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This is one of many cases percolating in the Fifth Circuit about the Deepwater Horizon (BP) oil spill. Here, the dispute is between various insurers over some subrogation and indemnification arrangements, internal to the complex stack of insurance that might apply to the project.

The Fifth Circuit resolved some of those questions under what it found to be well-settled law, and certified one other question to the Texas Supreme Court on a point that it found to be unsettled in Texas:

Whether, to maintain a cause of action under Chapter 541 of the Texas Insurance Code against an insurer that wrongfully withheld policy benefits, an insured must allege and prove an injury independent from the denied policy benefits?

The Fifth Circuit explains the uncertainty as being about whether Vail v. Texas Farm Bureau Mutual Insurance Co., 754 S.W.2d 129 (Tex. 1988), remains good law. That case would answer the question "no." Two decades later, a different panel of the Fifth Circuit analyzed intervening Texas authority and held that Vail was no longer controlling on this point. Great American Insurance Co. v. AFS/IBEX Financial Services, Inc., 612 F.3d 800, 808 & n.1 (5th Cir. 2010). In now certifying this question to SCOTX for an authoritative answer, the panel observes that some intermediate Texas courts, contrary to the Fifth Circuit's conclusion in Great American, still treat Vail as controlling law.

See also:

• Fifth Circuit opinion

• Insurance Code §541.151