Colony National Insurance v. Unique Industrial Product Co. , 487 F. App'x 888 ( 2012 )


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  •      Case: 11-20355     Document: 00511968924         Page: 1     Date Filed: 08/24/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    August 24, 2012
    No. 11-20355                        Lyle W. Cayce
    Clerk
    COLONY NATIONAL INSURANCE COMPANY,
    Plaintiff–Appellee
    v.
    UNIQUE INDUSTRIAL PRODUCT COMPANY,
    Defendant–Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    No. 4:10-CV-1234
    Before STEWART, CLEMENT, and GRAVES, Circuit Judges.
    PER CURIAM:*
    This declaratory judgment suit was filed by Plaintiff-Appellee Colony
    National Insurance Company (“Colony”) seeking a declaration that it had no
    duty to either defend or indemnify its insured, Defendant-Appellant Unique
    Industrial Product Company, L.P. (“Unique”), for claims in two underlying
    lawsuits against Unique. After considering extrinsic evidence in the form of an
    affidavit and the insurance application discussed therein, the district court
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    Case: 11-20355       Document: 00511968924         Page: 2     Date Filed: 08/24/2012
    No. 11-20355
    granted summary judgment for Colony based on the insurance policy’s known-
    loss exclusion. For the following reasons, we REVERSE and REMAND.
    FACTUAL BACKGROUND
    Colony insured Unique under two consecutive commercial general liability
    (“CGL”) policies running from October 16, 2005 through October 16, 2007.1
    Under the terms of the CGL policies, Colony will pay those sums that Unique
    becomes legally obligated to pay as damages because of “bodily injury” or
    “property damage” only if, inter alia, the “bodily injury” or “property damage”
    occurs during the policy period and was not, prior to the policy period, known to
    have occurred by the insured.
    Since 2002, Unique supplied brass fittings and swivel nuts as plumbing
    products to Uponor, Inc. (“Uponor”), a company engaged in the business of
    supplying or distributing plumbing products to other entities for installation in
    residential plumbing systems. Purchasers of the brass fittings and swivel nuts
    Unique supplied to Uponor began complaining of damages to their residences
    because of failures of Unique’s plumbing products. As a result, Unique was
    named in two lawsuits, specifically, Uponor, Inc. v. Unique Industrial Product
    Co., Case No. 4:07-cv-02986 (S.D. Tex. September 16, 2007) (the “Texas
    Lawsuit”) and McGregor v. Uponor, Inc., Case No. 0:09-cv-01136-ADM-JJK (D.
    Minn. May 15, 2009) (the “Minnesota Lawsuit”), a class action in which Uponor
    made claims against Unique by way of a third-party complaint.
    Uponor’s allegations against Unique in the Texas and Minnesota Lawsuits
    are substantially similar. Specifically, Uponor alleges that it purchased swivel
    nuts and brass fittings from Unique at various times since 2002. However,
    during or before June 2004, Uponor placed Unique on notice regarding reports
    1
    After the renewal at the end of the first year of coverage, Colony exercised its right
    to prematurely terminate its insurance contract with Unique because of numerous adverse
    developments since the renewal. The termination was made effective on February 10, 2007.
    2
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    No. 11-20355
    of failures of Unique’s swivel nuts and that the failures were causing damages
    to residences and to Uponor’s business. As a result, after June 2004, Unique
    began supplying different swivel nuts to Uponor, but Uponor alleges that as with
    the previous swivel nuts, Unique did not monitor, supervise, test, or examine the
    post-June 2004 swivel nuts for deficiencies.
    In addition, Uponor alleges that it began receiving notices of failures of
    certain brass fittings supplied by Unique, which had been incorporated into
    plumbing systems in various residential properties and had caused water
    damage. As a result, in August 2006, Uponor had the defective fittings and
    swivel nuts removed from the inventory of its purchasers and returned to
    Uponor. Then, on August 24, 2006, representatives from Uponor and Unique
    met to discuss the fitting and swivel nut failures. During the meeting, Uponor
    alleges that Unique agreed to take responsibility for existing and future claims
    from the defective products if Uponor purchased Unique’s remaining inventory.
    Uponor alleges that after the meeting, however, Unique failed to take any
    responsibility for the damages or to reimburse Uponor for claims that Uponor
    had already paid. Furthermore, Uponor alleges that not only were Unique’s
    swivel nuts and fittings defective but that Unique also “knew of problems” with
    their fittings and yet failed to notify Uponor or make necessary modifications to
    the fittings supplied to Uponor.
    Sometime after the initiation of the Texas and Minnesota Lawsuits,
    Unique tendered the cases to Colony for defense and indemnification but Colony
    declined to provide coverage or a defense with respect to both actions. Instead,
    Colony filed this declaratory judgment action in federal court. After considering
    an affidavit from an underwriter for Colony and the insurance application
    discussed therein, the district court granted summary judgment in favor of
    Colony on the grounds that Unique had known of the losses alleged in the Texas
    3
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    No. 11-20355
    and Minnesota Lawsuits prior to purchasing the CGL policy from Colony. This
    appeal ensued.
    DISCUSSION
    We have jurisdiction over this appeal from a final order of the district
    court under 28 U.S.C. § 1291. We review a district court’s award of summary
    judgment de novo, applying the same standard as the district court. Trinity
    Universal Ins. Co. v. Emp’rs Mut. Cas. Co., 
    592 F.3d 687
    , 690-91 (5th Cir. 2010);
    Wilshire Ins. Co. v. RJT Constr., LLC, 
    581 F.3d 222
    , 224 (5th Cir. 2009) (“We
    review legal determinations in a district court’s decision to grant summary
    judgment de novo, applying the same legal standards as the district court to
    determine whether summary judgment was appropriate.”); Ooida Risk Retention
    Grp., Inc. v. Williams, 
    579 F.3d 469
    , 471-72 (5th Cir. 2009). Summary judgment
    is appropriate if the record reflects that “there is no genuine dispute as to any
    material fact and the movant is entitled to judgment as a matter of law.” FED.
    R. CIV. P. 56(a).
    Likewise, the insurer’s duty to defend is a question of law that we review
    de novo. 
    Ooida, 579 F.3d at 471-72
    . “Because we sit in diversity, we must apply
    Texas law, mindful that in making an Erie guess, ‘[w]e are emphatically not
    permitted to do merely what we think best; we must do that which we think the
    [Texas] Supreme Court would deem best.’” Nautilus Ins. Co. v. Zamora, 
    114 F.3d 536
    , 538 (5th Cir. 1997) (quoting Jackson v. Johns-Manville Sales Corp., 
    781 F.2d 394
    , 397 (5th Cir. 1986) (en banc)). Under Texas law, we are required to
    apply the “eight-corners rule,” also known as the “complaint-allegation rule” in
    determining whether the duty to defend exists. Zurich Am. Ins. Co. v. Nokia,
    Inc., 
    268 S.W.3d 487
    , 491 (Tex. 2008). “Under the eight-corners or complaint-
    allegation rule, an insurer’s duty to defend is determined by the third-party
    plaintiff’s pleadings, considered in light of the policy provisions, without regard
    to the truth or falsity of those allegations.” GuideOne Elite Ins. Co. v. Fielder
    4
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    No. 11-20355
    Rd. Baptist Church, 
    197 S.W.3d 305
    , 308 (Tex. 2006) (citing Argonaut Sw. Ins.
    Co. v. Maupin, 
    500 S.W.2d 633
    , 635 (Tex. 1973); Heyden Newport Chem. Corp.
    v. S. Gen. Ins. Co., 
    387 S.W.2d 22
    , 24 (Tex. 1965)). Furthermore, a liberal
    interpretation of the allegations in favor of the insured is to be indulged so that
    the court must resolve all doubts regarding the duty to defend in favor of the
    duty. 
    Nokia, 268 S.W.3d at 491
    (citing King v. Dallas Fire Ins. Co., 
    85 S.W.3d 185
    , 187 (Tex. 2002); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Merchs. Fast
    Motor Lines, Inc., 
    939 S.W.2d 139
    , 141 (Tex. 1997)).
    To obligate the insurer to defend, the insured must first successfully meet
    his burden of showing that the facts as alleged in the plaintiff’s pleadings state
    a claim against him potentially within the coverage of the insurance policy.
    Canutillo Indep. Sch. Dist. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 
    99 F.3d 695
    , 701 (5th Cir. 1996). Specifically, an insurer’s duty to defend arises only if
    the facts alleged in the plaintiff’s pleadings, if taken as true, allege a case within
    the policy’s coverage;2 thus, a petition that does not allege facts within the scope
    of coverage will not suffice legally to require an insurer to defend the suit
    against its insured. Merchs. Fast Motor Lines, 
    Inc., 939 S.W.2d at 141
    ; Fid. &
    Guar. Ins. Underwriters, Inc. v. McManus, 
    633 S.W.2d 787
    , 788 (Tex. 1982).
    However, the duty to defend the lawsuit applies “if there is a possibility that any
    of the claims” alleged in the lawsuit might be covered. 
    Nokia, 268 S.W.3d at 491
    ,
    495-96 (“The duty to defend is not negated by the inclusion of claims that are not
    covered; rather, it is triggered by the inclusion of claims that might be covered.”).
    2
    “The duty to defend is determined by examining the latest amended pleading upon
    which the insurer based its refusal to defend the action.” 
    Canutillo, 99 F.3d at 701
    (citing
    Rhodes v. Chicago Ins. Co., 
    719 F.2d 116
    , 120 (5th Cir. 1983)). Accordingly, although we note
    that on October 31, 2011, Uponor filed a Second Amended Complaint in the Texas Lawsuit
    against Unique, we need not consider the allegations contained therein in conducting our duty
    to defend analysis because Colony refused to defend Unique based on Uponor’s First Amended
    Complaint.
    5
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    In other words, as long as there is “potentially” a cause of action in the case
    within the policy’s coverage, the insurer is obligated to defend the entire case:
    ‘Where the complaint does not state facts sufficient to clearly bring
    the case within or without the coverage, the general rule is that the
    insurer is obligated to defend if there is, potentially, a case under
    the complaint within the coverage of the policy. Stated differently,
    in case of doubt as to whether or not the allegations of a complaint
    against the insured state a cause of action within the coverage of a
    liability policy sufficient to compel the insurer to defend the action,
    such doubt will be resolved in [the] insured’s favor.’
    Heyden 
    Newport, 387 S.W.2d at 26
    (citation omitted); see also Gore Design
    Completions Ltd. v. Hartford Fire Ins. Co., 
    538 F.3d 365
    , 369 (5th Cir. 2008)
    (“When in doubt, defend.”).
    If the insured carries his burden, the insurer, also within the confines of
    the eight-corners rule, must establish that an exclusion in the policy constitutes
    an avoidance of or affirmative defense to coverage of all claims in order to defeat
    the duty to defend. Northfield Ins. Co. v. Loving Home Care, Inc., 
    363 F.3d 523
    ,
    528 (5th Cir. 2004) (citations omitted). In determining whether an exclusion
    applies, Texas courts “examine the factual allegations showing the origin of the
    damages rather than the legal theories asserted by the plaintiff.” 
    Canutillo, 99 F.3d at 703-04
    (citations omitted). Furthermore, in the event of ambiguity, any
    exceptions and limitations contained in a policy are strictly construed against
    the insurer. 
    Northfield, 363 F.3d at 529
    (citing 
    Canutillo, 99 F.3d at 701
    ).
    In addition, under the eight-corners rule, it is inappropriate when
    conducting the duty to defend analysis to consider “facts ascertained before the
    suit, developed in the process of litigation, or by the ultimate outcome of the
    suit.” Primrose Operating Co. v. Nat’l Am. Ins. Co., 
    382 F.3d 546
    , 552 (5th Cir.
    2004) (citing Potomac Ins. Co. of Ill. v. Jayhawk Med. Acceptance Corp., 
    198 F.3d 548
    , 551 (5th Cir. 2000)). Indeed, extrinsic evidence such as “facts outside the
    pleadings, even those easily ascertained, are not ordinarily material to the
    6
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    determination” of the duty to defend, and the court will not read facts into the
    pleadings, “look outside the pleadings, or imagine factual scenarios which might
    trigger coverage.” Merchants Fast Motor Lines, Inc., 939 S.W.2d at141-42.
    Some Texas intermediate appellate courts and our court, making an Erie
    guess, have carved out a narrow exception permitting the use of extrinsic
    evidence in determining the duty to defend when the extrinsic evidence is
    “relevant to an independent and discrete coverage issue, not touching on the
    merits of the underlying third-party claim.” 
    GuideOne, 197 S.W.3d at 308-09
    .
    Specifically, some Texas intermediate appellate courts and our court have found
    that extrinsic evidence may be used “when it is initially impossible to discern
    whether coverage is potentially implicated and when the extrinsic evidence goes
    solely to a fundamental issue of coverage which does not overlap with the merits
    of or engage the truth or falsity of any facts alleged in the underlying cases.”
    
    Northfield, 363 F.3d at 531
    ; State Farm Fire & Cas. Co. v. Wade, 
    827 S.W.2d 448
    , 452 (Tex. App.—Corpus Christi 1992, writ denied) (“When the petition in
    the underlying lawsuit does not allege facts sufficient for a determination of
    whether those facts, even if true, are covered by the policy, the evidence adduced
    at the trial in a declaratory judgment action may be considered along with the
    allegations in the underlying petition.” (citing Gonzales v. Am. States Ins. Co. of
    Tex., 
    628 S.W.2d 184
    , 186 (Tex. App.—Corpus Christi 1982, no writ))). However,
    although the Texas Supreme Court has never recognized this, nor, indeed, any
    exception to the eight-corners rule, it has acknowledged that “any such exception
    would not extend to evidence that was relevant to both insurance coverage and
    the factual merits of the case as alleged by the third-party plaintiff.” Pine Oak
    Builders, Inc. v. Great Am. Lloyds Ins. Co., 
    279 S.W.3d 650
    , 654 (Tex. 2009)
    (citing 
    GuideOne, 197 S.W.3d at 308-09
    ).
    Here, the district court erred in finding no duty to defend by looking to
    extrinsic evidence to support its determination. According to the allegations,
    7
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    No. 11-20355
    Uponor purchased fittings and swivel nuts from Unique at various times since
    2002. In addition, Uponor alleges that “[s]ubsequent to UPONOR purchasing
    Swivel Nuts from UNIQUE, Palm Harbor and individuals informed UPONOR
    of multiple Swivel Nut failures, demanded reimbursement from UPONOR for
    the damages they claim to have sustained as a result of the defective Swivel
    Nuts and also demanded replacement of all UNIQUE Swivel Nuts contained in
    the approximately 5,000 Palm Harbor homes in which UNIQUE’s Swivel Nuts
    had been installed.”     Furthermore, “[o]n or about November 29, 2006[,]
    UPONOR, both orally and in writing, put UNIQUE on notice of claims that had
    been made by Ryan Homes regarding the replacement of . . . Fittings supplied
    by UNIQUE and the demand by Palm Harbor Homes for replacement of Swivel
    Nuts supplied by UNIQUE.”
    We must liberally construe the allegations and resolve all ambiguities in
    favor of the insured and the duty to defend. See 
    Nokia, 268 S.W.3d at 491
    . “If
    the third-party plaintiff’s complaint alleges any amount of property damage that
    occurred during the policy period and that was caused by the insured, the duty
    to defend arises.” Wilshire 
    Ins., 581 F.3d at 225
    (citing Don’s Bldg. Supply, Inc.
    v. OneBeacon Ins. Co., 
    267 S.W.3d 20
    , 31-32 (Tex. 2008)). Here, Uponor’s
    pleadings against Unique allege that claims arose subsequent to Uponor’s
    purchasing Unique’s swivel nuts and fittings. Although Uponor alleges Unique
    knew of the defective swivel nuts in 2004, it also alleges that Unique agreed to
    use different swivel nuts. However, it does not then allege that Unique knew
    those different swivel nuts were defective before the policy date of October 16,
    2005. Without more, the allegations do not clearly and unambiguously fall
    outside the scope of coverage of the CGL policies and a potentially covered claim
    clearly exists. See Allstate Ins. Co. v. Hallman, 
    159 S.W.3d 640
    , 643 (Tex. 2005).
    Thus, unless an exclusion is applicable, the factual allegations lodged in the
    Texas and Minnesota Lawsuits trigger Colony’s duty to defend.
    8
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    Here, the district court found that the known-loss exclusion contained in
    the CGL policies was applicable to deny coverage. After considering extrinsic
    evidence in the form of an affidavit and Unique’s insurance application discussed
    therein, the district court found that Unique knew of the losses before buying
    insurance from Colony because Unique had reported in its insurance application
    that it had “sold a batch of T-fittings from one manufacturer which was
    defective.”   In Texas, under the fortuity doctrine, an insured cannot seek
    insurance coverage for a loss that has already begun and which is or should be
    known to have begun. Two Pesos, Inc. v. Gulf Ins. Co., 
    901 S.W.2d 495
    , 501 (Tex.
    App.—Houston [14th Dist.] 1995, pet. denied). However, application of the
    fortuity doctrine in the duty-to-defend context is resolved by the eight-corners
    rule.    Warrantech Corp. v. Steadfast Ins. Co., 
    210 S.W.3d 760
    , 766 (Tex.
    App.—Fort Worth 2006, pet. denied).
    Furthermore, the district court’s consideration of extrinsic evidence would
    be impermissible even under the narrow exception recognized by the Texas
    intermediate appellate courts and our court since the extrinsic evidence overlaps
    with the merits of or engages the truth or falsity of the facts alleged in the Texas
    and Minnesota Lawsuits. See 
    Northfield, 363 F.3d at 531
    ; Pine 
    Oak, 279 S.W.3d at 654
    ; 
    Wade, 827 S.W.2d at 452
    . Unique’s knowledge of problems with its
    products and the timing of that knowledge is relevant to its liability to Uponor
    and, therefore, is not wholly outside the issues in the underlying liability case.
    Considering the affidavit and insurance application obligates accepting that
    Unique’s products were defective and that Unique had knowledge of same, a
    conclusion that would be highly prejudicial to Unique’s position in the Texas and
    Minnesota Lawsuits. Accordingly, it was inappropriate for the district court to
    consider the affidavit and the insurance application in order to determine
    whether the known-loss exclusion was applicable.
    9
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    Since the district court found that the known-loss exclusion was
    applicable, it did not address Colony’s other argument that Unique’s voluntary
    agreement with Uponor in August 2006 to take responsibility for existing and
    any future claims breached the consent-to-settle clause in the CGL policies,
    vitiating coverage. The CGL policies’ consent-to-settle clause provides, that an
    insured will not “except at that insured’s own cost, voluntarily make a payment,
    assume any obligation, or incur any expense, other than for first aid, without
    [Colony’s] consent.”
    First, it is not at all clear that Unique’s August 2006 agreement
    constitutes the type of settlement referenced in this clause. Further, although
    Colony argues that any breach of the clause renders all insurance void, it cites
    no case for this proposition. Colony cites our decision in Motiva Enterprises, LLC
    v. St. Paul Fire & Marine Ins. Co., 
    445 F.3d 381
    (5th Cir. 2006) for the
    proposition that any settlement without insurance company involvement voids
    coverage as a matter of law. 
    Id. at 385-87. We
    conclude that Colony reads
    Motiva too broadly. In Motiva, we stated: “An insurer’s right to participate in
    the settlement process is an essential prerequisite to its obligation to pay a
    settlement.” 
    Id. at 386 (emphasis
    added). Here, we cannot discern that the
    entirety of Uponor’s complaints seeks to recover “payment of a settlement.”
    Furthermore, Colony also fails to address the effect on the Motiva analysis
    of the subsequent decisions of the Texas Supreme Court in PAJ, Inc. v. Hanover
    Ins. Co., 
    243 S.W.3d 630
    , 633-37 (Tex. 2008) and Prodigy Commc’ns Corp. v.
    Agric. Excess & Surplus Ins. Co., 
    288 S.W.3d 374
    , 377-83 (Tex. 2009), discussing
    prejudice in the notice-of-suit context. Indeed, Motiva cited to the court of
    appeals’ decision in PAJ, which held that the analogous notice-of-suit provision
    was a condition precedent rather than a 
    covenant. 445 F.3d at 386
    n.5.
    However, the Texas Supreme Court reversed the court of appeals in PAJ, and
    declined to find that clause to be a “condition 
    precedent.” 243 S.W.3d at 635-36
    .
    10
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    Thus, from the record before us, under the current state of the law, we cannot
    conclude that the “breach of consent to settle” argument provides a separate
    basis upon which to affirm. Accordingly, we leave further consideration of this
    issue to the district court to address in the first instance on remand.
    Finally, the district court’s determination that Colony did not owe
    indemnity was based solely upon its duty to defend determination, so we reverse
    that determination as well. We note, however, that two years ago, the Texas
    Supreme Court disavowed cases suggesting that negation of the duty to defend
    always means there will be no duty to indemnify in D.R. Horton-Texas, Ltd. v.
    Markel Int’l Ins. Co., 
    300 S.W.3d 740
    , 745 (Tex. 2009). “These duties are
    independent, and the existence of one does not necessarily depend on the
    existence or proof of the other. . . . Where disputed facts are proven in the
    liability case, whether none, some, or most of the material coverage facts will
    have been established in that underlying suit depends on the circumstances of
    the case and other legal and equitable principles.” 
    Id. CONCLUSION Based on
    the foregoing, we REVERSE the district court’s holding that
    Colony had no duty to defend or indemnify Unique and REMAND for a
    determination by the district court in the first instance of the merits, if any, of
    Colony’s remaining arguments.
    11
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    EDITH BROWN CLEMENT, Circuit Judge, dissenting:
    The majority goes too far in remanding to the district court. The district
    court clearly erred in finding no duty to defend by looking to extrinsic evidence
    to support its determinations. I join the majority insofar as it reverses the ruling
    of the district court based on the introduction of extrinsic evidence. However,
    because Unique breached the consent-to-settle provision of the insurance
    contract, summary judgment was proper.
    The insurance contract between Unique and Colony included a consent-to-
    settle provision which limited Colony’s liability if Unique entered a settlement
    without Colony’s consent. Such a provision protects insurers when insureds
    exclude the insurer from the settlement negotiations but still expect the insurer
    to foot the bill. Colony urges us to affirm the district court’s grant of summary
    judgment because Unique settled specific claims with Uponor without Colony’s
    consultation or involvement. The majority is skeptical of Colony’s claim, but is
    remanding to the district court to evaluate the consent-to-settle provision.
    I do not find it necessary to remand to the district court. We may affirm
    the district court’s grant of summary judgment on any grounds supported by the
    record. Griffin v. United Parcel Serv., Inc., 
    661 F.3d 216
    , 221 (5th Cir. 2011).
    I would affirm because Unique breached the consent-to-settle provision of the
    insurance contract.
    Unbeknownst to Colony, Unique engaged in settlement negotiations and
    reached a settlement agreement with Uponor for at least some of the underlying
    claims. The emails indicate that Unique was taking “responsib[ility] for any
    claims arising out of defective product,” and “agreed to issue a check for 50% of
    the total claim of $17,478.22 in full settlement of these claims” for swivel nut
    liability. By voluntarily assuming obligations and incurring expenses without
    12
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    No. 11-20355
    Colony’s consent, Unique breached the consent-to-settle provision of the
    insurance contract.
    In Motiva Enterprises, L.L.C. v. St. Paul Fire & Marine Insurance Co., this
    court held that an insurer could properly deny coverage under Texas law when
    the insured entered a settlement agreement without consulting the insurer,
    tendering the settlement to the insurer, or permitting the insurer to participate
    in the settlement decision. 
    445 F.3d 381
    , 386 (5th Cir. 2006). The logic of
    Motiva applies to Unique’s settlement. Unique neither informed Colony of the
    settlement negotiations, nor did Unique invite Colony to participate in the
    settlement. Unique, in an effort to protect its business relationship with Uponor,
    agreed to accept liability for future claims and settled the past claims for a
    specific sum.   Colony’s exclusion triggered the consent-to-settle provision.
    Colony was prejudiced by the settlement both because it would likely be forced
    to pay the settlement amount and it would be bound by any admissions made by
    Unique. Under Motiva, this prejudicial breach justifies denying coverage.
    There was sufficient evidence before this court to hold that the settlement
    between Unique and Uponor breached the consent-to-settle provision of the
    insurance contract, prejudicing Colony. The consent-to-settle provision exists
    to prevent just this sort of behavior by insureds. When Unique violated the
    provision, coverage was voided. Because summary judgment could be affirmed
    on the basis of voided coverage, I respectfully dissent.
    13
    

Document Info

Docket Number: 11-20355

Citation Numbers: 487 F. App'x 888

Judges: Stewart, Clement, Graves

Filed Date: 8/24/2012

Precedential Status: Non-Precedential

Modified Date: 10/19/2024

Authorities (26)

Nautilus Insurance v. Zamora , 114 F.3d 536 ( 1997 )

King v. Dallas Fire Insurance Co. , 45 Tex. Sup. Ct. J. 1224 ( 2002 )

Potomac Insurance v. Jayhawk Medical Acceptance Corp. , 198 F.3d 548 ( 2000 )

Zurich American Insurance Co. v. Nokia, Inc. , 51 Tex. Sup. Ct. J. 1340 ( 2008 )

Prodigy Communications Corp. v. Agricultural Excess & ... , 52 Tex. Sup. Ct. J. 475 ( 2009 )

Trinity Universal Insurance v. Employers Mutual Casualty Co. , 592 F.3d 687 ( 2010 )

PAJ, Inc. v. Hanover Insurance Co. , 51 Tex. Sup. Ct. J. 302 ( 2008 )

Don's Building Supply, Inc. v. Onebeacon Insurance Co. , 51 Tex. Sup. Ct. J. 1367 ( 2008 )

Warrantech Corp. v. Steadfast Insurance Co. , 2006 Tex. App. LEXIS 10241 ( 2006 )

Canutillo Independent School District v. National Union ... , 99 F.3d 695 ( 1996 )

National Union Fire Insurance Co. of Pittsburgh v. ... , 40 Tex. Sup. Ct. J. 353 ( 1997 )

Northfield Insurance v. Loving Home Care, Inc. , 363 F.3d 523 ( 2004 )

Laura Marie Rhodes v. Chicago Insurance Company, a Division ... , 719 F.2d 116 ( 1983 )

Two Pesos, Inc. v. Gulf Insurance Co. , 901 S.W.2d 495 ( 1995 )

Griffin v. United Parcel Service, Inc. , 661 F.3d 216 ( 2011 )

Heyden Newport Chemical Corp. v. Southern General Insurance ... , 387 S.W.2d 22 ( 1965 )

Argonaut Southwest Insurance Company v. Maupin , 17 Tex. Sup. Ct. J. 40 ( 1973 )

Gonzales v. American States Insurance Co. of Texas , 1982 Tex. App. LEXIS 3895 ( 1982 )

Allstate Insurance Co. v. Hallman , 48 Tex. Sup. Ct. J. 474 ( 2005 )

Ooida Risk Retention Group, Inc. v. Williams , 579 F.3d 469 ( 2009 )

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