United States Court of Appeals

Fifth Circuit

FILED

January 27, 2006

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 04-11345

_______________

EMCASCO INSURANCE COMPANY,

Plaintiff-Appellant,

VERSUS

AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

______________________________

Before GARWOOD, SMITH, and DEMOSS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

EMCASCO Insurance Company (“EMCASCO”) filed a subrogation suit against

American International Specialty Lines Insurance Company (“AISLIC”) to recover under

AISLIC’s commercial general liability policy

for monies EMCASCO paid in defense and

settlement of an underlying suit against the

two insurers’ mutual insured. After limited

discovery, both parties moved for summary

judgment. The district court granted AISLIC’s

motion, denied EMCASCO’s, and dismissed

the subrogation suit with prejudice. Finding the

need for further proceedings, we vacate and

remand.

I.

A.

In February 2001, Jaime Langston was driving down a paved, public country road with her

young son when she skidded on a patch ofslick

mud, clay, and/or sand. The car swerved off
2

the road, striking a tree. Langston suffered

serious injuries, and her son died at the scene.

B.

In April 2002, the Langstons sued Wilson-Riley,Inc.(“Wilson-Riley”),1

the operator

of a sand pit located immediately adjacent to

the accident site, in state court on the premise

that Wilson-Riley, as part of its operation at

the sand pit, hauled sand from the pit in trucks

that it owned and operated. The original complaint alleged that because of heavy rains preceding the accident, Wilson-Riley’s trucks

tracked mud onto the roadway when exiting a

driveway leading away from the sand pit and

that the mud on the road was the producing

cause of the accident. 

Wilson-Riley and SLS had two different

insurance policies covering their activities at

the sand pit. Specifically, EMCASCO issued

a commercial auto liability policy to Wilson-Riley and SLS, and AISLIC issued both

companies a commercial general liability policy

(the “CGL policy”). EMCASCO’s commercial auto liability policy provides, in relevant

part:

SECTION IISSLIABILITY COVERAGE

A. COVERAGE

 We will pay all sums an insured legally

must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and

resulting from the ownership, maintenance

or use of a covered auto.

AISLIC’s CGL policy, meanwhile, provides

coverage as follows:

1. Insuring Agreement

a. We will pay those sums that the insured

becomeslegally obligated to payas damages

because of bodily injury or property damage

to which this Coverage applies. We will

have the right and duty to defend any suit

seeking those damages. However, we will

have no duty to defend the insured against

any suit seeking damagesfor bodilyinjury or

property damage to which this Coverage

does not apply. We may, at our discretion,

investigate any occurrence and settle any

claim or suit that may result.

AISLIC’s policy also contains the following

exclusion:

2. Exclusions

This insurance does not apply to:

. . .

g. Aircraft, Auto or Watercraft

Bodily injury or property damage arising out

of the ownership, maintenance, use or entrustment to others of any aircraft, auto or

watercraft owned or operated by or rented

or loaned to any insured. Use includes

operation and loading or unloading.

About seven weeks after the accident but a

year before the Langstons sued, EMCASCO

hired defense counsel Mike Winchester to defend Wilson-Riley. In doing so, EMCASCO

asserted its reservation of rights in defending

the suit. In April 2002, AISLIC hired its own

defense counsel, Chad Parker, to represent Wilson-Riley’s interests in the Langston suit.

1

 The Langstons amended their petition in July

2002, adding SLS Management Corporation

(“SLS”), the owner of the property where the sand

pit was located, as a defendant.
3

AISLICalso issued Wilson-Rileya reservation

of rights letter in which AISLIC advised that,

in its view, the existence of the auto exclusion

provision in the CGL policy precluded

coverage in the Langstons’ suit. Specifically,

AISLIC stated:

While the plaintiff’s pleadings are ambiguous, we expect that it will come out during

the course of thislitigation that the only involvement of Wilson-Riley, Inc., was the

fact that its “autos,” as defined by the policy, were going into and out of the sand

pit/premises in question for some weeks

proceeding [sic] the accident, and liability

for this would fallsquarely under the above

exclusion . . . . It appears that there will be

no coverage for the damages claimed bythe

plaintiff by virtue of the above policy

provisions.

After hiring Parker, AISLIC agreed, in January 2003, to settle the Langstons’ claims

against SLS for $200,000. After the settlement, counselfor EMCASCO and Wilson-Riley’s personal counsel notified AISLIC that

they believed the claims the Langstons had

remaining against Wilson-Riley still invoked

AISLIC’s coverage. 

It is at this point that the parties disagree as

to the extent of the work performed by Parker

in AISLIC’s defense of Wilson-Riley. EMCASCO maintains that, after the SLS settlement, Parker never reappeared in the suit in

Wilson-Riley’s defense. Meanwhile, AISLIC

argues that at the time it secured the settlement between the Langstons and SLS, the discovery and pleading deadlines relating to Wilson-Riley had passed under the terms of the

docket control order. AISLIC acknowledges

that Parker did little or no work on behalf of

Wilson-Riley after that time but insists that

there was little substantive work to be done

aside from actually trying the case.

EMCASCO thereafter demanded that AISLIC share equally in the cost ofsettling the case

on Wilson-Riley’s behalf. AISLIC refused,

citing the Langstons’ pleadings, the evidence it

assumed would be introduced at trial, and

statements made by the Langstons’ counsel as

eliminating any liability that AISLIC might be

exposed to under its CGL policy. 

In effect, AISLIC maintained that Wilson-Riley only faced liability stemming from

EMCASCO’s auto liability policy. The last

version of the Fourth Amended Complaint,

however, circulated after SLS settled, alleges

that the unpaved exit that Wilson-Riley created

from the sandpit to the public road “caused a

washing of mud onto the road during rainy

weather” and that the “exit drive was not paved

until after the accident.” It also includes a separate claim for negligence per se because the

defendant “obstructed the road adjacent to its

worksite, which is a violation of Section 42.03

of the Texas Penal Code.” 

AISLIC did offer to contribute $20,000 to a

potential settlement in Wilson-Riley’s defense.

EMCASCO refused the offer because AISLIC

conditioned the money on the agreement that

the parties would not later attempt to re-allocateWilson-Riley’ssettlement costs. EMCASCO advised AISLIC that it would settle the

claims against Wilson-Riley without AISLIC’s

participation. EMCASCO then obtained a release of all claims against Wilson-Riley by settling with the Langstons for $350,000.

EMCASCO sued AISLIC for subrogation,

seeking to recover all or part of the $350,000 it

had paid the Langstons in settlement. After

limited discovery, EMCASCO and AISLIC simultaneously filed cross-motions for summary

judgment. 
4

The district court granted AISLIC’s motion, finding that theLangstons’ damages were

covered by EMCASCO’s auto liability policy

and were explicitly excluded by AISLIC’s

CGL policy. It held that the washing of the

mud from the unpaved roadway could not

have been a “separate” and “independent”

cause of the accident, which would have indicated that AISLIC’s policy also covered the

accident. The court determined that the

mud/clay tracked onto the public road by Wilson-Riley “necessarily involved the use of motor vehicles, triggering coverage under its auto

policy with EMCASCO.” EMCASCO appeals.

II.

A.

We review a summary judgment de novo,

applying the same standard as did the district

court. Tango Transp. v. Healthcare Fin.

Servs. LLC, 322 F.3d 888, 890 (5th Cir.

2003). Summary judgment is appropriate if

there is no genuine issue of material fact and

the moving party is entitled to judgment as a

matter of law. FED.R.CIV. P. 56(c). We view

the evidence in a light most favorable to the

non-movant. Coleman v. Houston Indep. Sch.

Dist., 113 F.3d 528, 533 (5th Cir. 1997). To

avoid summary judgment, the non-movant

must go beyond the pleadings and come forward with specific facts indicating a genuine

issue for trial. Celotex Corp. v. Catrett, 477

U.S. 317, 324 (1986). A genuine issue of materialfact exists when the evidence issuch that

a reasonable jury could return a verdict for the

non-movant. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). Summary

judgment is appropriate, however, if the

non-movant “failsto make a showing sufficient

to establish the existence of an element

essential to that party’s case.” Celotex, 477

U.S. at 322-23.

B.

EMCASCO maintains the district court

erred in interpreting the auto exclusion clause in

AISLIC’s CGL policy, which precludes coverage for damages arising out of the “ownership, maintenance, use or entrustment” of any

auto owned or operated by the insured, to

eliminate AISLIC’s liability for monies recovered in the Langstons’suit. EMCASCO argues

that the recovered damages did not arise out of

the use of a vehicle; it claims the clause is susceptible to more than one reasonable interpretation and thus, under Texas law, should be

construed to provide coverage for any “not unreasonable” construction. EMCASCO insists

that the district court erred by not addressing

the coverage issue against the backdrop formed

by Texas law regarding the construction of insurance contracts.

AISLIC, meanwhile, argues that, for three

reasons, this court should not defer to the “not

unreasonable” construction ofthe relevant coverage provisions. First, it contends the policies

at issue contain no ambiguity that would implicate the method of contract construction favoring the insured. Second, it insists that EMCASCO’s proposed reading ofthe policies does

not favor the insured, Wilson-Riley, because

EMCASCO’s interpretation merely shifts the

coverage for the underlying settlement from

EMCASCO to AISLIC, yielding no benefit to

Wilson-Riley. Finally, AISLIC maintains that

EMCASCO’s interpretation of the policies is

unreasonable because it is inconsistent with

Texas law and relies on caselaw that is inapposite to the facts. 

Under Texas law, whether an insurer has a

duty to defend is governed by the “eight corners rule” whereby the allegations in the petition filed against the insured are compared

against the insurance policy. King v. Dallas

Fire Ins. Co., 85 S.W.3d 185, 187 (Tex. 2002).
5

In reviewing the underlying petition, we focus

on the factual allegations that show the origin

of damagesrather than on the legal theories alleged. Nat’l Union Fire Ins. Co. v. Merchs.

Fast Motor Lines, 939 S.W.2d 139, 141 (Tex.

1997) (per curiam). Any ambiguity in the coverage language should be read in favor of the

insured. Trinity Universal Ins. Co. v. Cowan,

945 S.W.2d 819, 825 (Tex. 1997). Importantly, in a subrogation case such as this, Texas

law recognizes the right of one insurer to seek

payment from a second insurer under the

doctrine of equitable subrogation.2

To recover damages, the plaintiff must

show a causal relationship between the injury

and the use of the auto. Nat’l Union, 939

S.W.2d at 142. In National Union, the court

found that the facts alleged in the pleadings did

not suggest even a remote causal relationship

between the truck’s operation and the plaintiff’s injury and concluded that the insurer’s

auto liability coverage was not triggered:

“The only facts alleged . . . are that Hart was

operating a Merchants truck when he negligently discharged a firearm injuring Gonzalez.

Given their most liberal interpretation, these

allegations do not suggest that Gonzalez’s injury resulted from the use of the truck.” Id. at

141-42. 

The Langstons’ third amended petition

states that “[a]s to Defendant Wilson-Riley,

Inc., it isspecifically alleged that the bodily injury, wrongful death, and property damage

was caused by an accident resulting from the

ownership, maintenance and use [of] the trucks

hauling sand from the worksite in question.”

This language suggests that based on the

pleadings alone, it cannot be said that a causal

relationship was not alleged between the use of

the trucks and the injury. Therefore, unlike the

auto insurer in National Union, EMCASCO is

not entitled, based on the pleadings alone, to a

determination that there was no coverage.

Rather, the pleadings show that EMCASCO

had a duty to defend. 

The duties to defend and to indemnify are

distinct and separate, however. See Farmers

Tex. Co. Mut. Ins. Co. v. Griffin, 955 S.W.2d

81, 82 (Tex. 1997). An insurer may initially

have a duty to defend but, eventually, no duty

to indemnify. Id. Therefore, we must determine

whether there is a duty to indemnify.

In deciding whethersuch a dutyto indemnify

exists, Texas courts use the “complete operation” theory, Travelers Ins. Co. v. Employers Cas. Co., 380 S.W.2d 610, 612 (Tex.

1964), under which “the provision for use coverage extends to foreseeable consequences of

what was done in connection with the use of

the car, . . . so long as the act or thing done by

the insured’s employee which causes the accident arises out of the use of the insured’s car,”

Red Ball Motor Freight v. Employers Mut.

Liab. Ins. Co., 189 F.2d 374, 377 (5th Cir.

1951). Further, “‘[a]rising out of’ are words of

much broader significance than ‘caused by.’

They are ordinarily understood to mean ‘originating from’ ‘having its origin in,’ ‘growing

out of’ or ‘flowing from,’ or in short, ‘incident

to, or having connection with,’ the use of the

car.” Id. at 378.

In Red Ball, we held that the act of the driver of a tractor in not closing the fueling valve,

which proximately caused an explosion, was an

act that arose out of the use of the truck

2 Gen’l Star Indem. Co. v. Vesta Fire Ins. Co.,

173 F.3d 946, 949 (5th Cir. 1999) (citation omitted) (defining equitable subrogation as “the legal

fiction through which a person or entity, the subrogee, is substituted, or subrogated, to the rights and

remedies of another by virtue of having fulfilled an

obligation for which the other was responsible”).
6

because it was incident to, and having a connection with, the use of the truck. Id. In doing so, we emphasized that “fueling a truck for

the journey was just as much a ‘use’ of it as

making the journey would be.” Id. In sum,

the “complete operation” test has two distinct

inquiries: (1) whether the insured’s act was an

act incident to, and having a connection with,

the use of the truck3and (2) whether that act

proximately caused plaintiff’s injury.4

With respect to the first inquiry, Texas

courts have read business auto policiesto cover loading and unloading of the covered vehicle even if that is not specifically mentioned in

the text of the policy.5 Further, loading and

unloading has been interpreted to cover acts

incident to making a commercial delivery; this

includes “the entire process involved in the

movement of the articlesfrom the place where

insured’s employeesfind the articles which are

to be moved by truck, to the place where the

employees of insured turn them over to the

party to whom they are to make delivery.” Am.

Employers’ Ins. Co. v. Brock, 215 S.W.2d 370

(Tex. Civ. App. 1948, writ ref’d n.r.e.); Travelers, 380 S.W.2d at 612. 

Under this expansive view of what constitutes an auto “use,” an insurer was liable for injuries sustained by a pedestrian who fell into an

opensidewalk elevatorshaft when employeesin

charge of the insured truck left the shaft doors

open while obtaining cross bars to guard the

shaft, notwithstanding that nothing had been

loaded onto or unloaded from the truck at the

time of the fall. Am. Employers’, 215 S.W.2d

at 370. Therefore, for insurance coverage to

exist, the vehicle itself need not be in “operation” or “in motion” or an “active participant”

in the plaintiff’s injuries:

[The auto insurer] also relies on the rule that

there must be a causalrelation or connection

between the accident or injury and the ownership, maintenance or use of the vehicle.

This does not mean that the accident must

be caused by negligent operation of the vehicle orsome defect therein. When a vehicle

is being unloaded it is being used to the

same extent as if it were being driven, and

the person doing the unloading is entitled to

the same protection as the owner or operator.

Travelers, 380 S.W.2d at 614. 

It appears that Texas courts have never decided whether mud, clay, sand, or other debris

tracked by a truck’s tires or fallen from its cargo isincident to its use. We conclude, from the

broad interpretation Texas courts have given to

what is incident to the use of an automobile,

that such debris is indeed incident to the use of

the vehicle. Debris falling from a car’s cargo is

incident to the transportation of that cargo: It

3 Red Ball, 189 F.2d at 377 (noting that coverage extends “so long as the act or thing done by

the insured’s employee which causes the accident

arises out of the use of the insured’s car”); id. at

378 (“That this act of the driver of the tractor, in

not closing the valve, was an act incident to, and

having a connection with, the ownership, maintenance, or use of the truck, we think may not be

questioned.”).

4

Id. at 377 (emphasis added) (stating that “the

provision for use coverage extends to foreseeable

consequences of what was done in connection with

the use of the car”); id. at 378 (“That the cause of

the escape of the gasoline, which in unbroken

sequence proximately caused the explosion wasthe

negligent act of the driver of the truck in failing

properly to close the valve after he had finished

fueling histruck from the tank, was not disputed”).

5 Panhandle Steel Prods. Co. v. Fidelity Union

Cas. Co., 23 S.W.2d 799 (Tex. Civ. App. 1929,

no writ). 
7

is inherent in the transportation of cargo that

some of it may spill or fall unto the road.6

Similarly, the tracking of debris by the tires is

incident to the operation of a vehicle on

unpaved roads: It is inherent in driving on

unpaved roads that some sand, mud, or clay

may attach to the tires.7

Further, because the plaintiff’sinjuries need

not be caused by the negligent operation of the

vehicle, but instead by an act incident to its use,

it is not necessary that the plaintiff’s injuries

occur at the time of or immediately after the

tracking of debris on the highway.8 We thus reject EMCASCO’s contention that the “causal

standard mandated by the phrase ‘arising out

of,’ however broad, appears at least to require

the contemporaneous use of the insured’s vehicle.”9

 The accident need not be contemporaneous with the use of the vehicle so long as it

is a foreseeable consequence of an act incidental to the use of the vehicle, such asthe tracking

of debris. 

This takes us to the second test for determining whether a duty to indemnify exists:

whether the tracking of mud onto the highway

was the proximate cause of the injuries. The

reasoning for this inquiry is plain: If the factfinder determines that the insured’s act in connection with the use ofthe vehicle did not proximately cause the injuries, the insured is not

liable, and the insurer has no duty to

indemnify.10 

6 Naturally, not every act in connection with a

vehicle is “use.” For instance, a drive-by shooting

from a vehicle is not an act incident to its “use.”

See, e.g., Collier v. Employers Nat'l Ins. Co., 861

S.W.2d 286, 289-90 (Tex. App.–Houston [14th

Dist.] 1993, writ denied) (holding that a drive-by

shooting does not involve the use of a motor vehicle

“simply because an automobile provided the site

for a criminal assault or provided transportation to

the location of a criminal act”).

This is because “[t]he use required is of the vehicle qua vehicle, rather than simply as an article

of property.” Mid-Century Ins.Co. v. Lindsey, 997

S.W.2d 153 (Tex. 1999). Unlike the unloading,

which is a use of the vehicle qua vehicle (because

it is necessary to the delivery/transportation of

goods), a drive-by shooting is not “incident” to the

use of the vehicle because transportation of people

or goods does not necessarily involve a shooting.

7

See also Jackson v. Daley, 739 So.2d 1031,

1041 (Miss. 1999) (holding that injuries resulted

from the ownership, maintenance, or use of an automobile because plaintiff was injured after colliding with a pile of dirt dumped on the side of a road

by one of the insured’s dump trucks, notwithstanding subsequent failure to clean up the dirt); Merchants Co. v. Hartford Accident & Indem. Co.,

188 So. 571, 571 (Miss. 1939) (holding that injuries arose out of the ownership, maintenance or use

of automobile where motorist’s car struck poles

that another driver had left lying in the roadway

after using them to extricate his truck from a roadside ditch hours earlier).

8 EMCASCO argues that the language of the

insurance contracts at issue is ambiguous and thus

maintains we should construe any such ambiguity in

the contract to favor coverage. Because we see no

ambiguity, we decline to apply the “not unreasonable” contract interpretation urged by

EMCASCO.

9 For that reason, Lindsey, 997 S.W.2d 153,

does not support the arguments advanced by EMCASCO. That is, even if the Appleman-Couch test

were to apply, it would not dictate the result EMCASCO urges, namely that the use of the vehicle

has to be contemporary with the injury.

10 An act incident to the use of a vehicle need not

always be the proximate cause of the injury. For

instance, if a defendant left debris on a road but

(continued...)
8

In this regard, the operation or driving of

the vehicle need not be the proximate cause of

the injuries.11 This observation merely restates

the notion we discussed earlier, i.e., that a

vehicle need not be in active operation (such

as in a collision) for insurance coverage to

exist. Rather, as this court has interpreted

Texas law in Red Ball, 189 F.3d at 378, only

the act incident to, or in connection with, the

use of the vehicle must be the proximate cause

of the injuries.

Although it was foreseeable that debris left

on the road could cause an accident, we do not

know whether the accident would not have occurred without the tracking of the debris.12

The washing of mud and sand off the unpaved

road leading to the public, paved road could

have independentlyproduced the accident: The

amount of mud accumulated from the rain

could have been sufficient to cause the accident

even if no mud had been tracked by the trucks.

Further, the washing of mud off the unpaved

roadway would be a separate cause of the accident. That is, the washing of mud off the

unpaved roadway is not derivative of the act of

tracking mud by trucks; it could have occurred

regardless of the presence of the trucks.13 

AISLIC’s policy covers the allegations with

respect to the washing of the mud by the rain,

which are allegations unrelated to the use of the

trucks, and covers the separate claim for negligence per se based on the obstruction of “the

road adjacent to [Wilson-Riley’s] worksite,

which is a violation of Section 42.03 of the

Texas Penal Code.”14 Although AISLIC’s

10(...continued)

accompanied it with sufficient warning signs, and

a plaintiff, driving drunk and without required

corrective lenses, ignored the signs, it cannot be

said that the debris on the highway proximately

caused the injury if the law regarded such negligent

conductsufficiently unforeseeable and superseding

so as to interrupt the chain of causation.

11 Cf. Panhandle Steel, 23 S.W.2d at 802:

The act of unloading the automobile was not an

act separate and independent of the use of the

truck, but was a step incident to the use and

necessary to accomplish the purpose thereof.

And,since it followed in a natural and continual

sequence from the use, it would seem to follow

logically that the act of unloading would not

preclude a holding that the use of the truck was

the proximate cause of the injury, if, indeed,

such a holding be necessary to support a

recovery by the plaintiff against the defendant.

(Emphasis added.)

12 Cf. id. (“The proximate cause of an event

must be understood to be that which, in a natural

(continued...)

12(...continued)

and continual sequence, unbroken by any new, independent cause, produces that event, and without

which that event would not have occurred.”) (emphasis added).

13 AISLIC argues that EMCASCO has waived

the argument that AISLIC’s policy applied despite

the exclusion because of separate and independent

causation. EMCASCO raised that issue in the district court, however, and argues on appeal that AISLIC’s policy covers the claim. Thus, the argument

was preserved, albeit weakly.

14 In paragraph 36 of its first original amended

answer, AISLIC admitted that if the facts alleged in

the last version of the complaint were proved,

AISLIC’s policy could have provided coverage:

“Recognizing that this [Third Version of the Fourth

Amended Complaint] might theoretically invoke its

coverage (which would actually occur only if

plaintiff offered proof of facts which she had

(continued...)
9

CGL policy excluding coverage and EMCASCO’s auto policy providing coverage are nearlyidentical,15 the polices aremutuallyexclusive

only with respect to which policy covers the

tracking of mud by the tires, which is the only

issue with respect to the use of an auto. 

The non-excluded event, the washing of

mud from the unpaved roadway, however, is

covered by the general liability policy, because

it could have independently caused the injuries. When two separate eventsSSone that is

excluded and one that is covered by the general liability policySSmay independently have

caused the accident, Texas law mandates that

the general liability policy also provide coverage despite the exclusion.16

We question the district court’s assertion

that the washing of the mud off the unpaved

roadway could not have been a “separate” and

“independent” cause ofthe accident, but rather

a “classic example of concurrent causation”

because mud and clay are “by their very nature

fungible,” rendering it “impossible to distinguish” the part ofthe debristhat wastracked by

the trucks or that was washed off the road. In

fact, precisely because it is “impossible to distinguish,” once the mud merges, the part of the

mud tracked by the tires from that washed by

the rain, the proper inquiry is whether the

amount of mud washed by the rain could have

been sufficiently large to cause an accident by

itself.17 

There is at least a genuine issue of material

fact as to this question. The district court acknowledged that some mud and clay “could

have been washed by the rain.” This mud from

the rain could have independently caused the

accident. Therefore, summary judgment for

AISLIC was improper. On remand, the court

should determine whether there issufficient evidence to declare as a matter of law that the

heavy rain in the several hours before the accident could have produced sufficient mud that

would have independently caused the accident,

or whether that issue should be sent to a

factfinder. 

C.

We are mindful that the district court has not

addressed AISLIC’s contention that it does not

have a duty to reimburse EMCASCO because

it did not agree to the settlement. The court

must confront this issue on remand if it finds

that the washing of mud from the unpaved

roadway could have independently caused the

14(...continued)

previously denied), AISLIC agreed to participate in

negotiations to obtain a release for [WilsonRiley].” Paragraph 35 explained that the Langstonsincluded, in thislast version of the complaint,

allegations of washing of mud onto the roadway

during rainy weather, despite having removed such

allegations from prior versions of the amended

complaint after SLS had settled.

15 In such instances, coverage is usually not

read to implicate both policies; they are mutually

exclusive. See Travelers Indem. Co. v. Citgo Petroleum Corp., 166 F.3d 761 (5th Cir. 1999). 

16 See Utica Nations Ins. Co. v. Am. Indem.

Co., 141 S.W.3d 198, 204 (Tex. 2004), and cases

cited therein.

17 This inquiry is basically the same as that for

determining joint and several liability in cases where

two fungible causes merge. For instance, where two

independent fires combine to destroy a piece of

property, if either fire could have destroyed the

property by itself, there is joint and several liability.

See, e.g., Anderson v. Minneapolis, St. Paul &

Sault Ste. Marie Ry., 179 N.W. 45 (Minn. 1920),

overruled in part on other grounds by Borsheim v.

Great N. R.R., 183 N.W. 519 (Minn. 1921).
10

accident. See Liberty Mutual Ins. Co. v.

Mid-Continent Ins. Co., 405 F.3d 296 (5th

Cir.), modified, 407 F.3d 683 (5th Cir. 2005).

The judgment is VACATED, and this matter is REMANDED for further proceedings.