Seneca Resources Corp. v. Marsh & McLennan, Inc.

911 S.W.2d 144, 1995 Tex. App. LEXIS 2575, 1995 WL 617347
CourtCourt of Appeals of Texas
DecidedOctober 19, 1995
DocketNo. 01-94-00851-CV
StatusPublished
Cited by7 cases

This text of 911 S.W.2d 144 (Seneca Resources Corp. v. Marsh & McLennan, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Seneca Resources Corp. v. Marsh & McLennan, Inc., 911 S.W.2d 144, 1995 Tex. App. LEXIS 2575, 1995 WL 617347 (Tex. Ct. App. 1995).

Opinion

OPINION

HEDGES, Justice.

Seneca Resources Corporation and Energy Assets International Corporation (collectively, Seneca) appeal a take-nothing judgment in favor of appellee, Marsh & McLennan, Inc. (Marsh). Seneca had sued for damages from Marsh, an insurance broker, claiming that Marsh had violated the Insurance Code by making misrepresentations regarding Seneca’s insurance coverage. We affirm.

Factual and procedural background

Seneca is an oil and gas company. It is a subsidiary of National Fuel Gas Company [145]*145(NFG). In 1985, Seneca contracted with Dixilyn-Field Drilling Company (Dixilyn) to move a submersible drilling rig onto an offshore oil and gas lease in the Gulf of Mexico and drill a well. The commencement of drilling, a process known as “spudding,” began on the well in June 1985. In late October, the well was in its final completion stage. On October 25, as Dixilyn was preparing to move the rig, Hurricane Juan passed over the well. Because the rig was not properly ballasted, the hurricane winds toppled the rig, forcing the wellhead 20 feet under water. When its insurance carrier initially refused payment for the loss, Seneca began the litigation that culminated in this appeal.

I. The insurance policies

A. Buying the policies

Seneca was insured through Underwriters at Lloyds, London (Underwriters). Roger Wilcox, a vice president and the risk manager of NFG, was responsible for procuring Seneca’s insurance. In the years relevant to this appeal, Seneca’s insurance was procured in the following manner. Annually, Wilcox contacted Marsh, a nationwide insurance broker with offices in Houston, and apprised Marsh of his companies’ insurance needs. Marsh contacted R.L. Jarrett, Inc., a United States insurance wholesaler, to seek a bid. R.L. Jarrett contacted the Lowndes Lambert Group, Ltd., an English broker. Lowndes Lambert contacted Underwriters and obtained a quote on available coverage and premiums. This information was communicated back through R.L. Jarrett to Marsh, whose account representative would directly contact Wilcox. Wilcox then made the final decision regarding the coverage to be purchased. Marsh would then bind the coverage by informing R.L. Jarrett, who would relay this information back up the chain.

B. Types of coverage

Two types of coverage are relevant to this appeal. The first is “all risk platform insurance,” which is basic property insurance that covers physical damage to all hardware surrounding the well.

The second type of coverage is “operator’s extra expense” or OEE. OEE includes re-drill coverage, which can be limited or unlimited. Limited redrill provides coverage up to the amount expended to drill the well. Unlimited redrill allows an insured to recoup up to its policy limits for redrill. Unlimited redrill coverage, by itself, provides redrill coverage for damage directly related to blowout or fire, but does not include coverage for named perils, such as windstorm or vessel collision; named peril redrill was, in 1985, an endorsement or extension to the basic policy, and not part of the policy itself. Named peril redrill customarily includes coverage for damage caused by windstorm. In this ease, Seneca needed named peril coverage in order to recover for the damage to the wellhead that occurred when the hurricane toppled the rig.

Seneca’s policies were renewed every October 1. The policy in effect from October 1, 1984, to October 1, 1985, was policy number 5196. The policy in effect from October 1, 1985, to October 1, 1986, was policy number 1134. Claims for property damage under all risk platform insurance accrue at the time of the loss. Therefore, any property damage that occurred because of Hurricane Juan was covered by policy 1134. However, a claim under the redrill provisions covered by OEE insurance begins to accrue on the date a well is spudded and matures when the well is completed. If a redrill claim has not matured at the policy termination date, the policy carries over into the next policy period until the date the well is completed. In this case, the well was spudded in June 1985 and had not been completed when the hurricane struck. Thus, policy 5196 would apply to any claim for redrill.1

C.The policy summaries

From 1983 through 1985, Debbie McRey-nolds was the Marsh account representative assigned to the NFG account. Annually, around renewal time, she sent Wilcox a sum[146]*146mary of coverage. In 1983, 1984, and 1985, the summaries she sent him included the following provision, reflecting that Seneca had named peril redrill coverage:

Unlimited Redrill Expense — The costs of redrilling a well which has been lost or damaged as a result of a blowout, crater, fire or named peril loss to drilling rig down to the depth at the time of loss.

(Emphasis added.) Notwithstanding this representation, none of the policies included named peril redrill coverage.

II.The claims under policies 1134 and 5196

After applying deductibles, an independent insurance adjuster estimated Seneca’s total claim for damages to be $4,709,532.54. This amount was based on damage to both the platform and the well. Seneca submitted a claim to Underwriters, which initially refused to pay because Seneca did not have named peril redrill coverage. Seneca filed a lawsuit against Underwriters, Marsh, Dixilyn, Lowndes Lambert, and R.L. Jarrett. Seneca’s claims against Marsh included negligence, breach of fiduciary duty, misrepresentation and breach of warranty, violations of the insurance code, and breach of the duty of good faith and fair dealing.

The dispute regarding coverage under policy 1134 was submitted to arbitration in federal court under that policy’s arbitration agreement. The arbitrators determined that policy 1134 covered all “equipment lost or damaged ‘above the lowest well head casing joint’ ” but did not cover damage to the well itself. The arbitrators found that Underwriters owed Seneca $1,745,368.45 for the covered property damage. Pursuant to a stipulation between Seneca and Underwriters, the panel awarded Seneca attorneys’ fees of over $1.8 million and prejudgment interest of over $1.3 million. Underwriters thus paid Seneca a total of almost $5 million.

Additionally, in connection with the arbitration of policy 1134, Underwriters and Seneca entered into an agreement under which: (1) Underwriters would pay Seneca the amount of the arbitration award plus a settlement of $6,067.93; (2) Underwriters would be liable for no more than $10,000 under policy 5196; (3) Seneca would pursue its lawsuit against Dixilyn and others; (4) Seneca would retain the first $1.5 million of any recovery in those lawsuits; and (5) Seneca would evenly split any additional recovery with Underwriters, up to the full amount of payments made by Underwriters to Seneca. Underwriters continued to refuse to pay for redrilling the well under policy 5196.

III. The suit against Dixilyn

Seneca and Dixilyn entered into a settlement and release whereby Dixilyn paid Seneca $3.9 million. Seneca kept the first $1.5 million and split the remaining $2.4 million with Underwriters, pursuant to their agreement.2

IV. The trial3

Before the start of trial, Seneca amended its pleadings.

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Bluebook (online)
911 S.W.2d 144, 1995 Tex. App. LEXIS 2575, 1995 WL 617347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seneca-resources-corp-v-marsh-mclennan-inc-texapp-1995.