The content of settlements ExxonMobil has reached with a dozen insurance companies over denied coverage of thousands of asbestos-related lawsuits should be turned over, certain insurers have argued to a Manhattan Supreme Court judge.
These agreements contain information that is “material and necessary” to their defenses and vital to ensuring that the oil giant does not benefit from a double recovery, partners at Simpson Thacher & Bartlett argue in a March 18 motion to compel disclosure in ExxonMobil v. Certain Underwriters at Lloyd’s, London, 650503/2012.
The insurance coverage action is being handled by Justice Lawrence Marks, who sits in the Commercial Division.
In 2012, ExxonMobil, represented by Covington & Burling, filed suit against scores of insurers for declaratory judgment and breach of contract for the insurers’ alleged failure to indemnify the corporation for wrongful death and serious injury asbestos-related claims purportedly covered under general liability primary and excess policies.
The underlying asbestos-related claims were brought by employees and contractors who worked at Exxon petrochemical facilities in Baytown, Texas; Baton Rouge, LA; Benicia, CA; and Bayway, NJ between 1963 and 1980 or were harmed as the result of Mobil’s manufacturing of asbestos-coated products in that same time frame.
Exxon and Mobil merged in 1999 to become ExxonMobil.
ExxonMobil has reached 12 settlement agreements with 37 of these insurers, including Liberty Mutual, New York Marine & General Insurance, Carolina Casualty, and others, filing motions for discontinuance against these companies on March 11.
A total 24 law firms have been involved in representing the insurers, including Simpson Thacher, Duane Morris, Crowell & Moring, Coughlin Duffy and Rivkin Radler.
Court exhibits show that by ExxonMobil’s calculations, it has, as of Sept. 30, 2011, incurred losses of $301 million relating to these asbestos claims—with $195 million accrued from defense costs alone.
Lloyd’s allocated share of these losses is allegedly $87 million.
In January 2013, Marks refused to dismiss the lawsuit as it relates to Everest Reinsurance and Carolina Casualty, who alleged the oil giant’s failure to state a claim against them.
In the latest motion, Simpson Thacher partners Mary Beth Forshaw and Bryce Friedman, representing Certain Underwriters at Lloyd’s, London; Government Employees Insurance; National Union Fire Insurance and Northern Assurance Company, among other insurers, state that ExxonMobil has refused to disclose the terms of the recent settlements, citing confidentiality and parties’ refusal to grant consent to disclosure.
Although ExxonMobil has offered to disclose the “aggregate” settlement amount, that is not good enough, the motion states.
The defense attorneys argue that full disclosure of the settlement is material since it could “completely eliminate or reduce any obligations Moving Insurers allegedly owe to ExxonMobil,” since they allege that the settling insurers have “subscribed to the same policy or policies as one or more of the moving insurers.”
The motion also argues the insurers have a right to know whether these settlements were not for full payment but a portion of the alleged contractual liability, so the defendant insurers can tell whether “they are not being asked to pay more than their fair and legal share of any contractual liability.”
The motion argues, moreover, that claims for joint and several liability should grant the moving insurers the right to seek a set-off or subrogation from ExxonMobil or the settling insurers.
Simpson Thacher’s Friedman did not return calls for comment. P. Benjamin Duke, a Covington partner, declined comment on the matter.
ExxonMobil’s reply to the motion is due by April 1. Marks has scheduled oral argument on the motion for May 12.
ExxonMobil states in its complaint that while thousands of asbestos-related claims have been settled or otherwise disposed of, “thousands” more are pending while the corporation “expects more to be filed in the future.”