Fireman's Fund Insurance v. Plant Insulation Co. (In re Plant Insulation Co.)

734 F.3d 900, 2013 WL 5779568
CourtCourt of Appeals for the Ninth Circuit
DecidedOctober 28, 2013
DocketNos. 12-17466, 12-17467
StatusPublished
Cited by25 cases

This text of 734 F.3d 900 (Fireman's Fund Insurance v. Plant Insulation Co. (In re Plant Insulation Co.)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fireman's Fund Insurance v. Plant Insulation Co. (In re Plant Insulation Co.), 734 F.3d 900, 2013 WL 5779568 (9th Cir. 2013).

Opinion

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether a bankruptcy plan, which allegedly leaves a group of insurers paying more than their fair share on a large number of asbestos personal injury claims, complies with the Bankruptcy Code.

I

A

Plant Insulation Co. (“Plant”) is a California corporation that was founded in 1937 and made a successful business selling Fiberboard-manufactured asbestos-based insulation through 1971. Beginning in the 1970s, there came a “flood of lawsuits” addressing asbestos-related diseases. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 598, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). These inundated court dockets and swallowed several major companies. From the outset of this crisis through 1989, Plant was defended from this flood by Fibreboard. In the subsequent years, Plant’s insurers ■ defended Plant, but one-by-one the insurers announced that Plant’s coverage was exhausted. By 2001, no insurer was willing to defend or to indemnify Plant for asbestos claims. When the last insurer bowed out, over 1,500 asbestos-related claims were still pending against Plant. Over 4,000 additional suits were filed against Plant between 2001 and 2006.

At the same time that Plant was struggling with continual asbestos lawsuits, it began to scale back its business operations. In May 2001, Plant’s President, Shahram Ameli, who owned 49% of Plant, decided to leave Plant and start his own insulation contracting business, Bayside Insulation & Construction, Inc. (“Bay-side”). At that time, Plant transferred its installation and repair business to Bayside and ceased operations in its own name.

Faced with enormous numbers of asbestos lawsuits, few meaningful assets, no business operations, and no asbestos-injury insurance coverage, Plant went in search of other options. First, to stem the lawsuit tide, Plant negotiated a series of informal standstill agreements with leading members of the California asbestos plaintiffs bar. Next, in early 2001, Plant managed to obtain $35 million in coverage by suing the California Insurance Guarantee Association (“CIGA”) under policies Plant had purchased from an insolvent insurance company. Distributions from this fund were made based on a matrix that valued claims according to various metrics. [905]*905About 1,100 asbestos claimants were paid from this fund, but many more remained.

At some point along the way, Plant decided that its original insurance policies might not be exhausted after all. On January 17, 2006, Plant filed an action against its insurers in a California Superior Court, seeking declaratory relief as to whether the aggregate limits of their policies had truly been exhausted (“the Coverage Action”). The next day, Plant tendered all remaining 3,800 asbestos claims to these insurers. The insurers have defended these claims under a reservation of rights. The Coverage Action remains unresolved.

By this time it was clear that Plant’s bankruptcy — in particular, a bankruptcy taking advantage of 11 U.S.C. § 524(g), discussed below — was on the horizon. In September 2006, the asbestos claimants formed an informal committee (the “Pre-Petition Committee”). The Pre-Petition Committee apparently believed that, in order to ensure that Plant could obtain confirmation of a plan under 11 U.S.C. § 524(g), Plant needed to be resurrected from its current shell into an ongoing and functional business. See, e.g., In re Combustion Eng’g, 391 F.3d 190, 248 (3d Cir.2004) (describing the ongoing business requirement of § 524(g)); In re W. Asbestos Co., 313 B.R. 832, 853-54 (Bankr.N.D.Cal.2003). Fortuitously, in April 2007, the Pre-Petition Committee learned of Plant’s asset transfer to Bayside and notified Bay-side that the Committee considered it to be liable for the debts of Plant under theories of successor liability. According to the Pre-Petition Committee, if Bayside did not agree to merge with Plant as part of a contemplated Chapter 11 reorganization, it would face a deluge of successor liability suits. Although there was some initial resistance to the merger,1 in early 2010, Bayside agreed in principle to a plan under which it would merge with Plant as part of the confirmation of a Chapter 11 plan.

Plant filed for Chapter 11 bankruptcy on May 20, 2009. Plant’s only meaningful remaining assets are its insurance policies. These insurance policies are held by Plant either in the form of cash received from insurers who have repurchased the policies from Plant (the “Settling Insurers”), or in the form of the duties of the remaining insurers (“the Non-Settling Insurers”) to pay claims of injured persons, which are still under dispute in the Coverage Action. The Settling Insurers repurchased their policies under guarantees for complete peace from future litigation. Such guarantees, embodied in the plan, include protection from contribution claims that might be brought against them by the Non-Settling Insurers. The bankruptcy court found these guarantees were necessary to incen-tivize insurers to settle and they form the crux of the disputes in this case.

B

Before completing this factual and procedural history, a brief note on 11 U.S.C. § 524(g) would be helpful in understanding the ultimate issues in this appeal. Section 524(g) was enacted in 1994 in light of the approach taken in the celebrated Johns-Manville bankruptcy case. See In re Thorpe Insulation, Co., 677 F.3d 869, 877 (9th Cir.2012) (citing Kane v. Johns-Manville Corp., 843 F.2d 636 (2d Cir.1988)). The Johns-Manville approach refers to the realization that, given the lengthy latency period of asbestos-related diseases, compa[906]*906nies facing asbestos risk have no way finally to resolve or even effectively estimate their exposure. Furthermore, if such companies collapse and liquidate, untold numbers of future claimants will be left without recovery. Present claimants, however, want to get paid quickly and efficiently. The Johns-Manville approach, now codified in § 524(g), seeks to use the broad equitable power of the bankruptcy court to resolve the dilemma in a way that is fair for both present and future asbestos claimants.

Under § 524(g), a court-appointed fiduciary stands in for the future asbestos claimants, and the court ensures that any proposed plan is fair to them. 11 U.S.C. § 524(g)(4)(B)(i)-(ii). This is necessary because, under a § 524(g) plan, the bankruptcy court enters a series of “channeling injunctions” that can put an end to all present and future asbestos litigation by preventing “any entity [from] taking legal action to collect a claim or demand that is to be paid in whole or in part by a trust created through a qualifying plan of reorganization.” 4 Collier on Bankruptcy ¶ 524.07.

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734 F.3d 900, 2013 WL 5779568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/firemans-fund-insurance-v-plant-insulation-co-in-re-plant-insulation-ca9-2013.