American Physicians Insurance Exchange v. Garcia

876 S.W.2d 842, 1994 WL 70430

• Court: Texas Supreme Court
• Decided: June 8, 1994
• Docket: D-1239
• Status: Published

Opinions

CORNYN, Justice,

delivered the opinion of the Court, in which

PHILLIPS, Chief Justice, and GONZALEZ, HECHT and ENOCH, Justices, join.

We grant American Physicians Insurance Exchange’s (“APIE’s”) motion for rehearing, withdraw our prior opinion and judgment, and substitute the following in its place.¹ We decide whether Dr. Ramon Garcia’s malpractice insurance carrier, APIE, breached its duty to defend Garcia or its Stowers² duty to settle. We hold that the evidence conclusively establishes that APIE discharged its duty to defend Garcia, and that because APIE never received a settlement demand within its policy limits, it did not breach its Stowers duty to settle. We therefore reverse the judgment of the court of appeals and render judgment in favor of APIE.

I

On March 8, 1984, Araminta Cardenas, individually and as Guardian of the Estate of Gustavo Cardenas, Norma Vasquez Cardenas and Carmen Cardenas (“the Cardenases”) filed a medical malpractice lawsuit against Garcia and others. In their Original Petition, the Cardenases alleged that Garcia was guilty of malpractice in his treatment of Gustavo Cardenas from October 3, 1980, to approximately April 12, 1982. The malpractice claim arose out of Garcia’s prescription of two drugs, Haldol and Navane, which allegedly caused Cardenas to develop tardive dys-kinesia, a debilitating brain disease. The Cardenases initially alleged that “on or about April 12, 1982, Gustavo Cardenas was placed under the care of another physician.” At all times alleged in the Original Petition, Garcia was insured against medical malpractice claims by three consecutive Insurance Corporation of America (“ICA”) policies.

In 1980, Garcia was covered by an ICA “claims-made”³ medical malpractice insurance policy with limits of $100,000. In 1981 and 1982, Garcia was covered under two consecutive one-year ICA “occurrence” policies, each providing him with $500,000 in coverage.⁴ In 1983, Garcia purchased an APIE occurrence policy with a $500,000 limit per occurrence, the policy involved in this appeal.

On December 23, 1983, several months before they filed their Original Petition, the Cardenases sent Garcia a letter notifying him of their intention to file a lawsuit against him for negligent treatment of Cardenas from September 1980 “to the present time.” Garcia reported this letter to APIE. On January 3, 1984, APIE “[n]otified Garcia of his limited coverage with API[E] for this incident.” Garcia’s records indicated that only one of Cardenases’ office visits, on January 18, 1983, occurred during APIE’s policy period. APIE therefore concluded in an internal memo that the “lion’s share” of the Carde-nases’ claim arose out of treatment performed during ICA’s earlier policy periods. Accordingly, APIE advised Garcia that coverage under its policy turned solely on the January 1983 office visit.

As a result of the Cardenases’ letter, APIE wrote to ICA on March 20, 1984, and confirmed their “agree[ment] to share in any settlement or judgment on a pro-rata coverage basis.” They also agreed to split evenly the legal fees incurred in Garcia’s defense. ICA retained Ross Crossland and his law firm to assume primary responsibility for Garcia’s defense. APIE hired another attorney to “simply monitor the developments in this lawsuit.” APIE first received a copy of the Cardenases’ March 8, 1984 Original Petition on March 23, 1984, three days after it arranged for Garcia’s defense.

The Cardenases subsequently filed five amended petitions, none of which alleged malpractice during the APIE policy period. Eventually, on July 24, 1985, APIE notified Garcia that its policy was not applicable because “all allegations made against you occurred prior to your coverage with American Physicians.”⁵

Questions concerning insurance coverage plagued settlement negotiations. On July 10, 1985, Crossland advised the Cardenases’ lawyer, Pat Maloney: “[T]he companies have elected to pro rate any settlement or adverse judgment or jury verdict on an equal basis.” Evidently, Crossland mistook the insurers’ agreement to divide his legal fees equally as an indication that any settlement or judgment would be split on that basis rather than prorated in proportion to coverage. In this same letter, Crossland stated, “my understanding of this agreement ... is that the total insurance available is ... $600,000,” the combined limits of the 1983 APIE policy and a $100,000 ICA claims-made policy for the year 1980.⁶ After Crossland sought settlement authority from the insurers, he informed Maloney on July 26, 1985:

Apparently confusion has arisen with regard to the extent of the liability insurance available....

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Although I have been advised by representatives of APIE that I do not in any manner represent their interests, based on information and belief ... Garcia was covered by an insurance policy with that company for $500,000.00.

It is my understanding that these policies cannot be totaled or aggregated in any manner to establish coverage in an amount in excess of $500,000.⁷

The Cardenases’ attorney made his first written settlement demand to Crossland on July 15, 1985. In this letter, Maloney made a settlement demand of $600,000, and conditioned the demand on acceptance within ten days. Garcia’s personal attorney, Clem Lyons, wrote to Crossland on July 22, urging ICA and APIE to accept Maloney’s demand.

On July 26, 1985, however, after learning of an additional ICA policy with a $500,000 limit, Maloney raised his demand to $1.1 million. Crossland responded to this increased demand the same day by informing Maloney in the letter quoted above that Garcia’s coverage was limited to $500,000. This letter also disclosed a second $500,000 ICA policy.

On the day of trial, July 29, 1985, Maloney raised his demand again, to $1.6 million, and imposed a deadline for acceptance of 10:00 a.m. the same day. Lyons also wrote to Crossland on the day of trial to urge acceptance of the $1.6 million settlement demand. ICA and APIE made no settlement offer at this time. The record does not indicate that the Cardenases ever communicated any settlement demand of less than $600,000, or that any demand was made that did not require the two insurers to accept jointly.

After APIE informed Garcia that there was no coverage under its policy, but before trial on July 29, 1985, the Cardenases, Garcia, and their attorneys entered into a non-execution agreement whereby the Cardenas-es agreed to look solely to ICA and APIE for satisfaction of any judgment that might be rendered against Garcia. The non-execution agreement also indemnified Garcia for any judgment that might be rendered in excess of the amounts actually collected from ICA and APIE. In return, Garcia assigned any claims he might have against APIE or ICA to the Cardenases.

On the day of trial, the Cardenases filed a Sixth Amended Original Petition that alleged for the first time that Garcia’s malpractice continued into 1983, and thus into APIE’s policy period. That petition alleged that even though Mrs. Cardenas advised Garcia that her husband had suffered adverse side effects from drugs Garcia prescribed “during the course of several office visits from September 1980 to February or March 1983,” Garcia “continued to treat Gustavo Cardenas” with neuroleptic drugs, “until February or March 1983.” Lyons testified at the subsequent Stowers trial that the Cardenases’ attorney filed the Sixth Amended Original Petition at his urging because he believed it to be in Garcia’s best interest for the pleadings to invoke the maximum possible insurance coverage for Garcia.

The malpractice case, Cardenas v. Garcia, was tried to the court. The court found that Garcia’s course of treatment constituted continuing negligence beginning September 1980 and ending February 1983, and rendered judgment for $2,235,483.30 plus costs and interest. Under the terms of the Non-Execution Agreement, the $2,235,483.30 judgment against Garcia could not be executed against him personally. Thereafter, the Cardenases, solely in their capacity as Garcia’s assignees, filed suit in Garcia’s name against his liability insurers alleging that Garcia had suffered actual damages in the amount of the $2,235,483.30 judgment.

In this suit, the Cardenases alleged that the insurers violated their duty to defend Garcia and their Stowers duty to accept a reasonable settlement demand within policy limits. Subsequent to filing but before trial of this case, however, the Cardenases and the insurance companies entered into two settlement agreements. The first agreement, dated May 1,1986, released ICA from all liability in both the malpractice lawsuit and the Stowers suit in exchange for $2,000,000.00. Under the second agreement, dated May 5, 1987, and entitled “Partial Settlement Agreement,” APIE paid the Cardenases and their attorneys $500,000 for their agreement not to contest APIE’s motion for a six-month continuance of the Stowers case, their agreement to offset the amount paid against any further judgment, and their release of liability for any judgment in excess of $2.5 million against APIE or American Physicians Service Group, Inc. (“APSG”), an affiliate of APIE. Thus, the Cardenases received $2.5 million for Garcia’s claims before the Stowers suit even proceeded to trial.

The Stowers suit was tried to a jury beginning November 9, 1987. The jury found that (1) APIE negligently failed to settle Garcia’s case prior to entry of judgment on September 30, 1985, (2) the sixth amended petition alleged separate and distinct acts of negligence committed by Garcia during APIE’s policy period, (3) APIE denied coverage to Garcia, (4) APIE failed to defend Garcia at the trial of the Cardenas case, and (5) APIE’s and APSG’s actions in failing to defend and provide coverage were false, misleading, or deceptive acts or practices in violation of Tex.Ins.Code Ann. art. 21.21, § 4 (Vernon Supp.1994) (“article 21.21”), and the Deceptive Trade Practices-Consumer Protection Act, Tex.Bus. & Com.Code Ann. § 17.50 (Vernon 1987) (“DTPA”).⁸ The jury further found that each of these acts was negligent, involved heedless and reckless disregard for Garcia’s rights, constituted an unfair practice in the insurance business, was unconscionable, was a proximate cause of Garcia’s damages, and was done knowingly. The jury also found that ICA’s failure to settle the Cardenas case prior to September 30, 1985, was negligent, in heedless and reckless disregard of Garcia’s rights, and an unfair practice in the business of insurance. The jury concluded that ICA’s acts and omissions were knowingly done, were unconscionable, and were the proximate cause of damage to Garcia.

The jury further found that APIE’s acts and omissions caused 16 percent, and ICA’s 84 percent, of the damages awarded in Cardenas v. Garcia. Damages against APIE were assessed at $2,235,000.00 in compensatory damages (the amount of the judgment in the malpractice suit), $250,000.00 in exemplary damages, and $250,000.00 “additional” damages under the DTPA. The court also awarded attorneys’ fees totalling $820,500.00.

Because of ICA’s settlement, the court rendered judgment only against APIE and APSG. The Cardenases elected to have judgment rendered solely on the jury findings that APIE and APSG had violated the Insurance Code. The trial court rendered judgment against APIE and APSG jointly and severally in the amount of $1,331,574.00, consisting of APIE’s proportional share of liability as determined by the jury, doubled pursuant to article 21.21, section 16 of the Insurance Code, and attorneys’ fees.

The court of appeals recalculated the Cardenases’ damages at $3,167,274.09. Under the assumption that Garcia’s policy limits were $1.6 million, this figure represented the amount of the judgment in excess of policy limits in the malpractice suit, plus interest, plus two times actual damages pursuant to article 21.21 of the Insurance Code, plus attorneys’ fees. 812 S.W.2d at 30. Because APIE’s partial settlement with the Cardenas-es established a liability cap of $2,500,000 and required a credit of $500,000, and because ICA’s settlement shielded ICA from liability, the court of appeals rendered judgment against APIE for $2,000,000.

II

In the insuring clause of the professional liability policy it issued to Garcia, APIE contracted to perform two related obligations: (1) to defend any claim against Garcia within the scope of coverage, even if “any of the allegations ... are groundless, false, or fraudulent,” and (2) to indemnify Garcia for any damages awarded against him within the scope of coverage up to the policy limits. APIE Policy § I. These contractual obligations, along with language in the insuring clause granting control over the insured’s defense to an insurer, see, e.g., id. (“The Exchange shall have the right and duty to defend any suit against the insured seeking such damages”), give rise to a third, generally recognized, implied duty of liability insurers — the duty to accept reasonable settlement demands within policy limits. Stowers Furniture Co. v. American Indem. Co., 15 S.W.2d 544, 547-48 (Tex.Comm’n App.1929, holding approved); see also Kent D. Syverud, The Duty to Settle, 76 Va.L.Rev. 1113, 1117-26 (1990); Robert H. Jerry, II, Understanding Insurance Law 586 (1987) (“all courts” recognize duty to settle); Kelly H. Thompson, Comment, Bad Faith, Limiting Insurers’ Extracontractual Liability in Texas, 41 SW.L.J. 719, 722 (1987); Robert E. Keeton, Liability Insurance and Responsibility for Settlement, 67 Harv.L.Rev. 1136, 1137-48 (1954).

Although Garcia argues^ that this case is not solely a Stowers lawsuit because remedies under the Deceptive Trade Practices Act and Tex.Ins.Code. art. 21.21 are cumulative of other remedies, and the judgment below is couched in terms of a violation of article 21.21, all of the jury issues that form the basis for the judgment against APIE in the Stowers case involve the breach of either the duty to defend or the duty to settle the malpractice lawsuit.⁹ Breach of the Stowers duty does not constitute a violation of article 21.21 or the DTPA.¹⁰ Moreover, APIE is not responsible for any separate DTPA or Insurance Code violation because the record in this case is devoid of evidence that APIE ever engaged in any unfair or deceptive act or practice as defined in the relevant statutes.¹¹ See Tex.Ins.Code Ann. art. 21.21, §§ 4, 16(a) (Vernon Supp.1994). We hold that there was no violation of article 21.21.

A

APIE’s duty to defend Garcia is determined solely by the allegations in the pleadings filed against him. See Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973); Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1965). If a petition does not allege facts within the scope of coverage, an insurer is not legally required to defend a suit against its insured. Fidelity & Guar. Ins. Underwriters, Inc. v. McManus, 633 S.W.2d 787, 788 (Tex.1982).

The first time any pleading was filed against Garcia alleging malpractice during APIE’s policy period was the day of trial, July 29, 1985, when the Cardenases filed their Sixth Amended Original Petition. Although APIE agreed with ICA to share in the defense costs, their agreement—about which Garcia was fully informed and to which he did not object—assigned control over the defense solely to ICA. Garcia’s policy links the duty to defend with the corresponding right to control the defense, and consequently APIE could only have assumed a voluntary duty to defend by asserting this right. Therefore, only ICA was under a legal obligation to defend Garcia until July 29, 1985. The Cardenases do not urge any equitable basis here, nor did they in the courts below, upon which APIE should be barred from relying on traditional legal principles regarding its duty to defend Garcia.¹² Thus we conclude that APIE’s duty to defend arose only upon the filing of the sixth amended petition.

Every witness who testified at the Stowers trial, including the Cardenases’ attorney and Garcia’s personal attorney, testified that Ross Crossland vigorously represented Garcia during the malpractice trial. It is true that the evidence was disputed as to whether APIE entered or “reentered” the case once the sixth amended petition was filed and its coverage was invoked under well-established legal principles. But Crossland, who was retained by the insurers jointly to defend Garcia, at no time abandoned Garcia’s defense. The testimony is also undisputed that APIE paid its share of Garcia’s defense, including the five days, from July 24 to July 29, during which APIE took the position that there was no coverage under its policy. We therefore hold that the evidence conclusively establishes that APIE discharged its duty to defend Garcia, and the jury’s answers to the contrary have no evidentiary support.

B

The remaining question is whether the judgment of the court of appeals can be affirmed on the basis that APIE breached its duty to settle the malpractice case. We start with the proposition that an insurer has no duty to settle a claim that is not covered under its policy. See generally Western Heritage Ins. Co. v. River Entertainment, 998 F.2d 311, 312 (5th Cir.1993) (holding that if no duty to defend is invoked by the pleadings, “the possibility of future indemnity under the terms of the policy is foreclosed”); C.T. Drechsler, Annotation, Allegations in Third Person’s Action Against Insured as Determining Liability Insurer’s Duty to Defend, 50 A.L.R.2d 458, 472-73 (1956). Thus, APIE had no duty to settle before the sixth amended petition was on file, containing allegations that brought the Cardenases’ claim within the scope of Garcia’s coverage.

Once the sixth amended petition was filed, APIE was required to exercise “that degree of care and diligence which an ordinarily prudent person would exercise in the management of his own business” in responding to settlement demands within policy limits. Stowers, 15 S.W.2d at 547; see also American Centennial Ins. Co. v. Canal Ins. Co., 843 S.W.2d 480, 485-86 (Tex.1992) (Hecht, J., concurring, joined by Phillips, C.J., Gonzalez, Cook, and Cornyn, JJ.); Ranger County Mut. Ins. Co., 723 S.W.2d at 659 (Tex.1987); Foremost County Mut. Ins. Co. v. Home Indem. Co., 897 F.2d 754, 757 (5th Cir.1990). Generally, a Stowers settlement demand must propose to release the insured fully in exchange for a stated sum of money, but may substitute “the policy limits” for a sum certain. The Stowers duty is not activated by a settlement demand unless three prerequisites are met: (1) the claim against the insured is within the scope of coverage, (2) the demand is within the policy limits, and (3) the terms of the demand are such that an ordinarily prudent insurer would accept it, considering the likelihood and degree of the insured’s potential exposure to an excess judgment. See Keeton, supra at 1143-48 (discussing applicable standard of care). A demand above policy limits, even though reasonable, does not trigger the Stowers duty to settle.¹³ Stowers, 15 S.W.2d at 547; American Centennial, 843 S.W.2d at 482 (plurality opinion).

In Ranger, we stated that insurers have a duty of ordinary care that includes “investigation, preparation for defense of the lawsuit, trial of the case and reasonable attempts to settle.” 723 S.W.2d at 659; see also Ameri-can Centennial, 843 S.W.2d at 482, 485 (plurality and concurring opinions) (citing Ranger for standard of reasonableness in “investigating, preparing to defend, trying or settling the third party action”). At the same time, however, the court noted that “there is no contention that Ranger was negligent in investigation or trial of the Fitch/Eagle lawsuit.” 723 S.W.2d at 659. In support of the judgment against the insurer, the court cited evidence that the insurer failed to accept a settlement demand of $19,500 in personal injury damages and $19,500 in property damages, or “[i]f limits are otherwise ... to settle within such limits less $500.00.” Ranger, 723 S.W.2d at 659-660. The evidence also indicated that the insurer had linked together the settlements of multiple insureds even though the demand was sever-able, and that the insurer failed to inform its insureds of the terms of the demand. We held this was legally sufficient evidence to support the judgment against the insurer. Id. at 660.

We recognize that settlement negotiations are adversarial and that reasonable negotiation often involves hard bargaining by both sides. In describing the Stowers duty as a duty to make “reasonable attempts to settle,” Ranger does not alter an insurer’s duty to accept reasonable demands within policy limits. Nor does Ranger impose any duty on an insurer to accept a settlement demand in excess of policy limits or to make or solicit settlement proposals.¹⁴ In the context of a Stowers lawsuit, evidence concerning claims investigation, trial defense, and conduct during settlement negotiations is necessarily subsidiary to the ultimate issue of whether the claimant’s demand was reasonable under the circumstances, such that an ordinarily prudent insurer would accept it. Although the dissent relies on language in Ranger that is dictum, given that the only negligence claim presented in Ranger was a Stowers claim, see Ranger, 723 S.W.2d at 659, we have no quarrel with the notion that a formal demand is not “an absolute prerequisite,” 876 S.W.2d at 863, for holding an insurer liable for damages caused by its misconduct other than a Stowers breach. However, the Stowers remedy of shifting the risk of an excess judgment onto the insurer is inappropriate absent proof that the insurer was presented with a reasonable opportunity to prevent the excess judgment by settling within the applicable policy limits.

Here, APIE had an opportunity to settle within the limit of Garcia’s coverage only if it was mistaken in its contention that the multiple policies could not be stacked. In response to a $1.1 million demand, Crossland advised the Cardenases’ attorney, Maloney, on July 26, 1985, “these [ICA and APIE] policies cannot be totaled or aggregated in any manner to establish coverage in an amount in excess of $500,000.” Thus, Malo-ney was informed of the insurers’ position concerning the policy limits, and was advised of the demand he would have to make to trigger the Stowers duty. Maloney elected to proceed on the disputed assumption that he could aggregate the policies. Conversely, APIE elected to bear the risk that its point of view might have been incorrect, which could result in liability for any excess judgment. Because Maloney raised his demand to $1.6 million, APIE had no opportunity to settle within its stated policy limits.

The dissent contends that APIE breached its Stowers duty despite never receiving a $500,000 demand, while relying on Ranger, a decision predicated on a demand within the applicable policy limits. Although the dissent’s interpretation of Ranger, “a formal settlement demand ... is no longer an absolute prerequisite,” 876 S.W.2d at 863 (emphasis added), appears innocuous enough, the dissent’s application of Ranger to the facts is problematic. The dissenting justices assiduously maintain that they do not mean to argue that the burden of making settlement offers should be shifted to the insurer. Only one jurisdiction apparently supports a rule that would impose such a general duty.¹⁵ See Rova Farms Resort v. Investors Ins. Co. of Am., 124 N.J.Super. 248, 306 A.2d 77 (Ct.App.Div.1973) (per curiam), aff'd in part, 65 N.J. 474, 323 A.2d 495 (1974). In light of the fact that Maloney was informed of the insurers’ position concerning the policy limits, it is unclear how the additional duty the dissent would impose differs from the lower court’s rule in Rova Farms. The dissent proposes no concrete step short of tendering the policy limits that an insurer could take, in any case in which the potential for an excess judgment exists, to preclude a Stowers lawsuit. Because the “reasonableness” of any action other than offering the policy limits would remain indeterminate until the conclusion of the second trial, and both parties to any negotiation would take this fact into account, the dissent’s approach would be indistinguishable from a rule that expressly shifted this burden. The principal commentators in this area have identified few cases that even consider the possibility of a breach of the duty to settle absent a demand within policy limits.¹⁶ See 14 Geoege J. Couctí & Ronald Anderson, Cyclopedia of Insurance Law § 51:17 (2d ed. 1982 & Supp.1993); 7C John Allen Appleman & Walter F. Berdal, Insurance Law and Practice § 4711 (rev. ed. 1979 & Supp.1993); W.E. Shipley, Annotation, Duty of Liability Insurer to Settle or Compromise, 40 A.L.R.2d 168 (1955).¹⁷

From the standpoint of judicial economy, we question the wisdom of a rule that would require the insurer to bid against itself in the absence of a commitment by the claimant that the case can be settled within policy limits. Considering the negotiating incentives for each party, we conclude that the public interest favoring early dispute resolution supports our decision not to shift the burden of making settlement offers under Stowers onto insurers.¹⁸ See Keeton, supra

at 1137-53, 1162-73; Syverud, supra at 1149-53,1160-72. See generally RichaRD A. POSNER, ECONOMIC ANALYSIS OF LAW 554-60 (4th ed. 1992). The remaining issues, then, are whether APIE or Maloney correctly identified the amount of insurance coverage available, and if Maloney was correct, whether APIE’s position was reasonable under the circumstances. In light of the verdict, however, we consider only the stacking issue. If APIE correctly asserted its right to reject even reasonable demands in excess of policy limits, then it cannot be liable.

Ill

The following table illustrates the relationship of Maloney’s settlement demands to the limits of the available insurance policies:

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Despite APIE’s insistence that coverage was limited to $500,000, the Cardenases never made any settlement demand less than $600,000.¹⁹ Even if this demand were reasonable, it triggered no Stowers duty unless it was within the applicable policy limits. The Cardenases’ demands could satisfy this “policy limits” requirement only if two things were true: (1) Garcia’s continuing malpractice triggered coverage under multiple policies,²⁰ and (2) the limits of each triggered policy could be “stacked” to provide an aggregate limit.

To decide this case we need not determine how many policies provided Garcia indemnity coverage. The consecutive policies, covering distinct policy periods, could not be “stacked” to multiply coverage for a single claim involving indivisible injury. Even assuming that Garcia was covered under all three “occurrence” policies, APIE’s Stowers duty to settle was never triggered.

Simply because a “Claim Occurrence”²¹ extends throughout several policy periods does not raise the per-occurrence indemnity cap established in every policy.²² 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:

Not surprisingly, the policies do not explicitly provide a means of applying the

limits of liability to injuries that are covered by multiple policies. Keene claims that it is entitled to full indemnity for each injury up to the sum of the limits provided by the applicable policies. We do not agree. The principle of indemnity implicit in the policies requires that successive policies cover single [continuing] injuries. That principle, however, does not require that Keene be entitled to “stack” applicable policies’ limits of liability. To the extent possible, we have tried to construe the policies in such a way that the insurers’ contractual obligations [for continuing injuries or occurrences] are the same as their obligations for other injuries. Keene is entitled to nothing more. Therefore, we hold that only one policy’s limits can apply to each injury. Keene may select the policy under which it is to be indemnified. Cf. [Insurance Co. of N. Am. v. Forty-Eight Insulations ], 633 F.2d at 1226 n. 28.

Keene Corp. v. Insurance Co. of N. Am., 667 F.2d 1034, 1049-50 (D.C.Cir.1981) (emphasis added), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982); see also Insurance Co. of N. Am. v. Forty-Eight Insula-tions, 451 F.Supp. 1230, 1243 (E.D.Mich.1978), aff'd, 633 F.2d 1212, 1226 n. 28 (6th Cir.1980), aff'd on reh’g, 657 F.2d 814 (6th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981); Air Prods. & Chems., Inc. v. Hartford Accident & Indem. Co., 707 F.Supp. 762, 774 (E.D.Pa.1989); Uniroyal, Inc. v. Home Ins. Co., 707 F.Supp. 1368, 1391-94 (E.D.N.Y.1988); Owens-Illinois, Inc. v. Aetna Casualty & Sur. Co., 597 F.Supp. 1515, 1524 (D.D.C.1984); Chicago Ins. Co. v. Pacific Indem. Co., 566 F.Supp. 954, 956 (E.D.Pa.1982) (“Plaintiffs contention that the coverages under Pacific’s successive annual policies should be ‘stacked’ before [the] excess policy is called into play must be rejected.... The fact that the physician’s alleged failure to make a proper diagnosis may have extended over several years does not mean that the failure gave rise to more than one claim of malpractice.”); Continental Casualty Co. v. Medical Protective Co., 859 S.W.2d 789, 792-93 (Mo.App.1993) (citing Zipkin v. Freeman, 436 S.W.2d 753, 763-64 (Mo.1968) (en banc)).

The Stowers claim by Garcia and the Cardenases rests on the assumption that Garcia had three times more insurance than he purchased. At no time during the four relevant coverage years did any two policies overlap. Thus, at no time during the four years did Garcia carry liability insurance with a per-occurrence limit greater than $500,000. Garcia did not purchase malpractice insurance for $1.5 million in coverage, as he might have done by purchasing excess or umbrella coverage,²³ and therefore he may not claim to benefit from $1.5 million in coverage by stacking temporally distinct policies.

Although the triggering of multiple policies would provide multiple funding sources and thereby have a considerable effect on any contribution claims between ICA and APIE, it cannot lead to the conclusion that Garcia’s total coverage for a “continuing” Claim Occurrence somehow exceeds the “Per Claim Occurrence” limit stated in every policy he purchased.

If a single occurrence triggers more than one policy, covering different policy periods, then different limits may have applied at different times. In such a case, the insured’s indemnity limit should be whatever limit applied at the single point in time during the coverage periods of the triggered policies when the insured’s limit was highest. The insured is generally in the best position to identify the policy or policies²⁴ that would maximize coverage. Once the applicable limit is identified, all insurers whose policies are triggered must allocate funding of the indemnity limit among themselves according to their subrogation rights.

In this case, Garcia had a policy limit of $500,000 no matter which policy he might have selected. APIE never had an opportunity to settle for $500,000. Therefore, it cannot be held liable for not settling. The judgment of the court of appeals is reversed and judgment here rendered that respondent takes nothing.²⁵

1 . Given our disposition of this case, we need not, and do not, decide whether the pretrial non-execution agreement between Garcia and the Cardenases negated all of Garcia’s damages under the facts of this case.

2 . The duty of an insurer to exercise ordinary care in the settlement of claims to protect its insureds against judgments in excess of policy limits is generically referred to in Texas as the Stowers duty. Stowers Furniture Co. v. American Indem. Co., 15 S.W.2d 544 (Tex.Comm'n App.1929, holding approved).

3 . Typically, a claims-made policy covers only claims made during the policy period for injuries or occurrences within a coverage period extending back to a recited retroactive date. See Hartford Fire Ins. Co. v. California, - U.S. -, -, 113 S.Ct. 2891, 2896, 125 L.Ed.2d 612 (1993) (Insurance Antitrust Litigation). Because this claim was brought in 1983, a claims-made policy terminating in 1980 would not provide coverage.

4 .In contrast to a claims-made policy, an occurrence policy provides "long-tail” coverage. See Hartford,- U.S. at -, 113 S.Ct. at 2896. In other words, if there is "physical injury or property damage during the policy period caused by an occurrence,” see infra note 21, but no claim is made until after the policy period expires, the policy still provides coverage.

5 . APIE continued to pay for one-half the costs of defending the suit until August 13, 1985, after the first judgment was signed on August 2, 1985, but before an amended, or “Modified Final Judgment,” was signed on August 30, 1985.

6 . Although Crossland was paid by ICA and APIE, he was Garcia’s, not APIE's, attorney. See Tex.Disciplinary R.Prof.Conduct 1.06, 1.07, 1.08(f) (1989), reprinted in Tex.Gov’t Code Ann., tit. 2, subtit. G, app. A (Vernon Supp.1994) (State Bar Rules art. X., § 9); Employers Casualty Co. v. Tilley, 496 S.W.2d 552, 558-59 (Tex.1973) (holding that an attorney retained by an insurer to defend the insured owes the insured a duty of unqualified loyalty).

7 .APIE filed a malpractice crossclaim against Crossland and its other attorneys in the Stowers lawsuit seeking contribution and indemnity for any sums that APIE might be required to pay; but the jury charge did not include any questions regarding Crossland, and thus the judgment exonerated him of responsibility to APIE. See also Garcia v. American Physicians Ins. Exch., 812 S.W.2d 25, 28 n. 4 (Tex.App.—San Antonio 1991) (same case).

8 . The Texas Insurance Code, art. 21.21, § 4 is a laundry list of deceptive insurance practices, none of which involves the duty to settle under a liability insurance policy. Allstate Ins. Co. v. Watson, 876 S.W.2d 145 (Tex.1994). Likewise, the Deceptive Trade Practices-Consumer Protection Act incorporates Texas Insurance Code art. 21.21, see Tex.Bus. & Com Code Ann. § 17.50(a)(4) (Vernon 1987), but does not address third-party settlement practices. Id.

9 . Issue 4 asked, "Was such failure to attempt to settle an unfair practice in the business of insurance?” Similarly, Issue 13 asked, "Was such failure to provide coverage, if any, an unfair practice in the business of insurance?” Issue 24 asked, “Was such failure, if any, to defend Garcia an unfair practice in the business of insurance?” Every other breach issue presented to the jury was premised on the breach of one of these duties.

10 . Garcia contends that Vail v. Texas Farm Bureau Mut. Ins. Co., 754 S.W.2d 129 (Tex.1988), and Allstate Ins. Co. v. Kelly, 680 S.W.2d 595 (Tex.App.—Tyler 1984, writ refd n.r.e.), support his contention that jury findings to the effect that a failure to settle involves an unfair or deceptive practice should entitle him to recover under article 21.21. Vail, however, involved an insurer's bad faith refusal to pay a claim under a first-party property insurance policy. Vail, 754 S.W.2d at 130. A Stowers action, by definition, involves an insurer’s duty to settle a covered lawsuit — a situation that can only arise under a third-party liability insurance policy. Thus Vail is inapposite.

Garcia's reliance on Allstate Ins. Co. v. Kelly is also misplaced. In Kelly, Allstate "generously concedfed] in its Application that, as an insurer, it may he, subject to the application of the Texas Deceptive Trade Practices Act ... and the [Texas Insurance Code]." Respondents’ Answer to Petitioners’ Application for Writ of Error at 26, Allstate Ins. Co. v. Kelly, 680 S.W.2d 595 (Tex.App.—Tyler 1984), writ ref'd n.r.e., 28 Tex.Sup.Ct.J. 496 (June 19, 1985) (No. C-3731); see also Application for Writ of Error at 3-6, 39-62; Ami-cus Curiae Brief of Texas Association of Defense Counsel at 3 (”[N]either the petitioners nor the respondents adequately consider or address this important question.”). Consequently, the "writ refused, no reversible error” designation in Kelly does not represent approval of Stowers actions brought under the Texas Deceptive Trade Practices-Consumer Protection Act and the Texas Insurance Code.

11 .Kelly does not support the proposition that a breach of the Stowers duty is an unfair or deceptive practice in the business of insurance. In Kelly, Allstate may have violated both Stowers and the DTPA. Allstate breached its Stowers duty by refusing to accept a reasonable demand. Kelly, 680 S.W.2d at 598, 607. Allstate potentially violated the DTPA by its other actions. Significantly, after Allstate refused to settle, it sought to pay its policy limits into the court registry and leave its insured exposed in the event of an excess judgment. Id. at 598. Allstate also encouraged its insured not to hire counsel, and neglected to inform its insured of the settlement demand or its reasons for rejecting the demand until over two months after the demand had expired. Id. at 600, 608-09. Whether any of these activities constitute unfair or deceptive practices in the business of insurance is determined under the applicable statutes and Insurance Board Orders. See generally Allstate Ins. Co. v. Watson, 876 S.W.2d 145 (Tex.1994); Tex.Ins.Code Ann. art. 21.21 (Vernon 1981 & Supp.1994); Tex.Bus. & Com.Code Ann. § 17.50(a)(4) (Vernon 1987). Texas Insurance Code article 21.21-2 also regulates claim settlement practices, but is subject to enforcement only by the State Board of Insurance. Tex.Ins.Code Ann. art. 21.-21-2, § 6 (Vernon 1981 & Supp.1994); Watson, 876 S.W.2d at 148 & n. 6. We express no opinion concerning the difference between the requirement of "good faith” in "attempting” settlement under Tex.Ins.Code Ann. art. 21.21-2, § 2(b)(4), and the common law standard of ordinary care concerning a third-party liability insurer’s attempts to settle a covered lawsuit. Compare Stowers, 15 S.W.2d at 547 and Ranger County Mut. Ins. Co. v. Guin, 723 S.W.2d 656, 659 (Tex.1987) (third-party ordinary care standard) with Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.1987) and Aranda v. Insurance Co. of N.Am., 748 S.W.2d 210, 213 (Tex.1988) (first-party “bad faith” standard).

12 . Although Garcia initially pled an estoppel theory against APIE, he waived this theory by not requesting that this issue be included in the jury charge. Nor is this issue conclusively established against APIE because, as this record re-fleets, APIE notified Garcia on January 3, 1984, that his coverage under the APIE policy was limited because only one office visit occurred during the APIE policy period.

13 . A liability policy requires an insurance company to indemnify an insured only up to the insured's contractual limits with that company. Thus, insurers have no duty to accept over-the-limit demands. We do not reach the question of when, if ever, a Stowers duty may be triggered if an insured provides notice of his or her willingness to accept a reasonable demand above the policy limits, and to fond the settlement, such that the insurer’s share of the settlement would remain within the policy limits. See Keeton, supra at 1148-50. Nor do we address the Stow-ers duty when a settlement requires funding from multiple insurers and no single insurer can fond the settlement within the limits that apply under its particular policy.

14 . See infra notes 17 & 18 and accompanying text.

15 .The intermediate appellate opinion in Rova Farms Resort v. Investors Ins. Co. of Am., 124 N.J.Super. 248, 306 A.2d 77 (Ct.App.Div.1973) is the only case we have identified that has predicated an insurer’s liability for an excess judgment on the breach of a general duty to make settlement offers to the claimant. It is unclear from the opinion of the New Jersey Supreme Court whether the New Jersey duty is truly this extensive. In Rova Farms, the insured-operator of a resort property was sued for injuries sustained by a guest during a diving accident that rendered him "almost a total quadriplegic.” 323 A.2d at 498 n. 1. Despite the urging of the insured’s attorney that the insurer offer its policy limits of $50,000, it offered only $12,500. Id. Among its other concerns, the court was troubled for obvious reasons by the insurer’s solicitation of a contribution to the settlement from its insured without committing its own policy limits. Id. 323 A.2d at 502 & n. 3; see also W.E. Shipley, Annotation, Duty of Liability Insurer to Settle or Compromise, 40 A.L.R.2d 168, 205-08 (1965). Under such circumstances, the New Jersey Supreme Court held that a settlement demand by the plaintiff is not an absolute "prerequisite for finding the insurer to have acted other than in good faith.” Id. 323 A.2d at 505.

16 . Although two cases are mentioned in Couch, Cyclopedia of Insurance Law § 51.17 (Supp.1993), that superficially appear to support the rule the dissent proposes, on closer analysis neither case turns on that proposition. In Thomas v. Lumbermens Mut. Casualty Co., 424 So.2d 36, 39 (Fla.App.1982), the appellate court affirmed a judgment based on a jury verdict for the insurer, but in dictum suggested that an insurer may be liable for failure to make an offer. In Smith v. Blackwell, 14 Kan.App.2d 158, 791 P.2d 1343, 1347 (1989), the court held that an insurer’s offer of its policy limits shortly after the commencement of the underlying lawsuit would not “cure” its failure to accept an unconditional within-limits demand the claimant made prior to the commencement of the lawsuit. Neither case imposes on insurers an affirmative duty to make settlement offers, or risk a judgment in excess of policy limits.

17 . A few courts have held insurers liable for a breach of the duty to settle in the absence of a within-limits demand. However, these cases generally involve affirmative misconduct by the insurer to subvert or terminate settlement negotiations. See Syverud, supra at 1166-68 & nn. 134-139; Jerry, supra at 592-93. For the reasons below, see infra note 18, we disagree with any reading of the no-demand cases that would require insurers rather than claimants to make settlement offers. See Rova Farms, 323 A.2d at 505; Powell v. Prudential Property & Casualty Co., 584 So.2d 12, 14 (Fla.Dist.Ct.App.1991) (citing Rova Farms); Spray v. Continental Casualty Co., 86 Or.App. 156, 739 P.2d 40, 44 (1987); Puritan Ins. Co. v. Canadian Universal Ins. Co., 586 F.Supp. 84, 87 (E.D.Pa.1984) (citing Rova Farms); Shearer v. Reed, 286 Pa.Super. 188, 428 A.2d 635, 636-38 (1981) (citing Rova Farms); Alt v. American Family Mut. Ins. Co., 71 Wis.2d 340, 237 N.W.2d 706, 709-10, 712-13 (1976) (citing Rova Farms) (claimant made several demands); Coleman v. Holecek, 542 F.2d 532, 536 n. 6 (10th Cir.1976) (citing Rova Farms ) (duty to defend case); Fulton v. Woodford, 26 Ariz.App. 17, 545 P.2d 979, 983-84 (1976) (criticizing Rova Farms but nevertheless imposing a duty to offer policy limits when "there is a high potential of claimant recovery and a high potential of [excess] damages”); State Auto. Ins. Co. v. Rowland, 221 Tenn. 421, 427 S.W.2d 30, 33-35 (1968). Both Bohemia, Inc. v. Home Ins. Co., 725 F.2d 506, 515 (9th Cir.1984), and Eastham v. Oregon Auto. Ins. Co., 273 Or. 600, 540 P.2d 364, 368 (1975), held for the insurer rather than the insured.

Many of the cases above, and every other case the dissent cites, involve either affirmative misconduct in settlement negotiations, or an insurer that rejected an opportunity to settle within the policy limits. The reasoning in many of the cases above is actually consistent with our holding that an insurer cannot breach a duty by not tendering a settlement offer. See also Commercial Union Ins. Co. v. Liberty Mut. Ins. Co., 393 N.W.2d 161, 165-66 (Mich.1986) (citing Rova Farms for the proposition that an insurer’s "failure to solicit [demands] or initiate settlement negotiations when warranted under the circumstances” is a factor to consider in determining whether the insurer acted in bad faith); American Centennial, 843 S.W.2d at 482 (plurality opinion).

We think it would be particularly inappropriate to impose liability on APIE retroactively for failure to observe a new pretrial formality. The Cardenas trial predated Ranger by six months, so APIE could not have had notice of the "attempts to settle” dictum the dissent relies upon. Ranger, 723 S.W.2d at 659. Moreover, to the extent Stowers and Ranger formalize the negotiation process, we think claimants are perfectly capable of transmitting suitable settlement demands without assistance from the other side. Finally, we reject the Fulton v. Woodford formulation because settlement is particularly unlikely when substantial excess damages are virtually certain. By requiring insurers to observe an ineffective ritual on pain of waiving all policy limits, Fulton represents a trap for the unwary.

18 . Requiring the claimant to make settlement demands tends to encourage earlier settlements. Unlike the insurer, the claimant owes the insured no Stowers duty and cannot face any additional risk or become a defendant in a second lawsuit for refusal to settle, no matter how unreasonable. However, the claimant stands to benefit substantially and increase the assets available to satisfy any judgment by committing to settle for a reasonable amount within policy limits if the insurer rejects the demand. If the claimant makes such a settlement demand early in the negotiations, the insurer must either accept the demand or assume the risk that it will not be able to do so later. In cases presenting a real potential for an excess judgment, insurers have a strong incentive to accept. Early acceptance not only settles the liability case but obviates the possibility of subsequent Stowers litigation altogether.

Conversely, if the burden of proposing settlement within policy limits is on the insurer, then the incentives shift in favor of delayed settlement. First, if the insurer offers less than the policy limits, the claimant can reasonably anticipate that the offer will increase as trial approaches, so long as the case presents a genuine risk of an excess judgment. For the insurer to stand on a below-limits offer under such circumstances is to risk excess liability for its recalcitrance. Therefore, a claimant will have an incentive to "play chicken” with the insurer in anticipation that the final offer on the eve of trial will equal either the policy limits or the insurer’s reservation price — • the most the insurer thinks the case could reasonably be worth for settlement purposes.

Second, if the insurer tenders the policy limits earlier than the trial date, the claimant will not necessarily accept the offer. One reason is because the insurer has now established a "floor” for negotiations and must stand by its offer or later risk excess liability for unreasonably withdrawing its offer. Because the claimant bears little risk of losing the opportunity to settle for the policy limits, the claimant has no incentive to settle until he or she determines whether the defendant’s assets other than liability insurance would make an excess judgment worth collecting. This is further complicated by the fact that evidence of the assets available to satisfy the judgment is not relevant before liability is established, Wilmoth v. Limestone Prods. Co., 255 S.W.2d 532, 534 (Tex.Civ.App.-Waco 1953, writ ref'd n.r.e.), and except for liability insurance, remains undiscoverable until after the liability case is finally resolved. See Tex.R.Civ.P. 166b(2)(a), (f).

19 . Because the Cardenases' claim technically was not covered under the APIE policy until the day of trial, only the $1.6 million settlement demand could have potentially triggered a Stow-ers duty.

20 . This case does not require us to decide which policies were triggered. Nor have the parties asked us to identify the appropriate test to determine which of several policies are triggered by a single "continuing” occurrence. We note in passing, however, that courts across the nation considering the coverage trigger issue for continuing occurrences have disagreed considerably in recent years. See, e.g., Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co., 523 F.Supp. 110, 118 (D.Mass.1981) (applying "pure” or “strict manifestation” rule which triggers coverage upon actual discovery of injury), aff'd as modified, 682 F.2d 12, 24 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983); Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co., 682 F.2d 12, 24 (1st Cir.1982) (applying relaxed "manifestation rule” which triggers coverage in first policy period during which discovery of injury is possible), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983); Insurance Co. of N. Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1223 (6th Cir.1980) (applying "exposure" rule which triggers coverage in any policy period in which exposure to cause of injury occurred), aff'd on reh'g, 657 F.2d 814 (6th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981); Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.) (following "exposure” rule), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981); American Home Prods. Co. v. Liberty Mut. Ins. Co., 565 F.Supp. 1485, 1497 (S.D.N.Y.1983) (applying “injuiy-in-fact” rule which sets trigger in personal injury cases at point when body’s defenses are "overwhelmed”), aff'd with modifications, 748 F.2d 760 (2d Cir.1984); Keene Corp. v. Insurance Co. of N.Am., 667 F.2d 1034 (D.C.Cir.1981) (applying "multiple" or “triple-trigger” approach which requires coverage under all policies during period of continuing exposure and manifestation), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982).

Texas has limited precedent on this issue. See Dorchester Dev. Corp. v. Safeco Ins. Co., 737 S.W.2d 380, 383 (Tex.App.—Dallas 1987, no writ) (explaining "pure manifestation” theory). We believe it would be unwise to select among these tests, or formulate our own, when the outcome of this case does not require resolution of this issue. Therefore, for present purposes, we assume without deciding that all three occurrence policies — the 1981 ICA policy, the 1982 ICA policy, and the 1983 APIE policy. — provided coverage for Garcia.

21 ."Each Claim Occurrence,” a term of art defined in the APIE policy, appears to be an adaptation of "occurrence,” a term of art from standard-form commercial liability policies, to the unique characteristics of medical malpractice risks and to other language in the APIE policy. "Occurrence” is typically defined in the following manner:

An accident, including continuous or repeated exposure to substantially the same general conditions, which results in bodily injury or property damage that is neither expected nor intended from the standpoint of the insured. Continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence.

See, e.g., Michigan Chem. Corp. v. American Home Assurance Co., 728 F.2d 374, 378 (6th Cir.1984); Keene Corp. v. Insurance Co. of N. Am., 667 F.2d 1034, 1053-55 (D.C.Cir.1981) (Appendix A); Insurance Co. of N. Am. v. Forty-Eight Insulations, 633 F.2d 1212, 1227-28 (6th Cir.1980) (Appendix B).

In contrast, "Each Claim Occurrence” means "each act or occurrence or series of acts or occurrences arising out of one event.” APIE Policy § II.C. The APIE policy language that defines the scope of "Each Claim Occurrence” to include "[a] series of acts or occurrences,” is apparently intended to have a coverage effect similar to the "continuous or repeated exposure" unifying directive in commercial liability policies — but in a manner that is meaningful in the medical context. For example, medical malpractice frequently involves an operation or an extended course of treatment. A malpractice event may involve numerous independent grounds of negligence that cannot be unified as "repeated exposure to substantially the same conditions,” but that nevertheless constitute "a series of acts or occurrences” that are related and form a single malpractice claim.

22 . Policy language such as “occurrence” or “Per Claim Occurrence” generally measures policy deductibles or self-insured retentions as well as policy limits. See, e.g., Owens-Illinois v. Aetna Casualty & Sur. Co., 597 F.Supp. 1515, 1525 (D.D.C.1984) ("If each claimant’s exposure to the product must be regarded as a separate occurrence ... O-I must absorb a deductible on each asbestos claimant’s lawsuit.... This 'multiple occurrence’ interpretation would effectively deny O-I coverage because the deductibles are larger than the amount of any single claim successfully brought ... to date."). See generally American Home Assurance Co. v. Hermann’s Warehouse Corp., 215 N.J.Super. 260, 521 A.2d 903 (Ct.App. Div.1987) (discussing insurer’s settlement within limit of insured’s deductible); Casualty Ins. Co. v. Town & Country Pre-School Nursery, Inc., 147 Ill.App.3d 567, 101 Ill.Dec. 669, 498 N.E.2d 1177 (1986) (same).

23 . See, e.g., Chicago Ins. Co. v. Pacific Indem. Co., 566 F.Supp. 954 (E.D.Pa.1982) (discussing excess coverage in a dispute between primary and excess malpractice insurers); Olympic Ins. Co. v. Employers Surplus Lines Ins. Co., 126 Cal.App.3d 593, 178 Cal.Rptr. 908 (1981) (discussing excess coverage when insured had four layers of excess coverage above two primary policies); see also American Centennial Ins. Co. v. Canal Ins. Co., 843 S.W.2d 480, 485-86 (Tex.1992) (Hecht, J., concurring, joined by Phillips, C.J., Gonzalez, Cook, and Cornyn, JJ.) (discussing primary insurer’s duty to settle when insured has purchased temporally concurrent excess coverage); Syverud, supra at 1193-1207 (analyzing duty to settle in context of reinsurance and excess insurance).

24 . As we observed at note 23, multiple policies may provide an aggregate limit under certain circumstances, such as if the insured purchased concurrent excess liability insurance.

25 . We express no opinion on the other grounds upon which the court of appeals affirmed, as reformed, the trial court's judgment. Our silence concerning any of the issues addressed in our prior opinion or the dissent should not he understood as agreement with the resolution of any issue or the reasoning in those opinions. Although we have discussed the process of allocating indemnity or settlement costs among multiple insurers, this opinion does not address what responsibilities the Stowers duty imposes when two or more insurance companies, excess insurers, or reinsurers must jointly fund a settlement.