1 North American is a successor to Commercial Underwriters Insurance Company,

under whose name the original suit was brought.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20488

NORTH AMERICAN SPECIALTY INSURANCE COMPANY, as successor in

interest to Commercial Underwriters Insurance Company

Plaintiff - Appellant

v.

ROYAL SURPLUS LINES INSURANCE COMPANY; EVANSTON

INSURANCE COMPANY

Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Texas 

Before SMITH, WIENER and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

This case involves a dispute between two primary insurers, Royal Surplus

Lines Insurance Company (“Royal”) and Evanston Insurance Company

(“Evanston”), and an excess insurer, North American Specialty Insurance

Company (“North American”),1 and arises out of a tort suit against a nursing

home. North American appeals the district court’s grant of summary judgment

in favor of Royal and Evanston. For the reasons set forth below, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

August 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-20488

2 Evanston took the position that, because the Royal policy afforded the most coverage,

Royal should handle the defense with Evanston contributing to it. At oral argument, Evanston

stated that it has settled all claims with Royal regarding their respective obligations to each

other.

3 The remand was based upon the appellate court’s determination that submission of

Heritage Housing’s negligence as part of the question asking the jury to calculate each party’s

percentage of responsibility led to an incorrect result. 

2

I. BACKGROUND

Velma Carr sued the Heritage Sam Houston Gardens nursing home, its

parent company Heritage Housing, and a number of its employees in state court

for “continuing negligence” in the nursing home’s care of her husband, Raymond

Carr. Mr. Carr resided at the nursing home from February 1999 to June 2000,

when he was transferred to another home. He died in 2002. The suit alleged

that the nursing home’s “pattern and practice of ongoing neglect” caused Mr.

Carr to suffer from “a dislocated shoulder, pressure sores, skin tears and

contusions, ulcers,” and other “pain” and “indignity” resulting from failures of

basic care. At trial, a jury awarded over $4.5 million in actual and punitive

damages. Royal thereafter settled the case with Mrs. Carr on behalf of the

individual nurse defendants and took the position that its coverage was thereby

exhausted.2

The two corporate defendants appealed, with North American paying the

costs of the appeal, and a state appellate court reversed the trial judgment

against them. Heritage Housing Dev., Inc. v. Carr, 199 S.W.3d 560, 572 (Tex.

App.SSHouston [1st Dist.] 2006, no pet.). It rendered judgment in favor of

Heritage Housing and remanded for a new trial against the nursing home.3Id.

Subsequently, North American paid $1.625 million to settle with the Carrs on

behalf of the nursing home before another trial was held. 

Meanwhile, North American filed a lawsuit, which was removed to federal

court, over liability coverage for damages and defense costs incurred by insureds
No. 07-20488

3

in the underlying tort suit. During the period over which Mrs. Carr alleged

negligence, the insureds had three successive, non-overlapping insurance

policies providing primary liability coverage: a $1 million policy from Royal

covering April 1998 to April 1999; a $1 million policy from Royal covering April

1999 to April 2000; and a $500,000 policy from Evanston covering April 2000 to

April 2001. Concurrent with the primary policies, the insureds also had two

policies providing excess coverage: a $5 million policy from North American

covering April 1998 to April 1999 and a $5 million policy from North American

covering April 1999 to April 2000. All of these policies were issued to the

insureds with knowledge thatthe business being insured was a long-term health

care facility. As Evanston noted, North American did not have an excess policy

for the period covered by the Evanston policy. It is undisputed that, in

combination, Evanston and Royal have paid more than $1 million in defense and

indemnity costs for the Carr lawsuit. North American concedes that if only one

policy amount and only one policy type is implicated by the Carr lawsuit, then

Appellees owe nothing further.

In the coverage case, North American argued, inter alia, that Mrs. Carr

had sued for discrete acts of negligence occurring over the course of the three

primary policy periods such that the primary coverage limits should be

“stacked.” North American’s excess coverage then would not be triggered until

the limit of the total of allthree primary policies ($2.5 million) has been reached.

North American further argued that the stacking principle should apply to

defense costs, in addition to indemnity coverage. Finally, North American

argued that the defense costs incurred on behalf of the nursing home’s parent

company should be allocated to the Commercial General Liability (“CGL”) part
No. 07-20488

4 Because the coverage limits applied separately to each part, a policy with a $1 million

limit allowed $1 million of CGL coverage and $1 million of HPL coverage. Thus, North

American’s argument, if successful, would provide for more primary coverage before reaching

its excess layer.

4

ofthe primary insurance policies rather than the Hospital Professional Liability

(“HPL”) part.4

On October 29, 2004,the district court granted partial summary judgment

to Royal and Evanston, holding that the policies could not be temporally

“stacked” for purposes of indemnity payments and that defense costs could not

be allocated to the CGL portion of the policy. Commercial Underwriters Ins. Co.

v. Royal Surplus Lines Ins. Co., 345 F. Supp. 2d 652, 658 (S.D. Tex. 2004).

Thereafter, the court granted further partial summary judgment to Royal and

Evanston, holding thatthe policies could not be temporally “stacked”for defense

cost allocation purposes. Ultimately, the court issued final summary judgment

as to all parties and issues, and this appeal followed. 

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo. Allstate Ins. Co. v.

Disability Servs. of the Sw. Inc., 400 F.3d 260, 262-63 (5th Cir. 2005). Summary

judgment is proper when the pleadings and evidence on file “show that there is

no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986) (citations omitted).

III. DISCUSSION

This case involves, in essence, two forms of stacking: (1) temporal, across

policies covering different time periods; and (2) subject matter, across policies

within a time period that cover different potential liabilities. Within the first

category, North American seeks stacking of two different things – indemnity

payments and defense costs. 

A. Equitable Subrogation
No. 07-20488

5 G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544 (Tex. Comm’n App.

1929, holding approved).

6 Evanston also argues that North American never raised the principle of equitable

subrogation in the trial court; North American concedes it did not “use the magic words” but

argues that it adequately raised the concept below.

7 We are puzzled by North American’s contention at oral argument that this case was

decided under Louisiana law. The opinion expressly states that it was decided under Texas

law.

8 Thus, we need not determine if North American properly raised this ground in the

trial court.

5

North American’s lawsuit is based on its contention that it is entitled to

equitable subrogation as an excess carrier against primary carriers. At the

outset, then, the question arises whether North American can assert such a

claim here. Evanston also challenges whether North American sought recovery

on an equitable subrogation theory in the district court. Texas cases providing

a right of equitable subrogation to an excess carrier involve an excess carrier

suing a primary carrier, where their respective policies overlap temporally. See,

e.g., Am. Centennial Ins. Co. v. Canal Ins. Co., 843 S.W.2d 480, 481 (Tex. 1992)

(allowing equitable subrogation by an excess carrier to the insured’s Stowers5

claim against the primary carrier). That is not the case here as to Evanston. As

a result, North American cannot “step into the shoes” of its insured as to a

primary carrier to which North American is not excess.6 Royal Ins. Co. v.

Caliber One Indem. Co., 465 F.3d 614, 625 (5th Cir. 2006).7 North American

cannot recover against Evanston under a theory of equitable subrogation.8

Because Evanston’s arguments under the stacking theory are also correct, we

discuss the Evanston policy along with the Royal policies in that analysis below.

This case potentially presents the issue of whether recent Texas cases

have eroded the underpinnings of Canal even in cases of temporally overlapping

excess and primary policies, such as those of North American and Royal. See
No. 07-20488

6

Excess Underwriters at Lloyd’s v. Frank’s Casing Crew & Rental Tools, Inc., 246

S.W.3d 42, 48-50 (Tex. 2008) (holding that absent an express agreement to the

contrary, a carrier who settles a claim later determined not to be covered by its

policy cannot sue the insured for reimbursement of the excess amount); MidContinent Ins. Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765, 768 (Tex. 2007)

(holding that in the absence of an agreement with each other, a primary carrier

for the same policy period as another primary carrier has no right of contribution

against the other carrier even if it pays more than its pro rata share of the

defense or indemnity costs). Mid-Continent distinguishes Canal as follows: “In

Canal, we recognized equitable subrogation as a basis for an excess insurer’s

recovery against a primary insurer to prevent a primary insurer from taking

advantage of an excess insurer, acting solely as such, when a potential judgment

approaches the primary insurer’s policy limits.” 236 S.W.3d at 776 (citing Canal,

843 S.W.2d at 483). Canal involved an equitable subrogation claim based upon

the insured’s own Stowers claim against the primary carrier. 

At oral argument, Royal’s counsel conceded that the principles of equitable

subrogation announced in Canal have not been abrogated by later decisions. 

Because we resolve this case on the stacking arguments, we need not decide the

question of whether equitable subrogation applies to the Royal policies.

B. Temporal Stacking

1. Indemnity

Thus, we turn to the stacking issues. “Stacking” refers to the concept of

taking policy limits from multiple, but not overlapping, policies potentially

covering the same lawsuit and adding those limits together. Am.Physicians Ins.

Exch. v. Garcia, 876 S.W.2d 842, 854-55 (Tex. 1994). In Garcia, the Texas

Supreme Court considered what coverage limit to apply when there are

consecutive policies covering distinct policy periods and a claim occurrence

extends throughout multiple policy periods. The court held that the coverage
No. 07-20488

9 The court explained the rationale for this rule:

[The argument for stacking] rests on the assumption that [the insured] had

three times more insurance than he purchased. At no time during the four

relevant coverage years did any two policies overlap. Thus, at no time during

the four years did [the insured] carry liability insurance with a per-occurrence

limit greater than $500,000. [The insured] did not purchase malpractice

insurance for $1.5 million in coverage, as he might have done by purchasing

excess or umbrella coverage, and therefore he may not claim to benefitfrom $1.5

million in coverage by stacking temporally distinct policies.

Garcia, 876 S.W.2d at 854-55.

7

limits “could not be ‘stacked’ to multiply coverage for a single claim involving

indivisible injury” such that the coverage limit would be the “sum of the limits

provided by the applicable policies.”9Id. at 853-54. Instead, when “a single

occurrence triggers more than one policy, covering different policy periods, . . .

the insured’s indemnity limit should be whatever limit applied at the single

point in time during the coverage periods of the triggered policies when the

insured’s limit was highest.” Id. at 855.

The parties in this case do not dispute the validity of Garcia’s antistacking rule. Rather, they disagree about whether the liability arising from

Mrs. Carr’s suit involved a single covered event or multiple discrete covered

events. Under Garcia’s rule, if the negligence at the nursing home constituted

a single covered event, it would trigger only one coverage limit. But if the

negligence consisted of multiple, discrete covered events, each such event would

trigger its own separate coverage limit. 

In answering this question, we begin with the policy language. The Royal

policies cover medical incidents and define a “medical incident” as “any act or

omission: a. In the providing of or failure to provide professional health care

services to your patients, including: (1) The providing or dispensing of food,

beverages, medications or medical supplies or appliances in connection with such

services; . . . .” They further state that “[a]ll related ‘medical incidents’ arising
No. 07-20488

10 As our court has previously held, “Whether there was one occurrence or more is

determined by the policies’ respective terms.” Caliber One, 465 F.3d at 621. 

11 Under the Royal policy, the incidents must also relate to a single person. That

requirement is not at issue here, as the incidents all related to Mr. Carr.

12 North American argues that it was error for the district court to rely in part on the

complaint and jury findings. There is no support for this assertion. To the contrary, in

determining “the facts established in the underlying litigation,” we “review the record from the

underlying suit, which includes the pleadings, the trial transcript, the insurance policy, and

the judgment.” Great Am. Lloyds Ins. Co. v. Mittlestadt, 109 S.W.3d 784, 787 n.1 (Tex.

App.SSFort Worth 2003, no pet.). In the related circumstance of apportioning a settlement

8

out of the providing of or failure to provide professional health care services to

any one person shall be considered one ‘medical incident.’” The Evanston policy

likewise provides that its Professional Liability coverage insures sums “the

Insured shall become legally obligated to pay as damages because of malpractice

arising out of the rendering of, or failure to render, . . . the following professional

services in the Named Insured’s . . . , nursing home . . . : medical . . . or nursing

treatment to a patient, including the furnishing of food or beverages in

connection therewith.” It further states that “[t]wo or more claims arising out

of a single act, error, omission or occurrence or a series of related acts, errors,

omissions, or occurrence[s] shall be treated as a single claim.”10

The key word in both of these policies is the same: “related.” Under both

policies, a series of multiple incidents becomes a single continuing incident or

occurrence only if they are “related.”11 Although the policies do not further

clarify the meaning of “related,” a Texas appellate court has construed the term

in a similar insurance contract to mean “having a logical or causal connection.”

Columbia Cas. Co. v. CP Nat’l, Inc., 175 S.W.3d 339, 347 (Tex. App.SSHouston

[1st Dist.] 2004, pet. denied).

In this case, the district court considered summary judgment evidence

consisting of the pleadings, trial transcript, and jury findings of the underlying

suit, and concluded that the negligent acts at the nursing home were related.12
No. 07-20488

between covered and uncovered claims, we have held that the trial court may look to all

relevant evidence, whether or not it would have been admissible in the liability case. Am. Int’l

Specialty Lines Ins. Co. v. Res-Care, Inc., 529 F.3d 649, 657-58 (5th Cir. 2008). We agree that

the presence of a broad form submission to the jury ofthe negligence question is not dispositive

on the question of whether there was a continuing pattern of neglect. Here the entire theory

of the case – from pleadings through trial – was that of a continuing pattern of neglect, rather

than a series of unrelated and disconnected wrongs. 

13 Although the jury verdict in the underlying liability case was ultimately vacated by

the appellate court and remanded for a new trial as to the nursing home, both sides and the

district court relied upon the evidence from the first trial. We conclude that it is appropriate

to rely upon such evidence in assessing the question of the basis for the settlement. If North

9

Mrs. Carr’s complaint alleged “serious bodily injuries” which were “proximately

caused by the continuing negligence” of the insureds. 345 F. Supp. 2d at 667-68.

Elsewhere it referred to the nursing home’s “continuing course of repeated

negligence.” Id. at 668. The court summarized:

[T]he plaintiff’s theory in the underlying suit, a theory upon which

she prevailed, was that Mr. Carr was injured by a series of acts and

omissions that were related, having both causal connections (i.e.,the

pattern of negligence was caused by management’s focus on cutting

costs) and logical connections (i.e., all of the relevant acts/omissions

are logically connected to the concept of professional nursing home

care, to which Mr. Carr was entitled).

Id.

Thus, while one could argue that each day the nursing home committed

an act of negligence in failing to properly feed or treat Mr. Carr,these events are

all “related.” North American points out that Mr. Carr’s problems began with

poor nutritional care, followed by a shoulder injury, which led to mobility

problems, which led to sores, skin ulcers and similar conditions. While North

American contends these are discrete events, they all stemmed from a pattern

of neglect and incompetence. Indeed, as noted above, the district court concluded

that the Carrs’ theory of the case in its complaint, continuing into its

presentation of evidence at trial, was one of a continuing pattern of neglect, not

a series of discrete events.13 In this appeal, North American has not pointed to
No. 07-20488

American wished to bring any other relevant evidence before the district court, it could have

done so.

10

any specific evidence showing discrete, unrelated injuries leading to discrete

damages with individualized, unrelated damages. “Rule 56 does not impose

upon the district court a duty to sift through the record in search of evidence to

support a party’s opposition to summary judgment. Nor is it our duty to do so

on appeal.” Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir. 1996) (citations

omitted). 

We conclude that Garcia applies to prevent North American from

temporally stacking the policies for indemnity purposes. Under Garcia, the

insured (and North American as its “equitable subrogee”) is entitled to

“whatever limit applied at the single point in time during the coverage periods

of the triggered policies when the insured’s limit was highest.” Garcia, 876

S.W.2d at 855. In this case, that is $1 million.

2. Defense Costs

The policies in question are “eroding” policies. Liability insurance policies

often have two components: defense and indemnity. In many liability policies,

the policy limits refer only to the indemnity obligation (i.e., the duty to pay

covered claims), and the obligation to defend a liability suit is not capped by the

policy limits. In an eroding policy, by contrast, the insurer’s payments to defense

counsel to defend the liability suit count against the policy limits. Westchester

Fire Ins. Co. v. Admiral Ins. Co., 152 S.W.3d 172, 192 (Tex. App.SSFort Worth

2004, pet. denied). For example, if the eroding policy limits are $10,000, and the

insurer pays $10,000 in reasonable defense fees, the policy limits for that

occurrence are exhausted.

Thus, in the Garcia case, the focus of the inquiry was the indemnity

obligation, because the duty to defend did not have a policy limit. Here, the
No. 07-20488

11

three policies do have a limit on defense costs because those costs, including

attorneys’ fees, are included in the “per medical incident” limits. 

North American argues that even if the Garcia anti-stacking rule applies

to prevent stacking for indemnity purposes, it should allow stacking for defense

purposes. North American cited no cases for this proposition and acknowledges

that there are few cases nationwide addressing eroding policies at all, much less

in the context of stacking. It suggests, then, that even if Garcia requires the

insured to select one policy under which obligations would be measured, we

should allow the insured to select one policy for indemnity and another for

defense, because of the eroding nature of the policies.

North American makes two arguments in support of this contention,

unsupported by any precedent. First, North American argues that fairness

dictates that the insured should get the benefit of having paid multiple

premiums over the years. This argument would make sense if the Carr family

were the only potential claimant in any of those years. But insurance is

purchased to cover unintended, unexpected events,few or many, year after year.

An insured who buys car insurance every year for twenty-five years and never

has an accident is not entitled to a refund of premiums. He received what he

bargained for – insurance for each year. 

Here, we have no information about other claimants, but it matters not

whether they were few or many. The nursing home bargained for insurance year

after year, and it received that insurance. If what it wanted was more coverage

each year, it could obtain that by paying more – as it did by buying the excess

policies for two of the three years. If it wanted higher primary policy limits, it

could obtain that by paying more for increased coverage. What it did instead

was insure itself temporally under policies providing that related incidents

involving one injured person constitute one claim, whether year after year or

within one year. 
No. 07-20488

14 Additionally, under Garcia, the insured is entitled to select the policy that provides

the most coverage from those potentially providing coverage, thereby allowing the insured to

select an applicable year in which the individual or aggregate limits are the highest. Garcia,

876 S.W.2d at 855.

12

Even more importantly, if the insured wanted a policy that had an

unlimited defense obligation, rather than an eroding one, it should have

contracted for such a policy. North American’s argument would actually give the

nursing home the benefit of an additional $1 million in defense costs coverage,

despite its failure to contract for that coverage. Thus, the “fairness” argument

is unpersuasive.14

North American makes a second argument directed only at the Royal

policies, citing the following policy language:

The limits of this Coverage Part apply separately to each

consecutive annual period and to any remaining period of less than

12 months, starting with the beginning of the policy period shown

in the Declarations, unless the policy period is extended after

Issuance for an additional period of less than 12 months. In that

case, the additional period will be deemed part of the last preceding

period for purposes of determining the Limits of Insurance.

North American argues that this language permits the limits to restart each

year on a continuing medical incident, despite specific policy language to the

contrary. 

“Interpretation of insurance contracts in Texas is governed by the same

rules as interpretation of other contracts. . . . [W]hen a contract provision makes

a general statement of coverage, and another provision specifically states the

time limit for such coverage, the more specific provision will control.” Forbau v.

Aetna Life Ins. Co., 876 S.W.2d 132, 133-34 (Tex. 1994). Here, the policy

specifically provides that all related medical incidents constitute one incident.

The more general language quoted above does not purportto change this specific

limitation; instead, it explains what generally happens to policy limits, including

aggregate limits, if a policy is renewed or extended for an additional year or
No. 07-20488

13

subset thereof. Thus, this language does not start a new limit of liability

running in favor of the insured on the same medical incident.

C. Subject-Matter Stacking

This leads us to North American’s last stacking argument. North

American impliedly concedes that the actual settlement it paid was for a claim

covered under the HPL portion of the policy. However, North American argues

for a stacking of sorts as to the CGL and HPL portions of each policy for defense

costs. North American reasons that Heritage Housing’s defense actually

triggered the CGL portion of the policies in lieu of or in addition to the HPL

policies. 

Under Texas law, a duty to defend is determined under the “eight corners”

rule. In Texas, “[t]he eight-corners rule provides that when an insured is sued

by a third party, the liability insurer is to determine its duty to defend solely

from terms of the policy and the pleadings of the third-party claimant. Resort

to evidence outside the four corners of these two documents is generally

prohibited.” GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d

305, 307 (Tex. 2006). The duty to defend does not depend upon the truth or

falsity of the allegations: “A plaintiff’s factual allegations that potentially

support a covered claim is [sic] all that is needed to invoke the insurer’s duty to

defend . . . .” Id. at 310 (citing Heyden Newport Chem. Corp. v. S. Gen. Ins. Co.,

387 S.W.2d 22, 26 (Tex. 1965)). North American contends that, under the eight

corners rule, Royal was obligated to defend Heritage Housing under the CGL

portion of the policy. Thus, it argues that at least another $1 million in policy

limits are available here.

North American’s contention is based upon the argument that, until 2005,

Texas law treated claims for faulty supervision in a health care setting as

“ordinary,” rather than “health care” negligence claims. Under this argument,

the claims against Heritage Housing for inadequate staffing and funding were
No. 07-20488

14

not health care liability claims. Questions about what claims constitute health

care liability claims often have arisen in Texas because health care liability

claims are subject to strict pleading and proof requirements under Texas law.

See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.001-.507 (Vernon 2005) (replacing

TEX. REV. CIV. STAT. ANN. art. 4590i (Vernon 2003)). Thus, the question of

whether a claim was or was not a health care liability claim was important in

contexts other than insurance. North American contends that the 2005 decision

of Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) changed

Texas law regarding what constitutes a health care liability claim, and made

understaffing and underbudgeting claims “health care liability” claims for the

first time. Thus, since the Carr litigation was defended before that date, North

American reasons that the defense obligation should be viewed under the law

existing at the time, making the claims against Heritage Housing CGL claims.

We need not decide whether subject-matter allocation of defense costs

under an eroding policy is judged by the law at the time of defense or some time

later, because North American’s argument rests on a faulty premise. In fact,

Rubio did not change Texas law. For at least a decade before Rubio, the Texas

Supreme Court (and numerous intermediate appellate courts) had made clear

that a plaintiff’s legal theories and labels do not control the question of whether

a claim is a health care liability claim subject to (then existing) Article 4590i,

known as the Medical Liability and Insurance Improvement Act (“MLIIA”).

Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543-44 (Tex. 2004) (citing

authorities dating back to 1994). 

Plaintiffs cannot use artful pleading to avoid the MLIIA’s

requirements when the essence of the suit is a health care liability

claim. . . . To determine whether a cause of action falls under the

MLIIA’s definition of a “health care liability claim,” we examine the

claim’s underlying nature. . . . If the act or omission alleged in the

complaint is an inseparable part of the rendition of health care

services, then the claim is a health care liability claim. . . . One
No. 07-20488

15

consideration in that determination may be whether proving the

claim would require the specialized knowledge of a medical expert.

Id. These same standards were used to determine Rubio as they had been in

numerous cases before. Given the many cases defining health care claims by

substance rather than form, Rubio was not some revolutionary change in Texas

law. 

Under Texas law, HPL coverage like that in the Royal and Evanston

policies provides for breaches of professional standards of health care, while CGL

coverage provides for other non-care related negligence. See generally Utica

Nat’l Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198, 201 (Tex. 2004)

(addressing a professional services exclusion in a CGL policy). Mrs. Carr’s suit

was manifestly a claim alleging breach of professional care. North American

points to a reference in Mrs. Carr’s complaint to a corporate policy of

underbudgeting and understaffing. However, this reference is not a claim of

negligence unrelated to standards of professional care. It is not an actionable

tort merely to underbudget or understaff. Rather, Mrs. Carr’s allegation

amounted to a claim of negligence because the alleged Heritage Housing policy

of underbudgeting and understaffing caused the nursing home to deliver

inadequate medical care to Mr. Carr. Indeed, the only way to know whether a

nursing home is properly staffed is by resort to professional standards of care.

This claim fell squarely within the HPL side of the policies at issue. The

decision to defend the Carr case under the HPL coverage, rather than the CGL

coverage, was proper, and North American’s argument does not result in more

coverage.

IV. CONCLUSION

Texas law prohibits stacking policies that do not overlap to provide more

coverage than the highest limits of any one policy. That rule applies to both the

indemnity and defense portions of an eroding policy. Insureds who contract for
No. 07-20488

16

an eroding policy are not entitled to a more favorable stacking rule than

insureds who pay more for an unlimited defense. The primary insurers in this

case defended and paid under their HPL policies, and the presence of CGL

coverage does not provide more coverage for this medical incident. The district

court’s order granting summary judgment to Evanston and Royal is AFFIRMED.