CTQ-2015-00003
Court of Appeals
of the
State of New York
In the Matter of Viking Pump, Inc. and Warren Pumps LLC, Insurance Appeals,
––––––––––––––––––––––––––––––
VIKING PUMP, INC. and WARREN PUMPS LLC,
Appellants,
– against –
TIG INSURANCE COMPANY, et al.,
Respondents.
––––––––––––––––––––––––––––––
On Appeal from the Questions Certified by the Supreme Court of the State of
Delaware (Docket Nos. 518, 2014; 523, 2014; 525, 2014; 528, 2014)
BRIEF FOR RESPONDENTS IN OPPOSITION
TO BRIEFS FILED BY AMICI CURIAE
JONATHAN D. HACKER (pro hac vice)
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
(202) 383-5300
– and –
TANCRED SCHIAVONI
GARY SVIRSKY
ANTON METLITSKY
BRAD M. ELIAS
O’MELVENY & MYERS LLP
Times Square Tower
Seven Times Square
New York, New York 10036
(212) 326-2000
Attorneys for Respondents Century
Indemnity Company, ACE Property
& Casualty Insurance Company and
Westchester Fire Insurance Company
KATHLEEN M. SULLIVAN
JANE M. BYRNE
WILLIAM B. ADAMS
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, New York 10010
(212) 849-7000
Attorneys for Respondents Certain
Underwriters at Lloyd’s, London
(For Continuation of Appearances See Inside Cover)
Date Completed: March 3, 2016
LAURA S. MCKAY (pro hac vice)
HINKHOUSE WILLIAMS WALSH LLP
180 North Stetson Avenue, Suite 3400
Chicago, Illinois 60601
(312) 784-5400
Attorneys for Respondents Certain
London Market Insurance Companies,
Granite State Insurance Company,
Lexington Insurance Company,
National Union Fire Insurance
Company of Pittsburgh, Pa.,
OneBeacon America Insurance
Company n/k/a Lamorak Insurance
Company (as successor to Commercial
Union Insurance Company), XL
Insurance America, Inc. (as successor
to Vanguard Insurance Company),
Republic Insurance Company n/k/a
Starr Indemnity & Liability and The
Continental Insurance Company (as
successor by merger to Fidelity &
Casualty Company of New York)
KATHLEEN D. MONNES (pro hac vice)
JOSEPH K. SCULLY (pro hac vice)
JOHN W. CERRETA
DAY PITNEY LLP
242 Trumbull Street
Hartford, Connecticut 06103
(860) 275-0100
Attorneys for Respondent Travelers
Casualty and Surety Company
f/k/a The Aetna Casualty and Surety
Company
AMY R. PAULUS (pro hac vice)
MARK D. PAULSON (pro hac vice)
DON R. SAMPEN (pro hac vice)
CLAUSEN MILLER P.C.
10 South LaSalle Street
Chicago, Illinois 60603
(312) 855-1010
Attorneys for Respondent Old
Republic Insurance Company
CHRISTOPHER R. CARROLL
HEATHER E. SIMPSON
CARROLL, MCNULTY & KULL LLC
120 Mountain View Boulevard
P.O. Box 650
Basking Ridge, New Jersey 07920
(908) 848-6300
Attorneys for Respondent TIG
Insurance Company (as successor
by merger to International
Insurance Company, as successor
by merger to International Surplus
Lines Insurance Company (Policy
No. XSI 5217 only))
KRISTIN SUGA HERES (pro hac vice)
ZELLE LLP
600 Worcester Road, Suite 101
Framingham, Massachusetts 01702
(781) 466-0700
Attorneys for Respondent Westport
Insurance Corporation
CORPORATE DISCLOSURE STATEMENT
Due to the number of respondents, and for the convenience of the Court, the
statement required by Section 500.1(f) of the Rules of Practice for this Court is
appended to the end of this brief.
TABLE OF CONTENTS
Page
i
PRELIMINARY STATEMENT .............................................................................. 1
ARGUMENT ............................................................................................................ 3
I. PLAINTIFFS’ AMICI CONFIRM THAT CON ED REQUIRES PRO
RATA ALLOCATION HERE ....................................................................... 3
A. NYSEG’s And UP’s Principal Arguments Do Not Address The
Question Presented Here, And Instead Seek To Relitigate Con
Ed .......................................................................................................... 3
1. NYSEG .................................................................................................. 4
2. United Policyholders ............................................................................ 5
B. ITT’s Policy-Language-Based Arguments Are Incorrect And
Irreconcilable With Con Ed ................................................................ 10
C. UP’s And ITT’s Analysis Of The Policies’ Non-Cumulation
And Prior Insurance Provisions Recycle Plaintiffs’ Arguments ........ 12
1. The Policies’ Non-Cumulation Provisions Are Fully Consistent
With Pro Rata Allocation ................................................................... 12
2. Condition C Is Fully Consistent With Proration, As The Second
Circuit Held In Olin III And As Olin’s Brief Confirms ...................... 14
II. IF THE COURT REACHES THE QUESTION, IT SHOULD HOLD
THE POLICIES REQUIRE HORIZONTAL EXHAUSTION HERE ........ 16
A. California Does Not Preclude The Application Of Horizontal
Exhaustion To A Policyholder ........................................................... 16
B. An “Other Insurance” Provision May Reduce Coverage To An
Insured Under New York Law ........................................................... 19
C. Contra Proferentem Does Not Apply Here ....................................... 20
CONCLUSION ....................................................................................................... 21
TABLE OF AUTHORITIES
Page(s)
ii
CASES
Aircraft Servs. Resales LLC v. Oceanic Capital Co.,
2013 WL 4400453 (S.D.N.Y. Aug. 14, 2013) .................................................... 20
Community Redevelopment Agency v. Aetna Casualty & Surety Co.,
57 Cal. Rptr. 2d 755 (Ct. App. 1996) ................................................................. 17
Consol. Edison Co. of N.Y. v. Allstate Ins. Co.,
98 N.Y.2d 208 (2002) ................................................................................. passim
Cont’l Cas. Co. v. Med. Protective Co.,
859 S.W.2d 789 (Mo. Ct. App. 1993) .................................................................. 7
Cont’l Cas. Co. v. Rapid-American Corp.,
80 N.Y.2d 640 (1993) ......................................................................................... 19
EEOC v. S. Publ’g Co.,
894 F.2d 785 (5th Cir. 1990) ................................................................................ 7
EnergyNorth Nat. Gas, Inc. v. Certain Underwriters at Lloyd’s,
156 N.H. 333 (2007) ............................................................................................. 8
Greenfield v. Philles Records, Inc.,
98 N.Y.2d 562 (2002) ........................................................................................... 7
Gulf Chem. & Metallurgical Corp. v. Associated Metals & Minerals Corp.,
1 F.3d 365 (5th Cir. 1993) .................................................................................... 7
In re Liquidation of Midland Ins. Co.,
709 N.Y.S.2d 24 (1st Dep’t 2000) ...................................................................... 19
Ins. Co. of N. Am. v. Forty-Eight Insulations, Inc.,
633 F.2d 1212 (6th Cir. 1980) ..........................................................................7, 9
Iolab Corp. v. Seaboard Sur. Co.
(9th Cir. 1994) 15 F.3d 1500 .............................................................................. 19
Kaiser Cement & Gypsum Corp. v. Ins. Co. of State of Pa.,
126 Cal. Rptr. 3d 602 (Ct. App. 2011) ........................................................ 17, 18
Keene Corp. v. Ins. Co. of N. Am.,
667 F.2d 1034 (D.C. Cir. 1981) ............................................................................ 8
TABLE OF AUTHORITIES
(continued)
Page(s)
iii
Lezette v. Bd. of Educ.,
35 N.Y.2d 272 (1974) ........................................................................................... 1
New Eng. Insulation Co. v. Liberty Mut. Ins. Co.,
83 Mass. App. Ct. 631 (2013) ...................................................................... 10, 11
New Jersey v. New York,
523 U.S. 767 (1998) .............................................................................................. 1
Olin Corp. v. Am. Home Assurance Co.,
704 F.3d 89 (2d Cir. 2012) .......................................................................... 14, 15
Owens-Illinois, Inc. v. United Ins. Co.,
650 A.2d 974 (N.J. 1994) .................................................................................7, 9
Pac. Coast Bldg. Prods., Inc. v. AIU Ins. Co.,
300 F. App’x 546 (9th Cir. 2008) ....................................................................... 18
Padilla Const. Co. v. Transp. Ins. Co.,
58 Cal. Rptr. 3d 807 (Ct. App. 2007) ................................................................. 18
Porter v. Am. Optical Corp.,
641 F.2d 1128 (5th Cir. 1981) .............................................................................. 7
Public Serv. Co. of Colo. v. Wallis & Cos.,
986 P.2d 924 (Colo. 1999) .................................................................................... 9
Roman Catholic Diocese of Brooklyn v. National Union Fire Insurance Co.
of Pittsburgh,
21 N.Y.3d 139 (2013) ........................................................................................... 5
Sec. Ins. Co. of Hartford v. Lumbermens Mut. Cas. Co.,
826 A.2d 107 (Conn. 2003) .................................................................................. 7
Slabic v. Hendrickson,
147 Misc. 2d 472 (N.Y. Sup. Ct. 1990) .............................................................. 19
State of Cal. v. Continental Ins. Co.,
281 P.3d 1000 (Cal. 2012) ............................................................................. 6, 12
State of Cal. v. Continental Ins. Co.,
88 Cal. Rptr. 3d 288 (Ct. App. 2009) ............................................................ 6, 19
TABLE OF AUTHORITIES
(continued)
Page(s)
iv
Towns v. N. Sec. Ins. Co.,
964 A.2d 1150 (Vt. 2008) ..................................................................................... 7
Travelers Indem. Co. v. Northrop Grumman Corp.,
956 F. Supp. 2d 494 (S.D.N.Y. 2013) .................................................................. 7
U.S. Gypsum Co. v. Admiral Ins. Co.,
643 N.E.2d 1226 (Ill. App. 1994) ....................................................................... 17
Westchester Fire Ins. Co. v. MCI Commc’ns Corp.,
74 A.D.3d 551 (1st Dep’t 2010) ......................................................................... 20
OTHER AUTHORITIES
Scott M. Seaman & Jason R. Schulze, Allocation of Losses in Complex
Insurance Coverage Claims § 4.3 (4th ed. 2015) .............................................5, 8
1
PRELIMINARY STATEMENT
This Court held in Con Ed that “joint and several allocation is not consistent
with the language of the policies providing indemnification for ‘all sums’ of
liability that resulted from an accident or occurrence during the policy period,” and
that only pro rata allocation is “consistent with the language of the policies.”
Consol. Edison Co. of N.Y. v. Allstate Ins. Co., 98 N.Y.2d 208, 224 (2002) (Con
Ed) (emphasis in original). Plaintiffs have not questioned that holding. The sole
allocation-related question presented here is whether the Con Ed rule changes
when the policies include non-cumulation and prior insurance provisions. A-1343.
As the Excess Insurers have shown, the answer to that question is no. Resp. Ans.
Br. 16-38; Resp. Surreply Br. 1-10.
The amici supporting Plaintiffs, however, barely address that question.
Rather, amici NYSEG and United Policyholders et al. (“UP”) openly seek to
relitigate Con Ed itself. But an amicus “has no status to present new issues in a
case” on appeal. Lezette v. Bd. of Educ., 35 N.Y.2d 272, 282 (1974). And this
Court certainly should not overturn its own settled precedent based on challenges
asserted only by amici. See New Jersey v. New York, 523 U.S. 767, 781 n.3 (1998)
(“without even relying on stare decisis we must pass over the arguments of the
named amici” seeking to overturn precedent all parties accepted as binding).
Beyond being procedurally improper, amici’s attacks on Con Ed serve principally
2
to prove the Excess Insurers’ point: Plaintiffs’ position cannot prevail under
existing New York law established by Con Ed. Amicus ITT Corporation does not
directly challenge ConEd, but instead asserts textual arguments that have nothing
to do with the policies’ non-cumulation and prior insurance provisions—arguments
inconsistent with Con Ed’s core holding. And while UP and ITT also address the
actual question presented, they merely restate the flawed arguments already
pressed by Plaintiffs.
By contrast, amicus Olin Corporation actually contributes something
meaningful, expressing the views of a policyholder that the Con Ed rule is not only
correct on its own terms and consistent with non-cumulation and prior insurance
provisions, but is also entirely fair and workable from the policyholder’s
perspective. Olin’s participation as amicus supporting the Excess Insurers refutes
the suggestion of Plaintiffs and their amici that this Court should disregard both the
plain policy language and its own controlling precedent and upset settled
commercial expectations in favor of unfounded speculation about what some might
consider fair, and others might not.
Finally, UP is the only amicus to address exhaustion, which is a moot issue
if the Court adheres to pro rata allocation. If the Court were to adopt an “all sums”
approach, by contrast, horizontal exhaustion follows as a matter of course from the
policies’ language. UP argues otherwise on the ground that horizontal exhaustion
3
is a California equitable doctrine that applies only to resolve disputes among
insurers, absent contrary policy language. But here there is policy language
requiring horizontal exhaustion. And even under California law, horizontal
exhaustion is not limited to disputes between insurers, but applies also to an
insured’s obligations.
ARGUMENT
I. PLAINTIFFS’ AMICI CONFIRM THAT CON ED REQUIRES PRO
RATA ALLOCATION HERE
A. NYSEG’s And UP’s Principal Arguments Do Not Address The
Question Presented Here, And Instead Seek To Relitigate Con Ed
This appeal starts from the premise, shared by all parties and the Delaware
Supreme Court, that Con Ed generally compels pro rata allocation for policies that
include the same “during the policy period” language that appears in all of the
Excess Policies. As the Delaware Supreme Court explained in its opinion
certifying questions to this Court, “New York’s highest court ha[s] rejected ‘joint
and several[’] allocation as ‘not consistent’ with standard policy language, also
included in the policies here, limiting coverage to injury ‘during the policy
period.’” A-1340 (quoting Con Ed, 98 N.Y.2d at 224). The Delaware Supreme
Court merely sought guidance on whether Con Ed’s holding continues to apply
where, as here, the policies also contain “non-cumulation and prior insurance
provisions.” A-1343.
4
The Excess Insurers have already explained why the non-cumulation and
prior insurance language provides no basis for distinguishing Con Ed’s holding
that the “during the policy period” coverage limitation precludes “all sums”
allocation and requires pro rata allocation. Resp. Ans. Br. 16-38; Resp. Surreply
Br. 1-10. Tellingly, Plaintiffs’ amici barely attempt to counter that argument.
NYSEG and UP in particular instead focus almost entirely on their disagreements
with the central holding of Con Ed itself. That is, these amici chiefly contend that
policies containing the “during the policy period” coverage limitation require “all
sums” allocation (and preclude pro rata allocation) even without non-cumulation
and prior insurance provisions.
1. NYSEG
NYSEG is explicit on this point. NYSEG urges the Court to “overrule Con
Edison,” NYSEG Br. 9, because “the insurance companies’ promise to pay ‘all
sums’ of [the policyholder’s] liability meant what it said, i.e., that they would each
pay for all of [the policyholder’s] liability, up to their policy limits.],” id. at 6. Con
Ed, NYSEG argues, “never construed what ‘all sums’ meant” and essentially “read
the language out of the policy.” Id.
But of course this Court has already considered and properly rejected those
arguments. The Con Ed Court certainly did not fail to construe the policies’ “all
sums” language—to the contrary, the Court explicitly analyzed the phrase in its
5
context, holding that “a straightforward reading of the phrase ‘during the policy
period’ limits an insurer’s liability to ‘all sums’ incurred by the insured ‘during the
policy period.’” 98 N.Y.2d at 222-23.
NYSEG also implies that Con Ed is an outlier among decisions that have
considered the proper allocation method. NYSEG Br. 7. NYSEG is wrong. The
pro rata approach has “been adopted by a number of other courts and appears to be
the emerging trend among decisions.” Scott M. Seaman & Jason R. Schulze,
Allocation of Losses in Complex Insurance Coverage Claims § 4.3 (4th ed. 2015)
(citing cases). More important, pro rata allocation has been the settled rule in this
State for more than a decade. Con Ed has been repeatedly applied, without
difficulty, by New York state and federal courts, Resp. Ans. Br. 19-20, and was
reaffirmed by this Court recently in Roman Catholic Diocese of Brooklyn v.
National Union Fire Insurance Co. of Pittsburgh, 21 N.Y.3d 139, 154 (2013).
NYSEG offers no valid basis for revisiting Con Ed and disrupting the commercial
expectations that have developed and settled around that important decision.
2. United Policyholders
UP similarly argues that “the Court may wish to restrict or revisit [Con Ed]
for a number of reasons.” UP Br. 17. But each of the reasons UP presents was
considered and properly rejected in Con Ed itself.
6
First, as with NYSEG, UP contends that Con Ed misconstrued the policy
language, arguing that the Court’s adoption of pro rata allocation despite its
statement that pro rata allocation was “‘not explicitly mandated by the policies’”
was “not consistent with ordinary rules of insurance policy interpretation.” UP Br.
17 (quoting Con Ed, 98 N.Y.2d at 224). UP’s out-of-context quotation distorts this
Court’s holding, which was based entirely on the policy language and fully
consistent with ordinary rules of policy interpretation. The Court held that “[p]ro
rata allocation under these facts, while not explicitly mandated by the policies, is
consistent with the language of the policies,” because “the policies provide
indemnification for liability incurred as a result of an accident or occurrence during
the policy period, not outside that period.” 98 N.Y.2d at 224. In contrast, the
Court explained, “Con Edison’s singular focus on ‘all sums’ would read this
important qualification out of the policies.” Id. (emphasis added). In other words,
the Court’s actual holding was the opposite of what UP implies—rather than
ignoring the policy language, Con Ed construes that language to reject the “all
sums” argument that Plaintiffs and its amici now press because that argument
ignored the policies’ “during the policy period” language. Id.1
1 UP cites State of Cal. v. Continental Ins. Co. (“State of California II”), 281 P.3d 1000
(Cal. 2012), aff’g State of Cal. v. Continental Ins. Co. (“State of California I”), 88 Cal. Rptr. 3d
288 (Ct. App. 2009), a case that expressly cited and rejected Con Ed as a matter of California
law. UP Br. 20-21. But it is the law of New York, not California, that controls here.
7
Second, UP contends that the history of CGL policies from the 1960s
through 1977 supports an “all sums” approach. UP Br. 21-27. This cited history
has nothing to do with the non-cumulation or prior insurance provisions at issue
here. It is merely another assault on Con Ed. Indeed, it is the same history
presented to the Con Ed Court itself in a “policyholder” amicus brief joined by UP.
Compare UP Br. 23-27 with Con Ed, Brief of the Policyholder Amici, 2002 WL
32173865, at *22-27 (Feb. 15, 2002). The Con Ed Court was not swayed by this
history, because it could not override the plain policy language. 98 N.Y.2d at 221;
see Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569 (2002) (“Extrinsic
evidence of the parties’ intent may be considered only if the agreement is
ambiguous”). There is no basis for a different result here.
Third, UP contends that pro rata allocation involves many “complications,”
such as whether to allocate damages to the policyholder for years in which
insurance was unavailable, and which method of proration to use. UP Br. 29-31.2
2 UP also contends that “any attempt to prorate defense costs … makes no conceptual
sense.” UP Br. 28. The question of defense cost allocation is not before this Court. Resp. Ans.
Br. 39-42. But in fact “many courts have … held that it is appropriate to allocate both the costs
of indemnification and the costs of defending claims arising from such long-term conditions.”
Towns v. N. Sec. Ins. Co., 964 A.2d 1150, 1167 (Vt. 2008) (emphasis in original); see, e.g., Sec.
Ins. Co. of Hartford v. Lumbermens Mut. Cas. Co., 826 A.2d 107, 121-22 (Conn. 2003);
Insurance Co. of N. Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1225 (6th Cir. 1980);
Gulf Chem. & Metallurgical Corp. v. Associated Metals & Minerals Corp., 1 F.3d 365, 372 (5th
Cir. 1993) (Texas law); EEOC v. S. Publ’g Co., 894 F.2d 785, 791 (5th Cir. 1990) (Mississippi
law); Porter v. Am. Optical Corp., 641 F.2d 1128, 1145 (5th Cir. 1981) (Louisiana law); Owens-
Illinois, Inc. v. United Ins. Co., 650 A.2d 974, 993-94 (N.J. 1994); Cont’l Cas. Co. v. Med.
Protective Co., 859 S.W.2d 789, 793 (Mo. Ct. App. 1993); Travelers Indem. Co. v. Northrop
Grumman Corp., 956 F. Supp. 2d 494, 510-11 (S.D.N.Y. 2013).
8
But Con Ed specifically acknowledged the same so-called “complications,” yet
concluded that the policy language compelled pro rata allocation. 98 N.Y.2d at
224–25. And as already explained, federal and state courts in New York and many
other jurisdictions have applied pro rata allocation without difficulty. See supra at
5; Seaman & Schulze § 4.3 (citing numerous federal and state courts adopting pro
rata approach). Further, an “all sums” approach creates the greater complication
of a second round of litigation over contribution. See EnergyNorth Nat. Gas, Inc.
v. Certain Underwriters at Lloyd’s, 156 N.H. 333, 345 (2007). UP suggests that
this concern is overstated, but the availability of follow-on contribution actions has
been an essential justification for “all sums” allocation from the beginning. See,
e.g., Keene Corp. v. Ins. Co. of N. Am., 667 F.2d 1034, 1050 (D.C. Cir. 1981).
Finally, UP argues that “all sums” allocation is fairer than proration because
insurers that “contracted to pay ‘all sums’ should be held to that promise.” UP Br.
35. But of course, insurers are being held to their promise, which is to cover all
sums incurred because of personal injury during the policy period. UP’s sweeping
“fairness” claims cannot override the express policy language. And in any event,
UP’s evaluation of fairness is incorrect, as demonstrated by amicus Olin, which
argues forcefully for pro rata allocation from the policyholder’s perspective. Olin
Br. 8-18. Olin’s participation shows that proration favors policyholders in some
circumstances and insurers in others. The correct approach for a court is simply to
9
enforce the parties’ own choice as reflected in the plain terms of their contracts, as
this Court did in Con Ed, rather than to referee competing assessments of
“fairness” that divide even policyholders themselves.
UP also asserts a truncated, one-sided perspective of “fairness.” UP ignores,
for example, that under an “all sums” approach policyholders would be entitled to
full coverage for decades’ worth of harm even if they purchased coverage for only
one day or one year. See, e.g., Public Serv. Co. of Colorado v. Wallis & Cos., 986
P.2d 924, 939 (Colo. 1999) (“We do not believe that these policy provisions can
reasonably be read to mean that one single-year policy out of dozens of triggered
policies must indemnify the insured’s liability for the total amount of pollution
caused by events over a period of decades, including events that happened both
before and after the policy period.”); Forty-Eight Insulations, 633 F.2d at 1225
(“Were we to adopt [the policyholder’s] position on defense costs a manufacturer
which had insurance coverage for only one year out of 20 would be entitled to a
complete defense of all asbestos actions the same as a manufacturer which had
coverage for 20 years out of 20.”). That result is contrary to “principles of simple
justice.” Owens-Illinois, 650 A.2d at 992. Indeed, an “all sums” approach creates
incentives for policyholders to forgo insurance and take irrational risk, whereas
proration provides incentives to obtain full coverage and internalize the cost of
risk. See id. at 992-93.
10
B. ITT’s Policy-Language-Based Arguments Are Incorrect And
Irreconcilable With Con Ed
In contrast to NYSEG and UP, ITT avoids a direct assault on Con Ed, but its
textual arguments—largely having nothing to do with non-cumulation and prior
insurance provisions—are just as inconsistent with that decision.
ITT makes two related and flawed textual arguments for why the Con Ed
rule cannot apply to these policies. First, ITT cites the underlying Liberty umbrella
policy’s definition of “bodily injury,” which includes sickness or disease and
“death resulting at any time therefrom.” A-518. According to ITT, the reference
to death “at any time” proves that the policy cannot only cover “bodily injury” that
occurs within the policy period. Second, ITT argues that the policies’ coverage of
consequential damages cannot be reconciled with proration. ITT Br. 15-18.
Both arguments rest on the same misunderstanding. Contrary to ITT’s
misreading, the policy covers consequential damages (such as death) that result
from an injury that occurs during the policy period, even if the consequential
damage is suffered later, only where the damage-causing injury occurs “during the
policy period.” A-517, 519. The definition of “bodily injury” thus “simply sets
forth the unremarkable proposition . . . that the policy in place when the injury
occurs will cover all consequential damages, even those taking place after the
policy period.” New Eng. Insulation Co. v. Liberty Mut. Ins. Co., 83 Mass. App.
Ct. 631, 637 (2013). Thus, in an ordinary case, where the policyholder can easily
11
identify the policy period in which the bodily injury occurred, that policy will
provide coverage. See Con Ed, 98 N.Y.2d at 224 (“collecting all the indemnity
from a particular policy presupposes ability to pin an accident to a particular policy
period”). But the entire premise of cases like this one is that injuries occurring
over time cannot be assigned to “any particular policy period.” Id.; see New Eng.
Insulation, 83 Mass. App. Ct. at 637 (liability allocated pro rata in “asbestos cases”
and “cases of environmental damage” when “it is both scientifically and
administratively impossible” to determine how much injury occurred within
specific policy periods). The policyholder accordingly is allowed to collect under
all policies in effect during the period in which the policyholder demonstrates the
injury occurred, according to the policies’ pro rata share of coverage. That
policyholder-friendly approach permits recovery without specific proof of the
amount of the injury in a particular policy period, but includes the necessary
tradeoff that the policyholder cannot simply “choose a particular policy for
indemnity” of the entire loss, because “it is not consistent with the language of the
policies providing indemnification for ‘all sums’ of liability that resulted from an
accident or occurrence ‘during the policy period.’” Con Ed, 98 N.Y.2d at 224; see
New Eng. Insulation, 83 Mass. App. Ct. at 637.
12
ITT’s ostensibly new textual arguments are thus just as wrong as the old
textual arguments already rejected in Con Ed, and for essentially the same
reasons—they read the words “during the policy period” out of the Policies.
C. UP’s And ITT’s Analysis Of The Policies’ Non-Cumulation And
Prior Insurance Provisions Recycle Plaintiffs’ Arguments
When UP and ITT finally address the actual certified question, they simply
repeat Plaintiffs’ own meritless arguments.
1. The Policies’ Non-Cumulation Provisions Are Fully Consistent With
Pro Rata Allocation
Both UP and ITT contend that the Liberty umbrella policies’ non-
cumulation provisions—to which 23 of the Excess Policies follow form, Resp.
Ans. Br. 9—are inconsistent with proration. Not so.
UP’s main argument is that non-cumulation provisions—what it calls “anti-
stacking” provisions—can be applied only in an “all sums” regime, so the insurers
would not have included those provisions in the policies if they had anticipated a
pro rata regime. UP Br. 21. That argument is wrong for reasons the Excess
Insurers have already explained—non-cumulation provisions are fully compatible
with proration. Resp. Ans. Br. 24-30. UP says State of California II supports its
construction of the policy, but it does not. Indeed, the relevant policies in that case
did not even include non-cumulation provisions. 281 P.2d at 1009. The court
instead adopted an “all sums” approach for independent reasons (expressly
13
disagreeing with Con Ed, see supra n.1), and then refused to adopt a “anti-
stacking” rule precisely because the policy omitted anti-stacking provisions.
Nothing about State of California II supports Plaintiffs’ theory that a non-
cumulation provision justifies departure from the Con Ed rule.
ITT, for its part, actually agrees that the non-cumulation provision does not
expand coverage, ITT Br. 19, asserting the more modest position that the provision
simply “reinforces” its other (incorrect) textual arguments for “all sums”
allocation, id. at 23. But that concession gives up the game: this Court has already
held that policies limited to coverage “during policy period” require proration, and
thus if the non-cumulation provision does not expand coverage outside the policy
period, as ITT concedes, then proration still must be required under Con Ed.
ITT’s remaining arguments merely restate Plaintiffs’ erroneous contentions.
Like Plaintiffs, ITT argues that because the non-cumulation provision applies when
“the same occurrence gives rise to personal injury … which occurs partly before
and partly within any annual period of this policy,” ITT Br. 22 (quoting A-518)
(emphasis added), coverage for “personal injury” under the policy cannot be
limited to each policies’ coverage period, ITT Br. 22-23. As the Excess Insurers
have shown, however, the provision does not expand coverage to injuries that
occur before the policy’s period, but instead reduces the policy’s limits to account
for earlier payments. Resp. Ans. Br. 22-23.
14
2. Condition C Is Fully Consistent With Proration, As The Second
Circuit Held In Olin III And As Olin’s Brief Confirms
ITT also repeats Plaintiffs’ argument that “Condition C”—found in 11 of the
Excess Policies (Resp. Ans. Br. 9-10)—“only makes sense under” an “all sums”
regime. ITT Br. 19-22. The Second Circuit has squarely rejected this argument,
see Olin Corp. v. Am. Home Assurance Co., 704 F.3d 89, 102-03 (2d Cir. 2012)
(“Olin III”), and the policyholder in that case has filed an amicus brief here
supporting the Second Circuit’s position and rejecting Plaintiffs’ interpretation,
Olin Br. 8-18.
Like Plaintiffs, ITT argues that Condition C’s first paragraph (the “Prior
Insurance” provision) is inconsistent with pro rata allocation. As the Excess
Insurers have explained, however, the Prior Insurance provision in Condition C
functions like the non-cumulation provision just discussed in all respects relevant
here, and is thus fully consistent with pro rata allocation for the same reasons.
Resp. Ans. Br. 30-31. That is what the Second Circuit held in Olin III, 704 F.3d at
104-05—as Olin explains in its amicus brief to this Court, this first paragraph
“reduces the policy’s per-occurrence limit” by amounts due under earlier policies
covering the same loss at the same layer of coverage. Olin Br. 6-7. As with the
15
non-cumulation provisions, the first paragraph of Condition C does not expand
coverage to damages arising from injury that occurs outside the policy period. 3
Condition C’s second paragraph (the “Continuing Coverage” provision) is
also fully consistent with proration. As Olin III explains, that provision “is not
enough to impose joint and several liability and reject pro rata allocation, given
that [it] applies only to damages continuing after the termination of the policy and
is silent regarding damages occurring before the policy period.” 704 F.3d at 103;
see Resp. Ans. Br. 31-34. The provision thus defeats the central premise of “all
sums” allocation that the policy pays for injuries incurred “before, during and
after” the policy period. Warren Br. 3. The effect of the Continuing Coverage
provision is to “simply add[] additional years of exposure” if the policyholder is
able to prove a “continuing” injury at the time of the policy’s termination, with pro
rata allocation applied to “determin[e] the amount of damage attributed to each
year.” Olin III, 704 F.3d at 102. Plaintiffs here have not proven (and no Delaware
court has found) that any underlying claimant’s injury was continuing when any
particular policy terminated. Resp. Ans. Br. 32. And as Olin points out, “any
3 In Olin III, all of the policies in the excess insurance layer before the court were issued
by the same insurer. 704 F.3d at 93. The Second Circuit expressly did not address the manner in
which the first paragraph of Condition C applies when prior policies are not all issued by the
same insurer. Id. at 105 n.21. That question is currently pending before the Second Circuit in
Olin Corp. v. OneBeacon America Insurance Company, No. 15-2047(L), and has not been raised
or briefed by the parties in this Court.
16
failure of proof by the [Plaintiffs] in this case is no reason to distort the plain
meaning of Condition C.” Olin Br. 16.
II. IF THE COURT REACHES THE QUESTION, IT SHOULD HOLD
THE POLICIES REQUIRE HORIZONTAL EXHAUSTION HERE4
UP argues that notwithstanding the policies’ plain language, the Court
should not require horizontal exhaustion of the underlying insurance because (a)
one jurisdiction that has endorsed horizontal exhaustion, California, purportedly
applies it only between insurers, (b) the “other insurance” provisions in the Excess
Policies also purportedly apply only between insurers, and (c) any ambiguous
policy language should be construed against the insurer, no matter the size and
sophistication of the counterparty insured. UP Br. 40-43. As discussed in the
Excess Insurers’ answering brief, if pro rata allocation applies, the question of
horizontal exhaustion is moot. Resp. Ans. Br. 45-53. Should the Court reach the
question, however, it should hold that none of UP’s arguments overcome the plain
policy language requiring horizontal exhaustion here.
A. California Does Not Preclude The Application Of Horizontal
Exhaustion To A Policyholder
UP argues that “absent express policy language requiring horizontal
exhaustion between a policyholder and an excess insurance company, the doctrine
4 Travelers did not brief the exhaustion issue before the Delaware courts other than to
note that the Delaware Supreme Court should not reach the issue of exhaustion. Accordingly,
Travelers does not join in or otherwise endorse the arguments in Part II of the Excess Insurers’
response to the amici.
17
applies, if at all, only as an equitable claim or defense between or among the
implicated insurance companies.” UP Br. 36 (emphasis added). But UP
inexplicably ignores the “express policy language” in the Excess Policies, which
does require horizontal exhaustion between the policyholder and the insurer.5 UP
instead argues that in California, horizontal exhaustion is merely an “equitable
contribution doctrine” governing disputes between insurers. UP Br. 37. Even if
this were a correct description of California law, it would have no bearing on the
insured’s obligations under the plain text of the Houdaille policies, as UP itself
concedes. Id. at 38 (“Any ‘horizontal exhaustion’ rule is subject to standard rules
of insurance policy interpretation and must be based on the policy language.”).
In all events, UP misstates California law.6 Although Community
Redevelopment Agency v. Aetna Casualty & Surety Co. [“CRA”], 57 Cal. Rptr. 2d
5 UP argues in passing that the Excess Policies require vertical exhaustion because they
“state they are excess over specifically described underlying insurance and will cover a claim
once that underlying insurance is exhausted.” UP Br. 39. But the plain language of the
Houdaille Policies establishes that exhaustion of underlying insurance is a necessary, but not
sufficient, condition to liability. Resp. Ans. Br. 45-53. Contrary to the assertion in Viking’s
reply brief, the policy language does not show that “exhaustion of the ‘underlying insurance’ [is]
a sufficient trigger to the Excess Insurers’ coverage obligations.” Viking Pump Reply Br. 9, 11.
That language merely shows that the exhaustion of underlying insurance is a condition (not the
only condition) to coverage. Viking’s interpretation would read every other provision out of its
cited policies—including the “other insurance” provisions expressly labeled “Conditions.” A-
1046 (“other insurance” provision placed in the section titled “Conditions”); A-1102 (same).
6 Although California law is not binding here, California (and Illinois) courts do have
extensive experience interpreting policy language requiring horizontal exhaustion across policy
years. See, e.g., Kaiser Cement & Gypsum Corp. v. Ins. Co. of State of Pa., 126 Cal. Rptr. 3d
602, 614-15 (Ct. App. 2011), superseded, 155 Cal. Rptr. 3d 283 (Ct. App. 2013); U.S. Gypsum
Co. v. Admiral Ins. Co., 643 N.E.2d 1226, 1261 (Ill. App. 1994).
18
755, 761 (Ct. App. 1996), involved a contribution claim between two insurers, the
court did not suggest, as UP asserts, that “horizontal exhaustion is an equitable
contribution doctrine[] designed to equitably apportion losses among multiple
insurance companies, not to eliminate coverage available to a policyholder,” UP
Br. 37. Instead, the CRA court held that “[u]nder the principle of horizontal
exhaustion, all of the primary policies must exhaust before any excess will have
coverage exposure.” Id. (emphasis altered). California cases thus generally
understand CRA as requiring horizontal exhaustion in disputes between insurers
and insureds. See, e.g., Pac. Coast Bldg. Prods., Inc. v. AIU Ins. Co., 300 F. App’x
546, 548 (9th Cir. 2008) (“[T]he clear and explicit language of the AIU policy
requires that ‘any other underlying insurance’ first be exhausted before AIU, an
excess carrier, would drop down to provide coverage to Pacific Coast. This
language compels application of the horizontal exhaustion rule.”); Kaiser Cement,
126 Cal. Rptr. 3d at 614-15; Padilla Const. Co. v. Transp. Ins. Co., 58 Cal. Rptr.
3d 807, 809-12 (Ct. App. 2007).
Most remarkably, UP quotes State of California I as stating that “the
horizontal exhaustion rule only governs the relationship between the primary and
excess insurers.” UP Br. 38. The full quotation actually states the opposite:
Technically, the horizontal exhaustion rule only governs the
relationship between the primary and excess insurers. Nevertheless, it
necessarily implies that the insured, too, is entitled to stack the
primary policies; otherwise, the primary policies would never be
19
exhausted. (See Iolab Corp. v. Seaboard Sur. Co. (9th Cir. 1994) 15
F.3d 1500, 1504 [applying California law; insured was not entitled to
indemnity from excess insurers because it had not yet exhausted all
primary policies].)
88 Cal. Rptr. 3d at 306 (emphasis added). In sum, nothing in California law
precludes the application of horizontal exhaustion to disputes between insurers and
insureds where (as here) the policy language commands it.
B. An “Other Insurance” Provision May Reduce Coverage To An
Insured Under New York Law
Citing two out-of-state trial courts, UP next contends that “‘other insurance’
provisions only apply to allocation disputes between or among insurers” and
therefore cannot “be used to limit coverage available to policyholders.” UP Br. 38.
There is no such rule in New York.7 See In re Liquidation of Midland Ins. Co.,
709 N.Y.S.2d 24, 34 (1st Dep’t 2000) (“[A] plain reading of the ‘Other Insurance’
and ‘Prior Insurance’ clauses defeats LAQ’s claim that the clauses were to be used
only to resolve disputes over contribution between insurers, but could not be used
to reduce the amount owed by Midland to LAQ in the first instance. The clauses
clearly provide that Midland’s $20 million coverage obligation to LAQ would be
7 Viking cites two New York cases that it says hold an “other insurance” provision cannot
limit coverage to an insured. Viking Reply 19. Neither case stands for any such proposition.
Cont’l Cas. Co. v. Rapid-American Corp., 80 N.Y.2d 640, 655–56 (1993), concerned allocation
of defense costs and did not concern any “other insurance” provision at all. And in Slabic v.
Hendrickson, 147 Misc. 2d 472, 474 (N.Y. Sup. Ct. 1990), the court upheld the validity of an
“other insurance” provision asserted by a vehicular excess insurer. The court held that the
“other insurance” provision did not “undermine state policy requiring mandatory insurance
coverage” because it “determines only whether the coverage provided is primary or excess.” Id.
20
reduced by any sums owed to LAQ by other excess policies on the same risk, and
specifically preclude contribution.”). Plaintiffs’ “all sums” theory presupposes that
each Excess Policy covers the same risk, and the “other insurance” provisions in
those Policies state, in plain and unmistakable terms, that coverage will be reduced
by other policies covering the same risk. A-1092 (“If other valid and collectible
insurance with any other Insurers is available to the Assured covering a loss also
covered by this Policy, other than insurance that is in excess of the insurance
afforded by this Policy, the insurance afforded by this Policy shall be in excess of
and shall not contribute with such other insurance.”). Nothing in New York law
limits their application here.
C. Contra Proferentem Does Not Apply Here
Finally, UP argues that even a large, sophisticated corporate insured such as
Houdaille is entitled to the benefit of contra proferentem if it did not “actually
negotiate[] the ambiguous provision in dispute.” UP Br. 40. Contrary to the nearly
two-decade-old federal decisions cited by UP, recent New York precedent (and
federal precedent applying New York law) confirm that contra proferentem does
not apply to a “sophisticated policyholder,” regardless whether there was actual
negotiation over the particular term at issue. Westchester Fire Ins. Co. v. MCI
Commc’ns Corp., 74 A.D.3d 551, 551 (1st Dep’t 2010); see Aircraft Servs.
Resales LLC v. Oceanic Capital Co., 2013 WL 4400453, at *4 (S.D.N.Y. Aug. 14,
22
Telephone: (202) 383-5300
Facsimile: (202) 383-5414
Tancred Schiavoni
Gary Svirsky
Anton Metlitsky
Brad M. Elias
Times Square Tower
7 Times Square
New York, New York 10036
Telephone: (212) 326-2000
Facsimile: (212) 326-2061
Attorneys for Respondents Century
Indemnity Company, ACE Property &
Casualty Insurance Company, and
Westchester Fire Insurance Company
06930-00001/7748342.2
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
By _______________________________
Kathleen M. Sullivan
Jane M. Byrne
William B. Adams
51 Madison Avenue, 22nd Floor
New York, New York 10010
Telephone: (212) 849-7000
Facsimile: (212) 849-7100
Attorneys for Respondents Certain
Underwriters at Lloyd’s, London
DAY PITNEY LLP
By
(pro hac vice)
Joseph K. Scully (pro hac vice)
John W. Cerreta
242 Trumbull Street
Hartford, Connecticut 06 I 03
Telephone: (860) 275-0103
Facsimile: (860) 275-0343
Attorneys for Respondent Travelers Casualty and Surety
Company f/k/o The Aetnq Casuølty and Surety Company
1
CORPORATE DISCLOSURE STATEMENT
Pursuant to Section 500.1(f) of the Rules of Practice for this Court,
Respondents state as follows:
1. ACE Property and Casualty Insurance Company is a wholly owned
subsidiary of INA Holdings Company, which is a wholly owned subsidiary of INA
Financial Corp. INA Financial Corp. is a wholly owned subsidiary of INA
Corporation, which is a wholly owned subsidiary of ACE INA Holdings, Inc.
ACE INA Holdings, Inc. is 80% owned by ACE Group Holdings Inc. and 20%
owned by Chubb Limited. ACE Group Holdings, Inc. is a wholly owned
subsidiary of Chubb Limited. Chubb Limited, the ultimate parent corporation, is
publicly traded (NYSE: CB). A list of Chubb Limited affiliated entities is
appended hereto as Annex A.
2. Century Indemnity Company is a wholly owned subsidiary of
Brandywine Holdings Corp., which is a wholly owned subsidiary of INA Financial
Corp. INA Financial Corp. is a wholly owned subsidiary of INA Corporation,
which is a wholly owned subsidiary of ACE INA Holdings, Inc. ACE INA
Holdings, Inc. is 80% owned by ACE Group Holdings Inc. and 20% owned by
Chubb Limited. ACE Group Holdings, Inc. is a wholly owned subsidiary of
Chubb Limited. Chubb Limited, the ultimate parent corporation, is publicly traded
2
(NYSE: CB). A list of Chubb Limited affiliated entities is appended hereto as
Annex A.
3. The Continental Insurance Company is a wholly owned subsidiary of
the Continental Casualty Company, which is a wholly owned subsidiary of the
Continental Corporation, which is a wholly owned subsidiary of CNA Financial
Corp., which is a publicly traded corporation. Affiliated entities are: American
Casualty Company of Reading, Pennsylvania, CNA Insurance Company Limited,
Columbia Casualty Company, Continental Reinsurance Corporation International,
Ltd., Hardy Guernsey Limited, National Fire Insurance Company of Hartford,
North Rock Insurance Company Limited, Surety Bonding Company of America,
The Continental Insurance Company of New Jersey, Transportation Insurance
Company, Universal Surety of America, Valley Forge Insurance Company, and
Western Surety Company.
4. Certain Underwriters at Lloyd’s, London are individual persons and
no parents, affiliates or subsidiaries exist.
5. Certain London Market Insurance Companies are as follows:
• Accident & Casualty Company of Winterthur, n/k/a AXA
Winterthur, which is part of the AXA Group.
• American Home Insurance Company, a wholly-owned subsidiary of
American International Group, Inc. A list of affiliated entities is
appended hereto as Annex B.
3
• Argonaut Insurance Company, a wholly-owned subsidiary of Argo
Group. A list of affiliated entities is appended hereto as Annex C.
• Assicurazioni Generali S.p.A. Affiliated entities are: Delta
Generali, Future Generali, Genertellife, INA Assitalia, Alleanza -
Toro, Genertel, Europ-Assistance, and Banca Generali.
• Bishopsgate Insurance Company, n/k/a Fortis Insurance Limited.
Bishopsgate is affiliated with Northern Star Insurance Company
Limited.
• Britamco Pool.
• Companhia De Seguros Imperio S.A.
• CNA Reinsurance Company Limited (UK), a subsidiary of Tawa
UK Ltd., a subsidiary of Artemis Group, a diversified French
holding company.
• Dominion Insurance Co. Ltd.
• Excess Insurance Company Limited, a wholly-owned subsidiary of
Heritage Reinsurance Company Ltd., whose ultimate holding
company is the Hartford Financial Services Group, Inc. A list of
affiliated entities is appended hereto as Annex D.
• London and Edinburgh (General) Insurance Company Limited, part
of Aviva Insurance Limited. Affiliated entities are: Gresham
Insurance Company Ltd., and The Ocean Marine Insurance
Company Ltd.
• National Casualty Company of America Limited, plc., which is a
wholly-owned subsidiary of National Casualty Company, which is a
wholly-owned subsidiary of Scottsdale Insurance Company, which is
a wholly-owned subsidiary of Nationwide.
• New London Reinsurance Company Limited.
• River Thames Insurance Company Limited, a subsidiary of Enstar
Group Limited. A list of affiliated entities is appended hereto as
Annex E.
4
• St. Katherine Insurance Company Limited, predecessor-in-interest to
UnionAmerica Insurance Company Limited, a subsidiary of Enstar
Group Limited. A list of affiliated entities is appended hereto as
Annex E.
• Stronghold Insurance Company Limited.
• Terra Nova Insurance Company Limited.
• Turegum Insurance Company n/k/a/ Harper Insurance Limited, a
subsidiary of Enstar Group Limited. A list of affiliated entities
appended hereto as Annex E.
• Yasuda Fire & Marine Insurance Company (UK) Limited, a
subsidiary of Yasuda Fire & Marine Insurance Company. Affiliated
entities are: Yasuda Building Management Co., Ltd., Yasuda Kasai
Information Technology Co., Ltd., Yasuda Claims Research Co.,
Ltd., Yasuda Agency Association Ltd., The Yasuda Marine Service
Co., Ltd., Yasuda Business Service Co., Ltd., The Yasuda Training
and Planning Co., Ltd., Yasuda Loan Service Co., Ltd., Yasuda
System Development Co. Ltd., Yasuda Credit Card Co., Ltd.,
Yasuda Career Bureau Co., Ltd., The Yasuda International
Investment Management Co., Ltd., Yasuda Research Institute Co.,
Ltd., Yasuda General Finance Co., Ltd., Yasuda Credit Co., Ltd.,
Yasuda Kasai International (U.S.A.), Inc., Yasuda Kasai Realty, Ind.
(U.S.A.), Yasuda Fire & Marine Insurance Company of America
(U.S.A.), Yasuda Claims Limited (U.K.), PanFinancial Insurance
Co., Ltd. (U.K.), The Yasuda Fire Investment (Europe) S.A.
(Luxembourg), Companhia de Seguros America do Sul Yasuda
(Brazil), The Yasuda Management Service Co. Ltd. (Bermuda), The
Yasuda Fire Bahama Ltd., William S.T. Lee Insurance Co., Ltd.
(Hong Kong), The Yasuda Fire Asset Management Co., Ltd. (Hong
Kong), The Yasuda Reinsurance Co., Ltd. (Hong Kong), P.T.
Asuransi Yasuda Indonesia, People's Trans-East Asia Insurance
Corporation (Philippines), Yasuda Management (Singapore) Private
Limited, Yasuda International Services Co., Ltd. (Thailand), Yasuda
Bahrain Kuwait Insurance Company (E.C.)
6. Granite State Insurance Company is a wholly owned subsidiary of
New Hampshire Insurance Company, which is a wholly owned subsidiary of AIG
5
Property Casualty U.S., Inc., which is a wholly-owned subsidiary of AIG Property
Casualty Inc., which is a wholly-owned subsidiary of AIUH LLC, which is a
wholly-owned subsidiary of American International Group, Inc. A list of affiliated
entities is appended hereto as Annex B.
7. Lexington Insurance Company is owned 70% by National Union Fire
Insurance Company of Pittsburgh, Pa, 20% by the Insurance Company of the State
of Pennsylvania, and 10% by AIG Property Casualty Company. Each of these
parent companies is a wholly owned subsidiary of AIG Property Casualty U.S.,
Inc., described above. A list of affiliated entities is appended hereto as Annex B.
8. National Union Fire Insurance Company of Pittsburgh, Pa is a wholly
owned subsidiary of AIG Property Casualty U.S., Inc., described above. A list of
affiliated entities is appended hereto as Annex B.
9. Lamorak Insurance Company, formerly known as OneBeacon
America Insurance Company, is a wholly owned subsidiary of Bedivere Insurance
Company, which is a wholly owned subsidiary of Trebuchet US Holdings, Inc.,
which is a wholly owned subsidiary of Trebuchet Investments, Limited, which is a
wholly owned subsidiary of Armour Group Holdings, Limited. Affiliated entities
are: A. W. G. Dewar, Inc., Atlantic Specialty Insurance Company, AutoOne
Insurance Company, AutoOne Select Insurance Company, The Camden Fire
Insurance Association, EBI Claims Services, LLC, The Employers’ Fire Insurance
6
Company, Essentia Insurance Company, Homeland Insurance Company of
Delaware, Homeland Insurance Company of New York, Houston General
Insurance Company, Houston General Insurance Exchange, Houston General
Insurance Management Company, Mill Shares Holdings (Bermuda) Ltd., National
Marine Underwriters, Inc., The Northern Assurance Company of America, OBI
National Insurance Company, OneBeacon Entertainment, LLC, OneBeacon
Holdings (Gibraltar) Limited, OneBeacon Holdings (Luxembourg) S.à r.l.,
OneBeacon Insurance Company, OneBeacon Insurance Group LLC, OneBeacon
Midwest Insurance Company, OneBeacon Professional Insurance, Inc.,
OneBeacon Risk Management, Inc., OneBeacon Select Insurance Company,
OneBeacon Services, LLC, OneBeacon Specialty Insurance Company, OneBeacon
Sports and Leisure, LLC, OneBeacon U.S. Enterprises Holdings, Inc., OneBeacon
U.S. Financial Services, Inc., OneBeacon U.S. Holdings, Inc., Pennsylvania
General Insurance Company, Potomac Insurance Company, Traders & General
Insurance Company, WM Belvaux (Luxembourg) S.à r.l., WM Findel
(Luxembourg) S.à r.l., WM Kehlen (Luxembourg) S.à r.l., and WM Queensway
(Gibraltar) Limited.
10. Old Republic Insurance Company is a Pennsylvania Corporation
which is a wholly owned subsidiary of Old Republic International Corporation, a
publicly traded company on the New York Stock Exchange. No publicly-held
7
corporation other than Old Republic International Corporation directly or indirectly
owns 10% or more of the stock of Old Republic Insurance Company, and no other
such parents, subsidiaries and affiliates exist.
11. Republic Insurance Company, n/k/a Starr Indemnity & Liability
Company, Inc., is a wholly owned subsidiary of Starr International USA, Inc.,
which is a wholly owned subsidiary of Starr International Company, Inc., a
privately held foreign insurance holding company. Affiliated entities are: C.V.
Starr & Co., Inc., Starr Syndicate Limited, Starr Surplus Lines Insurance
Company, Starr International Insurance (Asia) Limited, and Starr Insurance and
Reinsurance Limited.
12. TIG Insurance Company is the successor by merger to International
Insurance Company, which is successor by merger to International Surplus Lines
Insurance Company, with respect to Policy No. XSI 5217 in this action. TIG
Insurance Company is a wholly-owned subsidiary of TIG Insurance Group, Inc.,
which is owned by TIG Holdings, Inc., which is owned by Fairfax (US) Inc.,
which is owned by FFHL Group, Ltd., which is owned by Fairfax Financial
Holdings Limited, which is listed on The Toronto Stock Exchange under the
symbol FFH (Canadian dollars) and FFH.U (US Dollars). A list of TIG Insurance
Company’s affiliated entities is appended hereto as Annex F.
8
13. Travelers Casualty and Surety Company, f/k/a The Aetna Casualty
and Surety Company (“Travelers”), is a wholly-owned subsidiary of Travelers
Insurance Group Holdings, Inc., which is a wholly-owned subsidiary of Travelers
Property Casualty Corp., which is a wholly-owned subsidiary of The Travelers
Companies, Inc., a publicly traded company. A full listing of Travelers’ parents,
subsidiaries, and affiliates as June 30, 2015 is appended hereto as Annex G.
14. XL Insurance America, Inc., as successor to Vanguard Insurance
Company, is a subsidiary of XL Group plc, which is part of XL Catlin. A list of
affiliated entities is appended hereto as Annex H.
15. Westchester Fire Insurance Company (which in addition to being
financially responsible for policies novated to itself is also financially responsible
for several policies issued by TIG Insurance Company, an unaffiliated entity) is a
wholly owned subsidiary of ACE US Holdings, Inc., which is a wholly owned
subsidiary of ACE Group Holdings, Inc. ACE Group Holdings, Inc. is a wholly
owned subsidiary of Chubb Limited. Chubb Limited, the ultimate parent
corporation, is publicly traded (NYSE: CB). A list of Chubb Limited affiliated
entities is appended hereto as Annex A.
16. Westport Insurance Corporation (“Westport”)’s direct parent is SR
Corporate Solutions America Holding Corporation. SR Corporate Solutions
America Holding Corporation is in turn owned by Swiss Re Corporate Solutions
9
Ltd. Swiss Re Corporate Solutions Ltd is owned by Swiss Re Ltd. Swiss Re Ltd is
the ultimate corporate parent of Westport. Westport has five subsidiaries: North
American Specialty Insurance Company, North American Elite Insurance
Company, North American Capacity Insurance Company, and Washington
International Insurance Company. Each of these companies is a direct subsidiary,
except for Washington International Insurance Company, which is in turn owned
by North American Specialty Insurance Company.
10
ANNEX A
Affiliates of Chubb Limited
1250 Diehl Corp.
ABA Garantias S.A. de C.V.
ABA Mexico Holdings LLC
ABA Seguros, S.A. de C.V.
ABA Servicios Corporativos, S.A. de C.V.
ABR Reinsurance Capital Holdings Ltd.
ACE (CIDR) Limited
ACE (CR) Holdings
ACE (RGB) Holdings Limited
ACE Alternative Risk Ltd.
ACE American Insurance Company
ACE Arabia Cooperative Insurance Company
ACE Arabia Insurance Company Limited B.S.C.(C)
ACE Asia Pacific Services Pte. Ltd.
ACE Asia Pacific Services Sdn. Bhd.
ACE Asset Management Inc.
ACE Australia Holdings Pty Limited
ACE Bermuda Insurance Ltd.
ACE Bermuda International Insurance Limited
ACE Brazil Holdings, Ltd.
ACE Canada Holdings, Inc.
ACE Capital II Limited
ACE Capital III Limited
ACE Capital IV Ltd.
ACE Capital Limited
ACE Capital Title Reinsurance Company
ACE Capital V Ltd.
ACE Capital VI Limited
ACE Capital VII Limited
ACE Chintai SSI
ACE Corretora de Seguros Ltda.
ACE Direct Marketing Company, Ltd.
ACE Environmental Health And Safety Consulting (Shanghai) Company Limited
ACE Europe Life Limited
ACE European Group Limited
11
ACE European Holdings Limited
ACE European Holdings No. 2 Limited
ACE Fianzas Monterrey, S.A.
ACE Financial Solutions International, Ltd.
ACE Financial Solutions, Inc.
ACE Fire Underwriters Insurance Company
ACE Global Markets Limited
ACE Group Holdings Ltd.
ACE Group Holdings, Inc.
ACE Group Management and Holdings Ltd.
ACE Holdings Limited
ACE INA Berhad
ACE INA Excess and Surplus Insurance Services, Inc. (CA)
ACE INA Excess and Surplus Insurance Services, Inc. (PA)
ACE INA Financial Institution Solutions, Inc.
ACE INA G. B. Holdings, Ltd
ACE INA Holdings Inc.
ACE INA Insurance
ACE INA International Holdings Ltd., Agencia En Chile
ACE INA International Holdings, Ltd.
ACE INA Life Insurance
ACE INA Overseas Holdings, Inc.
ACE INA Overseas Insurance Company Ltd.
ACE INA Properties, Inc.
ACE INA Services U.K. Limited
ACE Insurance (Japan)
ACE Insurance (Switzerland) Limited
ACE Insurance Agency, Inc.
ACE Insurance Company
ACE Insurance Company Egypt S.A.E.
ACE Insurance Company Limited
ACE Insurance Company of the Midwest
ACE Insurance Limited
ACE Insurance Limited
ACE Insurance Limited
ACE Insurance Limited
ACE Insurance Limited
ACE Insurance Limited
ACE Insurance Management (DIFC) Limited
12
ACE Insurance S.A.-N.V.
ACE Intermediaries (Bermuda) Ltd.
ACE International Management Corporation
ACE Jerneh Insurance Berhad
ACE Leadenhall Limited
ACE Life Assurance Public Company Limited
ACE Life Fund Management Company Limited
ACE Life Insurance Company
ACE Life Insurance Company Egypt S.A.E.
ACE Life Insurance Company Limited
ACE Life Insurance Company Ltd.
ACE Life Insurance Company Ltd.
ACE London Aviation Limited
ACE London Group Ltd.
ACE London Holdings Limited
ACE London Investments Limited
ACE London Services Limited
ACE London Underwriting Limited
ACE Marketing Group C.A.
ACE Pension Trustee Limited
ACE Property and Casualty Insurance Company
ACE Realty Holdings Limited
ACE Reinsurance (Switzerland) Limited
ACE Resseguradora S.A.
ACE Risk Solutions, Inc.
ACE Russia Investments Limited
ACE Seguradora S.A.
ACE Seguradora S.A. (Brazil)
ACE Seguros De Vida S.A.
ACE Seguros S.A.
ACE Seguros S.A.
ACE Seguros S.A.
ACE Seguros S.A.
ACE Seguros S.A.
ACE Seguros S.A.
ACE Seguros Soluções Corporativas S.A.
ACE Seguros, S.A.
ACE Services Limited
ACE Servicios Regionales Limitada
13
ACE Servicios S.A.
ACE Servicios S.A.
ACE Servicios, S.A.
ACE Serviços para Seguradoras e Resseguradoras Ltda.
ACE Structured Products, Inc.
ACE Tarquin
ACE Tempest Life Reinsurance Ltd.
ACE Tempest Re Canada Inc.
ACE Tempest Re Escritorio De Representacao No Brasil Ltda.
ACE Tempest Re USA, LLC
ACE Tempest Reinsurance Ltd.
ACE Underwriting Agencies Limited
ACE Underwriting Services Limited
ACE US Holdings, Inc.
AFIA
AFIA (ACE) Corporation, Limited
AFIA (INA) Corporation, Limited
AFIA Finance Corp. Chile Limitada
AFIA Finance Corporation
AFIA Finance Corporation Agencia En Chile
AFIA Venezolana, C.A.
Agri General Insurance Company
Agri General Insurance Service, Inc.
Ally Insurance Holdings LLC
American Lenders Facilities, Inc.
Atlantic Employers Insurance Company
Bankers Standard Fire and Marine Company
Bankers Standard Insurance Company
Bellemead Development Corporation
Brandywine Holdings Corporation
CC Canada Holdings Ltd.
Century Indemnity Company
Century International Reinsurance Company Ltd.
Century Inversiones, S.A.
Chiewchanwit Company Limited
Chubb & Son Inc.
Chubb Argentina de Seguros S.A.
Chubb Atlantic Indemnity Ltd.
Chubb Capital Ltd.
14
Chubb Computer Services, Inc.
Chubb Custom Insurance Company
Chubb Custom Market Inc.
Chubb de Chile Compania de Seguros Generales S.A.
Chubb de Mexico Compania Afianzadora, S.A. de C.V. Seguros S.A.
Chubb de Mexico Compania de Seguros, S.A. C.V.
Chubb de Seguros, S.A.
Chubb do Brasil Comphanhia de Seguros
Chubb Europe Services Ltd.
Chubb European Finance Ltd.
Chubb European Investment Holdings, SLP.
Chubb Executive Risk Inc.
Chubb Financial Solutions (Bermuda) Ltd.
CHUBB FINANCIAL SOLUTIONS, INC.
Chubb Global Services Corporation
Chubb Indemnity Insurance Company
Chubb Insurance (China) Company Limited
Chubb Insurance Company of Australia
Chubb Insurance Company of Canada
Chubb Insurance Company of Europe SE
Chubb Insurance Company of New Jersey
Chubb Insurance Investment Holdings Ltd.
Chubb Insurance Service Company, Ltd.
Chubb Insurance Solutions Agency, Inc.
Chubb Investment Holdings (Hong Kong) Ltd.
Chubb Investment Holdings Inc.
Chubb Investment Services Limited
Chubb Limited
Chubb Lloyds Insurance Company of Texas
Chubb Managing Agent Ltd.
Chubb Multinational Manager Inc.
Chubb National Insurance Company
Chubb Pacific Underwriting Management Services PTE, Ltd.
Chubb Re, Inc.
Chubb Services Corporation
Chubb Syndicate 1882
Combined Insurance Company of America
Combined Insurance Company of Europe Limited
Combined Life Insurance Company of Australia Limited
15
Combined Life Insurance Company Of New York
Conference Facilities, Inc.
Corporate Officers & Directors Assurance Ltd.
Cover Direct, Inc.
Cover-All Technologies Inc.
CoverHound, Inc.
Cravens, Dargan & Company, Pacific Coast
Delpanama S.A.
DHC Corporation
Eksupsiri Company Limited
ESIS Academy PTE. Ltd.
ESIS Asia Pacific PTE. Ltd.
ESIS Canada Inc.
ESIS, Inc.
Executive Risk Capital Trust
Executive Risk Indemnity Company
Executive Risk Management Associate
Executive Risk Specialty Insurance Company
Federal Insurance Company
Federal Insurance Company Escritorio de Representacao No Brasil Ltd.
FM Holdco LLC
Freisenbruch-Meyer Insurance Limited
Freisenbruch-Meyer Insurance Services Ltd.
Great Northern Insurance Company
H.S. Life Small Amount & Short Term Insurance Co., Ltd.
Halifax Plantation Golf Management, Inc.
Halifax Plantation Golf, Inc.
Halifax Plantation Realty, Inc.
Halifax Plantation, Inc.
Harbor Island Indemnity Ltd.
Huatai Insurance Group Co., Ltd.
Huatai Life Insurance Company, Limited
Huatai Property & Casualty Insurance Co., Ltd.
Illinois Union Insurance Company
INA Corporation
INA Financial Corporation
INA Holdings Corporation
INA International Holdings, LLC
INA Tax Benefits Reporting, Inc.
16
INACAN Holdings Ltd.
INACOMB S.A. De C.V.
INAMAR Insurance Underwriting Agency, Inc.
INAMAR Insurance Underwriting Agency, Inc. Of Texas
INAMEX S.A.
INAVEN, C.A.
Indemnity Insurance Company of North America
Insurance Company of North America
Inversiones Continental, S.A. de C.V.
LLC ACE Insurance Company
LLC ACE Life Insurance
Marina Bellemead Del Rey Corp.
Masterpiece Netherlands B.V.
MI Insurance Brokers Ltd.
Nam Ek Company Limited
Naperville Corp.
NewMarkets Insurance Agency, Inc.
Oasis Insurance Services Ltd.
Oasis Investments 2 Ltd.
Oasis Investments Limited
Oasis Real Estate Company, Ltd.
Operadora FMA, S.A. de C.V.
Oriental Equity Holdings Limited
Pacific Employers Insurance Company
Pacific Indemnity Company
Paget Reinsurance Ltd.
Pembroke Reinsurance, Inc.
Penn Millers Agency, Inc.
Penn Millers Holding Corporation
Penn Millers Insurance Company
PMMHC Corp.
Proclaim America, Inc.
PT ACE Jaya Proteksi
PT Asuransi Chubb Indonesia
PT Jaya Prima Auto Center
PT Jaya Proteksi Takaful
PT. ACE Life Assurance
PT. ADI Citra Mandiri
Rain and Hail Financial, Inc.
17
Rain and Hail Insurance Service de Mexico, S.A. de C.V.
Rain and Hail Insurance Service International, Inc.
Rain and Hail Insurance Service, Inc.
Rain and Hail Insurance Service, Ltd.
Rain and Hail L.L.C.
Recovery Services International, Inc.
Rhea International Marketing (L) Inc.
Ridge Underwriting Agencies Limited
RIYAD Insurance Company Ltd.
Russian Reinsurance Company
S.E.O.S. Limited
Samaggi Insurance PCL
Scarborough Property Holdings Ltd.
Servicios ACE INA, S.A. de C.V.
Siam Liberty Insurance Broker Co., Ltd.
Siam Marketing & Analytics Company Limited
Sovereign Risk Insurance (Dubai) Limited
Sovereign Risk Insurance Ltd.
Sullivan Kelly of Arizona, Inc.
Sullivan Kelly, Inc.
Texas Pacific Indemnity Company
Transit Air Services, Inc.
Ventas Personales Limitada
Vigilant Insurance Company
Westchester Fire Insurance Company
Westchester Specialty Insurance Services, Inc.
Westchester Surplus Lines Insurance Company
18
ANNEX B
Affiliates of American International Group, Inc.
AIG Capital Corporation
AIG Credit Corp.
AIG Global Asset Management Holdings Corp.
AIG Asset Management (Europe) Limited
AIG Asset Management (U.S.), LLC
AIG Global Real Estate Investment Corp.
Mt. Mansfield Company, Inc.
AIG Federal Savings Bank
AIG Financial Products Corp.
AIG-FP Matched Funding Corp.
AIG Management France S.A.
AIG Matched Funding Corp.
AIG Funding, Inc.
AIG Global Services, Inc.
AIG Shared Services Corporation
AIG Life Insurance Company (Switzerland) Ltd.
AIG Markets, Inc.
AIG Trading Group Inc.
AIG International Inc.
AIUH LLC
AIG Property Casualty Inc.
AIG Claims, Inc.
Health Direct, Inc.
AIG PC Global Services, Inc.
AIG North America, Inc.
AIG Property Casualty International, LLC
AIG APAC HOLDINGS PTE. LTD.
AIG Asia Pacific Insurance Pte. Ltd.
AIG Australia Limited
AIG Insurance Hong Kong Limited
AIG Insurance New Zealand Limited
AIG Malaysia Insurance Berhad
AIG Philippines Insurance, Inc.
AIG Taiwan Insurance Co., Ltd.
AIG Vietnam Insurance Company Limited
19
PT AIG Insurance Indonesia
Thai CIT Holding Co., Ltd
AIG Insurance (Thailand) Public Company Limited
AIG Central Europe & CIS Insurance Holdings Corporation
UBB-AIG Insurance Company AD
AIG Egypt Insurance Company S.A.E.
AIG Europe Holdings Limited
Ageas Protect Limited
AIG Europe Limited
AIG Germany Holding GmbH
AIG Investments UK Limited
AIG Israel Insurance Company Limited
AIG Japan Holdings Kabushiki Kaisha
American Home Assurance Co., Ltd.
AIU Insurance Company, Ltd.
The Fuji Fire and Marine Insurance Company, Limited
AIG Fuji Life Insurance Company, Limited
AIG MEA Holdings Limited
AIG CIS Investments, LLC
AIG Insurance Company, CJSC
AIG Insurance Limited
AIG Sigorta A.S.
Johannesburg Insurance Holdings (Proprietary) Limited
AIG Life South Africa Limited
AIG South Africa Limited
Private Joint-Stock Company AIG Ukraine Insurance Company
AIG PC European Insurance Investments Inc.
Ascot Corporate Name Limited
AIG Insurance Company China Limited
American International Overseas Limited
AIG Chile Compania de Seguros Generales S.A.
AIG Cyprus Limited
AIG Seguros, El Salvador, Sociedad Anonima
AIG Vida, Sociedad Anonima, Seguros de Personas
CHARTIS Takaful-Enaya B.S.C. (c)
La Meridional Compania Argentina de Seguros S.A.
American International Reinsurance Company, Ltd.
Chartis Latin America Investments, LLC
AIG Brazil Holding I, LLC
20
AIG Seguros Brasil S.A.
AIG Insurance Company-Puerto Rico
AIG Latin America I.I.
AIG Seguros Colombia S.A.
AIG Seguros Guatemala, S.A.
AIG Seguros Mexico, S.A. de C.V.
AIG Seguros Uruguay S.A.
AIG Uganda Limited
American International Underwriters del Ecuador S.A.
AIG-Metropolitana Cia de Seguros y Reaseguros S.A.
Inversiones Segucasai, C.A.
C.A. de Seguros American International
Underwriters Adjustment Company, Inc. (Panama)
AIG MEA Investments and Services, Inc.
AIG Lebanon SAL
AIG MEA Limited
AIG Kenya Insurance Company Limited
CHARTIS Investment Holdings (Private) Limited
Chartis Kazakhstan Insurance Company Joint Stock Company
AIG Travel, Inc.
AIG Travel Assist, Inc.
AIG Travel Asia Pacific Pte. Ltd.
AIG Travel EMEA Limited
Travel Guard Americas LLC
AIG Travel Insurance Agency, Inc.
Livetravel, Inc.
Travel Guard Group, Inc.
WINGS International SAS
AIG Property Casualty U.S., Inc.
AIG Aerospace Insurance Services, Inc.
AIG Assurance Company
AIG Canada Holdings Inc.
AIG Insurance Company of Canada
AIG Property Casualty Insurance Agency, Inc.
AIG Property Casualty Company
AIG Specialty Insurance Company
American Home Assurance Company
Commerce and Industry Insurance Company
Eaglestone Reinsurance Company
21
Granite State Insurance Company
Illinois National Insurance Co.
Lexington Insurance Company
Chartis Excess Limited
Morefar Marketing, Inc.
National Union Fire Insurance Company of Pittsburgh, Pa.
American International Overseas Association
American International Realty Corp.
National Union Fire Insurance Company of Vermont
Pine Street Real Estate Holdings Corp.
New Hampshire Insurance Company
New Hampshire Insurance Services, Inc.
Risk Specialists Companies, Inc.
Risk Specialists Companies Insurance Agency, Inc.
Agency Management Corporation
The Gulf Agency, Inc.
Design Professionals Association Risk Purchasing Group, Inc.
The Insurance Company of the State of Pennsylvania
AM Holdings LLC
American Security Life Insurance Company Limited
Chartis Azerbaijan Insurance Company Open Joint Stock Company
Maiden Lane III LLC
MG Reinsurance Limited
SAFG Retirement Services, Inc.
AIG Life Holdings, Inc.
AGC Life Insurance Company
AIG Life of Bermuda, Ltd.
American General Life Insurance Company
AIG Advisor Group, Inc.
Financial Service Corporation
FSC Securities Corporation
Royal Alliance Associates, Inc.
SagePoint Financial, Inc.
Woodbury Financial Services, Inc.
SunAmerica Asset Management, LLC
The United States Life Insurance Company in the City of New York
The Variable Annuity Life Insurance Company
Valic Retirement Services Company
SunAmerica Life Reinsurance Company
22
United Guaranty Corporation
AIG United Guaranty Agenzia di Assicurazione S.R.L.
AIG United Guaranty Insurance (Asia) Limited
AIG United Guaranty Mexico, S.A.
AIG United Guaranty Re Limited
United Guaranty Insurance Company
United Guaranty Mortgage Insurance Company
United Guaranty Mortgage Insurance Company of North Carolina
United Guaranty Partners Insurance Company
United Guaranty Residential Insurance Company
United Guaranty Commercial Insurance Company of North Carolina
United Guaranty Credit Insurance Company
United Guaranty Mortgage Indemnity Company
United Guaranty Residential Insurance Company of North Carolina
United Guaranty Services, Inc.
23
ANNEX C
Affiliates of Argo Group
The Argo Foundation
PXRE Capital Statutory Trust II
PXRE Capital Statutory Trust V
PXRE Capital Trust VI
Argo International Holdings AG
Argonaut Services GmbH
Argo Re, Ltd.
Argo Irish Holdings I, Ltd.
Argo Irish Holdings II
Argo Brasil Participacões Ltd.
Argo Re Escritório de Representação no Brasil Ltda.
PXRE Reinsurance (Barbados), Ltd.
Mid Atlantic Risk Systems, Ltd.
Argo Re DIFC, Ltd.
Argo International Holdings, Ltd.
Argo Underwriting Agency, Ltd.
Argo Management Services, Ltd.
Argo Management Holdings, Ltd.
Argo Managing Agency, Ltd.
Argo Direct, Ltd.
Argo (No. 604), Ltd.
Argo (No. 616), Ltd.
Argo (No. 607), Ltd.
Argo (No. 617), Ltd.
Argo (No. 703), Ltd.
Argo (No. 704), Ltd.
Argo (Alpha), Ltd.
Argo (Beta), Ltd.
Argo (Chi), Ltd.
Argo (Delta), Ltd.
Argo (Epsilon), Ltd.
ArgoGlobal Underwriting Asia Pacific Pte Ltd.
ArgoGlobal Holdings (Malta) Ltd
ArgoGlobal SE
24
Argo Financial Holding, Ltd. (Ireland)
Argo Solutions, SA
Argo Financial Holding (Brazil) Limited
Argo Seguras Brasil, SA
Argo Group US, Inc.
Argonaut Group Statutory Trust
Argonaut Group Statutory Trust III
Argonaut Group Statutory Trust IV
Argonaut Group Statutory Trust V
Argonaut Group Statutory Trust VI
Argonaut Group Statutory Trust VII
Argonaut Group Statutory Trust VIII
Argonaut Group Statutory Trust IX
Argonaut Group Statutory Trust X
Argonaut Management Services, Inc.
Argus Reinsurance Intermediaries, Inc.
Argo Group Fund to Secure the Future
Alteris, Inc
Sonoma Risk Management, LLC
John Sutak Insurance Brokers, Inc.
Trident Insurance Services, LLC
Alteris Insurance Services, Inc.
Canterbury Claims Services, Inc.
Colony Management Services, Inc.
Colony Agency Services, Inc.
Argonaut Claims Management, LLC
Argonaut Claims Services, Ltd.
Colony Insurance Company
Colony Specialty Insurance Company
Colony National Insurance Company
Argonaut Insurance Company
Argonaut-Midwest Insurance Company
Argonaut-Southwest Insurance Company
Argonaut Great Central Insurance Company
Insight Insurance Services, Inc.
Select Markets Insurance Company
Argonaut Limited Risk Insurance Company
Central Insurance Management, Inc.
Grocers Insurance Agency, Inc.
25
AGI Properties, Inc.
Rockwood Casualty Insurance Company
Somerset Casualty Insurance Company
Coal Operators Indemnity Company
ARIS Title Insurance Corporation
26
ANNEX D
Affiliates of Hartford Financial Services Group, Inc.
Hartford Accident and Indemnity Company
Hartford Casualty Insurance Company
Hartford Fire Insurance Company
Hartford Insurance Company of Illinois
Hartford Insurance Company of the Midwest
Hartford Insurance Company of the Southeast
Hartford Lloyd’s Insurance Company
Hartford Underwriters Insurance Company
Nutmeg Insurance Company
Omni Indemnity Company
Omni Insurance Company
Pacific Insurance Company, Ltd.
Property and Casualty Insurance Company of Hartford
Trumbull Insurance Company
Twin City Fire Insurance Company
The Hartford International Financial Services Group, LLC. (U.S.)
Hartford International Mangement Services Company, LLC (U.S.)
Hartford Life Insurance K.K. (Japan)
Hartford Life International, Ltd. (U.S.)
Hartford Management, Ltd. (Bermuda)
Heritage Reinsurance Company, Ltd. (Bermuda)
Icatu Hartford Capitalizaçao, S.A. (Brazil)
New Ocean Insurance Company, Ltd. (Bermuda)
Hartford Investments Canada Corp. (Canada)
Hartford Life and Accident Insurance Company
Hartford Life and Annuity Insurance Company
Hartford Life Insurance Company
Hartford International Life Reassurance Corporation
The Hartford Mutual Funds, Inc.
PLANCO Financial Services, Inc.
Woodbury Financial Services, Inc.
HartRe Company, LLC
Hartford Investment Financial Services, LLC
Hartford Investment Management Company
Hartford Investment Services, Inc.
1st Ag Choice, Inc.
27
Business Management Group, Inc.
Hartford - Comprehensive Employee Benefit
Service Company
Hartford Risk Management, Inc.
Horizon Management Group, LLC
Specialty Risk Services, Inc.
Trumbull Services, LLC
28
ANNEX E
Affiliates of Enstar Group Limited
Cumberland Holdings Limited
Enstar Australia Holdings Pty Limited
Enstar Australia Limited
Cranmore (Australia) Pty Limited
AG Australia Holdings Limited
Gordian Runoff Limited
Shelly Bay Holdings Limited
Harrington Sound Limited
Enstar Limited
Enstar (EU) Holdings Limited
Enstar (EU) Limited
Cranmore (UK) Limited
Enstar (EU) Finance Limited
Cranmore (Bermuda) Limited
Cranmore (Asia) Limited
Cranmore (Asia) Pte Limited
Enstar Brokers Limited
Castlewood Limited
Bantry Holdings Ltd.
Blackrock Holdings Ltd.
Kinsale Brokers Limited
Enstar Insurance Management Services Ireland Limited
Enstar Investment Management Limited
Cranmore Insurance & Reinsurance Services Europe Limited
B.H. Acquisition Limited
Brittany Insurance Company Ltd.
Paget Holdings GmbH Limited
Kenmare Holdings Limited
Fitzwilliam Insurance Limited
Revir Limited
River Thames Insurance Company
Hillcot Underwriting Management Limited
Overseas Reinsurance Corporation Limited
Regis Agencies Limited
Hudson Reinsurance Company Limited
29
Global Legacy Acquisition LP
Chatsworth Limited
Harper Holding Sarl
Harper Insurance Limited
Enstar Holdings (US) Inc.
Enstar (US) Inc.
Enstar New York, Inc
Cranmore (US) Inc.
Enstar Investments, Inc.
Sun Gulf Holdings, Inc.
Capital Assurance Services, Inc.
CLIC Holdings, Inc.
PWAC Holdings, Inc.
PW Acquisition Co.
Providence Washington Insurance Company
Clarendon Holdings, Inc.
Clarendon National Insurance Company
Clarendon America Insurance Company
SeaBright Holdings, Inc.
SeaBright Insurance Company
Paladin Managed Care Services, Inc.
Point Sure Insurance Services, Inc.
Sussex Holdings, Inc.
Sussex Insurance Company
Sussex Specialty Insurance Company
Mercantile Indemnity Company Limited
Virginia Holdings Ltd.
Seaton Insurance Company
Cavell Holdings Limited
Courtenay Holdings Ltd
Enstar Acquisitions Limited
Goshawk Insurance Holdings Limited
Goshawk Holdings (Bermuda) Limited
Rosemont Reinsurance Ltd
Goshawk Dedicated Limited
Simcoe Holdings Limited
Electricity Producers Insurance Company (Bermuda) Limited
Royston Holdings Limited
Royston Run-off Ltd
30
Unionamerica Holdings Limited
Unionamerica Acquisition Company Limited
Unionamerica Insurance Company Limited
Rombalds Limited
Comox Holdings Ltd
Bosworth Run-Off Limited
Sundown Holdings Ltd
Oceania Holdings Ltd.
Inter-Ocean Holdings Ltd
Inter-Ocean Reinsurance Company Ltd.
Inter-Ocean Reinsurance (Ireland) Ltd.
Flatts Limited
Marlon Insurance Company Limited
The Copenhagen Reinsurance Company (UK) Limited
Shelbourne Group Limited
SGL No 1 Ltd.
SGL No 3 Ltd.
Shelbourne Syndicate Services Limited
Northshore Holdings Limited
Arden Reinsurance Ltd
Alopuc Limited
31
ANNEX F
Affiliates of TIG Insurance Company
Arbor Memorial Services Inc.
HWIC Asia Fund
105 Adelaide Partnership
H Investments Limited
Thomas Cook (India) Limited
Grivalia Properties Real Estate Investment Company
AgriGroupe Investments LP
Insurance Technology International Inc.
LSA Insurance Services Ltd.
The McLennan Group Insurance Inc.
The McLennan Group Life Insurance Inc.
Zenith Insurance Services Inc.
Northbridge Commercial Insurance Corporation
Cara Operations Limited
Gen5 Networks Ltd.
Causeway Restaurants Ltd.
0792688 B.C. Ltd.
2370040 Ontario Limited
2446502 Ontario Inc.
1762418 Ontario Inc.
2327632 Ontario Inc.
2329649 Ontario Inc.
Milestone’s Restaurants South Inc.
Kelsey’s Neighbourhood Bar & Grill Limited
Kelsey’s Neighbourhood Bar & Grill Inc.
Montana’s Cookhouse Saloon Limited
Montana’s Cookhouse Saloon Inc.
Montana’s Cookhouse (Michigan) Inc.
Montana’s Cookhouse (Tonawanda) Inc.
Montana’s Restaurants Group Inc.
Prime Restaurants of America, Inc.
Prime Pubs of America, Inc.
FKAPRA, LLC
Northbridge Professional Transport
Training Inc.
32
Federated Insurance Company of Canada
Keg Restaurants Ltd.
Keg Restaurants U.S., Inc.
Contact + Insurance Network Ltd.
Les services d’assurance le Carrefour Itee
170 University Partnership
1874616 Ontario Limited
Northbridge Financial Corporation
CRC Reinsurance Limited
Fairfax India Holdings Corporation
FIH Mauritius Investments Ltd.
FIH Private Investments Ltd.
Hamblin Watsa Investment Counsel Ltd.
Faircross Holdings Corporation
Noro Limited
MFXchange Holdings Inc.
MFXchange (Ireland) Limited
MFXchange US, Inc.
MFX Roanoke, Inc.
7948883 Canada Inc.
8810605 Canada Inc.
FFHL Limited Partnership
KSP Holdco Inc.
Kitchen Stuff Plus, Inc.
William Ashley China Corporation
William Ashley Canada Corporation
1865713 Ontario Inc.
Sporting Life Inc.
Tommy & Lefebvre Inc.
I Investments Limited
8653291 Canada Inc.
Pethealth Inc.
VioVet Ltd.
PetCare Insurance Holdings Ltd.
PTZ Insurance Brokers Ltd.
Pethealth Services Inc.
Pethealth Software Solutions Inc.
PTZ Insurance Agency
Pethealth Services (USA) Inc.
33
Pet Protect Limited
Pethealth Services (UK) Ltd.
Animal Dispensaries Limited
1823671 Ontario Limited
Advent Capital (Holdings) Ltd.
7817819 Canada Limited
Polskie Towarzystwo Reasekuracji Spolka Akcyjna
Fairfax Brasil Participagdes Ltda.
Fairfax Brasil Seguros Corporativos S.A.
FIHC Share Option Corp.
FFHIL Group Ltd.
Brit Limited
Brit Insurance Holdings Limited
Brit Insurance (Gibraltar) PCC Limited
Brit Group Finance (Gibraltar) Limited
Brit Group Finance Limited
Brit Group Services Limited
Brit Pension Trustee Limited
Brit Corporate Services Limited
Brit Corporate Secretaries Limited
Brit Insurance Services USA, Inc.
Brit Syndicates Limited
Brit Insurance Services Limited
Brit UW Limited
BGS Services (Bermuda) Limited
Brit Investment Holdings Limited
Brit Insurance Holdings B.V.
Brit Overseas Holdings S.i.r.l.
American Safety Insurance Holdings Ltd.
American Safety UK Limited
Fairfax Holdings Inc.
Fairfax (Barbados) International Corp.
TIG Insurance (Barbados) Limited
Fairfax Capital Private Limited
Mohawk River Insurance SCC Ltd.
Fairfax Middle East Holdings Inc.
Gulf Insurance Company
Petrochem Holding Co. Ltd.
Pakit International Trading
34
FFH Management Services Limited
Wentworth Insurance Company Ltd.
FFi Limited Partnership
Fairbridge Capital (Mauritius) Limited
Fairbridge Investments (Mauritius) Limited
Fairbridge Capital Private Limited
Thomas Cook (Mauritius) Holding Company Limited
Thomas Cook (Mauritius) Operations Co. Ltd.
Thomas Cook (Mauritius) Holidays Ltd.
Thomas Cook (Mauritius) Travel Ltd.
Travel Corporation (India) Limited
TC Visa Services (India) Limited
Thomas Cook Insurance Services (India) Limited
Sterling Holiday Resorts (India) Limited
Sterling Holiday Resorts (Kodaikanal) Limited
Sterling Holidays (Ooty) Limited
Thomas Cook Tours Ltd.
India Horizon Marketing Services Ltd.
Thomas Cook Lanka (Private) Limited
Quess Corp. Limited
Aravon Services Private Limited
QUESSCORP HOLDINGS PTE. LTD.
Quess Corp (USA) Inc.
Brainhunter Systems Ltd.
Mindwire Systems Ltd.
Brainhunter Companies, LLC
Brainhunter Companies Canada Inc.
Magne IKYA Infotech, Inc.
CoAchieve Solutions Private Limited
IKYA Business Services Pvt. Ltd.
MFX Infotech Private Limited
Fairfax Asia Limited
Union Assurance General Limited
FAL Corporation
ICICI Lombard General Insurance Company Limited
ANT Success Company Limited
Falcon Insurance Public Company Limited
First Capital Insurance Limited
Prime Underwriting Managers Pte. Ltd.
35
Singapore Reinsurance Corporation Limited
Falcon Insurance Company (Hong Kong) Ltd.
Falcon (1998) Company Limited
The Pacific Insurance Berhad
PT. Fairfax Insurance Indonesia
Colonnade Finance S.i.r.l.
Praktiker Hellas Commercial Societe
Anonyme
Stonebridge Holding S.i.r.l.
Stonebridge Re S.A.
TIG Bermuda Ltd.
Fairfax Luxembourg Holdings S.i.r.l.
RiverStone Holdings Limited
RiverStone Corporate Capital Limited
RiverStone Corporate Capital 2 Limited
RiverStone Managing Agency Limited
RiverStone Management Limited
Sphere Drake Leasing Limited
Sphere Drake Acquisitions (U.K.) Limited
RiverStone Insurance Limited
RiverStone Insurance (UK) Limited
Fairfax (US) Inc.
FMAH, LLC
Crum & Forster Holdings Corp.
United States Fire Insurance Company
Hartville Group, Inc.
Fairmont Specialty Insurance Agency
Wag’N Pet Club, Inc.
Crum & Forster Specialty Insurance Company
TRG Holding Corporation
Fairmont Specialty Insurance Managers, Inc.
Zenith National Insurance Corp.
American Underwriters Insurance Company
International Specialty, Inc.
Environmental Insurance Agency, Inc.
The Redwoods Group, Inc.
The North River Insurance Company
Seneca Insurance Company, Inc.
MTAW Insurance Company
36
Seneca Risk Services, Inc.
Seneca Specialty Insurance Company
Excelsior Claims Administrators, Inc.
Crum and Forster Insurance Company
Crum & Forster Indemnity Company
First Mercury Financial Corporation
First Mercury Insurance Company
First Mercury Emerald Insurance Services, Inc.
CoverX Corporation
FMR Real Estate LLC
RiverStone Group LLC
RiverStone Resources LLC
RiverStone Claims Management LLC
Zenith Insurance Company
ZNAT Insurance Company
Zenith of Nevada, Inc.
1390 Main Street LLC
Zenith Insurance Management Services, Inc.
Zenith Development Corp.
Cunningham Lindsey Claims Management, Inc.
RSKCO Services, Inc.
Fairfax Financial (US) LLC
American Safety Holdings II Corporation
American Safety Administrative Services, Inc.
American Safety Insurance Services, Inc.
American Safety Claims Services, Inc.
Bluestone Agency, Inc.
Bluestone Surety, Ltd.
TIG Holdings, Inc.
TIG Holdings 4, Inc.
Commonwealth Insurance Company of America
General Fidelity Insurance Company
American Safety Holdings Corp.
American Safety Casualty Insurance Company
American Safety Indemnity Company
Resolution Group Reinsurance (Barbados) Limited
Clearwater Insurance Company
Clearwater Insurance Trust I
The Resolution Group, Inc.
37
Resolution Reinsurance Services Corporation
St. John’s Insurance Company Limited
Odyssey US Holdings Inc.
Odyssey Re Holdings Corp.
Odyssey Reinsurance Company
Clearwater Select Insurance Company
Hudson Insurance Company
Hudson Crop Insurance Services, Inc.
Napa River Insurance Services, Inc.
Hudson Specialty Insurance Company
Hudson Excess Insurance Company
Newline Holdings UK Limited
Newline Underwriting Management Limited
Newline Corporate Name Limited
Newline Underwriting Limited
Newline Asia Services Pte. Ltd.
Newline Insurance Company Limited
Newline Australia Insurance Pty. Ltd.
Newline Malaysia Limited
Odyssey Holdings Latin America, Inc.
Odyssey Reinsurance Company Escrit6rio de
Representag Rono Brasil Ltda.
Odyssey Services, SA de CV
O.R.E Holdings Limited
Cheran Enterprises Private Limited
Cherraan Propertiees Limited
Vasantha Mills Limited
38
ANNEX G
Parents, Subsidiaries, and Affiliates of
The Travelers Casualty and Surety Company
350 Market Street, LLC
8527512 Canada Inc.
8527512 Canada Inc.
American Equity Insurance Company
American Equity Specialty Insurance Company
American Marine Management Services, Inc.
Aprilgrange Limited
Arch Street North LLC
Arrowhead Company, LLC
Auto Hartford Investments, LLC
Bayhill Restaurant II Associates
Black Mountain Ranch Limited Partnership
BMR Sports Properties, Inc.
Cadet Limited, LLC
Camperdown Corporation
Commercial Guaranty Insurance Company
Constitution Plaza, Inc.
Constitution State Services LLC
Crystal Brook, LLC
Discover Property & Casualty Insurance Company
Discover Specialty Insurance Company
Durham Holding, LLC
Eastern Asset, LLC
English Turn Fidelity Realty, Inc.
English Turn LLC
English Turn Realty Management, Inc.
F&G U.K. Underwriters Limited
Farmington Casualty Company
Fidelity and Guaranty Insurance Company
Fidelity and Guaranty Insurance Underwriters, Inc.
Fidelity English Turn Club LLC
First Floridian Auto and Home Insurance Company
Fog City Fund, LLC
Gulf Underwriters Insurance Company
J. Malucelli Controle de Riscos, Ltda.
39
J. Malucelli Latam, S.A.
J. Malucelli Participacoes em Seguros e Resseguros S.A.
J. Malucelli Ressegurador S.A.
J. Malucelli Seguradora S.A.
J. Malucelli Seguros S.A.
Jupiter Holdings, Inc.
Laurel Village Fidelity Realty, Inc.
Laurel Village I Limited Partnership
Laurel Village II Limited Partnership
Laurel Village III Limited Partnership
Laurel Village IV Limited Partnership
Laurel Village Joint Venture Partnership
Laurel Village Swinford Limited Partnership
Laurel Village Tower A Limited Partnership
Laurel Village Tower B Limited Partnership
Laurel Village Tower C Limited Partnership
Lone Rock Timber Investments I, LLC
Lone Rock Timber Investments II, LLC
MMI Capital Trust I
Northbrook Holdings, Inc.
Northfield Insurance Company
Northland Casualty Company
Northland Insurance Company
Oregon Evergreen Investor I, LLC
Phoenix UK Investments LLC
Promenade Partners, LLC
Redstart, LLC
Select Insurance Company
SPC Insurance Agency, Inc.
St. Paul Fire and Casualty Insurance Company
St. Paul Fire and Marino Insurance Company
St. Paul Guardian Insurance Company
St. Paul London Properties, Inc.
St. Paul Mercury Insurance Company
St. Paul Protective Insurance Company
St. Paul Surety Europe Limited
St. Paul Surplus Lines Insurance Company
Standard Fire Properties, LLC
Standard Fire UK Investments, LLC
40
Sutton Holdco, LLC
Symmetry Growth Capital II, LLC
TCI Global Services, Inc.
The Automobile Insurance Company of Hartford, Connecticut
The Charter Oak Fire Insurance Company
The Dominion of Canada General Insurance Company
The Phoenix Insurance Company
The Premier Insurance Company of Massachusetts
The Standard Fire Insurance Company
The Travelers Casualty Company
The Travelers Companies, Inc.
The Travelers Home and Marine Insurance Company
The Travelers Indemnity Company
The Travelers Indemnity Company of America
The Travelers Indemnity Company of Connecticut
The Travelers Lloyds Insurance Company
Tiercel, LLC
TINDY Foreign. Inc.
TPC Investments Inc.
TPC UK Investments LLC
TravCo Insurance Company
Travelers (Bermuda) Limited
Travelers Asia Pte. Ltd.
Travelers Brazil Acquisition LLC
Travelers Brazil Holding, LLC
Travelers Casualty and Surety Company
Travelers Casualty and Surety Company of America
Travelers Casualty and Surety Company of Europe Limited
Travelers Casualty Company of Connecticut
Travelers Casualty Insurance Company of America
Travelers Casualty UK Investments LLC
Travelers Commercial Casualty Company
Travelers Commercial Insurance Company
Travelers Constitution State Insurance Company
Travelers Corporate Trustee Ltd.
Travelers Distribution Alliance, Inc.
Travelers Excess and Surplus Lines Company
Travelers Global, Inc.
Travelers Indemnity U.K. Investments LLC
41
Travelers Insurance Company Limited
Travelers Insurance Company of Canada
Travelers Insurance Group Holdings Inc.
Travelers Lloyds Management Company
Travelers Lloyds of Texas Insurance Company
Travelers London Limited
Travelers Management Limited
Travelers Marine, LLC
Travelers MGA, Inc.
Travelers Personal Insurance Company
Travelers Personal Security Insurance Company
Travelers Professional Risks Limited
Travelers Property Casualty Company of America
Travelers Property Casualty Corp.
Travelers Property Casualty Insurance Company
Travelers Real Estate, LLC
Travelers Special Services Limited
Travelers Syndicate Management Limited
Travelers Texas MGA, Inc.
Travelers TLD, LLC
Travelers Underwriting Agency Limited
United States Fidelity and Guaranty Company
Upper Lake Growth Capital, LLC
USF&G Capital I
USF&G Capital III
USF&G Retail Associates GP, Inc.
USF&G/Fidelity Retail Associates Limited Partnership
USF&G/Fidelity Retail Associates Limited Partnership
Vesbridge Partners, LP
Windamere II, LLC
Windamere III, LLC
Windamere, LLC
Yonkers Financing Corp.
42
ANNEX H
Affiliates of XL Group plc
Cumberland Holdings Limited
XL Group plc
Green Holdings Limited
XLIT Ltd.
XL Company Switzerland LLC
EXEL Holdings Limited
X.L. Property Holdings Limited
XL Insurance (Bermuda) Ltd
Mid Ocean Holdings Ltd.
XL London Market Group Ltd
Dornoch Limited
XL London Market Ltd- Syndicate 1209
XL Re Ltd
ECS Reinsurance Company Inc.
Fundamental Insurance Investments Ltd.
XL Underwriting Managers Ltd.
New Ocean Capital Management Limited
New Ocean Market Value Cat Fund Ltd.
New Ocean Focus Cat Fund Ltd.
Vector Reinsurance Ltd.
XL Re Europe SE
XL Insurance (Gibraltar) Limited
XL Re Latin America Ltd
XL Latin America Investments Ltd
XL Resseguros Brasil S.A.
XL Re Latin America (Argentina SA)
XL Re Latin America Ltd Escritório de Representaçăo no Brasil Ltda
XL (Brazil) Holdings Ltda
XL Services (Bermuda) Ltd
XL Life Ltd
Reeve Court General Partner Limited
Reeve Court 4 Limited Partnership
Reeve Court 6 Limited Partnership
XL Gracechurch Limited
XL Insurance (UK) Holdings Limited
43
XL Insurance Argentina S.A. Compañia de Seguros
XL Services UK Limited
XL Insurance Company SE
XL Insurance (China) Company Ltd
XL Seguros Brasil S.A.
XL Holdings Proprietary Limited
XL AB (PTY) Ltd
XL Financial Holdings (Ireland) Limited
XL Finance (Ireland) Limited
XL Services Canada Ltd.
X.L. America, Inc.
XL Financial Solutions, Inc.
XLA Garrison L.P.
XL Reinsurance America Inc.
Greenwich Insurance Company
Global Asset Protection Services, LLC
Global Asset Protection Services Company Limited
Global Asset Protection Services Consultancy (Beijing) Company Limited
XL Insurance America, Inc.
XL Select Insurance Company
XL Insurance Company of New York, Inc.
XL Group Investments LLC
XL Group Investments Ltd
XL Specialty Insurance Company
Indian Harbor Insurance Company
Global Ag Insurance Services, LLC
XL Global, Inc.
X.L. Global Services, Inc.
Eagleview Insurance Brokerage Services, LLC
XL Life and Annuity Holding Company
XL Life Insurance and Annuity Company
ECS, Inc. (In Liquidation)
XL Investments Ltd
XL Capital Products Ltd
Blunt Underwriting Services Limited
XL Insurance Guernsey Limited
Garrison Investments Inc.
XL (SPECIALTY) S.a.r.l.
XL (WESTERN EUROPE) S.a.r.l.
44
XL Swiss Holdings Ltd
XL Re Latin America (Argentina SA)
XL Insurance Switzerland Ltd
XL Services Switzerland Ltd
XL India Business Services Private Limited
XL Seguros Mexico SA de CV