On December 20, 2024, the Texas Supreme Court issued its opinion in Ohio Cas. Ins. Co. v. Patterson-Uti Energy, Inc. Marsh USA, Inc., 2024 Tex. LEXIS 1123 (Tex. 2024), on the issue of whether Ohio’s excess-insurance policy covered Patterson’s legal defense costs arising from a personal injury lawsuit filed against Patterson after the coverage limits for Patterson’s lower level policies were exhausted.  Disagreeing with the Houston Court of Appeals’ analysis, 656 S.W.3d 729, 734 (Tex. App.—Houston [14th Dist.] 2022), the supreme court determined that the case turned on construction of the excess policy – not the underlying primary policy.   

The Court’s opinion advised that, while the excess policy was a “follow-form” policy, that did not mean that the entirety of the underlying policy was incorporated into the excess policy or that the terms of the underlying policy controlled coverage of the excess policy.  A follow-form excess…