IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-20428

NAT’L UNION FIRE INS. CO OF PITTSBURGH, PA,

Plaintiff-Appellee,

v.

CONTINENTAL CARBON CO.,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Texas

U.S.D.C. No. 4:10-cv-02379

Before STEWART, Chief Judge, and SMITH and WIENER, Circuit Judges.

PER CURIAM:*

This case involves an insurance coverage dispute which stems from six

underlying suits (“the pollution suits”) filed by various plaintiffs alleging

exposure to dust and particulate pollution discharged by the defendant,

Continental Carbon Company (“CCC”).1 National Union Fire Insurance

Company of Pittsburgh, PA (“National Union”) insured CCC over a period of

years under several primary and umbrella insurance policies. CCC sought

United States Court of Appeals

Fifth Circuit

F I L E D

March 25, 2013

Lyle W. Cayce

Clerk

* 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.

1 All six underlying suits have now been resolved, one by trial and five by settlement.

 Case: 12-20428 Document: 00512185315 Page: 1 Date Filed: 03/25/2013
No. 12-20428

defense and indemnity from National Union in the pollution suit proceedings

under the umbrella insurance policies. National Union denied CCC’s request,

citing the plain language of the policies, the pollution exclusions contained

therein, and the inapplicability of the corresponding exceptions to those

exclusions. 

After the conclusion of various other state court, federal district court, and

arbitration proceedings, National Union and CCC both filed motions for partial

summary judgment in federal district court in Houston, Texas. The district

judge rendered summary judgment in favor of National Union, holding that it

did not have a duty to defend or indemnify CCC in the pollution suits under any

of the umbrella insurance policies effective between the parties from 1995-2001.2

CCC filed the instant appeal. 

This court reviews a district court’s grant of summary judgment de novo. 

Nat’l Cas. Co. v. W. World Ins. Co., 669 F.3d 608, 612 (5th Cir. 2012). The

interpretation of an insurance contract is also reviewed de novo. Id. The parties

do not dispute that Texas law applies in these proceedings. 

After hearing the parties’ arguments on appeal, and after reviewing the

briefs, the record, the insurance policies at issue, the applicable statutory and

case law, and the district court’s summary judgment and reasoning, we AFFIRM

the district court’s judgment and adopt its analysis in full.3 

2 The district court also granted both of National Union’s Motions to Strike late-filed

evidence submitted by CCC, neither orders of which are appealed by CCC.

3 CCC is correct that the district court incorrectly stated that, because it found no duty

to defend, National Union therefore owed no duty to indemnify. See Gilbane Bldg. Co. v.

Admiral Ins. Co., 664 F.3d 589, 601 (5th Cir. 2011) (stating that “[t]he duty to indemnify is

separate and distinct from the duty to defend.”). However,the district court’s ultimate holding

that National Union did not have a duty to indemnify under the policies was nevertheless

correct because when there is no coverage under a policy for a loss, no indemnity is owed. See

generally Delta Seaboard Well Servs. v. Am. Int'l Specialty Lines Ins. Co., 602 F.3d 340 (5th

Cir. 2010).

2

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