Cornhill Ins Plc v. Valsamis Inc ( 1997 )


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  •                               REVISED
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 95-20898
    CORNHILL INSURANCE PLC,
    HANSA MARINE INSURANCE CO U K LTD;
    ANGLO AMERICAN INSURANCE COMPANY, LIMITED;
    UNDERWRITERS AT LLOYD’S LONDON,
    Plaintiffs-Appellees,
    versus
    VALSAMIS, INC.;
    CHERYL GISENTANER,
    Defendants-Appellants.
    *****************************************************************
    AMERICAS INSURANCE COMPANY
    Plaintiff -Appellee
    versus
    VALSAMIS, INC.;
    CHERYL GISENTANER,
    Defendants-Appellants
    *****************************************************************
    OCEAN MARINE INDEMNITY CO.,
    Plaintiff-Appellee
    versus
    VALSAMIS, INC;
    CHERYL GISENTANER,
    Defendants-Appellants
    Appeal from the United States District Court
    for the Southern District of Texas
    February 7, 1997
    Before KING and HIGGINBOTHAM, Circuit Judges, and LAKE*, District
    Judge.
    HIGGINBOTHAM, Circuit Judge:
    This suit is the consolidation of three actions filed by
    insurers and underwriters seeking a declaration that insurance
    policies1 issued to Valsamis, Inc. do not cover incidences of
    sexual harassment. The district court granted summary judgment for
    the insurers and Cheryl Gisentaner, assignee of Valsamis, Inc.’s
    claims and defendant in the action below, appeals.            We find that
    the claims of sexual harassment do not raise a potential for
    coverage under     the   policies,   and   affirm   the   decision   of   the
    district court.
    I.
    On October 29, 1992, Cheryl Gisentaner filed a lawsuit in
    Texas state court against her former employer, Valsamis Inc., her
    supervisor at Valsamis, Christos Papapetrou, and the president of
    Valsamis Inc., Dimitrios Valsamis.         Gisentaner alleged that from
    approximately March 1992 until her resignation on September 2,
    1992, Papapetrou made sexual remarks to her, touched her in an
    inappropriate     and    offensive   manner,    exposed     himself,      made
    threatening and obscene gestures, and eventually attempted to force
    *
    District Judge of the Southern District of Texas, sitting by
    designation.
    1
    The policies in question are a comprehensive general
    liability policy issued by Americas Insurance Company, three
    policies issued by Cornhill Insurance PLC providing comprehensive
    general liability and excess comprehensive general liability
    coverage, and an umbrella policy issued by Ocean Marine Indemnity
    Co. Appellees, plaintiffs in the action below, will be referred to
    as “insurers.”
    2
    himself on her in a supply room.                When she reported this behavior
    to Valsamis in June of 1992, he failed to address Papapetrou’s
    conduct, tried to kiss her, asked her out repeatedly, and arranged
    to meet her alone under pretenses of work.                            In her initial
    complaint, Gisentaner sought damages for intentional and negligent
    infliction of emotional distress, tortious assault and battery,
    intentional and negligent invasion of privacy, and negligent hiring
    and supervision. Denial of coverage premised on the allegations in
    this   complaint     was    sent    to    Valsamis       on     September     8,   1993.
    Subsequently, Gisentaner filed a first amended complaint, adding a
    claim for failure to maintain a safe work environment.                          Coverage
    premised on this amended complaint was denied on January 27, 1994.
    The defendants in the state court sexual harassment suit
    settled with Gisentaner for an agreed judgment of $1,250,000, an
    assignment   of    Valsamis,       Inc.’s       claims    against      its    insurers,
    $110,000 paid by Valsamis, Inc. to Gisentaner in consideration for
    the assignment, and a covenant by Gisentaner not to execute on the
    judgment   against    Valsamis.           One    month    after       the   settlement,
    Gisentaner filed a second amended complaint which deleted all
    intentional tort claims.
    The insurers then brought the present action, seeking a
    judgment   declaring       that    they    had    no     duty    to    defend   against
    Gisentaner’s state court claims and that their policies do not
    provide coverage for the claims settled by Valsamis and Gisentaner.
    Subsequently, Gisentaner filed suit against the insurers in state
    court as a judgment creditor of Valsamis and as an assignee of
    3
    Valsamis’ cause of action for bad faith, insurance code violations
    and deceptive trade practices.     Defendants in Gisentaner’s state
    court suit included all of the plaintiffs in this declaratory
    judgment action and the issuers of two employer liability policies
    as well as the agent and broker for all of the policies.
    Gisentaner attempted to dismiss this declaratory judgment
    action, claiming that the extra parties in the state court suit
    were indispensable to the federal suit and that their mandatory
    joinder would defeat diversity.    The district court judge withheld
    ruling on this motion until September 26, 1995, when he denied it
    and also granted summary judgment in favor of the insurers.
    II.
    Gisentaner claims that the district court should not have
    exercised jurisdiction in this case because it failed to join
    indispensable nondiverse parties and abused its discretion in not
    staying the federal suit in favor of the state court suit.
    A.
    Fed R. Civ. P. 19 allows joinder of necessary parties unless
    that joinder would defeat diversity jurisdiction.   If jurisdiction
    is threatened, the court must determine whether the potentially
    joined parties are indispensable, that is, if the court finds that,
    as a matter of equity and good conscience, the lawsuit cannot
    proceed without them.   Sandefer Oil & Gas, Inc. v. Duhon, 
    871 F.2d 526
    , 529 (5th Cir. 1989).   The threat of multiple litigation will
    not make a party indispensable but the threat of inconsistent
    obligations will.   Shelton v. Exxon Corp., 
    843 F.2d 212
    , 218 (5th
    4
    Cir. 1988).     Fed. R. Civ. P. 19(b) lists four factors for courts to
    consider   in    deciding   whether   a    party    is    indispensable:     1)
    prejudice to an absent party or others in the lawsuit from a
    judgment; 2) whether the shaping of relief can lessen prejudice to
    absent parties; 3) whether adequate relief can be given without
    participation of the party; and 4) whether the plaintiff has
    another effective forum if the suit is dismissed.
    Gisentaner claims that the agent and broker for the policies
    in this case are indispensable parties because Cornhill and OMI
    asserted lack of notice as a defense to coverage.             Gisentaner also
    claims that because OMI is an umbrella policy, the issuer of its
    underlying employer liability policy is an indispensable party.
    None of the factors listed in Fed. R. Civ. P. 19(b) cut in favor of
    joining the parties Gisentaner identified as indispensable.                 The
    district court’s decision rested solely on contractual language in
    the   policies    and   those   parties      with    an     interest   in   the
    interpretation of that language were present in this action.
    B.
    Gisentaner also claims that the district court abused its
    discretion in refusing to dismiss this suit.              A district court has
    broad discretion to retain or dismiss a declaratory judgment suit
    where a parallel state court suit has been filed.                Brillhart v.
    Excess Ins., 
    316 U.S. 491
    (1942).          The breadth of this discretion
    was recently reaffirmed by the Supreme Court in Wilton v. Seven
    Falls Co., 
    115 S. Ct. 2137
    , 2144 (1995).             The district court in
    this case found that the insurers’ suits were not anticipatorily
    5
    filed, and that no indispensable parties were excluded.                     We do not
    find this action to be an abuse of discretion.
    III.
    Under Texas law, an insurer’s duty to defend is triggered
    where    the     allegations     in    the       plaintiff’s    pleadings    raise    a
    potential for coverage under the policy.                  Argonaut Southwest Ins.
    Co. v. Maupin, 
    500 S.W.2d 633
    , 635 (Tex. 1973).                    An insurer bears
    the burden       of   proving    that    the      allegations    contained    in   the
    underlying plaintiff’s petition are excluded from coverage and any
    doubt is resolved in favor of the insured.                     Adamo v. State Farm
    Lloyds Co., 
    853 S.W.2d 673
    (Tex. App.-Houston 1993, writ denied),
    cert. denied, 114 S. Ct. (1994). This burden includes proving that
    none of the claims asserted potentially fall within coverage.
    Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 
    387 S.W.2d 22
    , 26 (Tex. 1965).       The duty to defend is determined by examining
    the latest amended pleading upon which the insurer based its
    refusal to defend the action. Rhodes v. Chicago Insurance Co., 
    719 F.2d 116
    , 120 (5th Cir. 1983).
    A.    Americas Policy
    The comprehensive general liability policy issued to Valsamis
    by Americas covered bodily and personal injury. For bodily injury,
    the     policy     restricted        coverage       to   damages    caused    by     an
    “occurrence,” but there was no occurrence requirement for claims of
    personal injury. The definition of personal injury included injury
    arising out of “false arrest, detention, imprisonment or malicious
    6
    prosecution,” or “a publication or utterance . . . in violation of
    an individual’s privacy.”
    Gisentaner seeks coverage for her claims in the definition of
    “personal    injury”       in    the   Americas      policy.2     In    her   original
    petition in state court, Valsamis alleged invasion of privacy,
    which is specifically referenced as a personal injury within
    Americas policy.           She also now alleges that the facts in her
    complaint state a claim for false detention, also covered in the
    definition of personal injury.
    Texas courts do not look to conclusory assertions of a cause
    of action in determining a duty to defend.                  Instead, they look to
    see if the facts giving rise to the alleged actionable conduct, as
    stated within the eight corners of the complaint, constitute a
    claim potentially within the insurance coverage.                       Adamo v. State
    Farm Lloyds Co., 
    853 S.W.2d 673
    (Tex. App.-Houston 1993, writ
    denied). We will therefore look to see if Gisentaner alleged facts
    that    constitute     a    claim      for       invasion   of   privacy      or   false
    imprisonment under Texas law to determine whether Americas had a
    duty to defend.
    1.    Invasion of Privacy
    The Texas Supreme Court first recognized the tort of invasion
    of privacy in Billings v. Atkinson, 
    489 S.W.2d 858
    , 859 (Tex.
    1973). Texas law now recognizes three distinct torts, any of which
    2
    Gisentaner does not argue that Americas’ bodily injury
    provision covers her claims.
    7
    constitutes an invasion of privacy.3             Industrial Found. of the
    South v. Texas Indus. Accident Bd., 
    540 S.W.2d 668
    , 682 (Tex.
    1976), cert. denied, 
    430 U.S. 931
    (1977).                 Gisentaner did not
    allege that Valsamis publicly disclosed embarrassing private facts
    about her or appropriated her name or likeness.                    Gisentaner’s
    allegations   come   closest   to   fitting     the   cause   of    action     for
    invasion of privacy where there has been “intrusion upon the
    plaintiff’s seclusion or solitude, or into his private affairs.”
    Texas Indus. Accident 
    Bd., 540 S.W.2d at 682
    .              However, no Texas
    court has considered whether sexual harassment is cognizable under
    this definition, therefore we must assess whether Texas courts
    could find that Gisentaner stated a claim for invasion of the right
    to privacy.
    To state a cause of action under this theory of invasion of
    the right to privacy, Texas case law requires proof that there was
    an intentional intrusion upon the solitude or seclusion of another
    or his private affairs or concerns that is highly offensive to a
    reasonable person.        Farrington v. Sysco Food Serv., Inc., 
    865 S.W.2d 247
    , 252 (Ct. App.-Houston 1993); Gill v. Snow, 
    644 S.W.2d 222
    , 224 (Ct. App.-Ft. Worth 1982).           However, at least one Texas
    court has noted that this type of invasion of privacy “is generally
    associated with either a physical invasion of a person’s property
    or   eavesdropping   on    another’s       conversation    with    the   aid   of
    3
    Texas Indus. Accident Bd. actually established four types of
    invasion of privacy but the Texas supreme court has since abolished
    the fourth, false light invasion of privacy. Cain v. Hearst Corp.,
    
    878 S.W.2d 577
    (Tex. 1994)
    8
    wiretaps, microphones or spying.”        Wilhite v. H.E. Butt Co., 
    812 S.W.2d 1
    , 6 (Tex. App.-Corpus Christi 1991).        Gisentaner made no
    such allegation in her complaint.        In contrast, she alleged that
    Valsamis and Papapetrou made offensive comments and inappropriate
    advances toward her.    These facts would not be cognizable as a
    cause of action for invasion of privacy under Texas law.
    2.   False Imprisonment
    Americas’ policy defines personal injury to include claims of
    false imprisonment.    Gisentaner claims that the incident where
    Papapetrou tried to force himself on her in a closet at work states
    a cause of action for false imprisonment under Texas law.        Texas
    law defines false imprisonment as willful detention without consent
    and without authority of law.    Sears, Roebuck & Co. v. Castillo,
    
    693 S.W.2d 374
    , 375 (Tex. 1985).       However, Gisentaner alleged that
    Papapetrou attempted to force himself on her in an unlocked supply
    room accessible to other employees.        She did not allege that he
    kept her there by physical force or by threatening her.        She did
    not allege detention and therefore her allegations are insufficient
    to state a claim for false imprisonment under Texas law.           See
    Randall’s Food Markets, Inc. v. Johnson, 
    891 S.W.2d 640
    (Tex.
    1995).
    B.   Cornhill Policies
    Unlike Americas, Cornhill’s comprehensive general liability
    policy included an employment exclusion that applied to both bodily
    and personal injury.   However, Cornhill’s policy also contained a
    personal injury endorsement that extended coverage to include
    9
    liability for personal injury arising from Valsamis’ shiprepairing
    operations.
    The employment-related claim exclusion in Cornhill’s policy
    precluded coverage for:
    Any liability of whatsoever nature of the Assured,
    whether the Assured may be liable as an employer or in
    any other capacity whatsoever, to any of its Employees,
    including without limiting the generality of the
    foregoing any liability under any workers’ compensation
    law, unemployment compensation law, disability benefit
    law, United States Longshoremen’s and Harbor Workers’
    Compensation Act, Jones Act, Death on the High Seas Act,
    General Maritime Law, Federal Employer’s Liability Act,
    or any similar laws or liabilities, and/or whether by
    reason of the relationship of master and servant or
    employer and employee or not . . . [and] [a]ny liability
    of any Employee of the Assured with respect to bodily
    and/or personal injury to or illness or death of another
    Employee of the Assured sustained in the course of such
    employment.
    The wording of this employment exclusion is very broad.
    Gisentaner’s state court action complained of negligent acts by
    Valsamis, Inc. as her employer.    Negligent hiring and supervision
    necessarily involve the employment relationship and therefore this
    exclusion precludes coverage.   The injuries inflicted by Valsamis
    and Papapetrou all occurred while Gisentaner was employed by
    Valsamis and were sustained in the course of her employment and are
    therefore also excluded.   Our interpretation of this employment
    exclusion is supported by Texas law.     In   Aberdeen Ins. Co. v.
    Bovee, 
    777 S.W.2d 442
    (Tx. App.-El Paso 1989), the court considered
    a similar employment exclusion and found that it was broad enough
    to encompass sexual harassment and negligent hiring and supervision
    claims.   
    Bovee, 777 S.W.2d at 444
    .
    10
    Gisentaner argues that the language in Cornhill’s policy is
    similar to that in Western Heritage Insurance Company v. Magic
    Learning Centers and Child Care, Inc., 
    45 F.3d 85
    , 88-89 (5th Cir.
    1995),   and   that   this   employment-related        claim    exclusion   only
    excludes claims against Valsamis, Inc. because it is the only
    employer.      However, the policy language in Magic Years did not
    contain the language found in Cornhill’s policy excluding coverage
    for liability of one employee to another.              Therefore, the holding
    in Magic Years that the employment exclusion only applied to claims
    against the employer and not to claims against the president and
    secretary of the organization does not control our decision here.
    Gisentaner also argues that because her secretarial duties
    included accounting and scheduling for shiprepairing operations,
    she   should   benefit   from    the    shiprepairing     endorsement.      The
    endorsement covers:
    legal liability of the Assured for death or personal
    injury occurring in the course of and arising from the
    shiprepairing operations of the Assured but in no event
    . . . for any claim arising directly or indirectly under
    . . . Common Law Liability in respect of loss of life,
    bodily injury to, or illness of any workman or other
    person employed in any capacity whatsoever by the
    Assured, his agents or sub-contractors when such loss of
    life, bodily injury to, or illness arises out of or in
    the course of the employment of such workman or other
    person.
    Gisentaner’s argument, however, ignores the requirement that the
    personal injury must arise from the shiprepairing operations.
    Gisentaner’s     injuries    arose     from   sexual    harassment,   not   the
    administrative     support      work   she    did   for   the    shiprepairing
    operations.
    11
    C.   OMI Policy
    OMI provided a umbrella excess liability policy that covered
    damages on account of personal injuries caused by or arising out of
    an occurrence. The personal injury definition included invasion of
    privacy, false detention, and discrimination.         OMI’s policy also
    originally contained an employee exclusion but this was eliminated
    when Valsamis purchased employee buy-back coverage.
    Because OMI’s policy does not contain an employment exclusion,
    we must determine whether Gisentaner’s claims fall within the
    definition of personal injury in OMI’s policy. Under OMI’s policy,
    personal injury coverage requires an occurrence.            OMI’s policy
    defines an occurrence as “an accident or a happening or event or a
    continuous or repeated exposure to conditions which unexpectedly
    and unintentionally results in personal injury, property damage or
    advertising liability.”
    Gisentaner   claims    that   we   are   bound    to   accept   the
    characterization of Valsamis’ acts as negligent because judgment
    was entered on this basis in the state court as a result of the
    settlement between herself and Valsamis.        However, in Columbia
    Mutual Ins. Co. v. Fiesta Mart, 
    987 F.2d 1124
    (5th Cir. 1993), a
    panel of this court declined to bind an insurer to findings in a
    state court suit where coverage was not at issue.      Fiesta 
    Mart, 987 F.2d at 1127
    . Therefore, we must characterize the facts alleged in
    Gisentaner’s complaint to determine whether they fall within the
    language of OMI’s policy.
    12
    Gisentaner also insists that we look at each individual cause
    of action she listed in her complaint to determine whether she
    alleged an “occurrence.”           In her original complaint, Gisentaner
    alleged negligent      infliction     of    emotional   distress,   negligent
    invasion of privacy, and negligent hiring and supervision.                    In
    1993, the Texas Supreme Court eliminated negligent infliction of
    emotional distress as a cause of action.                Boyles v. Kerr, 
    855 S.W.2d 593
    , 593 (Tex. 1993).           Texas law also requires proof of
    intent for an invasion of privacy cause of action.           See Billings v.
    Atkinson, 
    489 S.W.2d 858
    , 859 (Tex. 1973); Childers v. A.S., 
    909 S.W.2d 282
    , 291 (Ct. App.-Ft. Worth 1995); but see Wheeler v.
    Yettie Kersting Memorial Hospital, 
    866 S.W.2d 32
    , 54 (Tex. App.-
    Houston 1993, no writ)(finding that the question of whether Texas
    law recognizes a claim of negligent invasion of privacy is still an
    open question).     Therefore, the only negligence claims available
    under Texas   law     are    for   negligent   supervision   and    hiring    of
    Papapetrou.
    This   circuit    has    held   that    where   liability   premised    on
    negligence is related to and interdependent of other tortious
    activities, the “ultimate issue” is whether the tortious activities
    themselves are encompassed by the “occurrence” definition.                   New
    York Life Ins. v. Traveler’s Ins. Co., 
    92 F.3d 336
    (5th Cir. 1996);
    Fiesta Mart, 
    Inc., 987 F.2d at 1128
    (citing Thornhill v. Houston
    Gen. Lloyds, 
    802 S.W.2d 127
    , 130 (Tex. App.-Fort Worth 1991-no
    writ); Centennial Ins. Co. v. Hartford Accident and Indemnity Co.,
    
    821 S.W.2d 192
    , 1994 (Tex. App.-Houston 1991, no writ); Fidelity
    13
    and Guaranty Ins. Underwriters, Inc. v. McManus, 
    633 S.W.2d 787
    ,
    790 (Tex. 1982)).       Gisentaner’s negligent hiring and supervision
    claims require proof of misconduct by Papapetrou.           See Canutillo
    Independent School District v. National Union Fire Ins. Co., 
    99 F.3d 695
    , 705 (5th Cir. 1996)(finding that negligent supervision
    claim would not exist without damage caused by sexual abuse).
    Therefore, our only inquiry is whether Papapetrou and Valsamis’
    acts are covered under the definition of “occurrence.”
    The district court cited Old Republic Ins. v. Comprehensive
    Health Care, 
    786 F. Supp. 629
    (N.D. Tex. 1992), affd. on other gds.,
    2 F.2d (5th Cir. 1993), for the proposition that intentional torts,
    such as sexual harassment, cannot be occurrences under Texas law.
    Old   Republic   held   that   intentional   or   willful   acts   are   not
    “occurrences” as that term is defined in insurance policies.             The
    specific language in Old Republic mirrored that of OMI’s policy
    here, stating that occurrences result in personal injuries neither
    expected nor intended from the standpoint of the insured.                Old
    
    Republic, 786 F. Supp. at 633
    .     The court in Old Republic noted that
    Texas courts had consistently excluded intentional torts from the
    definition of “occurrence” and found that the insured had not
    produced Texas precedent to call these decisions into question.
    In one of the cases cited by Old Republic, Argonaut Southwest
    Insurance Company v. Maupin, 
    500 S.W.2d 633
    , 636 (Tex. 1973), the
    Texas Supreme Court considered whether an intentional tort could be
    considered an occurrence under a comprehensive general liability
    policy.   The policy in Maupin defined an occurrence as “either (a)
    14
    an accident, or (b) in the absence of an accident, a condition for
    which the insured is responsible which during the policy period
    causes physical injury to or destruction of the property which was
    not intended.”   
    Maupin, 500 S.W.2d at 634
    n.1. The insured in
    Maupin purchased dirt from a man who occupied a parcel of land,
    mistakenly thinking that he owned the land.   The insured then went
    onto the land and removed the dirt.   The actual owners then sued
    the insured for trespass.    The court found that the resulting
    injury to the owners was not caused by an occurrence because the
    insured acted intentionally when he took the soil off the property,
    even though the resulting injury was unforeseen or unintended.
    Maupin has been interpreted by Texas courts to exclude intentional
    acts from the definition of occurrence without regard to whether
    the harm was expected or intended by the actor.   See, e.g., Pierce
    v. Benefit Trust Life Insurance Co., 
    784 S.W.2d 516
    , 518 (Ct. App.-
    Amarillo 1990)(finding that the insured’s hernia was not caused by
    an occurrence because, although it was unexpected and unintended,
    it resulted from the insured’s intentionally lifting a bag);
    Baldwin v. Aetna Casualty & Surety Co., 
    750 S.W.2d 919
    , 920 (Tex.
    App.-Amarillo 1988, error denied)(finding that the definition of
    occurrence excluded a trucking company’s claims for damage caused
    by their deliberately putting overweight trucks on the road);
    Southern Farm Bureau Casualty Ins. Co. v. Brock, 
    659 S.W.2d 165
    (Ct. App.-Amarillo 1983)(finding that damage to a truck that was
    rammed into a car in order to prevent the occupant of the car from
    15
    shooting someone was not caused by an occurrence because the truck
    driver meant to drive into the car).
    Gisentaner claims, however, that the Texas supreme court’s
    decision in State Farm Fire & Cas. Co. v. S.S., 
    858 S.W.2d 374
    (Tex. 1993) modifies the rule in Maupin to require specific intent
    to commit the harm for a claim to fall outside the definition of
    occurrence.     She reasons that an intentional act with unintended
    consequences       can   still     give    rise    to   liability      unexpected     or
    unintended from the standpoint of the insured.
    In    State     Farm,   the    supreme        court    considered      whether   an
    intentional injury exclusion precluded recovery for a woman who
    contracted herpes from her boyfriend.                      The court held that the
    transmission of herpes was not an intentional act, despite the
    intentional nature of the intercourse, because the boyfriend was
    asymptomatic and therefore the transmission was not a “natural
    result” of his intentional act.                  The court explained that Maupin
    stood for the proposition that damage is not accidental where the
    acts are voluntary and intentional and the injury was the natural
    result    of   the    act,   “even        though    the     injury    may   have   been
    unexpected, unforeseen and unintended.”                   State 
    Farm, 858 S.W.2d at 377
    n.2.
    Even if Texas law requires specific, instead of general,
    intent, we find that the harm in this case was not caused by an
    occurrence.     State Farm does not preclude a finding that intent to
    cause injury can be inferred as a matter of law.                     The Texas supreme
    court noted that the question of intent is highly fact specific and
    16
    that   an   actor   intends   to   injure   if   he   believes   that   the
    consequences of his acts are substantially certain to follow.
    State 
    Farm, 858 S.W.2d at 379
    .      In the present case, Gisentaner’s
    first amended complaint alleged that Papapetrou and Valsamis’
    conduct was “extreme and outrageous, undertaken for the purpose of
    causing     . . . severe emotional distress,” and was “calculated to
    and did produce . . . severe emotional distress.”           Her injuries
    were the natural result of Valsamis’ actions and were substantially
    certain to follow.
    IV.
    Gisentaner also alleges that the district court erred in
    failing to require the insurers involved in this case to post a
    bond with the court, as required by Tex. Ins. Code Ann. art. 1.36,
    § 11 (Vernon’s Supp. 1991). However, under that provision, a court
    has discretion to dispense with the deposit of a bond.            We find
    that the district court acted within its discretion by releasing
    Americas, Cornhill, and OMI from the bond requirement.
    CONCLUSION
    Because we find that Gisentaner’s claims did not raise a
    potential for coverage under the policies issued by Americas,
    Cornhill, and OMI, we AFFIRM the decision of the district court.
    17
    

Document Info

Docket Number: 95-20898

Filed Date: 6/2/1997

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (32)

New York Life Insurance v. Travelers Insurance , 92 F.3d 336 ( 1996 )

Columbia Mutual Insurance Company, Formerly Known as ... , 987 F.2d 1124 ( 1993 )

Canutillo Independent School District v. National Union ... , 99 F.3d 695 ( 1996 )

robert-r-shelton-cross-appellants-v-exxon-corporation-defendant-cross , 843 F.2d 212 ( 1988 )

Sandefer Oil & Gas, Inc., and Sohio Petroleum Co. v. Deanne ... , 871 F.2d 526 ( 1989 )

Laura Marie Rhodes v. Chicago Insurance Company, a Division ... , 719 F.2d 116 ( 1983 )

Cain v. Hearst Corp. , 878 S.W.2d 577 ( 1994 )

Wilton v. Seven Falls Co. , 115 S. Ct. 2137 ( 1995 )

Fidelity & Guaranty Insurance Underwriters, Inc. v. McManus , 633 S.W.2d 787 ( 1982 )

IND. FOUNDATION, ETC. v. Texas Ind. Acc. Bd. , 540 S.W.2d 668 ( 1976 )

Boyles v. Kerr , 855 S.W.2d 593 ( 1993 )

Brillhart v. Excess Insurance Co. of America , 62 S. Ct. 1173 ( 1942 )

State Farm Fire & Casualty Co. v. S.S. , 858 S.W.2d 374 ( 1993 )

67-fair-emplpraccas-bna-1319-66-empl-prac-dec-p-43448-western , 45 F.3d 85 ( 1995 )

Thornhill v. Houston General Lloyds , 802 S.W.2d 127 ( 1991 )

Randall's Food Markets, Inc. v. Johnson , 891 S.W.2d 640 ( 1995 )

Heyden Newport Chemical Corp. v. Southern General Insurance ... , 387 S.W.2d 22 ( 1965 )

Billings v. Atkinson , 489 S.W.2d 858 ( 1973 )

Sears, Roebuck & Co. v. Castillo , 693 S.W.2d 374 ( 1985 )

Argonaut Southwest Insurance Company v. Maupin , 500 S.W.2d 633 ( 1973 )

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