1 Circuit Judge of the Seventh Circuit, sitting by designation. United States Court of Appeals,

Fifth Circuit.

Nos. 92-3960, 93-3359, 93-3360 and 93-3397.

RILEY STOKER CORPORATION, Plaintiff-Appellant Cross-Appellee,

v.

FIDELITY AND GUARANTY INSURANCE UNDERWRITERS, INC., et al., DefendantsAppellees Cross-Appellants.

RILEY STOKER CORP., Plaintiff,

v.

FIDELITY AND GUARANTY INSURANCE UNDERWRITERS, INC., et al., Defendants.

FIDELITY & GUARANTY INSURANCE UNDERWRITERS, INC. and United States Fidelity

and Guaranty Company, Defendants-Third Party Plaintiffs-Appellants,

v.

BEAIRD INDUSTRIES, INC., and Ashland Oil, Inc., Third Party Defendants-Appellees.

July 22, 1994.

Appeals from the United States District Court for the Middle District of Louisiana.

Before WOOD, 1 SMITH and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge.

This is an insurance coverage disput e in which a contractor seeks to hold its insurer liable

under primary and excess comprehensive general liability policies for damage caused by the

contractor's d efective work. For the most part we agree with the district court's decision. We,

however, find error in some aspects of it so we affirm in part, reverse in part, and remand.

BACKGROUND

In 1975, Riley Stoker Corporati on ("Riley Stoker") and Cajun Electric Power Cooperative,

Inc. ("Cajun") entered into a contract ("G2-2 Contract") in which Riley Stoker agreed to construct

two coal-fired steam generators for Units 1 and 2 of the Big Cajun No. 2 power pl ant near New

Roads, Louisiana. Each generator would include a boiler and furnace and four coal pulverizers ("balltube mills"). Riley Stoker then contracted with its affiliate, Beaird Industries, Inc. ("Riley Beaird"),

to design and build the ball tube mills.

After Cajun began init

ial operati on of Units 1 and 2, t he Riley Stoker steam generators,

particularly the ball tube mills, began to exhibit ser i ous defects. A fire and several explosions

occurred in 1980 and 1981. Tire cracking, thrusting problems, and gear reducing problems appeared

during the same time period. Because of this, and construction delays, Cajun did not take the project

out of the construction phase and declare commercial operati on until June 30, 1981, even though the

G2-2 Contract called for commercial operati on on Units 1 and 2 by July 1979 and July 1980,

respectively. After the declaration of commercial operation, the mechanical breakdowns continued

to occur, and eventually, all of the ball tube mills required repair and replacement.

In December 1983, Cajun sued Riley Stoker for damages caused by delay in completing the

project, for loss of use of its electric generators, and repair and replacement of Riley Stoker's steam

generators. The suit was ultimately resolved through arbitration. In February 1989, the arbitrators

awarded Cajun $2,850,390 for financi al damages caused by Riley Stoker's failure to complete its

work in time to support commercial operati on within the contractually required time (paragraph 12

of the arbitration award) and $28,618,184 for other damages caused by defective equipment furnished

by or on behalf of Riley Stoker (paragraph 13 of the arbitration award).

Pursuant to the G2-2 Contract, Cajun obtained comprehensive general liabilit y coverage from

Fidelity and Guaranty Insurance Underwriters, Inc. and United States Fidelity and Guaranty Company

(collectively "USF & G") on behalf of and for the benefit of Riley Stoker and its subcontractors. The

coverage included one primary policy and two consecutive excess policie s. Riley Stoker was the

named insured under the primary policy, and Cajun and Riley Stoker were named insureds under the

two excess policies.

In February 1984, Riley Stoker notified USF & G of Cajun's suit and requested defense and

indemnit y. USF & G denied coverage, stating that Cajun did not allege damages for covered claims.

Riley then filed this action. The district court granted summary judgment for USF & G. This Court

reversed and remanded, holding that USF & G had a d ut y t o defend Riley Stoker because Cajun2 USF & G also moved to dismiss Riley Stoker's appeal as untimely. The amendment to Rule 4

of the Federal Rules of Appellate Procedure, effective December 1, 1993, makes the motion

timely. See Burt v. Ware, 14 F.3d 256 (5th Cir.1994). alleged damages for potentially covered claims. 886 F.2d 1313.

On remand, in 1992, the district court found that the damages awarded by the arbitrators in

paragraph 12 were covered, but those in paragraph 13 were not. Accordingly, the court awarded

$2.85 million for indemnity. With regard to "defense costs" incurred by Riley Stoker in defending

the Cajun action, the court awarded $9.5 millio n of the $17.3 millio n Riley Stoker claimed. The court

also awarded prejudgment interest but denied Riley Stoker's request for penalties and attorney's fees.

Both Riley Stoker and USF & G appeal.

Riley Stoker appeals the following: (1) the ruling that the policies do not cover the paragraph

13 award; (2) the reduction of its claimed "defense costs"; and (3) the denial of statutory penalties

and fees. USF & G cross appeals the following: (1) t he preclusio n of its notice defense; (2) the

ruling that the policies provide coverage for the pa ragraph 12 award; (3) the fai l ure to apporti on

"defense costs" between covered and uncovered claims; (4) the award of prejudgment interest on

the defense cost porti on of the judgment; (5) the dismissal of its third-party complaint; and (6) the

denial of its motion for leave to amend its third-party complaint. 2

DISCUSSION

I. The Preclusion of USF & G's Untimely Notice Defense

USF & G contends that Riley Stoker failed to give it t imely notice of the events at Cajun as

required by the policy and that t his po licy breach relieved USF & G of its indemnity and defense

obligations. USF & G further contends that the district court erred in finding that it waived this

defense by failing to assert it until years after it had denied coverage on other grounds. The district

court's decision correctly states the Louisiana law of waiver of lack of notice. In W heeler v. London

Guar. & Accident Co., 180 La. 366, 156 So. 420 (1934), the Louisiana Supreme Court stated:

If the insurer receives notice and proofs of the insured's claim after the expiration of the time

stipulated in the policy for the giving of such notice and then plants its defense solely upon

a ground not relating to the time for giving notice, the insured has reason to believe that the

insurer intends to waive its right to defend on the ground that timely notice of the accident

was not given. And in case the insured brings an action under the policy and incurs expensesincident to the suit, the insurer cannot be heard to say in its answer for the time that t imely

notice was not given.

156 So. at 422. Thus, the district court properly found that USF & G had waived its delayed notice

defense.

II. Liability for the Arbitration Award

A. Occurrences

The insurance policies provide that the insurer will pay on behalf of the insured all sums that

the insured becomes legally obligated to pay as damages because of "property damage" caused by an

"occurrence." The primary policy defines occurrence as an "accident, including continuo us or

repeated exposure to conditions, which results in

... property damage neither expected nor intended

from the standpoint of the Insured ." The first excess policy defines occurrence as "an accident,

including continuous or repeated exposure to conditions which results in

... property damage." And

the second excess policy defines occurrence as "an accident or unexpected ev ent , including

continuous or repeated e x posure to substantially the same general conditions, which results in

...

property damage." USF & G argues that Riley Stoker did not prove the happening of occurrences,

and therefore, the district court erred in ruling that damages awarded in paragraph 12 by the

arbitrators were covered.

After a thorough review of the record, we have no difficult y in finding that Riley Stoker met

its burden of proving that the damages suffered by Cajun were caused by occurrences as defined in

the policies. The record supports the finding that the ball tube mills, and their components, suddenly

and unexpectedly broke down, causing physical damage to the steam generating facilit y, on numerous

occasions. USF & G points out, however, that Louisiana courts have applied a judicial gloss on the

definition of occurrence. "In cases involving insurance policies with identical or substantially similar

def init io ns of occurrence, Louisiana Courts have found no occurrence where the liability of a

contractor is based solely on [its] improp er co nstruction or defective workmanship." R ivnor

Properties v. Herbert O'Donnell, Inc., 633 So.2d 735, 751 (La.Ct.App. 5th Cir.1994). USF & G

argues that because Cajun's claims were all grounded in Riley Stoker's construction delay and faulty

design, manufacture, a nd installation of the ball tube mills, Cajun's damages were not caused by3 Namely, the product, work, and the failure to perform exclusions, discussed infra.

occurrences.

USF & G has interpreted the cases too broadly. What the Louisiana courts have actually done

is define occurrence by reference to the exclusions typically found in a comprehensive general liabilit y

policy. 3 If there is a conflict between Louisiana's judicial gloss on the definition of occurrences and

USF & G's policy language, the conflict must be resolved in favor of the insured. S ee Vitenas v.

Centanni, 381 So.2d 531, 535 (La.Ct.App. 4th Cir.1980). In other words, if the damages are not

excluded under a specific policy exclusion, there is a conflict between Louisiana's definition and the

policy definition, and therefore, the damages are covered.

B. Property damage

As stated above, the policies provide coverage for property damage caused occurrences. The

policies define property damage as:

(1) physical injury to or destruction of tang ible property which occurs during the policy

period, including the loss of use thereof at any time resulting therefrom, or

(2) loss of use of tangible property which has not been phy sically injured or destroyed

provided such loss of use is caused by an occurrence during the policy period.

The district court found that paragraph 12 awarded Cajun property damages for loss of use of

t angible property, which had not been physically injured, and that paragraph 13 awarded Cajun

property damages for physical injury to tangible property.

1. Paragraph 13 of the Arbitration Award

Riley Stoker contends that the district court erred in finding that paragraph 13 did not award

any property damages for loss of use. We must give deference to the district court's decision because

interpreting the arbitration award requires an examination of extrinsic facts, as well as the award

itself. This is necessary because arbitrators, unlike courts, do not necessarily give reasons for their

awards. Accordingly, our review is limited to examination for clear error. C f. Haber Oil Co. v.

Swinehart (In re Haber Oil Co.), 12 F.3d 426, 443 (5th Cir.1994) ("[W]hen a contract is ambiguous

and its construction turns on the consideration of extrinsic evidence, we review the interpretation of

the court below for clear error only.").4 We will refer to (1) and (2) above as the product and work exclusions, respectively.

Upon a thoro ugh review of the evidence before the district court, we cannot say that its

decision was clearly erroneous. The amount awarded in paragraph 13 approximates Cajun's claim

for past repairs and future replacement costs of the ball tube mills . Moreover, the l anguage i n

paragraph 13 indicates that the award was for equipment repair and replacement. It contains several

references to equipment defects and does not contain any references to loss of use.

Alternatively, Riley Stoker contends that even if the paragraph 13 award was so lely for

physical injury to tangible property

, the district court erred in finding that the property damages were

excluded. The policies generally exclude property damage:

(1) to t he Named Insured's products arising out of such products or any part of such

products; and

(2) to work performed by or on behalf of the Named Insured arising out of the work or any

portion thereof, or out of materials, parts or equipment furnished in connection therewith. 4

The bro ad fo rm property damage ("BFPD") endorsement to the primary policy replaces the work

exclusion with the following:

with respect to the completed operations hazard, [this policy does not appl y ] to property

damage to work performed by or on behalf of the Named Insured arising out of the work or

any porti on thereof, or out of materials, parts or equipment furnished in connection therewith.

The BFPD endorsement to t he first excess policy eliminates the work exclusion entirely. And the

BFPD endorsement to the second excess policy replaces the work exclusion with the following:

with respect to the co mpleted operations hazard, [this policy does not apply] to property

damage to work p erfo rmed by the Named Insured arising out of the work or any portion

thereof, or out of materials, parts or equipment furnished in connection therewith.

The district court found that the property damage award in paragraph 13 was for damage to Riley

Stoker's product and work, and therefore, the damages were excluded under the product exclusion.

Because the damages were excluded under the product exclusion, the district court saw no need to

determine whether the damages were excluded under the work exclusions for completed operations

found in the BFPD endorsements to the primary and second excess policies. Accordingly, our review

is limited to whether the court properly applied the product exclusions.

Riley Stoker argues t h at because it provided construction services and not a product, theproduct exclusion is not applicable. Contrary to its assertions, there is substantial evidence to support

the finding that the Riley Stoker steam generators , which included the ball tube mills, were Riley

Stoker's product and the construction of the steam generators, including the ball tube mills, was Riley

Stoker 's work. S ee Allen v. Lawton & Moore Builders, Inc., 535 So.2d 779, 781 (La.Ct.App. 2d

Cir.1988) (stating that the product exclusion excluded coverage for property damage to the named

insured's products, the house and lot, and the work exclusion excluded damage to the insured's work,

the construction of the house and lot).

Next, citing Southwest La. Grain, Inc. v. Howard A. Dun c an, Inc., 438 So.2d 215

(La.Ct.App. 3rd Cir.), writ denied, 441 So.2d 1224 (La.), and writ denied, 442 So.2d 447 (La.1983),

Riley Stoker argues that the product and work exclusions cannot both be relevant to the paragraph

13 award. In S outhw est, the court refused to find both the product and the work exclusions relevant

where the product exclusion would have excluded coverage, but the work exclusion would not have

excluded coverage. The court reaso ned t hat this would create an ambiguity in the policy. That

ambiguity does not exist here. In this case, the district court found that the damages in paragraph 13

were to both the product and work of Riley Stoker. Therefore, both the product and work exclusions

would operate to exclude coverage.

Riley Stoker then contends that the district court erred in finding that the ball tube mills were

its work since they were built by Riley Beaird for Riley Stoker, and that such work is not excluded

under the work exclusion in the BFPD endorsement in the second excess policy. Our review of the

record indicates that the trial court properly found that the ball tube mills were the work of both Riley

Beaird and Riley Stoker. The events at Cajun were caused primarily by the design and installation

of the ball tube mills. The record contains substantial evidence that their design was supervised and

driven by Riley Stoker and the installation was performed by Ril ey Stoker. Therefore, the district

court's determination was not clearly erroneous.

2. Paragraph 12 of the Arbitration Award

USF & G contends that the district court erred in finding coverage of the property damages

awarded in paragraph 12. USF & G argues that the paragraph 12 award was for miscellaneo us5 On rehearing, the Borden court found coverage for the loss of use award based on the court's

realization that the definition of property damage, on which the court relied in the original

opinion, was not a part of the policy in the record. 454 So.2d at 1087, 1090. construction delays, such as scheduling and coordination delays unrelated to property damage. Our

review of the record reveals that the construction delay damages claime d by Cajun resulted from

repeated mechanical failures, as well as miscellaneous construction delays. The arbitrator's award in

paragraph 12 is covered to the extent that it awarded damages for delays caused by the mechanical

failures. Because we are unable to determine whether the arbitrator's award is covered in whole or

in part, we cannot say that the district court's finding of coverage was clearly erroneous. S ee

Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985)

("Where there are tw o permissible views of the evidence, the fact-finder's choice between them

cannot be clearly erroneous.")

Alternatively, USF & G argues that because the court excluded the propert y damage for

physical injury under the product exclusion, the loss of use caused by the physical injury must also

be exclu ded. In support of this proposition, USF & G relies primarily on B orden, Inc. v. Howard

Trucking Co., 454 So.2d 1081 (La.1983) and Rivnor, 633 So.2d at 735. Both of these cases are

distinguishable.

Relying upon the belief that the po licy in question defined property damage to mean (1)

physical injury to or destruction of tangible property that occurs during the policy period, including

the loss of use resulting therefrom, or (2) loss of use o f t angible property which has not been

physical ly injured or destroyed, the B orden court stated that where the injury to property is not

covered by a policy, the resulting loss of use of the injured property is not covered. 5 Likewise, the

court in Rivnor

found that a work exclusion, similar to the work exclusions in USF & G's policies,

excluded p hysical injury to the insured's work and the resulting loss of use of the insured's injured

work.

Unlike Borden, the loss of use in this case relates to property (the electric generators) that has

not been physically injured. And unlike Rivnor, it relates to loss of use of property (the electric

generators) other than the insured's work or product (the steam generating equipment). The steamgenerators supplied by Riley Stoker suffered from mechanical breakdowns causing physical damage

to the steam generators. These breakdowns, because they interrupt ed st eam flow to the turbines,

caused loss of use of the power plant's electric generators. Loss of use was the only damage suffered

by the electric generators. Thus, the lo ss o f use of Cajun's electric generators was loss of use of

property not physically injured.

The district court properly found that the only exclusion relevant to loss of use of property

not physically injured was the failure to perform exclusion found in all three policies. That exclusion

provides that the policies do not apply

to loss of use of tangible property

, which h as no t been physically injured or destroyed

resulting from

(1) a delay in or lack of performance by or on behalf of the Named Insured of any contract

or agreement, or

(2) the failure of the Named Insured's products or work performe d by o r on behalf of the

Named Insured to meet the level of performance, quality, f it ness or curability

warranted or represented by the Named Insured;

but this exclusion does not apply to loss of use of other tangible property resulting from the

sudden and accidental physical injury to or destruction of the Named Insured's product or

work performed by or on behalf of the Named Insured after such products or work have been

put to use by any person or organization other than an Insured.

The district court, relying on the "put to use" exception to the exclusio n, found that the failure to

perform exclusion did not exclude coverage.

USF & G contends that the put to use exception does not apply because the record is devoid

of proof that the loss of use resulted from "sudden and accidental physical injury" to t he named

insured's product or work. It further argues that Riley Stoker's product or work had not been put to

use. Contrary to USF & G's assertions, we find that there was sufficient evidence supporting the

district court's findings that the loss of use resulted fro m sudden and accidental physical injury to

Riley Stoker's work and product afte r Riley Stoker's work and product had been put to use. The

record sho ws t hat breakdowns occurred during initial operation and continued after commercial

operation.

Finally, USF & G argues that because Cajun and Riley Stoker were both insured under the

two excess policies the "person other than an insured" requirement of the put to use exception wasnot satisfied. USF & G raises this argument for the first time on appeal. "It is an unwavering rule

in this Circuit that issues raised for the first time on appeal are reviewed only for plain error."

McCann v. Texas City Refining, Inc., 984 F.2d 667, 673 (5th Cir.1993). "In other words, this Court

will reverse only

if t he judgment complained of results in a "manifest miscarriage of justice.' " I d.

(quoting Coughlin v. Cap itol Cement Co., 571 F.2d 290, 297 (5th Cir.1978)). USF & G had not

even at t empted to argue that such injustice will occur here. Therefore, we cannot consider it s

argument.

III. Liability for Defense Cost

In a prior proceeding, this Court found tha t USF & G had a duty to defend Riley Stoker

because Cajun's complaint alleged claims potentially covered by USF & G's policies. Under Louisiana

law, when an insurer has a duty to defend any claim asserted, the insurer must defend the entire action

brought against its insured. A lert Centre, Inc. v. A l arm Protection Serv., Inc., 967 F.2d 161, 163

(5th Cir.1992). Thus, an insurer who wrongfully refuses to defend is liable for reasonable attorney's

fees and expenses incurred by the insured in defending both the covered and uncovered claims

brought against it. S ee Clemmons v. Zurich Gen. Accident & Liability Ins. Co., 230 So.2d 887, 896

(La.Ct.App. 1st Cir.1969) ("[T]he measure of damages to be assessed against an insurer who fails

to defend under its policy thereby breaching its contractual obligation includes reasonable attorney's

fees.").

Citing EEOC v. Southern Publishing Co., 894 F.2d 785, 791 (5th Cir.1990) (arising under

Mississippi law), USF & G contends that the insured should pay the costs for defending uncovered

claims only when there is no reasonable means of prorating the cost of defense between the covered

and the uncovered items. USF & G argues that if this Court finds that no portion of the arbitration

award is covered, then a reasonable apportionment between covered and uncove red items can be

made—zero costs attributable to covered claims. We reject this argument for two reasons. First,

under USF & G's argument a reason a ble apportionment cannot be made because a porti on of the

award is covered. Second, it is contrary to Louisiana law. See Yount v. Maisano, 627 So.2d 148,

153 (L a.1993) (holding that the insured, who had a duty to defend, was obligated to pay defensecosts even though it was ultimately determined in the covera ge suit that none of the cl ai m s were

covered).

Riley Stoker contends that the district court erred in determining the extent of USF & G's

liabilit y for attorney's fees and expenses. Finding that some defense costs were not reasonably

incurred, the district court reduced the fees and expenses of Riley Stoker's principal law firm by 407

and 337, respectively; disallowed the fees and expenses of an additional law firm with special

expertise in arbitration and construction law; and reduced the fees paid to consultants by 407. The

district court's reasonableness determinations regarding costs and fees are reviewed for abuse of

discretion. S ee Associated Builders & Contractors, Inc. v. Orleans Parish Sch. Bd., 919 F.2d 374,

379 (5th Cir.1990). Our review of the record reveals that, while the reductions were large, the court

had ample evidence to conclude that all costs were not reasonably incurred in defense of Cajun's

claims, and thus, the court did not abuse its discretion. We do not here recount the evidence but it

is completely adequate to support the court's broad discretion.

Next, Riley Stoker contends that the court erred in limit ing its claim for internal cost to the

$25 per diem provided in the policy. It argues that because USF & G renounced its obligations under

the policy, USF & G should not receive the benefit of this policy pr o vision. USF & G did not,

however, renounce its policy obligations. Indeed, USF & G's defenses were grounded in its policy

provisions. Thus, the court properly reduced Riley Stoker's claim for internal cost.

Finally, Riley Stoker argues that the district court erred in disallowing expert fees paid t o

Chamberlain Mfg. ("Gard"). The district court deleted this expenditure reasoning that because the

fees related to a porti on of the arbitration award that was not covered under the policy, USF & G did

not have to reimburse Riley Stoker for Gard's services. We agree with Riley Stoker that the court

erred in deleting these expenses. As we stated above, USF & G is liable for defense costs reasonably

incurred by Riley Stoker in defending both covered and uncovered claims. S ee Yount, 627 So.2d at

153. The court made no finding that those costs were or were not reasonable.

IV. Penalties for Failure to Defend and Indemnify

Riley Stoker contends that the district court erred in denying penalties and at torney 's feesunder La.R.S. 22:658 and 1220. An insurer may be liable for such penalties if its refusal to defend

or indemnify was "arbitrary, capricious, or without probable cause." La.R.S. 22:658(B)(1) and

1220(B)(5). Because this is a factual finding, we will not disturb the district court's determination

unless it is clearly erroneous. C hevalier v. Reliance Ins. Co., 953 F.2d 877, 883 (5th Cir.1992). We

find no such error.

In addition to its claim under La.R.S. 22:658 and 1220, Riley St oker also seeks attorney 's

fees, incurred in bringing this suit against USF & G, on case law theories. It argues that case law

provides that where an insurer breaches its duty to defend, the insured is entitled to attorney's fees.

In support of its argument , it cites Little v. Kalo Labs., Inc., 424 So.2d 1065 (La.Ct.App. 2d

Cir.1982), writ denied, 430 So.2d 79 (La.1983), and Enserch Corp. v. Shand Morahan & Co., 952

F.2d 1485, 1495 (5th Cir.1992) (a case arising under Texas law). Contrary to Ril ey Stoker's

assertions, Little and Enserch do not supply other theories that would support an award in this case.

In Little, the court found that the insureds were entitled to attorney's fees because the insurer

"arbitrarily" denied coverage. As we stated in the previous paragraph, the district court did not err

in finding that USF & G did not arbitrarily deny coverage. In Enserch, this Court held that the

insurers would pay the insured's defense cost on remand because, unlike here, the findings relating

to the ultimate coverage issues would have been made in the underlying proceeding if the insurers had

defended.

V. Prejudgment Interest on Defense Costs

USF & G cont ends t hat t he district court erred in awarding prejudgment interest on the

defense cost award. We agree. The weight of Louisiana authority instructs that fee awards are not

subject to prejudgment interest because reasonable fees are not ascertainable prior to judgment. S ee

Alexander v. Burroughs Corp., 359 So.2d 607, 614 (La.1978) (holding that attorney's fee awards are

not subject to prejudgment interest); R ovira v. LaGoDa, Inc., 551 So.2d 790, 796 (La.Ct.App. 5th

Cir.1989) (applying the rule against prejudgment interest awards to defense cost claims against

insurers), writ denied, 556 So.2d 36 (La.1990); s ee also Little, 424 So.2d at 1069; B rummerloh v.

Firemen's Ins. Co., 377 So.2d 1301, 1312 (La.Ct.App. 3d Cir.1979). But see Merrick Constr. Co.v. Hartford Fire Ins. Co., 449 So.2d 85, 89 (La.Ct.App. 1st Cir.) (stating that the insured was

entitled to interest on his defense costs claim from the date of judicial demand because the amount

due was ascertainable as of the date of judicial demand), writ denied, 450 S o.2d 958 (La.1984).

Becaus e the defense costs in this case were not ascertainable at the time of judicial demand,

prejudgment interest should not have been awarded.

VI. Third-Party Complaint

A. Dismissal of Third-Party Complaint

USF & G filed a

t hird-party complaint against Riley Beaird and Ashland Oil, Inc. (Riley

Stoker's and Riley Beaird's corporate parent) seeking indemnity for the amounts due to Riley Stoker.

The district court dismissed the complaint, under Rule 12(b)(6), finding that USF & G's claims were

perempted under La. R.S. 9:2772, which precludes any suit based on the allegedly defective design

or construction of an immo vable from being brought more than ten years after the completion of the

work preformed. USF & G contends that the trial court erred in finding that the peremption statute

governed its claims. "We review a Rule 12(b)(6) dismissal de novo. We must accept all well-pleaded

facts as true, and we view them in the light most favorable to the plaint iff. We may not look beyond

the pleadings." Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.1994).

USF & G argues that the pleadings do not support the finding that the ball tube mills were

immovables. We disagree. Under Louisiana law, only tracts of land and their component parts are

immovables. La.Civ.Code art. 462. To be a component part of a tract of land, a piece of equipment

must be permanently attached to the land and belong to the owner of the ground. La.Civ.Code art.

463. There is no dispute that Units 1 and 2 satisfy this condition. The code further provides that the

integral parts of Units 1 and 2 are also its component parts. S ee La.Civ.Code art. 465 and 466. The

pleadings clearly demonstrate that the ball tube mills were an integral part of the steam generating

unit, which in turn was an integral part of Cajun's Units 1 and 2. Therefore, the district court properly

found that the ball tube mills were immovables.

Next, USF & G contends that the statute does not apply to Riley Beaird. It argues that the

statute only applies to contractors and that Riley Beaird is not a contractor because it did virtuallyno on-site work. This argument is also unavailing. The Lo uisiana courts have suggested that the

statute applies to construction contracts, and not sales contracts. S ee DeWoody v. Citgo Petroleum

Corp., 604 So.2d 92, 99 (La.Ct.App. 3rd Cir.), writ denied, 605 So.2d 1369 (La.), and writ denied,

605 So.2d 1372 (La.1992). The mere fact, however, that Riley Beaird did little work at the site does

not mean that its contract with Riley Stoker was a sales contract.

B. Denial of Leave to Amend

Finally, USF & G argues that the trial court abused its discretion in denying leave to amend

its third-party complaint to add additional claims against Riley Beaird and a claim against Ashland Oil

for torti ous interference with an insurance contract. Rule 15(a) of the Federal Rules of Civil

Procedure provides that leave to amend a pleading "shall be freely given when justice so requires."

However, "[w]hether such an amendment should be granted is within the district judge's discretion."

Overseas Inns S.A. P.A. v. United States, 911 F.2d 1146, 1150 (5th Cir.1990). The denial of leave

to amend is not an abuse of discretion if there had been "undue delay, bad faith or dilatory motive on

the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the

amendment." F

oman v. Da vis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

Although the district court did not give specific reasons for its denial, we find that it did not abuse

its discretion.

CONCLUSION

For the foregoing reasons we reverse the district court's rulings regarding the denial of defense

costs for uncover e d claims and the award of prejudgment interest on defense costs. We affirm all

other rulings on appeal.

AFFIRMED in part, REVERSED in part and REMANDED.