Willbros RPI, Inc. v. Continental Cas. Co., No. 08-20665, involved an action against an insurer seeking a declaratory judgment that defendant was required to provide defense and indemnity. The court of partially appeals affirmed the district court's order of partial summary judgment for plaintiff, on the grounds that 1) conduct that clearly fell outside of the professional services exclusion provides an independent but for cause of the injury; and 2) indemnity issues must await resolution of the underlying suit. However, the Fifth Circuit reversed the order in part, on the ground that defendant-insurers' "Other Insurance" provisions conflicted and liability for defense of the underlying suit should thus be apportioned on a pro rata basis.
As the court wrote: "Even assuming that CNA were correct as to the requisite showing, Exxon's complaint alleges damages that could have occurred even if there was no error in the approval of the plans. For example, even if the survey and its approval were perfect in every respect and the subcontractors simply failed to aim the directional drill correctly, Exxon could still recover. Put differently, conduct that clearly falls outside of the professional services exclusion provides an independent but for cause of the injury."