Case: 12-30230          Document: 00512357465         Page: 1   Date Filed: 08/29/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                              FILED
                                                                            August 29, 2013

                                             No. 12-30230                   Lyle W. Cayce
                                                                                 Clerk

IN RE: DEEPWATER HORIZON

--------------------------------------------------

RANGER INSURANCE, LIMITED,

                                                     Plaintiff - Appellee
v.

TRANSOCEAN OFFSHORE DEEPWATER DRILLING, INCORPORATED;
TRANSOCEAN HOLDINGS, L.L.C.; TRANSOCEAN DEEPWATER,
INCORPORATED; TRITON ASSET LEASING GMBH,

                                                     Intervenor Plaintiffs - Appellees
v.

BP P.L.C.; BP EXPLORATION & PRODUCTION, INCORPORATED; BP
AMERICAN PRODUCTION COMPANY; BP CORPORATION NORTH
AMERICA, INCORPORATED; BP COMPANY NORTH AMERICA,
INCORPORATED; BP PRODUCTS NORTH AMERICA, INCORPORATED;
BP AMERICA, INCORPORATED; BP HOLDINGS NORTH AMERICA,
LIMITED,

                                 Defendants - Intervenor Defendants - Appellants

--------------------------------------------------

CERTAIN UNDERWRITERS AT LLOYD’S LONDON,

                                                     Plaintiff - Appellee
v.
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                                       No. 12-30230

TRANSOCEAN OFFSHORE DEEPWATER DRILLING, INCORPORATED;
TRANSOCEAN HOLDINGS, L.L.C.; TRANSOCEAN DEEPWATER,
INCORPORATED; TRITON ASSET LEASING GMBH,

                                                  Intervenor Plaintiffs - Appellees
v.

BP P.L.C.; BP EXPLORATION & PRODUCTION, INCORPORATED; BP
AMERICAN PRODUCTION COMPANY; BP CORPORATION NORTH
AMERICA, INCORPORATED; BP COMPANY NORTH AMERICA,
INCORPORATED; BP PRODUCTS NORTH AMERICA, INCORPORATED;
BP AMERICA, INCORPORATED; BP HOLDINGS NORTH AMERICA,
LIMITED,

                             Defendants - Intervenor Defendants - Appellants



                    Appeal from the United States District Court
                       for the Eastern District of Louisiana


Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      The original opinion in this case was filed on March 1, 2013.1 Because this
case involves important and determinative questions of Texas law as to which
there is no controlling Texas Supreme Court precedent, the panel, upon the
petition for rehearing, unanimously withdraws the previous opinion and
substitutes the following certified questions to the Supreme Court of Texas.
      CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF TEXAS,
PURSUANT TO THE TEXAS CONSTITUTION ART. 5 § 3-C AND TEXAS
RULE OF APPELLATE PROCEDURE 58.1.



      1
          In re Deepwater Horizon, 

(5th Cir. 2013).

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                                  No. 12-30230

      TO THE SUPREME COURT OF TEXAS AND THE HONORABLE
JUSTICES THEREOF:


                 I. Style of the Case: Parties and Counsel
      The style of the case is In re: Deepwater Horizon: Ranger Insurance,
Limited, Plaintiff–Appellee v. Transocean Offshore Deepwater Drilling,
Incorporated;    Transocean    Holdings,    L.L.C.;   Transocean      Deepwater,
Incorporated; Triton Asset Leasing GMBH, Intervenor Plaintiffs–Appellees v.
BP P.L.C.; BP Exploration & Production, Incorporated; BP American Production
Company; BP Corporation North America, Incorporated; BP Company North
America, Incorporated; BP Products North America, Incorporated; BP America,
Incorporated; BP Holdings North America, Limited Defendants–Intervenor
Defendants–Appellants;       Certain    Underwriters       at   Lloyd’s   London,
Plaintiff–Appellee, Transocean Offshore Deepwater Drilling, Incorporated;
Transocean Holdings, L.L.C.; Transocean Deepwater, Incorporated; Triton Asset
Leasing GMBH, Intervenor Plaintiffs–Appellees v. BP P.L.C.; BP Exploration
& Production, Incorporated; BP America Production Company; BP Corporation
North America, Incorporated; BP Company North America, Incorporated; BP
Products North America, Incorporated; BP America, Incorporated; BP Holdings
North America, Limited, Defendants–Intervenor Defendants–Appellants. This
is Case No. 12-30230, in the United States Court of Appeals for the Fifth Circuit,
on appeal from the judgment of the United States District Court for the Eastern
District of Louisiana. Federal jurisdiction is premised upon 28 U.S.C. § 1333.
      The names of all the parties to the case, each of whom is represented by
counsel, and the respective names, addresses, and telephone numbers of their
counsel, are as follows:
•     Ranger Insurance, Limited, plaintiff in the district court and appellee in
      this court, represented by Michael John Maloney of Maloney, Martin &

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                                 No. 12-30230

      Associates, Suite 100, 3401 Allen Parkway, Houston, TX 77019-0000, Tel.
      713-759-1600;
•     Transocean Offshore Deepwater Drilling, Incorporated; Transocean
      Holdings, L.L.C.; Transocean Deepwater, Incorporated; and Triton Asset
      Leasing GMBH, intervenor–plaintiffs in the district court and appellees
      in this court, represented by Steven Lynn Roberts, of Sutherland Asbill &
      Brennan, L.L.P., Suite 3700, 1001 Fannin Street, Houston, TX 77002-
      6760, Tel. 713-470-6192;
•     BP, P.L.C.; BP Exploration & Production, Incorporated; BP American
      Production Company; BP Corporation North America, Incorporated; BP
      Company North America, Incorporated; BP Products North America,
      Incorporated; BP America, Incorporated; BP Holdings North America
      Limited, defendants and defendant-intervenors in the district court and
      appellants in this court, represented by David B. Goodwin of Covington &
      Burling, L.L.P., 35th Floor, 1 Front Street, San Francisco, CA 94111-5356,
      Tel. 415-591-6000; and
•     Certain Underwriters at Lloyds London, plaintiff in the district court and
      appellee in this court, represented by Richard N. Dicharry of Phelps
      Dunbar, L.L.P., Suite 2000, 365 Canal Street, 1 Canal Place, New Orleans,
      LA 70130, Tel. 504-556-1311.
                         II. Statement of the Case
      Transocean Holdings, Inc. (“Transocean”) owned the Deepwater Horizon,
a semi-submersible, mobile offshore drilling unit. In April 2010, the Deepwater
Horizon sank into the Gulf of Mexico after burning for two days following an
onboard explosion (“Incident” or “Deepwater Horizon Incident”). At the time of
the Incident, the Deepwater Horizon was engaged in exploratory drilling
activities at the Macondo Well under a Drilling Contract between the Appellant
BP American Production Company’s (together with its affiliates, “BP”)

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                                       No. 12-30230

predecessor and Transocean’s predecessor. This Contract required Transocean
to maintain certain minimum insurance coverages for the benefit of BP. The
extent to which these policies covered BP’s pollution-related liabilities arising
from the Deepwater Horizon Incident is the subject of this appeal.
The Insurance Contracts
       Transocean held insurance policies with a primary liability insurer,
Ranger Insurance Ltd. (“Ranger”), as well as several excess liability insurers led
by London market syndicates (“Excess Insurers;” together with Ranger,
“Insurers”). Transocean’s insurance policy with Ranger provided at least $50
million of general liability coverage, and its policies with the Excess Insurers
formed four layers of excess coverage directly above the Ranger Policy that
provided at least $700 million of additional general liability coverage. The
Ranger and Excess Policies contain materially identical provisions.2 The Policy
terms that are important to this case are “Insured” and “Insured Contract.” The
Policies define “Insured” as including the Named Insured, other parties, and
       (c) any person or entity to whom the “Insured” is obliged by any oral
       or written “Insured Contract” (including contracts which are in
       agreement but have not been formally concluded in writing) entered
       into before any relevant “Occurrence”, to provide insurance such as
       is afforded by this Policy . . . .
The Policies define “Insured Contract” as follows:
       The words “Insured Contract”, whenever used in this Policy, shall
       mean any written or oral contract or agreement entered into by the
       “Insured” (including contracts which are in agreement but have not
       been formally concluded in writing) and pertaining to business
       under which the “Insured” assumes the tort liability of another
       party to pay for “Bodily Injury”, “Property Damage”, “Personal
       Injury” or “Advertising Injury” to a “Third Party” or organization.




       2
        As the district court noted (and the Insurers have not disputed), this similarity allows
the court to treat all of the Insurers as one for purposes of analysis in this case.

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      Tort Liability means a liability that would be imposed by law in the
      absence of any contract or agreement.3
The Drilling Contract
      The Drilling Contract defines BP’s and Transocean’s obligations to one
another, separately identifying the liabilities each party assumes. Article 20 of
the Contract is a singular provision that imposes upon Transocean an insurance
requirement:
      20.1 INSURANCE
      Without limiting the indemnity obligations or liabilities of
      CONTRACTOR [Transocean] or its insurer, at all times during the
      term of this CONTRACT, CONTRACTOR shall maintain
      insurance covering the operations to be performed under
      this CONTRACT as set forth in Exhibit C.
(Emphasis added.) Exhibit C to the Drilling Contract is titled “Insurance
Requirements” and establishes the types and minimum level of coverage that
Transocean is obligated to maintain. This Exhibit provides that Transocean
shall carry all insurance at its own expense and that the policies “shall be
endorsed to provide that there will be no recourse against [BP] for payment of
premium.” Further, Exhibit C states:
      [BP], its subsidiaries and affiliated companies, co-owners, and joint
      venturers, if any, and their employees, officers and agents shall be
      named as additional insureds in each of [Transocean’s]
      policies, except Workers’ Compensation for liabilities
      assumed by [Transocean] under the terms of this Contract.
(Emphasis added.)
The Procedural History




      3
        The Policies contain further provisions addressing other insureds. Endorsement 1
provides a general condition that additional insureds are automatically included where
required by written contract. Condition D.1 to Section I coverage limits the coverage of
additional insureds: Transocean has the privilege to name additional insureds only to the
extent as is required under contract or agreement.

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       Following the Incident, BP notified the Insurers of its Deepwater Horizon-
related losses.      The Excess Insurers and Ranger each filed a one-count
declaratory judgment action against BP.4                 The Insurers’ complaints are
substantively identical—both request a declaration that the Insurers have “no
additional-insured obligation to BP with respect to pollution claims against BP
for oil emanating from BP’s well” as a result of the Deepwater Horizon Incident.
The Insurers acknowledge that “the [D]rilling Contract requires additional
insured protection in favor of certain BP entities.” Thus, all parties concede that
the Drilling Contract is an “insured contract” under the policies and that the
policies provide some insurance coverage to BP as an additional insured. The
issue in contention is the scope of BP’s insurance coverage.
       In July 2011, BP moved for judgment on the pleadings, under Rule 12(c)
of the Federal Rules of Civil Procedure, against the Insurers. Relying upon
Texas and Fifth Circuit precedent as developed in Evanston Ins. Co. v.
ATOFINA Petrochems., Inc., 

(Tex. 2008), and in Aubris
Resources LP v. St. Paul Fire & Marine Ins. Co., 

(5th Cir. 2009), BP
argued (1) it was an “additional insured” under the insurance policies at issue
and (2) the insurance policies alone—and not the indemnities detailed in the
Drilling Contract—govern the scope of BP’s coverage rights as an “additional
insured.”5
       The district court found ATOFINA and Aubris are distinguishable from
the case at hand and denied BP’s Rule 12(c) motion in November 2011. In


       4
         In February 2011, the Judicial Panel on Multidistrict Litigation transferred both cases
to the United States District Court for the Eastern District of Louisiana for coordinated
pretrial proceedings with the other Deepwater Horizon-related litigation pending in that court.
In March 2011, Transocean moved for leave to intervene in the consolidated actions, which
motion the court granted.
       5
        BP argues this motion did not require a determination of any rights or obligations of
BP or Transocean to one another under any provisions of the Drilling Contract.

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                                         No. 12-30230

particular, the court read Transocean’s insurance obligation in Exhibit C to the
Drilling Contract to be to name BP as an “additional insured[] in each of
[Transocean’s] policies . . . for liabilities assumed by [Transocean] under the
terms of the contract.” That is, the district court found BP’s proffered reading
of this clause unreasonable, and read the clause as if there were a comma
following the phrase “except Workers’ Compensation;” this reading rendered
those three words their own discrete carve out from liability. Reasoning further
that this interpretation required Transocean to name BP as an insured only for
liabilities Transocean explicitly assumed under the contract, the court then
looked to Article 24 of the Drilling Contract to conclude that BP was not covered
under Transocean’s policy for the pollution-related liabilities deriving from the
Deepwater Horizon Incident (as the spill originated below the surface of the
water).6
      Following further submissions of the parties, the district court then
entered a partial final judgment on the Insurers’ complaints under Rule 54(b).


      6
          With respect to pollution-related liabilities, Article 24.1 of the Contract provides:
      CONTRACTOR [Transocean] shall assume full responsibility for and shall
      protect, release, defend, indemnify, and hold COMPANY [BP] and its joint
      owners harmless from and against any loss, damage, expense, claim, fine,
      penalty, demand, or liability for pollution or contamination, including
      control and removal thereof, originating on or above the surface of the
      land or water, from spills, leaks, or discharges of fuels, lubricants, motor oils,
      pipe dope, paints, solvents, ballast, air emissions, bilge sludge, garbage, or any
      other liquid or solid whatsoever in possession and control of CONTRACTOR .
      ...
(Emphasis added.) Article 24.2 then provides:
      COMPANY [BP] shall assume full responsibility for and shall protect, release,
      defend, indemnify, and hold CONTRACTOR [Transocean] harmless from and
      against any loss, damage, expense, claim, fine, penalty, demand, or liability for
      pollution or contamination, including control and removal thereof, arising
      out of or connected with operations under this CONTRACT hereunder
      and not assumed by CONTRACTOR in Article 24.1 above . . . .
(Emphasis added.)

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Effective March 1, 2012, the court held “by its terms, the Court’s Order and
Reasons [on BP’s motion for judgment on the pleadings] not only denied BP’s
motion but also granted judgment on the pleadings against [BP] and in favor of
the Plaintiff Insurers on the Plaintiff Insurers’ complaints.”7               BP timely
appealed. A unanimous panel of this court initially reversed the district court’s
judgment. In re Deepwater Horizon, 

(5th Cir. 2013). The Insurers
and Transocean petitioned for rehearing, and we withdrew that ruling to certify
the following question to the Texas Supreme Court.
                                  III. Legal Issues
       BP appeals the district court’s conclusion that it is not entitled to coverage
under the policies, because Transocean was only required to name BP as an
additional insured as to the risks Transocean assumed in the indemnities
provisions of the Drilling Contract.
                                            A.
       The first issue is the scope of BP’s coverage as an additional insured, and
whether the umbrella policy itself determines the extent of coverage, or the
indemnity clauses in the Drilling Contract effectively limit BP’s coverage.
       In 2008, the Texas Supreme Court addressed “whether a commercial
umbrella insurance policy that was purchased to secure the insured’s indemnity
obligation in a service contract with a third party also provides direct liability
coverage for the third party.”         

.              Both the
appellants and the appellees agree this case is instructive, but they proffer
different applications of its holding to the facts of the case at issue. Uncertainty
regarding the outcome under ATOFINA ultimately triggered this certification.



       7
        In its brief, BP notes that this partial final judgment was entered in favor of the
Insurers “and Transocean” and argues that Transocean is not a proper party to this order.
BP’s Rule 12(c) motion was directed only to the Insurers’ complaints and claims—not against
Transocean.

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       In ATOFINA, ATOFINA owned an oil refinery at which it hired Triple S
to perform maintenance functions. 

and Triple S entered
a services contract which stipulated that ATOFINA was to be named an
additional insured in each of Triple S’s policies. Specifically, this provision
stated:
       [ATOFINA], its parents, subsidiaries and affiliated companies, and
       their respective employees, officers and agents shall be named as
       additional insured in each of [Triple S’s] policies, except Workers’
       Compensation; however, such extension of coverage shall not apply
       with respect to any obligations for which [ATOFINA] has
       specifically agreed to indemnify [Triple S].8
       After a Triple S employee drowned while servicing the ATOFINA refinery,
his estate sued ATOFINA and Triple S for wrongful death. 

S’s
insurer, Evanston, and ATOFINA disagreed over who was required to pay for
the litigation; ATOFINA contended it was an additional insured and thus
covered, while Evanston argued ATOFINA’s agreement to indemnify Triple S for
ATOFINA’s sole negligence precluded coverage. 

Court began by noting that ATOFINA sought
coverage from Evanston on the basis that it was Triple S’s additional
insured—and had not sought indemnity directly from Triple S. 

court next looked to Section III.B.6 of the policy, which defined who is an
insured as
       A person or organization for whom you have agreed to provide
       insurance as is afforded by this policy; but that person or
       organization is an insured only with respect to operations performed
       by you or on your behalf, or facilities owned or used by you.


       8
        Petitioner’s Br. on the Merits, Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 

(Tex. 2008) (No. 03-0647), 

, at *4. Triple S also agreed to
indemnify ATOFINA from all personal injuries and property losses sustained during the
performance of the contract, “except to the extent that any such loss is attributable to the
concurrent or sole negligence, misconduct, or strict liability of 

.

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                                       No. 12-30230

by its own terms, this Section covered ATOFINA “with
respect to operations performed by” Triple S, the court found this Section
provided ATOFINA direct coverage even for its sole negligence.9 

court reached this conclusion, in part, because it found “it . . . unmistakable that
the agreement in this case to extend direct insured status to ATOFINA as an
additional insured is separate and independent from ATOFINA’s agreement to
forego contractual indemnity for its own negligence.”10 

this appeal, BP focuses upon the ATOFINA court’s statement that,
“[i]nstead of looking, as the court of appeals did, to the indemnity agreement in
the service contract to determine the scope of coverage, we base our decision on
the terms of the umbrella insurance policy 

. And it
further highlights that, as in ATOFINA, it is seeking insurance coverage from
the Insurers, not indemnification from Transocean, and that the umbrella policy
itself does not limit coverage for additional insureds.11 Because the additional
insured provision and the indemnities provisions in the Drilling Contract are
separate and independent, because the Policy provides coverage to additional
insureds “such as is afforded by this Policy,” and because Transocean would be
covered for the injuries at issue, BP contends it, too, is entitled to coverage.
       The Insurers and Transocean, to the contrary, highlight the differences
between the additional insured provisions at issue in ATOFINA and here. The
ATOFINA clause, they proffer, imposed a broad requirement to list ATOFINA

       9
         Moreover, the court stated that “had the parties intended to insure ATOFINA for
vicarious liability only, ‘language clearly embodying that intention was available.’” 

McIntosh v. Scottsdale Ins. Co., 

, 255 (10th Cir. 1993)).
       10
        The court further “disapprove[d] of the view that this kind of additional insured
requirement fails to establish a separate and independent obligation for insuring 

.
       11
           For example, that policy does not say coverage for additional insureds is “limited to
the liabilities assumed by the Named Insured in the agreement between the Named Insured
and Additional Insured.”

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                                  No. 12-30230
as an additional insured, whereas the analogous clause in the Drilling Contract
creates a far more limited obligation, namely, to name BP as an additional
insured only for liabilities Transocean specifically assumed in the contract.
Furthermore, they contend that this language renders the additional insured
provision inextricable from the indemnities provisions of the Drilling Contract;
unlike in ATOFINA, the additional insured requirement is not separate and
independent. They argue further the umbrella policy requires an “Insured
Contract” exist between the named insured and the third party, while in
ATOFINA no contract was required. In combination, the appellees contend,
these factors allow the court to consider the indemnities clauses in the Drilling
Contract in discerning the extent to which BP is covered as an additional
insured.
      Because there are potentially important distinctions between the facts of
the instant case and ATOFINA, the outcome is not entirely clear.
                                        B.
      In the event the court must consider whether the Drilling Contract
imposes limitations upon BP’s coverage as an additional insured, an issue then
arises of how to interpret the additional insured provision of that Contract. The
parties offer competing interpretations, and which party prevails may depend
upon whether the doctrine of contra proferentem applies.
      Texas law has consistently held that, if an insurance coverage provision
is susceptible to more than one reasonable interpretation, the court must
interpret that provision in favor of the insured, so long as that interpretation is
reasonable. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson Energy Co.,

, 555 (Tex. 1991). The court must do so even if the insurer’s
interpretation is more reasonable than the insured’s—“[i]n particular, exceptions
or limitations on liability are strictly construed against the insurer and in favor
of the insured,” 

to exclude coverage must be expressed in

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                                       No. 12-30230
clear and unambiguous language.” 

, 668 n.27
(citing Hudson 

); see also Certain Underwriters at
Lloyds, London v. Law, 

, 577 (5th Cir. 2009) (“If . . . ambiguity is
found, the contractual language will be ‘liberally’ construed in favor of the
insured.” (citing Barnett v. Aetna Life Ins. Co., 

, 666 (Tex. 1987))).
       This rule favoring the insured derives, in part, from the “special
relationship between insurers and insureds arising from the parties’ unequal
bargaining power.” Balandran v. Safeco Ins. Co. of America, 

,
741 n.1 (Tex. 1998). This aspect of the rule’s foundation hearkens to the doctrine
of contra proferentem, which construes any ambiguities against the drafter, and
the “sophisticated insured” exception, which may apply when the policy is in
some way negotiable (i.e., it is not a contract of adhesion) and the insured is as
capable as the insurer of interpreting the contract.
       The Texas Supreme Court has never recognized a sophisticated insured
exception to the general rule of interpreting insurance coverage clauses, nor has
it ever indicated contra proferentem would not apply in construing these clauses.
See, e.g., 

(stating the traditional rule construing
coverage clauses in favor of the insured). Given that Texas has long recognized
its rules regarding interpretation of insurance coverage clauses are partially
derivative of the unequal bargaining power typical in many negotiations over
insurance contracts, however, it is possible that such an exception may be
deemed appropriate in a case like this, where all the parties involved are highly
capable contractors.12 On the one hand, the facts here indicate Insurers were not
involved in drafting the Drilling Contract, and thus construing ambiguities in
that contract against them might be inappropriate. But on the other, the


       12
        One federal district court in Texas has found that the sophisticated insured exception
might apply under Texas law, given the right circumstances. Vought Aircraft Indus., Inc. v.
Falvey Cargo Underwriting, Ltd., 

, 824-25 (N.D. Tex. 2010).

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Insurers were involved in drafting the umbrella policy language at issue, and the
failure of that policy language to limit coverage in underlying “Insured
Contracts” to the liabilities assumed by the named insured in those contracts is
part of what ails the Insurers now.
                                       C.
      Each party contends that its interpretation and application of ATOFINA
better advances the goals of Texas insurance law and is more aligned with the
intent of the parties. Their arguments illuminate the magnitude and wide
ramifications, both throughout the oil and gas industry and for insurance law,
of this case. Where state law governs such an issue, these policy factors are
better gauged by the state high court than by a federal court.
                           IV. Questions Certified
      For the reasons discussed above, we hereby certify the following
determinative questions of Texas law to the Supreme Court of Texas.
      1.    Whether Evanston Ins. Co. v. ATOFINA Petrochems., Inc.,
            

(Tex. 2008), compels a finding that BP is
            covered for the damages at issue, because the language of the
            umbrella policies alone determines the extent of BP’s coverage
            as an additional insured if, and so long as, the additional
            insured and indemnity provisions of the Drilling Contract are
            “separate and independent”?
      2.    Whether the doctrine of contra proferentem applies to the
            interpretation of the insurance coverage provision of the
            Drilling Contract under the ATOFINA 

, given the facts of this case?
We disclaim any intention or desire that the Supreme Court of Texas confine its
reply to the precise form or scope of the questions certified.




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