Articles

Important Cases to Watch For in Future Issues

Recovery of Punitive Damages by Jones Act Seaman Based on Unseaworthiness

Haleigh Janee McBride, et al v. Estis Well Service, L.L.C.

On May 14, 2014, the federal Fifth Circuit Court of Appeals en banc heard oral argument on rehearing in the McBride case. The original panel decision, rendered in October 2013, and based on United States Supreme Court precedent in Atlantic Sounding Co. Inc. v. Townsend, 557 U.S. 404 (2009), allowed recovery of punitive damages by or on behalf of Jones Act seaman for willful and wanton breach of the general maritime law duty to provide a seaworthy vessel.

 

Texas Supreme Court’s Answer to Certified Questions regarding Additional Insured Coverage to BP under Transocean’s Policies for Gulf Oil Spill

OIL SPILL BY THE OIL RIG DEEPWATER HORIZON IN THE GULF OF MEXICO, ON APRIL 20, 2010 (Ranger Insurance)

Following the withdrawal of the Fifth Circuit’s original panel decision in this case in August 2013, the Court certified the following questions to the Texas Supreme Court:

  1. Whether Evanston Ins. Co. v. Atofina Petrochems., Inc., 256 S.W.3d 660 (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 case, 256 S.W.3d at 668, given the facts of the case?

Briefing is now complete, and the Texas Supreme Court has scheduled oral argument for September 16, 2014.

 

Whether BP will be Allowed to Enforce Causation Element in Gulf Oil Spill Settlements

Bon re Secour v. BP Exploration & Prod., Inc. (In re Deepwater Horizon)

The federal Fifth Circuit Court of Appeals in New Orleans affirmed District Judge Carl Barbier’s December 24, 2013 ruling, denying BP’s attempt to stop businesses from recovering economic damages from the settlement proceeds, even where the claimants could not prove their losses were caused by the spill. On May 19, 2014, the Fifth Circuit denied en banc rehearing. Two days later BP announced it would seek a writ from the United States Supreme Court. On June 9, 2014, the Supreme Court denied BP’s request for a stay, such that BP cannot continue withholding payments due under the settlement while the appeal proceeds.

 

Whether the Political Question Doctrine and/or the Combatant Activities Exception to the Federal Tort Claims Act Bars State Law Tort Claims Against Defense Contractors

KBR, Inc. v. Cheryl A. Harris, et al and KBR, Inc. v. Alan Metzgar, et al

The United States Supreme Court has invited the Solicitor General to brief the government’s position in two appeals involving KBR, Inc., who was contracted by the military to provide civilian support for base operations in Iraq and Afghanistan. The Fifth Circuit en banc recently denied rehearing in a third case involving the same issues. The Supreme Court’s invitation to the Solicitor General suggests the Court may be inclined to hear the cases. KBR maintains the political question doctrine bars state law tort claims against a battlefield support contractor operating in an active war zone when adjudication of those claims would require courts to re-examine sensitive military judgments, and that the Federal Tort Claims Act’s “combatant activities exception” preempts state law tort claims against a battlefield support contractor arising out of the military’s combatant activities in a theatre of combat.

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