           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            April 3, 2008

                                       No. 07-20468                   Charles R. Fulbruge III
                                                                              Clerk

COOPER INDUSTRIES LLC; COOPER B-LINE INC

                                                  Plaintiffs - Appellants
v.

AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE CO

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                    for the Southern District of Texas, Houston
                              USDC No. 4:06-CV-1082


Before KING, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
       This is an insurance coverage dispute stemming from the settlement of a
wrongful death case filed against plaintiff-appellant Cooper Industries, LLC and
its wholly-owned subsidiary, plaintiff-appellant Cooper B-Line, Inc. The district
court granted summary judgment to the insurer, American International
Specialty Lines Insurance Company. Plaintiffs-appellants appeal, arguing that
the district court erred by denying Cooper Industries, LLC coverage under its
employer’s liability policy, and, in the alternative, by failing to allocate the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-20468

settlement between the covered and uncovered claims. We affirm the district
court’s holding with respect to coverage under the employer’s liability policy, but
we vacate the district court’s judgment and remand for determination of the
allocation of liability.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       In October 2004, two employees of Cooper B-Line, Inc. (“B-Line”) were
killed in the course and scope of their employment at a B-Line plant in Texas.
Subsequently, representatives of the two decedents sued B-Line and its parent
corporation, Cooper Industries, LLC (“Cooper”), asserting various negligence and
gross negligence claims against both entities (the “underlying suit”). Cooper and
B-Line timely submitted the claims of the underlying suit to their employer’s
liability insurer and excess liability insurer.1 Cooper and its subsidiaries,
including B-Line, carried primary employer’s liability insurance from ACE
American Insurance Company (“ACE”) at the time of the underlying suit. The
ACE employer’s liability policy provided the “insured” with a $1 million primary
coverage limit and a $1 million deductible. As such, it was merely a fronting
policy, and the $1 million deductible was considered a self-insured retention.
       During the relevant time period, Cooper Industries, Ltd. (“CBE”), the
parent corporation of Cooper,2 carried comprehensive excess liability coverage
from defendant-appellee American International Speciality Lines Insurance
Company (“AISLIC”). The AISLIC policy, issued to CBE, covered CBE and over
one hundred worldwide subsidiaries, including Cooper and B-Line, and had an
aggregate limit of $25 million. Significantly, the AISLIC policy provided excess
coverage to: (1) the $1 million ACE employer’s liability policy; and (2) a $5


       1
        The policies at issue covered Cooper Industries, Inc., but this case was brought by its
successor in interest, Cooper Industries, LLC.
       2
          CBE is a publicly-traded company engaged in manufacturing, marketing, and sales
of electrical products and tools.

                                              2
                                    No. 07-20468

million self-insured retention for general commercial liability (“GCL”) coverage.
Thus, Cooper maintained employer’s liability coverage from the ACE primary
policy with a $1 million deductible and the AISLIC excess policy, and it
maintained GCL coverage from the AISLIC excess policy (over and above a self-
insured retention of $5 million).
      On August 19, 2005, AISLIC informed Cooper and B-Line that the claims
asserted in the underlying suit must be bifurcated relative to each entity’s
primary insurance coverage. Specifically, AISLIC admitted that the claims
asserted against B-Line in the underlying suit are covered by the ACE
employer’s liability policy because B-Line was the employer of the decedents.
Thus, after satisfaction of the $1 million deductible, B-Line would be entitled to
indemnification from AISLIC for any excess employer’s liability. However,
according to AISLIC, the claims asserted against Cooper in the underlying suit
fall under Cooper’s GCL policy, not the ACE employer’s policy. As such, AISLIC
took the position that Cooper must satisfy its $5 million self-insured retention
for GCL claims to trigger coverage under the AISLIC excess liability policy.
       The underlying suit was settled for an amount which is confidential.
Cooper and B-Line paid the $1 million agreed upon deductible under the ACE
employer’s policy. AISLIC then paid $2.6 million, the additional amount it
attributed to B-Line’s liability. To finalize the settlement, Cooper and AISLIC
each agreed to pay half of the remaining amount, $1.35 million—the amount
that AISLIC attributed to Cooper as GCL. However, each party funded this
portion of the settlement with a reservation of its right to recover in later
proceedings.
       On March 30, 2006, Cooper and B-Line brought a breach of contract suit
against AISLIC, arguing that they are jointly covered as a single collective
insured under the ACE employer’s policy and seeking $683,250—fifty percent of
the $1.35 million and ad litem fees that the entities paid in settlement of the


                                         3
                                        No. 07-20468

underlying suit. On July 24, 2006, AISLIC counterclaimed for a declaratory
judgment that Cooper’s liability in the underlying suit is not covered by the ACE
employer’s policy and for reimbursement of its payment of $683,250.
Subsequently, the parties filed cross motions for summary judgment.
       On May 31, 2007, the district court granted AISLIC’s motion for summary
judgment after determining that the ACE employer’s policy is not susceptible to
Cooper’s single collective insured interpretation. Specifically, the district court
reasoned that in order to find that the word “employer” referred to more than
one entity, as Cooper urged, “employer” must be a collective noun. Since
“employer” is customarily considered a singular noun when standing alone, see
DICTIONARY OF COLLECTIVE NOUNS AND GROUP TERMS 75–76, 233 (2d ed. 1985)
(a compendium of more than 1,800 collective nouns, group terms, and phrases
that includes the word employee but not employer), the district court concluded
that it is unreasonable to construe it as a collective noun here. Then, relying on
the legal definition of employer, the district court stated that “the plain meaning
of the word employer—‘one [entity that] pays the worker’s salary or
wages’—supports AISLIC’s position that only B-Line, the entity that paid the
decedent’s salary,3 is the ‘employer named in [I]tem 1’ of the ACE employer
liability policy.”4 Because the policy refers to coverage of employees employed by
an employer,5 the district court determined that “the policy provides coverage

       3
         See BLACK’S LAW DICTIONARY 565 (8th ed. 2004) (providing that the definition of
employer is “a person who controls and directs a worker under an express or implied contract
of hire and who pays the worker’s salary or wages”).
       4
        The General Section of the ACE policy states that the policy “is a contract of insurance
between you (the employer named in Item 1 of the Information Page) and us (the insurer named
on the Information Page).” (Emphasis added).
       5
           The relevant coverage provisions state:

                PART TWO - EMPLOYERS LIABILITY INSURANCE

                A.     How This Insurance Applies

                                               4
                                     No. 07-20468

only to the employer who paid the wages of the employee, not other entities
covered under the policy who have their own employees.” Since “the parties
agree that Cooper [ ] is not the employer of the decedents in the underlying suit,”
the district court found “as a matter of law that [Cooper] is not the insured under
the ACE employer’s liability policy in the instant action.” In the end, the district
court ordered Cooper to pay AISLIC $683,250. On June 19, 2007, Cooper and
B-Line filed their notice of appeal.
                                  II. DISCUSSION
      A grant of summary judgment is reviewed de novo, applying the same
standard as the district court. Stotter v. Univ. of Tex. at San Antonio, 508 F.3d
812, 820 (5th Cir. 2007). “A party is entitled to summary judgment only 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 a judgment as a matter of
law.’” Id. (quoting FED. R. CIV. P. 56(c)). The facts are viewed in the light most
favorable to the party opposing the summary judgment motion and all
reasonable inferences are drawn in that party’s favor. Id.
           A. Coverage Under the ACE Employer’s Liability Policy



                    This employers liability insurance applies to bodily injury
                    by accident or bodily injury by disease. Bodily injury
                    includes resulting death.

                    1.     The bodily injury must arise out of and in the
                           course of the injured employee’s employment by you.

                                                 ***
            B.      We will Pay
                    We will pay all sums you legally must pay as damages
                    because of bodily injury to your employees, provided the
                    bodily injury is covered by this Employers Liability
                    Insurance.

(Emphasis added).

                                             5
                                  No. 07-20468

      Cooper argues that the district court erred by denying joint coverage to
Cooper and B-Line under the ACE employer’s liability and the AISLIC excess
liability policies for the claims asserted against them in the underlying suit.
Cooper maintains that the language in the ACE policy creates a single collective
insured—Cooper and its subsidiaries, including B-Line—and that the purpose
of this structure is to avoid paying multiple deductibles when the parent
company, Cooper, is sued along with one or more of its subsidiaries for liabilities
arising out of the same incident. Thus, Cooper posits that after it satisfied the
ACE primary policy’s $1 million limit, the AISLIC excess policy covers all claims
against both Cooper and B-Line, up to the $25 million limit, which would
encompass the amount Cooper paid to settle the underlying lawsuit, namely,
$683,250.
      AISLIC contends that Cooper’s liability is not covered by the ACE
employer’s liability policy because only B-Line, the corporate subsidiary that
employed the decedents, is the insured under said policy. Under AISLIC’s
interpretation, the ACE employer’s policy only insures an entity for claims
brought by that entity’s employees and does not jointly insure all entities for
claims by employees of other covered entities. Because the decedents in the
underlying suit were employees of B-Line, not Cooper, AISLIC argues that
Cooper must rely on its GCL policy to cover the settlement of the claims asserted
against it. According to AISLIC, since the settlement amount attributable to
Cooper is $1.35 million, which is less than the $5 million deductible under
Cooper’s GCL policy, AISLIC is not obligated to indemnify Cooper. Rather,
Cooper must reimburse AISLIC the amount it paid on behalf of Cooper.
      In diversity cases, such as this one, federal courts look to the substantive
law of the forum state. Texas Indus., Inc. v. Factory Mut. Ins. Co., 486 F.3d 844,
846 (5th Cir. 2007). Under Texas law, insurance policies are governed by the
same rules of construction that apply to contracts generally. Valmont Energy

                                        6
                                   No. 07-20468

Steel, Inc. v. Commercial Union Ins. Co., 359 F.3d 770, 773 (5th Cir. 2004);
Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 740–41 (Tex. 1998). The
primary goal is to give effect to the written expression of the parties’ intent. Id.
at 741. “The terms used in an insurance policy are to be given their ordinary
and generally accepted meaning, unless the policy shows that the words were
meant in a technical or different sense.” Canutillo Indep. Sch. Dist. v. Nat’l
Union Fire Ins. Co. of Pittsburgh, Pa., 99 F.3d 695, 700 (5th Cir. 1996) (citing
Sec. Mut. Cas. Co. v. Johnson, 584 S.W.2d 703, 704 (Tex. 1979)). The policy
should be considered as a whole so as to give effect and meaning to each part.
Id.; Valmont Energy Steel, Inc., 359 F.3d at 773; see also Balandran, 972 S.W.2d
at 741 (“We must read all parts of the contract together, . . . striving to give
meaning to every sentence, clause, and word to avoid rendering any portion
inoperative.”).
      “Texas contract interpretation law indicates that ‘[i]f policy language is
worded so that it can be given a definite or certain legal meaning, it is not
ambiguous and we construe it as a matter of law.’” Texas Indus., Inc., 486 F.3d
at 846 (quoting Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.
2003)). Whether a contract is ambiguous is a question of law for the court to
decide. Id. “The fact that the parties offer different contract interpretations
does not create an ambiguity.” Id. An ambiguity exists only if the contract
language is susceptible to more than one reasonable interpretation. Id.; Nat’l
Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520
(Tex. 1995).      “[I]f a contract of insurance is susceptible of more than one
reasonable interpretation, we must resolve the uncertainty by adopting the
construction that most favors the insured.”        Nat’l Union Fire Ins. Co. of
Pittsburgh, Pa. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex. 1991).
      As support for its argument that the ACE policy establishes joint coverage,
Cooper points to the fact that the policy lists one “Named Insured,” Cooper

                                         7
                                  No. 07-20468

Industries, Inc. (the predecessor to Cooper), and then contains a unique
“Extension of Named Insured” endorsement that lists all other Cooper entities,
including B-Line, as additional workplaces.         According to Cooper, this
endorsement creates coverage for the Cooper group of companies as a single,
collective insured for claims brought by employees of the Cooper group. Cooper
highlights specific provisions and language in the ACE policy that purportedly
require this construction. In particular, the ACE policy: (1) uses the word
“extension,” to broaden who is to be considered the Named Insured rather than
to add additional separate insureds; (2) explicitly refers to the subsidiaries as
Cooper’s “other workplaces,” rather than additional corporate entities, additional
employers, or additional named insureds; (3) contains no separation of interests
clause distinguishing Cooper’s subsidiaries from Cooper; and (4) defines “you”
as “the employer named in Item 1 of the Information Page,” i.e., Cooper, and then
uses the words “you” and “your” to refer to the insured when describing covered
claims throughout the policy. In addition, Cooper argues that case-law supports
its single collective insured construction. And, although Cooper admits that it
was not the decedents’ common law employer, Cooper contends that the lack of
an employment relationship has no bearing on the issue whether the Extension
of Named Insured endorsement reasonably creates a single insured entity.
      According to AISLIC, Cooper misconstrues the Extension of Named
Insured endorsement to argue that it “extends” coverage to any Cooper entity for
claims by any other entities’ employees.         AISLIC argues that Cooper’s
interpretation is nonsensical and contrary to the unambiguous policy language.
For example, AISLIC points out that under Cooper’s interpretation, Cooper
Power Tools, Inc. would be covered for claims by Cooper Bussman, Inc.’s
employees, since both subsidiaries are listed in the Extension of Named Insured
endorsement.      AISLIC submits, therefore, that the only reasonable
interpretation is that the Extension of Named Insured endorsement merely adds

                                        8
                                  No. 07-20468

various Cooper entities as named insureds to the policy for claims brought
against each Cooper entity by its own employees.
      Before conducting our review, we note that because Cooper admits that it
was not the decedents’ employer, the only issue is whether the policy language
either unambiguously or reasonably creates a single collective insured, so that
an employee of any of the covered entities is considered an employee of the single
collective insured under the ACE policy. For the following reasons, we agree with
the district court’s determination that the ACE employer’s policy does not
support a single insured construction.
      To begin, the policy is defined in the General Section as a contract of
insurance between the insurer and “you (the employer named in Item 1 of the
Information Page).” (Emphasis added). The General Section further states that
“you are insured if you are an employer named in Item 1 of the Information
Page.” (Emphasis added). Thus, in order to answer the question whether the
policy covers a single collective insured, we must determine which entities are
employers under Item 1.
      Item 1 lists the Named Insured as Cooper and provides the corporation’s
mailing address. Item 1 further states that “[o]ther workplaces not shown
above” are located in the “Extension of Named Insured.” As the district court
noted, because the phrase “other workplaces not shown above” is what
references the Extension of Named Insured endorsement, the word “Extension”
in that provision may reasonably refer to workplace locations, which includes
locations in thirty-five states, rather than additional corporate entities. Based
on that construction, Cooper and its listed workplace locations would be one
insured employer under Item 1, but its listed subsidiaries would be separate
employers under Item 1 and thus separate insureds under the ACE policy.
      The General Section of the policy supports this interpretation by
distinguishing workplaces from employers.        Under subsection B “Who is

                                         9
                                      No. 07-20468

Insured,” the policy states “you are insured if you are an employer named in Item
1 of the information page.” (Emphasis added). Then, under subsection E
“Locations,” the policy provides coverage to “all of your workplaces listed in Items
1 or 4 of the Information Page.” (Emphasis added). These provisions reveal that
the designations of “employer” and “workplace” are mutually exclusive, that
workplaces are a subset of an employer, and that Item 1 of the information page,
the Named Insured section, will list them both. The question then becomes
whether Cooper’s named subsidiaries are considered employers or workplaces
of Cooper. If they are employers, they are separate insureds under the policy.
However, if they are workplaces, they are a subset of Cooper, which would
support the theory of a single collective insured.
       The Named Insured’s reference to “other workplaces not shown above”
offers guidance. Taken in context, the word “other” seems to indicate that under
Item 1 on the information page, at least one workplace is shown. See AMERICAN
HERITAGE DICTIONARY 880 (2d ed. 1982) (defining other as “[b]eing or
designating the remaining ones of several”) (emphasis added). Since Cooper is
the only entity listed on that Information Page, and we know that it is an
insured employer, “other workplace” must refer to the location, or address,
provided for Cooper. Thus, Cooper’s other listed addresses in the Extension of
Named Insured endorsement would be Cooper’s other workplaces. However, the
subsequent list of legal entities, or subsidiaries, need not be classified as
Cooper’s workplaces, since their listings are not simply enumerated addresses
of Cooper. Instead, those legal entities are more appropriately considered
employers because they, like Cooper, are also capable of having a number of
workplace addresses.6         Thus, contrary to Cooper’s theory of coverage, a


       6
         For example, the following subsidiaries have more than one workplace location listed
in the ACE policy: Cooper B-Line, Cooper Bussman, Cooper Lighting, and Cooper Wiring
Devices.

                                             10
                                         No. 07-20468

reasonable construction borne out by the policy language is that the subsidiaries
are employers, like Cooper, and not merely workplaces, or extensions, of Cooper.
       Moreover, although Cooper relies on the distinction between the meanings
of the words “extension” and “addition” to bolster its single insured theory,7 the
policy’s use of “extension” is also reconcilable with a separate insured
construction. The word Extension is used in the phrase “Extension of Named
Insured” and each page of the Extension is entitled “ITEM 1 OF THE
INFORMATION PAGE IS EXTENDED AS FOLLOWS.” Notably, “extension”
in both those phrases refers to the heading from the information page, i.e., “Item
1. Named Insured,” and not to the employer listed under “Item 1. Named
Insured” on the information page, which would be Cooper. Thus, considering
that the “Item 1. Named Insured” section on the information page only provides
enough space to include one employer and its mailing address, the Extension
was likely incorporated to extend that section and provide space for a complete
list of employers to be included as Named Insureds under the policy. This
interpretation accords with one of Cooper’s suggested definitions of the word
“extend,” as “to cause to be of greater area or volume.” (Emphasis added).
Consequently, the “Extension of Named Insured” endorsement does not
necessarily support Cooper’s argument that Cooper is the single insured under
the policy and its subsidiaries are mere extensions of it.
       Additionally, at least two provisions of the policy indicate that there is
more than one insured covered. First, in the general section, it states, “You are
insured if you are an employer named in Item 1 of the Information Page.”



       7
         Cooper informs the court that the dictionary definition of “extension” is “the act of
extending; state of being extended; an enlargement in scope or operation,” and that the
definition of “extend” is “to spread or stretch forth . . . to stretch out to fullest length . . . to
cause to be of greater area or volume . . . to increase the scope, meaning, or application of.”
Thus, Cooper contends that the words “extension” and “extend” refer to “the broadening of an
item rather than the addition of a separate item.” (Emphasis added).

                                                11
                                  No. 07-20468

(Emphasis added). The words “an employer” signify that there is more than one
employer listed in that section. Second, in “Part Six—Conditions,” the policy
explains that the “Sole Representative” is “[t]he insured first named in Item 1 of
the Information Page [who] will act on behalf of all insureds to change the policy,
receive return premium, and give or receive notice of cancellation.” (Emphasis
added).
      In short, by reading its provisions in context and giving effect to all parts,
the ACE employer’s policy is reasonably interpreted as treating Cooper’s
subsidiaries as separate additional insureds.       Therefore, we next consider
whether the separate additional insured theory is the only reasonable
interpretation of the policy language or whether Cooper’s single insured theory
is also reasonable, thereby creating an ambiguity in the ACE policy.
      Cooper cites Blue Diamond Coal Co. v. Holland-American Insurance Co.
as support for the reasonableness of its single insured construction. 671 S.W.2d
829 (Tenn. 1984).     The Supreme Court of Tennessee determined in Blue
Diamond that, under the insurance policies issued to the parent company in that
case, it would be reasonable to infer that the parties intended to treat the parent
company and its two subsidiary corporations as one insured entity indemnified
against liability to employees of any one of its three companies. Id. at 834. The
court noted that the insurance policies’ use of the word “employer” in the phrase
limiting liability coverage to an “employee in the immediate service of the
employer” created a latent ambiguity in the policy because of the “ambiguous
state of extrinsic circumstances” to which that word referred. Id. at 833. These
extrinsic circumstances included that the parent company functioned as a mere
holding company for its two subsidiaries, that the parent company and its two
subsidiaries had identical directors and officers, and that the named insured in
the policy listed all three entities joined by the words “and/or.” Id. at 830–33.
The Blue Diamond court concluded that the policy could reasonably be read to

                                        12
                                  No. 07-20468

insure all three companies as a single entity or that it could be interpreted as
extending coverage only to the corporate entity whose employees were injured
in its immediate service. Id. at 834. Consequently, that court reversed and
remanded the case to the trial court, stating that it was “not a proper case for
disposition on motions for summary judgment.” Id. at 835.
      Although Cooper’s theory of coverage is the same as that in Blue Diamond,
namely, that the parties intended to create a single insured entity composed of
the parent company and its subsidiaries, Blue Diamond’s “ambiguous state of
extrinsic circumstances” is not present in Cooper’s case. First, Cooper does not
maintain that its parent companies and subsidiaries all have the same officers
and directors. Second, Cooper has not alleged that it is merely a holding
company for all of its subsidiaries. Third, the Named Insured section in the ACE
policy lists Cooper and its subsidiaries separately, rather than connected by the
phrase “and/or.” Fourth and most significantly, Cooper has six times as many
subsidiaries listed in its insurance policy as the parent company had in Blue
Diamond. As such, it is far less reasonable to infer that the parties in the case
at bar intended to cover a total of thirteen separate legal entities, five of which
have more than one workplace, as a single insured, without ever saying so
explicitly. Thus, Cooper’s case does not accord with Blue Diamond and the
reasoning of the Tennessee Supreme Court.
      Cooper also relies on Texas automobile insurance cases to argue that the
absence of a severability clause in the ACE policy is consistent with a collective
insured construction. However, these cases are sufficiently dissimilar and would
not be controlling in Cooper’s case. Specifically, the Texas cases consider
whether a provision that excludes coverage for claims by the insured’s employees
would also exclude coverage for claims by the insured’s employees against the
non-employer omnibus insured. In the earliest cited case, American Fidelity &
Casualty Co. v. St. Paul-Mercury Indemnity, this court determined that, absent

                                        13
                                        No. 07-20468

a severability of interests clause, the employee exclusion applied not only to the
named insured, but also to the omnibus insured, thereby excluding coverage
under the policy. 248 F.2d 509, 516–18 (5th Cir. 1957). Significantly, though,
in St. Paul-Mercury, this court noted the difference between automobile
insurance, or public liability coverage, and employer’s liability coverage, stating
that “[t]he two present different hazards of frequency and severity and
traditionally are underwritten separately.” Id. at 516 (emphasis added). Thus,
cases considering the effect of exclusionary provisions under automobile policies
are poor precedent for cases, like Cooper’s, considering coverage provisions under
employer’s liability policies.8
       Moreover, there are persuasive employer liability cases from other states
considering the effect of the same employer coverage language on multiple
insureds. For example, in Kenosha Beef International v. North River Insurance
Co., the Court of Appeals of Wisconsin held that the parent and subsidiary
companies were separate insureds and liability under the employer’s liability
policy could not be premised upon an employee of one insured suing another
insured. 445 N.W.2d 703, 706 (Wis. Ct. App. 1984). In that case, the policy
listed, as insureds, the parent company and two wholly-owned subsidiaries of
the parent. Id. at 705. First, the court determined that the plain language of


       8
         However, even if those automobile insurance cases were controlling, the reasoning in
the later cases, such as Float-Away Door Co. v. Continental Casualty Co., 372 F.2d 701, 708
(5th Cir. 1966), would not support Cooper’s theory. In Float-Away Door, this court determined
that an employee exclusion in an automobile policy lacking a severability clause would not
apply to all insureds collectively. Id. at 708–09. In making that determination, this court
stated: “The better reasoned cases adopt a restrictive interpretation of the insured as referring
only to the party seeking coverage under the policy.” Id. at 708 (emphasis added and citations
omitted); see also Commercial Standard Ins. Co. v. Am. Gen. Ins., 455 S.W.2d 720, 720 (Tex.
1970) (stating that even before the addition of the severability of interests provision, “there
was substantial authority in support of the construction that the rights of each insured under
the policy are to be determined as if there were no other person protected thereby”).
Consequently, even in the absence of a severability clause, the restrictive reading approach
from Float-Away Door would suggest that this court treat each “insured” in the ACE
employer’s policy separately from the other insureds under the policy.

                                              14
                                   No. 07-20468

the policy recognized that the companies were separate insureds, citing, in
particular, the following provision from that policy:

              The insured first named in item 1 of the Information
              Page will act on behalf of all insureds to change this
              policy . . . .

Id. Second, the Kenosha Beef case discussed the applicable policy language,
which covered damages because of bodily injury to “your employee that arises
out of and in the course of employment, claimed against you . . . .” Id. at 704–05.
Because the parent company’s construction permitting claims by an employee
of one insured against another insured would have interpreted the pronouns
“you” and “your” in that provision to have different meanings in different places
within the same paragraph, without a change in antecedent, the court
determined the parent company’s construction was unreasonable. Id. at 705.
That case concluded with this statement:
              We reiterate that this policy is one for worker’s
              compensation and employers’ liability only. Because
              [the parent company] was not [the injured plaintiff’s]
              employer, coverage was more appropriately provided
              through its comprehensive general liability carrier, . . .
              including [the parent corporation’s] retained limit . . .
              under that policy.

Id. at 706.
      The Cooper case is strikingly similar to Kenosha Beef. Both policies
include worker’s compensation and employer’s liability coverage. The same
coverage language is at issue. And the employer’s policy in this case contains
the identical provision that was cited in Kenosha Beef for its plain recognition
of separate additional insureds under the policy there. Thus, although the
Kenosha Beef case did not deal with an Extension of Named Insured
endorsement, the facts are sufficiently similar to be persuasive precedent for this


                                         15
                                  No. 07-20468

court. See also Producers Dairy Delivery Co., Inc. v. Sentry Ins. Co., 718 P.2d
920, 922, 925–26 (Cal. 1986) (holding that an employer’s liability policy that
covered the insured and a closely related corporation and that indemnified for
damages sustained “by an employee of the insured arising out of and in the
course of his employment” did not extend coverage to the insured for an injury
suffered by the employee of the closely related corporation).
      Furthermore, as the district court noted in its order, it is well-established
under Texas law that, absent exceptional circumstances, parent and subsidiary
corporations are recognized separate entities. Valero S. Tex. Processing Co. v.
Starr County Appraisal Dist., 954 S.W.2d 863, 866 (Tex. App.—San Antonio
1997, pet. denied) (“In Texas, for the purposes of legal proceedings, subsidiary
corporations and parent corporations are separate and distinct ‘persons’ as a
matter of law; the separate entity of corporations will be observed by the courts
even in instances where one may dominate or control, or may even treat it as a
mere department, instrumentality, or agency of the other.”); see also Sims v. W.
Waste Indus., 918 S.W.2d 682, 684 (Tex. App.—Beaumont 1996, writ denied)
(finding Texas law does not allow a parent corporation to assert Worker’s
Compensation immunity through its subsidiary’s immunity by means of reverse
piercing because the parent and corporation are separate legal entities).
Accordingly, we agree with the district court that Cooper’s single collective
insured construction is unreasonable—the plain language of the ACE employer’s
policy only covers the claims of the decedents’ representatives against the
decedents’ employer B-Line, not B-Line’s parent company, Cooper.
                        B. Allocation of the Settlement
      Alternatively, Cooper argues that even if the ACE employer’s policy only
covers B-Line’s exposure, the district court still erred by failing to address the
issue of allocation and granting AISLIC summary judgment for the full amount
that it paid allegedly on behalf of Cooper. According to Cooper, although the

                                        16
                                    No. 07-20468

parties each agreed to pay half of the disputed $1.35 million in order to settle the
underlying case, Cooper never agreed that this amount should be attributed to
Cooper as opposed to B-Line. Instead, Cooper submits that AISLIC unilaterally
allocated the entire $1.35 million to Cooper’s potential liability. Thus, Cooper
contends that a genuine issue of material fact exists precluding summary
judgment on this issue. In response, AISLIC asserts that the district court did
not review the allocation of the $1.35 million from the underlying settlement
because: (1) Cooper did not affirmatively request a judicial determination of the
allocation in its pleadings; and (2) the proper allocation was already established
by the parties’ letter agreement.
      We find that Cooper’s complaint sufficiently raised the issue of allocation.
“The notice pleading requirements of Federal Rule of Civil Procedure 8 and case
law do not require an inordinate amount of detail or precision.” St. Paul
Mercury Ins. Co. v. Williamson, 224 F.3d 425, 434 (5th Cir. 2000); see FED. R.
CIV. P. 8 (“A pleading . . . must contain . . . a short and plain statement of the
claim showing that the pleader is entitled to relief . . . .”). “The function of a
complaint is to give the defendant fair notice of the plaintiff's claim and the
grounds upon which the plaintiff relies.” Id. (citing Doss v. S. Cent. Bell Tel.
Co., 834 F.2d 421, 424 (5th Cir. 1987)). And the “form of the complaint is not
significant if it alleges facts upon which relief can be granted, even if it fails to
categorize correctly the legal theory giving rise to the claim.” Id. (quoting
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 604 (5th Cir. 1981)).
      Here, the standard was satisfied because in Texas the segregation of
insurance settlement amounts between covered and uncovered claims is based
on the doctrine of concurrent causes. Comsys Info. Tech. Servs., Inc. v. Twin, 130
S.W.3d 181, 198 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Under that
doctrine, when covered and non-covered perils combine to create a loss, the
insured is entitled to recover that portion of the damage caused solely by the

                                         17
                                       No. 07-20468

covered peril. Id. Significantly, the doctrine “embod[ies] the basic principle that
insureds are not entitled to recover under their insurance policies unless they
prove their damage is covered by the policy.” Id. Thus, the allocation of an
insurance settlement between covered and non-covered claims coincides with the
insured’s burden to prove coverage under the policy and damages from the
insurer’s breach of that policy and is not a separate theory of recovery that must
be affirmatively pled. Cf. id. (“The doctrine of concurrent causation is not an
affirmative defense or an avoidance issue.”). Therefore, Cooper’s complaint
sufficiently raised the issue of allocation by seeking damages from AISLIC for
allegedly breaching its insurance policy with B-Line, the covered entity, and
Cooper, the (potentially) uncovered entity, when AISLIC refused to pay the total
difference between the underlying settlement amount and the agreed upon $1
million deductible.9
       Moreover, we note, Cooper argued in its briefs to the district court, on at
least two separate occasions, that the allocation of liability and settlement
amounts between Cooper and B-Line is a disputed issue of material fact,
precluding summary judgment. See Vogel v. Veneman, 276 F.3d 729, 733 (5th
Cir. 2002) (“Except in cases of extraordinary circumstances, we do not consider
issues raised for the first time on appeal. A party must have raised an argument
to such a degree that the trial court may rule on it.”) (internal citations and
quotations omitted). Consequently, the issue of allocation was adequately
raised, and we may consider it on appeal.


       9
         Furthermore, we note that AISLIC had fair notice from the beginning of the suit
through the discovery period that Cooper disagreed with the allocation of the settlement
between Cooper and B-Line. In particular, Cooper’s complaint twice stated that AISLIC only
paid the portion of the settlement that it, alone, attributed to B-Line’s liability exposure. A
further review of the record also reveals that many of Cooper’s discovery requests centered on
AISLIC’s apportionment of the settlement. And, finally, AISLIC, in its own counterclaim,
admitted to paying the settlement amount that it, not Cooper, attributed to B-Line’s liability
exposure.

                                              18
                                   No. 07-20468

      Nor are we persuaded that the district court did not address
apportionment because Cooper had agreed with attributing $1.35 million of the
settlement to its potential liability in the parties’ letter agreement. We first note
that the district court could not have relied on the letter agreement in granting
summary judgment to AISLIC because AISLIC neither mentioned it in any of
its summary judgment briefs, nor otherwise included it as part of its summary
judgment evidence. Additionally, Cooper never consented to AISLIC’s allocation
of liability in that letter. Instead, Cooper only agreed to pay the $1 million
deductible under the ACE employer’s liability policy. Beyond that, the letter
explicitly states that there “remains a dispute” and that Cooper “reserve[s] all
of [its] rights and nothing in this agreement shall constitute an admission
against interest.” And while the letter provides that “Cooper and AIGDC [the
parent company of AISLIC] will each fund approximately $700,000 above the
undisputed $3.6 million,” it does not state that one party may recover only the
exact amount it paid, but that each party may recover an amount “up to
$700,000.” (Emphasis added). Thus, the letter reveals that the parties clearly
contemplated the possibility of a lesser recovery. In short, Cooper reserved its
right to argue that an allocation of the disputed settlement amount—$1.35
million—is required.
      Nonetheless, in the context of summary judgment, “where the non-movant
bears the burden of proof at trial, the movant may merely point to an absence
of evidence, thus shifting to the non-movant the burden of demonstrating by
competent summary judgment proof that there is an issue of material fact
warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir.
1994). In this case, although the insurer, AISLIC, counterclaimed seeking
reimbursement for the amount it attributed to and paid on behalf of Cooper’s
alleged liability exposure, AISLIC does not bear the burden of proving the proper
allocation of damages between the covered entity, B-Line, and the uncovered

                                         19
                                     No. 07-20468

entity, Cooper, in order to recover. In an insurance coverage dispute, the
insureds, Cooper and B-Line, bear that burden. See Winn v. Cont’l Cas. Co., 494
S.W.2d 601, 606 (Tex. App.—Tyler 1973, no writ) (“The burden of apportioning
damages between coverage and non-coverage is on the insured.”). Thus, when
AISLIC asserted in its motion for summary judgment that the allocation of $1.35
million to Cooper’s liability was undisputed by the parties, Cooper was required
to provide some evidence that this allocation was in fact disputed, and that the
portion of settlement damages attributable to Cooper is less than $1.35 million,
or alternatively, that B-Line’s liability exposure exceeds the undisputed $3.6
million already apportioned to it.
      In Cooper’s response to AISLIC’s motion for summary judgment, Cooper
presented the district court with the declaration of Ryan Chadwick, a senior
litigation counsel member for Cooper, who negotiated the agreement with
AISLIC and allegedly has first-hand knowledge of the parties’ agreement.10
Chadwick stated:
             Cooper never agreed with either the underlying
             plaintiffs or with AISLIC as to the allocation between
             Cooper Industries and [ ] B-Line regarding the amounts
             paid to settle the underlying case. In fact, Cooper
             believed that most, if not all, of the liability in the case
             was [ ] B-Line’s and that [ ] B-Line’s potential exposure
             was $5.1 million.        Cooper believed that Cooper
             Industries had little, if any, real liability exposure but
             entered the settlement because of the prospect of
             continued, protracted and unpredictable litigation.

(Emphasis added). Cooper also included as summary judgment evidence the
Third Amended Petition from the underlying suit, which was the live pleading
before settlement. That petition set forth the various allegations asserted


      10
         In the district court, AISLIC moved to strike Chadwick’s declaration as improper
summary judgment evidence. Because the district court did not rely on the declaration, it
declared the issue moot. AISLIC has refrained from making the same argument on appeal.

                                           20
                                    No. 07-20468

against Cooper and B-Line, as well as all facts and grounds in support of those
claims. Viewing the evidence in the light most favorable to the non-movant
Cooper, we conclude that a genuine fact issue exists as to the proper allocation.
See Enserch Corp. v. Shand Morahan & Co., Inc., 952 F.2d 1485, 1494 (5th Cir.
1992) (explaining that there were several possible sources available in allocating
claimant’s damages such as the allegations contained in the complaint in the
underlying lawsuit, the facts that would have been the subject of the lawsuit had
it been tried, and the settlement itself). As such, we reverse the summary
judgment with respect to damages, namely, the district court’s order that Cooper
pay AISLIC $683,250, and remand so that the district court can properly allocate
the $1.35 million settlement amount between B-Line and Cooper.
      On remand, if the district court can “apportion damages solely by applying
the terms of the settlement, then the decision would be one of law, not requiring
a jury.”11 Id. at 1495 (emphasis in original). Or, if the “allegations alone could
sufficiently justify an allocation of damages. . . . the [district court can] compare
the insurance contract with the complaint and determine as a matter of law
what portion of the damages were covered.” Id. at 1494.
             [But] [i]f the apportionment cannot be made as a
             matter of legal interpretation of either the allegations
             in the complaint or the settlement agreement itself,
             then the trial court will have to call a jury to allocate
             damages through the most limited trial it considers
             necessary . . . . The jury can consider any facts that
             could have been considered in the underlying lawsuit
             itself. The trial court, of course, will have considerable
             leeway in deciding what facts are truly relevant to the
             apportionment decision, and can thereby (we hope)
             prevent a full-blown retrial of the [underlying] law suit.




      11
        We note that the underlying settlement agreement with the representatives of the
decedents was neither found in the record nor provided on appeal.

                                          21
                                  No. 07-20468

Id. at 1495 (addressing the apportionment of a settlement between covered and
uncovered losses under an insurance policy).
                              III. CONCLUSION
      For the foregoing reasons, we affirm the district court’s holding with
respect to coverage under the employer’s liability policy, but we VACATE the
district court’s judgment and remand for allocation of liability. Each party shall
bear its own costs.




                                       22
