THE STATE OF
In The Supreme Court
Gene W. Croft, Jr., as Personal Representative of the Estate of Gene W. Croft, Sr., Plaintiff,
Old Republic Insurance Company, Defendant.
ON CERTIFICATION FROM THE UNITED
STATES DISTRICT COURT
Matthew J. Perry, United States District Judge
Opinion No. 26032
Heard April 20, 2005 - Filed August 22, 2005
CERTIFIED QUESTIONS ANSWERED
Richard A. Harpootlian and M. David Scott, both of
Columbia, for Plaintiff.
Clayton M. Custer, Brent O.E. Clinkscale, and Heather G. Ruth, all of Womble Carlyle Sandridge & Rice, PLLC, of
Greenville, for Defendant.
JUSTICE BURNETT: We
accepted four questions certified by the United States District Court for
FACTUAL AND PROCEDURAL BACKGROUND
The facts are drawn from the
district court’s certification order, which includes stipulated facts and
findings of fact. Gene Croft, Jr. (Plaintiff), as personal representative
of the estate of his father, Gene Croft, Sr. (Decedent) initiated a declaratory
judgment action in state court against Old Republic Insurance Co. (
The underlying complaint alleges Decedent was involved in an automobile wreck while driving a semi-truck belonging to his employer, Penske Truck Leasing Co. (Penske). The driver and passenger in the other vehicle were at fault in causing the wreck. Decedent died as a result of injuries sustained in the wreck. The alleged at-fault driver and passenger had minimum liability coverage of $15,000, which has been tendered to Plaintiff in return for a covenant not to execute.
The insurance policy in question was a three-year policy, renewable on an annual basis, covering the period of January 1, 2000, to January 1, 2003. The wreck occurred January 23, 2002, within the policy’s effective dates. The policy contains a deductible equal to the coverage limits contained in the policy. This type of policy is referred to in the insurance industry as a “fronting policy.”
The total combined premium paid by Penske for the policy exceeded $50,000 a year. The policy provided coverage in all fifty states. Before commencing this action, Old Republic did not seek or obtain approval from the South Carolina Department of Insurance (Department) to sell the policy as an “exempt commercial policy” as that term is defined in S.C. Code Ann. § 38-1-20(40) (2002).
From 1998 to 2001,
1. Is the Old Republic/Penske policy at issue an “exempt commercial policy” as that term is defined in S.C. Code Ann. § 38-1-20(40)?
2. Assuming the answer to #1 is “yes,” are automobile insurers in South Carolina required to make a meaningful offer of optional UIM coverage when selling an “exempt commercial policy” as that term is defined in Section 38-1-20(40)?
3. Are automobile insurers in
South Carolina required to make a meaningful offer of optional UIM coverage when selling a “fronting policy” in which the insured’s deductible limits equal the liability limits?
4. In a commercial “fronting policy,” is an insurer required to comply with the requirements of State Farm Mut. Auto Ins. Co. v. Wannamaker, 291 S.C. 518, 354 S.E.2d 555 (1987), in order to make a meaningful offer of optional UIM coverage, when the insured has expressed a desire not to purchase UIM coverage?
STANDARD OF REVIEW
In answering a certified question raising a novel question of law, the Court is free to decide the question based on its assessment of which answer and reasoning would best comport with the law and public policies of this state and the Court’s sense of law, justice, and right. See I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 411, 526 S.E.2d 716, 719 (2000) (citing S.C. Const. art. V, §§ 5 and 9, S.C. Code Ann. §§ 14-3-320 and -330 (1976 & Supp. 2004), and S.C. Code Ann § 14-8-200 (Supp. 2004)); Osprey, Inc. v. Cabana Ltd. Partnership, 340 S.C. 367, 372, 532 S.E.2d 269, 272 (2000) (same); Clark v. Cantrell, 339 S.C. 369, 378, 529 S.E.2d 528, 533 (2000) (same); Antley v. New York Life Ins. Co., 139 S.C. 23, 30, 137 S.E. 199, 201 (1927) (“In [a] state of conflict between the decisions, it is up to the court to ‘choose ye this day whom ye will serve’; and, in the duty of this decision, the court has the right to determine which doctrine best appeals to its sense of law, justice, and right.”).
LAW AND ANALYSIS
1. EXEMPT COMMERCIAL POLICY
Plaintiff argues the policy at issue
is not an “exempt commercial policy” as that term is defined in S.C. Code
Ann. § 38-1-20(40) because
The Legislature, defining the term for the first time, provided in 2000 that
“[e]xempt commercial policies” means policies for large commercial insureds where the total combined premiums to be paid for these policies for one insured is greater than $50,000 annually and as may be further provided for in regulation or in bulletins issued by the director. Exempt commercial policies include all property and casualty coverages except for commercial property and insurance related to credit transactions written through financial institutions.
Act No. 235 § 1, 2000 S.C. Acts 1680 (effective March 7, 2000, and codified at S.C. Code Ann. § 38-1-20(40) (2002)). This provision was in effect at the time of the fatal wreck.
Act No. 235 further provided
[i]t is unlawful for an insurer doing business in this State to issue or sell in this state any exempt commercial policy, contract or certificate until it has been filed with and approved by the director or his designee. A filing that is filed with the department is deemed to have met the requirements of this chapter unless it (1) does not meet the requirements of law, (2) contains any provisions which are unfair, deceptive, ambiguous, misleading, or unfairly discriminatory, or (3) is going to be solicited by means of advertising, communication, or dissemination of information which is deceptive or misleading. If a filing is not in compliance with this chapter, the director or his designee shall issue an order specifying in detail the provisions with which the insurer has not complied and stating the time within which the insurer has to comply with the order before the filing is no longer valid. An order issued by the director pursuant to this section must be on a prospective basis only and may not affect a contract issued or made before the effective date of the order.
Act No. 235 § 4, 2000 Acts 1681 (codified at S.C. Code Ann. § 38-61-25 (2002)). Under this provision, it is apparent the Legislature intended to allow issuers of exempt commercial policies to file a policy form with Department, and it would be deemed approved unless Department subsequently issued an order to the contrary. See also Act No. 235 § 3, 2000 Acts 1680 (providing that insurers which issue exempt commercial policies are not required to obtain approval from Department before selling them) (codified at S.C. Code Ann. § 38-61-20(A) (Supp. 2004)).
The Legislature further provided that sellers of exempt commercial policies are not required to file rate schedules and plans with Department. Act No. 235 §§ 6-7, 2000 Acts 1682-83 (codified at S.C. Code Ann. §§ 38-73-340 and -520 (Supp. 2004)); see also Act No. 235 § 8, 2000 Acts 1683 (providing that statute requiring notice of hearings on rate increases does not apply to exempt commercial policies, which “are not subject to prior approval” by Department) (codified at S.C. Code Ann. § 38-73-910(G) (2002)).
Department has promulgated regulations which for the most part track the language of the previously cited statutes. The regulations provide that “[n]o insurer of exempt commercial policies will be required to file any classification, rate, rule, or rating plan, or modifications thereof, for any exempt commercial insurance line prior to its use in this state.” An insurer issuing an exempt commercial policy must file the policy form with Department and must maintain a desk file of such forms for examination by Department upon request. Department, after reviewing such a policy form, may disapprove the form for continued use on a prospective basis. S.C. Code Ann. Reg. 69-64 (Supp. 2004) (effective June 27, 2003).
Lastly, the Legislature amended a provision contained in Chapter 73 of Title 38, which deals with the filing and approval of certain insurance rates. The Legislature added a subsection in the “Declaration of Purpose” provisions to state that a purpose of the chapter is to “provide for reasonable competition for commercial property and casualty insurers of insureds who make large purchases of insurance.” Act No. 235 § 5, 2000 Acts 1681 (codified at S.C. Code Ann. § 38-73-10(a)(4) (2002)); see also Act No. 181 § 783, 1993 Acts 2079 (setting forth previous version of § 38-73-10(a)).
Based on the above provisions and focusing primarily on Act No. 235 which took effect in 2000, we answer Question 1 “yes,” the policy at issue is an “exempt commercial policy” pursuant to S.C. Code Ann. § 38-1-20(40) (2002). The combined premium for the policy at issue exceeded $50,000 annually and the policy provided casualty coverage.
2. REQUIREMENT OF
MEANINGFUL OFFER IN
Plaintiff contends that, even if the
policy at issue is an exempt commercial policy,
The cardinal rule of statutory
interpretation is to ascertain and effectuate the intention of the
Legislature. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581
(2000); Mid-State Automotive Auction of Lexington, Inc. v. Altman, 324
S.C. 65, 69, 476 S.E.2d 690, 692 (1996). In ascertaining the intent of the
Legislature, a court should not focus on any single section or provision but
should consider the language of the statute as a whole. Mid-State,
324 S.C. at 69, 476 S.E.2d at 692. When a statute’s terms are clear and
unambiguous on their face, there is no room for statutory construction and a
court must apply the statute according to its literal meaning. Carolina
Power & Light Co. v. City of
S.C. Code Ann. § 38-77-160 (2002) provides “[automobile insurance] carriers shall also offer, at the option of the insured, underinsured motorist coverage up to the limits of the insured liability coverage to provide coverage in the event that damages are sustained in excess of the liability limits carried by an at-fault insured or underinsured motorist or in excess of any damages cap or limitation imposed by statute.”
An automobile insurance carrier in
No statutory provision exempts insurers which sell exempt commercial policies from the requirement of making a meaningful offer of UIM coverage to a commercial insured as mandated by Section 38-77-160. The only statutes addressing exempt commercial policies are those discussed in Question 1. A review of those statutes reveals the Legislature modified Department’s oversight of exempt commercial policies by establishing a system in which approval of such policies is granted upon filing, subject to later review and order by Department. The Legislature also exempted such policies from the usual rate-making and approval processes. These changes were intended to promote reasonable competition among commercial insurers, as explicitly stated by the Legislature. See Section 38-73-10(a)(4).
However, the Legislature did not
similarly exempt insurers which sell such policies from complying with the usual
requirements of offering UIM coverage to their commercial insureds.
Moreover, the Legislature’s amendment in 2002 and 2003 of three statutes addressing exempt commercial policies supports our conclusion. In redefining “exempt commercial policies” in Section 38-1-20(40), the Legislature in 2002 and 2003 changed the phrase “large commercial insureds” to “commercial insureds.” The Legislature also deleted from the definition the phrase “where the total combined premiums to be paid for these policies for one insured is greater than fifty thousand dollars annually.” See footnote 1.
Similarly, the Legislature in 2002 amended Sections 38-73-340 and 38-73-520 to change the phrases “large commercial policies” and “exempt large commercial policies” to simply “exempt commercial policies.” See footnote 2.
These amendments mean insurers may sell exempt commercial policies to commercial insureds of all sizes, from multi-national corporations to “mom-and-pop” operations. Therefore, such a policy may be presented not only to potentially knowledgeable risk managers for large corporations, as occurred in the present case, but also to less sophisticated and knowledgeable insureds who own or manage small businesses. The Legislature apparently recognized that fact and chose not to create an exemption for exempt commercial policies from the requirements of Section 38-77-160. Accordingly, we answer Question 2 “yes,” automobile insurance carriers in South Carolina are required to make a meaningful offer of optional UIM coverage when selling an “exempt commercial policy” as that term is defined in Section 38-1-20(40).
3. REQUIREMENT OF
MEANINGFUL OFFER IN
Plaintiff asserts the Legislature
has not exempted an insurer which sells a “fronting policy” from making a
meaningful offer of UIM coverage to a commercial insured.
“Fronting policies” and related forms of partial self-insurance have become prevalent since the 1980s due to increases in insurance premiums. A fronting policy, of which there are various forms, is one or more steps removed from true self-insurance. It has been defined as a legal risk management device, typically used by large corporations operating in multiple states, in which the corporation pays a discounted premium to an insurer. The insurer maintains licensing and filing capabilities in a particular state or states, and issues an insurance policy covering the corporation in order to comply with the insurance laws and regulations of each state.
The corporation retains at least part of the risks covered under the fronting policy. One such means of retaining the risk, as seen in the present case, is by a deductible which equals the policy’s liability limits. The insured usually is left to administer all claims, although the insurer may reserve this authority to itself in some instances. The insured agrees to reimburse the insurer for all payments it must make. See MacDonald v. Pacific Employers Ins. Co., 264 F. Supp. 2d 576, 581-83 (N.D. Ohio 2002); Lafferty v. Reliance Ins. Co., 109 F. Supp. 2d 837, 844-46 (S.D. Ohio 2000); Aerojet General Corp. v. Transport Indem. Co., 948 P.2d 909, 914 n.3 (Cal. 1997); Mark W. Flory & Angela Lui Walsh, Know Thy Self-Insurance (and Thy Primary and Excess Insurance), 36 Tort & Ins. L. J. 1005, 1006-07 (2001); Rory A. Goode, Self-Insurance as Insurance in Liability Policy “Other Insurance” Provisions, 56 Wash. & Lee L. Rev. 1245, 1257 (1999); William T. Barker, Combining Insurance and Self Insurance: Issues for Handling Claims, 61 Def. Couns. J. 352, 353 (1994); 1 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d §§ 10:1 to 10:3 (1997) (discussing self-insurance).
Some courts and commentators have
stated that insureds who purchase fronting policies are in the practical sense
self-insured because such policies involve no transfer of risk from the insured
to the insurer. We disagree with the premise there is no transfer of risk
in such policies. In a fronting policy, “[t]he insurer functions purely
as a surety for the insured’s ability to pay claims, and the benefit extends
only to third parties in situations in which the policy holder is unable to pay
a liability owed to a third party.” Goode, supra at 1257; see
also Barker, supra at 353 (stating same principle). Thus,
We find persuasive the views expressed in Gilchrist v. Gonsor, 821 N.E.2d 154 (Ohio 2004). In that case, decided on facts similar to the present case, an employee was injured in an on-the-job vehicle wreck caused by another motorist. The employee sought coverage under his employer’s uninsured motorist (UM) policy, which was a fronting policy in which the employer’s deductible equaled the policy’s liability limit of $1 million.
The Ohio Supreme Court explained
that the employer, in purchasing an insurance fronting policy, was not
self-insured because it had not obtained a certificate of self-insurance under
the statutory process. Instead, the employer had established proof of
financial responsibility as statutorily required by purchasing a contract of
insurance - the fronting policy. Under the statute then in effect, a
vehicle liability policy could not be issued or delivered in
A concurring justice further
explained the court’s reasoning. “[The employer] and [the insurer]
seek to describe their contract of insurance for one purpose and as something
else for another purpose. . . . It is not consistent to argue that the contract
is an insurance policy for purposes of complying with Ohio’s financial
responsibility requirement and that the same policy is not one of insurance in
order to avoid the mandatory UM/UIM offering under [Ohio law].” Gilchrist,
821 N.E.2d at 156-57 (Moyer, C.J., concurring). Furthermore, “it is
clear that [the insurer] exposed itself to at least some risk. The fact
[the insurer] carried some risk of loss further verifies that the arrangement in
this case was an insurance policy and is therefore subject to the previous
decisions of this court that create liability for UM/UIM coverage pursuant to
In the context of automobile
insurance, a person or corporation in
A person, if eligible under statutory requirements, may register an uninsured motor vehicle by paying a $550 fee to the state Department of Motor Vehicles (DMV). S.C. Code Ann. §§ 56-10-510 to -540 (Supp. 2004). A company or person who has more than twenty-five motor vehicles registered in his name may qualify as a self-insurer by meeting the statutory requirements and obtaining a certificate of self-insurance from the DMV. S.C. Code Ann. §§ 56-9-60 and 56-10-510 (Supp. 2004).
Penske complied with the financial
responsibility requirements by purchasing an insurance policy, not by seeking
approval of a surety bond or obtaining a certificate of self-insurance from DMV
as allowed by statute.
Moreover, the fact Penske purchased
a so-called “fronting policy” does not transform Penske into a self-insured
entity entitled to avoid the requirements of
4. APPLICABILITY OF
WANNAMAKER ANALYSIS IN
Plaintiff argues the determination of whether an insurer has made a meaningful offer of UIM coverage is an objective inquiry based on the language and form of the offer. It is neither necessary nor proper to consider the insured’s subjective state of mind or wishes.
Old Republic asserts that, because
Penske is a “knowledgeable, sophisticated insured” which repeatedly rejected
UIM coverage, it should not have to comply with the requirements of State
Farm Mutual Auto Insurance Co. v. Wannamaker, 291 S.C. 518, 345 S.E.2d 555
(1987), and its progeny.
We recently set forth the basic principles of law regarding meaningful offers in Progressive Cas. Ins. Co. v. Leachman, 362 S.C. 344, 608 S.E.2d 569 (2005):
The insurer bears the burden of establishing it made a meaningful offer.
Butler v. Unisun Ins. Co., 323 S.C. 402, 405, 475 S.E.2d 758, 759 (1996). A noncomplying offer has the legal effect of no offer at all. Hanover Inc. Co. v. Horace Mann Ins. Co., 301 S.C. 55, 57, 389 S.E.2d 657, 659 (1990). “If the insurer fails to comply with its statutory duty to make a meaningful offer to the insured, the policy will be reformed, by operation of law, to include UIM coverage up to the limits of liability insurance carried by the insured.” Butler, 323 S.C. at 405, 475 S.E.2d at 760.
In general, for an insurer to make a meaningful offer of UIM coverage, (1) the insurer’s notification process must be commercially reasonable, whether oral or in writing; (2) the insurer must specify the limits of optional coverage and not merely offer additional coverage in general terms; (3) the insurer must intelligibly advise the insured of the nature of the optional coverage; and (4) the insured must be told that optional coverages are available for an additional premium. State Farm Mut. Auto Ins. Co. v. Wannamaker, 291 S.C. 518, 521, 345 S.E.2d 555, 556 (1987).
In response to Wannamaker, the legislature enacted a statute establishing the requirements for forms used in making offers of optional insurance coverage such as UIM. The statute directs the insurer to include the following in its offer:
(1) a brief, concise explanation of the coverage;
(2) a list of available limits and the range of premiums for the limits;
(3) space for the insured to mark whether the insured chooses to accept or reject the coverage, and a space to select the limits of coverage desired;
(4) a space for the insured to sign the form, acknowledging that the optional coverage has been offered; and
(5) the mailing address and telephone number of the Department, so that the insured may contact it with any questions that the insurance agent is unable to answer. S.C. Code Ann. § 38-77-350(A) (2002).
An insurer enjoys a presumption it made a meaningful offer if it executes a form that complies with this statute. S.C. Code Ann. § 38-77-350(B) (2002); Antley v. Nobel Ins. Co., 350 S.C. 621, 632, 567 S.E.2d 872, 878 (Ct. App. 2002). If the form does not comply with the statute, the insurer may not benefit from the protections of the statute. Osborne v. Allstate Ins. Co., 319 S.C. 479, 486, 462 S.E.2d 291, 295 (Ct. App. 1995). Furthermore, a form does not necessarily constitute a meaningful offer simply because it was approved by the Department of Insurance.
Butler, 323 S.C. at 408-409, 475 S.E.2d at 761.
Progressive Cas. Ins. Co., 362 S.C. at ___, 608 S.E.2d at 571-72.
We answer Question 4 “yes,” an automobile insurer selling a fronting policy to a commercial insured is required to comply with Wannamaker and its progeny in order to make a meaningful offer of UIM coverage even though the insured has expressed a desire not to purchase such coverage. Automobile insurers offering commercial policies, including fronting policies, are not exempt from the meaningful offer requirement contained in Section 38-77-160 because the Legislature has recognized that commercial insureds, like non-commercial insureds, undoubtedly run the gamut from the ill-informed to knowledgeable purchasers.
Whether a meaningful offer was made depends on the facts and circumstances of a particular case, and the inquiry in this instance must be resolved in the federal proceeding. The impact of the insured’s knowledge or level of sophistication regarding insurance matters on the determination of whether a meaningful offer was made cannot be decided on the limited record and arguments presented to us. Instead, such a decision is more appropriately resolved by a factfinder which has an opportunity to consider the entire factual record and the parties’ arguments.
Evidence of an insured’s knowledge or level of sophistication is not relevant when the analysis is confined to whether a particular written form complies with the statutory requirements, such that the insurer enjoys a presumption that it made a meaningful offer. That analysis simply involves a review of the written form itself.
However, evidence of the insured’s
knowledge or level of sophistication is relevant and admissible when analyzing,
under Wannamaker, whether an insurer intelligibly advised the insured of
the nature of the optional UM or UIM coverage. It is a subjective inquiry
to the extent the insured may offer evidence of his understanding, or lack
thereof, of the nature of UM or UIM coverage. It also is an objective
inquiry because the factfinder should consider the insured’s knowledge and
level of sophistication in determining whether the insurer intelligibly
explained such coverage to the insured. See McDowell v.
Travelers Prop. & Cas. Co., 357 S.C. 118, 123-25, 590 S.E.2d 514, 516-17
(Ct. App. 2003) (affirming grant of summary judgment to insurer on issue of
whether a meaningful offer was made under Wannamaker when evidence
revealed commercial insured’s professional risk manager was experienced in
dealing with vehicle insurance coverage, was fully aware of nature and purpose
of UIM coverage, and knew and was able to apply the mathematical formula for
calculating UIM premiums under the policy); Anders v. S.C. Farm Bureau Mut.
We answer “yes” to each certified question. First, the policy at issue is an exempt commercial policy. Second, an insurer selling an automobile insurance policy must make a meaningful offer of UIM coverage to a commercial insured because the Legislature has not established an exception for exempt commercial policies. Third, an insurer selling an automobile insurance policy, issued in the form of a fronting policy, must make a meaningful offer of UIM coverage because it is an insurance policy and the Legislature has not established an exception for such a policy. Fourth, an insurer selling an automobile insurance policy, issued in the form of a fronting policy, to a commercial insured is required to comply with Wannamaker and its progeny in order to make a meaningful offer of UIM coverage even though the insured has expressed a desire not to purchase such coverage. Whether a meaningful offer was made in the present case is a fact-intensive inquiry which must be resolved in the federal proceeding.
CERTIFIED QUESTIONS ANSWERED.
MOORE, WALLER and PLEICONES, JJ., concur. TOAL, C.J., concurring in a separate opinion.
CHIEF JUSTICE TOAL: I
concur in all respects with the comprehensive and well reasoned analysis of the
majority with one exception. I would go further in answering Question 4
and also find that the offer of optional insurance by
For an insurer to make a meaningful offer of additional coverage, (1) the insurer’s notification process must be commercially reasonable; (2) the insurer must specify the limits of optional coverage and not merely offer additional coverage in general terms; (3) the insurer must intelligibly advise the insured of the nature of the optional coverage; and (4) the insured must be told that optional coverages are available for an additional premium. State Farm Mut. Auto. Ins. Co. v. Wannamaker, 291 S.C. 518, 521, 345 S.E.2d 555, 556 (1987).
In the present case, in my opinion,
the above requirements for making a meaningful offer were satisfied.
Therefore, in my view,
 The Legislature has amended Section 38-1-20(40) to delete the adjective “large” from commercial insureds and to eliminate the requirement of an annual premium exceeding $50,000. The subsection in its present form provides
“Exempt commercial policies” means policies for commercial insureds as may be provided for in regulation issued by the director. Exempt commercial policies include all property and casualty coverages except for insurance related to credit transactions written through financial institutions.
Act No. 300 § 1, 2002 Acts 3288 (effective January 1, 2003). The Act’s title stated the subsection was being amended “to expand the meaning of ‘exempt commercial policies.’”
The Legislature re-enacted Section 38-1-20(40) in identical form in 2003 while revising or adding statutes relating to numerous insurance laws. Act No. 73 § 1, 2003 Acts 847 (effective June 25, 2003). The Act’s title stated the subsection was being amended “to change the definition of ‘exempt commercial policies’ to delete the requirement that the definition include policies for which premiums for one insured is greater than fifty thousand dollars annually.”
 The Legislature amended these sections in 2002. In pertinent part, the sections were modified to change the phrases “large commercial policies” and “exempt large commercial policies” to simply “exempt commercial policies.” Act No. 300 §§ 2-3, 2002 Acts 3288.
 Penske apparently does not administer its own claims
process, although the limited record before us does not reveal the precise
 Events in recent years repeatedly have demonstrated the fallacy of the belief that a large corporation with billions of dollars in revenue or assets is an invincible operation with little risk of collapse. To understand this, one has to look no further than the accounting scandals and bankruptcies at companies such as Worldcom, Inc. ($103.9 billion in assets upon filing bankruptcy in 2002); Enron Corp. ($63.4 billion in assets upon filing in 2001); Conseco, Inc., ($61.4 billion in assets upon filing in 2002); Texaco, Inc. ($35.9 billion in assets upon filing in 1987); or Adelphia Communications ($21.5 billion in assets upon filing in 2002). See “The Largest Bankruptcies - 1980 to Present,” compiled by New Generation Research, Inc. (available at http://www.bankruptcydata.com/Research/ 15_Largest.htm).