Alert

Settlement Agreement Extends to Later Claims Covered by Scope of Release

November 12, 2012

The United States District Court for the Eastern District of Virginia, applying Texas law, has held that a settlement agreement resolving coverage litigation released the insurer’s obligation for defense costs for certain claims tendered for coverage under a subsequent policy.  Nat’l Heritage Found., Inc. v. Philadelphia Indem. Ins. Co., 2012 WL 5331570 (E.D. Va. Oct. 25, 2012).

A corporation overseeing the investment and distribution of charitable funds on behalf of donors was sued in 2005 for mismanagement of funds.  The corporation’s insurer denied defense and indemnity coverage for the suit, and the insured corporation filed for bankruptcy in 2009, assertedly as a result of the insurer’s refusal to provide coverage for the suit.  The corporation filed suit against the insurer for denial of coverage and sought consequential damages, including the corporation’s bankruptcy costs.  The insurer and the corporation settled the coverage litigation for $18 million and executed a settlement and release.  The release provided that the corporation released the insurer “from all claims, demands, causes of action, and damages asserted in, arising out of, or connected with” the 2005 lawsuit.  The corporation then sought coverage for four matters under a directors and officers liability policy issued by the same insurer to the corporation in 2008, and the insurer contended that the earlier release applied.

The court held that the release for the settlement of the 2005 lawsuit applied broadly to any claim “arising out of” or “connected with” the 2005 lawsuit.  The court further held that the release extended to claims that would not have occurred but for the 2005 lawsuit, including the insured’s bankruptcy.  First, the court held that indemnification for two claims brought in the insured’s bankruptcy proceeding was not encompassed within the terms of the release because they did not arise out of the 2005 lawsuit as they were not causally related to the bankruptcy.  The court reasoned that these two claims—alleging fraudulent inducement to invest with the insured and breach of fiduciary duty—were not casually connected to the 2005 lawsuit and subsequent bankruptcy because they could have been brought even if the insured had not filed for bankruptcy.  The court, however, held that the defense costs incurred in defending these suits were covered by the release for the 2005 lawsuit because the insured sought these defense costs as damages in its 2005 lawsuit.

Second, the court held that defense costs for defending against a late-filed proof of claim in the bankruptcy proceeding were causally related to the bankruptcy, and thus fell within the scope of the release, because these defense costs were incurred in dismissing the proof of claim “pursuant to the bankruptcy rules that bar tardy notice of claims.”

Finally, the court held that the release applied to defense costs associated with the appeal of the corporation’s bankruptcy plan “because these defense costs exist only as a result of the bankruptcy proceeding” and were therefore casually connected to the consequential damages sought in the 2005 lawsuit for the insured’s bankruptcy.

The opinion is available here.

Read Time: 3 min
Jump to top of page

Wiley Rein LLP Cookie Preference Center

Your Privacy

When you visit our website, we use cookies on your browser to collect information. The information collected might relate to you, your preferences, or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. For more information about how we use Cookies, please see our Privacy Policy.

Strictly Necessary Cookies

Always Active

Necessary cookies enable core functionality such as security, network management, and accessibility. These cookies may only be disabled by changing your browser settings, but this may affect how the website functions.

Functional Cookies

Always Active

Some functions of the site require remembering user choices, for example your cookie preference, or keyword search highlighting. These do not store any personal information.

Form Submissions

Always Active

When submitting your data, for example on a contact form or event registration, a cookie might be used to monitor the state of your submission across pages.

Performance Cookies

Performance cookies help us improve our website by collecting and reporting information on its usage. We access and process information from these cookies at an aggregate level.

Powered by Firmseek