Anco Insulations, Inc. v. National Union Fire Insurance, 2015 U.S. App. LEXIS 2973

Background

Anco sold asbestos-containing insulation in the 1970s–1980s and was later sued in ~2,700 asbestos bodily-injury actions.
National Union issued a primary general liability policy to Anco for 1/1/1987–1/1/1988 (the Policy); it had no asbestos exclusion.
Anco did not discover the Policy until litigation; it first forwarded all served suits under that Policy on April 23, 2009 (per Anco’s interrogatory responses).
National Union moved for partial summary judgment, arguing it need not reimburse Anco for defense costs because Anco failed to give the Policy’s required “immediate” notice.
The district court granted National Union’s motions: (1) Anco’s untimely tender (first under the Policy in 2009) relieved National Union of defense/reimbursement obligations for suits filed 1987–2008 and related costs; (2) Anco could not recover statutory penalties under La. Rev. Stat. §§ 22:1892, 22:1973 because it failed to show recoverable damages or statutory violations as pleaded.
The Fifth Circuit affirmed, holding (a) no genuine factual dispute that first tender under the Policy occurred in 2009, (b) Anco’s untimely notice was not excused, and (c) statutory penalties under §22:1892 require proof of actual loss under these circumstances.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a genuine dispute exists about when Anco first tendered claims under the Policy	Anco: witness testimony and correspondence show earlier tenders/coverage communications create triable issues	National Union: documentary record and interrogatory responses show first tender under this Policy was April 23, 2009	Held for National Union — April 23, 2009 is the first tender under the Policy; Anco’s proffered evidence did not raise a material fact dispute
Whether Anco’s untimely tender should be excused (e.g., insurer misrepresentation or duty to search policies)	Anco: National Union misled or should have searched its files upon earlier tenders, so late notice should be excused	National Union: no misrepresentation shown; insurer not obliged to search absent different facts	Held for National Union — no evidence of misrepresentation or legal duty to search; excusal denied
Effect of breach of policy notice clause: must insurer show prejudice to deny coverage?	Anco: insurer must show prejudice from late notice before avoiding coverage	National Union: Policy makes notice an express condition precedent; no prejudice showing required	Held for National Union — policy’s “immediate” notice and condition-precedent language permits denial without showing prejudice under Louisiana law
Whether Anco may recover statutory penalties under La. R.S. §22:1892 without proving actual damages	Anco: penalties are available without showing actual loss (relies on Oubre and related authority)	National Union: §22:1892 penalties are tied to actual loss; Anco produced no evidence of actual damages	Held for National Union — under §22:1892(B)(1) Anco needed to show actual loss to recover the mandatory penalty; Oubre is inapposite

Key Cases Cited

Lamar Adver. Co. v. Cont’l Cas. Co., 396 F.3d 654 (5th Cir. 2005) (applies Louisiana contract/insurance interpretation rules)
MGIC Indem. Corp. v. Central Bank of Monroe, La., 838 F.2d 1382 (5th Cir. 1988) (timely-notice as condition precedent relieves insurer of obligation without showing prejudice)
Hallman v. Marquette Cas. Co., 149 So.2d 131 (La. Ct. App. 1963) (policy language requiring immediate forwarding of process enforced as condition precedent)
Oubre v. Louisiana Citizens Fair Plan, 79 So.3d 987 (La. 2011) (interpreting penalties under §22:1973; distinguished here)
Vaughn v. Franklin, 785 So.2d 79 (La. Ct. App. 2001) (insured cannot recover §22:1892 penalties absent harm from co-insurer’s failure to participate)
Sultana Corp. v. Jewelers Mut. Ins. Co., 860 So.2d 1112 (La. 2003) (discusses differences between §22:1892 and §22:1973 penalty frameworks)