IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60643

BARDEN MISSISSIPPI GAMING LIMITED LIABILITY CORPORATION,

doing business as Fitzgerald’s Casino,

Plaintiff – Appellant

v.

GREAT NORTHERN INSURANCE COMPANY; TOP LINE SEATING,

INCORPORATED,

Defendants – Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

Before JOLLY, ELROD, and HAYNES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this insurance dispute, Appellant Barden Mississippi Gaming LLC

(“Barden”) appeals the district court’s grant of summary judgment in favor of

Appellees Great Northern Insurance Company (“Great Northern”) and Top Line

Seating, Inc. (“Top Line”). In an earlier appeal brought by Barden, we concluded

that under the terms of an insurance policy between the parties, Great Northern

had a duty to defend Barden in a tort suit brought by an individual who had

been injured on the premises of Barden’s casino through the use of a stool sold

by Top Line. Because the question was not ripe, we did not address whether

Great Northern and Top Line had an attendant duty to indemnify Barden for the

United States Court of Appeals

Fifth Circuit

F I L E D

April 6, 2011

Lyle W. Cayce

Clerk

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No. 10-60643

underlying judgment. Upon the conclusion of that case, Barden sought a

declaratory judgment in the district court, claiming that it is entitled to

(1) indemnification for the amount of the judgment entered against it in the

underlying tort suit, and (2) recovery of costs and fees incurred in pursuing this

declaratory judgment. We AFFIRM the district court’s grant of summary

judgment to Great Northern and Top Line on both issues.

I.

The material facts of this case are undisputed. In June 2004, Mary Baier

(“Baier”) was injured while on the premises of a casino owned by Barden in

Tunica, Mississippi. She filed a civil suit against Barden and Top Line, the

manufacturer of the stool that was involved in her injury. In accordance with

an earlier settlement agreement between Barden and Top Line, Barden had

been named as an additional insured on Top Line’s insurance policy with Great

Northern. The policy provided liability coverage with respect to certain stools

that Barden had purchased from Top Line for use in its Tunica casino.

When Baier filed her tort claim against Barden, Barden tendered the

defense of that lawsuit (the “Baier Case”) to Great Northern, which refused to

defend Barden. Barden then filed a declaratory judgment action in the Northern

District of Mississippi for breach of contract and to enforce its rights under the

insurance policy. That case eventually led to an appeal in which we ruled that

Barden was entitled under the policy to a defense in the Baier Case. See Barden

Miss. Gaming LLC v. Great Northern Ins. Co. (“Barden I”), 576 F.3d 235 (5th

Cir. 2009). We further held, however, that “it is clear under the insurance policy

that the duty to indemnify will attach only if Top Line is ultimately found 100%

negligent.” Id. at 239. We therefore concluded that the question of

indemnification was premature until a jury had determined whether Top Line’s

negligence was solely responsible for Baier’s injury. Id. at 239–40. Following

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remand, a jury ultimately concluded that Top Line was 50% negligent, Barden

was 50% negligent, and Baier was 0% negligent.

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After the jury trial, Barden amended its complaint in the declaratory

judgment action to request (1) indemnification from Great Northern and Top

Line for the amount of the underlying judgment in the Baier Case, and

(2) recovery of attorneys’ fees and costs associated with its declaratory judgment

action. The parties filed cross-motions for summary judgment. The magistrate

judge, sitting as district court by consent of the parties, held that Barden is not

entitled to recover either of these sums because there is no statutory or

contractual basis for indemnification absent a finding that Top Line was 100%

liable, and because Great Northern had at least an arguable basis for refusing

to defend Barden. This appeal timely followed.

II.

We are asked whether Barden is entitled to indemnification from Great

Northern and Top Line for the underlying judgment in the Baier Case, and

whether Barden is entitled to recovery of attorneys’ fees and costs incurred in

pursuing this declaratory judgment action. We review the district court’s grant

of summary judgment de novo, applying the same legal standards as the district

court. Catlin Syndicate Ltd. v. Imperial Palace of Miss., Inc., 600 F.3d 511, 513

(5th Cir. 2010). Because this is a diversity case, the substantive law of

Mississippi applies. Id.

A.

Barden argues that it is entitled to indemnity for the underlying judgment

because Great Northern improperly refused to defend it. This issue is informed

The defense of that case ultimately cost Barden $60,000. The parties and the district 1

court have agreed that this $60,000 is due and owing from Great Northern to Barden. At issue

in this case are the underlying judgment of $42,500 levied against Barden for the Baier Case,

and the fees incurred to date in the course of pursuing this declaratory judgment action, which

were $72,988.08 as of the date of this appeal.

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by our precedent in Barden I, where we explained that the insurance policy

“unambiguously limits the duty to defend and indemnify to claims involving the

‘sole negligence’ of Top Line.” 576 F.3d at 238. “If the words of an insurance

policy are ‘plain and unambiguous,’ they are applied as written.” Id. (quoting

Progressive Gulf Ins. Co. v. Dickerson & Bowen, Inc., 965 So.2d 1050, 1054 (Miss.

2007)). Although Barden I held that Great Northern had a duty to defend

Barden because there was an “arguable basis for liability under the policy,” we

noted that the duty to indemnify can be more narrow than the duty to defend.

Id. at 239. Specifically, we stated that “it is clear under the insurance policy

that the duty to indemnify will attach only if Top Line is ultimately found 100%

negligent.” Id. As the district court explained, the jury in the underlying tort

suit found that Top Line was 50% negligent and Barden was 50% negligent.

Consequently, the duty to indemnify does not attach.

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B.

Barden further argues that because Great Northern breached its

contractual duty to defend, Barden incurred fees and costs in the pursuit of this

declaratory judgment action that it would not otherwise have expended. In this

diversity case we apply the law of Mississippi, which follows the “American

Rule” that attorneys’ fees are not awarded unless specifically provided for by

contract, statute, or other provision of law. See Ingalls Shipbuilding v. Federal

Ins. Co., 410 F.3d 214, 230 (5th Cir. 2005). It is undisputed that there are no

statutory or contractual provisions authorizing an award of attorneys’ fees in

this case.

We note also that Barden has produced no evidence that Great Northern acted in bad 2

faith in interpreting its duty to defend under the insurance policy. “Generally, if the insurer

has acted in good faith, it is not liable for any amount beyond the stated policy limit.” Liberty

Mutual Fire Ins. Co. v. Canal Ins., 177 F.3d 326, 336 (5th Cir. 1999).

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Barden contends, however, that this case falls within an exception to the

general rule. It points to Universal Life Ins. Co. v. Veasley, 610 So.2d 290 (Miss.

1992), where the Mississippi Supreme Court suggested that attorneys’ fees

“might be available as reasonably foreseeable damages where an insurer had no

legitimate or arguable reason for denying benefits but did not act willfully,

intentionally or maliciously.” Stratford Ins. Co. v. Cooley, 985 F.Supp. 665, 673

(S.D. Miss. 1996) (citing Veasley, 610 So.2d at 295). Assuming arguendo that

this principle obtains in the Mississippi courts, Barden has failed to demonstrate

that Great Northern had “no legitimate or arguable reason” for its refusal to

defend in the Baier Case. For example, Barden has failed to rebut Great

Northern’s assertion that it did not believe the slot stool at issue in the Baier

Case was a stool that was covered under the policy in question. Barden’s

argument also overlooks that Great Northern’s duty to defend attached only

because we found that there was an arguable basis for coverage, reversing the

district court’s contrary conclusion; Great Northern’s conflicting interpretation

was not implausible or illegitimate. Barden has thus failed to establish any

possible basis for its claim to attorneys’ fees in this case.

III.

In sum, we conclude that under the insurance policy between the parties,

Great Northern and Top Line are not obligated to indemnify Barden for the

judgment in the Baier Case because the jury in that case determined that Top

Line was not solely negligent. We further conclude that there is no basis for

Barden’s claim to attorneys’ fees and costs incurred in pursuing the instant

declaratory judgment. For the foregoing reasons, the judgment of the district

court is

AFFIRMED.

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