Zurn Industries Inc v. Allstate Insurance Co ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 21-3032 and 21-3119
____________
ZURN INDUSTRIES, LLC,
v.
ALLSTATE INSURANCE COMPANY, individually and as
successor in interest to
Northbrook Excess and Surplus Insurance Company
(formerly Northbrook Insurance Company); TRAVELERS
CASUALTY & SURETY COMPANY,
individually and as successor in interest to the Aetna Casualty
and Surety Company formerly known as THE AETNA
CASUALTY AND SURETY COMPANY;
FIRST STATE INSURANCE COMPANY, a subsidiary of
The Hartford Financial Services Group, Inc. doing business
as Arrowhead Indemnity Company
formerly known as Royal Indemnity; NEW ENGLAND
INSURANCE COMPANY, a subsidiary of The Hartford
Financial Services Group, Inc.; AMERICAN HOME
ASSURANCE COMPANY; GRANITE STATE
INSURANCE COMPANY
NEW ENGLAND INSURANCE COMPANY,
a subsidiary of The Hartford Financial Services Group, Inc.;
FIRST STATE INSURANCE COMPANY,
a subsidiary of The Hartford Financial Services Group, Inc.,
Third Party Plaintiffs
v.
GRANITE STATE INSURANCE COMPANY;
LEXINGTON INSURANCE COMPANY;
AMERICAN HOME ASSURANCE COMPANY;
LIBERTY MUTUAL INSURANCE COMPANY,
Third Party Defendants
American Home Assurance Company,
Appellant in 21-3032
Zurn Industries, LLC.
Appellant in 21-3119
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 1-18-cv-00299)
District Judge: Honorable Susan Paradise Baxter
____________
Argued on June 15, 2023
Before: PORTER, FREEMAN and FISHER, Circuit Judges.
(Filed: July 28, 2023)
Robert L. Byer ARGUED
Thomas E. Sanchez
Duane Morris
2
625 Liberty Avenue, Suite 1000
Pittsburgh, PA 15222
Gavin Fung
Liberty Mutual Insurance Company
175 Berkley Street
Boston, MA 02117
Ralph J. Luongo
Kennedys CMK
1600 Market Street
Suite 1410
Philadelphia, PA 19103
Counsel for Appellant American Home Assurance Co.
in No. 21-3032 and Appellee Granite State Insurance Co. in
No. 21-3119
Patrick J. Murphy ARGUED
Quarles & Brady LLP
411 East Wisconsin Avenue, Suite 2400
Milwaukee, WI 53202
Counsel for Appellant Zurn Industries, LLC in No. 21-
3032
Robert R. Anderson, III ARGUED
Christopher A. Johnson
Margaret Truesdale ARGUED
Hughes Socol Piers Resnick & Dyn
70 W Madison Street, Suite 400
Chicago, IL 60602
3
Timothy R. Smith
Pion, Nerone, Girman, Winslow & Smith
1500 One Gateway Center
Pittsburgh, PA 15222
Counsel for Appellee Allstate Insurance Co.
Myles D. Morrison ARGUED
James P. Ruggeri
Ruggeri Parks & Weinberg
1875 K Street NW, Suite 600
Washington, DC 20006
Michael A. Shiner
Tucker Arensberg
One PPG Place
Suite 1500
Pittsburgh, PA 15222
Counsel for Appellee First State Insurance Co. and
New England Insurance Co.
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Zurn Industries, LLC is a manufacturer of plumbing
products and accessories. For over a decade, it has faced a
litany of lawsuits in which claimants allege bodily injury or
wrongful death caused by asbestos in its products. To cover
litigation costs, Zurn used various insurance policies issued by
various insurance companies. Eventually, Zurn was told by its
primary and umbrella insurers that Zurn had exhausted the
4
limits of liability under those policies. So Zurn turned to its
excess insurance policies for coverage. When Zurn’s excess
policy insurers refused to pay, Zurn filed suit in federal court.
Among other relief, Zurn sought a declaratory judgment that it
had exhausted the limits of liability under its primary and
umbrella policies and that Zurn’s excess policy insurers had a
duty to defend and pay defense costs in the underlying asbestos
suits. The excess policy insurers responded with counterclaims
seeking declaratory judgments to the opposite effect. After
discovery, the parties filed numerous partial summary
judgment motions regarding pure questions of law and issues
of contract interpretation. The District Court addressed some
of the motions, interpreting the meaning of various primary,
umbrella, and excess policies, and determining the scope of
some duties insurers have under them. Dissatisfied with the
District Court’s interpretation of the policy it issued to Zurn,
one excess policy insurer—American Home Assurance
Company—appealed several of the partial summary judgment
orders. In response, Zurn cross-appealed to challenge different
portions of the District Court’s orders interpreting the terms of
other excess policies Zurn held. We conclude American Home
does not challenge orders that are functionally equivalent to an
injunction; thus, we lack the power to review its appeal. And
because Zurn’s cross-appeal is jurisdictionally dependent on
American Home’s, we also lack jurisdiction to review it.
I.
A. Factual History
Zurn Industries, LLC is the defendant in numerous
underlying suits in which claimants allege the company’s
products exposed them to asbestos and caused bodily injury or
wrongful death. To cover the costs of defending itself against
these suits and paying any resulting judgments, Zurn invoked
the defense and indemnity coverage of its insurance policies.
5
As relevant here, Zurn maintained several layered policies
providing it coverage throughout the 1970s and 1980s. During
that time, Zurn’s first layer of defense and indemnity coverage
(its primary policies) came from Liberty Mutual Insurance
Company (April 1974 to April 1980) and Travelers Casualty
and Surety Company (April 1980 to April 1986). Its second
layer of defense and indemnity coverage (its umbrella policies)
came from Liberty Mutual (April 1974 to April 1978 and April
1979 to April 1980), Northbrook Insurance Company (April
1978 to April 1979)1, and Aetna Casualty and Surety Company
(April 1980 to April 1986). Finally, Zurn maintained several
excess policies which provided a third layer of defense and
indemnity coverage that kicked in when underlying primary
and umbrella policies were exhausted. Relevant to these
appeals, the following companies provided excess policies to
Zurn: American Home Assurance Company (December 1974
to December 1977), Granite State Insurance Company
(December 1977 to April 1979), Northbrook (April 1979 to
April 1983), Royal Indemnity Company (April 1983 to April
1984), New England Insurance Company (April 1984 to April
1985), and Lexington Insurance Company (April 1985 to April
1986).
For many years, Zurn tendered the asbestos suits to its
insurers and obtained coverage under its primary and umbrella
policies. When Zurn’s primary and umbrella insurers notified
Zurn that certain policies’ liability limits had been reached,
Zurn turned to its excess policy insurers for coverage. The
excess policy insurers refused.
1
Zurn and Allstate characterize this Northbrook policy
as an umbrella policy, while the District Court simply stated it
was excess to the primary policy. We make no holdings as to
the type or scope of coverage provided under the policy.
6
B. Procedural History
In response, Zurn filed suit against its insurers:
Travelers2, Allstate Insurance Company3, American Home,
Granite State, First State Insurance Company4, and New
England. Zurn sought a declaratory judgment that its primary
and umbrella policies had been exhausted and that each of its
excess policy insurers had a duty to defend Zurn and pay
defense costs in addition to the excess policies’ limits of
liability. Zurn also alleged breach of contract and bad faith
against Allstate. The insurers responded with their own
counterclaims, seeking declaratory judgments about the fact
and scope of their obligation to defend and indemnify Zurn as
well as the allocation of defense and indemnity costs if
coverage were triggered.
After discovery, the District Court permitted any party
to submit “dispositive motion[s] whose resolution depends
solely on matters of contractual interpretation and/or pure
questions of law.” Dist. Ct. Dkt. No. 171. Summary judgment
motions poured in. Zurn moved for partial summary judgment
on its claims for declaratory relief regarding insurers’ duty to
defend and pay defense costs in addition to liability limits
under each excess policy. American Home moved for partial
summary judgment, arguing that it did not have a duty to
defend or pay defense costs. Several other excess policy
insurers moved for summary judgment, asking the Court to
declare the limits of liability under American Home’s policy,
2
Travelers is the successor in interest to the Aetna
policies.
3
Allstate is the successor in interest to the Northbrook
policies.
4
First State is the successor in interest to the Royal
policy.
7
as did American Home. And other primary and excess policy
insurers also moved for partial summary judgment on similar
issues including: the limits and exhaustion of policies; whether
defense costs must be paid in addition to liability limits under
certain excess policies; and how defense costs ought to be
allocated among insurers. Finally, Liberty Mutual moved for
partial summary judgment that its primary and umbrella
policies were fully exhausted.
In October 2021, the District Court resolved many of
the legal issues raised by the parties. Relevant here, the Court
denied American Home’s partial summary judgment motion
for a declaration that it owed Zurn no duty to defend or pay
defense costs in the underlying asbestos suits. Simultaneously,
the Court granted in part and denied in part Zurn’s partial
summary judgment motion. Specifically, the Court granted
summary judgment “with respect to Count VI . . . insofar as
Zurn seeks a declaration that American Home Assurance
Company must pay defense costs in addition to policy limits
under [the relevant] American Home policy.” App. 52. The
Court also granted partial summary judgment and entered
declaratory relief “with respect to Count VII . . . insofar as
Zurn seeks a declaration that Granite State Insurance Company
is required to pay defense costs in addition to policy limits”
under its policy covering December 1977 to April 1978. App.
52. However, the Court denied declaratory relief to the same
effect for Granite State’s excess policy covering April 1978 to
April 1979 and Northbrook’s umbrella and excess policies
covering April 1978 to April 1983. The Court entered
corresponding orders on First State’s and New England’s joint
motion, which sought partial summary judgment for
8
declaratory relief largely identical to the declarations Zurn had
requested.5
After the District Court issued its opinion and orders,
American Home appealed. It challenges three orders: the order
denying American Home’s motion for partial summary
judgment on defense and defense costs; and two orders
granting partial summary judgment, one in favor of Zurn and
the other in favor of First State and New England, regarding
the scope of defense costs under American Home’s excess
policy. We will call the former order the declaration-denying
order and the latter two orders the declaration-granting orders
for short. Zurn cross-appealed, challenging the District Court’s
orders regarding the scope of costs under Northbrook’s and
Granite State’s excess policies.6
II.7
As a threshold matter, we must address the parties’
dispute about our jurisdiction to review the District Court’s
partial summary judgment orders. We always have jurisdiction
to determine our own jurisdiction. United States v. Kwasnik,
55 F.4th 212, 215 & n.1 (3d Cir. 2022). And we exercise
plenary review over the issue. Ramara, Inc. v. Westfield Ins.
Co., 814 F.3d 660, 665 (3d Cir. 2016). American Home argues
5
Several summary judgment motions remain
outstanding, such as whether Liberty Mutual’s and Travelers’
primary and umbrella policies have been exhausted, and
whether limits on certain excess policies, including American
Home’s, apply annually or aggregately.
6
Thus, Zurn’s cross-appeal impacts the rights and
obligations of insurers other than American Home.
7
The District Court exercised jurisdiction over the
cases pursuant to 28 U.S.C. § 1332. Our jurisdiction is at
issue on appeal.
9
we have appellate jurisdiction under 28 U.S.C. § 1292(a)(1)
because the District Court’s orders are the functional
equivalent of an injunction. Zurn disagrees, arguing that the
District Court neither practically nor literally granted
injunctive relief because the orders merely resolved American
Home’s policy obligations in general. We agree with Zurn and
conclude we do not have jurisdiction.
A.
“The Judiciary Act of 1789, 1 Stat. 73, ‘established the
general principle that only final decisions of the federal district
courts would be reviewable on appeal.’” Abbott v. Perez, 138
S. Ct. 2305, 2319 (2018) (quoting Carson v. Am. Brands, Inc.,
450 U.S. 79, 83 (1981)). Thus, 28 U.S.C. § 1291, which grants
us jurisdiction over final orders from district courts, is our
primary source of appellate jurisdiction. Over time, however,
several limited exceptions developed to the final-decision rule.
See 28 U.S.C. § 1292; Will v. Hallock, 546 U.S. 345, 349
(2006) (discussing collateral order doctrine). One exception
grants appellate courts jurisdiction over “[i]nterlocutory orders
of the district courts of the United States . . . granting,
continuing, modifying, refusing or dissolving injunctions, or
refusing to dissolve or modify injunctions.” 28 U.S.C.
§ 1292(a)(1). Our Court has recognized that this exception
extends to orders that expressly grant or deny injunctions as
well as those that “have the practical effect” of doing so. Def.
Distributed v. Att’y Gen. of N.J., 972 F.3d 193, 198 (3d Cir.
2020) (quoting Rolo v. Gen. Dev. Corp., 949 F.2d 695, 702 (3d
Cir. 1991)). Even so, to ensure the exception does not “swallow
the final-judgment rule,” we construe § 1292(a)(1) “narrowly.”
In re Pressman-Gutman Co., 459 F.3d 383, 392 (3d Cir. 2006)
(quoting Hershey Foods Corp. v. Hershey Creamery Co., 945
F.2d 1272, 1276 (3d Cir. 1991)).
10
To determine whether an order is injunctive, “we must
look past labels to consider functional effects.” Hope v.
Warden York Cnty. Prison, 956 F.3d 156, 161 (3d Cir. 2020);
see also Cohen v. Bd. of Trs. of Univ. of Med. & Dentistry of
N.J., 867 F.2d 1455, 1466 (3d Cir. 1989) (en banc) (“label put
on an order by the district court” not dispositive). Under a
functionalist approach, an order is an injunction if it is
“directed to a party, enforceable by contempt, and designed to
accord or protect ‘some or all of the substantive relief sought
by a complaint’ in more than a [temporary] fashion.” Cohen,
867 F.2d at 1465 n.9 (quoting Wright, Miller, Cooper &
Gressman, Federal Practice and Procedure, § 3922, at 29
(1977)).
The parties identify two cases that fall on opposite sides
of the dividing line under Cohen’s functionalist approach:
American Motorists Insurance Co. v. Levolor Lorentzen, Inc.,
879 F.2d 1165 (3d Cir. 1989), and Ramara, Inc. v. Westfield
Insurance Co., 814 F.3d 660 (3d Cir. 2016). In the former case,
we concluded jurisdiction was lacking under § 1292(a)(1); in
the latter, we held that we had jurisdiction under the statute. To
determine which side of the line this case falls, we discuss
American Motorists and Ramara in detail.
We begin with American Motorists. There, an insured
party, Levolor, sought coverage for certain claims asserted
against it by the United States Environmental Protection
Agency. Am. Motorists, 879 F.2d at 1167. Levolor’s insurer,
American Motorists, declined coverage. Id. American
Motorists then filed suit in federal court, seeking a declaratory
judgment that it had no duty to defend or indemnify Levolor.
Id. at 1166. Levolor counterclaimed for a declaration that
American Motorists did have a duty to defend and indemnify
and sought damages for breach of contract. Id. Both parties
moved for partial summary judgment. Id. The district court
11
held that American Motorists had a duty to defend Levolor,
subject to outstanding disputes of material fact about an
exception to the policy’s coverage known as the pollution
exclusion. Id. at 1167–68. American Motorists appealed the
judgment, though it was not certified as final under Federal
Rule of Civil Procedure 54(b) until over a month later. Id. at
1168.
We declined to exercise jurisdiction over the appeal due
to the “nonfinal character of the determination of the duty to
defend.” Id. at 1169, 1172–73. Admittedly, the bulk of our
analysis in American Motorists dealt with the lack of finality
under Rule 54(b). We reasoned that while the district court’s
order placed “the initial burden to defend” on American
Motorists, the order was not final because it “was subject to
termination when the court made a final determination on the
applicability of the pollution exclusion.” Id. at 1170 (“[I]f
[American Motorists] is successful in advancing the pollution
exclusion,” the duty to defend order will be “effectively altered
and revised” and American Motorists’ “obligation will no
longer exist.”). Then, sua sponte, the Court considered and
rejected jurisdiction over the appeal pursuant to § 1292(a)(1).
Id. at 1172 (stating § 1292(a)(1) jurisdiction was “not
mentioned by the parties”). Guided by Cohen’s functional
approach and the requirement under the Federal Rules of Civil
Procedure that injunction orders must be specific, we
concluded that the district court’s order was not akin to an
injunction because it “did not direct [American Motorists] to
do anything.” Id. at 1172–73; see also Fed. R. Civ. P. 65(d).
The order recited only that Levolor’s motion “with respect to
the issue of the obligation [of American Motorists] to provide
a defense is granted.” Am. Motorists, 879 F.2d at 1173. Though
the district court “effectively defin[ed]” American Motorists’
12
duty, it “did not order [American Motorists] to undertake the
defense.” Id.On the other side, we have Ramara. There, an injured
employee of a subcontractor filed a tort suit against Ramara, a
parking garage owner. Ramara, 814 F.3d at 664–65. Ramara
tendered its defense to its insurer, Westfield, who declined to
extend coverage. Id. at 665. So Ramara filed suit in federal
court to obtain declarations about Westfield’s duties under the
policy. Id. at 668. Upon the parties’ motions for partial
summary judgment on the issue, the district court held that
Westfield had a duty to defend Ramara in the underlying tort
suit. Id. The district court then entered a supplemental order
that “quantified judgment in favor of Ramara against
Westfield,” id. at 665 (citation omitted), and “directed that
‘[p]rospectively, Westfield shall provide defense to Ramara in
the underlying [tort] action,’” id. at 669.
Westfield appealed the supplemental order, and we held
that we had jurisdiction to review it on appeal. Id. Critical to
our decision was the fact that, in addition to deciding the
parties’ rights and duties, the district court “direct[ed]
Westfield to defend Ramara prospectively in the [underlying
tort] lawsuit.” Id. at 671. The supplemental order granted
“forward-looking relief” that constituted the sort of “equitable
relief [that is] immediately appealable.” Id. at 672; see also
Aleynikov v. Goldman Sachs Grp., Inc., 765 F.3d 350, 356–57
& n.1 (3d Cir. 2014) (holding district court’s order directing a
party to pay another party’s legal fees and expenses
“periodically as they are incurred going forward” constituted
immediately appealable equitable relief (citation omitted)).
B.
With that background in mind, we turn to the three
orders American Home challenges on appeal and conclude
they are far closer to the order in American Motorists than the
13
one in Ramara. In the declaration-denying order, the District
Court simply stated, “IT IS HEREBY ORDERED, for the
reasons set forth in the Memorandum Opinion to be filed
forthwith, that [American Home’s] motion is DENIED.” App.
51. In the declaration-granting orders, the District Court stated,
IT IS HEREBY ORDERED, for the reasons set
forth in the Memorandum Opinion to be filed
forthwith, that the motion is GRANTED in part
and DENIED in part as follows: . . . The motion
is GRANTED with respect to Count VI of the
Amended Complaint insofar as Zurn seeks a
declaration that American Home Assurance
Company must pay defense costs in addition to
policy limits under [the relevant] American
Home Policy . . . .
App. 52; see also App. 49 (ordering same regarding First
State’s and New England’s joint motion on the issue).
The declaration-denying order is clearly not an
injunction. Similar to the order in American Motorists, which
merely “granted” summary judgment on the issue of American
Motorists’ “obligation . . . to provide a defense,” 879 F.2d at
1173, the order here merely “denied” American Home’s
motion regarding its obligation to defend and pay defense
costs. Without more, the order simply reflects the District
Court’s decision to decline relief, as a matter of law, before
trial. For that same reason, the District Court’s order falls well
short of imposing forward-looking equitable relief like in
Ramara. 814 F.3d at 672.
Though the declaration-granting orders are a closer call,
they are more akin to the order in American Motorists than the
one in Ramara. We accept that the orders “effectively
defin[ed]” at least some of American Home’s duties under the
contract. Am. Motorists, 879 F.2d at 1173. But American
14
Motorists tells us that is not enough; the District Court must
have directed American Home to do something. Id. at 1172–
73. The declaration-granting orders do not. Instead, the orders
grant relief “insofar” as Zurn and others seek “a declaration
that American Home Assurance Company must pay defense
costs in addition to policy limits” under the relevant American
Home policy. App. 49, 52. Far from directing American Home
to act now and pay Zurn’s defense costs or take up Zurn’s
defense, the orders simply clarify the scope of American
Home’s potential future duty, if and when that duty is
triggered.
No part of the declaration-granting orders compels
American Home “to undertake the defense” of Zurn. See Am.
Motorists, 879 F.2d at 1173. Nor are they accompanied by a
supplemental order, like the one in Ramara, see 814 F.3d at
670, or any other similar directive towards American Home to
prospectively defend Zurn. American Home even recognizes
as much when it concedes that the District Court’s orders “did
not direct American Home to take over the defense of Zurn in
the underlying asbestos suits.” Am. Home Br. 28. Without a
directive, there is no injunction or functional equivalent for us
to review. And it is the very lack of directive that critically
distinguishes this case from the collection of published and
unpublished out-of-circuit cases American Home cites to
15
support our jurisdiction.8 In short, we decline to extrapolate
injunctive-like directives from a district court’s summary
judgment order that merely interprets parties’ rights and duties
under a contract in the abstract, nothing more.
And unlike an injunction, the District Court’s
declaration-granting orders cannot be enforced by contempt.
How could they? They are unspecific about what act is required
or restrained, and they are subject to a host of outstanding
issues. See Fed. R. Civ. P. 65(d) (requiring injunctions to be
stated in specific terms and “act or acts restrained or required”
to be “describe[d] in reasonable detail”); cf. Am. Motorists, 879
8
See W Holding Co. v. AIG Ins. Co.-Puerto Rico, 748
F.3d 377, 383 (1st Cir. 2014) (exercising jurisdiction over
district court order “requiring defense-cost advancements”);
Abercrombie & Fitch Co. v. Fed. Ins. Co., 370 F. App’x 563,
566–68 & n.6 (6th Cir. 2010) (exercising jurisdiction over
district court order stating “[insurer] is hereby ORDERED to
advance payment”); Gon v. First State Ins. Co., 871 F.2d 863,
866 (9th Cir. 1989) (exercising jurisdiction over district court
order “direct[ing] [insurer] to pay defense expenses in [a
particular] litigation as they were incurred”); Church Mut.
Ins. Co. v. Ma’Afu, 657 F. App’x 747, 750 (10th Cir. 2016)
(exercising jurisdiction over district court order stating insurer
“must defend . . . and reimburse” insured); Pac. Ins. Co. v.
Gen. Dev. Corp., 28 F.3d 1093, 1095–96 (11th Cir. 1994)
(per curiam) (exercising jurisdiction over order “directing
[insurer] to ‘pay the Insured Defendants’ defense costs as
they are incurred’” (citation omitted)); Nat’l Union Fire Ins.
Co. of Pittsburgh, Pa. v. Sahlen, 999 F.2d 1532, 1535 (11th
Cir. 1993) (exercising jurisdiction over order that effectively
dissolved previous order that “required [insurer] to pay the
Insureds’ defense costs in the underlying suits”).
16
F.2d at 1169–71 (reasoning order regarding insurer’s duty to
defend was not final because related factual issues remained
unresolved). For example, American Home’s duty may be
delayed or unrealized depending on the resolution of currently
pending motions before the District Court on issues regarding
exhaustion and how to measure limits to liability. We agree
with Zurn that the District Court’s orders are not transformed
into the functional equivalent of an injunction simply because
Zurn acted pursuant to certain rights recognized in them.
“[W]hat counts is what the court actually did,” not how the
parties reacted to it. See Ramara, 814 F.3d at 669. A mere
declaration of Zurn’s rights does nothing to compel American
Home to act or refrain from acting pursuant to them.
Ultimately, we conclude that none of the District
Court’s orders is the functional equivalent of an injunction;
therefore, we do not have jurisdiction to review them.
We also decline to exercise jurisdiction over Zurn’s
cross-appeal, challenging the District Court’s orders denying
declaratory relief regarding the scope of defense costs under
Northbrook’s and Granite State’s excess policies. Notably,
Zurn does not press an independent basis for jurisdiction over
its cross-appeal; rather it relies on the doctrine of pendent
appellate jurisdiction to justify our review. That doctrine
permits “us discretion to review orders if they either (1) are
‘inextricably intertwined’ with appealable ones or (2) must be
reviewed with them to ‘ensure meaningful review.’” United
States v. Brace, 1 F.4th 137, 142 (3d Cir. 2021) (quoting Reinig
v. RBS Citizens, N.A., 912 F.3d 115, 130 (3d Cir. 2018)). But
we do not have jurisdiction over American Home’s appeal.
17
And without a proper underlying appeal, pendent appellate
jurisdiction is of no use.9
For these reasons, we will dismiss the appeals for lack
of jurisdiction.
9
Because we lack jurisdiction over Zurn’s cross-
appeal, we are precluded from considering the substance of
the cross-appeal or implications of the District Court’s orders
on other insurers impacted by the same.
18