In the Court of Appeals Second Appellate District of Texas at Fort Worth No. 02-23-00245-CV ZURICH AMERICAN INSURANCE § On Appeal from the 352nd District Court COMPANY, AS SUCCESSOR BY MERGER TO MARYLAND CASUALTY COMPANY, Appellant § of Tarrant County (352-287082-16) V. THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, AS § March 13, 2025 SUCCESSOR TO BURLINGTON NORTHERN RAILROAD COMPANY, AND AS SUCCESSOR IN INTERESTS TO GREAT NORTHERN RAILWAY COMPANY, Appellee § Memorandum Opinion by Justice Kerr

JUDGMENT This court has considered the record on appeal in this case and holds that there was error in part of the trial court’s judgment. It is ordered that the trial court’s judgment is affirmed in part and reversed in part. We reverse that portion of the trial court’s judgment granting Appellee The Burlington Northern and Santa Fe Railway Company, as Successor to Burlington Northern Railroad Company, and as Successor in Interests to Great Northern Railway Company’s (BNSF) summary-judgment motion in its entirety and denying Appellant Zurich American Insurance Company, as Successor by Merger to Maryland Casualty Company’s (Zurich) exhaustion motion for summary judgment in its entirety and render judgment granting Zurich’s motion and denying BNSF’s solely on the issue of counting occurrences.

We vacate the trial court’s declaration that “[e]ach Plaintiff’s alleged exposure in the Libby Lawsuits constitutes a separate accident or occurrence,” and in its place, we modify the judgment so that the judgment’s declaratory relief reads as follows: “BNSF’s complained-of conduct giving rise to the plaintiffs’ claims against BNSF in the Libby Lawsuits constituted a single accident or occurrence.”

We affirm the remainder of the trial court’s final judgment.

It is further ordered that each party shall bear their own costs of this appeal.

SECOND DISTRICT COURT OF APPEALS

By _/s/ Elizabeth Kerr__________________ Justice Elizabeth Kerr