Filed Under:Markets, Commercial Lines

W.R. Berkley Attorney: Limited Coverage Held by West Fertilizer ‘Irresponsible’

An investigator carries a piece of debris amid the destroyed fertilizer plant in West, Texas. (AP Photo/LM Otero, Pool)
An investigator carries a piece of debris amid the destroyed fertilizer plant in West, Texas. (AP Photo/LM Otero, Pool)

The attorney for a group of W.R. Berkley Corp. companies that have filed suit against West Fertilizer Co. calls the retailer's lack of adequate insurance "irresponsible." 

Paul A. Grinke of McCathern in Dallas adds he predicts his clients and others involved in lawsuits against the West, Texas facility that exploded last month will "be left holding the bag."

"Unfortunately I'm involved in a lot of cases dealing with underinsured properties but I've never been involved in something like this—a facility such as this one with so little insurance for the risk," Grinke tells PC360. Grinke represents the NFL’s Dallas Cowboys in a number of matters and was also counsel for a farming equipment manufacturer in Texas lawsuits regarding the outbreak of Listeria food poisoning in 2011.

Late last week plaintiffs' attorneys learned from representatives of West Fertilizer, whose parent company is Adair Grain, that the facility has just $1 million of liability insurance--nothing more.

On April 17 the retailer in the small rural town of about 2,800 blew up after a fire was reported at the site. The force of the blast leveled nearby houses, damaging or destroying about 140 homes, as well as an apartment building, two schools, and a retirement center. The Insurance Council of Texas puts insured losses for this disaster at about $100 million, a total that includes insurance payments for West Fertilizer. The explosion also killed 15 people, and hundreds were injured.

About a week after the explosion Grinke filed suit in McLennon County district court against Adair Grain on behalf of Berkley's Acadia Insurance Co., Continental Western Insurance Co., Union Standard Insurance Co. and Union Standard Lloyds. The insurers cover individuals, businesses, and churches in town. The suit alleges negligence and claims shockwaves, debris and flammable material from the explosion "caused severe damage" to insureds' properties.

Additional suits against Adair have been brought by other members of the community.

Grinke says the lawsuit was filed so soon in order to "have a judge to go to" for an order like an injunction if, for any reason, the insurers were not allowed on the site to conduct an investigation. Thankfully, says Grinke, that has not been needed. However, the insurers have not yet conducted a full investigation. State and federal authorities are on the site, but they may be wrapping things up soon, Grinke says. Insurance teams have been allowed on the site, but just to take pictures--nothing more.

"Once they finish, we'll move in and conduct our investigation," Grinke says.

West Fertilizer, or Adair Grain, have not been officially deemed negligent for the blast that wounded so much of the town. The facility apparently did not tell the proper authorities that it stored hundreds of tons of the highly volatile chemical compound ammonium nitrate on the site and, by all accounts, the facility appears to have lacked sufficient risk management measures to attempt to protect its neighbors from a worst-case-scenario situation.

Grinke says insurers want a crack at the site because there may be clues other parties can be held negligent in some way--such as chemical manufacturers, transportation companies or makers of safety devices that might have been in place but malfunctioned.

"It's important we take a look at that site," Grinke says. "So far we've had nothing but promises of cooperation but we haven't had a chance to get in much."

Dan Keeney, spokesman for Adair Grain, tells PC360 the Adair family of West, Texas is cooperating with authorities and helping in any way with the investigation. Keeney confirmed the facility has no excess or umbrella coverage. The Texas Department of Insurance says a handful of state agencies with oversight of facilities like West Fertilizer do not require general liability coverage. 

West Fertilizer's liability coverage was provided by United States Fire Insurance Co., a member of Morristown, N.J.-based Crum & Forster, which is part of the Fairfax Group. A spokesman for Crum & Forster referred all question to the insured.

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