michael a. golemi william w. pugh - willis group pugh.pdf · michael a. golemi. william w. pugh....
TRANSCRIPT
New Orleans | Lafayette | Houston | 1A Professional Law Corporation
Michael A. GolemiWilliam W. Pugh
Willis 2012 North America Energy Conference May 16, 2012
Contractual Risk Allocation in a Post- Macondo Environment
Overview
Significant Macondo decisions
Setting up a risk allocation program
Basic indemnity and insurance issues
Restrictions on indemnity and insurance in the oilfield
Texas Construction Anti‐indemnity Act
Survey: Top 4 Texas Country and Western Songs
from Texas Risk Managers
4.
How Can I Miss You . . .
If You Won't Go Away?
3.
You Got The Ring . . .
And I Got The Finger
2.
I Still Miss You Baby . . .
But My Aim's Gettin' Better
And the # 1 song is . . .
1.
If I Had Shot You When I First Wanted To . . .
I'd Be Out Of Prison By Now
In re Oil Spill 11/15/2011 Order re Insurance
BP sought declarations that it was an additional insured under Transocean’s
insurance policies and that the scope of coverage was governed by the policies
without reference to the drilling contract.
BP also sought declaration that its additional insured status reached the
pollution liabilities BP incurred with respect to the Macondo well.
In re Oil Spill 11/15/2011 Order re Insurance
Court distinguished cases refusing to consider underlying contract because policy at issue referenced
“Insured Contract”
in the additional insured provision.
Court also distinguished cases invalidating limitations found in additional insured provisions of underlying
contract because additional insured provision at issue referenced indemnities within the contract as opposed to extra‐contractual indemnity provisions.
Court also reasoned that additional insured provision was not separate from and in addition to indemnities because it limited the additional insured coverage
requirement to liabilities assumed in the contract.
In re Oil Spill 11/15/2011 Order re Insurance
Court held that BP is an additional insured under Transocean’s policies;
however, the scope of BP’s additional insured status is limited to the risks
assumed by Transocean in the drilling contract.
Pollution risks were allocated to BP, so BP does not have insurance coverage under
Transocean’s policies.
In re Oil Spill 1/26/2012 Order re Indemnity
BP argued:
• indemnification for Transocean’s gross negligence is against public policy
indemnity for punitive damages and civil fines/penalties under CWA is also against public
policy
Transocean’s breach of drilling contract invalidates indemnity
no attorney’s fees for pursuit of indemnity
no duty to assume defense of Transocean
In re Oil Spill 1/26/2012 Order re Indemnity
Court held:
• indemnification for gross negligence is not against public policy for compensatory damages; however, no indemnity for punitive damages – against public policy
• indemnity for civil fines/penalties is also against public policy (due to punitive nature)
• no attorney’s fees for pursuit of contractual indemnity
• no duty to assume defense of Transocean
Court deferred breach of drilling contract issue
Post‐Macondo World
Significant emphasis on contracts
Regardless of fault indemnityapproach likely to remain the same
Carve‐outs and add‐ons to baseindemnities will be more difficultto negotiate
Insurance coverages and provisionswill require more scrutiny
Keys to Contractual Risk Allocation
Understand the big picture
• Recognize the impact of drilling contracts
• Consider different reciprocal indemnity approaches
Prepare your “pass‐through”
protection plan
Develop your master service agreements (MSAs) and analyze how other contracts will
come into play
Coordinate with your risk management department and insurance broker
Anticipating the Broad Reciprocal Indemnity
In a common workplace, indemnities will generally apply regardless of fault
Drilling contract or other major contract is often the key contract
Drilling contractor will want indemnity for Operator’s people and property and
people and property of
Operator’s other contractors (Broad Group)
Operator will owe indemnity to drilling contractor every time there is an accident involving anyone
other than the drilling contractor
Broad Reciprocal in Drilling Contract Necessitates
a “Pass‐Through”
Provision
Indemnity scheme in drilling contract (and other major
contracts) affects all underlying contracts (with common workplace)
An Operator must have “pass‐through”
provisions in its underlying contracts (to pass indemnity from other
contractors to the drilling contractor)
Indemnity without a pass‐through mechanism won’t solve the problem
Always be aware of enforceability issues
Company
Drilling Wireline Vessel Casing Helicopter
Mud LoggingContractor
Subs, if any
Operator’s View
16 2/3 %
16 2/3 %
16 2/3 %
16 2/3 %
16 2/3 %
16 2/3 %
Drilling
Wireline
Helicopter
Casing
Mud Logging
Vessel
Company
What Happens Without a Pass‐ Through Provision
For every instance in which an Operator owes a broad reciprocal
indemnity, but the underlying
contract has no pass‐through
provision, the Operator will have no recourse!!!!
Foreman v. Exxon ‐
Contractual Situation
ExxonExxon(Indemnity)
EmployeeEmployee
Caterer Vessel(Charter)
OffshoreOffshore WirelineContractor
(Inde
mni
ty)
Diamond MDiamond M
Foreman v. Exxon - Contractual
Situation
ExxonExxon(10%)(10%)
(Indemnity)
EmployeeEmployee
Caterer Vessel(Charter)
OffshoreOffshore(35%)(35%)
WirelineContractor
Diamond MDiamond M(55%)(55%)
(Inde
mni
ty)
Foreman v. Exxon ‐
Result
Exxon Exxon (15%)(15%)(10%)(10%)
(Indemnity)
EmployeeEmployee
Caterer Vessel(Charter)
OffshoreOffshore(35%)(35%)
WirelineContractor
(Inde
mni
ty)
Diamond M Diamond M (85%)(85%)(55%)(55%)
Foreman v. Exxon - ResultOffshoreOffshore (15%)(15%)(10%)(10%)
(Indemnity)
EmployeeEmployee
Caterer Vessel(Charter)
OffshoreOffshore(35%)(35%)
WirelineContractor
(Inde
mni
ty)
ExxonExxon(85%)(85%)(55%)(55%)
Options for Obtaining “Pass‐ Through”
Protection
Three Options For Pass‐Through Protection:1)
Include contractual liability within scope of indemnity –
but
see (but see Colony Nat’l Ins. Co. v. Manitex, L.L.C. (5th Cir. 2/20/12)
2) Extend
indemnity protection to those to whom you owe contractual indemnity
3)
Extend
indemnity protection to
customers and subcontractors or other contractors and subcontractors
(and others) as indemnified parties (broad Group)• Use a broad defined term (such as “Company Group”)
to refer to a broadly defined group of indemnitees
Each option has pros and cons
Indemnity Basics
• MSA is a building block for most operations
• Must have valid “magic language”
to obtain indemnity for one’s own negligence
• Indemnity (and “magic language”) must be broad enough to extend to all intended beneficiaries
• Anticipate and address possible restrictions on indemnity
• Be aware of any issues relating to the scope of the indemnity or the scope of the MSA
• Deepwater Horizon ‐
indemnity for gross negligence (as opposed to release) is not against public policy under
maritime law ‐
indemnity for punitive damages is
Carefully Consider Who Should be the Indemnitees
Use defined term such as “Company Group”
Consider all parties you may want protected
Include contractors and subcontractors or use another approach to provide pass through protection
Expand use of “Company Group”• Allows consistent and uniform risk allocation scheme• Use same definition in insurance requirements and
certificate of insurance• Use same definition in other contracts if at all
possible
Anticipating Carve‐Outs, Add‐ons, and Other Exceptions
Avoid carve‐outs and add‐ons if possible
Limit carve‐outs to the actual risk intended (such as
well control costs) as opposed to “all claims arising out of . . . [a blowout]”
Well Control
Pollution
Loss of Reservoir
Gross Negligence
Insurance Basics
• Named as additional insured• Waiver of subrogation• Coverage must be primary (at least for risks assumed
by naming party)• Insurance not a limit on indemnity• Dovetail insurance with indemnity –
extend to same
parties• Insurance may provide more protection in some
instances
Insurance may provide more protection than indemnities
Insurance may provide more protection in some instances due to anti indemnity laws
Texas ‐
Getty
and Oryx
• Comply with Texas insurance language
• Include Getty
language
Insurance may provide more protection than indemnities (cont’d)
Louisiana‐consider application of Marcel
LHWCA ‐
insurance protection is
enforceable even if indemnity is invalid
under §
905(b)
State that minimum limits are not a
limitation or restriction on indemnity
Critical Maritime Endorsements
Endorse P&I Insurance:
• To provide full protection to Company Group additional insureds without limitation as to liability as
owner of the vessel (and delete any “as owner” restrictions)
• To prohibit reduction of limits for Company Group in the event of limitation of liability
Effect of Applicable Law
Maritime law ‐
indemnity and insurance generally fully
enforceable
• Drilling contract for jack‐up is maritime
• Be aware of § 905(b) of LHWCA
Determining applicable law is complicated and important in view of anti‐indemnity laws
Oilfield Anti‐Indemnity Acts
• Texas
• Louisiana
•New Mexico
•Wyoming
Louisiana Oilfield Indemnity Act (“LOIA”)
LOIA restricts indemnity and insurance
LOIA only applies to contracts relating to a well• Different analysis depending on whether
onshore or offshore
Applies to personal injury/death, not
property
damage
No insurance exception unless Operator pays
contractor’s insurance premium under Marcel v. Placid Oil Co.
Texas Oilfield Anti‐Indemnity Act
Applies to property damage and
personal injury/death
Exceptions for indemnity supported by insurance
• Unilateral indemnity ($500,000)
•Mutual indemnity (up to amount of insurance obtained “for the benefit of the
other party as indemnitee”) – no longer required to specify equal
amounts
Act does not apply to insurance that does not directly support the indemnity –
Getty
& Oryx
• Bill submitted to address problem for Owner Controlled Insurance Programs (“OCIPs”)
• Wanted to make sure OCIP policy would provide insurance protection for some
minimum period of time beyond performance
Legislative History
• All that remains of original bill is Section 151.051– requires OCIP policy that provides general
liability insurance coverage to provide completed operations insurance coverage for a
minimum period of three years• Section 151.151 added to prohibit indemnity
provisions and certain insurance protection
OCIP Bill was Hijacked
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 151.001.
DEFINITIONS.
In this chapter:(1)
"Consolidated insurance program”
means a
program under which a principal
provides general liability insurance coverage, workers' compensation
insurance coverage, or both that are incorporated into an insurance program for a . . . construction
project.
(8)
"Principal" means the person who procures the insurance policy under a consolidated insurance
program.
Sec. 151.001
DEFINITIONS (cont’d)
(2)
"Construction project" means construction, remodeling, maintenance, or repair of improvements
to real property.
The term includes the immediate construction location and areas incidental and
necessary to the work . . . .
(3)
"Contractor" means any person who has entered into a construction contract or a professional services contract and
is enrolled in the consolidated insurance
program.
Sec. 151.001
DEFINITIONS (cont’d)(5)
"Construction contract" means a contract, subcontract, . .
. entered into or made by an owner, architect, engineer, contractor, . . . for the design, construction, alteration, . . .
repair, or maintenance of, or for the furnishing of material or equipment for, a building, structure, . . . or other
improvement to or on . . . real property, including moving, demolition, and excavation connected with the real property.
(6)
"Indemnitor" means a party to a construction contract that is required to provide indemnification or additional
insured status to another party to the construction contract or to a third party.
SUBCHAPTER C. REQUIREMENTS RELATED TO INDEMNIFICATION
Sec. 151.101.
APPLICABILITY. (a)
This subchapter applies to a construction
contract for a construction project for which an indemnitor is provided or procures insurance subject
to:(1)
this chapter; or
(2)
Title 10.(b)
Subsection (a) applies regardless of whether the
insurance is provided or procured before or after execution of the contract.
Sec. 151.102.
AGREEMENT VOID AND
UNENFORCEABLE.
Except . . . 151.103, a provision in a construction contract,
or in an agreement collateral to . . . , is void and unenforceable as against public policy
to the extent that it
requires an indemnitor to indemnify, hold harmless, or defend a party, including a third party, against a claim
caused by the negligence or fault, the breach or violation of a statute, ordinance, governmental regulation,
standard, or rule, or the breach of contract of the indemnitee, its agent or employee, or any third party
under the control or supervision of the indemnitee . . . .
Sec. 151.103.
EXCEPTION FOR EMPLOYEE CLAIM.
Section 151.102 does not apply to a provision in a construction contract that requires a person to
indemnify, hold harmless, or defend
another party to the construction contract or a third party
against a claim for the bodily injury or death of an employee of the indemnitor, its agent, or its
subcontractor of any tier.
Sec. 151.104.
UNENFORCEABLE ADDITIONAL
INSURANCE PROVISION.(a)
Except as provided by Subsection (b), a provision in a
construction contract that requires the purchase of additional insured coverage, or any coverage endorsement,
or provision within an insurance policy providing additional insured coverage, is void and unenforceable
to the extent
that it requires or provides coverage the scope of which is prohibited under this subchapter for an agreement to
indemnify, hold harmless, or defend.(b)
This section does not apply to [an OCIP policy]
Sec. 151.105.
EXCLUSIONS.This subchapter does not affect:(1)
an [OCIP] insurance policy . . . ;
(3)
indemnity provisions contained in loan and financing documents, other than construction contracts to which the
contractor and owner's lender are parties . . . ;
(7)
agreements subject to [TOAIA];
CAIA Impact Largely Limited to Property
• Indemnity/insurance available for bodily injury/death claims
• What protection for property damage?
• Current industry approach• Owner carries property insurance on its own
property and gives some benefit to the contractor
• Owner either carries or self‐insures liability for damage to the work (but usually caps contractor’s
exposure)
Best Case Argument
• CAIA does not prohibit owner of property from insuring its property and releasing its claim against
the other party
– “Releases”
are not prohibited
–No prohibition of “waivers of subrogation”
–Arguably nothing to prevent property owner from releasing all claims, regardless of fault, and
requiring its insurers to waive subrogation
Rationale
Statute only prohibits indemnity and additional insured, which address liability
claims
An owner should always be able to release
his own claim and require his insurer to do the same
Consistent with standard practice
Avoids duplicate insurance
Conclusion
• Develop a plan for contracts to fit together• Understand the need for pass‐through
protection and the impact of different reciprocal risk allocation provisions
• Design the MSA to obtain maximum flexibility while still maximizing protection
Conclusion (cont’d)
• Try to anticipate and guard against carve‐ outs, gaps, and enforceability issues
• Indemnity and insurance are important risk allocation tools, but they must fit with an
overall plan to be effective
• Contracts may be more difficult to negotiate in a post‐Macondo world
• Texas CAIA raises some difficult questions
Conclusion (cont’d)
• Best protection is understanding and anticipating the risks
• Choose the best option under the circumstances
• If there is a problem . . .