UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-6152

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COLUMBIA MUTUAL INSURANCE COMPANY,

formerly known as COLUMBIA MUTUAL

CASUALTY INSURANCE COMPANY,

Plaintiff-Appellant,

VERSUS

FIESTA MART, INC.,

Defendant-Appellee.

____________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_____________________________________________________ (March 26, 1993)

Before WILLIAMS, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Columbia Mutual Insurance Company appeals the summary judgment

awarded its insured, Fiesta Mart, Inc., in Columbia's declaratory

judgment action on its liability (coverage) for a stat e court

judgment against Fiesta. Because the state court findings in issue

-- incorp orating coverage terms from the Columbia policy -- were

not essential to the state court judgment, and because privity is

lacking between Columbia and Fiesta, Columbia is not collaterally

estopped from relitigating those findings. And, because the

Columbia policy does not cover the damages awarded by the state

court, we REVERSE and RENDER in favor of Columbia on its1 Fiesta counterclaimed against Columbia for breach of contract,

breach of a duty of good faith and fair dealing, violations of the

Texas Insurance Code, negligence, and gross negligence. Columbia

then counterclaimed for attorneys' fees, alleging that Fiesta's

counterclaims were "groundless and brought in bad faith or for the

purpose of harassment". The district court issued a 28 U.S.C. §

1292(b) certificate on the summary judgment, which we construed as

a Fed. R. Civ. P. 54(b) certificate; and it stayed the

cou nterclaims pending this appeal. On remand, Fiesta's counterclaims should, of course, be dismissed.

2 A Ponzi scheme is "an investment swindle in which some early

investors are paid off with money put up by later ones in order to

encourage more and bigger risks". Webster's Ninth New Collegiate

Dictionary

914 (1990).

- 2 - declaratory judgment claim, and REMAND for disposition of the

remaining claims. 1

I.

From April 23, 1987, to April 22, 1988, Columbia was an excess

insurer for Fiesta, which owns and operates a chain of grocery

stores in the Houston area that caters to the Hispanic community.

From 1982 to 1988, Fiesta leased vendor locations in its stores to

Monytron, Inc ., which offered financial services to Fiesta's

customers. Unknown to Fiesta, Monytron was defrauding customers by

siphoning deposits and investment s through a "Ponzi scheme",

involving the illegal conversion of pesos to dollars. 2

Beginning in late 1988, hundreds of aggrieved customers sued

both Monytron and Fiesta in a state court class action, claiming

violations of the Texas Securities Act, Tex. Rev. Civ. Stat. Ann.

art. 581-1 et seq.

, the Texas Deceptive Trade Practices Act (DTPA),

Tex. Bus. & Com. Code Ann. § 17.01 et seq.

, common law fraud,

negligence, and gross negligence. In addition to economic losses,

the plaintiffs claimed damages for mental anguish (so me with3 The parties dispute who did provide the defense. Columbia

contends that CIGNA Property and Casualty Company, which provided

Fiesta's primary liability co verage during the Columbia policy

period, provided defense through its affiliated claims serv icing

organization, ESIS, Inc. Fiesta denies that either CIGNA or ESIS

defended it. The Hartford Casualty Insurance Company, which

provided primary liability coverage for the policy period preceding

CIGNA's, acknowledged a duty to defend Fiesta and paid a portion of

the defense costs.

4 The find ings and conclusions refer to the judgment as a

"compromise agreement" between the parties; and, if promptly paid,

Fiesta would be released from liability for prejudgment interest.

- 3 - physical manifestations) resulting from the "traumatic loss".

Columbia received notice of the action in December 1988; and in

January 1989, it issued a reservation of rights letter, reserving

any coverage defenses in the event Fiesta was found liable.

Furthermore, it did not provide a defense to Fiesta. 3

The plaintiffs sought approxima tely $100 million. But, on

August 31, 1990, 17 days before trial was to begin, Fiesta advised

Columbia that the case could be settled for $7 million and demanded

that Columbia either accept or deny coverage by Septe mber 6.

Columbia elected to stand on its prior reservation of rights.

That "trial" began and ended on September 17. It lasted only

one hour, and consisted solely of the admission, without objection,

of several volumes of packaged exhibits. The next day, the

district court entered findings of fact and conclusions of law,

which had been agreed upon, drafted, and submitted by the parties

before trial, holding Fiesta liable in the amount of $7 million 4

for unknowing violations of §§ 17.46(b)(2) and (3) of the DTPA and5 Section 17.46(a) makes unlawful false, misleading, or

deceptive acts or practices in the conduct of any trade or commerce. Section 17.46(b) provides, in relevant part:

(b) [T]he term "false, misleading, or deceptive acts or practices" includes, but is not limited to, the following

acts: ...

(2) causing confusion or misunderstanding as to the

source, sponsorship, approval, or certification of goods

or services;

(3) causing confusion or misunderstanding as to

affiliation, connection, or association with, or certification by, another; ....

Tex. Bus. & Com. Code Ann. § 17.46.

6 The findings stated that $5.5 million of the damages were

caused during the Columbia/CIGNA policy period (April 23, 1987, to

April 22, 1988). The remaining $1.5 million in damages was

attributed to the Hartford policy period, and was paid by Hartford.

Fiest a demanded $4.5 million with interest from Columbia,

representing the amoun t exceeding Fiesta's $1 million primary

coverage limit under the CIGNA policy.

- 4 - ordinary negligence. 5

Fiesta satisfied the judgment and demanded indemn ity from

Columbia. 6 Columbia responded by initiating this action in

November 1990, seeking a declaratory judgment that it had no duty

to indemnify Fiesta. On cross motions for summary judgment, the

district court ruled for Fiesta , holding that Columbia was

obligated to indemnify it for the judgment.

II.

Among other contentions, Columbia maintains that the district

court erred in ruling (1) that Columbia was collaterally estopped

from relitigating the state court's factual findings, and (2) that7 Columbia also asserts, with considerable force, that the state

court's finding s were the product of collusion between the

underlying parties and, thus, not binding on it. See Coblentz v.

American Surety Co. of New York

, 416 F.2d 1059, 1063 (5 th Cir.

1969); Britt v. Cambridge Mutual Fire Ins. Co.

, 717 S.W.2d 476, 483

(Tex. App.--San Antonio 1986, writ ref'd n.r.e.). Additionally, it

conte nds that it had no duty to defend Fiesta, under a policy

exclusion, because an "other insurer" a t all times had a duty to

defend it, or, if not, that Fiesta breached a duty to mai ntain

primary coverage contai ning such a duty. Because collateral

estoppel does not apply for the reasons stated infra , we need not

address these alternative contentions.

- 5 - the Columbia policy provided coverage for the damages awarded. 7

Needless to say, we apply Texas law in deciding these issues. E rie

R. Co. v. Tompkins , 304 U.S. 64 (1938); A llison v. ITE Imperial

Corp. , 928 F.2d 137, 138 (5th Cir. 1991). And, because these are

issues of law, we review the district court's conclusions de novo

.

Enserch Corp. v. Shand Morahan & Co.

, 952 F.2d 1485, 1492 (5th Cir.

1992). Moreover, such de novo review is also required because a

summary judgment is at issue. E.g.

, J ohnson v. Odom

, 910 F.2d

1273, 1277 (5th Cir. 1990), cert. denied

, 111 S.Ct. 1387,

___ U.S.

___ (1991).

A.

It is well-settled in Texas that when an insurer breaches a

duty to defend its insured, it is bound, in subsequent proceedings,

by a settlement or judgment rendered against the insured. Rhodes

v. Chicago Ins. Co.

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

course, an insured's liability and whether there is co ncomitant

coverage are "separate and distinct" matters; and a prior judgment

establishing liability is not binding in a subsequent proceeding on

coverage. E

mployers Casualty Co. v. Block

, 744 S.W.2d 940, 9438 Columbia's basic coverage clause provides:

COVERA GE: The Company hereby agrees to indemnify the

Insured against such ultimate net loss in excess of the

Insured's primary limit as the Insured sustains by reason

of liability, imposed upon the Insured by law or assumed

by the Insured under contract, for damages beca use of

- 6 - (Tex. 1988); see also Enserch

, 952 F.2d at 1493. Furthermore,

whether an insurer is bound by a specific finding from the

liability action

-- i.e.

, whether it is collaterally estopped from

contesting that finding

-- depends upon "whether the fact

determined in the prior suit was essential to the judgment in the

prior suit, and whether the necessary requirement of privity exists

between the parties". B lock

, 744 S.W.2d at 943; see also Edinburg

Consolidat ed I.S.D. v. INA , 806 S.W.2d 910, 913-14 (Tex. App.--

Corpus Christi 1991, no w rit). Assuming, without deciding, that

Columbia breached a duty to defend Fiesta, we hold that it is not

bound by the hereinafter-described state court findings in issue,

because they were not ess ential to the liability judgment and

because the requisite privity was lacking.

The state court finding upon which Fiesta relies states: "An

occurrence of Fiesta Mart, Inc.'s act of negligence and negligently

causing confusion and misunderstanding and the continuous exposure

to that occurrence

... proximately caused and produced re sulting

property damage and bodily injury and recoverable attorneys' fees

...". (Emphasis added.) Although coverage was not at issue in the

state court l itigation, this language virtually mirrors that

contained in the relevant coverage provisions of the Columbia

policy. 8 Additionally, as noted, the findings preciselypersonal injury or property damage to which this policy

applies, caused by an occurrence anywhere in the world.

(Emphasis added.) The policy defined "occurrence" as follows:

"OCCURRENCE" means an accident, including continuous or

repeated exposure to conditions, which results in

personal injury or property damage neither expected nor

intended from the standpoint of th e Insured. All

personal injury and property dama ge arising out of

continuous or repeated exposure to substantially the same

general conditions shall be considered as arising out of

one occurrence.

(Emphasis added.) An endorsement to the policy modified the

definition of "personal injury" to conform to the "bodily injury"

clause in the underlying (CIGNA) primary policy. "Bodily injury",

as defined in that policy and, thus, incorporated in the Columbia

policy, means

bodily injury

, sicknes s or disease sustained by any

person which occurs during the policy period, including

death at any time resulting therefrom.

(Emphasis added.)

- 7 - apportioned t he damages between the applicable policy periods,

stating that $5.5 million and 80% of the court costs were

"proximately caused and produced" between April 23, 1987, and April

22, 1988 (the Columbia policy period).

The characterizations of Fiesta's actions as an "occurrence"

and the damages as "bodily injury" and "property damage" were not

essential to determining Fiesta's liability. S ee Block

, 744 S.W.2d

at 943 ("the recitation in the agreed judgment that the

`[plaintiffs] sustained proper ty damage ... as a result of an

occurrence on [a specific date within the policy period]' was not

essential in determining [the insured's] liability"). Furthermore,

there was no valid reason for the court to apportion the damages

between the applicable policy periods. I d

. To maintain an action9 Fiesta's reliance on U.S. A v iation Underwriters, Inc. v. Olympia Wings, Inc.

, 896 F.2d 949 (5th Cir. 1990) for the

proposition that it was in privity with Columbia is misplaced. In

that case, we recognized only that "an insurer which is obliged to

defend its insured but flatly refuses to do so is considered in

privity with the insured on all essential issues in the underlying

action". Id. at 955 (emphasis added).

- 8 - under the DTPA, a consumer need only prove that a deceptive act or

practice was a "producing cause" of "actual damages". Tex. Bus.

Com. Code Ann. § 17.50(a). Similarly, negligence requires only

proof of "a duty o f reasonable care, breach of that duty, and

damages resulting from the breach." Hayes v. United States , 899

F.2d 438, 443 (5th Cir. 1990).

Additionally, because "the respective positions of [Columbia

and Fiesta] regarding coverage were in conflict", the parties were

not in privity. B lock

, 744 S.W.2d at 943; see also Cluett v.

Medical Protective Co.

, 829 S.W.2d 822, 827 ( Tex. App.--Dallas

1992, writ denied). 9

Accordingly, we conclu de that the findings in issue are not

binding on Columbia and, therefore, do not preclude it from

litigating coverage in this case. Thus, we turn to whether the

Columbia policy covers the damages awarded against Fiesta.

B.

As noted, Columbia contracted to indemnify Fiesta for

liability resulting from an "occurrence", defined as "an accident,

including conti nuous or repeated exposure to conditions, which

results in [bodily] injury or property damage neither expected nor

intended from the standpoint of the Insured". For the following- 9 -

reasons, we hold that the injuries found for the class action

plaintiffs were not caused by an "occurrence".

The alleged "conditions" to which the class action plaintiffs

were exposed through Fiesta's negligence and DTPA violations were

the fraudulent activities of Monytron. In their complaint, the

class action plaintiffs described these activities as "a malicious

scheme

... to defraud class members by inducing them through false

representatio ns and false promises to place their savings or

investments in `Monytron'". Although Fiesta attempts to

c haracterize the occurrence as exposure to its own negligent and

unknowing acts, its liability is clearly "related [to] and

interdependent" on Monytron's fraud. O ld Republic Ins. Co. v.

Compre hensive Health Care Assoc's., Inc. , 786 F. Supp. 629, 632

(N.D. Tex. 1992). Without that fraud, there would have been no

basis for suit against Fiesta; thus, the "ultimate is sue" is

whether the policy co vers Monytron's fraudulent activities. S ee

id. (in claim against employer for ne gligence with respect to

employee's sexual harassment of fellow employee, "occurrence"

r efers to employee's harassment, not employer's negligence); s ee

also Thornhill v. Houston Gen. Lloyds

, 802 S.W.2d 127, 130 (Tex.

App.--For t Worth 1991, no writ); C entennial Ins. Co. v. Hartford

Accident and Indemnity Co.

, 821 S.W.2d 192, 194 (Tex. App.--Houston

[14th Dist.] 1991, no writ); Fidelity and Guaranty Ins.

Underwriters, Inc. v. McManus , 633 S.W.2d 787, 790 (Tex. 1982).

Although we find no guidance from the Texas Supreme Court on

whether exposure to fraud constitutes an occurrence under the above- 10 -

definition, we agree with the conclusion of the Texas Court of

Appeals in a substantially similar matter, Houston Petroleum Co. v.

Highlands Ins. Co.

, 830 S.W.2d 153, 155-56 (Tex. App.--Houston [1st

Dist.] 1990, writ denied), which held that it does not. In that

case, also a declaratory judgment action by an insurer, the insured

had been sued by investors for economic losses, among other things,

resulting from the insured's alle ged fraud with respect to a

limited partnership venture. In determining whether there was

"bodily injury", and applying an occurrence cla use identical to

Columbia's, the court held that "exposure to `fraudulent promises,

false representations, and untrue statements' does not, as a matter

of law, fall within the plain meaning of the definition of

`occurrence'". I d. at 156. It explained that "[t]o hold otherwise

would require us to unnaturally extend the definition of the term

`conditions,' and consequently, the definition of `bodily injury'".

Id.

Turning to whether the plaintiffs' lost investments

co nstituted "property damage" under the policy, the court noted

that the same definition of "occurrence" was applicable. But,

instead of first determining whether there was an occurrence, it

ruled that the loss was not "property damage". See id. In Royal

Ins. Co. of America v. Quinn-L Capital Corp. , 960 F.2d 1286, 1295

(5th Cir. 1992), we interpr eted a similar holding to preclude

coverage solely for lack of an occu rrence, regardless of bodily10 In Quinn-L

, the district court held both that alleged personal

injuries, in the form of mental anguish, were not caused by an

occurrence, and that lost investments did not constitute property

damage. 960 F.2d at 1295.

- 11 - injury or property damage. 10 We emphasized that, under an identical

definition of "occurrence", b oth an occurrence and an injury are

required for coverage. I d. Therefore, because we hold that

exposure to Monytron's fraud does not constitute an "occurrence",

we need n ot address whether the damages found by the state court

constitute "bodily injury" or "property damage".

III.

For the foregoing reasons, the summary judgment is REVERSED

,

and judgment is RENDERED in favor of Columbia on its declaratory

judgment (coverage) c laim. Because there are additional claims

pending in the district court, we REMAND for their disposition.

REVERSED, RENDERED and REMANDED.