Evanston Insurance Company v. Legacy of Life, Inc. , 487 F. App'x 163 ( 2012 )

Case: 10-50267 Document: 00511968460 Page: 1 Date Filed: 08/24/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 24, 2012
No. 10-50267 Lyle W. Cayce
Clerk
EVANSTON INSURANCE COMPANY
Plaintiff-Appellant/Cross-Appellee
v.
LEGACY OF LIFE, INC.
Defendant-Appellee/Cross-Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:09-CV-373
Before ELROD and SOUTHWICK, Circuit Judges.*
PER CURIAM:**
We explained this case’s factual background and the issues involved in a
prior opinion. Evanston Ins. Co. v. Legacy of Life, Inc., 645 F.3d 739 (5th Cir.
2011) (Evanston I). In that opinion, we explained that this “Texas law diversity
case involves important and determinative questions of Texas law as to which
*
Judge Garwood was a member of the panel at the time of oral arguments. His death
on July 14, 2011, causes us to decide this case by a quorum. 28 U.S.C. § 46(d).
**
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-50267 Document: 00511968460 Page: 2 Date Filed: 08/24/2012
No. 10-50267
there is no controlling Texas Supreme Court precedent,” id. at 741, therefore we
certified the following questions to the Supreme Court of Texas pursuant to
Texas Constitution Art. 5, § 3-C and Texas Rule of Appellate Procedure 58.1:
1. Does the insurance policy provision for coverage of “personal
injury,” defined therein as “bodily injury, sickness, or disease
including death resulting therefrom sustained by any person,”
include coverage for mental anguish, unrelated to physical damage
to or disease of the plaintiff’s body?
2. Does the insurance policy provision for coverage of “property
damage,” defined therein as “physical injury to or destruction of
tangible property, including consequential loss of use thereof, or loss
of use of tangible property which has not been physically injured or
destroyed,” include coverage for the underlying plaintiff’s loss of use
of her deceased mother’s tissues, organs, bones, and body parts?
Id. at 751. The Supreme Court of Texas answered both questions in the
negative. Evanston Ins. Co. v. Legacy of Life, Inc., 2012 WL 2476935, at *1 (Tex.
2012). Because the insurance policy does not include coverage for the claims
alleged against Legacy of Life, Inc. in the underlying lawsuit, the district court
erred in concluding that Evanston Insurance Company had a duty to defend
Legacy in that lawsuit. The conclusion that Evanston has no duty to defend
Legacy in the underlying lawsuit resolves all remaining issues before this court.
See Evanston I, 645 F.3d at 751.
Accordingly, we REVERSE the district court’s grant of declaratory and
partial summary judgment in favor of Legacy and RENDER judgment in favor
of Evanston and against Legacy on their respective declaratory judgment claims.
We AFFIRM the district court’s dismissal of Legacy’s remaining counterclaims
asserted in its amended answer and the district court’s order denying Legacy’s
request for attorneys’ fees in the present lawsuit. We VACATE the district
court’s order requiring Evanston to pay the costs of this suit.
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