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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30453

Summary Calendar

MAISTER ASSOCIATES,

Plaintiff - Appellant

v.

STATE FARM FIRE & CASUALTY COMPANY,

Defendant - Appellee

Appeal from the United States District Court for the

Eastern District of Louisiana

USDC No. 2:06-CV-589

Before REAVLEY, JOLLY, and OWEN, Circuit Judges.

PER CURIAM:*

Appellant Maister Associates ("Maister") appeals the district court's

summary judgment dismissing Maister's claims against Appellee State Farm

Fire & Casualty Company ("State Farm"). For the reasons set forth below, we

AFFIRM.

We review a district court's grant of summary judgment de novo, using the

same standard as the district court. Ikossi-Anastasiou v. Bd. of Supervisors of

United States Court of Appeals

Fifth Circuit

F I L E D

October 28, 2009

Charles R. Fulbruge III

Clerk
No. 09-30453

2

La. State Univ., 579 F.3d 546, 549 (5th Cir. 2009) (citation omitted). Summary

judgment is appropriate only when "there is no genuine issue as to any material

fact and . . . the movant is entitled to judgment as a matter of law." FED. R. CIV.

P. 56(c).

Maister argues that it is entitled to damages for lost rental income under

the insurance policy issued by State Farm. Maister states that the lost rental

income stems from its cooperation with State Farm's alleged request to refrain

from making certain repairs to its apartments during the pendency of the

underlying litigation. Maister also argues that by compelling Maister to delay

repairs, State Farm breached its fiduciary duty and duty of good faith by

subordinating Maister's interest to its own in the defense of the underlying

claims. Both of Maister's arguments fail.

The uncontroverted evidence shows that it was Maister's own lawyer, not

State Farm, who recommended a delay in making certain repairs to the

apartments to prevent spoliation of evidence. While State Farm paid for

Maister's lawyer, Maister chose the lawyer State Farm employed. Maister has

presented no evidence that State Farm ever controlled the actions of Maister's

lawyer, nor has Maister pointed to any evidence showing Maister's lawyer acted

to represent State Farm's interests.

In addition, the magistrate judge correctly concluded that Maister has

failed to demonstrate an "identity of interest" between Maister and State Farm.

State Farm issued Maister three letters expressing a reservation of rights

regarding Maister's coverage. Therefore, a conflict of interest potentially existed

between the parties, making State Farm's choice to provide Maister independent

counsel proper. See, e.g., Smith v. Reliance Ins. Co. of Ill., 807 So. 2d 1010, 1022

(La. App. 2002) (holding that when an insurer denies coverage, there is a conflict

of interest between the insured and insurer, entitling the insured to select its

own independent counsel) (citing Belanger v. Gabriel Chems., Inc., 787 So. 2d
No. 09-30453

3

559, 563, 566 (La. App. 2001)); Nat'l Union Fire Ins. Co. v. Circle, Inc., 915 F.2d

986, 991 (5th Cir. 1990) ("An insurer that elects to reserve its rights to deny

coverage may nevertheless discharge its contractual obligation to defend its

insured by engaging separate counsel to represent the insured . . . ."). Even if

no conflict of interest existed, Maister has pointed to no authority obligating

State Farm to employ the same lawyers in the defense of both parties.

In conclusion, there is no evidence that State Farm acted in bad faith by

employing the very lawyer Maister selected to defend Maister in the underlying

action. Moreover, Maister has failed to demonstrate that the allegedly negligent

advice of its lawyer can be imputed to State Farm, such that any alleged harm

stemming from the advice became State Farm's responsibility under the policy.

Accordingly, the district court's ruling is AFFIRMED.