IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30300

Summary Calendar

LEXINGTON INSURANCE COMPANY,

Plaintiff - Appellant

v.

ST. BERNARD PARISH GOVERNMENT,

Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Louisiana

U.S.D.C. No. 2:11-CV-1865

Before WIENER, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Lexington Insurance Company (“Lexington”) brought a declaratory 

judgment action against St. Bernard Parish Government (“St. Bernard”) 

regarding the interpretation of an insurance policy. The district court entered 

declaratory judgment in favor of St. Bernard, and Lexington timely appealed. 

We AFFIRM the district court’s interpretation of the policies in question as it 

applies to the duty to defend but REMAND for modifications to the judgment 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 6, 2013

Lyle W. Cayce

Clerk

 

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consistent herewith.

I.

After Hurricane Katrina flooded virtually every structure in St. Bernard 

parish, St. Bernard passed an ordinance condemning 5731 structures in 

disrepair, thereafter demolishing many of them. In response, seventy property 

owners sued St. Bernard in various Louisiana state court actions alleging that 

St. Bernard had wrongfully demolished or damaged their properties. 

St. Bernard sought defense and indemnity for the state court actions 

under three consecutive Lexington Insurance Policies (the “Policies”) in effect 

from February 2008 to February 2011. The Policies provided coverage for 

“property damage” and “personal and advertising injury” arising out of an 

“occurrence,” and contained a $10,000,000 per occurrence and aggregate limit, 

subject to a $250,000 retained limit. Lexington did not assume the defense of 

St. Bernard in the underlying actions. Instead, it brought the instant action, 

requesting a declaratory judgment that the Policies’ $250,000 retained limit

applied separately to each alleged demolition or property damage asserted in 

the underlying actions. Under that theory, no defense would be owed as no 

property had a value exceeding $250,000.

The case proceeded to a bench trial on stipulated facts with two disputed

issues of law presented for the district court’s resolution: (1) “Whether the 

intentional demolition of the subject properties constitutes an ‘occurrence’

under the Lexington Policies”; and (2) “To the extent there has been an 

‘occurrence,’ whether the demolition or destruction of each separate property, 

which took place at individual times and locations, constitutes a separate 

‘occurrence’ under the Lexington Policies such that the $250,000 per 

occurrence retained limit must be exhausted for each separate property.” The 

district court resolved both issues in favor of St. Bernard.

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II.

“A district court’s interpretation of an insurance contract or provision is 

a question of law that we review de novo.” French v. Allstate Indem. Co., 637 

F.3d 571, 577 (5th Cir.), cert. denied, 132 S. Ct. 420 (2011). Since this is a 

diversity action, we apply Louisiana substantive law. Martco Ltd. P’ship v. 

Wellons, Inc., 588 F.3d 864, 871 (5th Cir. 2009). In construing an insurance 

policy under Louisiana law, the following general rules of interpretation apply:

Words and phrases used in a policy are to be construed using their 

plain, ordinary and generally prevailing meaning, unless the 

words have acquired a technical meaning. . . . Where the language 

in the policy is clear, unambiguous, and expressive of the intent of 

the parties, the agreement must be enforced as written. However, 

if after applying the other rules of construction an ambiguity 

remains, the ambiguous provision is to be construed against the 

drafter and in favor of the insured.

The purpose of liability insurance is to afford the insured 

protection from damage claims. Policies therefore should be 

construed to effect, and not to deny, coverage.

Elliot v. Cont’l Cas. Co., 949 So. 2d 1247, 1254 (La. 2007) (emphasis omitted) 

(quoting Reynolds v. Select Props., 634 So. 2d 1180, 1183 (La. 1994)).

Lexington first argues that the district court incorrectly determined that 

the injuries alleged by the state court plaintiffs were “personal and advertising 

injury” occurrences as defined in the Policies. The Policies define a personal 

and advertising injury as arising out of, inter alia, “[t]he wrongful eviction 

from, wrongful entry into, or invasion of the right of private occupancy of a 

room, dwelling or premises that a person occupies by or on behalf of its owner, 

landlord or lessor.” The sole contention between the parties on this issue is the 

function of the phrase, “by or on behalf of its owner, landlord or lessor.” 

Lexington argues that the phrase modifies the wrongful acts, such that the

eviction or invasion of right of occupancy must occur “by or on behalf of” the 

“owner, landlord or lessor” of the property. Conversely, St. Bernard contends 

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that the phrase modifies “that a person occupies,” such that the injured party

must rightfully occupy the property “by or on behalf of its owner, landlord or 

lessor.” The district court found the phrase ambiguous and construed it in 

favor of coverage.1

We agree with the district court’s construction. The Louisiana Supreme 

Court has not expressly interpreted this language, and other courts have 

applied both parties’ constructions, with many interpreting the language in 

favor of the insured because it is ambiguous.2 Indeed, when construing this 

same language under Mississippi law, we previously held that “the phrase 

reasonably may be interpreted to mean that, in order for there to be coverage, 

the victim must be occupying the [property] . . . in the interest of’ the owner of 

the [property].” Am. Guar. & Liab. Ins. Co. v. 1906 Co., 273 F.3d 605, 620–21 

(5th Cir. 2001). We concluded that Mississippi courts would likely apply this 

meaning “in favor of coverage, either as their own interpretation or in 

accordance with Mississippi law governing the construction of ambiguous 

insurance contracts.” Id. at 621. Applying Louisiana’s general rules of 

insurance policy interpretation to the Policies here compels no different result: 

1 The underlying lawsuits against St. Bernard were brought by owners of the affected 

properties for actions taken by St. Bernard; it is undisputed that St. Bernard was not the 

owner, landlord, or lessor of the properties, or acting on behalf of such persons. Therefore, 

under Lexington’s proposed construction, the Policies would not be triggered because the acts 

of condemnation and demolition would not be “personal and advertising” injuries.

2 Compare Chimera Inv. Co. v. State Farm Fire & Cas. Co., 268 F. App’x 793, 797 (10th 

Cir. 2008) (unpublished) (applying Utah law to reach the interpretation argued by 

Lexington), and Whittier Props., Inc. v. Alaska Nat’l Ins. Co., 185 P.3d 84, 94 (Alaska 2008) 

(applying Alaska law to reach the interpretation argued by Lexington), with Royal Ins. Co. 

of Am. v. Kirksville Coll. of Osteopathic Med., 191 F.3d 959, 963 (8th Cir. 1999) (applying 

Missouri law to find the language ambiguous and construing in favor of the insured), New 

Castle Cnty. v. Nat’l Union Fire Ins. Co., 174 F.3d 338, 347–51 (3d Cir. 1999) (applying 

Delaware law to find the language ambiguous and construing in favor of the insured), and

United States v. Sec. Mgmt. Co., 96 F.3d 260, 265 (7th Cir. 1996) (noting, in dicta, that the 

language at issue “refine[s] the nature of the prerequisite ‘right’ of private occupancy”).

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the language is, at best, ambiguous, with at least one reasonable interpretation 

being that occupancy must occur by or on behalf of the property’s owner, 

landlord, or lessor. Accordingly, the definition of a personal and advertising 

injury occurrence is properly construed in favor of St. Bernard. See Elliot, 949 

So. 2d at 1254 (ambiguity is to be construed in favor of coverage).

Lexington next argues that the district court improperly held that “the 

condemnation and demolition activities . . . constitute a series of related 

occurrences for which a single retained limit applies” under the Policies. With 

regard to personal and advertising injuries, the Policies provide that “[a]ll 

damages that arise from the same, related or repeated injurious material or 

act will be deemed to arise out of one occurrence, regardless of the frequency 

or repetition thereof, the number and kind of media used and the number of 

claimants.” The Policies also specify that “[t]he retained limit . . . [a]pplies 

separately to each and every occurrence . . . or series of continuous, repeated, 

or related occurrences.” Accordingly, if the acts of condemnation and 

demolition alleged in the underlying complaints against St. Bernard arose 

from related or repeated acts, they are deemed to arise out of a single

occurrence to which the Policies’ retained limit would apply only once. 

Alternatively, to the extent that the alleged acts of condemnation and 

demolition were instead multiple occurrences, the Policies’ retained limit 

would still apply only once if they constituted a “series of continuous, repeated, 

or related occurrences.” Lexington argues that neither avenue applies because 

the acts alleged in the complaint are not related.3 We disagree.

3 Lexington also devotes much of its briefing to asserting that this case is governed by 

Lombard v. Sewerage & Water Bd., 284 So. 2d 905 (La. 1973), and cases applying it. As 

thoroughly explained by the district court, Lombard is inapposite because the Lexington 

Policies differ materially from the policy construed in Lombard. See Lexington Ins. Co. v. St. 

Bernard Parish Gov’t, No. 2:11-CV-1865, 2013 WL 55908, at *7–9 (E.D. La. Jan. 23, 2013).

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“Related” is not defined in the Policies and has not been defined in this 

context by Louisiana courts. However, we are guided by the rule that “[w]ords 

and phrases used in a policy are to be construed using their plain, ordinary and 

generally prevailing meaning.” Elliot, 949 So. 2d at 1254. “Related” has a 

plain meaning of “connected by reason of an established or discoverable 

relation.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1050 (11th ed. 2007). 

In the insurance policy context, courts have recognized the broad meaning of 

“related” and have held that it covers logical or causal connections between 

acts or occurrences. See, e.g., Gregory v. Home Ins. Co., 876 F.2d 602, 604–06 

(7th Cir. 1989) (“[T]he common understanding of the word ‘related’ covers a 

very broad range of connections, both causal and logical.”); Ariz. Prop. & Cas. 

Ins. Guar. Fund v. Helme, 735 P.2d 451, 456–58 (Ariz. 1987) (noting that 

related can mean either a logical or a causal connection, but ultimately 

concluding, “series of related incidents” meant that the incidents were 

“causally related”); Bay Cities Paving & Grading v. Lawyers’ Mut. Ins. Co., 

855 P.2d 1263, 1271–75 (Cal. 1993) (interpreting “series of related acts,” and 

holding that “the term ‘related’ as it is commonly understood and used 

encompasses both logical and causal connections”). 

We likewise recognize the broad meaning of the term and hold that the 

acts alleged in the underlying actions are related because they all resulted 

from St. Bernard’s ordinance condemning those properties that remained in 

disrepair following Hurricane Katrina. The fact that the properties in the 

underlying action were demolished at different times, in varying degrees, and 

at different locations, does not mean that these acts are not related. The 

Policies explicitly recognize that acts can be related “regardless of the 

frequency or repetition thereof, the number and kind of media used and the 

number of claimants.” Furthermore, the Policies contemplate that occurrences 

in a series, i.e., at different times, can be related. Because the multiple acts of 

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condemnation and demolition alleged in the underlying complaints are related 

such that they arose either from a single occurrence or a series of related 

occurrences, the Policies’ $250,000 retained limit applies once to the alleged 

acts.4

Lastly, Lexington urges that the district court’s order and judgment are

premature and overbroad because they extend to the duty to indemnify in 

declaring that “St. Bernard Parish Government is entitled to coverage by the 

Lexington insurance policies for damages caused by St. Bernard.” We agree.

“An insurer’s duty to defend suits on behalf on an insured presents a separate 

and distinct inquiry from that of the insurer’s duty to indemnify a covered 

claim after judgment against the insured in the underlying liability case.” 

Martco, 588 F.3d at 872 (applying Louisiana law) (citing Elliot, 949 So. 2d at 

1250). The former is governed by the “Eight Corners Rule,” in which the 

allegations of the underlying complaint are applied to the policy, without resort 

to extrinsic evidence, to determine whether the pleadings against the insured 

disclose a possibility of liability under the policy. Martco, 588 F.3d at 872–73. 

Conversely, whether the insurer has a duty to indemnify a claim turns on facts 

beyond those alleged in the complaint against the insured. Id. To make this 

latter determination, a court applies the policy “to the actual evidence adduced 

at the underlying liability trial together with any evidence introduced in the 

coverage case.” Id. at 877. Accordingly, Louisiana law generally provides that 

the issue of indemnity is premature and non-justiciable until the underlying 

4 Lexington also argues that “[r]egardless of how many retained limits apply in any 

given policy period, St. Bernard must pay at least one for each policy from which it seeks 

coverage.” This issue was neither raised in Lexington’s complaint for declaratory judgment,

submitted to the district court for resolution at trial, nor ruled on by the district court. 

Because the issue was not raised in the trial court, we will not consider it for the first time 

on appeal. See Priester v. Lowndes Cnty., 354 F.3d 414, 424–25 (5th Cir. 2004).

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issue of liability is resolved and the defendant is cast in judgment. See Meloy 

v. Conoco, Inc., 504 So. 2d 833, 839 (La. 1987); Mossy Motors, Inc. v. Cameras 

Am., 898 So. 2d 602, 607 (La. Ct. App. 4th Cir. 2005).

In this case, the arguments presented dealt only with the pleadings in 

the underlying actions; evidence regarding St. Bernard’s liability was not 

before the court nor was it argued that the indemnity issue was somehow 

justiciable despite the fact that the issue of St. Bernard’s liability had yet to be 

resolved. St. Bernard did not file a counter-claim seeking its own declaration. 

In short, the indemnity issue is non-justiciable under the pleadings before the 

district court.5 The judgment therefore should be modified to reflect only a 

declaration that Lexington owes a duty to defend St. Bernard under the 

current pleadings (as of the time of the original trial) in the “Underlying 

Lawsuits” as defined in the complaint.

AFFIRMED as MODIFIED and REMANDED for entry of judgment 

consistent herewith.

5 Undoubtedly, Lexington’s somewhat confusing complaint and piecemeal approach 

to the issues fostered confusion as to what it was seeking. However, whether a case is 

justiciable at all implicates Article III jurisdiction questions and, thus, cannot be waived. 

See Stolt-Nielsen S.A. v. Animal Feeds Int’l Corp., 130 S. Ct. 1758, 1767 n.2 (2010); Rosedale 

Missionary Baptist Church v. New Orleans City, 641 F.3d 86, 88 (5th Cir. 2011). This point 

is not merely academic – if St. Bernard is never held liable to the plaintiffs in the “Underlying 

Lawsuits,” it will never suffer any harm requiring redress with respect to Lexington’s 

indemnity obligation. Thus, the indemnity claim is not yet ripe.

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