United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED October 6, 2023 No. 22-20473 Lyle W. Cayce ____________ Clerk

The Princeton Excess and Surplus Lines Insurance Company,

Plaintiff—Appellant,

versus

A.H.D. Houston, Incorporated, doing business as Centerfolds; D WG FM, Incorporated, doing business as Splendor; D. Texas Investments, Incorporated, doing business as Treasures; A.H.D. Houston, Incorporated, doing business as Treasures; W.L. York, Incorporated, doing business as Treasures; Jaime Middleton; Cora Skinner; Jamillette Gaxiola; Jennifer Xzharinova; Jessica Hinton; Lina Posada; Lucy Pinder; Paola Canas; Sandra Valencia; Tiffany Toth; Cielo Jean Gibson; Maysa Qui; Elizabeth Turner; Emily Sears; Gemma Lee Farrell; Jaclyn Swedberg,

Defendants—Appellees. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:20-CV-3680 ______________________________

ON PETITION FOR REHEARING AND REHEARING EN BANC Case: 22-20473 Document: 00516923654 Page: 2 Date Filed: 10/06/2023

No. 22-20473

Before Elrod, Ho, and Wilson, Circuit Judges. Cory T. Wilson, Circuit Judge: Because no member of the panel or judge in regular active service requested that the court be polled on rehearing en banc, see Fed. R. App. P. 35; 5th Cir. R. 35, the petition for rehearing en banc is DENIED. The petition for panel rehearing is GRANTED. Our prior panel opinion, 78 F.4th 815 (5th Cir. 2023), is WITHDRAWN, and the following opinion is SUBSTITUTED therefor: This is an insurance coverage dispute arising out of litigation in Texas state court. Two insurance policies are at issue, and the district court concluded that both provided the insureds coverage. But the district court improperly construed the policies to reach that conclusion, so we reverse, render in part, and remand the remaining issue with instructions for the district court to stay its disposition of that issue pending final resolution of the underlying state court lawsuit. I. A. This comparatively pedestrian contract dispute stems from a much more salacious lawsuit filed in Texas in 2017. Sixteen professional models (the Models) sued three Texas strip clubs known as Treasures, Centerfolds, and Splendor (the Clubs) following the Clubs’ use of the Models’ likeness for advertising campaigns without the Models’ consent.1 The Clubs’ advertising material was manipulated to give the impression that the Models endorsed the Clubs or worked as strippers in the Clubs. The Models “were

_____________________ 1 The Models asserted claims for invasion of privacy (misappropriation), respondeat superior negligence, and theft. The Models later dropped their theft claim.

2 Case: 22-20473 Document: 00516923654 Page: 3 Date Filed: 10/06/2023

No. 22-20473

depicted in various sexual