ACE American Insurance Company et al v. Gray Insurance Company

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ACE AMERICAN INSURANCE CO., ET AL. 	CIVIL ACTION
VERSUS 	NO. 25-489
GRAY INSURANCE CO. 	SECTION: D (3)
ORDER AND REASONS
Before 	the 	Court 	are 	two 	motions: 	Plaintiffs’ 	ACE 	American 	Insurance
Company and ACE Property and Casualty Insurance Company’s Motion to Dismiss
Counterclaim in Part Under Rule 12(b)(6) and for a More Definite Statement Under
Rule 12(e)1 and Plaintiffs’ Motion to Exclude Exhibits to Gray's Opposition or,
Alternatively, to Exclude Settlement-Related Exhibit and Convert Proceeding to
Summary Judgment Under Rule 12(d).2 Defendant Gray Insurance Company has
filed responses in opposition to both motions,3 and Plaintiffs have replied.4 After
careful 	consideration 	of 	the 	parties’ 	memoranda, 	the 	counterclaim, 	and 	the
controlling law, the Court GRANTS Plaintiff’s Motion to Convert Proceeding 	to
Summary 	Judgment 	Under 	Rule 	12(d) 	and 	converts 	Defendant’s 	Response 	in
Opposition into a Motion for Summary Judgment under Fed. R. Civ. P. 56. It denies
the remaining Motion to Dismiss Counterclaim in Part as moot.
1 R. Doc. 25.
2 R. Doc. 30.
3 R. Docs. 28, 34.
4 R. Docs. 29, 35.
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 1 of 16

2
I. 	FACTUAL AND PROCEDURAL BACKGROUND5
This case arises from an explosion that occurred on October 8, 2015, at a gas-
processing plant owned by Transcontinental or The Williams Companies, Inc.
(collectively, “Transco”) in Terrebonne Parish.6 At the time of the explosion, several
contractors, including the Furmanite Corporation and Danos and Curole Marine
Contractors, LLC, were performing maintenance work on a portion of the plant
known as the “slug catcher.”7 Transco and the contractors had a General Service
Agreement, which mandated that each contractor procure an insurance policy and
name Transco as additional insured.8 Additionally, Furmanite and Danos had a
Master Service Contract, requiring Furmanite to procure an insurance policy and
name Danos, along with other entities, as additional insureds.9 Both Furmanite and
Danos did so, with Furmanite securing policies from ACE American Insurance
Company 	and 	ACE 	Property 	and 	Casualty 	Insurance 	Company 	(collectively,
“Chubb”) and Danos securing policies from Gray Insurance Company (“Gray”).10
Chubb claims that Transco is an additional insured under the Gray policies and that
the Gray policies are not excess to the Chubb policies and that both primary policies
contain “other insurance” provisions that require the policies to share costs.11 As a
result of the explosion, several lawsuits were filed against Transco, Danos, and
5 The factual background is taken from Plaintiff’s Complaint (R. Doc. 1) and Defendant’s Answer (R.
Doc. 19). Their inclusion here is merely for background and does not afford them the benefit of truth.
6 R. Doc. 1 at ¶ 7.
7 Id. at ¶ 8.
8 Id. at ¶ 10.
9 Id. at ¶ 11.
10 Id. at ¶¶ 12-15.
11 Id. at ¶¶ 18-21.
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 2 of 16

3
Furmanite, and, as a result of the litigation, Chubb states that it spent $4.5 million
in defense costs to defend these lawsuits.12
Chubb filed the present suit on March 12, 2025, requesting a declaratory
judgment that “Gray had an obligation to defend and indemnify Transco in the
Underlying Lawsuits under the Gray policies issued to Danos and to share the costs
of same with Chubb.”13 It also asserted claims for subrogation and breach of contract
against Gray.
Gray answered the suit on April 24, 2025, denying many of the allegations
made by Chubb in its Complaint.14 Gray also asserted a counterclaim against Chubb,
alleging that Chubb has breached its obligations under the policies it issued and
under the Master Service Contract between Furmanite and Danos.15 As a result of
such breach, Gray contends that it is entitled to all litigation defense costs that it has
incurred.16 Furthermore, Gray argues that, on May 7, 2020, it and Transco settled all
claims they had or may have had against Danos, Furmanite, and Gray, resulting in
an agreement indemnifying Gray against claims related to the lawsuits from the
subject explosion.17 Thus, Gray seeks a declaratory judgment that Chubb must fully
indemnify Gray, recoupment of any defense costs incurred, a finding that Chubb has
violated La. R.S. §§22:1892 and 22:1973, and any damages therefrom.18
12 See id. at ¶¶ 9, 25.
13 Id. at ¶ 30.
14 R. Doc. 19.
15 Id. at ¶ 32.
16 Id. at ¶¶ 35-36.
17 Id. at ¶¶ 44-46.
18 Id. at ¶ 48.
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 3 of 16

4
A. Motion to Dismiss Counterclaim in Part under Rule 12(b)(6) and for
a More Definitive Statement under Rule 12(e)
Chubb filed the instant motion to dismiss Gray’s counterclaim in part under
Fed. R. Civ P. 12(b)(6) and for a more definitive statement under Rule 12(e) on June
5, 2025.19 Chubb asks the Court to dismiss Gray’s counterclaim that Chubb breached
contractual and statutory obligations to Gray as Chubb’s additional insured, an all-
purpose contractual indemnitee of Chubb’s named insured (Furmanite), and as a
contractual 	indemnitee 	following 	the 	May 	2020 	settlement.20 	Addressing 	the
argument that Gray is Chubb’s additional insured, Chubb states that because Gray
has failed “to identify the specific insurance policy provision that Chubb allegedly
breached,” that failure alone renders the complaint deficient.21 As to the argument
that Gray is an indemnitee of Furmanite, Chubb again contends that “Gray fails to
identify the specific contract provision that Chubb allegedly breached in pleading its
breach-of-contract claim” and that, because they fail to do so, its counterclaim is
deficient, and “it necessarily follows that Gray also failed to allege a bad-faith failure
by Chubb,” except as to Gray’s capacity as Danos’s insurer.22 Regarding the May 7,
2020 settlement, Chubb argues that “Gray has no right to indemnity under the
settlement agreement” because “the indemnity clause in the settlement agreement
only applies to Transco-sought damages, of which there are none against Gray beyond
19 R. Doc. 25.
20 R. Doc. 25-1 at p. 1.
21 Id. at pp. 13-15.
22 Id. at pp. 16-17.
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 4 of 16

5
those Chubb seeks in this suit through subrogation, which subrogated claims are
expressly reserved in the agreement.”23
Gray responds that Chubb should be precluded from arguing that Gray is not
Chubb’s insured because Chubb has waived that argument.24 Gray argues that
Chubb knew that Gray believed it was Chubb’s insured and that Chubb “on multiple
occasions, specifically agreed and admitted that Gray is an insured under the [Chubb]
Policy and stated that it had already tendered partial payment to Gray as an
additional insured” under the policy.”25 Notwithstanding its waiver argument, Gray
next contends that Gray is an additional insured under both the Master Service
Contract and the Chubb policy itself because it is part of the “Company Group,” which
“is collectively comprised of the owners (Transco), Danos, and Danos' insurers (Gray),
among others.”26 Gray states that “the waiver of subrogation applies to Company
Group as a whole, the primary insurance endorsement applies to Company Group as
a whole, and the indemnity provision applies to the Company Group as a whole,”
meaning that Gray is an additional insured under both the Master Service Contract
and the Chubb policy.27 Gray urges that Chubb seeks to interpret the contract “in an
unreasonable or strained manner under the guise of contractual interpretation to
restrict its provisions beyond what is reasonably contemplated by unambiguous
terms or achieve an absurd conclusion.”28 As to its next argument, Gray points to a
23 Id. at pp. 17-18.
24 R. Doc. 28 at p. 11.
25 Id. at p. 12.
26 Id. at pp. 14-15.
27 Id. at p. 15.
28 Id. at p. 16 (citing Carrier v. Reliance Ins. Co., 759 So.2d 37, 43 (La. 4/11/00)).
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 5 of 16

6
release of claims (the “Ruth’s Chris Release”) executed on May 7, 2020, and argues
that “under this Agreement, it is clear that Transco and its insurers agreed to release
all claims against Gray, agreed to waive any unasserted claims, and agreed to defend
and indemnify Gray from any claims arising out of this litigation or the explosion.”29
To the extent the release does not extend to claims that Chubb may have against
Gray, Gray claims that “Ace is barred from subrogating against Gray by the terms of
the MSC and the [Chubb] Policy.”30 Lastly, Gray contends that the Master Service
Contract requires Chubb and its insured to indemnify Gray from claims or liabilities
asserted by members of the “contractor group” against members of the “company
group” and that, as such, Chubb must indemnify Gray for any claims that it asserts
against Gray.31
Chubb replies that “Gray’s counterclaim remains deficient because it does not
successfully identify any specific provision in Chubb’s policy that confers additional-
insured status on Gray” and that the “policy’s additional-insured endorsements apply
only 	to 	owners, 	lessees 	or 	contractors 	for 	whom 	Furmanite 	was 	‘performing
operations.’”32 Next, Chubb contends that the Ruth’s Chris Release specifically
reserves Chubb’s ability to pursue any claims it may have or may exist against Gray
and that its subrogation is against Gray as an insurer of Transco, not an insurer of
Danos.33 Lastly, Chubb argues that “[b]ecause Gray’s waiver and estoppel theories
29 Id. at pp. 17-20.
30 Id. at p. 20.
31 Id. at pp. 23-24.
32 R. Doc. 29 at pp. 1-3 (internal citations omitted).
33 Id. at p. 3.
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 6 of 16

7
collapse upon exclusion of the exhibits” attached to its opposition, such as its past
conduct and correspondence with Chubb, the Court should reject those theories.34
B. Motion to Exclude Exhibits to Gray's Opposition or, Alternatively,
to Exclude Settlement-Related Exhibit and Convert Proceeding to
Summary Judgment
Chubb filed its motion 	to exclude exhibits or, alternatively, to exclude
settlement-related exhibit and convert proceeding to summary judgment on August
3, 2025.35 In it, Chubb argues that the Court should exclude all the exhibits attached
to Gray’s Opposition36 to Chubb’s Motion to Dismiss in Part because the exhibits fall
outside the bounds of the permissible materials that can be considered when
evaluating a motion under Fed. R. Civ. P. 12(b)(6).37 Alternatively, Chubb contends
that 	the 	Court 	should 	exclude 	Exhibit 	A-7 	as 	a 	settlement-related 	document
prohibited 	under 	Fed. 	R. 	Evid. 	408, 	“which 	prohibits 	the 	use 	of 	settlement
communications to prove or disprove the validity or amount of a disputed claim.”38
Such documents, Chubb states, are routinely excluded by courts.39 Lastly, Chubb
urges that if the Court does consider those exhibits in deciding the motion, the Court
should convert the proceeding to one for summary judgment and then permit
supplemental briefing on the issue to “avoid premature adjudication on an incomplete
record.”40
34 Id. at p. 5. This argument is the subject of a subsequent Motion to Exclude Exhibits filed by Chubb
(R. Doc. 30), which is also addressed in the present Order and Reasons.
35 R. Doc. 30.
36 R. Doc. 28.
37 R. Doc. 30-1 at pp. 3-4.
38 Id. at p. 4.
39 Id. at p. 5.
40 Id. at p. 6.
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 7 of 16

8
Gray responds that the Court can consider the documents which it attached to
its Response to Plaintiffs’ Motion to Dismiss Counterclaim because those documents
are “generally referenced” in the counterclaim.41 Gray further argues that it is
entitled to rely on these documents because it is “allowed to present evidence to
controvert the contentions made in Ace's motion to dismiss” that is admissible and
relevant.42 Gray states that “even if the Court were to agree with Ace that the
documents introduced by Gray are extrinsic, the appropriate remedy is to treat the
motion as one made under Rule 56, not to exclude the exhibits.”43 Gray also notes
that the Court need not consider the exhibits should it “find that there is ambiguity
in the Ace policy or the Ruth's Chris Release,” which supports the contention that the
Court should deny Chubb’s motion.44 Regarding Chubb’s argument concerning
Exhibit A-7, Gray claims that Fed. R. Evid. 408 precludes evidence of conduct or
statements during settlement negotiations when used to prove the validity or amount
of a claim and that here, “the express purpose the March 2019 letter is offered was to
establish that Ace waived its right to deny Gray's insured status.”45 Gray adds that
“the express purpose for which Gray offered Exhibit A-7, Ace's representations that
Gray is its insured, which Ace now claims are false, are evidence of Ace's bad faith
under La. Rev. Stat. § 22:l892(1)(2)(a).”46 For those reasons, Gray asks the Court to
deny Chubb’s motion.
41 R. Doc. 34 at p. 1.
42 Id. at p. 2.
43 Id.
44 Id. at p. 3.
45 Id.
46 Id. at p. 4.
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 8 of 16

9
Chubb replies that “[n]o exhibit attached to Gray’s opposition is referenced in
the counterclaim,” that “[n]o newly proffered exhibit is ‘central to the claim,’” and that
“[n]o waiver or estoppel theory based on the newly proffered exhibits is pleaded.”47
Chubb contends that Gray’s exhibits do not meet the standard for consideration
under Rule 12(b)(6) and that “Gray’s counterclaim does not even have an adoption or
incorporation clause for the exhibits it wants the Court to consider in ruling upon
Chubb’s 	motion 	to 	dismiss,” 	offering 	“only 	that 	it 	‘generally 	referenced’ 	those
documents in its counterclaim.”48 Furthermore, Chubb urges that Fed. R. Evid. 408
bars courts from using settlement communications to prove liability or waiver,
meaning that Exhibit A-7 is “both extrinsic and inadmissible.”49
II. 	LEGAL STANDARD
A. Rule 12(b)(6) Standard
Under Federal Rule of Civil Procedure 12(b)(6), a defendant, or counter-
defendant, can seek dismissal of a complaint, or any part of it or a counterclaim, for
failure to state a claim upon which relief may be granted.50 To survive a Rule 12(b)(6)
motion to dismiss, “a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”51 	“A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
47 R. Doc. 35 at p. 2.
48 Id. at p. 5.
49 Id. at p. 6.
50 Fed. R. Civ. P. 12(b)(6).
51 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 9 of 16

10
the reasonable inference that the defendant is liable for the misconduct alleged.”52
But, no matter the factual content, a claim is not plausible if it rests on a legal theory
that is not cognizable.53
In ruling on a motion to dismiss, the Court accepts all well-pleaded facts as
true and views those facts in the light most favorable to the non-moving party.54 The
Court, however, is not bound to accept as true conclusory allegations, unwarranted
factual inferences, or legal conclusions.55 	“Dismissal is appropriate when the
complaint on its face shows a bar to relief.”56 	In deciding a Rule 12(b)(6) motion to
dismiss, a court is generally prohibited from considering information outside the
pleadings, but may consider documents outside of the complaint when they are: (1)
attached to the motion; (2) referenced in the complaint; and (3) central to the
plaintiff’s claims.57
C. Rule 12(e) Standard
Under Federal Rule of Civil Procedure 12(e), “[a] party may move for a more
definite statement of a pleading to which a responsive pleading is allowed but which
is so vague or ambiguous that the party cannot reasonably prepare a response.”58
“The motion must be made before filing a responsive pleading and must point out the
52 Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Ashcroft, 556 U.S. at 678) (quotation
marks omitted).
53 Shandon Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029, 1032 (5th Cir. 2010).
54 Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).
55 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).
56 Cutrer v. McMillan, 308 Fed. Appx. 819, 820 (5th Cir. 2009) (quotation and internal quotation marks
omitted).
57 Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed. Appx. 336, 340–41 (5th Cir. 2011).
58 Fed. R. Civ. P. 12(e).
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 10 of 16

11
defects complained of and the details desired.”59 The standard a court should use for
evaluating a 12(e) motion is “whether the complaint is ‘so excessively vague and
ambiguous as to be unintelligible and as to prejudice the defendant seriously in
attempting to answer it.’”60
D. Rule 12(d) Standard
Fed. R. Civ. P 12 (d) provides that
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56. All parties
must be given a reasonable opportunity to present all the material that
is pertinent to the motion.61
Whenever a trial court “considers matters outside the pleadings, the motion to
dismiss should be treated as a motion for summary judgment, and the proceedings
must comport with the hearing and notice requirements of Fed. R. Civ. P. 56(c).”62
III. 	ANALYSIS
A. Motion to Exclude Exhibits or, alternatively, Convert Proceeding to
Summary Judgment
When evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a court
may consider documents outside the complaint when they are: (1) attached to the
motion; (2) referenced in the complaint; and (3) central to the plaintiff's claims.”63
59 Id.
60 Phillips v. ABB Combustion Engineering, Inc., No. CIV.A. 13-594, 2013 WL 3155224, at *2 (E.D. La.
June 19, 2023) (quoting Babcock & Wilcox Co. v. McGriff, Seibels & Williams, Inc., 235 F.R.D. 632,
633 (E.D. La. 2006)).
61 Fed. R. Civ. P. 12.
62 Partridge v. Two Unknown Police Officers of City of Houston, Tex., 791 F.2d 1182, 1189 (5th Cir.
1986).
63 Maloney Gaming Mgmt., L.L.C. v. St. Tammany Par., 456 F. App'x 336, 340 (5th Cir. 2011) (citing
In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)).
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 11 of 16

12
This test is a conjunctive one; documents must meet all three requirements for a court
to properly consider them when evaluating a motion under Rule 12(b)(6).
Plaintiff Chubb attaches five exhibits to its Motion to Dismiss Counterclaim:
(1) the primary insurance policy, (2) the excess policy, (3) the Danos/Furmanite
Master Service Contract, (4) the May 7, 2020 release of claims,64 and (5) a declaration
from Chubb Senior Vice President Jacqueline R. Robinson regarding the truth of the
exhibits attached.65 Each of these is referenced in the counterclaim and are central
to Defendant/Counter-Plaintiff Gray’s counterclaim.66 Thus, the Court finds that
these exhibits are properly considered in Plaintiff Chubb’s Motion to Dismiss
Counterclaim in Part under Fed. R. Civ. P. 12(b)(6). Defendant Gray attaches twelve
exhibits to its Response in Opposition to Plaintiffs’ Motion to Dismiss Counterclaim
in Part.67 These exhibits include state court pleadings from underlying lawsuits
resulting from the explosion at the Transco plant,68 communications from Chubb
requesting to share litigation costs,69 communications from Gray’s counsel regarding
the request,70 a confidentiality agreement between Chubb and Gray,71 a request from
Gray to Chubb to reimburse it for legal services and costs,72 a settlement offer from
64 Sometimes referred to by the parties as the “Ruth’s Chris Release.”
65 R. Docs. 25-4, 25-5, 25-6, 25-7, and 25-8.
66 See R. Doc. 19 at ¶ 27 (“Pursuant to the Danos/Furmanite MSC, Ace issued to Furmanite Policy
HDO G24556943001, a CGL policy, with a policy period from October 1, 2015 through October 1,
2016”); at ¶ 30 (The ACE Excess Policy is excess of the Ace CGL Policy.”); at ¶ 17 (“Danos and
Furmanite entered into a Master Services Contract.”); at ¶ 44 (“On May 7, 2020, Ace and Transco
released, compromised, and settled any and all claims they had or may have had against Danos,
Furmanite, and Gray.”)
67 R. Docs. 28-2, 28-3, 28-4, 28-5, 28-6, 28-7, 28-8, 28-9, 28-10, 28-11, 28-12, and 28-13.
68 R. Doc. 28-2.
69 R. Doc. 28-3.
70 R. Doc. 28-4.
71 R. Doc. 28-5.
72 R. Doc. 28-6.
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 12 of 16

13
Gray to Chubb to settle claims,73 Chubb’s response to the offer,74 correspondence from
Gray regarding legal services invoices,75 e-mail correspondence regarding settlement
of claims,76 further correspondence regarding claims,77 additional pleadings from a
state court case regarding the explosion,78 and Gray’s excess commercial general
liability policy for Danos.79 Gray argues that the Court “may consider all of the
documents attached to Gray's Opposition Memorandum without the need to convert
Ace's motion to a Rule 56 motion as these documents are generally referenced in
Gray's Counterclaim.”80 Chubb counters that none of the exhibits attached to Gray’s
opposition are referenced in the counterclaim or are “central” to the claim.81
The Court agrees that some of the exhibits attached to Gray’s Opposition fall
outside of what may be properly considered in this 12 (b)(6) Motion. As set forth
earlier, an 	exhibit must 	be 	(1) attached to 	the motion, (2) referenced in 	the
counterclaim, and (3) central to the Counter-Plaintiff’s counterclaim to be considered
when deciding a motion under Rule 12(b)(6).82 Each of these exhibits satisfies the
first requirement because it is attached to the motion. Not all exhibits meet the
second requirement, especially the settlement communications contained in the
attached exhibits; these exhibits are not referenced in the counterclaim.83 The only
73 R. Doc. 28-7.
74 R. Doc. 28-8.
75 R. Doc. 28-9.
76 R. Doc. 28-10.
77 R. Doc. 28-11.
78 R. Doc. 28-12.
79 R. Doc. 28-13.
80 R. Doc. 34 at p. 1.
81 R. Doc. 35 at p. 2.
82 See Maloney Gaming Mgmt., L.L.C., 456 F. App'x at 340.
83 R. Docs. 28-7—28-11.
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 13 of 16

14
“settlement” referenced in the counterclaim refers to the May 7, 2020 settlement
agreement (the “Ruth’s Chris Release”), which is attached to Plaintiff Chubb’s Motion
to Dismiss.84 Because the test is a conjunctive one, an exhibit failing to meet a single
element cannot properly be considered.85
Having found that some of the exhibits attached to Gray’s response in
opposition were extrinsic to the pleadings and cannot properly be considered under
Rule 12, the Court now considers whether to exclude the documents or whether to
convert the motion to one for summary judgment under Fed. R. Civ. P. 56. Under
Rule 12, a district court has “complete discretion to determine whether or not to
accept any material beyond the pleadings that is offered in conjunction with a Rule
12(b)(6) motion.”86 One such consideration as to whether a court should accept
matters outside of the pleadings is whether consideration of the material “facilitates
the disposition of the case.”87
Plaintiff Chubb, while first asking the Court to exclude the documents and
consider its motion, alternatively argues that “[i]f the Court declines to exclude Gray’s
exhibits and instead considers them in ruling on Chubb’s motion to dismiss, then the
proceeding must be treated as one for summary judgment under Federal Rule of Civil
Procedure 12(d).”88 Defendant Gray agrees that “even if the Court were to agree with
84 R. Doc. 25-7.
85 The Court also notes that Gray does not plead the waiver or estoppel arguments in its counterclaim
(R. Doc. 19).
86 Isquith for & on Behalf of Isquith v. Middle S. Utilities, Inc., 847 F.2d 186, n. 3 (5th Cir. 1988)
(quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1366 (1969)).
87 Woods v. City of Galveston, 5 F. Supp. 2d 494, n. 3 (S.D. Tex. 1998); see also § 1366 Conversion of a
Rule 12(b)(6) Motion Into a Summary Judgment Motion, 5C FED. PRAC. & PROC. C IV. § 1366 (3d ed.).
88 R. Doc. 30-1 at p. 6.
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 14 of 16

15
Ace that the documents introduced by Gray are extrinsic, the appropriate remedy is
to treat the motion as one made under Rule 56, not to exclude the exhibits.”89 Rather
than exclude the evidence, the Court finds it proper to convert this proceeding to one
for summary judgment under Fed. R. Civ. P. 56 as reviewing the counterclaim under
the lens of Rule 56 might facilitate disposition of this portion of the case. As such, the
Court converts Defendant Gray’s opposition to Plaintiff Chubb’s Motion to Dismiss
Counterclaim in Part into a Motion for Summary Judgment and will provide the
parties an opportunity to respond.90
B. Motion to Dismiss Counterclaim in Part under Rule 12(b)(6) and for a
More Definitive Statement under Rule 12(e)
Because the Court has converted the 	Defendant/Counter-Plaintiff Gray’s
response in opposition to a motion for summary judgment, the Court finds that the
Motion to Dismiss Counterclaim in Part under Rule 12(b)(6) and for a More Definitive
Statement under Rule 12(e) is now moot and denies it as such.
IV. 	CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Exclude Exhibits to
Gray's Opposition or, Alternatively, to Exclude Settlement-Related Exhibit and
Convert Proceeding to Summary Judgment Under Rule 12(d)91 is GRANTED.
89 R. Doc. 34 at p. 2.
90 Clark v. Tarrant Cnty., Texas, 798 F.2d 736, 746 (5th Cir. 1986) (“[A]fter the parties receive notice
that the court could properly treat such a motion as one for summary judgment because it has accepted
for consideration on the motion matters outside the pleadings, the parties must have at least ten days
before judgment is rendered in which to submit additional evidence.”); see also Washington v. Allstate
Ins. Co., 901 F.2d 1281, 1284 (5th Cir. 1990) (“Whenever a motion to dismiss is treated as a motion for
summary judgment, the nonmovant is entitled to the procedural safeguards of Rule 56.”).
91 R. Doc. 30.
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 15 of 16

16
IT IS FURTHER ORDERED that Defendant’s Response in Opposition92 is
CONVERTED to a Motion for Summary Judgment under Fed. R. Civ. P. 56.
IT IS FURTHER ORDERED that the Clerk of Court is instructed to re-file
Gray Insurance Company’s Response in Opposition93 into the record as a Motion for
Summary Judgment on Counter-Plaintiff Gray Insurance Company’s Counterclaim.
Any response in opposition by Plaintiff/Counter-Defendant Chubb must be filed by
March 27, 2026, and any reply must be filed by Defendant/Counter-Plaintiff Gray by
April 3, 2026. The motion will be submitted on that date.
IT IS FURTHER ORDERED Plaintiffs ACE American Insurance Company
and 	ACE 	Property 	and 	Casualty 	Insurance 	Company’s 	Motion 	to 	Dismiss
Counterclaim in Part Under Rule 12(b)(6) and for a More Definite Statement Under
Rule 12(e)94 is DENIED as moot.
New Orleans, Louisiana, March 9, 2026.
_____________________________
WENDY B. VITTER
United States District Judge
92 R. Doc. 28.
93 Id.
94 R. Doc. 25.
Case 2:25-cv-00489-WBV-EJD Document 54 Filed 03/09/26 Page 16 of 16