In The
Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-14-00459-CV _________________
HOUSTON CASUALTY COMPANY, ET AL, Appellants
V.
ANADARKO PETROLEUM CORPORATION AND ANADARKO E&P COMPANY, L.P., Appellees ________________________________________________________________________
On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 12-08-08760-CV ________________________________________________________________________
MEMORANDUM OPINION
This is an insurance coverage dispute arising from the Deepwater Horizon
Oil Spill in the Gulf of Mexico. At issue in this case is the interpretation of an
insurance policy establishing an indemnity obligation for defense costs resulting
from the spill. Houston Casualty Company, Allianz Global Corporate & Specialty
AG, Clearwater Insurance Company, Hudson Insurance Company, Lancashire
Insurance Company (UK) Limited, Navigators Insurance Company, and
1 Underwriters at Lloyd’s Syndicate Nos. 33, 457, 510, 609, 623, 958, 1036, 1084,
1183, 1919, 1209, 1221, 1225, 2003, 2007, 2121, 2623, 3000, 4020, 5000
(collectively “Underwriters”) filed a petition for permissive appeal of the trial
court’s order denying their motion for summary judgment and granting Anadarko
Petroleum Corporation and Anadarko E&P Company, L.P.’s (collectively
“Anadarko”) motion for partial summary judgment. Anadarko filed a response and
cross-petition for permissive appeal. We granted the petition and the cross-petition
for permissive appeal of the trial court’s order. We reverse the trial court’s
judgment and render judgment in favor of Underwriters.
I. Background
Many of the facts leading up to the Deepwater Horizon Oil Spill are well-
known. The Macondo Well was an exploratory well located offshore in the Gulf of
Mexico. The Deepwater Horizon, a mobile offshore drilling vessel owned and
operated by several Transocean entities, drilled the Macondo Well. Certain British
Petroleum entities (collectively “BP”), MOEX Offshore 2007 LLC (“MOEX”),
and Anadarko entered into an offshore oil and gas lease with the United States for
the continental shelf block in which the well was located (the “Offshore Lease”).
BP, MOEX, and Anadarko entered into the Macondo Prospect Offshore Deepwater
Operating Agreement (the “Operating Agreement”). BP was the designated
2 operator of the Macondo Well, while Anadarko and MOEX were non-operators.
Anadarko owned a 25 percent working interest in and to the Offshore Lease.
Underwriters issued an Energy Package Policy to Anadarko covering the
period from June 30, 2009, to June 30, 2010 (the “Policy”). Section III of the
Policy provides excess liability insurance coverage and has a limit of liability of
$150 million per “Occurrence” if Anadarko owns 100 percent of the insured
operation. The Coverage provision of Section III (hereinafter “Coverage
Provision”) provides:
In consideration of the payment of the premium . . . and in reliance upon the proposal for this policy . . . , statements made, and any supplementary information pertaining to the proposal which are all deemed incorporated herein, Underwriters agree, subject to the Insuring Agreements, Conditions, Exclusions, Definitions and Declarations contained in this Policy, to indemnify the “Insured” in respect of its operations anywhere in the World, for “Ultimate Net Loss” by reason of liability: (a) imposed upon the “Insured” by law, or (b) assumed by the “Insured” under an “Insured Contract”, for damages in respect of: (i) “Bodily Injury” (ii) “Personal Injury” (iii) “Property Damage” (iv) “Advertising Injury”, caused by or arising out of an “Occurrence” that occurred on or after the Retroactive Date as set out in . . . the Declarations and for which a “Claim” is first made in writing against the “Insured” during the 3 Policy Period as set out in . . . the Declarations. Nothing contained in this Policy shall make this Policy subject to the terms of any other Insurance. Section III includes an endorsement titled, “Joint Venture Provision[,]” which
replaces the joint venture provision in the Insuring Agreements of Section III. The
Joint Venture Provision provides:
Effective at inception and in consideration of the premium charged hereon, Insuring Agreement 4 Joint Ventures . . . is deleted and replaced with the following:
It is hereby understood and agreed by the Assured and Underwriters that as regards any liability of the Assured which is insured under this Section III and which arises in any manner whatsoever out of the operation or existence of any joint venture, co-venture, joint lease, joint operating agreement or partnership (hereinafter called ‘Joint Venture’) in which the Assured has an interest, the liability of Underwriters under this Section III shall be limited to the product of (a) the percentage interest of the Assured in said Joint Venture and (b) the total limit afforded the Assured under this Section III. Where the percentage interest of the Assured in said Joint Venture is not set forth in writing, the percentage to be applied shall be that which would have been imposed by law at the inception of the Joint Venture.
The Joint Venture Clause shall not apply to any liability of the Assured, when as a result of the circumstances of the Occurrence, the terms of the Joint Venture agreement place the whole of the liability of the Joint Venture on the Assured.
In the event the Assured becomes legally liable in a court of competent jurisdiction for an amount greater than their proportionate ownership interest, Underwriters hereon agree to provide coverage to the Assured to the extent the legal liability
4 increases the Assured’s working interest percentage liability. If the Assured becomes legally liable for a greater percentage than their ownership interest, the liability of Underwriters shall be the combination of the Assured’s working interest percentage ownership and the additional percentage(s) for which the Assured becomes legally liable.
All other terms and conditions remain unchanged.
As reflected above, the first paragraph of the Joint Venture Provision is a general
scaling provision, which proportionally reduces Underwriters’ limit of liability
under Section III in accordance with the percentage of Anadarko’s ownership
interest in any given joint venture. The second and third paragraphs of the Joint
Venture Provision provide two exceptions to the general scaling provision in the
first paragraph.
On April 20, 2010, BP and Transocean were completing temporary
abandonment operations of the Macondo Well when the well experienced a
blowout and the Deepwater Horizon drilling rig exploded, burned, and sank,
resulting in a discharge of oil into the Gulf of Mexico for nearly three months (the
“Macondo Incident”). See In re Oil Spill by Oil Rig “Deepwater Horizon” in the
Gulf of Mexico, on Apr. 20, 2010, 148 F. Supp. 3d 563, 565-66 (E.D. La. 2015). A
number of lawsuits were filed as a result of the Macondo Incident. Id. at 566. Most
federal cases arising from the Macondo Incident were consolidated into
Multidistrict Litigation 2179. Id. The United States filed suit against BP, MOEX, 5 Transocean, and Anadarko, seeking civil penalties under the Clean Water Act and
a declaratory judgment of liability under the Oil Pollution Act of 1990 (“OPA”).
Id. at 566-67. In February 2012, the MDL Court granted the United States’ request
for a declaratory judgment finding that BP and Anadarko were jointly and
severally liable under the OPA for removal costs and damages related to the
subsurface discharge.1 See 33 U.S.C.S. § 2717(f)(2) (Lexis through Pub. L. No.
114-229) (stating that in an action for removal costs, “the court shall enter a
declaratory judgment on liability for removal costs or damages that will be binding
on any subsequent action or actions to recover further removal costs or damages.”).
Disputes also arose between the defendants. BP submitted a claim against
Anadarko for costs incurred by BP in connection with the Macondo Incident. In 1 The MDL Court’s finding is as follows:
Although the words “joint and several” do not appear in OPA, OPA defines “liable” and “liability” as the standard of liability which obtains under section 1321 of this title [Section 311 of the Clean Water Act]. Liability under Section 311, in turn, has been determined repeatedly to be strict, joint and several. . . . . Therefore, as to the subsurface discharge of oil, the Court finds liability under OPA is joint and several.
(internal citations and quotations omitted). The MDL Court found BP and Anadarko to be responsible parties for the subsurface discharge of oil, as they were co-lessees of the area in which the offshore facility was located at the time of the Macondo Incident. The MDL Court then found that “[l]iability for OPA removal costs and damages is joint and several vis-à-vis BP and Anadarko and the subsurface discharge.” 6 October 2011, Anadarko entered into a settlement agreement with BP wherein
Anadarko and BP mutually agreed to release all claims against each other
associated with the Macondo Incident. Anadarko agreed to pay BP $4 billion and
to transfer its 25 percent interest in the Offshore Lease to BP. BP agreed to release
Anadarko from all claims arising under the Operating Agreement and to indemnify
Anadarko, with limited exceptions not relevant here, for all future liability,
including damages or removal costs under the OPA.
On November 30, 2015, the MDL Court issued its Findings of Fact and
Conclusions of Law concerning the amount of civil penalties Anadarko is required
to pay under the Clean Water Act. In re Oil Spill, 148 F. Supp. 3d at 565. The
MDL Court found Anadarko liable to the United States for civil penalties under the
Clean Water Act in the amount of $159.5 million. Id. at 584.
The Macondo Incident implicated two sections of the Policy issued by
Underwriters. Section II provided “Control of Well and Extra Expense” insurance
coverage, which insured against costs associated with certain types of well blow-
outs. As noted above, Section III of the Policy provided “Excess Liability”
insurance coverage, which insured against claims in excess of Anadarko’s
underlying insurance or self-insured retention. Underwriters paid Anadarko $37.5
7 million under Section III of the Policy. Anadarko released Underwriters from
liability under the Policy, except with regard to “Defence Expenses[.]” 2
In August 2012, Anadarko filed suit seeking coverage from Underwriters
under Section III of the Policy for defense, investigation, and adjustment costs and
expenses paid by Anadarko arising out of the Macondo Incident. Underwriters
moved for summary judgment, seeking dismissal of Anadarko’s claims and
contending essentially that it has fully paid and extinguished all liability for
coverage under the Policy. Anadarko filed two motions for partial summary
judgment; the second motion is at issue here. In it, Anadarko sought a ruling that
Underwriters are required to reimburse the defense expenses incurred by Anadarko
in connection with the Macondo Incident up to the $150 million limit of Section
III, reduced only by Underwriters’ prior payments to Anadarko under Section III in
connection with the Macondo Incident and subject to proof of Anadarko’s damages
at trial. In construing the Policy, the trial court found that the relevant policy
provisions are unambiguous. The trial court further found that the defense
expenses are subject to scaling under the Joint Venture Provision. However, the
trial court concluded that the MDL Court’s judgment finding Anadarko jointly and 2 Because the Policy was developed in the London market, it uses the British spelling of certain words, including “defence” and “judgement[.]” We have retained the British spelling when quoting the parties or when referencing a defined term in the Policy. 8 severally liable for OPA removal costs and damages triggered the exception to the
Joint Venture Provision found in the third paragraph. The trial court explained that
the third paragraph of the Joint Venture Provision provides that Underwriters’
liability under Section III of the Policy “increases in the event that Anadarko
becomes legally liable in a court of competent jurisdiction for an amount greater
than its proportionate interest in a Joint Venture.” The trial court concluded that
under the third paragraph of the Joint Venture Provision, Underwriters’ liability is
equal to the combination of Anadarko’s working interest percentage ownership and
the additional percentage for which Anadarko becomes legally liable, up to the full
limits of the Policy, without regard to any scaling of interest.
II. Standard of Review
When both sides move for summary judgment and the trial court grants one
motion and denies the other, reviewing courts consider both sides’ summary
judgment evidence, determine all questions presented, and render the judgment the
trial court should have rendered. Gilbert Tex. Constr., L.P. v. Underwriters at
Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010). Therefore, we review all
grounds asserted in both Anadarko and Underwriters’ motions.
9 III. Rules of Construction
Generally, an insurance policy is governed by the same rules of construction
that apply to other contracts. RSUI Indem. Co. v. Lynd Co., 466 S.W.3d 113, 118
(Tex. 2015). In construing an insurance policy, our primary concern is to ascertain
the intentions of the parties as expressed in the policy. Id. at 118, 127; see also In
re Deepwater Horizon, 470 S.W.3d 452, 464 (Tex. 2015). Our analysis begins with
the language of the policy because “we presume parties intend what the words of
their contract say.” Gilbert, 327 S.W.3d at 126. “We examine the entire agreement
and seek to harmonize and give effect to all provisions so that none will be
meaningless.” Id.; see also Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154,
157 (Tex. 2003). Unless the policy states otherwise, we give words and phrases
their ordinary and generally accepted meaning. RSUI, 466 S.W.3d at 118. We
construe words and phrases in context and in light of the rules of grammar and
common usage. Id. We will not isolate a phrase, sentence, or section of a policy
and consider it apart from the other provisions. Id.; Deepwater Horizon, 470
S.W.3d at 464 (“We must examine the policy as a whole, seeking to harmonize all
provisions and render none meaningless.”).
Contract ambiguity is a question of law to be determined by the court.
Schaefer, 124 S.W.3d at 157. Here, Anadarko and Underwriters present conflicting
10 interpretations of the Joint Venture Provision. However, the fact that the parties
have conflicting views about the policy’s meaning alone does not create an
ambiguity. State Farm Lloyds v. Page, 315 S.W.3d 525, 527 (Tex. 2010); Tex.
Farm Bureau Mut. Ins. Co. v. Sturrock, 146 S.W.3d 123, 126 (Tex. 2004). An
ambiguity is more than a lack of clarity in the language of a policy. RSUI, 466
S.W.3d at 119. A policy is ambiguous only if, after applying the rules of
construction, the policy remains subject to two or more reasonable interpretations.
Id.; see also New Castle Cty. v. Hartford Accident and Indem. Co., 970 F.2d 1267,
1270 (3d Cir. 1992) (“Because ambiguity lurks in every word, sentence, and
paragraph in the eyes of a skilled advocate . . . the question is not whether there is
an ambiguity in the metaphysical sense, but whether the language has only one
reasonable meaning when construed, not in a [hyper-technical] fashion, but in an
ordinary, common sense manner.”). Thus, if we conclude that only one party’s
construction is reasonable, then the policy is unambiguous and we will adopt that
party’s construction. RSUI, 466 S.W.3d at 118 (citing Grain Dealers Mut. Ins. Co.
v. McKee, 943 S.W.2d 455, 459 (Tex. 1997)). However, “if both [parties] present
reasonable interpretations of the policy’s language, we must conclude that the
policy is ambiguous.” Id. “To be ambiguous, both interpretations must be a
reasonable interpretation of the words chosen by the parties when read in the
11 context of the policy as a whole.” Id. at 130. Finally, we may not consider parol
evidence to create an ambiguity. See Nat’l Union Fire Ins. Co. of Pittsburgh v. CBI
Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). We may however, read the policy
in light of the circumstances surrounding the policy’s execution to determine
whether an ambiguity exists and to settle the meaning of the policy. Houston Expl.
Co. v. Wellington Underwriting Agencies, Ltd., 352 S.W.3d 462, 469 & n.25 (Tex.
2011). The surrounding circumstances include “‘the commercial or other setting in
which the contract was negotiated and other objectively determinable factors that
give a context to the transaction between the parties.’” Id. at 469 (citing 11
RICHARD A. LORD, WILLISTON ON CONTRACTS § 32.7 (4th ed. 1999)).
IV. Construing the Joint Venture Provision
Anadarko and Underwriters both contend that the plain language of the
Policy and specifically, the Joint Venture Provision, is unambiguous and only
supports their proposed construction.
A. The Plain Language of the First Paragraph of the Joint Venture Provision
According to Underwriters, the Joint Venture Provision limits the liability of
Underwriters, including liability as to defense expenses. By contrast, Anadarko
argues that the Joint Venture Provision only scales Underwriters’ liability to
Anadarko under the Policy for Anadarko’s liability to third parties for damages,
12 not liability for defense expenses, which Anadarko contends is more akin to a first-
party liability. Anadarko contends that defense expenses are insured separately and
in addition to the Policy coverage for Anadarko’s “liability” for damages and the
Joint Venture Provision makes no reference to its scaling provision applying to
defense expenses. The trial court found that “[d]efense [e]xpenses are subject to
scaling under the Joint Venture Provision.” We conclude that the plain language of
the Joint Venture Provision only reasonably supports the trial court’s construction
of the provision, which provided that defense expenses are subject to scaling.
Section III, Endorsement Number 1 of the Policy contains the Joint Venture
Provision. The first paragraph of the provision provides:
It is hereby understood and agreed by [Anadarko] and Underwriters that as regards any liability of [Anadarko] which is insured under this Section III and which arises in any manner whatsoever out of the operation or existence of any joint venture, co-venture, joint lease, joint operating agreement or partnership (hereinafter called “Joint Venture”) in which [Anadarko] has an interest, the liability of Underwriters under this Section III shall be limited to the product of (a) the percentage interest of [Anadarko] in said Joint Venture and (b) the total limit afforded [Anadarko] under this Section III. Where the percentage interest of [Anadarko] in said Joint Venture is not set forth in writing, the percentage to be applied shall be that which would have been imposed by law at the inception of the Joint Venture.
The plain language of the Joint Venture Provision provides that this provision
“regards any liability of [Anadarko] which is insured under this Section III[.]”
Thus, the Joint Venture Provision limits its application to only those liabilities 13 covered in Section III of the Policy. Thus, to construe the Joint Venture Provision,
we must first determine the scope of coverage in Section III of the Policy.
The Coverage Provision of Section III provides in relevant part that:
Underwriters agree . . . to indemnify [Anadarko] in respect of its operations anywhere in the World, for “Ultimate Net Loss” by reason of liability:
(a) imposed upon [Anadarko] by law, or (b) assumed by [Anadarko] under an “Insured Contract”, for damages in respect of: (i) “Bodily Injury” (ii) “Personal Injury” (iii) “Property Damage” (iv) “Advertising Injury”,
caused by or arising out of an “Occurrence” . . . and for which a “Claim” is first made in writing against [Anadarko.]
The Coverage Provision does not specifically include the term “Defence
Expenses”; however, “Ultimate Net Loss” is specifically included, and we must
refer to the Policy’s definition of “Ultimate Net Loss” to determine the meaning
and scope of the Coverage Provision. See Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 219 (Tex. 2003) (“When terms are defined in an insurance
policy, those definitions control the interpretation of the policy.”).
The Policy defines “Ultimate Net Loss” as “the amount [Anadarko] is
obligated to pay, by judgement or settlement, as damages resulting from an
‘Occurrence’ covered by this Policy, including the service of suit, institution of 14 arbitration proceedings and all ‘Defence Expenses’ in respect of such
‘Occurrence’.” The Policy defines “‘Occurrence’” as “an accident, including
continuous and repeated exposure to substantially the same general harmful
conditions which results in ‘Bodily Injury’, ‘Personal Injury’, ‘Property Damage’,
or ‘Advertising Injury”, none of which was expected nor intended by [Anadarko].”
Because the Policy defines “Ultimate Net Loss” to include the amount Anadarko is
“obligated to pay” as damages from a judgment or settlement and to include
service of suit, institution of arbitration proceedings, and all defense expenses with
respect to the Macondo Incident, we construe “Ultimate Net Loss” to include all
liabilities of Anadarko for which Underwriters agreed to indemnify in Section III.
According to Anadarko, the phrase “any liability” as used in the first
paragraph of the Joint Venture Provision should not be construed broadly to
include defense expenses, but should be construed as limited to only those third-
party liabilities insured in Section III’s Coverage Provision. The term “liability” is
not a defined term in the Policy. We do not believe that the word “liability” is so
restricted as to only refer to “third-party” liability. Generally, “liability” is “[t]he
quality or state of being legally obligated or accountable; legal responsibility to
another or to society, enforceable by civil remedy or criminal punishment[.]”
Liability, BLACK’S LAW DICTIONARY (9th ed. 2009). “Liability” can also mean “[a]
15 financial or pecuniary obligation[.]” Id. There is nothing in the plain language of
the Policy to suggest that the parties intended to limit the meaning of “liability” to
only include “third-party” liability. On the contrary, the plain language supports a
broad, general use of the word. The Joint Venture Provision is written to include
“‘any liability’” of Anadarko insured under Section III of the Policy. As discussed
above, the Coverage Provision of Section III is reasonably construed as including
liabilities for defense expenses. Thus, the Joint Venture Provision is reasonably
construed as including defense expenses as a liability and therefore subject to
scaling under the terms of the Joint Venture Provision.
Anadarko’s interpretation of the Policy would render the Policy’s language
that “Underwriters agree . . . to indemnify [Anadarko] . . . for ‘Ultimate Net Loss’”
meaningless and would also force us to rewrite the language of the Policy.
Underwriters contend that the plain language of the Joint Venture Provision
implies breadth and inclusiveness, noting that the Joint Venture Provision
expressly includes “‘any liability . . . insured under . . . Section III and . . . [arising]
in any manner whatsoever out of . . . any [Joint Venture]. . . .’” Anadarko’s
interpretation would require this Court to replace the broad language of the Joint
Venture Provision in the Policy—“as regards any liability of [Anadarko]”—with
far more limiting language—“as regards any third-party liability of Anadarko.”
16 Underwriters contend that we should not judicially rewrite the Policy by inserting
the word “third-party” into it. See Gilbert, 327 S.W.3d at 126-27 (declining to
judicially rewrite the parties’ exclusion by inserting a word into it). We agree.
Finally, we note that the General Declarations section of the Policy, which
incorporates the limits for the Policy, makes no reference to defense expenses
being payable on a different basis from costs awarded by way of damages for
liabilities incurred under the Policy. Section III of the Policy contains a single limit
of liability—“USD 150,000,000 (100%) any one occurrence without aggregate
except for Products and Completed Operations (as defined by Policy Wording)
which [are] subject to a USD 150,000,000 aggregate limit of liability.” The Policy
provision defining the “Limits of Liability” under Section III, provides as follows:
Underwriters shall only be liable for ‘Ultimate Net Loss’ in excess of: (a) the Underlying Insurance(s) set out in . . . the Declarations[;] or, (b) the Self Insured Retention set out in . . . the Declarations, whichever is greater and then only up to the amount stated in Item 4(a) of the Declarations in respect of each ‘Occurrence.’”
The parties knew how to provide for coverage regarding defense costs on a
different basis, as they did so for “Products and Completed Operations[,]” which
are expressly insured on an aggregate limit of liability.
17 We conclude the first paragraph of the Joint Venture Provision is only
susceptible to one reasonable interpretation, that is, defense expenses are subject to
scaling under the Joint Venture Provision.
B. The First Exception of the Joint Venture Provision
The trial court expressly made no ruling regarding the first exception of the
Joint Venture Provision. The first exception to the Joint Venture Provision
provides:
The Joint Venture Clause shall not apply to any liability of [Anadarko], when as a result of the circumstances of the Occurrence, the terms of the Joint Venture agreement place the whole of the liability of the Joint Venture on [Anadarko].
“Joint Venture agreement” is not a defined term in the Policy. Anadarko contends
that the reference to the “Joint Venture agreement” includes not only the Operating
Agreement, but also the Offshore Lease. In support, Anadarko cites to the language
in the first paragraph of the Joint Venture Provision, which states that the provision
regards any liability of Anadarko that is insured under Section III and that “arises
in any manner whatsoever out of the operation or existence of any joint venture,
co-venture, joint lease, joint operating agreement or partnership (hereinafter called
‘Joint Venture’) in which [Anadarko] has an interest[.]”
18 Anadarko contends that the first exception is triggered in this case because
the Offshore Lease places “the whole of the liability of the Joint Venture” on
Anadarko. In the Offshore Lease, the United States and BP agreed that the
Offshore Lease is “subject to . . . all other applicable statutes[.]” BP later assigned
a percentage of its interest in the Offshore Lease to Anadarko. According to
Anadarko, because the OPA regulates the discharge of oil into or upon the
navigable waters or adjoining shorelines, it is an applicable statute and has been
incorporated into the terms of the Offshore Lease. Anadarko contends that as a
lessee under the Offshore Lease, it is subject to the OPA’s joint and several
liability and thus, is wholly liable for removal costs and damages from the
wrongful discharge of oil.
Assuming without deciding that the Offshore Lease is part of the Joint
Venture agreement under the Policy and that the OPA’s joint and several liability
provision is made applicable as a term of the Offshore Lease, we conclude that the
Offshore Lease does not place “the whole of the liability of the Joint Venture” on
Anadarko.
Anadarko contends that the “whole of the liability of the Joint Venture” was
placed on it because the MDL Court found it jointly and severally liable for 100
percent of the OPA removal costs and damages. Underwriters respond that
19 Anadarko incorrectly limits its analysis to only OPA liability and that there were
other liabilities of the Joint Venture stemming from the Macondo Incident. We
conclude that Underwriters’ interpretation of the exception is the only reasonable
interpretation.
The Policy states that this exception is applicable “when as a result of the
circumstances of the Occurrence, the terms of the Joint Venture agreement place
the whole of the liability of the Joint Venture on [Anadarko].” Here, the
circumstances of the Occurrence are the circumstances surrounding the Macondo
Incident. The Policy does not define “whole” but we give it its ordinary meaning.
“Whole” means “constituting the total sum or undiminished entirety of”
something. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2611 (3d ed.
2002). “Whole” is also defined as “all there is of a thing.” THE OXFORD DESK
DICTIONARY AND THESAURUS 920 (American Ed. 1997). The phrase “of the
liability” in the sentence is a prepositional phrase that modifies the word
“whole[,]” which is used as a noun and is the direct object in the dependent clause
“when . . . the terms of the Joint Venture agreement place the whole of the liability
on [Anadarko].” Thus, by the plain language of the Policy, it is clear that the
parties’ intent was that this exception apply in a circumstance in which all of the
20 Joint Venture’s liability stemming from an Occurrence, not just one particular type
of liability, i.e., OPA liability, was placed on Anadarko.
The OPA is not the exclusive source of potential liability for the Joint
Venture partners. Under the OPA, responsible parties are liable for all removal
costs and damages, including injuries to natural resources, destruction of property,
loss of subsistence use of natural resources, loss of tax revenue, loss of profits or
earning capacity, and net increased costs for additional public services. See 33
U.S.C.S. § 2701(5) (LEXIS through Pub. L. No. 114-229) (defining damages); §
2702 (b)(2) (LEXIS through Pub. L. No. 114-229) (identifying types of damages
covered under OPA). Notably, the OPA does not provide a cause of action for
personal injuries. See 33 U.S.C.S. §§ 2701(5); 2702; see also In re Oil Spill by the
Oil Rig “Deepwater Horizon”, MDL No. 2179, 2011 U.S. Dist. LEXIS 10497, at
*18 (E.D. La. Feb. 2, 2011) (noting that personal injury and death claims fall
outside of scope of OPA). Thus, even if Anadarko were declared wholly liable for
claims asserted under the OPA, the Joint Venture potentially has numerous other
non-OPA claims in which neither the Operating Agreement, nor the Offshore
Lease place liability wholly on Anadarko. See e.g. In re Deepwater Horizon Robert
Young v. BP Expl. & Prod., Inc., 786 F.3d 344, 348 (5th Cir. 2015) (discussing
non-OPA claims involving physical injury and death under general federal
21 maritime law); In re Oil Spill by Oil Rig “Deepwater Horizon”, 295 F.R.D. 112,
117-18, 119-120, 134-36, 161 (E.D. La. 2013) (approving class settlement of
certain claims of individuals engaged as clean-up workers and residents of
particular geographical boundaries in the Gulf of Mexico related to their exposure
to oil or dispersants arising from the Macondo Incident and subsequent response
efforts of BP); see also In re Oil Spill by Oil Rig “Deepwater Horizon”, 808 F.
Supp. 2d 943, 962-63, 968-69 (E.D. La. 2011), aff’d, 745 F.3d 157 (5th Cir. 2014)
(explaining that the OPA displaces general maritime law claims against
Responsible Parties but only with regard to procedure, thus, if OPA presentment
requirements are met, claims for punitive damages are available for general
maritime law claimants against Responsible Parties); In re Oil Spill by the Oil Rig
“Deepwater Horizon”, MDL No. 2179, 2011 U.S. Dist. LEXIS 131069, at *29, 50
(E.D. La. Nov. 1 4, 2011), aff’d, 745 F.3d 157 (5th Cir. 2014) (concluding that the
states may be entitled to receive punitive damages under general maritime law, but
ultimately dismissing the states’ general maritime law negligence claims against
Anadarko and MOEX).
Anadarko bases its entire argument regarding the first exception on the
Offshore Lease’s incorporation of the OPA and its joint and several liability
provision. As fully discussed above, even if we accept Anadarko’s argument that
22 the Offshore Lease is a Joint Venture agreement under the Policy and places all
OPA liability on Anadarko, the Offshore Lease does not place all of the Joint
Venture’s liability on Anadarko. Anadarko does not dispute that the Operating
Agreement governs the relationship between BP and the non-operating Joint
Venture partners. The Operating Agreement provides that each party to the
agreement will bear liability in proportion to its percentage of ownership in the
Macondo Well. The Operating Agreement also places all liability upon one party
only if that party was grossly negligent or engaged in willful misconduct. The
MDL Court found only BP grossly negligent, and dismissed all negligence claims
against Anadarko. See In re Oil Spill by the Oil Rig “Deepwater Horizon”, 21 F.
Supp. 3d 657, 757 (E.D. La. 2014); see also In re Oil Spill, 148 F. Supp. 3d at 567-
68; In re Oil Spill, 808 F. Supp. 2d at 963. Because the Joint Venture Agreement
did not place the whole of the liability of the Joint Venture on Anadarko, the first
exception to the Joint Venture Provision is inapplicable.
C. The Second Exception of the Joint Venture Provision
The trial court found that the MDL Court’s determination that Anadarko was
jointly and severally liable for the OPA removal costs and damages triggered the
second exception of the Joint Venture Provision. As a result, the trial court
concluded that the scaling provision of the Joint Venture Provision was not
23 applicable and that “Anadarko is entitled . . . to payment of 100 percent of its
Ultimate Net Loss” under the terms of the Policy. The second exception to the
In the event [Anadarko] becomes legally liable in a court of competent jurisdiction for an amount greater than their proportionate ownership interest, Underwriters hereon agree to provide coverage to [Anadarko] to the extent the legal liability increases [Anadarko’s] working interest percentage liability. If [Anadarko] becomes legally liable for a greater percentage than their ownership interest, the liability of Underwriters shall be the combination of [Anadarko’s] working interest percentage ownership and the additional percentage(s) for which [Anadarko] becomes legally liable.
Underwriters contend the trial court erred in finding this exception applicable
because it is only triggered when Anadarko is first adjudicated to be liable for a
fixed and certain amount that is greater than its proportionate ownership interest in
the joint venture and actually pays the fixed amount. Underwriters contend that an
actual judgment for a specific amount is required because a finding of potential
liability does not satisfy the provision’s requirement for a finding of legal liability.
Second, according to Underwriters, the trial court’s finding must actually increase
Anadarko’s working interest percentage in the joint venture.
The second exception contained in the Joint Venture Provision is made up of
two complementary sentences. The first sentence establishes the basis for
indemnifying Anadarko for a greater percentage than its working interest
24 percentage—i.e., when Anadarko becomes legally liable for an amount greater
than 25 percent. The second sentence establishes how Underwriters’ new limit of
liability is to be calculated in such event, i.e.,—25 percent plus the additional
percentage for which Anadarko is found legally liable.
At the heart of this dispute is the MDL Court’s ruling that Anadarko was
jointly and severally liable for OPA costs and damages. Underwriters contend the
MDL Court’s ruling amounts only to a ruling of “potential liability” because the
MDL Court did not actually hold Anadarko legally liable for a specific amount of
damages. Anadarko responds that the MDL Court did find it liable for a specific
amount of damages, namely, 100 percent of the OPA costs and damages. And,
according to Anadarko, the Joint Venture Provision does not require a finding that
Anadarko pay a specific amount of damages. Anadarko contends the finding that it
was jointly and severally liable is sufficient to meet the Policy’s requirement that it
be held legally liable for an amount greater than its percentage of ownership.
To resolve this dispute, we must look first to the MDL Court’s order.
Pursuant to 33 U.S.C.S. § 2717(f)(2), the MDL Court’s order granted the United
States’ motion requesting a declaratory judgment that Anadarko and BP were
jointly and severally liable for OPA removal costs and damages. See generally 33
U.S.C.S. § 2717(f)(2). However, we conclude the MDL court’s declaratory
25 judgment did not trigger the Joint Venture Provision’s second exception because a
judgment holding a party jointly and severally liable for OPA costs and damages is
not the same as a judgment for recovery of a particular amount for such costs. See
Am. Cyanamid Co. v. Capuano, 381 F.3d 6, 12-13 (1st Cir. 2004) (interpreting
effect of declaratory judgment issued in an action under CERCLA and finding that
judgment on liability for future costs is not itself a judgment for recovery of such
costs or damages). An action to declare rights is not an action for money damages.
See Intercontinental Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650,
660-61 (Tex. 2009). Thus, the MDL Court’s order successfully declared Anadarko
jointly and severally liable, but did not set the amount for which Anadarko was
liable, which is what the second exception to the Joint Venture Provision
contemplated in providing that Anadarko must become “legally liable . . . for an
amount greater than [its] proportionate ownership interest” (emphasis added).The
United States prevailed on its request for declaratory judgment and the trial court
rendered judgment on liability, but the MDL Court did not rule on the amount of
monetary damages for which Anadarko was liable.
As explained above, coverage under Section III of the Policy is for
Anadarko’s “Ultimate Net Loss,” which is defined in part as “the amount
[Anadarko] is obligated to pay, by judgement or settlement, as damages[.]” Thus,
26 for a damages claim to be covered under Section III of the Policy, the plain
language of the Policy supports that the damages amount must be set forth in a
judgment or settlement creating an actual obligation for Anadarko to pay. A
“judgment” is a “court’s final determination of the rights and obligations of the
parties in a case.” Judgment, BLACK’S LAW DICTIONARY (9th ed. 2009). There is
no dispute that the MDL Court found Anadarko jointly and severally liable with
BP for OPA removal costs and damages. The MDL Court determined that BP and
Anadarko are both liable as responsible parties under the OPA. However, after
making this finding, the MDL Court noted that though the issue of BP and
Anadarko’s liability was settled, “there may be issues regarding quantum in
subsequent actions[.]” The MDL Court did not further expound on the meaning of
this statement. “[Q]uantum” means “quantity” or “amount[.]” WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 1859 (3d ed. 2002). Webster’s gives the
following verbal illustration of an appropriate use of the word “quantum” in
context—“the [quantum] of damages to be assessed[.]” Id. It also defines
“quantum” as “a certain or an allotted amount[.]” Id. Thus, the MDL Court’s order
could reasonably be interpreted as indicating the MDL Court anticipated further
litigation on this matter to determine the actual amount of OPA removal costs and
damages for which Anadarko and BP would be liable. The MDL Court did not
27 make a final determination as to the amount of Anadarko’s actual legal obligation.
Nothing in the record before us shows that Anadarko has been ordered to pay any
specific amount of OPA expenses in a judgment. Anadarko did enter into a
settlement agreement with BP wherein Anadarko paid $4 billion to BP for
damages and cleanup costs arising from the Macondo Incident. There is some
evidence in the record to support that Anadarko’s payment to BP is an amount that
is less than Anadarko’s 25 percent proportionate ownership interest in the well. 3 In
the settlement agreement, BP agreed to indemnify Anadarko for any OPA liability.
There is no evidence in the record of other settlement agreements in which
Anadarko agreed to pay additional funds for the Macondo Incident. And, in April
2016, the MDL Court entered a final judgment adopting a consent decree in which
the United States agreed to not pursue Anadarko for any OPA liability. In re Oil
Spill by the Oil Rig “Deepwater Horizon”, MDL No. 2179, 2016 U.S. Dist. LEXIS
50466, at *83-86 (E.D. La. Apr. 4, 2016). Thus, while the MDL Court’s order
suggests that the MDL Court initially anticipated future litigation to determine the
3 As explained above, the MDL Court found Anadarko liable for a $159.5 million fine under the Clean Water Act. See In re Oil Spill by Oil Rig “Deepwater Horizon”, 148 F. Supp. 3d 563, 584 (E.D. La. 2015); see also 33 U.S.C.S. § 1321(b)(7) (LEXIS through Pub. L. No. 114-244). Without deciding whether the fine was a covered liability under the Policy, we note that even if we considered the fine, Anadarko’s actual share of the costs stemming from the Macondo Incident remains well below its 25 percent working interest percentage in the joint venture. 28 actual amount of OPA liability for BP and Anadarko, the MDL Court ultimately
never made that determination concerning Anadarko because BP accepted full
responsibility for Anadarko’s OPA liability. See id.
We are unable to reconcile Anadarko’s interpretation of the third paragraph
of the Joint Venture Provision with the Policy’s definition of “Ultimate Net
Loss[.]” Anadarko’s interpretation of this part of the Joint Venture Provision
would ultimately require Underwriters to indemnify Anadarko for a loss for which
Anadarko has not become obligated to pay by judgment or settlement. Because
Anadarko’s interpretation renders a substantial part of the “Ultimate Net Loss”
provision meaningless, we conclude Anadarko’s construction is not reasonable and
Underwriters construction is the only reasonable construction of the provision. See
Deepwater Horizon, 470 S.W.3d at 464; Gilbert, 327 S.W.3d at 126.
For the reasons stated above, we conclude the trial court erred in granting
Anadarko’s motion for summary judgment. We reverse the trial court’s judgment
and render judgment granting Underwriters’ motion for summary judgment.
REVERSED AND RENDERED.
______________________________ CHARLES KREGER Justice
29 Submitted on May 7, 2015 Opinion Delivered November 17, 2016
Before McKeithen, C.J., Kreger and Horton, JJ.