The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on June 2, 2008:

• Noble Energy Inc. v. Bituminous Casualty Co. (King, Wiener, Elrod, JJ.; opinion by Wiener, J.). Noble Energy entered into an agreement for T&L Lease to remove and dispose of basic sediment & water (”BSW”) from its petroleum exploration operations site; as part of the agreement, Noble required T&L to obtain insurance coverage naming Noble as an additional insured, and T&L did so through Bituminous. After a BSW-related accident that resulted in the deaths of three people and several injuries, Noble and others were sued. Following a settlement by Noble and its insurance carriers, they sought damages from Bituminous for coverage under its policy of Noble as an additional insured and arising from Bituminous’s failure to exercise its duty to defend and indemnify Noble. Affirming the judgment of the district court, the Fifth Circuit did not reach Bituminous’s challenge of Noble’s status as an additional insured, basing its judgment instead on the holding that the Bituminous policy’s pollution exclusion clause clearly applied to the occurrence at issue. Where the accident occurred when vapors were released by the BSW during unloading operations at the disposal site, the Court held that the unambiguous pollution exclusion was triggered.
• Newby v. Enron Corp. (Smith, Prado, Ludlum, JJ.; opinion by Prado, J.). Plaintiffs’ counsel, three months after the expert report deadline and the day before the deposition of their expert, submitted a revised expert report that reflected substantial changes to the report’s table of contents made by plaintiffs’ counsel. Upon discovering that the changes had been made, at the beginning of the expert’s deposition defense counsel called a telephone hearing with the judge, who ordered the deposition halted. In the resulting dispute, the district court held that the plaintiffs’ counsel’s untimely and unauthorized submission of the revised expert report constituted sanctionable behavior and ordered the plaintiff to pay attorneys’ fees for the defendants’ efforts to bring the sanctions motion, referring the question of the amount of fees to a magistrate. In the interim period between the district court’s order and the magistrate’s hearing on the amount of fees, the parties settled the underlying dispute, including that the defendants would forego the attorneys’ fees attendant to the sanctions motion. Nevertheless, the magistrate found that attorneys’ fees were owed and the district court entered an order for that amount. On appeal, the Fifth Circuit held that the parties were free to bargain away the compensatory portion of a sanctions award, and thereby vacated the district court’s award of attorneys’ fees as either equitably mooted or mooted by operation of the settlement. The Fifth Circuit, however, held that the finding of sanctionable conduct, itself, could be upheld on purely reputational grounds, and found that the district court was correct on the merits of the finding of sanctionable conduct, and affirmed the entry of sanctions.
• American International Specialty Lines Insurance Co. v. Res-Care Inc. (Reavley, Higginbotham, Garza, JJ.; opinion by Reavley, J.). Affirming the district court’s judgment apportioning $5 million of a $9 million settlement against insured on insurer’s claim that insured violated a non-waiver agreement. The Fifth Circuit held that, in an apportionment suit, the district court is not limited to considering only evidence that would have been admissible in the underlying action, but may consider any evidence relevant to the inquiry into what portion of the settlement was attributable to covered claims and what portion to noncovered claims; that the doctrines of waiver and estoppel did not act to bar the insurer’s claims against the insured where the insurer had provided a defense to the underlying claims for a year and a half before commencing to do so under a reservation of rights, because here the insured had contracted out of reliance on the doctrines when it executed the non-waiver agreement with the insurer; that the district court did not err in finding that the settlement amount was based only on the primary claimed injury and death and not on injury claims that were added to the underlying lawsuit on the eve of settlement; that the apportionment of punitive damages to the insured as noncovered claims was appropriate under the Fairfield analysis; and that the insurer was not entitled to attorneys’ fees as the insured had not yet violated the non-waiver agreement.