TOWERS WATSON & CO ET AL VS NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA. ET AL

October 5, 2021

Holding for the policyholder, the United States District Court for the Eastern District of Virginia followed the lead of the Delaware Superior Court in the Northrop case is holding against AIG in its attempt to apply its so-called “Bump-up” exclusion to exclude from covered Loss the “increased consideration” alleged paid in the Willis/Tower Watson Merger.  The Court concluded, as did Delaware in Northrop, that (1) AIG’s bump-up clause while found in the policy’s definition section and not in the policy’s exclusion section was nevertheless an exclusion and would be treated as such and (2) based on the language of the exclusion and it differed from other policies in the market, it applied only to “acquisitions” and not to “mergers” of corporations.  The Court further concluded that under applicable law, the Tower Watson transaction was a Merger.

Ty Sagalow was the policyholder expert in both the successful Northrop and Tower Watson case.  As in Northrop, Mr. Sagalow successfully argued that from a viewpoint of industry custom and practice, AIG’s Bump-Up exclusion, which he wrote back in 1995 and AIG left largely unchanged in 2010 through several rewrites, turned out to be unique in the industry in several ways including its limited applicability only to acquisitions and that despite Mr. Sagalow repeated recent suggestions to broaden their exclusion to match what they say in litigation against their insureds is their actual intent, AIG’s underwriters and marketing teams seemingly has not shown no interest in doing so.

A copy of the actual decision can be found here.