IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 24, 2008
No. 05-50813 Charles R. Fulbruge III
Clerk
BEATRICE CROCKER
Plaintiff-Appellee
v.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:04-CV-389
Before GARWOOD, HIGGINBOTHAM and CLEMENT, Circuit Judges.
PER CURIAM:
In this Texas law diversity case, plaintiff-appellee Beatrice Crocker seeks
to recover from defendant-appellant National Union Fire Insurance Company
on the basis of a Texas court $1,000,000 default judgment rendered in her favor
against Richard Morris. The basis for the judgment was a personal injury
allegedly suffered by Crocker as a result of Morris’s negligent conduct in the
course of his employment with National Union’s named insured in its applicable
commercial general liability insurance policy in which Morris was an additional
(unnamed or omnibus) insured. After the default judgment against Morris
became final, Crocker sued National Union in Texas court as a third party
beneficiary of its liability policy, claiming entitlement to recovery on the basis
No. 05-50813
that National Union breached its duty to defend and indemnify Morris under its
policy. National Union removed the case to federal court on the basis of
diversity of citizenship. Both parties moved for summary judgment. National
Union took the position that under the terms of its policy Morris was not covered
because he did not give it any notice of the suit or a copy of the citation with
which he was served and did not ever request a defense. Crocker took the
position that National Union could not invoke those policy provisions because it
timely knew of the suit against Morris (who did not know he was covered by the
National Union policy) and was not prejudiced by the lack of compliance with
those policy provisions and breached its duty to Morris by failing to defend him
or tender him a defense. The district court granted Crocker’s motion. On
National Union’s appeal, we certified the determinative questions of Texas law
to the Supreme Court of Texas. Crocker v. National Union Fire Ins. Co., 466
F.3d 347 (5th Cir. 2006). The Texas Supreme Court has issued its opinion
answering those questions. National Union Fire Insurance Co. v. Crocker, 51
Tex. Sup. Ct. J. 518, 246 S.W.3d 603 (Tex. 2008). We refer to these two prior
opinions for a fuller statement.
It is clear from the opinion of the Texas Supreme Court that, because
Morris never gave National Union any notice of the suit, never complied with the
National Union policy’s relevant notice provisions, never furnished it copies of
any relevant papers as required by the policy, and never in any manner
requested a defense from National Union, that National Union owed no duty to
defend Morris, or to sua sponte notify him that its policy covered him, and was
entitled to rely on its policy provisions precluding coverage on the basis of such
noncompliance.
We accordingly reverse the judgment of the district court and remand the
case with instructions to enter judgment that Crocker take nothing by her suit
against National Union and for any further appropriate proceedings not
2
No. 05-50813
inconsistent with our opinions herein and the opinion of the Texas Supreme
Court.
REVERSED and REMANDED with instructions.
3