Pilkington North America will be allowed to continue seeking up to $85 million in coverage from Mitsui Sumitomo Insurance Company of America (MSI) in addition to the $15 million it’s already received following a tornado that damaged its Ottawa, Ill., plant in February 2017.
U.S. District Judge John Keenan has granted a motion by Pilkington North America to dismiss MSI’s counterclaims in which it sought to cap its coverage duty at $15 million and to prevent Pilkington from seeking further recovery.
Pilkington North America experienced a $60 to $100 million loss after a tornado struck its glass manufacturing facility in Ottawa. It is seeking compensation through a commercial property and business interruption insurance policy issued by MSI to Pilkington’s parent company, NSG Group. Pilkington alleges that MSI revised the insurance policy fraudulently so that the loss caused by the tornado would not be fully compensable. It has also alleged that its insurance broker at the time, Aon Risk Services Central, provided faulty advice while brokering the policy, which allowed MSI’s fraud to succeed.
Pilkington has asserted claims against MSI, including reformation of contract, breach of contract and breach of the implied duty of good faith and fair dealing. Pilkington has asserted claims against Aon for breach of contract, intentional misrepresentation, negligence, negligent misrepresentation and breach of fiduciary duty.
“Pilkington alleges that MSI misrepresented the changes it proposed by means of a revision (the endorsement) to an active insurance policy MSI had issued to the NSG Group for the 2015–2016 policy period. MSI proposed the changes to Aon, who failed to notify Pilkington that, in addition to changing certain currency valuations in the policy, the endorsement also revised the wording of a sublimit applicable to certain types of windstorms. Aon failed to inform Pilkington that the endorsement would substantially reduce coverage for windstorms such as the tornado,” reads the order.
The change to the local policy occurred in an effort to mirror it with NSG Group’s master policy, which puts a $15 million sublimit on windstorm damage.
Judge Keenan dismissed MSI’s request to issue an order declaring that coverage for losses arising from a windstorm in the U.S. is subject to a $15 million sublimit and estopping Pilkington from seeking to recover any additional amounts.
“As discussed above, the purported unconscionable injury MSI seeks to prevent is Pilkington’s recovery from it due to MSI’s improper revisions to the windstorm sublimit. MSI counters that Pilkington may seek to hold it liable based on ‘an innocent, misleading statement’ by MSI, which would not give rise to a sufficient finding of unclean hands,” reads the judge’s order. “The Court is not persuaded. As noted in the Court’s prior decisions, insurance contracts involve unique promises, including an element of trust from a policyholder to its insurer—here, Pilkington’s trust that if it paid an agreed-upon premium to MSI every year, MSI would indemnify Pilkington for certain losses which may or may not arise. MSI offers no facts to support an inference that a sophisticated insurance company such as itself, which repeatedly sought to materially change the terms of its policyholder’s insurance contract, somehow innocently misled that policyholder into agreeing to something that MSI did not intend. Indeed, once again, MSI’s own allegations regarding the purported impact of the master policy on the various local policies fatally undermine MSI’s argument. Further, MSI offers no plausible scenario in which the doctrine of unclean hands would not apply, i.e., where Pilkington would be entitled to relief against MSI without first proving that MSI engaged in some sort of wrongdoing.”
Pilkington North America told USGNN™ it does not comment on litigation matters.