Full opinion text
MEMORANDUM OPINION AND ORDER TOM S. LEE, District Judge. This cause is before the court on the motion of plaintiff Seumas Iain Cowley, individually and as representative for other Underwriters subscribing to Policy No. 523928506 (Underwriters), to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. That motion has been joined in by defendant Texas Snubbing and third-party defendant Jim Hutchings. Underwriters have also filed a separate motion for summary judgment, and there is pending a motion by defendant William Waddell Stapleton, individually and as representative for that class of claimants in pending Cause No. 15,196 in the Circuit Court of Rankin County, Mississippi and all other similarly situated defendants, to set aside an order of dismissal entered by the court on December 12, 1991 and for order declaring the order of dismissal void ab initio and of no legal effect. These motions are largely interrelated in terms of the issues which the court is called upon to consider. BACKGROUND This case arises out of a July 15, 1985 above-ground blowout of the E.N. Ross # 2 Well located in the Johns Field in Rankin County, Mississippi. Defendant Gary K. Knostman, as trustee of the bankruptcy estate of Tomlinson Interests, Inc., was the operator of the well. Texas Snubbing Control, Inc. (Texas Snubbing) was the snubbing contractor hired by Knostman that was on-site when the blowout occurred. At the time of the blowout, Texas Snubbing was insured under two policies of insurance issued by Underwriters providing for indemnification against liability incurred by Texas Snubbing, as well as payment of defense costs for covered claims. These included a primary policy with coverage limits of $500,000, and a $2,000,000 umbrella policy, No. 523928506. The blowout generated numerous lawsuits against Knostman, Texas Snubbing and others, including a number of suits filed in the Circuit Court of Rankin County by residents of Rankin County who lived in the vicinity of the well seeking recovery for bodily injury and property damage alleged to have resulted from the blowout and consequent escape of hydrogen sulfide and other toxic gases. The first wave of landowner suits, consolidated under Master Cause No. 15,002, resulted in a settlement pursuant to which Underwriters paid $750,-000 on behalf of its insured, Texas Snubbing. Underwriters subsequently paid an additional $50,000 on behalf of Texas Snubbing in settlement of an action filed by another group of landowners. A third group of suits filed by 281 landowner plaintiffs, including William Waddell Stapleton, were consolidated under Master Cause Number 15,196, Stapleton, et al. v. Halliburton, et al. The plaintiffs in Master Cause Number 15,196, as had the plaintiffs in the earlier suits, named as defendants various entities associated with the well, including Knostman and Texas Snubbing. They alleged personal injuries and property damages resulting from the blowout and demanded damages in excess of $1,000,-000,000. That case is currently pending in the state circuit court. In addition to the landowners’ suits, Texas Snubbing filed an action against Knost-man in the Circuit Court of Rankin County, seeking indemnification from Knostman based upon an indemnity provision in Texas Snubbing’s work order with Knostman, and seeking to recover monies which Texas Snubbing had been or might be required to pay as a result of the blowout. Knostman counterclaimed against Texas Snubbing, demanding in excess of $10,000,000 for indemnification from Texas Snubbing and damages for, inter alia, loss of gas, well control and redrilling expenses, evacuation expenses and lost profits. PROCEDURAL HISTORY In consideration of" the various claims that third parties had asserted against Texas Snubbing, and in particular the claims by Knostman and the Stapleton plaintiffs, and in view of Texas Snubbing’s demand for coverage and defense as provided by Underwriters’ policy, Underwriters filed this declaratory judgment action seeking an adjudication that its umbrella policy, which contains exclusions for seepage and pollution, loss of hole, cost of control, removal of debris and punitive damages, provides no coverage for these claims and that consequently, Underwriters have no obligation to indemnify their insured, Texas Snubbing, or to pay any sums to Knostman or the landowner claimants on behalf of Texas Snubbing. In his original answer to the Underwriters’ complaint for declaratory relief, filed May 11, 1989, Stapleton alleged that the policy issued by Underwriters in effect at the time of the accident did in fact provide coverage for his damages and he charged that Underwriters were in any event es-topped from denying coverage for his claims since Underwriters had paid substantial sums to other landowners upon claims similar to Stapleton’s. On May 7, 1990, Texas Snubbing answered Underwriters’ complaint and, like Stapleton, denied Underwriters’ allegations of noncoverage. Texas Snubbing included with its answer a counterclaim against Underwriters, in which it contended that the policy in effect at the time of the blowout did provide coverage for the claims being made against it by various parties, but that after the blowout, Underwriters, in dereliction of its duties to Texas Snubbing, attempted to “amend” the policy by adding exclusions (or substituting another policy which contained exclusions) which were not in the policy when the blowout occurred. Texas Snubbing demanded not only indemnity for claims it might be required to pay, but also demanded punitive damages for this alleged wrongful and malicious conduct of Underwriters. A settlement was effected between Underwriters and Texas Snubbing in August 1991, under the terms of which Underwriters agreed to pay to Knostman $360,000 on Texas Snubbing’s behalf in order to resolve Knostman’s claim for damages against Texas Snubbing, this being, according to the terms of the settlement agreement, “the most significant elaim[ ] against [Texas Snubbing].” Further, Underwriters agreed to pay to Texas Snubbing the sum of $15,000 in settlement of Texas Snubbing’s bad faith claim, and in connection with that aspect of the settlement, those parties agreed as follows: Texas Snubbing and its president, Jim Hutchings, hereby ratifies (sic) the acts of its agent Devitt (Energy) Ltd. in negotiating, drafting and physically assembling the aforementioned policy, and release Underwriters from any and all claims it may have or may have in the future under the policy, including, but not limited to, any and all claims arising out of the blowout of the E.N. Ross Well # 2 in Rankin County, Mississippi, and including, but not limited to, the claim of William Waddell Stapleton, and other members of the class of plaintiffs that have been certified as a class in C.O. Gibb, et al v. Texas Snubbing Control, Inc., et al., as described above, any claims of Knostman, including but not limited to any claims asserted by Knost-man for indemnity, the claim of Murco Drilling Company, and any claims of any other party for damages, contribution, or indemnity. Texas Snubbing and Jim Hutchings agree to a full and final release and discharge of any liability of Underwriters as set forth above, including a full and final release of any claim it may have against any employees, agents, attorneys, reinsurers or other insurers of underwriters in connection with the placement or handling of claims under the policy. In October 1991, shortly after this settlement was reached, Underwriters moved for summary judgment contending that it was entitled to judgment on its claim against Stapleton since his claims were excluded from coverage by the policy in effect at the time of the blowout. Underwriters asserted alternatively that Stapleton was precluded in any event from recovering under the policy since his claims, being derivative in nature, were barred because Texas Snubbing had released all of its claims against the policy. On December 2, 1991, Stapleton, having learned of the settlement between Texas Snubbing and Underwriters, filed an amended answer and counterclaim against Underwriters, a cross-claim against Texas Snubbing and a third-party complaint against Texas Snubbing’s president, Jim Hutchings, asserting, in addition to his claim for recovery against Underwriters under the subject insurance policy, a claim that these parties, by entering into the settlement agreement, had colluded and conspired to defraud Stapleton of his rights to recovery under that policy. Underwriters, joined by Texas Snubbing and Jim Hutchings, has moved to dismiss Staple-ton’s amended counterclaim against it (Texas Snubbing and Jim Hutchings have requested dismissal of Stapleton’s cross-claim and third-party complaint, respectively) for failure to state a claim upon which relief can be granted. MOTION TO DISMISS In his amended counterclaim against Underwriters, Stapleton asserts, inter alia, what is essentially a claim for a declaratory judgment that he is entitled to coverage under the umbrella policy issued by Underwriters. He avers not only that the policy by its terms provides coverage, but also that Underwriters, having represented that Texas Snubbing had liability coverage for the blowout and having paid out over $1,000,000 to other claimants on Texas Snubbing’s behalf, are estopped now from denying coverage for his claims. Stapleton further maintains that Underwriters are guilty of bad faith, and of violating the Texas Deceptive Trade Practices Act, in connection with its denial of his claims, since that denial was based on a fraudulent and deceitful post-accident modification or substitution of the insurance contract designed to avoid coverage. And he claims that by entering into the settlement agreement, Underwriters, together with Texas Snubbing and Jim Hutchings, conspired and colluded to deceive and defraud Staple-ton and deprive him of insurance coverage to which he is entitled. As relief, Stapleton demands payment of the limits under the policy, actual and punitive damages, treble damages, and an order enjoining, or if already consummated, setting aside the settlement agreement. Standing Underwriters seek dismissal of Stapleton’s counterclaim on the basis that he has no rights under the insurance policy at issue and thus is without standing to complain of the disposition of policy proceeds as between Underwriters and Texas Snubbing. Stapleton is not a named insured under the subject insurance policy, nor is he an additional insured. And in the court’s opinion, Stapleton is not a third-party beneficiary of the insurance contract. In short, Stapleton has no present interest in the insurance contract between Underwriters and Texas Snubbing. Consequently, whether Mississippi or Texas law is applied, it is clear that Stapleton has no standing to pursue a claim for insurance coverage or for bad faith, nor does he have standing to challenge the settlement agreement between Underwriters and Texas Snubbing. One who is not a party to a contract of insurance may nevertheless have standing to enforce the contract if the contract was made for that person’s benefit. See Quilter v. Wendland, 403 S.W.2d 335, 337 (Tex.1966). Legally intended beneficiaries of an insurance contract, for example, may sue to recover on the contract, see Dairyland County Mut. Ins. Co. v. Childress, 650 S.W.2d 770, 775-76 (Tex.1983), as may judgment creditors of the insured, who are considered intended third-party beneficiaries of the insured’s policy, see Roland v. Allstate Ins. Co., 370 F.2d 289, 291 (5th Cir.1966) (injured party who acquires judgment against tortfeasor may sue tortfeasor’s insurer directly to enforce the judgment up to the limits of the policy); see also Cumis Ins. Soc’y v. Republic Nat’l Bank, 480 S.W.2d 762, 767 (Tex.Civ.App. — Dallas 1972, writ ref’d, n.r.e.). It is thus manifest under Texas law, as well as Mississippi law, that in the absence of his having secured a judgment against Texas Snubbing, or his having otherwise established Texas Snubbing’s liability for his damages, Stapleton has no standing to bring an action for recovery under Texas Snubbing’s insurance policy. Under the laws of both states, persons injured by an insured are not third-party beneficiaries of the insurance contract before a judgment is obtained against the insured, in the absence of a statute or contractual provision establishing that third party’s status as an intended third-party beneficiary. Injured third parties can be intended third-party beneficiaries of insurance contracts only where contractual or statutory provisions grant those third parties rights in the insurance agreement. And only those who occupy the status of third-party beneficiaries are permitted a cause of action against the insurer without first having established the insured's liability by judgment or otherwise. See International Trucking Co. v. Employers Casualty Co., No. 04-90-00012-CV (Tex.Civ.App. — San Antonio July 8, 1992) (a third party has no direct action against an insurer on the insurance policy absent a determination of liability on the part of the insured); Russell v. Hartford Casualty Ins. Co., 548 S.W.2d 737 (Tex.Civ.App. — Austin 1977, writ ref’d, n.r.e.) (in absence of statute or express provision of insurance contract, insurer cannot be sued directly in tort suit); State Farm County Mut. Ins. Co. v. Ollis, 768 S.W.2d 722, 723 (Tex.1989) (injured third party cannot enforce policy directly against insurer until insured’s legal obligation to pay damages has been established by judgment or agreement); Samford v. Allstate Ins. Co., 529 S.W.2d 84 (Tex.Civ.App. — Corpus Christi, 1975, writ ref’d, n.r.e.) (if injured third parties had no direct cause of action against liability insurer, they were not third-party beneficiaries of such action by insured); Bluth v. Neeson, 127 Tex. 462, 94 S.W.2d 407 (Tex.1936) (injured third party had no right of action on automobile liability policy, which was personal to insured); Westmoreland v. Raper, 511 So.2d 884, 885-86 (Miss.1987) (“benefit to a third party contemplated by insurance policies is contingent upon a judgment being awarded for which the insurance company may or may not be liable under the terms of the agreement.”); Jordan v. State Farm Mut. Auto. Ins. Co., 774 F.Supp. 424, 426-27 (S.D.Miss.1991), aff'd, 946 F.2d 1084 (5th Cir.1991) (same); cf. Dairyland County Mut. Ins. Co. v. Childress, 650 S.W.2d 770, 775-76 (Tex.1983) (third parties injured in automobile accident are within the class of legally intended beneficiaries of insurance policy purchased to satisfy statutory insurance requirements of financial responsibility law); Conoco, Inc. v. Republic Ins. Co., 819 F.2d 120, 124 (5th Cir.1987) (third party lacked standing to bring action on policy where he was prevented from becoming third-party beneficiary by policy provision excluding right of third party to bring action on insurance policy). There is no question but that Stapleton is not a third-party beneficiary of the insurance contract between Underwriters and Texas Snubbing. Stapleton has cited the court to no statute or provision in the insuring agreement granting him rights in the policy prior to securing a judgment or granting him the right to file suit against Underwriters for recovery under the policy prior to his obtaining a judgment against the insured. In other words, the insurance coverage provided by Texas Snubbing’s policy was not mandated by law, and the court has not been directed to any provision of the policy which suggests that the insurance contract was secured for the benefit of any third party to the contract. Rather, it appears that the policy of insurance was purchased for Texas Snubbing’s own benefit, as well as for the benefit and protection of Tomlinson. Though Stapleton has filed suit against Texas Snubbing in state court alleging that it was negligent, he has not recovered a judgment against Texas Snubbing, and indeed, may never do so. There has been no determination that Texas Snubbing was negligent, or that if it was, any such negligence caused or contributed to any injuries these persons may have sustained. Under these circumstances, it must be concluded that Staple-ton is not a third-party beneficiary of the insurance contract and therefore lacks standing to maintain any claim against the insurance policy. Thus, only if Stapleton were to secure a judgment against Texas Snubbing would he be in a position to maintain a direct action against Underwriters on the insurance contract. It is also clear that whether Mississippi or Texas law is applied, Stapleton has no standing to assert a claim of bad faith against Underwriters for its handling of his claim for benefits. A common law claim of bad faith is predicated on Underwriters’ breach of a duty of good faith and fair dealing, and no such duty is owed Stapleton under the policy at issue. Both of these states recognize that an insurance carrier owes a duty under its insurance policy only to its insureds and to intended beneficiaries of the insurance contract. See Westmoreland, 511 So.2d at 884; Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165 (Tex.1987); Chaffin v. Transamerica Ins. Co., 731 S.W.2d 728, 731 (Tex.App. — Houston [14th Dist.] 1987, writ ref’d, n.r.e.). Therefore, any interest which Stapleton might have — or here, acquire — in the policy could extend no further than the limits of liability provided under the policy. See Watson v. Allstate Ins. Co., 828 S.W.2d 423 (Tex.App. — -Ft. Worth 1991) (insurer owed third-party beneficiary no common-law duty of good faith and fair dealing); Bowman v. Charter General Agency, Inc., 799 S.W.2d 377 (Tex.App. — Corpus Christi 1990, writ denied) (outside worker’s compensation area, no Texas court has extended insurer’s duty of good faith and fair dealing to provide remedy to an injured third party having no contractual relationship with insurer); Caserotti v. State Farm Ins. Co., 791 S.W.2d 561, 566 (Tex.App. — Dallas 1990, writ denied) (insurer does not owe duty of good faith and fair dealing to third-party claimant under its insured’s policy, even where that third party is also an insured); Chaffin, 731 S.W.2d 728 (common law duty of good faith and fair dealing running from insurer to insured does not extend to provide remedy to injured third party; direct action by third party may lie against carrier after injured party has secured judgment against the insured, but insurer’s liability is limited to amount of policy); Samford v. Allstate Ins. Co., 529 S.W.2d 84, 87 (Tex.Civ.App. — Corpus Christi 1975, writ ref’d, n.r.e.) (without any cause of action against insurer on policy due to proscription against direct actions, third parties could not complain of negligence or gross negligence on part of insurer for failure to settle within policy limits); Jordan, 774 F.Supp. at 426 (Mississippi’s proscription against direct actions precluded action by third party for carrier’s alleged unreasonable refusal to pay under tortfeasor’s insurance policy). Because he is not a third-party beneficiary of the subject insurance policy, Stapleton is also precluded from proceeding against Underwriters on his claim which is premised on alleged violations of the Texas Deceptive Trade Practices Act. In a case analogous to the one at bar, a Texas appellate court granted summary judgment for the insurer based on its conclusion that plaintiffs had no contractual relationship with their subcontractor’s insurer, and were not intended third-party beneficiaries of the insurance contract. In Chaffin, supra, plaintiffs sued a subcontractor they had hired for damages caused by negligence in the subcontractor’s performance of its duties. The plaintiffs also sued the subcontractor’s liability insurer, claiming that Texas law recognized an independent cause of action by a third party against a tortfeasor’s insurance carrier arising from the carrier’s wrongful denial of coverage. The court held that “[t]he liability policy held by [their subcontractor] was purchased solely for [its] benefit,” and consequently, the plaintiffs “derive[d] no legal relationship from the ... insurance contract” between the subcontractor and its insurer. Id. at 731. The court explained: Texas courts are in accord both that an injured party has no direct cause of action against a tortfeasor’s insurance carrier, whether or not the insured party is joined; and that the carrier owes a legal duty only to its insured or to an intended beneficiary of the policy. See, e.g., Aetna Cas. & Sur. Co. v. Marshall, 724 S.W.2d 770 (Tex.1987) (claimant, an injured worker, sued a workers’ compensation carrier under Tex.Ins.Code Ann. art. 21.21; claimant was statutorily intended beneficiary); Dairyland County Mut. Ins. v. Childress, 650 S.W.2d 770) (Tex.1983) (claimants were statutorily intended beneficiaries of auto liability coverage); Aetna Cas. & Sur. Co. v. Martin Surgical, 689 S.W.2d 263 (Tex.App.— Houston [1st Dist.] 1985, writ ref’d n.r.e.) (surgical supply company claimant was additional insured); Becker v. Allstate Ins. Co., 678 S.W.2d 561 (Tex.App— Houston 14th Dist. 1984, writ ref’d n.r.e.) (tort plaintiff had no standing to sue carrier); Russell v. Hartford Cas. Ins. Co., 548 S.W.2d 737 (Tex.Civ.App. — Austin 1977, writ ref'd n.r.e.) (third party claimants were not permitted to sue insurance carrier directly in tort, with or without joinder of insured party)) Samford v. Allstate Ins. Co., 529 S.W.2d 84 (Tex.Civ.App. — Corpus Christi 1975, writ ref’d n.r.e.) (insured’s judgment creditors were not third party beneficiaries and thus could not complain of carrier’s failure to settle). Chaffin, 731 S.W.2d at 731-32. Stapleton argues that irrespective of Chaffin, he may maintain his Texas Deceptive Trade Practices Act claim against Underwriters, citing two Texas decisions, International Trucking Co. v. Employers Casualty Co., No. 04-90-000120CV (July 8, 1992), and Watson v. Allstate Insurance Co., 828 S.W.2d 423 (Tex.App. — Ft. Worth 1991). In International Trucking, a third party whose vehicle was damaged in an accident with an insured under a policy of automobile liability insurance was contacted after the accident by a representative of Employers, the insurance carrier, and was advised to have the vehicle repaired. Only after the repairs had been completed was the third party informed by the carrier that it would not pay his repair bill since the carrier had determined that its insured was not liable for the collision. Without first having obtained a judgment against the insured, or having otherwise established the insured’s liability for the accident, the third party brought suit against Employers alleging that Employers had violated article 21.21 of the Texas Deceptive Trade Practices Act by making numerous misrepresentations in its handling of the repair of his truck. The central issue confronted by the court was whether that third party had standing to bring a statutory cause of action against the insurance carrier for committing an unfair claims settlement practice under the Texas Insurance Code. The court determined that the third party did, in fact, have standing, even though he had not obtained a judgment against the insured, reasoning that his claim was not a suit on the insurance policy but was a statutory cause of action predicated on the carrier’s false, misleading or deceptive acts and practices. The court observed that under Texas law, “[a] non-insured third party has standing to sue for the damages it suffered by relying on the representations of coverage made by an insurance company,” International Trucking, slip op. at 7 (citing Hermann Hosp. v. National Standard Ins. Co., 776 S.W.2d 249, 252 (Tex.App. — Houston [1st Dist.] 1989)), and concluded that the injured party, who was by law an intended third-party beneficiary of the insured’s insurance policy, could recover against the carrier for its misrepresentations under the Texas Deceptive Trade Practices Act. In Watson, another Texas appellate court held that a third-party beneficiary of an automobile liability insurance policy who had not yet obtained a judgment against an insured had standing to bring a cause of action directly against the insurance carrier under the Texas Insurance Code for the carrier’s alleged unfair settlement practices. The court found that while the injured third party had no common law cause of action against the carrier since the carrier owed her no common law duty of good faith and fair dealing, she nevertheless could proceed against the insurer on her statutory claim. The fact that immediately distinguishes this case from International and Watson is that Stapleton is not a third-party beneficiary of Texas Snubbing’s insurance policy. The International Trucking court specifically distinguished Chaffin on this basis, stating: The Chaffin court first made clear that the plaintiffs were not third party intended beneficiaries of the insurance contract. In doing so it distinguished Dairyland, 650 S.W.2d at 775-76, which held that third parties injured in a motor vehicle accident are within the class of legally intended beneficiaries on an insurance policy purchased to satisfy the statutory requirement. The Chaffin court held that the plaintiffs may have a claim against [the insurer] limited to the amount of the policy after securing a judgment against [the insured], but that they had no remedy under the Insurance Code, nor under a common law duty of good faith and fair dealing, because they were not intended beneficiaries of the policy. 731 F.2d [S.W.2d] at 732. ... Of course, under Dairyland, persons injured in automobile accidents, such as International, are intended beneficiaries of the other party’s insurance policy. Chaffin is distinguishable on the ground that the plaintiffs in that case were not third-party beneficiaries. In addition, the insurer made no misrepresentations directly to the plaintiffs as Employers did in this case. • International Trucking, slip op. at 8-9. The Watson court similarly distinguished Chaffin “for the reason that the plaintiff in that case was not a third-party beneficiary of the policy,” whereas Watson was such a third-party beneficiary. 828 S.W.2d at 430. As Stapleton is not a third-party beneficiary, neither Watson nor International Trucking provides support for Stapleton’s position that he may properly assert his claim against Underwriters. Instead, Chaffin furnishes the applicable rule and dictates the conclusion that Stapleton lacks standing in the case at bar. The court further concludes, after thorough consideration of the issue, that since Stapleton has no present interest in the policy itself, he has no standing to challenge the settlement effected between Underwriters and Texas Snubbing. His right to object to the settlement, like his right to proceed against Underwriters on the policy itself, is dependent upon his first obtaining a judgment against Texas Snubbing. In Alumax Mill Products, Inc. v. Congress Financial Corp., 912 F.2d 996, 1001-02 (8th Cir.1990), the court explained that: In general, nonsettling defendants lack standing to object to a partial settlement. See, e.g., Waller v. Financial Corp. of America, 828 F.2d 579, 582 (9th Cir.1987); cf. Armstrong v. Adams, 869 F.2d 410, 414 (8th Cir.1989) (appellants who had been dismissed as defendants lack standing to object to settlement). ‘In ordinary litigation, that is, lawsuits between private parties, courts recognize that settlement of the dispute is solely in the hands of the parties.’ Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1189 (8th Cir.1984), citing United States v. City of Miami, 614 F.2d 1322, 1330 & n. 16 (5th Cir.1980) (‘special situations’ which require court approval include proposed class action settlements, proposed shareholder derivative suit settlements, proposed compromise claims in bankruptcy court, and consent decrees in antitrust suits brought by United States), modified on rehearing en banc, 664 F.2d 435 (1981). ‘However, in multi-party lawsuits, non-settling defendants often seek the court’s intervention to invalidate or alter partial settlements.' Quad/Graphics, Inc. v. Fass, 724 F.2d 1230, 1232 (7th Cir.1983). ‘There is therefore a recognized exception to the general principle barring objections by non-settling defendant to object where it can demonstrate that it will sustain some formal legal prejudice as a result of the settlement.’ Waller v. Financial Corp. of America, 828 F.2d at 583; see Quad/Graphics, Inc. v. Fass, 724 F.2d at 1232; In re Beef Industry Antitrust Litigation, 607 F.2d 167, 172 (5th Cir.1979) (citing 3 H. Newberg, Newberg on Class Actions § 5660b, at 564-65 (1977), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981); cf. Armstrong v. Adams, 869 F.2d at 414 (‘plain legal prejudice’ required to set aside voluntary dismissal under Fed.R.Civ.P. 41(a); drawing analogy between settlement and voluntary dismissal). Courts have recognized that ‘a non-settling defendant has standing to object, to a partial settlement which purports to strip it of a legal claim or cause of action, an action for indemnity or contribution for example.’ Waller v. Financial Corp. of America, 828 F.2d at 583 (citations omitted); cf. Franklin v. Kaypro Corp., 884 F.2d 1222, 1223 (9th Cir.1989) (nonsettling defendants have standing to appeal), petition for cert. filed, 59 U.S.L.W. 3055 (U.S. July 9, 1990) (No. 90-98). Stapleton, as this court has already concluded, does not at this time have “a legal claim or cause of action,” because of the proscription against direct actions against insurers, but at best has a potential cause of action against Underwriters for recovery on the insurance policy. Contrary to his assertion, it is not the case that Staple-ton’s rights in the insurance policy have been damaged by the parties’ having effected a settlement which is detrimental to his rights; rather, as Stapleton has no present interest in the insurance policy, the settlement at best could affect only potential rights. That is not sufficient to provide Stapleton standing to challenge the settlement agreement. Stapleton argues in opposition to the presently pending motions that Mississippi would recognize his claims as viable to the extent that he is not suing on the insurance contract itself, but rather is suing Underwriters for its independent intentional torts which it committed in issuing the policy and is suing Underwriters, Texas Snubbing and Jim Hutchings for their intentional torts in “conspiring” to enter into a settlement agreement to defraud Staple-ton of his potential rights under the insurance policy. In support of his contention that he is entitled to maintain a tort claim against Underwriters for its independent and intentional torts in the claims handling process and against all of the parties for their torts in connection with their entering into the settlement agreement to deprive and defraud Stapleton of his right to recovery under the insurance policy, Stapleton cites Southern Farm Bureau Casualty Insurance Co. v. Holland, 469 So.2d 55 (Miss.1984). However, a similar argument was rejected by this court in Jordan v. State Farm, in which this court stated: The Holland case, in which the Mississippi Supreme Court permitted an injured employee to proceed against his employer’s workers’ compensation carrier for the carrier’s intentional conduct in refusing to pay the employee’s claim for weekly compensation and medical benefits, is clearly limited to claims by employees against workers’ compensation carriers. The court’s conclusion that Holland provides no support for plaintiffs position is demonstrated inferentially by the fact that the Mississippi Supreme Court in Westmoreland, decided some three years after Holland, noted that despite having had on numerous occasions the opportunity to do so, that court had “steadfastly refused” and would continue to refuse to permit a direct action against a liability insurer. Westmoreland, 511 So.2d at 884. Jordan, 774 F.Supp. at 426. Stapleton also relies on Bass v. California Life Insurance Co., 581 So.2d 1087 (Miss.1991), as support for his claim that he may properly pursue his claims in this case. In Bass, the Mississippi Supreme Court held that an insurance adjuster could be independently liable to a policy insured for gross negligence and intentional torts. Stapleton maintains that it “stands to reason” from the court’s holding in Bass that an insurance company can be held to account for its gross negligence or intentional tortious conduct which causes harm to a potential beneficiary under an insurance policy. Nothing in Bass can reasonably be viewed as supporting Staple-ton’s position. The Bass court held only that an adjuster could be liable to a policy insured if, in the performance of his contractual duty to investigate and make a realistic evaluation of the claim, the adjuster committed gross negligence or an intentional tort. Bass, 581 So.2d at 1090. The potential liability of an adjuster, according to Bass, derives from that adjuster’s duty to the insured, with whom he has a “purely contractual” relationship. Id. Underwriters had no relationship with Stapleton, contractual or otherwise, and as observed supra, the law is clear in Mississippi, as in Texas, that an insurance company owes no duty to one who is not an insured or a third-party beneficiary of the insurance policy. Stapleton’s reliance on Bass is misplaced. Stapleton argues that even if he does not otherwise have standing, he must nevertheless be permitted to assert his claims against Underwriters in this action, as those claims are compulsory counterclaims which he has asserted in this action of necessity, upon pain of forever losing the right to assert them. This court cannot accept his contention. Rule 13(a) of the Federal Rules of Civil Procedure governs compulsory counterclaims and provides: A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim or does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.... (emphasis supplied). A leading commentator has also observed that a party need not assert a counterclaim that has not matured at the time he serves his pleading. This is derived from the language in the rule limiting its application to claims the pleader has “at the time of serving the pleading.” A counterclaim acquired by defendant after he has answered will not be considered compulsory, even if it arises out of the same transaction as does plaintiff’s claim.... This exception to the compulsory counterclaim requirement necessarily encompasses a claim that depends upon the outcome of some other lawsuit and thus does not come into existence until the action upon which it is based has terminated. C. Wright, A. Miller and M. Kane, 6 Federal Practice and Procedure: Civil 2d § 1411, at 80-82 (1990); see also Crawford Commercial Constructors v. Marine Indus. Residential Insulation, Inc., 437 So.2d 15, 16 (Miss.1983) (“there must be a present, existent actionable title or interest which must be completed at the time the cause of action is filed.”). Further, it has been held that the rule pertaining to compulsory counterclaims does not grant a party “a substantia] substantive right” which did not otherwise exist. See Desser, Rau & Hoffman v. Goggin, 240 F.2d 84, 86 (9th Cir.1957). Underwriters’ position on their motions is that neither at the time Staple-ton filed his counterclaim, nor for that matter at the present time, did Stapleton have a cognizable claim against Underwriters since, under the well settled law of Mississippi and Texas, injured third parties have no rights against their tortfeasor’s insurer unless and until they shall have obtained a judgment against the tortfeasor/insured. There is merit in this position. The claims sought to be asserted in this action by Stapleton are not “compulsory” counterclaims, since his claims depend upon the outcome of his state court litigation in Master Cause No. 15,196. Since neither Mississippi nor Texas permits suits by an injured third party against his tortfeasor’s insurance carrier before he has secured a judgment against the tortfeasor/insured, Stapleton’s claims are, at this time, premature. The motion of Underwriters, Texas Snubbing and Hutchings to dismiss will, therefore, be granted. MOTION FOR SUMMARY JUDGMENT Effect of Settlement on Stapleton’s Prospect for Recovery That Stapleton has no standing to assert affirmative claims for relief against Underwriters, Texas Snubbing or Hutchings does not dispose of the issues relating to the disputed settlement agreement, because Underwriters, in addition to claiming that Stapleton lacks standing to object to the settlement, take the further position that Stapleton, even if he were to obtain a judgment against Texas Snubbing, would be barred from recovering under the policy since the release executed by Texas Snubbing extinguished its rights in the policy. Underwriters reason that since Stapleton’s rights are derivative of Texas Snubbing’s rights, and since Texas Snubbing has released its claim against the policy, then Stapleton would likewise be barred from recovery under the policy. See Jordan, 774 F.Supp. at 427 (third party stands in shoes of insured); Lane v. Anchor Casualty Co., 355 S.W.2d 90, 91 (Tex.Civ.App.— Houston [1st Dist.] 1962, no writ). The court is therefore called upon to determine whether the settlement entered between Underwriters, Texas Snubbing and Jim Hutchings is effective to deprive Stapleton of any potential right to policy benefits. It has been held numerous times that the rights of the injured party in a liability insurance policy applicable to an accident arise “immediately upon the happening of the accident,” and “cannot be destroyed by an attempted subsequent cancellation, release, or compromise by the insured and insurer.” Spann v. Commercial Standard Ins. Co., 82 F.2d 593 (8th Cir.1936); see also Wright v. Newman, 598 F.Supp. 1178 (W.D.Mo.1984), aff'd, 767 F.2d 460 (8th Cir.1985) (almost universally accepted that rights of injured third party in respect of a policy of liability insurance irrevocably attach at time of accident and those rights may not be destroyed either by subsequent cancellation of policy or by mutual rescission thereof by insurer and insured); Capuano v. Kemper Ins. Cos. 433 A.2d 949 (R.I.1981) (“ ‘[I]t is the general rule that an injured person’s rights cannot be defeated by a cancellation or settlement after an accident has occurred. And since a policy cannot be cancelled after an accident, neither can a prior unauthorized or defective cancellation be ratified after an accident, so as to cut off the rights of the injured person.’ ”) (quoting 8B Appleman, Insurance Law and Practice § 5020 at 515-18); State Farm Mut. Auto. Ins. Co. v. Kendall, 104 Ga.App. 481, 122 S.E.2d 139 (1961) (“ ‘injured party’s rights against a liability insurer arise immediately upon the happening of the accident and cannot be destroyed by attempted subsequent cancellation, release or compromise by insured and insurer.’ ”) (quoting Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 6, at 4071, p. 111); National Surety Corp. v. Sanders, 53 Ala.App. 405, 301 So.2d 93 (1974) (“ ‘After a cause of action has accrued to the injured persons against the insured, then the parties to the contract of insurance cannot by any release, agreement or collusion destroy the rights of the injured persons in the indemnity.’ ”) (quoting Goldstein v. Bernstein, 315 Mass. 329, 52 N.E.2d 559, 561 (1943)); J. Appleman, Insurance Law and Practice § 5020, at 515-16 (1981) (citing general rule that “an injured person’s rights cannot be defeated by a cancellation or settlement after an accident has occurred.”). Based on this principle, courts have often permitted an injured third party a right of action against his tortfeasor’s liability policy despite a release executed by the tortfeasor/insured in favor of his carrier. This court has found no Mississippi case which has confronted the question of the effect to be given a post-occurrence settlement by the contracting parties as against injured third parties. The Texas courts, however, have had occasion to address the issue. In Key Life Insurance Company v. Taylor, 456 S.W.2d 707 (Tex.Civ.App. — Beaumont 1970, writ ref’d, n.r.e.), the court concluded that since a “blanket accident policy” procured by the injured claimant’s employer did not indicate that the policyowner was required to be found liable before benefits would be payable, and since the policy by its terms resembled a group policy which was obviously intended to be for the benefit of third parties, namely, the policyowner’s employees, then the injured employee could properly bring an action for recovery under the policy without first having obtained a judgment against the employer. The court rejected a contention by the insurer, similar to that advanced by Underwriters, that the employee/claimant was precluded from recovery on the policy since the policyowner/employer had executed a release in favor of the carrier and in so concluding, explained as follows: In holding this contract was for the benefit of plaintiff and that he could properly bring this suit, it necessarily follows that only plaintiff could release his cause of action.... [Ojnce the cause of action accrued in favor of a third party beneficiary the Policyowner could [not] do anything to release it. Those cases cited to us by plaintiff are more nearly in point in construing a group policy of insurance providing for penalty and attorney’s fees, to mean the injured person was the “holder of the policy” and the one who could recover those benefits. Key Life, 456 S.W.2d at 709. Key Ufe indicates that a settlement and release between an insured and his liability insurer is ineffective as against a third party who establishes that he is an intended third-party beneficiary of the insurance contract prior to his obtaining a judgment against the insured. In that circumstance, the third party may bring an action against the insurer on the policy despite the insured’s release of the carrier. The case at bar, however, presents quite a different situation, for here, as this court has concluded, the insurance contract was not for the benefit of Stapleton but rather was for the benefit of Texas Snubbing, so that unless or until Stapleton were to obtain a judgment against Texas Snubbing, Stapleton would have no interest in the policy. This fact also distinguishes other Texas eases touching upon the question of whether settlements between the contracting parties are to be given binding effect as against the claims of injured third parties. In Indemnity Company of America v. Pitts, 58 S.W.2d 53 (Tex.Comm.App.1933), an automobile liability insurance policy issued by Indemnity Company to one Kaki-saki provided that “[i]n the event a judgment against the assured, arising out of an accident covered in this policy, is returned unsatisfied, because of assured’s insolvency or bankruptcy, an action may then be maintained against the Company by the party in whose favor judgment was rendered.” There, an insurer and its assured agreed to a cancellation of the assured’s policy after a third party had obtained a judgment against the assured for negligence in causing her injuries, and execution on the judgment had been returned unsatisfied. In an action by the injured third party against the insurer for recovery on the policy, she alleged that the carrier and insured had conspired and colluded to make a pretended cancellation of the policy, pursuant to which the insured had made a pretended release of his claim against his insurer, in fraud of plaintiff’s rights and for the purpose of defeating her right to proceed against the insurer. The Texas appeals court accepted the plaintiff’s contention that the consensual cancellation of the policy between insurer and assured was not valid and binding as to her, reasoning as follows: [A]t the time the agreement for cancellation of the policy was made between Kakisaki and the Indemnity Company, the accident in question had already occurred, and the liability which the Indemnity Company was bound to assume, subject to the terms and conditions of the policy, had already become attached. That Florence Pitts, without her consent, could not be deprived of her rights against the company, by agreement between Kakisaki and the company after her rights had accrued, is perfectly plain. Her rights against the company, subject . to the terms and conditions of the policy, accrued the moment the liability of Kaki-saki for the personal injuries suffered by her arose. The subsisting obligation of the company, upon which her rights against the company depended, was of course, originally due to Kakisaki; but even so, that obligation could not, in the absence of a policy provision to that effect, be rescinded, and her dependent rights destroyed, by the agreement to which she was not a party. Id. at 54. See also Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233 (1956) (citing Pitts and holding that post-accident cancellation of policy of automobile liability ineffective against rights of third parties who sued insurer to recover judgment against insured). In Pitts, as contrasted with the present case, at the time suit was filed against the insurer, the injured party had already secured a judgment against the insured and execution on the judgment had been returned unsatisfied. Thus, she had, in fact, satisfied the conditions precedent to her seeking recovery on the insurance contract. Further, the insurance contract itself granted the injured third party the right to proceed against the insurer for recovery of policy benefits in the event she recovered a judgment and was unable to satisfy the judgment due to the insured’s insolvency. In other cases where that right has been afforded to an injured third party, either in the contract itself or a statute of similar import, the courts have consistently viewed that injured third party as having been granted a right in the insurance policy which the contracting parties could not destroy once an accident had occurred. For example, in Spann v. Commercial Standard Insurance Co., 82 F.2d 593 (8th Cir.1936), the court observed that [wjhere an injured person has a right to sue an insurer conditioned upon an unsatisfied judgment against the insured, the obtaining of the judgment and the unsuccessful efforts to collect it are conditions precedent to his cause of action against the insurer for the purpose of setting in motion the statute of limitations. The rights of the injured party arise, however, immediately upon the happening of the accident. This right, arising from contract, cannot be destroyed by an attempted subsequent cancellation, release, or compromise by the insured and insurer. A contrary rule allowing the insured and insurer to destroy the claim of the injured would render the right of little value. Spann, 82 F.2d at 599. The policy in the case at bar contains no provision granting Stapleton a right to proceed against the policy in the event of securing a judgment against Texas Snubbing, nor does a statute provide him such a right. The cited cases, therefore, cannot be considered controlling on the issue presented. Rather, in the court’s view, they stand for the limited proposition that a release by an insured or a consensual cancellation of an insurance policy after an injured third party becomes an intended beneficiary or judgment creditor cannot operate to deprive that third party of his vested right to pursue a claim for recovery under the policy. In Finkelberg v. Continental Casualty Co., 126 Wash. 543, 219 P. 12 (Wash.1923), the case most factually analogous to the one at bar, the Washington Supreme Court found that a settlement between an insurer and insured after an accident, but before suit was brought against the insured to establish his liability for injuries to a third party, did not bar the claimant’s later suit against the insurer on the policy. There, as here, the carrier’s liability on the policy was dependent upon its insured’s liability having been fixed by final judgment, and, as here, the settlement was effected prior to the injured party’s having obtained a judgment against the insured. But significantly, in Finkelberg, as contrasted with the present case, the court viewed the injured party under the law of Washington as a third-party beneficiary of the insurance contract from the time the policy was first issued. The court explained, A third person, beneficially interested in a contract, may maintain an action to recover thereon, even though the identity of the third person may not be known at the time of the execution of the contract. “The name of the person to be benefited by the contract need not be given, if he is otherwise sufficiently described or designated. The fact that the particular person who is to benefit from the promise is not known when the promise is made is immaterial. He may be one of a class of persons if the class is sufficiently described or designated. And the fact that the person to whose benefit a promise may inure is uncertain at the time it is made, and that it is dependent on a contingency, will not deprive the person who afterward established his claim to be the beneficiary of the promise of the right to recover upon it.” Id. 219 P. at 14 (quoting 13 C.J. 711) (additional citations omitted). The identity of the third person became known only upon the happening of the accident by which that person became injured, and her right to maintain an action against the carrier thus accrued at the time of the accident. By that occurrence, she became a third-party beneficiary, and the insured thereafter “could [not] destroy the rights of appellant by his agreement with [the insurer].” Id. The same result was reached in Bachman v. Independence Indemnity Co., 112 Cal.App. 465, 297 P. 110 (App.1931), where an injured third party secured a judgment against an insured and filed suit to recover on the insured’s automobile liability policy. The insurer raised the insured’s non-cooperation as a defense to payment. The court held that “after the happening of an accident coming within the coverage provisions of a policy of insurance, ... neither the insurer nor the insured can, by any voluntary act, defeat the statutory right given to the injured person to bring an action on the policy after judgment recovered against the insured without some act or omission on the part of the injured which will relieve the insurer from liability.” Id., 297 P. at 118. The court explained, In the jurisdictions which do not recognize the right of an injured person to bring an action on the insurance policy to collect the amount of a judgment rendered against the insured for damages suffered at his hands, the policy is regarded and treated as a private contract of indemnity between the insurer and insured in which no other person may become interested. In the jurisdictions recognizing such a right of action the policy is regarded as a contract between the insurer and the insured for their benefit and for the benefit of an unknown third person who becomes known and identified upon being injured by the insured. Id., 297 P. at 117. The court concluded that California would be governed by the latter rule, based on a portion of California’s Financial Responsibility Act which provided that “in case judgment shall be secured against the insured in an action brought by the injured person or his heirs or personal representatives, in case death resulted from the accident, then an action may be brought against the company, on the policy and subject to its terms and limitations, by such injured person.” Id. The court commented: It would seem a strange and useless proceeding on the part of the Legislature to give to the insured the right to sue the insurer if a recovery in such an action could be defeated by the insured without the knowledge or consent of or any act on the part of the injured person. It was a contractual relation created by statute which inured to the benefit of any and every person who might be negligently injured by the assured as completely as if such injured person had been specifically named in the policy. * * * * It is contended by appellant that its liability could not accrue under the provisions of the policy until an execution issued upon the judgment obtained against the assured, or judgment debt- or, was returned unsatisfied by reason of the insolvency or bankruptcy of said assured. The statute of this state, which is the final word on this issue, does not make the return of execution unsatisfied a prerequisite to the commencement of an action upon the policy- Id., 297 P. at 117 (quoting Malmgren v. Southwestern Automobile Ins. Co., 201 Cal. 29, 255 P. 512, 513 (1927)). The policy at issue in Graham v. United States Fidelity and Guaranty Co., 308 Pa. 534, 162 A. 902 (1932), contained both a no action clause, proscribing suits against the insurer until the amount of damages was determined by final judgment or agreement, and an insolvency clause, providing an injured party a right of action against the insurer for the amount of her judgment in the event of the insolvency or bankruptcy of the insured. The plaintiff was injured while a passenger in the insured’s vehicle and, in accordance with the policy provisions, sued the insured for damages and obtained a judgment against him. When she was unable to satisfy the judgment due to the insured’s insolvency, she filed suit against the insurer to recover benefits under the policy. The insured also filed suit against the insurer for the amount of the judgment obtained against him, but that action resulted in what appears to have been an agreed dismissal, which barred subsequent actions by the insured against the insurer. The insurer argued, inter alia, that because the suit against it by the insured resulted in an agreement by the insured not to bring suit, which agreement operated to extinguish his cause of action against the carrier on the judgment against him, the right of the plaintiff to sue the company on the same judgment, being derivative of the insured’s rights, was likewise terminated. After determining that the injured plaintiff was a third-party beneficiary of the insurance agreement and that indeed, the policy under consideration “expressly gave the injured party, the beneficiary, the right to sue the company,” id., 162 A. at 904, the court rejected the insurer’s position, stating: Plaintiff was given a direct right of action against the defendant, which accrued when the execution issued on her judgment against Alquist was returned unsatisfied. She exercised it before Al-quist sued [his insurer], and months before his suit was settled without notice to her. Her cause of action is unaffected by the disposition made ... of Alquist’s suit. Id. 162 A. at 905. Similarly, in Zimmerman v. Union Automobile Insurance Co., 133 Or. 600, 291 P. 495 (1930), the court found it significant, in determining the effect of a post-accident cancellation of an automobile liability insurance policy, that the policy in question, was “one which undertakes to afford protection against liability and makes as its beneficiaries, in the event of the Assured’s insolvency, individuals negligently injured by the latter.” Id., 291 P. at 497 (citing Rose & Son v. Zurich Gen. Acc. & Liability Co., 296 Pa. 206, 145 A. 813, 815 (1929), for the proposition that “ ‘While the claimant is uncertain until an accident happens, that event fixes legal responsibility, as to person, time, and place.’ ”). The essence of the insurance contract, according to the Zimmerman court, was that “if [the insured] became indebted to any one through the negligent operation of his car and, because of insolvency, could not discharge the debt, the company would do so." Id., 291 P. at 498. Ultimately, the court concluded that where “the policy gave a direct primary right against the insurance company to any one injured by the insolvent assured, ... that ... right could not be terminated without the acquiescence of the beneficiary of the promise.” Id. The plaintiffs in Hooker v. American Indemnity Co., 12 Cal.App.2d 116, 54 P.2d 1128 (1936), secured a judgment against an insured in a wrongful death action prior to making a claim against the insurer for recovery under the tortfeasor’s public liability insurance policy. The insurer contended in that action that there was no coverage for plaintiffs’ damages since prior to the accident it had cancelled the policy-under which plaintiffs sought recovery and had issued in its place a policy which did not provide coverage for the accident. According to the carrier, the insured ratified the cancellation after the accident by paying premiums on the new policy. The court, however, rejected the insurer’s position, holding that the original policy, which was issued pursuant to California’s Financial Responsibility Act, specifically prevented any cancellation of the policy by ratification of a cancellation by the insured. The policy provided, in particular, “This policy shall not be canceled or annulled as respects any loss of damage by any agreement between the company and the assured after the assured has become responsible for such loss or damage, and any such cancellation or annulment shall be void.” Thus, the court held, “The rights of the heirs at law ... of the deceased ... had intervened before there was any ratification of the alleged cancellation by the insured. The loss of liability insured against in the insurance policy was for the benefit of these plaintiffs, and when their cause of action accrued, no subsequent act of the insured could deprive them of it.” Id., 54 P.2d at 1132. In National Surety Corp. v. Sanders, 53 Ala.App. 405, 301 So.2d 93 (1974), the insurer paid out policy benefits to the insured, and was thereafter confronted with the claim of an injured party who had secured a judgment against the insured. The court rejected the insurer’s contention that its obligations under the policy had been fulfilled by payment to the insured, based upon the mandate of a state statute which provided that upon an injured party’s recovery of a final judgment against a defendant who was insured against the loss or damage at the time the right of action arose, the judgment creditor was entitled to have the insurance money provided for in the contract of insurance between the insurer and insured applied to the satisfaction of his judgment. That code section, the court stated, gave the injured party “a vested interest (secondary) by way of hy-pothecation in the amount due the insured by the insurer of the rendition of the judgment against the insured,” Sanders, 301 So.2d at 95, and by virtue of that statute, “the insurance policy in force, while for the protection of the insured, [was] also for the benefit and protection of the injured party.” Id. Thus, the court concluded that after the cause of action had accrued to injured persons against the insured, the parties to the contract of insurance could not by any release, agreement or collusion destroy the rights of the injured persons in the indemnity. Id. (quoting Goldstein v. Bernstein, 315 Mass. 329, 52 N.E.2d 559, 561 (1943)). “To hold otherwise would be to deny the injured party the protection and benefit of” the state statute, “and would, in effect, render the section virtually use-less_ The public would not be adequately protected if the assured and insurer co