United States Court of Appeals

for the Fifth Circuit

No. 21-30543

John Thibodeaux; Amy Thibodeaux; Gabrielle 

Thibodeaux; Emily Thibodeaux, 

Plaintiffs—Appellees,

versus

J M Drilling, L.L.C.; Insight Risk Management, L.L.C.; 

C R C Insurance Services, Incorporated, incorrectly named as

Insurisk Excess & Supply Lines,

Defendants—Appellees,

versus

Rockhill Insurance Company, 

Defendant—Appellant,

______________________________

Rockhill Insurance Company,

Plaintiff—Appellant,

versus

J M Drilling, L.L.C., 

Defendant—Appellee,

United States Court of Appeals

Fifth Circuit

FILED

August 8, 2022

Lyle W. Cayce

Clerk

Case: 21-30543 Document: 00516423296 Page: 1 Date Filed: 08/08/2022
No. 21-30543

2

Insight Risk Management, L.L.C.; C R C Insurance 

Services, Incorporated,

Third Party Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

USDC 6:18-CV-501

Before Jolly, Elrod, and Haynes, Circuit Judges.

Per Curiam:*

While installing fiber optic cables in Louisiana, JM Drilling hit an 

underground sewer line. It did not notify anyone of this fact or seek any 

repairs. Thereafter, a three-foot sinkhole was formed. Without having 

received any warning, John Thibodeaux fell into it and suffered a severe 

injury as to which he recovered a jury verdict against JM Drilling in state 

court.

This case concerns certain insurance coverage for JM Drilling. The

district court found coverage; we AFFIRM.

1

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

1 The parties were asked on appeal to brief the question of federal court jurisdiction

because the complaint failed to address the members of JM Drilling, which is a limited 

liability company. See Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). 

The record confirms that the amount in controversy exceeds $75,000 and that complete 

diversity exists, given the citizenship of the owner of JM Drilling. Accordingly, we 

conclude that the district court had jurisdiction, and we proceed to the merits. See 28 

U.S.C. § 1653.

Case: 21-30543 Document: 00516423296 Page: 2 Date Filed: 08/08/2022
No. 21-30543

3

Relevant to this case, JM Drilling had two insurance policies, a 

primary policy by Admiral Insurance Company, which is not at issue here, 

and an excess liability policy from Rockhill Insurance Company that is the 

center of this dispute. Rockhill’s insurance incorporated the limits and 

exclusions of the Admiral Insurance Company policy but also added its own 

exclusions, the key one of which was the “Subsidence Exclusion,” which 

provides:

This policy will NOT apply: . . . .

to any liability, whether direct or indirect, arising out of, caused 

by, resulting from, contributed to, or aggravated by the 

subsidence, settling, expansion, sinking, slipping, falling away, 

tilting, caving in, shifting, eroding, mud flow, rising, or any 

other movement of land or earth if any of the foregoing 

emanate from the operations of the insured or any other person 

for whose acts the insured is legally liable.

It is further agreed that this insurance shall not become excess 

of any reduced or exhausted underlying aggregate limit to the 

extent that such reduction or exhaustion is the result of claims, 

damage, loss or expense arising out of or in any way related to

the above.

Rockhill contends that this exclusion covers the sinkhole, which, in its view, 

was a subsidence. The parties agree that Tennessee law applies here. 

Tennessee has a somewhat different version of concurrent cause analysis 

than some other states. Compare Allstate Ins. Co. v. Watts, 811 S.W.2d 883, 

887–88 (Tenn. 1991), with Seahawk Liquidating Tr. v. Certain Underwriters,

810 F.3d 986, 994–95 (5th Cir. 2016) (applying Texas law). To sum up, 

“where a nonexcluded cause is a substantial factor in producing the damage 

or injury, even though an excluded cause may have contributed in some form 

to the ultimate result and, standing alone, would have properly invoked the 

exclusion contained in the policy.” Watts, 811 S.W.2d at 887; see Clark v. 

Case: 21-30543 Document: 00516423296 Page: 3 Date Filed: 08/08/2022
No. 21-30543

4

Sputniks, LLC, 368 S.W.3d 431, 441 (Tenn. 2012); Capitol Indem. Corp. v. 

Braxton, 24 F. App’x 434, 440 (6th Cir. 2001).2

It is undisputed that subsidence would be an excluded cause under the 

Rockhill Policy. But whether JM Drilling’s negligence is a nonexcluded 

cause is disputed. A nonexcluded cause is a cause that is otherwise covered 

by the policy and is not specifically listed in the exclusion. Here, the Rockhill 

Policy covers “the ultimate net loss in excess of the amount payable under 

the terms of any Underlying Insurance . . . that the insured becomes legally 

obligated to pay as damages.” There is no dispute that the general policy 

coverage applies here, but Rockhill contends the only cause of injury to 

Thibodeaux was subsidence such that the exclusion applies.

We agree that Rockhill makes a good argument that negligence that 

causes the sinkhole is part of the exclusion, but we disagree that the case ends 

there. Instead, we note that the parties also assert that the failure to report 

the damage was part of the negligence but did not cause the sinkhole. Rather, 

it contributed to the injury because if it had been reported, maybe it would 

have been fixed or, at least, there would have been some warning that would 

have avoided Thibodeaux working there. Per Watts, the mere relationship to 

the excluded conduct is not enough to cause everything to be excluded. 811 

S.W.2d at 884–88. Thus, given that there is a mix of excluded and 

nonexcluded causation, we conclude that the district court did not err in 

finding coverage under the Rockhill policy.

AFFIRMED.

2 Under Tennessee law, an insurer can avoid the effect of the “concurrent cause” 

doctrine by expressly including an anti-concurrent clause (“ACC”) in the policy. See 

Hardy & Kelly LLC v. QBE Ins. Corp., No. 3-11-0155, 2012 WL 1744670, at *3 (M.D. Tenn. 

May 16, 2012). While Rockhill did that on other exclusions, it did not on this one, so we 

agree with the district court that the ACC is not in play here.

Case: 21-30543 Document: 00516423296 Page: 4 Date Filed: 08/08/2022