Case: 16-50466 Document: 00514103060 Page: 1 Date Filed: 08/04/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-50466
Fifth Circuit
FILED
August 4, 2017
LIBERTY MUTUAL FIRE INSURANCE COMPANY, Lyle W. Cayce
Clerk
Plaintiff - Appellee Cross-Appellant
v.
ACE AMERICAN INSURANCE COMPANY,
Defendant - Cross-Appellee
HCA, INC.,
Defendant - Appellant Cross-Appellee
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:13-CV-555
Before JOLLY and ELROD, Circuit Judges, and RODRIGUEZ, District
Judge.*
PER CURIAM:**
This is an insurance coverage dispute. Liberty Mutual Fire Insurance
Company (“Liberty”) sued ACE American Insurance Company (“ACE”) and
* District Judge of the Western District of Texas, sitting by designation.
**Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-50466 Document: 00514103060 Page: 2 Date Filed: 08/04/2017
No. 16-50466
HCA, Inc. (“HCA”), seeking to recover the cost of a defense it provided for ABM
Industries, Inc. (“ABM”).
The dispute arose out of a vehicular accident. Elizabeth Easley was
injured when a shuttle bus owned by HCA 1 but operated by a third-party
contractor, ABM, 2 crashed into a pole. HCA had an insurance policy with ACE
that covered vehicles it owned, as well as permissive operators of its vehicles
(such as ABM), subject to a $1 million deductible that was eroded by defense
costs. The policy stated that HCA “will pay all sums the ‘insured’ [including
ABM] becomes legally obligated to pay within the Deductible.” ABM,
meanwhile, had an insurance policy with Liberty that covered vehicles it
owned but that was “excess” to “other insurance” carried on non-owned vehicles
(such as HCA’s bus).
Easley sued ABM for her injuries. ABM tendered the defense to Liberty.
Liberty attempted to tender the defense to ACE and HCA, asserting that the
ACE/HCA insurance policy on the vehicle was primary, but ACE and HCA
denied the tender. Liberty defended and settled the lawsuit; the total cost of
defense and settlement was less than $1 million. Liberty, as subrogee of ABM,
subsequently filed this action in federal court, seeking to recoup its defense
costs from HCA and ACE. The district court granted summary judgment in
favor of Liberty, finding that the HCA/ACE policy provided “primary”
insurance on the vehicle and that HCA had agreed, under the policy, to pay for
any liability created by its “insured,” including ABM. The district court
1 HCA, otherwise known as the “Hospital Corporation of America,” owned Methodist
Hospital, which in turn owned the shuttle bus, which shuttled patients around the hospital
parking lot. The entities are not distinct for the purposes of this appeal and are collectively
referred to as “HCA.”
2 The shuttle bus was operated by Ampco System Parking, Inc. n/k/a ABM Parking
Services, a subsidiary of ABM Industries Incorporated. The entities are not distinct for the
purposes of this appeal and are collectively referred to as “ABM.”
2
Case: 16-50466 Document: 00514103060 Page: 3 Date Filed: 08/04/2017
No. 16-50466
ordered HCA to pay for the attorneys’ fees incurred in defending the
underlying action but denied Liberty’s request for fees incurred in bringing the
instant action.
We have studied the briefs, read the applicable authorities, and heard
the arguments of counsel; we are convinced under the peculiar facts of this case
that the district court made no reversible error. 3 We are further convinced
that the district court did not err in denying Liberty’s additional request for
joint and several liability as to ACE and did not abuse its discretion in denying
attorneys’ fees pursuant to Tex. Civ. Prac. & Rem. Code § 38.001(8).
AFFIRMED.
3 We recognize that there may be other arguments that either have not been made or
were waived as untimely that may have resulted in a different analysis. We have no occasion
to address such arguments.
3