A recent Law 360 story by Rick Archer, “Policy Limits Apply to Hospital System’s Defense Claims,” reports that the Fifth Circuit has ruled defense costs can count against insurance policy limits, leaving Mississippi-based hospital system Singing River Health Services is on the hook for some of the legal fees it paid defending itself from pension fraud claims.  The panel reversed a district court decision that SRHS’ defense costs did not erode its policy limit with Federal Insurance Co., finding it ignored the wording of the policy.

“Reading several clauses out of the policy, including ones that make clear that a non-eroding policy will cost extra, is inconsistent with the requirement to consider the language of the policy as a whole,” Judge Catharina Haynes, writing the opinion for the panel, said.

The suit stems from costs the hospital system incurred defending against federal class actions and two state suits accusing it of failing to make annual required contributions into a retirement fund.  The hospital settled the suits in January 2016 for $156 million.

Federal Insurance had argued a $1 million policy limit applied to the defense costs, while SRHS claimed Federal was obligated to pay the entire cost.  A district court agreed the limit did not apply to defense costs, but also found a number of SRHS’ claims were barred by a policy exclusion for losses resulting from employee benefits program laws.

The panel reversed the district court on the policy limits decision, saying the policy explicitly states defense costs erode the policy limit, and that SRHS specifically declined to purchase extra coverage for defense costs.  The panel also rejected claims state law requires the defense costs be covered and that the eroding coverage clause was invalid because it was not placed in SRHS’ board’s minutes.

“Mississippi law does not allow the courts to use rules of construction to defeat the parties’ own agreement as expressed in the policy, Judge Haynes said.  The panel upheld the district court hearing on the exclusion, rejecting SRHS’ claim that it did not apply because the plaintiffs made constitutional and common law claims with an argument that those laws also govern pension plans.

“Accordingly, they ‘govern’ employee benefit plans because the obligations they create control the pension plans.  Indeed, the plaintiffs in the SRHS lawsuits only bring claims under the identified common law and statutes because they create obligations with which pension plans must comply,” Judge Haynes said.

The case is Federal Insurance Company v. Singing River Health System, case number 15-60876 in the Federal Court of Appeals for the Fifth Circuit.