United States Court of Appeals Fifth Circuit F I L E D Revised July 7, 2003 June 23, 2003 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 02-40524
AMERICAN INDEMNITY LLOYDS,
Appellant,
versus
TRAVELERS PROPERTY & CASUALTY,
Appellee.
_______________________
Appeal from the United States District Court for the Southern District of Texas
Before GARWOOD, JONES, and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
In this Texas law diversity case, plaintiff-appellant American
Indemnity Lloyds (AIL) seeks to recover from defendant-appellee
Travelers Property & Casualty (TPC) one-half of the sums AIL paid
in settlement and expended in defense of a personal injury damage
suit against a contractor who was both the named insured in TPC’s
policy and an additional insured in AIL’s policy. The named
insured in AIL’s policy was the subcontractor whose employee had brought the underlying suit for on-the-job injuries which were
within the scope of the subcontractor’s agreement to indemnify the
contractor, TPC’s named insured. AIL appeals the district court’s
summary judgment dismissing its suit with prejudice. We affirm.
Facts and Proceedings Below
In September 1994 the subcontractor, Elite Masonry, Inc.
(Elite), entered into a subcontract with the contractor, Caddell
Construction Company, Inc. (Caddell), by which Elite agreed to
provide masonry services to Caddell in connection with Caddell’s
work on the construction of a prison in Beaumont, Texas. Article
XII(a) of the subcontract is an indemnity provision which provides
that:
“[Elite] agrees to indemnify [Caddell] against and hold [Caddell] harmless from any and all claims, demands, liabilities, losses, expenses, suits and actions (including attorneys fees) for or on account of any injury to any person . . . which may arise (or which may be alleged to have arisen) out of or in connection with the work covered by this Subcontract, even though such injury . . . may be (or may be alleged to be) attributable in part to negligence or other fault on the part of [Caddell] or its officers, agents or employees. This obligation to indemnify and hold [Caddell] harmless shall not be enforceable if, and only if, it be determined by judicial proceedings that the injury, death, or damage complained of was attributable solely to the fault or negligence of [Caddell] or its officers, agents, or employees. [Elite] agrees to defend all claims , suits, and actions against [Caddell] (in which connection [Elite] shall employ attorneys acceptable to [Caddell]) on account of any injury, death or damage and shall reimburse [Caddell] for all expenses, including reasonable attorney fees, incurred by reason of such claim, suit or action or incurred in seeking indemnity or other recovery from [Elite] hereunder.” (emphasis added).
2 The subcontract’s Article XII(b) required that Elite “procure at
[its] expense prior to commencement of any work hereunder, and . .
. maintain for the duration of this subcontract, public liability
insurance and also such employer’s liability or workmen’s
compensation insurance as may be necessary to ensure the liability
of the parties hereto for any injuries to [Elite’s] employees.”
The subcontract has no requirement that Caddell procure or maintain
any insurance.
On March 16, 1996, Mariano Alas (Alas), an employee of Elite,
was injured while performing work pursuant to the subcontract.
Some time in early 1998 Alas, individually and as next friend of
his minor children, filed suit for damages against Elite and
Caddell in respect to the injuries he had thus received, claiming
negligence and gross negligence.
At the time of Alas’s injury, and when his suit was filed,
Elite was the named insured under a commercial general liability
insurance policy issued by AIL having primary limits of $1,000,000.
Caddell was then an additional insured under this AIL policy.1
Caddell was also then the named insured under a commercial general
liability insurance policy issued by Aetna Casualty & Surety
Company (Aetna) and having primary limits of $1,000,000. Elite was
not an insured, named or otherwise, under the Aetna Policy. There
1 The AIL policy provides that an additional insured under the policy would be “Any person or organization . . . you [Elite] have agreed to name as an additional insured by written contract or agreement if the contract or agreement is executed prior to loss.”
3 is no allegation or evidence that prior to Alas’s injury AIL was
aware of the existence of the Aetna policy. At some point after
March 16, 1998, TPC, pursuant to its purchase of some or all of
Aetna Casualty lines of insurance, succeeded to all of Aetna rights
and obligations under the Aetna policy. Each of the two policies
– the AIL policy and the Aetna/TPC policy – contained identical
“other insurance” clauses.2 The parties do not dispute that the
2 These clauses each state:
“a. Primary Insurance
This insurance is primary except when b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in c. below.
b. Excess Insurance
This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other basis:
(1) That is Fire, Extended Coverage, Builder’s Risk, Installation Risk or similar coverage for “your work”;
(2) That is Fire insurance for premises rented to you; or
(3) If the loss arises out of the maintenance or use of aircraft, “autos” or watercraft to the extent not subject to Exclusion g. of Coverage A (Section I).
When this insurance is excess, we will have no duty under Coverage A or B to defend any claim or “suit” that any other insurer has a duty to defend. If no other insurer defends, we will undertake to do so, but we will be entitled to the insured’s rights against all those other insurers.
When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of:
4 AIL policy’s “insured contract” provisions3 afforded Elite with both
(1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and
(2) The total of all deductible and self-insured amounts under all that other insurance.
We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part.
c. Method of Sharing
If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first.
If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer’s share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers.” 3 The AIL policy’s “Insuring Agreement” provides in part “[w]e will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies. We will have the right and duty to defend any ‘suit’ seeking those damages.” The AIL policy’s “Exclusions” provide in part as follows:
“This insurance does not apply to:
...
b. Contractual Liability
‘Bodily injury’ or ‘property damage’ for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages:
(1) Assumed in a contract or agreement that is an ‘insured contract’, provided the ‘bodily injury’ or ‘property damage’
5 indemnity and defense coverage for such amounts as Elite might be
obligated, under the indemnity provisions of the subcontract, to
pay Caddell as reimbursement for payments made by Caddell to
discharge or settle the claims made against Caddell in the Alas
lawsuit. See, e.g., Gibson & Associates, Inc. v. Home Ins. Co.,
966 F. Supp. 468, 475-77 (N.D. Tex. 1997). But these “insured
contract” provisions of AIL’s policy at least arguably did not
afford Elite indemnity coverage for such amounts as Elite might be
obligated, under the subcontract’s indemnity clause, to pay Caddell
as reimbursement for attorney’s fees and expenses incurred by
Caddell in defense of Alas’s claims against Caddell in the Alas
lawsuit.
The parties likewise do not dispute that the Aetna/TPC policy
subrogated TPC to Caddell’s rights against Elite under the
subcontract’s indemnity clause to the extent of any payments TPC
would make under its policy to indemnify or defend Caddell in
respect to the claims against Caddell in the Alas lawsuit.4
occurs subsequent to the execution of the contract or agreement; . . .”
The AIL policy defines “Insured Contract” as including “That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for ‘bodily injury’ or ‘property damage’ to a third person or organization.” 4 The Aetna/TPC policy provides: “If the insured has rights to recover all or part of any payment we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring “suit” or transfer those rights to us and help us enforce them.” Such subrogation would be available to TPC for
6 TPC initially undertook the defense of Caddell in the Alas
lawsuit. Pursuant to demand by TPC, AIL in October 1998 assumed
the defense of and agreed to indemnify Caddell in the Alas lawsuit,
and TPC thereafter withdrew from that representation.5 At some
time prior to May 2, 2000 (just when is not reflected in the
record), the Alas plaintiffs nonsuited Elite, leaving Caddell as
amounts it would pay notwithstanding that no such payment was or would actually be made by Caddell (in the first instance or otherwise). See, e.g., Rushing v. Int. Aviation Underwriters, 604 S.W.2d 239, 243-44 (Tex.Civ.App. Dallas, 1980; n.r.e.); General Star Indem. Co. v. Vista Fire Ins. Co.,, 173 F.3d 946, 949-50 (5th Cir. 1999) (Texas law); Sharp v. Wausau Ins. Cos., 917 F.2d 885, 890 (5th Cir. 1990). 5 On October 13, 1998, AIL wrote TPC’s counsel in respect to Alas’s lawsuit stating in part as follows:
“Please accept this letter as our response to your demand that we defend and indemnify on behalf of Caddell Construction Company.
Please note that we have reviewed the language in the contract between Caddell Construction Company and Elite Masonry and find that it does not meet the standards set forth in the Ethyl case.
We point out however that Caddell Construction Company is an additional insured under our policy. Because of this American Indemnity Group will assume the defense and indemnify Caddell Construction Company in the above case.”
It is undisputed that the second sentence in the above quotation relates to the indemnity agreement in the Caddell-Elite subcontract and reflects AIL’s then position that the indemnity agreement was invalid because it did not meet the “express negligence” requirement for indemnity contracts adopted by the Texas Supreme Court in Ethyl Corp. v. Daniel Construction Co., 725 S.W.2d 705, 708 (Tex. 1987). In connection with its assumption of the defense of Caddell in the Alas lawsuit, AIL reimbursed TPC its attorney’s fees and costs incurred to that time in TPC’s defense of Caddell in that suit.
7 the sole defendant.6
After assuming the defense of Alas’s suit, AIL kept TPC
advised of the progress of the case. On July 12, 2000, AIL placed
TPC on notice of AIL’s position that the AIL policy and the
Aetna/TPC policy provided concurrent primary coverage for Caddell
in the Alas lawsuit and that AIL took the position that it “has and
retains the right to seek contribution from” TPC for “all amounts
it [AIL] has paid and will pay in defense and settlement of this
claim.” TPC did not respond, and declined AIL’s invitation to
participate in negotiations to settle the Alas lawsuit. On July
25, 2000, AIL settled the Alas suit for a total of $625,000, the
entirety of which sum was paid by AIL. It was stipulated in the
present suit that this was a reasonable settlement and that AIL
reasonably expended $230,163.71 in legal fees and costs in the
defense of Caddell in the Alas suit. Following the Alas suit
settlement, AIL demanded that TPC reimburse it half the $625,000
AIL paid to settle the Alas suit and half AIL’s attorneys’ fees and
costs incurred in connection with its defense of Caddell in that
6 Plaintiffs’ Fifth Amended Original Petition in the Alas suit (the only document from the record in that suit copy of which is in this record) is dated May 2, 2000, and Caddell is the only named defendant therein. It alleges that Caddell was negligent and grossly negligent “in supervising the site and maintaining a safe work environment” (by, among other things, “failing to . . . monitor the safety of contractors and subcontractors” and “failing to be observant for unsafe acts and/or conditions”) and that Caddell “negligently hired, supervised and retained Elite Masonry, Inc. as a subcontractor at the subject work site” when Caddell “knew, or in the exercise of reasonable care, should have known that Elite masonry, Inc. was not competent, qualified and/or capable of safely performing its work duties at the subject work site,” which was “a proximate cause of Plaintiffs’ injuries.”
8 case. TPC did not respond to those demands.
In June 2001, AIL filed this suit against TPC in the district
court below, predicating jurisdiction on diversity of citizenship.
It sought declaratory judgment that it was entitled to recover from
TPC one-half the sums AIL had paid to settle and to defend Caddell
in the Alas lawsuit; it also sought a money judgment against TPC
for those sums. AIL alleged it was entitled to such relief based
on the “other insurance” provisions common to its policy and the
Aetna/TPC policy (see note 2, supra).
At a pretrial conference, the parties and the district court
agreed that each party would file a summary judgment motion after
an initial discovery period and that the case would be decided on
the basis of those motions. AIL's motion relied upon the “other
insurance” clauses, whereas TPC's motion was based on the
subcontract’s indemnity provision. As indicated above, most of the
relevant facts were stipulated, including the provisions of the
subcontract and the fact “there was no judicial determination of
fault or negligence in the Alas lawsuit.” TPC took the position
that “[t]here was no adjudication of fault” respecting the Alas
injury “prior or subsequent to settlement” of the Alas lawsuit.
AIL at no time alleged that there had ever been, in the Alas
lawsuit or otherwise, any judicial determination of fault in
respect to Alas’s injury alleged in the Alas lawsuit, nor did AIL
allege that it had ever previously sought to have such a
9 determination made; nor did it seek to have any such determination
made in the instant suit. Rather, AIL took the position below that
“the issue of fault as to Caddell, Elite and the plaintiff in the
underlying case is not before this court. Because the underlying
case was settled, a determination of fault at this stage is
impossible” and “the issue of fault, as a practical matter, cannot
be determined at this point.”
The district court granted TPC's motion for summary judgment.
On its appeal to this Court AIL argues that the district court
erred in holding that the indemnity provision was controlling.
Discussion
As the material facts are not in genuine dispute and only
questions of law are presented on this appeal, our review is de
novo. Mowbray v. Cameron County, Texas, 274 F.3d 269, 278-79 (5th
Cir. 2001).
AIL contends that by virtue of the identical “other insurance”
clauses in each policy (see note 2 supra) under which each policy
provided primary coverage to Caddell (the named insured in the
Aetna/TPL policy; an additional, unnamed insured in the AIL policy)
respecting the Alas lawsuit, and because AIL paid the entire cost
of settlement and defense of the claims against Caddell in that
suit, AIL is entitled to recover from TPL half the amount AIL so
expended, and that this result is not changed by virtue of the
indemnity provisions of the subcontract between Alas’s employer
10 Elite (the named insured in AIL’s policy) and Caddell or that fact
that Elite’s obligation thereunder to hold Caddell harmless from
Alas’s claims was covered by the “insured contract” provisions of
the AIL policy. TPC relies on the indemnity agreement in Elite-
Caddell subcontract and its status as an “insured contract” under
AIL’s policy.7
Both parties agree that Texas law controls, but neither cites
any case applying Texas law which they contend to be directly in
point. Nor has our independent research disclosed any such case.
We are accordingly required to follow the rule we believe the Texas
Supreme Court would adopt, and in making that Erie “guess”, we
consider, among other sources, “treatises, . . . decisions from
other jurisdictions . . . and the ‘majority rule’.” See, e.g.,
Jackson v. Johns-Mansville Sales Corp., 781 F.2d 394, 398 (5th Cir.
1986); Texas Employers Ins. v. Underwriting Members, 836 F. Supp.
398, 406 (S.D. Tex. 1993).
Other Insurance Clauses
The general rule appears to be that, as AIL contends, where
each of two liability insurance policies issued by different
7 The district court ruled that the indemnity agreement was valid and enforceable according to its terms under Texas law, which is concededly applicable, and met all the requirements of the Texas express negligence and conspicuousness doctrines as set forth in Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705, 708 (Tex. 1987); Enserch Corp. v. Parker, 794 S.W.2d 2, 8, 9 (Tex. 1990); and, Dresser Industries, Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 510-11 (Tex. 1993). The district court’s holdings in this respect are plainly correct and AIL does not challenge them on this appeal.
11 insurers provides primary coverage to the same insured in respect
to the claim in question and contains mutually consistent “other
insurance” provisions similar to those in the policies here, the
insurer paying more than its share (generally either one half or
the fraction that the limits of its policy is of the total of the
limits of both policies) of the claim is ordinarily entitled to
recover from the other insurer for the excess so paid. See, e.g.,
Employers Casualty Company v. Employers Commercial Union Insurance
Co., 632 F.2d 1215, 1218 (5th Cir. 1981) (Alabama law); Aviles v.
Burgos, 783 F.2d 270 (1st Cir. 1986). This likewise appears to be
the general rule in Texas. See, e.g., Texas Employers Ins. at 404,
n. 5 & 6 and cases cited. Under Texas law such recovery is not
based on the theory that the separate policies create any contract
between the two insurance companies issuing them to a common
insured, nor upon common law contribution, but rather upon
conventional or equitable subrogation to the rights of the common
insured against the nonpaying insurer. See, id.; Employers
Casualty Co. v. Transport Ins. Co., 444 S.W.2d 606, 610 (Tex.
1969).8
Indemnity Exception
However, the foregoing general rule is subject to an equally
widely recognized exception for cases in which the policy of the
8 Such subrogation recovery would normally be subject to the nonpaying insurer’s policy’s limits and other relevant policy provisions.
12 insurer seeking to invoke the “other insurance” clauses also covers
another insured who is liable to indemnify the insured in the
policy of the other insurer. Thus, a well recognized commentator
observes: “an indemnity agreement between the insureds or a
contract with an indemnification clause, such as is commonly found
in the construction industry, may shift an entire loss to a
particular insurer notwithstanding the existence of an ‘other
insurance’ clause in its policy.” 15 Couch on Insurance (3rd Ed.
1999; Russ & Segalla) § 219.1 at 219-7.
As noted in Wal-Mart Stores Inc. v. RLI Ins. Co., 292 F.3d
583, 588-94 (8th Cir. 2002), the clear majority of jurisdictions
recognizes the foregoing exception and gives controlling effect to
the indemnity obligation of one insured to the other insured over
“other insurance” or similar clauses in the policies of the
insurers, particularly where one of the policies covers the
indemnity obligation. We believe Texas would follow this well
recognized exception to the general rule. We note some of the many
decisions that have done so.
In Wal-Mart Stores, an Arkansas law diversity case, Cheyenne
agreed to supply Wal-Mart with halogen lamps which Wal-Mart sold at
retail. This agreement required Cheyenne to carry liability
insurance and also to indemnity Wal-Mart from any liability arising
from its sale of the lamps. One of these sold by Wal-Mart
misfunctioned, causing a fire and personal injury to Jasmine
13 Boykin, who sued Wal-Mart and Cheyenne in state court. Cheyenne
had procured insurance covering itself and Wal-Mart from both St.
Paul, which provided $1 million primary coverage, and RLI, which
provided $10 million excess coverage over the St. Paul coverage.
The RLI policy additionally covered Cheyenne’s contractual
indemnity obligation to Wal-Mart. Wal-Mart was also covered by its
own $10 million policy with National Union, which did not cover
Cheyenne. The Boykin suit was settled for $11 million, $1 million
of which was paid by St. Paul, whom all agreed was fully
responsible for that payment, and the entire remaining $10 million
was paid by RLI under a reservation of rights. Wal-Mart and
National Union sued RLI in federal court for declaratory judgment
that neither was obligated for any part of the settlement; RLI
counterclaimed seeking contribution for all or part of the $10
million it had paid. The RLI policy provided that it was excess to
any non-scheduled policy and the National Union policy was not
scheduled in the RLI policy. The National Union policy provided
that it was primary (with certain specified exceptions all of which
the Court of Appeals assumed, arguendo, were inapplicable). The
Eighth Circuit held that National Union was not obligated to
contribute anything to the Boykin settlement (and neither was Wal-
Mart).
Relying in part of the above quoted passage from Couch on
Insurance, see Wal-Mart Stores at 588, the court held that “when we
14 analyze the parties obligations under both the insurance contracts
and the indemnity agreement, we conclude that the indemnity
agreement controls the outcome of this case.” Id. at 589. The
court rejected RLI’s argument that the indemnity agreement should
not control because Cheyenne had not been found liable to Wal-Mart
and was not a party to the federal case. Id. The court also
observed that “[w]e fail to see why RLI deserves the benefit of
being ‘excess’ to National Union, an insurer it knew nothing about”
and “RLI has introduced no evidence that it knew whether Wal-Mart
had other insurance to cover liability from the sales of the
halogen lamps, or the extent of any such coverage.” Id. at 592,
593. And, the court further concluded that allowing RLI any
recovery from National Union (or Wal-Mart) “would produce
circuitous litigation that would still result in RLI being
ultimately liable for the $10 million.” Id. at 593. If RLI could
require National Union to pay it, then National Union would be
subrogated to Wal-Mart’s contractual indemnity rights against
Cheyenne and RLI “would have made its insured [Cheyenne] liable to
itself, an insurer, for a covered loss”, while “[i]f Cheyenne
succeeded in getting RLI to cover the $10 million claim resulting
from the enforcement of the indemnity provisions, the parties would
be back in the situation they were in before this action was
brought–RLI is liable for the $10 million Boykin settlement.” Id.
at 594. The court concluded by stating:
15 “We think this potential circuity of action is significant, in that it reveals the true nature of the parties’ obligations and relationships with each other. RLI will ultimately be liable for the $10 million because of Cheyenne’s promise to indemnify Wal-Mart and RLI’s contractual-liability coverage in its policy covering Cheyenne. To prevent such wasteful litigation and to give effect to the indemnification agreement between the parties, we hold that RLI cannot recover against National Union . . .” Id.
The holding and reasoning of the well considered Wal-Mart Stores
opinion is fully applicable here.
Another similar case to that now before us is J. Walters
Const. Inc. v. Gilman Paper Co., 620 So.2d 219 (Fla. App. 1993).
There, Walters contracted with Gilman to perform construction work
at a Gilman plant. The contract provided that Walters would hold
Gilman harmless from any claims for injury arising from the work
and would procure liability insurance covering Gilman in respect to
the work. Walters procured insurance with CNA in which Walters was
named insured and Gilman was an additional insured. Gilman also
procured its own policy written by Liberty Mutual (in which Walters
was apparently not an insured). An employee of Walters was injured
on the job and sued Gilman, which settled and sued to recover from
CNA the entire amount paid in settlement. Both the CNA and the
Liberty Mutual policies covered Gilman in respect to the employee’s
suit and “both policies” had similar “other insurance” clauses “to
the effect that if other coverage is available, then coverage for
only half of the claim will be provided.” Id. at 220-21 & n.1.
The court, applying Georgia law, held that CNA was obligated for
16 the entire amount paid in settlement of the Walters employee’s suit
against Gilman, and Liberty Mutual did not have to share any part
of that, because “to apply the ‘other insurance’ provisions to
reduce CNA’s liability would serve to abrogate the indemnity
agreement between Walters and Gilman” and the agreement “that
Walters would hold Gilman harmless and that Walters would secure
insurance” reflected “their mutual intent to have any claim arising
out of the contracted work paid exclusively by the insurance
procured by Walters, without contribution by Gilman’s insurer,
Liberty Mutual.” Id. at 221.9
Another leading case in this area is Rossmoor Sanitation Inc.
v. Pylon Inc., 119 Cal. Rptr. 449, 13 Cal. 3rd 622, 532 P.2d 97
(Cal. 1975). There, Pylon had contracted with Rossmoor to
construct a pump station and sewer lines for Rossmoor. In the
contract Pylon agreed to indemnify Rossmoor for all claims for
damages arising out of the work, including attorneys’ fees and
expenses incurred in defending damage suits, and Pylon also agreed
to obtain liability insurance for itself and to name Rossmoor as an
additional insured. Pylon procured insurance with U.S. Fire
covering Pylon and designating Rossmoor as an additional insured.
Rossmoor also had independent coverage under a policy (which did
not cover Pylon) previously issued by its own insured, INA. The
9 The opinion does not, however, suggest that the CNA policy insured Walters’s liability to Gilman under the indemnification provisions of the construction contract.
17 U.S. Fire and INA policies each purported to provide Rossmoor
primary coverage, and each had identical other insurance clauses
providing for apportionment of loss if the insured has other
insurance covering the claim. Two Pylon employees were injured
while performing work under the contract and sued Rossmoor. INA
paid the resulting judgment against Rossmoor and bore the costs of
defense. Thereafter, Rossmoor sued Pylon and U.S. Fire seeking
indemnity; “U.S. Fire cross-complained against INA, seeking an
apportionment of the sums between the carriers pursuant to the
‘other insurance’ clauses.” Id., 532 P.2d at 99. The trial court,
relying on the construction contract’s provisions, ruled that “as
the U.S. Fire policy was part of the consideration for the job, it
provided primary coverage to Rossmoor; that the INA policy was
merely excess; and that neither Pylon nor U.S. Fire was entitled to
any benefits or setoffs by reason of the INA coverage.” Id.
(emphasis added). The California Supreme Court affirmed.10 It held
10 The trial court also held that the indemnity agreement validly obligated Pylon to indemnify Rossmoor because Rossmoor’s negligence was merely passive, namely “failing to discover that Pylon employees intended to enter an unshored trench.” Id. at 99. The California Supreme Court affirmed this ruling. It noted that under its decisions “an indemnity agreement may provide for indemnification against an indemnitee’s own negligence, but such an agreement must be clear and explicit and is strictly construed against the indemnitee. (citation). If an indemnity clause does not address itself to the issue of an indemnitee’s negligence, it is referred to as a ‘general’ indemnity clause. (citation). While such clauses may be construed to provide indemnity for a loss resulting in part from an indemnitee’s passive negligence, they will not be interpreted to provide indemnity if an indemnitee has been actively negligent.” Id. It went on to hold that “[s]ince the agreement does not state what effect Rossmoor’s negligence will have on Pylon’s obligation to indemnify, the clause is a ‘general’ indemnity provision,
18 that the identical “other insurance” clauses in the U.S. Fire and
INA policies, which each purported to provide Rossmoor primary
coverage, did not control or relieve U.S. Fire of the obligation to
fully reimburse INA for the entire amount of the judgment in
underlying suit. The court stated:
“It appears that both INA and U.S. Fire calculated and accepted premiums with knowledge that they might be called upon to satisfy a full judgment. There is no evidence that either company knew there was or would be other insurance when they issued the policies. The fact that there is other insurance is a mere fortuitous circumstance. We view one factor as compelling, however: to apportion the loss in this case pursuant to the other insurance clauses would effectively negate the indemnity agreement and impose liability on INA when Rossmoor bargained with Pylon to avoid that very result as part of the consideration for the construction agreement. We therefore conclude that the rights of indemnity and subrogation must control, and are persuaded the trial court was correct in finding that because the U.S. Fire policy was part of the consideration for the construction job, it must be viewed as primary insurance under the facts of this case and that INA was subrogated to the rights of Rossmoor.” Id. at 104-05 (emphasis added).11
A decision of this court is in accordance with the foregoing
principles. In Aetna Ins. Co. v. Fidelity & Cas. Co. of New York,
483 F.2d 371 (5th Cir. 1973), American Insulation contracted to
perform certain work at a Winn Dixie warehouse and one of the
and under existing case law Rossmoor may not benefit from the agreement if it is deemed actively negligent as Pylon and U.S. Fire claim. The trial court has found, however, that Rossmoor was at most passively negligent. We are not persuaded that this determination was erroneous.” Id. at 104. 11 Like the situation in J. Walters Const. Inc. (see note 9, supra), there is nothing in the Rossmoor opinion to indicate that the U.S. Fire policy provided coverage to Pylon for its potential liability to Rossmoor under the construction contract’s indemnity clause.
19 American Insulation’s employees was injured while performing that
work and recovered a $68,500 judgment against Winn Dixie, which was
found negligent. The contract required American Insulation to
indemnify Winn Dixie for any claim arising from the presence or
activity of American Insulation on Winn Dixie premises, even though
caused by Winn Dixie’s negligence. Winn Dixie paid the judgment
against it and thereafter, in a separate suit, recovered judgment
against American Insulation based on the indemnity agreement for
$84,116.79, being the $68,5000 awarded in the employee’s suit plus
interest, costs and attorneys’ fees. Aetna, which insured American
Insulation, paid all this $84,116.79 judgment and then brought the
present suit against Winn Dixie’s liability insurer, Fidelity &
Casualty Company, seeking to recover half of that payment. The
court (apparently applying Florida law) held that Aetna was
entitled to no recovery whatever because “[t]he Indemnity Agreement
. . . controls all the rights and obligations of the parties and
their privies (the insurers)”, id. at 473, and accordingly the
precise terms of the Aetna and the Fidelity & Casualty company
insurance policies were “immaterial.” Id. at 472. The same
approach was taken in Chubb Ins. Co. of Canada v. Mid-Continent
Cas. Co., 982 F. Supp. 435 (S.D. Miss. 1997). There Coho, insured
by Chubb under a $1 million general liability policy, was sued for
$5.5 million by employees of Smith Brothers who were injured while
performing Smith Brothers’ work-over contract with Coho. The
20 contract required Smith Brothers to indemnify Coho for all claims
and related attorney’s fees arising out of the work. Smith
Brothers’s liability to Coho under the indemnity agreement was
covered by its $1 million liability policy with Mid-Continent. In
a declaratory judgment suit between these two insurers, Mid-
Continent, relying on the identical “other insurance” clauses
(essentially the same as those present here) in its and Chubb’s
respective policies, contended that Chubb was responsible for half
of any liability and defense costs in the employees’ suit. The
court assumed arguendo that the terms of Mid-Continent and Chubb
policies each purported to provide Coho primary coverage for
purposes of the other insurance clauses, id. at 437 n.5, but held
that the Mid-Continent “coverage must be exhausted before Chubb, as
Coho’s primary insurer, must provide any coverage or pay any
portion of any award . . . against Coho” because “Smith Brothers is
obligated to defend and indemnify Coho . . . consequently, Smith
Brothers’ insurers necessarily have the primary obligation to
defend Coho relative to those claims, without regard to any
insurance which Coho might have.” Id. at 437. “To hold otherwise
would render the indemnity contract between the insureds completely
ineffectual . . . .” Id. at 438. The court relied on Rossmoor and
J. Walters Const. Inc. and on our decision in Aetna Ins. Co.12
12 Other authorities likewise support the same result. Continental Cas. Co. v. Auto Owners Ins. Co., 238 F.3d 941 (8th Cir. 2000), was a declaratory judgment action to determine which insurer was liable for funds paid to settle a personal injury suit brought against Burlington
21 In Reliance National Indemnity v. General Star Indemnity, 72
Cal. App. 4th 1063, 85 Cal Rptr. 2d 627 (Cal. App. 1999), two
Northern by an employee of Fitzsimmons injured while performing Fitzsimmons’s contract with Burlington Northern. That contract required Fitzsimmons to indemnify Burlington Northern against all claims arising out of the contract work; it also required Fitzsimmons to pay for liability insurance covering Burlington Northern in respect to such claims. The policy procured pursuant to this provision was that of Interstate Fire and Casualty which named Burlington Northern as an insured (but did not cover Fitzsimmons, although Fitzsimmons paid for it). Fitzsimmons was insured under a CGL policy issued by Auto Owners Insurance Company which included coverage of sums Fitzsimmons became obligated to pay as damages for bodily injury by virtue of the indemnity provisions of its contract with Burlington Northern. The court, apparently applying Minnesota law, noted that “both Interstate and Auto Owners covered the amount Burlington Northern agreed to pay under the settlement,” id. at 944, and held that “Interstate, being subrogated to Burlington Northern’s rights, can reach Fitzsimmons and, through it, Fitzsimmons’s CGL carrier, Auto Owners. . . . we hold that Auto Owners is obligated to bear the entire loss.” Id. at 945. See, also: Pacific National Ins. Co. v. Transport Ins. Co., 341 F.2d 514, 516, 520 (8th Cir. 1965) (Transport insured Superior, lessee of truck driven in Superior’s business by Fred, an employee of the lessor; Transport paid the entire judgment against Superior for injury to a third party caused by Fred’s negligence in connection with truck; Pacific insured the lessor and Fred. Transport was held entitled to recover the full amount of judgment from Pacific without any proration on the basis of the respective limits of the Pacific and Transport policies, and without regard to the co-insurance, excess or pro rata provisions of Pacific’s policy, because Superior, whose liability was entirely vicarious, was entitled to common law indemnity from Fred, and Transport was subrogated to Superior’s rights against Fred and Pacific as Fred’s insurer; it was immaterial that there was no prior judgment awarding Superior indemnity against Fred); Carolina Cas. Ins. Co. v. Transport Indemnity Co., 488 F.2d 790, 794 (10th Cir. 1973) (the Carolina policy covered the truck’s lessor, its lessee, Ringsby, and its driver, Freeze, but provided that while the truck was leased coverage was excess over any other applicable insurance; the Transport policy covered only Ringsby; with respect to a third party tort suit against lessor, lessee and driver, arising out of Freeze’s operation of the truck while leased to Ringsby, “Ringsby’s liability, if any, is vicarious [of Freeze]; if Ringsby should be found liable it would have the right to proceed by indemnification against Freeze. As Ringsby’s subrogee, Transport could sue Freeze, a permissive user under Carolina’s policy, ultimately recovering against Carolina. Based on the above, and to avoid a circuity of action, we hold Carolina’s policy to be primary;” emphasis added); Maryland Cas. Co. v. Employers Mut. Liability Ins. Co., 208 F.2d 731 (2d Cir. 1953). Aviles v. Burgos, 783 F.2d 270 (1st cir. 1986), is not to the contrary. There, Travelers, insurer of the lessor-indemnitee, could not avoid sharing liability with CIS, insurer of the lessee- indemnitor, because the lessee was an additional insured in Travelers’s policy, so Travelers could not subrogate against the lessee, and because the CIS policy expressly excluded coverage of liability assumed by contract. Id. at 279-81.
22 liability insurance companies, Reliance and General Star, disputed
the share each should bear of sums paid in settlement of an
underlying personal injury suit against Lollapalooza and Law by
patrons injured at a concert performed by Lollapalooza pursuant to
a contract with Law. The contract (governed by California law)
required Law to procure liability insurance protecting Lollapalooza
from such claims and also required Law to indemnify Lollapalooza
from any such claim which “does not result from the active
negligence of” Lollapalooza. Reliance insured Lollapalooza (but
not Law) under a $1 million primary policy, with “other insurance”
provisions similar to those present in the AIL and TPC policies
here, and also under a $1 million excess policy. Lollapalooza was
also covered as an additional insured under two policies naming Law
and procured by it pursuant to the contract, namely a $1 million
primary policy issued by Gulf and a $10 million excess policy
issued by General Star. The underlying suit was settled, without
a determination of fault on the part of either defendant or of
whether Law was obligated to indemnify Lollapalooza, for
$2,142,858, $1 million paid by Gulf, $1 million by Reliance under
its primary policy and $71,429 by Reliance under its excess policy,
and $71,429 by General Star under its excess policy. Reliance,
invoking the decision in Rossmoor, claimed it was entitled to have
Gulf and General Star bear the entire loss because Lollapalooza,
Reliance’s sole insured, was entitled to indemnity from Law, an
23 insured of Gulf and General Star. Reliance settled with Gulf and
sued General Star. The Court of Appeals affirmed the trial court’s
summary judgment that Reliance was entitled to no recovery from
General Star, because the General Star policy was expressly
entirely “excess to all other insurance.” Id., 72 Cal. App. 4th at
1076. The Court of Appeals distinguished Rossmoor stating “under
both the relevant policies, Reliance’s obligation was primary and
General Star’s was excess . . . . This is a materially
distinguishing characteristic between the present litigation and
Rossmoor” and that was “particularly true in this case because
General Star’s policy specifically states: ‘Nothing herein shall be
construed to make this Policy subject to the terms, conditions and
limitations of other insurance, reinsurance or indemnity’.” Id. at
1081. The court went on to note that “[t]he risks involved in
providing primary coverage are different from those involved in
issuing an excess policy. These differences are reflected in part
in the premium costs.” Id. at 1082.
We conclude that Reliance does not support AIL’s position here
for two reasons: first, AIL’s policy is unquestionably a primary
policy, while General Star’s policy in Reliance was expressly an
excess policy; second, AIL’s policy expressly covers Elite’s
liability to Caddell under the subcontract’s indemnity provision,
24 while General Star’s policy excluded such coverage.13
No Determination of Caddell’s Fault
AIL argues that Elite’s agreement to indemnify Caddell is not
enforceable because it has not been determined, in this case or
otherwise, that Alas’s injury was not solely due to Caddell’s
negligence or fault.14 However, such a determination is not
necessary to the enforceability of the subcontract’s indemnity
provision. On the contrary, the agreement by its express terms
“shall not be enforceable if, and only if, it be determined by
judicial proceedings that the injury, death, or damage complained
of was attributable solely to the fault or negligence of” Caddell
(emphasis added). Since it is undisputed that there has been no
such determination and since the “only” circumstance in which the
agreement “shall not be enforceable” thus does not exist, the
agreement is enforceable. AIL argues that it is unfair to impose
on it the obligation to procure a judicial determination that
Caddell was solely at fault because it could not do so in, or
during the pendency of, the Alas litigation for fear of prejudicing
the rights of its additional insured Caddell. However that may be,
13 In Wal-Mart Stores, the court noted this latter factor as one making “Reliance unpersuasive authority for the present case.” Wal-Mart Stores at 592. We also note that Wal- Mart Stores concluded that “Reliance is in the minority” and conflicts with Rossmoor, which “is better reasoned.” Wal-Mart Stores at 591, 592. 14 AIL does not otherwise question that the Alas suit and its settlement falls within the terms of the subcontract’s indemnity provision.
25 AIL could certainly have instituted a declaratory judgment action
against TPC at least as soon as the Alas suit settled. Instead,
AIL waited to do so for nearly a year, despite having known of the
indemnity agreement for at least a year and a half (if not longer)
before the Alas suit settled (see note 5 supra). And, in the
present suit AIL has never sought a determination that Alas’s
injury was solely due to Caddell’s fault. In this connection, AIL
relies on Travelers Cas. & Surety Co. v. American Equity Ins. Co.,
93 Cal. App. 4th 1142, 113 Cal. Rptr. 2d 613 (Cal. App. 2001).
There, Travelers, following its settlement of an underlying
lawsuit, sought contribution from American Equity for defense costs
based on the “other insurance” clauses present in both policies.
American Equity, on the other hand, asserted that the indemnity
agreement was controlling. The California Court of Appeals held
that Travelers had a right to equitable contribution from American
Equity under the “other insurance” clauses, despite the indemnity
clause. American Equity is not controlling because, unlike
California law, Texas law does not require that a finding of fault
be made.15 The indemnification agreement in American Equity called
for the property manager to be indemnified and did not contain an
exception for cases in which the manager was negligent. The court
15 See, e.g., Rossmoor, 13 Cal.3d at 628 (noting that “while such clauses may be construed to provide indemnity for a loss resulting in part from an indemnitee’s passive negligence, they will not be interpreted to provide indemnity if an indemnitee has been actively negligent”). See also note 10, supra.
26 in American Equity distinguished Rossmoor in part based on
California’s law requiring a determination that the indemnitee was
not actively negligent:
“More importantly, subrogation of the insurer to the rights of the insured presupposes the insured, Preferred Capital, has a right to indemnity from the receiver or from Lakeview under the indemnity agreement. This determination was never made below and those parties (the receiver, Lakeview and Preferred Capital) are not parties to this action. Were Preferred Capital to seek indemnity directly from the receiver or from Lakeview under the agreement, it might be shown that Preferred Capital was not entitled to indemnity on the grounds that it was actively or intentionally negligent in causing the victim’s injury.” American Equity Ins. Co., 93 Cal. App. 4th at 1157.
Thus, absent such a finding, the default position in California
favors the party seeking to avoid indemnification. In contrast,
Texas law only requires that the express negligence doctrine and
conspicuousness requirement be met. See note 7, supra. As Texas
law does not demand such a finding of active-passive negligence, we
default instead to the language of the indemnity provision, which,
as above noted, makes it clear that, absent a judicial
determination of sole fault or negligence on the part of Caddell,
indemnification is required. Further, in American Equity it does
not appear that the Travelers policy covered any of the
indemnitor’s obligations under the indemnity agreement.
We reject Alas’s contentions in this regard.
AIL’s defense costs
AIL’s final contention is that TPC should at least be
27 obligated to share its expenses in defending the Alas litigation
since, according to AIL, the “insured contract” provisions of its
policy (see note 3 supra) did not insure Elite against its
liability under the indemnity agreement to reimburse Caddell for
Caddell’s expenses and attorneys’ fees in defending the Alas suit
(although AIL recognizes that its policy did insure Elite against
its liability under the agreement to reimburse Caddell for sums
Caddell might pay the Alas plaintiffs to discharge or settle the
claims against Caddell in the Alas suit). We assume, arguendo,
that AIL is correct in its above stated analysis of the scope of
the “insured contract” coverage which its policy afforded Elite,
but we nevertheless reject its contention that this entitles AIL to
recover from TPC half its (AIL’s) attorneys’ fees and related costs
in defending Caddell in the Alas suit, and we conclude that Texas
courts would likewise reject that contention.
We note to begin with that many of the above cited cases which
have ruled in favor of the indemnitee’s insurer, and against the
indemnitor’s insurer, have done so without any indication that the
indemnitor’s insurer’s policy covered to any extent the
indemnitor’s contractual indemnity obligation to the indemnitee.
See, e.g., J. Walters Construction Inc.; Rossmoor.
Further, AIL does not cite any cases holding that where two
liability insurers cover a suit against a given insured, and as
between the two insurers one is obligated for the entire amount
28 paid in settlement of the claim, that nevertheless the insurer so
obligated is entitled to recover from the other insurer any part of
the costs of defending the action. Nor are we aware of any such
holding. It appears to us that to so hold would run counter to the
general rule, well established in Texas, that “the excess liability
insurer is not obligated to participate in the defense until the
primary limits are exhausted.” Keck, Mahin & Cate v. National
Union Fire Ins. Co., 20 S.W.3d 692, 700 (Tex. 2000) (internal
quotation marks omitted); Schneider National Transport v. Ford
Motor Co., 280 F.3d 532, 538 (5th Cir. 2000); Texas Employers Ins.
v. Underwriting Members, 836 F. Supp. 398, 404 (S.D. Tex. 1997).
This is so even though the lawsuit is one for an amount in excess
of the primary limits, so long as it is settled (or results in a
judgment which is discharged) for an amount not in excess of the
primary policy limits. Keck at 701; Texas Employers Ins. at 408-
09. See also Signal Companies Inc. v. Harbor Ins. Co., 27 Cal. 3d
359, 612 P.2d 889, 19 A.L.R. 4th 75, 83 (Cal. 1980) (“where there
is excess coverage, whether by virtue of an excess clause in one
policy or otherwise, it is the primary insurer which is solely
liable for the costs of defense if the judgment does not exceed
primary coverage”, emphasis added); Bettenburg v. Employers
Liability Assurance Corp., 350 F. Supp. 873, 877-78 (D. Minn. 1972)
(for these purposes policy deemed excess, even though not so by its
own terms or other insurance clauses, where it provided only
29 general coverage and other policy provided only specific coverage
of the particular risk at issue). Here, by virtue of the indemnity
agreement obligating Elite to pay Caddell any amount Caddell paid
the Alas plaintiffs to settle the Alas suit or discharge any
judgment therein, and by virtue of AIL’s $1 million policy insuring
Elite against such liability to Caddell, AIL may not recover from
TPC, which insured only Caddell and would be subrogated to its
rights against Elite, any portion of the $625,000 which AIL, whose
policy named Elite as insured and Caddell as an additional insured
(as required by the subcontract), paid the Alas plaintiffs to
settle the suit.16 That being the case, it is proper, for purposes
of determining whether AIL is entitled to have TPC bear a portion
of the defense costs in the Alas lawsuit or whether as between AIL
and TPC all such costs should be borne by AIL, to regard AIL as
having the primary coverage, and TPC only excess coverage over that
16 That such result would obtain even if AIL’s policy, though generally covering Elite, did not cover any of Elite’s contractually assumed liability to Caddell, is indicated by the decisions in J. Walters Construction Inc. and Rossmoor. We need not, and do not, decide that question however, because AIL’s policy does insure Elite against liability to Caddell under the indemnity agreement for sums Caddell would pay the Alas plaintiffs in settlement of,or to discharge a judgment in, the Alas lawsuit (whether or not AIL’s policy also insures Elite’s indemnity agreement obligation to reimburse Caddell for expenses incurred by Caddell in defending the Alas suit). If TPC, as Caddells’ insurer (under a policy not covering Elite), were required to pay AIL half the $625,000 that AIL paid the Alas plaintiffs to settle their suit against Caddell, then TPC, being subrogated to Caddell’s rights, could by virtue of the indemnity agreement recover judgment against Elite for that $312,500, and Elite in turn, or TPC as Elite’s judgment creditor, could then recover that $312,500 back from AIL by virtue of AIL’s policy insuring Elite against that liability, all with the ultimate result that AIL would bear 100% of all the money ($625,000) paid to the Alas plaintiffs to settle their suit against Caddell and TPC would bear no portion thereof.
30 of AIL, respecting the Alas suit. As stated in Wal-Mart Stores
“the labels ‘primary’ and ‘excess’ are shorthand for priority of
payment obligations,” id. at 592, and
“[w]hether the parties are termed ‘primary’ or ‘excess’ depends on who is required to pay first, and that is the question presented here . . . . RLI cannot avoid liability for the settlement by pointing to language in its policy calling itself ‘excess.’ RLI is ‘excess’ to National Union only if we determine that National Union is liable first, and, as explained above, we do not do so because we believe the indemnity agreement governs.” Id. at 590.
That language applies a fortiori here because the AIL policy does
not purport to be an “excess” policy but rather purports to provide
primary coverage to Caddell (as well as to Elite).17 See also
Rossmoor supra at 99, 105 (affirming trial court holding that the
indemnitee’s policy “was merely excess” and stating that “the trial
court was correct in finding that” the indemnitor’s policy “must be
viewed as primary insurance;” emphasis added); Carolina Cas. Ins.
Co., supra at 794, “to avoid a circuity of action, we hold
Carolina’s [indemnitee’s] policy to be primary;” emphasis added).
For all these reasons, we conclude that AIL is not entitled to
recover from TPC any portion of the costs of defending the Alas
lawsuit.18
17 Accordingly, we need not and do not generally decide whether or under what circumstances it is proper to treat as “primary” a policy which expressly purports to be only an excess policy. Cf. Reliance. 18 This result also has the further advantage of avoiding a multiplicity of suits (if TPC, as Caddell’s insurer, were required to pay AIL a portion of AIL’s costs of defending the Alas suit,
31 Conclusion
The district court correctly granted summary judgment denying
AIL any recovery from TPC. The judgment is accordingly
AFFIRMED.
then TPC, subrogated to the rights of its insured Caddell under the indemnity agreement, could recover the amount so paid by suing Elite, whom TPC did not insure), and also avoiding a situation where AIL, by recovering part of its defense costs from TPC, has caused those costs to be ultimately borne by the named insured (Elite) in AIL’s own policy which Elite procured and paid for pursuant to the subcontract (an arguably unusual result even though we assume, arguendo, that AIL’s policy did not cover such a defense cost liability of Elite under the indemnity agreement).