Contractor Needs Permission of Insurer to be Protected by an Owner-Controlled Insurance Program

Barry Zalma
Dec 5, 2023

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Team Industrial Services, Inc. (Team) found it had incurred a $222 million judgment against it in a wrongful-death lawsuit arising out of a steam-turbine failure in June 2018 at a Westar Energy, Inc. (Westar) power plant. Team sought indemnity for the judgment from Westar, Zurich American Insurance Company (Zurich), and two other insurance companies, arguing that it was, or should have been, provided protection by Westar’s Owner-Controlled Insurance Program (OCIP) through insurance policies issued by Zurich and the two other insurers.

In Team Industrial Services, Inc. v. Zurich American Insurance Company; Westar Energy, Inc.; Endurance American Insurance Company; Westchester Fire Insurance Company, and Kelli Most, individually and as personal representative of the estate of Jesse Henson; Cecilia Henson; Dorian Henson, No. 22-3275, United States Court of Appeals, Tenth Circuit (November 29, 2023) resolved the dispute acknowledging that Team’s arguments were well reasoned and creative.

BACKGROUND

In 2010 Westar entered into separate Master Services Agreements (MSAs) with Furmanite and Team to perform work at the Westar power plant and other sites. Team was to perform “pre-heat and stress relieving” services and Furmanite was to perform “valve maintenance” services. Both MSAs state that Furmanite and Team are independent contractors required to procure their own liability insurance and to name Westar as an additional insured on the policies. They both also state that “Contractor shall not assign or transfer any of its rights or obligations . . . under this Contract without previous written consent of [Westar] which consent shall not unreasonably be withheld.” (emphasis added)

In 2013 Westar instituted its OCIP, through which contractors and subcontractors could obtain insurance protection for work performed at covered locations. Westar had discretion to decide which contractors would be eligible to enroll in the OCIP. Eligible contractors had to complete enrollment forms to be considered for participation. During the time relevant to this dispute, insurance was provided by a Zurich policy, whose premiums were paid by Westar. According to Zurich’s policy, an enrolled contractor’s “rights and duties under this policy may not be transferred without [Zurich’s] written consent.” (emphasis added)

With permission from Westar, Furmanite submitted an application seeking enrollment in the OCIP and was enrolled in 2013. Furmanite was required to report payroll hours for each month to the broker, Aon. The payroll hours reported to Aon were used by Zurich to calculate the premium to be paid by Westar for the relevant policy period.

Westar never made Team eligible to enroll in the OCIP. Team never submitted an enrollment application, and it was never enrolled. Team’s parent company acquired Furmanite’s parent company.

Although Team and Furmanite became “sister companies,” they were distinct legal entities and never merged. Team assumed Furmanite’s workload at the power plant. Furmanite’s insurance coverage under the Westar OCIP continued even though its service contract had been retired. Furmanite’s coverage continued, even after it perhaps should have ended.

Team argued to the District Court that it inherited Furmanite’s coverage under the OCIP via Change Order No. 2 and was therefore insured for the work it performed at the power plant. It also asserted alternative theories including reformation, and the doctrine of promissory estoppel against Westar and Zurich.

The District Court ruled that Change Order No. 2 unambiguously retired Furmanite’s MSA and left Team’s MSA as the sole governing document. The court declined to reform the Zurich policy and rejected the promissory-estoppel, breach-of-contract, and breach-of-fiduciary-duty claims.

DISCUSSION

Team ignored that the enrollment in Westar’s OCIP was not automatic. Westar alone could designate which contractors were eligible, and eligible contractors must apply to enroll in the program, and then be accepted by Westar, in order to receive coverage. Also, under the express terms of the Zurich insurance policy, coverage cannot be transferred without Zurich’s consent. Since Team never enrolled nor was it even invited to enroll in Westar’s OCIP, nor did Zurich ever give written approval to a transfer of coverage from Furmanite to Team, coverage did not exist.

The Change Order did not contain a mention of insurance coverage or the OCIP. There is no ambiguity in the language of the change order from which one could infer that Team would thereafter be provided insurance coverage through the Westar OCIP or otherwise. It was clear to the Tenth Circuit that the notice is to go only to contractors already covered by the OCIP, not contractors-like Team-who are not enrolled in the program. In sum, no contractual promise, nor even a hint or suggestion by Westar or Zurich entitled Team to coverage under the OCIP.

Since Zurich was necessarily one of the parties to the insurance contract, reformation would require proof that Zurich intended to insure Team. Team provided no argument, much less evidence, that Zurich intended to name Team as an insured.

The Zurich policy explicitly protects Zurich from such claims by requiring any transfer of coverage to be approved by Zurich in writing.

Finally, Team raises a perfunctory claim of promissory estoppel. Since there was no allegation that Westar knew about the reporting it could hardly have expected to induce Team’s reliance. Nor was there any evidence of a promise by Zurich to provide insurance coverage to Team.

The Tenth Circuit affirmed the judgment.

ZALMA OPINION

When Team’s parent company acquired Furmanites parent company and took over the work originally done by Furmanite it assumed that it was covered under the OCIP but did nothing to confirm the fact, proving that breaking he word “assume” up into its component part and will cost Team $222 million. Insurance, even a contract as complex as an OCIP, must be fulfilled and to gain the coverage Westar needed to allow them to apply, Team needed to file an application with Zurich and Zurich had to agree. None of those things happened and Team had no coverage.

(c) 2023 Barry Zalma & ClaimSchool, Inc.

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