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Insured Loses on "Sole Negligence" Language

In Barden Mississippi Gaming LLC v. Great Northern Ins. Co., 2011 WL 1262264 (5th Cir. Apr. 6, 2011), the U.S. Court of Appeals for the Fifth Circuit held that an insurer did not have a duty to indemnify an additional insured because the policy provided coverage only for the named insured's "sole negligence" and the named insured was only found 50% negligent in the underlying action. In a previous appeal in the same matter, the Court held that the insurer had a duty to defend because it was possible that the additional insured could be found 100% liable. The court, however, also concluded that the question of indemnification was premature as the underlying case had not yet reached a verdict. Ultimately, the jury in the underlying action found the additional insured 50% negligent and the insured 50% negligent. As a result, the Fifth Circuit ruled that the insurer was not obligated to indemnify the additional insured for the judgment in the underlying case because the additional insured was not "solely negligent."

Be wary of "solely negligent" language in either an insurance policy or any other contract. You could be giving away valuable rights in agreeing to be paid or be indemnified with such language. If you would like a copy of this decision or have any questions regarding this decision, please feel free to contact me via my profile on LinkedIn at

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