hughes' pattern and does this - much more common will be judges who rule on the motion to remand, then you've removed for no reason and you're back arguing jurisdiction in state court. 

Law of the Case

Some cases are difficult. Some are easy. The nice thing about the hard ones is you never really know if you get it right - that's why it's hard. But messing up the easy ones is a real kick in the pants. 

Worse, I guess, if you're a district judge. Worse if you get chastised, hard, by the appellate court. 

Take, for instance: 

After we have remanded a case with specific instructions, attorneys rarely attempt to have the district court defy our mandate. And even if they try it, a district court is seldom misled into that kind of error by them. This is one of those rare cases where the attorneys representing one side successfully urged the district court to act contrary to our mandate. Of course, we reverse that part of its judgment.

Or: 

Needless to say (or maybe not), a district court cannot amend, alter, or refuse to apply an appellate court’s mandate simply because an attorney persuades the court that the decision giving rise to the mandate is wrong, misguided, or unjust. A district court can, of course, wax eloquent about how wrong the appellate court is, but after the waxing wanes the mandate must be followed.

The source of this discord: the definition of "groceries." Winn Dixie says it means "food and household items." The folks Winn Dixie was suing say it means "food." There's a Florida case saying it means the former. The district court used the latter definition. The Eleventh Circuit said "wrong, see this prior Florida case." On remand, the defendants said "you don't have to follow the appellate court because that Florida case came after this contract, so the parties didn't negotiate based on that definition." The district court said "OK." The Eleventh Circuit said "Really, really, no." 

Further to AI meeting writing

I mentioned, recently, some questions about an AI algorithm that can grade briefs. I suggested it wouldn't work. 

To the same general point, this article about the shortcomings of translation by algorithm. If Google hasn't yet nailed translation, some third party is unlikely to have nailed brief-writing. 

An exciting marine topic

Your author's comments on punitive damages are reasonably frequent. Here, and here, and here, and here, for instance. 

So it is with some interest that I learn the Ninth Circuit finds that punitive damages are available for wanton unseaworthiness. The opinion is a careful one: the panel found that the Ninth Circuit used to allow punitive damages for wanton unseaworthiness, that its prior case hasn't been overruled, and therefore it's still good law. This sets up a circuit split with the Fifth Circuit, which means the 9th will likely look at this en banc, then maybe it'll go to the Supreme Court. 

The significance of whether punitives are available is all over the above posts, so I'll leave that be. And this case is covered broadly, so I'll leave that be too. I will, instead, offer a prediction:

This likelier than not gets reversed by the Supreme Court. Miles v. Apex, which held that nonpecuniary damages are unavailable in a death claim, was a unanimous decision, based on statutory interpretation. The Court held that Congress is entitled to grant X and Y for a remedy, and when Congress does that, the courts aren't free to add Z. The absence of Z from the statute means Congress didn't want Z as a remedy. "Oh, but that's the Jones Act, and unseaworthiness is a creature of federal common law." Yeah but the Miles court addressed that: 

It would be inconsistent with our place in the constitutional scheme were we to sanction more expansive remedies in a judicially created cause of action in which liability is without fault than Congress has allowed in cases of death resulting from negligence. 

To decide that punitive damages are available for wanton unseaworthiness, you have to decide that the 5-4 Atlantic Sounding v Townsend court overruled the unanimous Miles court, while saying it wasn't overruling anything. Or, you could use a simpler explanation: M&C are different - very different - from negligence and unseaworthiness. Negligence and unseaworthiness are reasonably similar. Their remedies overlap damn near entirely. M&C is categorically different. So it makes sense to have different remedies for M&C than there are for negligence, but it doesn't make sense to have different remedies for negligence than there are for unseaworthiness. 

I think the latter explanation is the cleaner one, and the easier to understand. I don't think this particular Supreme Court is likely to expand a seaman's remedies. Though promise a lot of ink will be spilled before it's said and done. 

Supplemental Jurisdiction

This space is reserved for the important stuff. Quirks in insurance decisions. Pictures of boats. Stuff that matters. Stuff you care about. Like the arcana of supplemental jurisdiction tolling periods. Good for the Supreme Court, because they care about this issue too, as they let us know in an opinion released today. 

When there's federal question or admiralty jurisdiction (28 USC 1331 or 1333) but not diversity jurisdiction (28 USC 1332), the federal court can hear state law cases arising out of the same case or controversy. Say for instance a boat spills oil all over. In remediating it, the vessel owner / others trespass on private property, doing a little damage and making the property owner unhappy. The property owner sues the trespasser under state law and the vessel, either under OPA-90 or general maritime law. The federal court can hear both because they arise out of the same ball of oily tar. It makes sense, or you'd have the possibility of inconsistent verdicts, and you'd have a lot of needless work to pursue two suits in two courts in the same time. But if you're a real stickler about federalism, it isn't ideal because you have federal courts hearing state court claims. (However, that's sort of baked into the constitution - diversity jurisdiction is an express guarantee that federal courts will hear state court claims.)

What if the federal cause of action gets dismissed? Then ordinarily the state claims get dismissed too, with the plaintiff able to re-file in state court on the following terms:

The period of limitations for any [state] claim [joined with a claim within federal-court competence] shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.

Does this language - "shall be tolled while the claim is pending" - mean that the clock stops on state law claims' statute of limitations / prescriptive period? Or does it mean the clock keeps running, but you get 30 extra days even if your time would otherwise be up?

Say you have a two-year period to file a suit under state law, and two years under federal law, but you file a suit after 18 months in federal court on both the federal and the state claims. That suit is pending for a year, then the federal law claims get dismissed. Do you have 30 days to re-file in state court (i.e. a 30-day grace period) or do you have six months? 

The Supreme Court says "tolling" means stopped. You have six months, not 30 days. If you filed suit on the last day and the federal court dismissed the federal law questions, you'd have 30 additional days to file your state law claims in state court. That seems . . . like a reasonable interpretation to me. Why is something like this at the Supreme Court? Why, for that matter, did it took 20 pages to do so, and a 5-4 opinion with 18 pages in dissent. Wow. If that weren't enough, check out Justice Gorsuch's last paragraph: 

The Court today clears away a fence that once marked a basic boundary between federal and state power. Maybe it wasn’t the most vital fence and maybe we’ve just simply forgotten why this particular fence was built in the first place. But maybe, too, we’ve forgotten because we’ve wandered so far from the idea of a federal government of limited and enumerated powers that we’ve begun to lose sight of what it looked like in the first place. If the federal government can now, without any rational reason, force States to allow state law causes of action in state courts even though the state law limitations period expired many years ago, what exactly can’t it do to override the application of state law to state claims in state court? What boundaries remain then?

I have to confess I don't quite get this. It is really not honoring the state's limitation period to say it's tolled while a federal suit is ongoing? The idea of federal jurisdiction over state law is literally in the Constitution, and before Erie (1938), federal courts applied federal law to state court claims. Certainly that was a much Bigger Deal against federalism than . . . tolling? And if the purpose of a statute of limitations is to encourage plaintiffs to file suit timely, to give notice to defendants, to grant finality, and to ensure evidence is preserved, aren't those accomplished here reasonably well? 

Opinion, for those interested. 

The brief-writing revolution will be digitized

At the forefront of data and the law: an effort to grade briefs. 

Just as sabermetrics and Moneyball changed how sports teams evaluate prospective players’ skills — moving the analysis from simplistic and subjective measures to sophisticated and objective measures — litigation data is finally detailed enough, and legal technology robust enough, to provide an objective measure of lawyer and law firm skills.

For good or ill, this effort does not instill confidence. It's a program into which you input briefs, and it outputs a score. The idea is that briefs can be graded based on typos / missed citations (fair). But past that, the whole idea seems iffy, and there's a big hole where there should be a "here's how we do it" section. The article talks about looking at "argumentation." (First, isn't that just 'argument'? And if you use the wrong word in evaluating writing, maybe that casts a little doubt on your other conclusions?) How does it evaluate argumentation? Well . . . I'm sure that's proprietary, so we don't know. We're told it can determine whether a case is being cited for the correct proposition, but that seems unlikely: assuming the software is accurate, I don't know of a good brief-writer who can't argue that "case x extends to bound y and no further." What would this program do with such an argument? I suspect the failure to tell us is revealing. 

What's suggested here is an automated program that can grade writing, and grade it well. The authors don't tell you, in any meaningful sense, how it works. If I had a program to grade writing well, I would sell it to a publisher. Or it stands to reason that if it can grade writing, it can write. Sell that! When the program starts spitting out better briefs than the lawyers, I'll start losing sleep. Until then, I suspect what's happening is this: the same folks paying piles of money might want to pay piles of money to grade the law firms it's paying, and hey, if there's money to be made, somebody will find a way. 

Coming next: Harry Morse LLC d/b/a Harry Big Data Regression Analysis Cryptolawcoin Morse. 

Oh no, a retrospective!

There aren't any new failures or any new successes in 2017. That seems unreasonable, or it seems like this experiment in self-government is coming to an end. 

Neither. Or at least I hope neither. There are a few cases percolating with results expected soon, and then we'll have additions. A lot have been resolved quickly, which is wonderful but doesn't count as either. And a few bigger issues are in the pipeline, results TBD. 

But measuring goals - better representation, promptly, reasonably - against results, I think the year has been a success. 

A New Old Thing (LOIA and Indemnity!!)

 It's here! The Fifth Circuit, en banc, has ruled on how to tell whether oilfield service contracts are maritime (indemnity is the best!) or under Louisiana law (no, it's the worst!). 

Brief explanation: the Fifth Circuit decided many years ago that maritime contracts aren't subject to Louisiana law. This has always been a bit of an odd conclusion: two companies in Louisiana contract for work that's definitely going to take part at least in part in Louisiana, and in part on the high seas. (Of those seas, some will be in Louisiana territorial waters, and others will not.) Louisiana cannot pass a law that is effective on that contract. What the what? What if Louisiana increased its minimum wage for vessel crewmembers or offshore workers? "Oh, well sorry Louisiana, that's federal maritime law. You can't touch it." And yet that's where we are. 

From there, things get weird. Let's say you're a jack-up rig, and your thing is doing jack-up rig things. Well, you're a boat. Maritime law. BUT you're also drilling wells and such. Louisiana law under OCSLA. What do we do? We get confused and we say "plugging and abandonment work is oil-related so Louisiana law applies." But we say "casing work is vessel work and maritime law applies." Why? Depends on the Fifth Circuit panel somebody drew a couple decades ago. 

And into this void steps Judge Eugene Davis, with a clear approach, which, in fairness, he is cribbing in large part from the Supreme Court. The Supreme Court ruled that a maritime contract is not one where you look at the site of the accident; it's one where you look at the focus of the contract. Is it salty? If so, it's maritime. If not, it's not. And that's the best description I can find of the in re Larry Dorion opinion. If a vessel plays a "substantial part" in the contract, it's maritime. If it doesn't, it's nonmaritime. What's a substantial part? We'll figure that out. 

I'm not sure how many outcomes this will change, but it will be interesting to see new cases percolate and see how courts determine what is or isn't maritime. 

Two sixth circuit insurance decisions

A young man, 22, got drunk. He got on a motorbike. He injured himself, severely. He submitted the medical bills to his insurer, but the policy excluded "[s]ervices, supplies, care or treatment of any injury or [s]ickness which occurred as a result of a Covered Person’s illegal use of alcohol."

Tough case, no? Does an accident as a result of drunk driving - an illegal act - constitute "illegal use of alcohol"? As it happens, according to the Sixth Circuit, no it does not: "illegal use" is "illegal consumption," not the after-effects. The opinion is here, and I should note it is very well-written. 

Distantly related Sixth Circuit case: Palmer Park Square v. Scottsdale Insurance. Palmer Park Square had a fire; Scottsdale was, allegedly, late in paying. Michigan, like Texas (see summary below) has a steep interest rate for insurers who are slow in paying. 

Palmer Park Square's insurance policy requires claims "under the policy" to be brought within two years. Palmer Park Square brought its claim for interest more than two years later, but less than six (six years being the statute's time limit). The district court said the claim for penal interest is "under the policy' so it must be brought within two years; the Sixth Circuit reversed: no, it's not a claim under the policy. 

That has to be the right result: Michigan passes a law to encourage insurers to pay timely. Michigan is saying it doesn't trust insurers to do this right by themselves. The insurer can't get around that with policy language. If it could, there would be no reason for the legislature to pass a punitive interest rate in the first place. 

horse law?

Nay. (Neigh? Do I get one pun a year?) 

Happy holidays. 

On laws versus norms

I am more than a year late to this paper, but in fairness to me trolling economics journals isn't high on my list of priorities. 

Why does it seem to happen that people who live below I-10 have terrible recoveries from surgeries, while people who live above it do better? Why do some folks cheat and steal, while others don't? Is it norms, or is it laws? I suppose, and Daron Acemoglu and Matthew O. Jackson back me up, that it's both. But it's a particular sort of both: norms are strengthened when working in concert. If the two are divergent, too much, it'll lead to worse outcomes. Stronger laws can reduce good among the law-abiding and increase it among the law breakers; it is preferable to strengthen laws gradually for that reason:

We further show that laws that are in strong conflict with prevailing social norms may backfire and lead to a significant decline in law-abiding behavior in society. In contrast, gradual imposition of moderately tight laws can be effective in changing social norms and can thus alter behavior without leading to pervasive lawlessness.

Laws have to reflect norms, up to a point. It's interesting to consider when thinking about how to resolve unwanted outcomes that are still pervasive. 

Fifth Circuit reads additional insured cover broadly

For some reason I tend to stand alone in getting worked up about additional insured language, and when I start in, the more reasonable-minded folks in my company sensibly back away rather than listen to me blather. 

In Lyda Swinerton Builders, Inc. v. Oklahoma Surety 16-20195 (5th Cir. Dec. 12 2017), the Fifth Circuit, applying Texas law, issued a clearly-written and sensible opinion on the topic. 

Lyda Swinerton was a general contractor. It hired AD Willis, a sub, for Willis to work as a carpenter and roofer. Lyda Swinerton sent a typically onerous indemnity / additional insured agreement, which Willis struck out, signed, and returned. Willis got a GL policy naming Lyda Swinerton as additional insured, 

"but only with respect to liability directly attributable to Willis' performance of Willis' work for Lyda Swinerton and its parent and affiliates." Elsewhere, the policy defined Willis' “work” as “work or operations performed by Willis or on its behalf” and “materials, parts or equipment furnished in connection with such work or operations.” The endorsement also stated that it applied “only when Willis has agreed by written ‘insured contract’ to designate Lyda Swinerton and its parents and affiliates as an additional insured subject to all provisions and limitations of this policy.” (cleaned up)

The customer sued Lyda Swinerton, and then amended and sued Willis among other companies, for problems that essentially stem from nonperformance - Lyda Swinerton just up and left the job. Negligence counts were added. 

The district court held, and the Fifth Circuit affirmed, that the insurer had a duty to defend (indeed, citing "when in doubt, defend.) Never mind that the underlying suit was for breach of contract, "it requires no more than a logical inference to conclude that at least some of the alleged property damage was potentially attributable to Willis." 

Because the insurer failed to defend, it was liable for an additional 18% interest per year(!!!) and attorneys' fees, regardless of the merit of the coverage position. ("Because Plaintiff had a duty to defend, and breached that duty, the Court necessarily concludes that Plaintiff violated the Prompt Payment of Claims Act by erroneously rejecting Defendants' requests for defense and delaying payment of fees and expenses incurred.") 

The take-away from the case, under Texas law, is that if you're going to deny coverage, you had better be sure you're right, or you'll face some real penalties. In light of how many policies give an insured an almost unlimited right to name others as additional insureds, there's some dangerous territory for both policy-based and extracontractual damages. 

OPA-90: Serious Business

A recent OPA-90 decision* further establishes a trend: the government tends to win. The DRD/ACL/Tintomara collision, where a DRD vessel under contract with ACL, pushing an ACL barge, which barge leaked 300,000 gallons on the Mississippi River, of course spawned litigation, including that about OPA-90. 

DRD declared bankruptcy, so the Coast Guard decided to pursue ACL. Under OPA-90, the "responsible party" is responsible for the entire cost of cleanup, regardless of fault, except with certain statutory maxima (which maxima only apply in the absence of gross or statutory fault). 

ACL argued it was not responsible: ACL was the contractor, and DRD was actually operating the vessel pursuant to contract. The Fifth Circuit disagreed, concluding the spill arose "in connection with" the ACL/DRD contract: 

“Connection” is therefore a capacious term, encompassing things that are logically or causally related or simply “bound up” with one another. It is, however, not so capacious as to be rendered meaningless. Conduct does not automatically occur “in connection with” a contractual relationship by the mere fact that such a relationship exists. See Westwood Pharm., Inc. v. Nat’l Fuel Gas Distrib. Corp., 964 F.2d 85, 89 (2d Cir. 1992) (interpreting virtually identical language in the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and holding that “[t]he mere existence of a contractual relationship . . . does not foreclose the owner of and from escaping liability”). Rather, the conduct must be causally or logically related to the contractual relationship. Accordingly, the third party’s acts or omissions that cause a spill occur “in connection with any contractual relationship” between the responsible party and the third party whenever the acts or omissions relate to the contractual relationship in the sense that the third party’s acts and omissions would not have occurred but for that contractual relationship. (emphasis mine.)

I dunno. That sounds like a broad reading of "in connection with" to me.

But wait, there's more. The Fifth Circuit next determines DRD was acting "pursuant to" its contractual relationship with ACL at the time of the accident because it was operating under the contract. 

Finally, the vessel captain was criminally culpable, so it was sort of a tap-in for gross negligence. Hard to see otherwise. However, it's worth pointing out that the Court immediately dispenses with the notion that ACL might not be responsible for this because there's ordinarily no respondeat superior for gross negligence: under OPA-90, the Court decides, there is. 

The upshot is that ACL didn't do anything wrong. Under common law, a charterer like ACL isn't responsible for the negligence of the chartered vessel. But under OPA-90, ACL is responsible for all $70m of its response costs and all $20m of the government's response costs. Ouch. 

What is interesting here is the Fifth Circuit does not mention Chevron deference, which is itself a little bit of a suspect doctrine right now pending review by the Supreme Court. 

*Your faithful reporter has an OPA-90 issue pending but will delay reporting on it until the result is known. 

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