United States Court of Appeals

Fifth Circuit



## FILED

February 10, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 03-21197

____________

ALLSTATE INSURANCE COMPANY,

Plaintiff-Counter Defendant-Appellee,

versus

DISABILITY SERVICE S OF THE SOUTHWEST INC; GAIL

LOFTON, Personal Representati ve o f the Estate of Kenneth Ray

Lofton; GAIL LOFTON as next friend of Kena Lofton and Sylvester

Lofton, minors,

Defendants-Counter Claimants-Appellants.

Appeal from the United States District Court

For the Southern District of Texas

Before HIGGINBOTHAM, DAVIS, and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

This insurance dispute arises out of the death of Kenneth Ray Lofton (“KRL”), a quadriplegic,

while in the care of Disabilit y Services of the Southwest Inc. (“DSSW”). KRL’s family (“the Lofton

family”) sued DSSW, claiming that DSSW was negligent in its provision of medical care to KRL and

in its fa ilure t o provide KRL with a usable telephone and emergency response device (collectively

“communication devices”) for emergencies. Allst at e Insurance Company (“Allstate”) sought a-2-

declaratory judgment in the district court ruling that it had no duty to defend its insured, DSSW, in

t he lawsuit brought against DSSW by the Lofton family. The parties agreed to proceed befo re a

magistrate judge. The magistrate judge granted Allstate’s motion for summary judgment, ruling that

Allstate was not required to defend DSSW in the underlying sui t based o n an exclusion in the

insurance policy. DSSW and the Lofton family appeal the magistrate’s grant of summary judgment

in favor of Allstate.

I

KRL entered DSSW’s 24-Hour Shared Attendant Program (“Program”) at the Airport Landi ng

Apartments on November 10, 2000. The Program is administered by the Texas Department of Human

Services (“TDHS”), which contracted with DSSW to provide care for the residents of the apartments.

KRL, a quadriplegic unable to use his legs o r arms, was able to speak without difficulty and use a

mouth stick to perform certain tasks. KRL needed assist ance, however, for all of his daily living

activities. Under the terms of the contract between t he Texas Department of Human Services and

DSSW, DSSW was obligated to provide assistance for KRL’s daily living.

Wit hin two or three days of arriving at the apartments, KRL developed a severe urinary tract

infection. KRL was unable to ask for medical assistance because his bedro o m did no t have the

communication devices. Although there was a telephone located outside his bedroom, KRL could not

reach it as a quadriplegic, and would not have been able to use it because it could not be activated with

a mouth stick. Unable to contact anyone to alert them o f his co ndition, KRL died on November

14 )) four days after arriving at the apartments.

The Lofton family brought suit against DSSW, alleging that DSSW failed to provide adequate

medical care, which led to Lofton’s infection and his subsequent death. In the alternative, they allege1 Under the heading “Exclusion – Services Furnished by Health Care Providers”, the policy

states

this insurance does not apply to “bodily injury”, “property damage” or

“personal and advertising injury” arising out of:

1. The rendering or failure to render: a. Medical, surgical, dental, xray or nursing service, treatment advice or instruction, or the

related furnishing of food or beverages; b. Any health or therapeutic

service, treatment, advice or instruction; or c. Any services,

treatment, advice or instruction for the purpose of appearance or

skin enhancement, hair removal or replacement of personal

grooming.

2. The furnishing or dispensing of drugs or medical, dental or surgical

supplies or appliances; or

3. The handling or treatment of dead bodies, including autopsies,

organ donation or other procedures.

-3- that regardless of the cause of the infection, DSSW failed to provide the communication devices. It

is clear, however, that in this case the reason KRL allegedly needed a telephone was to obtain

emergency medical assistance directly or through his family or other intermediaries. As a result, they

contend that KRL was unable to call for help, thus, making his infection fatal.

When KRL died, DSSW was insured by Allstate under a commercial general liabilit y po licy.

The policy covers claims of bodily injury or property damage “caused by an ‘occurrence’ that takes

place on the ‘coverage territory.’” The policy excludes any bodily injury or property damage arising

out of the rendering or failure to render medical service, treatment, advice or instruction or any health

or therapeutic service, treatment, advice or instruction (collectively “medical services”). 1 Allstate filed

its motion for declaratory judgment claiming it owed no duty to defend DSSW because KRL’s injuries

fell under the exclusion of coverage. The magistrate judge agreed, and granted summary judgment

in favor of Allstate.

II

We review the district court's rulings on summary judgment motions de novo

, employing the-4-

same analysis as the district court. W yatt v. Hunt Plyw ood Co., Inc . 297 F.3d 405, 408 (5th Cir.

2002). Summary judgment is proper when the pleadings and evidence on file show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of

law. F E D

. R. C IV

. P. 56(c); Celotex Corp v. Catrett

, 477 U.S. 317, 322 (1986). Interpretation of an

insurance policy is a question of law that we review de novo

. P erformance Autotech II, Ltd. v. MidContinent Cas. Co., 322 F.3d 847, 853 (5th Cir. 2003). This is a diversity case and the parties agree

that Texas law applies. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-79 (1938).

In Texas, an insurer’s duty to defend is determined solely by the “four corners” of the factual

allegations in the u nderlying co mplaint and the “four corners” of the insurance policy. A merican

States Ins. Co. v. Bailey

, 133 F.3d 363, 369 (5th Cir. 1998); King v. Dallas Fire Ins. Co., 85 S.W.3d

185 , 187 (Tex. 2002). This is known as the “eight corners” rule. K ing, 85 S.W.3d at 187

. T he

pleadings and allegations are liberally interpreted and their truth is presumed. N at’l Union Fire Ins.

Co. of Pittsburgh, Pa. v. Merchants Fast Motor Lines Inc

., 939 S.W.2d 139, 141 (Tex. 1997). The

pleadings must allege facts within the scope of coverage for a duty to defend the i nsured to exi st.

King, 85 S.W.3d at 187. If coverage is found for any part of a suit, the insurer must defend the entire

suit. S t. Paul Fire & Marine Ins. Co. v. Greentree Fin. Corp. )) Tex.

, 249 F.3d 389, 391 (5th Cir.

2001). However, there is no duty to defend if the covered cause is related and interdependent to the

excluded cause of injury. D uncanville Diagnostic Ctr., Inc. v. Atlantic Lloyds Ins. Co. of Texas, 875

S.W.2d 788, 791 (Tex. App. )) Eastland 1994, writ denied). “[I]n case of doubt as to whether or not

t he allegations of a complaint against the insured state a cause of action within the coverage of a

liabilit y policy sufficient to co mpel the insurer to defend the action, such doubt will be resolved in

insured’s favor.” M

erchants Fast Motor Lines Inc

., 939 S.W.2d at 141(citing Heyden Newport Chem.-5-

Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex. 1965). Exceptions and limitations in an

insurance policy are strictly construed against the insurer. C anutillo Indep. Sch. Dist. v. Nat’l Union

Fire Ins. Co. of Pittsburgh, Pa., 99 F.3d 695, 701 (5th Cir. 1996). If multiple interpretations of the

insurance contract are reasonable, the court must construe the contract against the insurer, especially

when exceptions to liabilit y are considered. Travelers Indem. Co. v. Citgo Pet. Co.

, 166 F.3d 761,

769 (5th Cir. 1999).

DSSW admits that its failure to provide adequate medical care is excluded under the Allstate

insurance policy. It contends, however, that the Lofton family’s claim that DSSW was negligent in

failing to provide communication devices is not excluded by the medical services provision; thus,

invoking Allstate’s duty

t o defend. This claim is based on the theory that if KRL had access to a

tel epho ne or the emergency response device, he would have been able to telephone his family who

would have taken him to a hospital where he would have received lifesaving care. Allstate asserts the

failure to provide communica t ion devices is inseparable from the Lofton family’s claim that DSSW

failed to provide adequate medical care. Therefore, they argue there is no duty to defend DSSW under

the medical services policy coverage exclusion.

The question before us is whether there is a potential cause of injury pleaded and not covered

by the policy exclusions. In doing so, we must not “imagine factual scenario s which might trigger

coverage.” M

erchants Fast Motor Lines Inc

. , 939 S.W.2d at 142. It is immaterial that one claim

against DSSW was clearly e xcluded under the insurance policy. “Texas courts will allow claims

against an insured to proceed when two separate and independent ‘but for’ causes of the injury sued

on )) one excluded under the policy and one not )) are involved.” T ravelers Indem. Co.

, 166 F.3d at

771.-6-

In their complaint, plaint iffs plead in the alternative that “[w]ithout regard to the cause of his

emergency state, if LOFTON had the abilit y to summon assistance on a usable telephone or emergency

response device, h e could have and would have called his family, who could have and would have

secured emergency assistance to get LOFTON to the hospital.” C O MPL

. at 12. Therefore, the

dispositive inquiry is whether access to a t elepho ne or emergency response device is excluded in

coverage as a medical service under the policy.

DSSW relies on Guaranty Nat’l Ins. Co. v. North River Ins. Co.

, 909 F.2d 133 (5th Cir. 1990)

to support its claim that the failure to provide the communication devices was an administrative

breach, rather than medical negligence. In G uaranty Nat’l

, the insurance dispute stemmed from an

underlying lawsuit based on the suicide of a patient who jumped out of her hospital room window. Id.

at 134. The plaintiffs in the underlying suit claimed that the hospital (1) failed to monitor and observe

the patient properly; (2) failed to maintain t he windows in the patients room in a proper manner to

prevent escape of suicide; and (3) failed to maintain an adequate staff of properly trained personnel

in the psychiatric unit. I

d. T he relevant insurance policy maintained by the hospital had an exclusion

for liability arising from medical malpractice and professional services. I d. at 135. The court found

that the decision to not place fixed protective screens over the windows, which could have prevented

the suicide, was an

administrative business decision rather than a professional medical decision

excluded from coverage. I d. at 136. This administrative business decision, the court ruled, was a

cause of deat h independent of the failure to observe the patient, because the jury found that each

separately was a proximate cause of the patient’s death. Id. at 137.

Though interpreting a professional services exclusion for attorneys, the case of Atlantic Lloyd’s

Ins. Co. of Tex. v. Susman Godfrey, L.L.P., 982 S.W.2d 472 (Tex. App. )) Dallas, 1998) is useful in-7-

analyzing the professional services exclusion in Guaranty Nat’l

. In determining what falls under the

rubric of “professional services ”, we are t o consider the inherent skills typified by that profession.

There, the court writes, “[t]o qualify as a professional service, the task must arise out of acts particular

to the individual's specialized vocation.” Id . at 476-77. The court found that an attorney’s letter to

solicit a physician’s former patient was not a professional service within the meaning of the exclusion

because it was merely incidental to and not constituting the practice of law. Id. at 476.

Communication with patients is vit al to providing “health” or “nursing” services. S ee, e.g.,

Conant v. Walters

, 309 F.3d 6 29, 636 (9t h Cir. 2002) (“An integral component of the practice of

medicine is the communication between a doctor and a patient.”). If KRL had not been a quadriplegic,

he wo uld not have required communication devices that could be operated by a mouth stick.

Providing this service to KRL is typical, if not integral, to the provision of a 24- Hour Shared

Attendant Program for someone in KRL’s condition, as evidenced in the contract between DSSW and

TDHS. Hence, this is not analogous to Guaranty Nat’l , in which the hospital decided to use screws

in the window sashes rather than fixed, protective screens. The contract between DSSW and TDHS

makes clear the purpose of the communication dev ices: it required DSSW to “[a]rrange for each

household to have a telephone or an emergency response dev ice fo r requesting assistance in

emergency situations and for requesting assistance with activities for daily living.” Even DSSW

understood the emergency nature of the communication devices. DSSW’s Fifth Amended Original

Complaint alleges that KRL would have a telephone in his bedroom “ for emergencies .” C OMPL . at

4 (emphasis added). Thus, the claim that KRL’s death was caused by the failure t o pro vide

communication devices is inseparable from t he Lo fton family’s claim that DSSW failed to provide

adequate medical care, and the medical services exclusion applies. Accordingly, Allstate has no duty-8-

to defend DSSW.

III

The magistrate judge’s order granting summary judgment is AFFIRMED.