Court of Appeals of Texas,

Houston (1st Dist.).

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Appellant,

v.

UNITED L.P. GAS CORP., Texas Eastern Products Pipeline Corp., and Meyers–Reynolds & Associates, Inc.,¹ Appellees.

United L.P. Gas Corp., Appellant,

v.

National Union Fire Insurance Company of Pittsburgh, PA, Appellee.

Meyers–Reynolds & Associates, Inc., Appellant,

v.

National Union Fire Insurance Company of Pittsburgh, PA, Appellee.

No. 01–00–00222–CV.

|

March 14, 2002.

Panel consists of Justices COHEN, NUCHIA, and PRICE.³¹

OPINION

MURRY B. COHEN, Justice.

*1 At the heart of the current lawsuit is a personal injury suit that was settled in 1994. Based on that 1994 judgment, the named insured (United L.P. Gas Corp.) and a party claiming additional-insured status (Texas Eastern Products Pipeline Corp.) sued the excess carrier (National Union Fire Insurance Co. of Pittsburgh, PA) that had denied coverage in the 1994 suit and the insurance agency (Meyers–Reynolds & Associates, Inc.) that had procured the excess policy. The trial judge found there was coverage for both plaintiffs, disallowed the insured’s evidence supporting its claim, denied the submission of the insured’s claim against its excess carrier, rendered judgment on a jury verdict of damages for the additional insured, granted summary judgment on the plaintiffs’ claims against the insurance agency, and rendered a take-nothing judgment on the insurance agency’s cross-claims against the excess carrier. Various parties appeal various rulings. We affirm in part and reverse in part and remand.

I. BACKGROUND

A. The Underlying Personal–Injury Suit

United LP Gas Corporation (“United”) sold liquefied petroleum gas (“LPG”) wholesale. United contracted with Texas Eastern Products Pipeline Company (“TEPPCO”) to store some of its LPG in TEPPCO’s salt dome storage facility. TEPPCO and United executed a Terminal Access Agreement (“the TAA”), which required United to indemnify TEPPCO for claims arising out of United’s acts or omissions, to odorize the LPG, and to carry primary and excess comprehensive general liability (“CGL”) insurance.

On March 4, 1991, a gas explosion in a home injured two people severely and killed a third (“the Moore incident”). The two who were injured and the decedent’s mother (collectively, “the Moore plaintiffs”) sued for their injuries and for wrongful death, adding United and TEPPCO as defendants in about October 1992 and September 1993, respectively. Annie Moore, et al. v. A–1 Propane of Bryan, Inc., et al., Cause No. 91–26,235, in the 113th Judicial District Court, Harris County (“the Moore lawsuit”). The Moore plaintiffs alleged product-liability claims against TEPPCO and United, including negligent failure to odorize the LPG. TEPPCO cross-claimed against United for indemnity under the TAA.

B. The Insurance

Primary Coverage. United had a primary “occurrence” CGL policy with National Union Fire Insurance Company of Pittsburgh, PA (“National Union”), with coverage dates from May 1990–May 1991 and per-occurrence limits of $1 million. The Moore incident occurred during this policy period, on March 4, 1991. National Union defended United under this primary policy and eventually tendered the full primary policy limits upon settlement of the Moore lawsuit.

Excess Coverage. For coverage periods May 1989–June1991 and July 1, 1991–May 1, 1992, United had umbrella policies through Lloyd’s of London; however, these policies had “claims-made” endorsements for product-liability claims. For the coverage period of May 1, 1992–May 1, 1993, United had umbrella insurance through National Union, under a policy with per-occurrence limits of $10 million (“the umbrella policy”). The parties disputed whether the National Union umbrella policy was a true occurrence policy or, for lack of certain language, instead functioned as a claims-made policy. The parties also disputed whether TEPPCO was an additional insured under the National Union umbrella policy. Meyers–Reynolds & Associates, Inc. (“Meyers”) presented United’s excess insurance claim for the Moore lawsuit to National Union in about October 1992; thus, that was when the claim was made. National Union denied excess coverage, contending its policy was an occurrence policy and the occurrence did not happen during its policy period. For the same reason, National Union denied excess coverage to TEPPCO as an additional insured under the umbrella policy.

C. Procurement of the Umbrella Policy

*2 Meyers–Reynolds & Associates, Inc. (“Meyers”) was the insurance agency responsible for obtaining excess insurance for the coverage year May 1992–May 1993, when the 1991–1992 Lloyd’s excess policy expired. Meyers sought excess coverage from National Union instead of Lloyd’s. National Union initially offered Meyers an occurrence policy for United. It is clear that Meyers realized that the transition from the Lloyd’s claims-made policy to the National Union occurrence policy could leave a coverage gap for United for the coverage period of May 1, 1991 through May 1, of 1992.² The parties dispute, however, whether Meyers dropped the ball by not ensuring that National Union covered that gap or whether National Union changed the umbrella policy’s language to fill the gap at Meyers’s request.

D. The Moore Lawsuit Settlement

Allegedly fearing a large recovery against them, TEPPCO and United sought to settle with the Moore plaintiffs. TEPPCO had funds to satisfy its settlement, but United had only the $1 million primary policy limits and, without excess coverage, could not fully finance a settlement. Accordingly, TEPPCO settled with the Moore plaintiffs for $3.8 million. (The parties stipulated that TEPPCO’s own primary CGL insurer paid $2 million, and its own CGL excess carrier paid $1.8 million, toward this settlement.) Simultaneously, United, TEPPCO, and the Moore plaintiffs entered into an Assignment and Covenant to Limit Execution (“the Moore assignment”), which provided in pertinent part as follows: (1) United assigned to TEPPCO and the Moore plaintiffs jointly any claims it might have against National Union as excess carrier and Meyers; (2) United agreed to cooperate fully with TEPPCO and the Moore plaintiffs when they pursued the assigned claims against National Union; (3) the Moore assignment was contingent upon entry of an agreed judgment under these terms against United and in favor of the Moore plaintiffs and TEPPCO, after a bench trial in the Moore lawsuit, and United’s not appealing that judgment; in exchange, (4) TEPPCO and the Moore plaintiffs agreed not to seek United’s involuntary bankruptcy; (5) TEPPCO agreed to limit execution of any judgment against United in the Moore lawsuit to the assigned claims; and (6) the Moore plaintiffs agreed to the same limitation, plus the $1 million afforded by United’s primary CGL policy, regardless of the judgment rendered against United in that suit. The parties dispute whether the May 1994 Moore judgment, which was rendered upon the Moore assignment, was a “lie down” or a sufficiently adversarial bench trial. National Union was advised, as United’s primary carrier, of the events in the Moore lawsuit generally and of the Moore assignment and judgment particularly.

E. The Current Litigation

In 1995, United and TEPPCO sued Meyers for failing to procure proper coverage through the umbrella policy. United and TEPPCO added National Union as a party defendant in April 1997.³ United and TEPPCO’s “live” petition alleged (1) contract breach, professional negligence, and implied warranty breach against Meyers if the umbrella policy was found not to cover the Moore incident and, if coverage was found, (2) breach of contract, breach of duty to settle within policy limits (a Stowers⁴ claim), and fraud against National Union.⁵ Meyers cross-claimed against National Union for contribution and indemnity, contract breach, negligence, and violations of Insurance Code article 21.21.

*3 United and TEPPCO moved for rule 166a(c) partial summary judgment that the umbrella policy covered the Moore incident; National Union moved for rule 166a(c) summary judgment that no coverage existed. The trial judge granted United’s and TEPPCO’s motion and denied National Union’s. Having found coverage under the umbrella policy, the trial judge rendered rule 166a(c) summary judgment in favor of Meyers on United and TEPPCO’s claims against it. The trial judge also granted rule 166a(c) summary judgment and rendered a take-nothing judgment on all Meyers’s cross-claims against National Union.

Trial then proceeded on the damages sustained by TEPPCO, as an additional insured, from National Union’s contract breach. The trial judge excluded evidence of the Moore judgment (which awarded TEPPCO $3.8 million and the Moore plaintiffs over $8.5 million, less settlement credits, against United) as evidence of United’s damages and, in accordance with that ruling, denied United’s jury charge on contract-breach damages. The jury rendered a verdict for TEPPCO on the sole issue presented, whether TEPPCO’s $3.8 million settlement was reasonable and made in good faith. The trial judge rendered judgment for TEPPCO for $3.8 million; pre-judgment interest of over $2 million; post-judgment interest and costs; and attorney’s fees of $283,627.16 for trial, with $25,000 in fees contingent upon National Union’s unsuccessful appeal to each higher court. The trial judge allowed various post-trial motions to be overruled by operation of law.

National Union appeals the summary judgment rendered on coverage and the final judgment awarded to TEPPCO. United appeals that portion of the judgment effectively rendering a take-nothing judgment on its contract-breach claim. Meyers appeals the summary judgment rendered on its cross-claims against National Union. We discuss each appeal separately.

II. DISCUSSION

A. National Union’s Appeal

United and TEPPCO moved for rule 166a(c) partial summary judgment that the National Union umbrella policy covered the Moore incident; National Union moved for rule 166a(c) summary judgment that no coverage existed. The trial judge granted United’s and TEPPCO’s motion and denied National Union’s. National Union challenges the granting of United and TEPPCO’s summary judgment motion and the denial by operation of law of National Union’s motions for new trial and judgment notwithstanding the verdict (“JNOV”) on the same grounds.

1. Standards of Review

We follow the usual standard of review of summary judgment orders that do not specify grounds, deny one party’s rule 166a(c) motion, and grant other parties’ rule 166a(c) motion. Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex.1999); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997).

JNOV is proper if there is no evidence to support one or more of the jury findings on issues necessary to liability. Tex.R. Civ. P . 301. We consider the evidence in the light most favorable to, and reasonable inferences tending to support, the verdict. Brown v. Bank of Galveston, Nat’l Ass’n, 963 S.W.2d 511, 513 (Tex.1998). We review the denial of a new trial motion for abuse of discretion. Director, State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994).

2. Coverage

a. Construction Rules

*4 We construe insurance contracts as any other contract. Balandran v. Safeco Ins. Co. of N. Am., 972 S.W.2d 738, 740–41 (Tex.1998). Our primary goal is to effectuate the written expression of the parties’ intent. Id. at 741. We read the contract as a whole, striving to give every part meaning and effect. Id. A contract is unambiguous when, after applying construction rules, we conclude it can be given a definite legal meaning. Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). When the contract is unambiguous, we give effect to its plain language. Id. Ambiguity is a question of law. Id.

A contract is ambiguous when, after applying construction rules, we conclude it could have two or more reasonable interpretations. Balandran, 972 S.W.2d at 741. We may consider parol evidence of the parties’ interpretation only if the contract is ambiguous. CBI Indus., Inc., 907 S.W.2d at 520. If the contract is ambiguous, we must adopt the construction more favorable to the insured. Nat’l Union Fire Ins. Co. of Pittsburgh, PA. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991). In particular, we must strictly construe an exclusion or limitation on liability against the insurer, adopting the insured’s construction so long as it is not unreasonable, even if the insurer’s construction appears more reasonable or a more accurate reflection of the parties’ intent. Balandran, 972 S.W.2d at 741; Hudson Energy Co., 811 S.W.2d at 555. Intent to exclude coverage must be expressed in clear and unambiguous language. Hudson Energy Co., 811 S.W.2d at 555.

b. Construction of the Umbrella Policy’s Terms

The parties rely on three provisions in the umbrella policy:

Coverage [hereinafter “Coverage provision A”]

A. We will pay on behalf of the Insured that portion of the ultimate net loss in excess of the retained limit as hereinafter defined, which the Insured will become legally obligated to pay as compensatory damages … because of Personal Injury, Property Damage Liability or Advertising Liability, caused by an occurrence to which this insurance applies….

* * *

II. Limits of Liability.

A. Aggregate [hereinafter “the Aggregate provision”]

This policy is subject to an aggregate limit of liability, as stated in the Declarations. This aggregate limit of liability is the maximum amount which will be paid under this policy for all occurrences during the policy period applying separately to:

1. The Products Hazard and the Completed Operations Hazard Combined….

* * *

DEFINITIONS …

5. “OCCURRENCE”

1. With respect to Personal Injury and Property Damage, the term occurrence means an event, including continuous or repeated exposures to conditions, which result[s] in Personal Injury and Property Damage neither expected nor intended from the standpoint of the Insured.

(Emphasis added.) Neither “Personal Injury,” “Property Damage,” nor “Advertising Liability”—the losses covered in Coverage provision A—is defined as an event during the policy period.

*5 A true occurrence policy covers all claims based on an event that occurs during the policy period, regardless of when the insured or insurer learns of the claims. Yancey v. Floyd West & Co., 755 S.W.2d 914, 918 (Tex.App.-Fort Worth 1988, writ denied). A claims-made policy covers occurrences that may give rise to a claim that comes to the insured’s and insurer’s attention during the policy period. Id. The Moore incident was in March 1991; the umbrella policy’s period was May 1992–May 1993; and Meyers notified National Union of the claims against United in about October 1992. Thus, if the umbrella policy is truly an occurrence one, there is no coverage; if the umbrella policy functions like a claims-made policy, there is coverage. National Union claims the umbrella policy is a true occurrence policy as defined in Yancey. We disagree.

The use of the term “occurrence” within the umbrella policy is not decisive here. This is because, unlike here, the standard-form CGL occurrence policy incorporates the words “during the policy period” either in the coverage provisions themselves⁶ or in the definitions of the terms used in the coverage provisions.⁷ See H.E. Butt Grocery Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 150 F.3d 526, 529 (5th Cir.1998) (noting that definition of “occurrence” in National Union’s CGL policy before the court, which was expressly limited to “Personal Injury or Property Damage during the policy period,” was “virtually identical to the definition contained in the standard-form commercial general liability policy”).⁸ That important temporal qualifier is notably absent both from the umbrella policy’s Coverage provision A and from its defined coverage terms. The umbrella policy thus provides coverage for “an event … which results in Personal Injury … neither expected nor intended from the standpoint of the Insured,” without reference to when the event occurred. National Union knew of the standard-form CGL language expressly limiting coverage to an occurrence during the policy period,⁹ but deviated from that language here. Cf. Glover v. Nat’l Ins. Underwriters, 545 S.W.2d 755, 764 (Tex.1997) (“We note that our construction … was necessary, however, only because National chose to phrase the insurance policy in the ambiguous manner heretofore discussed. Language was available to, and known to, National which would have clearly and plainly excluded from coverage….”). Indeed, National Union’s primary policies covering United for the policy periods May 1990–May 1991 and May 1992–May 1993 had within their coverage provisions the temporal qualifier lacking here. The result is a policy akin to a claims-made one, despite the use of the term “occurrence.”

National Union argues, however, that the Aggregate provision restricts the coverage to occurrences during the policy period:

This policy is subject to an aggregate limit of liability, as stated in the Declarations. This aggregate limit of liability is the maximum amount which will be paid under this policy for all occurrences during the policy period….

*6 (Emphasis added.)

Reading the limiting Aggregate provision together with Coverage provision A, as we must, we disagree with National Union. Nothing in Coverage provision A or its defined terms restricts coverage to occurrences during the policy period. The limiting Aggregate provision concerns the maximum total liability to which the insurer subjects itself for the whole policy period, regardless of the number of occurrences. See Mesa Oper. Co. v. California Union Ins. Co., 986 S.W.2d 749, 753 n. 2 (Tex.App.-Dallas 1999, pet. denied). The Aggregate provision does not purport to define what an occurrence is, nor to establish which occurrences are covered, nor to detract from what is covered in any way except by limiting total dollar liability. Therefore, inclusion of the words “during the policy period” in the Aggregate provision does not clearly or unambiguously evince an intent to limit the definition of “occurrence.” See Hudson Energy Co., 811 S.W.2d at 555 (intent to exclude coverage must be clear and unambiguous).

Put another way, National Union reads the words “during the policy period” within the Aggregate provision to modify “occurrence.” If National Union were correct, then the Aggregate provision would conflict with Coverage provision A, which does not so restrict its use of the term “occurrence.” We must construe each policy provision if at all possible so that it has meaning and does not conflict with other provisions. See Balandran, 972 S.W.2d at 741 (courts must strive to read whole contract to give each part meaning and effect). This is the opposite of what National Union’s interpretation does. In contrast, we construe the Aggregate provision’s use of “during the policy period” simply to be a statement of that provision’s purpose: to limit maximum dollar liability during a policy period. But whatever “during the policy period” means in the Aggregate provision, it does not mean what National Union argues. An insurer should not be able to use this type of Aggregate provision to exclude events covered by the coverage provision.

National Union further relies on parol evidence that United’s lawyers and Meyers’s representative interpreted the umbrella policy (mostly at times after its signing) as an occurrence policy. We have already held the umbrella policy unambiguously provides coverage. Therefore, such parol evidence is irrelevant. See CBI Indus., Inc., 907 S.W.2d at 520 (parol evidence inadmissible to create ambiguity); Chapman v. Hootman, 999 S.W.2d 118, 123 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (unambiguous contract must be interpreted without aid of extrinsic evidence).

c. The Effect of Endorsement 14

National Union next argues that “Endorsement 14” converts the umbrella policy into an occurrence policy. We disagree.

Endorsement 14 reads as follows:

PRODUCTS—COMPLETED OPERATIONS (FOLLOWING FORM) COVERAGE

In consideration of the premium charged, it is agreed that such coverage as is afforded by this [umbrella] policy shall not apply to PERSONAL INJURY or PROPERTY DAMAGE arising out of the PRODUCTS OR COMPLETED OPERATIONS HAZARD,¹⁰ unless such liability is covered by valid underlying [i.e., primary] insurance as listed in the Schedule of Underlying Insurance, for the full limits shown therein, and then only for such hazards for which coverage is afforded under said underlying insurance.

*7 (Emphasis added.)

The referenced Schedule of Underlying Insurance (“the Schedule”) provides as follows:

Commercial General Liability	National Union Fire Insurance Company	$1,000,000 Per Occurrence $2,000,000 General Aggregate
Products & Completed Operations		$2,000,000 Aggregate

The Schedule does not specify a National Union primary CGL policy, except by limiting the amount of liability to $1 million per occurrence/$2 million aggregate.

Under certain circumstances, and depending on an umbrella policy’s terms, if its excess coverage is broader than underlying primary coverage, the umbrella policy might be deemed to “drop down” to fill the resulting coverage gap. See Coleman Co. v. California Union Ins. Co., 960 F.2d 1529, 1530 n. 1 (10th Cir.1992). By pegging the breadth of excess coverage to the breadth of primary coverage, a following-form endorsement attempts to prevent a drop-down, i.e., it tries to ensure that excess coverage remains truly excess. The umbrella policy here, through following-form endorsement 14, covered only those “products hazards” for which coverage was provided by the primary CGL insurance listed in the Schedule. See R.W. Beck & Assocs. v. City & Borough of Sitka, 27 F.3d 1475, 1478–79 (9th Cir.1994) (so construing very similar following-form language in an umbrella policy’s contractual-liability endorsement). This means that, to determine whether the umbrella policy covered this loss, we must determine whether the Moore incident was a “hazard for which coverage was afforded under” the applicable primary policy. See id. at 1479.

National Union argues (1) the primary policy to which endorsement 14’s Schedule refers was National Union’s 1992–1993 occurrence policy; (2) the 1992–1993 primary policy provided no coverage for the 1991 Moore incident; and thus (3) neither does the umbrella policy provide coverage for the Moore incident.

National Union looks to the wrong underlying policy. National Union’s own summary judgment evidence shows that it issued United CGL primary occurrence policies with $1 million-per-occurrence/$2 million-aggregate limits both for May 1990–May 1991 and for May 1992–May 1993. Because endorsement 14’s Schedule lists only a National Union CGL primary occurrence policy with $1 million coverage/$2 million aggregate, without specifying policy year or number, the Schedule could refer to the May 1990–May 1991 National Union primary policy. Cf. Grant v. N. River Ins. Co., 453 F.Supp. 1361, 1368 (N.D.Ind.1978) (under endorsement with following-form language similar to that here, holding a certain primary policy fit the endorsement’s general definition of “underlying insurance,” even if that primary policy was not specifically named in the endorsement). National Union does not dispute that it tendered defense and indemnity to United for the full limits under its May 1990–May 1991 primary policy, nor does it dispute that coverage existed under that policy. The Moore incident was a “hazard for which coverage [was] afforded” under the applicable National Union primary CGL policy, that of May 1990–May 1991. Therefore, endorsement 14 was satisfied. National Union received the benefit for which the endorsement was drafted: its umbrella policy remained excess because an underlying primary policy had tendered full limits for the same loss. None of the cases National Union cites for the general definition of a following-form policy requires a contrary interpretation.

d. Conclusion

*8 We hold that the umbrella policy unambiguously gives coverage for the Moore incident. The trial judge thus properly granted United and TEPPCO’s summary judgment motion, and denied National Union’s new trial and JNOV motions, on these grounds.

We overrule issue one.

3. TEPPCO’s Additional Insured Status

United and TEPPCO moved for rule 166a(c) partial summary judgment that the umbrella policy covered TEPPCO as an additional insured; National Union moved for rule 166a(c) summary judgment that the umbrella policy did not. The trial judge granted United and TEPPCO’s motion and denied National Union’s. National Union challenges the granting of United and TEPPCO’s summary judgment motion and the denial by operation of law of National Union’s new trial and JNOV motions on the same grounds.

In issue two, National Union argues TEPPCO was not an additional insured under the umbrella policy’s “Persons Insured” definition because the TAA did not require United to make TEPPCO a named additional insured. United and TEPPCO concede that the TAA did not require TEPPCO to be, and TEPPCO was not, a named additional insured under the umbrella policy, but they contend that TEPPCO nonetheless fits the definition of “Persons Insured.” We agree with United and TEPPCO.

The umbrella policy defined “Persons Insured” to include

Any person, organization, trustee or estate to whom or to which the Insured is obligated by virtue of a written contract to provide insurance such as is afforded by this policy, but only with respect to operations conducted by the Insured or on the Insured’s behalf or to the facilities of or used by the Insured.

(Emphasis added.)

Both parties agree that TEPPCO’s additional insured status stands or falls on the TAA’s terms, which provide in pertinent part as follows:

4. In consideration of the privileges herein granted, User [United] hereby indemnifies Texas Eastern [TEPPCO] and agrees to hold it harmless from and against any and all claims, causes of action, damages, suits, costs, losses or expenses arising out of or resulting in whole or in part from the acts or omissions of [United] or of [United’s] officers, servants, employees or Agents engaged in the exercise of the privileges herein granted.

5. Prior to exercising the privileges herein granted, [United] shall obtain and furnish to [TEPPCO] certificates of insurance evidencing the following:

(a) [workers’ compensation, employment, and occupational disease insurance];

(b) comprehensive general public liability insurance with a combined single limit of not less than $1,000,000.00 as to any one occurrence for bodily injury and property damage, said insurance to be endorsed to cover the contractual liability assumed by [United] in Article 4, 11 and 12 hereof;

(c) [automotive public liability insurance];

(d) [insurance if navigable waters are involved]; and

(e) umbrella liability in excess of (a), (b), (c) and (d) of $1,000,000 (combined single limit).

*9 [United] further agrees to carry any such higher limits for (b), (c) or (d) above and/or such other types of insurance that might be required by any federal or state law or regulation during the term of this Agreement. Further, such certificate evidencing the insurance required by this Article shall provide there shall be no material change in or cancellation of the policy or policies until [TEPPCO] shall have been given thirty (30) days notice in writing by [United’s] insurer(s) of the contemplated change or cancellation. Such policy shall be endorsed to name [TEPPCO] as an additional insured for (b), (c) and (d) and to provide that each underwriter waive its right of subrogation against [TEPPCO]. The insurance coverage for which provision is made herein shall be maintained by [United] at its sole cost and expense at all times during the life of this Agreement.

(Emphasis added.)

National Union argues that (1) the final paragraph quoted above requires United to name TEPPCO expressly as an additional insured only on those insurance policies listed under TAA paragraphs 5(b), (c) and (d); (2) the excess policy is not listed under any of those three TAA paragraphs; (3) the TAA thus did not obligate United to name TEPPCO expressly as an additional insured; and thus (4) TEPPCO is not a “Person Insured” under the umbrella policy.

National Union’s argument assumes that, for TEPPCO to be an additional insured, the TAA had to require TEPPCO to be expressly named as such in the umbrella policy. This is a faulty assumption. It is enough that the TAA obligated United “to provide insurance such as is afforded by this [umbrella] policy.” The TAA did so:

• The TAA (article 4) obligated United to indemnify TEPPCO for incidents such as the Moore lawsuit.

• The TAA (article 5(b)) also required United to procure primary CGL insurance “to cover the contractual liability assumed under” the above indemnity agreement (article 4).

• The TAA (article 5(e)) further required United to carry umbrella insurance “in excess of” that primary CGL insurance (article 5(b)).

Thus, under the TAA, the excess insurance [§ 5(e) ] was “tied to” the primary CGL insurance [§ 5(b) ], which was “tied to” United’s obligation to indemnify TEPPCO [§ 4]. Accordingly, TEPPCO was, under the “Persons Insured” definition, “an organization … to which the Insured [United] is obligated by virtue of a written contract [the TAA] to provide insurance such as is afforded by this [umbrella] policy.” This is all that was required for TEPPCO to be an additional insured. It does not matter that the TAA required that only United’s primary CGL policy, not its umbrella policy, be endorsed expressly to name TEPPCO as an additional insured. The umbrella policy’s definition of “Insured Person” did not require that TEPPCO be a named additional insured, but simply that it fall within the definition of “Persons Insured.” Cf. Duke Energy Field Servs. Assets, L.L.C. v. National Union Fire Ins. Co. of Pittsburgh, PA, No. 06–01–00024–CV, slip op. at 8 (Tex.App.-Texarkana Jan.24, 2002, no pet. h.) (designated for publication);¹¹ Western Indem. Ins. Co. v. American Phys. Ins. Exch., 950 S.W.2d 185, 188–89 (Tex.App.-Austin 1997, no writ) (defining “additional insured” as a party protected under an insurance policy, but not named therein, and defining “additional named insured” as one specifically named in the policy subsequent to the policy’s issuance).

*10 National Union replies that the TAA’s indemnity agreement cannot be considered in determining whether TEPPCO is an additional insured because that agreement is unenforceable for violating the “express negligence” rule of Dresser Industry v. Page Petroleum, Inc.¹² This argument is waived because National Union did not assert it in its summary judgment response. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex.1993). In any event, because National Union was not a party to the TAA and has not asserted that it was the TAA’s intended beneficiary, it has no standing to complain of the TAA’s terms. Cf. Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 101 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (standing to enforce contract); Tennessee Gas Pipeline Co. v. Lenape Resources Corp., 870 S.W.2d 286, 294–95 (Tex.App.-San Antonio 1993) (standing to complain of contract), aff’d in part on other grounds, rev’d in part on other grounds, 925 S.W.2d 565 (Tex.1996).

National Union next replies that the indemnity agreement cannot be considered in determining whether TEPPCO is an additional insured because TEPPCO did not actually seek indemnity from United in the current lawsuit. That TEPPCO did not seek indemnity in this lawsuit is not surprising, given that its indemnity claims had already been disposed of during the Moore lawsuit, in which TEPPCO did claim indemnity from United. Regardless, the umbrella policy’s definition of “Persons Insured” does not require that a contractual obligation such as indemnity actually be enforced, but that the contract simply obligate United “to provide insurance such as is afforded by this policy.” United’s indemnity and insurance covenants under the TAA satisfied this umbrella policy requirement.

We hold the trial judge properly granted United and TEPPCO’s summary judgment motion, and denied National Union’s new trial and JNOV motions, on these grounds.

We overrule issue two.

4. Damages and Pre–Judgment Interest

In issue three, National Union argues the trial judge erred in calculating prejudgment interest from a certain date and in not reducing damages to account for funds paid TEPPCO under its own excess policy with another carrier. Meyers’s appellee’s brief sides with National Union on both issues.

a. Pre–Judgment Interest

National Union argues the trial judge erred by not granting its motion to modify judgment, challenging the starting date from which pre-judgment interest ran.

Pre-judgment interest accrues starting the 180th day after the date the defendant receives written notice of a claim or on the date suit is filed, whichever is earlier. See Tex. Fin.Code Ann. § 304.104 (Vernon 1998); Johnson & Higgins of Texas v. Kenneco Energy, 962 S.W.2d 507, 531 (Tex.1998). National Union argues the trial judge should have assessed pre-judgment interest starting April 8, 1997, the date TEPPCO sued National Union, rather than starting August 24, 1994, as the judge did, because no evidence allegedly shows TEPPCO made a written claim on February 24, 1994, 180 days earlier. This is incorrect. The record contains a letter from Allen Till, United’s lawyer in the Moore lawsuit, to (among others) claims adjusters working for National Union. Attached to his correspondence was a copy of a letter from a TEPPCO officer, which letter Till explained “addresses a contractual indemnity claim that … TEPPCO is making against United LP. Additionally, [TEPPCO’s officer] claims insured status on United LP insurance policies pursuant to a contract he claims covers this incident.” (Emphasis added.) The attached TEPPCO letter claimed additional-insured status under TAA paragraph 5, which required primary and excess insurance. Louis Estler, a National Union employee, admitted by deposition testimony played for the jury that Till’s February 24, 1994 letter made National Union aware that TEPPCO was claiming additional insured status under National Union’s primary and excess policies.

*11 Accordingly, we hold the trial judge did not err in allowing National Union’s motion to modify judgment to be overruled by operation of law.

We overrule this argument under issue three.

b. Damages Award

Also under issue three, National Union argues the trial judge erred by not pro-rating the damages awarded to TEPPCO between National Union and TEPPCO’s own excess insurer, Lloyd’s of London, from which TEPPCO received indemnity of $1.8 million for the Moore lawsuit.¹³

United and TEPPCO initially argue National Union waived this challenge for raising it in a supplemental motion to modify filed 65 days after judgment. We agree that we cannot consider this untimely supplement or its attached evidence,¹⁴ but we disagree that National Union waived the challenge. The trial judge denied National Union’s verbal pre-trial request to pro-rate damages, accepted the parties’ stipulation of the amount that TEPPCO’s own excess policy (“the Lloyd’s excess policy”) paid to settle the Moore lawsuit, and allowed National Union to file the Lloyd’s excess policy and a copy of the stipulation in support. The challenge is preserved.

The Lloyd’s excess policy and the umbrella policy contain mutually exclusive “other-insurance” clauses. Specifically, they contain “excess clauses,” which restrict the liability of each insurer to excess coverage after the other excess policy has paid up to its policy limits.¹⁵

The trial judge denied National Union’s pro-rata request because National Union had not brought in Lloyd’s as a third party. This is a legal ground subject to de novo review. See State v. Heal, 917 S.W.2d 6, 9 (Tex.1996). Moreover, our decision calls for contract interpretation, a legal question. See Carrabba v. Employers Cas. Co., 742 S.W.2d 709, 714 (Tex.App.-Houston [14th Dist.] 1987, no writ) (so holding in considering priority of insurance policies).

It is well settled that, when, as here, two policies have repugnant other-insurance provisions covering the same loss, Texas law requires a pro-rata sharing of liability between the insurers, according to the amount of coverage provided by each policy. Hardware Dealers Mut. Fire Ins. Co. v. Farmers Ins. Exch., 444 S.W.2d 583, 590 (Tex.1969). This holding applies between excess insurers as well. St. Paul Mercury Ins. Co. v. Lexington Ins. Co., 78 F.3d 202, 210 (5th Cir.1996) (Texas law). Here, it is undisputed that Lloyd’s provided $50 million of excess coverage to TEPPCO for this loss, while National Union provided United/TEPPCO $10 million. Therefore, if the rule in Hardware Dealers applies, National Union’s liability is 1/5 of the $1.8 million paid, or $360,000. See Hardware Dealers, 444 S.W.2d at 590.

TEPPCO and United do not argue that the two other-insurance clauses are not mutually exclusive or would not, under the right circumstances, require prorating $1.8 million of the judgment in the ratio National Union urges. Neither can TEPPCO and United argue the two excess policies do not cover the same loss (they would be judicially estopped now from arguing otherwise). Rather, TEPPCO and United argue, without citation to authority, that National Union could seek this relief only against Lloyd’s, the other excess carrier, not against TEPPCO.

*12 Although the competing carriers were parties in the cases National Union cites, that does not mean that Lloyd’s had to be a party here. Whether Lloyd’s was joined in this suit does not change National Union’s right to a pro-rata reduction. The point of other-insurance clauses is simultaneously to prevent the insured from over-insuring and from receiving double recovery, while still ensuring that the insured’s coverage “be no less than if she had been protected by only one of the policies.” See Hardware Dealers, 444 S.W.2d at 586, 588, 589 (explaining history of the clause’s development, discussing alternative methods of avoiding “the problem of double coverage,” and setting out the policy reasons for its own holding). Both goals are achieved by prorating the $1.8 million portion of damages here. See U.S. Fire Ins. Co. v. Stricklin, 556 S.W.2d 575, 577–79 (Tex.Civ.App.-Dallas 1977) (holding trial judge erred in denying defendant insurer’s request to present evidence relevant to pro-rating damages under Hardware Dealers between it and another insurer, which plaintiff had sued in separate suit, when both policies had repugnant other-insurance clauses; holding plaintiff had right to recover only pro-rated amount from each insurer, even if insurers were sued in different suits; rejecting plaintiff’s argument that defendant insurer should be made to pay full amount and then be relegated to seeking contribution from other insurer; holding there was no error in refusing defendant insurer’s request to consolidate both suits because other insurer was not a necessary party), writ ref’d n.r.e ., 565 S.W.2d 43 (Tex.1978).

5. Conclusion

We hold the trial judge erred in refusing National Union’s request to prorate the $1.8 million portion of the total damages award. Accordingly, we sustain issue three.

B. United’s Appeal¹⁶

In a sole issue, United argues the trial judge erred in excluding evidence of the Moore judgment as evidence of United’s contract-breach damages and, in accordance with that ruling, (1) in refusing to render judgment for damages of $6.2 million of the total damages to which United agreed in the Moore lawsuit or, alternatively, (2) in refusing to submit damages to the jury.¹⁷ National Union argues (1) United waived these challenges and, alternatively, (2) the trial judge properly refused United’s requests under State Farm Fire & Casualty Co. v. Gandy.¹⁸ Meyers’s appellee’s brief supports National Union’s position. We agree with United that the trial judge erred in excluding this evidence.

1. The Complained–Of Orders

United argues the trial judge erred in two rulings excluding evidence of the Moore judgment: (1) his pretrial ruling that evidence of the Moore judgment would not be admitted and (2) the judge’s implied ruling excluding a copy of the Moore judgment, the Moore assignment, and the testimony of Rob Waltman in support, all of which was filed as United’s offer of proof just before United rested.

2. Preservation of Error

*13 National Union urges that United’s challenge fails because (1) the record is allegedly “void” of any suggestion the trial judge ruled based on Gandy and (2) United’s offer of proof did not preserve the challenge. We disagree on both counts.

a. The Rulings’ Basis

The trial judge based his rulings on Gandy. To support its argument to the contrary, National Union distorts one comment by the trial judge at the pretrial conference. At the start of that conference, counsel for United and TEPPCO summarized his belief that an earlier ruling, probably on National Union’s in limine motion,¹⁹ was based on Gandy. The trial judge responded, “No, I hadn’t focused on that aspect of it.” The trial judge was clearly referring only to his recollection of an earlier ruling, nothing more. In fact, immediately after that initial statement, the parties and trial judge launched into a discussion of what could only be Gandy, during which the trial judge recalled that he had earlier ruled on the basis of Gandy. The trial judge then made the complained-of rulings.

And it is not surprising that the trial judge ruled based on Gandy: whenever the parties briefed the issue before the complained-of ruling, they did so always—and solely—on the grounds of Gandy.²⁰ Even National Union’s brief belies its argument: immediately after National Union argues waiver, it argues the trial judge ruled correctly on the merits based solely on Gandy.

b. Offer of Proof

National Union next urges United waived any complaint that the trial judge erred in excluding the Moore judgment under Gandy because United’s offer of proof was defective. Specifically, National Union contends the trial judge did not expressly rule on either (1) the evidence that the offer-of-proof concerned or (2) United’s offer of proof.

Although the pretrial hearing began with what was apparently a discussion of National Union’s in limine motion, based on the discussion set out below, we interpret the judge’s ruling as broad enough to be a ruling on admissibility, not just on the in limine motion.

Mr. Lochridge [for United]: There is some confusion or disagreement between me and Mr. Tucker [counsel for National Union] on one of the Court’s rulings from last week, having to do with the [Moore ] judgment. The message that I got … was that the Court had concluded that the judgment was not binding on National Union; it would not be admitted. That’s the extent of what I understood the Judge’s ruling. I think Mr. Tucker is of the view that the Court also ruled that the assignment was invalid under Gandy and Boyd ….

Court: No, I hadn’t focused on that aspect of it.

Mr. Tucker: The reason I did, Your Honor, was my motion addressed the assignment and the judgment both in my brief.²¹ And the assignment itself specifically refers to the judgment on numerous occasions and says it’s only good if the—if there’s a judgment. And if the judgment’s gone, then the assignment’s gone. I’ve got the assignment here, if the Court would like to look at it. But if we get back—it’s kind of—we can’t do it halfway. If we’re going to get back into the assignment, then we’ll get back into all the rookity-do stuff that led up to the assignment. It was my understanding that the Court was going to say all that stuff is out of here and you—Plaintiff, put on your case and prove that you—what you paid was reasonable and necessary, basically.

*14 * * *

Mr. Lochridge: What the Court has ruled is [the Moore assignment] it’s just not binding.

Court: See, what—yeah, my ruling was—I haven’t set aside that [Moore lawsuit] judgment. I don’t have any power set aside that judgment…. And I’m just saying [the Moore assignment] it’s not binding on them. They didn’t have a chance to object and it wasn’t an adversarial trial, etcetera. So I think the—what I contemplated happened was, you—your TEPPCO and United people say, you know, we recognize we had an indemnity obligation and we didn’t want to both fight it so we agreed with them that they’d assign us all their rights and we could go after the insurance company—but everybody understand, we don’t go into that there was this other sham trial, but we just say, you know, it’s in the context of a settlement. And you, of course, argue this 3.8 million, or whatever it was, just a number they picked out of the air. It’s just—you know, there’s no reason for indemnity to contest that number. Or if they’re not going to have to pay any of it, you know, they might as well agree to 10 billion or a 100 billion, as long as you don’t have to pay any of it. So the jury shouldn’t be—Ladies and gentlemen, don’t be persuaded by the particular number they figure—they agreed on.

* * *

Mr. Tucker: Just so I completely—I know—‘cause I don’t get outside the Court’s rulings, you are going to allow the assignment and all the facts surrounding the assignment into evidence, Your Honor?

* * *

Court: And I’m not going to exclude the fact that—you know, the indemnity agreements, and assignments, and covenants not to try to collect, facts surrounding that. I am excluding the facts relating to the assignment, having to do with—we’ll go in front of the [Moore lawsuit] judge and get this trial, this bench trial, and get a judgment that happens to coincide with the amount we’re settling for, or we’ve agreed to indemnify, or whatever. So, some yes and some no, is the answer, I guess.

Mr. Tucker: Okay. So I assume before you enter the assignment, we’ll redact the parts alluding to the judgment and all that sort of thing.

Court: I would assume that, too, unless you²² want me to let him²³ go, “You all attempted to defraud this jury and the other court by entering this sham adversarial trial.” Which I’ll certainly allow him to do if it comes in, okay?

(Emphasis added.)

That the trial judge made a pretrial ruling on admissibility, rather than simply an in limine ruling, is bolstered by United’s counsel’s comment just before its offer of proof—which National Union did not correct below—that the judge used the pretrial conference to pre-admit all exhibits. Additionally, when United continued its case-in-chief after the offer of proof, and its witness began testifying to the trial of the Moore lawsuit, National Union immediately objected because the testimony had “already been ruled on by the Court as inadmissible…. We’re going to object to this testimony about judgments in other trials that the Court’s already ruled on.” The trial judge sustained that objection. It thus appears that both National Union and the trial judge believed that this line of evidence had already been excluded.

*15 We hold United properly preserved its challenge. See Huckaby v.. A.G. Perry & Son, Inc., 20 S.W.3d 194, 203 (Tex.App.-Texarkana 2000, pet. denied) (“We realize that motions in limine do not preserve error; however, a distinction is drawn between a motion in limine and a pretrial ruling on admissibility.”).²⁴ Accordingly, United did not have to obtain a second ruling accepting its offer of proof. See Tex.R. Evid. 103(a)(2), (b) (“In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer … The offering party shall, as soon as practicable, but before the court’s charge is read to the jury, be allowed to make, in the absence of the jury, its offer of proof.”).

3. Retroactivity of Gandy

United argued below that Gandy did not apply because the agreed Moore judgment, and the settlement on which it was based, predated Gandy, which does not apply retroactively here. We agree.

We review the judge’s ruling de novo because it was based on a question of law. See Coronado Paint Co. v. Global Drywall Sys., Inc., 47 S.W.3d 28, 33 (Tex.App.-Corpus Christi 2001, pet. filed) (Gandy issue); see also Heal, 917 S.W.2d at 9. The Gandy Court held that its holdings—invalidating certain assignments and making inadmissible against the insurer judgments rendered without adversarial trial—would apply only (1) in the Gandy case itself, (2) “in pending cases in which complaint of an assignment has been preserved,” and (3) to all prohibited assignments executed after Gandy.²⁵ 925 S.W.2d 696, 720 (Tex.1996). The Court continued that its holding “does not invalidate assignments to which an objection has not been preserved.” Id. Gandy was decided on July 12, 1996. Id.

United and TEPPCO added National Union as a defendant to the current lawsuit on April 10, 1997, nine months after Gandy.²⁶ There was no lawsuit “pending” against National Union in July 1996. Therefore, Gandy does not apply. To hold as National Union wants, we would have to extend Gandy to an assignment that was not executed before Gandy ‘s issuance—which would defeat the very policy considerations on which the Supreme Court based Gandy ‘s retroactivity holding.²⁷ See Gandy, 925 S.W.2d at 719–20.

4. Conclusion

We hold that Gandy ‘s holding cannot apply to this assignment, entered into over two years before Gandy was decided and nine months before National Union was sued. The exclusion of the Moore judgment and related testimony was necessarily harmful because it precluded proof of United’s damages caused by National Union’s breach. See Tex.R.App. P. 44.1.

Accordingly, we sustain United’s sole issue.

5. The Remedy—Rendition or Remand?

United argues we should render judgment for $6.2 million under the pre-Gandy authority that Gandy overruled. Alternatively, United requests a remand. We hold a remand is proper.

*16 United relies on pre-Gandy authority precluding an insurer that wrongfully refused its insured’s defense from collaterally attacking “the reasonableness of a consent judgment agreed to between the insured and the injured party.” United States Aviation Underwriters, Inc. v. Olympia Wings, Inc., 896 F.2d 949, 955 (5th Cir.1990) (obiter dictum); accord Employers Cas. Co. v. Block, 744 S.W.2d 940, 943 (Tex.1988) (insurer barred from attacking reasonableness of damages (dictum), but not from contesting coverage (holding)); Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 167–68 (Tex.Civ.App.-Austin 1975, writ ref’d n.r.e.) (insurer barred from asserting settlement was fraudulent/collusive or unreasonable in amount); see also Commonwealth County Mut. Ins. Co. v. Moctezuma, 900 S.W.2d 798, 801 (Tex.App.-San Antonio 1995, writ dism’d by agreement) (same; dictum). But see Texas United Ins. Co. v. Burt Ford Enters., Inc., 703 S.W.2d 828, 835 (Tex.App.-Tyler 1986, no writ) (settling insured may recover damages from such insurer upon showing settlement was made in good faith, upon reasonable basis, and for reasonable amount). The reasoning of these cases was that such an insurer was not a stranger to the consent judgment: had the insurer provided defense, it could have conducted the defense “in the manner most likely to have defeated the plaintiffs’ claim or at least to have reduced the amount of the damages.” Rogers, 530 S.W.2d at 167; see also Olympia Wings, Inc., 896 F.2d at 954–55; Moctezuma, 900 S.W.2d at 801.

That reasoning does not apply here. United concedes that “the Moore lawsuit involved National Union’s wrongful denial of coverage, rather than its failure to defend its insured….” Neither does United argue that National Union had any “drop-down” defense duties under the umbrella policy. We may thus presume for this discussion that no duty to defend was triggered under that policy. The primary insurer—National Union—provided the defense. Thus, there is no need to punish the excess insurer—also National Union-for leaving its insured defenseless because that did not happen here. United cites no authority for extending the holding or rationale of pre-Gandy cases to carriers without defense duties, and we have found none. Accordingly, we hold that National Union may contest the reasonableness of damages under the Moore settlement. Rendition is thus improper.

C. Meyers’s Appeal

Meyers cross-claimed against National Union for contribution and indemnity, contract breach, negligence, and violations of Insurance Code article 21.21. See Tex. Ins.Code Ann. art. 21.21, § 4(11) (Vernon Supp.2002). National Union moved for rule 166a(c) summary judgment on the following grounds: (1) Meyers had no standing to sue for breach of National Union’s insurance contract with United because Meyers was not a contracting party; (2) Meyers had no standing to sue for article 21.21 violations because it was not a “consumer”; (3) National Union had no duty to Meyers that could support a negligence claim; and (4) the statute of limitations barred Meyers’s article 21.21 claims. The trial judge granted summary judgment without specifying grounds and rendered a take-nothing judgment on all Meyers’s cross-claims against National Union.

*17 We first note that Meyers does not challenge on appeal the summary judgment rendered against any of its cross-claims except those under article 21.21. Accordingly, we affirm the summary judgment rendered on Meyers’s cross-claims of contract breach, contribution and indemnity, and negligence against National Union. See Garcia v. Nat’l Eligibility Express, Inc., 4 S.W.3d 887, 889 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

In issue two, Meyers claims the trial judge erred in rendering summary judgment on its article 21.21 claims based on the two-year statute of limitations. See Tex. Ins.Code Ann. art. 21.21, § 16(d) (Vernon Supp.2002) ( “All actions under this Article must be commenced within two years after the date on which the unfair method of competition or unfair or deceptive act or practice occurred or within two years after the person bringing the action discovered or, in the exercise of reasonable diligence, should have discovered the occurrence of the unfair method of competition or unfair or deceptive act or practice. ….”). It was National Union’s burden conclusively to establish its limitations defense. See Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983).

On appeal, Meyers does not dispute that its article 21.21 claims had accrued at least by May 1994, when the summary judgment evidence shows National Union notified United it was denying coverage, nor does Meyers dispute that it first alleged its article 21.21 claims by amended cross-petition in September 1999. Rather, Meyers relies on the rule that if “a filed pleading relates to a … cross action … that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment … to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation ….“ Tex. Civ. Prac. & Rem.Code Ann. § 16.068 (Vernon 1997). Specifically, Meyers claims that, because it timely asserted contribution and indemnity in its August 1997 original cross-petition, Meyers’s article 21.21 claims related back to the 1997 petition’s filing.

First, the argument is waived because Meyers did not assert it in its summary judgment response. See McConnell, 858 S.W.2d at 343. Second, even the August 1997 cross-petition came more than a year too late.²⁸ Under section 16.068, “if the statute of limitations would have barred a claim when the original pleading was filed, it will still bar that cause of action when it is first asserted by amended pleading, even though the original pleading asserted other theories that were timely.” Almazan v. United Servs. Auto. Ass’n, Inc., 840 S.W.2d 776, 778 (Tex.App.-San Antonio 1992, writ denied). Section 16.068 cannot revive claims that were time-barred when the original petition was filed. Id.; accord Khalaf v. Williams, 763 S.W.2d 868, 870 (Tex.App.-Houston [1st Dist.] 1988), rev’d on other grounds, 802 S.W.2d 651 (Tex.1990). Meyers’s article 21.21 claims were time-barred by at least May 1996 and could not be revived under section 16.068. We distinguish all of the cases on which Meyers relies because, in them, the newly added claims would have been timely had they been filed at the time of the original pleading.²⁹

*18 We hold the trial judge properly rendered summary judgment on Meyers’s cross-claims against National Union. Accordingly, we overrule issue one. We thus need not reach Meyers’s issue two.

III. CONCLUSION

We reverse the judgment insofar as it rendered a take-nothing judgment on United’s contract-breach claim and insofar as it allowed damages to TEPPCO above the pro-rata limit we have established herein.³⁰ We affirm the judgment in all other respects. We remand the cause for proceedings on United’s contract-breach claim against National Union and with instructions to limit TEPPCO’s recovery pro-rata, as herein decided, which will necessarily require a recalculation of pre-judgment interest on TEPPCO’s recovery (based solely on the pro-rata limitation, not on the starting date of prejudgment interest).

	Footnotes
1		Appellant National Union Fire Insurance Company of Pittsburgh, PA’s briefs do not treat Meyers–Reynolds & Associates, Inc. as an appellee, but (1) Meyers–Reynolds & Associates, Inc. has filed an appellee’s brief without objection and (2) the relief Appellant National Union Fire Insurance Company of Pittsburgh, PA seeks could impact Meyers–Reynolds & Associates, Inc.
31		The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.
2		A gap could occur because an occurrence between May 1, 1991 and May 1, 1992 would not be covered under Lloyd’s claims-made policy unless a claim for that occurrence had been made before May 2, 1992. Similarly, a claim made after May 1, 1992 for the same occurrence would not be covered under National Union’s occurrence policy because the occurrence would have taken place before that policy took effect on May 1, 1992.
3		Other defendants were also named, but they are not parties to this appeal.
4		G.A. Stowers Furniture Co. v. American Indem. Co., 15 S.W.2d 544, 546–47 (Tex.1929) (recognizing policyholder’s cause of action against liability insurer for negligently refusing settlement offer within policy limits).
5		TEPPCO and United non-suited the fraud claim before trial. Neither plaintiff attempted to submit its Stowers claims to the jury.
6		For example, “caused by an occurrence during the policy period ….“
7		For example, “occurrence means an event … which result[s] in Personal Injury and Property Damage during the policy period …”; “personal injury means bodily injury, sickness, or disease sustained by any person which occurs during the policy period ….“
8		See also Susan Miller, Philip Lefevre, 1 Miller’s Standard Insurance Policies Annotated 409, 623 (4th ed.1995) (reprinting Insurance Services Office (“ISO”) CGL (1992) and umbrella CGL (2000) forms, both of which use “during the policy period” in the coverage section’s insuring agreement); Eric Mills Holmes, 16 Holmes’ Appleman on Insurance 2nd, Law of Liability Insurance §§ 117.1(A)(1)-(2) (2000) (setting out the basic CGL insuring agreement and discussing its history; noting inclusion of “during the policy period” language either in insuring agreement or occurrence definition of ISO CGL forms since 1960s); Jeffry W. Stempel, Law of Insurance Contract Disputes, Commercial General Liability Insurance § 14.09 [a][1] (Supp.2002) (noting that “express language of the occurrence basis CGL” includes “during the policy period”).
9		See H.E. Butt Grocery Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 150 F.3d 526, 529 (5th Cir.1998) (National Union used “during the policy period” language in its CGL policy’s definition of occurrence); GATX Leasing Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 64 F.3d 1112, 1116 (same); Lafarge Corp. v. Nat’l Union Fire Ins. of Pittsburgh, PA, 935 F.Supp. 675, 679 (D.Md.1996) (National Union used “during the policy period” language in its CGL policy’s definition of property damage and occurrence); Nat’l Union Fire Ins. of Pittsburgh, PA. v. Structural Sys. Tech., Inc., 756 F.Supp. 1232, 1237 (E.D.Mo.1991) (National Union used “during the policy period” language in its CGL policy’s coverage provision), aff’d, 964 F.2d 759 (8th Cir.1992); W.E. O’Neil Constr. Co. v. Nat’l Union Fire Ins. of Pittsburgh, PA., 721 F.Supp. 984, 991 (N.D.Ill.1989) (National Union used “during the policy period” language in its CGL policy’s definition of property damage).
10		“Products Hazard” is defined as “Personal Injury and Property Damage arising out of the Insured’s products or reliance upon a representation or warranty thereto, but only if the Personal Injury or Property Damage occurs away from premises owned by or rented to the Insured and after physical possession has been relinquished to others.” National Union’s brief agrees that the Moore incident would have fallen under this definition.
11		Construing an insurance provision that “Additional Insureds are covered under this policy as required by written contract” and reasoning as follows: National Union’s final argument is that it is entitled to know, by looking at the contract, who becomes an additional insured. If National Union’s policy required that the additional insureds be identified in the policy by name, or provided extra coverage for differing amounts depending on who the additional insureds were, this argument might have merit, but the policy involved here requires neither. It simply provides coverage to additional insureds when Zaval Tex is, by written contract with another party, required to obtain such coverage. There is no requirement that Zaval Tex notify National Union if such a contract exists, or the identity of the additional insured. Id., slip op. at 8.
12		853 S.W.2d 505 (Tex.1993).
13		The parties stipulated that TEPPCO’s $3.8 million settlement was funded as follows: $2 million from TEPPCO’s primary carrier and $1.8 million from TEPPCO’s excess policy with Lloyd’s. National Union does not argue on appeal that it should receive a credit for the $2 million primary payment. Therefore, this challenge under issue three applies to only $1.8 million of the $3.8 million awarded TEPPCO.
14		See Tex.R. Civ. P. 5, 329b(b); Voth v. Felderhoff, 768 S.W.2d 403, 412 (Tex.App.-Fort Worth 1989, writ denied) (supplemental new trial motion filed more than 30 days after judgment could not be considered, even when trial court retained plenary power); Wirtz v. Massachusetts Mut. Life Ins. Co., 898 S.W.2d 414, 420 n. 2 (Tex.App.-Amarillo 1995, no writ) (supplemental new trial motion filed more than 30 days after judgment could not be considered); Riviea v. Marine Drilling Co., 800 S.W.2d 252, 258 (Tex.App.-Corpus Christi 1990, writ denied) (same, supplemental motion); Equinox Enter., Inc. v. Assoc. Media Inc., 730 S.W.2d 872, 875 (Tex.App.-Dallas 1987, no writ) (same, supplemental motion). The opinion upon which National Union relies, L.M. Healthcare, Inc. v. Childs, was withdrawn and superceded by the Supreme Court the same year. 920 S.W.2d 286 (Tex.1996), withdrawn and superceded on reh’g, 929 S.W.2d 442 (Tex.1996). Nonetheless, neither Childs opinion concerned the trial court’s authority to consider a supplement that was untimely under rule 329b(b). Id., 929 S.W.2d at 444 (concerning instead post-trial motion to modify that was filed timely after the simultaneous signing of both a final judgment and an order denying a new trial motion).
15		The Lloyd’s excess policy: OTHER INSURANCE: If any named Assured hereunder, or any other person or organization now or hereafter named as an Assured or additional Assured hereunder, has any other insurance against a loss covered by this insurance other than insurance that is specifically stated to be excess of this Policy, the insurance afforded by this Policy shall be excess of and shall not contribute with such other insurance. Nothing herein shall be construed to make this Policy subject to the terms, conditions and limitations of such other insurance. The umbrella policy of National Union: Other insurance—If other valid and collectible insurance with any other insurer is available to the Insured covering a loss also covered hereunder, this insurance shall be in excess of, and shall not contribute with, such insurance. Excess insurance over the limits of liability expressed in this policy is permitted without prejudice to this insurance and the existence of such insurance shall not reduce any liability under the policy.
16		Meyers filed an appellee’s brief in United’s appeal. However, United’s appellant’s brief did not treat Meyers as an appellee or challenge the rule 166a(c) summary judgment that the trial judge granted in favor of Meyers on United’s and TEPPCO’s claims against Meyers. Because United does not challenge that ruling on appeal, the summary judgment rendered in Meyers’s favor remains intact. See Garcia v. Nat’l Eligibility Express, Inc., 4 S.W.3d 887, 889 (Tex.App.-Houston [1st Dist.] 1999, no pet.).
17		United sought to recover only $6.2 of its approximately $8.5 million settlement because TEPPCO had already recovered $3.8 million of the umbrella policy’s $10 million aggregate limit.
18		925 S.W.2d 696 (Tex.1996).
19		Before the complained-of ruling, the trial judge had granted National Union’s motion in limine preventing National Union or TEPPCO from referring to the Moore lawsuit judgment because it “was obtained without a fully adversarial trial and thus any judgment rendered is not legally binding….”
20		National Union itself moved for summary judgment on the ground, in part, that Gandy precluded the Moore lawsuit judgment’s use in the current suit. (The trial judge ultimately denied National Union’s motion.) United’s summary judgment response argued that Gandy did not apply because the Moore agreement preceded Gandy and, alternatively, did not violate Gandy. Again, before the complained-of ruling, the trial judge had granted National Union’s motion in limine preventing National Union or TEPPCO from referring to the Moore lawsuit judgment because it “was obtained without a fully adversarial trial and thus any judgment rendered is not legally binding….” This motion in limine clearly referred to Gandy.
21		By referring to his “brief,” counsel may have been referring to National Union’s summary judgment motion on Gandy, which the judge had earlier denied; there was no “brief” attached to National Union’s in limine motion.
22		The trial judge was apparently referring to Mr. Lochridge.
23		The trial judge was apparently referring to Mr. Tucker.
24		We distinguish the cases on which National Union relies because, in them and unlike here, no evidentiary ruling preceded the offer of proof. See Estate of Veale v. Teledyne Indus., Inc., 899 S.W.2d 239, 243 (Tex.App.-Houston [14th Dist.] 1995, writ denied) (no clear record of pretrial evidentiary ruling, and no record that appellants told judge why the evidence was admissible); Greenstein, Logan & Co. v. Burgess Mktg., Inc., 744 S.W.2d 170, 181 (Tex.App.-Waco 1987, writ denied) (appellant did not show that judge had ruled to exclude the evidence included in the offer of proof).
25		National Union relies on the second exception.
26		The current lawsuit was apparently filed in 1995, but National Union does not dispute United’s assertion that suit was against only against Meyers at that time (the original petition is not in the record). National Union was not added as a defendant until April 10, 1997.
27		“As a rule, our decisions apply retrospectively. There are exceptions, determined mostly by three factors: (1) whether the decision establishes a new principle of law by either overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) whether prospective or retroactive application of the particular rule will further or retard its operation through an examination of the history, purpose, and effect of the rule; and (3) whether retroactive application of the rule could produce substantial inequitable results. As in Elbaor, we believe that the first and third factors weigh heavily in favor of limiting the retroactive effect of today’s decision.” Id., 925 S.W.2d at 719 20 (emphasis added; citations omitted).
28		National Union claims that the record does not contain Meyers’s 1997 original cross-petition, but the record does.
29		See Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816, 817 (Tex.1950); Lone Star Partners v. Nationsbanc Corp., 893 S.W.2d 593, 601 (Tex.App.-Texarkana 1995, writ denied); Milestone Props., Inc. v. Federated Metals Corp., 867 S.W.2d 113, 115, 118 (Tex.App.-Austin 1993, no writ) (also holding that “relating back” claims subject to 2 year limitations were barred because the original petition was filed more than two years after accrual); Long v. State Farm Fire & Cas. Co., 828 S.W.2d 125, 126 (Tex.App.-Houston [1st Dist.] 1992, no writ), disapproved on other grounds, Johnson & Higgins of Texas v. Kenneco Energy, 962 S.W.2d 507, 518–19 (Tex.1998).
30		The pro-rata limit is applicable to only $1.8 of the total $3.8 million damages awarded TEPPCO.