United States Fifth Circuit

In a dispute between primary and excess insurers arising out of a tort suit against a nursing home, summary judgment for defendants is affirmed where: 1) under state law the limits of insureds' consecutively-held primary insurance policies could not be "stacked" to create a higher primary policy limit and reduce plaintiff-excess insurer's obligation; 2) the anti-stacking rule also applied to defense costs under eroding policies; and 3) the defense costs could not be allocated based on whether they were incurred under the Commercial General Liability or the Hospital Professional Liability portions of the policies.

Appellate Information

• Decided 08/22/2008
• Published 08/25/2008

Judges

• HAYNES, Circuit Judge:, Before SMITH, WIENER and HAYNES, Circuit Judges.

Court

• United States Fifth Circuit

Counsel

• For Appellant:
  
• Philip D. Nizialek (argued), Rathwell & Nizialek, The Woodlands, TX, for Plaintiff-Appellant., Henry Sim Platts, Jr. (argued), Noel Terry Adams, Jr., Hilary Channing Borow, Jay W. Brown, Beirne, Maynard & Parsons, Houston, TX, for Royal Surplus Lines Ins. Co., Gary J. Siller (argued), Strasburger & Price, Houston, TX, for Evanston Ins. Co.