Evanston Insurance Company v. Mid-Continent Casual
Opinion
This is a dispute between a primary liability insurer and an excess liability insurer over the number of "accidents" that took place under an insurance policy. Over a ten-minute period on November 15, 2013, the insured's Mack truck struck (1) a Dodge Ram, (2) a Ford F150, (3) a Honda Accord, (4) a toll plaza, and (5) a Dodge Charger. The insurers' disagreement focuses on the final three collisions. In previous state court litigation, multi-million-dollar settlements were reached between the various claimants and the insurance companies. But the Mack truck's primary insurer refused to contribute more than $1 million toward the settlements of the final three collisions, claiming that they were part of a single "accident" under its policy and that $1 million was the primary insurer's limit of liability per accident. The excess insurer sued the primary insurer in federal district court. The parties stipulated to the facts and filed cross motions for summary judgment as to whether the final three impacts constituted a single "accident" or separate "accidents" under the policy and Texas law. Although the district court held that two accidents occurred, we reverse because there was only one.
I.
Since the case was submitted below on a stipulation, there is no dispute as to the material facts. Mid-Continent Casualty Company issued a commercial auto insurance *145 policy to Global Waste Services, LLC. The policy had a $1 million per-accident limit of insurance and required Mid-Continent to defend Global until the policy limit was exhausted. The policy provides in relevant part:
SECTION II-LIABILITY COVERAGE
A. Coverage
We will pay all sums an "insured" legally must pay as damages because of "bodily injury" or "property damage" to which this insurance applies, caused by an "accident" and resulting from the ownership, maintenance or use of a covered "auto".
...
C. Limit of Insurance
Regardless of the number of covered "autos", "insureds", premiums paid, claims made or vehicles involved in the "accident", the most we will pay for the total of all damages and "covered pollution cost or expense" combined resulting from any one "accident" is the Limit of Insurance for Liability Coverage shown in the Declarations.
All "bodily injury", "property damage" and "coverage pollution cost or expense" resulting from continuous or repeated exposure to substantially the same conditions will be considered as resulting from one "accident".
...
SECTION V-DEFINITIONS
A. "Accident" includes continuous or repeated exposure to the same conditions resulting in "bodily injury" or "property damage".
In addition to the primary insurance policy, Global held an excess liability policy from Evanston Insurance Company with a $5 million per-accident liability limit. We are concerned with the terms of the primary insurance policy.
On November 15, 2013, a Global employee named Marlon Diggs lost control of his Mack truck on North Beltway 8 in Houston. Witnesses say that Diggs was driving the truck erratically. At approximately 11:04 a.m., the Mack truck hit a Dodge Ram in the 800 block of North Beltway 8. Three minutes later, the Mack truck struck a Ford F150 in the 2500 block of North Beltway 8. Two minutes after that, the Mack truck approached a toll plaza and caused the series of collisions which are at issue.
At approximately 11:09 a.m., the Mack truck struck a Honda Accord that was waiting in line at the toll plaza in the 3300 block of North Beltway 8. Joseph Williams was driving the Accord and his wife, Laurie Williams, was the only passenger. The Mack truck pushed the Accord forward more than one hundred feet into the crash attenuator barrels separating two toll lanes, where the Accord came to rest perpendicular to the road. Although Joseph Williams was not seriously injured in the collision, Laurie Williams sustained severe injuries.
Once separated from the Accord, the Mack truck continued to travel through the automatic toll lane for approximately sixty-six feet before striking a Dodge Charger driven by Gwenetta Powell. While travelling through the lane, the Mack truck struck the tollbooth, causing significant damage. After impacting the Charger, the Mack truck continued pushing the Charger until it crashed into the right-side retaining wall, pinning the Charger between the Mack truck and the wall. At some point between the Mack truck's impact with the Charger and the vehicles coming to rest against the wall, Diggs fell out of the truck. Diggs did not apply the brakes at any time from first striking the *146 Accord until the Mack truck crashed into the retaining wall. Powell and Diggs both died in the accident.
Relatives of Powell sued Global in state court, and the Williams family intervened. Additionally, Harris County made demands on Global for the cleanup and repair of the toll plaza. All the claims ultimately settled. The Williams family received $4.5 million-approximately $1 million from Mid-Continent and the remaining $3.5 million from Evanston. Mid-Continent withdrew from the litigation after settling with the Williams family, claiming exhaustion of its policy limit. Evanston then settled with the Powells and Harris County for $2.1 million and $75,000, respectively. Mid-Continent did not contribute to either settlement.
Evanston filed suit in federal court in Texas seeking reimbursement from Mid-Continent for a portion of the payments Evanston made on behalf of Global. Evanston also sought to recover the entirety of its defense costs. The parties stipulated to the relevant facts and filed cross motions for summary judgment. Evanston argued that Mid-Continent incorrectly construed all the collisions occurring after the Mack truck's impact with the Accord to be a single "accident." 1 According to Evanston, each separate impact between the Mack truck and another vehicle or object constituted a separate accident subject to separate liability limits. Mid-Continent asserted that under Texas law, there was only one accident because the only event that gave rise to the various injuries was Diggs's negligence.
The district court referred the motions to a magistrate judge, who concluded that under the policy language two accidents occurred. According to the magistrate, "[t]he collisions between the Mack truck and the Honda Accord and between the Mack truck and the Dodge Charger were separate accidents because they occurred independently, the former did not lead to the occurrence of the latter." The district court adopted the magistrate's recommendation over Mid-Continent's objection. The court entered judgment in favor of Evanston. The court concluded that Mid-Continent should have paid out a total of about $2,045,000 under the various settlements. Because Mid-Continent only paid $1 million in the underlying state litigation, the district court ordered it to pay Evanston about $1,045,000 plus the costs of Evanston's defense. Mid-Continent appeals that ruling.
II.
Because this case is before the court on cross motions for summary judgment, we review the district court's rulings de novo and construe all evidence and inferences in favor of the non-moving parties.
LCS Corr. Servs., Inc. v. Lexington Ins. Co.
,
III.
The parties agree that Texas law governs this diversity action and informs
*147
the interpretation of the Mid-Continent insurance policy. Under Texas law, the court must construe the policy according to the general rules of contract construction to give effect to the parties' intent.
Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd's London
,
A.
The policy defines "accident" to include "continuous or repeated exposure to the same conditions resulting in 'bodily injury' or 'property damage.' " Under the "Limit of Insurance" provision, the policy states that "[r]egardless of the number of covered 'autos,' 'insureds,' premiums paid, claims made or vehicles involved in the 'accident,' " the most Mid-Continent would pay for "the total of all damages ... resulting from any one 'accident' " was the policy limit of $1 million. Although the parties disagree on its meaning, neither Mid-Continent nor Evanston argues the policy is ambiguous. And Texas courts routinely interpret the term "accident" or its equivalent without finding ambiguity.
HEB
,
In fact, the policy's definition of "accident" is virtually identical to the definitions in other commercial liability policies.
See
For example, some policies define an accident or occurrence to include all injuries "resulting from the same general conditions,"
Foust v. Ranger Ins. Co.
,
B.
In any event, Texas applies the same approach-the "cause" approach-to interpreting all such provisions. Although the Supreme Court of Texas has never said so, we have repeatedly observed that "Texas courts agree that the proper focus in interpreting 'occurrence' is on the events that cause the injuries and give rise to the insured's liability, rather than on the number
*148
of injurious effects."
HEB
,
Certain other jurisdictions, such as Louisiana, have adopted an "effects" approach to interpreting insurance policies in which each separate claim arising from the insured's negligence is considered a separate occurrence.
Pennzoil-Quaker State Co. v. Am. Int'l Specialty Lines Ins. Co.
,
Federal courts attempting to understand the "cause" test typically begin with our decision in
Maurice Pincoffs Co. v. St. Paul Fire & Marine Ins. Co.
,
This approach has sometimes been called the "liability-triggering event" test. Despite occasional disagreement as to whether the test is conceptually distinct from the "cause" test, the
Pincoffs
approach has become widely accepted following its endorsement by a Texas appellate court in
Goose Creek Consol. ISD v. Cont'l Cas. Co.
,
Pincoffs
and
Goose Creek
clarified that to determine the number of occurrences under a policy, we count the number of acts by the insured which gave rise to liability. This clarification is helpful, but incomplete. It leaves unanswered the question of at what level of generality we define the insured's actions. In
HEB
, we answered that question by placing the emphasis on unbroken proximate causation. "While a single occurrence may result in multiple injuries to multiple parties over a period of time," we recognized in
HEB
that "if one cause is interrupted and replaced by another intervening cause, the chain of causation is broken and more than one occurrence has taken place."
HEB
,
In
HEB
, this court applied that rule to conclude that an HEB employee's sexual abuse of two different children, a week
*149
apart, at an HEB store constituted two separate occurrences under HEB's insurance policy.
HEB
has sometimes been misunderstood, including by the district court in this case. Some courts have interpreted
HEB
to mean that a so-called overarching cause can
never
constitute a single occurrence. They say courts must instead identify the "immediate cause" of the injuries.
See
Pennzoil-Quaker State Co. v. Am. Int'l Specialty Lines Ins. Co.
,
But what we actually said in
HEB
was "that when the underlying basis for liability is negligent supervision, yet the damage is caused by an intervening intentional tort, the court cannot look past the
immediate cause
of the damage for purposes of the insurance policy."
HEB
,
This understanding is confirmed both by Texas case law and by our most recent decisions. The seminal Texas case on the topic is
Foust
. In
Foust
, a farmer hired a pilot to crop dust his fields with herbicide. Some of the herbicide drifted onto neighboring tracts of land, damaging the neighbors' crops.
Foust
,
The crop dusting took almost three hours, and the neighbors argued that a finding of a single "occurrence" was inappropriate. They emphasized that the plane had landed several times to refuel during that period, and that the temperature, wind, and altitude varied during the several passes over different sections of the
*150
property.
In other words, because the court in
Foust
considered all the injuries to have been caused by the same continuous negligence of the insured, there was only one occurrence under the policy. This court recently reaffirmed that principle in
Seahawk Liquidating Trust v. Certain Underwriters at Lloyds London
,
Focusing on the decisions in
Goose Creek
and
HEB
, this court agreed with the insurers. We held that "[w]hen an occurrence is technically defined to include a series of losses arising from the same event, it includes only those losses
proximately caused
by that event."
As articulated in HEB , Foust , and Seahawk , the appropriate inquiry is whether there was one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damage. If so, then there was a single occurrence. If the chain of proximate causation was broken by a pause in the negligent conduct or by some intervening cause, then there were multiple occurrences, even if the insured's negligent conduct which caused each of the injuries was the same kind of negligent conduct.
C.
With these principles in mind, reversal of the district court is clearly appropriate. The district court based its decision on a misunderstanding of the case law. In short, the court believed that the "overarching cause" of injuries can never constitute a single occurrence under Texas law, and instead attempted to identify the "immediate causes" of the injuries that gave rise to the insured's liability. Because the insured did not become liable to anyone until his Mack truck collided with their vehicle, the court conceptualized each collision as a *151 separate event giving rise to liability. That was a mistake.
Texas law only prohibits courts from looking to the "overarching cause" of the injuries when the overarching cause is not a "proximate, uninterrupted, and continuing cause" of all the injuries.
See
HEB
,
The chain of causation remained unbroken on these facts. The ongoing negligence of the runaway Mack truck was the single "proximate, uninterrupted, and continuing cause" of all the collisions. After all, the parties agree that Diggs did not apply the brakes at any time from first striking the Accord until all the vehicles came to rest. The language of the contract provides that all injuries-no matter the number of vehicles involved or the number of claims made-arising from continuous or repeated exposure to substantially the same conditions are considered a single accident. The broad language of the policy must be given effect.
See
Foust
,
We REVERSE the district court and RENDER judgment in favor of Mid-Continent.
As for the two collisions which occurred before the Mack truck hit the Accord, neither the district court nor the parties discuss them, probably because the damage was minor and the excess coverage not implicated.
The district court also does an unconvincing job of distinguishing
T
win City Fire Ins. Co. v. Ill. Nat'l Ins. Co.
, No. 1:11-cv-00144-SS, LEXIS 197629 (W.D. Tex. Mar. 12, 2012), a case in which a defect in the insured's road construction caused three separate car accidents on different days. The court held that the three accidents constituted a single occurrence, emphasizing the broad language of the policy and that all the injuries were proximately caused by a single negligent act of the insured: the defective road construction.
Id.
at *7. That result would be consonant with the approach described here.
Cf.
General Star
,
Reference
- Full Case Name
- EVANSTON INSURANCE COMPANY, Plaintiff-Appellee v. MID-CONTINENT CASUALTY COMPANY, Defendant-Appellant
- Cited By
- 13 cases
- Status
- Published