Natl Un Fire Ins v. Admiral Insurance Co

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 99-21105
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NATIONAL UNION FIRE INSURANCE COMPANY
OF PITTSBURGH, PENNSYLVANIA,
Plaintiff-Appellant,
VERSUS
ADMIRAL INSURANCE COMPANY, ET AL.,
Defendants,
ZURICH INSURANCE COMPANY,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-98-CV-3401)
_________________________
August 9, 2000
Before SMITH and DENNIS, Circuit Judge.
Judges, and ROETTGER,* District
* *
District Judge of the Southern District of (...continued)
(continued...) Florida, sitting by designation.
PER CURIAM:**
National Union Fire Insurance
Company seeks a declaratory judgment
explicating Zurich Insurance Company’s
liability for costs of defense and indemnity
arising from their alleged mutual insurance of
Albertson’s, Inc., Epstein Construction, Inc.,
and others. The district court declared that
Zurich had no liability for defense or
indemnification.
In reaching that decision, the district
court relied on the proposition that “the
determinative issue for additional insured
coverage is whether the allegations in the
underlying lawsuit involve claims of negligence
against the named insured” (internal brackets
and ellipses omitted). This court, in Mid-
Continent Casualty Co. v. Swift Energy Co.,
206 F.3d 487 (5th Cir. 2000), declared that
pro position of law to be invalid in these
circumstances. In a case presenting materially
indistinguishable facts, we explained that,
under Texas law, liability arises for additional
insureds “even if [the additional insureds] sole
negligence directly caused the liability.” Id. at
499.
We are now constrained, therefore, to
REVERSE the order of the district court
granting summary judgment and declaratory
relief to Zurich and REMAND for further pro-
ceedings not inconsistent with this opinion.
**
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determined that this opinion should not be
published and is not precedent except under the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.
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