January 19, 2022, opinions

Designated for publication

  • O’Brien’s Response Management, L.L.C. v. BP Exploration & Production, Inc., 20-30364, appeal from E.D. La.
    • Jones, J. (Jones, Clement, Graves), Graves, J., dissenting in part; insurance
    • Affirming in part, reversing in part, and remanding for further proceedings on claims for insurance coverage and indemnification regarding payment for BP’s liabilities for personal injury claims of employees of two companies (O’Brien’s and National Response Corporation or NRC) hired by BP to clean up after the Deepwater Horizon oil spill.
    • BP sought indemnity from the two responder companies for claims it paid for medical claims either as opt-outs to the B3 medical class settlement in the Deepwater Horizon MDL or as BELO (back-end litigation, or latent injury) claims, both as contractual indemnity and as an additional insured to policies issued to the Responders. On Rule 12(c) motions to dismiss on the pleadings, the district court held that (1) BP was not an additional insured under the Responders’ policies, (2) O’Brien’s was not required to indemnify BP “because BP violated the consent-to-settle, notice, and control-of-defense provisions of the BP-O’Brien’s Contract,” and (3) NRC was not required to indemnify BP because NRC wasn’t liable under the Responder Immunity Law.
    • The Court rejected the insurer’s argument that the “bumbershoot” policy it issued was distinct from the lower CGL policies to which it conceded BP was an additional insured. “Undoubtedly, bumbershoot policies can differ from standard CGL policies. … But the specific coverage overlap of Navigators’ bumbershoot policies with the Starr policy (which was modified to cover marine operations, after all), together with the bumbershoot policies’ direct reference to the Starr and COPS policies, refutes any meaningful distinction here. Therefore, the specific coverage provided by the policies is the relevant inquiry. The bumbershoot policies provide CGL-type coverage, so they are best understood as CGL policies under the BP-O’Brien’s Contract, and BP is an additional assured.”
    • The Court then held that the contractual language requiring BP to b an additional insured on “all policies” as provided in the insurance-requirements also included only the specifically referenced minimum coverages provided for in the contract, rather than the full amount of the actual obtained coverage. The Court then held that a CGL policy and a separate policy that provided coverage for events that were excluded from the CGL policy could not be combined to meet the minimum insurance amount, but that the excess insurance would be triggered by a single, non-combined amount.
    • The Court held that BP materially breached the notice, control-of-defense, and consent-to-settle requirements of the contractual indemnity with O’Brien’s when it entered into the B3 settlement with regard to the BELO claims. “BP’s strategy defeated the underlying purpose of the indemnity provisions: to ensure the indemnitor knew about a claim, led the defense, and agreed to all settlements or any compromise of the claims. Because BP’s breach was material, O’Brien’s is not required to indemnify the BELO claims.”
    • The Court, however, disagreed with the district court that BP breached notice and control-of-defense provisions for the B3 opt-out claims. The Court held that this was a fact-intensive question to be applied to each opt-out claim, and that the district court must develop that record in the first instance.
    • The Court held likewise as to the NRC-BP agreement’s contractual indemnity provision, that it required a case-by-case examination of entitlement to indemnity rather than a categorical approach to all opt-out B3 claims and BELO claims.
    • Judge Graves dissented in part, disagreeing with the majority opinion as to indemnification for B3 opt-out claims under the O’Brien’s-BP contract. “At the time of the Medical Settlement in November 2012, BP knew that some of the 1,638 opt-out B3 claims were from O’Brien’s employees. Because BP wanted indemnity from O’Brien’s, it should have immediately tendered the claims with known employer information. And for the claims without known employer information BP should have tendered the entire list of opt-outs to O’Brien’s. Then O’Brien’s would have had an opportunity to determine which opt-out claims were made by its employees.”


  • Ibarra-Avilez v. Garland, 19-60273, petition for review of BIA order
    • per curiam (Higginbotham, Stewart, Wilson), Higginbotham, J., concurring; immigration
    • Dismissing in part and denying in part Mexican citizen’s petition for review of BIA order dismissing appeal of immigration judge’s denial of his requests for asylum, withholding of removal, and protection under the Convention Against Torture.
    • Judge Higginbotham concurred. While compelled by the standard of deferential review to agree with the result, Judge Higginbotham wrote, “I write to shine a small light on the present realities, in hopes it may reach the desk of the beleaguered IJs and their review. The panel decision relies heavily on the formal steps that Mexico and Mexico City have taken recently to extend legal protections to transgender people, passing by the overwhelming evidence that violence against transgender women in Mexico has increased in recent years. It accents aspirational changes that have not materialized on the ground in Mexico—even in Mexico City. The record is replete with evidence of the persecution of transgender people in Mexico that postdate the country’s purported legal improvements. … To these eyes, Carolina Ibarra-Aviles will face a dangerous situation upon her return to Mexico. Yet, as the opinion details, Mexico has enacted numerous legal protections for transgender people and with the high bar for reversal, I concur in its judgment.”
  • Penaloza-Fuentes v. Garland, 19-60808, petition for review of BIA order
    • per curiam (Owen, Dennis, Ho), immigration
    • Granting in part Mexican citizen’s petition for review of BIA order denying his motion to reconsider or reopen, and remanding to the BIA for consideration under Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).
  • U.S. v. Lerma, 21-50277, appeal from W.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.