The opinion
UNITED STATES DISTRICT COURT April 04, 2023
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION
§
Atain Specialty Insurance §
Company, §
§
Plaintiff, § Case No. 4:21-cv-02122
§
v. §
§
Triple PG Sand Development, LLC, §
§
Defendant. §
MEMORANDUM AND RECOMMENDATION
Plaintiff Atain Specialty Insurance Company (“Atain”) filed a motion
requesting that this Court certify for interlocutory appeal its Order (Dkt. 37)
adopting the undersigned’s memorandum and recommendation (Dkt. 35) and
denying Atain’s motion for summary judgment. Dkt. 38. The Order held that
Atain “failed to establish the relevant exclusion provision bars coverage” so as
to negate Atain’s duty to defend Defendant Triple PG Sand Development, LLC
(“Triple PG”) in three pending state-court suits, and further abated this case
until those underlying suits are resolved. Dkt. 37.
Atain’s two-page motion for certification is devoid of any analysis. It
merely recites the basic requirements for certification, declaring in conclusory
fashion that the Order “meets all of the requisites of 28 U.S.C. § 1292(b).” Dkt.
38 at 1-2. This barebones request does not show that certification is warranted.
Section 1292(b) authorizes a district judge to certify an order for
interlocutory appeal when the order “involves [(1)] a controlling question of law
[(2)] as to which there is substantial ground for difference of opinion and ...
[(3)] an immediate appeal from the order may materially advance the ultimate
termination of the litigation.” 28 U.S.C. § 1292(b). Unless all three criteria
are satisfied, a court cannot certify an interlocutory appeal. Clark-Dietz &
Assocs. v. Basic Constr. Co., 702 F.2d 67, 68-69 (5th Cir. 1983).
“Section 1292(b) appeals are exceptional.” Id. at 69. As the first two
requirements indicate, “[t]here must be substantial ground for difference of
opinion over the controlling question of law for certification under § 1292(b).”
Solis v. Universal Project Mgmt., Inc., 2009 WL 2018260, at *3 (S.D. Tex. July
6, 2009) (quoting Ryan v. Flowserve Corp., 444 F. Supp. 2d 718, 723 (N.D. Tex.
2006)). The mere fact that “a court is the first to rule on a question or counsel
disagrees on applicable precedent does not qualify the issue as one over which
there is substantial disagreement.” Id. (quoting Ryan, 444 F. Supp. 2d at 723).
The Order applied “clearly established ... controlling Texas law that an
insurer owes its insured a duty to defend ‘if a plaintiff’s factual allegations
potentially support a covered claim.’” Endurance Am. Specialty Ins. Co. v.
Brown, Miclette & Britt, Inc., 2010 WL 816710, at *2 (S.D. Tex. Mar. 4, 2010)
(quoting Zurich Am. Ins. Co. v. Nokia, Inc., 268 S.W.3d 487, 490 (Tex. 2008)).
As that precedent dictated, this Court “resolve[d] all doubts regarding the duty
to defend in favor of the duty[,]” “construe[d] the pleadings liberally[,]” and
adhered to the principle that an insurer owes a duty to defend “[i]f a complaint
potentially includes a covered claim ....” Id. (quoting Zurich Am., 268 S.W.3d
at 491); Dkt. 35 at 8-9 (collecting authorities for same principle).
Atain’s mere disagreement with the Order fails to demonstrate a
“substantial ground for difference of opinion.” See 28 U.S.C. § 1292(b).
Adopting the memorandum and recommendation, Dkt. 37, the Court concluded
that the authorities cited by Atain did not establish a categorical rule that
Triple G’s discharged substances were “pollutants” per se, regardless of the
factual allegations in the underlying suits. Dkt. 35 at 10-14. Rather,
consistent with precedent, the Court adopted applied the established “eight
corners rule,” examining the plain language of the policy’s pollution exclusion
and compared them to the factual allegations in the underlying state-court
petitions. See Dkt. 35 at 9-25.
Atain’s prior reference to cases that reached a different result regarding
the duty to defend—and that were based on different pleadings—“does not call
the controlling law into question and does not provide a basis for certification
of an interlocutory appeal of this Court’s ruling.” Endurance Am. Specialty
Ins. Co., 2010 WL 816710, at *2 (denying motion to certify an order holding
that an insurer owed a duty to defend). Accordingly, Atain’s motion for
certification should be denied.
Recommendation
For the foregoing reasons, itis RECOMMENDED that Plaintiff Atain
Specialty Insurance Company’s request for certification under 28 U.S.C.
§ 1292(b) (Dkt. 38) be DENIED.
The parties have fourteen days from service of this Report and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b). Failure to file timely objections will preclude
appellate review of factual findings and legal conclusions, except for
plain error. Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825
(5th Cir. 2015).
Signed on April 4, 2023, at Houston, Texas.
WG.
YvonneY.Ho———
United States Magistrate Judge