McGinnes Industrial Maintenance Corp. v. Phoenix Insurance

631 F. App'x 258

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 2, 2016
• Docket: 13-20360
• Status: Unpublished

Opinion

PER CURIAM: *

In a prior opinion, we certified to the Supreme Court of Texas the sole issue on appeal in this diversity action: whether Environmental Protection Agency (EPA) enforcement actions taken pursuant to CERCLA 1 constitute a “suit” within the meaning of commercial general liability policies, thereby triggering a duty to defend. 2

The Supreme Court of Texas answered the certified question, concluding that the term “suit” in the policies “must also include CERCLA enforcement proceedings by the EPA”; the court subsequently de nied rehearing. 3 Because the district court granted summary judgment for the defendants on the ground that they had no duty to defend, 4 we REVERSE the district court’s grant of summary judgment and REMAND for further proceedings.

* Pursuant to 5th Cir. R. 47,5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4,

3 . McGinnes Indus. Maint. Corp. v. Phoenix Ins. Co., 477 S.W.3d 786, 789, 2015 WL 4080146, at *3 (2015), reh’g denied (Jan. 22, 2016).

4 . McGinnes Indus. Maint. Corp. v. Phoenix Ins. Co., No. 4:11-CV-4000, 2012 WL 6162905, at *-, 2013 U.S. Dist. LEXIS 186670, at *4 (S.D.Tex. Apr. 18, 2013).

1 . Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C, §§ 9601-75.

2 . McGinnes Indus. Maint. Corp. v. Phoenix Ins. Co., 571 Fed.Appx. 329, 333, 335 (5th Cir.2014) (per curiam).