Continental Marble & Granite v. Canal Ins. Co., 85-3701
| Decision Date | 28 March 1986 |
| Docket Number | No. 85-3701,85-3701 |
| Parties | CONTINENTAL MARBLE & GRANITE, Plaintiff-Appellant, v. CANAL INSURANCE COMPANY, Defendant-Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Irl R. Silverstein, Gretna, La., for plaintiff-appellant.
Hugh M. Glenn, Jr., and Franklin H. Jones, III, New Orleans, La., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GEE, RANDALL and DAVIS, Circuit Judges.
The facts of the case are undisputed. Appellee Canal Insurance Company ("Canal") issued a policy of excess liability insurance to appellant Continental Marble & Granite Company, Inc. ("Continental Marble"). The Northwest Insurance Company was Continental Marble's primary insurer. During the lives of the policies, four lawsuits alleging personal injury and property damage were brought against Continental Marble in Texas state court. Unfortunately for Continental Marble, Northwest Insurance Company became insolvent in 1984. Continental Marble therefore brought this action in Louisiana state court, seeking a declaratory judgment that Canal must defend and indemnify it for any liability resulting from the Texas suits. After Canal removed the action, a federal district court entered summary judgment in Canal's favor. Continental Marble now appeals this judgment.
The dispute centers on the following awkward provision of Canal's policy to Continental Marble:
The company shall be liable only for ultimate net loss resulting from any one occurrence in excess of ... if the insurance afforded by such underlying insurance is inapplicable to the occurrence, the amount stated in the declarations as the retained limit.
Continental Marble asserts that Northwest Insurance's insolvency renders its coverage "inapplicable," i.e., unable to be applied. This being so, Continental Marble argues, the excess liability policy "drops down" to become the primary policy. Gros v. Houston Fire & Casualty Insurance Co., 195 So.2d 674 (La.App.1967), is cited as support for this contention, but Continental Marble's reliance on Gros is misplaced. While the court there held that the excess policy insurer must indemnify the insured in the place of the insolvent primary insurer, its ruling results from interpreting a policy provision absent here. Specifically, the appellee extended coverage for liability exceeding that covered by "other valid and collectable insurance." 195 So.2d at...
To continue reading
Request your trial
-
R.T. Vanderbilt Co. v. Hartford Accident & Indem. Co.
...clause in ways not material to the current dispute.100 Curiously, none of the parties refers us to Continental Marble & Granite Co. v. Canal Ins. Co., 785 F.2d 1258, 1259 (5th Cir. 1986), or to Caldwell Freight Lines, Inc. v. Lumbermens Mutual Casualty Co., 947 So.2d 948, 957 (Miss. 2007), ......
-
Dolly v. Old Republic Ins. Co.
...American Special Risk Ins. Co. v. A-Best Products, Inc., 975 F.Supp. 1019, 1022 (N.D.Ohio 1997) (quoting Continental Marble & Granite v. Canal Ins. Co., 785 F.2d 1258 (5th Cir.1986)). In the instant case, the predetermined amount after which liability coverage would attach (i.e., the "retai......
-
Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co.
...the policy into one guaranteeing the solvency of whatever primary insurer the insured might chose." Continental Marble & Granite v. Canal Ins. Co., 785 F.2d 1258, 1259 (5th Cir.1986); Lindsey, 579 So.2d at 1149-50 (noting that "impos[ing] a duty upon an excess insurer to guarantee the solve......
-
Canal Ins. Co. v. Montello, Inc.
...law) (same); Interco Inc. v. National Surety Corp., 900 F.2d 1264 (8th Cir. 1990) (Missouri law) (same); Continental Marble & Granite v. Canal Ins. Co., 785 F.2d 1258(5th Cir. 1986) (Louisiana law) (same); Mission National Ins. Co. v. Duke Transp. Co., Inc., 792 F.2d 550 (5th Cir. 1986) (Lo......
-
Chapter 14, G. The Drop-Down Requirement
...Playtex Inc. v. Columbia Casualty Co., et al., Del. Supr. 622 A.2d 1074 (1992).[380] Continental Marble & Granite Co. v. CanalIns. Co., 785 F.2d 1258, 1259 (5th Cir. 1986).[381] See Dexter Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., No. 3:95CV00702 (WWE), 1997 WL 289677 (D. Conn.......
-
CHAPTER § 5.05 Excess and Umbrella Coverage
...Gen. Ins. Corp. of N.Y. v. Great Am. Ins. Co., 979 F.2d 268, 271 (2d Cir. 1992).[148] Cont'l Marble & Granite v. Canal Ins. Co., 785 F.2d 1258, 1259 (5th Cir. 1986) (quoting Whitehead v. Fleet Towing Co., 442 N.E.2d 1362, 1366 (Ill. App. Ct. 1982)).[149] 22 Holmes & Rhodes, Appleman on Insu......