Bituminous Cas. Corp. v. Vacuum Tanks, Inc.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-20789
_____________________

BITUMINOUS CASUALTY CORPORATION,

Plaintiff-Appellant,
Cross-Appellee,

versus

VACUUM TANKS, INC.,

Defendant-Appellee,
Cross-Appellant.

_______________________________________________________

Appeals from the United States District Court for
the Southern District of Texas
_______________________________________________________

February 28, 1996

Before REAVLEY, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

REAVLEY, Circuit Judge:

In this lost policy case, Bituminous Casualty Corporation

(“Bituminous”) appeals a judgment entered in favor of its

insured, Vacuum Tanks, Inc. (“VTI”). We modify the judgment so

as to deny the award of attorney’s fees to VTI, and otherwise

affirm.

BACKGROUND

VTI is in the business of transporting liquid waste

materials from industrial sites to disposal sites. It became the

subject of several pollution damage and cleanup claims relating

to dumping activities from 1959 through 1965. These claims (the
“underlying claims”), were asserted in three separate lawsuits.

VTI incurred expenses in defending and settling these claims.

Bituminous, VTI’s insurer, initiated this Texas law

diversity suit, seeking a declaratory judgment that it had no

duty to defend or insure against the underlying claims. VTI

counterclaimed, seeking a declaratory judgment that Bituminous

had a duty to defend, recovery of its costs in defending the

underlying claims, and punitive damages for bad faith denial of

coverage. Neither party could find a copy of the annual

policies, although Bituminous found a copy of a “specimen policy”

for this period.

In 1991 the case was tried to the court and it ruled in

favor of VTI on the coverage issue, although it found no breach

of the duty of good faith and fair dealing. We reversed and

remanded for further proceedings in a prior appeal. Bituminous

Casualty Corp. v. Vacuum Tanks, Inc., 975 F.2d 1130 (5th Cir.

1992). We found that “VTI produced sufficient evidence to prove

that insurance policies had existed during the relevant time

period,” id. at 1131, but that there was insufficient proof of

the actual terms of the policy, or whether the waste disposal

claims were covered by the policies, id. at 1132-33. We also

addressed attorney's fees, as discussed further below.

After remand the district court conducted further trial

proceedings. The court again found that Bituminous had issued

comprehensive general liability (CGL) policies to VTI which

covered the underlying claims. The court awarded VTI certain

2
costs incurred in defending the underlying claims, prejudgment

interest and attorney's fees.

In the second appeal, Bituminous does not dispute the

conclusion of our prior panel that it had issued policies during

the period in question, but again argues that VTI failed to carry

its burden of proving “the terms of the insurance contract

between the parties in order to establish coverage under the

policy.” Id. at 1132.

DISCUSSION

A. Proof of Terms of Coverage

As in the first trial, the district court concluded that the

claims asserted in the underlying actions were covered by the

Bituminous policies. The court found that the policies actually

issued to VTI had the same terms as those in the specimen policy

found in Bituminous’ VTI file. This finding by the district

court is a finding of fact, which we will not disturb unless

clearly erroneous. Fiberlok, Inc. v. LMS Enters., Inc., 976 F.2d

958, 962 (5th Cir. 1992).

The district court did not clearly err in finding that the

terms of the policies matched those of the specimen policy.

VTI’s evidence in support of this finding included the following.

VTI again offered the specimen policy, which was written for use

in Texas. Unlike at the first trial, VTI offered the policy for

all purposes, rather than limiting its offer to the issue of good

faith. See Bituminous, 975 F.2d at 1132-33.

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 An assistant director from the Texas Department of

Insurance, Charles DuPertuis, testified that the Texas Board of

Insurance mandated particular forms for insurance policies for

the period in question, and that as a licensed insurer Bituminous

was required to conform to the mandatory forms. The Board issued

bulletins setting out the required forms. DuPertuis further

testified that there were two types of comprehensive policies

allowed: a comprehensive general auto liability policy and a

comprehensive general liability policy. The only difference

between the two concerns automobile coverage not relevant here.

DuPertuis testified that the specimen policy produced from

Bituminous's files conformed exactly to the mandatory

requirements of the bulletins, which were also introduced at the

second trial. He testified that a licensed insurer could deviate

from the mandatory terms of the approved forms and endorsements

only by obtaining Board approval of its own endorsement for a

particular named insured.

VTI’s independent insurance agent told Bituminous that the

policies issued to VTI “were the standard comprehensive general

policies with the normal standard endorsements.” Kemp Martin, an

agent who worked for the successor to the agency employing VTI’s

original agent, testified to the same effect. Martin also

testified that none of the standard approved endorsements at the

time, such as endorsements for dog liability and professional

services, would have been applicable to this case. VTI offered

as exhibits what it claimed were all the approved endorsements

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for this period. They deal with coverage issues not relevant

here such as endorsements for engineers, architects, etc. None

of the endorsements would preclude coverage here. A Bituminous

internal memorandum concedes that during the period in question

policies “had no pollution exclusion wordage.”

Evidence was offered that Bituminous knew the nature of

VTI's business and that all operations of the insured were

covered by the policies. VTI produced Railroad Commission

records and other records showing that VTI had comprehensive

general liability insurance during the period in question. Jacque

DeCoux, the president of VTI and a lawyer, testified that in his

opinion, based on his knowledge of the company and the documents

he had reviewed, VTI had comprehensive liability coverage with

only one endorsement -- a $250 deductible per claim against

property damage.

We noted in the prior panel opinion that in lost policy

cases the terms of the policy can be established by secondary

evidence. Bituminous, 975 F.2d at 1132. Based on the evidence

presented, the district court did not clearly err in concluding

that during the time period in issue Texas was a "standard

policy" state, and that all CGL policies were required to contain

the terms and provisions in the state bulletins introduced by

VTI, as mirrored by the specimen policy.

Bituminous complains that the district court erred in

allowing the testimony of Mr. DeCoux because he was not an

insurance expert and for other reasons. DeCoux had served as the

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president of VTI for many years. To the extent that he testified

that VTI maintained continuous liability coverage with a certain

deductible, his testimony was based on his knowledge of the

company and his review of relevant records. To the extent that

he testified that the terms of the missing policies matched those

of the specimen policy, his testimony was cumulative of other

evidence supporting the same conclusion. “Under [FED. R. EVID.]

103(a), appellate courts should reverse on the basis of erroneous

evidentiary rulings only if a party's substantial rights are

affected. Moreover, the party asserting error based on erroneous

rulings bears the burden of proving that the error was harmful."

Carroll v. Morgan, 17 F.3d 787, 790 (5th Cir. 1994) (citation

omitted). Bituminous fails to carry its burden of showing that

the testimony affected its substantial rights, even if it was

erroneously admitted.

B. Coverage Under the Specimen Policy

Bituminous argues in the alternative that even if the terms

of the policies issued to VTI matched those found in the specimen

policy, Bituminous had no duty to defend.

The specimen policy covers “all sums which the insured shall

become legally obligated to pay as damages because of bodily

injury, sickness or disease . . . sustained by any person and

caused by accident.” It also covers “all sums which the insured

shall become legally obligated to pay as damages because of

injury to or destruction of property, including the loss of use

thereof, caused by accident.”

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 1. Injury to Property

Bituminous first argues that the underlying claims do not

constitute “injury to or destruction of property.” In

particular, it argues that the “CERCLA claims” do not fall within

the policy coverage for property damage.

Under Texas law, the duty to defend is determined by the

terms of the policy and the allegations of the underlying suit

without regard to their truth of falsity. Gulf Chem. &

Metallurgical Corp. v. Associated Metals & Minerals Corp., 1 F.3d

365, 369 (5th Cir. 1993). The duty to defend “is owed by each and

every insurer whose policy is potentially implicated” and

“remains absolute until the insurer proves that its policy covers

no remaining claims.” Id. at 372. In construing the allegations

of the underlying suit, “courts liberally interpret the meaning

of those allegations in the insured’s favor.” Pro-Tech Coatings,

Inc. v. Union Standard Ins. Co., 897 S.W.2d 885, 887 (Tex. App.--

Dallas 1995, no writ). “Any doubt as to whether the complaint

states a covered cause of action is resolved in the insured’s

favor.” Cullen/Frost Bank of Dallas v. Commonwealth Lloyd’s Ins.

Co., 852 S.W.2d 252, 255 (Tex. App.--Dallas 1993), writ denied,

889 S.W.2d 266 (Tex. 1994). Likewise, in construing the language

of the policy, “when the language chosen is susceptible of more

than one construction, such policies should be construed strictly

against the insurer and liberally in favor of the insured.”

Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 666 (Tex. 1987).

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 Complaints in the three underlying suits -- the Alston,

Cummins, and Motco suits -- are a part of the record. Applying

the Texas rules set out above, we can without hesitation conclude

that the policy imposed a duty to defend VTI in the Alston1 and

Cummins2 proceedings.

The Motco suit was brought by the federal government against

VTI and other defendants, exclusively under the Comprehensive

Environmental Response, Compensation, and Liability Act of 1980

(CERCLA), 42 U.S.C. § 9607(a).3 It sought recovery of costs

incurred by the government in responding to the releases or

threatened releases of hazardous substances at the “Motco”

facility or site. Bituminous argues that the cleanup costs

The Alston complaint alleged that VTI was one of numerous
defendants that disposed of hazardous wastes at the “Sikes” and
“French Limited” sites. In the complaint the plaintiffs allege
that: defendants have “caused injury to the property of the
Plaintiffs, and to the persons of those living on the property”
(¶ 15); “Defendants caused various harmful substances . . . to
come in contact with the persons of Plaintiffs. Said contact was
offensive and caused physical harm, including pain.” (¶ 30); “The
Defendants are liable for personal injury, wrongful death, and
injury, damage or loss to real estate caused by the defective and
unsafe condition of the real property of the sites . . . .” (¶
34); “As a result of the acts of the Defendants, the Plaintiffs
herein have suffered injuries to both their persons and
property,” and the damages include cancer, birth defects, and
other ailments (¶ 40).

The complaint in Cummins alleges that VTI dumped hazardous
substances on the “Bailey” and “Cummins” tracts. The plaintiffs’
alleged that damages include permanent diminution in the value of
their property in the amount of $30 million, and that
“additional damages will include further contamination of
Plaintiffs’ property and continued exposure of the public to the
harmful, even fatal, effects of the hazardous substances stored
and disposed at the Bailey Waste Disposal Site.”

The Cummins suit also asserted claims under CERCLA.

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incurred by the government, recovery of which was sought against

the Motco defendants under CERCLA, are not for physical injury to

or destruction of property, but are economic injury. The policy

covers “all sums which the insured shall become legally obligated

to pay as damages because of injury to or destruction of property

. . . .” Under the Texas rule that uncertainties as to insurance

coverage set out in the policy should be decided in favor of the

insured, we conclude that government cleanup costs, incurred in

responding to the dumping of hazardous wastes on property, and

imposed on the insured by CERCLA, are covered by this language in

the policy. We find that such a reading is a reasonable and

straightforward interpretation of the clause in issue. Most, but

not all, federal courts construing the law of various states

agree. See Aetna Casualty and Sur. Co. v. Pintlar Corp., 948

F.2d 1507, 1511-15 (9th Cir. 1991); Independent Petrochemical

Corp. v. Aetna Casualty and Sur. Co., 944 F.2d 940, 946-47 (D.C.

Cir. 1991), cert. denied, 503 U.S. 1011 (1992); New Castle County

v. Hartford Accident and Indem. Co., 933 F.2d 1162, 1184-1191 (3d

Cir. 1991); Avondale Indus., Inc. v. Travelers Indem. Co., 887

F.2d 1200, 1206-07 (2d Cir. 1989), cert. denied, 496 U.S. 906

(1990); Dayton Indep. School Dist. v. National Gypsum Co., 682 F.

Supp. 1403, 1411 n.24(E.D. Tex. 1988) (“Even in cases involving

coverage for cleanup costs incurred by a policyholder in

complying with governmental directives in environmental matters,

the weight of authority and better reasoned decisions hold that

those costs are ‘damages.’”), reversed on other grounds, 896 F.2d

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865 (5th Cir. 1990); Intel Corp. v. Hartford Accident and Indem.

Co., 692 F. Supp. 1171,1188 (N.D. Cal. 1988) (“The clear bulk of

authority has held that cleanup costs are damages within the

scope of CGL policy coverage.”), reversed in part on other

grounds, 952 F.2d 1551 (9th Cir. 1991); but see Continental Ins.

Cos. v. Northeastern Pharmaceutical & Chemical Co., 842 F.2d 977,

987 (8th Cir.) (en banc), cert. denied, 488 U.S. 821 (1988);

Maryland Cas. Co. v. Armco, Inc., 822 F.2d 1348, 1352 (4th Cir.

1987), cert. denied, 484 U.S. 1008 (1988).

2. Accident

Bituminous also argues that there was no coverage because

there was no “accident,” since VTI’s transportation of hazardous

materials was voluntary and intentional. We disagree, since we

have held that under Texas law the focus is not on whether the

insured’s conduct or actions were intentional, but on whether the

insured intended the damages or injuries which are the subject of

the underlying claims. As we explained in Meridian Oil

Production Co. v. Hartford Accident and Indem. Co., 27 F.3d 150

(5th Cir. 1994):

Texas courts afford coverage for fortuitous damages but
deny coverage when damages are the natural and probable
consequence of intentional conduct. Regardless of
whether the policies involved are worded to cover
“accidents” or “occurrences,” all offer minor
variations of the same essential concept; coverage does
not exist for inevitable results which predictably and
necessarily emanate from deliberate actions.

Id. at 152 (footnote omitted, emphasis added). We held that

there was no coverage in Meridian because “the damages to the

Marshalls’ land were not unexpected from the standpoint of the

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insured.” Id. (emphasis added). See also Gulf Chemical, 1 F.3d

at 370 (holding that relevant question in applying “expected or

intended” exclusion is whether the injury which forms the basis

of the claim is expected or intended by the insured); Hartford

Casualty Co. v. Cruse, 938 F.2d 601, 604-05 (5th Cir. 1991)

(although insured’s performance of its services might not be

considered an accident, CGL policy covered claims for defective

work, since “an occurrence takes place where the resulting injury

or damage was unexpected, regardless of whether the

policyholder’s acts were intentional.”) (citation omitted,

emphasis added). The three underlying suits in our case were not

based on allegations that VTI intended or expected the alleged

personal injuries, diminution in property values, migration of

contaminants, cleanup costs, and other alleged injuries and

damages.

Union Pac. Resources Co. v. Aetna Casualty & Sur. Co., 894

S.W.2d 401 (Tex. App.--Fort Worth 1994, writ denied), is also

instructive. There, the plaintiff-insured had a CGL policy with

the defendant-insurer. The insurer claimed that the policy did

not cover the insured’s costs of settling a CERCLA cleanup

action. It argued that the insured’s “liability for cleanup

under CERCLA was its dumping of wastes at the landfill, and

because that dumping was intentional, it was not an accident.”

Id. at 403. The court rejected this argument, reasoning that

“[t]he pertinent ‘occurrence’ is the migration or emanation of

wastes from the point of deposit that results in property damage.

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The relevant inquiry . . . is whether the policy holder expected

the landfill to discharge the waste into the surrounding

environment.” Id. at 404. By a similar analysis, the three

underlying suits in our case were based at least in part on the

migration of pollutants to the surrounding environment. For

example, the Alston complaint alleges that the dumped hazardous

wastes had seeped into ground water, washed out of the dump site

onto the property of plaintiffs, and vaporized into the air, and

that plaintiffs had consumed the chemicals through absorption by

the skin, ingestion, and breathing contaminated air. The Cummins

complaint alleged that defendants dumped toxic chemicals at the

Bailey site, and that these chemicals had migrated to the Cummins

tract which is owned by plaintiffs. In the Motco complaint the

government alleged that its cleanup response was undertaken based

on the release or substantial threat of release of hazardous

substances into the environment, and that “hazardous substances

and other pollutants and contaminants have migrated out of the

[Motco site] and into the environment by overflowing the dikes,

inundation of floodwater, and by migrating through the soil.”

3. Policy Period

Bituminous next contends that VTI failed to prove that the

claims occurred during the 1959-1965 period of coverage. It

contends that under Texas law an accident occurs not when the

wrongful act was committed but when the complaining party was

damaged. Assuming that Bituminous is right on the law, and

construing the allegations of the underlying complaints liberally

12
in favor of the insured, as we must, all of the underlying suits

stated potential claims within the period of coverage, thus

imposing on Bituminous its duty to defend.4

4. Notice

Bituminous argues that it had no duty to defend because VTI

failed to comply with the notice provisions of the policy. The

policy provides that “[i]f claim is made or suit is brought

against the insured, the insured shall immediately forward to the

company every demand, notice, summons or other process received

by him or his representative,” and that “[n]o action shall lie

against the company unless, as a condition precedent thereto, the

insured shall have fully complied with all the terms of this

policy . . . .” Not only must we construe any ambiguity in

these provisions in favor of VTI, but because they involve “an

The Motco complaint alleges that the Motco site was operated
as a recycling or waste disposal facility from 1959 to 1968, that
VTI disposed of hazardous substances at the site “at relevant
times,” that hazardous substances had migrated off the site “at
various times,” and that there have been and continue to be
releases of such substances into the environment. The Cummins
suit alleges that defendants used the Bailey tract as a dump
during the 1950's and 1960's, and also dumped wastes on the
Cummins tract “in such a manner as to produce hazardous
substances which are damaging to the property owned by
Plaintiffs.” The complaint makes no further attempt to specify
the dates that the dumped chemicals migrated from the Bailey
tract to the Cummins tract and otherwise diminished the value of
plaintiffs’ property or caused the other alleged damages. The
Alston complaint alleges that the plaintiffs were subjected to
hazardous chemicals and carcinogens dumped by defendants between
the late 1950's and the mid 1970's. Plaintiffs allege that
floods at one of the sites between the 1960's and mid 1980's
caused chemicals to come in contact with plaintiffs’ persons and
property, and that flooding at both sites contaminated the
property of plaintiffs “on many occasions” since the sites began
to be used for hazardous waste disposal. Plaintiffs allege
injuries to person and property “over a period of time.”

13
exception or limitation on . . . liability under the policy, an

even more stringent construction is required.” Barnett, 723

S.W.2d at 666. “[W]e must adopt the construction of an

exclusionary clause urged by the insured as long as that

construction is not itself unreasonable, even if the construction

urged by the insurer appears to be more reasonable or a more

accurate reflection of the parties’ intent.” Glover v. National

Ins. Underwriters, 545 S.W.2d 755, 761 (Tex. 1977).

Bituminous argues in its brief that “VTI never sent

Bituminous any suit papers for any of the lawsuits identified in

Plaintiff’s Exhibits 1 and 7.” The suits identified in Exhibits

1 and 7 are the Motco and Cummins suits.5 Exhibit 1 is an August

1, 1986 letter from Mr. DeCoux to Bituminous and other insurers

requesting a defense of the two suits. It pointed out that on

June 30, 1986, Bituminous had been served in the Cummins suit,

and that it had been sued but not yet served in the Motco suit.

As to each suit, the letter identified the cause number, court,

parties, waste disposal site in issue, alleged time periods of

dumping, alleged damages, and other matters pleaded. In

responding to the letter, Bituminous did not request copies of

the suit papers, but instead wrote DeCoux that it could not find

copies of the policies.

Exhibit 7, a March 31, 1987 letter from Mr. DeCoux to
Bituminous, discusses the Sikes pit, but VTI was not sued in
connection with that site until it was joined in the Alston suit
in 1991.

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 Texas courts have held that a failure to forward suit papers

as required by an insurance policy relieves the insurer of its

obligations under the policy.6 However, in analogous situations,

this court and Texas courts have held that substantial compliance

with an insurance policy notice requirement will suffice,7 and

that the insurer can waive the notice requirement through its

action8 or inaction.9 We hold that VTI substantially complied

with the notice requirement by apprising Bituminous in writing of

the essential allegations of the underlying suits, and that

Bituminous waived further compliance with the notice requirement

by failing to request that the suit papers themselves be

Weaver v. Hartford Accident and Indem. Co., 570 S.W.2d 367
(Tex. 1978); Members Mut. Ins. Co. v. Cutaia, 476 S.W.2d 278
(Tex. 1972). We note that effective May 1, 1973, the Texas State
Board of Insurance requires that for general liability policies,
the insurer must be prejudiced by the insured’s failure to
forward suit papers before such failure will bar the insurer’s
liability under the policy. American States Ins. Co. v. Hanson
Indus., 873 F. Supp. 17, 27 (S.D. Tex. 1995); Chiles v. Chubb
Lloyds Ins. Co., 858 S.W.2d 633, 635 (Tex. App.--Houston [1st
Dist.] 1993, writ denied). However, we apply the law in effect
at the time the policy was issued. American States, 873 F. Supp.
at 28; Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 11 n.1 (Tex.
App.--Dallas 1983, writ ref’d n.r.e.).

For example, courts have held that substantial compliance
with policy requirements that an insured provide proof of loss to
the insured is all that is required. First Nat’l Bank of Bowie
v. Fidelity & Casualty Co. of New York, 634 F.2d 1000, 1005 (5th
Cir. 1981) (applying Texas law); Henry v. Aetna Casualty and Sur.
Co., 633 S.W.2d 583, 584 (Tex. App.--Texarkana 1982, writ ref’d
n.r.e.); Dairyland County Mut. Ins. Co. v. Keys, 568 S.W.2d 457,
459 (Tex. Civ. App.--Tyler 1978, writ ref’d n.r.e.).

Womack v. Allstate Ins. Co., 296 S.W.2d 233, 237 (Tex. 1956)
(holding that insurer waived policy provisions requiring notice
of suit and forwarding of process).

Henry, 633 S.W.2d at 584; Dairyland, 568 S.W.2d at 459.

15
forwarded or otherwise objecting to the adequacy of the notice

provided by VTI.

Bituminous separately argues that VTI did not give timely

notice of the Motco “claim,” because “VTI knew about [the Motco

claim] as early as 1982.” The evidence indicates that for years

the government was careful, in the words of DeCoux, “not to

accuse anybody of anything,” and instead sought only information,

but that VTI eventually knew that it faced a potential liability

with respect to the Motco site. However, there was no actual

claim made until the government filed suit in 1986, shortly

before the August 1, 1986 notice letter discussed above. In any

event, construing the notice provision in the policy strictly in

favor of the insured, there was no “demand, notice, summons or

other process received” on the claim that VTI could “forward to

the company” until it was served with the Motco suit in 1986.

5. Voluntary Payment

The policy provides that “[t]he insured shall not, except at

his own cost, voluntarily make any payment. . . .” Bituminous

argues that VTI incurred substantial attorney’s fees and had

arranged for settling the Motco claim before giving notice to

Bituminous. VTI points out, and Bituminous does not dispute,

that the district court did not award these amounts, and only

awarded costs incurred by VTI after it sent the notice letter.

We see no merit to this argument.

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C. Attorney’s Fees

Bituminous contends that the district court erred in

awarding attorney’s fees to VTI. We agree. We held in the prior

appeal that if, on remand, Bituminous could establish “that it

falls within the provisions of [Tex. Civ. Prac. & Rem. Code]

section 38.006, it is exempt from the payment of attorney's

fees." Bituminous, 975 F.2d at 1133-34. Section 38.006 exempts

contracts issued by an insurer subject to the Unfair Claim

Settlement Practices Act. That Act covers stock and casualty

companies. Tex. Ins. Code art. 21.21-2 §7. At the second trial

Bituminous proved that it was a stock property casualty company.

VTI argues that Texas law allows an insured to recover

attorney’s fees in this case; in effect VTI argues that we should

not follow our prior panel opinion. However, the prior panel

decision operates not only as the law of the case in this second

appeal, but, as we recently held in Lafarge Corp. v. Hartford

Casualty Ins. Co., 61 F.3d 389, 403 (5th Cir. 1995), it must be

followed by this court absent a subsequent state decision or

statutory amendment which makes the prior decision clearly wrong.

VTI cites us to a dissenting opinion in Union Bankers Ins. Co. v.

Shelton, 889 S.W.2d 278 (Tex. 1994), which states that attorney's

fees are generally available against insurers who are sued for

failing to pay claims. This statement, however, is dicta in a

dissenting opinion in which only three judges joined. The

opinion cites as authority numerous lower court decisions,

including five which we cited in our prior opinion as not

17
following the prevailing view in Texas. Shelton, 889 S.W.2d at

286 (Cornyn, J., dissenting); Bituminous, 975 F.2d at 1133 n. 4.

Correct or not, we are bound by our prior panel decision.

D. Prejudgment Interest

Bituminous argues that there is no federal or state statute

which allowed the district court to award prejudgment interest in

this case. In this diversity case state law governs the award of

prejudgment interest. FSLIC v. Texas Real Estate Counselors,

Inc., 955 F.2d 261, 270 (5th Cir. 1992). In the absence of a

statutory right to prejudgment interest, Texas law allows for an

award of equitable prejudgment interest under Cavnar v. Quality

Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985). As we have

previously explained, equitable prejudgment interest is awarded

“as a matter of course when the trier of fact finds that damages

accrued before the time of judgment," Concorde Limousines, Inc.

v. Maloney Coachbuilders, Inc., 835 F.2d 541, 549 (5th Cir.1987),

and such an award "is not generally a matter for the trial

court's discretion," Executone Information Sys., Inc. v. Davis,

26 F.3d 1314, 1330 (5th Cir. 1994). “[U]nder Texas law an

equitable award of prejudgment interest should be granted to a

prevailing plaintiff in all but exceptional circumstances.”

American Int’l Trading Corp. v. Petroleos Mexicanos, 835 F.2d

536, 541 (5th Cir. 1987). The district court awarded prejudgment

interest under the rules for its calculation set out in Cavnar.

We see no error here.

18
 The judgment is modified to exclude the award of attorney’s

fees. Otherwise the judgment is affirmed.

AFFIRMED as MODIFIED.

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