### 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 W I ENER, OWEN, and HAYNES, Circuit Judges

. PER CURIAM: * Lexington Insurance Company (“Lexington”) brought a declaratory judgment action against St. Ber nard Parish Government (“St. Bernard”) regarding the interpretation of an insuran ce policy

. The district court entered declaratory judgment in favor of St. Bernard, and Lexington timely appealed.
W e 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 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 6, 2013 Lyle W. Cayce Clerk Case: 13-30300 Document: 00512462906 Page: 1 Date Filed: 12/06/2013No. 13

- 30300
consistent herewith

. I. After Hurricane Katrina flooded virtually every structure in St. Bernard parish, S t. B ernard passed an ordinance condemning 5731 structures in disrepair, thereafter demolishing many of them. In response, s eventy 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 thre e consecutive Lexington Insurance Policies ( the “Policies”) in effect from February 2008 to February 2011

. The P olicies provide d coverage for

“ property damage ” and “ personal and advertising injury ” arising out of an “occurrence , ” and contain ed a $10,000,000 per occurrence and aggregate limit, subje ct to a $250,000 retained limit. L exington did n ot assume the defense of St. Bernard in the underly ing 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 d efense would be owed as no property had a value exceeding $250,000.
T he 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) “ T o the extent there has been an

‘ occurrence, ’ whether the demolition or destruction of each separate property, which took place at individual times and locations, consti tutes 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

.

2 Case: 13-30300 Document: 00512462906 Page: 2 Date Filed: 12/06/2013No. 13

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I I

. “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). I n 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 b e 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 insure d 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. 199 4)). Lexington first argues that the district court incorrectly determined that
the injuries alleged by the state court plaintiffs were “personal and advertising injur y ” occurrences as defined in the Policies. The Policies define a personal and advertisi ng 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 , “ b y or on behalf of its owner, landlord or lessor. ” Lexington argues t hat the phrase modifies the wrongful acts, such that the eviction or invasion of right of occupancy mus t occur “ by or on behalf of ” the

“ owner, landlord or lessor ” of the property. Conversely , St. Bernard contends
3 Case: 13-30300 Document: 00512462906 Page: 3 Date Filed: 12/06/2013No. 13

- 30300 that the phra se 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 th e phrase ambiguous and construed it in favor of coverage

. 1 We agree with the district court’s construction. T he Louisiana Supreme Court has not exp ressly 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 vic tim 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 Mississip pi courts would likely apply this meaning “i n 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 P olicies 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 tri ggered 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 interpre tation 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 interpret ation 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 cons truing 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 ambi guous and constr uing 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”). 4 Case: 13-30300 Document: 00512462906 Page: 4 Date Filed: 12/06/2013No. 13

- 30300 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 o wner, 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 125 4 (ambiguity is to be construed in favor of coverage ). Lexington next argues that the district court improperly held that “the
condemnation an d 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 Pol icies 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 t he a cts 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 the y constituted a “series of continuous, repeated, or related occurrences.” Lexington ar gu es that neither avenue applies because the acts alleged in the complaint are not related

. 3 We disagree.

3 Lexington also de votes 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 di ffer 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)

. 5 Case: 13-30300 Document: 00512462906 Page: 5 Date Filed: 12/06/2013No. 13

- 30300

“ R elated” 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]o rds and phrases used in a policy are to be construed using their plain, ordinary and generally prevailing meaning.” Elliot , 949 So. 2d at 125 4

. “ Related ” has a plain meaning of “connected by reason of an established or discoverable relation.” M ERRIAM

- W E BSTER ’ S C OLLEGIATE D ICTIONARY 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

– 5 8 (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 t he acts allege d in the underlying actions are related because they all resulted from St. Bernard’s ordinance c ondemning those properties that remained in disrepair following Hurricane Katrina. The fact that the properties in the underlying action were demolished at dif ferent 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 a nd the number of claimants.” Further more , the Policies contemplate that occurrences in a series, i.e., at different times, can be related. Because the multiple acts of 6 Case: 13-30300 Document: 00512462906 Page: 6 Date Filed: 12/06/2013No. 13

- 30300 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 insur ed 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
1 250). 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 whe ther the pleadings against the insured
d isclose a possibility o f 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 t he 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 Lex ington 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 t o the district court for resolution at trial , n or 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 C nty. , 354 F.3d 414, 42 4

– 25 (5th Cir. 200 4)

. 7 Case: 13-30300 Document: 00512462906 Page: 7 Date Filed: 12/06/2013No. 13

- 30300 issue of liability i s 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. 4 th Cir. 2005)

. In th is case, the arguments presented dealt only with the pleadings in the underlying action s; 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 iss u e 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 b e 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. S ee S tolt

- 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 li able 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. 8 Case: 13-30300 Document: 00512462906 Page: 8 Date Filed: 12/06/2013