     Case: 13-20360      Document: 00513364996        Page: 1     Date Filed: 02/02/2016




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

                                                                                FILED
                                     No. 13-20360                           February 2, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
MCGINNES INDUSTRIAL MAINTENANCE CORPORATION,

                                                Plaintiff–Appellant,

v.

THE PHOENIX INSURANCE COMPANY; THE TRAVELERS INDEMNITY
COMPANY,

                                                Defendants–Appellees.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-4000


Before BARKSDALE, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
      In a prior opinion, we certified to the Supreme Court of Texas the sole
issue on appeal in this diversity action: whether Environmental Protection
Agency (EPA) enforcement actions taken pursuant to CERCLA 1 constitute a




*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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1 Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. §§ 9601-75.
     Case: 13-20360       Document: 00513364996         Page: 2    Date Filed: 02/02/2016



                                      No. 13-20360
“suit” within the meaning of commercial general liability policies, thereby
triggering a duty to defend. 2
       The Supreme Court of Texas answered the certified question, concluding
that the term “suit” in the policies “must also include CERCLA enforcement
proceedings by the EPA”; the court subsequently denied rehearing. 3 Because
the district court granted summary judgment for the defendants on the ground
that they had no duty to defend, 4 we REVERSE the district court’s grant of
summary judgment and REMAND for further proceedings.




2McGinnes Indus. Maint. Corp. v. Phoenix Ins. Co., 571 F. App’x 329, 333, 335 (5th Cir. 2014)
(per curiam).
3 McGinnes Indus. Maint. Corp. v. Phoenix Ins. Co., No. 14-0465, 2015 WL 4080146, at *3
(Tex. June 26, 2015), reh’g denied (Jan. 22, 2016).
4McGinnes Indus. Maint. Corp. v. Phoenix Ins. Co., No. 4:11-CV-4000, 2013 U.S. Dist. LEXIS
186670, at *4 (S.D. Tex. Apr. 18, 2013).
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