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Union Insurance Co. v. Travelers Indemnity Company of Connecticut

United States District Court, S.D. Mississippi, Northern Division

September 29, 2018

UNION INSURANCE COMPANY, as Successor in Interest to Great River Insurance Company PLAINTIFF



         Before this court are the opposing motions for summary judgment filed by the plaintiff and the defendant. The Travelers Indemnity Company of Connecticut and its subsidiaries filed a motion for summary judgment under the auspices of Rule 56 of the Federal Rules of Civil Procedure[1]. In their motion these defendants contend that there are no material facts in dispute and, as a matter of law, it owes no funds to the plaintiff, Union Insurance Company. Travelers seeks a declaratory judgment in its favor barring Union's claims against it. [doc. no. 31].

         Union Insurance Company (“Union”) also filed a motion for summary judgment, asserting that Union is entitled to judgment in its favor, as a matter of law, and asks the court to issue a declaratory judgment that Travelers is required to pay the amounts for which Union has sued. [doc. no. 33]. The motions of both parties, in reliance upon Rule 56 of the Federal Rules of Civil Procedure, contend that there are no genuine issues of material fact.

         At the heart of this dispute is Union's effort to obtain contribution from Traveler's for a claim paid by Union, and for which Travelers was partly liable. Travelers admits that it has some liability under the policy in question, but disagrees that it owes any amount over what it has already agreed to pay, the amount Travelers claims to be its proportionate share of a $1 million dollar policy limit.



         Plaintiff Union is an Iowa insurance company with corporate headquarters and its principal place of business located in Urbandale, Iowa. Union acknowledges that it is a successor in interest to Great River Insurance Company, the company that wrote the polices at issue here --policies insuring Custom Aggregates & Grinding, Inc. (“Custom”), against liability claims.

         Defendants Travelers Indemnity Company of Connecticut, Fidelity & Guaranty Insurance Underwriters, Inc., and United States Fidelity & Guaranty Company are subsidiaries of the Travelers Companies, Inc., which is a Connecticut insurance holding company with its corporate headquarters and principal place of business located in Hartford, Connecticut. The Traveler's Entities will be referred to collectively as “Travelers”.

         As authorized by Title 28 U.S.C. § 1332 (a), [2] this court has subject matter jurisdiction over plaintiff's claims and related motions based on diversity of citizenship. The parties are completely diverse and the amount in controversy exceeds $75, 000, exclusive of interest and costs, as Union's complaint demands declaratory judgment regarding an alleged debt of $291, 450. Venue is proper pursuant to 28 U.S.C. §1391. In this diversity action, the substantive laws of the State of Mississippi apply. Klaxon Co. v. Stentor Elec. Mfrg. Co 313 U.S. 487m 496 (1941). See also Boardman v. United Services Auto, Ass'n, 470 So.2d 1024, 1032 (Miss. 1985); Guaranty Nat. Ins. Co. v. Azcock Industries, Inc., 211 F.3d 239, 243 (5th Cir. 2000).


         On August 16, 2004, Clifford Gatlin (“Gatlin”), who had been employed as a sandblaster and foundry worker, filed a lawsuit in the Circuit Court of Hinds County, Mississippi. Gatlin alleged that his work environment had been contaminated with silica dust, causing him to develop silicosis, a serious health condition caused by exposure to inhaling silica dust over a period of time. Gatlin sued, in Hinds County Circuit Court, his employer and other defendants, including Custom Aggregates & Grinding, Inc. (“Custom”). Custom was one of the companies that had supplied to Gatlin's employer sandblasting material that allegedly contained the injurious silica.

         During the relevant period during which Custom was supplying materials to Gatlin's employer and during which time Gatlin was an employee there, Custom was insured by the following four companies: 1) Great River Insurance Company (whose successor in interest is Union); 2) The Travelers Indemnity Company of Connecticut; 3) Zurich North America; and 4) Kemper Insurance Company (collectively, AInsurers"). These insurers had policies in effect with Custom at different times over the relevant period. None was in effect concurrently. Each annual policy, regardless of which insurer issued it, carried primary liability limits of One Million Dollars.

         All four of these insurers entered into a joint defense agreement whereby each insurer agreed to contribute to the legal fees and expenses incurred by Custom in defense of the Gatlin lawsuit. The four companies agreed to a formula, which was included in the joint defense agreement, that allocated a percentage for each insurer to pay based on the proportionate length of time of coverage that each had provided to Custom during the relevant period (also referred to as “time on the risk”). The continuing tort, it was determined, spanned approximately 104 months. The Insurers agreed to a percentage allocation of costs/liability as follows: Great River/Union 22.86%; Kemper 22.86%; Zurich 5.71%; and Travelers 48.57 %.[3] The various subsidiaries and affiliates of the Travelers Companies had insured Custom for the longest period, and therefore, Travelers was obligated to pay the largest part of the settlement or verdict.

         On July 13, 2007, the Insurers were informed that trial was set for October 15, 2007.[4]With mediation scheduled for September 27, 2007, and the trial less than a month away, Travelers and its adjusters, together with Union and the other carriers insuring Custom, pursued a potential settlement, with each carrier attempting to obtain authority for a total from all carriers of 1.5 million dollars. Travelers was a participant in this effort and on September 24, 2007, the adjuster for Travelers, Claudette Savwoir, informed the other insurers that she had requested authority for her share of up to 1.5 million dollars from her superiors. This, according to Union, was proof that up to that point, Travelers considered a settlement above one million to be within policy limits.

         Travelers though, contends that around the time of mediation, Travelers and the other insurers discussed several legal arguments and defenses that had not been, but needed to be, developed. This, Travelers submits, is proof that Travelers did not believe a settlement valuation above $1, 000, 000 was reasonable.

         The parties participated in mediation on September 27, 2007, but were unable to settle the claims against Custom. Custom's co-defendant, Precision Packaging, settled with the plaintiffs at the mediation, on confidential terms. At the conclusion of the mediation, Custom was the only remaining defendant.

         On September 28, 2007, Travelers' adjuster, Claudette Savwoir authored an email to defense counsel, Forman, Perry, Watkins, Krutz & Tardy, regarding several legal defenses and arguments that Travelers was pushing and that Travelers said should have been developed a long time ago. On October 1, 2007, Claudette Savwoir and Gerald Begley, in-house counsel for Travelers, called Custom's representative Suzy McDonald and advised it was Traveler's position that only $1 million in total indemnity was available to Custom for the Gatlin lawsuit.

         On October 2, 2007, Custom's defense counsel made to Gatlin an offer of $1, 000.000, which was rejected. Negotiations continued over the next several days. On October 3, 2007, a member of the defense team from Forman, Perry, Watkins, Krutz & Tardy emailed Travelers' counsel Gerald Begley that Custom had actually sold a lot more sand to Gatlin's employer than plaintiff knew about and that Gatlin's demands would go higher once this error was realized. On October 4, 2007, with the trial set for eleven days later on October 15, 2007, Travelers issued a “Policy Limit Notification Letter” to Custom, reiterating its position that a single per occurrence limit of one million dollars total was available from all carriers collectively, and informing all involved that Travelers would only offer 48.57 % of one million dollars or $485, 700. While Travelers agreed to continue to honor its defense obligations, Travelers stated it did not agree to indemnify Custom for any amount above its 48.57 % share of the $1 million dollar limit.

         On October 9, less than a week from the date of trial, which was set for October 15, settlement was reached between Custom and Gatlin, for the sum of $1.75 million dollars. Although the carriers had earlier agreed on the percentage each should pay, they disagreed on the combined policy limit and, therefore, on the sum to which each insurer's percentage should be applied. Union, Zurich and Kemper considered that the entire $1, 750, 000.00 settlement agreement was within combined policy limit. Travelers took the position that the carriers' liability was limited to a total of one million dollars. Travelers, then, instead of contributing a 48.57 % share of the 1.75 million dollar settlement amount, for a total of $849, 975.00, limited its settlement contribution to $485, 700.00, or 48.57% of its one million dollar policy limit, a difference of $364, 275.00.

         Kemper paid its proportionate share of the 1.75 million dollars under the formula. Union and Zurich, though, paid more than what they believed to be the just shares they owed pursuant to the allocation agreement. According to Union's amended complaint [doc. no. 8 at pp. 5-6], these two carriers did this “[t]o consummate the settlement agreement and to avoid the pending trial with its attendant risk to the insured ...” Defense counsel had informed the carriers that Custom could be exposed to as much as a $5 million to $10 million dollar liability. Union asserts that these additional payments were not voluntary, and were made under protest and with reservation of rights against Travelers.

         The settlement agreement was paid as follows:

Great River, predecessor in interest to Union

$691, 500.00


$400, 050.00


$172, 750.00


$485, 700.00

         Union contends that what should have been paid is as follows:

Great River, predecessor in interest to Union

$400, 050.00


$400, 050.00


$99, 925.00


$849, 975.00

         Settlement was funded and consummated, and the Gatlin litigation was dismissed in Hinds County Circuit Court by final judgment with prejudice on April 6, 2009. Travelers contends that Union, Zurich and Kemper made the decision to negotiate above $1, 000, 000 and that Travelers did not consent to the decisions being made during the settlement negotiations. Union, on the other hand, claims that Travelers was kept informed by emails throughout the negotiations. In any event, when the settlement was reached on October 9, 2007, all parties were aware of Traveler's position that it would only be responsible for $485, 700.


         Union, the Plaintiff herein, filed a Complaint for Declaratory Judgment [Docket No. 1] with this Court on May 8, 2009 and, with leave of the court, an Amended Complaint for Declaratory Judgment [Docket No. 8] on August 21, 2009. The Amended Complaint asks this Court to “declare the appropriate method in Mississippi for allocation of insurance coverage for a continuing tort for which the occurrence took place over a span of years which involved insurance policies provided by multiple insurance companies.” [Docket No. 8 at p. 7].

         On August 30, 2010, the Defendant, Travelers, filed a Motion for Summary Judgment [Docket No. 31]. Union also filed its Motion for Summary Judgment [Docket No. 33] on that same date. This court has conducted hearings and conferences on the parties' opposing motions, and has requested and received additional briefing and proposed findings of fact and conclusions of law. The parties have also submitted a joint stipulation of facts. The Court must now consider these cross motions.


         Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Copeland v. Nunan, 250 F.3d 743 (5th Cir. 2001) citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex at 322. The substantive law establishes those elements on which a plaintiff bears the burden of proof and only facts relevant to those elements are considered for summary judgment purposes. Id.

         Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute for facts demonstrating a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash. 276 F.3d 754. 759 (5th Cir. 2002); SEC. v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1997); Little v. Liquid Air corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant "but only when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075. When such contradictory facts exist, the court may "not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.133, 150 (2000).



         When cases are brought to federal courts on diversity grounds, state substantive law applies. James v. State Farm Mut. Auto. Ins. Co., 743 F.3d 65, 69 (5th Cir. 2014) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). See also Boyett v. Redland Ins. Co., 741 F.3d 604, 607 (5th Cir. 2014) (court held that “when subject matter jurisdiction is based on diversity, federal courts apply the substantive law of the forum state”). This court, then, must apply the substantive laws of the State of Mississippi in making its decision.

         A. Voluntary Payment Doctrine

         Travelers, in its motion for summary judgment, asserts that the payments made above $1, 000, 000 for settlement of the Gatlin litigation, were ‘voluntary payments' and Union cannot look to Travelers for recompense. Accordingly, this Court first must look to whether Union's payment toward the settlement of the Gatlin case was a voluntary payment. If the payment was voluntary, Union is not allowed to recoup the purported “excess” monies it paid in settlement of that lawsuit and the court need not inquire further. Summary Judgment would then be granted in favor of Travelers. A[A] voluntary payment cannot be recovered back…” Genesis Ins. Co. v. Wausau Ins. Co., 343 F.3d 733, 736 (5th Cir. 2003).

         By contrast, if the purportedly “excess” payment made by Union was not voluntary, this court must proceed to its next inquiry- whether the $ 1.75 million dollar settlement amount exceeds the maximum aggregate liability amount for all four insurers combined and, if so, what amount, if any, is Travelers required to pay to Union? If either question cannot be resolved without deciding issues of material fact, the case must be submitted to a fact-finder. Both sides, however, contend that there are no material issues of fact to adorn this issue.

         A major case which discusses the voluntary payment doctrine is Genesis Ins. Co. v. Wausau Ins. Co., decided by the Fifth Circuit Court of Appeals. There, two insurers, Genesis Insurance Company and Wausau Insurance Company (hereafter “Genesis and Wausau”), agreed to pay for the defense and expenses of their insured, The President Casino (hereafter “President”). A customer had been seriously injured on the property of President by a casino-owned shuttle being driven by a casino employee. Both the automobile liability policy issued by Genesis and the premises liability policy issued by Wausau were implicated. Genesis Ins. Co. v. Wausau Ins. Co., 343 F.3d 733 (5th Cir. 2003).

         President and Genesis contended that their contributions to the settlement in that case had not been voluntary, but were the product of compelling circumstances created by Wausau. Wausau, they argued, by notifying the other companies of its intention to deny coverage with respect to a premises liability claim less than a month and a half before trial, had deprived both President and Genesis of the ability to mount an adequate defense. They claimed, therefore, they had been forced into participating in the settlement. The district court had disagreed, holding that, as a matter of law, a “lack of timely notice” does not shield them from the voluntary payment doctrine.

         On appeal, the United States Court of Appeals for the Fifth Circuit affirmed the district court's decision that Wausau's conduct did not compel President and Genesis to “throw their hats into the settlement ring.” Genesis at 738.” The appellate court amplified that the voluntary payment doctrine requires: (1) that there be no prior agreement by the parties to litigate coverage following settlement (e.g., parties agree that one will pay but they reserve the right to resolve coverage issues later); and (2) payments must not be made by virtue of legal obligation, by accident/mistake or made under compulsion. Genesis at 738 (citing McDaniel Bros. Constr. Co., Inc. v. Burk-Hallman Col., 175 So.2d 603, 605 (Miss. 1965).

         Not all pressure for payment amounts to compulsion, the court said, citing 16 Lee R.Russ. Couch on Insurance §223.28 (3d ed. 2003).

Where a person pays an illegal demand, with full knowledge of all the facts which render the demand illegal, without an immediate and urgent necessity to pay, unless it is to release his or her person or property from detention or to prevent an immediate seizure of his or her person or property, the payment is voluntary. It is only when, in an emergency for which a person is not responsible, the person is compelled to meet an illegal exaction to protect his or her business interest that he or she may recover the payment, but if, with knowledge of the facts, that person voluntarily takes the risk of encountering the emergency, the payment is voluntary and may not be recovered.
66 Am.Jur.2d § 109 (emphasis added) as quoted in Genesis at 739.

         This dilemma, the Fifth Circuit said in Genesis, first, lacks the sense of immediacy often accompanied by compelled payments, and secondly, “the stakes, in the event that President and Genesis refused to participate in the settlement, were of an insufficiently dire magnitude to justify finding that their settlement contributions were compelled.” Genesis at 739. By way of examples, the Genesis Court cited to Mobile Telecomm Tecnologies Corp. v. Aetna Cas. and Sur. Co., 962 F.Supp. 952 (S.D.Miss. 1997) and Alcoa Steamship Co. v. Velez, 285 F.Supp. 123, 125 (D.Puerto Rico 1968) In Mobile Telecomm, . the district court found there was no compulsion where the insurer had a choice between making payments on its insured's $2 million legal bill or awaiting coverage determination and possibly paying an additional amount for the insured's interim financing. On the other hand, in Alcoa Steamship Co., the district court held that the employer's payment of a workmen's compensation insurance premium was compelled, when the employer was faced with the alternative of losing all coverage. Id. at 125.

         Much like the plaintiff in the Genesis case, Union claims that Travelers= eleventh hour notice of limitations of coverage and the risk of exposing the insured to a much higher jury verdict compelled Union's action to settle. Genesis, however, stands for the proposition that even when the time of the trial is close or when the other insurer does not give timely notice of its intent to deny coverage, an insurer is not compelled to settle. Id., 343 F.3d at 738 As Travelers points out, the Genesis case supports its contention that Union was not compelled to make the payment that it did to settle the Gatlin lawsuit.

         In Genesis, the Fifth Circuit recognized that there was a dearth of Mississippi case law defining Aunder compulsion@, and stated that the Court had to be guided by fact scenarios to reach the ultimate answer in the various cases presenting the “under compulsion” question.

         Since Genesis was decided, more jurisprudence has been developed on the issue of voluntariness and contribution, especially by the Mississippi Supreme Court. After Genesis was decided by the Fifth Circuit Court of Appeals, the Mississippi Supreme Court, in 2009, decided Guidant Mutual Ins. Co. v. Indemnity Ins. Co. of North America, which addressed the voluntary payment doctrine. The Guidant case involved a volunteer fire fighter who had caused an accident while driving his personal vehicle on the way to fight a fire. He was a volunteer for the Marshall County, Mississippi, Fire Department. His auto insurer, Guidant Mutual Insurance Company (“Guidant”) and Indemnity Insurance Company of North America (“INA”), the business automobile insurer for Marshall County, Mississippi, disputed which of them was the primary insurer. Guidant Mutual Ins. Co. v. Indemnity Ins. Co. of North America, 13 So.3d 1270 (Miss. 2009).

         INA refused to participate in settlement negotiations despite being notified of the ongoing conversation, and while being asked to do so by Guidant.[5] When INA refused to contribute to a settlement, Guidant settled and paid the claim, then sued INA for contribution. INA contended that Guidant had made a voluntary payment pursuant to the volunteer payment doctrine and thus could not recover any contribution from INA. Guidant. v. Indemnity, 13 So.3d 1270 (Miss. 2009).

         Mississippi's highest court disagreed, holding that Guidant was entitled to move forward with its claim of contribution against INA. Guidant v. Indemnity, 13 So.3d 1270, 1280 (Miss. 2009). Where an insurer makes a settlement owed, at least in part, by another, state law should not reward the insurer that refuses to participate in the settlement. The court continued, stating that INA was liable to the insurer, which properly undertook a burden of settlement, or defense, for contribution up to its stated limits of liability, if Guidant could prove it was legally liable to settle, and that the amount it paid was reasonable. Guidant v. Indemnity, 13 So.3d 1270, 1280 (Miss. 2009) (citing State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 255 So.2d 667 (Miss. 1971).

         The Mississippi Supreme Court's disposition in Guidant, was controlled by State Farm Mutual Automobile Insurance Co. v. Allstate Insurance Co., 255 So.2d 667 (Miss. 1971). In State Farm, the Court stated:

The majority of cases now recognize the undesirability of rewarding the insurer which refuses to honor its contractual obligations, and hold that payment by an insurer which properly undertakes a burden of settlement or defense does not render it a volunteer, not entitled to recover.

Id. (quoting 8 Appleman on Insurance § 4913, 398).

         In State Farm, the Mississippi Supreme Court considered a case where an automobile owner had two insurance policies in effect. State Farm investigated the accident, and after determining that its insured would be liable for all damages and injuries, State Farm then made a demand on the other insurer, Allstate, to contribute to a settlement. Allstate refused. After negotiating and settling with all parties, State Farm thereafter sued Allstate for one-half of the $2, 380.00 amount paid by State Farm in total settlement of all claims.

         In that suit, Allstate responded that State Farm had been a volunteer as to the payment of $1, 190.00, one-half of the total settlement, because State Farm's contract of insurance contained an ‘other insurance' clause. That clause, contended Allstate, provided that in the event there is another insurer against the same loss, State Farm would be liable for no more than its proportionate share, based on the relative policy limits of the two companies. In that litigation, the two insurers had equal liability limits, so each would have been responsible for one-half of the loss. If State Farm was not contractually obligated to pay but one-half of the total, Allstate reasoned, the other half it paid was purely voluntary.

         The Mississippi Supreme Court disagreed, stating that Allstate had lost sight of its obligation to its insured, as stated in its own policy. The Court there stated that both insurance companies “had entered into solemn contracts for a premium to defend the insured … against any and all claims, and to act in his [the insured's] best interest in negotiating and settling all claims made against him.” That duty, the Court said, “transcends any hypertechnical right of either insurer to pay only in strict accord with the ‘Other Insurance' clause of each contract.” State Farm v. Allstate at 669. The court continued, “[s]urely, Allstate should not be allowed to take advantage of its own wrong. Surely it should not be rewarded for breaching its contract with its insured by refusing to defend him in any manner.” Id. at 669.

         Guidant, continuing this mindset, established that, provided the amount is within policy limits, a payment is not voluntary if the insurer was legally liable to settle and the amount it paid was reasonable. Id. at 1280.

         Union argues that in the instant case, its contractual obligation to defend Custom created a legal liability to settle because the insurance contract implicitly requires that Union place Custom's best interests before its own. Union also points to Travelers' unwillingness to provide sufficient funds to reach a settlement agreement as a breach of Travelers' duty to act in the best interest of the insured. Union compares Traveler's conduct to INA's refusal to defend or contribute to the settlement in the Guidant case.

         Travelers says its conduct is different from that of INA in the Guidant case. Explains Travelers, INA (a) did not participate in negotiations, (b) discontinued paying legal defense costs and (c) refused to pay any part of the settlement. Travelers states it: (a) paid its share of the legal defense of Custom; (b) participated in settlement negotiations up until a week before the trial date; and (c) tendered what it contended was its proportionate share of the settlement.

         Union submits a counter argument, pointing to a federal district court case that was reconsidered based on the Guidant decision as evidence that the Guidant decision should control here and allow for contribution. In Travelers Property Casualty Co of America v. Federated Rural Electric Ins. Exchange, Travelers sued Federated for contribution after Travelers paid a settlement in a wrongful death case against the two insurance companies' mutual insured. Travelers v. Federated, Civ. Action No. 3:08-cv-83 DPJ-JCS, 2009 WL 2900027 (Sept. 3, 2009). In that case, Federal District Court Judge Daniel P. Jordan III, originally found that Travelers was "a volunteer for purposes of the settlement funds based on the Fifth Circuit's holding in Genesis that the mere "payment under 'protest' or accompanied by a unilateral reservation of rights will not escape the application of the volunteer doctrine." Id. at 14.

         Approximately one week after the district court's ruling in favor of Federated Electric in Travelers v. Federated, the Mississippi Supreme Court handed down its decision in Guidant. The district court reconsidered its ruling in Travelers Property Casualty v. Federated Rural Electric, based on the Guidant decision. Judge Jordan reversed his prior decision based on a policy exception to the voluntary payment doctrine first articulated by the Mississippi Supreme Court in State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co and then re-affirmed in the Guidant decision. The District Court described this exception as Aa policy that reduces gamesmanship among carriers at the expense of injured parties and insureds.@ Id. at 20.

         In Guidant, remember, the Mississippi Supreme Court held that Guidant was entitled to contribution from INA if Guidant could prove that “it was legally liable to settle” and that the amount paid to the plaintiffs was reasonable. Guidant Mutual Insurance Company v. Indemnity Insurance Company,13 So.3d 1270, 1280 (hereafter Guidant I). In Guidant I, The Mississippi Supreme Court reversed the Circuit Court of Marshall County, Mississippi and remanded the case. On remand, the Circuit Court Judge for Marshall County granted summary judgment to Guidant on the contribution issue, allowing Guidant to collect contribution from INA. INA appealed and that case of Inde ...

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