The Declaratory Judgment Act “does not by itself provide statutory authority to award attorney's fees that would not otherwise be available under state law in a diversity action.” Westchester Surplus Lines Ins. Co. v. Maverick Tube Corp., 722 F.Supp.2d 787, 799 (S.D. Tex. 2010) (quoting Mercantile Nat'l Bank v. Bradford Co., 850 F.2d 215, 218 (5th Cir. 1988)).
Id. at 207. As the Southern District of Texas observed in Westchester Surplus Lines Co. v. Maverick Tube Corp. , 722 F. Supp. 2d 787, 797 (S.D. Tex. 2010), the insured in Pincoffs was not the seed manufacturer, but rather the importer and wholesale distributor who had no role in causing the contamination. In other words, it was the insured's sale of the already contaminated seed in Pincoffs which gave rise to its liability, not the preexisting contamination of the seed.
leniency should be applied to appellees with regard to waiver rule); Dickenson v. Auto Center Manf. Co., 733 F.2d 1092, 1101 (5th Cir. 1983) (finding that appellee did not waive his right to urge arguments by his failure to raise issue by cross-appeal or argue it in appellants's appeal); Conway v. Chem. Leaman Tank Lines, Inc., 644 F.2d 1059, 1062 (5th Cir. 1981) (rejecting defendant's argument that appellee abandoned claim by failing to file a cross-appeal raising the issue noting "the lack of authority cited to require compulsory cross-appeal" and that "a cross-appeal by the plaintiffs would have raised an issue not decided by the district court that, in all likelihood, would not have been considered by the appellate court, at least without further remand to the trial court for initial decision."); Golden Hour Data Systems v. emsCharts, Inc., 2014 WL 8708239, at * 5 (E.D. Tex. Mar. 31, 2014) (finding that appellee did not waive arguments on remand that he failed to raise on appeal); Westchester Surplus Lines Ins. Co. v. Maverick Tube Corp., 722 F. Supp.2d 787, 794 (S.D. Tex. 2010) ("Westchester's failure to raise the multiple-occurrences issue on appeal did not waive or forfeit its right to raise it on remand."). In their reply brief, MPE and MFM argue that "[t]he Fifth Circuit routinely applies law of the case doctrine to find waiver by appellees like DeJoria."
Federal and state courts in Texas commonly use the term "commercial liability policy" when referring to a primary policy and contrast such a policy with an "excess policy." See RLI Ins. Co. v. Phila. Indem. Ins. Co., 421 F. Supp. 2d 956, 958-59 (N.D. Tex. 2006) (distinguishing a commercial liability policy, which the court defined as the "Primary Policy," and a commercial excess policy, which the Court defined as the "Excess Policy"); Westchester Surplus Lines Ins. Co. v. Maverick Tube Corp., 722 F. Supp. 2d 787, 791 (S.D. Tex. 2010) (distinguishing a commercial general liability insurance policy, which the court defined as the "Primary Policy," and an umbrella insurance policy, which the Court defined as the "Umbrella Policy"); Envtl. Procedures, Inc. v. Guidry, 282 S.W.3d 602, 607 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (explaining that a party obtained "a commercial general liability ('GCL') policy with a limit of $1 million for any one accident or occurrence and an umbrella policy with a $3.5 million limit for any one accident or occurrence"); Employers Ins. Co. of Wausau v. Penn-Am. Ins. Co., 705 F. Supp. 2d 696, 700-01 (S.D. Tex. 2010) (seller agreed to purchase commercial general liability under which buyer was an additional insured; both parties treated the insurance that seller purchased as primary and seller's insurance defended the additional insured). These judicial decisions' view that a "commercial general liability" policy is one providing primary coverage is consistent with the followin
For its part, Mitsui Sumitomo has identified a litany of case law from other jurisdictions supporting the proposition that a single act or continuum of acts by an insured giving rise to liability constitutes a single occurrence, even in cases of multiple injuries and the intervening acts of third parties. (See Docket Entry 30 at 14-16 (citing, inter alia, Westchester Surplus Lines Ins. Co. v. Maverick Tube Corp., 722 F. Supp. 2d 787, 795 (S.D. Tex. 2010) ("Under [the cause] approach, `an insured's single act is considered the accident from which all claims flow.'") (quoting Kansas Fire and Cas. Co. v. Koelling, 729 S.W.2d 251, 252 (Mo. App. 1987)); Fireman's Fund Ins. Co. v. Scottsdale Ins. Co., 968 F. Supp. 444, 447-48 (E.D. Ark. 1997) (treating improper preparation of food by insured as sole occurrence rather than insured's multiple sales or resulting multiple injuries as multiple occurrences); Bomba v. State Farm Fire Cas. Co., 879 A.2d 1252, 1255-57 (N.J. Super. 2005) (ruling that insured's negligent supervision, which resulted in numerous injuries, was one "occurrence"); Atchison, Topeka Santa Fe Ry. v. Stonewall Ins. Co., 71 P.3d 1097, 1123-24 (Kan. 2003) (deeming thousands of noise-induced hearing loss claims spanning many years as one "occurrence" because failure to protect employees from noise caused insured's liability); RLI Ins. Co. v. Simon's Rock Early Coll., 765 N.E.2d 247, 251-55 (Mass. App. Ct. 2002) (holding that in
However, "under Texas law, insurance policies are interpreted using the ordinary rules of contract interpretation, with all terms read together and each clause and word given effect." Westchester Surplus Lines Insurance Co. v. Maverick Tube Corp., 722 F.Supp.2d 787, 794 (S.D. Tex. 2010).