REVISED APRIL 18, 2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50283

MARYLAND CASUALTY COMPANY,

Plaintiff–Appellee

v.

ACCEPTANCE INDEMNITY INSURANCE COMPANY,

Defendant–Appellant

Appeal from the United States District Court

for the Western District of Texas

Before KING, DAVIS, and SOUTHWICK, Circuit Judges.

KING, Circuit Judge:

This case arises from Appellant Acceptance Indemnity Insurance

Company’s refusal to defend and indemnify its insured in an underlying lawsuit

in Texas state court. Appellee Maryland Casualty Company defended and

settled that lawsuit on behalf of their common insured, and then sued

Acceptance in diversity to recover Acceptance’s share of those costs under

theories of contribution and subrogation. Acceptance moved for summary

judgment on all of Maryland’s claims. The district court found that Acceptance

had a duty to defend its insured. It dismissed Maryland’s claim for contribution,

but the subrogation claim went to trial and the jury rendered a verdict against

United States Court of Appeals

Fifth Circuit

F I L E D

March 24, 2011

Lyle W. Cayce

Clerk
No. 10-50283

2

Acceptance, which the district court upheld against Acceptance’s post-verdict

challenges. We affirm. 

BACKGROUND

In 2002, Hugh McGee hired Russell Guidry d/b/a Olympic Pools (“Guidry”)

to build a “negative edge” swimming pool at McGee’s home in Lakeway, Texas.

The pool underwent several repairs over the next few years as four leaks and a

large crack developed. In April 2003, just after the pool had been completed and

filled with water for the first time, there was a leak under the northeast flowerbed planter. Guidry repaired that leak. In March 2005, the second and third

leaks occurred: one in the pump/equipment area, and another under the pool

shell near the main drain. The leak under the pool shell caused the pool level

to drop twenty-four inches in sixteen hours, eventually draining the pool within

two days. After the pool had drained, McGee’s property manager noticed a long

crack running the length of the negative edge wall across the basin. A different

company was hired to fix the leak under the shell and to chisel, epoxy, and replaster over the crack. The fourth leak occurred in August or September 2005,

after which McGee hired an engineer to analyze the pool structure. 

In December 2006, McGee filed suit against Guidry in Texas state court,

alleging that Guidry and his subcontractors had failed to exercise ordinary care

in designing and building the pool, resulting in physical damage to and loss of

use of the pool and other damage due to leaks. Guidry tendered McGee’s claim

to two insurers, Maryland Casualty Company (“Maryland”) and Acceptance

Indemnity Insurance Company (“Acceptance”), which had issued four separate

commercial general liability policies to Guidry as follows:

Insurer: Effective Dates:

Maryland May 11, 2002 to May 11, 2003

Acceptance August 11, 2003 to August 11, 2004

Acceptance August 25, 2004 to August 25, 2005

Acceptance September 9, 2005 to September 9, 2006
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3

Maryland agreed to defend Guidry, but Acceptance denied any obligation

to defend or indemnify Guidry against McGee’s claims. Maryland eventually

paid $590,000 to settle the lawsuit in exchange for a full and final release of

McGee’s claims. Maryland then brought an action against Acceptance in federal

court, requesting a declaration that Acceptance owed a duty to defend and

indemnify Guidry, and seeking—under theories of contribution, contractual

subrogation, and equitable subrogation—Acceptance’s pro rata share of the costs

that Maryland incurred to defend and settle McGee’s claims. 

Acceptance moved for summary judgment on April 2, 2009, arguing that

it had no duty to defend and that the Texas Supreme Court’s holding in MidContinent Insurance Co. v. Liberty Mutual Insurance Co., 236 S.W.3d 765 (Tex.

2007), barred Maryland’s claims for subrogation and contribution. The district

court held that Acceptance had a duty to defend, and that Maryland was

therefore entitled to recover a pro rata portion of its defense costs. The court

granted Acceptance summary judgment on the contribution claim but denied

summary judgment on the subrogation claim, distinguishing Mid-Continent on

the grounds that Acceptance completely refused to defend and indemnify its

insured, and that Maryland and Acceptance were not co-insurers because they

issued separate, consecutive policies that did not provide overlapping coverage

for the same claim. 

The surviving subrogation claim went to trial on October 19, 2009. At the

close of Maryland’s evidence, Acceptance orally moved for a directed verdict on

the ground that Maryland’s claim for subrogation was precluded by MidContinent. The court denied the motion after the case was submitted to the jury.

The jury found that the property damage that was the basis of McGee’s

underlying lawsuit was an “occurrence” covered by Acceptance’s policy, and that

75% of the $590,000 paid by Maryland to settle McGee’s claims was paid to

resolve claims for property damage that first occurred during one of Acceptance’s
No. 10-50283

4

policy periods. The jury also found that the damage to the pool had not been

caused by the subsidence of land, and that none ofthe $590,000 paid to settle the

claim was paid to resolve punitive or exemplary damages, thereby rejecting two

of Acceptance’s policy exclusions. 

On November 5, 2009, Acceptance moved for judgment notwithstanding

the verdict. Acceptance asserted three grounds in support of its motion: (1) MidContinent precluded Maryland’s claim for subrogation; (2) the evidence was

insufficient to support the jury’s determination, in Question Two, that some of

the property damage first occurred during one of Acceptance’s policy periods; and

(3)the evidence was insufficientto supportthe jury’s determination, in Question

Four, that the property damage at issue was not caused by subsidence of earth.

The court declined to revisit the first argument, which it had previously rejected

in denying Acceptance’s motions for summary judgment and for directed verdict,

and refused to address the lasttwo arguments because Acceptance failed to raise

them in a Rule 50(a) motion before the case was submitted to the jury, raising

them instead for the first time in a post-trial Rule 50(b) motion. The court

therefore denied Acceptance’s motion for judgment as a matter of law and

entered final judgment against Acceptance on December 16, 2009, awarding

Maryland damages for Acceptance’s separate failures to defend and to indemnify

Guidry. 

On December 24, 2009, Acceptance moved for a new trial pursuantto Rule

59. Acceptance first contended that the jury’s verdict—specifically, its answers

to Questions Two and Four—was against the great weight of the evidence.

Second, Acceptance argued that the courtimproperly charged the jury by failing

to include Acceptance’s alternate proposed definition of an “occurrence” in its

instructions. Finally, Acceptance reiterated its argument that Mid-Continent

barred Maryland’s claim for subrogation. The court denied the motion on

February 24, 2010, finding that the jury’s conclusions as to Questions Two and
No. 10-50283

5

Four were not againstthe great weight ofthe evidence, that the court did not err

in its jury charge, and again declining to revisit the subrogation issue. On

March 22, 2010, Acceptance appealed “from the Final Judgment entered in this

action on the 16th day of December, 2009.” 

DISCUSSION

I. Jurisdiction Over Motion for New Trial

We first consider whether we have jurisdiction to review the district

court’s order denying Acceptance’s motion for new trial. See Said v. Gonzales,

488 F.3d 668, 670–71 (5th Cir. 2007) (“We must raise the issue of our appellate

jurisdiction sua sponte, if necessary.”). Because Acceptance did not appeal that

order, we find that we do not. 

Federal Rule of Appellate Procedure 3(c)(1)(B) states that the notice of

appeal must “designate the judgment, order, or part thereof being appealed.”

“Rule 3’s dictates are jurisdictional in nature, and their satisfaction is a

prerequisite to appellate review.” Smith v. Barry, 502 U.S. 244, 248 (1992).

“The designation in the notice of appeal of the final order or judgment does not

usually include any orders that are entered after the final judgment. An

amended notice of appeal or a second notice of appeal is required to raise these

later issues.” 20 James W. Moore et al., Moore’s Federal Practice

§ 303.21[3][c][iv], at 48–48.1 (3d ed. 2010); see also 16A Charles Alan Wright et

al., Federal Practice and Procedure § 3949.4, at 126–28 (4th ed. 2008) (same). 

Acceptance’s notice of appeal clearly states that it is appealing “from the

Final Judgment entered in this action on the 16th day of December, 2009.” The

notice of appeal does not, on its face, include the district court’s February 24,

2010 post-judgment order denying Acceptance’s motion for new trial. Although

“[a] mistake in designating orders to be appealed does not bar review if the

intent to appeal a particular judgment can be fairly inferred and if the appellee

is not prejudiced or misled by the mistake,” New York Life Ins. Co. v. Deshotel,
No. 10-50283

6

142 F.3d 873, 884 (5th Cir. 1998), we cannot infer any intent here to appeal the

February order given that it was entered well before Acceptance filed its notice

of appeal on March 22, 2010. See Capital Parks, Inc. v. Se. Adver. and Sales

Sys., Inc., 30 F.3d 627, 630 (5th Cir. 1994) (refusing to consider the denial of a

post-judgment motion where the notice of appeal, even though filed after that

denial, explicitly appealed only from the final judgment without mentioning the

denial of the post-judgment motion).

Because Acceptance did not properly appeal the district court’s denial of

its motion for new trial, we lack jurisdiction to review that order. See Funk v.

Stryker Corp., 631 F.3d 777, 780–81 (5th Cir. 2011) (finding that we lacked

jurisdiction to consider an argument first raised in a post-judgment motion

because the district court’s order denying that motion was not properly

appealed). We therefore limit our review to Acceptance’s appeal of the final

judgment, in which Acceptance challenges the sufficiency of the evidence to

support the jury’s verdict as to Questions Two and Four; the omission of its

proffered definition of “occurrence” in the jury instructions; and the availability

of a claim for subrogation under Mid-Continent. We address these challenges

in reverse order. 

II. Availability of a Claim for Subrogationunder Mid-Continent

Acceptance argues that the Texas Supreme Court’s decision in MidContinent bars Maryland from recovering from Acceptance under a theory of

subrogation because Guidry, their common insured, has already been fully

indemnified. Acceptance preserved this argument by raising it in its motions for

summary judgment, directed verdict, and judgment as a matter of law. The

availability of a claim for subrogation under Mid-Continent is a question of law

subject to de novo review. See Salve Regina College v. Russell, 499 U.S. 225, 231

(1991) (holding that “a court of appeals should review de novo a district court’s

determination of state law”).
No. 10-50283

1 The court also held that Liberty Mutual did not have a claim for contribution against

Mid-Continent, id. at 772–73, but that portion of its ruling is irrelevant here because

Maryland’s claim for contribution was dismissed by the district court and is not before us on

cross-appeal.

7

Mid-Continent involved a dispute between two primary liability insurers,

Mid-Continent Insurance Co. (“Mid-Continent”) and Liberty Mutual Insurance

Co. (“Liberty Mutual”), which provided the same insured with coverage under

policies with $1 million limits and standard provisions. Id., 236 S.W.3d at 769.

Liberty Mutual also provided additional coverage under a $10 million excess

policy. Id. The two insurers admitted coverage and cooperatively assumed

defense of a lawsuit against their common insured. Id. at 769–70. Liberty

Mutual reached a settlement in the amount of $1.5 million and demanded that

Mid-Continent contribute its proportionate part, but Mid-Continent valued the

case at no more than $300,000 and refused to contribute any more than

$150,000. Id. at 770. The settlement was eventually funded $1.35 million by

Liberty Mutual and $150,000 by Mid-Continent. Id. Liberty Mutual then sued

Mid-Continent under theories of direct contribution and contractual and/or

equitable subrogation, seeking to recover Mid-Continent’s pro rata portion ofthe

settlement payment. Id.

The Texas Supreme Court held that Liberty Mutual could not recover

under theories of contractual or equitable subrogation against Mid-Continent.1

Id. at 774. Under either theory, “the insurer stands in the shoes of the insured,

obtaining only those rights held by the insured against a third party, subject to

any defenses held by the third party against the insured.” Id. The insured had

been fully indemnified against his loss, and therefore had no contractual right

to recover an additional pro rata portion of the settlement from Mid-Continent.

Id. at 775–76. The court held that Liberty Mutual, standing in the shoes of the
No. 10-50283

2 Acceptance never presented, and we therefore do not address, the question raised by

Maryland in its response brief whether our holding in Trinity Universal (allowing an insurer

to recover a co-insurer’s share of defense costs under a claim for contribution) extends to

awarding defense costs on a claim for subrogation, as the district court did here. We express

no opinion on this question.

3 The district court also based its decision on Maryland’s argument that Mid-Continent

does not apply to cases involving consecutive, rather than concurrent, liability policies.

Because we affirm on the alternate ground that Acceptance denied coverage, we need not reach

the consecutive coverage argument here.

8

insured, likewise had no contractual rights against Mid-Continent that it could

assert in subrogation. Id. at 776. 

We recently rejected an overly broad view of Mid-Continent’s subrogation

exclusion, holding that Mid-Continent does not bar contractual subrogation

simply because the insured has been fully indemnified. See Amerisure Ins. Co.

v. Navigators Ins. Co., 611 F.3d 299, 305–07 (5th Cir. 2010). We further held in

Amerisure that Mid-Continent does not bar contractual subrogation where, as

here, an insurer has denied coverage. Id. at 307–08. Mid-Continent therefore

does not bar Maryland’s recovery, on a claim of subrogation, of Acceptance’s pro

rata share of the settlement. Acceptance absolutely refused to defend and

indemnify Guidry; Maryland’s insurance policy created a right of contractual

subrogation; and its settlement of the McGee lawsuit preserved its right to seek

reimbursement from Acceptance for those indemnification costs. 

Turning to Maryland’s recovery of Acceptance’s share of the defense costs,

Acceptance’s sole argumentis that Mid-Continent bars Maryland from recovery.

But as we recently made clear in Trinity Universal Insurance Co. v. Employers

Mutual Casualty Co., 592 F.3d 687 (5th Cir. 2010), Mid-Continent does not

address the recovery of defense costs from a co-insurer who violates its duty to

defend a common insured.2Id. at 694. We therefore affirm the district court’s

judgment as to Maryland’s subrogation claim.3
No. 10-50283

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III. Jury Instructions

Acceptance argues that the district court erred in defining “occurrence” in

its instructions to the jury, and that the district court’s incomplete definition

misled and confused the jury as to the law. Acceptance timely objected to the

jury charge, and we therefore review the instructions for an abuse of discretion.

Jowers v. Lincoln Elec. Co., 617 F.3d 346, 352 (5th Cir. 2010). “We review a

defendant’s objection to the jury instruction by assessing whether the district

court’s charge, as a whole, was a correct statement of the law and whether it

clearly instructed the jurors as to the principles of the law applicable to the

factual issues confronting them.” United States v. Conner, 537 F.3d 480, 486

(5th Cir. 2008). 

The court instructed the jury as follows:

“Occurrence” means an accident, including continuous or repeated

exposure to substantially the same general harmful conditions. A

deliberate act, performed negligently, is an accident if the effect is

not the intended or expected result. 

The first sentence is quoted from Acceptance’s policy language, while the second

sentence—proffered by Maryland—is language taken from the Texas Supreme

Court’s opinion inLamar Homes, Inc. v. Mid-Continent Casualty Co., 242 S.W.3d

1 (Tex. 2007).

Acceptance argues that the district court should have included the

following third sentence: “An occurrence is not an accident if circumstances

confirm that the resulting damage was the natural and expected result of the

insured’s actions,thatis, was highly probable whether the insured was negligent

or not.” This language is also taken from Lamar, and directly follows the

language that was proffered by Maryland and accepted by the district court. See

id. at 8. Acceptance contends that the district court’s refusal to include this

third sentence resulted in an unbalanced instruction, giving the jury a
No. 10-50283

4 Acceptance also points to our own use of its proffered language in discussing whether

the negligent construction of a different swimming pool was an “occurrence” in Century Surety

Co. v. Hardscape Construction Specialties, Inc., 578 F.3d 262 (5th Cir. 2009). However, we

used that language in Century Surety only to show that the Texas Supreme Court has held

that“allegations of unintended construction defects may constitute an ‘accident’ or ‘occurrence’

under commercial general liability (CGL) policies.” Id. at 265–66 (quoting Lamar, 242 S.W.3d

at 9). In fact, we held in Century Surety that the policy definition of “occurrence” in Century

Surety—which was identical to Acceptance’s policy definition—covered the defective

construction of the swimming pool that was alleged to be a product of the contractor’s

negligence in that case. Id. at 266. 

10

misleading or inadequate understanding of what constitutes an “occurrence” and

tilting the playing field in Maryland’s favor. 

It seems to us that Acceptance’s proffered instruction on what is not an

occurrence is fairly close to the converse of the instruction that was already

given to the jury. See Davis v. Ector Cnty., 40 F.3d 777, 786 (5th Cir. 1994)

(“The district court has wide latitude in instructing the jury on the law and we

willthus ignore technical imperfections.”(citation and internal quotation marks

omitted)). This point is bolstered by the fact that Acceptance has not shown how

it would have argued the case any differently had the court given its requested

instruction. See id. (stating that we will reverse if we conclude that, based upon

the record, an erroneous instruction affected the outcome of the case).

Furthermore, including both definitions may have risked confusing the jury. See

id. (“The function of the reviewing court with respect to instructions is to satisfy

itself that the instructions show no tendency to confuse or mislead the jury with

respect to the applicable principles of law.” (citation and internal quotation

marks omitted)). We therefore hold that the district court did not abuse its

discretion in excluding Acceptance’s proffered instruction.4

IV. Insufficiency of the Evidence

Finally, Acceptance argues that the district court erred in denying its

motion for judgment as a matter of law because Maryland’s evidence was legally
No. 10-50283

5 Acceptance also argues, as a separate issue on appeal,thatthe trial court“should have

disregarded the jury’s findings and entered judgment in favor of Acceptance because all of the

evidence establishes that the Subsidence Exclusion and Ongoing Damages Exclusion preclude

coverage in this case.” This argument simply repeats Acceptance’s challenge to the sufficiency

of the evidence in Questions Two and Four, and we do not address it separately.

11

insufficient to support the jury’s verdict as to Questions Two and Four.5

Acceptance raised this argument for the first time in its post-verdict motion

under Rule 50(b); it did not move for judgment as a matter of law under Rule

50(a) before the case was submitted to the jury. As we have previously stated:

If a party fails to move for judgment as a matter of law under [Rule]

50(a) on an issue at the conclusion of all of the evidence, that party

waives both its rightto file a renewed post-verdict Rule 50(b) motion

and also its right to challenge the sufficiency of the evidence on that

issue on appeal. As such, it is the unwavering rule in this Circuit

that issues raised for the first time on appeal are reviewed only for

plain error. On plain error review, the question for this court is not

whether there was substantial evidence to support the jury verdict,

but whether there was any evidence to support the jury verdict. If

any evidence exists that supports the verdict, it will be upheld.

Flowers v. S. Reg’l Physician Servs., 247 F.3d 229, 238 (5th Cir. 2001) (emphasis

added) (citations,footnote, and internal quotation marks omitted). We therefore

review for plain error only, and we will not reverse the district court unless there

is no evidence to support the jury’s verdict.

A. The “Ongoing Damages” Exclusion (Question Two)

The “ongoing damages” exclusion in Acceptance’s policies is actually an

endorsement that modifies the coverage agreement. It states that Acceptance’s

insurance coverage applies to “property damage” only if the property damage is

caused by an “occurrence,” and the property damage “first occurs” during the

policy period. “Property damage” is defined in Acceptance’s policies, and was

defined for the jury, as “[p]hysical injury to tangible property, including all

resulting loss of use of that property.” 
No. 10-50283

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Question Two asked the jury: “Did any of the property damage that was

the basis of the lawsuit brought by Hugh McGee first occur during any of the

three Acceptance policy periods?” The jury answered “Yes.” 

There is evidence to show that two significant types of property damage

first occurred during one of Acceptance’s policy periods: the third leak that

drained the pool, and the long crack along the negative edge wall. Hugh McGee

and Stephen LeBreton, McGee’s property manager, both testified thatthis third

leak occurred in March 2005. Stewart Verhulst, Maryland’s structural

engineering expert, testified that both this leak and the negative edge wall

crack, which was discovered after the pool had drained, first occurred in March

or April of 2005, well within Acceptance’s second policy period. The factual

testimony of Hugh McGee and Stephen LeBreton, and the expert testimony of

Stewart Verhulst, is evidence that “[some] of the property damage that was the

basis of the lawsuit brought by Hugh McGee first occur[red] during [one] of the

three Acceptance policy periods.” Because there is some evidence in the record

to support the jury’s verdict on this question, there is no plain error. 

Acceptance does not appear to contest that these damage events of March

2005—the major leak that drained the pool and the crack along the negative

edge wall—occurred during its policy period. Nevertheless, Acceptance argues

that there was no evidence to support the jury’s finding that this damage first

occurred during its policy period. Acceptance’s theory is that the damage to the

pool was entirely caused by Guidry’s alleged failure to properly set the support

piers in the pier-and-beam structure on solid rock in 2003. This failure,

according to Acceptance, resulted in a continuous movement of earth over the

next few years, which ultimately caused the leaks and the negative edge wall

crack that developed in 2005. Acceptance argues, therefore, that all of the

damage that occurred in 2005—including the major leak and the wall

crack—should merge with the failure to properly set the piers, and should
No. 10-50283

13

therefore be deemed to have “first occurred” in 2003, during Maryland’s policy

period.

This theory required the jury to conclude, as a factual matter, that Guidry

failed to properly set the support piers on solid rock, that this failure caused the

earth to move under the pool structure, and that all the damage to the pool can

be traced to this failure and the resulting movement of earth. However, there

is some evidence from which the jury could have concluded otherwise.

Maryland’s structural engineering expert, Stewart Verhulst, testified that it was

structural movement between the pool shell and the pier-and-beam structure,

as distinct from earth movement, that led to the large crack. Verhulst also

testified that Mike Martinez—one of Guidry’s subcontractors, who testified that

he had not set the support piers on solid rock—was not qualified to testify on

that issue, and that Martinez might have believed that an acceptable limestone

formation was not “solid rock.” 

Even if the jury had agreed with Acceptance’s premises, Acceptance’s

“bootstrapping” theory of when property damage “first occurs” is foreclosed as

a matter of law. See VRV Dev. L.P. v. Mid-Continent Cas. Co., 630 F.3d 451, 458

(5th Cir. 2011) (“ ‘[P]roperty damage’ does not necessarily ‘occur’ at the first link

in the causal chain of events giving rise to that property damage. . . . As the

Texas Supreme Court has instructed, we must focus on the time of the ‘actual

physical damage’ to the property, and not the time of the ‘negligent conduct’ or

the ‘process . . . that later results in’ the damage.” (second alteration in original)

(quoting Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 24,

29–30 (Tex. 2008))); Wilshire Ins. Co. v. RJT Constr., LLC, 581 F.3d 222, 225

(5th Cir. 2009). 

In Wilshire, the insured repaired the foundation of a home after the home

was damaged by an accidental discharge of plumbing water. 581 F.3d at 224.

When cracks appeared in the walls and ceiling of the home, its owner attributed
No. 10-50283

14

the damage to the foundation being out of level and sued the insured. Id. We

held:

The cracks themselves are physical damage allegedly caused by the

faulty foundation. This is not a case where latent internal rot long

lies undiscovered before external signs warn of the festering

damage. The cracks are not merely a warning of prior undiscovered

damage; they are the damage itself. It is of no moment that the

faulty foundation work occurred in 1999 [before the policy period],

or that the damage was discovered in 2005; it matters only that

damage was alleged to have occurred in 2005. 

Id. at 225 (footnotes omitted); see also VRV Dev., 630 F.3d at 458 (stating that

in Wilshire, “we refused to conflate an allegedly defective foundation with the

separate property damage that ultimately resulted”). 

Here, the actual physical damage to the property—the leaks and

crack—occurred in March 2005, well within Acceptance’s second policy period.

It is therefore of no moment that any alleged negligence that purportedly later

resulted in this damage occurred during Maryland’s policy period. As we stated

in VRV Development,theTexas Supreme Courtinstructs us to “focus on the time

of the actual physical damage to the property, and not the time of the negligent

conduct or the process . . . that later results in the damage.” Id., 630 F.3d at 458

(alteration in original) (citation and internal quotation marks omitted).

We therefore affirm the district court’s judgment against Acceptance’s

challenge on this ground. 

B. The “Subsidence of Earth” Exclusion (Question 4)

The “subsidence of earth” exclusion in Acceptance’s policies reads:

It is agreed this policy shall not apply to any claim of liability for . . .

“property damage” caused by, resulting from, attributable or

contributed to, or aggravated by the subsidence of land as a result

of landslide, mudflow, earth sinking or shifting, resulting from your

operations or your subcontractor’s operations. 

It is further agreed we shall have no obligation to defend or

indemnify any insured for such loss, claim or suit.
No. 10-50283

15

Question Four asked the jury:“Was any ofthe property damage caused by,

resulting from, attributable or contributed to, or aggravated by the subsidence

of land as a result of landslide, mudflow, earth sinking or shifting, resulting from

Russell Guidry d/b/a Olympic Pools’ operations or his subcontractor’s

operations?” The jury answered “No.”

There is some evidence in the record to support the jury’s verdict as to

Question Four. Stewart Verhulst, Maryland’s structural engineering expert,

testified that it was structural movement between the pool shell and the pierand-beam structure that led to the large crack, and that structural movement

was different and distinct from soil movement. He also testified that the

measurements he took of the coping elevations gave no indication that the pierand-beam structure had moved. Verhulst further testified that he had not

reviewed any evidence to indicate that any landslide, mud flow, earth sinking

or shifting, or erosion was the result of Guidry or his subcontractors’ operations.

Maryland’s claims adjuster, Kathy Murray, testified that, had she believed

that earth movement led to the leaks and the crack in the pool, she would not

have settled the claim because Maryland also had an earth movement exclusion

that would have allowed it to deny coverage. Maryland’s “earth movement”

exclusion stated, in relevant part, that Maryland would not pay for loss or

damage caused directly or indirectly by “[a]ny earth movement (other than

sinkhole collapse), such as an earthquake, landslide, mine subsidence or earth

sinking, rising or shifting.” 

The expert testimony of Stewart Verhulst and the factual testimony of

Kathy Murray is evidence from which the jury could have concluded that none

of the property damage at issue in this case was “caused by, resulting from,

attributable or contributed to, or aggravated by the subsidence of land as a

result of landslide, mudflow, earth sinking or shifting, resulting from Russell

Guidry d/b/a Olympic Pools’ operations or his subcontractor’s operations.” We
No. 10-50283

6 Because we affirm on this ground, we do not reach Maryland’s alternative argument

that Acceptance’s subsidence exclusion does not apply as a matter of law.

16

therefore conclude that there was no plain error, and we affirm the district

court’s judgment against this challenge.6

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court

entered on the verdict in this case.