      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-08-00526-CV



                            Truck Insurance Exchange, Appellant

                                                v.

                        Mid-Continent Casualty Company, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
    NO. D-1-GN-08-002627, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                            CONCURRING OPINION


              I join in the majority’s opinion except for its holding that appellant Truck Insurance

Exchange’s contribution claim against appellee Mid-Continent Casualty Company is barred by

res judicata arising from Mid-Continent’s prior federal court judgment. However, I agree with

the majority that the district court’s summary judgment as to this claim should be affirmed based

on Mid-Continent’s alternative ground that the “other insurance” clauses in the Truck and Mid-

Continent policies negate a right of contribution on the part of Truck against Mid-Continent. See

Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765, 772 (Tex. 2007); Employers

Cas. Co. v. Transport Ins. Co., 444 S.W.2d 606, 609 (Tex. 1969); Traders & Gen. Ins. Co. v. Hicks

Rubber Co., 169 S.W.2d 142, 147 (Tex. 1943). Although the Fifth Circuit has recently concluded

that other-insurance clauses apply only to the duty to indemnify and not to the duty to defend,

and thus do not bar a contribution claim for defense costs, see Trinity Universal Ins. Co.
v. Employers Mut. Cas. Co., 592 F.3d 687, 694 (5th Cir. 2010), the controlling Texas Supreme Court

precedents that bind this Court appear to give effect to other-insurance clauses with respect to both

indemnity and defense costs, see Employers, 444 S.W.2d at 607 (“[T]he claim here is for a pro rata

part of the sums paid in settlement of the suit against the insured and as expenses in defending

the suit.”); Hicks, 169 S.W.2d at 597 (“When [one insurer] refused to further assist in the defense

of the . . . suit, [the other co-insurer] shouldered the entire burden, including the appeals . . . . In so

doing it paid out more than two-thirds of the costs and expenses incurred.”). Relying on these

precedents unless and until the supreme court tells us otherwise, I agree with the majority that

Truck’s contribution claim for defense costs is barred as a matter of law.

                Accordingly, I join in the judgment and, with these qualifications, the

majority’s opinion.




                                                 __________________________________________

                                                 Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Filed: August 27, 2010




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