Cont'l Marble & Granite v. Canal Ins. Co., 785 F.2d 1258 (5th Cir. 1986). · Go Syfert
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Cont'l Marble & Granite v. Canal Ins. Co., 785 F.2d 1258 (5th Cir. 1986). Cases Citing This Book View Copy Cite
68 citation events (10 in the last 25 years) across 26 distinct courts.
Strongest positive: Canal Insurance Company v. Montello (ca10, 2015-11-27)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
cited Cited as authority (rule) Canal Insurance Company v. Montello
10th Cir. · 2015 · confidence medium
Co., 785 F.2d 1258, 1259 (5th Cir.1986). c.The Umbrella Clause An umbrella policy “provide[s] primary coverage for risks that the underlying policy does not cover.” Mid-Continent Cas.
cited Cited as authority (rule) Kline v. Gulf Insurance
6th Cir. · 2006 · confidence medium
Co., 785 F.2d 1258, 1259 (5th Cir.1986).
cited Cited as authority (rule) Garcia v. Rivera
D.P.R. · 1995 · confidence medium
Co., 785 F.2d 1258, 1259 (5th Cir.1986); cf., Harville v. Twin City Fire Ins.
discussed Cited as authority (rule) Louisiana Ins. Guar. Ass'n v. Interstate Fire & Casualty Co.
La. · 1994 · confidence medium
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 solvency of a primary carrier, would transform an excess policy into a suretyship agreement").
cited Cited as authority (rule) Harrow Products, Inc. v. Liberty Mutual Insurance
W.D. Mich. · 1993 · confidence medium
Co., 785 F.2d 1258, 1259 (5th Cir.1986).
cited Cited as authority (rule) Hendrix v. Fireman's Fund Insurance Co.
Ky. Ct. App. · 1991 · confidence medium
Co., 785 F.2d 1258, 1259 (5th Cir.1986).
discussed Cited as authority (rule) Revco D.S., Inc. v. Government Employees Insurance
N.D. Ohio · 1991 · confidence medium
Co., 785 F.2d 1258, 1259 (5th Cir.1986) (court stating that to impose drop down liability under the facts of the case “would, in effect, transmogrify the policy into one guaranteeing the solvency of whatever primary insurer the insured might choose”); Ware v. Carrom Health Care Products, Inc., 727 F.Supp. 300, 308-309 (N.D.Miss.1989) (court stating that underlying insurance is not “exhausted” by a request in a complaint that is beyond the amount of the primary coverage and excess insurer therefore had no duty to defend unless and until primary insurance exhausted).
discussed Cited as authority (rule) Emscor, Inc. v. Alliance Insurance Group
Tex. App. · 1991 · confidence medium
The insurance world is complex enough; to impose this additional burden on companies such as [the excess carrier] would only further our legal systems lamentable trend of complicating commercial relationships and transactions.” 885 F.2d at 279 (citing Continental Marble & Granite v. Canal Insurance Company, 785 F.2d 1258, 1259 (5th Cir.1986)).
discussed Cited as authority (rule) Clara Shapiro, Individually and in Her Capacity as Personal Representative of the Estate of Irving Shapiro, Deceased v. Associated International Insurance Company, a Foreign Corporation, the California Club, Inc., a Florida Corporation, Plaintiff/counter-Defendant-Appellant v. Associated International Insurance Company, a California Corporation, Defendant-Counter-Plaintiff-Appellee
11th Cir. · 1990 · confidence medium
Co., 785 F.2d 1258, 1259 (5th Cir.1986) ("Imposing the duty of indemnification on [the secondary insurer] would, in effect, transmogrify the policy into one guaranteeing the solvency of whatever primary insurer the insured might choose.").
discussed Cited as authority (rule) Shapiro v. Associated International Insurance
11th Cir. · 1990 · confidence medium
Co., 785 F.2d 1258, 1259 (5th Cir.1986) (“Imposing the duty of indemnification on [the secondary insurer] would, in effect, transmogrify the policy into one guaranteeing the solvency of whatever primary insurer the insured might choose.”).
cited Cited as authority (rule) Sifers v. General Marine Catering Co.
5th Cir. · 1990 · confidence medium
Id. at 1259 (emphasis added). .
cited Cited as authority (rule) Stanley R. Sifers v. General Marine Catering Company, Defendant-Third Party v. First State Insurance Co. And Louisiana Insurance Guaranty Association, Third Party
1st Cir. · 1990 · confidence medium
Co., 869 F.2d 862, 864 (5th Cir.1989) 68 785 F.2d 1258 (5th Cir.1986) 69 Id. at 1259 (emphasis added) 70 Id 71 See Gros v. Houston Fire & Casualty Ins.
discussed Cited as authority (rule) William Harville v. Twin City Fire Insurance Company
5th Cir. · 1989 · confidence medium
Here, even though the proceeds of the primary policy were uncollectible, the primary insurance was not "inapplicable." Continental, 785 F.2d 1258 3 See Continental, 785 F.2d 1258 at 1259 (quoting Whitehead v. Fleet Towing Co., 110 Ill.App.3d 759 , 66 Ill.Dec. 449, 453 , 442 N.E.2d 1362, 1366 (1982)) "Excess or secondary coverage is coverage whereby, under the terms of the policy, liability attaches only after a predetermined amount of primary coverage has been exhausted.
cited Cited as authority (rule) Northmeadow Tennis Club, Inc. v. Northeastern Fire Insurance
Mass. App. Ct. · 1988 · confidence medium
Co., 785 F.2d 1258, 1259 (5th Cir. 1986); Mission Natl.
cited Cited as authority (rule) Lechner v. Scharrer
Wis. Ct. App. · 1988 · confidence medium
Co., 785 F.2d 1258, 1259 (5th Cir. 1986).
cited Cited as authority (rule) TXO Production Corp. v. Twin City Fire Insurance
E.D. Tex. · 1988 · confidence medium
Co., 785 F.2d 1258, 1259 (5th Cir.1986) (citing Golden Isles Hosps., Inc. v. Continental Casualty Co., 327 So.2d 789, 790 (Fla.App.1976).
cited Cited as authority (rule) Werner Indus., Inc. v. First State Ins. Co.
N.J. Super. Ct. App. Div. · 1987 · confidence medium
Co., 785 F. 2d 1258, 1259 (5 Cir.1986); Molina v. United States Fire Ins.
discussed Cited as authority (rule) Gulezian v. Lincoln Insurance (2×)
Mass. · 1987 · confidence medium
Co., 785 F.2d 1258, 1259 (5th Cir.1986); Molina v. United States Fire Ins.
cited Cited as authority (rule) Zurich Insurance Company, Plaintiff-Counterdefendant-Appellee v. The Heil Company, Defendant-Counterplaintiff-Appellant
7th Cir. · 1987 · confidence medium
Co., 785 F.2d 1258, 1259 (5th Cir.1986).
cited Cited as authority (rule) Mission National Insurance Company v. Duke Transportation Company, Inc., Duke Transportation, Inc. v. Mission National Insurance Company
5th Cir. · 1986 · confidence medium
Continental Marble & Granite v. Canal Insurance Co., 785 F.2d 1258, 1259 (5th Cir.1986) (construing Louisiana law).
cited Cited "see" Harville v. Twin City Fire Insurance
5th Cir. · 1989 · signal: see · confidence high
See Continental, 785 F.2d 1258 at 1259 (quoting Whitehead v. Fleet Towing Co., 110 Ill.App.3d 759 , 66 Ill.Dec. 449, 453 , 442 N.E.2d 1362, 1366 (1982)).
discussed Cited "see, e.g." Highlands Insurance v. Gerber Products Co.
D. Maryland · 1988 · signal: see, e.g. · confidence low
See, e.g., Continental Marble & Granite v. Canal Insurance Co., 785 F.2d 1258 (5th Cir.1986); Radiator Specialty Co. v. First State Insurance Co., supra. An exception to this general rule exists only where an insurer has used language in its policy which creates a genuine ambiguity as to the scope of coverage.
Retrieving the full opinion text from the archive…
CONTINENTAL MARBLE & GRANITE, Plaintiff-Appellant,
v.
CANAL INSURANCE COMPANY, Defendant-Appellee
85-3701.
Court of Appeals for the Fifth Circuit.
Mar 28, 1986.
785 F.2d 1258
Irl R. Silverstein, Gretna, La., for plaintiff-appellant., Hugh M. Glenn, Jr., and Franklin H. Jones, III, New Orleans, La., for defendant-appellee.
Gee, Randall, Davis.
Cited by 48 opinions  |  Published
PER CURIAM:

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 676. Because the policy involved here contains no such phrase, Gros is unpersuasive.

We therefore look to the possible consequences of the rule Continental Marble propounds. Imposing the duty of indemnification on Canal would, in effect, transmogrify the policy into one guaranteeing the solvency of whatever primary insurer the insured might choose. See Golden Isles Hospitals, Inc. v. Continental Casualty Co., 327 So.2d 789, 790 (Fla.App.1976). An excess liability insurer obviously does not anticipate this heavy onus:

Excess or secondary coverage is coverage whereby, under the terms of the policy, liability attaches only after a predetermined amount of primary coverage has been exhausted. A second insurer thus greatly reduces his risk of loss. This reduced risk is reflected in the cost of the policy.

Whitehead v. Fleet Towing Co., 110 Ill.App.3d 759, 66 Ill.Dec. 449, 442 N.E.2d 1362, 1366 (1982). Continental Marble’s proposed rule would require insurance companies to scrutinize one another’s financial wellbeing before issuing secondary policies. The insurance world is complex enough; to impose this additional burden on companies such as Canal would only further our legal system’s lamentable trend of complicating commercial relationships and transactions. The district court’s judgment is therefore

AFFIRMED.