REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-20898

 

CORNHILL INSURANCE PLC, 

HANSA MARINE INSURANCE CO U K LTD;

ANGLO AMERICAN INSURANCE COMPANY, LIMITED;

UNDERWRITERS AT LLOYD’S LONDON,

Plaintiffs-Appellees,

versus

VALSAMIS, INC.;

CHERYL GISENTANER,

Defendants-Appellants.

*****************************************************************

AMERICAS INSURANCE COMPANY

Plaintiff -Appellee

versus

VALSAMIS, INC.; 

CHERYL GISENTANER,

Defendants-Appellants

*****************************************************************

OCEAN MARINE INDEMNITY CO.,

Plaintiff-Appellee

versus

VALSAMIS, INC; 

CHERYL GISENTANER,

Defendants-Appellants

 

Appeal from the United States District Court

for the Southern District of Texas

 

February 7, 1997
 

* District Judge of the Southern District of Texas, sitting by

designation.

 

1The policies in question are a comprehensive general

liability policy issued by Americas Insurance Company, three

policies issued by Cornhill Insurance PLC providing comprehensive

general liability and excess comprehensive general liability

coverage, and an umbrella policy issued by Ocean Marine Indemnity

Co. Appellees, plaintiffs in the action below, will be referred to

as “insurers.”

2

Before KING and HIGGINBOTHAM, Circuit Judges, and LAKE*, District

Judge.

HIGGINBOTHAM, Circuit Judge:

This suit is the consolidation of three actions filed by

insurers and underwriters seeking a declaration that insurance

policies1 issued to Valsamis, Inc. do not cover incidences of

sexual harassment. The district court granted summary judgment for

the insurers and Cheryl Gisentaner, assignee of Valsamis, Inc.’s

claims and defendant in the action below, appeals. We find that

the claims of sexual harassment do not raise a potential for

coverage under the policies, and affirm the decision of the

district court.

I.

On October 29, 1992, Cheryl Gisentaner filed a lawsuit in

Texas state court against her former employer, Valsamis Inc., her

supervisor at Valsamis, Christos Papapetrou, and the president of

Valsamis Inc., Dimitrios Valsamis. Gisentaner alleged that from

approximately March 1992 until her resignation on September 2,

1992, Papapetrou made sexual remarks to her, touched her in an

inappropriate and offensive manner, exposed himself, made

threatening and obscene gestures, and eventually attempted to force
3

himself on her in a supply room. When she reported this behavior

to Valsamis in June of 1992, he failed to address Papapetrou’s

conduct, tried to kiss her, asked her out repeatedly, and arranged

to meet her alone under pretenses of work. In her initial

complaint, Gisentaner sought damages for intentional and negligent

infliction of emotional distress, tortious assault and battery,

intentional and negligent invasion of privacy, and negligent hiring

and supervision. Denial of coverage premised on the allegations in

this complaint was sent to Valsamis on September 8, 1993.

Subsequently, Gisentaner filed a first amended complaint, adding a

claim for failure to maintain a safe work environment. Coverage

premised on this amended complaint was denied on January 27, 1994.

The defendants in the state court sexual harassment suit

settled with Gisentaner for an agreed judgment of $1,250,000, an

assignment of Valsamis, Inc.’s claims against its insurers,

$110,000 paid by Valsamis, Inc. to Gisentaner in consideration for

the assignment, and a covenant by Gisentaner not to execute on the

judgment against Valsamis. One month after the settlement,

Gisentaner filed a second amended complaint which deleted all

intentional tort claims.

The insurers then brought the present action, seeking a

judgment declaring that they had no duty to defend against

Gisentaner’s state court claims and that their policies do not

provide coverage for the claims settled by Valsamis and Gisentaner.

Subsequently, Gisentaner filed suit against the insurers in state

court as a judgment creditor of Valsamis and as an assignee of
4

Valsamis’ cause of action for bad faith, insurance code violations

and deceptive trade practices. Defendants in Gisentaner’s state

court suit included all of the plaintiffs in this declaratory

judgment action and the issuers of two employer liability policies

as well as the agent and broker for all of the policies. 

Gisentaner attempted to dismiss this declaratory judgment

action, claiming that the extra parties in the state court suit

were indispensable to the federal suit and that their mandatory

joinder would defeat diversity. The district court judge withheld

ruling on this motion until September 26, 1995, when he denied it

and also granted summary judgment in favor of the insurers.

II.

Gisentaner claims that the district court should not have

exercised jurisdiction in this case because it failed to join

indispensable nondiverse parties and abused its discretion in not

staying the federal suit in favor of the state court suit.

A.

Fed R. Civ. P. 19 allows joinder of necessary parties unless

that joinder would defeat diversity jurisdiction. If jurisdiction

is threatened, the court must determine whether the potentially

joined parties are indispensable, that is, if the court finds that,

as a matter of equity and good conscience, the lawsuit cannot

proceed without them. Sandefer Oil & Gas, Inc. v. Duhon, 871 F.2d

526, 529 (5th Cir. 1989). The threat of multiple litigation will

not make a party indispensable but the threat of inconsistent

obligations will. Shelton v. Exxon Corp., 843 F.2d 212, 218 (5th
5

Cir. 1988). Fed. R. Civ. P. 19(b) lists four factors for courts to

consider in deciding whether a party is indispensable: 1)

prejudice to an absent party or others in the lawsuit from a

judgment; 2) whether the shaping of relief can lessen prejudice to

absent parties; 3) whether adequate relief can be given without

participation of the party; and 4) whether the plaintiff has

another effective forum if the suit is dismissed.

Gisentaner claims that the agent and broker for the policies

in this case are indispensable parties because Cornhill and OMI

asserted lack of notice as a defense to coverage. Gisentaner also

claims that because OMI is an umbrella policy, the issuer of its

underlying employer liability policy is an indispensable party.

None of the factors listed in Fed. R. Civ. P. 19(b) cut in favor of

joining the parties Gisentaner identified as indispensable. The

district court’s decision rested solely on contractual language in

the policies and those parties with an interest in the

interpretation of that language were present in this action.

B.

Gisentaner also claims that the district court abused its

discretion in refusing to dismiss this suit. A district court has

broad discretion to retain or dismiss a declaratory judgment suit

where a parallel state court suit has been filed. Brillhart v.

Excess Ins., 316 U.S. 491 (1942). The breadth of this discretion

was recently reaffirmed by the Supreme Court in Wilton v. Seven

Falls Co., 115 S. Ct. 2137, 2144 (1995). The district court in

this case found that the insurers’ suits were not anticipatorily
6

filed, and that no indispensable parties were excluded. We do not

find this action to be an abuse of discretion.

III.

Under Texas law, an insurer’s duty to defend is triggered

where the allegations in the plaintiff’s pleadings raise a

potential for coverage under the policy. Argonaut Southwest Ins.

Co. v. Maupin, 500 S.W.2d 633, 635 (Tex. 1973). An insurer bears

the burden of proving that the allegations contained in the

underlying plaintiff’s petition are excluded from coverage and any

doubt is resolved in favor of the insured. Adamo v. State Farm

Lloyds Co., 853 S.W.2d 673 (Tex. App.-Houston 1993, writ denied),

cert. denied, 114 S. Ct. (1994). This burden includes proving that

none of the claims asserted potentially fall within coverage.

Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d

22, 26 (Tex. 1965). The duty to defend is determined by examining

the latest amended pleading upon which the insurer based its

refusal to defend the action. Rhodes v. Chicago Insurance Co., 719

F.2d 116, 120 (5th Cir. 1983). 

A. Americas Policy

The comprehensive general liability policy issued to Valsamis

by Americas covered bodily and personal injury. For bodily injury,

the policy restricted coverage to damages caused by an

“occurrence,” but there was no occurrence requirement for claims of

personal injury. The definition of personal injury included injury

arising out of “false arrest, detention, imprisonment or malicious
 

2Gisentaner does not argue that Americas’ bodily injury

provision covers her claims. 

7

prosecution,” or “a publication or utterance . . . in violation of

an individual’s privacy.” 

Gisentaner seeks coverage for her claims in the definition of

“personal injury” in the Americas policy.2 In her original

petition in state court, Valsamis alleged invasion of privacy,

which is specifically referenced as a personal injury within

Americas policy. She also now alleges that the facts in her

complaint state a claim for false detention, also covered in the

definition of personal injury.

Texas courts do not look to conclusory assertions of a cause

of action in determining a duty to defend. Instead, they look to

see if the facts giving rise to the alleged actionable conduct, as

stated within the eight corners of the complaint, constitute a

claim potentially within the insurance coverage. Adamo v. State

Farm Lloyds Co., 853 S.W.2d 673 (Tex. App.-Houston 1993, writ

denied). We will therefore look to see if Gisentaner alleged facts

that constitute a claim for invasion of privacy or false

imprisonment under Texas law to determine whether Americas had a

duty to defend.

1. Invasion of Privacy

The Texas Supreme Court first recognized the tort of invasion

of privacy in Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex.

1973). Texas law now recognizes three distinct torts, any of which
 

3Texas Indus. Accident Bd. actually established four types of

invasion of privacy but the Texas supreme court has since abolished

the fourth, false light invasion of privacy. Cain v. Hearst Corp.,

878 S.W.2d 577 (Tex. 1994)

8

constitutes an invasion of privacy.3 Industrial Found. of the

South v. Texas Indus. Accident Bd., 540 S.W.2d 668, 682 (Tex.

1976), cert. denied, 430 U.S. 931 (1977). Gisentaner did not

allege that Valsamis publicly disclosed embarrassing private facts

about her or appropriated her name or likeness. Gisentaner’s

allegations come closest to fitting the cause of action for

invasion of privacy where there has been “intrusion upon the

plaintiff’s seclusion or solitude, or into his private affairs.”

Texas Indus. Accident Bd., 540 S.W.2d at 682. However, no Texas

court has considered whether sexual harassment is cognizable under

this definition, therefore we must assess whether Texas courts

could find that Gisentaner stated a claim for invasion of the right

to privacy. 

To state a cause of action under this theory of invasion of

the right to privacy, Texas case law requires proof that there was

an intentional intrusion upon the solitude or seclusion of another

or his private affairs or concerns that is highly offensive to a

reasonable person. Farrington v. Sysco Food Serv., Inc., 865

S.W.2d 247, 252 (Ct. App.-Houston 1993); Gill v. Snow, 644 S.W.2d

222, 224 (Ct. App.-Ft. Worth 1982). However, at least one Texas

court has noted that this type of invasion of privacy “is generally

associated with either a physical invasion of a person’s property

or eavesdropping on another’s conversation with the aid of
9

wiretaps, microphones or spying.” Wilhite v. H.E. Butt Co., 812

S.W.2d 1, 6 (Tex. App.-Corpus Christi 1991). Gisentaner made no

such allegation in her complaint. In contrast, she alleged that

Valsamis and Papapetrou made offensive comments and inappropriate

advances toward her. These facts would not be cognizable as a

cause of action for invasion of privacy under Texas law.

2. False Imprisonment

Americas’ policy defines personal injury to include claims of

false imprisonment. Gisentaner claims that the incident where

Papapetrou tried to force himself on her in a closet at work states

a cause of action for false imprisonment under Texas law. Texas

law defines false imprisonment as willful detention without consent

and without authority of law. Sears, Roebuck & Co. v. Castillo,

693 S.W.2d 374, 375 (Tex. 1985). However, Gisentaner alleged that

Papapetrou attempted to force himself on her in an unlocked supply

room accessible to other employees. She did not allege that he

kept her there by physical force or by threatening her. She did

not allege detention and therefore her allegations are insufficient

to state a claim for false imprisonment under Texas law. See

Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640 (Tex.

1995).

B. Cornhill Policies

Unlike Americas, Cornhill’s comprehensive general liability

policy included an employment exclusion that applied to both bodily

and personal injury. However, Cornhill’s policy also contained a

personal injury endorsement that extended coverage to include
10

liability for personal injury arising from Valsamis’ shiprepairing

operations.

The employment-related claim exclusion in Cornhill’s policy

precluded coverage for:

Any liability of whatsoever nature of the Assured,

whether the Assured may be liable as an employer or in

any other capacity whatsoever, to any of its Employees,

including without limiting the generality of the

foregoing any liability under any workers’ compensation

law, unemployment compensation law, disability benefit

law, United States Longshoremen’s and Harbor Workers’

Compensation Act, Jones Act, Death on the High Seas Act,

General Maritime Law, Federal Employer’s Liability Act,

or any similar laws or liabilities, and/or whether by

reason of the relationship of master and servant or

employer and employee or not . . . [and] [a]ny liability

of any Employee of the Assured with respect to bodily

and/or personal injury to or illness or death of another

Employee of the Assured sustained in the course of such

employment.

The wording of this employment exclusion is very broad.

Gisentaner’s state court action complained of negligent acts by

Valsamis, Inc. as her employer. Negligent hiring and supervision

necessarily involve the employment relationship and therefore this

exclusion precludes coverage. The injuries inflicted by Valsamis

and Papapetrou all occurred while Gisentaner was employed by

Valsamis and were sustained in the course of her employment and are

therefore also excluded. Our interpretation of this employment

exclusion is supported by Texas law. In Aberdeen Ins. Co. v.

Bovee, 777 S.W.2d 442 (Tx. App.-El Paso 1989), the court considered

a similar employment exclusion and found that it was broad enough

to encompass sexual harassment and negligent hiring and supervision

claims. Bovee, 777 S.W.2d at 444.
11

Gisentaner argues that the language in Cornhill’s policy is

similar to that in Western Heritage Insurance Company v. Magic

Learning Centers and Child Care, Inc., 45 F.3d 85, 88-89 (5th Cir.

1995), and that this employment-related claim exclusion only

excludes claims against Valsamis, Inc. because it is the only

employer. However, the policy language in Magic Years did not

contain the language found in Cornhill’s policy excluding coverage

for liability of one employee to another. Therefore, the holding

in Magic Years that the employment exclusion only applied to claims

against the employer and not to claims against the president and

secretary of the organization does not control our decision here.

Gisentaner also argues that because her secretarial duties

included accounting and scheduling for shiprepairing operations,

she should benefit from the shiprepairing endorsement. The

endorsement covers:

legal liability of the Assured for death or personal

injury occurring in the course of and arising from the

shiprepairing operations of the Assured but in no event

. . . for any claim arising directly or indirectly under

. . . Common Law Liability in respect of loss of life,

bodily injury to, or illness of any workman or other

person employed in any capacity whatsoever by the

Assured, his agents or sub-contractors when such loss of

life, bodily injury to, or illness arises out of or in

the course of the employment of such workman or other

person.

Gisentaner’s argument, however, ignores the requirement that the

personal injury must arise from the shiprepairing operations.

Gisentaner’s injuries arose from sexual harassment, not the

administrative support work she did for the shiprepairing

operations.
12

C. OMI Policy

OMI provided a umbrella excess liability policy that covered

damages on account of personal injuries caused by or arising out of

an occurrence. The personal injury definition included invasion of

privacy, false detention, and discrimination. OMI’s policy also

originally contained an employee exclusion but this was eliminated

when Valsamis purchased employee buy-back coverage.

Because OMI’s policy does not contain an employment exclusion,

we must determine whether Gisentaner’s claims fall within the

definition of personal injury in OMI’s policy. Under OMI’s policy,

personal injury coverage requires an occurrence. OMI’s policy

defines an occurrence as “an accident or a happening or event or a

continuous or repeated exposure to conditions which unexpectedly

and unintentionally results in personal injury, property damage or

advertising liability.”

Gisentaner claims that we are bound to accept the

characterization of Valsamis’ acts as negligent because judgment

was entered on this basis in the state court as a result of the

settlement between herself and Valsamis. However, in Columbia

Mutual Ins. Co. v. Fiesta Mart, 987 F.2d 1124 (5th Cir. 1993), a

panel of this court declined to bind an insurer to findings in a

state court suit where coverage was not at issue. Fiesta Mart, 987

F.2d at 1127. Therefore, we must characterize the facts alleged in

Gisentaner’s complaint to determine whether they fall within the

language of OMI’s policy.
13

Gisentaner also insists that we look at each individual cause

of action she listed in her complaint to determine whether she

alleged an “occurrence.” In her original complaint, Gisentaner

alleged negligent infliction of emotional distress, negligent

invasion of privacy, and negligent hiring and supervision. In

1993, the Texas Supreme Court eliminated negligent infliction of

emotional distress as a cause of action. Boyles v. Kerr, 855

S.W.2d 593, 593 (Tex. 1993). Texas law also requires proof of

intent for an invasion of privacy cause of action. See Billings v.

Atkinson, 489 S.W.2d 858, 859 (Tex. 1973); Childers v. A.S., 909

S.W.2d 282, 291 (Ct. App.-Ft. Worth 1995); but see Wheeler v.

Yettie Kersting Memorial Hospital, 866 S.W.2d 32, 54 (Tex. App.-

Houston 1993, no writ)(finding that the question of whether Texas

law recognizes a claim of negligent invasion of privacy is still an

open question). Therefore, the only negligence claims available

under Texas law are for negligent supervision and hiring of

Papapetrou.

This circuit has held that where liability premised on

negligence is related to and interdependent of other tortious

activities, the “ultimate issue” is whether the tortious activities

themselves are encompassed by the “occurrence” definition. New

York Life Ins. v. Traveler’s Ins. Co., 92 F.3d 336 (5th Cir. 1996);

Fiesta Mart, Inc., 987 F.2d at 1128 (citing Thornhill v. Houston

Gen. Lloyds, 802 S.W.2d 127, 130 (Tex. App.-Fort Worth 1991-no

writ); Centennial Ins. Co. v. Hartford Accident and Indemnity Co.,

821 S.W.2d 192, 1994 (Tex. App.-Houston 1991, no writ); Fidelity
14

and Guaranty Ins. Underwriters, Inc. v. McManus, 633 S.W.2d 787,

790 (Tex. 1982)). Gisentaner’s negligent hiring and supervision

claims require proof of misconduct by Papapetrou. See Canutillo

Independent School District v. National Union Fire Ins. Co., 99

F.3d 695, 705 (5th Cir. 1996)(finding that negligent supervision

claim would not exist without damage caused by sexual abuse).

Therefore, our only inquiry is whether Papapetrou and Valsamis’

acts are covered under the definition of “occurrence.”

The district court cited Old Republic Ins. v. Comprehensive

Health Care, 786 F.Supp. 629 (N.D. Tex. 1992), affd. on other gds.,

2 F.2d (5th Cir. 1993), for the proposition that intentional torts,

such as sexual harassment, cannot be occurrences under Texas law.

Old Republic held that intentional or willful acts are not

“occurrences” as that term is defined in insurance policies. The

specific language in Old Republic mirrored that of OMI’s policy

here, stating that occurrences result in personal injuries neither

expected nor intended from the standpoint of the insured. Old

Republic, 786 F.Supp. at 633. The court in Old Republic noted that

Texas courts had consistently excluded intentional torts from the

definition of “occurrence” and found that the insured had not

produced Texas precedent to call these decisions into question.

In one of the cases cited by Old Republic, Argonaut Southwest

Insurance Company v. Maupin, 500 S.W.2d 633, 636 (Tex. 1973), the

Texas Supreme Court considered whether an intentional tort could be

considered an occurrence under a comprehensive general liability

policy. The policy in Maupin defined an occurrence as “either (a)
15

an accident, or (b) in the absence of an accident, a condition for

which the insured is responsible which during the policy period

causes physical injury to or destruction of the property which was

not intended.” Maupin, 500 S.W.2d at 634 n.1. The insured in

Maupin purchased dirt from a man who occupied a parcel of land,

mistakenly thinking that he owned the land. The insured then went

onto the land and removed the dirt. The actual owners then sued

the insured for trespass. The court found that the resulting

injury to the owners was not caused by an occurrence because the

insured acted intentionally when he took the soil off the property,

even though the resulting injury was unforeseen or unintended.

Maupin has been interpreted by Texas courts to exclude intentional

acts from the definition of occurrence without regard to whether

the harm was expected or intended by the actor. See, e.g., Pierce

v. Benefit Trust Life Insurance Co., 784 S.W.2d 516, 518 (Ct. App.-

Amarillo 1990)(finding that the insured’s hernia was not caused by

an occurrence because, although it was unexpected and unintended,

it resulted from the insured’s intentionally lifting a bag);

Baldwin v. Aetna Casualty & Surety Co., 750 S.W.2d 919, 920 (Tex.

App.-Amarillo 1988, error denied)(finding that the definition of

occurrence excluded a trucking company’s claims for damage caused

by their deliberately putting overweight trucks on the road);

Southern Farm Bureau Casualty Ins. Co. v. Brock, 659 S.W.2d 165

(Ct. App.-Amarillo 1983)(finding that damage to a truck that was

rammed into a car in order to prevent the occupant of the car from
16

shooting someone was not caused by an occurrence because the truck

driver meant to drive into the car).

Gisentaner claims, however, that the Texas supreme court’s

decision in State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374

(Tex. 1993) modifies the rule in Maupin to require specific intent

to commit the harm for a claim to fall outside the definition of

occurrence. She reasons that an intentional act with unintended

consequences can still give rise to liability unexpected or

unintended from the standpoint of the insured.

In State Farm, the supreme court considered whether an

intentional injury exclusion precluded recovery for a woman who

contracted herpes from her boyfriend. The court held that the

transmission of herpes was not an intentional act, despite the

intentional nature of the intercourse, because the boyfriend was

asymptomatic and therefore the transmission was not a “natural

result” of his intentional act. The court explained that Maupin

stood for the proposition that damage is not accidental where the

acts are voluntary and intentional and the injury was the natural

result of the act, “even though the injury may have been

unexpected, unforeseen and unintended.” State Farm, 858 S.W.2d at

377 n.2.

Even if Texas law requires specific, instead of general,

intent, we find that the harm in this case was not caused by an

occurrence. State Farm does not preclude a finding that intent to

cause injury can be inferred as a matter of law. The Texas supreme

court noted that the question of intent is highly fact specific and
17

that an actor intends to injure if he believes that the

consequences of his acts are substantially certain to follow.

State Farm, 858 S.W.2d at 379. In the present case, Gisentaner’s

first amended complaint alleged that Papapetrou and Valsamis’

conduct was “extreme and outrageous, undertaken for the purpose of

causing . . . severe emotional distress,” and was “calculated to

and did produce . . . severe emotional distress.” Her injuries

were the natural result of Valsamis’ actions and were substantially

certain to follow. 

IV.

Gisentaner also alleges that the district court erred in

failing to require the insurers involved in this case to post a

bond with the court, as required by Tex. Ins. Code Ann. art. 1.36,

§ 11 (Vernon’s Supp. 1991). However, under that provision, a court

has discretion to dispense with the deposit of a bond. We find

that the district court acted within its discretion by releasing

Americas, Cornhill, and OMI from the bond requirement. 

CONCLUSION

Because we find that Gisentaner’s claims did not raise a

potential for coverage under the policies issued by Americas,

Cornhill, and OMI, we AFFIRM the decision of the district court.