                                                                                 FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                     UNITED STATES COURT OF APPEALS                       February 26, 2020

                                                                         Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                            Clerk of Court
                        _________________________________

 LEXINGTON INSURANCE COMPANY,

       Plaintiff - Appellant/Cross-
       Appellee,

 v.                                                    Nos. 18-8072 & 18-8080

 PRECISION DRILLING COMPANY,
 L.P., f/k/a Grey Wolf Drilling Company,
 LP; LLOYD'S OF LONDON
 SYNDICATE #4711, a/k/a Aspen
 Syndicate #4711; LLOYD'S OF LONDON
 SYNDICATE #33; LLOYD'S OF
 LONDON SYNDICATE #1209; ACE
 GLOBAL MARKETS,

       Defendants - Appellees/Cross-
       Appellants.
                      _________________________________

                    Appeal from the United States District Court
                            for the District of Wyoming
                          (D.C. No. 2:12-CV-00070-ABJ)
                      _________________________________

Mark J. Sobczak (Matthew J. Fink with him on the briefs), Nicolaides Fink Thorpe
Michaelides Sullivan, LLP, Chicago, Illinois, for Plaintiff–Appellant/Cross–Appellee.

Robert J. Walker (John M. Walker with him on the briefs), Hickey & Evans, LLP,
Cheyenne, Wyoming, Defendant–Appellee/Cross–Appellant.
                       _________________________________

Before PHILLIPS, EBEL, and O’BRIEN, Circuit Judges.
                   _________________________________

PHILLIPS, Circuit Judge.
                        _________________________________

      In an earlier appeal, we ruled that Wyoming’s anti-indemnity statute would not

defeat possible insurance coverage to an additional insured. In this second appeal and

cross-appeal, we must decide whether the district court correctly ruled that

additional-insured coverage exists under the applicable insurance policies; whether

the district court entered judgment for the additional insured in an amount greater

than the policy limits; and whether the district court correctly ruled that the

additional insured was not entitled to prejudgment interest and attorneys’ fees. We

conclude that the district court ruled correctly on each issue, so we affirm.

                                   BACKGROUND

I.    Factual Background

      At all relevant times, Ultra Resources, Inc. (“Ultra”), held a lease for a

Wyoming well site. In January 2007, Ultra contracted with Upstream International,

LLC (“Upstream”), under a Master Service Agreement to manage the well site. The

Ultra-Upstream contract required Upstream to obtain insurance policies with a stated

minimum amount of coverage for Ultra and Ultra’s contractors and subcontractors.

To do so, Upstream obtained two policies from Lexington Insurance Company

(“Lexington”)—a General Liability Policy (“General Policy”) and a Commercial

Umbrella Policy (“Umbrella Policy”). Lexington issued and delivered the two

policies in Texas.




                                            2
      In October 2007, Upstream employed Darrell Jent as an independent

contractor/consultant (calling him its “company man”) to help it manage some of

Ultra’s well sites. Appellant’s App. vol. 1 at 218, 240.

      In March 2008, Ultra contracted with Precision Drilling (“Precision”) to

operate a drilling rig at the well site. Precision maintained a separate insurance policy

with Lloyd’s of London (“Lloyd’s”), covering Precision for primary and excess

liability. Then in August or September, in coordination with Ultra, Upstream re-

assigned Jent from his work duties as rig manager on a different rig at an Ultra well

site to supervise Precision’s rig, hoping to improve the rig’s performance and get it

on budget. Appellees’ Principal Br. 4 (“Jent was assigned by Upstream to Rig #841

[Precision] to fulfill the contractual obligations set forth within the Ultra-Upstream

Contract.”). Several times, Jent (after consulting with Ultra) temporarily shut down

the rig for deficiencies in Precision’s performance. Jent enforced safety protocols on

the rig, sometimes reprimanding Precision employees for violations. Further, Jent

advised Ultra to drug test some Precision rig hands after correctly suspecting they

were using methamphetamine.

      Sometime before December 27, 2008, Precision scheduled a rig-down

operation so that it could move its rig to another site.1 That day, Jent held two safety

meetings with Precision employees about the rig-down operation. As one part of the

operation, Precision needed to lower the rig derrick. As that happened, Jent stood on


      1
       We cannot describe this activity in better detail, because we lack the
necessary information to do so from the briefs and record.
                                            3
the rig’s platform, overseeing the removal of the rig’s leg pins. The leg pins helped

secure the rig deck. Jent was concerned with the pins’ removal “because a lot of

times those guys, they’ll hit those pins and they’ll come flying out . . . [and can] hit

[someone] in the forehead [if they are] standing in the wrong place.” Appellant’s

App. vol. 2 at 320. Precision’s employees safely removed the pins.

       Jent assumed that Precision employees had already attached and tightened all

A-leg bolts. In fact, Precision employees had loosened the A-leg bolts—which attach

the A-legs to the derrick—and had not properly secured these bolts. After supervising

the pin removal, Jent had just left the rig floor and reached “the top step leading

down from the rig floor” when the derrick fell because of the “defectively bolted ‘A-

legs’ attaching the derrick to the rig floor.” Appellant’s App. vol. 1 at 150, vol. 2 at

391. Jent was seriously injured after being thrown from the steps.

II.    Procedural Background

       Jent sued Precision for negligence. Precision was the lone defendant. Jent

based his negligence claim on Precision’s employees having “previously loosened”

the A-leg bolts and having failed to “properly re-attach and tighten” the bolts.

Appellant’s App. vol. 1 at 150. Jent further alleged that Precision’s employees had

failed to pin the steps down to the rig. Jent alleged that these failures led to “[o]ne of

the A-legs [coming] loose from the rig floor, causing the derrick to crash

down. . . . When the derrick crashed, the steps fell and catapulted [Jent] off the

steps.” Id. ¶ 24.



                                            4
      After being served with the complaint, Precision demanded that Ultra defend

and indemnify it as required by the Ultra-Precision drilling contract. Ultra, in turn,

demanded that Upstream defend Precision under the insurance policies required by

the Ultra-Upstream Contract. In February 2011, Upstream tendered the claim to its

insurer, Lexington, which agreed to defend Precision subject to a full reservation of

its rights. In February 2012, Lexington exercised its reserved rights and denied any

duty to defend or indemnify Precision against Jent’s claims. Lexington told Precision

and its insurer, Lloyd’s, that it denied coverage and left it to Precision and Lloyd’s to

defend against Jent’s suit. In April 2012, Precision and Lloyd’s attended a mediation

conference and settled Jent’s claims for $3 million (Lexington chose not to attend

and denied liability for any part of the settlement).

      After the settlement, Lexington filed a declaratory-judgment action against

Precision, Lloyd’s, and Upstream, seeking a court ruling that it owed no duty to

defend or indemnify Precision against Jent’s claims. In support, Lexington argued

that “Wyoming[’s] Anti-Indemnity Statute applies to Precision’s claim for defense

and indemnity,” which would void any insurance coverage to Precision under the

Lexington-Upstream policies. See Wyo. Stat. Ann. § 30-1-131 (2012); Appellant’s

App. vol. 2 at 339.

      Precision, Lloyd’s, and Upstream each answered Lexington’s declaratory-

judgment complaint. In their answers, Precision and Lloyd’s requested a declaration




                                            5
that Lexington was indeed liable to reimburse them for defense costs and the full Jent

settlement.2

      All parties3 moved for summary judgment, stipulating that they disputed no

material facts and waiving trial. Appellees’ Principal Br. 15 (“Thereafter, the parties

conceded that the case should be resolved by dispositive motion and waived trial.”);

Appellant’s App. vol. 2 at 466 (“There are no factual issues to be resolved at trial,

and . . . Lexington’s request for a determination on the applicability of the Wyoming

Anti-Indemnity Statute to this dispute may be resolved by the Court as a matter of

law.”).

      In its motion for summary judgment, Precision asserted that Lexington owed it

coverage under Lexington’s two policies. As support, Precision argued that it was an

“additional insured” under the two policies, which entitled it to $3 million in

coverage needed to settle Jent’s claims.4 Precision also sought its attorneys’ fees,

statutory prejudgment interest, and costs. See Wyo. Stat. Ann. § 26-15-124(c). As a

second matter, Precision also contested that Wyoming’s anti-indemnity statute would

apply to defeat that coverage.


      2
        Though both Precision and Lloyd’s answered Lexington’s Second Amended
Complaint, neither filed a counterclaim. In their answers, both parties requested a
declaration that they could recover from Lexington.
      3
         On appeal, Precision refers to itself, Lloyd’s, and ACE Global Markets
collectively as “Precision.”
      4
        Yet we note that Precision’s coverage argument was incomplete. To have
coverage, Precision needed to satisfy Endorsement 17 to the General Policy, a policy
provision whose terms Precision failed to mention.
                                           6
      In its motion for summary judgment, Lexington bypassed the coverage issue

and exclusively argued that Wyoming’s anti-indemnity statute would void any

possible coverage under the Lexington policies. See Wyo. Stat. Ann. § 30-1-131.

      The district court granted Lexington’s motion for summary judgment, agreeing

that Wyoming’s anti-indemnity statute would void any possible insurance coverage

due Precision under Lexington’s two insurance policies. Lexington Ins. Co. v.

Precision Drilling Co., No. 12-CV-070-J, 2014 WL 11515822, at *9 (D. Wyo. Dec. 19,

2014).5

      On appeal, Lexington defended the district court’s interpretation of

Wyoming’s anti-indemnity statute. Lexington Ins. Co. v. Precision Drilling Co.

(Precision I), 830 F.3d 1219, 1220 (10th Cir. 2016). As part of its doing so, Lexington

pointed to statutes from states other than Wyoming “allow[ing] only those who

purchase a policy to benefit from its terms.” Id. at 1221. But we reversed, reasoning

that in enacting Wyoming’s anti-indemnity rule6 the “Wyoming Legislature didn’t


      5
         Upstream had also moved for summary judgment on grounds that it was not a
necessary party because “[n]o relief has been sought against Upstream; no facts are
alleged against Upstream; no causes of action are asserted against Upstream[.]” The
district court agreed, declaring that it was “unable to divine any actual, rather than
hypothetical or speculative, claim that Lexington may have against Upstream.”
Lexington, 2014 WL 11515822, at *9. This ended Upstream’s involvement.
      6
          Wyoming’s anti-indemnity statute reads:

      (a) All agreements, covenants or promises contained in, collateral to or
      affecting any agreement pertaining to any well for oil, gas or water, or
      mine for any mineral, which purport to indemnify the indemnitee against
      loss or liability for damages for:

                                           7
employ the same language found in [those other states’] statutes. Instead, it expressly

allowed the enforcement of any insurance contract[,]” including ones “someone else

had to buy.” Id. In remanding, we acknowledged that “our decision today does not

fully resolve the parties’ dispute,” noting “[b]y way of example only” that the parties

could next litigate “whether Precision qualifies as an additional insured under the

Lexington policies.” Id. at 1224.

      After returning to district court, Precision and Lexington filed post-remand

motions for summary judgment. Precision’s motion raised two issues: (1) whether it

was entitled to coverage as an additional insured under the Lexington-Upstream


             (i) Death or bodily injury to persons;
             (ii) Injury to property; or
             (iii) Any other loss, damage, or expense arising under either (i)
             or (ii) from:
                     (A) The sole or concurrent negligence of the indemnitee or
                     the agents or employees of the indemnitee or any
                     independent contractor who is directly responsible to such
                     indemnitee; or
                     (B) From any accident which occurs in operations carried
                     on at the direction or under the supervision of the
                     indemnitee or an employee or representative of the
                     indemnitee or in accordance with methods and means
                     specified by the indemnitee or employees or representatives
                     of the indemnitee, are against public policy and are void and
                     unenforceable to the extent that such contract of indemnity
                     by its terms purports to relieve the indemnitee from loss or
                     liability for his own negligence. This provision shall not
                     affect the validity of any insurance contract or any benefit
                     conferred by the Worker’s Compensation Law . . . of this
                     state.

Wyo. Stat. Ann. § 30-1-131.


                                           8
policies, and (2) if so, whether it was entitled to statutory prejudgment interest. And

Precision argued that Lexington had forfeited an ability to contest either issue by its

earlier failure to address either in response to Lexington’s pre-remand motion for

summary judgment.

      In its own motion about a month later, Lexington denied having forfeited

anything, pointing to the broad language in our Precision I mandate.7 Addressing the

merits, Lexington does not contest Precision’s status as an “additional insured” under

Lexington’s policies.8 But Lexington emphasized that Precision needed to show more

to qualify for additional-insured coverage—namely, that it met the coverage



      7
         Precision also requested that the district court strike as untimely Lexington’s
summary-judgment motion in its entirety. See Lexington Ins. Co. v. Precision
Drilling Co., No. 12-CV-70-ABJ, 2018 WL 8807146, at *2 (D. Wyo. Sept. 6, 2018).
But the district court declined to do so, noting that Lexington’s motion for summary
judgment was in substance “very much a response to Precision’s Motion except that
it contained one new issue.” Id. The court further noted that “Precision even seems to
acknowledge the generally responsive nature of Lexington’s Motion because
Precision’s Reply in large part treats Lexington’s Motion as a response.” Id. So the
district court denied Precision’s request to strike Lexington’s motion and instead
treated “it as a response.” Id.
      8
        Precision is an additional insured under the Lexington policies because it is a
“contractor” under the Ultra-Upstream Master Service Agreement. The General
Policy’s Endorsement 17 amends the “Who is an Insured” section to include “any
person or organization you [Upstream] are required to include as an additional
insured on this policy by a written contract or written agreement in effect during this
policy period.” Appellant’s App. vol. 1 at 94. The Umbrella Policy includes as an
“insured” “[a]ny person or organization, other than the ‘Named Insured’, included as
an additional ‘Insured’ under ‘scheduled underlying insurance’, but not for broader
coverage than would be afforded by such ‘scheduled underlying insurance[.]’”
Appellant’s App. vol. 1 at 119–20. The scheduled underlying insurance includes the
General Policy.

                                           9
conditions imposed by Endorsement 17 to the General Policy. We note that coverage

under Endorsement 17 depends on whether Precision could show (1) liability of

Precision (2) arising out of (3) work performed by Upstream (through Jent), (4) for

Precision. Of these coverage conditions, Lexington disputes only that Precision has

met the fourth condition.

      The district court ruled that Lexington had not forfeited its ability to contest

Precision’s additional-insured argument. See Lexington Ins. Co. v. Precision Drilling

Co., No. 12-CV-70-ABJ, 2018 WL 8807146, at *3 (D. Wyo. Sept. 6, 2018). After

disposing of this preliminary question, the district court went on to rule for Precision

on the merits. Addressing Endorsement 17’s disputed fourth condition, the district

court concluded that Jent’s work for Upstream supervising Precision’s rig-down

operation had been “for” Precision. Id. at *5–6. In support, the district court noted

that Ultra had hired Upstream solely to manage the well site and that Jent was

assigned to Precision’s rig to “perform[] some level of safety oversight on the drilling

rig and actively tr[y] to help Precision’s employees operate the drilling rig better to

make the well more productive.” Id. at *6. Because of this, the district court

concluded Jent “was performing work for Precision and Precision is an additional

insured.” Id.

      As a fallback, Lexington argued a second point—that its policy limits were $2

million. Here, Lexington directed the court to Endorsement 3 of the Umbrella Policy.

But the district court cut this argument short. It deemed Lexington’s policy-limits

argument forfeited, because Lexington had failed to “address any of the substance of

                                           10
Precision’s First Motion for Summary Judgment [pre-remand] in its response but

instead re-argued its statutory argument.” Lexington Ins. Co., 2018 WL 8807146, at

*4. It further noted that Lexington did not “mention the issue of maximum coverage

in their filings related to the first [pre-remand] cross motions for summary judgment,

nor did they mention it before the 10th Circuit.” Id.

      Finally, the district court denied Precision’s request for costs, prejudgment

interest, and attorneys’ fees. Id. at *6; see also Wyo. Stat. Ann. § 26-15-124(c)

(2018). The court concluded that to obtain the requested relief under this statute,

Lexington needed to show something that it could not—that Lexington had issued

and delivered the policies in Wyoming, not Texas. Lexington Ins. Co., 2018 WL

8807146, at *6.

      At the end of the day, the district court entered judgment for Precision against

Lexington for the Jent settlement amount of $3 million. Id. The parties have cross-

appealed.

                                    DISCUSSION

      We first identify the standard of review. Next we address whether Lexington’s

policies provide Precision coverage as an additional insured. Then we address

Lexington’s policy-limits argument. Finally we address Precision’s challenge to the

district court’s denial of prejudgment interest and attorneys’ fees.

I.    Standard of Review

      This case presents an unusual procedural posture. As mentioned, in the pre-

remand round of summary-judgment motions, the parties informed the district court

                                           11
that they disputed no material facts and waived trial. And as part of their post-remand

summary-judgment motions, the parties once again agreed that there were “no issues

of material fact.” Appellees’ Principal Br. 14 (citing Appellees’ Suppl. App. at 14

(Precision stated “there remain no factual issues to submit to a jury” and the

remaining issue “can only be resolved, as a matter of law, by the Court.”));

Appellant’s App. vol. 3 at 683 (Lexington agreed that there were no disputes of

material fact needing resolved).9

      Accordingly, the district court resolved the summary-judgment arguments as if

the parties had presented evidence at a bench trial. In this situation, we do not apply

the ordinary standard of review for summary judgment. This means, contrary to

Lexington’s position on appeal, that we do not resolve disputed facts in the

nonmovant’s favor or grant it all favorable inferences. Here, with the parties’

agreement, the district court was the ultimate fact finder.

      Though we have not yet announced the appropriate standard of review to apply

in this circumstance, other circuits have done so. They have concluded that when the

district court has decided a case on summary judgment after the parties have waived

a trial, the appeals court reviews legal conclusions de novo and factual findings for

clear error. We join those circuits and adopt that standard of review. E.g., Federacion

de Empleados del Tribunal Gen. de Justicia v. Torres, 747 F.2d 35, 36 (1st Cir. 1984)


      9
        Though Lexington added a “Disputed Material Facts” section to its second
motion for summary judgment, it identified no disputed material facts. Instead,
Lexington disagreed with Precision’s position that Lexington had forfeited the
“additional insured” argument.
                                           12
(concluding that the district court’s factual inferences could be set aside only if they were

clearly erroneous, reasoning that “the parties considered the matter to have been

submitted below as a case ready for decision on the merits”); Satellite Television &

Associated Res., Inc. v. Cont’l Cablevision of Va., Inc., 714 F.2d 351, 353–54 (4th Cir.

1983) (concluding that because the district court had decided the case “based on

affidavits, exhibits and jointly stipulated facts submitted by the parties[,]” the appeals

court should review the case “as one tried by the District Court[,]” meaning it could

“upset a finding of fact made by the court only if the finding is judged by us to be clearly

erroneous”); Vetter v. Frosch, 599 F.2d 630, 632 (5th Cir. 1979) (concluding that

when a case is essentially a “trial on a stipulated record” all inferences must be drawn

“in favor of the district court’s decisions which could be reversed on issues of fact

only in the event it was found clearly erroneous”); Starsky v. Williams, 512 F.2d 109,

111 (9th Cir. 1975) (same).

         Here, Precision and Lexington filed cross motions for summary judgment.

Both parties submitted additional briefing as requested by the district court. The

parties submitted the case to the district court for final resolution on their contested

issues of law. The parties stipulated that they did not dispute the underlying facts. So

advised, the district court decided the case on its merits. In that circumstance, we

review the district court’s legal conclusions de novo and its fact findings for clear

error.




                                              13
II.   Precision Is Entitled to Lexington’s Additional-Insured Coverage Because
      Precision’s Liability Arises Out of Work Performed by Upstream for
      Precision.

      A.       The Scope of Remand Under the Mandate Rule

      In Precision I, we acknowledged that our decision “does not fully resolve the

parties’ dispute.” 830 F.3d at 1224. We remanded for the district court to do so,

mentioning the additional-insured issue as an example of an issue still needing

resolved. Id. “[T]he scope of the mandate on remand in the Tenth Circuit is carved

out by exclusion: unless the district court’s discretion is specifically cabined, it may

exercise discretion on what may be heard.” See Dish Network Corp. v. Arrowood

Indem. Co., 772 F.3d 856, 865 (10th Cir. 2014) (alterations in original) (internal

quotation marks omitted) (quoting United States v. West, 646 F.3d 745, 749 (10th

Cir. 2011)).

      As mentioned, the district court initially resolved the case based on

Wyoming’s anti-indemnity statute. See Lexington Ins. Co., 2014 WL 11515822, at

*9. Doing so relieved the district court from deciding the preliminary coverage issue

under Lexington’s policies. Had the district court reached the coverage issue, it

would have seen that Precision had not sufficiently analyzed the additional-insured

issue. Nowhere did Precision argue how it was entitled to coverage under

Endorsement 17 of the General Policy.10 Absent Precision’s doing so, Lexington had


      10
         Precision bears the initial burden of establishing it was covered under the
Lexington-Upstream policies. See Hursch Agency, Inc. v. Wigwam Homes, Inc., 664
P.2d 27, 31 (Wyo. 1983) (“[T]he insured has the burden of proving that its loss was

                                           14
nothing to respond to on that point. For this reason, as well as our broad mandate in

Precision I, we agree with Lexington that it did not forfeit its ability to contest

coverage, especially under Endorsement 17. In short, we affirm the district court’s

conclusion that Lexington did not forfeit its argument on additional-insured

coverage.

      B.       Precision Is Entitled to Coverage Under Lexington’s Policies.

      As we examine the district court’s post-remand judgment in favor of Precision

on policy coverage, Endorsement 17 of the General Policy takes center stage:

      A. Section II - Who Is An Insured is amended to include any person or
         organization you are required to include as an additional insured on
         this policy by a written contract or written agreement[11] in effect
         during this policy period and executed prior to the “occurrence” of the
         “bodily injury” or “property damage.”

due to an insured risk[.]” (citation omitted)); see also Gilbert Tex. Constr., L.P. v.
Underwriters at Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010) (citing Ulico Cas.
Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 782 (Tex. 2008)). If Precision proves
coverage, then Lexington bears the burden of establishing an exclusion applies. See
Gilbert Tex. Constr., L.P., 262 S.W.3d at 782 (“If the insured proves coverage, then
to avoid liability the insurer must prove the loss is within an exclusion.”) (citation
omitted); see also Hursch Agency, Inc., 664 P.2d at 31.
      11
           The Ultra-Upstream Master Service Agreement requires Upstream
      to procure and maintain, at its sole expense, with solvent Insurers and
      insurers acceptable to [Ultra], policies of insurance in favor of [Ultra], its
      subsidiary, affiliated and related companies, and their working interest
      owners, co-lessees, co-owners, contractors and subcontractors and any
      others for whom any of the foregoing may be acting; and the agents,
      directors, officers, employees of any one or more of the above named or
      described parties (hereinafter all collectively referred to as “Company”)
      in the minimum amounts outlined in the Exhibits attached hereto and
      made a part hereof Exhibit “A” and Exhibit “B”.
Appellant’s App. vol. 1 at 246, ¶ 3.1.

                                            15
      B. The insurance provided to the above described additional insured
         under this endorsement is limited as follows:
            1. COVERAGE A BODILY INJURY AND PROPERTY
               DAMAGE (Section 1 – Coverages) only.
            2. The person or organization is only an additional insured with
               respect to liability arising out of “your work” or “your product”
               for that additional insured.

Appellant’s App. vol. 1 at 94. The policy further defines “[y]our work” as “[w]ork or

operations performed by you [Upstream] or on your behalf[.]” Appellant’s App. vol.

1 at 65, 124.

      The district court noted that Lexington’s entire additional-insured argument

depended on its “very specific use of the phrase ‘work for.’” Lexington Ins. Co., 2018

WL 8807146, at *6. In evaluating Lexington’s argument, the court reviewed what

work Upstream had performed at the well site (through its independent contractor,

Jent). Id. After reciting Jent’s management role, including his overseeing safety

protocols and helping “Precision’s employees operate the drilling rig better to make

the well more productive[,]” the court concluded that Upstream performed work

(through Jent) “for” Precision. Id.

      We review de novo a district court’s interpretation of policy language. See

Sonnett v. First Am. Title Ins. Co., 2013 WY 106, ¶¶ 5–7, 309 P.3d 799, 803–04

(Wyo. 2013); see also Marathon Ashland Pipe Line LLC v. Maryland Cas. Co., 243

F.3d 1232, 1236 (10th Cir. 2001). In Wyoming, courts give insurance policy

language its plain meaning. N. Fork Land & Cattle, LLLP v. First Am. Title Ins. Co.,

2015 WY 150, ¶ 14, 362 P.3d 341, 346 (Wyo. 2015).



                                          16
      Whether Lexington’s two policies cover Precision against Jent’s claims

depends on the meaning of subsection B.2. With the names of the parties inserted, we

read this provision as providing Precision coverage as an additional insured when

Precision is liable to a third party and the liability arises from work performed by

Upstream for Precision. As we weigh this language, we see the two prepositions—

“by” and “for”—as particularly important.12

      In denying coverage, Lexington rests its case on “for.”13 Lexington reads a

right-of-control component into that word. From that, it argues that because

Upstream, not Precision, had a right to control Jent, his work was “for” Upstream,

not Precision. Otherwise stated, Lexington argues that Upstream’s work could not be

“for” Precision unless Upstream’s work was subject to Precision’s control.

Appellant’s Opening Br. 39.

      We reject Lexington’s position that the word “for” in subsection B.2 requires

that Precision have a right to control the work. First, as mentioned, subsection B.2


      12
         We note that Lexington reads past the “by” and its significance. It misreads
subsection B.2 as encompassing Upstream’s work performed for Precision. See
Appellant’s Opening Br. 37, 39 (“Endorsement 17 simply limits additional insured
coverage to those for whom Upstream performs work.”); id. at 47 (“Because
Upstream did not perform work or operations for Precision, Precision is not entitled
to any additional insured coverage.”).
      13
         Lexington does not contest Endorsement 17’s additional prerequisites to
coverage—that Precision qualifies as an additional insured under subsection A above
and that Precision’s liability to Jent arises from work performed by Upstream
(meaning we have no occasion to decide whether Precision’s sole negligence as Jent
pleaded in his complaint suffices to invoke coverage under Endorsement 17).


                                           17
requires that the work be performed by Upstream. That alone requires that Upstream

have had the right to control those performing its work. “Work performed by

Upstream” (Jent’s supervision) cannot be work subject to Precision’s right of

control.14 Thus, we conclude that reading “for” as Lexington does would render

coverage under Endorsement 17 a nullity and result in illusory coverage. See

Lexington Ins. Co., 2018 WL 8807146, at *6 (“Lexington attempts to construe the

phrase ‘work for’ in such a limited and tortured way that it would thwart the general

object of the Lexington Policies.”).

       The district court concluded that Jent had acted “for” Precision after noting

that Jent had “performed some level of safety oversight on the drilling rig and

actively tried to help Precision’s employees operate the drilling rig better to make the

well more productive.” Id. For several reasons, we agree with this approach and

interpret work “by” Upstream “for” Precision as including work “on behalf of”

Precision.

       First, Jent was supervising the disassembly of Precision’s valuable property—

the drilling rig. He supervised to help ensure the safety of Precision’s rig and

employees. Second, the record reveals that Jent was not an unwelcome interloper

thrust on Precision, but a key part of Precision’s efforts. Jent’s expertise is



       14
          Jent acknowledged that he was employed by Upstream at Ultra’s request,
and that Upstream paid him. Jent was Upstream’s representative at the well site.
Lexington acknowledges that Upstream controlled Jent’s work. See Appellant’s App.
vol. 3 at 689 (“Upstream retained Jent to fulfill Upstream’s obligations to Ultra under
the Ultra-Upstream contract.”).
                                            18
  uncontroverted—he had “conducted a rig down more than 20 times.” Appellant’s

  App. vol. 1 at 207. Third, Precision had already dropped a rig during a rig-down

  operation. Jent attributed that failure to Precision’s having improperly placed that

  rig’s pins, and he wanted to ensure that this did not happen again. Fourth, Jent

  worked with the Precision employees to prevent workers from being hit by flying

  pins when standing in the wrong place. For whose benefit was the work performed by

  Upstream (Jent’s supervision) done? For Precision’s benefit.

        Further, even if we determined that “for” as used in Endorsement 17,

  subsection B.2 was somehow susceptible to two meanings, we would resolve the

  ambiguity in Precision’s favor, not Lexington’s. Century Sur. Co. v. Jim Hipner,

  LLC, 2016 WY 81 ¶ 5, 377 P.3d 784, 787 (Wyo. 2016) (“Where the terms [of an

  insurance policy] are ambiguous, they are strictly construed against the

  insurer . . . because insurance policies are contracts of adhesion where ‘the insured

  has little or no bargaining power to vary the terms.’” (quoting N. Fork Land & Cattle,

  LLLP, ¶ 14, 362 P.3d at 346)); see also Marathon Ashland Pipe Line LLC, 243 F.3d

  at 1241–42 (concluding that ambiguous policy language must be interpreted in favor

  of the additional insured).

III.    Lexington Is Responsible to Cover the Entire $3 Million Settlement.

        After our remand, Lexington filed a motion for summary judgment, contending

  for the first time that Endorsement 3 of the Umbrella Policy sets Lexington’s policy

  limits at $2 million. In its pre-remand summary-judgment motion, Precision sought

  reimbursement for the full amount of the Jent settlement—$3 million. Back then,

                                            19
Lexington raised no policy-limits defense, all through the first appeal. After remand,

the district court ruled that Lexington had forfeited its newly made policy-limits

argument because “Lexington did not mention the issue of maximum coverage in

their filings related to the first cross motions for summary judgment, nor did they

mention it before the [Tenth] Circuit[.]” Lexington, 2018 WL 8807146, at *4. The

district court noted that Lexington was itself raising the policy-limits argument, not

simply responding to a Precision argument (as Lexington was responding to

Precision’s additional-insured-coverage argument). Id. at *3. On appeal, Lexington

argues that it did not forfeit this argument and that by ruling otherwise, the district

court legally erred by increasing the policy limits beyond what the policy allowed.

We now turn to that argument.

      We choose not to consider the district court’s forfeiture ruling, because even if

it erred, Lexington would still lose. For the reasons below, we conclude that the

policy limits exceed the $3 million judgment.

      The General Policy contains a $1 million “Each Occurrence” limit. The

Umbrella Policy contains a $5 million “Each Occurrence” limit. The Umbrella

Policy’s Endorsement 3, deletes and replaces that policy’s “Section IV - Limits of

Insurance.” Appellant’s App. vol. 1 at 132. Two sections of Endorsement 3 are

important. First, subsection B sets the Umbrella Policy’s limits at $5 million. Id. But

Endorsement 3 further limits the amount of coverage if the conditions of subsection

D apply. That subsection reads as follows:



                                           20
       [T]he most we will pay for damages under this policy on behalf of any
      person or organization to whom you are obligated by a written “insured
      contract” to provide insurance such as is afforded by this policy is the lesser
      of the limits of insurance shown in Item 3 of the Declarations or the minimum
      limits of insurance you agreed to procure in such written “insured contract.”

Id. (emphasis added). So to decrease the policy limits under subsection D, Lexington

must show that an “insured contract” requires a lesser amount than $5 million. Here

is the $1 million-dollar question (whether policy limits here are $2 million or $3

million): Is there an “Insured Contract” requiring $2 million in coverage, not more?

      The Umbrella Policy resolves this question with its definition of “Insured

Contract”:

      “Insured Contract” means that part of any contract or agreement
      pertaining to your business under which any “Insured” assumes 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.

      Id. at 120. We read “Insured Contract” as an indemnity contract. An

indemnitor assumes another’s tort liability to an injured party. Here, the Master

Service Agreement has a paragraph titled “Indemnity,” but nothing in that paragraph

requires Upstream (or anyone else) to obtain insurance. That requirement comes in a

separate paragraph (and thus in a non-“Insured Contract” part of the Master Service

Agreement) titled “Insurance.” So circling back to Endorsement 3, subsection D,

Lexington cannot show that the Master Service Agreement’s indemnity provision (so

its “insured contract” provision) requires Upstream “to provide insurance as is

provided by this policy.” Thus, the policy limits are $1 million under the General


                                            21
Policy and another $5 million under the Umbrella Policy. See Coleman Co. v. Cal.

Union Ins. Co., 960 F.2d 1529, 1530 n.1 (10th Cir. 1992) (concluding that umbrella

insurance “provides standard excess coverage that attaches after a predetermined

amount of primary coverage has been exhausted” (citations omitted)); see also

Appellant’s App. vol. 1 at 30 (“The . . . Umbrella Policy contains a limit of

$5,000,000 . . . upon exhaustion of all coverage available under the . . . Primary

Policy.”). Accordingly, we affirm the district court’s judgment in the amount of $3

million.15

     We acknowledge having struggled with this question. After all, we understand

that a more-expansive reading of “insured contract” could include both indemnity

and insurance on behalf of another party’s liability. Further, doing so would fit with

subsection D’s language reading “to provide insurance such as is afforded by this

policy.” But Lexington drafted the policy language and defined “insured contract” as

it did. If it meant Endorsement 3, subsection D, to reach insurance agreements as

required by the Master Service Agreement it simply had to tie that to a term other

than “insured contract.” For now at least, Lexington has to live with its language.

Shaffer v. WINhealth Partners, 2011 WY 131, ¶ 10, 261 P.3d 708, 711 (Wyo. 2011)

(internal quotation marks and citations omitted (“[T]he parties have the right to employ


       15
         If Endorsement 3, subsection D had applied, the policy limits would have
been $2 million. The Master Service Agreement’s Exhibit B required Upstream to
procure a minimum of $1 million in “Comprehensive General Liability” insurance
and a minimum of $1 million in “Excess Liability” insurance. Appellant’s App. vol. 2
at 356.

                                            22
 whatever lawful terms they wish and courts will not rewrite them.”)). And as discussed

 earlier, even if we read “insured contract” as subject to two meanings, we would still

 construe “insured contract” against Lexington as the drafter. See Century Sur. Co., ¶ 5,

 377 P.3d at 787; Marathon, 243 F.3d at 1241–42.

IV.     Precision Is Not Entitled to an Award of Prejudgment Interest or Attorneys’
        Fees.

        The final issue is whether the district court properly denied Precision’s request

 for prejudgment interest and attorneys’ fees. We review a district court’s denial of

 prejudgment interest “for an abuse of discretion.” Malloy v. Monahan, 73 F.3d 1012,

 1019 (10th Cir. 1996) (citing Zuchel v. City & Cty. of Denver, Colo., 997 F.2d 730,

 746 (10th Cir. 1993)). As support for its position, Precision relies on Wyo. Stat. Ann.

 § 26-15-124(c) (2018). In response, Lexington argues that this statute affords

 Precision no relief because it issued the policies in Texas, not in Wyoming as the

 statute requires. Precision does not address the substance of Lexington’s argument

 but rather asserts that Lexington has forfeited this defense by not raising it in its pre-

 remand motion for summary judgment.

        We again turn to the Precision I mandate. Because this court resolved only the

 anti-indemnity issue in the previous appeal, we did not consider the prejudgment

 interest and attorneys’ fees issue. See generally Precision I, 830 F.3d 1219. Our

 mandate in Precision I was broad. See id. at 1224. Aside from acknowledging that

 the district court had not yet decided “[b]y way of example only . . . whether

 Precision qualifies as an additional insured under the Lexington policies[,]” we


                                             23
provided no other guidance or limitations for remand. See id. Consistent with this

court’s precedent, “the district court [was] to look to the mandate for any limitations

on the scope of the remand and, in the absence of such limitations, exercise discretion

in determining the appropriate scope.” See West, 646 F.3d at 749. Because we did not

provide any limitations, the district court properly exercised its discretion in

considering Lexington’s argument. As such, we do no violence to the mandate rule

by considering that argument now.

       Addressing the merits of the issue, we agree with Lexington that Precision

obtains no relief from § 26-15-124. Section 26-15-101 lays out the scope of

Wyoming’s insurance code. This statute allows prejudgment interest and attorneys’

fees for “all insurance contracts and annuity contracts except: . . . (ii) Policies or

contracts not issued for delivery in this state nor delivered in this state[.]” Id.

(emphasis added). The Lexington policies were issued in Texas, so the Wyoming

insurance code, including § 26-15-124, is inapplicable.

       Precision also fails to show that Lexington’s refusal to reimburse Precision for

the Jent settlement was unreasonable or without cause as required by § 26-15-124(c).

Though it initially agreed to defend Precision, Lexington withdrew its defense prior

to the settlement, refused to reimburse Precision and Lloyd’s for the settlement, and

instead sought a declaration that it had no obligation to reimburse Precision for the

settlement because of Wyoming’s anti-indemnity statute. Precision contends this was

without cause. Precision largely hangs its argument on our prior rejection of

Lexington’s anti-indemnity statute argument. But just because we reversed the

                                            24
district court’s ruling, that does not by itself render Lexington’s actions per se

without cause or unreasonable. The district court made no finding that Lexington’s

actions were unreasonable or without cause, as required by the statute, and we

decline to do so here.

       Lexington had a cogent argument for seeking declaratory judgment that it was

not liable to reimburse Precision for the settlement with Jent. This argument is one

that other jurisdictions have accepted. See Precision I, 830 F.3d at 1221 (this court

did not find it persuasive that Oklahoma, Colorado, and Kansas have enacted statutes

expressly providing support for Lexington’s argument). Lexington, although

ultimately unsuccessful, argued that reimbursing Precision’s settlement payment

would amount to an indemnity action, which Wyoming’s anti-indemnity statute

would bar. The district court found this argument plausible and in fact ruled in its

favor on the issue.

       Though we ultimately reversed that ruling, two different interpretations of

statutory language, with one ultimately being unsuccessful, does not create an

unreasonable withholding of payment. Paulino v. Chartis Claims, Inc., 774 F.3d

1161, 1164 (8th Cir. 2014) (“[T]he fact that the insurer’s position is ultimately found

to lack merit is not sufficient by itself to establish the first element of a bad faith

claim. Rather, the focus is on the existence of a debatable issue, not on which party

was correct.” (internal quotation marks, alterations, and citations omitted)).

       Because Precision fails to show that the district court abused its discretion and

fails to adequately show that Lexington unreasonably or without cause withheld

                                             25
payment, we affirm the district court’s holding that Precision is not entitled to

prejudgment interest or attorneys’ fees under § 26-15-124(c).

       On appeal, for the first time, Precision argues alternatively that it is entitled to

prejudgment interest under the common law. We disagree. Precision contends that it

preserved this issue by requesting common-law prejudgment interest in both rounds

of summary judgment. But we see nothing there except a request for statutory

prejudgment interest. For instance, in the first round of summary judgment, Precision

states that it is entitled to recover interest “at the rate of ten percent.” Appellant’s

App. vol. 1 at 243. As Precision acknowledges, Wyoming provides a statutory rate of

ten percent for prejudgment interest, while common law provides for a seven percent

rate. We disagree that Precision sought prejudgment interest under both the Wyoming

statutes and its common law. The “Proposed Findings Of Fact and Conclusions of

Law” also requests only statutory interest, failing to mention common-law interest.

       In Precision’s second round of summary-judgment briefing, it requested ten

percent prejudgment interest under § 25-12-124(c), again without mentioning any

common-law right. In its reply brief in its second round of summary-judgment

motions, Precision included a single sentence generally asserting that the court has

“independent discretion to award [Precision] pre-judgment interest.” Appellant’s

App. vol. 3 at 727. But it later requested prejudgment interest of ten percent. A

single, vague request for interest in a reply brief only, followed by a reference to

statutory prejudgment interest does not suffice. Because Precision failed to request

common-law interest until this appeal, Precision has waived that argument. We agree

                                             26
with the district court’s denial of Precision’s request for prejudgment interest and

attorneys’ fees.

                                   CONCLUSION

      For the above reasons, we affirm the district court.




                                           27
