No. 21-3389 ___________________________

Fluor Corporation

lllllllllllllllllllllPlaintiff - Appellant

v.

Zurich American Insurance Company

lllllllllllllllllllllDefendant - Appellee

Hartford Accident and Indemnity Company; Does 1-100

lllllllllllllllllllllDefendants ____________

Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________

Submitted: September 22, 2022 Filed: April 13, 2023 ____________ Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges. ____________ WOLLMAN, Circuit Judge. Zurich American Insurance Company (Zurich) insured St. Joe Minerals Corporation (St. Joe) and its sole shareholder Fluor Corporation (Fluor) from 1981 to 1985. St. Joe operated a lead smelting plant in Herculaneum, Missouri. Residents of the town sued Fluor and St. Joe (then named Doe Run Resources Corporation (Doe Run)) in the early 2000s, alleging that they had been injured by the plant’s release of lead and other toxins. Zurich agreed to defend the companies and paid $9.87 million in four settlements on behalf of both companies. Zurich also contributed more than $25 million to a settlement between Doe Run and remaining plaintiffs. Fluor went to trial, suffered an adverse jury verdict, and thereafter settled the claims for $300 million.

Zurich filed a declaratory judgment action against Fluor, which, in turn, filed a counterclaim alleging bad faith failure to settle.1 The district court granted summary judgment to Zurich, concluding that the policy limited Zurich’s liability on a per-occurrence basis and that the $3.5 million per-occurrence limit had been exhausted by Zurich’s initial settlement payments. The court concluded that Zurich thus did not act in bad faith when it did not settle the claims against Fluor.

Fluor appeals, arguing that the district court erred in determining that the policy limited Zurich’s liability on a per-occurrence and not a per-claim basis, which would have increased Zurich’s liability to $21.5 million for the 1981 and 1982 policies. Fluor also contends that, regardless of whether the policy is limited on a per- occurrence or per-claim basis, the limits do not foreclose its claim. Finally, Fluor argues that it is entitled to partial summary judgment. Reviewing de novo and applying Missouri law, we reverse the policy-limits determination and remand for further proceedings. See Am. Fam. Mut. Ins. Co., S.I. v. Mid-Am. Grain Distribs., LLC, 958 F.3d 748, 752 (8th Cir. 2020) (standard of review); Cont’l Cas. Co. v. Nat’l

1 Fluor also alleged breach of the duty to defend and unreasonable refusal to pay, but those claims are not relevant to this appeal.

-2- Union Fire Ins. Co. of Pittsburgh, PA, 812 F.3d 1147, 1149 (8th Cir. 2016) (“No one disputes Minnesota law governs, so it does.”).

An insurance policy is interpreted according to the plain and ordinary meaning of its terms, “or the meaning that would be attached by an ordinary purchaser of insurance.” Seaton v. Shelter Mut. Ins. Co., 574 S.W.3d 245, 247 (Mo. 2019) (quoting Doe Run Res. Corp. v. Am. Guar. & Liab. Ins., 531 S.W.3d 508, 511 (Mo. 2017)). Courts should evaluate policies as a whole when interpreting policy provisions. Ritchie v. Allied Prop. & Cas. Ins. Co., 307 S.W.3d 132, 135 (Mo. 2009). When an endorsement conflicts with the policy’s terms, the endorsement prevails. Merlyn Vandervort Invs., LLC v. Essex Ins. Co., Inc., 309 S.W.3d 333, 338 (Mo. Ct. App. 2010) (citing Abco Tank & Mfg. Co. v. Fed. Ins. Co., 550 S.W.2d 193, 198