United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-50842 

____________ 

Discover Property & Casualty Insurance Company; The 

Travelers Indemnity Company of Connecticut, 

Plaintiffs—Appellees, 

versus

Blue Bell Creameries USA, Incorporated; Blue Bell 

Creameries, L.P.; Blue Bell Creameries, Incorporated; 

John W. Barnhill, Jr.; Greg A. Bridges; Richard 

Dickson; Paul A. Ehlert; Jim E. Kruse; Paul W. Kruse; W. 

J. Rankin; Howard W. Kruse; Patricia I. Ryan; Dorothy 

McCleod MacInerney, 

Defendants—Appellants. 

______________________________ 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 1:21-CV-487 

______________________________ 

Before King, Smith, and Elrod, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge: 

 The Blue Bell Defendants appeal the district court’s grant of summary 

judgment in favor of Discover Property & Casualty Insurance Company and 

the Travelers Indemnity Company of Connecticut. Because the complaint 

United States Court of Appeals 

Fifth Circuit 

FILED 

July 11, 2023 

Lyle W. Cayce 

Clerk 

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2 

in the underlying shareholder lawsuit does not allege any “occurrence” or 

seek “damages because of bodily injury,” we AFFIRM. 

I 

 This case concerns an insurance coverage dispute. In 2015, a Listeria

outbreak led to a shut-down of Blue Bell factories and a nationwide recall of 

its products. Consequently, Blue Bell suffered a substantial financial loss. 

That financial loss led to a shareholder lawsuit against Blue Bell’s directors 

and officers in the Delaware Court of Chancery. Marchand v. Barnhill, No. 

2017-0586-JRS, 2018 WL 4657159 (Del. Ch. Sept. 27, 2018), rev’d, 212 A.3d 

805 (Del. 2019). In that case, Jack L. Marchand II, a shareholder of Blue Bell 

Creameries USA, Inc., brought a derivative action against Blue Bell’s 

directors and officers, alleging breach of fiduciary duties. Blue Bell 

Creameries USA, Inc. is a Delaware corporation, and the lawsuit is governed 

by Delaware law. Id.

Relevant here, a shareholder derivative action is “an action brought 

by a shareholder in the name or right of a corporation to redress an injury 

sustained by, or to enforce a duty owed to, the corporation.” 13 Fletcher 

Cyc. Corp. § 5939. Under Delaware law, directors and officers “owe 

fiduciary duties of care and loyalty” to the corporation and its shareholders. 

Gantler v. Stephens, 965 A.2d 695, 708–09 (Del. 2009). Broadly speaking, the 

duty of loyalty requires fiduciaries “to advance the principal’s interests and 

bars them from promoting their own interests at the principal’s expense,” 

whereas the duty of care “requires fiduciaries to exercise power 

competently.” Holger Spamann, Scott Hirst & Gabriel Rauterberg, 

Corporations in 100 Pages 36 (3d ed. 2022). 

Marchand, on behalf of Blue Bell, alleged that Blue Bell’s officers and 

directors breached their fiduciary duties of care and loyalty by failing “to 

comply with regulations and establish controls.” The complaint also alleged 

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3 

that the directors and officers knew that Blue Bell’s manufacturing plants had 

repeatedly and consistently tested positive for Listeria contamination, yet 

they continued to manufacture and distribute ice cream products in 

conscious disregard of the known risks. The complaint asserted that, “[a]s a 

result of the breaches of fiduciary duty alleged [in the complaint], the 

Company and its stockholders suffered injury in the amount of at least 

hundreds of millions of dollars.” 

As to liability, Marchand contended that the directors and officers are 

personally liable for the violations against Blue Bell and its shareholders. As 

compensation, he asked that the court award “Blue Bell the damages 

sustained by it as a result of the breaches of fiduciary duties.” See Tooley v. 

Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1036 (Del. 2004) 

(“Because a derivative suit is being brought on behalf of the corporation, the 

recovery, if any, must go to the corporation.”). The complaint also requested 

that the court order “disgorgement and cancellation of stock in Blue Bell” 

owned by the directors and officers. 

Three years after the shareholder lawsuit was filed, the directors and 

officers sought defense coverage under Blue Bell’s Commercial General 

Liability insurance policies. In response, the Insurance Companies filed a 

lawsuit in this case, seeking a declaration that they have no duty to defend or 

indemnify1

 the directors and officers in relation to the shareholder lawsuit. 

_____________________ 

1

 Although the Insurance Companies seek declaratory judgment as to both their 

duty to defend and duty to indemnify, the parties have submitted a joint stipulation stating 

that “If the [district court] finds there is no duty to defend, it may also find there is no duty 

to indemnify, but otherwise the duty to indemnify will not be a subject of the Parties’ 

motions.” 

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4 

The parties agree as to which policy governs.2 The applicable policy 

states that, in addition to the company, “‘executive officers’ and directors 

are insureds, but only with respect to their duties as [the company’s] officers 

or directors.” As to the duty to indemnify, the insurer agreed to “pay those 

sums that the insured becomes legally obligated to pay as damages because of 

‘bodily injury’ or ‘property damage.’” The insurer also has a “duty to 

defend the insured against any ‘suit’ seeking those damages.” But the duties 

to defend and indemnify apply “only if the ‘bodily injury’ and ‘property 

damage’ is caused by an ‘occurrence,’” which is defined as “an accident, 

including continuous or repeated exposure to substantially the same general 

harmful conditions.” Having stipulated that the policy was in effect at all 

relevant times, both parties filed a motion for summary judgment. 

The district court granted summary judgment in favor of the 

Insurance Companies based on three independent grounds: (1) the directors 

and officers are not “insureds” under the policy when sued for “breach of a 

duty owed to the corporation”; (2) the shareholder lawsuit does not stem 

from either an “accident” or “occurrence” because the alleged misconducts 

were “undertaken with knowledge”; and (3) the shareholder suit does not 

allege damages “because of bodily injury.” The Blue Bell Defendants timely 

appealed. 

II 

This court reviews the grant of summary judgment de novo. Sweetin v. 

City of Texas City, Texas, 48 F.4th 387, 391 (5th Cir. 2022). “Summary 

_____________________ 

2

 The Blue Bell Entities were covered at all relevant times by several different 

Commercial General Liability policies. Here, the parties have stipulated that all of those 

policies are identical in “all material respects to the 2015 Policy.” They also agreed that 

their cross-motions for summary judgment in this case would be governed by “the eightcorners rule [and] the terms and conditions of the 2015 Policy.”

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judgment is proper if the movant shows that there is no genuine dispute of 

material fact and that the movant is entitled to judgment as a matter of law.” 

Id. “On cross-motions for summary judgment, we review each party’s 

motion independently, viewing the evidence and inferences in the light most 

favorable to the nonmoving party.” Amerisure Ins. Co. v. Navigators Ins. Co., 

611 F.3d 299, 304 (5th Cir. 2010) 

Texas law governs this diversity case. See Bayle v. Allstate Ins. Co., 615 

F.3d 350, 355 (5th Cir. 2010). However, the Supreme Court of Texas has not 

addressed the precise issues here. Thus, we must make an “Erie guess” as 

to how the Supreme Court of Texas would decide the questions before us. 

Gilbane Bldg. Co. v. Admiral Ins. Co., 664 F.3d 589, 593 (5th Cir. 2011). An 

Erie guess must be based on: (1) decisions of the Supreme Court of Texas in 

analogous cases, (2) the rationales and analyses underlying the Supreme 

Court of Texas’s decisions on related issues, (3) dicta by the Supreme Court 

of Texas, (4) lower state court decisions, (5) the general rule on the question, 

(6) the rulings of courts of other states to which Texas courts look when 

formulating substantive law, and (7) other available sources, such as treatises 

and legal commentaries. Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel 

LLC, 620 F.3d 558, 564 (5th Cir. 2010) (citation and quotation marks 

omitted); see Sanders v. Boeing Co., 68 F.4th 977, 981 (5th Cir. 2023). 

Under Texas law, it is well established that the duty to defend and the 

duty to indemnify are “distinct and separate duties.” King v. Dallas Fire Ins. 

Co., 85 S.W.3d 185, 187 (Tex. 2002). An “insurer may have a duty to defend 

but, eventually, no duty to indemnify.” Farmers Texas Cnty. Mut. Ins. Co. v. 

Griffin, 955 S.W.2d 81, 82 (Tex. 1997). Likewise, an “insurer may have a 

duty to indemnify its insured even if the duty to defend never arises.” D.R. 

Horton-Texas, Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 741 (Tex. 2009). 

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As to the duty to defend, two documents are determinative: “the 

insurance policy and the third-party plaintiff’s pleadings in the underlying 

litigation, which the court must review ‘without regard to the truth or falsity 

of those allegations.’” Amerisure, 611 F.3d at 309 (quoting GuideOne Elite 

Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 308 (Tex. 2006)). In 

contrast, the “duty to indemnify depends on the facts proven and whether 

the damages caused by the actions or omissions proven are covered by the 

terms of the policy.” D.R. Horton-Texas, 300 S.W.3d at 744. “Evidence is 

usually necessary in the coverage litigation to establish or refute an insurer’s 

duty to indemnify.” Id. 

Here, only the duty to defend is at issue because the parties have 

stipulated that “If the [district court] finds there is no duty to defend, it may 

also find there is no duty to indemnify, but otherwise the duty to indemnify 

will not be a subject of the Parties’ motions.” Accordingly, we are confined 

by Texas’s “eight-corners rule,” which directs courts to determine an 

insurer’s duty to defend based on: (1) the pleading against the insured in the 

underlying litigation and (2) the terms of the insurance policy. Monroe Guar. 

Ins. Co. v. BITCO Gen. Ins. Corp., 640 S.W.3d 195, 199 (Tex. 2022). 

“Insurance policy interpretation principles emphasize a policy’s plain 

language in determining its intended coverage.” Gilbert Texas Const., L.P. v. 

Underwriters at Lloyd’s London, 327 S.W.3d 118, 131 (Tex. 2010). When there 

is ambiguity, we “resolv[e] any doubt in favor of coverage.” Allstate Ins. Co. 

v. Hallman, 159 S.W.3d 640, 643 (Tex. 2005). But a contract “is not 

ambiguous simply because the parties to a lawsuit offer conflicting 

interpretations of the contract’s provisions.” Nassar v. Liberty Mut. Fire Ins. 

Co., 508 S.W.3d 254, 258 (Tex. 2017). 

There are three issues on appeal. First, whether the directors and 

officers qualify as additional insureds in relation to the shareholder lawsuit. 

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7 

Second, whether the alleged injuries in the shareholder lawsuit were caused 

by an “occurrence.” And third, whether the shareholder lawsuit seeks 

“damages because of bodily injury.” The district court answered “no” to all 

three questions. While we disagree with the district court’s determination as 

to the first issue, we agree with its determination as to the second and third. 

We discuss each issue in turn. 

III 

First, we address whether the directors and officers qualify as 

additional insureds in relation to the shareholder lawsuit. The policy states 

that Blue Bell’s directors and officers are insureds, but “only with respect to 

their duties as [the company’s] officers or directors.” 

The Insurance Companies argue, and the district court agreed, that 

the directors and officers do not qualify as additional insureds. The district 

court noted that the underlying allegation in the shareholder lawsuit is that 

the directors and officers “knowingly disregarded contamination risk and 

safety compliance” despite positive Lysteria tests and thus violated their 

fiduciary duties to the corporation. Given that the lawsuit is for breach of 

fiduciary duty, the district court rejected the proposition that the directors 

and officers were sued for actions “with respect to their duties” when it is 

alleged that they breached those very duties. 

We disagree with the district court and hold that the directors and 

officers are “insureds” in relation to the shareholder lawsuit. At first glance, 

the argument adopted by the district court might sound like a logical 

tautology. After all, how can the directors and officers be “acting with 

respect to their duties” during the alleged violations of fiduciary duties? 

Relevant here are two distinct meanings of the word “duty.” On the 

one hand, “duty” can mean moral or legal “obligation” (e.g., “duty to 

indemnify,” “duty to defend”). On the other hand, it can also mean 

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8 

something that is more analogous to “job” or “role” (e.g., “the President’s 

official duties,” “the scope of his duties”). Duty, Oxford Dictionary & 

Thesaurus of Current English (2d ed. 2007) (“duty n. 1 responsibility, 

obligation, commitment. 2 job, task, assignment, mission, function, charge, 

role.”). With this distinction in mind, it is possible that a director or officer 

breached his fiduciary duty (i.e., legal obligation) while still acting with 

respect to his duties (i.e., role) as a director or officer of the corporation. Cf.

Alexander v. Walker, 435 S.W.3d 789, 789–90, 92 (Tex. 2014) (holding that a 

lawsuit against two sheriffs alleging “false arrest, false imprisonment, and 

malicious prosecution” was nonetheless “based on conduct within the 

general scope of the officers’ employment”). 

To be sure, some violations are wholly unrelated or contrary to one’s 

role such that they render the person effectively acting outside the scope of 

his role. See, e.g., Am. States Ins. Co. v. Synod of the Russian Orthodox Church 

Outside of Russia, 170 F. App’x 869, 872 n.16 (5th Cir. 2006) (holding that 

monks who are accused of sexual molestation “do not qualify as insureds 

because clergy are considered insureds under the policy only ‘with respect to 

their duties as such’”); Farr v. Farm Bureau Ins. Co. of Nebraska, 61 F.3d 677, 

681 (8th Cir. 1995) (holding that corporate officers are not “carrying out their 

duties” when acting “in a manner that is antagonistic toward the 

corporation[]”).

Here, however, as the Blue Bell Defendants noted, the shareholder 

did not allege that the directors and officers were taking any action that was 

outside the scope of “managing and operating the ice cream company.” To 

the contrary, the complaint alleged that the directors and officers violated 

their fiduciary duties because they “continued the Company’s production 

and distribution of ice-cream” when they should not have. While it is 

possible that they violated their fiduciary duties by failing to stop production 

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and distribution of ice-cream, their deciding to continue is plainly within the 

scope of their role. 

Thus, based on the complaint, the alleged breach of fiduciary duty 

occurred while the directors and officers were acting “with respect to their 

duties” as such. Accordingly, we hold that they are “insureds” in relation 

to the shareholder lawsuit. See Bitco Gen. Ins. Corp. v. Monroe Guar. Ins. Co., 

31 F.4th 325, 329 (5th Cir. 2022) (“If a complaint alleges at least one cause 

of action that is ‘potentially’ within the policy’s coverage, the insurer must 

defend the entire lawsuit.”). In the alternative, there is at least sufficient 

uncertainty on this issue that we must choose an interpretation that favors 

coverage. Id.

IV 

 Next, we address whether the alleged injuries in the underlying 

lawsuit were caused by an “occurrence.” Under the policy, the Insurance 

Companies have a duty to defend only if the alleged injury “is caused by an 

‘occurrence.’” And “occurrence” is defined as “an accident, including 

continuous or repeated exposure to substantially the same general harmful 

conditions.”

Under Texas law, a person’s act is not an accident “when [1] he 

commits an intentional act that [2] results in injuries that ordinarily follow 

from or could be reasonably anticipated from the intentional act.” Am. States 

Ins. Co. v. Bailey, 133 F.3d 363, 372 (5th Cir. 1998) (citing Trinity Universal 

Ins. Co. v. Cowan, 945 S.W.2d 819, 827–28 (Tex. 1997)). We have noted that, 

in this context, “an intentional act and the intent to cause injury are two 

distinct concepts.” Id. at 372 n.11. To illustrate, “the hunter who 

deliberately fires a gun at what he believes to be a deer but is actually a 

person” committed an “intentional” act, even though the harm was not 

intentional. Trinity, 945 S.W.2d at 828. As such, the “intentional acts” 

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requirement is concerned with the voluntariness of an action or omission, not 

the actor’s intended outcome. 

A

We agree with the Insurance Companies and the district court that the 

alleged injuries were not caused by an “accident.” As an initial matter, the 

intentional act requirement is easily met because there were no allegations 

that the directors or officers were acting involuntarily. To the contrary, the 

shareholder complaint alleged that they “knowingly disregarded 

contamination risk and safety compliance” and “willfully failed to exercise” 

their authority. 

As to foreseeability, the shareholder complaint alleged several facts 

showing that the Listeria outbreak and the attendant financial harm “could 

be ‘reasonably anticipated.’” Trinity, 945 S.W.2d at 828 (quoting State Farm 

Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 377 (Tex.1993)). For example, 

the complaint alleged that: 

 In February 2015, Blue Bell received notification that the Texas 

Department of State Health Services had positive tests for Listeria in 

Blue Bell samples. 

 In March 2015, health authorities reported that they suspected 

connection between human Listeria infections in Kansas and products 

made by Blue Bell’s Brenham facility. 

 In April 2015, the Centers for Disease Control and Prevention stated 

that tests indicated Blue Bell products from the manufacturing plants 

in Texas and Oklahoma were the source of a Listeria outbreak. 

 Beginning in early 2013 and continuing into early 2015 . . ., Company 

management received increasingly frequent and continuing positive 

presumptive test results for Listeria. 

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 Positive tests also included repeated positive results from the 

Company’s third-party laboratory in 2014, on consecutive samples. 

Because our review is confined by the eight-corners rule, we assess the 

shareholder’s allegations “without regard to the truth or falsity of those 

allegations.” GuideOne, 197 S.W.3d at 308 (citations omitted). Having done 

so, we agree with the district court that, as alleged in the shareholder 

complaint, the breach of fiduciary duties stemmed from intentional acts, and 

the Listeria outbreak and the resulting financial harm were natural and 

probable consequences that could be reasonably anticipated. 

B 

 On appeal, the Blue Bell Defendants offer three reasons for why the 

district court erred on this issue. 

1 

First, the Blue Bell Defendants assert that the district court ignored 

the additional, relevant policy language stating that accident “includ[es] 

continuous or repeated exposure to substantially the same general harmful 

conditions.” The full definition reads as follows: 

“Occurrence” means an accident, including continuous or 

repeated exposure to substantially the same general harmful 

conditions. 

The Blue Bell Defendants argue that the second part of the definition is 

relevant because the shareholder lawsuit alleged that Blue Bell’s plants 

“contained harmful conditions that allowed the Listeria to multiply through 

continuous exposure.” They contend that because such an allegation 

signifies “continuous or repeated exposure to substantially the same general 

harmful conditions,” the shareholder lawsuit alleged an “occurrence.” In 

making this argument, the Blue Bell Defendants propose that we read the 

dependent clause (i.e., “including continuous or repeated exposure to 

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substantially the same general harmful conditions”) as extending the scope 

of the definition. 

 We refuse to do so, however, because that proposed interpretation is 

unpersuasive when we apply the whole-text canon. See Antonin Scalia & 

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012) 

(“The whole of a contract is to be taken together, so as to give effect to every 

part, if reasonably practicable, each clause helping to interpret the other.”). 

As the Supreme Court of Texas observed, when the definitional language is 

read in context, it is evident that the function of the dependent clause is “to 

limit the number of occurrences an insured can claim for what the policy 

deems to be a single accident.” Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 

267 S.W.3d 20, 24 (Tex. 2008). Stated differently, the clause serves to 

ensure that “continuous or repeated exposure to substantially the same 

general harmful conditions” is not counted as multiple accidents or 

occurrences. “This limitation is sometimes important because the dollar 

limits of the policy include an aggregate limit and also a lower dollar limit per 

occurrence.” Id. For example, the policy at issue here has an “Each 

Occurrence Limit” of $5,000,000. 

Accordingly, we are unpersuaded by the Blue Bell Defendants’ 

proposed interpretation. The dependent clause functions “to limit the 

number of occurrences,” not to enlarge the scope of the meaning of 

“occurrence.” Id.

2 

Second, the Blue Bell Defendants argue that, because the policy 

includes an explicit exclusion for “bodily injury expected or intended,” some 

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13 

intentional conduct3 must fall within the definition of “occurrence.” Or else, 

they contend, the explicit exclusion would be rendered surplusage. 

This argument is likewise unpersuasive because the “occurrence” / 

“accident” analysis is meaningfully different from the exclusion for 

“expected or intended” injuries. Under Texas law, whether the insured 

“expect[s] or intend[s] [the injury] is of no consequence to our determination 

of whether his actions were an ‘accident.’” Trinity, 945 S.W.2d at 827–28. 

If the resulting injury ordinarily follows from or could be “reasonably 

anticipated” from the intentional act, then the act is not an accident, and thus 

not an occurrence. Id. at 828 (quoting S.S., 858 S.W.2d at 377). 

To the extent that the Supreme Court of Texas’s understanding of 

“accident” overlaps with the intentional-injury exclusion, such an overlap 

should not be interpreted as an unintended surplusage because, as the Court 

recognized, “there is a [historical] relationship between the policy’s 

definition of ‘occurrence’ and the exclusion for intentional acts.” King, 85 

S.W.3d at 192. That relationship arises from the fact that, before the 1986 

modification to the Corporate General Liability Policy, the intentional-injury 

exception was subsumed within the definition of “occurrence.” The 

definition of “occurrence” in pre-1986 CGL policies read: 

“Occurrence” means an accident, including continuous or 

repeated exposure to substantially the same general harmful 

condition, which results in bodily injury or property damage

neither expected nor intended from the standpoint of the insured.

Id. at 192 (citing 16 Eric Mills Holmes, Holmes’ Appleman On Insurance 2d 

§ 117.5) (emphasis added). In 1986, however, “[t]he language ‘expected or 

intended from the standpoint of the insured’ was removed from the 

_____________________ 

3

 We understand the phrase “intentional conduct” in the Blue Bell Defendants’ 

brief to mean a conduct that is intended to cause harm rather than mere voluntary action. 

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definition of ‘occurrence’ and reinserted as an exclusion from coverage.” Id. 

The upshot of this historical fact is that any overlap between the definition of 

“occurrence” and the intentional-injury exclusion is a byproduct of historical 

practices rather than an unintended surplusage that ought to be excised. 

3 

 Third, the Blue Bell Defendants assert that, even assuming arguendo

that their previous arguments fail, coverage still exists because “there are not 

enough details in the Underlying Suit to conclude that a Listeria outbreak was 

an expected result of Appellants’ actions.” As support, they observe that the 

shareholder lawsuit fails to allege that “any regulatory authority took any 

drastic action to stop the production of ice cream, which one might expect if 

Listeria contamination was a natural and probable result of the conditions at 

the facilities.” Given this deficiency, they conclude that the district court 

erred because the shareholder lawsuit “does not conclusively show 

scientifically that Listeria outbreak was the natural and probable result” of 

the alleged misconducts. 

 But the relevant question is not whether the complaint “conclusively 

show scientifically” that the injuries were probable. Under Texas law, so 

long as the underlying complaint alleged facts showing that the injuries 

“could be reasonably anticipated” to result from the misconduct, the 

complaint did not allege an accident. Trinity, 945 S.W.2d at 828 (citation and 

quotation marks omitted). “To hold otherwise would inappropriately 

enhance rather than minimize the moral hazard inherent in insurance.” Id.; 

see Steven Shavell, On Moral Hazard and Insurance, 93 Q.J. Econ. 541, 541 

(1979) (“Moral hazard refers here to the tendency of insurance protection to 

alter an individual’s motive to prevent loss.”).

Here, the underlying complaint alleged that the company 

management had received “increasingly frequent and continuing positive 

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15 

presumptive test results for Listeria” from several governmental authorities 

and on multiple different occasions. And the complaint also alleged that the 

company had received “repeated positive results . . . on consecutive 

samples” from its own third-party laboratory. Because we assess the 

shareholder’s allegations “without regard to [their] truth or falsity,” we hold 

that the shareholder complaint does not allege any accident. GuideOne, 197 

S.W.3d at 308. 

Accordingly, we affirm the district court’s determination that the 

shareholder complaint does not allege an “occurrence” under the terms of 

the policy. 

V 

Finally, we address whether the shareholder lawsuit seeks “damages 

because of bodily injury.” The insurance policy requires the insurer only to 

“pay those sums that the insured becomes legally obligated to pay as damages 

because of ‘bodily injury’ or ‘property damage,’” and “to defend the insured 

against any ‘suit’ seeking those damages.” The Blue Bell Defendants do not 

argue that there is any “property damage” at issue. And so, to maintain that 

the Insurance Companies are obligated to defend the shareholder lawsuit, the 

Blue Bell Defendants must show that the lawsuit seeks “damages because of 

bodily injury.” 

The Blue Bell Defendants argue that because the “damages 

contemplated by the [shareholder lawsuit] are factually attributable to bodily 

injuries suffered by Blue Bell customers,” the damages are therefore 

“because of” bodily injury. In response, the Insurance Companies contend 

that the lawsuit does not seek damages “because of bodily injury” because 

the shareholder only seeks to recover “financial harm” that stemmed from 

breach of fiduciary duties. Like the district court, they observe that any 

reference to bodily injury is “merely informative” and “ancillary to the 

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16 

dispute.” And so, they conclude that the district court was correct in holding 

that the shareholder lawsuit does not seek damages because of bodily injury.

Because the Supreme Court of Texas has not addressed this precise 

issue, we must make an “Erie guess” as to how the Supreme Court of Texas 

would decide this issue. Erie R.R. v. Tompkins, 304 U.S. 64 (1938). Relevant 

here, the Supreme Court of Texas has “repeatedly stressed the importance 

of uniformity when identical insurance provisions will necessarily be 

interpreted in various jurisdictions.” Zurich Am. Ins. Co. v. Nokia, Inc., 268 

S.W.3d 487, 496–97 (Tex. 2008) (citation and quotation marks omitted). 

Thus, “[w]hen construing an insurance policy, [the Supreme Court of Texas 

is] mindful of other courts’ interpretations of policy language that is identical 

or very similar to the policy language at issue.” RSUI Indem. Co. v. The Lynd 

Co., 466 S.W.3d 113, 118 (Tex. 2015). 

This court has previously resolved the applicability of equivalent 

contractual language in similar factual situations under Louisiana and 

Mississippi law. Preau v. St. Paul Fire & Marine Ins. Co., 645 F.3d 293 (5th 

Cir. 2011); Nationwide Mut. Ins. Co. v. A.H. ex rel. Hunter, 444 F. App’x 753 

(5th Cir. 2011). In both cases, we rejected the same argument the Blue Bell 

Defendants assert here and concluded that the underlying lawsuit did not 

seek damages because of bodily injury. 

In Preau, Dr. Preau argued that his insurance company owed him 

coverage for a misrepresentation lawsuit because that lawsuit requires him 

“to pay damages for bodily injury.” 645 F.3d at 296. In that underlying 

lawsuit, Kadlec Medical Center sought damages against Dr. Preau for alleged 

misrepresentation in a letter of recommendation he wrote. Dr. Preau had 

written a letter of recommendation on behalf of Dr. Berry, and that letter 

failed to mention the fact that Dr. Berry had a history of drug abuse. In 

reliance on that letter, Kadlec Medical Center allowed Dr. Berry to practice 

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at its hospital. While practicing at the hospital, Dr. Berry failed to properly 

administer anesthesia to a patient because he was under the influence. As a 

result, the patient remains in a permanent vegetative state. 

That patient brought a tort lawsuit against Kadlec Medical Center, 

seeking damages because of a bodily injury. The lawsuit settled for $7.5 

million. To recover that loss, Kadlec then sued Dr. Preau and other 

defendants for negligent misrepresentation. The jury “awarded total 

damages of approximately $8,244,000, which represented the amount 

Kadlec had paid to settle the [tort lawsuit] plus the attorney’s fees Kadlec 

incurred in defending that suit.” Id. at 295. Dr. Preau was liable for a portion 

of that total damages. 

Like the Blue Bell Defendants here, Dr. Preau argued that the lawsuit 

against him sought damages for bodily injury because the damages can 

ultimately be traced back to the patient’s injury. And so, he contended that 

the damages were covered under his insurance policy. The Preau panel 

disagreed, holding that the “economic damages” sought against Dr. Preau 

are distinct from the damages that the patient sought for her bodily injuries. 

Id. at 296. And that is so even if “the amount of the damages . . . was directly 

related to the amount [the hospital] paid to defend and settle the [tort 

lawsuit].” Id.

The same is true here. The shareholder complaint seeks damages to 

compensate for Blue Bell’s economic loss caused by its directors’ and 

officers’ breach of fiduciary duties. It does not seek to recover any damages 

on behalf of customers who may have suffered “bodily injury” from the 

Lysteria outbreak. Accordingly, we hold that the damages in the shareholder 

lawsuit are not covered under the plain terms of Blue Bell’s insurance policy. 

Moreover, Preau is not the only case supporting our conclusion. In 

Nationwide, for example, we applied our holding in Preau when addressing an 

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identical insurance provision under Mississippi law. Nationwide Mut. Ins. Co. 

v. A.H. ex rel. Hunter, 444 F. App’x 753, 755 (5th Cir. 2011). There, appellant 

Tri County argued that its insurer ought to indemnify the contempt judgment 

against it because the judgment sought “damages because of bodily injury.” 

Id. 

As background, an automobile accident victim obtained a $ 2 million 

tort judgment against John Hunter, a parent of the tortfeasor. To collect that 

judgment, the victim filed a writ of execution against Tri County, a company 

allegedly owned by John Hunter. Under a state statute, Tri County was 

required to provide a sworn statement within ten days of the extent of 

Hunter’s interest in the company. But it failed to do so. Consequently, the 

state court held that Tri County had not complied with the statute and 

entered judgment for the entire $2 million. 

To recover that loss, Tri County argued that the $2 million judgment 

was covered under its liability policy, which required the insurer to pay 

“sums that the insured becomes legally obligated to pay as damages because 

of ‘bodily injury.’” Id. The Nationwide panel disagreed and held that “As in 

Preau, Tri County had not become ‘legally obligated to pay’ any damages as 

a result of a ‘bodily injury.’” Id. 

Likewise, the Sixth Circuit, the Ninth Circuit, the Supreme Court of 

Ohio, and the Supreme Court of Delaware have all addressed the meaning of 

a similar provision under similar facts and come to the same conclusion. 

Westfield Nat’l Ins. Co. v. Quest Pharms., Inc., 57 F.4th 558, 565 (6th Cir. 

2023) (holding that liability insurance covering claims for damages “because 

of bodily injury” provides coverage “only for claims requiring proof of an 

actual bodily injury, not all claims tangentially related to bodily injuries”); id. 

(“The claims, all of which are for economic damages, are simply beyond the 

policies’ scope.”); Bliss Sequoia Ins. & Risk Advisors, Inc. v. Allied Prop. & Cas. 

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Ins. Co., 52 F.4th 417, 423 (9th Cir. 2022) (holding that “the phrase ‘because 

of bodily injury’ in [appellant’s] insurance policy” does not automatically 

include any “lawsuit connected in some way to someone’s injury.”); Acuity 

v. Masters Pharm., Inc., 205 N.E.3d 460, 472 (Ohio 2022) (holding that “the 

phrase ‘damages because of bodily injury’ in the policies before [the court] 

requires more than a tenuous connection between the alleged bodily injury 

sustained by a person and the damages sought”); ACE Am. Ins. Co. v. Rite 

Aid Corp., 270 A.3d 239, 247 (Del. 2022) (“There must be more than some 

linkage between the personal injury and damages to recover ‘because of’ 

personal injury: namely, bodily injury to the plaintiff, and damages sought 

because of that specific bodily injury.”). 

 Although these cases did not address the issue under Texas law, we 

nonetheless consider them highly persuasive because the Supreme Court of 

Texas has emphasized the importance of “other courts’ interpretations of 

policy language that is identical or very similar to the policy language at 

issue.” RSUI Indem., 466 S.W.3d at 118. 

 On the other side, the Blue Bell Defendants do not present any 

analogous cases that have adopted their contrary interpretation. They cite a 

line of cases addressing lawsuits by cell phone consumers who suffered bodily 

injury because of radiation exposure, see, e.g., Samsung Elecs. Am., Inc. v. Fed. 

Ins. Co., 202 S.W.3d 372 (Tex. App.—Dallas 2006); Ericsson, Inc. v. St. Paul 

Fire & Marine Ins. Co., 423 F. Supp. 2d 587 (N.D. Tex. 2006); Voicestream 

Wireless Corp. v. Fed. Ins. Co., 112 F. App’x 553 (9th Cir. 2004), and two other 

cases addressing damages from “prescription drug abuse,” Cincinnati Ins. 

Co. v. H.D. Smith, L.L.C., 829 F.3d 771, 772 (7th Cir. 2016), and “increased 

emergency medical care,” Scottsdale Ins. Co. v. Nat. Shooting Sports Found., 

226 F.3d 642, at *1 (5th Cir. 2000) (unpublished). 

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 But none of those cases are analogous to the present case because they 

relied on a materially different provision that states: 

Damages because of bodily injury include damages claimed by 

any person or organization for care, loss of services or death 

resulting at any time from the bodily injury. 

Samsung, 202 S.W.3d at 381; Ericsson, 423 F. Supp. 2d at 593; Voicestream, 

112 F. App’x at 556 n.5; Cincinnati Ins., 829 F.3d at 773; Scottsdale, 226 F.3d 

642, at *2 n.3. 

The court in Ericsson, for example, considered an underlying lawsuit 

where the plaintiffs requested damages in the form of “headsets” (or the 

funds to purchase them). 423 F. Supp. 2d at 589. These headsets helped 

reduce exposure to “radio frequency radiation,” which had caused the 

plaintiffs “to sustain bodily injuries” in the form of cellular dysfunction. Id. 

Because the applicable policy stated that damages because of bodily injury 

included “damages . . . for care,” the court in Ericsson observed that damages 

“in the form of a headset neither clearly falls within a policy provision, nor is 

clearly excluded by the text of the policy.” Id. at 593–94 (quoting 

Voicestream, 112 F. App’x at 556). And so, the court concluded that the 

“ambiguity must be construed against [the insurer].” Id. Following the 

holding in Ericsson, the court in Samsung also determined that the cost of 

obtaining headsets to avoid radiation injury is damage “because of bodily 

injury” because it might be encompassed as damages “for care.” Samsung, 

202 S.W.3d at 381–82 (citing Ericsson, 423 F. Supp. 2d 587). 

Similarly, in Cincinnati, the court considered an underlying suit that 

sought damages based on the cost of “addressing and combating the 

prescription drug abuse epidemic,” which can likewise be considered as 

damages “for care.” 829 F.3d at 774–75; id. at 775 (emphasizing that “the 

policy covers ‘damages claimed by any person or organization for care . . . 

resulting . . . from the bodily injury.’”); see also Scottsdale Ins., 226 F.3d 642, 

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at *1 (addressing damages for “increased emergency medical care” from 

bodily injuries). In all of these cases, the court determined that the damages 

sought in the underlying lawsuits might be encompassed within the inclusion 

of damages “for care, loss of services or death resulting at any time from the 

bodily injury.” 

Here, in contrast, there is no colorable argument that the shareholder 

lawsuit seeks damages “for care, loss of services or death” because it only 

seeks compensation for breach of fiduciary duties. Even the Blue Bell 

Defendants do not argue that there are any such damages at issue. As the 

Sixth Circuit observed, the inclusion of damages “for care, loss of services or 

death” was meant to include claims “like loss of consortium claims by family 

members, and subrogation claims.” Westfield, 57 F.4th at 566. 

Thus, in accordance with our holding in Preau, we hold that the 

economic damages sought in the shareholder lawsuit are not “damages 

because of bodily injury” under the plain language of the contract. 645 F.3d 

293. 

* * * 

While we disagree with the district court’s determination as to 

whether the directors and officers are “insureds” in relation to the 

shareholder lawsuit, we agree with its determination that the complaint in the 

shareholder lawsuit does not allege any “occurrence” or seek “damages 

because of bodily injury.” Because each issue is independently sufficient for 

affirmance, we AFFIRM the district court’s grant of summary judgment in 

favor of the Insurance Companies. 

Case: 22-50842 Document: 00516816186 Page: 21 Date Filed: 07/11/2023