injuries or illnesses manifested. But before a class member could exercise this right,
they needed to submit a Notice of Intent.
Class members had to give BP 10 days’ notice. Then BP would have 30 days
to decide whether or not to pursue mediation. If BP chose not to mediate, class
members had six months to file suit.
Concepcion and Thiboudaux filed complaints and received notice of BP’s
decision not to mediate on May 9, 2017. This gave both until November 9, 2017 to
file suit against BP. Both men filed with the court, and the court clerk made docket
entries indicating the complaints needed to be refiled as individual lawsuits instead
of one complaint.
However, Concepcion’s and Thiboudaux’s counsel never received this
information, instead letting the suits fall to the wayside. BP denied coverage based
on a time-bar, but the workers brought the case to appeal.
In court, Judge Barbier reviewed the cases and determined the original
agreement stood, despite the legal counsel’s error of not filing the suits on time.
SCORECARD: Fabio Concepcion and Mickey Joseph Thiboudaux will both be
able to pursue their individual lawsuits against BP.
TAKEAWAY: While there may be parameters in place to prevent employees
from suing a company, previous court filings may override current policy.
POLICY WORDING PUTS INSURER ON THE HOOK
U.s. bus charter & limo inc. (U.S. Coachways) decided to use the power of technology to communicate with potential customers. It sent text messages promoting deals on both bus and limousine rentals, in hopes of
Unfortunately, the recipients of these texts found them to be in violation of the
Telephone Consumer Protection Act (TCPA), which restricts solicitations like
telemarketing and the use of automated telephone equipment. The recipients filed a
class action suit against U.S. Coachways.
During the period the messages were
sent, from December 2013 through April
2014, the rental service held a professional
liability policy with Illinois Union Insurance
U.S. Coachways notified its insurer of the
class action, seeking indemnification under
the policy. Illinois Union denied coverage,
stating its policy did not cover TCPA
Meanwhile, U.S. Coachways agreed to a settlement of nearly $50 million after
the judge determined the messages were in violation of the TCPA.
As part of the agreement, U.S. Coachways assigned the class its right to
challenge Illinois Union’s denial of coverage.
Illinois Union was proactive in its defense, suing both the class and U.S.
Coachways and seeking a declaration its policy didn’t cover the settlement.
James Bull, a named person in the class action, motioned for partial summary
In court, the policy was under scrutiny. A clause called the “Travel Agency
Operations” provision stated advertisements “necessary or incidental to the conduct
of travel agency business” as “attempted procurement for a fee or commission of
travel, lodging or guided tour accommodations” were covered.
Illinois Union argued that, while the policy may state such ads were covered,
the texts U.S. Coachways used were not “for others” or “for a fee.” The court didn’t
budge. It concluded the policy covered TCPA violations. Bull’s motion for partial
summary judgment was granted.
PAY DISPARITY CASE NOT COVERED
Fulton county, georgia, employed numerous attorneys between July 2013 and July 2015. Of those attorneys, 338 brought seven lawsuits and one grievance against the County, alleging unfair wages.
The County employed attorneys in the Public Defender’s Office, the Solicitor’s
Office, the District Attorney’s Office, the Child Advocate’s Office and the Superior
and State Courts. A number of attorneys claimed the County failed to pay each
office “equal wages for equal work,” opening
up a pay disparity dispute.
In their lawsuit, the employees alleged
they sustained financial damage, because
they did not receive the proper payment
amounts required during their tenure.
Additionally, they claimed the County
breached its employment contracts by
not paying salaries required by personnel
regulations set up by the County in the first
These regulations set attorney and other employee pay rates. When all was said
and done, the total cost to settle all cases was $18,362,100.
During the period in question, Fulton County held a liability policy with
insurance carrier National Casualty Company. The policy was a retained
limit liability insurance policy specifically for public entities, which provided
“employment practice wrongful act” coverage limited to $7 million per occurrence.
When the County approached National for payment on the settlements,
National declined, stating it had not received sufficient reports for the claims.
The County relied on its risk management team to communicate with National.
While the team did send notice and updates during the settlement cases, it was
sending those updates through the Willis Group, which acted as the County’s
broker. The Willis Group sent the notices to Civic Risk Underwriting Managers,
Instead of sending the claims to National, Civic Risk reviewed the applications.
When finally presented with the settlement amount, National claimed its policy
would not cover the amount owed to the attorneys in the underlying case.
The County and National found themselves battling it out in court. In the
Georgia Court of Appeals, the court granted in part and denied in part Fulton
County’s motion, stating that the policy says it would provide coverage, yet the
County did not provide proper notice.
SCORECARD: National will not have to pay for Fulton County’s underlying
suits, because the County didn’t provide sufficient notice to the insurer.
TAKEAWAY: Direct contact between an insurer and their insureds is best
practice when it comes to claims. Having third parties involved can muddle
the message like a bad game of Whisper Down the Alley.
WORKERS CAN PURSUE SUIT DESPITE FILING LATE
On april 20, 2010, the worst oil spill in U. S. history occurred 42 miles off the coast of Louisiana. A BP Exploration & Production oil rig named the Deepwater Horizon
exploded and sank in the Gulf of Mexico, killing 11 people and revealing a BP pipe
was leaking oil onto the ocean floor.
BP worked diligently to mend the error of its ways, deploying cleanup crews to
clear the disaster left behind. A number of these BP workers, however, filed a class
action suit against the company, alleging they were made ill by chemical exposure
In January 2013, U.S. District Court Judge Carl Barbier approved the suit,
which sought compensation and punitive damages for negligence and liability for
personal injury and/or bodily injury, including physical, emotional and mental
anguish stemming from the cleanup of the spill.
Fabio Concepcion and Mickey Joseph Thiboudaux were named parties in the
class action suit. They agreed to the terms set forth in the 2013 ruling, which
reserved the right of the class members to later bring a lawsuit against BP if new
SCORECARD: The policy language, while not explicitly covering or excluding
TCPA violations, was found to say in as many words it did cover TCPA
violations. Illinois Union is responsible for the underlying suit.
TAKEAWAY: Vague or non-specific policy language can leave an insurer
scrambling. It’s best to name any exclusions within the policy so that there is
no ambiguity or confusion on the insured’s side.