Ohio insurance company refuses to defend ERCOT, pay damage claims from Texas winter storm lawsuits

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AUSTIN (KXAN) — The Electric Reliability Council of Texas could be left to pay for the legal defense and damages resulting from more than a dozen lawsuits filed against the state’s power grid manager following the February storm.

The storm left more than 4.5 million Texans without power.

The storm is blamed for the deaths of 125 people across the state, according to the Texas Department of State Health Services. The majority of the deaths resulted from hypothermia, the state says.

ERCOT CEO Bill Magness testifies during this Feb. 25 Texas Senate hearing about the statewide power grid failures (KXAN)

Within days of the storm, stories of Texans freezing to death began showing up across the state.

One included Cristian Pindea, 11, from Conroe, whose parents said spent part of the day playing in the snow. The family said power was cut to their mobile home and temperatures inside dipped to ten degrees at one point.

Pineda’s parents told reporters they found the boy dead in his bed the next morning. Lawmakers discussed Pineda’s death many times during Feb. 25 legislative hearings into the state’s power grid failure.

The Cincinnati Insurance Company, headquartered in Ohio, filed a federal suit on Tuesday asking a court for a declaratory judgement, allowing the insurer to decline paying damages in bodily injury or property damage lawsuits where ERCOT is found to be liable.

If the federal court doesn’t grant the declaratory judgment, the Cincinnati Insurance Company would likely have to cover ERCOT under its current policy contract.

Cincinnati and ERCOT entered into the policy on June 1, 2019 and the policy was set to expire on June 1, 2022.

As of March 4, ERCOT’s insurers received 19 lawsuits alleging ERCOT was responsible for loss of life, bodily injury and property damage resulting from the loss of power across the state.

On March 18, The Cincinnati Insurance Company notified ERCOT it was performing its own coverage investigation. ERCOT did not respond to the insurance company’s information requests, according to the lawsuit.

The federal court filing lists the following cases as currently pending against ERCOT and others:

PLAINTIFFDEFENDANTCOUNTY
Guillermo & Cynthia AlonsoERCOT, et alWebb
Kim Archer, Next of Kin of Kathlyn U. GilesERCOT, et alDallas
Dimitri BeckERCOT, et alHarris
Brandon & Erin BoucherERCOT, et al Harris
P.L. Farley & Grover SilasERCOT, et alHarris
Sharon Howeth, Estate of Charles HowethERCOT, et alHarris
Delores Jackson, Estate of Elizabeth JacksonERCOT, et alHarris
Ambrea Jones, et alERCOT, et alHarris
Brenda JohnsonERCOT, et alHarris
Grace Ybarra Landa & Next of Kin of Gilbert RiveraERCOTHarris
Mauricio & Daysi MarinERCOTHarris
Donald McCarleyERCOT, et al Nueces
Steven Napier, Estate of Shirley NapierERCOT, et al Harris
Mary Ellen NavaERCOT, et alHidalgo
Maria Elisa Pineda, Next of Kin of Cristian PinedaERCOT, et alJefferson
Mariaelena Sanchez, et alERCOTHarris
Herlinda TrujilloERCOT, et al Harris
Melissa Villanueva, et al ERCOT, et al Jim Wells
City of DentonERCOT, et alDenton
Civil Investigative Demand, TX Attorney GeneralERCOTTravis
Texas Reliability Entity, Inc. (Notice to Preserve Documents)ERCOTTravis
These 21 items show the 19 civil lawsuits filed so far against ERCOT and other utility companies after the February winter storm (Source: Cincinnati v. ERCOT, April 6, 2021)

“There is no duty to defend or indemnify the Underlying Matters because there is no occurrence. In order for there to be an occurrence, there must be an accident. An accident is a fortuitous, unexpected, and unintended event,” lawyers for The Cincinnati Insurance Company wrote in the federal court filing.

“None of the allegations in the Underlying Lawsuits assert that the alleged damages were caused by any accident. In fact, each asserts facts to the contrary. The allegations in the Underlying Lawsuits allege ERCOT either knew, should have known, expected, and/or intended, that Winter Storm Uri would cause the same power outages which occurred as a result of previous storms in Texas, including storms in 1989 and 2011,” the suit continued.

People carry groceries from a local gas station on February 15, 2021 in Austin. Winter storm Uri has brought historic cold weather to Texas, causing traffic delays and power outages, and storms (Photo by Montinique Monroe/Getty Images)

A winter storm hit Texas in February 2011, cutting power to more than three million Texans then. A federal investigation into Texas’ power grid failure then showed Texas’ failure to winterize its power grid led to the statewide outages, which lasted for days for some Texans.

The 2011 Federal Energy Reliability Commission report detailed multiple steps Texas should take to winterize its power grid. Legislation mandating winterization never passed and ERCOT’s Chief Executive Officer testified before a Texas Senate committee on Feb. 25 that mandates to winterize were still not in place when the winter storm of 2021 hit Texas.

The 2011 report detailed nine findings — half of those dealt with Texas’ lack of winterization inside its power grid. Regulators wrote the word “winterization” a total of 92 times in the report.

“The Underlying Lawsuits allege the power outages caused by Winter Storm Uri were a result of the exact same failures including failures of the same generators which failed in the previous winter storms, and therefore, the power outages were foreseeable, expected, and/or intended,” the Cincinnati lawsuit argued.

ERCOT wants Cincinnati to pay to defend the lawsuits and to pay any damages arising from them, according to the insurer’s federal suit.

ERCOT declined to comment for this story.

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