`

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-30600

DWAYNE BLAIR; GLORIA BLAIR,

Plaintiffs,

versus

SEALIFT, INC.,

Defendant——Third Party Plaintiff——Appellant,

versus

LOUISIANA INSURANCE GUARANTY ASSOCIATION,

Defendant——Third Party Defendant——Appellee.

Appeal from the United States District Court

For the Eastern District of Louisiana

August 5, 1996

Before HIGGINBOTHAM, WIENER and PARKER, Circuit Judges.

WIENER, Circuit Judge:

More than a decade ago, Defendant-Third Par t y PlaintiffAppellant Sealift, Inc. (Sealift) impleaded Defendant-Third Party

Defendant-Appellee Louisiana Insurance Guaranty Association (LIGA)

into the instan t action. Since that time, the case has been1 See L A

. R EV

. S TAT

. A NN

. §§ 22:1375 et seq. (West 1995).

2 appealed to this court; consolidated with a number of similar

cases; forwarded by us together with a certified case to the

Louisiana Supreme Court; decided by us on the basis of the answer

to the question certified; remanded to the district court; and,

now, appealed once again to this court. At the heart of this

ongoing controversy is the question whether L IGA is obligated to

reinsure standard workers' compensation policies when claims are

brought under those policies for maritime-related inj uries. The

particular issue raised by the instant appeal is whet her the

district court on remand properly held that LIGA is not obligated

to cover such claims, and that it therefore need not reimburse

Sealift for its costs, including attorneys' fees. Notwithstanding

the fact that this last holding by the district court is

inconsistent with this court's holding in the initial appeal of the

instant case, we affirm because of supervening changes in the law.

I.

FACTS AND PROCEEDINGS

A. LIGA

In response to an increasing number of insolvencies among

insurance companies statewide, the 1970 Louisiana Legislature

enacted the Insurance Guaranty As sociation Law (IGAL). 1 The IGAL

“created LIGA as a non-profit, unincorporated entity to pay valid

claims, up to statutory limits, in the event an insurer who was a2 Deshotels v. SHRM Catering Serv., Inc. , 845 F.2d 582, 583

(5th Cir. 1988).

3 See Sifers v. Gen. Marine Catering Co.

, 89 2 F.2d 386, 388

(5th Cir.), modified on other grounds

, 897 F.2d 1288 (5th Cir.

1990).

4 See L A

. R EV

. S TAT

. A NN

. § 22:1377 (West 1995).

5 See id.

3 member of [LIGA] became insolvent.” 2 Specifically, when insurance

companies tha t are members of LIGA become insolvent, LIGA is

required to “assume

. . . the benefits a nd obligations of the

direct insurance polici es underwritten by the defunct carrier.” 3

The IGAL expressly provides, however, that several particular

kinds of direct insurance will not be reinsured by LIGA. 4

Significant to the instant appeal is the fact that “ocean marine

insurance” is one of those kinds of insurance excluded from LIGA's

reinsurance obligations. 5 Since 1985, the precise meaning of

“ocean marine insurance” has been the subject of much litigation.

That litigation, and the 1989 amendments to the IGAL adopted in

response to it, are discussed below.

B. P ROCEDURAL B ACKGROUND

1. In District Court: Phase I

In November 1984, Plaintiffs Dwayne Blair (Dwayne) and his

wife, Gloria Blair, (collectively, the Blairs) filed suit under the

Jones Act and general maritime law against Sealift, Dwayne's

employer. The Blairs alleged that Dwayne had been injured in the

course of his employment as a crew member on one of Sealift's

vessels. At the time of Dwayne's alleged injury, Sealift was4

ins ured under a “Standard Workmen's Compensation and Employers'

Liability” insurance policy ( the WC/EL policy) issued by Transit

Casualty Company (Transit), a member of LIGA. Under the WC/EL

policy, Transit owed Sealift the duties of defense and indemnity.

In December 1985, Transit was declared inso lvent by the

Louisiana's Commissioner of Insurance, and Transit's policies were

canceled. As a result, in January 1986, Sealift demanded that LIGA

assume Transit's obligations under the WC/EL policy. LIGA refused,

asserti ng that the policy constituted “ocean marine insurance”

w ithin the meaning of the statutory exception to its reinsura nce

obligations.

In response, Sealift filed a third party complaint against

LIGA in the Blair lawsuit, and the Blairs named LIGA as an

additional defendant. In April 1986, Sealift filed a motion for

summary judgment against LIGA, asserting that LIGA was obligated to

pay the full amount of th e Blairs' claim. Sealift also sought

payment from LIGA of any attorneys fees and other costs incurred by

Sealift in its defense against the Blairs' suit, as well as in its

prosecution of the coverage claim again st LIGA. In opposing the

motion, LIGA insisted that (1) the WC/EL policy constituted “ocean

marine in surance”; and (2) LIGA was therefore liable for neither

the Blairs' claim nor Sealift's attorneys' fees and costs.

In October 1986, Sealift and the Blairs reached a settlement

in the amount of $150,000. The Blairs agreed not to execute on the

settlement against Sealift, however, until LIGA's obligations were

judicially determined. Based on that settlement, the district6 See Deshotels v. SHRM Catering Serv., Inc.

, 845 F.2d 582, 585

(5th Cir. 1988) (“The style of the case in which certification is

made is Joseph Mike Deshotels, Plaintiff, versus SHRM Catering

Services, Inc.

. . . on appea l from the United States District

Court for the Wes tern District of Louisiana.”) (certifying the

following question: “Does this claim for maritime-related

injuries, brought on th e Standard Workmen's Compensation and

Employers' Liability policy with a marine e ndorsement, involve

'oc ean marine insurance' so as to be excluded . . . from the

coverage of the Insurance Guaranty Association Fund?”).

7 See id. As a result of our decision to forward the B lair

record to the Louisiana Supreme Court, there is some ambiguity as

to whether we actually certified B lair as well as Deshotels

. We

need not resolve this debate, though, as its resolution does not

5 court entered a final, summary judgment dismissing the Blairs'

claims against Sealift. In that judgment, the court also ordered

LIGA to pay the amount owed to the Blairs under the settlement and

to reimburse Sealift for its attorneys’ fees and other costs.

2. First Appeal

a. Certification

LIGA timely appealed to this court from the district court's

grant of summary judgment. We consolidated that appeal with a

number of similar but unrelated cases that also raised the issue of

LIGA's obligation to pay a claim brought for maritime-related

injuries under a general workers' compensation policy. We then

certified one of the cases, styled Deshotels v. SHRM Services , to

the Louisiana Supreme Court. 6 We also suggested that, in answering

the question certified in D eshotels

, the Louisiana Supreme Court

“m[ight]

. . . find helpful portions of the record in two other

cases pending before this court”——namely, the instant case, Blair

v. Sealift, Inc.

, as well as another of the consolidated cases,

Sifers v. General Marine Catering

. 7affect our analysis of the merits of t he instant appeal. S ee

discussion infra part II.B.

8 Deshotels v. SHRM Catering Serv., Inc.

, 538 So.2d 988, 993

(La. 1989) [hereinafter Deshotels ].

9 See L A

. R EV

. S TAT

. A NN

. § 22:1377 (West 1989).

10 See L A

. R EV

. S TAT

. A NN

. § 22:1377 (West 1990).

6 In Jan uary 1989, the Louisiana Supreme Court answered the

question certified in Deshotels

. That court held that the disputed

“claimfor maritime-related injuries, brought on a Standard

Workmen's Compensation and Employers' Liability policy . . . does

not involve 'ocean marine insurance' and is not excluded from the

coverage of the Insurance Guaranty Association Fund.” 8

b. The Legislature's Response

Within months following the issuance of the Louisiana Supreme

Court's answer to the question certified in D eshotels

, the

Louisiana Legislature responded by amending the IGAL. Prior to the

enactment of the amendments, the IGAL provided that LIGA would

reinsure "all kinds of direct insurance, except life, health,

mortgage guaranty, and ocean marine insur ance." 9 The amendments

added the following language to the statute: "The kind and

coverage of insurance afforded by any policy shall be determined by

the coverage specifie d and established in the provisions of that

policy regardless of any name, label, or marketing designation for

that policy." 10 The amendments also inserted the following

definition of "ocean marine insurance":

“Ocean marine insurance” includes marine insurance as

defined in R.S. 22:6(13), except for inland marine, as

well as any other form of ins urance, regardless of the11 See L A

. R EV

. S TAT

. A NN

. § 22:1379 (West 1990).

1 2 S ifers v. Gen. Marine Catering Co. , 892 F.2d 386, 389 (5th

Cir. 1990) [hereinafter Sifers ].

13 Id. at 391.

14 Id. at 392.

7 name, label or marketing designation of t he insurance

policy, which insures a gainst maritime perils or risks

and other related p erils or risks . . . . Such perils

and risks include

. . . liability of the insured for

personal injury, illness or death . . . . 11

c. Post-Certification

Soon after the amendments were enacted, and “[w]ith the

benefit of th[e Louisiana Supreme Court's] [pre-amendment]

resolution of our certified question,” 1 2 we again considered the

consolidated appeals. LIGA argued that we should reject the preamendment result reached by the Louisiana Supreme Court on

certification and instead retroactively apply the supervening

amendments to the IGAL, thereby releas ing LIGA from any

responsibility to assu me the WC/EL policies involved in the

consolidated cases.

We rejected LIGA's recommended approach, however, as we “s[aw]

no reason” to dep art from the general rule that a state court's

answer to a certified question is “final and binding upon the

parties between whom the issue arose . . . [and thus] generally .

. . the 'law of the case' in any further federal court proceeding

involving those parties.” 13 In particular, we “question[ed] whether

the Louisiana Supreme Court would concl ude that the recent

legislation overruled its decision in Deshotels .” 1415 Id. at 399.

1 6 Id. at 399-400 (noting that “LIGA's statutory obligation is

coextensive with that of the insolvent insurer”).

8 Having determined that the Deshotels decision governed all of

the consolidated appeals, we held that LIGA was required to

reinsure the claims arising from the standard workers' compensation

policies involved in the cases. We also addressed the issue of

LIGA's obligation to pay the attorneys' fees and other costs of

litigation incurred by the insured employers. First, we held that

an insured could not recover attorneys' fees and costs incurred in

the successful prosecution of a claim against LIGA unless on remand

the district court found that LIGA had ac ted “arbitrarily,

capriciously, or without probable cause.” 1 5 In addition, we

c oncluded that LIGA could not be held liable for fees and costs

incurred by an insured such as S ealift in the defense of claims

brought by plaintiffs such as the Blairs if by statute those claims

are excluded from LIGA's reinsurance obligations. 1 6 We then

remanded each individual case to the district courts in which it

had arisen for further proceedings consistent with our opinion.

3. Back In District Court: Phase II

While the instant case was pending on remand, LIGA agreed to

cover the amount owed by Sealift to the Blairs under the

settlement. LIGA refused, however, to cover Sealift's costs and

attorneys' fees. Filing a motion for a summary judgment of

dismissal of Sealift's c laim for costs and attorneys fees, LIGA

argued once a gain that the IGAL amendments should be applied17 Id.

18 Id. at 399.

1 9 645 So.2d 1240 (La. Ct. App. 1994), writ denied

, 650 So. 2d

252 (La 1995).

9 retroactively to exclude the WC/EL policy from LIGA’s reinsurance

obligations. As noted by LIGA at the time, if the amendments were

applied retroactively then any claim by Sealift for costs and

attorneys' fees must fail for the following reasons: First, this

court had held that LIGA cannot be liable for legal services

rendered in the defense of nonrecoverable claims 17 ; and second, as

a matter of law, LIGA cannot be considered to have acted

“arbitrarily, capriciously, or without probable cause” in

contesting unsuccessful prosecutions of coverage claims. 18

After considering LIGA's motion, the district court agreed

that the IGAL amendments should be ap plied retroactively.

Accordingly, it granted summary judgment dismissing Sealift's

remaining claim for attorneys' fees and other costs of litigation.

The district court acknowledged that, in the earlier appeal of the

instant case, this court had expressly rejected the argument that

the IGAL amendments should be interpreted as overriding the

Louisiana Supreme Court's decision in Deshotels

. Nevertheless, the

district court followed a contrary but supervening Lo uisiana

appellate cour t decision, T idelands Ltd I v. Louisiana Ins.

Guaranty Ass'n

, 19 which had been issued after Deshotels

, after the

amendments, and after the remand of the instant case.

The Tidelands decision squarely holds that (1) under the IGAL20 See id.

21 See Cavallini v. State Farm Mut. Auto Ins. Co.

, 44 F.3d 256,

266 (5th Cir. 1995).

22 See Neff v. Am. Dairy Queen Corp. , 58 F.3d 1063, 1065 (5th

Cir. 1995), cert. denied , 116 S. Ct. 704 (1996).

10 amendments, WC/EL policies constitute “ocean marine insurance,” and

(2) the IGAL amendments should be app lied retroactively. 2 0

Explaining its decision to follow T idelands

, the district court

stated:

This Court finds that T idelands is the only postamendments decision which directly addresses the matter

before t h is Court, that is, whether WC/EL insurance

should be considered "ocean marine in surance" when its

coverage involves maritime claims. As such, it expresses

th e current interpretation of state law on the matter

before this Court and should be followed absent a strong

showing that the state suprem e court would rule

differently.

Understandably disple ased with the district court's decision to

depart from this court's earlier decision to abide by D eshotels

,

Sealift timely appealed. The issue is thus before us for the third

time.

II.

ANALYSIS

A. S TANDARD OF R EVIEW

When reviewing a grant of summary judgment, we view the facts

and inferences in the light most favorable to the non -moving

party 21 ; and we apply the same standard s as those governing the

trial court in its determination. 22 Summary judgment must be

granted if a court determines "that there is no genuine issue as to

any material fact and that the mo ving party is entitled to a23 F ED

. R. C IV

. P. 56(c).

24 Sifers , 892 F.2d at 399.

25 Id. at 400.

11 judgment as a matter of law." 23

B. T HE M ERITS

1. Defining The Issue

The central issue presented by this appeal is whether the

district court erred in following Tidelands rather than our earlier

Sifers decis ion which applied the Louisiana Supreme Court’s

certification response as set out in Deshotels

. If the district

court properly relied on Tidelands , then any claim by Sealift for

attorneys' fees and related costs must fail. First, Sealift’s

demand for fees incurred in the prosecution of its coverage claim

against LIGA would lack foundation, as in the end that claim would

have proved unsuccessful. Accordingly, LIGA's actions in resisting

the claim could not, as a matter of law, be considered arbitrary or

capricious. 24 Second, Sealift's demand for fees incurred in

defending against the Blairs' claim would be unfounded: If

Tidelands were followed, then the Blairs' suit would c omprise a

claim under “ocean marine insurance,” which would be excl uded by

the IGAL as amended. Consequently, under circumstances in which

T idelands prevails, LIGA would be liable for neither the Blairs'

claim nor for any attorneys’ fees and costs incurred by Sealift in

defending against the claim. 25

At oral argument to this panel, Sealift and LIGA debated the

peripheral question whether Blair itself was certified to the2 6 N. Mississippi Communications, Inc. v. Jones

, 951 F.2d 652,

656 (5th Cir.) (footnotes omitted), cert. denied

, 506 U.S. 863

(1992).

We take this opportunit y to note an additional “wrinkle” in

this procedurally complex case. Assuming arguendo that Blair was

not certified, the application of Deshotels opinion to the B lair

case could either be considered the law of the case or the

application of a “prior” panel decision, i.e., the binding

precedent of this circuit. S ee Sifers

, 892 F.2d at 391-92

(treating the certification response as binding on parties to the

appeal who were not parties to the certified case, for the reason

that the answer is “now the law of this circuit”). This

distinction is of no moment here, however, as subsequent, clearly

contradictory state law trumps both the law of t he case and the

otherwise binding nature of prior decisions of a panel of this

court. S ee, e.g.

, Lee v. Frozen Food Express, Inc.

, 592 F.2d 271,

272 (5th Cir. 1979).

2 7 Nat'l Educ. Ass'n, Inc. v. Lee County Bd. of Pub.

Instruction , 467 F.2d 447, 449 (5th Cir. 1972).

12 Louisiana Supreme Court together with Deshotels

. That, however, is

a debate we need not resolve, as we conc lude that regardless of

whether, technically, Blair was or was not certified, the district

court's decision to depart from our earlier ruling in the instant

case should be affirmed.

2. The Law of the Case

Generally, unde r the “law of the case” doctrine, our prior

rulings on given issues in a particular case must be followed

“without reexamination, both on remand to the district court and on

subsequent appeals to thi s court.” 2 6 If such a ruling has

effectively implemented a state supreme court's response to a

question certified earlier from the case before us, then deference

to the ruling is particularly appropriate: A certification answer

“provide[s] this [c]ourt with indisputable authority for deciding

difficult and previously unresolved issues of [s]tate law.” 2728 N. Mississippi , 951 F.2d at 656.

2 9 Nat'l Educ. Ass'n

, 467 F.2d at 449; s ee also L aubie v.

Sonesta Int'l Hotel Corp. , 752 F.2d 165 (5th Cir. 1985).

30 752 F.2d 165.

13 Nevert heless, our prior rulings may be reexamined both on

remand and on subsequent appeals if “controlling au thority has

since made a contrary decision of law applicable to such issues.” 28

This reexamination principle applies even when our earlier

resolution of the issue has followed a certification response by a

state's highest court, for the certification process does not

ultimately relieve us of “our constitutionally imposed duty to

decide cases properly before us for review.” 29

We have in the past reexamined our own rulings that had been

based on a response by a state supreme court to a certified

question. The most instructive example for today's purposes is

Laubie v. Sonesta Int'l Hotel Co rp. 3 0 ——a case with a procedural

history remarkably similar to that of the instant case——in which we

certified an issue regarding innkeeper liability to the Louisiana

Supreme Court. With the benefit of that court's response to the

certified question, we ruled on the liability issue and remanded to

the district court. While the case was on remand, the Louisiana

Legislature amended the Civil Code to c ounteract the Louisiana

Supreme Court's interpretation of innkeeper liability.

In its decision on remand, the district court acknowledged our

earlier decision in which we had implemented the Louisiana Supreme

Court's analysis of the issue, but nevertheless applied the31 Id. at 167.

32 See Tidelands , 645 So.2d 1240.

3 3 580 So . 2d 931 (La. Ct. App.), w rit denied

, 587 So. 2d 695

(La. 1991).

14 amendments to the Civil Code as superseding the Louisiana Supreme

Court’s answer to our certified question —— and did so

retroactively. With that case once again before us on appeal, we

affirmed, noting that “[i]n Louisiana , a civil law jurisdiction,

the legislative will, as expressed in the articles of the Code, is

supreme.” 31 Thus, even when one of our determinations follows a

certification response, it may be reexamined on remand or on

subsequent appeal when supervening authority has issued.

It is worth noting that the instant case differs from Laubie

in that, here, the legislative amendments were issued prior to our

earlier ruling in Sifers on the disputed issue. Nevertheless,

subsequent to our Sifers ruling, the Tidelands court issued an

opinion that directly contradicts our Sifers decision. 32 Moreover,

in H & B Construction Co. of Louisiana v. L IGA

, 33 another state

appellate court independently determined that the IGAL amendments

should be applied retroactively. The H & B Construction decision

is not directly on point, as it deals with LIGA's obligation to

reinsure protection and indemnity (P & I) policies rather than

WC/EL policies. Nevertheless, H & B Construction strengthens the

district court's hindsight conclusion that we “got it wrong,” and

the Tidelands court “got it right.”

State appellate court decisions may constitute subsequent,3 4 See Lavespere v. Niagara Mach. & Tool Works, Inc.

, 920 F.2d

259, 260 (5th Cir. 1990) (footnotes omitted), cert. denied

, 114 S.

Ct. 171 (1993).

3 5 See Colonial Pipeline Co. v. Agerton

, 289 So. 2d 93, 96 (La.

1974) (noting that a refusal to grant a writ is “persuasive,” but

is without the precedential weight of a case in which a writ has

been granted), aff'd , 421 U.S. 100 (1975).

15 controlling authority that overrides an earlier determina tion by

this court. Specifically,

state intermediate appellate court decisions constitute

indicia of state law even when decided after a federal

court has rendered a contrary opinion if th e federal

court judgment has not yet become final. Such decisions,

if applicable, should, therefore, be followed abs ent a

strong showing that the state supreme court w ould rule

differently. 34

In the instant ca se, there has been no “strong showing” that the

Louisiana Supreme Court would depart from the conclus ions of the

Tidelands and H & B Construction courts. Indeed, the only showing,

strong or otherwise, is to the contrary: The Louisiana Supreme

Court has denied writs in both Ti delands and H & B Construction

.

Although the refusal to grant a writ has no precedential effect,

such a refusal does provide “persua sive” evidence that the

Louisiana Supreme Court approves of the legal conclusions reached

by the appellate court. 35 Accordingly, in this instance the

district court properly determined that Tidelands constitutes

controlling authority which compels a departure from our earlier

certification-based decision on the issue of LIGA's obligation to3 6 Sealift urges that the Louisiana Supreme Court's decision in

Backhus v. Transit Casualty Co.

clearly indicates that the Louisiana Supreme Court would reject

the holdings of the Tidelands court. In B ackhus

, an opinion issued

shortly after the Legislature amended the IGAL, the Louisiana

Supreme Court recited its Deshotels opinion with approval.

Nevertheless, the Backhus opinion never discusses the impact of the

IGAL amendments on the state of the law; in f act, the amendments

are not even mentioned in the opinion. Moreover, the central issue

of the Backhus opinion is whether P & I policies, rather than WC/EL

policies, constitute “ocean mar ine insurance.” Thus, standing

alone, Backhus provides no persuasive evidence on the issue of how

the Louisiana Supreme Court would rule on the matter at hand. Any

tentative indication to the contrary that we may have made in our

earlier decision in the instant case, see Sifers

, 892 F.2d at 392,

is best characterized as dicta, the accuracy of which has not stood

the test of time.

16 reinsure the WC/EL policy. 36 .549 So.2d 283 (La. 1989). 37

III.

CONCLUSION

For the foregoing reasons, the district court's grant of

summary judgm ent dismissing Sealift's claim against LIGA for

attorneys' fees and other costs is

AFFIRMED.