E. GRADY JOLLY, Circuit Judge:
This appeal presents only one of the many disputes that have arisen and will arise from the explosion and sinking of
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 America Production Company's (together with its affiliates, "BP") 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.
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.
The Policies define "Insured Contract" as follows:
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:
(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:
(Emphasis added.)
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.
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., 256 S.W.3d 660 (Tex.2008), and in Aubris Resources LP v. St. Paul Fire & Marine Ins. Co., 566 F.3d 483 (5th Cir. 2009), BP argued (1) it was an "additional
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 particular, the court read Transocean's insurance obligation in Exhibit C 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).
Following further submissions of the parties, the district court then entered a partial final judgment on the Insurers' complaints under Rule 54(b). 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."
We review de novo a district court's grant of judgment on the pleadings under Rule 12(c). United States v. Renda Marine, Inc., 667 F.3d 651, 654 (5th Cir. 2012). The standard for dismissal under Rule 12(c) is the same as that for dismissal under Rule 12(b)(6). Johnson v. Johnson,
We similarly review issues of contract interpretation de novo. One Beacon Ins. Co. v. Crowley Marine Servs. Inc., 648 F.3d 258, 262 (5th Cir.2011). The parties agree that Texas law governs interpretation of the Policies, under the Policies' choice-of-law provisions. "Under Texas law, the same general rules apply to the interpretation of contracts and insurance policies." Aubris, 566 F.3d at 486 (citing Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003)). Courts should consider contracts "as a whole," affording "each part of the contract... effect." Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994). Discerning the parties' true intent, as expressed in the language of the policy, is the court's primary concern. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). And the court may not adopt a construction that renders any portion of a policy meaningless, useless, or inexplicable. ATOFINA Petrochemicals, Inc. v. Cont'l Cas. Co., 185 S.W.3d 440, 444 (Tex.2005).
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., 811 S.W.2d 552, 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," id., and "[a]n intent to exclude coverage must be expressed in clear and unambiguous language." ATOFINA, 256 S.W.3d at 668, 668 n. 27 (citing Hudson Energy Co., 811 S.W.2d at 555); see also Certain Underwriters at Lloyds, London v. Law, 570 F.3d 574, 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., 723 S.W.2d 663, 666 (Tex.1987))).
Under Texas law, to discern "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," we look to the "terms of the umbrella insurance policy itself," instead of looking to the indemnity agreement in the underlying service contract. ATOFINA, 256 S.W.3d at 662, 664; see also Aubris, 566 F.3d at 488-89. We apply this analysis so long as the indemnity agreement and the insurance coverage provision are separate and independent. ATOFINA, 256 S.W.3d at 664 n. 5 (citing Getty Oil Co. v. Ins. of N. Am., 845 S.W.2d 794, 804 (Tex.1992)); Aubris, 566 F.3d at 489. We examine each step of the analysis in turn.
First, we ask whether the umbrella policy between the Insurers and Transocean itself limits coverage for any additional insureds, including BP. ATOFINA is instructive, as its facts significantly parallel the facts of the case now before us. 256 S.W.3d 660. ATOFINA owned an oil refinery
After a Triple S employee drowned while servicing the ATOFINA refinery, his estate sued ATOFINA and Triple S for wrongful death. Id. at 663. Triple 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. Id.
The Texas Supreme 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. Id. at 663-64. The court next looked to Section III.B.6 of the policy, which defined who is an insured as
Id. at 664. Because, 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. Id. at 667. Moreover, the court stated that "had the parties intended to insure ATOFINA for vicarious liability only, `language clearly embodying that intention was available.'" Id. at 666 (citing McIntosh v. Scottsdale Ins. Co., 992 F.2d 251, 255 (10th Cir.1993)).
This Court subsequently applied ATOFINA's teachings in Aubris. 566 F.3d 483. Again, this case involved a particularly analogous set of facts: United hired J & R Valley to service its oilfields pursuant to a services contract that required J & R Valley to name United as an additional insured in its commercial general liability policy. Id. at 485. The agreement further contained a general indemnity provision requiring United to indemnify J & R Valley for causes of action deriving from United's own negligence. Id. at 485-86. The court noted that "[o]ur starting point is the insurance policy itself." Id. at 487. This policy defined an additional insured as
Id. (emphasis in original). Because this definition referred to a "written contract for insurance," the court then looked to the additional insured provision in the services agreement to determine whether coverage was required. Id. That provision stated, in relevant part:
Id. (emphasis in original). On the basis of this term, J & R Valley's insurer argued the general indemnity provision of the services agreement prevented United from being covered. Id.
The court disagreed, stating, "[w]e take from [ATOFINA] that in determining whether there is coverage, a court looks only to the additional insured provision itself; that indemnity is a separate, and later arising, question from coverage." Id. at 488. Again, the court noted that United sought coverage from J & R Valley's insurer and not indemnity from J & R Valley itself — just as ATOFINA sought coverage from Evanston and not indemnity from Triple S. Id. at 489.
The court held:
Id. at 489 (quoting ATOFINA, 256 S.W.3d at 664 (citing Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 804 (Tex.1992))).
Most recently, and subsequent to the district court's ruling, the Texas Court of Appeals addressed this same question of coverage in Pasadena Refining System, Inc. v. McCraven, Nos. 14-10-00837-CV, 14-10-00860-CV, 2012 WL 1693697 (Tex. App. May 15, 2012). The umbrella policy there provided a broad definition of "additional insured,"
Id. at *14. The insurer argued that this clause in the services agreement expressed the parties' clear intent to limit additional insured coverage to the indemnities listed in that agreement. Id. at *16. The court, however, applied ATOFINA and Shell Chemical L.P. v. Discover Property & Casualty Insurance Co., CIV. A. No. H-09-2583, 2010 WL 1338068 (S.D.Tex. Mar. 29, 2010), and concluded that only the policy could limit the scope of additional insured status. 2012 WL 1693697, at * 15-16. Looking to the "unambiguous [umbrella] policy, which neither contains a limitation on additional insured coverage concerning indemnity under the [services] agreement nor incorporates any such limitation," the court held the company was an additional insured entitled to coverage as a matter of law. 2012 WL 1693697, at *14, *16-17.
This case law makes clear to us that only the umbrella policy itself may establish limits upon the extent to which an additional insured is covered in situations such as the one now before us. As an initial matter we note that here, as in ATOFINA and Aubris, BP is not seeking indemnity from Transocean, but is seeking coverage from the Insurers. The umbrella policy in this case defines an additional insured as "any person or entity to whom the `Insured is obliged by any oral or written `Insurance Contract' ... to provide insurance such as is afforded by this policy." And it defines "Insurance Contract" as "any written or oral contract or agreement entered into by the `Insured' ... 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." This language is very similar to the language in the umbrella policies in ATOFINA, Aubris, and Pasadena Refining — indeed, we can find no principled distinction between the policy language in these three cases and in the case now at hand.
The Insurers, however, argue that the additional insured provision in the Drilling Contract specifically limits BP's status as an additional insured to circumstances involving those liabilities Transocean specifically assumes under the Contract. This argument is simply not persuasive given how Texas law has developed. The language to which the Insurers cite for support is virtually identical to the additional insured provision contained in the services agreement in ATOFINA; additionally, it is very similar to the language in both Aubris
And the Drilling Contract here requires:
While the parties ardently disagree as to how this clause in the Drilling Contract should be interpreted, we find, in the light of ATOFINA, that we need not now decide this contentious issue. Even if the clause is construed as the Insurers desire, that is, even if it is understood to mean that BP is an additional insured under Transocean's policies only for liabilities Transocean specifically assumed in the Drilling Contract, the outcome is a clause materially identical to the additional insured provision in ATOFINA — and the Texas Supreme Court found that this clause was insufficient to limit coverage. Despite the services contract's language, the ATOFINA court found the umbrella policy controlled coverage. Accordingly, we find we are bound to look only to the policy itself to determine whether BP is covered in the current case. Because the umbrella policy's provision describing an additional insured is substantially similar to the pertinent policy provisions in ATOFINA, Aubris, and Pasadena Refining, we hold that there is no relevant limitation to BP's coverage under the policy as an additional insured, that is, so long as the insurance provision and the indemnities clauses in the Drilling Contract are separate and independent. See ATOFINA, 256 S.W.3d at 664 n. 5, 670; Getty Oil, 845 S.W.2d at 804.
And now that is the question we must next resolve: Whether the Drilling Contract's additional insured provision is separate from and additional to the indemnity provisions. Getty Oil, 845 S.W.2d at 804. Notably, in ATOFINA, Aubris, and Pasadena Refining, the respective courts found the additional insured provisions were independent of the indemnity provisions. ATOFINA considered two cases in reaching this conclusion. First, it examined Fireman's Fund v. Commercial Standard Ins. Co., 490 S.W.2d 818 (Tex.1972), in which the Texas Supreme Court held GM was not entitled to indemnity because the contract did not extend indemnity to GM's negligence. In that case, GM had contracted with Sam P. Wallace Co., Inc. ("Wallace") to perform work on GM's Arlington assembly plant, and, in the contract, Wallace agreed to indemnify GM for any losses arising from Wallace's own negligence and to obtain liability insurance to satisfy that obligation. Id. at 820. The ATOFINA court distinguished that case by noting that in Fireman's Fund, GM was not an additional insured under Wallace's liability policy — while Wallace was required to obtain insurance to cover its liabilities, it was not further required to name GM as an additional insured in those policies. 256 S.W.3d at 669-70. As described below, this same distinction applies to the case now before us.
Second, the ATOFINA court looked to Getty Oil, 845 S.W.2d 794. Getty contracted with NL Industries to purchase chemicals, and the services contract included an
The ATOFINA court applied the reasoning in these cases to find that, "[a]lthough the service contract in this case does not include an insurance requirement quite as clear as the one in Getty, it is clear enough — it requires that ATOFINA `shall be named as additional insured in each of [Triple S's] policies.'" 256 S.W.3d at 670 (alteration in original). The court then concluded it was
Id. (emphasis in original).
Accordingly, to render an additional insured provision separate from and additional to an indemnity provision, Texas law only requires the additional insured provision be a discrete requirement. As evidenced in Getty Oil and ATOFINA, it need not be an entirely separate provision of the contract, and its independent status is not altered merely by the fact that the contract also includes a provision requiring the relevant party to obtain insurance to cover its liabilities under the contract.
Here, as the Insurers note, one clause of Exhibit C (describing Transocean's insurance obligations) requires Transocean to obtain coverage for its contractual liabilities,
Texas law compels us to interpret insurance coverage provisions in favor of the insured, so long as that interpretation is reasonable — and even if the insurer's proffered
REVERSED and REMANDED for entry of judgment.
(Emphasis added.) Article 24.2 then provides:
(Emphasis added.)
(Emphasis added.)