UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: UNITED INDUSTRIAL SERVICES,
INCORPORATED,
Debtor.

CERTAIN LONDON MARKET INSURERS,
Plaintiffs-Appellants,                                          No. 95-2481

v.

UNITED INDUSTRIAL SERVICES,
INCORPORATED; WESTINGHOUSE
ELECTRIC CORPORATION,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-95-693-PJM, BK-92-13516)

Argued: March 6, 1996

Decided: April 17, 1996

Before HALL, HAMILTON, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

COUNSEL: Michael Joseph McManus, JACKSON & CAMPBELL,
P.C., Washington, D.C., for Appellant. Richard Osgood Duvall,
HOLLAND & KNIGHT, Washington, D.C., for Appellees. ON
BRIEF: Richard S. Kuhl, Jonathan R. Clark, JACKSON & CAMP-
BELL, P.C., Washington, D.C., for Appellant. John Thorpe Rich-
ards, Jr., HOLLAND & KNIGHT, Washington, D.C., for Appellee
Westinghouse; Robert F. Condon, Washington, D.C., for Appellee
United Industrial.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Certain London Market Insurers (the Insurers) brought this declara-
tory judgment action in United States Bankruptcy Court for the Dis-
trict of Maryland against the debtor, United Industrial Services, Inc.
(United), seeking a declaration that two liability insurance policies
issued to United excluded coverage for damages resulting from Unit-
ed's spill of hazardous material. The bankruptcy court held that cov-
erage existed under one of the policies, but not under the other policy.
Both sides appealed to the district court, which held that coverage
existed under both policies. The Insurers now appeal the district
court's order. For the reasons stated below, we affirm.

I.

Westinghouse Electric Corporation (Westinghouse) was hired to
replace old electrical transformers at the United States Capitol. United
was a subcontractor for Westinghouse. The subcontract required
United to remove from an underground vault drums containing poly-
chlorinated biphenyls (PCBs), a hazardous substance that had been
drained from electrical transformers at the Capitol. On August 3,
1992, while United employees were using a crane to lift a PCB drum,
the PCB drum fell from the crane, hit the ground, and ruptured, spill-
ing approximately fifty-five gallons of PCBs. Following the PCB

                    2
spill, Westinghouse conducted an extensive clean-up operation that
included deconstructing and reconstructing part of a concrete tunnel
that had become contaminated with PCBs. Westinghouse spent over
$1,900,000 on the clean-up operation. On December 28, 1992, Wes-
tinghouse filed a suit against United, seeking indemnification from
United under the subcontract, and alleging that the PCB spill was
caused by United's negligence.

At the time of the PCB spill, United had liability insurance under
two policies issued by the Insurers. United had a Primary Policy with
a $1,000,000 limit and an Umbrella Policy with a $4,000,000 limit.
Both policies gave the Insurers the right to control the defense of any
claim within the policies' coverage. The Insurers notified United, by
a letter dated January 7, 1993, that a law firm had been retained to
represent United in the suit brought by Westinghouse.

On February 4, 1993, the law firm retained by the Insurers to repre-
sent United filed an answer on behalf of United. This answer did not
request a jury trial. On February 25, 1993, the Insurers notified United
that an exclusion contained in both the Primary Policy and the
Umbrella Policy might preclude coverage for the PCB spill and that
the Insurers were proceeding with United's defense under a complete
reservation of rights. On February 26, 1993, the law firm hired by the
Insurers to represent United filed an amended answer that included a
demand for a jury trial. Because the jury trial demand was untimely,
the district court struck it from the answer. The district court then
referred the case to a magistrate, who conducted a bench trial and ren-
dered judgment in favor of Westinghouse.

While the suit between Westinghouse and United was pending, the
Insurers brought this action against United, seeking a declaratory
judgment that neither the Primary Policy nor the Umbrella Policy
covered the PCB spill. The action was filed in the bankruptcy court
as an adversary proceeding because United had filed for bankruptcy.
Subsequently, Westinghouse was granted permission to intervene on
the side of United.

The bankruptcy court held that the Primary Policy provided cover-
age for the PCB spill, but that the Umbrella Policy did not. Both sides
appealed to the district court. The district court affirmed the bank-

                    3
ruptcy court's determination that the Primary Policy provided cover-
age for the PCB spill and additionally held that the Insurers were
estopped from denying coverage for the PCB spill under both the Pri-
mary Policy and the Umbrella Policy. On appeal to this court, the
Insurers argue that the PCB spill was not covered under the Primary
Policy and that they should not be estopped from denying coverage
under either policy.

II.

Because the district court sits as an appellate court in bankruptcy
cases, our review of the district court's decision is plenary. Brown v.
Pennsylvania State Employees Credit Union, 851 F.2d 81, 84 (3d Cir.
1988). We apply the same standard of review as the district court
applied to the bankruptcy court's decision. Findings of fact are
reviewed for clear error and conclusions of law are reviewed de novo.
In re Johnson, 960 F.2d 396, 399 (4th Cir. 1992).

III.

We first consider the Insurers' argument that the Primary Policy
does not provide coverage for the PCB spill. We begin by reviewing
two provisions of the Primary Policy.

The Primary Policy contains an endorsement, referred to as "En-
dorsement No. 1," which provides:

          It is understood and agreed that Bodily Injury or Property
          Damage arising out of loading and unloading of property by
          means of mechanical devices, not attached to an automobile,
          is hereby covered under this policy.

(J.A. 301). The Primary Policy also contains several exclusions from
coverage. Among these exclusions is the "Paramount Exclusion,"
which provides:

          Notwithstanding anything to the contrary contained in this
          policy, it is hereby agreed that this policy shall not apply to
          any liability arising out of:

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          ...

          seepage, pollution or contamination or any such similar lia-
          bility in connection with any operation provided by, for or
          on behalf of the Assured or any contract with the Insured,
          for the sale, removal, disposal or dumping of any hazardous
          waste materials.

(J.A. 299).

The parties agree that Texas law governs the interpretation of the
policies. Under Texas law, courts must interpret the meaning of the
language actually used in an insurance policy and give effect to the
intention of the parties as expressed in the writing. State Farm Lloyds,
Inc. v. Williams, 791 S.W.2d 542, 545 (Tex. Ct. App. 1990). If the
language is plain, it must be enforced as written. Id. Insurance poli-
cies should be construed so as to give effect to all parts of the policy.
See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994);
see 13A John A. Appleman & Jean Appleman, Insurance Law and
Practice § 7537 (1976) ("Provisions of the policy and an endorsement
thereon are to be read together, and they should be construed, if possi-
ble, so as to give effect to all provisions."). The parties agree that
when an insurance policy contains an endorsement that conflicts with
another provision in the insurance policy, the endorsement controls.
See United States Fire Ins. Co. v. Aetna Casualty & Sur. Co., 781
S.W.2d 394, 399 (Tex. Ct. App. 1989).

The bankruptcy court and the district court concluded that Endorse-
ment No. 1 conflicted with the Paramount Exclusion. Applying the
rule that an endorsement controls over conflicting policy provisions,
the courts held that the Primary Policy provided coverage for the PCB
spill under Endorsement No. 1, even though the Paramount Exclusion
precluded coverage for damages arising from the removal of hazard-
ous wastes. Thus, the courts effectively read the Paramount Exclusion
out of the Primary Policy.

Because it is possible to give meaningful effect to Endorsement
No. 1 without reading the Paramount Exclusion out of the Primary
Policy, we reject the interpretation given the Primary Policy by the
bankruptcy court and the district court. See Forbau, 876 S.W.2d at

                    5
133; see also Western Heritage Ins. Co. v. Magic Years Learning
Ctrs. & Child Care, Inc., 45 F.3d 85, 88-90 (5th Cir. 1995) (applying
Texas law) (holding that an exclusion in an insurance policy pre-
cluded coverage for a claim otherwise covered by a general grant of
coverage in an endorsement, because the endorsement and the exclu-
sion could be read together without rendering the endorsement mean-
ingless).

Endorsement No. 1 generally provides coverage for damages "aris-
ing out of loading and unloading of property by means of mechanical
devices, not attached to an automobile." (J.A. 301). But the Para-
mount Exclusion modifies this general provision of coverage by stat-
ing that "[n]otwithstanding anything to the contrary contained in this
policy," coverage is precluded for damages resulting from "pollution
. . . in connection with any . . . removal . . . of any hazardous waste
materials." (J.A. 299). Thus, under a plain reading of both policy pro-
visions, loading and unloading activities are covered by Endorsement
No. 1, except when the loading or unloading results in pollution in
connection with removal of any hazardous waste materials. Because
the PCB spill occurred in connection with the removal of hazardous
waste materials, the Primary Policy excludes coverage for the PCB
spill.

IV.

Having concluded that the terms of the Primary Policy excluded
coverage for the PCB spill, we now consider whether the Insurers are
estopped from denying coverage under the Primary Policy and the
Umbrella Policy for the PCB spill, regardless of the terms of the
policies.1

In Texas, "[i]t is well established that, whereas the doctrines of
waiver and estoppel may operate to avoid conditions that would cause
a forfeiture of an insurance policy, they will not operate to change,
re-write or enlarge the risks covered by the policy." Farmers Texas
County Mut. Ins. Co. v. Wilkinson, 601 S.W.2d 520, 521 (Tex. Civ.
App. 1980). However, if an insurer assumes an insured's defense
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1 It is undisputed on appeal that the terms of the Umbrella Policy
excluded coverage for the PCB spill.

                    6
without obtaining a reservation of rights, the insurer may be estopped
from denying coverage. Id. at 521-22. This coverage by estoppel
applies if three elements are established: (1) the insurer had sufficient
knowledge of the facts or circumstances indicating noncoverage; (2)
in spite of this knowledge, the insurer assumed the defense of the
insured without obtaining an effective reservation of rights; and (3)
the insured suffered harm as a result of the insurer's assumption of
the insured's defense. See Williams, 791 S.W.2d at 552; see also
Pennsylvania Nat'l Mut. Casualty Ins. Co. v. Kitty Hawk Airways,
Inc., 964 F.2d 478, 481 (5th Cir. 1992) (applying Texas law).

It is undisputed that the first two elements exist here. Although the
Insurers had sufficient knowledge of facts indicating noncoverage,
they assumed United's defense on January 7, 1993, and they did not
obtain an effective reservation of rights until February 25, 1993.

The dispute in this case centers on the third element. United argues
that it suffered harm as a result of the Insurers' assumption of its
defense because the law firm hired by the Insurers to represent United
negligently waived United's right to a jury trial. The Insurers argue,
however, that United's loss of its right to a jury trial is not the type
of harm required to establish coverage by estoppel. 2

The bankruptcy court agreed with the Insurers that United's loss of
its right to a jury trial did not satisfy the third element. The district
court reversed the bankruptcy court on this issue and held that the
Insurers were estopped to deny coverage for the PCB spill under both
the Primary Policy and the Umbrella Policy. We agree with the dis-
trict court that United has established the third element of coverage
by estoppel.

When an insurer has knowledge of facts indicating noncoverage
and nevertheless provides a defense to an insured without obtaining
a reservation of rights, there are two potential sources of harm to the
_________________________________________________________________
2 The Insurers also argue that under the law of agency they cannot be
held responsible for the law firm's defense of United because the law
firm was an independent contractor. This argument is without merit,
because the liability at issue here is based on principles of estoppel,
rather than principles of agency.

                     7
insured. First, harm can result from the conflict of interests that exists
when a lawyer represents the insured while simultaneously formulat-
ing a defense of noncoverage against the insured. See Williams, 791
S.W.2d at 551. Second, harm can result from the insured's relinquish-
ment of control of the defense to the insurer. See id. The doctrine of
coverage by estoppel protects an insured from both these sources of
harm. See id. at 552. But "unless a conflict of interests or other harm
is clear and unmistakable, . . . the insured must show how he was
harmed." Id. at 553.

Here, as a result of relinquishing control of its defense to the Insur-
ers, United lost its right to a jury trial. Although, as the Insurers argue,
the outcome of the trial may have been the same with a jury, United's
loss of its right to a jury trial is harm in itself. Cf. Federal Deposit
Ins. Corp. v. Marine Midland Realty Credit Corp., 17 F.3d 715, 721
(4th Cir. 1994) (holding that a trial court's erroneous denial of a jury
trial is harmful unless the trial court would have ordered judgment as
a matter of law). A representative of United testified that if the law
firm had consulted with United regarding whether to seek a jury or
nonjury trial, United would have requested a jury trial. Moreover, the
law firm retained by the Insurers to represent United in the Westing-
house suit has admitted that the suit was "a jury-type case" involving
negligence, and that "[t]he nature of the factual inquiries . . . in th[e]
case [were] best suited for a jury." (J.A. 545-46). United thus has
shown that it was harmed as a result of relinquishing the control of
its defense to the Insurers.

The Insurers argue, however, that the loss of the right to a jury trial
is not the type of harm required to establish coverage by estoppel.
According to the Insurers, to satisfy the third element of coverage by
estoppel, there must be a conflict of interests between the insured and
the insurer, so that the insured's claim of coverage was prejudiced by
the insurer's assumption of the defense. We can find no support in
Texas law for this argument. Although the Williams court recognized
that harm can result from the conflict of interests that exists when a
lawyer represents the insured while simultaneously formulating a
defense of noncoverage against the insured, it also recognized that
harm can result from the insured's relinquishment of control of the
defense to the insurer. See Williams, 791 S.W.2d at 551. The Williams
court made clear that coverage by estoppel is not limited to situations

                     8
where there is a conflict of interests related to the coverage dispute
by stating that "unless a conflict of interests or other harm is clear and
unmistakable, . . . the insured must show how he was harmed." Id. at
553 (emphasis added).

The Insurers rely principally on Kitty Hawk. In that case, the Fifth
Circuit had to determine whether an insured had established the third
element of coverage by estoppel. The court found no evidence that the
insured was harmed by a conflict of interests relating to the coverage
dispute. 964 F.2d at 482. The court also found no evidence that the
insured was harmed by relinquishing control of its defense. Id. at 483.
Indeed, the insured had conceded that it did not have any complaints
regarding the defense provided by the insurer. Id. The court thus con-
cluded that the insured failed to establish the third element. Summing
up, the court stated:

          Accordingly, we hold that, when, as in this case, the facts
          do not suggest that counsel provided by an insurer to defend
          its insured has acted to prejudice (or even had an opportu-
          nity to prejudice) the insured's claim of policy coverage, no
          inference of harm to the insured arises.

Id.

The Insurers seize on this sentence as support for the argument that
only harm related to the coverage dispute will satisfy the third ele-
ment of coverage by estoppel. But a reading of this sentence in the
context of the entire case shows that the court was merely heeding the
admonishment in Williams that "unless a conflict of interests or other
harm is clear and unmistakable, . . . the insured must show how he
was harmed." 791 S.W.2d at 553. In Kitty Hawk , the insured could
not point to any harm resulting from the insurer's control of the
defense. United, unlike the insured in Kitty Hawk, has shown that it
was harmed by the Insurers' control of its defense. Thus, the facts of
Kitty Hawk are distinguishable from this case. Because United has
shown that it was harmed as a result of relinquishing the control of
its defense to the Insurers, United has established the third element of
coverage by estoppel.3
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3 Because we conclude that United's loss of the right to a jury trial sat-
isfies the third element of coverage by estoppel, we need not address
United's other allegations of harm resulting from the Insurers' control of
the defense.

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V.

In summary, we hold that although the terms of the Primary Policy
and the Umbrella Policy excluded coverage for the PCB spill, the
Insurers are estopped from denying coverage under either policy,
because they assumed the defense of United and waived United's
right to a jury trial before obtaining a reservation of rights. Therefore,
the order of the district court affirming in part and reversing in part
the order of the bankruptcy court is affirmed.

AFFIRMED

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