* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

REVISED SEPTEMBER 3, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-11370

HOME OWNERS MANAGEMENT ENTERPRISES, INC, as assignee of

Holmes-Redding Builders Inc

Plaintiff-Appellee

v.

MID-CONTINENT CASUALTY COMPANY

Defendant-Appellant

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:04-CV-2061

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

This case brings to us a dispute over an insurer’s duties to defend and

indemnify its insured, a home builder, against claims of defective construction.

The parties consented to trial before a magistrate judge, who, on cross-motions

for summary judgment, held that the insurer breached its duties. This appeal

United States Court of Appeals

Fifth Circuit

F I L E D

August 26, 2008

Charles R. Fulbruge III

Clerk
No. 05-11370

1 Holmes-Redding had two separate CGL policies, one effective from July 1, 2000, to

July 1, 2001, and the other from July 1, 2001, to July 1, 2002. Neither party asserts that this

impacts the outcome of this case.

2

primarily focuses on the insurer’s duty to indemnify. For the reasons that

follow, we affirm.

I

Holmes-Redding Builders, Inc., is a homebuilder, which sold a house to

Kevin and Sharon Twomey in 2000. The sales contract included a limited

warranty for the home administered by Home Owners Management Enterprises,

Inc. (HOME). Warranty Underwriters Insurance Co. (WUIC) issued the

warranty. In the event that Holmes-Redding failed to fulfill its warranty

obligations, the warranty provided that HOME/WUIC would perform those

obligations. The warranty also imposed reimbursement obligations on HolmesRedding for amounts spent by HOME/WUIC to satisfy Holmes-Redding’s

warranty obligations. Holmes-Redding also had a commercial general liability

policy (CGL policy) issued by Mid-Continent Casualty Co.1

The Twomeys’ house experienced structural and cosmetic damages that

resulted from construction defects. Unable to reach a resolution with HolmesRedding, the Twomeys sued Holmes-Redding and others in state court for

negligence, breach of contract, breach of warranty, Deceptive Trade Practices Act

violations, and fraud. The Twomeys also filed a claim under the warranty. The

Twomeys eventually added HOME and WUIC as defendants, alleging they

breached their warranty obligations. HOME and WUIC asserted a cross-claim

against Holmes-Redding for reimbursement under the warranty.

Holmes-Redding notified Mid-Continent of the Twomeys’ lawsuit. MidContinent concluded that the Twomeys’ claims fell outside the scope of the CGL

policy, and declined to defend or indemnify Holmes-Redding. Holmes-Redding

engaged counsel on its own.
No. 05-11370

3

The Twomeys’ claims against Holmes-Redding, HOME, and WUIC were

referred to arbitration. The arbitrator ruled in the Twomeys’ favor, awarding

them $218,000 in “repair cost” damages, $70,000 in attorneys’ fees, and $49,915

in expert and arbitration fees. The arbitrator ruled that WUIC was obligated

under the warranty to pay any portion of the “repair cost” damages that

Holmes-Redding did not pay. The state trial court confirmed the arbitration

award. Mid-Continent did not indemnify Holmes-Redding. 

HOME paid the “repair cost” damages plus interest to the Twomeys.

According to the parties, the remaining awards for attorneys’ fees and expert

and arbitration fees remain unpaid. HOME and WUIC’s cross-claim for

reimbursement against Holmes-Redding was severed from theTwomey lawsuit.

HOME and WUIC prevailed on that claim, and obtained a state court judgment

holding Holmes-Redding liable for the amounts paid to the Twomeys as well as

for other expenses incurred. HOME, WUIC, and Holmes-Redding settled, with

Holmes-Redding agreeing to assign to HOME its claims against Mid-Continent.

HOME, as Holmes-Redding’s assignee, sued Mid-Continent for breach of

contract in September 2004. HOME asserted that Mid-Continent breached its

duty to defend Holmes-Redding and that Mid-Continent had a duty to indemnify

Holmes-Redding for the full amount of the arbitration award. HOME also

sought prejudgment interest and attorneys’ fees.

The parties consented to trial and judgment by a magistrate, with appeal

being taken directly to this court. On cross-motions for summary judgment, the

magistrate ruled for HOME on all of its claims. The magistrate awarded HOME

$135,521.01 for Mid-Continent’s breach of its duty to defend Holmes-Redding;

$337,915 for the Twomeys’ arbitration award, which includes both the “repair

costs” damages HOME paid and the remaining unpaid amounts; $135,000 in

attorneys’ fees for this lawsuit; and $68,637.48 in prejudgment interest. MidContinent appeals.
No. 05-11370

2 St. Paul Guardian Ins. Co. v. Centrum GS Ltd., 283 F.3d 709, 712 (5th Cir. 2002).

3 Fed. R. Civ. P. 56(c).

4 Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).

5 St. Paul Guardian Ins. Co., 283 F.3d at 713.

6 See id.

4

II

We review a grant of summary judgment de novo.

2 Summary judgment

is appropriate where “the pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of law.”3“In

determining whether summary judgment is appropriate, all of the evidence

introduced and all of the factual inferences from the evidence are viewed in a

light most favorable to the party opposing the motion and all reasonable doubts

about the facts should be resolved in favor of the nonmoving party.”4 We review

the interpretation of an insurance contract de novo.

5 As this is a diversity case,

we apply Texas substantive law.6

III

The CGL policy provides that Mid-Continent“will pay those sums thatthe

insured becomes legally obligated to pay as damages because of ‘bodily injury’

or ‘property damage’ to which this insurance applies.” The policy then provides,

in pertinent part, that it applies to “bodily injury” and “property damage” that

“is caused by an ‘occurrence.’” The policy defines an “occurrence” as “an

accident, including continuous or repeated exposure to substantially the same

general harmful conditions.”

IV

Mid-Continent initially urged that it had neither a duty to defend nor a

duty to indemnify Holmes-Redding because a claim of defective construction that
No. 05-11370

7 See Lamar Homes, Inc. v. Mid-Continent Cas. Co., 428 F.3d 193 (5th Cir. 2005) (per

curiam).

8 242 S.W.3d 1 (Tex. 2007).

9

Id. at 4.

10 Id. at 5.

11 Travelers Indem. Co. v. Calvert Fire Ins. Co., 836 F.2d 850, 853 (5th Cir. 1988)

(quoting Conoco, Inc. v. Republic Ins. Co., 819 F.2d 120, 122 (5th Cir. 1987)) (internal

5

damaged only the insured’s work falls outside of the CGL policy’s scope. This is

because such a claim is not one for “property damage” caused by an “occurrence”

as those terms are used in the policy. Mid-Continent noted in its opening brief

thatthis court had certified questions to theTexas Supreme Court on this issue.7

The Texas Supreme Court answered our questions in Lamar Homes, Inc.

v. Mid-Continent Casualty Co.8 The court “conclude[d] that allegations of

unintended construction defects may constitute an ‘accident’ or ‘occurrence’

under the CGL policy and that allegations of damage to or loss of use of the

home itself may also constitute ‘property damage’ sufficient to trigger the duty

to defend under a CGL policy.”9 The court did not reach the duty to indemnify

because “that duty is not triggered by allegations but rather by proof at trial.”10

Lamar Homes controls the disposition of this issue. Mid-Continent

conceded its duty to defend during oral argument in light of Lamar Homes. We

affirm the award of damages for Mid-Continent’s breach of its duty to defend,

and turn our attention to Mid-Continent’s other duty to indemnify issues.

V

Mid-Continent contests its duty to indemnify on several other grounds.

We note initially that Mid-Continent acknowledges that the CGL policy is a

liability contract. “In a liability contract, the insurer agrees to cover liability for

damages. If the insured is liable, the insurance company must pay the

damages.”11“In the event a judgment is rendered against the insured, the
No. 05-11370

quotations omitted); see also YMCA of Metro. Ft. Forth v. Commercial Standard Ins. Co., 552

S.W.2d 497, 504 (Tex. Civ. App. 1977).

12 YMCA, 552 S.W.2d at 504; see also 1 Allan D. Windt, Insurance Claims and Disputes

§ 6.5 (5th ed. 2007) (“If the policy provides liability insurance, the insurer becomes liable

immediately on the entry of judgment against the insured.”).

13 See Travelers Indem. 836 F.2d at 853-54 (“In an indemnity contract, by contrast, the

insurer agrees to reimburse expenses to the insured that the insured is liable to pay and has

paid.” (quoting Conoco, 819 F.2d at 122) (internal citations omitted)); YMCA, 552 S.W.2d at

504 (same); Couch on Insurance § 103:4 (3d ed. 1997) (“The major substantive distinction

between a liability policy and an indemnity contract is that payment of a claim by the insured

is a condition precedent to the insured’s right to recover under the indemnity contract, but not

under the liability contract.”). 

14 The insurance policy provides, “We will pay those sums that the insured becomes

legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’to which this

insurance applies.”

15 125 F.3d 909 (5th Cir. 1997).

6

insurer’s liability to pay attaches at that time. The obligation to pay continues

until the judgment is satisfied.”12 Thus, unlike under an indemnity policy,

Holmes-Redding did not have to pay the judgment in order to trigger MidContinent’s duty to indemnify.13

A

Mid-Continent first argues that under the CGL policy, its duty to

indemnify is limited to sums that an insured is “legally obligated to pay.”14 MidContinent contends that this court in Data Specialists, Inc. v. Transcontinental

Insurance Co.15 held that under Texas law, the phrase “legally obligated to pay”

means obligated as a matter of tort law, not as a matter of contract. MidContinent says that, while the Twomeys pursued both tort and contract claims

against Holmes-Redding, the arbitrator based its award only on breach of

contract. Thus, Mid-Continent urges, it has no duty to indemnify.
No. 05-11370

16 See, e.g., LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007)

(“[A]rguments not raised before the district court are waived and cannot be raised for the first

time on appeal.”); Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir.2005) (“Itis well

settled in this Circuit that the scope of appellate review on a summary judgment order is

limited to matters presented to the district court.”); N. Alamo Water Supply Co. v. City of San

Juan, 90 F.3d 910, 916 (5th Cir. 1996) (“We will not consider an issue that a party fails to raise

in the district court, absent extraordinary circumstances.”). 

17 That HOME is not an insurer and its payment did not indemnify Holmes-Redding

distinguishes this case from Mid-Continent Insurance Co. v. Liberty Mutual Insurance Co.,

where the insured had been fully indemnified by one of its two primary insurance carriers. See

236 S.W.3d 765, 775-76 (Tex. 2007) (“We hold, therefore, that a fully indemnified insured has

no right to recover an additional pro rata portion of settlement from an insurer regardless of

that insurer’s contribution to the settlement. Having fully recovered its loss, an insured has no

contractual rights that a co-insurer may assert against another co-insurer in subrogation.”

(emphasis added)). Unlike the insured in Mid-Continent, Holmes-Redding has not been

indemnified fully or otherwise.

7

Mid-Continent did not raise this below. We generally do not consider

arguments that are urged for the firsttime on appeal, and we do not do so here.16

B

Mid-Continent next contends that, because HOME paid the “repair cost”

portion of the arbitration award, it “extinguished” Holmes-Redding’s liability to

the Twomeys. This is because the one-satisfaction rule prevents the Twomeys

from recovering those damages a second time from Holmes-Redding. Thus,

because Holmes-Redding cannot be forced to pay these amounts to the Twomeys,

neither it nor HOME as its assignee had a claim against Mid-Continent for

indemnification of those amounts. Neither the parties nor the magistrate cite

to any cases that are on point.

We are not persuaded by this argument. The central reason is that

HOME’s payment did not absolve Holmes-Redding of its legal responsibility for

the damages. In its role here, HOME was only secondarily liable for the

judgment the Twomeys won. HOME was not Holmes-Redding’s insurer, and its

paymentto theTwomeys did not indemnify Holmes-Redding.17 Holmes-Redding

was legally obligated to reimburse HOME for the amounts expended on its
No. 05-11370

18 See U.S. Fid. & Guar. Co. v. Va. Eng’r Co., 213 F.2d 109 (4th Cir. 1954). 

19 Id. at 110.

8

behalf. This obligation was confirmed by the state trial court, which entered

judgment against Holmes-Redding in favor of HOME. 

The Fourth Circuit long ago rejected an “extinguishment” argument

similar to Mid-Continent’s.18 There, the insured had been hired to construct a

manufacturing plant for a company. A person was “injured by coming into

contact with a high voltage electrical current carried by wires maintained by the

[insured], which had negligently failed to provide proper safeguards against the

danger.”19 The injured party obtained a judgment against the insured and the

company that had hired the insured. The company paid the judgment under

threat of execution. The contract between the company and the insured provided

that the insured would indemnify the company, and the company deducted the

amount it had paid to satisfy the judgment from what it owed to the insured

under the construction contract. The insured then sought to recover the amount

the company withheld from its insurer, which denied coverage. While the

insurer admitted there would be coverage had the injured party enforced the

judgment against the insured directly or “had by legal process collected” the

judgment from the insured,the insurer argued that payment of the judgment by

the company had “extinguished” its liability under the policy. The Fourth

Circuit disagreed,

[T]he fact that judgment was obtained against the [company] can

make no difference, for the primary liability established by the

judgment was that ofthe [insured] and there can be no question but

that, upon payment of the judgment, the [company], being only

secondarily liable, had the right to recover against the [insured] for

any amount paid thereunder. The liability of the [insured]

established by the judgment was not extinguished,therefore, by the

payment made by the [company] but the right to enforce it was

transferred to the [company]. As the [insured] remained liable for
No. 05-11370

20 Id. at 112 (citations omitted).

9

the amount of the judgment, it can make no difference with respect

to the coverage of the policy that the liability was payable by the

[insured] to the [company] rather than to [the injured person].

. . . The position of the [insurer] comes to this: that it is

absolved of its obligation to pay the liability imposed by law upon

the [insured] because thatliability, although it has in fact been paid

by the [insured], has been enforced through collection from another

whom the [insured] was bound at law to reimburse. We know of no

principle of law which would sustain this position.20

We,too,“are notimpressed by the argument.” While Mid-Continent is right that

the Twomeys could not collect the “repair cost” damages a second time, its

“extinguishment” argument falters because Holmes-Redding was still liable for

the damages caused by its negligence. The proper question is whether that

liability was covered by the policy, that is, whether there was property damage

caused by an occurrence and which is not subject to an exclusion.

Mid-Continent argues that the “contractual liability” exclusion, also

referred to as exclusion b, relieves it of any duty to indemnify based on HolmesRedding’s obligations to HOME. The exclusion provides,

This insurance does not apply to: “Bodily injury” or “property

damage” for which the insured is obligated to pay damages by

reason of the assumption of liability in a contract or agreement.

This exclusion does not apply to liability for damages: 

(1) That the insured would have in the absence ofthe contract

or agreement; or 

(2) Assumed in a contract or agreement that is an “insured

contract . . . .”

Mid-Continent argues that Holmes-Redding assumed liability to reimburse

HOME through the warranty agreement, and therefore, this exclusion is directly

applicable. Mid-Continent contends that neither exception applies here.
No. 05-11370

21 See Federated Mut. Ins. Co. v. Grapevine Excavation Inc., 197 F.3d 720, 726 (5th Cir.

1999) (“This exclusion operates to deny coverage when the insured assumes responsibility for

the conduct of a third party. As GEI is not being sued as the contractual indemnitor of a third

party’s conduct, but rather for its own conduct, the exclusion is inapplicable.” (Texas law)); see

also, e.g., Ingalls Shipbuilding v. Fed. Ins. Co., 410 F.3d 214, 222 (5th Cir. 2005) (“‘[C]ourts

have consistently interpreted the phrase ‘liability assumed by the insured under any contract’

to apply only to indemnification and hold-harmless agreements, whereby the insured agrees

to ‘assume’ the tort liability of another.’” (quoting 1 B. Ostrager & T. Newman, Handbook on

Insurance Coverage Disputes § 7.05, at 460 (12th ed.2004))); U.S. Fid. & Guar. Co., 213 F.2d

at 112 (“It is not reasonable to suppose that, when the insured was taking insurance to protect

against liability imposed by law, it was intended to exclude coverage of claims for which the

law imposed liability on the insured, merely because insured had agreed to protect another

against secondary liability on account of such claims.”); Lennar Corp. v. Great Am. Ins. Co., 200

S.W.3d 651, 693 (Tex. App.–Houston 2006) (“Exclusion B(2) precludes coverage when the

insured contractually assumes liability for the conduct of a third party such as through an

indemnity or hold harmless agreement.”); Broadmoor Anderson v. Nat’l Union Fire Ins. Co. of

La., 912 So.2d 400, 407 (La. App. 2005) (“A second, reasonable and more narrow interpretation

would limit [this exclusion] to a specific assumption by the insured of liability that solely

results from the negligence or contractual breach of a third party.”); Gibbs M. Smith, Inc. v.

U.S. Fid. & Guar. Co., 949 P.2d 337, 341 (Utah 1997) (“The pertinentlaw abundantly confirms

that a liability insurance contract exclusionclause excludes only contracts in which the insured

assumes the tort liability of another.”).

22 In re Canion, 196 F.3d 579, 585-86 (5th Cir. 1999); see also 68 Tex. Jur. 3d

Subrogation § 9 (“Application of the doctrine of equitable subrogation is said to be ‘the purest

of equities,’ and the courts of Texas are said to be particularly hospitable to it. . . . It is

applicable when one person, acting involuntarily, has paid a debt for which another was

primarily liable, unjustly enriching the latter.”).

10

Assuming that the exclusion is applicable, which is not without doubt

given our and other courts’ construction of it and similar exclusions,21 we

conclude that an exception applies. Although Holmes-Redding was contractually

obligated to reimburse HOME, Holmes-Redding would have been liable to

HOME in the absence of the warranty. We have explained that “Texas courts

liberally apply the doctrine of legal subrogation in instances when one person

involuntarily pays the debt for which another person is primarily liable.”22 The

Texas Supreme Court has recently explained that “equitable (or legal)

subrogation does not depend on contract but arises in every instance in which

one person, not acting voluntarily, has paid a debt for which another was
No. 05-11370

23 Mid-Continent, 236 S.W.3d at 774; 68 Tex. Jur. 3d Subrogation § 3 (“The doctrine of

subrogation is given a liberal application and is broad enough to include every instance in

which one person, not acting voluntarily, has paid a debt for which another was primarily

liable and which in equity and good conscience should have been discharged by the latter.”).

24 Pearlman v. Reliance Ins. Co., 371 U.S. 132, 136-37 (1962); see also Restatement

(Third) Suretyship & Guaranty § 22 (explaining that “when the principal obligor is charged

with notice of the secondary obligation it is the duty of the principal obligor to reimburse the

secondary obligor to the extent that the secondary obligor (a) performs the secondary

obligation; or (b) makes a settlement with the obligee that discharges the principal obligor, in

whole or part, with respect to the underlying obligation”).

25 Federated Mutual, 197 F.3d at 727.

11

primarily liable and which in equity should have been paid by the latter.”23

Indeed, as the United States Supreme Court opined, “there are few doctrines

better established than that a surety who pays the debt of another is entitled to

all the rights of the person he paid to enforce his right to be reimbursed.”24 We

think that Holmes-Redding would have been liable to HOME under the theory

of legal subrogation. “When, as here, liability could be imposed pursuant to

either a contractual indemnity provision or a generally applicable legal principle,

the contractual liability exclusion will not bar coverage.”25

Accordingly, we reject Mid-Continent’s “extinguishment” argument under

these circumstances.

C

Mid-Continent next argues that it has no duty to indemnify HolmesRedding for the unpaid portions of the arbitrator’s award. Its argument is

essentially that “the Twomeys, having a direct right to recover from MidContinent under the policies as judgment creditors of Holmes-Redding, can still

attemptto collectthe unpaid portions of the judgment from Mid-Continent after

Mid-Continent pays those amounts to Home.” This “continued existence of a risk

of double payment,” Mid-Continent says, means that HOME cannot collect the

unpaid portions of the arbitration award. Mid-Continent cites no authority for
No. 05-11370

26 See Vogel v. Veneman, 276 F.3d 729, 733 (5th Cir. 2002) (“A party must have raised

an argument ‘to such a degree that the trial court may rule on it.’” (quoting In re Fairchild

Aircraft Corp., 90 F.3d 910, 916 (5th Cir. 1996))). Mid-Continent can be reasonably understood

to have argued only that it had no duty to indemnify the unpaid amounts because neither

Holmes-Redding nor HOME had paid those amounts to the Twomeys. The magistrate rejected

this argument because the CGL policy is a liability contract, not an indemnity contract, and

therefore the duty to indemnify was triggered when judgment was entered against HolmesRedding. See YMCA, 552 S.W.2d at 504. Mid-Continent has made no effort to show that this

is error.

27 See supra note 16.

28 The magistrate primarily relied on our decision in Federated Mutual and the Texas

Supreme Court’s decision in Cowan. SeeFederated Mutual, 197 F.3d at 725 (“Following Orkin,

both state and federal courts in Texas have interpreted the terms ‘accident’ and ‘occurrence’

to include damage that is the ‘unexpected, unforeseen or undesigned happening or

consequence’ of an insured’s negligent behavior.”); id. at 726 (“T&S’s fourth amended petition

alleges that GEI acted negligently—that is, ‘caus[ed] damage which is undesigned and

unexpected’—which, if proved to be true, constitutes an‘accident’withinthe definitionascribed

to that term by the Texas Supreme Court.”); Trinity v. Universal Ins. Co. v. Cowan, 945 S.W.2d

819, 828 (Tex. 1997) (“We think such a construction would also conflict with our holding that

an ‘accident’ includes the ‘negligent acts of the insured causing damage which is undesigned

and unexpected.’”).

12

this proposition. In any event, Mid-Continent cannot be said to have raised this

argument below,26 and we will not wade into it for the first time now.27

D

In a final shift, Mid-Continent urges that, if its no duty to indemnify

arguments fail, “then the indemnity portion of the case should be remanded for

trial based on the standards of Lamar Homes.” This is because “[t]his case was

decided by the trial court on summary judgment without the benefit of guidance

from the Texas Supreme Court on the occurrence issue,” that is, the meaning of

“occurrence” in the CGL policy.

Mid-Continent completely fails to explain how the magistrate’s

interpretation of“occurrence” differs from that in Lamar Homes. The magistrate

concluded that negligent construction can constitute an “occurrence,” and in

essence looked to whether the damage caused by the insured’s negligent acts was

unintended and unexpected.28 Lamar Homes concludes that negligent
No. 05-11370

29 242 S.W.3d at 8; see also id. at 9 (“Here, the complaint alleges an ‘occurrence’ because

it asserts that Lamar’s defective construction was a product of its negligence. No one alleges

that Lamar intended or expected its work or its subcontractors’ work to damage the DiMares’

home.”).

30 Id. at 9. To the extent that Mid-Continent intended to argue that fact issues preclude

summary judgment on whether the facts proved during the arbitration constitute an “occurrence,”

Mid-Continent did not raise this in its opening brief, and has therefore abandoned it. See Cinel v.

Connick, 15 F.3d 1338, 1345 (5thCir. 1994) (“An appellant abandons allissues not raised and argued

in its initial brief on appeal.”). Had Lamar Homes, which was decided after the initial briefing in this

case, actually announced a meaning of “occurrence” materially different from the magistrate’s

interpretation, we might face a different situation.

31 Mid-Continent argued that if any of the duty to defend or duty to indemnify holdings

were reversed, the prejudgment interest and attorneys’ fees awards should be adjusted

accordingly.

13

construction can constitute an “occurrence,” and explains that “a deliberate act,

performed negligently, is an accident if the effect is not the intended or expected

result; that is, the result would have been different had the deliberate act been

performed correctly.”29 In other words, “a claim does not involve an accident or

occurrence when either direct allegations purport that the insured intended the

injury (which is presumed in cases of intentional tort) or circumstances confirm

that the resulting damage was the natural and expected result of the insured’s

actions,thatis, was highly probable whether the insured was negligent or not.”30

As we see no material difference between the two, and as Mid-Continent

points to none, we find no reversible error.

VI

We have no occasion to consider Mid-Continent’s arguments regarding

prejudgment interest and the award of attorneys’ fees in this suit.31

AFFIRMED.