                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                            September 18, 2014
                                                            Elisabeth A. Shumaker
                                  PUBLISH                       Clerk of Court


              UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 MID-CONTINENT CASUALTY
 COMPANY,

       Plaintiff - Appellant,

 v.                                                   No. 13-8006

 TRUE OIL COMPANY, a Wyoming
 partnership,

       Defendant - Appellee.


                 Appeal from the United States District Court
                         for the District of Wyoming
                       (D.C. No. 1:05-CV-00258-ABJ)


Christopher W. Martin of Martin, Disiere, Jefferson & Wisdom, L.L.P., Houston,
Texas (Patrick T. Holscher of Schwartz, Bon, Walker & Studer, LLC, Casper,
Wyoming, on the briefs), for Plaintiff-Appellant.

Scott P. Klosterman (Patrick J. Murphy with him on the brief) of Williams,
Porter, Day & Neville, P.C., Casper, Wyoming, for Defendant-Appellee.


Before TYMKOVICH, SEYMOUR, and GORSUCH, Circuit Judges.


SEYMOUR, Circuit Judge.
      Mid-Continent Casualty Company (Mid-Continent) brought this declaratory

judgment action to ascertain the applicability to True Oil Company (True Oil) of

Mid-Continent’s commercial general liability (CGL) policy issued to Pennant

Service Company (Pennant). The district court granted summary judgment to

True Oil, determining Mid-Continent breached its duty to defend and indemnify

True Oil in the underlying action against it by Pennant’s employee. As damages,

the court awarded True Oil the amount it paid to settle the underlying suit and the

attorney fees and costs incurred in defending itself. Mid-Continent appeals from

the district court’s judgment. We affirm.



                                           I

      In 2001, True Oil, an owner and operator of oil and gas wells, entered into

a master service contract (MSC) with Pennant for work on a well in Wyoming.

The MSC included a provision whereby Pennant agreed to indemnify True Oil

“from and against all claims, damages, losses, . . . causes of action, suits,

judgments, penalties, fines and expenses, including attorney fees, of any nature,

kind or description whatsoever” resulting from either Pennant or True Oil’s

negligence. Aplt. App., vol. 1 at 43-44.

      Pennant has a CGL policy with Mid-Continent. Under the policy, Mid-

Continent agreed to insure Pennant against damages because of bodily injury

“[a]ssumed in a contract or agreement that is an ‘insured contract,’” including


                                         -2-
“reasonable attorney fees and necessary litigation expenses incurred by or for a

party other than an insured” as long as “(a) [l]iability to such party for, or for the

cost of, that party’s defense has also been assumed in the same ‘insured contract’;

and (b) [s]uch attorney fees and litigation expenses are for defense of that party

against a civil . . . proceeding in which damages to which this insurance applies

are alleged.” Id. at 24-25 (noting exception to coverage exclusion).

      In July 2001, Christopher Van Norman, an employee of Pennant, was

injured in an accident at True Oil’s well. On October 26, 2001, Mr. Van Norman

filed a negligence suit against True Oil in Wyoming state court. 1 In accordance

with the MSC’s indemnity provision, counsel for True Oil wrote to Pennant on

November 20, requesting indemnification for its defense costs, attorney fees, and

any award that Van Norman might recover against it. Id. at 83-84. Mid-

Continent refused to defend or indemnify True Oil based on Wyoming’s Anti-

Indemnity Statute, Wyo. Stat. Ann. § 30-1-131, which invalidates agreements

related to oil or gas wells that “indemnify the indemnitee against loss or liability

for damages for . . . bodily injury to persons.” Id.

      In May 2002, True Oil brought a federal action against Mid-Continent for

declaratory relief, breach of contract (CGL policy), and other related claims. In

February 2005, the district court granted Mid-Continent summary judgment,



      1
       Halliburton Energy Services, Inc., and Weatherford Completion Systems
were also named defendants but were dismissed from the suit in 2005.

                                          -3-
determining that the MSC’s indemnity provision, when invoked with respect to

claims of the indemnitee’s own negligence, violated § 30-1-131 and was thus

unenforceable as a matter of public policy. The court held that Mid-Continent

was not required to defend or indemnify True Oil in the underlying suit as it then

existed because “where an indemnification provision in a MSC is void and

unenforceable, the insurer never actually assumed any of the indemnitee’s

liabilities under the policy.” 2 Aplt. App., vol. 2 at 513.

      Subsequently, on March 16, 2005, Mr. Van Norman amended his original

state court complaint to include an allegation of vicarious liability against True

Oil for negligence of Pennant that had caused injury to Mr. Van Norman. True

Oil then filed a third-party complaint against Pennant for indemnification.

      In September 2005, Mid-Continent agreed to provide True Oil a conditional

defense to the vicarious liability claim in the state court action, under a

reservation of rights. In November, unable to agree upon the terms of the

defense, True Oil refused Mid-Continent’s offer to defend. The following month,

just prior to the December scheduled trial date, True Oil settled with Mr. Van

Norman for $500,000 for the claims alleged in the amended complaint. While

Pennant did not participate in the negotiations, it did stipulate to the

reasonableness of the settlement.

      2
        The district court’s Order on Cross Motions for Summary Judgment was
filed on February 9, 2005, and its judgment was entered on March 4, 2005. True
Oil filed a notice of appeal on March 17, 2005.

                                          -4-
      On September 28, 2005, Mid-Continent returned to federal district court,

seeking a declaratory judgment regarding its rights and obligations in light of the

amended complaint. In March 2006, while those proceedings were pending, we

affirmed the district court’s entry of summary judgment in favor of Mid-

Continent in the first federal court action with no knowledge of the amended

complaint in the underlying state court lawsuit. True Oil Co. v. Mid-Continent

Cas. Co., 173 F. App’x 645, 646-51 (10th Cir. 2006).

      In August 2006, the district court granted True Oil summary judgment,

concluding Mid-Continent was obligated to provide True Oil a defense and

indemnification in the underlying litigation on the vicarious liability claims. In

doing so, the court rejected Mid-Continent’s contention that the Tenth Circuit

decision in the first case was dispositive, distinguishing between True Oil’s

efforts to obtain indemnification for its own negligence in the first case and its

efforts to obtain indemnification for vicarious liability from Pennant’s

negligence. The court held that where a claim of vicarious liability exists, the

Wyoming Anti-Indemnity Statute, § 30-1-131, does not render the agreement void

or unenforceable with respect to that claim. It then stayed the proceeding pending

the completion of the state court litigation, the remaining third-party action

between True Oil and Pennant.

      Following a bench trial in August 2008, the state court found that Pennant

“breached its contract with True Oil, and that the damages were equal to the


                                          -5-
settlement amount True Oil has paid Van Norman.” Pennant Serv. Co., Inc. v.

True Oil Co., 249 P.3d 698, 702 (Wyo. 2011). The court also ordered Pennant to

pay attorney fees beginning from the time the complaint was amended in 2005.

Id. Pennant appealed, contending that True Oil was a mere volunteer facing no

potential liability when it settled with Mr. Van Norman, and True Oil cross-

appealed the denial of attorney fees it incurred prior to the amended complaint.

      The Wyoming Supreme Court disagreed with Pennant’s claims on appeal.

It held that “by stipulating to the reasonableness of the $500,000.00 settlement

paid by True Oil to Van Norman, Pennant supported True Oil’s ‘potential

liability’ for Pennant’s negligence.” Id. at 707. The court further held that True

Oil was entitled under the MSC to attorney fees it incurred in defending itself

from the beginning of the state court action. Id. at 710. The court thus affirmed

the breach of contract finding and the $500,000 damages award, and it also

extended True Oil’s entitlement to attorney fees from the date Mr. Van Norman

filed his original complaint. Id. at 712.

      In light of and consistent with the resolution of the state proceeding, the

federal district court awarded True Oil $500,000, attorney fees from October 2001

to December 7, 2005, and pre- and postjudgment interest on both amounts. Mid-

Continent appeals.



                                            II


                                            -6-
      We review a grant of summary judgment de novo, applying the same legal

standard used by the district court under Fed. R. Civ. P. 56(a). Twigg v. Hawker

Beechcraft Corp., 659 F.3d 987, 997 (10th Cir. 2011). Summary judgment is

proper where “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In making such

a determination, we resolve factual disputes and draw reasonable inferences in

favor of the non-moving party. Twigg, 659 F.3d at 997. We apply substantive

Wyoming law in this diversity action. 3 See Erie R.R. Co. v. Tompkins, 304 U.S.

64, 78 (1938).

                                   A. Res Judicata

      Mid-Continent first contends True Oil “chose to omit the issue” of

vicarious liability in the first federal case, Aplt. Br. at 20, and it is therefore

precluded from “relitigating the issue of insurance coverage” by the doctrine of

res judicata and the prohibition against claim splitting, id. at 18. 4 We apply state

law to determine the “claim-preclusive effect of a federal diversity judgment.”

Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d 982, 986 (10th

Cir. 2002) (courts should “adopt the law that would be applied by state courts in


      3
        True Oil is a citizen of the State of Wyoming and Mid-Continent is a
citizen of the State of Oklahoma.
      4
       Mid-Continent originally alleged True Oil’s claim of coverage was
precluded by res judicata, the rule against claim splitting, and collateral estoppel.
Aplt. Br. at 15. At oral argument, Mid-Continent conceded that collateral
estoppel, or issue preclusion, is not an issue in this case.

                                           -7-
the State in which the federal diversity court sits” (internal quotation marks

omitted)).

      In Wyoming, “a final judgment on the merits in a prior action is conclusive

and bars all subsequent action between the same parties, or their privies, as to all

matters which were or might have been litigated in the prior action.” McCulloh v.

Drake, 24 P.3d 1162, 1171 (Wyo. 2001); see also Burlington N. R.R. Co. v.

Dunkelberger, 918 P.2d 987, 992 (Wyo. 1996) (“A defendant may not litigate a

defense, which was available but not raised in a prior action, by making it the

basis of a claim in a subsequent action against the original plaintiff.” (internal

alteration and quotation marks omitted)). Res judicata applies where: “(1) the

parties were identical; (2) the subject matter was identical; (3) the issues were the

same and related to the subject matter; and (4) the capacities of the persons were

identical in reference to both the subject matter and the issues between them.”

McCulloh, 24 P.3d at 1171 (internal quotation marks omitted).

      Wyoming also follows the general rule prohibiting splitting a cause of

action. Lane Co. v. Busch Dev., Inc., 662 P.2d 419, 421 (Wyo. 1983). A cause of

action is the “fact or combination of facts which give[] rise to a suit.” Rialto

Theatre, Inc. v. Commonwealth Theatres, Inc., 714 P.2d 328, 337 (Wyo. 1986)

(internal quotation marks and citations omitted). When two complaints involve

“the same basic factual circumstances which are alleged to give rise to [the

plaintiff’s] right to maintain an action against [the defendant],” the latter


                                          -8-
complaint is barred. Id. Wyoming courts view res judicata and the rule against

claim splitting as “closely related.” Id. at 336. 5

       Mid-Continent’s res judicata and impermissible claim splitting arguments

are virtually indistinguishable in their reasoning: True Oil was aware it might face

vicarious liability for Pennant’s negligence prior to the first decision of the

federal district court and chose to omit the issue from consideration in that action.

Mid-Continent contends that both causes of action “arise from the same ‘series’

[of facts] . . . and form[] ‘a convenient trial unit’ . . . .” See, e.g., Aplt. Br. at 20-

21 (quoting Rialto, 714 P.2d at 337) (internal quotation marks omitted). But, the

key fact—Mr. Van Norman’s vicarious liability claim—did not exist until after

final judgment in the first federal court action, in other words, until after the

“convenient trial unit.” In the first case, True Oil sought a defense and indemnity

for its alleged negligence, the only claim pending against it, whereas in the

present litigation, it seeks a defense and indemnity for its alleged vicarious

liability for the negligence of Pennant, the new claim brought by Mr. Van

Norman. These causes of action contain different factual circumstances giving

rise to distinct rights to maintain an action.

       As the district court explained, res judicata does not apply to “preclude

       5
         “[T]he rule [against splitting] differs from res judicata inasmuch as it is
based exclusively on public policy[, for example] . . . to prevent multiplicity of
suits, prevent vexatious litigation, and to avoid duplication of costs and
expenses,” rather than on the “finality of prior adjudication.” Hurst v. Davis, 386
P.2d 943, 949 (Wyo. 1963).

                                           -9-
litigation of a claim or cause of action that had not been asserted at the time of

[its] February 2005 decision.” Aplt. App., vol. 4 at 1240. Mid-Continent protests

that it “should not be required to provide a defense for a claim that wasn’t

asserted and which it was unaware was in issue.” Aplt. Br. at 21. However, Mid-

Continent demands exactly that of True Oil. Only after the district court entered a

final judgment on March 4, 2005, did Mr. Van Norman amend his complaint to

allege vicarious liability. Mid-Continent offers no authority that permits, much

less compels, a party to preemptively raise a defense against a claim not yet made

in order to prevent its preclusion in a later action. To require as much would

place an impossible burden on True Oil and similarly situated defendants.

Accordingly, True Oil’s claim for a defense against and indemnity for its

vicarious liability is not precluded.

                     B. Indemnification for Vicarious Liability

      Mid-Continent next contends the district court improperly held it had a duty

to indemnify True Oil against the allegations of vicarious liability. In granting

summary judgment, the court explained:

      Pennant agreed to indemnify True in the MSC. Coverage for this
      agreement is provided for in the CGL. The agreement to indemnify
      is void only to the extent that it was one which purported to relieve
      True Oil from loss of liability caused by True Oil’s own negligence.
      The agreement providing for indemnification from all claims and
      damages caused by the negligence of others, which would include the
      claims of vicarious liability in this case, is valid and enforceable
      under applicable Wyoming law.



                                         -10-
Aplt. App., vol. 4 at 1244-45 (footnote omitted).

      Under its CGL policy, Mid-Continent agreed to cover Pennant’s liability

for damages “[a]ssumed in a contract or agreement that is an ‘insured contract.’”

Aplt. App., vol. 1 at 24. Thus, although the CGL policy generally excluded

contractual liability from coverage, it excepted damages assumed in an insured

contract. According to the policy, an “insured contract” includes:

      [t]hat part of any other contract or agreement pertaining to your
      business . . . under which you assume the tort liability of another
      party to pay for “bodily injury” or “property damage” to a third
      person or organization. Tort liability means a liability that would be
      imposed by law in the absence of any contract or agreement.

Aplt. App., vol. 1 at 34.

      A promise to indemnify an indemnitee for its indemnitor’s negligence is

valid and enforceable under Wyoming law. Gainsco Ins. Co. v. Amoco Prod. Co.,

53 P.3d 1051, 1075 (Wyo. 2002). Pennant agreed to indemnify True Oil for all

damages, including attorney fees, “arising out of, caused in whole or in part by or

resulting directly or indirectly from any act or omission, including negligence of

[Pennant and True Oil].” Aplt. App., vol. 1 at 44. While we held on appeal in

the first action that the Wyoming Anti-Indemnity Statute voided the MSC

indemnity agreement as applied to coverage of True Oil’s own negligence, we

noted that “were it not for the operation of Wyo. Stat. Ann. § 30-1-131, an

insured contract would exist between Pennant and True Oil – and, accordingly,

True Oil would be an additional insured on Pennant’s CGL policy with Mid-


                                        -11-
Continent.” True Oil Co., 173 F. App’x at 650. 6

      Wyoming has previously recognized contractual liability coverage for an

“insured contract” under almost identical CGL policy language and

circumstances. See, e.g., Gainsco, 53 P.3d at 1054-57, 1066. In Gainsco, Amoco

Production Company (Amoco) and Andrews Trucking Company (Andrews)

entered into an MSC whereby Andrews agreed to indemnify Amoco against tort

liability to Andrews’ employees and its subcontractors’ employees. Id. at 1054.

Andrews was insured by Gainsco Insurance Company (Gainsco). Id. Like Mid-

Continent’s CGL policy, Gainsco’s policy included an exception to the coverage

exclusion for “liability . . . assumed under an ‘insured contract.’” 7 Id. at 1057.

After one of Andrews’ subcontractor’s employees was killed, the employee’s




      6
        We also pointed out “[a]s an initial matter, it is important that we
emphasize what is not at issue in this case. True Oil has not sued Pennant. Thus,
we are not called upon to interpret the exact contours of the MSC, which appears
to obligate Pennant to obtain insurance in favor of True Oil.” True Oil Co., 173
F. App’x at 649.
      7
        The “insured contract” definition in Gainsco’s policy is almost identical to
the policy here except it included an exclusion for contracts that indemnify a
party for the indemnitee’s sole tort liability. Compare Gainsco, 53 P.3d at 1057,
with Aplt. App., vol. 1 at 34-35. The only substantial difference is that Gainsco’s
policy states: “However, this insurance does not apply to that part of any contract
or agreement that indemnifies any person or organization for the indemnitee’s
sole tort liability.” Gainsco, 53 P.3d at 1057; see Aplt. App., vol. 1 at 34-35. As
“no one contended that Amoco was 100% at fault, . . . the contract indemnifying
Amoco was an insured contract.” Gainsco, 53 P.3d at 1066.

                                         -12-
estate sued Amoco and Amoco settled. 8 Id. at 1054. Amoco then sued Andrews

under the MSC’s indemnity provision. Id. at 1055. Andrews settled with Amoco,

including an agreement for a confessed judgment for Amoco and the condition

that Amoco would only execute it against Gainsco. Id. Amoco sought a

declaratory judgment against Gainsco. The Wyoming Supreme Court held that

“Amoco’s claims were within the coverage of Gainsco’s policy.” Id. at 1080. 9

      Mid-Continent contends the intervening state court decision in Pennant

only resolved a contractual question, “whether . . . Pennant was liable to True

contractually,” rather than a coverage question. Aplt. Br. at 26. It argues its

policy does not provide coverage for breach of contract damages, and also

contends True Oil voluntarily settled without being either legally liable or an

insured. We disagree with these contentions.

      Despite this case’s convoluted history, we decline Mid-Continent’s

invitation to relitigate matters resolved most recently by the Wyoming Supreme

Court. When “an intervening decision of a state’s highest court has resolved an

issue of state law directly contrary to this circuit’s prediction of how the state


      8
        The claimant also sued the subcontractor and Andrews, but the claim
against the subcontractor was dismissed because of workers’ compensation
immunity and the claim against Andrews was decided in favor of Andrews on
summary judgment, with the court finding Andrews owed no legal duty to the
deceased. Gainsco, 53 P.3d at 1054.
      9
       The court found, however, that Amoco’s settlement amount was
unreasonable, and that Gainsco had not received notice of a key settlement term
and was thus excused from payment. Gainsco, 53 P.3d at 1080.

                                         -13-
would resolve the same issue, we are bound by the later state ruling, not by our

prior panel’s interpretation of state law.” Blackhawk-Central City Sanitation

Dist. v. Am. Guar. & Liab. Ins. Co., 214 F.3d 1183, 1194 n.4 (10th Cir. 2000);

Kinnison v. Houghton, 432 F.2d 1274, 1277 (10th Cir. 1970) (holding we had to

follow intervening state court decision despite it being contrary to an earlier

Tenth Circuit decision involving the same case).

      First, we cannot follow Mid-Continent’s semantic gymnastics, which

characterizes the settlement payment as breach of contract damages rather than

indemnification damages in order to deny coverage. To the contrary, the

Wyoming Supreme Court found that True Oil’s $500,000 settlement payment to

Mr. Van Norman was “indemnification damages for bodily injuries.” Pennant,

249 P.3d at 707-08.

      Second, Mid-Continent contends the Wyoming Supreme Court’s post-

settlement determination that Pennant was an independent contractor 10 and 100%

at fault negates the requisite “potential liability” required for a settlement to be

made in good faith. Moreover, Mid-Continent asserts that True Oil was never

even potentially liable for Pennant’s negligence because True Oil’s “vicarious

liability was a legal impossibility . . . where [Pennant’s employee] received . . .

      10
        The workplace owner contracting with an independent contractor is
generally not held vicariously liable for tortious acts or omissions of the
contractor or the contractor’s employees, unless the owner maintains control over
the contractor’s work or assumes affirmative safety duties. Franks v. Indep.
Prod. Co., 96 P.3d 484, 490 (Wyo. 2004).

                                         -14-
workers compensation benefits.” Aplt. Br. at 38-39. Mid-Continent is wrong on

both counts.

      Where an indemnitor is given notice of settlement discussions and chooses

not to participate, an “indemnitee is only required to prove . . . potential liability

to the original plaintiff in order to support a claim against the indemnitor.” Pan

Am. Petroleum Corp. v. Maddux Well Serv., 586 P.2d 1220, 1225 (Wyo. 1978).

Potential liability exists unless an indemnitee faced “no exposure to legal

liability.” Pennant, 249 P.3d at 704.

      The threshold for ‘potential liability’ is not high, nor should it be.
      Where notice has been given to the indemnitor and the indemnitor
      has elected not to act to protect himself, he, in effect, consents to
      allow the indemnitee to act for him and will not be heard to complain
      about the outcome—except in the very limited circumstance where
      the indemnitee was not, in fact, at risk, but nevertheless paid money
      that it would never have owed to the plaintiff.

Id. (internal quotation marks and citation omitted).

      At the time True Oil settled with Mr. Van Norman, the state trial court had

denied its motion for summary judgment, concluding that “genuine issues of

material fact exist concerning the degree of control exercised by True Oil and

True Oil’s assumption of affirmative safety duties.” Aple. Supp. App. at 28.

Furthermore, as the Wyoming Supreme Court held, “potential liability was

established when the Van Norman complaint was amended to include a claim for

vicarious liability. This conclusion was based upon much more than the mere

allegation, but the showing by True Oil throughout the lawsuit [thereafter] that it


                                          -15-
was potentially liable.” Pennant, 249 P.3d at 707. The state trial court’s factual

findings subsequent to the settlement, to which Mid-Continent points, cannot

negate True Oil’s potential liability at the time of settlement.

      Likewise, Wyoming’s Worker’s Compensation Act does not bar an

employee who is paid worker’s compensation from asserting a claim against a

third party, or the third party’s resulting claim for indemnity against the

employer. Cities Serv. Co. v. N. Prod. Co., 705 P.2d 321, 323-24 (Wyo. 1985).

While the Worker’s Compensation Act prevents a third party from recovering

from an employer by way of contribution, “[t]he clearest exception to the

exclusive-liability clause [of the Act] is the third party’s right to enforce an

express contract in which the employer agrees to indemnify the third party for the

very kind of loss that the third party has been made to pay to the employee.” Id.

at 325-26 (quoting 2A Larson, The Law of Workmen’s Compensation § 76.42)

(internal quotation marks omitted). Where there is an express indemnity

agreement between the third party and the employer, as there is in our case, the

employer has “contract[ed] away th[e] protection” otherwise afforded by worker’s

compensation. Id. at 326.

      Finally, we are bound by the Wyoming Supreme Court’s holding that the

indemnity agreement is a “valid and enforceable part of the MSC” to the extent

that it indemnifies True Oil for its vicarious liability. Pennant, 249 P.3d at 710.

As such, it is an “insured contract” under Mid-Continent’s CGL policy, and the


                                          -16-
damages assumed therein are covered by the policy.

                                  C. Attorney Fees

      The Wyoming Supreme Court also held Pennant responsible under the MSC

for the costs True Oil incurred defending itself against claims for which Pennant

was fully at fault, including the attorney fees it incurred prior to the date of Mr.

Van Norman’s amended complaint. Id. (“Relieving True Oil of any negligence,

but then denying its attorney’s fees in defending itself against Pennant was an

abuse of discretion by the district court.”). Relying on the Wyoming Supreme

Court’s decision regarding the MSC, the district court awarded True Oil attorney

fees from October 2001 to March 15, 2005. Mid-Continent appeals the award of

attorney fees covering the period prior to the time Mr. Van Norman amended his

complaint, arguing that the “duty to pay attorneys fees under the [MSC] and the

insurance policy are distinctly different.” Aplt. Br. at 42.

      While the Wyoming Supreme Court did not interpret Mid-Continent’s

insurance policy per se, it interpreted what damages were assumed in the “insured

contract” for which Mid-Continent provided coverage. Significantly, it held

“Pennant was well aware of True Oil’s vicarious liability risk . . . and agreed . . .

to indemnify True Oil for any damages resulting therefrom.” Pennant, 249 P.3d

at 707 (emphasis added); see Aplt. App., vol. 1 at 24 (providing coverage for

attorney fees of a third party where “[l]iability to such party for, or for the cost

of, that party’s defense has also been assumed in the same ‘insured contract’”).


                                         -17-
The court held that Pennant assumed liability for the attorneys fees True Oil paid

to defend itself against claims for which, as it turned out, Pennant was 100%

responsible. Pennant, 249 P.3d at 710. For the reasons previously discussed, we

apply Wyoming’s determination that True Oil’s 2001-2005 attorney fees are

covered by the MSC, which necessarily triggers Mid-Continent’s coverage for

“damages” that it agreed to cover in its CGL policy.

      In sum, we AFFIRM the district court’s determination that True Oil is

entitled to recover its settlement payment, attorney fees from 2001 to 2005, and

pre- and postjudgment interest.




                                        -18-
