Barden Mississippi Gaming Limited Liability Corp. v. Great Northern Insurance
638 F.3d 476
5th Cir.2011Background
- In June 2004, Mary Baier was injured on the premises of Barden's Tunica casino, leading to Baier v. Barden and Top Line.
- Barden was named as an additional insured on Top Line's Great Northern policy covering certain stools used in the casino.
- Great Northern refused to defend Baier, prompting Barden to sue for breach of contract and enforcement of the policy rights.
- In Barden I, we held Barden had a defense duty but indemnification attaches only if Top Line is 100% negligent; indemnity was premature.
- A jury later found Top Line 50% negligent, Barden 50% negligent, Baier 0% negligent, affecting indemnity eligibility.
- Barden then sought indemnification for the Baier judgment and fees in the declaratory action; the district court granted summary judgment for Great Northern and Top Line; the Fifth Circuit affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Indemnity attaches only if Top Line is 100% negligent. | Barden seeks indemnity under the policy. | Indemnity requires Top Line sole negligence; here not. | Indemnity not owed. |
| Attorneys' fees for the declaratory action are recoverable. | Veasley-type exception may allow fees. | American Rule; no statutory/contractual basis. | No attorneys' fees awarded. |
Key Cases Cited
- Barden Miss. Gaming LLC v. Great Northern Ins. Co., 576 F.3d 235 (5th Cir. 2009) (duty to defend, indemnity contingent on Top Line's sole negligence; indemnity premature before trial)
- Progressive Gulf Ins. Co. v. Dickerson & Bowen, Inc., 965 So.2d 1050 (Miss. 2007) (plain and unambiguous policy language governs coverage)
- Ingalls Shipbuilding v. Federal Ins. Co., 410 F.3d 214 (5th Cir. 2005) (American Rule: fees absent contract/statute)
- Liberty Mutual Fire Ins. Co. v. Canal Ins., 177 F.3d 326 (5th Cir. 1999) (good faith by insurer limits liability beyond policy if acted in good faith)
- Stratford Ins. Co. v. Cooley, 985 F. Supp. 665 (S.D. Miss. 1996) (Veasley cited regarding fee recovery where no bad faith)
- Universal Life Ins. Co. v. Veasley, 610 So.2d 290 (Miss. 1992) (attorneys' fees may be recoverable as damages in limited circumstances)