     Case: 10-40953   Document: 00511677004   Page: 1   Date Filed: 11/28/2011




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

                                                                    FILED
                                                              November 28, 2011

                                  No. 10-40953                  Lyle W. Cayce
                                                                     Clerk

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA;
AON RISK SERVICES, INC. OF WASHINGTON, formerly known as Rollins
Hudig Hall of Washington Inc.,

                                           Plaintiffs - Appellees
v.

PUGET PLASTICS CORPORATION; ARCTIC SLOPE REGIONAL
CORPORATION,

                                           Defendants - Appellants

MICROTHERM, INC.,

                                           Intervenor Defendant - Appellant
                      ____________________________________

ARCTIC SLOPE REGIONAL CORPORATION; PUGET PLASTICS
CORPORATION; MICROTHERM, INC.,

                                           Plaintiffs - Appellants

v.

AON RISK SERVICES, INC. OF WASHINGTON; formerly known as Rollins
Hudig Hall of Washington Inc.; NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,

                                           Defendants - Appellees
   Case: 10-40953       Document: 00511677004         Page: 2     Date Filed: 11/28/2011



                                       No. 10-40953


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:05-CV-00050


Before JONES, Chief Judge, HAYNES, Circuit Judge, and ENGELHARDT,
District Judge.*
PER CURIAM:**
       This case involves the question of whether National Union Fire Insurance
Company of Pittsburgh, Pa. owes coverage for damages caused by Puget Plastics
Corporation (“Puget”) and its parent company, Arctic Slope Regional Corporation
(“ASRC”) to Intervenor Defendant-Appellant, Microtherm, Inc. (“Microtherm”)
(Puget, ASRC, and Microtherm will be collectively referred to as “Appellants”).
Following our affirmance and remand on the first (interlocutory) appeal of this
case, Nat’l Union Fire Ins. Co. v. Puget Plastics Corp., 532 F.3d 398 (5th Cir.
2008) (hereinafter Puget I), the district court conducted a bench trial on the
issues outlined in Puget I.
       The district court explained Puget I as follows: “In essence, the Fifth
Circuit simplified the entire “occurrence” definition into three specific “non-
occurrence” scenarios. . . . Puget’s deliberate actions are not an “occurrence” if:
(1) the injury to Microtherm was highly probable, (2) Puget intended or expected
the injury inflicted on Microtherm, or (3) Puget committed an intentional tort,
in which case the intent to harm Microtherm would be presumed.” Nat’l Union
Fire Ins. Co. v. Puget Plastics Corp., 649 F. Supp. 2d 613, 630 (S.D. Tex. 2009).


       *
          United States District Judge for the Eastern District of Louisiana, sitting by
designation.
       **
           Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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   Case: 10-40953       Document: 00511677004           Page: 3     Date Filed: 11/28/2011



                                        No. 10-40953

After an exhaustive discussion of the facts, the district court concluded that the
injury to Microtherm as a result of Puget’s deliberate actions was “highly
probable,” and, therefore, did not constitute an “occurrence” under the policy as
defined by Puget I. Id. at 645-46. Alternatively, the court determined that
Microtherm and Puget failed to present evidence upon which the court could
base an allocation of damages awarded by the jury verdict in the underlying
liability case between covered and uncovered damages. Id. at 647-52.
       We have carefully considered the pertinent portions of the record, the
parties’ briefs,1 the district court’s opinions,2 and the oral arguments made to
this panel in light of Puget I. For substantially the same reasons as those set
forth in the district court’s careful and thorough original opinion, 649 F. Supp.
2d at 629-31 and 645-46, we find no error warranting reversal in its
determination of the occurrence issue applying Puget I. Accordingly, we do not
reach the second issue.
       AFFIRMED.




       1
          After oral argument, Appellants filed a Rule 28j letter to alert us to the recent
decision in Mid-Continent Casualty Co. v. Brock, 2011 WL 4807715 (5th Cir. Oct. 11, 2011)
(unpublished). That unpublished opinion does not support Appellants’ position here. In that
case, the district court granted summary judgment for the insurer, concluding that the jury’s
finding of “knowingly” and “intentionally” under the Texas Deceptive Trade Practices Act in
the underlying liability case meant that there could be no “occurrence” as a matter of law.
Puget I addressed the interlocutory appeal of the district court’s denial of National Union’s
motion urging a similar conclusion in this case. Thereafter, the district court conducted a trial
and faithfully applied Puget I. Brock is inapposite here.
       2
         The district court’s opinion regarding Appellants’ motion for new trial is published
at National Union Fire Insurance v. Puget Plastics Corp., 735 F. Supp. 2d 650 (S.D. Tex. 2010).

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