*Pursuant to Local 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-60812

_____________________

EUGENE A. BROADHEAD, Ancillary Receiver and

Statutory Liquidator for the State Board of

Insurance in the State of Texas for Mission

National Insurance Co., and International

Insurance Company, ET AL.,

Plaintiffs,

TOMLINSON INTERESTS, INC. AND REPUBLIC

REFINING CO.,

Intervenor Plaintiff-Counter DefendantAppellee,

versus

THE HARTFORD CASUALTY INSURANCE COMPANY,

ET AL.,

Defendants,

THE HARTFORD CASUALTY INSURANCE COMPANY;

HARTFORD ACCIDENT & INDEMNITY COMPANY,

Defendants-Counter Claimants-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Mississippi

(3:86-CV-667)

_________________________________________________________________

October 15, 1996

Before REYNALDO G. GARZA, JOLLY, and DeMOSS, Circuit Judges.

PER CURIAM:*
2

After reviewing the record, studying the briefs, and

considering the arguments presented to this court, we have

concluded that the district court committed no reversible error in

this case. 

The district court did not err in finding that Hartford was

not entitled to reimbursement for the amount paid in the settlement

of the Oil Field Rental Services claim. The judgment imposed on

Tomlinson a legal obligation to pay damages resulting from property

damage caused by an occurrence and, consequently, fell within the

terms of the policy issued by Hartford. The mere fact that the

judgment was premised on a theory of breach of the rental contract

does not remove the loss from the scope of the coverage, because

the ultimate cause of the loss was an occurrence--the blow out--

which was unforeseen and unintended by the insured. Hartford was

required to pay the judgment under the policy terms and is not

entitled to recover its expenditures.

The district court likewise did not commit reversible error in

concluding that Texas law governed the award of attorneys' fees and

pre-judgment interest to Tomlinson. After conducting the

appropriate conflicts of laws analysis as set forth in Boardman v.

United Servs. Auto. Ass'n, 470 So.2d 1024 (Miss. 1985), the court

properly concluded that Texas law governed the substantive issues
3

of this action, including the issues of attorneys' fees and prejudgment interest.

The district court's conclusion that the non-waiver agreement

signed by the parties was ineffective because of the reference to

the incorrect policy number must also be upheld. Without a valid

non-waiver agreement, Hartford's actions at the accident site

following the blow out, including the processing and payment of

claims, effectively estop Hartford from asserting the defense that

Tomlinson breached the policy by acting without its consent in

settling and paying claims. The district court correctly reached

this conclusion.

Hartford argues that it was entitled to a set-off of certain

sums paid by other insurers for the losses claimed by Tomlinson.

Hartford, however, did not raise this affirmative defense in the

pretrial order and thus waived the right to claim such a set-off.

Furthermore, the trial judge did not abuse his discretion by

refusing to allow the amendment of the pretrial order during trial.

Absent an abuse of discretion the trial court's ruling on the issue

of amendment of the pretrial order is no basis for reversal.

The evacuation expenses paid by Tomlinson following the blow

out are an additional source of dispute in this appeal. Hartford

argues that Tomlinson was not "legally obligated" to pay the

expenses within the meaning of the policy or, in the alternative,

that the failure to obtain Hartford's permission before paying such
4

expenses resulted in a breach of contract and therefore relieves

Hartford of any liability under the policy. The district court

found that Tomlinson was legally obligated to pay these expenses

pursuant to the emergency contingency plan filed with the State of

Mississippi and that Hartford, by knowingly allowing such payments

to be made by Tomlinson without objection, waived any defense to

liability premised on a breach of the policy's no action clause.

The district court carefully analyzed this issue and reached a

well-reasoned and well-supported conclusion that we find to be

correct. 

In conclusion, we find no reversible error on any issue and,

therefore, for the reasons assigned in its opinion, the judgment of

the district court is

A F F I R M E D.