District Court Finds Policy Language Ambiguous; Rules for Insured

 Intransit Inc. v. Travelers Property and Casualty Company of America, District Court of Oregon Cause no. 1:11-cv-03146-CL, Order on Motion for Summary Judgment (Dkt. No. 37) (October 22, 2012)

This case involves whether an insurer's Inland Marine liability policy covering loss of property during transit, covers theft by a fraudulent or imposter carrier.  Finding the policy language ambiguous, the court construed it in favor of coverage and found for the insured. 

In October 2010, Travelers sold plaintiff inland marine insurance, providing up to $300,000 in coverage for property being transported from one location to another. The policy covered loss of the "property of others ... [f]or which [the insured] arranged transportation with a 'carrier' of the type described in the Declarations ... "  The declarations defined "carrier" as any railroad company, motor transportation company, or air freight company.  The policy also contained an exclusion that barred any coverage for losses resulting from "dishonest or criminal acts" by the insured's employees, carriers, and others with "interest in, or entrusted with, the property."  The endorsement, however, provided limited coverage up to $50,000 for property losses resulting from dishonest acts by a carrier.

The insured hired a third-party carrier to transport a shipment of LCD monitors.  An individual who represented himself as an employee of the transporter picked up the load of LCD monitors, but the load never made it to its destination.  A subsequent criminal investigation found that an imposter had posed as a driver of the transporter and had stolen the cargo.

The insured filed a proof of loss with Travelers.  Travelers took the position that the fraudulent or imposter carrier was still a "carrier" under the policy and paid the $50,000 limits for dishonest acts by a carrier.  The insured disputed Traveler's coverage determination, arguing that the policy fully covered theft by fraudulent or imposter carriers and that it should be awarded $300,000 under the general coverage grant.

The policy language at issue provides:

I. Coverage grant.

The policy in the coverage grant provides as follows:

COVERAGE

We cover "loss" to Covered Property from any of the Covered Causes of"Loss."

1. Covered Property, as used in this Coverage Form, means property of others:

(a) For which you have arranged transportation with a "carrier" of the type

described in the Declarations; and

(b) That you have agreed to insure.

We cover such property while in the due course of transportation.

DEFINITIONS

1. "Carrier" means any

a. Railroad company;

b. Motor transportation company; or

c. Air freight company.

II. Exclusions.

The policy in the exclusion section provides as follows:

We will not pay for "loss" caused by or resulting from any of the following:

a. Delay, loss of use, loss of market, loss of income, interruption of business or

any other consequential loss.

b. Dishonest or criminal acts by any of the following whether or not acting alone

or in collusion with other persons or occurring during the hours of

employment:

(1)   You, your employees or authorized representatives;

(2) The "carrier" or its employees or authorized representatives; or

(3) Anyone else with an interest in, or entrusted with, the property.

But this exclusion does not apply to coverage provided by the "carrier"

Dishonesty Additional Coverage.

III. Endorsement.

The endorsement in the exclusion section provides as follows:

"Carrier" Dishonesty

We will pay up to $50,000 in any one occurrence for loss of or damage to

Covered Property caused by or resulting from any fraudulent, dishonest, or

criminal act committed by a "carrier." But this Additional Coverage does not

apply to any fraudulent, dishonest, or criminal act committed by you.

In their motions for summary judgment to the district court, the insured and Travelers offered competing interpretations of two terms in the insurance policy: "carrier" and "entrustment."  Travelers argued that the term "carrier" means "legitimate carrier," and thus the coverage grant only covers property loss when the carrier transporting the load is legitimate. Travelers further contended that because its loss was the result of a transportation arrangement with a fraudulent or imposter carrier, the insured cannot recover anything under the policy's general coverage grant. In response, the insured contended it "arranged transportation with a carrier" or at a minimum the meaning of "carrier" is ambiguous, and thus should be construed in plaintiffs favor to include "fraudulent or legitimate carrier" and cover plaintiffs loss up to $300,000.

Finding that the term “carrier” remained ambiguous after a Hoffman analysis, the court interpreted it against the drafter and in favor of the insured. Hoffman, 313 Or. 464 at 469. Accordingly, the court concluded, the “term "carrier" in the coverage grant is construed in favor of plaintiff to include fraudulent or imposter carriers, including the fraudulent or imposter representative of C&A. Defendant could have easily clarified the coverage grant by defining "carrier" to only include "authorized," "legitimate," or "licensed" carriers.”

The court further found that the term “entrust” was ambiguous regarding whether an insured could actually “entrust” property to an imposter and thus found that exclusion (b)(3) did not apply to preclude coverage despite the fact that Travelers argued that the insured had entrusted its shipment to the imposter carrier.  “The court's finding that Exclusion (b)(3) is ambiguous and thus should be construed in favor of plaintiff is bolstered by the fact that defendant could have avoided ambiguity by drafting the policy to specifically exclude coverage for "theft by fraud, false pretense or trickery by imposters."”

Oregon District Court Weighs in on the Standard for the Duty to Pay a Settlement

The Regence Group, et al. v. TIG Specialty Insurance Company, Oregon District Court Cause No. 3:07-cv-01337-HA, October 12, 2012 Opinion and Order on Summary Judgment (Dkt. No. 846)

Facts

Defendant TIG issued a Managed Care Organizational Liability Insurance Policy to Regence for the period of January 1, 2001 to January 1, 2002.  The Policy provided coverage for managed care errors and omission liability, as well as insurance company errors and omissions. The Policy had professional liability limits of $50 million per claim/$ 50 million aggregate, and a self-insured retention applicable to indemnity of $250,000 per claim/$500,000 annually.

The Policy provided that TIG would pay sums Regence was obligated to pay as damages, including damages assumed under contract, arising out of" [ w ]rongful acts committed in the course of your business operations" and "[w]rongfu1 acts committed in the course of your providing insurance services."  The term "wrongful act" is defined under the Policy as "a negligent act, error, omission, misstatement or misleading statement, or breach of duty." "Insurance services" is defined as "services of an insurance company rendered by or on behalf of the insured, including such services provided to  others," which includes "[c]laims handling and adjusting."

"Business operations" is defined under the Policy as:

   a. Review of healthcare services, including the cost of health care or necessity

of healthcare and utilization review/management, to evaluate the appropriate

use of medical care resources, including but not limited to:

      • Cost of health care;

      • Necessity of healthcare;

      • Prospective review to authorize treatment or expenses;

      • Concurrent review to evaluate continued patient care;

      • Retrospective review to evaluate medical services already rendered; or

      • Case management or disease management.

  b. Claims handling.

  c. Provider selection, contracting, retention, supervision, monitoring and

termination [and]

  d. The following activities or services you provide, or contractually agree to

provide: ...

      • Development of practice guidelines and treatment protocols which affect

healthcare treatment decisions ....

The Policy also included several exclusions, including the capitation exclusion, which provided that the Policy did not apply to "Business Risks." According to the Policy, "Business Risks" included claims arising out of "[c]apitation payments, including any withholds for risk or bonus agreements, or payments, fee-for-service payments or other salary payments owed to contracted or employed health care providers[.]"

In exchange for an additional premium, Regence specifically negotiated coverage for RICO claims and an endorsement was added to the policy to that deleted the RICO exclusion in the policy.  Regence believed that it was covered for all types of RICO claims, but TIG limited coverage to only certain types of RICO claims.  However, TIG never communicated to Regence that it was its position that the capitation exclusion would preclude coverage for RICO claims.

Regence was sued in 2001 in three class action lawsuits alleging RICO claims.  TIG agreed to defend Regence in all three actions, reserving its right to assert the capitation exclusion.  In all the actions, the plaintiffs alleged that Regence violated RICO by systematically denying, delaying and or diminishing the payments due to physicians so they the physicians were not paid in a timely manner. 

Public Policy

First, TIG argued that Oregon public policy precluded coverage for RICO claims which are based on intentional conduct.  The court found that there was a genuine issue of material fact that precluded summary judgment on this question.  The court found that Regence’s choice to settle the class action cases was not an affirmation that it violated RICO, rather the decision to settle could have been made for business decisions.  Moreover, the court found that there had been no showing or evidence developed that Regence ever specifically intended to cause injury by entering into the alleged conspiracy.  If TIG were to convince a jury that Regence acted intentionally to cause harm, then public policy likely would preclude coverage for the RICO claims.

What Standard Applies When Determining whether an Insurer Has a Duty to Pay a Settlement?

Next, the Court was asked to determine whether TIG had a duty to indemnify Regence for the settlement amount.   The court found that although the Oregon courts have not decided this issue, other courts have held that when an insured settles a claim before trial, the court in a coverage action should determine whether the settled claims fall within the coverage of the policy by looking at the facts inherent in the settlement and the allegations in the underlying complaint. See, e.g., Texas Farmers Ins. Co. v. Lexington Ins. Co., 380 F. App'x 604, 607 (9th Cir. 2010) (quoting In re Feature Realty Litig., 468 F. Supp. 2d 1287, 1295-96 (E.D. Wash. 2006)); Travelers Ins. Co. v. Waltham Indus. Labs.Corp., 883 F.2d 1092, 1099 (1st Cir. 1989) (stating that the duty to indemnity following a settlement is determined by the basis of the settlement); Am. Home As sur. Co. v. Dykema, Gossett, Spencer, Goodnow & Trigg, 811 F.2d 1077, 1083 (7th Cir. 1987) ("Because the case was settled before trial, [the underlying] allegations are accepted as true for purposes of determining insurance coverage.”).

Regence, however, argued that when an insured settles a potentially covered claim, Oregon courts use the duty to defend analysis to determine whether the settled claim falls within the coverage of the policy. See Am. Hardware Ins. Grp. v. West One Auto. Grp., Inc., 2 P.3d 413, 415 (Or. Ct. App. 2000) ("Because defendant settled [the underlying] claims, the duty to indemnify is determined by the same principles."). The court stated, “Regence appears to have misunderstood the standard. No other court has followed the reasoning in American Hardware, and in fact, the case on which the court in American Hardware relies holds to the contrary. See id. (citing Nw. Pump & Equip. Co. v. Am. States Ins. Co., 925 P.2d 1241, 1243 (Or. Ct. App. 1996) ("The duty to defend is triggered by the bare allegations of a pleading. In contrast, the duty to indemnify is established by proof of actual facts demonstrating a right to coverage.")).”

Capitation Exclusion

The court found that the TIG policy unambiguously provided that it would pay both defense and indemnity for RICO claims.  Interestingly, the court resorted to extrinsic evidence surrounding the formation of the policy to determine what the unambiguous language of the policy provided.  Resorting to extrinsic evidence, as well as judicial estoppel, the Court explained, “This court need not decide which authority's reasoning is more persuasive because TIG represented to its reinsurers during arbitrations that the Policy provided coverage for the Thomas claims. As a result, the court deems TIG to have admitted that the capitation exclusion does not apply to the claims alleged in Thomas.”

Bad Faith/  Special Relationship

TIG argued that there was no special relationship between it and Regence because with regard to the duty to defend, the parties had entered into an agreement that “Regence maintained "the control of the defense of the litigation" in Thomas, and was authorized to "make the ultimate decisions relating to the strategy, including but not limited to, whether to settle; the terms and conditions of any settlement; the amount of any settlement .... "   However, the court also found that the parties agreed to discuss "all major strategic decisions" about the defense of Thomas, agreed to "work together to try to adopt mutually agreeable strategies," and that Regence shared privileged documents with TIG.”   The court found, under the facts of this case, that this was enough to give rise to a special relationship.