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Gainsco Insurance Co. v. Amoco Production Co.8/19/2002
policy with Gainsco, when the insured contract exclusion showed no coverage existed?
[ ] We have already answered this question in the negative with our above analysis of the fourth issue. Nothing in the language of the insured contract exclusion justified Gainsco's denial of coverage. The phrase "indemnitee's sole tort liability" is ambiguous and must be construed against Gainsco, who drafted the policy. Shoshone First Bank v. Pacific Employers Ins. Co., 2 P.3d 510, 513 (Wyo. 2000). It may be conceivable that the phrase was meant to say what Gainsco says it means--that "sole" means there is no coverage if the insured is not also liable--but the more likely meaning, given that the insured is not even mentioned, and the meaning more favorable to the insured, is that insured contracts do not include those where the proposed indemnitee is 100% at fault. In the instant case, no one contended that Amoco was 100% at fault, so the contract indemnifying Amoco was an insured contract.
Issue No. 7: Did the district court err as a matter of law when it ignored Gainsco's argument that it was prejudiced when Amoco and Andrews failed to notify it that one term of the settlement agreement was Andrews' dismissal of its third-party complaint against Kobbe?
[ ] A brief review of the factual and procedural history of this case will help set the stage for a discussion of this issue. At the time of the incident that resulted in his death, Abraham was employed by Andrews' subcontractor, Kobbe, at Amoco's Elk Basin Oil Field. The Abraham Estate sued Amoco, Andrews, and Kobbe for wrongful death.
Andrews obtained summary judgment based on a finding of no duty, and the claim against Kobbe was dismissed due to worker's compensation immunity. Amoco settled for $650,000.00. Amoco then sued Andrews for contractual indemnity. Andrews, defended by Gainsco, brought a third-party complaint against Kobbe alleging equitable implied indemnity.
[ ] Because Gainsco defended Andrews under a reservation of rights, Andrews obtained separate counsel. After considerable negotiation, Amoco and Andrews reached a settlement. On May 10, 1995, Andrews' counsel sent a letter to Gainsco outlining the proposed settlement and offering Gainsco a final opportunity to settle the matter itself. The May 10 th letter indicated only three settlement terms: a judgment against Andrews, a covenant not to execute against Andrews personally, and an assignment to Amoco of Andrews' rights against Gainsco. Gainsco declined to participate in the settlement.
[ ] The present issue arose because the final settlement reached between Amoco and Andrews contained a fourth term, that being Andrews' agreement to dismiss with prejudice its third-party complaint against Kobbe. Gainsco now claims it was prejudiced because it had no notice that the settlement would extinguish its ability to proceed against Kobbe.
[ ] Gainsco concedes that an insured does not violate the cooperation clause of an insurance policy by settling a claim being defended under a reservation of rights, so long as such settlement is preceded by adequate notice to the insurer. Spangler, 881 F.Supp. at 545. Notice is not a separate procedural requirement imposed by the courts, but is part of the factual question of whether the settlement was reasonable, in good faith, and without collusion. Id. Gainsco further contends that such a settlement must not prejudice the rights of the insurer. Ideal Mut. Ins. Co. v. Myers, 789 F.2d 1196, 1203 (5 th Cir. 1986). An insurer is prejudiced when it is deprived of a valid defense. Id. If such prejudice does occur, the insurer is discharged from its obligations under the policy. Id. There is a rebutt
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wyoming Personal Injury Attorneys
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