Mid-Continent Casualty Company v. Petroleum Solutions, Inc.

Filing 200

MEMORANDUM AND ORDER DENIED in all respects 193 MOTION for New Trial (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
July 12, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

MID-CONTINENT CASUALTY CO.
v.
PETROLEUM SOLUTIONS, INC.

§
§
§
§
§

David J. Bradley, Clerk

CIVIL ACTION NO. 4:09-0422

MEMORANDUM AND ORDER ON RENEWED MOTION FOR
JUDGMENT AS A MATTER OF LAW AND MOTION FOR NEW TRIAL
Pending before the Court in this insurance coverage case is Plaintiff MidContinent Casualty Company’s (“Mid-Continent”) “Renewed Motion for
Judgment as a Matter of Law and Motion for New Trial” [Doc. # 193]
(collectively, the “Motion”), in which Mid-Continent requests the Court withdraw
the Final Judgment signed March 29, 2017 [Doc. # 190] and alter the reasoning in
the Memorandum and Order on Entry of Final Judgment [Doc. # 189].
Defendant/Counter-Plaintiff Petroleum Solutions, Inc. (“PSI”) opposes the Motion
on numerous grounds. See PSI Response [Doc. # 195]. The Motion is ripe for
decision. Having carefully considered the parties’ arguments, the entire record in
this case, and the applicable law, the Court denies Mid-Continent’s Motion.
I.

BACKGROUND

This declaratory judgment action was originally filed by Mid-Continent in
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2009, after an adverse verdict was rendered against PSI in state court. MidContinent seeks a declaration regarding the non-existence or scope of indemnity
due to PSI, the insured under a commercial general liability policy issued by MidContinent for the period May 1, 2001 to May 1, 2002 (the “Policy”). Because of
pendency of state court appeals, the Court stayed and administratively closed this
case. The Court reactivated the case by agreement in 2015.
The parties have disputed many issues throughout this case. The Court has
made extensive written rulings,1 which are incorporated by reference. The Court
assumes the reader’s familiarity with all prior proceedings in this case, and
describes in this Memorandum only factual and procedural matters necessary to an
understanding of the matters raised in Mid-Continent’s Motion.
The Court ruled as a matter of law on most of the questions raised by the
parties in cross-motions for summary judgment,2 but held that there were certain
1

2

See, e.g., Memorandum and Order, 2016 WL 4061147 (S.D. Tex. July 29, 2016)
(“Orig. M&O”) [Doc. # 93]; Amended Memorandum and Order (“Amended M&O”),
2016 WL 5539895 (S.D. Tex. Sept. 29, 2016) [Doc. # 109]. The Court refers to the
page numbers of the Amended M&O as they appear in the opinion filed in the Court’s
docket. See infra nn. 2, 3.
See Amended M&O [Doc. # 109]; see also factual summaries of the underlying state
court litigation (“State Court Litigation”) in the Memorandum and Order dated
December 30, 2016 (“Dec. 2016 M&O”) [Doc. # 154] (addressing the application of
Hollybrook Cottonseed Processing, L.L.C. v. American Guarantee & Liability
Insurance Co., 772 F.3d 1031 (5th Cir. 2014), and analyzing whether collateral
estoppel prevented Mid-Continent from contesting an issue of coverage under the
Policy), and Memorandum and Order on Entry of Final Judgment (“M&O on Final

2
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triable questions of fact. Two of those were decided in a three-day jury trial held
in January, 2017.3
Mid-Continent raises four issues in the Motion:4 (1) whether there is legally
and factually sufficient evidence that Mid-Continent waived its right to rely upon a
condition precedent in the Policy that PSI cooperate in the investigation and
settlement of claims against it (the “cooperation clause”)5 when, during pretrial
proceedings in the underlying Hidalgo County, Texas, products liability suit filed
by Bill Head for damage to his real property (“State Court Litigation”), PSI refused
to dismiss with prejudice its affirmative claim for indemnity against third-party
defendant Titeflex Corporation (“Titeflex”) at the time Titeflex offered to dismiss

3

Jmt”) [Doc. # 189].

4

See Orig. M&O [Doc. # 93]; Amended M&O [Doc. # 109]; Memorandum and Order
on Waiver of Enforcement and Applicable Standard for Breach of the Duty to
Cooperate (“M&O on Waiver & Coop.”) [Doc. # 141]; Dec. 2016 M&O [Doc.
# 154]; Memorandum and Order on Motion for Implied Amendment [Doc. # 173];
M&O on Final Jmt [Doc. # 189].

5

See Mid-Continent Motion [Doc. # 193], at 1.
The “cooperation clause” in the Policy states in pertinent part:
c.

You and any other involved insured must:
* * * *
(3)
Cooperate with us in the investigation or settlement of the
claim or defense against the ‘suit’[.]

Mid-Continent Policy No. 04-GL-00051591 [Doc. # 63-2], at CGL Form page 9 (ECF
page 22), § IV(2)(c)(3).

3
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with prejudice its own claim for attorneys’ fees and expenses against PSI;6 (2)
whether Mid-Continent waived the right to a court or jury determination of the
amount of fees, expenses, and costs (collectively, “fees”) that were covered under
the Policy in light of Mid-Continent’s stipulation and other submissions (or lack
thereof) in the parties’ Joint Pretrial Order (“PTO”) [Doc. # 126];7 (3) the Court’s
instructions to the jury on the legal definitions of “cooperation” and “waiver”;8 and
(4) whether the jury’s answers at trial were against the great weight and
preponderance of the evidence.9

6

7

See Amended M&O [Doc. # 109], at 30; M&O on Waiver & Coop. [Doc. # 141], at
7. See infra Sections II.B, III.B.1, & III.B.2.

8

See, e.g., Dec. 2016 M&O [Doc. # 154]; M&O on Final Jmt [Doc. # 189]. See infra
Section II.C.

9

See Verdict Form [Doc. # 169], at 2-3. See infra Section III.B.
See infra Section III.C.

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II.

JUDGMENT AS A MATTER OF LAW
At trial on the coverage and waiver issues, Mid-Continent moved pursuant

to Federal Rule of Civil Procedure 50(a) for judgment as a matter of law on PSI’s
failure to present evidence of damages.10 The Court orally denied the motion.11
Mid-Continent now seeks judgment as a matter of law, contending there is: (1) no
evidence it waived its right to rely upon the Policy’s cooperation clause and (2) no
evidence segregating the amount of Titeflex’s attorneys’ fees between fees covered
and not covered as damages under the Policy.
Mid-Continent rehashes old arguments. The Court addressed these matters
in multiple written rulings and orally on the record in connection with trial. The
Court accordingly addresses these issues only briefly after setting forth the
applicable legal standard.

10

11

See Hearing Minutes and Order [Doc. # 164], Jan. 6, 2017; Mid-Continent Response
to PSI Motion for Entry of Final Judgment [Doc. # 187], at 5.
Hearing Minutes and Order [Doc. # 164], Jan. 6, 2017.

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A.

Legal Standard for Judgment as a Matter of Law
Under Federal Rule of Civil Procedure 50, a motion for judgment as

a matter of law may be granted if a trial court finds that a “reasonable jury would
not have a legally sufficient evidentiary basis to find for the party on that issue[.]”
FED. R. CIV. P. 50(a). A motion for judgment as a matter of law “is properly
granted if the facts and inferences point so strongly and overwhelmingly in favor
of the moving party that reasonable jurors could not have arrived at a contrary
verdict.” See Homoki v. Conversion Servs., Inc., 717 F.3d 388, 395 (5th Cir. 2013)
(citing Poliner v. Tex. Health Sys., 537 F.3d 368, 376 (5th Cir. 2008)).

In

evaluating such a motion, “‘the court must review all of the evidence in the record,
draw all reasonable inferences in favor of the nonmoving party, and may not make
credibility determinations or weigh the evidence.’” See Poliner, 537 F.3d at 376
(quoting Ellis v. Weasler Eng’g, Inc., 258 F.3d 326, 337 (5th Cir. 2001)).
If a court denies a motion for judgment as a matter of law following the
close of evidence, the party may renew its motion within twenty-eight days of the
entry of judgment. FED. R. CIV. P. 50(b).

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B.

Mid-Continent’s Waiver
Cooperation Clause

of

Right

to

Enforce

the

Policy’s

Mid-Continent argues that is entitled to judgment as a matter of law because
there is insufficient evidence from which the jury could reasonably conclude MidContinent waived its right to enforce the Policy’s cooperation clause. In support,
Mid-Continent points to its reservation of rights letters sent to PSI during the State
Court Litigation. Mid-Continent’s arguments are unavailing.
As an initial matter, it is noted that the jury found that PSI complied with the
Policy’s cooperation clause with respect to the Titeflex offer proposed in 2008.
See Verdict Form [Doc. # 169], Question 1, at 2; see also infra Section III. Thus,
the issue of whether Mid-Continent waived its right under the Policy to enforce the
cooperation clause is moot. The Court addresses this waiver issue in an abundance
of caution, however, in the event Mid-Continent prevails on its position that the
Court erred in its instruction to the jury on the standard for cooperation.
As discussed in the Court’s Memorandum and Order on Waiver of
Enforcement and Applicable Standard for Breach of the Duty to Cooperate [Doc.
# 141], the Court ultimately concluded, contrary to Mid-Continent’s arguments,
that there was a fact issue regarding Mid-Continent’s potential waiver of
enforcement of the cooperation clause.12

Additionally, as detailed below in

12

See Addicks Svs., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 298 (5th Cir. 2010)
(quoting Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003) (per curiam)); id. at

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connection with the propriety of the Court’s jury charge, see infra Section III.B.2,
PSI presented evidence at trial sufficient to legally support a finding that MidContinent waived its right to enforce the cooperation clause. For example, but
without limitation, Mid-Continent did not reference PSI’s failure to accept
Titeflex’s pretrial settlement demand when citing the cooperation clause in
reservation of rights letters prior to or reasonably after trial in the State Court
Litigation.

PSI also presented testimony of Mid-Continent’s representative

acknowledging it would have been appropriate to specify the settlement issue in
these letters.

There also was clear evidence that Mid-Continent was closely

involved in key strategy decisions by PSI’s trial and appellate counsel (each of
which were chosen by Mid-Continent) in the State Court Litigation.
The Court concludes, based upon the evidence presented at trial, that there
was sufficient evidence to support the jury’s determination that Mid-Continent had,
in fact, impliedly waived the right to refuse enforcement of the Policy based on the
cooperation clause in connection with PSI’s refusal to abandon its affirmative
claim against Titeflex. Mid-Continent’s argument to the contrary is rejected.13
299 (“Waiver is ordinarily a question of fact.”).
13

Mid-Continent also argues that, even if evidence supported the position that MidContinent waived its right to rely upon the Policy’s cooperation clause, the waiver
doctrine cannot expand an insurance policy’s coverage. It is not necessary to reach
this issue because the jury determined that PSI satisfied its cooperation obligation.

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C.

Mid-Continent’s Waiver of Jury Trial and Additional Rulings on
Segregation of Damages Issue
The Court held the Policy required indemnity for fees PSI was required to

pay to Titeflex under subsection (a) of Texas Civil Practice and Remedies Code
§ 82.002 (“§ 82.002”), the amount Titeflex incurred in defense of Bill Head’s
claim in the State Court Litigation,14 but not damages for Titeflex’s fees paid by
PSI under § 82.002(g) that Titeflex incurred in prosecuting its claim for indemnity
against PSI.15 The State Court Litigation did not result in a finding that segregated
Titeflex’s fees attributable to § 82.002(a) from fees arising from § 82.002(g).16
The Court instructed the parties to brief the impact of this circumstance. Instead,
on November 30, 2016, the parties submitted their Joint PTO in which they stated:
14

15

Section 82.002(a) provides: “A manufacturer shall indemnify and hold harmless a
seller against loss arising out of a products liability action except for [circumstances
not here relevant].” See also Dec. 2016 M&O [Doc. # 154], at 6 n.8. “Products
liability action” is defined in Section 82.001(b) to “mean[] any action against a
manufacturer or seller for recovery of damages arising out of personal injury, death,
or property damage allegedly caused by a defective product whether the action is
based in strict tort liability, strict products liability, negligence, misrepresentation,
breach of express or implied warranty, or any other theory or combination of
theories.”

16

Section 82.002(g) provides: “A seller is entitled to recover from the manufacturer
court costs and other reasonable expenses, reasonable attorney fees, and any
reasonable damages incurred by the seller to enforce the seller’s right to
indemnification under this section.”
See, e.g., Amended M&O [Doc. # 109], at 22-24; Dec. 2016 M&O [Doc. # 154], at
21-22.

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31.

The Parties have stipulated to damages as follows:

a. If the Court determines collateral estoppel does not apply, and PSI
only gets the period that Judge Atlas identified in the Amended
Opinion and Order, the Parties have agreed that the damages are
$136,499.97 plus $51,104.40 in post-judgment interest, for a total
recovery of $187,604.17.
b. Alternatively, if the Court determines collateral estoppel applies,
the parties have agreed that the damages are $278,545.36 plus
$104,285.11 in post-judgment interest, for a total recovery of
$382,830.47.
c. These are exclusive of attorneys’ fees in this case, and any prejudgment interest that would apply to the present claim.17
Mid-Continent contends that this stipulation did not relieve PSI of the
burden of producing evidence segregating damages between fees the Court held
were covered under the Policy and fees held not to be covered. Mid-Continent

17

Joint Pretrial Order [Doc. # 126], at 6-7 (emphasis added).
Mid-Continent points to a joint statement by the parties filed October 17, 2016,
advising the Court, in pertinent part, as follows:
The parties will agree to stipulate to the amount of Titeflex’s attorney’s fees,
and applicable post-judgment interest, for the period when Titeflex was
defending Head’s claim and, if Collateral Estoppel applies, for the period
when PSI’s claim was pending against Titeflex. These stipulations will negate
any jury issue regarding damages (other than attorneys’ fees for the prevailing
party).
See Report to the Court [Doc. # 112], at 2.
This statement, if inconsistent with the parties’ November 30 detailed stipulation in
the Joint PTO, was superseded by the agreement in the Joint PTO.

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asserts it therefore is entitled to judgment as a matter of law that PSI failed to prove
any damages.
This contention is unpersuasive for reasons detailed in the Court’s post-trial
Memorandum and Order on Entry of Final Judgment [Doc. # 189].18 In summary,
in the Joint PTO, Mid-Continent did not reserve for future factual or legal decision
any fee segregation issue. Nor did Mid-Continent state at Docket Call or at a later
final pretrial hearing on additional evidentiary trial matters that there remained any
question for resolution on a damages issue. Nor did Mid-Continent submit any
proposed jury issue or instructions to the jury on damages or any segregation of
fees issues. As a result, the Court rejected Mid-Continent’s attempt, on January 3,
2017, at an “emergency hearing” the day before jury selection and trial, to
contravene the plain meaning of the parties’ stipulation in the Joint PTO that they
had stipulated to the amount of PSI’s “damages.”19 The Court again rejects MidContinent’s argument. Mid-Continent is not permitted to reduce PSI’s recovery
from the stipulated amount. There was no triable issue regarding the amount of
damages or segregation of fees. Mid-Continent’s Motion for Judgment as a Matter
18

19

M&O on Final Jmt [Doc. # 189], at 12-14.
See Hearing Transcript, Jan. 3, 2017 [Doc. # 185], at 8-12; see also Mid-Continent
Motion [Doc. # 193], at 5; Mid-Continent Response to PSI Motion for Entry of Final
Judgment [Doc. # 187], at 5.

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of Law on the segregation issue is denied.
I.

NEW TRIAL
Mid-Continent argues it is entitled to a new trial because: (1) the Court’s

jury charge erroneously instructed the jury on the legal definitions of “cooperation”
and “waiver,” and (2) the jury’s answers at trial that PSI cooperated with MidContinent and that Mid-Continent waived its right to rely on the cooperation clause
are against the great weight and preponderance of the evidence.
The duty to cooperate and waiver issues were tried to a jury January 4
through 6, 2017. The jury was asked to answer the following questions, both of
which it answered in favor of PSI:
Question 1: Do you find that PSI has proved by a preponderance of
the evidence that it complied with the Policy’s cooperation clause
with respect to the Titeflex offer proposed in 2008?
Question 2: Did PSI prove by a preponderance of the evidence that
Mid-Continent waived its right to enforce the Policy’s cooperation
clause?20
The Court sets forth the applicable legal standards and then addresses the
substantive issues pressed by Mid-Continent.

20

Verdict Form [Doc. # 169], at 2-3.

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II.

A.

Legal Standard for New Trial

“Federal Rule of Civil Procedure 59 authorizes district courts to, inter alia,
‘grant a new trial on all or some of the issues . . . for any reason for which a new
trial has heretofore been granted in an action at law in federal court . . . .’” Sierra
v. Dorel Juvenile Grp., 663 F. App’x 307, 309 (5th Cir. 2016) (per curiam)
(unpublished) (quoting Federal Rule of Civil Procedure 59(a)(1)).

“‘A new

trial may be granted, for example, if the district court finds the verdict is against
the weight of the evidence, the damages awarded are excessive, the trial was
unfair, or prejudicial error was committed in its course.’” Beckham v. La. Dock
Co., L.L.C., 124 F. App’x. 268, 270 (5th Cir. 2005) (per curiam)
(unpublished) (quoting Smith v. Transworld Drilling Co., 773 F.2d 610, 612 (5th
Cir. 1985)). “Under this Circuit’s precedents, ‘[a] trial court should not grant a
new trial on evidentiary grounds unless the verdict is against the great weight of
the evidence.’” Sierra, 663 F. App’x at 309 (quoting Whitehead v. Food Max of
Miss., Inc., 163 F.3d 265, 269 (5th Cir. 1998)).
A.

Analysis of the Jury Charge

The Fifth Circuit has noted the following three requirements that must be
met to successfully challenge a jury instruction:
First, the challenger must demonstrate that the charge as a whole
creates “substantial and ineradicable doubt whether the jury has been
properly guided in its deliberations.” Second, even if the jury
instructions were erroneous, we will not reverse if we determine,
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based upon the entire record, that the challenged instruction could not
have affected the outcome of the case. Third, the appellant must show
that any proposed instruction it contends should have been given was
offered to the district court and correctly stated the law.
Int’l Ins. Co. v. RSR Corp., 426 F.3d 281, 290-91 (5th Cir. 2005) (internal citations
omitted).
1.

Whether the Court Gave the Correct Instruction on the Definition of
“Cooperation”
Mid-Continent argues that it is entitled to a new trial because the Court

erroneously charged the jury on the meaning of the cooperation clause in the
Policy. Specifically, Mid-Continent contends that the Court’s instruction that “PSI
complied with the cooperation clause if PSI’s conduct was reasonable and justified
under all the circumstances that existed[,]” see Jury Verdict [Doc. # 169], at 2,
improperly defined “cooperate,” thereby casting doubt on whether the jury was
properly guided in its deliberations. Mid-Continent’s objection lacks merit.
Mid-Continent asserts that the Court should have directed the jury to use
“the plain meaning of the wording of the cooperation clause.”21 The only proposed
instruction Mid-Continent offered in the Joint PTO regarding the definition of
“cooperate” is as follows:
“Cooperate” means to be helpful by doing what someone asks or tells
you to do.22
21

22

See Motion [Doc. # 193], at 8.

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There is no basis in the Policy language for this proposed instruction. Nor does it
correctly state the law. See Int’l Ins. Co. v. RSR Corp., 426 F.3d 281, 290-91 (5th
Cir. 2005) (noting third requirement to successfully challenge a jury instruction is
that a proposed instruction a party contends should have been given “was offered
to the district court and correctly stated the law.”).
The Court, in its Amended Memorandum and Order [Doc. # 109] and at
trial, applied the longstanding test articulated in Texas law for “cooperation” in the
insurance policy context, as articulated in Frazier v. Glens Falls Indem. Co., 278
S.W.2d 388, 391-92 (Tex. Civ. App.—Fort Worth 1955, writ ref’d n.r.e.).23 In
Frazier, the Texas court described the insured’s conduct as “reasonable and
justified under the circumstances[.]” Id. at 392. This Court also relied on the
established principle that “[a]n insured cannot arbitrarily or unreasonably decline
to assist in making a fair and legitimate defense or refuse to permit any defense to
be made in his or her name.” See 14 COUCH

ON INS.

§ 199:50 (introductory

sentence in section entitled “Generally”); see also Comment b, RESTATEMENT OF
THE

LAW

OF

LIABILITY INS., Tent. Draft No. 1, § 29 (“The Insured’s Duty to

Cooperate” in Chapter 2. “Management of Potentially Insured Liability Claims”),

23

Mid-Continent’s Disputed Proposed Definition No. 2, Joint Proposed Jury
Instructions, Exh. H to the Joint PTO [Doc. # 126-8], at 22.
See Amended M&O [Doc. # 109], at 34; M&O on Waiver and Coop. [Doc. # 141],
at 10-12.

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dated Mar. 21, 2016 (approved by the ALI membership at the 2016 Annual
Meeting “[s]ubject to the Meeting’s discussion and the usual editorial prerogative
…).”24 The Court’s instruction to the jury on the standard for cooperation in a
Texas insurance policy is supported by the law and was not prejudicial to MidContinent.

24

Comment b provides:
b. Reasonable assistance. They duty to cooperate should take into account
the position of the particular insured whose conduct is at issue, as well as the
needs of the insurer. What is reasonable depends on, among other things, the
knowledge and experience of the insured, the extent of the risks presented by
the legal action, the complexity of the action, the ability of the insurer to obtain
the information or other object of cooperation from sources other than the
insured, the good-faith effort of the insured, and the extent to which
cooperation is needed to reduce the insurer’s exposure.
Restatement of the Law of Liability Ins., Tent. Draft No. 1, § 29. Additionally, the
Reporter’s Note b. states that “[c]ourts have consistently subjected the duty to
cooperate to a reasonableness test.” Id.
At the 2017 ALI Annual Meeting on May 23, 2017, ALI announced that rather than
hold a final vote on the proposed draft of the Restatement of Law of Liability
Insurance as scheduled, the draft’s Reporters agreed that another year of work was
needed on the project generally. The proposed final draft is expected to be presented
at the 2018 ALI Annual Meeting.

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2.

Waiver by Mid-Continent of Reliance on Cooperation Clause
Mid-Continent also argues that the Court improperly instructed the jury on

the second special issue, that is, whether Mid-Continent waived its right to enforce
the cooperation clause against PSI.

Mid-Continent argues that the Court

incorrectly included in the jury instructions the phrase that “silence or inaction, for
so long a period as to show an intention to yield the known right, is also enough to
prove waiver.” See Verdict Form [Doc. # 169], at 3. Mid-Continent asserts there
was no evidence Mid-Continent stood silent with respect to PSI’s duty to
cooperate. Motion [Doc. # 193], at 10.
The Court concludes that there was sufficient evidence in the record to
support the instructions as delivered. First, the language in the pretrial and preappeal reservation of rights letters in regard to the cooperation clause referred
specifically to “investigation and defense” of the claim or suit, but not to
“settlement.”25 Despite receiving inquiries on coverage issues from PSI’s private
counsel, Mid-Continent did not cite Titeflex matters as a cooperation clause
coverage concern in any communications to PSI or its private counsel until 2014,
25

See PSI’s Response [Doc. # 195], at 3-7, 14; PSI Trial Exh. 17, at 0023 [Doc. # 17417]; PSI Trial Exh. 32, at 0033 [Doc. # 174-28]; PSI Trial Exh. 40, at 0040 [Doc.
# 174-36]. The duty to cooperate was mentioned only in passing in all but one
reservation of rights letter sent by Mid-Continent, and was mentioned deep into a long
paragraph near the bottom of the sixth of seven pages in the letters. Mid-Continent
simply stated it might rely on the cooperation clause, among other options.

17
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approximately six years after the events in issue, the Titeflex settlement offer and
the State Court verdict, and after most of the complex appeals had been
completed.26 PSI also presented testimony at trial of Mid-Continent representative
Rod Evans in support of PSI’s position that it would have been appropriate for
Mid-Continent to inform PSI of PSI’s alleged violation of the cooperation clause in
letters delivered after the supposed violation.
Indeed, Mid-Continent’s arguments concerning whether its inaction or
silence invoked a waiver go to the weight of the evidence, a province for the jury.
A review of the trial record establishes that there was evidence sufficient to support
the “silence” instruction. The instruction was warranted.
Finally, even if the single sentence in the instructions was error, the
instructions as a whole were correct and deference to the jury’s verdict is
warranted. The trial was not unfair and no prejudicial error was committed in its
course. See Smith, 773 F.2d at 612; Beckham, 124 F. App’x at 270.

26

Mid-Continent did refer to PSI’s conduct regarding the Titeflex settlement offer as a
concern in connection with the requirement that coverage extends only to damages
because of “property damage” caused by an “occurrence” as defined in the Policy.
See PSI Trial Exh. 46 [Doc. # 174-41], Letter from Rod Evans to PSI Attn: Mark
Barron, dated Sept. 19, 2008.

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A.

Weight of the Evidence
Mid-Continent also argues it is entitled to a new trial because, it contends,

the jury’s findings that Mid-Continent waived its right to rely upon the cooperation
clause and that PSI cooperated with Mid-Continent are against the great weight and
preponderance of the evidence.

For reasons explained above, and based on the

trial record, the Court finds that the ample testimony and exhibits presented to the
jury were sufficient to support the jury’s verdict on both questions and the jury’s
findings were not against the great weight of evidence. See Whitehead, 163 F.3d at
269; Sierra, 663 F. App’x at 309.
I.

CONCLUSION AND ORDER

For the foregoing reasons, Plaintiff Mid-Continent Casualty Company’s
“Renewed Motion for Judgment as a Matter of Law and Motion for New Trial”
[Doc. # 193] is DENIED in all respects.
SIGNED at Houston, Texas, this 12th day of July, 2017.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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