                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                      Revised December 16, 2004
                                                              November 17, 2004
                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                   Clerk
                       _______________________

                          Cause No. 03-20983
                       _______________________


                 ROYAL INSURANCE COMPANY OF AMERICA,

                                                  Plaintiff-Appellant,

                                versus

              HARTFORD UNDERWRITERS INSURANCE COMPANY,

                                                  Defendant-Appellee.



            Appeals from the United States District Court
                  for the Southern District of Texas


Before JONES, SMITH and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

            Two insurance companies dispute whether their coverage of

claims against a nursing home is primary, excess or pro rata.          The

district court held that one insurance company’s coverage was

primary and the other insurance company’s coverage was excess.

Based on Fifth Circuit precedent concerning Texas law, we disagree

and hold that both policies offer primary coverage, which must be

prorated.     Accordingly, we REVERSE and REMAND for proceedings

consistent with this opinion.
                                 Background

           In the underlying suit, the estate and surviving family

members   of   deceased   nursing     home    resident,   Lawrence      Knutson,

brought a wrongful death and survivor action against Riverside

Healthcare, Inc. (“Riverside”), for negligence, gross negligence,

and employee neglect.

           Riverside      was   the   named     insured    under    a    primary

Commercial General Liability and Health Care Professional Liability

policy    issued   by     Hartford     Underwriters       Insurance      Company

(“Hartford”), as well as a primary Commercial General Liability/

Resident Health Care Facility Professional Liability policy issued

by Royal Insurance Company of America (“Royal”).                   Because the

plaintiffs’ original complaint did not obviously trigger Hartford’s

policy, initially only Royal was notified of the lawsuit. However,

the plaintiffs later amended their complaint to trigger coverage

under Hartford’s policy.

           In mid-November 2000, approximately six weeks after the

plaintiffs filed their amended complaint, Royal notified Hartford

of the underlying suit, expecting Hartford to join in the defense

and participate in a mediation scheduled for December 7, 2000.

Hartford declined to join in the defense or mediation, maintaining

that it had insufficient notice and time to prepare.                       Royal

proceeded with the mediation and settled the case for approximately

$950,000, plus $4,770 for the plaintiffs’ costs (within the one



                                       2
million    dollar     limit    of   Royal’s      policy).        Royal    also     paid

$132,516.64 for defense costs and fees.                    Royal made a demand to

Hartford for contribution, which Hartford refused.                        Royal then

brought this insurance subrogation action against Hartford to

recover half the settlement costs.

             The instant appeal arises from the district court’s

conclusions that (a) the insurers’ Professional Liability (PL)

rather than Comprehensive General Liability (CGL) coverages pertain

to the underlying claim, and (b) Royal’s coverage is primary, while

Hartford’s coverage, because of its “other insurance” provision, is

excess (and thus not triggered here).                      Both companies provided

consecutive-year primary insurance policies with limits in the

amount of     one    million    dollars       each    to    Riverside    for   periods

covering the underlying action.               Both policies provided coverage

under identical Commercial General Liability provisions, which

afforded     pro    rata   distribution        of    liability.         However,    the

policies’ respective Professional Liability provisions contained

differing “Other Insurance” clauses:                 Royal’s clause provided for

pro   rata    coverage;1      Hartford’s       clause       provided    for    “excess


      1
             Royal’s “Other Insurance” Professional Liability Provision reads:

      If other valid and collectible insurance is available to the insured
      for a loss we cover under Coverage Form, our obligations are limited
      as follows:
            a.     Primary Insurance
            This insurance is primary except as described in Paragraph b.
            below. Our obligations are not affected unless any of the
            other insurances is also primary. Then we will share with all
            that other insurance by the method described in Paragraph c.
            below.

                                          3
coverage.”2    Resolution of the parties’ dispute turns first on

whether the underlying suit is governed by CGL or PL provisions.

If CGL provisions apply, then liability is undisputedly pro rata,

but if PL provisions apply, the companies’ respective liability

depends on the interrelation of the “other insurance” provisions.

While we agree with the district court that PL provisions apply to


           . . .
           c.    Method of Sharing
           If all the other insurance permits contribution by equal
           shares, we will follow this method also. Under this approach
           each insurer contributes equal amounts until it has paid its
           applicable limits of insurance or none of the loss remains,
           whichever comes first. If any of the other insurance does not
           permit contribution by equal shares, we will contribute by
           limits. Under this method, each insurer’s share is based on
           the ratio of its applicable limit of insurance to the total
           applicable limits of insurance to all insurers.

R. Vol. 6, pp. 347-48.
     2
           Hartford’s “Other Insurance” Professional Liability Provision reads:

     If other valid and collectible insurance is available to the insured
     for a loss we cover under Coverage D of this Coverage part, our
     obligations are limited as follows:
           a.    This insurance is excess over any other insurance other
           than insurance specifically arranged by you on an umbrella or
           similar basis to apply excess of this coverage part.
           b.    When this insurance is excess, we will have no duty
           under Coverage D to defend any claim or “suit” that any other
           insurer has a duty to defend. If no other insurer defends, we
           will undertake to do so, but we will be entitled to the
           insured’s rights against all those other insurers.
           c.    When this insurance is excess over other insurance, we
           will pay only our share of the amount of the loss, if any,
           that exceeds the sum of:
                 (1)    The total amount that all such other insurance
                 would pay for the loss in the absence of this insurance;
                 and
                 (2)    The total of all deductible and self-insured
                 amounts under all that other insurance.
           d.    We will share the remaining loss, if any, with any other
           insurance that is not described in these excess insurance
           provisions and was not bought specifically to apply in excess
           of the Limits of Insurance shown in the Declarations of this
           Coverage Part.

R. Vol. 7, p. 247.

                                      4
the   underlying    suit,    we    disagree     with    the     court’s    conflicts

determination.

                             Standard of Review

            This court reviews a district court’s grant of summary

judgment de novo, applying the same standards as the district

court. Mongrue v. Monsanto Co., 249 F.3d 422, 428 (5th Cir. 2001).

Interpretation     of   an   insurance       policy    is   a   question    of   law.

Gladney v. Paul Revere Life Ins. Co., 895 F.2d 238, 241 (5th Cir.

1990).

                                    Discussion

I.    PL vs. CGL Coverage

            The district court correctly applied PL provisions to the

underlying action.

            To determine which coverage provision applies, we must

liberally construe the allegations as set forth in the complaint

“without reference to their truth or falsity, [] to what the

parties know or believe to be the true facts, [] to a legal

determination of the true facts,” or to the specific legal theories

advanced by the parties.          See Duncanville Diagnostic Ctr., Inc. v.

Atl. Lloyd’s Ins. Co. of Texas, 875 S.W.2d 788, 789 (Tex. App.

1994, writ denied) (citing Heyden Newport Chem. Corp. v. S. Gen.

Ins. Co., 387 S.W.2d 22, 24-25 (Tex.1965)).3


      3
            See also Adamo v. State Farm Lloyd’s Co., 853 S.W.2d 673, 676 (Tex.
App.--Houston [14th Dist.] 1993, writ den’d); Continental Cas. Co. v. Hall, 761
S.W.2d 54, 56 (Tex. App. Houston [14th Dist.] 1988, writ den’d).

                                         5
           In the underlying suit, the Amended Complaint alleged:

     Defendants failed to properly and timely render appro-
     priate medical and nursing care by among other things
     . . . allowing infections, skin ulcers and other disease
     process[es] to continue without medical intervention
     . . . failing to meet minimum diet standards for its
     residents . . . failing to timely transfer Lawrence
     Knutson to a higher level care facility when appropriate.

     Defendants were negligent and grossly negligent in
     management, budgeting, and in hiring practices . . .
     orientation and training practices, and in supervision
     of employees . . . .

     . . . [breach] of the ‘Contract to Provide Nursing
     Facility Services Under the Texas Medical Assistance
     Program’   . . . by depriving and failing to provide
     Lawrence Knutson with the care specified under the terms
     of the contract . . . [and by] . . . various acts and/or
     omissions . . . .

The gravamen of the plaintiffs’ allegations is negligent medical

care; but-for the alleged negligence, none of the other claims

would have been brought.           Hartford’s contention that this or any

other   interpretation       that    results     in   double    coverage    would

improperly    render   the    PL    coverage   duplicative      is    unavailing.

Hartford’s argument would read certain terms out of the contract,

violating the principle that every term of a contract must be given

meaning.     Transitional Learning Community, Inc. v. United States

Office of Personnel Management, 220 F.3d 427, 431 (5th Cir. 2000).

           Here,   liberally        construing    the   terms    of    Hartford’s

policy, we find it most plausible that Riverside paid additional,

higher premiums for PL coverage precisely to cover incidents like

this case, where the lawsuit alleges negligence arising out of the

rendering of medical services.          This construction gives the most

                                        6
meaning to the terms of Hartford’s policy and supports the view

that Riverside’s CGL coverage protected it, for instance, against

claims by someone slipping and falling in the waiting room, while

its PL coverage protected it from lawsuits by residents harmed by

treatment (or lack thereof) received at the facility. This view is

consistent with state and federal courts in this circuit that have

interpreted insurance policies containing both comprehensive and

professional liability provisions.    See Harris Methodist Health

Sys. v. Employers Reinsurance Corp., No. 3:96-CV-0054-R, 1997 WL

446459, *3-*5 (N.D. Tex. July 25, 1997); Duncanville Diagnostic,

875 S.W.2d at 791; Guar. Nat’l, 909 F.2d at 135-36; Utica Nat’l

Ins. Co. of Texas v. Texas Property & Cas. Ins. Guar. Ass’n, 110

S.W.3d 450, 455-57 (Texas Ct. App. 2001).   Thus, we agree with the

district court that the underlying lawsuit implicated the PL

provisions.

II.   Conflict

           On the other hand, we depart from the court’s view that

no conflict existed between the two policies.   While the district

court’s interpretation — that Royal’s PL “Other Insurance” clause,

by its own terms, is primary, while Hartford’s PL “Other Insurance”

clause, by its own terms, renders its policy excess — is plausible,

it is contrary to controlling Fifth Circuit precedent.

           Resolution of this issue turns on the breadth of the

Texas Supreme Court’s decision in Hardware Dealers Mut. Fire Ins.


                                 7
Co. v. Farmers Ins. Exch.              444 S.W.2d 583 (1969).             In Hardware

Dealers, two companies — Hardware Dealers Mutual Fire and Farmers

Insurance — disputed their liability arising from an auto accident.

Hardware Dealers insured Frizzell Pontiac, a garage, for claims of

bodily   injury       or   property        damage    incurred     by   customers      and

employees permissively using a car belonging to Frizzell.                             444

S.W.2d   at    585.        Farmers    insured       John   Hyde   under    a   standard

automobile insurance policy.                 Id. at 584.          When John Hyde’s

daughter (who was covered under the policy) collided with another

automobile     during      a   test   drive,     the    dispute     between    the    two

insurers began.        Id. at 584.         Both policies had “other insurance”

clauses:       Hardware Dealer’s policy included a provision that

excluded from coverage permissive users of Frizzell Pontiac’s

automobile who were covered by other insurance.                           Id. at 585.

Farmer’s   policy      included       an    “other     insurance”      provision     that

converted its coverage into excess insurance if other insurance

coverage existed.          Id. at 584.

              In a thorough opinion, the state supreme court discussed

the three types of “other insurance” provisions: (1) pro rata

clauses, which restrict the liability of concurring insurers to an

apportionment     basis;       (2)    excess     clauses,     which     restrict     the

liability of an insurer to excess coverage (that pays out only

after the primary coverage is exhausted); and (3) escape clauses,

which avoid all liability in the event of additional coverage. Id.



                                             8
at 586.    After evaluating the possible interpretations, the court

announced the following rule of interpretation:

     When, from the point of view of the insured, she has
     coverage from either one of two policies but for the
     other, and each contains a provision which is reasonably
     subject to a construction that it conflicts with a
     provision in the other concurrent insurance, there is a
     conflict in the provisions.

Id. at 589.    After finding that the two policies conflicted (an

escape clause vs. an excess clause), the court concluded that in

such circumstances, Texas courts should ignore the conflicting

provisions, and instead apportion liability pro rata and require

both insurers to defend.    Id. at 590.

            This court has cautioned against applying overly narrow

constructions of the Hardware Dealers rule.          In one case, we

expressly rejected an argument that distinguished Hardware Dealers

when an escape clause and a pro rata clause conflicted.       St. Paul

Mercury Ins. Co. v. Lexington Ins. Co., 78 F.3d 202, 210     (5th Cir.

1996).    In a footnote, this court explained that “Hardware Dealers

set forth a general principle for resolving conflicting ‘other

insurance’ clauses, and that principle controls our decision in

this case.”     Id. at 210 n.25.       Using the interpretation method

counseled by Hardware Dealers, this court determined that

     Sanifill [the insured] would be entitled to full coverage
     under Landmark’s policy were it not for the existence of
     Centennial’s policy; and Sanifill would be entitled to
     full coverage under Centennial’s policy were it not for
     the existence of Landmark’s policy.      In other words,
     Landmark’s pro rata clause conflicts with Centennial’s
     escape clause, so we must prorate liability.


                                   9
Id. at 210.

             Measured against St. Paul Mercury’s interpretation of

Hardware Dealers, the district court read the Supreme Court’s

decision too narrowly, and incorrectly determined that no conflict

existed between the Royal and Hartford provisions.                      The fact that

Hartford’s policy contained an escape clause and Royal’s policy

contained a pro rata clause does not distinguish this case from

Hardware Dealers. According to St. Paul Mercury, this case appears

to    be just      another    permutation        of   the   conflict    explained    in

Hardware Dealers.        Viewed from the perspective of Riverside, the

insured,     one    finds     that    Hartford        provides   coverage     for   the

underlying suit if Royal’s policy did not exist.                       Similarly, one

sees that Royal provides full coverage for the underlying suit if

Hartford’s policy did not exist.                 A “reasonable construction” of

the    two   policies        from    this   perspective       yields     a   conflict.

Therefore, the substantive step of Hardware Dealers applies:                        both

Royal and Hartford are liable proportionally, and both had a duty

to defend Riverside.4

III. Defense Costs



       4
            In a related argument, Royal contends that the district court
violated Texas’s anti-stacking rule. This is incorrect. Under the Texas “anti-
stacking rule,” if two insurance policies both cover one occurrence, the insured
may recover only the limit of one policy. Am. Physicians Ins. Exch. v. Garcia,
876 S.W.2d 842, 853-54 (Tex.1994).      This prevents “self-injury” and other
insurance fraud. The district court’s interpretation is that Royal’s policy
constituted primary coverage and Hartford’s policy provided excess coverage.
This is the way the insurance system works — excess insurers provide additional
coverage above and beyond that of primary insurers.        This interpretation,
although incorrect, does not violate the anti-stacking rule.

                                            10
            As we have concluded that Royal is entitled to contri-

bution for settlement costs, there is the lingering issue whether

Royal is also entitled to recover defense costs.             Because the

district court did not address this issue and the case is being

remanded for a pro rata liability distribution, we do not reach the

issue of defense costs.    However, we note the following.

            Under Texas law, “the duty to defend does not arise until

a petition alleging a potentially covered claim is tendered to the

insurer.”    Lafarge Corp. v. Hartford Cas. Ins. Co., 61 F.3d 389,

400 (5th Cir. 1995) (Garwood, J.) (citing Members Ins. Co. v.

Branscum, 803 S.W.2d 462, 466-67 (Tex. App.--Dallas 1991, no

writ)).   Here, Hartford had no duty to defend — and thus cannot be

required to pay any of Royal’s defense costs — until the underlying

suit implicated Hartford’s policy and the insured tendered the

complaint to Hartford.          Based on the record, it appears that

Hartford did not have the complaint until six weeks after the

plaintiffs    amended   their    complaint,   well   after   Royal   began

defending the suit.     See, e.g., Dist. Ct. Op. (RE Tab 2) at 19.

Under Texas law, Royal would only be entitled to post-notification

defense cost.    However, Royal waived any claim to those costs in

its Reply Brief.

                                 Conclusion

            For the aforementioned reasons, we REVERSE and REMAND for

proceedings consistent with this opinion.



                                     11
REVERSED and REMANDED.




                     12
