IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40676

COLONY NATIONAL INSURANCE COMPANY, 

 Plaintiff - Appellee 

v. 

UNITED FIRE AND CASUALTY COMPANY, 

 Defendant - Appellant 

Appeal from the United States District Court

for the Eastern District of Texas 

USDC No. 5:14-CV-10

Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges. 

JACQUES WIENER, Circuit Judge:*

Plaintiff-Appellee Colony National Insurance Company (“Colony”) 

claims that Defendant-Appellant United Fire & Casualty Company (“United”) 

had a duty to defend Carothers Construction, Incorporated (“Carothers”) in a 

personal injury lawsuit and seeks to recover half the costs of defending 

Carothers in that lawsuit. The district court granted Colony’s motion for 

summary judgment, holding that United owed a duty to defend Carothers in 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 31, 2017

Lyle W. Cayce

Clerk

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the underlying lawsuit and owed Colony half the costs of defending Carothers. 

United appeals that ruling, contending that the district court erred in holding 

that it had a duty to defend Carothers in the underlying lawsuit and that it 

owed Colony half the costs defending Carothers. We affirm. 

I.

FACTS AND PROCEEDINGS

A. Factual Background

Carothers was the general contractor on a Red River Army Depot job. 

Self-Concrete, Inc. (“Self-Concrete”), a sub-contractor of Carothers, contracted 

to form and pour tilt wall concrete panels. United insured Self-Concrete 

through a commercial general liability policy, and Carothers was an additional 

insured under the United policy. 

Premier Constructors, Inc. (“Premier”) was a sub-contractor of 

Carothers, hired to erect tilt wall panels. Premier hired Joyce Steel Erection 

(“Joyce”) to hoist and lift the tilt wall panels. Colony insured Premier and 

further insured Carothers as an additional insured. 

Gordon Bonner (“Bonner”), an employee of Premier, filed a lawsuit 

against Carothers, Self-Concrete, and Joyce, following an accident on the 

jobsite (the “Bonner lawsuit”). According to Bonner, the accident occurred 

when one of Self-Concrete’s tilt walls was being hoisted into place and the 

panel swung out in an uncontrolled manner, pinning Bonner against a 

retaining wall. As a result, Bonner suffered severe injuries. 

Carothers tendered defense to United and Colony in the Bonner lawsuit. 

Colony accepted the tender and defended Carothers; United declined to defend 

Carothers.1 The Bonner lawsuit was ultimately settled. 

 

1 United did defend Self-Concrete in the Bonner lawsuit.

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B. Procedural Background

Colony filed this action against United for breach of contract, with claims 

for subrogation and contribution for United’s refusal to defend Carothers in 

the Bonner lawsuit. United claimed that Bonner did not allege facts under 

which coverage for Carothers was invoked by its policy because Bonner did not 

allege facts or claims that imputed liability of Self-Concrete to Carothers.

Colony and United filed cross-motions for summary judgment. The district 

court referred the motions to a magistrate judge and ultimately adopted the 

magistrate judge’s report and recommendation, granting Colony’s motion for 

summary judgment and denying United’s motion. The court concluded that 

United was responsible for one-half of Colony’s costs incurred in defending 

Carothers in the Bonner lawsuit, including, pre- and post-judgment interest.

United appeals. 

II. 

STANDARD OF REVIEW

“We review a grant of summary judgment de novo under the same 

standard applied by the district court.”2 Summary judgment is appropriate 

when “there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.”3 We consider the evidence in the light 

most favorable to the nonmoving party and draw all reasonable inferences in 

its favor.4 

 

2 Boone v. Citigroup, Inc., 416 F.3d 382, 392–93 (5th Cir. 2005). 3 FED. R. CIV. P. 56(a).

4 See Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848, 856 (5th Cir. 

2014).

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III.

ANALYSIS

A. The Duty to Defend

Under Texas law, the duty to defend and the duty to indemnify are 

distinct and separate duties.5 The duty to defend is the broader of the two.6 An 

insurer’s duty to defend is governed by the eight-corners or complaintallegation rule. It determines the duty to defend by examining “the third-party 

plaintiff’s pleadings, considered in light of the policy provisions, without regard 

to the truth or falsity of those allegations.”7 We therefore look only to the “eight 

corners” of the two documents, viz., the pleadings in the underlying lawsuit 

and the insurance contract between the insurer and insured, to determine if 

the insurer has a duty to defend.8 “Even if the plaintiff’s complaint alleges 

multiple claims or claims in the alternative, some of which are covered under 

the policy and some of which are not, the duty to defend arises if at least one 

of the claims in the complaint is facially within the policy’s coverage.”9 Whether 

an insurer is obligated to defend an insured is a question of law for the court 

to decide.10

United does not dispute that Carothers is an additional insured under 

its policy with Self-Concrete. However, United argues that it does not owe a 

duty to defend Carothers in the Bonner lawsuit because Bonner did not allege 

claims against Self-Concrete that can be imputed to Carothers. 

 

5 King v. Dall. Fire Ins. Co., 85 S.W.3d 185, 187 (Tex. 2002).

6 Zurich Am. Ins. Co. v. Nokia, Inc., 268 S.W. 3d 487, 490 (Tex. 2008); St. Paul Ins. 

Co. v. Tex. Dep’t of Transp., 999 S.W.2d 881, 884 (Tex. App. – Austin 1999, writ denied).

7 GuideOne Elite Ins. Co. v. Fielder Road Baptist Church, 197 S.W.3d 305, 308 (Tex. 

2006).

8 King, 85 S.W.3d at 187. 

9 Lafarge Corp. v. Hartford Cas. Ins. Co., 61 F.3d 389, 393 (5th Cir. 1995).

10 State Farm Lloyds v. Kessler, 932 S.W.2d 732, 736 (Tex. App. – Fort Worth 1996, 

writ denied). 

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1. Bonner’s Petition11

Bonner alleged that Carothers undertook “to perform services they knew 

or should have known were necessary for . . . BONNER’S protection.” Bonner 

also alleged that Carothers was under an obligation to ensure that work on the 

jobsite was implemented, complied with, and enforced, in accordance with its 

contracts and with (1) the U.S. Army Corps of Engineers Safety and Health 

Requirements Manual, (2) Occupational Safety and Health Administration 

(“OSHA”) Regulations, and (3) Carothers’s Safety Policy/Accident Prevention 

Plan, as well as, ensuring subcontractor implementation, compliance, and 

enforcement under the same. Bonner claimed that Carothers breached its duty 

to Bonner with respect to ensuring that (1) he had a safe place to work, (2)

unsafe conditions were corrected, including bringing such unsafe conditions to 

the attention of subcontractors, and (3) subcontractors complied with 

applicable safety plans and OSHA regulations. Bonner alternatively pled that 

Carothers had general supervisory authority and control over the jobsite, 

including the power to detect, correct, require others to correct, and prevent 

unsafe conditions and safety hazards on the site. Bonner further alleged that 

Carothers failed to implement an effective system for promptly correcting 

discovered hazards and failed to ensure subcontractor compliance with safety 

requirements. 

Bonner claimed that Self-Concrete had a duty to follow the plans 

furnished by Carothers properly in forming, pouring, and preparation of the 

concrete tilt-up panels, and that it had breached such duty.12 Bonner also 

alleged that the subcontract required Self-Concrete to clean the jobsite at the 

 

11 For the eight corners review we focus on the most recently filed petition. See Rhodes 

v. Chicago Ins. Co., a Div. of Interstate Nat’l Corp., 719 F.2d 116, 119 (5th Cir. 1983). 12 “Tilt-up panels” and “tilt wall panels” are used interchangeably in Bonner’s petition 

and the parties’ briefs. 

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end of each day, but failed to clean up at the worksite in question, which 

resulted in a dangerous jobsite condition that was a direct and proximate cause 

of Bonner’s injuries. Bonner additionally alleged gross negligence in SelfConcrete’s failure to clean the worksite so that workers coming in to assist in 

the erection of the tilt wall would have a clear area in which to do their work, 

amounting to an extreme degree of risk to Bonner. 

2. Bonner’s Petition Applied to the United Insurance Policy 

Relevant United policy language states: 

Additional Insured – Owners, Lessees or Contractors – 

Automatic Status When Required in Construction Agreement 

With You 

a. Any person or organization for whom you are 

performing operations when you and such person 

or organization have agreed in writing in a contract 

or agreement that such person or organization be 

added as an additional insured on your policy. 

Such person or organization is an additional 

insured only with respect to your liability 

which may be imputed to that person or 

organization directly arising out of your 

ongoing operations performed for that 

person or organization. A person’s or 

organization’s status as an insured under this 

endorsement ends when your operations for that 

insured are completed. 

Based on the United policy’s language, we must decide whether Bonner’s 

pleadings sufficiently allege liability with respect to Self-Concrete which may 

be imputed to Carothers directly arising out of Self-Concrete’s ongoing 

operations performed for Carothers. 

United contends that Bonner’s allegations are based solely on the 

independent acts of Carothers and Self-Concrete and that there are no facts or 

theories that support imputed liability. United reasons that, because the 

accident was caused by an out of control tilt wall panel, and the contract 

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between Self-Concrete and Carothers specifically excluded lifting tilt wall 

panels from the scope of Self-Concrete’s work, it is not under a duty to defend 

Carothers. However, Bonner expressly alleges that Carothers retained 

authority over the jobsite and plans for the tilt wall panels and further failed 

to ensure that its subcontractors abided by the requirements and standards 

contained in the subcontracts. This is sufficient to find liability on the part of 

Self-Concrete, which may be imputed to Carothers, giving rise to a duty to 

defend.13

Although an employer is not generally liable for the negligence of an 

independent contractor,14 an employer may be liable when it controls 

“operative details” of the independent contractor’s work.15 To have control of 

“operative details,” the employer must have “the right to control the means, 

methods, or details of the independent contractor’s work to the extent that the 

independent contractor is not entirely free to do the work his own way.”16 The 

right to “inspect, test, and approve” the independent contractor’s work to 

ensure compliance with the contract specifications and safety requirements 

 

13 The parties disagree about the definition of imputed negligence. Bonner has stated 

facts on which negligence could be imputed to Carothers under either definition urged by the 

parties. See Imputed Negligence, BLACK’S LAW DICTIONARY (9th ed. 2009) (“Negligence 

of one person charged to another; negligence resulting from a party’s special relationship 

with another party who is originally negligent – so that, for example, a parent might be held 

responsible for some acts of a child.”); see also Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 

734, 736 (Tex. 1990) (setting forth the proposition that in Texas, when a policy contains no 

technical definitions of words it uses, the words must be given their plain, ordinary, and 

generally accepted meanings).

14 St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542 (Tex. 2002).

15 See Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788 , 792 (Tex. 2006) (quoting 

RESTATEMENT (SECOND) OF TORTS § 414 cmt. c (AM. LAW INST. 1965)). 16 Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693, 700 (Tex. App. – Houston [14th 

Dist.] 2007, pet. denied). 

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does “not implicate a right to control the details of the independent contractor’s 

work.”17 

Here, Bonner alleged that Carothers provided plans for the tilt wall 

panel formation to Self-Concrete. Providing “plans” may be typical of a general 

contractor and may not rise to the level of imputing liability to a general 

contractor for the purposes of tort liability.18 However, Bonner alleged that 

Carothers’s control over the “plans” included much more than simply 

furnishing the plans. Moreover, Bonner’s petition set forth the detailed level of 

control that Carothers exercised over the jobsite and Self-Concrete’s work, 

which, in addition to following the terms of its contracts, included having the 

right and duty to enforce regulations of the U.S. Army Corps of Engineers, 

OSHA, and Carothers’s own Safety Policy/Accident Prevention Plan, which 

were incorporated into Carothers and Self-Concrete’s subcontract. This level of 

control over Self-Concrete’s actions amounts to “operative control” so that 

United was under a duty to defend Carothers in the Bonner lawsuit. 

This is especially true under Texas’s broad scope of the duty to defend 

which extends even “[w]here the [petition] does not state facts sufficiently to 

clearly bring the case within . . . coverage”, because “the general rule is that 

the insurer is obligated to defend if there is, potentially, a case under the 

[petition] within the coverage of the policy.” 19 

 

17 Victoria Elec. Co-op., Inc. v. Williams, 100 S.W.3d 323, 330 (Tex. App. – San Antonio 

2002, pet. denied). 

18 See Inclan v. Gen. Homes Corp., No. 14-94-00995-CV, 1996 WL 401002, *3 (Tex. 

App. – Houston [14th Dist.] July 18, 1996) (citing Restatement Second of Torts § 414, cmt. c 

(1965); Newspapers Inc. v. Love, 380 S.W.2d 582, 588 (Tex. 1964)). 

19 GuideOne, 687 F.3d at 683 (quoting Nat’l Union Fire Ins. Co v. Merchant Fast Motor 

Lines, 939 S.W.2d 139, 141 (Tex. 1997)) (first and last alteration in original); see also Gore 

Design Completions, Ltd. v. Hartford Fire Ins. Co., 538 F.3d 365, 369 (5th Cir. 2008) (“When 

in doubt, defend.”); Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex. 

1965) (“[I]n case of doubt as to whether or not the allegations of a complaint . . . state a cause 

of action within the coverage of a liability policy sufficient to compel the insurer to defend the 

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B. Priority of Coverage 

Under Texas law, when coverage is triggered under policies issued by

different insurers for a claim of injury, the duty to defend is absolute because 

the insurance contract requires the insurer to defend the insured, not merely 

to provide a partial or pro rata defense.20 Each insurer whose policy obligations 

are triggered independently owes the insured a complete defense.21 To 

determine priority of coverage, a court must first determine whether the 

insured is entitled to complete coverage by each of the insurers involved.22 If 

the insured is covered by each insurer, then the court will determine if each 

applicable policy contains an “other insurance” clause that seeks to limit 

coverage of liability.23 If both policies under consideration contain a provision 

that negates liability because of the existence of another policy, then the 

conflicting provisions are mutually repugnant and are ignored, and the 

liability is applied on a pro rata basis between the insurers.24

United argues that even if the court finds that it was required to defend 

Carothers in the Bonner lawsuit, it need not cover half the costs of defense to 

Carothers because the Colony policy is primary and non-contributing, and the 

United policy is excess. 

1. The “Other Insurance” Clauses 

Both the United policy and the Colony policy contain “other insurance” 

clauses. These policies mirror each other as to “other insurance” and state that 

 

action, such doubt will be resolved in [the] insured’s favor.”) (internal quotation marks 

omitted). 

20 Tex. Prop. & Cas. Ins. Guar. Ass’n v. Sw. Aggregates, Inc., 982 S.W.2d 600, 607 (Tex. 

App. – Austin 1998, no pet.).

21 Id. at 605. 

22 Hardware Dealers Mut. Fire Ins. v. Farmers Ins. Exch., 444 S.W.2d 583, 589 (Tex. 

1969).

23 Id. 24 Id. at 590.

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defense costs should be shared equally. Both policies are primary policies, 

except when dealing with an additional insured like Carothers. When coverage 

is needed for Carothers, both policies become excess. As a result, the “other 

insurance” clauses are mutually repugnant, cancelling each other out and 

requiring the equal sharing of defense costs.25 Consequently, Colony and 

United were obligated to share in the costs of defending Carothers in the 

Bonner lawsuit. 

2. The Colony Policy’s Primary and Non-Contributing Insurance 

Endorsement 

United claims that, even if it is obligated to share in the defense costs of 

defending Carothers, the Colony policy’s “Primary and Non-Contributing 

Insurance Endorsement” negates its duty and forces the United policy to be 

excess to the Colony policy. United claims that because the endorsement 

“deletes in its entirety and replaces” the Colony policy’s “other insurance” 

clause as to the third party, any argument that the “other insurance” clause in 

the Colony policy requires United to share in defense costs is completely 

negated. United argues that since no third party was named in the 

endorsement, the provisions of this endorsement apply as required by the 

contract between Premier and Carothers. According to United, the contract 

that should be incorporated includes a provision which states that “[t]he 

Subcontractor’s insurance shall be primary as to any insurance under 

which the Contractor is a named or additional insured or which 

otherwise extends coverage to the Contractor.” From this contract provision,

United concludes that the Colony policy requires that it be primary and noncontributing to the United policy because the United policy names Carothers 

as an additional insured. 

 

25 Hardware Dealers, 444 S.W.2d at 589.

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Inserting the respective party names into the policy language 

demonstrates why United’s argument fails: 

With respect to Carothers, the insurance provided by this policy 

shall be primary and non-contributing insurance. Any and all other valid 

and collectible insurance available to Carothers in respect of work 

performed by Premier under written contractual agreements with 

Carothers for a loss covered by this policy, shall in no instance be 

considered as primary, co insurance, or contributing insurance. Rather, 

any such other insurance shall be considered in excess over and above 

the insurance provided by this policy. 

Third Party to whom this endorsement applies is: 

_______________[BLANK]_______________ 

Absence of a specifically named Third Party above means that the 

provisions of this endorsement apply “as required by written contractual 

agreement with Carothers.” 

The “you” referenced in the endorsement clearly refers to Colony’s named 

insured, Premier, and does not have any application to Carothers. The “Third 

Party” to whom the endorsement applies is Carothers, the party with whom 

Premier contracted.26 The term “third party” does not include Self-Concrete or 

United: The policy is primary only as to Carothers and only “in respect of work 

performed by Premier . . . for a loss covered by the policy.” Here, Colony seeks 

recovery from United based on Self-Concrete’s imputed liability to Carothers. 

Furthermore, the United policy is not other insurance “in respect of” work 

performed by Premier. Bonner alleged that Self-Concrete – not Premier – was 

responsible for his injuries, so the United policy is not coverage to which the 

endorsement makes Colony primary. The Colony policy and the United policy 

 

26 Recall, no contract exists between Premier and Self-Concrete or Premier and 

United. 

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are “mutually repugnant” cancelling out each other, so the insurers share the 

costs of defending Carothers in the Bonner lawsuit equally. 

C. Waiver of the Right to Subrogation 

Colony’s policy contains a subrogation clause, entitling it to recover 

defense costs from any insurer that breached its duty to defend an insured 

party.27 United contends that Colony waived its subrogation right against 

United and Carothers and that both prongs of the test for waiver of subrogation 

are met through the subcontract between Carothers and Premier and the 

policy that Colony issued to Premier. A valid waiver of subrogation generally 

requires that an insured must (1) obligate itself to a waiver pursuant to an 

underlying contract and (2) obtain a separate endorsement from its insurance 

carrier, waiving those rights.28

1. The Subcontract 

The subcontract between Carothers and Premier required Premier to 

obtain additional insurance to give adequate and complete protection to 

Carothers. Section 13 of the subcontract provides that “[t]he Sub-contractor’s 

insurance shall contain a standard cross-liability endorsement and a waiver 

of all rights of subrogation against the Contractor, Contractor’s surety, 

and Contractor’s insurers.” United claims that it qualifies as the 

“Contractor’s insurer” so Colony waived its right of subrogation against 

United. 

 

27 See Cont’l Cas. Co. v. N. Am. Capacity Ins. Co., 683 F.3d 79, 87 (5th Cir. 2012) 

(applying Texas law).

28 See, e.g. Ken Petroleum Corp. v. Questor Drilling Corp., 24 S.W.3d 344, 355 (Tex. 

2000); Chevron U.S.A, Inc. v. Cigna Ins. Co. of Tex., No. 09-97-032 CV, 1998 WL 472501, at 

*3-4 (Tex. App. – Beaumont Aug. 13, 1998, pet. denied). 

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2. The Endorsement 

Even if we assume United qualifies as one of the “Contractor’s insurers” 

under the subcontract between Carothers and Premier, no separate 

endorsement from Colony waived Colony’s rights to subrogate United. 

The Colony policy contains an endorsement that states: 

WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST 

OTHERS TO US 

This endorsement modifies insurance provided under the following:

 COMMERCIAL GENERAL LIABILITY COVERAGE PART 

PRODUCTS/COMPLETED OPERATIONS COVERAGE PART 

SCHEDULE 

Name of Person or Organization: 

Any person or organization to whom or to which you are obligated 

by virtue of a written contract to waive your right of recovery. 

SECTION IV – CONDITIONS. 8. Transfer of Rights of 

Recovery Against Others To Us is amended by the addition of the 

following: 

We waive any right of recovery we may have against the person 

or organization shown in the Schedule above because of payments we 

make for injury or damage arising out of your ongoing operations or 

“your work” done under a contract with that person or organization and 

included in the “products-completed operations hazard.” This waiver 

applies only to the person or organization shown in the Schedule above. 

United claims that it qualifies under the schedule as one of the 

“organizations to whom [Colony] is obligated by virtue of a written contract to 

waive [its] right to recovery.” However, the “you” and “your” in the subject 

Colony policy endorsement and schedule unequivocally refer to Premier as 

Colony’s named insured. When we insert proper names, the Colony 

endorsement reads: 

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Colony waive(s) any right of recovery Colony may have against 

Carothers because of payments Colony make(s) for injury or damage 

arising out of Premier’s ongoing operations or ‘Premier’s work’ done 

under a contract with Carothers and included in the ‘products 

completed operations hazard.’ This waiver applies only to Carothers. 

And, when we insert proper names in the schedule it reads:

Any person or organization to whom or to which Premier [is] 

obligated by virtue of a written contract to waive Premier’s right of 

recovery. 

Carothers is the only party that could be listed in the schedule because 

Carothers is the only party with whom Premier contracted. That is why the 

quoted endorsement protects only Carothers’s interests, and not SelfConcrete’s as well. As discussed above, Bonner proffered multiple allegations 

against Self-Concrete on which liability is imputed to Carothers. Thus, Colony 

did not waive its rights against United. 

IV. 

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

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