Case: 07-20157 Document: 00511071428 Page: 1 Date Filed: 04/06/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 6, 2010
No. 07-20157 Lyle W. Cayce
Clerk
TRAVELERS LLOYDS INSURANCE CO.,
Plaintiff–Appellee,
v.
PACIFIC EMPLOYERS INSURANCE CO.,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before GARZA, STEWART, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Pacific Employers Insurance Company (Pacific) appeals the district court’s
denial of its motion for summary judgment and grant of summary judgment in
favor of Travelers Lloyds Insurance Company (Travelers). We reverse and
remand.
I
The Centre at Bunker Hill, Ltd. (The Centre), as landlord, and Best Buy
Stores, Inc. (Best Buy), as tenant, executed a lease pertaining to Best Buy’s store
located on The Centre’s property. Article 22 of the lease was entitled “Insurance
and Indemnity” and included two provisions at issue here:
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No. 07-20157
22 INSURANCE AND INDEMNITY
22.1 Tenant’s Insurance. Tenant shall obtain and
keep in force at Tenant’s expenses [sic] . . . commercial
general liability insurance with a combined single limit
of Five Million and No/100 Dollars ($5,000,000.00) for
each occurrence (including coverage under so-called
“umbrella” or “excess liability” policies). Said insurance
shall name Tenant as named insured and Landlord as
additional insured. . . . Tenant may self-insure all or
any part of the insurance it is required to carry
hereunder, provided that Tenant or Guarantor
maintains a minimum net worth of at least
$100,000,000. . . .
....
22.3 Tenant shall indemnify and hold Landlord and
Landlord’s agents harmless from and against any and
all claims, actions, demands, liens, costs, damages,
expenses and liabilities whatsoever including, but not
limited to, attorneys’ fees and court costs, arising out of
any claims of any person or persons on account of or by
reason of: (a) any occurrence in, on or about the
Premises from the Delivery Date until Tenant fully
vacates the Premises resulting from the occupancy or
use thereof; (b) the negligence or willful misconduct of
Tenant, its agents, employees and contractors in, on or
about the Premises and/or Shopping Center . . . .
Best Buy purchased from Pacific a one-year “Excess Commercial General
Liability Policy” with a per-occurrence limit of $1,000,000 and an aggregate limit
of $2,000,000 subject to a retained limit, or self-insured retention, of $200,000.
The policy included an “Additional Insured Endorsement” that extended
“additional insured” coverage to entities “[w]here required by written contract
before the date of loss. . . . but only with respect to liability arising out of [Best
Buy’s] operations or premises owned or rented by [Best Buy].”
Scott Schneider was injured while exiting the Best Buy store located on
The Centre’s property. At the time of the incident, Schneider was confined to a
2
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wheelchair. He alleged that he went to Best Buy to have speakers in his van
repaired or replaced, and that while the work was underway, he was directed to
exit the Best Buy store through a door located next to the installation bays. He
asserted that “immediately after he exited the store in his wheelchair, he turned
his wheelchair to the left to begin down the sidewalk and was thrown off the
curb and out of the wheelchair seriously injuring his femur and his hips.”
Schneider, his wife, and his daughter sued The Centre, Best Buy, and others in
Texas state court alleging that the defendants’ negligence and defects in the exit
ramp, sidewalk, and curb outside the store caused his accident and subsequent
injuries.
Travelers insured The Centre through a comprehensive general liability
policy. Travelers demanded that Best Buy and Pacific assume The Centre’s
defense and indemnify The Centre from further exposure, arguing that The
Centre was an additional insured under the Pacific policy. Pacific and Best Buy
declined Travelers’s demand. Travelers subsequently settled the underlying
action, paying $250,000 to the Schneiders and incurring approximately $273,000
in attorneys’ fees and expenses.
Travelers sued Pacific and Best Buy in federal district court based on
diversity jurisdiction seeking a declaration that Pacific was required to defend
and indemnify The Centre against claims in the underlying action and
requesting reimbursement for defense costs incurred. Each party moved for
summary judgment.
The district court granted Travelers’s motion but denied Pacific’s.
Specifically, the district court held that (1) The Centre was an additional insured
under the Pacific Policy; (2) the Pacific Policy was primary and Travelers was
entitled as subrogee to recover from Pacific the settlement costs Travelers paid;
and (3) Travelers as subrogee was entitled to recover its attorneys’ fees and
3
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expenses incurred while defending The Centre in the underlying action. Pacific
appealed.
II
We review de novo the district court’s grant of summary judgment and
apply the same legal standards as the district court.1 Summary judgment is
appropriate when the record discloses that no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law.2
Additionally, the district court’s interpretation of an insurance contract is a
question of law subject to de novo review.3
The parties agree that the applicable contracts are governed by Texas law.
Under Texas law, insurance policies and indemnity agreements are contracts,
and the general rules of contract interpretation apply.4 An insurance policy’s
terms are unambiguous if they have definite and certain legal meaning.5 If the
terms are unambiguous, the court must enforce the policy according to its plain
meaning.6 The parties’ disagreement regarding the extent of coverage does not
create an ambiguity.7
1
Allstate Ins. Co. v. Disability Servs. of the Sw. Inc., 400 F.3d 260, 262-63 (5th Cir.
2005).
2
F ED . R. CIV . P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
3
Canutillo Indep. Sch. Dist. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 99 F.3d 695,
700 (5th Cir. 1996) (applying Texas law).
4
Nat’l Union Fire Ins. Co. v. Crocker, 246 S.W.3d 603, 606 (Tex. 2008); see also Valmont
Energy Steel, Inc. v. Commercial Union Ins. Co., 359 F.3d 770, 773 (5th Cir. 2004).
5
Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520
(Tex. 1995).
6
Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex. 1984).
7
Sharp v. State Farm Fire & Cas. Ins. Co., 115 F.3d 1258, 1261 (5th Cir. 1997).
4
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III
Pacific argues that The Centre is not an additional insured under the
policy that it issued to Best Buy. The Pacific policy’s “Additional Insured
Endorsement” provides coverage for an additional insured only “[w]here [Best
Buy is] required [to provide such coverage] by written contract before the date
of loss.” Section 22.1 of the lease agreement required Best Buy, as tenant, to
obtain insurance and name The Centre as an additional insured or, if Best Buy
maintains a net worth of at least $100,000,000, permits Best Buy to self-insure
all or part of this requirement. To determine whether Best Buy has a valid
contractual obligation to name The Centre as an additional insured, we must
examine what is known under Texas law as the express negligence rule.8
A party may not obtain contractual indemnity for its own negligence under
Texas law unless fair notice requirements are satisfied, which include the
express negligence doctrine and the conspicuousness requirement.9 Indemnity
agreements must meet these requirements to ensure that the intent of the
parties is clear and that the risk-shifting provisions are conspicuous.10 The
indemnity provision in the lease between Best Buy and the Centre is broad and
would require Best Buy to indemnify The Centre from The Centre’s own
negligence. The parties agree that this aspect of the indemnity provision is void
under Texas law because it does not satisfy the fair notice requirements.
8
See Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 725 (Tex. 1989)
(explaining that “the express negligence test . . . provides that a party seeking indemnity from
the consequences of its own negligence must express that intent in specific terms”); Ethyl
Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987) (same).
9
Gilbane Bldg. Co. v. Keystone Structural Concrete, Ltd., 263 S.W.3d 291, 296 (Tex.
App.–Houston [1st Dist.] 2007, no pet.) (citing Storage & Processors, Inc. v. Reyes, 134 S.W.3d
190, 192 (Tex. 2004) (explaining conspicuousness requirement) and Dresser Indus., Inc. v. Page
Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993) (explaining express negligence doctrine)).
10
See id.
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Pacific contends that the lease’s requirements regarding insurance for The
Centre as an additional insured are similarly void because, Pacific argues, the
requirement that Best Buy name The Centre as an additional insured solely
supports the lease’s indemnity provision. The Supreme Court of Texas has
recognized that “the express negligence doctrine in Texas has been applied only
to indemnity provisions, not insurance-shifting provisions.” 11 Insurance
procurement, or additional insured, provisions are subject to the express
negligence doctrine only if they “directly support indemnity agreements.”12 A
contract provision that extends direct insured status as an additional insured is
deemed to be separate and independent from the indemnity agreement.13
The Texas Supreme Court has considered an “additional insured”
provision similar to the one contained in Best Buy’s lease with The Centre.14 In
Evanston Insurance Co. v. ATOFINA Petrochemicals, Inc., a service contract
provided that Triple S was to procure insurance “‘[i]ncluding coverage for
contractual liability insuring the indemnity agreement,’” and that Triple S was
to furnish certificates of insurance showing ATOFINA as an additional insured.15
The Texas court held that this “brief statement” requiring Triple S to include
ATOFINA as an additional insured was “clear enough” and sufficient “to extend
insured status to ATOFINA for its own negligence.” 16 The lease between Best
11
Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 806 (Tex. 1992).
12
See id. at 805-06.
13
See Evanston Ins. Co. v. ATOFINA Petrochems., Inc., 256 S.W.3d 660, 670 (Tex.
2008).
14
See id.
15
Id. at 662-63.
16
Id. at 670.
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Buy and The Centre similarly required Best Buy to “name . . . Landlord [The
Centre] as additional insured.”
It is also instructive that the Texas Supreme Court in Evanston Insurance
expressly disapproved of a lower court’s decision in another case, Emery Air
Freight Corp. v. General Transport Systems, Inc.,17 in which the lower court had
refused to enforce a contractual provision requiring one party to include the
other as an additional insured.18 The contractual provisions at issue in Emery
Air Freight were similar to those before us in the present case.19
17
933 S.W.2d 312, 315 (Tex. App.–Houston [14th Dist.] 1996, no writ).
18
Evanston Ins. Co., 256 S.W.3d at 670 (“We disapprove the view that this kind of
additional insured requirement fails to establish a separate and independent obligation for
insuring liability.”) (citing Emery Air Freight Corp., 933 S.W.2d at 315).
19
See Emery Air Freight Corp., 933 S.W.2d at 315, construing the following contractual
provisions:
7. Contractor shall obtain and maintain at its own expense insurance in
such forms and minimum amounts as set forth below naming Emery as an
additional insured. Contractor shall furnish Emery certificates from all
insurance carriers showing the dates of expiration, limits of liability thereunder
and providing that said insurance will not be modified on less than thirty (30)
days’ prior written notice to Emery.
Minimum Limits of Insurance:
A. Worker’s Compensation-Statutory
B. General Liability Insurance-$1 Million Combined Single Limit
C. Automobile Liability-$1 Million Combined Single Limit
If Contractor fails to obtain and maintain the insurance coverage set forth
above, Emery shall have the right, but not the obligation, to obtain and
maintain such insurance at Contractor’s cost or, at its option, to terminate this
Agreement for cause as provided in Section 9 hereof.
8. Contractor shall be solely responsible and liable for any and all loss,
damage or injury of any kind or nature whatever to all persons, whether
employees or otherwise, and to all property, including Emery shipments while
in the Contractor’s custody and control, arising out of or in any way resulting
from the provision of services hereunder, and Contractor agrees to defend,
indemnify and hold harmless Emery, its agents, servants, and employees from
and against any and all loss and expense, including legal costs, arising out of
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This circuit has upheld additional insured provisions despite void
indemnity provisions present in the same contract.20 In LeBlanc v. Global
Marine Drilling Co., a contract contained both an additional insured clause and
a void indemnification clause.21 The former clause stated, “[T]o the extent
Subcontractor assumes liability hereunder, and agrees to indemnify Contractor,
Contractor shall be named an additional insured in [certain] insurance
policies.” 22 In LeBlanc, we rejected the subcontractor’s argument that, based on
the text of the clause, the additional insured clause was contingent on a valid
indemnification clause.23 Instead, this court interpreted the contract as
imposing two concomitant requirements—indemnification and insurance
procurement—and stated “[i]f the parties had determined to condition [the
contractor’s] assured status upon the legal enforceability of the indemnity
agreement, they very easily could have done so.”24
Although it is not necessary that the additional insured provision and the
contractual indemnity provisions be in separate paragraphs, those provisions are
in separate paragraphs in the Best Buy lease, underscoring the distinct and
the provision of the services hereunder, by Contractor.
20
See, e.g., Certain Underwriters at Lloyd’s London v. Oryx Energy Co., 142 F.3d 255,
258-60 (5th Cir. 1998) (enforcing an additional insured provision and noting that “[t]here is
no justification for an argument that Texas courts would engraft a limit on coverage to match
the Texas law defense as if the suit were only to enforce the indemnity itself”); see also Mid-
Continent Cas. Co. v. Swift Energy Co., 206 F.3d 487, 494 n.8 (5th Cir. 2000) (noting that an
additional insured provision would be enforceable even if the underlying indemnity obligation
were unenforceable under the Texas Oilfield Anti-Indemnity Act).
21
193 F.3d 873 (5th Cir. 1999).
22
Id. at 875 (alteration in original).
23
Id.
24
Id.
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independent nature of the indemnity obligation and Best Buy’s obligation to
name The Centre as an additional insured.
The district court properly concluded that the contractual provision
requiring Best Buy to include The Centre as an additional insured under the
policy procured from Pacific is enforceable.
IV
Because The Centre is an additional insured under the Pacific policy, the
priority of coverage between the Pacific policy and the Travelers policy must be
determined. Both policies contain “Other Insurance” provisions. The Pacific
policy’s “other insurance” clause reads:
4. Other Insurance
If other insurance is available to the insured for
a loss we cover under this policy, this insurance
is excess over that other insurance, unless that
insurance is written specifically to apply in
excess of the Limits shown in the Declarations.
The Travelers policy’s “other insurance” clause reads:
4. Other Insurance
If other valid and collectible insurance is
available to the insured for a loss we cover under
Coverage A or B of this Coverage Part, our
obligations are limited as follows:
a. Primary Insurance
This insurance is primary except when b. below
applies . . . .
b. Excess Insurance:
This insurance is excess over any of the
other insurance; whether primary, excess,
contingent, or on any other basis:
....
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(4) That is valid and collectible insurance
available to you [The Centre] if you are
added as an additional insured under any
other policy.
We first consider Pacific’s argument that the coverage it provided to The
Centre as an additional insured should be treated as a pure excess insurance
policy, in the nature of an umbrella policy, because the lease permitted Best Buy
to self-insure all or part of its insurance obligation to The Centre, and Best Buy
did in fact self-insure up to the amount of $200,000.
Pacific’s position is not supported by Texas law. Texas courts have held
that for purposes of applying “other insurance” clauses in insurance policies, a
self-insurer does not provide “other insurance,” 25 and a self-insurer does not
provide “valid and collectible insurance” within the meaning of an “other
insurance” clause.26 Best Buy’s retention of the first $200,000 of liability under
the Pacific policy does not constitute “other valid and collectible . . . insurance
available to [The Centre]” within the meaning of the Travelers policy.
We must, therefore, determine how to apply the “other insurance”
provisions in the two policies at issue. If the Travelers policy were the only
policy available to The Centre, The Centre would be covered, and similarly, if the
Pacific policy were the only policy available, The Centre would be covered. The
question is how to determine whether one or both of the policies must respond
when there are competing “other insurance” clauses in each policy. Generally,
25
See Hertz Corp. v. Robineau, 6 S.W.3d 332, 335 (Tex. App.–Austin 1999, no pet.)
(“Texas law has been clear for more than 40 years that self-insurance is not ‘other
insurance.’”); Home Indem. Co. v. Humble Oil & Ref. Co., 314 S.W.2d 861, 865-66(Tex. App.–
Dallas 1958, writ ref’d n.r.e.).
26
See Allstate Ins. Co. v. Zellars, 462 S.W.2d 550, 552 (Tex. 1970) (agreeing that a self-
insurer does not provide “valid and collectible insurance” within the meaning of an other
insurance clause).
10
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a Texas court determines whether it can harmonize the competing “other
insurance” clauses or whether they conflict.27
In this case, the district court held that the “other insurance” clauses in
the Travelers and Pacific policies were harmonious. The district court wrote:
Reading together both policies, the Pacific
Employers Policy states that it is excess “unless [the
other] insurance is written specifically to apply in
excess of the Limits shown in the Declarations.” The
Travelers Policy fits that exception: it is written
specifically to apply in excess over any other insurance
(“whether primary, excess, contingent or on any other
basis”) that is valid and collectible insurance to The
Centre “if [The Centre] is added as an additional
insured under any other policy.” As observed above,
The Centre was added as an “additional insured” under
the Pacific Employers Policy, and the Travelers Policy
is therefore excess to the limits of insurance provided
for The Centre by the Pacific Employers Policy. The
“other insurance” clauses of the two policies are not in
conflict.
Accordingly, the Pacific Employers Policy is
primary and provides coverage on the underlying loss
liability up to $1,000,000 to both its named insured,
Best Buy, and its additional insured, The Centre, and
the Travelers Policy, “written specifically” for excess
coverage under these circumstances, is excess to the
Pacific Employers Policy. Travelers is therefore
entitled as subrogee to recover from Pacific Employers
the costs paid to settle claims asserted against The
Centre in the Underlying Action.
This reasoning, however, is contrary to Texas law. The Supreme Court of
Texas long ago recognized that insurance policies have been written in many
different forms in an effort to limit coverage or liability when more than one
27
Hardware Dealers Mut. Fire Ins. Co. v. Farmers Ins. Exch., 444 S.W.2d 583, 585-87
(Tex. 1969) (noting that the court must consider “whether the two restrictive provisions
conflict or can be harmonized”).
11
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policy may potentially cover a loss,28 and conflicts between these provisions arise
in a number of forms.29 The Texas court surveyed the efforts courts in other
jurisdictions had made over the years to resolve or “harmoniz[e]” such
provisions, noting the shortcomings of various approaches. 30 One approach
discussed and rejected by the Supreme Court of Texas was similar, if not
identical, to that applied by the district court in this case. The Texas court
observed in Hardware Dealers Mutual that “[m]ost courts have concluded that
a general escape clause must yield to the more specific excess clause,”31 and this
led to “many insurers redraft[ing] the wording of their general escape clauses in
order to out-specific the specific excess clauses in other policies.” 32 The Texas
Supreme Court also observed that some courts had “given controlling force to the
specific escape clause over the excess clause.”33 The Texas court declined to
adopt interpretive methodologies such as these, explaining “[t]he fixing of
liability by determining which of two specific clauses is the more specific is no
28
Id. at 586 (describing at least three kinds of “other insurance clauses”: “(1) A pro rata
clause restricts liability upon concurring insurers to an apportionment basis. (2) An excess
clause restricts liability upon an insurer to excess coverage after another insurer has paid up
to its policy limits. (3) An escape clause avoids all liability in the event of other insurance.”).
29
See id. (identifying at least five categories of conflicts: “(1) One policy contains an
excess clause and the other contains a pro rata clause, . . . (2) One policy contains a non-
liability or escape clause and the other contains a pro rata clause, . . . (3)Both policies contain
an excess clause, . . . (4) One policy contains an excess clause and the other a non-liability or
escape clause, . . . (5) One policy contains what has been termed a specific escape clause which
specifies the kind of ‘other insurance,’ the existence of which relieves the former insurer of
liability . . . .”).
30
See id. at 586-89.
31
Id. at 587.
32
Id. at 588.
33
Id.
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better [than the prior-in-time or search-for-the-primary-tort-feasor methods].” 34
“Moreover, it encourages the continuing battle of draftsmanship of still more
specific policy terms, and the end is not in sight.” 35
Instead, the Texas Supreme Court held
We, therefore, shall follow this rule: When, from the
point of view of the insured, she has coverage from
either one of two policies but for the other, and each
contains a provision which is reasonably subject to a
construction that it conflicts with a provision in the
other concurrent insurance, there is a conflict in the
provisions.36
The Texas court concluded that coverage under both policies “is a reasonable
result since both insurers wrote expanded coverage policies which they must
have intended should reach [the insured].”37
With great respect to the district court, the “other insurance” clauses in
the Travelers and Pacific policies could reasonably be construed to conflict. The
Travelers policy states unequivocally that it is “excess over any of the other
34
Id.
35
Id.
36
Id. at 589.
37
Id. at 590. The provisions at issue in Hardwear Dealers Mutual were as follows:
Farmers’ policy: ‘* * * However, the insurance with respect to a temporary
substitute automobile or non-owned automobile shall be excess insurance over
any other valid and collectible insurance.’
Hardware’s policy: ‘* * * Any other person, but only if no other valid and
collectible automobile liability insurance, either primary or excess, with limits
of liability at least equal to the minimum limits specified by the financial
responsibility law of the state in which the automobile is principally garaged,
is available to such person; * * *.’
Id. at 585-86.
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insurance[,] whether primary, excess, contingent, or on any other basis,”
including specifically insurance available to The Centre as an additional insured
under another policy. The Pacific policy expresses an intent that it is to be
excess over other insurance “unless that insurance is written specifically to
apply in excess of the Limits shown in the Declarations.” The per-occurrence
limit of the Pacific policy shown in the Declarations is $1,000,000, and the
aggregate limits are $2,000,000. The Pacific policy seems to contemplate that
“other insurance” means true “excess” or umbrella insurance. The phrase
“unless that insurance is written specifically to apply in excess of the Limits
shown in the Declarations” in the Pacific policy can reasonably be construed to
mean that the Pacific policy is excess when other insurance is available unless
the other insurance either specifically references the Pacific policy and states
that it is excess to the Pacific policy, or the other insurance provides that it
applies only as excess insurance above a stated dollar limit that is above per-
occurrence and aggregate limits of $1,000,000 and $2,000,000, respectively. The
Travelers policy does not refer to the Pacific policy by name nor does it contain
any reference to specific dollar limits in the “other insurance” provision. The
Pacific and Travelers “other insurance” clauses are the types of “other insurance”
clauses identified by the Texas Supreme Court that cause confusion and
reasonably appear to conflict. A reasonable construction of the Travelers policy
is that it is excess to the Pacific policy. Likewise, the Pacific policy can
reasonably be construed to provide that it is excess to the Travelers policy since
the Travelers policy is not “written specifically to apply in excess of [$1,000,000
or $2,000,000]” as the Pacific policy requires.
Our court’s decision in Royal Insurance Co. of America v. Hartford
Underwriters Insurance Co.38 also leads us to conclude that from the perspective
38
391 F.3d 639 (5th Cir. 2004).
14
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of the insured, the “other insurance” clauses in the Travelers and Pacific policies
reasonably conflict. In Royal Insurance, our court cited a prior decision of this
court 39 and reiterated the “caution[] against applying overly narrow
constructions of Hardware Dealers.”40 We construed “other insurance”
provisions to conflict.41
The Centre has coverage under both the Travelers and Pacific policies, and
because the “other insurance” provisions conflict, each insurer must share in the
costs of underlying litigation against The Centre.
V
The remaining question is how the cost of the settlement should be
apportioned between Travelers and Pacific. Under Texas law, coverage should
be pro-rated between the two insurers proportionate to the coverage each policy
provided.42 Since each provided an equal amount of coverage, each should share
equally in the cost to defend 43 and settle all claims. The district judge’s
memorandum and order reflects that both Pacific and Best Buy’s counsel
represented that Best Buy had satisfied the retention. Accordingly, the costs
above that self-retention should be pro-rated.
39
Id. at 643 (citing St. Paul Mercury Ins. Co. v. Lexington Ins. Co., 78 F.3d 202, 210 (5th
Cir. 1996)).
40
Id.
41
Id. at 643-44; see also Willbros RPI, Inc. v. Continental Cas. Co., No. 08-20665, 2010
WL 924703, at *5 (5th Cir. Mar. 16, 2010) (holding that “other insurance” provisions similar
to those at issue in the present case conflicted). But see Willbros, 2010 WL 924703, at *8
(GARZA , J., concurring) (contending that the plain language of the “other insurance” provisions
was not reasonably subject to a construction that produces a conflict).
42
Hardware Dealers Mut. Fire Ins. Co. v. Farmers Ins. Exch., 444 S.W.2d 583, 590 (Tex.
1969).
43
Pacific argued below that its policy excluded a duty to defend; the district court
rejected this argument. Pacific’s brief does not renew this exclusion argument, and thus we
consider it waived.
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* * *
We REVERSE the district court’s grant of summary judgment in favor of
Travelers and REMAND for further proceedings consistent with this opinion.
16