Gauntlett on Intellectual Property/Antritrust Insurance : Insurance Policyholder Advocate & Attorney David Gauntlett : Gauntlett Law Firm : Insurance Recovery, Policy Interpretation : Irvine, Orange County, California

The court found that if there is no right to reimbursement in the policy it should not be implicated by a court following decisions such as General Agents Ins. Co. of America, Inc. v. Midwest Sporting Goods Co., 828 N.E.2d 1092, 1103 (Ill. 2005); First Insurance Co. of Hawaii v. State, by Minami, 665 P.2d 648, 654 (Haw. 1983); Perdue Farms, Inc. v. Travelers Cas. and Surety Co. of Am., 448 F.3d 252, 258 (4th Cir. (Md.) 2006); Terra Nova Ins. Co. Ltd. v. 900 Bar, Inc., 887 F.2d 1213, 1219 (3d Cir. (Pa.) 1989); Shoshone First Bank v. Pacific Employers Ins. Co., 2 P.3d 510, 514 (Wy. 2000); Liberty Mut. Ins. Co. v. FAG Bearings Corp., 153 F.3d 919, 924 (8th Cir. (Minn.) 1998); Westchester Fire Ins. Co. v. Wallerich, 527 F. Supp. 2d 896, 908 (D. Minn. 2007).

The Virgin Islands court relied on

title 22, section 819 of the Virgin Islands Code (“Section 819”) [which] provides that “[n]o agreement in conflict with, modifying, or extending any contract of insurance shall be valid unless in writing and made a part of the policy.”  V.I.Code Ann. tit. 22, § 819 (1968). Pursuant to Section 819, General Star was prohibited from constructively amending the Policies by reserving the right to reimbursement of defense costs in a subsequent letter.

Notably, a number of jurisdictions have similar statutory provisions which would support, by the same logic, the limitation of policies to their actual language.

Medical Liability Mut. Ins. Co. v. Alan Curtis Enterprises, Inc., ___S.W.3d ___, 2008 WL 2205868 (Ark. 2008)

In another contemporaneous case, the Arkansas Supreme Court joined a growing number of jurisdictions including Illinois and Texas who found that absent a contract provision in the policy permitting reimbursement of attorneys’ fees for a carrier who either agreed to defend or was adjudicated to owe a defense could not seek recoupment of monies expended for a defense.

In reaching that conclusion the court presumed that it was following the minority rule.  It did not observe how many jurisdictions had in fact articulated it.  Instead the court cited United Nat’l Ins. Co. v. SST Fitness Corp., 309 F.3d 914 (6th Cir. (Ohio) 2002); Cincinnati Ins. Co. v. Grand Pointe LLC, 501 F.Supp.2d 1145 (D.Tenn.2007); Buss v. Superior Court, 16 Cal.4th 35, 65 Cal.Rptr. 2d 366, 939 P.2d 766 (1997).

Neither of Arkansas’ statutory schemes supported an award of attorneys’ fees under the reimbursement fact pattern before the court.  Since Arkansas’ public policy was best evidenced by its statutes and they did not provide such remedy, there was no need to imply one.  See, e.g., State Farm Mut. Auto Ins. Co. v. Henderson, 356 Ark. 335, 342, 150 S.W.3d 276, 280 (2004).