Emcasco Insurance v. American International Specialty Lines Insurance

United States Court of Appeals
Fifth Circuit
F I L E D
In the January 27, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________

m 04-11345
_______________

EMCASCO INSURANCE COMPANY,

Plaintiff-Appellant,

VERSUS

AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY,

Defendant-Appellee.

_________________________

Appeal from the United States District Court
for the Northern District of Texas
______________________________

Before GARWOOD, SMITH, and DEMOSS, discovery, both parties moved for summary
Circuit Judges. judgment. The district court granted AISLIC’s
motion, denied EMCASCO’s, and dismissed
JERRY E. SMITH, Circuit Judge: the subrogation suit with prejudice. Finding the
need for further proceedings, we vacate and
EMCASCO Insurance Company (“EM- remand.
CASCO”) filed a subrogation suit against
American International Specialty Lines Insur- I.
ance Company (“AISLIC”) to recover under A.
AISLIC’s commercial general liability policy In February 2001, Jaime Langston was driv-
for monies EMCASCO paid in defense and ing down a paved, public country road with her
settlement of an underlying suit against the young son when she skidded on a patch of slick
two insurers’ mutual insured. After limited mud, clay, and/or sand. The car swerved off
the road, striking a tree. Langston suffered AISLIC’s CGL policy, meanwhile, provides
serious injuries, and her son died at the scene. coverage as follows:

B. 1. Insuring Agreement
In April 2002, the Langstons sued Wil-
son-Riley, Inc. (“Wilson-Riley”),1 the operator a. We will pay those sums that the insured
of a sand pit located immediately adjacent to becomes legally obligated to pay as damages
the accident site, in state court on the premise because of bodily injury or property damage
that Wilson-Riley, as part of its operation at to which this Coverage applies. We will
the sand pit, hauled sand from the pit in trucks have the right and duty to defend any suit
that it owned and operated. The original com- seeking those damages. However, we will
plaint alleged that because of heavy rains pre- have no duty to defend the insured against
ceding the accident, Wilson-Riley’s trucks any suit seeking damages for bodily injury or
tracked mud onto the roadway when exiting a property damage to which this Coverage
driveway leading away from the sand pit and does not apply. We may, at our discretion,
that the mud on the road was the producing investigate any occurrence and settle any
cause of the accident. claim or suit that may result.

Wilson-Riley and SLS had two different AISLIC’s policy also contains the following
insurance policies covering their activities at exclusion:
the sand pit. Specifically, EMCASCO issued
a commercial auto liability policy to Wil- 2. Exclusions
son-Riley and SLS, and AISLIC issued both
companies a commercial general liability policy This insurance does not apply to:
(the “CGL policy”). EMCASCO’s commer-
cial auto liability policy provides, in relevant ...
part:
g. Aircraft, Auto or Watercraft
SECTION IISSLIABILITY COVERAGE
Bodily injury or property damage arising out
A. COVERAGE of the ownership, maintenance, use or en-
trustment to others of any aircraft, auto or
We will pay all sums an insured legally watercraft owned or operated by or rented
must pay as damages because of bodily in- or loaned to any insured. Use includes
jury or property damage to which this in- operation and loading or unloading.
surance applies, caused by an accident and
resulting from the ownership, maintenance About seven weeks after the accident but a
or use of a covered auto. year before the Langstons sued, EMCASCO
hired defense counsel Mike Winchester to de-
fend Wilson-Riley. In doing so, EMCASCO
1 asserted its reservation of rights in defending
The Langstons amended their petition in July
the suit. In April 2002, AISLIC hired its own
2002, adding SLS Management Corporation
(“SLS”), the owner of the property where the sand
defense counsel, Chad Parker, to represent Wil-
pit was located, as a defendant. son-Riley’s interests in the Langston suit.

2
AISLIC also issued Wilson-Riley a reservation aside from actually trying the case.
of rights letter in which AISLIC advised that,
in its view, the existence of the auto exclusion EMCASCO thereafter demanded that AIS-
provision in the CGL policy precluded LIC share equally in the cost of settling the case
coverage in the Langstons’ suit. Specifically, on Wilson-Riley’s behalf. AISLIC refused,
AISLIC stated: citing the Langstons’ pleadings, the evidence it
assumed would be introduced at trial, and
While the plaintiff’s pleadings are ambigu- statements made by the Langstons’ counsel as
ous, we expect that it will come out during eliminating any liability that AISLIC might be
the course of this litigation that the only in- exposed to under its CGL policy.
volvement of Wilson-Riley, Inc., was the
fact that its “autos,” as defined by the poli- In effect, AISLIC maintained that Wil-
cy, were going into and out of the sand son-Riley only faced liability stemming from
pit/premises in question for some weeks EMCASCO’s auto liability policy. The last
proceeding [sic] the accident, and liability version of the Fourth Amended Complaint,
for this would fall squarely under the above however, circulated after SLS settled, alleges
exclusion . . . . It appears that there will be that the unpaved exit that Wilson-Riley created
no coverage for the damages claimed by the from the sandpit to the public road “caused a
plaintiff by virtue of the above policy washing of mud onto the road during rainy
provisions. weather” and that the “exit drive was not paved
until after the accident.” It also includes a sep-
After hiring Parker, AISLIC agreed, in Jan- arate claim for negligence per se because the
uary 2003, to settle the Langstons’ claims defendant “obstructed the road adjacent to its
against SLS for $200,000. After the settle- worksite, which is a violation of Section 42.03
ment, counsel for EMCASCO and Wilson-Ril- of the Texas Penal Code.”
ey’s personal counsel notified AISLIC that
they believed the claims the Langstons had AISLIC did offer to contribute $20,000 to a
remaining against Wilson-Riley still invoked potential settlement in Wilson-Riley’s defense.
AISLIC’s coverage. EMCASCO refused the offer because AISLIC
conditioned the money on the agreement that
It is at this point that the parties disagree as the parties would not later attempt to re-allo-
to the extent of the work performed by Parker cate Wilson-Riley’s settlement costs. EMCAS-
in AISLIC’s defense of Wilson-Riley. EM- CO advised AISLIC that it would settle the
CASCO maintains that, after the SLS settle- claims against Wilson-Riley without AISLIC’s
ment, Parker never reappeared in the suit in participation. EMCASCO then obtained a re-
Wilson-Riley’s defense. Meanwhile, AISLIC lease of all claims against Wilson-Riley by set-
argues that at the time it secured the settle- tling with the Langstons for $350,000.
ment between the Langstons and SLS, the dis-
covery and pleading deadlines relating to Wil- EMCASCO sued AISLIC for subrogation,
son-Riley had passed under the terms of the seeking to recover all or part of the $350,000 it
docket control order. AISLIC acknowledges had paid the Langstons in settlement. After
that Parker did little or no work on behalf of limited discovery, EMCASCO and AISLIC si-
Wilson-Riley after that time but insists that multaneously filed cross-motions for summary
there was little substantive work to be done judgment.

3
 The district court granted AISLIC’s mo- B.
tion, finding that the Langstons’ damages were EMCASCO maintains the district court
covered by EMCASCO’s auto liability policy erred in interpreting the auto exclusion clause in
and were explicitly excluded by AISLIC’s AISLIC’s CGL policy, which precludes cov-
CGL policy. It held that the washing of the erage for damages arising out of the “own-
mud from the unpaved roadway could not ership, maintenance, use or entrustment” of any
have been a “separate” and “independent” auto owned or operated by the insured, to
cause of the accident, which would have in- eliminate AISLIC’s liability for monies recov-
dicated that AISLIC’s policy also covered the ered in the Langstons’ suit. EMCASCO argues
accident. The court determined that the that the recovered damages did not arise out of
mud/clay tracked onto the public road by Wil- the use of a vehicle; it claims the clause is sus-
son-Riley “necessarily involved the use of mo- ceptible to more than one reasonable interpre-
tor vehicles, triggering coverage under its auto tation and thus, under Texas law, should be
policy with EMCASCO.” EMCASCO ap- construed to provide coverage for any “not un-
peals. reasonable” construction. EMCASCO insists
that the district court erred by not addressing
II. the coverage issue against the backdrop formed
A. by Texas law regarding the construction of in-
We review a summary judgment de novo, surance contracts.
applying the same standard as did the district
court. Tango Transp. v. Healthcare Fin. AISLIC, meanwhile, argues that, for three
Servs. LLC, 322 F.3d 888, 890 (5th Cir. reasons, this court should not defer to the “not
2003). Summary judgment is appropriate if unreasonable” construction of the relevant cov-
there is no genuine issue of material fact and erage provisions. First, it contends the policies
the moving party is entitled to judgment as a at issue contain no ambiguity that would im-
matter of law. FED. R. CIV. P. 56(c). We view plicate the method of contract construction fa-
the evidence in a light most favorable to the voring the insured. Second, it insists that EM-
non-movant. Coleman v. Houston Indep. Sch. CASCO’s proposed reading of the policies does
Dist., 113 F.3d 528, 533 (5th Cir. 1997). To not favor the insured, Wilson-Riley, because
avoid summary judgment, the non-movant EMCASCO’s interpretation merely shifts the
must go beyond the pleadings and come for- coverage for the underlying settlement from
ward with specific facts indicating a genuine EMCASCO to AISLIC, yielding no benefit to
issue for trial. Celotex Corp. v. Catrett, 477 Wilson-Riley. Finally, AISLIC maintains that
U.S. 317, 324 (1986). A genuine issue of ma- EMCASCO’s interpretation of the policies is
terial fact exists when the evidence is such that unreasonable because it is inconsistent with
a reasonable jury could return a verdict for the Texas law and relies on caselaw that is inappo-
non-movant. Anderson v. Liberty Lobby, Inc., site to the facts.
477 U.S. 242, 248 (1986). Summary
judgment is appropriate, however, if the Under Texas law, whether an insurer has a
non-movant “fails to make a showing sufficient duty to defend is governed by the “eight cor-
to establish the existence of an element ners rule” whereby the allegations in the peti-
essential to that party’s case.” Celotex, 477 tion filed against the insured are compared
U.S. at 322-23. against the insurance policy. King v. Dallas
Fire Ins. Co., 85 S.W.3d 185, 187 (Tex. 2002).

4
In reviewing the underlying petition, we focus ownership, maintenance and use [of] the trucks
on the factual allegations that show the origin hauling sand from the worksite in question.”
of damages rather than on the legal theories al- This language suggests that based on the
leged. Nat’l Union Fire Ins. Co. v. Merchs. pleadings alone, it cannot be said that a causal
Fast Motor Lines, 939 S.W.2d 139, 141 (Tex. relationship was not alleged between the use of
1997) (per curiam). Any ambiguity in the cov- the trucks and the injury. Therefore, unlike the
erage language should be read in favor of the auto insurer in National Union, EMCASCO is
insured. Trinity Universal Ins. Co. v. Cowan, not entitled, based on the pleadings alone, to a
945 S.W.2d 819, 825 (Tex. 1997). Important- determination that there was no coverage.
ly, in a subrogation case such as this, Texas Rather, the pleadings show that EMCASCO
law recognizes the right of one insurer to seek had a duty to defend.
payment from a second insurer under the
doctrine of equitable subrogation.2 The duties to defend and to indemnify are
distinct and separate, however. See Farmers
To recover damages, the plaintiff must Tex. Co. Mut. Ins. Co. v. Griffin, 955 S.W.2d
show a causal relationship between the injury 81, 82 (Tex. 1997). An insurer may initially
and the use of the auto. Nat’l Union, 939 have a duty to defend but, eventually, no duty
S.W.2d at 142. In National Union, the court to indemnify. Id. Therefore, we must determine
found that the facts alleged in the pleadings did whether there is a duty to indemnify.
not suggest even a remote causal relationship
between the truck’s operation and the plain- In deciding whether such a duty to indemnify
tiff’s injury and concluded that the insurer’s exists, Texas courts use the “complete op-
auto liability coverage was not triggered: eration” theory, Travelers Ins. Co. v. Employ-
“The only facts alleged . . . are that Hart was ers Cas. Co., 380 S.W.2d 610, 612 (Tex.
operating a Merchants truck when he negli- 1964), under which “the provision for use cov-
gently discharged a firearm injuring Gonzalez. erage extends to foreseeable consequences of
Given their most liberal interpretation, these what was done in connection with the use of
allegations do not suggest that Gonzalez’s in- the car, . . . so long as the act or thing done by
jury resulted from the use of the truck.” Id. at the insured’s employee which causes the acci-
141-42. dent arises out of the use of the insured’s car,”
Red Ball Motor Freight v. Employers Mut.
The Langstons’ third amended petition Liab. Ins. Co., 189 F.2d 374, 377 (5th Cir.
states that “[a]s to Defendant Wilson-Riley, 1951). Further, “‘[a]rising out of’ are words of
Inc., it is specifically alleged that the bodily in- much broader significance than ‘caused by.’
jury, wrongful death, and property damage They are ordinarily understood to mean ‘orig-
was caused by an accident resulting from the inating from’ ‘having its origin in,’ ‘growing
out of’ or ‘flowing from,’ or in short, ‘incident
to, or having connection with,’ the use of the
2
Gen’l Star Indem. Co. v. Vesta Fire Ins. Co., car.” Id. at 378.
173 F.3d 946, 949 (5th Cir. 1999) (citation omit-
ted) (defining equitable subrogation as “the legal
In Red Ball, we held that the act of the driv-
fiction through which a person or entity, the subro-
er of a tractor in not closing the fueling valve,
gee, is substituted, or subrogated, to the rights and
remedies of another by virtue of having fulfilled an
which proximately caused an explosion, was an
obligation for which the other was responsible”). act that arose out of the use of the truck

5
because it was incident to, and having a con- to be moved by truck, to the place where the
nection with, the use of the truck. Id. In do- employees of insured turn them over to the
ing so, we emphasized that “fueling a truck for party to whom they are to make delivery.” Am.
the journey was just as much a ‘use’ of it as Employers’ Ins. Co. v. Brock, 215 S.W.2d 370
making the journey would be.” Id. In sum, (Tex. Civ. App. 1948, writ ref’d n.r.e.); Trav-
the “complete operation” test has two distinct elers, 380 S.W.2d at 612.
inquiries: (1) whether the insured’s act was an
act incident to, and having a connection with, Under this expansive view of what consti-
the use of the truck3 and (2) whether that act tutes an auto “use,” an insurer was liable for in-
proximately caused plaintiff’s injury.4 juries sustained by a pedestrian who fell into an
open sidewalk elevator shaft when employees in
With respect to the first inquiry, Texas charge of the insured truck left the shaft doors
courts have read business auto policies to cov- open while obtaining cross bars to guard the
er loading and unloading of the covered vehi- shaft, notwithstanding that nothing had been
cle even if that is not specifically mentioned in loaded onto or unloaded from the truck at the
the text of the policy.5 Further, loading and time of the fall. Am. Employers’, 215 S.W.2d
unloading has been interpreted to cover acts at 370. Therefore, for insurance coverage to
incident to making a commercial delivery; this exist, the vehicle itself need not be in “oper-
includes “the entire process involved in the ation” or “in motion” or an “active participant”
movement of the articles from the place where in the plaintiff’s injuries:
insured’s employees find the articles which are
[The auto insurer] also relies on the rule that
there must be a causal relation or connection
3
Red Ball, 189 F.2d at 377 (noting that cov- between the accident or injury and the own-
erage extends “so long as the act or thing done by ership, maintenance or use of the vehicle.
the insured’s employee which causes the accident This does not mean that the accident must
arises out of the use of the insured’s car”); id. at be caused by negligent operation of the ve-
378 (“That this act of the driver of the tractor, in hicle or some defect therein. When a vehicle
not closing the valve, was an act incident to, and is being unloaded it is being used to the
having a connection with, the ownership, main-
same extent as if it were being driven, and
tenance, or use of the truck, we think may not be
the person doing the unloading is entitled to
questioned.”).
the same protection as the owner or op-
4
Id. at 377 (emphasis added) (stating that “the erator.
provision for use coverage extends to foreseeable
consequences of what was done in connection with Travelers, 380 S.W.2d at 614.
the use of the car”); id. at 378 (“That the cause of It appears that Texas courts have never de-
the escape of the gasoline, which in unbroken cided whether mud, clay, sand, or other debris
sequence proximately caused the explosion was the tracked by a truck’s tires or fallen from its car-
negligent act of the driver of the truck in failing go is incident to its use. We conclude, from the
properly to close the valve after he had finished broad interpretation Texas courts have given to
fueling his truck from the tank, was not disputed”). what is incident to the use of an automobile,
5 that such debris is indeed incident to the use of
Panhandle Steel Prods. Co. v. Fidelity Union
Cas. Co., 23 S.W.2d 799 (Tex. Civ. App. 1929,
the vehicle. Debris falling from a car’s cargo is
no writ). incident to the transportation of that cargo: It

6
is inherent in the transportation of cargo that not be caused by the negligent operation of the
some of it may spill or fall unto the road.6 vehicle, but instead by an act incident to its use,
Similarly, the tracking of debris by the tires is it is not necessary that the plaintiff’s injuries
incident to the operation of a vehicle on occur at the time of or immediately after the
unpaved roads: It is inherent in driving on tracking of debris on the highway.8 We thus re-
unpaved roads that some sand, mud, or clay ject EMCASCO’s contention that the “causal
may attach to the tires.7 standard mandated by the phrase ‘arising out
of,’ however broad, appears at least to require
Further, because the plaintiff’s injuries need the contemporaneous use of the insured’s vehi-
cle.”9 The accident need not be contempor-
aneous with the use of the vehicle so long as it
6
is a foreseeable consequence of an act inciden-
Naturally, not every act in connection with a tal to the use of the vehicle, such as the tracking
vehicle is “use.” For instance, a drive-by shooting
of debris.
from a vehicle is not an act incident to its “use.”
See, e.g., Collier v. Employers Nat'l Ins. Co., 861
S.W.2d 286, 289-90 (Tex. App.–Houston [14th This takes us to the second test for deter-
Dist.] 1993, writ denied) (holding that a drive-by mining whether a duty to indemnify exists:
shooting does not involve the use of a motor vehicle whether the tracking of mud onto the highway
“simply because an automobile provided the site was the proximate cause of the injuries. The
for a criminal assault or provided transportation to reasoning for this inquiry is plain: If the fact-
the location of a criminal act”). finder determines that the insured’s act in con-
nection with the use of the vehicle did not prox-
This is because “[t]he use required is of the ve- imately cause the injuries, the insured is not
hicle qua vehicle, rather than simply as an article liable, and the insurer has no duty to
of property.” Mid-Century Ins. Co. v. Lindsey, 997 indemnify.10
S.W.2d 153 (Tex. 1999). Unlike the unloading,
which is a use of the vehicle qua vehicle (because
it is necessary to the delivery/transportation of 8
EMCASCO argues that the language of the
goods), a drive-by shooting is not “incident” to the insurance contracts at issue is ambiguous and thus
use of the vehicle because transportation of people maintains we should construe any such ambiguity in
or goods does not necessarily involve a shooting. the contract to favor coverage. Because we see no
7
ambiguity, we decline to apply the “not un-
See also Jackson v. Daley, 739 So.2d 1031, reasonable” contract interpretation urged by
1041 (Miss. 1999) (holding that injuries resulted EMCASCO.
from the ownership, maintenance, or use of an au-
tomobile because plaintiff was injured after collid- 9
For that reason, Lindsey, 997 S.W.2d 153,
ing with a pile of dirt dumped on the side of a road does not support the arguments advanced by EM-
by one of the insured’s dump trucks, notwithstand- CASCO. That is, even if the Appleman-Couch test
ing subsequent failure to clean up the dirt); Mer- were to apply, it would not dictate the result EM-
chants Co. v. Hartford Accident & Indem. Co., CASCO urges, namely that the use of the vehicle
188 So. 571, 571 (Miss. 1939) (holding that injur- has to be contemporary with the injury.
ies arose out of the ownership, maintenance or use
10
of automobile where motorist’s car struck poles An act incident to the use of a vehicle need not
that another driver had left lying in the roadway always be the proximate cause of the injury. For
after using them to extricate his truck from a road- instance, if a defendant left debris on a road but
side ditch hours earlier). (continued...)

7
 In this regard, the operation or driving of The washing of mud and sand off the unpaved
the vehicle need not be the proximate cause of road leading to the public, paved road could
the injuries.11 This observation merely restates have independently produced the accident: The
the notion we discussed earlier, i.e., that a amount of mud accumulated from the rain
vehicle need not be in active operation (such could have been sufficient to cause the accident
as in a collision) for insurance coverage to even if no mud had been tracked by the trucks.
exist. Rather, as this court has interpreted Further, the washing of mud off the unpaved
Texas law in Red Ball, 189 F.3d at 378, only roadway would be a separate cause of the ac-
the act incident to, or in connection with, the cident. That is, the washing of mud off the
use of the vehicle must be the proximate cause unpaved roadway is not derivative of the act of
of the injuries. tracking mud by trucks; it could have occurred
regardless of the presence of the trucks.13
Although it was foreseeable that debris left
on the road could cause an accident, we do not AISLIC’s policy covers the allegations with
know whether the accident would not have oc- respect to the washing of the mud by the rain,
curred without the tracking of the debris.12 which are allegations unrelated to the use of the
trucks, and covers the separate claim for negli-
gence per se based on the obstruction of “the
10
(...continued) road adjacent to [Wilson-Riley’s] worksite,
accompanied it with sufficient warning signs, and which is a violation of Section 42.03 of the
a plaintiff, driving drunk and without required Texas Penal Code.”14 Although AISLIC’s
corrective lenses, ignored the signs, it cannot be
said that the debris on the highway proximately
12
caused the injury if the law regarded such negligent (...continued)
conduct sufficiently unforeseeable and superseding and continual sequence, unbroken by any new, in-
so as to interrupt the chain of causation. dependent cause, produces that event, and without
which that event would not have occurred.”) (em-
11
Cf. Panhandle Steel, 23 S.W.2d at 802: phasis added).
13
The act of unloading the automobile was not an AISLIC argues that EMCASCO has waived
act separate and independent of the use of the the argument that AISLIC’s policy applied despite
truck, but was a step incident to the use and the exclusion because of separate and independent
necessary to accomplish the purpose thereof. causation. EMCASCO raised that issue in the dis-
And, since it followed in a natural and continual trict court, however, and argues on appeal that AIS-
sequence from the use, it would seem to follow LIC’s policy covers the claim. Thus, the argument
logically that the act of unloading would not was preserved, albeit weakly.
preclude a holding that the use of the truck was
14
the proximate cause of the injury, if, indeed, In paragraph 36 of its first original amended
such a holding be necessary to support a answer, AISLIC admitted that if the facts alleged in
recovery by the plaintiff against the defendant. the last version of the complaint were proved,
AISLIC’s policy could have provided coverage:
(Emphasis added.) “Recognizing that this [Third Version of the Fourth
Amended Complaint] might theoretically invoke its
12
Cf. id. (“The proximate cause of an event coverage (which would actually occur only if
must be understood to be that which, in a natural plaintiff offered proof of facts which she had
(continued...) (continued...)

8
CGL policy excluding coverage and EMCAS- guish” the part of the debris that was tracked by
CO’s auto policy providing coverage are near- the trucks or that was washed off the road. In
ly identical,15 the polices are mutually exclusive fact, precisely because it is “impossible to dis-
only with respect to which policy covers the tinguish,” once the mud merges, the part of the
tracking of mud by the tires, which is the only mud tracked by the tires from that washed by
issue with respect to the use of an auto. the rain, the proper inquiry is whether the
amount of mud washed by the rain could have
The non-excluded event, the washing of been sufficiently large to cause an accident by
mud from the unpaved roadway, however, is itself.17
covered by the general liability policy, because
it could have independently caused the injur- There is at least a genuine issue of material
ies. When two separate eventsSSone that is fact as to this question. The district court ac-
excluded and one that is covered by the gen- knowledged that some mud and clay “could
eral liability policySSmay independently have have been washed by the rain.” This mud from
caused the accident, Texas law mandates that the rain could have independently caused the
the general liability policy also provide cover- accident. Therefore, summary judgment for
age despite the exclusion.16 AISLIC was improper. On remand, the court
should determine whether there is sufficient evi-
We question the district court’s assertion dence to declare as a matter of law that the
that the washing of the mud off the unpaved heavy rain in the several hours before the ac-
roadway could not have been a “separate” and cident could have produced sufficient mud that
“independent” cause of the accident, but rather would have independently caused the accident,
a “classic example of concurrent causation” or whether that issue should be sent to a
because mud and clay are “by their very nature factfinder.
fungible,” rendering it “impossible to distin-
C.
We are mindful that the district court has not
14
addressed AISLIC’s contention that it does not
(...continued) have a duty to reimburse EMCASCO because
previously denied), AISLIC agreed to participate in
it did not agree to the settlement. The court
negotiations to obtain a release for [Wilson-
must confront this issue on remand if it finds
Riley].” Paragraph 35 explained that the Lang-
stons included, in this last version of the complaint, that the washing of mud from the unpaved
allegations of washing of mud onto the roadway roadway could have independently caused the
during rainy weather, despite having removed such
allegations from prior versions of the amended
17
complaint after SLS had settled. This inquiry is basically the same as that for
determining joint and several liability in cases where
15 two fungible causes merge. For instance, where two
In such instances, coverage is usually not
read to implicate both policies; they are mutually independent fires combine to destroy a piece of
exclusive. See Travelers Indem. Co. v. Citgo Pe- property, if either fire could have destroyed the
troleum Corp., 166 F.3d 761 (5th Cir. 1999). property by itself, there is joint and several liability.
See, e.g., Anderson v. Minneapolis, St. Paul &
16
See Utica Nations Ins. Co. v. Am. Indem. Sault Ste. Marie Ry., 179 N.W. 45 (Minn. 1920),
Co., 141 S.W.3d 198, 204 (Tex. 2004), and cases overruled in part on other grounds by Borsheim v.
cited therein. Great N. R.R., 183 N.W. 519 (Minn. 1921).

9
accident. See Liberty Mutual Ins. Co. v.
Mid-Continent Ins. Co., 405 F.3d 296 (5th
Cir.), modified, 407 F.3d 683 (5th Cir. 2005).

The judgment is VACATED, and this mat-
ter is REMANDED for further proceedings.

10