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

FILED March 4, 2021 No. 19-20779 Lyle W. Cayce Clerk

American Guarantee and Liability Insurance Company,

Plaintiff—Appellee,

versus

ACE American Insurance Company,

Defendant—Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18-CV-382

Before Jolly, Jones, and Willett, Circuit Judges. Edith H. Jones, Circuit Judge: Mark Braswell died after his road bike collided with a stopped truck. His survivors (the Braswells) sued the truck’s owner, the Brickman Group Ltd., LLC. Brickman was primarily insured by ACE and secondarily insured by AGLIC. ACE rejected three Braswell settlement offers before and during trial, and the jury awarded the Braswells nearly $28 million. The Braswells and Brickman eventually settled for nearly $10 million, of which AGLIC, the excess carrier, paid nearly $8 million. AGLIC sued ACE, arguing that Case: 19-20779 Document: 00515766444 Page: 2 Date Filed: 03/04/2021

No. 19-20779

because ACE violated its Stowers 1 duty to accept one of the three settlement offers for the primary policy limits, ACE had to cover AGLIC’s settlement contribution. The district court agreed on both counts. We agree that ACE’s Stowers duty was triggered by the Braswells’ third offer, and that ACE violated this duty. The district court’s judgment is affirmed. I. At trial the Braswells 2 asserted Brickman caused Mark’s death under two negligence theories: (1) Brickman’s driver stopped short directly in front of Mark, and (2) Brickman’s truck was parked in an inherently dangerous spot. But premised on the substantial evidence of Mark’s comparative negligence, Brickman’s counsel believed it had a strong case in defense. Brickman was primarily insured by ACE (up to $2 million in liability), with excess coverage by AGLIC (up to $10 million in liability in excess of ACE’s $2 million). ACE controlled Brickman’s settlement negotiations. The facts were disputed. There was evidence that Brickman’s truck had been stopped for four or five minutes, or one to two minutes, or that it had actually stopped short in front of Mark. 3 No orange cones had been placed around the truck despite Brickman’s policy of using safety cones. Significantly, Mark’s helmet was cracked down the middle, indicating he was not watching where he was going. Brickman’s driver admitted it was dangerous, though legal, to park where he did. Moreover, Brickman’s witnesses were far less compelling and sympathetic than members of the Braswell family. Finally, the trial judge was known to be plaintiff-friendly, and the Braswells’ lawyer was well known and highly capable. Considering these factors, Brickman’s counsel mocked up the “value” of the Braswell case for settlement purpose, i.e., how much should

1 G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544 (Tex. Comm’n App. 1929)) [hereinafter Stowers]. 2 Mark’s mother (Sandra Braswell), wife (Michelle Braswell), and two children (M