IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-60812
_____________________
EUGENE A. BROADHEAD, Ancillary Receiver and
Statutory Liquidator for the State Board of
Insurance in the State of Texas for Mission
National Insurance Co., and International
Insurance Company, ET AL.,
Plaintiffs,
TOMLINSON INTERESTS, INC. AND REPUBLIC
REFINING CO.,
Intervenor Plaintiff-Counter Defendant-
Appellee,
versus
THE HARTFORD CASUALTY INSURANCE COMPANY,
ET AL.,
Defendants,
THE HARTFORD CASUALTY INSURANCE COMPANY;
HARTFORD ACCIDENT & INDEMNITY COMPANY,
Defendants-Counter Claimants-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Mississippi
(3:86-CV-667)
_________________________________________________________________
October 15, 1996
Before REYNALDO G. GARZA, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:*
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
After reviewing the record, studying the briefs, and
considering the arguments presented to this court, we have
concluded that the district court committed no reversible error in
this case.
The district court did not err in finding that Hartford was
not entitled to reimbursement for the amount paid in the settlement
of the Oil Field Rental Services claim. The judgment imposed on
Tomlinson a legal obligation to pay damages resulting from property
damage caused by an occurrence and, consequently, fell within the
terms of the policy issued by Hartford. The mere fact that the
judgment was premised on a theory of breach of the rental contract
does not remove the loss from the scope of the coverage, because
the ultimate cause of the loss was an occurrence--the blow out--
which was unforeseen and unintended by the insured. Hartford was
required to pay the judgment under the policy terms and is not
entitled to recover its expenditures.
The district court likewise did not commit reversible error in
concluding that Texas law governed the award of attorneys' fees and
pre-judgment interest to Tomlinson. After conducting the
appropriate conflicts of laws analysis as set forth in Boardman v.
United Servs. Auto. Ass'n, 470 So.2d 1024 (Miss. 1985), the court
properly concluded that Texas law governed the substantive issues
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of this action, including the issues of attorneys' fees and pre-
judgment interest.
The district court's conclusion that the non-waiver agreement
signed by the parties was ineffective because of the reference to
the incorrect policy number must also be upheld. Without a valid
non-waiver agreement, Hartford's actions at the accident site
following the blow out, including the processing and payment of
claims, effectively estop Hartford from asserting the defense that
Tomlinson breached the policy by acting without its consent in
settling and paying claims. The district court correctly reached
this conclusion.
Hartford argues that it was entitled to a set-off of certain
sums paid by other insurers for the losses claimed by Tomlinson.
Hartford, however, did not raise this affirmative defense in the
pretrial order and thus waived the right to claim such a set-off.
Furthermore, the trial judge did not abuse his discretion by
refusing to allow the amendment of the pretrial order during trial.
Absent an abuse of discretion the trial court's ruling on the issue
of amendment of the pretrial order is no basis for reversal.
The evacuation expenses paid by Tomlinson following the blow
out are an additional source of dispute in this appeal. Hartford
argues that Tomlinson was not "legally obligated" to pay the
expenses within the meaning of the policy or, in the alternative,
that the failure to obtain Hartford's permission before paying such
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expenses resulted in a breach of contract and therefore relieves
Hartford of any liability under the policy. The district court
found that Tomlinson was legally obligated to pay these expenses
pursuant to the emergency contingency plan filed with the State of
Mississippi and that Hartford, by knowingly allowing such payments
to be made by Tomlinson without objection, waived any defense to
liability premised on a breach of the policy's no action clause.
The district court carefully analyzed this issue and reached a
well-reasoned and well-supported conclusion that we find to be
correct.
In conclusion, we find no reversible error on any issue and,
therefore, for the reasons assigned in its opinion, the judgment of
the district court is
A F F I R M E D.
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