Exxonmobil Corporation v. National Union Fire Insurance Company of Pittsburgh, Pa, and Starr Indemnity & Liability Insurance Company ( 2023 )

Supreme Court of Texas
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No. 21-0936
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ExxonMobil Corporation,
Petitioner,
v.
National Union Fire Insurance Company of Pittsburgh, PA, and
Starr Indemnity & Liability Insurance Company,
Respondents
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On Petition for Review from the
Court of Appeals for the First District of Texas
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Argued February 23, 2023
JUSTICE YOUNG delivered the opinion of the Court.
Justice Lehrmann did not participate in the decision.
The law of this State has long recognized that the terms of a
separate contract may be incorporated by reference into an insurance
policy if that reference is clearly manifested in the terms of the policy
itself. This clear-manifestation requirement, along with the concomitant
duty to consult the separate contract only to the extent that the policy
1
requires it, follows from the rudimentary principle that courts must
enforce but not expand the parties’ agreement. The question presented
in this case is whether an insurance policy incorporates the payout
limits in an underlying service agreement. Based on ordinary rules of
contract interpretation and our precedents applying the incorporation-
by-reference doctrine, we hold that it does not. We accordingly reverse
the judgment of the court of appeals and remand the case to that court
for further proceedings.
The underlying facts are undisputed and arise from the same
incident we recently addressed in ExxonMobil Corp. v. Insurance Co. of
the State of Pennsylvania, 568 S.W.3d 650 (Tex. 2019). Exxon hired
Savage Refinery Services to work as an independent contractor at
Exxon’s refinery in Baytown, Texas. Their working relationship was
memorialized in a service agreement under which Savage promised to
obtain at least a minimum stated amount of liability insurance for its
employees and to name Exxon as an additional insured.1 Savage fulfilled
this contractual obligation and ultimately procured five different insurance
policies. National Union Fire Insurance Company, one of the respondents
1 The relevant provision of the agreement (with all emphasis added)
reads as follows:
[Savage] shall carry and maintain in force at least the following
insurances and amounts: . . . (2) its normal and customary Commercial
General Liability insurance coverage and policy limits or at least
$2,000,000, whichever is greater, providing coverage for injury, death or
property damage resulting from each occurrence . . . . Notwithstanding
any provision of an Order to the contrary, [Savage’s] liability insurance
policy(ies) described above shall: (i) cover [Exxon] and Affiliates as
additional insureds in connection with the performance of Services; and
(ii) be primary as to all other policies (including any deductibles or self-
insured retentions) and self-insurance which may provide coverage.
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in this case, underwrote two of them—a primary policy for general
commercial liability and an umbrella policy.2 A third policy was
underwritten by Starr Indemnity & Liability Insurance Company, the
other respondent before us.3
As we recounted in ExxonMobil, 568 S.W.3d at 652–54, the
eventual payout dispute between these parties (and others) arose from
a workplace accident at Exxon’s Baytown refinery in which two Savage
employees were severely burned. The employees sought compensation
for their injuries and later settled with Exxon for a collective amount
exceeding $24 million. About $5 million of that settlement money came
from some of Savage’s primary-insurance policies under which Exxon
was recognized as an “additional insured,” including the primary policy
underwritten by National Union, which was exhausted to its limits.
Exxon paid the rest of the settlement money out of pocket because
National Union and Starr both denied Exxon coverage under their
umbrella policies.
Exxon then sued both National Union and Starr for breach of
contract, asserting that both had wrongfully denied coverage. What
followed was a flurry of summary-judgment motions, largely centering
2The parties refer to these two policies as the “National Union
Commercial General Liability Policy” and the “Commercial Umbrella Liability
Policy.” For simplicity, we refer to them as the “primary policy” and the
“umbrella policy,” respectively.
3 Starr’s policy is a “bumbershoot” policy, which, as Starr explains, is a
marine insurance policy similar to a land-based commercial general liability
policy that operates as an umbrella to one or more different underlying policies.
As the court of appeals noted, “the Starr Bumbershoot Policy is an umbrella
policy.” 658 S.W.3d 305, 319 (Tex. App.—Houston [1st Dist.] 2021) (internal
quotations and citations omitted).
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on Exxon’s status as an “insured” under those umbrella policies and
whether Exxon’s service agreement with Savage otherwise limited its
entitlement to further policy proceeds. The trial court ultimately sided
with Exxon, ruling that National Union (but not Starr) was obligated
under its umbrella policy to reimburse Exxon for the roughly $20 million
it had paid in settling with the two injured employees.
National Union appealed and maintained that Exxon was not
insured under its umbrella policy. The court of appeals agreed with
National Union and reversed. 658 S.W.3d 305 (Tex. App.—Houston [1st
Dist.] 2021). The court concluded that the umbrella policy incorporated
the primary policy’s limits and that the primary policy in turn
incorporated the limits of the underlying service agreement, which (as
relevant here) required only commercial general liability insurance of a
specified minimum amount. Id. at 318. Thus, the court of appeals held,
“[b]ecause coverage available to Exxon as an additional insured under the
[primary policy], through its incorporation of the Exxon–Savage Contract,
makes clear that Exxon’s status as an additional insured is limited to
primary coverage, Exxon is not entitled to coverage under the [umbrella
policy] as an ‘additional insured.’” Id. For similar reasons, the court
affirmed the summary-judgment ruling in favor of Starr. Id. at 319–20.
We granted Exxon’s ensuing petition for review and now reverse.
The general principles of law in this area are well settled. As early
as 1886, this Court recognized as “a cardinal principle of . . . insurance
law” that “[t]he policy is the contract; and if outside papers are to be
imported into it, this must be done in so clear a manner as to leave no
doubt of the intention of the parties.” Goddard v. E. Tex. Fire Ins. Co.,
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1 S.W. 906, 907 (Tex. 1886). We have never strayed from this rule. Not
long before the turn of this century, Chief Justice Phillips wrote for a
unanimous Court that “Texas law has long provided that a separate
contract can be incorporated into an insurance policy by an explicit
reference clearly indicating the parties’ intention to include that contract
as part of their agreement.” Urrutia v. Decker, 992 S.W.2d 440, 442
(Tex. 1999) (citing Goddard, 1 S.W. at 907).
Our more recent cases follow the same paradigm. In re Deepwater
Horizon reiterated that “we rely on the policy’s language in determining
the extent to which, if any, we must look to an underlying service contract
to ascertain the existence and scope of additional-insured coverage.” 470
S.W.3d 452, 462 (Tex. 2015) (citing Evanston Ins. Co. v. ATOFINA
Petrochems., Inc., 256 S.W.3d 660, 668–69 (Tex. 2008)). And in our first
case addressing this very accident, we adhered to the same “well-settled
contract-construction principles” and rejected an insurer’s attempt to
nullify a subrogation waiver in a workers’-compensation policy by
invoking unincorporated terms in the underlying service contract.
ExxonMobil, 568 S.W.3d at 657, 662. “Other than defining who and
where by reference to an extrinsic contract,” we said, “no other limitations
are referenced, incorporated, or contemplated by the policy language.”
Id. at 660.
Together, these and other cases reflect three basic principles for
interpreting the meaning of an insurance policy: we begin with the text
of the policy at issue; we refer to extrinsic documents only if that policy
clearly requires doing so; and we refer to such extrinsic documents only
to the extent of the incorporation and no further. Any venture beyond
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the four corners of an insurance policy must be carefully limited to the
scope of that policy’s clearly authorized reference.
The proper inquiry here, therefore, must begin with National
Union’s umbrella policy, the relevant text of which provides as follows:
Insured means: . . . any person or organization, other than
the Named Insured, included as an additional insured
under Scheduled Underlying Insurance, but not for
broader coverage than would be afforded by such
Scheduled Underlying Insurance.
This text invites two limited and targeted inquiries: (1) who is insured
and (2) for what coverage?
As to the first inquiry, the umbrella policy expressly covers “any
person or organization” that is “included as an additional insured under
Scheduled Underlying Insurance.” The umbrella policy’s definition of
“Scheduled Underlying Insurance” includes National Union’s primary
policy and thus refers to the primary policy to determine who qualifies
as an “additional insured.” The primary policy, in turn, covers “[a]ny
person or organization” to which Savage is obligated by “any contract or
agreement” to provide insurance. It is for this limited reason that
Savage’s underlying service agreement is relevant: it is the “contract or
agreement” that obligates Savage to provide insurance for Exxon. None
of this should be a surprise. National Union has already recognized
Exxon as an additional insured under its primary policy. By incorporating
the primary policy for the limited purpose of identifying who is an insured,
the umbrella policy also insures Exxon.
But the umbrella policy does not insure Exxon for all purposes, of
course. We thus turn to the second inquiry that the umbrella policy’s
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reference to the primary policy invites. Specifically, the umbrella policy
disclaims “broader coverage” than the primary policy offers, thereby
preventing Exxon from demanding that National Union pay for losses
that the primary policy would not reach. Exxon does not demand
“broader coverage” in this sense. It seeks only the same coverage as the
primary policy but at the umbrella policy’s higher limits, given that the
primary policies have been exhausted.
The court of appeals and National Union, however, perceive the
umbrella policy’s disclaimer of “broader coverage” as playing the far
greater role of incorporating the payout limits of the service agreement.
For several reasons, we must disagree. First, the umbrella policy does
not say anything at all, even by reference, about the service agreement’s
payout limits, much less with the clarity that our cases would require
for incorporation.4 See ExxonMobil, 568 S.W.3d at 657 (authorizing the
use of extrinsic documents only “to the extent required by the policy”
(citation omitted)); Deepwater Horizon, 470 S.W.3d at 460 (“Unless
obligated to do so by the terms of the policy . . . we do not consider
coverage limitations in underlying transactional documents.”).
4 The court of appeals concluded otherwise through a multi-step process.
First, the court of appeals reasoned that even though the umbrella policy “did
not expressly incorporate the Exxon–Savage Contract by reference” (and,
indeed, the umbrella policy does not reference the service agreement at all), it
did incorporate the primary policy, “and the limits of coverage for Exxon as an
additional insured under the [primary policy], in turn, were informed by its
incorporation of the Exxon–Savage Contract.” 658 S.W.3d at 318 (emphasis
added). National Union correctly notes that incorporation requires no “magic
words” to be effective. The “informed by” standard employed by the court of
appeals, however, highlights the misstep in its analysis, which did not include
what our precedents require: finding a “clear manifestation” for incorporation
by reference. E.g., Deepwater Horizon, 470 S.W.3d at 460.
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Second, to the extent that we could read the umbrella policy to
reference the service agreement in this way, we find no limits in it that
the umbrella policy could adopt. The service agreement provides for a
minimum amount of insurance, not a maximum. See supra note 1
(quoting the service agreement’s terms). Whether Savage had to buy as
much insurance as it did is beside the point. What matters is that it did
obtain that insurance.
Third, the primary policy has its own payout limits, of course.
Such limits in primary policies are the very reason that parties need
umbrella policies. National Union argues, and the court of appeals held,
that the umbrella policy’s “limiting clause” would be “meaningless” if
Exxon could recover under it, given that it has already exhausted the
primary policies. 658 S.W.3d at 318. Interpreting “broader coverage” to
refer to payout limits, however, would give the umbrella policy a self-
defeating meaning, as an umbrella policy springs into action only when
the primary policy is exhausted. We could embrace such a result only if
the language the parties used clearly required it. But no such language
exists here, and there is no need to save the umbrella policy from
“meaningless” language by adopting a construction that renders the
policy itself largely meaningless. If “coverage” instead refers to the risks
and liabilities that the primary policy reaches—and not any other kind
of risk or liability—then the umbrella policy’s limiting language protects
the insurer from claims that are unlinked to the applicable primary policy.
This conclusion follows from conventional usage of “coverage” and
“umbrella insurance.” The former contemplates the risks covered, and
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the latter is triggered only by reaching the limits of other policies.5
National Union points us to no authority providing that “coverage” must
include payout limits in this context. Its own umbrella policy, in fact,
distinguishes between “coverage” and “limits.”6 In short, the contractual
text before us does not require departure from the settled understanding
that umbrella policies provide greater limits for the risks already covered
by primary policies.
In a similar vein, National Union argues that the umbrella policy
incorporates the service agreement beyond merely identifying “who” is
insured because the primary policy expressly says that an “additional
insured” is someone to whom Savage is contractually obligated to
furnish insurance “of the type provided by this policy.” Because the
service agreement obligates Savage to provide Exxon only primary
insurance, National Union contends, Exxon is entitled to nothing more.
5 E.g., Coverage, Black’s Law Dictionary (11th ed. 2019) (“[T]he risks
within the scope of an insurance policy.”); umbrella policy, Black’s Law
Dictionary, supra, (defining “umbrella policy” as an “insurance policy covering
losses that exceed the basic or usual limits of liability provided by other
policies”); Evanston, 256 S.W.3d at 667 (recognizing that an umbrella policy
did not “extend beyond what the underlying [primary] policy provides” and
looking to whether coverage extended to “sole negligence”); Traders State Bank
v. Cont’l Ins. Co., 448 F.2d 280, 283 (10th Cir. 1971) (“The word coverage is,
indeed, a term of art in the insurance industry, meaning the sum of all the
risks assumed under the policy.” (internal quotation omitted)); Aid Ass’n for
Lutherans v. U.S. Postal Serv., 321 F.3d 1166, 1176 (D.C. Cir. 2003) (“[T]he
word ‘coverage’ . . . usually refers to the inclusion or exclusion of specific risks
under an insurance policy.”).
6 The umbrella policy’s first page, for instance, provides that National
Union “agree[s] to provide coverage as follows,” and then lists “occurrences”
such as “bodily injury” and “property damage” “arising out of [Savage’s]
business.” On the same page, the policy provides that “[t]he amount we will
pay for damages is limited as described in Section IV. Limits of Insurance.”
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This contention, however, again violates the settled principles
that we have described above, in which we start with the umbrella policy
and refer to other documents only to the extent that the policy authorizes.
Whether the umbrella policy provides the same “type” of insurance as
the primary policy is immaterial to our decision7 because National
Union’s argument based on that word would require us to look to terms
in extrinsic documents that the umbrella policy did not incorporate. The
umbrella policy requires knowing whether the insured was covered by
the primary policy, as Exxon was; the umbrella policy does not further
incorporate the primary policy’s various provisions or definitions. The
umbrella policy makes no mention of the “type” of insurance provided or
even what was minimally required by the service agreement. We
therefore need not look to the primary policy or service agreement to
determine matters outside the terms of the umbrella policy.
* * *
For these reasons, we hold that Exxon is an “insured” under
National Union’s umbrella policy and therefore reverse the judgment of
7 Nor do we regard the argument as one that would likely affect the
outcome regardless. National Union itself has described the umbrella policy
as a “Commercial Umbrella Liability Policy,” which is consistent with our
conclusion that the umbrella and primary policies do not differ in their
coverage—that is, they cover the same type of risks. It is also consistent with
how the Fifth Circuit understands commercial general liability policies in
similar contexts. See, e.g., O’Brien’s Response Mgmt., L.L.C. v. BP Expl. &
Prod., Inc., 24 F.4th 422, 429–30 (5th Cir. 2022) (“The bumbershoot policies
provide CGL-type coverage, so they are best understood as CGL policies . . . .”);
see also id. at 428 & n.7 (noting that a contract “required . . . four types of
policies”: CGL as well as “[w]orkers’ compensation, employer’s liability, and
automobile liability insurance”). We reserve for a future case in which it would
be dispositive, however, what “type” means when used in this context.
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the court of appeals as to National Union. Because the court of appeals’
holding with respect to Starr’s bumbershoot policy was predicated on a
similar error, we also reverse the judgment below in favor of Starr. We
accordingly remand the case to the court of appeals for further
proceedings.8
Evan A. Young
Justice
OPINION DELIVERED: April 14, 2023
8 Given the court of appeals’ disposition, it had no occasion to address
Starr’s distinct arguments. It may do so now in the first instance.
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