United States Court of Appeals,
Fifth Circuit.
No. 94-20137.
LAFARGE CORPORATION, et al., Plaintiffs,
Lafarge Corporation, Plaintiff-Appellee, Cross-Appellant,
v.
HARTFORD CASUALTY INSURANCE CO., Defendant-Appellant, Cross-
Appellee.
HARTFORD CASUALTY INSURANCE CO., Plaintiff-Appellant, Cross-
Appellee,
v.
LAFARGE CORPORATION, Defendant-Appellee, Cross-Appellant.
Aug. 21, 1995.
Appeals from the United States District Court for the Southern
District of Texas.
Before KING, GARWOOD and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellant Hartford Casualty Insurance Co. (Hartford)
appeals the district court's judgment that Hartford had a duty to
defend its insured, defendant-appellee Lafarge Corporation
(Lafarge), in the underlying litigation and ordering Hartford to
pay an apportioned amount of Lafarge's defense costs, as well as
Lafarge's attorneys' fees and prejudgment interest. Lafarge
cross-appeals, claiming that the district court erred in
apportioning Hartford's share of defense costs and in awarding
Hartford summary judgment on Lafarge's Texas Insurance Code claims.
We affirm in part, reverse in part, and remand.
Facts and Proceedings Below
1
The present controversy arises out of a suit filed against
Lafarge and various other defendants by All American Pipeline
Company (All American). All American contracted with American West
Pipeline Constructors (American West) for the construction of a
pipeline to run from Santa Barbara, California, to McCamey, Texas.
American West subcontracted Leonard Pipeline-Anchor Wate (LAC) to
provide a special coating to protect the pipeline, which was to be
buried, from the elements. LAC is a joint venture; one of the
joint venturers, Anchor Wate, is a wholly-owned subsidiary of
Lafarge.
Sometime around February 1988, All American discovered that
the protective coating supplied by LAC had failed at the field
joints, damaging the pipeline. In August 1988, it sued, among
others, LAC, and Anchor Wate individually, for breach of contract,
breach of warranty, strict products liability, negligence, and
misrepresentation. All American also named Lafarge as a defendant
on the basis of a surety promise allegedly made by Lafarge on
behalf of LAC and its individual corporate venturers. In September
1989, All American amended its petition to add a claim against
Lafarge for its own negligence. In the amended petition, All
American also alleged that Anchor Wate was the alter ego of Lafarge
and that Lafarge was thereby liable for Anchor Wate's alleged
negligence.
Hartford was Lafarge's comprehensive general liability insurer
from April 1, 1987, to April 1, 1988. Lafarge tendered the
original petition to Hartford for defense on January 18, 1989.
2
Although Hartford initially acknowledged that the claims against
Lafarge might be covered under the policy, it ultimately denied
coverage. In response to Lafarge's notice that it intended to sue,
as required under the Texas Insurance Code, Hartford asserted that
it would reimburse only those defense costs incurred after August
13, 1990, the date on which Hartford first received All American's
amended petition. On February 12, 1991, Hartford filed a
declaratory judgment action against Lafarge and Anchor Wate in
federal district court in Virginia. On March 28, 1991, Lafarge
filed a breach of contract and declaratory judgment suit against
Hartford in Texas state court. Hartford removed the suit to the
district court below, where it was consolidated with the Virginia
action.
On May 17, 1991, Lafarge moved for partial summary judgment on
its breach of contract claims. Hartford filed a cross-motion for
summary judgment on the duty to defend and coverage issues, as well
as a motion for summary judgment on Lafarge's Texas Insurance Code
claims. By order of December 7, 1991, the district court granted
Lafarge's motion in part, finding that Hartford did have a duty to
defend under both the original and amended petitions. However, the
district court determined that, because the injury to the pipeline
was a continuing one and Hartford had provided coverage for only a
part of the period during which the injury accumulated,1 its
1
The district court found that the alleged injury began on
April 17, 1985 (the date the pipeline was placed in the ground)
and continued until the filing of All American's original
petition on August 8, 1988. Although the district court invited
the parties to present evidence of contrary dates, and noted in
3
liability should be prorated to reflect its proportionate "time on
the risk." It therefore held Hartford liable for 30% of Lafarge's
past and future defense costs.2 In addition, the district court
granted Hartford's cross-motion in part by dismissing Lafarge's
Texas Insurance Code claims; the district court determined that,
although ultimately wrong in its determination, Hartford had a
reasonable basis for contesting its duty to defend and that it had
acted reasonably in investigating and responding to the underlying
claims. Finally, it found that Hartford's motion for summary
judgment on the coverage issues was premature because the
underlying litigation had not yet been resolved.
Hartford then moved for clarification, and Lafarge for
reconsideration, of certain issues addressed in the December 7
order. The district court reaffirmed its order, but added that,
because Hartford's liability for defense costs had been
apportioned, Lafarge's deductible under the policy should also be
apportioned. It found that the policy was silent as to what should
occur if, as here, Hartford was required to pay only a percentage
of the defense costs, and therefore correspondingly reduced
its order of February 3, 1992, that Lafarge had presented a
"Petition for Correction of Dates of Property Damage," the
district court did not specifically address this motion and
ultimately again ordered the parties to submit further evidence
of the date damage to the pipeline began. In any event, the
parties do not question on appeal the district court's fixing of
these dates.
2
By agreement of the parties, this percentage was
subsequently amended to 33.9%.
4
Lafarge's deductible by 30%.3
After the underlying litigation with All American settled,
Lafarge filed a motion for entry of an award of money damages, pre-
and post-judgment interest, and attorneys' fees. Hartford filed
objections.4 The district court found that Lafarge was entitled to
an amount equal to 33.9% of its total defense costs, less 33.9% of
the $250,000 policy deductible. It also awarded prejudgment
interest on that sum at a rate of 10%.5 Lastly, the district
court, having undertaken a lengthy survey of applicable Texas law,
determined that Lafarge was entitled to an award of reasonable
attorneys' fees under Tex.Civ.Prac. & Rem.Code § 38.001(8). By its
final judgment of January 28, 1994, the district court awarded
Lafarge
1) defense expenses in the amount of $457,089.05;
3
The parties later agreed that the applicable percentage was
33.9%.
4
In addition, Hartford filed a motion for summary judgment
on Lafarge's claim for breach of the insurer's duty of good faith
and fair dealing. The district court granted this motion,
finding that the portion of its December 7, 1991, order relating
to Lafarge's Texas Insurance Code claims negated the "reasonable
basis" element of the common law bad faith claim and that Lafarge
had failed in the intervening year to come forward with any
additional summary judgment evidence to undermine that earlier
determination. Lafarge does not challenge this aspect of the
court's judgment on appeal.
5
Because it determined that the amount of attorneys' fees
owed under the insurance contract was not ascertainable from the
face of the document, the district court held that the Texas
prejudgment interest statute did not apply to the case and that
therefore it was not bound to apply the 6% interest rate
prescribed by the statute. It therefore made an "equitable
award" of prejudgment interest at the rate prescribed by
Tex.Rev.Civ.Stat.Ann. art. 5069-1.05 § 2. See Part V, infra.
5
2) $138,183.61 in prejudgment interest;
3) $198,000 in attorneys' fees;
4) post-judgment interest at a rate of 3.67% (as
specified in 28 U.S.C. § 1961) on items 1 through 3 from the
date of judgment until paid; and
5) additional attorneys' fees in the amount of $30,000 if
Hartford pursues an unsuccessful appeal to this Court.
Hartford timely appealed to this Court; Lafarge timely
cross-appealed.
Discussion
I. Hartford's Duty to Defend
A. Policy exclusions.
Initially, Hartford argues that, under a variety of
exclusions in Lafarge's insurance policy, Hartford had no duty to
defend Lafarge in the underlying suit. In determining whether an
insurer has a duty to defend its insured, Texas courts generally
look only to the allegations of the plaintiff's complaint and the
terms of the insurance contract. American Alliance Insurance Co.
v. Frito-Lay, Inc., 788 S.W.2d 152, 153-54 (Tex.App.—Dallas 1990,
writ dismissed). Under this so-called "eight corners rule" or
"complaint allegation rule," the allegations of the complaint are
taken as true, and the duty to defend arises if the complaint thus
construed asserts a claim facially within the coverage of the
policy as reflected by its terms. Gulf Chemical & Metallurgical
Corp. v. Associated Metals & Minerals Corp., 1 F.3d 365, 369 (5th
Cir.1993). Even if the plaintiff's complaint alleges multiple
claims or claims in the alternative, some of which are covered
under the policy and some of which are not, the duty to defend
6
arises if at least one of the claims in the complaint is facially
within the policy's coverage. Rhodes v. Chicago Insurance Co., 719
F.2d 116, 119 (5th Cir.1983). The duty to defend is thus broader
than the duty to indemnify. Gulf Chemical, 1 F.3d at 369. Despite
the breadth of this duty when applicable, however, "[a]n insurer is
required to defend only those cases within the policy coverage....
If the petition only alleges facts excluded by the policy, the
insurer is not required to defend." Fidelity & Guaranty Insurance
Underwriters, Inc. v. McManus, 633 S.W.2d 787, 788 (Tex.1982)
(citations omitted).
Applying these principles, we conclude that most of the
exclusions on which Hartford relies in denying its duty to defend
are clearly not applicable to the case at hand. We find merit,
however, in Hartford's argument that the "incidental contract"
provision precluded a duty to defend against All American's
original petition, which only alleged a surety claim against
Lafarge. We therefore conclude that Hartford had no duty to defend
until the amended petition was tendered to it. We will address
each of Hartford's arguments in turn.
Hartford first argues that, under the policy's "own products"
exclusion, under which no coverage is provided for "property damage
to the named insured's products arising out of such products or any
part of such products," it is not required to defend Lafarge with
respect to that portion of damages that represented the cost of
replacing the coating, as opposed to the damages for the cost of
replacing the pipeline itself. This argument is wholly without
7
merit. That Hartford may not ultimately be required to indemnify
Lafarge for the replacement cost of the coating does not abrogate
its duty to defend a covered cause of action in the first instance.
The complaint clearly alleged that the defective coating caused
damage to the pipeline; this was the damage (or part of the
damage) for which recovery was sought.
Hartford next argues that the petition was ambiguous as to
when the damage to the pipeline occurred and that therefore an
exception to the eight corners rule should allow it to submit
evidence that the damage actually occurred outside the coverage
period.6 See Western Heritage Insurance Co. v. River
Entertainment, 998 F.2d 311, 313 (5th Cir.1993) ("[W]hen the
petition does not contain sufficient facts to enable the court to
determine if coverage exists, it is proper to look to extrinsic
evidence in order to adequately address the issue.").
Specifically, Hartford alleges that, as of the date the policy
expired, All American had yet to identify any section of the
pipeline that needed to be replaced.
Hartford's reliance on this narrow exception for truly
ambiguous complaints is misplaced. The complaint is simply not as
ambiguous as Hartford would have us believe. The petition alleges
that the damage was discovered sometime in February 1988, during
the period of Hartford's coverage. Regardless of when the damage
6
We note too that, although the district court gave the
parties ample opportunity to present evidence showing that the
dates of damage were different from those it had found, neither
party successfully pursued this challenge. See note 1, supra.
8
to the pipeline began, it was not a single event but a continuous
process that occurred over an extended period of time. It is
therefore reasonable to infer that, if as the complaint alleges,
the damage was discovered in February 1988, then some part of it
occurred during the period of Hartford's coverage.7 Where an
ambiguity exists, the eight corners rule requires the district
court to give the petition the most liberal reading possible,
resolving all legitimate doubts in favor of coverage. Continental
Savings Association v. U.S. Fidelity and Guaranty Co., 762 F.2d
1239, 1243, amended in part, 768 F.2d 89 (5th Cir.1985); see also
Cullen/Frost Bank of Dallas v. Commonwealth Lloyd's Insurance Co.,
852 S.W.2d 252, 259 (Tex.App.—Dallas 1993, writ denied). Clearly,
this is not a case in which it is "impossible to discern" whether
coverage is potentially implicated.8 Western Heritage, 998 F.2d at
7
Hartford's supposition that the operative date is the date
on which the pipeline had to be replaced is unsupported. The
damage complained of was the corrosion of the pipeline, which
necessitated replacement, not the replacement per se.
8
The cases Hartford cites in support of its position are
inapposite; they involve situations in which the complaint
either omitted or indisputably misrepresented material facts that
would have clearly excluded coverage. See, e.g., Western
Heritage, 998 F.2d at 313 (noting that complaint specifically
omitted reference to the fact that the third-party tortfeasor had
been intoxicated when he left the insured's establishment, an
obvious attempt to evade the clear exclusions of the policy);
McLaren v. Imperial Casualty and Indemnity Co., 767 F.Supp. 1364,
1374 (N.D.Tex.1991) (because insured's complaint did not state
any covered claim, "even if McLaren's damage suit pleading could
be read to allege facts that, if true, would cause coverage to
exist, Imperial nevertheless would not have a duty to defend the
suit because the facts alleged would be false"), aff'd, 961 F.2d
17 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1269,
122 L.Ed.2d 665 (1993); State Farm Fire & Casualty Co. v. Wade,
827 S.W.2d 448, 451 (Tex.App.—Corpus Christi 1992, writ denied)
(in the absence of any allegation concerning how the boat that
9
315.
Hartford also contends that the alter ego claim of the
amended petition was not covered because the policy excluded
coverage for injuries arising out of uninsured joint ventures in
which the insured participated. Because Anchor Wate's liability
arose out of its participation in the joint venture, Hartford
argues, it had no duty to defend against this claim. Hartford
argues that, if the complaint is sufficient to allege a claim
against Anchor Wate as a separate entity, Hartford was entitled to
discovery to prove that, on the contrary, all the claims actually
arose out of the conduct of the joint venture. This argument
ignores that the amended complaint also alleged that Lafarge as a
separate entity was itself guilty of negligence.9 If the complaint
contains both potentially covered and non-covered claims, the
insurer must defend the entire suit. Hartford Casualty Company v.
was the subject of the policy was used, court could not
determine, even "by reading the underlying petition broadly....
whether or not the personal boatowner's liability policy even
possibly provides coverage"); International Service Insurance
Co. v. Boll, 392 S.W.2d 158, 161 (Tex.Civ.App.—Houston 1965, writ
ref'd n.r.e.) (discussed in Gonzales v. American States Insurance
Co. of Texas, 628 S.W.2d 184, 186 (Tex.App.—Corpus Christi 1982,
no writ)), (when policy contained an exclusion for "any claim
arising from an accident while the insured vehicle was being
driven by Roy Hamilton Boll," but did not disclose that Roy
Hamilton Boll was the insured's son, and petition alleged only
that the car was being driven by the insured's son, the insurer
was permitted to introduce extrinsic evidence to show that the
insured only had one son and that his name was Ray Hamilton
Boll).
9
Indeed, the ultimate judgment in the underlying suit was
against Anchor Wate (as well as another Lafarge subsidiary) in
its separate capacity for negligence and misrepresentations
committed outside the joint venture.
10
Cruse, 938 F.2d 601, 603, 605 (5th Cir.1991). Because Lafarge was
thus entitled to a defense in any event, further discovery on the
joint venture issue would have been pointless with regard to
Hartford's duty to defend.
Hartford, however, contends that it had no duty to defend
Lafarge against the allegations of Lafarge's own negligence because
there was no occurrence within the terms of the policy. Under the
policy, an "occurrence" is defined as "an accident, including
continuous or repeated exposure to conditions, which results in ...
property damage neither expected nor intended from the standpoint
of the insured." Hartford argues that the failure of a product to
work does not constitute an accident. In addition, it contends
that corrosion of the pipeline was not an accident because exposure
to soil was contemplated.
Both these arguments are meritless. As discussed above, the
complaint sought damages not simply because the coating failed but
because the failure of the coating caused damage to the pipeline.
As the district court correctly found, there is an accident or
occurrence when the alleged product defect has caused damage to
other property. See, e.g., Cruse, 938 F.2d at 604-05; Travelers
Insurance Co. v. Volentine, 578 S.W.2d 501, 503
(Tex.Civ.App.—Texarkana 1979, no writ). Hartford's other
argument—that no accident occurred because exposure to the soil was
contemplated—is equally meritless. The very purpose of the coating
was to protect the pipeline from exposure to the soil. The damage
caused by the defective coating was an occurrence within the
11
meaning of the policy.
Lastly, Hartford argues that there is no coverage because the
alleged surety agreement did not "relat[e] to the conduct of the
named insured's business" as required by the policy's incidental
contract provision.10 Here we agree with Hartford. The policy
afforded certain coverage "with respect to liability assumed under
an incidental contract " and defined "incidental contract " as "any
oral or written contract relating to the conduct of the named
insured business."11 The original complaint alleged merely that
10
Alternatively, Hartford argues that the phrase "liability
assumed by contract" in the provision refers only to situations
where the insured is sued by the insured's promisee on the
insured's agreement to indemnify or hold harmless the promisee
from the promisee's tort liability to a third party or parties.
However, Hartford points to nothing in the language or structure
of the policy which indicates that the referenced provision is so
restricted, and Hartford offers no authority (and points to no
evidence) supporting its position in this respect.
11
The base policy's definitions section included the
following:
"incidental contract means any written (1) lease of
premises, (2) easement agreement, except in connection
with construction or demolition operations on or
adjacent to a railroad, (3) undertaking to indemnify a
municipality required by municipal ordinance, except in
connection with work for the municipality, (4)
sidetrack agreement, or (5) elevator maintenance
agreement;"
An endorsement respecting "contractual liability coverage,"
afforded certain coverage "with respect to liability assumed
under an incidental contract," and contained a provision
that: "The definition of incidental contract is extended to
include any oral or written contract or agreement relating
to the conduct of the named insured's business."
The base policy separately defined "insured" and "named
insured," the latter as follows: "named insured means the
person or organization named in Item 1. of the declarations
of this policy." It is not contended that LaFarge
12
Lafarge represented that "the resources of Cement Lafarge were
behind any project for which Anchor Wate contracted." It is clear
from the context that the alleged guarantee was of Lafarge's
ultimate financial responsibility. Lafarge has not argued, and we
have found no record evidence to suggest, that Lafarge supplied or
intended to supply materials, services, manpower, or anything else
to the project, either directly or by supplying same to Anchor Wate
or LAC, or was directly or indirectly involved in the project in
any way apart from its mere ownership of Anchor Wate's stock.
There is no evidence Lafarge did not conduct business of its own,
separate from that of Anchor Wate or other subsidiaries. See
Sentry Insurance Co. v. R.J. Weber Co., 2 F.3d 554, 556 (5th
Cir.1993) (under Texas law, burden is generally on insured to show
that claim against it is potentially within coverage of policy).
However, Lafarge contends, and the district court found, that
a contract that advances the interests of a subsidiary necessarily
"relates to" the parent's economic well being. While that is true,
it is not the same thing as "relates to the conduct of" the
parent's business. Just as we may not simply assume that the
subsidiary's business is the parent's business (many subsidiaries
are in businesses requiring licenses that their parents do not
have), so also we may not assume that conducting the subsidiary's
business is conducting the parent's business.
subsidiaries generally, or Anchor Wate or LAC specifically,
or indeed any entity other than LaFarge itself, was named or
included in Item 1 of the policy declarations or was "the"
(or a) "named insured" under the policy.
13
Lafarge reminds us of the Texas rule of insurance contract
construction that, "when the language used is subject to two or
more reasonable interpretations, the construction which affords
coverage will be adopted. The policy of strict construction
against the insurer is especially strong when the court is dealing
with exceptions and words of limitation." Blaylock v. American
Guarantee Bank Liability Insurance Co., 632 S.W.2d 719, 721
(Tex.1982) (citations omitted). This rule assumes, of course, that
the language of the policy requires interpretation; it is an
equally well-settled rule of insurance law that terms in the
contract that are unambiguous must be given their plain meaning.
Sekel v. Aetna Life Insurance Co., 704 F.2d 1335, 1338 (5th
Cir.1983). The provision here requires not that the incidental
contract sought to be covered relate to Lafarge, but that it
"relat[e] to the conduct of the named insured's business." Lafarge
has failed to show that the alleged guaranty related to the conduct
of Lafarge's business. That it related to the conduct of the
business of a Lafarge subsidiary does not of itself suffice.
Anchor Wate was not a named insured in the policy, and Texas law
generally recognizes the separate existence of parent and
subsidiary corporations.
Moreover, even if we thought the language of the policy in
some measure ambiguous, we are required to adopt Lafarge's
interpretation of that language only if it is reasonable. We do
not think Lafarge's suggested interpretation meets this standard
because it would in effect read this part of the incidental
14
contract definition out of the policy altogether. See Ideal Mutual
Insurance Co. v. Last Days Evangelical Association, 783 F.2d 1234,
1238 (5th Cir.1986) (an interpretation is not reasonable if it
would strip the policy language of meaning). Under Lafarge's
suggested interpretation, any contract that may in any way possibly
benefit the named insured relates to the conduct of its business.
Such an interpretation of this definition would render its
"relating to the conduct of the named insured's business" language
essentially meaningless. It would also serve as a practical matter
to include all subsidiaries within the meaning of "the named
insured" for these purposes, although the policy definition of
"named insured" plainly does not include them, but includes only
Lafarge itself. Such constructions are to be avoided. Liberty
Mutual Insurance Co. v. American Employers Insurance Co., 556
S.W.2d 242, 245 (Tex.1977).
We thus conclude that Hartford had no duty to defend with
respect to the surety claim against Lafarge. As this was the only
claim against Lafarge alleged in the original petition, Hartford
could not have breached any duty to Lafarge by refusing to defend
it against that claim:
"[T]he duty to defend is determined by examining the latest,
and only the latest, amended pleadings. A complaint which
does not initially state a cause of action under the policy,
and so does not create a duty to defend, may be amended so as
to give rise to such a duty.... In [this] instance, the
insurer may properly refuse to defend before the amended
complaint is filed." Rhodes, 719 F.2d at 119.
See also Steel Erection Co. v. Travelers Indemnity Co., 392 S.W.2d
713, 715-16 (Tex.Civ.App.—San Antonio 1965, writ ref'd n.r.e.)
15
(insurer liable only for that portion of defense costs incurred
after plaintiff amended petition to state a covered claim). As
discussed above, however, the amended complaint, which included
allegations of Lafarge's own negligence, did trigger a duty to
defend. See Rhodes, 719 F.2d at 119. This duty Hartford
acknowledged, subject to a reservation of its right to deny
coverage for any claims it might determine to be outside the
policy. Such was its prerogative, as it was Lafarge's to refuse
such a conditional tender of defense and proceed on its own. Id.
at 120. In these circumstances, Hartford remains obligated for
that portion of attorneys' fees incurred from the time the duty to
defend arose, i.e., after the amended complaint was tendered to
it.12 See id. On remand, the district court should determine what
portion of defense costs accrued after the date the amended
petition was tendered to Hartford.
B. Failure to cooperate as excusing duty to defend.
Hartford further argues that, if it did have a duty to
defend, as we have determined it did, then Lafarge's failure to
cooperate with Hartford in attempting to determine if coverage
existed excused Hartford from its duty to defend Lafarge. We note
first that, generally, "[c]ooperation clauses are intended to
guarantee to insurers the right to prepare adequately their
defenses on questions of substantive liability." Martin v.
Travelers Indemnity Co., 450 F.2d 542, 553 (5th Cir.1971)
12
As discussed below, Hartford cannot be held liable for
pre-tender defense costs. See Part II, infra.
16
(construing Mississippi law). Thus it is arguable that, with
respect to the issue of coverage (a question of the scope of the
policy), as opposed to the issue of liability (a question of
whether Lafarge or Anchor Wate were ultimately guilty of negligence
or some other culpable act), Hartford may not even invoke the
cooperation clause here.
Nevertheless, even if the cooperation clause may be invoked
with respect to coverage issues, we conclude that the district
court did not err in determining that Lafarge did not breach that
duty. In an effort to show Lafarge's lack of cooperation, Hartford
directs us to a footnote in its cross-motion for summary judgment
of June 13, 1991. The first of the four letters between counsel
for the parties referenced in that footnote was dated February 11,
1991; Hartford filed a declaratory judgment action against Lafarge
in federal court in Virginia on February 12, 1991. Although we
have found no Texas cases directly on point,13 we think it is clear
that, once the insurer sues the insured and contests coverage, the
insurer cannot rely on the cooperation clause to gain access to
information that any other party to any other lawsuit would be
13
This is probably so because cooperation clauses are
generally for the benefit of insurers that undertake their
insureds' defense and thereby align themselves with their
insureds' interests. The case of Allstate Insurance Co. v. Hunt,
469 S.W.2d 151 (Tex.1971), illustrates this point. In Hunt, the
Texas Supreme Court held that the insurer, having consented to
the insured's proceeding with suit and having agreed to be bound
by the outcome of that case, could not withdraw its consent and
proceed on behalf of the uninsured motorist. Id. at 154-55. The
court based its holding on the conflict of interest created by
the insured's prior full cooperation, pursuant to the cooperation
clause, with the insurer's investigation of the case. Id. at
152-53.
17
required to obtain through ordinary discovery methods.
II. Apportionment of Defense Costs
We have concluded that Hartford is liable for a portion
(although a smaller portion than determined by the district court)
of Lafarge's defense costs. Hartford argues that the district
court erred in its determination of Hartford's liability for those
costs. Specifically, Hartford contends that (1) it should not be
held responsible for a percentage of all defense costs, but rather
for only those costs attributable to covered claims, (2) it is not
responsible for costs incurred on behalf of non-insured
co-defendants in the underlying suit, and (3) it is not liable for
defense costs incurred prior to Lafarge's tender of the amended
petition to Hartford.
Hartford first claims that, despite the general rule that an
insurer who has a duty to defend as to one claim must defend as to
all claims, it should have been allowed to apportion defense costs
between covered and non-covered claims. It is true that, when
there is a clear distinction between covered and non-covered
claims, an insurer may apportion defense costs. EEOC v. Southern
Publishing Co., 894 F.2d 785, 791 (5th Cir.1990). However, even
though some of the claims were not covered under the policy,
apportionment of costs would be not be feasible in this case
because the claims all arose from a single accident. See Insurance
Company of North America v. Forty-Eight Insulations, 633 F.2d 1212,
1224 (6th Cir.1980), clarified, 657 F.2d 814 (6th Cir.), cert.
denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981).
18
Hartford claims, however, that it should have been allowed
further discovery to support such an apportionment between covered
and non-covered claims. Similarly, Hartford argues that discovery
was wrongfully denied with respect to its claim that it should not
be responsible for defense costs incurred on behalf of the seven
non-insured co-defendants in the underlying litigation. Although
Hartford does not specify how further discovery would assist it in
making the proposed allocation, we take it to be arguing that the
district court should have allowed it to discover Lafarge's
counsels' itemized bills and time records. We will thus examine
these two claims together.
Our review of the record shows the following series of events.
By its order of December 7, 1991, the district court granted
Lafarge's motion for partial summary judgment and ordered the
parties to conduct further discovery on the amount of defense costs
in the underlying litigation. On February 4, 1992, in response to
Hartford's motion for clarification of the December 7 order, the
district court noted that it
"intentionally did not rule on Hartford's argument that it
should not be responsible for the defense costs incurred by
Lafarge's counsel with regard to uninsured corporations. If,
during the damages stage of this litigation, Hartford is able
to convince the Court that specific expenses were incurred by
Lafarge's counsel solely for the defense of uninsured
corporations, the Court may deduct those expenses from the
final total of defense costs."
In an effort to produce such evidence, on March 26, 1992, Hartford
took the deposition of Eugene W. "Chip" Brees (Brees), the attorney
who represented Canada Cement Lafarge and Lafarge Corporation, both
19
Hartford insureds, in the underlying litigation.14 With respect to
each expenditure,15 Brees averred that the same costs would have
been incurred regardless of the participation of non-insured
corporations. In its final motion asking the district court to set
the amount of damages, Lafarge asserted that none of the defense
costs were attributable solely to the defense of non-insureds and
that all the costs would have been incurred had Lafarge been the
only defendant in the underlying suit. Attached affidavits
supported this assertion.
On April 3, 1992, Lafarge moved for the entry of an award in
the case. In its objections to that motion, filed April 23,
Hartford complained that, because of Lafarge's failure to produce
itemized bills, it could not determine whether it was "being asked
to pay for the cost of Lafarge evaluating coverage under other
insurance policies or the costs of negotiating Lafarge's settlement
with Nationwide [another Lafarge insurer]." Hartford did not
argue, however, that it should be allowed to discover the bills in
order to parse covered and non-covered claims in the pipeline
litigation itself, nor did it argue that such discovery was needed
to help it determine what portion of defense costs were
attributable to the defense of non-insureds. In its response to
14
Other attorneys represented other various groups of
defendants in the underlying litigation.
15
Brees was questioned only about expenditures other than
attorneys' fees as such; for example, expert witness fees and
materials preparation costs.
20
Hartford's supplemental response of January 26, 1993,16 Lafarge
stated that it was claiming attorney-client and work product
privileges over the itemized bills and would only produce them for
an in camera inspection by the district court.
Between the date of that response, February 4, 1993, and the
date of the district court's final memorandum and order of January
5, 1994, the issue of production of itemized bills never surfaced
again in the parties' numerous filings before the district court.
So far as the record reveals, Hartford never filed a motion to
compel production of the documents or submit them to an in camera
review. Indeed, it was Hartford that first stepped forward, on
November 8, 1993, and requested the entry of final judgment in this
case.17 During this entire period, Hartford never intimated to the
district court that further discovery was required. The district
court's memorandum and order granting Lafarge's motion for summary
judgment did not address the issue of itemized bills, and although
final judgment was entered on the basis of that memorandum and
order, Hartford never filed a motion to reopen the evidence or
reconsider this issue.
Given these circumstances, we must conclude that Hartford has
waived whatever argument it had that the district court erred in
not requiring Lafarge to produce more detailed billing statements.
16
Hartford had made a general request for discovery of the
itemized bills in this supplemental response.
17
The record contains no formal motion by Hartford
requesting the entry of final judgment. On November 29, 1993,
however, Lafarge made a formal, written motion joining in
Hartford's earlier request for final judgment in the case.
21
Whatever help particularized statements might have provided in
rebutting Lafarge's claims,18 Hartford did not take appropriate
steps to ensure that judgment was not rendered without that
information. Lafarge's evidence was sufficient to establish that
the costs it requested were all attributable to the defense of
Lafarge and would have been incurred regardless of the involvement
of non-insureds in the suit. We must therefore reject Hartford's
claims in these respects.
We agree, however, with Hartford's contention that it should
not be liable for any defense costs incurred prior to the date
Lafarge tendered the amended petition because the "voluntary
payment" provision of the policy precludes liability for such
pre-tender defense costs.19 As noted in the previous section, under
Texas law, the duty to defend does not arise until a petition
alleging a potentially covered claim is tendered to the insurer.
Members Insurance Co. v. Branscum, 803 S.W.2d 462, 466-67
18
We note too that, given that the non-insureds in the case
had their own attorneys, it is unclear how itemized bills would
have assisted Hartford in determining what portion of defense
costs were expended on behalf of non-insureds. To the extent
that the bills would show how Lafarge's attorneys' legal services
were expended, at least, we think it reasonable to assume that
Lafarge's attorneys were billing time on behalf of their client.
19
Lafarge counters that pre-tender defense costs are
recoverable unless Hartford demonstrates that it was actually
prejudiced by the delay in tendering the petition. As Hartford
correctly notes, however, prejudice is only a factor when the
insurer is seeking to avoid all coverage for failure to comply
with the notice provisions of the policy. See Laster v. American
National Fire Insurance Co., 775 F.Supp. 985, 991 (N.D.Tex.1991)
("Proof of prejudice to the insurer as a result of the breach, or
non-compliance, is required in either event for coverage to be
avoided.") (emphasis added), aff'd, 966 F.2d 676 (5th Cir.1992).
22
(Tex.App.—Dallas 1991, no writ). The cases on which the district
court relied to support its determination that pre-tender costs
were recoverable are inapposite.20 The terms of the policy are
unambiguous and therefore must be enforced as written.21 Ranger
Insurance Co. v. Estate of Mijne, 991 F.2d 240, 243 (5th Cir.1993);
see also Northern Insurance Co. of New York v. Allied Mutual
Insurance Co., 955 F.2d 1353, 1360 (9th Cir.) (noting that
"California courts have consistently honored [voluntary payment]
20
In both Municipality of San Juan v. Great American
Insurance Co., 813 F.2d 520, 521-22 (1st Cir.1987), and Solo Cup
Co. v. Federal Insurance Co., 619 F.2d 1178, 1188 (7th Cir.),
cert. denied, 449 U.S. 1033, 101 S.Ct. 608, 66 L.Ed.2d 495
(1980), the courts merely determined that the insureds were
entitled to costs and fees involved in defending the actions;
there is no indication in either decision that the courts were
asked to or did in fact consider whether pre-tender costs were
recoverable. In Burroughs Wellcome Co. v. Commercial Union
Insurance Co., 713 F.Supp. 694 (S.D.N.Y.1989), another case
relied on by the district court, Burroughs Wellcome faced
numerous lawsuits connected to its distribution of DES. The
district court stated that the insurer's duty to defend ran "
"from the time each case or claim is brought ...' " Id. at 697
(emphasis in original). It is not clear that this is intended to
cover pre-tender time. Burroughs Wellcome also is factually
distinguishable from the present case. There, the insured was
facing numerous, repeated lawsuits all based on the distribution
of the same product. That is certainly not the case here. In
any event, to the extent, if any, that Burroughs Wellcome stands
for the proposition that pre-tender defense costs are generally
recoverable under policy provisions such as those here, we
disagree.
21
Lafarge argues that notice was tendered eleven months
before it began to incur costs above the $250,000 policy
deductible. Apart from its bearing on whether Hartford was
prejudiced by the delay in tendering notice, which is not a
factor when the insurer is not arguing that the entire policy was
forfeited by failure of the condition, see note 18, supra, this
fact does not help Lafarge. If any expenses incurred before
tender are not recoverable, they could not be considered towards
satisfaction of the deductible, and Hartford would be entitled to
a reduction in damages assessed against it.
23
provisions, and will not require insurers to pay for voluntarily
incurred pre-tender costs"), cert. denied, --- U.S. ----, 112 S.Ct.
3033, 120 L.Ed.2d 903 (1992).
Accordingly, on remand, the district court should modify the
judgment, reducing Hartford's liability to reflect only those
defense costs incurred after tender of the amended petition. As
Hartford has waived its other arguments respecting the
apportionment of costs, however, no other modification is
necessary.
III. Discovery of the Prior Settlement Agreement
As noted previously, Hartford did not become Lafarge's
insurer until 1987; before that time, Nationwide Casualty
Insurance Company (Nationwide) was Lafarge's primary insurer. In
January 1992, Lafarge and Nationwide settled a number of coverage
disputes related, inter alia, to the underlying litigation in this
case. Hartford sought to compel Lafarge to answer its
interrogatory requesting information on the amount of the
settlement between Nationwide and Lafarge, but Lafarge resisted,
asserting that the settlement agreement contained an express
confidentiality provision that forbade revelation of the terms of
the agreement without prior written consent of all parties.
After a hearing, the district court, on March 5, 1992, ordered
Lafarge to produce the settlement agreement for Hartford's
inspection upon receipt of an acceptable confidentiality agreement
from Hartford. The record contains no evidence of such a
confidentiality agreement ever having been forwarded by Hartford,
24
and Lafarge contends that none was ever received. Given the
express confidentiality provision of the settlement agreement, we
do not think the district court abused its discretion in requiring
Hartford to agree to keep the information confidential.
Hartford argues, however, that although it attempted to
negotiate with Lafarge, it could not produce an acceptable
confidentiality agreement because of the restrictions Lafarge
sought to impose on Hartford's use of the information contained in
the settlement agreement. But, Hartford never brought this to the
district court's attention or filed a subsequent motion or other
request with the district court to obtain the settlement agreement
or fix the terms of any confidentiality restrictions. We must
therefore conclude that it has waived its right to insist on
production of this information.
IV. Apportionment of the Deductible
After determining, pursuant to Porter v. American Optical
Corp., 641 F.2d 1128 (5th Cir.), cert. denied, 454 U.S. 1109, 102
S.Ct. 686, 70 L.Ed.2d 650 (1981), that Hartford was liable only for
its "time on the risk," the district court held that Lafarge's
deductible under the Hartford policy should also be reduced.
Although noting that the language of the policy was unambiguous,
the district court held
"[t]hat Hartford demands a full deductible when it has been
found responsible for only a portion of Lafarge's defense
costs simply does not seem to coincide with either the spirit
behind the insurance contract between the parties, or this
Court's previous Order which attempted to apportion the
defense costs as equitably as possible."
The district court cited Clemtex, Inc. v. Southeastern Fidelity
25
Insurance Co., 807 F.2d 1271 (5th Cir.1987), in support of its
decision to reduce the deductible.
If the deductible clause truly were unambiguous, Texas law
would require that the language be given its plain meaning.
Clemtex, however, clearly supports the district court's decision to
reduce the deductible when the insurer has been held liable for
only a prorated share of defense costs. In Clemtex, the district
court determined that the Forty-Eight Insulations proration rule
should apply and thereby proportionately reduced each of Clemtex's
insurers' liability for costs. We noted that "[e]ach defendant,
however, indemnifies Clemtex, under the Forty-Eight rule of
apportionment, for only part of Clemtex's liability under a
silicosis victim's claim. It follows that each insurer herein has
been demanding a full deductible for a partial claim. The
insurance policies do not clearly so provide." Id. at 1276-77.
The Clemtex Court thus found the policy deductible provisions
ambiguous and remanded to the district court to determine what the
provisions meant. Id. at 1277.
This is exactly the case here. The policy provides that the
deductible will apply to each occurrence; it is at best ambiguous
as to what happens when the insurer is held liable for only part of
a continuous occurrence. The district court therefore did not have
to rely on equitable principles in order to reduce the deductible
obligation; its decision is supported simply as a valid choice of
one of at least two reasonable interpretations of the policy. It
did not err in prorating the deductible.
26
V. Award of Prejudgment Interest
Hartford does not contest the award of prejudgment interest
but does challenge the district court's decision not to apply the
6% interest rate prescribed by Tex.Rev.Civ.Stat.Ann. art. 5069-1.03
for "contracts ascertaining the sum payable." The district court
held that article 5069-1.03 did not apply because the sum payable
under the insurance contract was not ascertainable from the face of
the policy. Hartford argues that there is no such "face of the
document" requirement under Texas law and that, because amounts due
the insured under the terms of the policy require only a
calculation of actual money damages (rather than, for example,
damages for pain and suffering), the contract comes within article
5069-1.03.
We are not persuaded. The very premise of Hartford's argument
is unsound because the claim here was for prejudgment interest on
the amount of attorneys' fees expended in defense of the underlying
litigation, not for damages under the policy. The cases Hartford
cites are factually distinguishable because each involves a claim
for liquidated damages.22 In Axelson, Inc. v. McEvoy-Willis, 7 F.3d
22
See Vesta Insurance Co. v. Amoco Production Co., 986 F.2d
981, 989 (5th Cir.) (plaintiff entitled to prejudgment interest
at 6% statutory rate on amount of loan/advance it made to
defendant), cert. denied, --- U.S. ----, 114 S.Ct. 80, 126
L.Ed.2d 48 (1993); St. Paul Insurance Co. v. Rakkar, 838 S.W.2d
622, 631 (Tex.App.—Dallas 1992, writ denied) (when insured's
claim was for total loss by fire, claim was liquidated demand for
full amount of the policy, and contract was for an ascertainable
sum payable); see also Perry Roofing Go v. Olcott, 744 S.W.2d
929, 931 (Tex.1988) (stating that prejudgment interest may be
awarded on equitable principles "for unascertainable or
unliquidated contractual damages") (emphasis added).
27
1230 (5th Cir.1993), this Court held that "[t]he issue, then, is
whether the contract unambiguously establishes the amount owed. It
does not.... The court had to determine that amount, employing
general legal concepts. This contract is not within the
contemplation of article [5069-]1.03." Id. at 1234. As much can
be said of the contract here. The district court did not err in
setting the rate of prejudgment interest.
VI. Award of Attorneys' Fees in the Present Action
Lafarge also sought recovery of its attorneys' fees expended
in pursuing the instant litigation against Hartford for breach of
the insurance contract. Under Texas law, "[a] person may recover
reasonable attorney's fees from an individual or a corporation, in
addition to the amount of a valid claim and costs, if the claim is
for ... an oral or written contract." Tex.Civ.Prac. & Rem.Code §
38.001(8). However, "[section 38.001] does not apply to a contract
issued by an insurer that is subject to the provisions of ...
Article 21.21, Insurance Code ..." Tex.Civ.Prac. & Rem.Code §
38.006(4). The key question, then, is what it means to be "subject
to" article 21.21 of the Texas Insurance Code. Hartford claims
that any entity that could potentially face liability under article
21.21 is exempt from an award of attorneys' fees. Lafarge responds
that an insurer is only subject to article 21.21 if it has been
successfully sued under that article; because Lafarge's Texas
Insurance Code claims were dismissed on summary judgment, Lafarge
argues, Hartford was not subject to article 21.21 and Lafarge
28
should be allowed to recover its attorneys' fees.23
After an extensive discussion of the somewhat conflicted
interpretations of Texas law on this subject, the district court
determined that Lafarge was entitled to its reasonable attorneys'
fees. In reaching this conclusion, the district court determined
that it was bound to follow the opinion of the highest Texas court
that has spoken on the matter. It therefore looked to the Texas
Supreme Court's decision in Barnett v. Aetna Life Insurance Co.,
723 S.W.2d 663 (Tex.1987), and determined that the court, by
reference to lower court decisions, at least implicitly had adopted
an interpretation allowing an award of attorneys' fees in a breach
of duty to defend suit. See id. at 667. In so doing, however, the
district court determined that this Court's decision in Bituminous
Casualty Corp. v. Vacuum Tanks, Inc., 975 F.2d 1130 (5th Cir.1992),
incorrectly interpreted Texas law.
In Bituminous Casualty, we recognized that the Texas appellate
courts had allowed parties to recover attorneys' fees in insurance
contract cases both before and after the Texas Supreme Court's
decision in Dairyland County Mutual Insurance Co. of Texas v.
Childress, 650 S.W.2d 770 (Tex.1983). Bituminous Casualty, 975
F.2d at 1133 & n. 4. Nevertheless, we noted that Dairyland itself
precluded an award of attorneys' fees in these circumstances:
"Art. 2226 [the predecessor to section 38.006] does not apply to
23
Lafarge argues on cross-appeal that the Texas Insurance
Code claims were erroneously dismissed on summary judgment. It
acknowledges that, if this Court were to reverse the summary
judgment as to those claims, section 38.006(4) would operate to
bar a double recovery of attorneys' fees.
29
contracts of certain insurors who are identified in those sections
of the Insurance Code enumerated in Art. 2226." Id. at 1133
(quoting Dairyland, 650 S.W.2d at 775) (footnote and internal
quotation marks omitted). We therefore concluded that "[t]his
language implies that an insurer who falls within the provisions of
section 38.006 is exempt from the payment of attorney's fees and
that only those insurers who do not qualify for the exemption are
subject to the payment of attorney's fees." Id.
We recognize that, after Dairyland, the Texas Supreme Court
subsequently allowed an insured to recover attorneys' fees in a
breach of contract action. Barnett, 723 S.W.2d at 667. However,
it does not appear from that opinion that the insurer ever argued
that section 38.006 precluded an award of such fees against it;
indeed, the parties had previously stipulated to a reasonable fee
for prosecuting the breach of contract action. Id. It is
therefore not clear that Barnett can be construed as implicitly
overruling Dairyland's interpretation of section 38.006. We
acknowledge too, as we did in Bituminous Casualty itself, that
despite Dairyland and our interpretation of it in Bituminous
Casualty, Texas appellate courts continue to award attorneys' fees
to insureds who successfully prosecute breach of contract suits
against their insurers. Indeed, decisions of this Court, both
before and after Bituminous Casualty, have assumed that awards of
attorneys' fees to successful litigants are appropriate in these
circumstances. See Gulf Chemical & Metallurgical Corp. v.
Association Metals & Minerals Corp., 1 F.3d 365, 373 (5th
30
Cir.1993); Enserch Corp. v. Shand Morahan & Co., 952 F.2d 1485,
1500-01 (5th Cir.1992).
However, it is well-settled in this Circuit that "one panel
may not overrule the decision, right or wrong, of a prior panel, in
the absence of an en banc reconsideration or superseding decision
of the Supreme Court." Bertram v. Freeport McMoran, Inc., 35 F.3d
1008, 1016-17 (5th Cir.1994) (citation and internal quotation marks
omitted). "Moreover, a prior panel decision should be followed by
other panels without regard to any alleged existing confusion in
state law, absent a subsequent state court decision or statutory
amendment which makes this Court's [prior] decision clearly wrong."
Broussard v. Southern Pacific Transportation Co., 665 F.2d 1387,
1389 (5th Cir.1982) (en banc) (citation and internal quotation
marks omitted; emphasis added). Thus, although numerous Texas
appellate court decisions have assumed that attorneys' fees are
recoverable in cases such as this,24 the parties have not cited any
post-Bituminous Casualty case from a Texas court, and we have found
none, that directly confronts the issue we clearly resolved in
Bituminous Casualty.
In these circumstances, we must follow the holding of
Bituminous Casualty. The award of attorneys' fees to Lafarge for
the prosecution of this suit is reversed.
VII. Lafarge's Cross-Appeal
Lafarge raises two issues on cross-appeal. First, Lafarge
24
Likewise, our pre-Bituminous Casualty decision in Enserch
merely assumed that attorneys' fees were recoverable but did not
further discuss the issue.
31
argues that the district court erred in prorating Hartford's
liability for defense costs and that a recent Texas Supreme Court
case specifically shows that Texas law does not permit such
"horizontal stacking" of policy coverages. The record contains no
evidence that Lafarge ever objected to the proration of defense
costs.25 We therefore find that Lafarge has waived this portion of
its cross-appeal.
Even if error were not waived, however, we would still uphold
the district court's decision here. Lafarge's argument that the
Texas Supreme Court decision in American Physicians Insurance
Exchange v. Garcia, 876 S.W.2d 842 (Tex.1994), prohibits policy
"stacking" is strained. The question addressed in Garcia was
whether an insurer's duty to settle a suit was triggered when the
settlement demand was outside the policy limits. See Stowers
Furniture Co. v. American Indemnity Co., 15 S.W.2d 544, 547-48
(Tex.Comm'n App.1929, holding approved) (duty to defend includes
duty to accept reasonable settlement demands within policy limits).
Although the insurer's policy limit was $500,000, the injured party
never made a settlement demand less than $600,000. Garcia, 876
S.W.2d at 853. Because Garcia involved a suit for a continuing
25
In fact, it seems clear from the district court's order of
February 3, 1992, that Lafarge made no objection to the decision
to prorate defense costs. Considering Lafarge's motion for
reconsideration of its December 7, 1991, order, the district
court stated: "Lafarge argues that, because the Court saw fit to
apportion Hartford's responsibility for defense costs, it should
also apportion the deductible in precisely the same way." The
district court's order does not suggest that Lafarge made any
alternative argument contesting the propriety of apportionment in
the first instance.
32
injury (the prescription of drugs over an approximately two-year
period), the insured argued that the policy limits of his various
insurance policies should be combined (i.e., stacked) to trigger
the insurer's Stowers duty. The court disagreed:
"The consecutive policies, covering distinct policy periods,
could not be "stacked' to multiply coverage for a single claim
involving indivisible injury.... Simply because a "Claim
Occurrence' extends throughout several policy periods does not
raise the per-occurrence indemnity cap established in every
policy. Even the jurisdiction embracing the broadest coverage
trigger rule has held that multiple coverage does not permit
an insured to "stack' the limits of multiple policies that do
not overlap." Id. at 853-54 (footnotes omitted).
At most, then, Garcia held that an insured cannot get more than he
bargained for out of the insurance contract. See id. at 854-55
("[A]t no time during the four [relevant coverage] years did Garcia
carry liability insurance with a per-occurrence limit greater than
$500,000.... he may not claim to benefit from $1.5 million in
coverage by stacking temporally distinct policies."). Indeed, the
court specifically refused to decide when and under what
circumstances any particular policy would be triggered.26 Id. at
853 n. 20.
As the Garcia court recognized, there is apparently no Texas
law on the precise issue that faced the district court in this
case. Id. In Porter v. American Optical Corp., 641 F.2d 1128 (5th
26
Lafarge's contention that, by quoting one portion of the
opinion in Keene Corp. v. Insurance Co. of North America, 667
F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct.
1644, 71 L.Ed.2d 875 (1982), Garcia thereby adopted the further
holding in Keene regarding the appropriate trigger date for any
one policy both mischaracterizes the Texas Supreme Court's
reliance on Keene and disregards the clear language of Garcia 's
footnote 20.
33
Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650
(1981), the Fifth Circuit decision on which the district court in
the present case relied, this Court adopted the Forty-Eight
Insulations exposure theory, allowing proration of coverage.27
Porter, 641 F.2d at 1145. Although Lafarge argues that Forty-Eight
Insulations, which interpreted New Jersey and Illinois law, is not
an appropriate paradigm for determining Texas law, the Court in
Porter relied only on the theory of Forty-Eight Insulations; in
determining to apply the exposure rule, it applied general
Louisiana principles of contract interpretation, which are
substantively similar to those applied in Texas.28 Id. We conclude
that the district court did not err in prorating Hartford's
liability under the Porter/Forty-Eight Insulations rule.
Lafarge also challenges the district court's grant of summary
judgment to Hartford as to Lafarge's Texas Insurance Code claims.
Although Lafarge characterizes the district court's action as sua
sponte, Hartford moved for summary judgment on these claims, and
Lafarge responded to that motion. Moreover, although Lafarge
27
In Clemtex, this Court upheld the district court's
determination, apparently without citation, that Texas would
adopt the Porter/Forty-Eight Insulations exposure theory, but
only because the parties had not challenged that determination.
807 F.2d at 1274-75.
28
Under the policy at issue in Porter, the term "
"[o]ccurrence' [was] defined in each policy to mean an accident
or event or a continuous or repeated exposure to conditions which
causes or results in bodily injury." Porter, 641 F.2d at 1145.
Given this language, which is very similar to that at issue here,
the Court determined that the plain meaning of the policy was
that the policy was triggered when any part of the continuing
injury accumulated during the period of coverage (i.e.,
"occurred"). Id.
34
argues that it was entitled to further discovery because material
issues of fact remained as to Hartford's state of mind, we do not
think the district court erred in determining that enough discovery
had occurred to justify summary judgment.
In addition, Lafarge argues that the district court
impermissibly determined disputed issues of fact by finding that
Hartford's actions in processing Lafarge's claims to a defense in
the underlying suit were reasonable (albeit ultimately mistaken).
Lafarge miscomprehends the nature of the reasonableness
determination. "While generally a question of fact, reasonableness
becomes a question of law if the facts are undisputed."
Continental Savings, 762 F.2d at 1243. It does not appear that
there was any dispute as to the amount of time it took Hartford to
investigate and respond to Lafarge's claims. Also, as Lafarge has
stressed elsewhere in this appeal, the scope of the duty to defend
is determined by reference to the pleadings and the policy, both of
which were available to the district court. The district court
therefore was clearly in a position to determine, as a matter of
law, whether Hartford acted reasonably. It did not err.
Conclusion
For these reasons, we conclude that Hartford's duty to defend
did not arise until tender of the second amended petition, and we
therefore reverse the district court's determination to the
contrary. We also reverse the award of pre-tender defense costs
and the award of Lafarge's attorneys' fees for the prosecution of
the breach of contract suit. We affirm in all other respects.
35
This cause is remanded to the district court with instructions to
enter a judgment consistent with this opinion.
AFFIRMED in part; REVERSED in part; and REMANDED
36