Lloyd's Syndicate 457 v. FloaTEC, L.L.C.
Lloyd's Syndicate 457 v. FloaTEC, L.L.C.
Opinion
This case concerns a disputed siting of Big Foot in the Gulf of Mexico. We refer to a floating oil-drilling platform that rests on four massive columns-hence the name "Big Foot"-moored by steel tendons to the ocean floor. Chevron, which operates and co-owns Big Foot, contracted with FloaTEC to engineer the tendons. During installation in 2015, several tendons failed, causing Chevron huge losses. Big Foot was insured by various Lloyd's of London syndicates (collectively, "Underwriters") through a policy issued to Chevron. To cover the tendon mishap, Underwriters paid Chevron over $500 million and then went looking to recoup that money. Among others, Underwriters sued FloaTEC. Underwriters claimed that, having paid Chevron's losses under the policy, they were subrogated to Chevron's right to sue FloaTEC for damages caused by the tendon failures.
Eventually the case landed in federal district court and FloaTEC moved to dismiss. FloaTEC argued that it qualified as an "Other Assured" under Underwriters' policy and that the policy waives subrogation against "Other Assureds"-hence Underwriters' subrogation-based claims *511 should fail. Underwriters responded in two ways. First, they argued that the subrogation issue should be decided by an arbitrator, not the district court, by virtue of the broad arbitration clause in Chevron's contract with FloaTEC. Second, Underwriters argued that, in any event, FloaTEC was not an "Other Assured" under a proper reading of the policy.
The district court sided with FloaTEC on both points. It decided the arbitration clause did not apply because Underwriters were not a party to the Chevron/FloaTEC contract. It then decided FloaTEC did qualify as an "Other Assured" under the policy, thus enabling FloaTEC to raise the subrogation waiver. The court dismissed Underwriters' claims with prejudice.
Underwriters appeal both issues. We affirm.
I.
A.
Big Foot is a major deepwater oil drilling project in the Gulf of Mexico off the Louisiana coast. It is located on the Outer Continental Shelf in the Walker Ridge Area, Block 29, about 225 miles south of New Orleans. The project is operated by Chevron, which co-owns it with Statoil Gulf of Mexico LLC and Marubeni Oil & Gas (USA) Inc. As part of the project, in 2015, Chevron began to build and install an "extended tension-leg platform" that would be anchored to the seafloor almost a mile below. This is a photo of the platform in transit to Walker Ridge:
The platform would be kept stationary by sixteen steel tendons attached to pilings driven into the seafloor. These tendons were critical to the floating platform's stability.
Chevron contracted with FloaTEC to provide engineering services in connection with Big Foot, including the design and installation of the tendons. We will refer to the Chevron/FloaTEC agreement as the "Chevron/FloaTEC Contract" or simply the "Contract." The Contract required FloaTEC to maintain specific kinds of insurance related to the performance *512 of its duties on the project. The Contract also included a broad arbitration clause, empowering a chosen arbitrator or arbitrators to "rule on objections concerning jurisdiction, including the existence or validity of this arbitration clause and existence or the validity of this Contract[.]"
Big Foot was insured by Underwriters through an Offshore Construction Project Policy with Chevron. We will refer to this Underwriters/Chevron agreement as the "Underwriters/Chevron Policy" or simply as the "Policy." The Policy was written on a "WELCAR 2001" form, a standard construction risk policy developed for the offshore energy market at Lloyd's in the late 1990s. See, e.g., Tim Taylor, Offshore Energy Construction Insurance: Allocation of Risk Issues , 87 TUL. L. REV. 1165, 1170 (2013) ("Taylor"). Risks covered by the Policy included physical loss or damage to Big Foot incurred during the project's design and engineering. The Policy included a clause stating that Underwriters agreed to "waive rights of subrogation" against any "Principal Assureds" or "Other Assureds." "Other Assureds" were defined in a separate section of the Policy to include "[a]ny" other companies with whom Chevron had "entered into written contract(s) in connection with the [Big Foot] Project."
In mid-2015, before the platform's stabilizing tendons had been installed, nine of the sixteen tendons detached from their supporting buoys and plummeted to the seafloor. An investigation revealed that the bolts holding the tendons to the buoys had come loose. Chevron rejected the remaining seven tendons and had them sent back to shore. The failure of the tendons and the resulting delay to Big Foot caused Chevron huge losses. As a result, Underwriters paid Chevron over $500 million under the Policy.
B.
Seeking to recoup those payments, Underwriters filed a lawsuit in a Texas state court in May 2016, naming as defendants various contractors connected to Big Foot, including FloaTEC. Underwriters alleged FloaTEC had negligently designed and manufactured the tendons and attachment bolts and had therefore caused the damages to Big Foot. Prior to service of process, claims against all defendants except FloaTEC were dropped. FloaTEC removed the case to federal court.
Underwriters then filed an amended complaint, adding the claim that FloaTEC breached its contract with Chevron. Underwriters' claims against FloaTEC were all based on subrogation-meaning Underwriters sought to stand in Chevron's shoes by virtue of having paid Chevron's losses under the Policy.
See
LA. CIV. CODE art. 1825 (subrogation is "the substitution of one person to the rights of another" and "may be conventional or legal");
id.
art. 1827 ("conventional" subrogation occurs when "[a]n obligee who receives performance from a third person ... subrogate[s] that person to the rights of the obligee, even without the obligor's consent");
see also, e.g.,
Old Repub. Life Ins. Co. v. Transwood, Inc.
, 2016-0552 (La. App. 1 Cir. 6/2/17),
FloaTEC moved to dismiss for failure to state a claim and, alternatively, to compel arbitration if the court found Underwriters had stated a claim. FloaTEC's argument for dismissal hinged on three clauses in *513 the Underwriters/Chevron Policy. The first clause, entitled "Subrogation," states:
Underwriters shall be subrogated to all rights which the Assured may have against any person or other entity, other than Principal Assureds and Other Assureds , in respect of any claim or payment made under the Policy (emphasis added).
The second clause, entitled "Waiver of Subrogation," states:
Underwriters agree to waive rights of subrogation against any Principal Assured(s) and/or Other Assured (s) including drilling contractors and/or their sub-contractors (emphasis added).
Finally, the third clause defines "Other Assureds" to include:
[a]ny other company, firm, person, or party ... with whom [various entities including Chevron] have entered into written contract(s) in connection with the [Big Foot] Project."
FloaTEC argued that it qualified as an "Other Assured" and that Underwriters' claims were therefore barred by the Policy's subrogation waiver. Underwriters opposed FloaTEC's motion, arguing (1) FloaTEC was not an "Other Assured" under the Policy, and (2) FloaTEC had waived any right to arbitration by moving to dismiss.
The district court agreed with FloaTEC that it was an "Other Assured" under the Policy and that Underwriters' claims were thus barred by the subrogation waiver. The court therefore dismissed Underwriters' claims with prejudice for failure to state a claim. 1 Underwriters appeal.
II.
We review
de novo
a dismissal for failure to state a claim, asking whether the plaintiff "fail[ed] to allege any set of facts in support of his claim which would entitle him to relief."
Taylor v. Books A Million, Inc.
,
III.
Underwriters' appeal requires us to consider two related issues. First, we must decide whether the district court improperly disregarded the arbitration clause in the Chevron/FloaTEC Contract when it ruled, as an initial matter, on FloaTEC's motion to dismiss. If we decide that the district court properly considered FloaTEC's motion to dismiss before any arbitrability issue, then, second, we must decide whether the court's ruling on the motion to dismiss was correct. We consider each issue in turn.
A.
Underwriters argue that the Contract's delegation clause required the district court to send their claims to arbitration instead of ruling on FloaTEC's motion to dismiss. That clause, Underwriters assert, "clearly and unmistakably" delegates to the arbitrator all "gateway arbitrability issues," including whether the Policy's subrogation
*514
waiver bars their claims.
See, e.g.,
Petrofac, Inc. v. DynMcDermott Petroleum Oper. Co.
,
Underwriters misread our precedent. To assess whether a claim must be arbitrated, we follow a two-step analysis. At step one, "the court must determine 'whether the parties entered into
any arbitration agreement at all
.' "
IQ Prod. Co. v. WD-40 Co.
,
*515
Underwriters skip the first step of the analysis. They would compel arbitration of their claims against FloaTEC based on the Contract's delegation clause. But that is step two. Underwriters must first contend with the step one question, which is whether they "form[ed] a valid [arbitration] agreement" with FloaTEC to begin with.
IQ Prod.
,
The district court correctly treated this subrogation issue as a step one inquiry because it goes to whether any arbitration agreement exists between Underwriters and FloaTEC. If the Policy bars Underwriters from stepping into Chevron's shoes and benefitting from the Contract's delegation clause, then Underwriters and FloaTEC never "entered into
any arbitration agreement at all
."
IQ Prod.
,
Underwriters cannot avoid this outcome by calling the subrogation issue a "merits-based affirmative defense" to its claims against FloaTEC. That again ignores that we have two contracts here, not one. If we were dealing with a disagreement between Chevron and FloaTEC concerning FloaTEC's engineering of Big Foot's tendons, we might have a "merits-based" issue that would presumably have to be arbitrated under the Contract. We have nothing like that here, however. FloaTEC argues Underwriters were not parties to the Contract at all and so could not invoke the Contract's delegation provision in the first place. This is not a dispute about the "merits"
*516
of Underwriters' claims; it is "a simpler type of dispute which, we have held, is for the courts and not the arbitrator to decide in the first instance: a dispute over whether the parties entered into any arbitration agreement in the first place."
For the same reason, Underwriters are wrong that FloaTEC "gamed the system by asking the district court to first determine the merits" and, if that failed, asking "to send the case to mandatory arbitration" for a second bite at the apple. As explained, FloaTEC's motion to dismiss did not ask the court to "determine the merits" of Underwriters' claims; it asked the court to rule that Underwriters could not be subrogated to Chevron's rights. And FloaTEC asked for arbitration
only if
the court ruled that Underwriters
were
subrogated to Chevron's rights. By making these alternative requests, FloaTEC was not "gaming the system"-it was covering its bases.
Cf.
Mirant
,
In sum, we conclude the district court correctly ruled on FloaTEC's motion to dismiss before addressing any issue concerning the arbitrability of Underwriters' claims. 6
B.
We turn to Underwriters' argument that the district court erred by dismissing its claims against FloaTEC. The district court reasoned that FloaTEC qualified as an "Other Assured," as defined in the Policy, because FloaTEC "entered into a written contract" with Chevron "in connection with the [Big Foot project]." The court therefore concluded that Underwriters' subrogated claims were barred, because in the Policy Underwriters "agree[d] to waive rights of subrogation against any ... Other Assured(s)."
On appeal, Underwriters contend the district court misread the Policy. They focus, not on the definition of "Other Assured," but on a distinct clause entitled "Special Conditions for Other Assureds," which provides as follows (we present the three sentences of the clause separately for easier reading):
[1] The interest of the Other Assured(s) shall be covered throughout the entire Policy Period for their direct participation in the venture, unless specific contract(s) contain provisions to the contrary.
[2] The rights of any Assured under this insurance shall only be exercised through the Principal Assureds.
[3] Where the benefits of this insurance have been passed to an Assured by contract, *517 the benefits passed to that Assured shall be no greater than such contract allows and in no case greater than the benefits provided under the insuring agreements, terms[,] conditions[,] and exclusions in the Policy (brackets added).
The definition of "Other Assured," argue Underwriters, must be read in light of these Special Conditions. Specifically, they say the clause's first and third sentences require consulting the Chevron/FloaTEC Contract to see whether Chevron is obligated to provide insurance coverage to FloaTEC under the Policy. If not, Underwriters argue that FloaTEC cannot qualify as an "Other Assured" and so cannot invoke the Policy's subrogation waiver. Moreover, Underwriters contend that by defining "Other Assured" in isolation, the district court rendered the Special Conditions clause meaningless. They argue that, "[i]f possession of a written contract [with Chevron] alone was sufficient to qualify for full coverage under the [Policy], there would be no need for the Special Conditions provision."
To resolve this issue, we apply Louisiana law
7
governing contract interpretation.
See generally
LA. CIV. CODE , bk. III, tit. IV, ch. 13;
Applying these principles to the insurance contract at issue, we reject Underwriters' arguments that the district court misread its terms. To the contrary, the court correctly found FloaTEC to be an "Other Assured" under the Policy and thus correctly concluded that Underwriters' claims against FloaTEC are barred by the Policy's subrogation waiver.
First, the "plain ... meaning" of the Policy qualifies FloaTEC as an "Other Assured."
Cadwallader
,
Tellingly, Underwriters' arguments are not directed to the text of the "Other Assured" definition or the subrogation waiver. Instead, they rely on cases allegedly standing for the proposition that an "Other Assured" must be entitled to insurance coverage from a Principal Assured.
See, e.g.,
WH Holdings, LLC v. Ace Am. Ins. Co.
,
The policies in Underwriters' cases limit an "insured" to entities a principal is obligated to insure.
See
WH Holdings,
Second, we disagree with Underwriters that the Special Conditions clause somehow alters or qualifies the Policy's otherwise unambiguous definition of "Other Assured." Nothing in the Special Conditions clause purports to modify that definition. To the contrary, the clause assumes that its conditions apply only to entities that already
are
"Other Assureds." Nor does the clause purport to modify the Policy's subrogation waiver, which unambiguously "waive[s] rights of subrogation against ... Other Assured[s]." Reading the Special Conditions clause to strip an otherwise-qualified entity of "Other Assured" status, as Underwriters urge us to do, would be an impermissible "exercise of inventive powers to create an ambiguity where none exists."
Cadwallader
,
Even if we possessed that revisionary authority-and could pretend the Special Conditions clause somehow modifies the definition of "Other Assured"-that would not help Underwriters. We would then be left with an insurance contract ambiguous on what constitutes an "Other Assured," and ambiguous on how the subrogation waiver applies. But it is bedrock law that ambiguous insurance provisions are read
against
the insurer and in favor of coverage.
LeBlanc v. Aysenne
, 2005-0297 (La. 1/19/06),
If there were any doubt on this point, the record shows that Underwriters and Chevron knew exactly how to limit "Other Assured" status in the Policy. The parties struck through a provision in the Special Conditions section that made conformity with certain "Quality Assurance/Quality Control system(s)" a " condition precedent ... to benefit from the Other Assureds status " (emphasis added). 8 If Underwriters *520 and Chevron wanted to impose a similar condition precedent for required Policy coverage (or anything else), a template was thus readily available: The parties could have inserted a provision making Chevron's obligation to extend Policy coverage a "condition precedent" to an entity's ability to benefit from "Other Assured" status or from the subrogation waiver. They did not, and we cannot do it for them.
We also reject Underwriters' argument that allowing FloaTEC to benefit from the subrogation waiver as an "Other Assured" renders the Special Conditions clause "meaningless." To be sure, we must read an insurance contract to give every provision meaning. LA. CIV. CODE art. 2050 ;
see, e.g.,
Arias-Benn v. State Farm Fire & Cas. Ins. Co.
,
*521
This reading harmonizes the "Other Assured" definition and the Special Conditions clause. The definition concerns a party's
status
as an "Other Assured," whereas the clause concerns the
extent
to which an "Other Assured" may claim Policy coverage. By arguing that a party has "Other Assured" status only insofar as it has coverage, Underwriters conflate status and extent of coverage. But the Policy does not. As the district court cogently explained, "the Policy definition of an Other Assured ... plainly does not require the contract between [Chevron] and [FloaTEC] to address the subject of insurance[.]" Moreover, under the rules of contract interpretation, we should avoid an interpretation of the Special Conditions clause that overrides the plain language of the "Other Assured" definition.
See, e.g.,
Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC
, 2012-2055 (La. 3/19/13),
Finally, another reason for rejecting Underwriters' counter-textual reading of the Policy (and for accepting the district court's textual reading) is that Underwriters' reading collides with the "anti-subrogation" rule. Under this "fundamental principle of insurance law[,]" "[a]n insurer cannot by way of subrogation recover against its insured
or an additional assured
any part of its payment for a risk covered by the policy."
Peavey v. M/V ANPA
,
[W]hen underwriters issue a policy covering an additional assured and waiving 'all subrogation' rights against it, they cannot recoup from the additional assured any portion of the sums they have paid to settle a risk covered by the policy, even on the theory that the recoupment is based on the additional assured's exposure for risks not covered by the policy .
*522
Underwriters' awkward yoking of "Other Assured" status to the Special Conditions clause would bring their suit perilously close to the antisubrogation danger zone. Recall Underwriters' theory: Despite the Policy definition, they say FloaTEC is not an "Other Assured" (and thus can be sued via subrogation) solely because the Contract withholds full Policy coverage from FloaTEC. This is precisely the forbidden scenario laid out in Judge Rubin's
Marathon Oil
opinion: (1) Underwriters would "recoup from [an] additional assured [
i.e.
, FloaTEC] sums they have paid to settle a risk covered by the policy"; (2) the Policy "waiv[es] ... subrogation" against an "additional assured"; and (3) Underwriters rely "on the theory that the recoupment is based on [FloaTEC's] exposure for risks not covered by the [P]olicy."
MarathonOil
,
IV.
To sum up, we conclude that the district court properly ruled on FloaTEC's motion to dismiss Underwriters' claims before considering arbitrability. We also conclude that the district court correctly found FloaTEC was an "Other Assured" under the Policy and could thus invoke the subrogation waiver. We therefore affirm the district court's judgment dismissing Underwriters' claims with prejudice.
AFFIRMED.
In the order dismissing FloaTEC, the district court also denied a motion to dismiss or to compel arbitration filed by another defendant, American Global Maritime, Inc., which had been added by Underwriters' amended complaint. The court subsequently granted Underwriters' motion for partial final judgment under Federal Rule of Civil Procedure 54(b), allowing Underwriters to appeal the dismissal of its claims against FloaTEC.
See, e.g.,
Johnson v. Ocwen Loan Servicing
, LLC,
As already explained, the delegation clause provides that "[t]he ... arbitrators have the power to rule on objections concerning jurisdiction, including the existence or validity of this Contract." Given our resolution of this issue, we need not determine whether Underwriters are correct that the clause "clearly and unmistakably" delegates arbitrability to the arbitrator.
Cf., e.g.,
Petrofac
,
Along with other circuits, we previously recognized a narrow exception to this rule when "a claim of arbitrability is 'wholly groundless.' "
IQ Prod.
,
The parties submitted post-argument briefs addressing the impact, if any, of the Supreme Court's recent decisions in
Schein
,
Underwriters urge that arbitration is "strongly favored" and should be granted unless the pertinent arbitration clause is "not susceptible of an interpretation" that would cover the dispute.
See, e.g.,
Sedco, Inc. v. Petroleos Mexicanos Mexican Nat. Oil Co. (Pemex)
,
Given our resolution of this threshold issue, we need not consider FloaTEC's alternative argument that Underwriters waived their right to argue for arbitration now by opposing arbitration below.
As the district court correctly found, Louisiana law applies under the Outer Continental Shelf Lands Act.
See
The stricken clause appears in the record as follows:
See, e.g.,
Taylor,
As the district court explained, the Chevron/FloaTEC Contract requires FloaTEC to maintain specific insurance covering certain project risks, such as workers' compensation and employer's liability insurance, commercial general liability insurance, and automobile, watercraft, and aircraft insurance. The Contract further provides that, to the extent of FloaTEC's liabilities, this required insurance "is primary with respect to all insureds ... and that no other insurance carried by [Chevron] will be considered as contributory insurance for any loss." We need not decide to what extent these provisions limit FloaTEC's interests under the Policy because, as explained, FloaTEC is not seeking recovery under the Policy. Rather, it is seeking only to raise the subrogation waiver against Underwriters' claims. It is enough to say, with the district court, that these insurance requirements in the Chevron/FloaTEC Contract "have nothing to do with [FloaTEC's] Other Assured status" under the Policy.
See also, e.g.,
Shelter Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co.
, 2007-0163 (La. App. 1 Cir. 7/18/08),
Reference
- Full Case Name
- LLOYD'S SYNDICATE 457 ; Lloyd's Syndicate 1036; Lloyd's Syndicate 1084 ; Lloyd's Syndicate 1209 ; Lloyd's Syndicate 1225, Et Al Plaintiffs - Appellants v. FLOATEC, L.L.C., Doing Business as FloaTEC Solutions, L.L.C. Defendant - Appellee
- Cited By
- 76 cases
- Status
- Published