### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-31032

CAMBRIDGE INTEGRATED SERVICES GROUP, INCORPORATED, Plaintiff-Appellant
v. CONCENTRA INTEGRATED SERVICES, INCORPORATED, Defendant-Appellee

______________________ Appeal from the United States District Court for the Western District of Louisiana

Before WIENER, ELROD, and SOUTHWICK, Circuit Judges. WIENER, Circuit Judge: Plaintiff-Appellant Cambridge Integrated S e rvices Group, Inc. (“ C a mb ri d g e” ) a p p e al s th e di s t ri c t c o u rt’s grant of Defen d a n t

- Ap p e l l e e C o n c e n t r a Integrated Services, Inc.’s (“Concentra”) motion f o r s ummary judgment. Cambridge and Concentra owed each other contractual duties of defense and indemnification. Cambridge and a subsidiary of Concentra were later named as defendants in a state c o u r t l a w s uit. Concentra settled and obtained a release that benefitted Cambridge to the extent of Concentra’s i n d e mnification obligation; however, Concentra rejecte d C a mbridge’s tender of defense. Cambridge filed suit in federal co u r t s e e king a declaratory judgment that U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 2 6, 2 012 Lyle W . Cayce Clerk Case: 11-31032 Document: 00512000584 Page: 1 Date Filed: 09/26/2012No. 11-31032

Concentra owed it contractual defe n se and indemnification for the costs that Cambridge incurred in settling the st a te-court litigation. The district court granted summary judgment in favor of Concentra, holding that the settlement satisf i e d i t s duty to defend and indemnify Cambridge. We affirm in part and reverse in part, and we remand for further proceedings. I. Facts & Proceedings A. The Services Agreement Cambridge is a th ir d

- p a rty a d m i ni s t r a t or of workers compensation claims. Concentra provides services to administrators like Cambridge. Concentra and Cambridge entered into a Services Agreement i n which Concentra agreed to review medical bills, recommend payments, and pro v i d e access to preferred provider organization (“PPO”) discounts to Cambridge’s clients. Concentra also agreed“to indemnify, d efend and hold [Cambridge] harmless from and against
any and all claims

... including, reasonable attorneys’ fees and litigation expense arising or resulting from any alleged act, error or omission , i n c l uding any intentional tort, willful misconduct, negligence or gross negligence by” Concentra. Reciprocally, Cambri d g e a gr e e d t o defend and indemnify Concentra

1 for claims based on Cambridge’s alleged acts, errors, and omissions. In essence, each party owed the other defense and indemnification only for claims based on its own acts. Paragraph 9.3(c) of the Services Agreement extended Concentra’s defense and indemnification obligations to unclear allegations of wrongdoing: If the alleged wrongful con d uct cannot be determined from the allegations as pleaded, CONC E NTRA agrees to defend and indemnify pursuant to the language in paragraph (a) above, of this

A se par ate pr ovis ion reit er a te d that Conce ntr a ow ed def ens e and inde mni ty for clai ms 1 agains t Camb rid ge “invol v[ing] any al legedac t, er rororom iss ion, in clud ing an y int enti onal tor t, w illf

ul mi sc ondu ct, ne gligence orgro ss ne gligence by” Con cent ra. 2 Case: 11-31032 Document: 00512000584 Page: 2 Date Filed: 09/26/2012No. 11-31032

Agreement, until the conduct complained of is clarified during the

c o u r s e of the litigation, at which time the defense and indemnit y obligation shall promptly be determined under paragraphs (a) and (b) above; provided, however, i n the event it is determined that [Cambridge] is obligated to indemnify CONCENTRA, [Cambridge] shall promptly re imburse CONCENTRA for fees and expenses incurred by CONCENTRA up to the time of such determination. B. The GundersonCase and the Focus Settlement In 2004, Cambridge and FOCUS Healthcare Management Inc. (“Focus”),

a subsidiary of Concentra, were among a number of parties named as defendants in Clark A. Gunderson, M.D., et al. v. F.A. Richard & Associates, Inc., et al. , a suit filed in the state district court of Calcasieu Parish, Louisiana (“ Gunderson”). The Gunderson plaintiffs, a proposed class of medical providers, alleged that the d e f e n d a n t s i m p o s e d P P O r e du c ti o n s o n w o rk e r s c o m p ensation payments withou t complying with the notice requirements of Louisiana’s Any Willing P roviders Act. Cambridge was also a named d e f endant in related proceedings filed in 2 Louisiana’s O f

f i ce of Workers’ Compensation (“OWC”) by members of the Gundersonclass. 3 In January 2007, Focus and Co n c e n tra settled with the Gunderson plaintiffs for $12 million (“the Focus Settlement”). Although Cambridge was not

a party to the Focus Settlement and did not participate i n n e g o t i a t i ng it, the G u n de rs o n p l ai n tif

f s al s o r e l e a s e d their claims for “Liability” again s t C a mb ri d ge . The Focus Settlement defined the liability released by the plaintiffs as follows:

La. Rev. S tat

. § 4 0:22 03.1

. 2
The Gu nderson plai ntif fs als o ass ert ed clai ms aris ing fr om wo rk ers com pe n s atio n 3 paym ents mad e by Camb rid g e b u t revie we d by cont rac tor s othe r than Conce ntr a or its sub sid iary. 3 Case: 11-31032 Document: 00512000584 Page: 3 Date Filed: 09/26/2012No. 11-31032

With respect to the Related Parties, the term “Liability” shall mean 4 and refer to all claims and liabilities of the Related Parties arising out of the Episode, regardless of w hether the claims, liabilities, and/or resulting damage s a r e not yet known or manifested or whether such claims, liabilities, and/or res u l ting damages are known or unknown, asserted or unasserted, but only to the extent that Focus, Concentra, and/or Broadspire is liable to the Related Parties for contribution, indemnity, or by contract as a result of the Episode and specifically does not include the Independent Liability of the Related Par t i e s u n der La. R.S. 40:2201, et seq. and La. R.S. 23:1021, et seq

. (emphasis in original). 5 The Gunderson plaintiffs did no t , h owever, release their claims against Cambridge for any “Independent Liability,” defined as follows: The term “Independent Liability” shall mean and refer to any and all liability of a Related Party, other than that for which Focus, C o ncentra, and/or Broadspire is liable through indemnification, contribution, or contract. Finally, Paragraph 8.6 of the Focus Settlement prohibited the Gunderson plaintiffs from settling with Cambridg e w i t hout obtaining a release of Cambridge’s claims against Concentra:

The p art ies t o t his ap pea l a gree thatCam brid ge i s a Re late d Part y. 4
The “Epi so de” is def ined to “m ean and ref e r to and inclu de each and every event , 5 cir cum st ance , and/ or sit uatio n upon wh ich allegat ions h a v e b e e n mad e or coul d have been mad e for unde rp ayme nt, pena ltie s, rec overy of dam ages , or othe r reli ef or rem edy, aris ing out of the allege d violat ion s o f o n e o r mo re of the requ irem ents of La. R.S

. 40:2 03.1 and/ or the Louis iana Wor ke rs ’ Com pens at ion Law , La. R.S

. 23:1 021, et seq ., dur ing the per iod fr om Januar y 1, 2000 t hrough the Eff ect ive Da te as a res ult of the use of a PPO ow ned, oper ated , or cont rac tedw ith Focus orCon cent ra. ” 4 Case: 11-31032 Document: 00512000584 Page: 4 Date Filed: 09/26/2012No. 11-31032

The Cl a ss, each Class Member, and the PSC agree not to compromise, settle, release, waive, forfeit, surrender, acquit, dismiss, or discharge any cla i m against a Related Party, without f ir s t obtaining an express, written agreement by which such Re l a t e d Party compromises, settles, releases, waives, forfeits, surrenders, acquits, dismisses, and forever discharges any and all cla ims for contribution, indemnity, subrogation, breach of contract, statutory violation, and/or tort related to the Episode that it may have against Focus, Concentra, and/or Broadspire. The state cour t g r a nted preliminary approval of the Focus Settlement in January 2007. The Focus S e ttlement did not result in Cambridge’s dismissal from Gunderson or from any OWC proceedings. Cambridge took the position that (1) it had contractually d e l egated the state-law notice duty to Concentra, (2) it could seek indemnification from Concentra for any claims against it, and (3) the G u n derson plaintiffs’ post-settlement claims had therefore been releas e d

. According l y , C ambridge wrote to Concentra in January 2008, requesting “written confirmation that F o c u s ’ s i n d e m nity ob l i g a ti o n s specifically apply to the Louisiana class action and OWC proceedings so that C ambridge can seek appropriate o r d e r s d ismissing it from these Louisiana litigations.” Concentra declined to prov i d e t hat confirmation. Early in February 2008, Cambridge formally demanded defense and indemnification from Concentra with respect to Gunderson and the OWC proceedings. Concentra refused to provide a defense or indemnification. The following month, Cambridge filed the instant declaratory judgment action in the district court, seeking a holding that Concentra owed it defense and indemnification for any future liabilit y i n Gunderson and in the OWC

5 Case: 11-31032 Document: 00512000584 Page: 5 Date Filed: 09/26/2012No. 11-31032

p r o c eedings. Concentra sought and obtained a stay of this action, a n d Gundersonproceeded against Cambridge. C. The Cambridge Settlement Cambridge did not assert the Focus Settlement r e lease as a defense in Gunderson

. Instead, in November 2009, Cambridge settled with the Gunderson plaintiffs (“the C ambridge Settlement”). The Cambridge Settlement 6 incorporated Paragraph 8.6 of the Focus Se t tlement, but it also included language appearing to reserve some claims against Concentra: The Cambridge Interests agree to release [Concentra ] to the extent, and only to the extent, that such release is required by Paragraph 8.6 of the Focus Settlem e n t Agreement with Plaintiffs. The Cambridge Interests retain all rights to assert claims outside of Paragraph 8.6, including claims arising from [Concentra's] breach

o f their contractual, tort, or indemnity obligations with respec t t o the defense of the Gunderson matter, the OWC proceedings, or any applicable arbitration proceedings. In Ma y 2 0 10, Cambridge sought and obtained a lift of the stay in the i n stant district court declaratory action and amended its complaint to purs u e damages for the amounts it spent defending and settling Gunderson

. Concentra responded by filing a motion for summary judgment, contending that the Focus Settlement satisfied its defense and inde m nification obligations to Cambridge b y releasing Cambridge from any possible liability for which indemnificati o n might be owed. Concentra asserted in the a l ternative that Cambridge had released all c l ai m s f

o r d e f e n se and indemnification in the subsequent Cambridge Settlement.

Camb rid ge paid a tot al of $10, 000, 000 to se ttl e Gu nderson . Becaus e Gu nderson als o 6 involved clai ms aris ing out of wo rk e r s com pens atio n paym ents wh ich Conce ntr a did not revie w, Cam brid ge s eek s only $5,0 00,0 00 o f the tot al se ttl em ent amo unt fr om Con cent ra. 6 Case: 11-31032 Document: 00512000584 Page: 6 Date Filed: 09/26/2012No. 11-31032

The district court granted Concentra’s motion for sum m a r y judgment, holding that Concen tra had satisfied its defense and indemnification duties under the Ser v i c e s Agreement by negotiating the Focus Settlement and obtaining, for the benefit of Cambridge, a release of all L i a b i l i ty for which Cambridge could have received indemnification. Cambridge timely appealed. II. Analysis A. Standard of Review We review a district court’s grant of summary judgment de novo , applying the same legal standards as the district court

. Summary judgment is 7 appropriate when “there is no genuine dispute as to any material f a c t a n d the movant is entitled to judgment as a matter of law.” When reviewing a summary 8 judgment, we construe all the evidence and reasonable inferences in the light

m o st favorable to the nonmoving party. We are “not limited to the district 9 court’s reasons for its grant of summary judgment” and “may affirm the district

cour t ’ s summary judgment on any ground raised below and supported by the record.” 1 0 Concentra urges that because “state law governs issues in dispute, some deference is due to the d i s t r i c t c o u rt’s interpretation of the law of the state in which it sits.” The Supreme Court’s opinion in Salve Regina College v. Russell 1 1 rejected that proposition. Thus, our more recent cases “afford no deference to 1 2

Uni ted Sta tes v. Ca rem ar k, Inc. , 634 F.3d808 , 814 (5t h Cir

. 2011)

. 7
Fed

. R. Civ. P. 56(a). 8
Am az ing Spa ces , Inc. v. M etro Mi ni Stora

ge , 608 F.3d225 , 234 (5t h Cir

. 2010)

. 9
Ar yai n v . Wal -M

ar t Store s Tex

. LP, 534 F.3d473 , 478 (5t h Cir

. 2008)

. 1 0
Vi ll anue vav . CNAIns. Cos

. , 868 F.2d684 , 685 (5t h Cir

. 1989)

. 1 1
499 U. S. 225, 234, 240 (199 1) (ho ldin g that “ap pel late def ere nce to the dis tri ct cour t’s 1 2 det erm inati on of st ate law is inco nsi st ent wi th the pr incip les unde rlying this Court 's dec isi on in Erie” and that a cour t of app eals “er r[ s] in def err ing to the loca l expe rti se of the dis tri ct 7 Case: 11-31032 Document: 00512000584 Page: 7 Date Filed: 09/26/2012No. 11-31032

the district court’s determinations of issues of law of the st a t e i n w hich that court’s chambers are located.” 1 3 B. Duty to Indemnify “Under Louisiana law, indemnity provisions are construed in accordance with general rules governing c o n t r a ct interpretation. When the terms of a contract are unambiguous and l e a d t o no absurd consequences, we interpret them as a m a t t e r o f law.” The district court held as a matter of law that the 1 4 terms of the Focus Settlement satisfied Concentra’s contractual duty to defend and to indemnify Cambridge. We agree with respect to the duty to indemnify, but we disagree with respect to the duty to defend. Through the Focus Settlement, Concentra obtained a release of the Gunde rson plaintiffs’ claims against Cambridge for “Liability,” but not for “Independent Liability.” We repeat for emphasis that, in the Focus Settlement, Liability is defined as all claims for which Con c e n tra owed Cambridge indemnification; Independent Liability is defined as everything else. Thus, the
scope of the release was defined by and coextensiv e w ith Concentra’s duty to ind e m n i f

y Cambridge under the Services Agreement. Any claim against Cambridge for which it could have sought i n d e m nification ceased to exist by operation of the release and under res judicata , thus relieving Cambridge of any liability for Concentra’s conduct. We ag r e e with the district court that

cour t”)

. Bayo u Stee l Corp

. v. Na t’l Uni on Fir e Ins. Co. of Pittsbur gh, Pa. , 642 F.3d506 , 509 1 3 (5t h Cir

. 2011)

.

Libe rty Mut. Ins. Co. v. Pine Bl uf f Sa n d & G r a v el Co. , 89 F.3d 243, 246 (5t h Cir. 1 4 1996)

. 8 Case: 11-31032 Document: 00512000584 Page: 8 Date Filed: 09/26/2012No. 11-31032

Concentra preemptively satisfied its duty to indemnify Cambridge by securing the release from the Gundersonplaintiffs on Cambridge’s behalf. 1 5 C. Duty to Defend The district court did not distinguish between Concentra’s d u t y t o indemnify and its duty to defend. But “[t]he duty to indemnify and the duty to defend clearly are separate and distinct duties.” We conclu d e that summary 1 6 judgment was i n a p p ropriate with respect to the issue of Concentra’s duty to defend Cambridge. Concentra owed a duty to defend Cambridge against “any and all claims

... arising or resulting from” Concentra’s conduct. And, if the conduct alleged to give rise to a claim could not be determined from the pleadings, Concentra’s duty to defend continues “until the condu c t complained of is clarified during the

course of the litigation.” By definition, all claims for Liability that were 1 7 released arose from Concentra’s conduct. Therefore, if any claims that had been released were subsequently asserted against Cambridge, or if i t w a s unclear from the allegations whether the subsequently asserted claims had been

r e leased, Concentra remained contractually obligated to provide Cambridge a defense. After the Focus Settlement, the Gunderson plaintiffs pursued claims that they contended were for unreleased Independent Liability arising s o lely from Cambridge’s own conduct. And, the Gunderson plaintiffs presumably would not

See La. C i v . C o d e art

. 1854 (“ Perf orm ance by the obligo r extingui she s the 1 5 obligat ion. ”)

.

Fed. Ins. Co. v. St. PaulFire & Ma ri ne Ins. Co. , 638 So. 2d 1132, 1137 (La. Ct. App

. 1 6 1994)

. Conce ntr a argues that par agrap h 9.3( c) of the Ser vices Agreem ent wa s an “aut om atic

1 7
se lf- ter mi natio n pr ovis ion. ” Conce ntr a cit e s no autho rit y for that pr opo sit ion and doe s not expla i n h o w t h e dut y to def end coul d be extingui she d bef ore “th e cond uct com plai ned of is clar ifi ed dur ing t he cour se of t he liti gation .” 9 Case: 11-31032 Document: 00512000584 Page: 9 Date Filed: 09/26/2012No. 11-31032

knowingly pursue claims that h a d been released. But Cambridge was not a party to the Focus Settlement and thus was not bo u n d t o agree with the Gunderson plaintiffs that it had any unreleased Independen t Liability whatsoever. Rather, just as the Gunderson plaintiffs were entitled to attempt to p r o v e any Independent Liability that they could based on Cambridge’s own

co n d u c t , Cambridge was entitled to prove that the claims arose solely from Concentra’s conduct and thus had been totally released. When, on this record, we draw e v e r y reasonable inference in favor of Cambridge, we cannot say as a matter of law that all of the claims asserted by the Gunderson plaintiffs following ex e c u t i o n of the Focus Settlement arose exclusively from Cambridge’s conduct. In other words, the nature of th ose 1 8 plaintiff s ’ post-settlement allegations was unclear: The release might have served as a defense to some of those claims. As the matter th u s r e m ained to 1 9 be clarified through lit i g a t i on, Concentra’s duty to defend was triggered. By rejecting Cambridge’s tender, Concentra breached its duty to defend until the conduct underlying those claims was “clarifi e d d u ring the course of the litigation.” Accordingly, the district court erred as a m a t t e r o f law when it granted summary judgment to Concentra with respect to its duty to defend Cambridge. D. The Cambridge Settlement Release Although the district court gran t e d summary judgment on an incorrect basis, we ma y a f

f i r m such a judgment “on any grounds supported by the

At a st ate cour t hear ing, for exam ple , couns el for the Gu nderson plai ntif fs indi cat ed 1 8 that the pos t- se ttl em ent clai ms need ed to be clar ifi ed dur ing the cour se of the liti gation : “N ow , untilyou go c ase by cas e w ith each doc tor and the bills and wh at happ enedandw hat did n’t happ en, we wo n’t kn ow wh at els e they may have done wr ong, and they would be res pons ible forund er inde pend ent liabil ity. ”

The rele ase wo uld not have been a com ple te def ens e to all of the Gu nderson plai ntif fs ’ 1 9 clai ms beca use , as expla ined above, so me of the clas s me mbe rs rec eived paym ents wh ich had not involvedCon cent ra or its s ubs idi ary. 10 Case: 11-31032 Document: 00512000584 Page: 10 Date Filed: 09/26/2012No. 11-31032

record.” Th e district court did not reach Concentra’s alternative argument that

2 0 Cambridge released i t s c l a ims for indemnification or breach of the Services Agreement through the Cambridge Settle m e n t. A release in a written settlement agreement is subject to the general rules of Louisiana contract interpretation. “Interpretation of a contract i s t he determination of the 2 1

common intent of the parties.” As Louisiana law construes releases narrowly, 2 2 Concentra has the burden of proof “to establi s h t h e r e quisites for a valid compromise, including the parties’ intent to settle the differences being asserted in the action” to which the release is asserted as a defense. 2 3 Paragraph 8.6 of the Focus Sett l e m ent contractually prohibited the Gunderson plaintiffs from settling with Cambridge w i t h o u t also securing a release of Cambridge’s claims against Concentra. P aragraph 7(D) of the Cambridge Settlement incorporates this requirement and releases Cambridge’s claims against Concentra “to the extent, and only to the extent, that such release is required by Paragraph 8.6 of th e F ocus Settlement Agreement.” But Paragraph 7(D) also states that Cambridge “retain[s] all rights to assert claims outside of Para g raph 8.6, including claims arising from Focus, Concentra, or Broadsphire’s [sic] breach of their c o ntractual, tort, or indemnity obligations with respect to the defense of the Gundersonmatter, the OWC proceedings, or any applicable arbitration proceedings.” Paragraph 7(D) i s i n tension with itself. The first sentence expresses Cambridge’s intent to release all claims against Concentra; the second sentence, however, expresses an intent to retain an indemn i f ication claim against

Lif eca re Ho sp s. , Inc. v. H ea lth Plus of

La ., Inc. , 418 F.3d436 , 439 (5t h Cir

. 2005)

. 2 0 Young v. Equifax Cr edi t Info

. Serv s. , Inc. , 294 F.3d631 , 637 (5t h Cir

. 2002)

. 2 1
La. Civ. Cod e a rt. 204 5. 2 2
See Young , 294 F.3dat637

. 2 3
11 Case: 11-31032 Document: 00512000584 Page: 11 Date Filed: 09/26/2012No. 11-31032

Concentra. Construing Paragraph 7(D) narrowly, as i s r e quired by Louisiana law, we f

i nd it internally inconsistent and ambiguous as to which claims Cambridge intended to release. Accordingly, we cannot say that Concentra has borne its burden to show that Cambridge’s present claims come within the ambit of the release. The summary judgment cannot be affirmed on that basis. As a drafter of the Cambridge Settlement, Cambridge is at least partially responsible for the ambiguity in Paragraph 7(D). Perhaps it is probl e matic to allow Cambridge to b e n e f i t f r om that ambiguity, but on these facts, the only

reason a release exists at all is b e c a u s e the original Focus Settlement preemptively required the Gunderson plaintiffs to secure one. Cambridge was not a party to the Focus Settlement and was under no independent contractual obligation to release Concentra. If the release does n o t a chieve all the results that Concentra wanted, its remedy should lie against the Gunderson plaintiffs. E. Remand Because we must remand on t he issue of the duty to defend, Cambridge is entitled to prove the quantum of damages caused b y t h a t b reach, including fees and costs of defense in Gunderson

. It is impos s i b l e f o r u s to tell from the present record what those defense costs or other damages might have been. This is particularly true because Concentra’s duty to defend would have lasted only “until the conduct complained of is clarified during the course of the litigation.” The district court is in the better position to address these fact-intensive issues on remand. Concentra raises other arguments in favor o f affirming the summary judgment, none of which avoid the need for a remand. First, Concentra claims that the PPO discounts it recommended to Cambridge pursuant to the Services Agreement, which were the subject of at least part of the claims in Gunderson ,
w ere permissible under Louisiana law. But Cambridge’s suit is premised o n breach of the duty to defend under the Services Agreement

. W h e ther

12 Case: 11-31032 Document: 00512000584 Page: 12 Date Filed: 09/26/2012No. 11-31032

Concentra’s conduct complied with Louisiana law may have been a defe nse to the state-law claims in Gunderson , but that does not defeat Concentra’s duty to assert that defense on Cambridge’s behalf. Second, Concentra claims that Cambridge failed to mitigate its damages when it did not assert the Focus Settlement release as a defense in Gunderson

. According to Concentra, if the Gunderson plaintiffs were indeed pursuing claims for released Liability, then Cambridge had a complete defense and could have mitigated all of its damages instead of settling the claims. B u t even if 24 Cambridge had successfully asserted the release as a defense, it still would have incurred defense fees and costs that Concentra was contractually obli g a t e d t o provide, for the reasons exp l ai n e d ab o v e . C ambridge’s strategic decision to settle instead of asserting the release might be relevant to a determination w h e t her Concentra is liable for any portion of the amounts that Cambridge paid to settle the case, or whether Cambridge’s defense fees and costs could have been reduced by promptly asserting the release as a defense. I t d o e s n ot, however, categorically defeat the claim for the damages Cambridge actually incurred in litigating Gunderson after Concentra breached the Services Agreement by rejecting the tender of defense. We leave the question of damages for the district court to consider in the first instance on remand. III. Conclusion For the foregoing reasons, we affirm the summary judgment of the district court dismissing Cambridge’s claims against Concentra for indemnification, but

we reverse the summary judgment with respect to Concentra’s duty to defend. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Conve r s e l y , if the rele ase did not def eat any of the Gu nderson plai ntif fs ’ clai ms 2 4 beca use thos e clai ms we re for unrel eas ed Indep ende nt Liabili ty, then thos e clai ms fel l outs ide Conce ntr a’s d uty to def end and inde mni fy. 13 Case: 11-31032 Document: 00512000584 Page: 13 Date Filed: 09/26/2012