Case: 15-20751   Document: 00514127286    Page: 1   Date Filed: 08/22/2017




           IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals

                                No. 15-20751
                                                                         Fifth Circuit

                                                                       FILED
                                                                 August 22, 2017

EXXONMOBIL CORPORATION,                                           Lyle W. Cayce
                                                                       Clerk
             Plaintiff - Appellee Cross-Appellant

v.

ELECTRICAL RELIABILITY SERVICES, INCORPORATED; OLD
REPUBLIC INSURANCE COMPANY,

             Defendants - Appellants Cross-Appellees




                Appeals from the United States District Court
                     for the Southern District of Texas


Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      This diversity case under Texas law involves a dispute between
ExxonMobil (Exxon), on one hand, and Exxon’s contractor, Electrical
Reliability Services (ERS), and ERS’s insurer, Old Republic Insurance
Company (ORIC), on the other. The dispute arises out of a personal injury
lawsuit filed by an employee of a subcontractor of ERS against Exxon and ERS.
Exxon settled that lawsuit for $2.5 million and sought reimbursement from
ERS and ORIC, contending that ERS’s contractual obligation to insure Exxon
as an additional insured and the insurance policy issued by ORIC required
ERS and ORIC to pay for the settlement of the suit and the cost of litigation.
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In a 2012 judgment, the district court concluded that ORIC breached its
obligation to provide coverage and that ERS breached its obligation to pay the
policy’s $3 million deductible. The court therefore awarded Exxon over $3
million in damages, attorney’s fees, costs, and interest. ERS appealed, but a
prior panel of this court vacated the district court’s judgment and remanded
for reconsideration in light of the intervening decision by the Supreme Court
of Texas in In re Deepwater Horizon, 

(Tex. 2015). On remand,
the district court determined that the intervening case did not affect its
decision and essentially reinstated its 2012 judgment.
      ERS again appealed, challenging the district court’s conclusion as to its
obligation to pay the deductible. Alternatively, ERS contends that the district
court erred in its award of pre-judgment interest through the date of the
judgment on remand rather than only through the date of the 2012 judgment.
ORIC also appeals, claiming that the district court erred by holding it jointly
and severally liable with ERS for the full amount of the judgment. Exxon
cross-appeals, challenging the district court’s denial of certain attorney’s fees.
                              I. BACKGROUND
      In 2008, Exxon contracted with ERS for the performance of electrical
work and services at Exxon’s chemical facility and refinery in Beaumont,
Texas. The contract between the parties contained indemnity and insurance
provisions. The indemnity provision, contained in § 12 of the contract, required
that each party indemnify the other from third party claims resulting from the
first party’s negligence. It provided, in relevant part:
      12. Third Party Indemnity. Purchaser [Exxon] and Supplier
      [ERS] shall indemnify, defend, and hold each other harmless from
      all claims, demands, and causes of action asserted against the
      indemnitee by any third party . . . for personal injury, death, or
      loss of or damage to property resulting from the indemnitor’s
      negligence.

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The insurance provisions, contained in § 14, required ERS to purchase
commercial general liability and other types of insurance and to name Exxon
as an additional insured on the policies.       Section 14, in pertinent part,
provided:
      14. Insurance.
      (a) Coverages. Supplier [ERS] shall carry and maintain in force
      at least the following insurances and amounts: . . . (2) its normal
      and customary commercial general liability insurance coverage
      and policy limits or at least $1,000,000, whichever is greater,
      providing coverage for injury, death or property damage resulting
      from each occurrence . . . . Notwithstanding any provision of an
      Order to the contrary, Supplier’s liability insurance policy(ies)
      described above shall: (i) cover Purchaser [Exxon] and Affiliates as
      additional insureds in connection with the performance of
      Services; and (ii) be primary as to all other policies (including any
      deductibles or self-insured retentions) and self insurance which
      may provide coverage.

      (b) Other Insurance Requirements. The above obligations of
      Supplier [ERS] and/or its Insurers shall apply to Supplier’s [ERS’s]
      self-insured retentions and/or deductibles.          The minimum
      insurance requirements as set forth above shall not limit or waive
      a party’s legal or contractual responsibilities to the other party or
      others. Supplier’s insurance shall apply to Supplier’s indemnity
      and defense obligations under the Order except, with respect to
      Services subject to the law of the State of Texas, each party agrees
      to maintain the insurance and limits as specified in this Section or
      self insurance during the duration of this Agreement in support of
      the mutual indemnifications, if any, agreed to in Sections 11, 12,
      and 13 above.
      ERS purchased an insurance policy from ORIC that provided for a
$3 million deductible.    An endorsement to the policy also provided for
additional-insured coverage where ERS had “agreed by any contract” to so
provide, but, it qualified, “Any additional insureds are additional insureds only
in respect to their interest in the operations of the Named Insured and only for



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such terms and limits which are the lesser of the policies hereon or the written
requirements between the Named Insured and the Certificate Holder.”
      ERS subcontracted part of the work and services at the Exxon facility to
MMR, Inc. John Burnham, an MMR employee, was severely injured while
working at the facility. Burnham brought negligence claims against Exxon in
state court and later added ERS as a defendant. Exxon sent ERS a demand
for coverage as an additional insured, but ERS subsequently denied coverage.
Exxon ultimately settled Burnham’s claims against it for $2.5 million, while
disclaiming liability. Burnham later voluntarily dismissed his claims against
ERS. Exxon then sought insurance coverage for its settlement payment and
related defense fees, costs, and interest, but ERS and ORIC denied coverage.
Exxon brought suit for declaratory judgment in Texas state court against ERS
and ORIC, contending that ERS was required to insure Exxon under the 2008
contract and that ORIC, as ERS’s insurer, was obligated to provide coverage to
Exxon for the settlement of the Burnham suit and attorney’s fees incurred in
connection with that suit.
      ERS removed that action to the United States District Court for the
Southern District of Texas based on diversity jurisdiction. Exxon and ERS
filed cross-motions for summary judgment on the issue of whether ERS was
contractually obligated to name Exxon as an additional insured. ERS argued
that the relevant contract was a prior 2007 agreement between the parties,
which did not require ERS to insure Exxon as an additional insured.
Alternatively, ERS contended that under the 2008 contract ERS was obligated
to cover Exxon as an additional insured only to the extent of the parties’ mutual
indemnification obligations. ERS argued that it was therefore not obligated to
provide coverage for harms resulting from Exxon’s sole negligence, which,
according to ERS, included Burnham’s injuries. Ruling on the parties’ cross-
motions, the district court determined that the operative contract was the 2008
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                                 No. 15-20751
contract, that the contract required ERS to provide additional-insured
coverage for Exxon, and that this insurance obligation was not limited by the
indemnity provision of that contract. However, the district court also ruled
that ERS had complied with its obligation through the additional-insured
endorsement to its policy with ORIC.
      Despite the district court’s partial summary judgment ruling on the
issue of coverage, ERS and ORIC continued to refuse to reimburse Exxon in
connection with the Burnham settlement. ERS and Exxon disagreed as to
which party was responsible for payment of the policy’s $3 million deductible.
Among other arguments ERS raised in this respect, it reasserted its
previously-rejected position that the indemnity provision in the 2008 contract
served to limit its obligations under the insurance provision. Following this
argument, ERS maintained that the indemnity provision mandated that
Exxon pay the deductible because, according to ERS, Burnham’s injuries
resulted from Exxon’s sole negligence. ORIC, for its part, claimed that it was
not responsible for any payment because, according to ORIC, the relevant
amounts owed were less than the amount of the $3 million deductible and
therefore did not trigger ORIC’s responsibility to make payments on Exxon’s
claim. Following a bench trial, the district court held: (1) ERS breached the
contract by failing to pay the deductible, and (2) ORIC breached the insurance
policy by failing to provide Exxon with a defense in the Burnham lawsuit and
failing to cover any amounts above the deductible. The district court made no
finding as to the parties’ respective negligence, if any, in connection with
Burnham’s injuries.
      In a 2012 amended final judgment, the district court held ERS and ORIC
jointly and severally liable to Exxon for $3,212,002.70 for the settlement of
Burnham’s lawsuit, defense fees and costs in that suit, and interest and
attorney’s fees in the present suit, and it provided for an additional $40,000 to
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                                    No. 15-20751
be awarded for appellate attorney’s fees if ERS or ORIC brought an
unsuccessful appeal. ERS and ORIC appealed. Prior to any decision in that
appeal, the Supreme Court of Texas decided this court’s certified question in
In re Deepwater Horizon, 

(Tex. 2015). 1 A prior panel of this
court then vacated the district court’s judgment and remanded it “for further
consideration in the light of the answer given by the Texas Supreme Court [in
Deepwater Horizon],” Exxonmobil Corp. v. Elec. Reliability Servs., 616 F. App’x
137, 138 (5th Cir. 2015), with each party to bear its own costs on appeal.
      On remand, the district court concluded that Deepwater Horizon had no
impact on its prior decision and therefore reinstated its 2012 judgment. In
January 2016, upon motion by Exxon for additional attorney’s fees and pre-
judgment interest, the district court entered a second amended final judgment,
adding pre-judgment interest up to the date of that judgment and holding ERS
and ORIC jointly and severally liable for a total of $3,670,359.57. However,
the court rejected Exxon’s request for attorney’s fees incurred in defending the
initial appeal and additional attorney’s fees that were incurred prior to that
appeal.
      The parties now appeal and cross-appeal. ERS challenges the district
court’s determination, following the bench trial, that ERS was obligated to pay
the deductible in connection with Exxon’s losses related to the Burnham
litigation. Alternatively, ERS claims that the court erred in awarding pre-



      1  The Deepwater Horizon opinion was issued in response to the following certified
question from this court:
       Whether Evanston Ins. Co. v. ATOFINA Petrochems., Inc., 

       (Tex. 2008), compels a finding that BP is covered for the damages at issue,
       because the language of the umbrella policies alone determines the extent of
       BP’s coverage as an additional insured if, and so long as, the additional insured
       and indemnity provisions of the Drilling Contract are “separate and
       independent”?
Deepwater 

.
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                                  No. 15-20751
judgment interest through the date of the judgment on remand and that,
instead, the court should have awarded pre-judgment interest up to the date
of the 2012 judgment and post-judgment interest from that point on. ORIC
challenges the court’s decision to hold it jointly and severally liable with ERS
for the entire amount of the award rather than only for those amounts in excess
of, or not subject to, ORIC’s policy’s deductible. Notably, neither ERS nor ORIC
challenges the district court’s partial summary judgment ruling on the issue of
coverage. Exxon’s cross-appeal challenges the district court’s denial of its
request for additional attorney’s fees.
                            II. APPLICABLE LAW
      In reviewing a bench trial, we review findings of fact for clear error and
legal determinations de novo. Seal v. Knorpp, 

, 1234 (5th Cir.
1992). “When, as in this case, subject matter jurisdiction is based on diversity,
federal courts apply the substantive law of the forum state—here, [Texas].”
Boyett v. Redland Ins. Co., 

, 607 (5th Cir. 2014). “To determine
the forum state’s law, we look first to the final decisions of that state’s highest
court—here, the [Texas] Supreme Court.”            

absence of a
determinative decision by that court on the issue of law before us, we must
determine, in our best judgment, how we believe that court would resolve the
issue.” 

such a determination, we “may look to the decisions of
intermediate appellate state courts for guidance.” Howe v. Scottsdale Ins. Co.,

, 627 (5th Cir. 2000).
                              III. ERS’S APPEAL
      A. Duty to Pay the Deductible
      ERS contends that its duty to pay the deductible for Exxon’s claims as
an additional insured under § 14 of the 2008 contract was limited by § 12’s
provision that Exxon must indemnify ERS for claims arising from Exxon’s


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negligence. 2 ERS maintains that Exxon’s sole negligence caused Burnham’s
injuries and thus that, contrary to the district court’s conclusion, it was under
no obligation to pay the deductible in connection with Exxon’s losses related to
the Burnham litigation.         Exxon responds that the district court correctly
interpreted the insurance requirements of § 14 as separate and independent
from the indemnity requirements of § 12, and it also emphasizes that the
district court did not make any findings of fact as to the negligence of any party.
       The proper interpretation of a contract is a legal determination that is
reviewed de novo. Leonard v. Nationwide Mut. Ins. Co., 

, 428 (5th
Cir. 2007). Under Texas law, in construing a contract, a court “must ascertain
the true intentions of the parties as expressed in the writing itself.” Italian
Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 

, 333 (Tex.
2011). If the plain language of a written contract is such that it can be given a
definite legal meaning, then it is not ambiguous as a matter of law and the
court must enforce it as written. Univ. C.I.T. Credit Corp. v. Daniel, 

, 157 (Tex. 1951). “[C]ourts will not rewrite agreements to insert
provisions parties could have included or to imply restraints for which they
have not bargained.” Tenneco Inc. v. Enter. Prod. Co., 

, 646
(Tex. 1996).     In construing the plain language of the contract, no single
provision taken alone is to be given controlling effect; rather, each provision
must be considered with reference to the whole instrument. MCI Telecomms.
Corp. v. Tex. Utils. Elec. Co., 

, 651 (Tex. 1999). Courts must



       2 ERS expressly disclaims any challenge to the district court’s partial summary
judgment ruling that the endorsement to its policy with ORIC provided coverage for Exxon
as an additional insured. Nevertheless, ERS makes an assertion in its brief that ORIC’s
policy incorporated § 12 of the 2008 contract as a limitation on its coverage of Exxon as an
additional insured. However, as ERS appropriately concedes, the extent of its obligation to
provide insurance coverage for Exxon and to pay the deductible depends on the terms of the
2008 contract rather than on the terms of ORIC’s policy. Accordingly, we need not examine
the terms of the policy itself.
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favor an interpretation that affords some consequence to each part of the
instrument so that none of the provisions will be rendered meaningless.
Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 

,
126 (Tex. 2010).
      As previously noted, § 14(a) of the contract provides, in relevant part:
      Supplier [ERS] shall carry and maintain in force at least the
      following insurances and amounts: . . . (2) its normal and
      customary commercial general liability insurance coverage and
      policy limits or at least $1,000,000, whichever is greater, providing
      coverage for injury, death or property damage resulting from each
      occurrence . . . . Notwithstanding any provision of an Order to the
      contrary, Supplier’s liability insurance policy(ies) described above
      shall: (i) cover Purchaser [Exxon] and Affiliates as additional
      insureds in connection with the performance of Services; and (ii)
      be primary as to all other policies (including any deductibles or
      self-insured retentions) and self insurance which may provide
      coverage.
Section 14(b) states, in pertinent part, “The above obligations of Supplier
and/or its Insurers shall apply to Supplier’s self-insured retentions and/or
deductibles.”
      ERS concedes that the plain language of these provisions, read in
isolation, suggests that ERS was obligated to maintain insurance covering
Exxon’s losses in connection with the Burnham litigation and to pay the
deductible. However, ERS contends that the indemnity provision in § 12, read
in conjunction with § 14, compels a different interpretation.         Section 12
provides: “Purchaser [Exxon] and Supplier [ERS] shall indemnify, defend, and
hold each other harmless from all claims, demands, and causes of action
asserted against the indemnitee by any third party . . . for personal injury . . .
resulting from the indemnitor’s negligence.” ERS asserts that § 12 allocated
liability between ERS and Exxon and provided that Exxon alone would be
liable for claims resulting from Exxon’s own negligence, which, according to
ERS, includes the Burnham litigation. ERS argues that requiring it to pay the
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                                  No. 15-20751
deductible for Exxon’s claim in connection with the Burnham litigation would
be inconsistent with § 12’s allocation of liabilities between the parties and
would render § 12 meaningless.
      The Supreme Court of Texas has long held that indemnity and insurance
provisions in a single contract may impose separate and independent
obligations. In the case of Getty Oil Co. v. Insurance Co. of North America, 

(Tex. 1992), Getty Oil entered into a contract to purchase chemicals
from NL Industries. 

The contract included both an indemnity
provision and an insurance provision. 

The insurance provision
stated, “All insurance coverage carried by [NL], whether or not required by [the
other provisions of the contract], shall extend to and protect” Getty. 

in original).   An independent contractor working for Getty was
subsequently killed in an accident involving NL’s product, and a jury found
that Getty was solely responsible for the accident. 

insurer
denied coverage for Getty, asserting, inter alia, that the Texas Oilfield Anti-
Indemnity Statute prohibited indemnification for one’s own negligence and
therefore invalidated the insurance provision. 

802–04. Based
on the breadth of the insurance provision’s language, which required NL to
extend insurance coverage to Getty “whether or not required [by the other
provisions of the contract],” the Supreme Court of Texas determined that the
insurance requirement was “a separate obligation,” independent from the
indemnity provision. See 

(alteration in original). In light of that
conclusion, the Getty court held that the prohibition of the Anti-Indemnity
Statute did not apply. See 

Ins. Co. v. ATOFINA Petrochemicals, Inc., 

(Tex. 2008), the Supreme Court of Texas reaffirmed the principle that
insurance and indemnity provisions can give rise to separate and independent
obligations. In that case, Triple S Industrial Corp. contracted to perform work
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                                  No. 15-20751
at an ATOFINA refinery under a service contract that contained separate
indemnity and insurance provisions. 

Triple S agreed to indemnify
ATOFINA for harms that were not due to ATOFINA’s negligence, misconduct,
or strict liability. 

also agreed to carry commercial general liability
insurance and excess insurance and to provide certificates of insurance naming
ATOFINA as an additional insured.            

   A Triple S employee
subsequently drowned at the refinery, and his survivors sued Triple S and
ATOFINA. 

coverage demands pursuant to its additional-
insured status, but the excess insurer denied ATOFINA coverage, arguing
that, in light of the indemnity provision, ATOFINA was not covered for losses
resulting from ATOFINA’s own negligence. 

the insurer’s
argument, the Supreme Court of Texas considered the language of the relevant
insurance provision in the underlying service contract, which required “that
ATOFINA ‘shall be named as additional insured in each of [Triple S’s]
policies.’” 

(alternation in original). Relying upon its prior decision
in Getty Oil, the court held that this language created a “separate and
independent” obligation to insure, which was not affected by “ATOFINA’s
agreement to forego contractual indemnity for its own negligence.”             See

.
      In Deepwater Horizon, the Supreme Court of Texas confronted an
additional-insured provision containing limiting language that was not
present in either Getty or ATOFINA. Deepwater Horizon involved an offshore
drilling contract between BP, an oil-field developer, and Transocean, a drilling-
rig owner, that contained both indemnity and additional-insured 

–57. “Among other indemnity provisions, Transocean agreed
to indemnify BP for above-surface pollution regardless of fault, and BP agreed
to indemnify Transocean for all pollution risk Transocean did not assume, i.e.,
subsurface pollution,” also regardless of fault. 

(footnote omitted).
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The additional-insured provision stated that BP and its affiliates “shall be
named as additional insureds in each of Transocean’s policies . . . for liabilities
assumed by Transocean under the terms of this contract.”               

(alterations omitted and added). Following the Deepwater Horizon explosion
and oil spill, BP demanded coverage from Transocean’s insurers, and the
insurers sought a declaration that BP would not be entitled to additional-
insured coverage for subsurface-pollution claims. 

The Supreme
Court of Texas concluded that BP was not entitled to coverage for such claims,
as it read the additional-insured provision to impose “a limitation on the
general insurance obligation that is coterminous with all of Transocean’s
contractual indemnity obligations.” 

–66. Thus, the court held that
BP was not covered by Transocean’s policies because BP, not Transocean,
assumed liability for subsurface-pollution claims. 

.
      In so holding, the Deepwater Horizon court clarified the principle
announced in Getty and applied in ATOFINA. Responding to BP’s argument
that the drilling contract’s indemnity and additional-insured provisions were
“separate and independent” and that the indemnity provision therefore did not
limit BP’s additional-insured status, the Supreme Court of Texas explained
that “BP’s argument conflates duty with scope”:
      [S]imply because the duties to indemnify and maintain insurance
      may be separate and independent does not prevent them from also
      being congruent; that is, a contract may reasonably be construed
      as extending the insured’s additional-insured status only to the
      extent of the risk the insured agreed to assume.

“Such is the case here” the court further explained. 

Contract required Transocean to name BP as an additional insured only for
the liability Transocean assumed under the contract. Accordingly, Transocean
had separate duties to indemnify and insure BP for certain risk, but the scope
of that risk for either indemnity or insurance purposes extends only to above-

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                                 No. 15-20751
surface pollution.” 

to the court in Deepwater Horizon, the
relevant inquiry is not simply whether the parties intended the indemnity and
additional-insured provisions to be independently and separately enforceable,
but also whether they intended the scope of the indemnity obligation to govern
the scope of the duty to provide additional-insured coverage. See 

turn to apply the principles established in Getty, ATOFINA, and Deepwater
Horizon to our case.
      As previously discussed, in construing the contractual indemnity and
additional-insured provisions at issue in the instant case, we must look to the
intention of the parties “as expressed in the writing itself.” Italian Cowboy

. Examining these contractual provisions, we
conclude that they are more similar to those in ATOFINA than to those in
Deepwater Horizon in that there is no language in either provision suggesting
that the parties intended the scope of the indemnity provision to govern the
scope of the insurance provision.      Similar to the insurance provision in
ATOFINA, the insurance provision of the 2008 contract provided that ERS’s
“liability insurance policy(ies) . . . shall: (i) cover [Exxon] and Affiliates as
additional insureds.” Using similarly broad language, the insurance provision
also provides that ERS’s obligation to afford coverage to Exxon “shall apply to
Supplier’s [ERS’s] self-insured retentions and/or deductibles.” Thus, the 2008
contract provided that ERS “shall” cover Exxon as an additional insured and
“shall” pay the applicable deductibles, without qualification. As in ATOFINA,
these requirements under the insurance provision are not tied to the scope of
liability under the indemnity provision.
      Contrary to ERS’s contentions, the additional-insured provision in the
instant case does not contain any limitation on ERS’s general insurance
obligation that is similar to the limitation in the additional-insured provision
in Deepwater Horizon, under which BP was to be named as an additional
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                                 No. 15-20751
insured only “for liabilities assumed by Transocean under the terms of this

–57. ERS points to two portions of § 14(b) that, it
contends, serve the same role as the limiting language in Deepwater Horizon.
First, it points to § 14(b)’s statement that “[t]he minimum insurance
requirements as set forth above shall not limit or waive a party’s legal or
contractual responsibilities to the other party or others.” This passage does
not serve to limit ERS’s general insurance obligations. The declaration that
insurance requirements shall not limit or waive contractual responsibilities is
most naturally read as a reservation of rights. For instance, it would likely
allow ERS to seek indemnification from Exxon, or vice versa, notwithstanding
ERS’s duty to insure Exxon. But this declaration does not impose a limitation
upon ERS’s duty to insure.
      Second, ERS emphasizes the following language in § 14(b):
      Supplier’s [ERS’s] insurance shall apply to Supplier’s [ERS’s]
      indemnity and defense obligations . . . except, with respect to
      Services subject to the law of the State of Texas, each party agrees
      to maintain the insurance and limits as specified in this Section or
      self insurance during the duration of this Agreement in support of
      the mutual indemnifications, if any, agreed to in Sections 11, 12,
      and 13 above.
ERS argues that Exxon’s duty to maintain its own insurance in support of
Exxon’s indemnity obligations establishes that ERS was not required to insure
Exxon for losses caused by Exxon’s sole negligence. But a requirement that
one party maintain insurance in support of its obligations related to a
particular contingency does not preclude a requirement that the other party
also maintain insurance to cover the same contingency. Indeed, as Exxon
points out, § 14(a) of the contract required ERS’s policies naming Exxon as
additional insured to “be primary as to all other policies,” meaning that the
contract contemplated that certain harms may be covered by multiple policies,
including policies held by Exxon. ERS also argues, “By § 14(b) first providing
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                                  No. 15-20751
that ERS’s insurance applies to ERS’s indemnity obligations, and then stating
‘except,’ the language that follows ‘except’ necessarily nullifies ERS’s obligation
to provide insurance to Exxon under the circumstances that follow ‘except.’”
That is a faulty argument. The language that precedes the word “except”
establishes ERS’s unilateral duty to maintain insurance coverage for its own
indemnity obligations; it does not address ERS’s obligation to maintain
coverage for Exxon as an additional insured. Thus, whatever the effect of the
language following the word “except” on ERS’s duty to maintain insurance in
support of its own obligation, it cannot affect ERS’s duty to provide additional-
insured coverage to Exxon.
      Contrary to ERS’s assertion, our interpretation of the scope of the
insurance provision in § 14 of the contract does not render the indemnity
provision in § 12 meaningless, as the latter would allow ERS to bring an
indemnity claim against Exxon, under appropriate circumstances. But, in the
present case, ERS has not brought a claim under the indemnity provision;
further, ERS introduced no evidence that any act or omission by Exxon caused
Burnham’s injuries, and the district court expressly stated that it had made no
findings of fact as to any party’s negligence.
      For the foregoing reasons, we conclude that, under the parties’ contract,
ERS’s obligation to insure Exxon and to pay any applicable deductibles was
not limited by the indemnity provision of the contract. Accordingly, we affirm
the district court’s judgment as to ERS’s duty to pay the deductible.
      B. Post-Judgment Interest
      The district court awarded pre-judgment interest up to the date of entry
of the second amended final judgment, in 2016, and post-judgment interest
from that date forward. ERS claims that this was error and that, instead, the
post-judgment interest rate, which is significantly lower than the applicable
pre-judgment interest rate, should apply from the date of the 2012 judgment
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because that judgment was not materially changed on remand. “In diversity
cases, federal law controls the award of postjudgment interest, including
decisions about when postjudgment interest begins to accrue.” Art Midwest,
Inc. v. Clapper, 

, 615 (5th Cir. 2015) (citing Nissho-Iwai Co. v.
Occidental Crude Sales, Inc., 

, 622–24 (5th Cir. 1988)). We review
the district court’s application of federal post-judgment interest de novo. See

Under 28 U.S.C. § 1961(a), post-judgment interest “shall be
calculated from the date of the entry of the judgment.” However, § 1961 does
not instruct how to apply post-judgment interest when there are multiple
judgments. 3
       In determining whether post-judgment interest should run from a pre-
or post-remand judgment, courts have considered whether the district court
reopened the record and whether the judgment was materially changed on
remand.     See, e.g., Art 

(post-judgment interest
applied from date of first judgment where this court “left much of the original
judgment intact” and where, on remand, the district court recalculated
damages without reopening the evidentiary record); Reaves v. Ole Man River
Towing, Inc., 

, 1113 (5th Cir. 1985) (post-judgment interest
applied from date of original judgment where this court remanded for
recalculation of damages in light of intervening law and the judgment was not
changed on remand); Loughman v. Consol-Penn. Coal Co., 

, 97–98 (3d



       3 Exxon argues that the district court had no authority to apply post-judgment interest
from the date of the 2012 judgment, pointing to the rule that “where the court of appeals
expressly or implicitly directs the entry of a money judgment on remand without mentioning
interest, post-judgment interest accrues only from the date of the judgment on remand.” Art

. Exxon notes that our court’s mandate in the prior appeal,
remanding the case to the district court, said nothing about interest. That rule has no
application in this case, however, as the previous panel remanded the case for reconsideration
in light of Deepwater Horizon and neither expressly nor implicitly directed the entry of a
money judgment on remand.
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                                No. 15-20751
Cir. 1993) (whether post-judgment interest should run from the original
judgment turns on “the degree to which the original judgment was upheld or
invalidated on appeal”); Cordero v. De Jesus-Mendez, 

, 16 (1st Cir.
1990) (“In general, where a first judgment lacks an evidentiary or legal basis,
post-judgment interest accrues from the date of the second judgment; where
the original judgment is basically sound but is modified on remand, post-
judgment interest accrues from the date of the first judgment.”). Where the
original judgment is “substantially affirmed by this court on appeal,” we have
held that “[federal post-judgment] interest properly accrues from the date of
the initial judgment ‘because that is the date on which the correct judgment
should have been entered.’” Brooks v. United States, 

, 740, 741
(5th Cir. 1985) (quoting Perkins v. Standard Oil Co. of Cal., 

, 676
(9th Cir. 1973)).
      Here, the previous panel vacated the 2012 judgment and remanded for
reconsideration in light of intervening law—it did not find the judgment
lacking in evidentiary or legal support. On remand, the district court, without
reopening the record, concluded that Deepwater Horizon required no change in
the judgment. Although the previous panel did not “substantially affirm” the
district court’s original judgment, we have now affirmed the essentially
identical judgment on remand. We thus conclude that the date of the 2012
judgment “is the date on which the correct judgment should have been
entered.” 

(internal quotation mark omitted) (quoting
Perkins v. Standard Oil Co. of Cal., 

, 676 (9th Cir. 1973)).
Therefore, we hold that post-judgment interest applies from the date of the
2012 judgment. See Art 

; 

;

; 

.
      Exxon argues that we have applied post-judgment interest from the date
of the original judgment only in cases in which remand was for recalculation
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                                  No. 15-20751
of damages or other, minor changes, whereas the instant case required the
district court to conduct a substantive analysis of its prior findings in light of
intervening law. We view this proffered distinction as immaterial. Under the
precedents previously discussed, the primary consideration is the degree to
which the original judgment is ultimately upheld or invalidated, not the
characterization of the district court’s labors on remand. See Art 

; 

; 

; 

. Here, while the 2012 judgment was technically vacated, it was
sound, and its adjudication of the merits remains essentially unchanged.
Accordingly, we reverse the portion of the district court’s judgment pertaining
to the award of interest and remand for the court to award pre-judgment
interest up to the date of the 2012 judgment and post-judgment interest from
that point on.
                             IV. ORIC’S APPEAL
      The district court’s judgment holds ORIC and ERS jointly and severally
liable for the entire award to Exxon. ORIC claims that this was error, as the
terms of ERS’s insurance policy provided for a $3 million deductible; it argues
that it should be held liable only for amounts above, or not subject to, the
deductible. Exxon does not attempt to defend the district court’s decision to
hold ORIC jointly and severally liable for the entire amount of the judgment.
Rather, both ORIC and Exxon agree that ORIC should be held liable only for
attorney’s fees, costs, and expenses related to litigation in this coverage suit
and the Burnham lawsuit, as those are not subject to the deductible, as well as
for any other amount that is covered by ORIC’s policy and exceeds the
deductible.
      Joint and several liability for a contractual claim depends on the
relationship between the parties and the existence of a joint obligation. CITI
Priesmeyer, Inc. v. K&O Ltd. P’ship, 

, 684 (Tex. App. 2005).
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                                  No. 15-20751
ORIC is correct that it should not be held jointly and severally liable with ERS
for the entire award to Exxon because it was under no obligation to pay
amounts that were subject to and did not exceed the deductible. Accordingly,
we vacate the district court’s judgment on this issue and remand for the district
court to modify the judgment to hold ORIC jointly and severally liable with
ERS only for any amounts either above or not subject to the policy’s $3 million
deductible.
                         V. EXXON’S CROSS-APPEAL
      Exxon appeals the district court’s failure to award certain attorney’s fees
in its second amended final judgment. During the bench trial, the parties
stipulated to the amounts of fees and costs incurred by Exxon and to their
reasonableness.      Following trial, the district court found that Exxon was
entitled to those fees and costs and also, upon Exxon’s request, made a
conditional award of $40,000 in attorney’s fees if ERS and/or ORIC brought an
unsuccessful appeal. On remand, Exxon filed an updated request for attorney’s
fees. The district court again awarded Exxon attorney’s fees, but it denied
attorney’s fees incurred during the initial appeal as well as additional
attorney’s fees that Exxon incurred in proceedings before the district court
prior to that appeal but that it did not previously seek. Exxon challenges the
denial of those fees.
      The award of attorney’s fees in this diversity case is governed by Texas
state law and reviewed for abuse of discretion. See DP Sols., Inc. v. Rollins,
Inc., 

, 433 (5th Cir. 2003). Under Texas law, the trial court has
discretion to determine the amount of the award, but an award of reasonable
fees is mandatory if a party prevails in a breach of contract case, such as the
instant case, and there is proof of reasonable fees. See 

& n.7 (citing
TEX. CIV. PRAC. & REM. CODE § 38.001). For the following reasons, we conclude


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                                 No. 15-20751
that the district court erred in denying Exxon attorney’s fees for the initial
appeal but properly denied Exxon’s previously-unrequested fees.
      A. Attorney’s Fees for the Initial Appeal
      Under Texas law, attorney’s fees for breach of contract include fees
incurred in defending against an unsuccessful appeal. 

(citing Gunter
v. Bailey, 

, 166 (Tex. App. 1991)). In denying Exxon attorney’s
fees for the initial appeal, the district court stated, “In light of the Fifth
Circuit’s Order that each party bear its own costs on appeal, [the judgment
amount] does not include fees and costs on appeal.” Because the district court
directly tied the previous panel’s order as to costs to the denial of attorney’s
fees, it appears that the district court believed that it was bound by that order
to deny Exxon attorney’s fees incurred on appeal.            However, our court’s
allocation of costs on appeal pertains to costs under Federal Rule of Appellate
Procedure 39, which includes only “the expenses of docketing an appeal [and]
preparing and filing briefs and records,” not attorney’s fees. Chem. Mfrs. Ass’n
v. U.S.E.P.A., 

, 1278 (5th Cir. 1989). Thus, our allocation of costs
on appeal does not affect a district court’s ability to award attorney’s fees
incurred on appeal.
      The question remains whether ERS’s appeal was unsuccessful. Exxon
argues that it “successfully defended ERS’s appeal” because the district court’s
judgment on remand was substantially similar to the 2012 judgment. ERS
rejects this characterization, arguing instead that Exxon failed to prevail on
appeal given that this court vacated the 2012 judgment. Neither party cites
Texas cases directly on point, and we are not aware of any. Both parties’
positions have persuasive force: on one hand, Texas courts have expressed
concern about potentially deterring meritorious appeals, see Gilbert v. City of
El Paso, 

, 337 (Tex. App. 2010) (“[A] trial court may not punish
a party for taking a successful appeal.”), and an appellate court’s vacatur of a
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                                        No. 15-20751
trial court’s judgment typically suggests that the appeal was meritorious,
regardless of the outcome on remand. For similar reasons, it is difficult to
characterize an appeal as unsuccessful where it resulted in the vacatur of an
unfavorable judgment.            On the other hand, an appeal that results in
reinstatement of the original judgment on remand can be seen as a pyrrhic
victory, leading to the same substantive result while prolonging the dispute
and greatly increasing both parties’ expenses.
       In the particular circumstances of the instant case, we conclude that
Exxon is entitled to attorney’s fees for the initial appeal. Beyond the fact that
the ultimate result of these protracted proceedings is that ERS remains liable
to Exxon and was unable to defeat the district court’s judgment, we view it as
highly relevant that the previous panel identified no error in the district court’s
judgment but vacated and remanded only for consideration of intervening
precedent.      Under these circumstances, we believe that ERS’s technical,
temporary victory is not the kind of meaningful success that the Texas courts
are concerned about discouraging. Accordingly, we reverse the district court’s
denial of attorney’s fees to Exxon for defending against ERS’s initial appeal. 4


       4  ERS maintains that, even if Exxon is entitled to attorney’s fees for the initial appeal,
it should receive only $40,000, the minimum amount Exxon originally requested from the
district court and that the district court awarded Exxon in the 2012 judgment. ERS claims
that Exxon’s request for only $40,000 acted as a judicial admission or constituted “invited
error.” Neither of those claims is correct.
        “A judicial admission is a formal concession in the pleadings or stipulations by a party
or counsel that is binding on the party making them. . . . [I]t has the effect of withdrawing a
fact from contention.” Martinez v. Bally’s La., Inc., 

, 476 (5th Cir. 2001). In
requesting attorney’s fees, Exxon stated, “[S]hould either Defendant pursue an unsuccessful
appeal against ExxonMobil, ExxonMobil requests an award of at least $40,000.00 for
appellate attorneys’ fees and costs.” This statement was not a concession or stipulation of
fact; instead, it was merely a request.
        As to “invited error,” under that doctrine, “a party cannot complain on appeal of errors
which he himself induced the district court to commit.” Heck v. Triche, 

, 279
(5th Cir. 2014) (alteration and internal quotation marks omitted) (quoting United States v.
Lopez-Escobar, 

, 1246 (5th Cir. 1991)). But this doctrine is also inapplicable
here, as Exxon is not challenging the district court’s initial award of $40,000 as error.
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                                  No. 15-20751
      B. Previously Unrequested Attorney’s Fees
      On remand from this court, Exxon requested roughly $32,000 in
attorney’s fees and costs related to post-trial and post-judgment briefing. The
district court denied these requests, stating that it “declines to award
additional late requested attorneys’ fees arising from the underlying trial of
this case.” Exxon claims its request for these fees was not late.
      Federal Rule of Civil Procedure 54(d)(2)(A) provides, “A claim for
attorney’s fees and related nontaxable expenses must be made by motion
unless the substantive law requires those fees to be proved at trial as an
element of damages.” Rule 54(d)(2)(B)(i) requires that such a motion “be filed
no later than 14 days after the entry of judgment.” Exxon argues that Rule
54(d)(2) does not apply to its claim for attorney’s fees because, it contends, such
fees are an element of damages under Texas law.
      However, the Supreme Court of Texas has held that attorney’s fees
incurred in the prosecution or defense of a claim are not compensatory
damages. In re Nalle Plastics Family Ltd. P’ship, 

, 172–73 (Tex.
2013) (“While attorney’s fees for the prosecution or defense of a claim may be
compensatory in that they help make a claimant whole, they are not, and have
never been, damages.”). Exxon attempts to distinguish Nalle Plastics, noting
that the court there considered the definition of compensatory damages for
purposes of Texas Civil Practice and Remedies Code Section 52.006, which
relates to the calculation of supersedeas bond amounts on appeal.             This
distinction notwithstanding, the court was clear that attorney’s fees incurred
in the prosecution or defense of a claim are simply not damages, relying on the
plain meaning of the term “compensatory damages” and on long-standing
precedent as well as a statutory provision distinguishing attorney’s fees from
damages. See 

The court’s analysis applies with equal force


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                                        No. 15-20751
here. 5 Accordingly, we affirm the district court’s denial of the previously
unrequested fees.
                                   VI. CONCLUSION
        For the forgoing reasons, we: 1) AFFIRM the district court’s judgment
as to ERS’s duty to pay the deductible; 2) REVERSE the portion of the
judgment pertaining to the interest award and REMAND for calculation of a
new interest award consistent with this opinion; 3) VACATE the portion of the
judgment that held ORIC jointly and severally liable with ERS for the entire
judgment and REMAND for modification consistent with this opinion; 4)
REVERSE the denial of Exxon’s attorney’s fees for the initial appeal and
REMAND for determination of amounts; and 5) AFFIRM the denial of Exxon’s
previously unrequested attorney’s fees.




       5 Exxon contends that, even if Rule 54 controls its request for attorney’s fees, it timely
moved to include the relevant fees, as the district court’s 2012 judgment was vacated and
Exxon requested the relevant fees before the second amended final judgment was entered.
However, Exxon included this argument only in its reply brief, and the argument is therefore
forfeited. See, e.g., Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par. Gov’t, 

, 626 (5th Cir. 2017) (issue not raised in party’s opening brief is forfeited).
                                              23