5th Circuit Certifies Deepwater Horizon Questions to Texas High Court
2. Whether the doctrine of contra proferentem applies to the interpretation of the insurance coverage provision of the drilling contract under the ATOFINA case, given the facts of this case?
David Goodwin, a partner in the San Francisco office of Covington & Burling who represents BP, did not return a call for comment. Neither did Richard Dicharry, a partner in New Orleans' Phelps Dunbar who argued the case on behalf of insurers Lloyd's of London and Ranger Insurance at the 5th Circuit.
Elsley believes the Supreme Court will have to look at the drilling contract between BP and Transocean that required the liability coverage — and not the insurance policy alone — to determine whether BP is covered for the pollution claims.
"The drilling contractors like Transocean only take responsibility for the drilling rig itself. And that's what the drilling contract explicitly says," Elsley says. "And there's no dispute about that. And because the policy incorporates the drilling contract, they have to be read together."