### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30705

INSURANCE COMPANY OF NORTH AMERICA, Plaintiff-Appellee,
v. BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS,Defendant-Third Party PlaintiffAppellant.

Appeal from the United States District Court for the Eastern District of Louisiana U .S.D.C. No. 2:07-cv-03053

Before STEWART, C hief Judge, and BENAVIDES and HI G G I N SON, Circuit Judges. PER CURIAM: * Plaintiff-Appellee I n surance Company of North A merica (“INA”), and S t. Paul Fire and Marine Insurance Company (“St. Paul”), and A m e r i c a n Home Assurance Company (“AHAC”), 1 (collectively “the underwriters”), each U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May1, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion s houldnot be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4.

1 St. Paul and AH A C were nam ed Plaintif fs -Ap pellees in the litigation p revious to the current p roceed ings but are not p arties to the ins tant ap p eal. Case: 12-30705 Document: 00512225998 Page: 1 Date Filed: 05/01/2013No. 12-30705

subscribed as c o-insurers to an excess coverag e m ari n e insurance policy insuring Defendant-Appellant Board of Commissioners of the Port o f New Orleans (“the Port”). In previously litigated p r o c e e di n g s , th e u n d e rwrit e r s moved for summary judgment on the grounds that th e y did not have a duty of coverage under the policy. The district court granted summary judgment in favor of S t. Paul only and that judgment was affirmed by this c ourt on interlocutory appeal. After this court affirmed the district court’s summary judgment in favor of St. Paul, INA and AHAC a gain m o v e d f o r s ummary judgment citing this court’s opinion on interlocutory appeal in support of their a rgument that the Port’s claims against INA and AHAC should also be dismissed. T he district court agreed and granted
summary judgment in f avor of INA and AHAC. Since its claims a gainst AHAC have now been s ettled, the Port ap p e a l s herein the district c ourt’s grant of
summary j u d g m ent in favor of INA only. We REVERSE and REMAND for further proceedings. I. In 2001, the u nderwriters issued an excess coverage marine insurance policy to the Port which p rovided coverage above the $ 1 m illion limits of the Port’s underlying policies. Each of the underwriters subscribed to the p olicy by

a percentage: INA - 40%, St. Paul - 4 0%, and AHAC - 20%. The policy c ontains the following language with respect to coverage:

Now k now y e that we the As s u rers do hereby bind ourselves, each Company f or itself only and not one for another a nd in respect o n l y o f the d ue proportion of each Company, to pay to the Assured o r the Assu r e d ’s Executors or Administrators, all such loss, damage or liability as herein pr o vided that th e Assured may sustain during the stated period, not exceeding in all the sum insured, as properly apportioned to the sums, or to the percentages or p r oportions of the sum insured, subscribed against our names respectively.

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The policy also contains the following notice provision:

Whenever any Assured has i n f ormation from which th e Assured m ay r e a s onably conclude that an occurrence cove r e d hereunder involves an event likely to involve this P olicy, notice shall be sent to Underwriters as soon a s practicable, provided, however, that the failure t o notify U nderwriters o f a ny o c c u rrence which at the time of its h appening did not appear t o involve t h i s P o licy, but which, at a later time, would a ppear t o give rise to claims hereunder, shall not prejudice such claims.
This dispute arose in c onnection with a $ 2.6 million judgment against the Port for injuries sustained by Jo h n M o rella in July 2001 resulting from an accident on the Port’s prop e r t y . T h e Port did not notify the u n derwriters of Morella’s claim until late March 2 0 0 7, approximately a month a fter the state court j udgment was rendered. In May 2007, the u n d e rwriters filed this suit seeking declaratory judgment that they were not required to pay under the policy because the Port did not provide timely notice of Morella’s c l aim. In May 2009, the u n d e rwriters filed for s ummary judgment. Applying New York law, the district judge found that the notice was untimely and th at the Port should have notified the underwriters of the claim when its defense counsel indicated that Morella’s economic loss exceeded $1.8 million. The district j udge also found, however, that “loss summaries” provided to INA and A H AC could have constituted timely “notice” under the policies. Accordingly, the district c o u r t rendered summary j udgment in favor of St. Paul because it did not receive loss summaries d etailing the incident as its co-underwriters had and notice to its counderwriters did not constitute notice to St. Paul. The Port f

iled an i nterlocutory appeal of that summary judgment with this court arguing that the duty of coverage was triggered f or all underwriters if any of the underwriters received noti c e ; t herefore, summary judgment was improperly rendered in favor of St. P aul. This court r ejected that argument and

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affirmed the district court’s grant of summary judgment in f avor of St. Paul. In an analysis of the notice issue, this court stated the following:

Finally, the Port argues that the d i s t rict court misapplied the notice provision in the pol i c y . It contends that at l east two of the three insurers received notice of the underlying claim and that the dist r i c t court improperly required proof that such notice was insufficient because the policy does not r equire notice to “all” of the insurers. This argument is unavailing.

. . . The policy specifically defines “Underwriters” as “the insurer(s) subscribing to this Policy.” Under New York l a w , w h i ch governs the contract here, the plain meaning of the policy language requires that all of th e sub s c r ib ing insurers must receive notice. The record showed that not a ll of the i nsurers here received timely notice. The district court did not err.
St. Paul Fire & Marine Ins. Co. v. Bd. of Comm’rs of t h e Port of New Orleans , 418 F. App’x 305, 309-10 (5th Cir. 2011) (internal citation omitted). On remand, INA and AHAC again moved for summary judgment arguing that this court’s judgment on the i n t erlocutory appeal required notice to all underwriters before any were required to provide c o verage. That is to say, because St. P a u l d i d n o t receive notice, INA and AHAC argued, they too were relieved of the d u t y t o p r ovide coverage under the policy. The district court agreed with this a r g ument and s ubsequently rendered summary judgment in favor of INA and AHAC, dismissing the P ort’s claims. The district c ourt stated in its analysis:

Defendants p ropose that the proper i nterpretation of the p olicy is that any insurer t h a t receives notice is l iable irrespective of whether another insurer does o r does not. However, s uch interpretation is inconsistent with the Fifth Circuit’s interpretation [on interlocutory appeal] that, “the policy language require s t h a t all of the subscribing insurers m ust receive notice.” Notably,

4 Case: 12-30705 Document: 00512225998 Page: 4 Date Filed: 05/01/2013No. 12-30705 the Fifth Circuit did not affirm the dismissal of St. Paul purely on the ground that it had not r ece i v e d notice. Rather, the Court emphas i z e d that the Board h a d failed to comply w ith the notice provision itself, a n d i t w as that failure that r esulted in the preclusion of coverage from St. Paul.
The Port now appeals, arguing herein that the district court erred when it interpreted this court’s holding on interlocutory appeal to mea n that all underwriters must receive notice before any is required t o provide coverage. The Port concedes that an underwriter m ust individually receive notice in order for that underwriter to be l iable for providing coverage under the policy, i.e. , notice to one underwriter does not equate to n o tice to all. However, the P ort further argues that, i n accordance with this c ourt’s judgment o n interlocutory appeal,
any underwriter w ho receives notice is l iable for p roviding c o verage, regardless of whether its co-underwriters received notice. We agree. 2 II. This court reviews a district court’s grant of s ummary j udgment de novo. Nat’l Cas. Co. v. W. World Ins. Co. , 669 F.3d 608, 612 (5th Cir. 2012). At issue in the previous interlocutory appeal p roceedings before this court

was the question of w h e ther S t. Paul had received any kind of purported notice, similar t o that received by INA and AHAC, s u c h a s l o ss s ummaries. With regard t o that i ssue, this c ourt held that St. Paul d i d n ot receive purported notice because i t never received loss summaries similar to those sent to INA and AHAC. 3 In so holding, we rejected the Port’s arg u m e n t t hat notice t o one or

2 Alternatively, the Port argues that the policy’s notice claus e is am biguous and s hould be res olved in f

avor of the P ort. B ecaus e w e agree w ith the Port’s argum ent that the d is trict court m is interp reted this court’s j ud gm ent on interlocutory ap p eal, w e p reterm it d is cus s ion of the Port’s alternative argum ent that the notice claus e is am biguous

.

3 For the p urp os es of this ap p eal, we d o not d ecid e herein w hether notice, if received , w as s uf f icient und er the policy. 5 Case: 12-30705 Document: 00512225998 Page: 5 Date Filed: 05/01/2013No. 12-30705

more co-underwriters triggered a duty of coverage by all underwrit e r s , regardless of w hether some underwriters did not receive notice l ike the others. In c onclusion of our analysis of t h i s i s s u e, we stated that “the policy language requires that a ll of the subscribing insurers must receive notice.” Subsequently,

we affirmed the district c ourt’s summary judgment i n favor of St. Paul because i t did not receive notice under the policy as its co-underwriters may have received. In interpreting our h olding on interlocutory appeal, th e d i s t rict court subsequently rendered judgment in favor of INA and AHAC, agreeing with their argument that our holding m andated that all insurers r eceive notice before the duty o f coverage is t riggered for any individual u nderwriter und e r t he policy. That summary judgment was a misapplication of our holding. However, given the somewhat broad nature o f the language in that h o l d i n g , we note that the district court could r easonably have interpreted the mandate as such. In light of these circumstances, we clarify o ur mandate 4 on i n terlocutory appeal herein. See Hall v. White, Getgey, Meyer Co., LPA , 4 65 F.3d 587, 592-94 (5th Cir. 2006) (holding that clarification of the court’s pr e v i o u s mandate o n a ppeal was necessary due to l ack of specificity as to how the lower c ourt was to award interest on remand, because although the mandate was “plainly worded,” clarification was required due to the magistr a t e judge’s reasonable difficulties in applying the mandate a s w ritten); see also Briggs v. Pa. R.R. Co. , 334 U.S. 304, 3 0 6 (1948) (holding that “an inferior court h a s n o power or authority to deviate from the mandate issued by an appellate court[ ]”).

4 Alt hough neither party has f iled a m otion to recall or clarif y the m and ate on interlocutory ap peal, this court may sua sp onte clarif y its ow n m and a t e w hen it d eem s that d oing s o is neces s ary “to p revent injus tice. ” U

. S. Ct. of Ap p . 5th Cir. R. 41. 2; see a lso Leroy v . Ci ty of H

ouston , 906 F. 2d 1068, 1075 ( 5th Cir. 1990) ; Rea v es v. O le M a n Ri v er Tow i ng, Inc. , 761 F. 2d 1111, 1112- 13 (5th C ir. 1985)

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The clarified m andate is as follows: All of the subscribing insurers (INA, AHAC, and St. Paul) m ust receive notice for the duty of c o verage to b e t riggered for a ll thre e u nderwriters. More specifically, the duty of coverage is t riggered for each u nderwriter w h o receives notice under the policy. B ecause St. Paul did not receive notice similar to INA and AHAC, S t. Paul’s duty of coverage under the policy was n ot triggered as INA’s and AHAC’s duties o f co v e r a g e w e re triggered. We do not, h owever, hold t h e converse of this conclusion. In other words, we do not h old that all underwriters under the policy must receive notice

as a c o ndition precedent to a duty of coverage b eing t riggered for any individual underwriter under the policy. I II. For the foregoing reas o n s, we REVERSE the district c ourt’s summary judgment in favor of I NA. W e REMAND f or a determination o f whether INA received notice u nder the excess c overage marine insurance policy at issue and for further proceedings consistent with this opinion.

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