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Category: Fees Paid by Insurers

Six Flags Wants Insurer to Cover $2.89M in Attorney Fees

May 19, 2021

A recent Texas Lawyer story by Angela Morris, “Six Flags Wants Insurer Travelers Casualty to Cover $2.89 Million in Attorney Fees, reports that the Texas-based theme park filed new litigation seeking to force its insurance company to reimburse millions of dollars in attorney fees that it paid to some of the nation’s largest law firms—like Kirkland & Ellis and Perkins Coie.  In the new federal court lawsuit in Dallas, Six Flags Entertainment Corp. has alleged that its insurer, Travelers Casualty and Surety Co. of America, has wrongfully denied the park its insurance coverage for attorney fees and legal expenses.

Six Flags spent the money to defend itself from a probe by the U.S. Securities and Exchange Commission into its business dealings in China, and from a class action and shareholder litigation related to the China dealings.  Six Flags operates 26 parks in the U.S., Mexico and Canada, including four parks each in California and Texas, and two parks each in Georgia, New Jersey and New York, according to its website.

But COVID-19 has hit Six Flags hard: $82 million revenue in the first quarter of 2021 represents a 38% drop compared to the same time period in 2019, according to the company’s most recent performance report.  The park’s legal troubles started in February 2020 with the SEC subpoena, according to the complaint in Six Flags Entertainment Corp v. Travelers Casualty and Surety Co. of America, filed in the U.S. District Court for the Northern District of Texas.

Six Flags had to pay more than $2.5 million in fees to law firms Kirkland & Ellis, Lionbridge, Parker Lynch and Fayer Gipson to defend itself against the subpoena, which asked for information about a partnership with a Chinese real estate developer regarding Six Flags parks in China, and a negative $15 million revenue adjustment.  Insurance coverages for directors and officers and for organizational liability should have covered the company’s legal expenses, the complaint said.

Also in February 2020, two securities class-action complaints were filed against the company and two former executives over the same partnership and negative revenue adjustment.  Substantively the same allegations arose in shareholder derivative lawsuits in federal and state courts against the company, executives and board members, said the complaint.  Six Flags had to spend more than $290,000 in fees for lawyers at Perkins Coie to represent two company executives who were defendants in a class action, since there could be a conflict if the same attorneys represented the company and those individuals.

According to a search of federal court records on PACER, plaintiffs filed three shareholder derivative lawsuits that were consolidated into one case, and U.S. District Judge Mark Pittman on April 28 granted a motion to dismiss by Six Flags in the case, In Re Six Flags Entertainment Corp. Derivative Litigation. The defendants—Six Flags’ executives and board members—were represented by Kirkland & Ellis lawyers Jeremy Fielding of Dallas, and New York-based Daniel Cellucci, Sandra Goldstein and Stefan Atkinson.  Pittman on March 3 granted Six Flags’ motion to dismiss in a consolidated class action matter, according to an opinion and order in that case, Electrical Workers Pension Fund v. Six Flags Entertainment Corp.  Those defendants–Six Flags and two executives–had the same Kirkland & Ellis attorneys, said PACER.

In a different case—unrelated to the Chinese Six Flags parks–Six Flags had told its insurance company about a “crucial event matter” dealing with a potential proxy fight with a shareholder. Six Flags tapped Kirkland & Ellis to represent it, and the matter eventually reached an amicable agreement, said the complaint.  Six Flags incurred more than $100,000 in legal fees for this outcome, and the complaint alleged that Travelers has refused coverage.

Aside from these legal actions, the complaint alleged that at other times, Travelers has tried to recharacterize and reallocate legal fees and expenses, that should have been covered by insurance. It alleged the insurer looked to lessen exposure and to decrease policy benefits paid to Six Flags.

The theme park company is suing its insurer for breach of contract, violation of a Texas insurance law that requires prompt and fair payment of claims, and breach of the duty of good faith and fair dealing.  Six Flags has asked the court for a declaratory judgment that finds the Travelers policy should cover attorney fees and legal expenses.  In addition to recovering those amounts from Travelers, it wants to be paid back for the legal fees it is spending to sue the insurance company, said the complaint.

Wyoming Supreme Court: Sinclair Can Seek Attorney Fees From Insurer

May 10, 2021

A recent Reuters story by Debra Cassens Weiss, “Wyoming Top Court Sides With Sinclair Refinery On Fee Award Question” reports that a Sinclair refinery can seek attorneys’ fees from Swiss insurer Infrassure under Wyoming law even though the policy was not issued in Wyoming or physically delivered in the state, the Wyoming Supreme Court held in answer to a certified question from the 10th U.S. Circuit Court of Appeals.

In its first interpretation of a fee award statute that applies only to insurance policies “delivered” or “issued for delivery in” Wyoming, the high court found the law “clearly and unambiguously provides that an insurance contract is issued for delivery in Wyoming if the policy issued is intended to protect an insured in Wyoming against risks in Wyoming.”

The decision paves the way for Sinclair Wyoming Refining Company’s second appellate win following a 2013 fire and explosion that slowed production for seven months.  The 10th Circuit last year affirmed that Infrassure must pay its contractual share of the business-interruption loss, but asked the Wyoming Supreme Court for input on the fee-award statute.  According to the Wyoming Supreme Court’s order, the refinery was an additional named insured under coverage obtained its parent company, The Sinclair Companies, and underwritten by 18 insurers on the London market.

After the 2013 explosion, the refinery sought $100 million from its insurers but agreed to a $60 million settlement.  By 2015, all the insurers had paid their shares except for Infrassure, which demanded arbitration.  The arbitration panel independently concluded that the loss was $60 million and ordered Infrassure to pay its $4.5 million share. U.S. District Judge Nancy Freudenthal confirmed the arbitration award in 2018.

However, Freudenthal dismissed the refinery’s claim for attorneys’ fees for wrongful denial under Wyoming’s insurance code.  She concluded that the statute did not apply because Infrassure had “issued” its policy in London or Zurich and there was no evidence the policy had ever been physically “delivered.”  Although both The Sinclair Companies and Sinclair Wyoming Refining Co are Wyoming corporations, Freudenthal found it more significant that the only address mentioned in the policy was for the parent company’s risk-management offices in Utah.

Like Freudenthal, the Wyoming Supreme Court acknowledged that courts “are split on whether statutory language referencing an insurance policy be ‘delivered’ or ‘issued for delivery’ should be construed strictly or liberally.”  The justices, however, adopted the more liberal view of the New York Appellate Division, which considers two factors – the location of the insured, and the location of the risk to be insured – to determine whether a policy was “issued for delivery” in New York.

That reading is consistent with the Wyoming law’s purpose “to protect public welfare and Wyoming residents from being taken advantage of by sophisticated insurance companies,” the opinion says.  “(A)bsent an insurance contract unambiguously stating otherwise, if the location of the insured and the location of the risk to be insured are both in Wyoming, an insurance policy is intended to be delivered and is ‘issued for delivery’ in Wyoming, the court concluded.

TX Justices Toss Class Action Fee Award in Insurance Cases

April 18, 2021

A recent Texas Lawyer story by Greg Land, “Texas Justices Toss Class Action Ruling Against Insurer and $3.5M Fee Award,” reports that the Texas Supreme Court has ruled an insurer that stopped issuing “all risk” homeowners policies because it was paying out too much in mold claims did not violate the contracts of some 400,000 policyholders, and does not have to pay more than $3 million in attorney fees and nearly $487,000 in costs a jury awarded to the plaintiffs lawyers. 

Ruling in a class action that’s been percolating through the courts for nearly 20 years, the justices sent the fee award back to a Jefferson County judge with instructions to consider what is “equitable and just” to Farmers Insurance, given that the named plaintiff and class “have not prevailed in any regard and have obtained no favorable results.”  The April 9 ruling written by Justice Jimmy Blacklock overturns a 2019 ruling by the Thirteenth Court of Appeals that upheld the fee award and also said the plaintiffs in separate, though related litigation should have been allowed to intervene in order to seek their own fees. 

Farmers is represented by a team of Norton Rose Fulbright lawyers including Houston-based partners Layne Kruse, Carlos Rainer, Katherine Mackillop and Scott Incerto.  Lawyers for plaintiff Sandra Geter and the class are John Werner of Reud Morgan & Quinn and DeWayne Layfield of the Law Office of L. DeWayne Layfield, both in Beaumont.

As detailed in the order and other filings, the case began in 2000 when Farmers and other insurers sought permission from the Texas Department of Insurance to stop writing the all-risk policies and instead offer a less comprehensive “named peril” policy.  A Farmers executive told the TDI the move was necessary because of “dramatic increases that we have experienced for water, mold and foundation claims, and the resultant underwriting losses.”    

The decision was approved, and in 2002 Farmers sent all holders of the policies a notice that they would not be renewed but that the named peril policy would still be offered.  In 2002, policyholder Geter filed a class action seeking declaratory judgment that Farmers’ non-renewal violated the clause of her policy stating: “We may not refuse to renew this policy because of claims for losses resulting from natural causes.”

She also argued that the non-renewal notice was void because it “was based on a prohibited reason for non-renewal.”  The trial court granted Geter summary judgment, ruling that Farmers breached the contract by not renewing the policies.  Also in 2002, another class action was filed in Travis County claiming that Farmers “wrongfully raised premiums despite offering less coverage when it replaced the HO-B policy” with the slimmed-down coverage.  Claims mirroring Geter’s were later added to that suit as well.  In 2016 the Travis County suit settled with Farmers agreeing to compensate policyholders in “a package valued at over $100 million.”  But the non-renewal claims were carved out of that litigation, and the Geter case continued with both sides filing for summary judgment.  

The trial court granted summary judgment to the plaintiffs, ruling that Farmers breached its agreement by not renewing the policies and that each member should be allowed to renew their HO-B policy at a premium set by the trial court.  While that decision was on appeal, in 2016 the trial judge held a jury trial on attorney fees that ended with a jury awarding the plaintiffs lawyers $3,046,247 in fees and $486,790 in expenses.  The plaintiffs in the Travis County action filed to intervene for their attorney fees, arguing that their case benefitted the Geter class members.

The trial judge denied the motion, and both they and Farmers appealed.  The court of appeals affirmed the trial court’s holding that Farmers had breached its policyholders’ contracts and the fee award, but reversed the rulings denying the Travis County plaintiff’s motions to intervene and ordering Farmers to issue HO-B policies at a determined premium. 

Blacklock’s opinion said the key to the case was the interpretation of the policies’ bar to renewal “for losses resulting from natural causes.”  “The dispute comes down to what paragraph 6(a) of the policy means by ‘claims for losses,’” Blacklock wrote.  “If the language refers to ‘claims’ and ‘losses’ of the individual policyholder, then Farmers is correct that the policy does not preclude an insurer from terminating the policy’s use statewide because of systemic losses that make continued use of the policy financially untenable,” he said.  “If ‘claims’ and ‘losses’ also refers to statewide or systemic ‘claims’ and ‘losses,’ then Geter is correct that the policy prohibited Farmers from deciding to non-renew.”

The justices find it “highly implausible” that Farmers or the TDI would agree to language that would “undermine TDI’s regulatory authority to react to changing circumstances in the insurance industry and would bind Farmers to suffer statewide underwriting losses in perpetuity.”

“Because the individual plaintiff and class members were not entitled to a renewal of their HO-B policies, all the plaintiffs’ claims fail, and summary judgment for Farmers was proper,” the opinion said.  It follows, Blacklock wrote, that neither Geter nor the would-be intervenors are entitled to any award of fees. 

Court Holds Insured Fee Multiplier is Unsupported By Relevant Market in Florida

March 27, 2021

A recent article by Derek R. Lenzen, “Florida Appellate Court Holds Insured’s Attorneys’ Fee Award Multiplier Is Unsupported By Requirements,” reports that a Florida appellate court held attorneys’ fee award excessive and that the fee multiplier was not necessary in order for an insured to obtain competent counsel in the relevant market.  Deshpande v. Universal Prop. & Cas. Ins. Co., 45 Fla. L. Weekly D2511a (Fla. 3d DCA November 12, 2020).  This article was posted with permission.  The article reads:

The insured filed a claim under a homeowners’ policy.  The insurer denied coverage and the insured filed suit.  After minimal discovery, the insurer served a proposal for settlement exclusive of attorneys’ fees and costs.  The insured accepted the proposal and the parties litigated the amount of reasonable attorneys’ fees.  The insured’s counsel produced invoices for 469 hours among five attorneys and one paralegal, and the insurer provided a line-item response with objections to the invoices.  The insured’s fee expert confirmed the invoices but did not prepare a line-item analysis.  Instead, the insured’s expert applied a blanket 10% reduction of hours from 469 to 422 and stated that a 2.0 multiplier was reasonable. The insurer’s fee expert prepared a full line-item analysis and stated that the market does not require a fee multiplier for insureds to obtain competent counsel.  The trial court adopted the insured’s fee expert’s conclusions without explanation, awarded the fees, and applied the multiplier.

The appellate court reversed, holding that the trial court did not consider the required eight criteria in determining the amount of attorneys’ fees to be awarded, including specific findings as to the number of hours and reduction or enhancement factors.  The appellate court held that the insured’s counsel did not present evidence that it was reasonable to spend 469 hours on a first-party property insurance case that settled after minimal discovery and without significant motions.  Further, the court found that there was no evidence that the insured could not have obtained other competent counsel in the relevant market absent the availability of a contingency fee multiplier.  The appellate court remanded to the trial court with directions to enter an amended final judgment as per the appellate court’s opinion.

AIG Unit Tells Ninth Circuit Yahoo’s Fee Award is Excessive

February 3, 2021

A recent Law 360 story by Daphne Zhang, “AIG Unit Tells 9th Circ. Yahoo’s Atty Fee Award is Excessive,” reports that an AIG subsidiary has asked the Ninth Circuit to reverse Yahoo Inc.'s award of over $600,000 in attorney fees or grant a new trial altogether, arguing that the tech giant did not present the correct recoverable amount and that the district court failed to guide a jury on how to allocate and award attorney fees.

In a brief filed, National Union Fire Insurance Co. of Pittsburgh, Pa., said the tech giant was not able to show which portions of its legal fees were spent on bad faith claims.  The insurer asked the court to vacate a jury verdict that found it had acted in bad faith by failing to cover Yahoo's costs to defend a consolidated class action.  National Union said that California law has clearly stated that a policyholder seeking to recover attorney fees as bad faith damages may recover only fees spent on insurance coverage issues, not those incurred to litigate the bad faith claim itself.

The carrier said that Yahoo, however, lumped all legal fees together, including those relating to bad faith claims, which are not recoverable.  The company could not present the exact amount of its legal bills spent on coverage issues, which is the only portion of recoverable attorney fees that should have been awarded, it added.  Yahoo showed "large swaths of invoices with minimal, unexplained redactions,"  National Union said. The court should reverse the attorney fee award because the unrecoverable fees must be excluded from the damages calculation, it added.

The coverage dispute goes back to January 2017, when Yahoo filed suit alleging National Union had breached its policy by refusing to cover the company in several class actions accusing it of scanning customers' emails.  In October 2018, U.S. District Judge Edward J. Davila found that National Union largely failed to defend and indemnify Yahoo for $4 million in attorney fees that resulted from the class actions.  The judge said it was up to a jury, though, to decide whether the insurer acted in bad faith in denying coverage.

Following a five-day trial in May 2019, a jury returned a verdict finding that National Union had acted in bad faith and should foot the bill for Yahoo's attorney fees.  "The jury clearly did not perform the allocation that Yahoo neglected to perform," National Union said on Monday, adding that Yahoo's own counsel could not point out how much of the legal fees were incurred on coverage issues and what portion was spent on bad faith claims.

"The district court failed to properly instruct the jury on how to allocate, leading the jury to award 100% of the claimed fees — a plainly excessive amount," the insurer claimed.  Yahoo previously argued that it had correctly allocated the legal fees by only submitting the invoices incurred before the district court's summary judgment order that granted its coverage benefits.  National Union said that since the bad faith claims were also litigated on summary judgment, Yahoo did not conduct a proper fee allocation.  "Yahoo is not entitled to a second bite at the apple to present allocation evidence it opted not to present at trial," the carrier said.

The case is Yahoo! Inc. v. National Union Fire Insurance Co. of Pittsburgh, Pa., case number 19-16475, in the U.S. Court of Appeals for the Ninth Circuit.