IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30466

Summary Calendar

INDIAN HARBOR INSURANCE COMPANY,

Plaintiff-Appellant

v.

BESTCOMP, INCORPORATED; GEORGE RAYMOND WILLIAMS, M.D.,

Orthopedic Surgery, A Professional Medical, L.L.C.,

Defendants-Appellees

Appeal from the United States District Court 

for the Eastern District of Louisiana

No. 2:09-CV-7327

Before DAVIS, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

George Raymond Williams, M.D., Orthopedic Surgery, A Professional

Medical L.L.C. (“Williams L.L.C.”) filed a putative class action lawsuit in state

court against BestComp, Incorporated alleging violations of Louisiana law. 

Indian Harbor Insurance Company subsequently filed a federal lawsuit seeking

a judgment declaring that it had no obligation to defend or indemnify BestComp

United States Court of Appeals

Fifth Circuit

F I L E D

December 7, 2011

Lyle W. Cayce

Clerk

 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.

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in connection with the state court action. Indian Harbor then filed a motion for

summary judgment, which was granted in part and denied in part by the district

court. After the district court directed entry of final judgment pursuant to

Federal Rule of Civil Procedure 54(b), Indian Harbor filed a timely notice of

appeal. For the reasons stated below, we affirm the district court’s judgment. 

I.

A. The insurance policy

In July 2009, Indian Harbor issued a professional liability insurance policy

to Cannon Cochran Management Services, CCMSI Holdings, Inc., CCSF

Reinsurance, Ltd. (collectively “CCMSI”), and their subsidiaries. While not a

named insured party, BestComp asserts that it is covered under the policy

because it is a subsidiary of CCMSI. 

Under the policy, Indian Harbor was to provide insurance coverage by

paying “on behalf of the Insured all sums in excess of the deductible that the

Insured becomes legally obligated to pay as damages and claim expenses as a

result of a claim first made against the Insured and reported in writing to

[Indian Harbor]” from July 31, 2009 to July 31, 2010. The policy also states 1

that Indian Harbor has the “right and duty to defend in the Insured’s name and

on the Insured’s behalf a claim . . . even if any of the allegations in the claim are

groundless, false or fraudulent.”

The policy defines a “claim” as “a demand for money or services naming

the Insured arising out of an act or omission in the performance of professional

services. A claim also includes the service of suit or the institution of an

arbitration proceeding against the Insured.” The term “claim expenses” is

defined as, inter alia, “[f]ees charged by attorneys” and “[a]ll other reasonable

and necessary fees, costs and expenses” resulting from the defense of a claim. 

The insurance policy highlights all words and phrases thatit specifically defines with 1

bold font. When quoting the policy, we will not replicate the bold font.

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The term “damages” is defined as “any compensatory sum and includes a

judgment, award or settlement[.]” Notably, the policy excludes “fines, penalties,

forfeitures, or sanctions” from the definition of “damages.”

B. State court proceedings

On September 30, 2009, Williams L.L.C. filed a putative class action

against BestComp in Louisiana state court (the “Williams lawsuit”). In its

petition, Williams L.L.C. alleged that it is BestComp’s duty to provide access to

preferred provider organization (“PPO”) discounted rates in connection with

Louisiana’s workers’ compensation payments. It further averred that BestComp

discounted the medical bills of numerous Louisiana health care providers. In

applying these discounts, Williams L.L.C. contended that BestComp violated the

following state statute:

A preferred provider organization’s alternative rates of payment

shall not be enforceable or binding upon any provider unless such

organization is clearly identified on the benefit card issued by the

group purchaser or other entity accessing a group purchaser’s

contractual agreement or agreements and presented to the

participating provider when medical care is provided. . . . When no

benefit card is issued or utilized by a group purchaser or other

entity, written notification shall be required of any entity accessing

an existing group purchaser’s contractual agreement or agreements

at least thirty days prior to accessing services through a

participating provider under such agreement or agreements. 

La. Rev. Stat. § 40:2203.1. According to the petition, BestComp failed to comply

with the notice requirements of section 40.2203.1 of the Louisiana Revised

Statutes when applying discounts to workers’ compensation medical bills. As a

result of this failure, Williams L.L.C. and its putative class sought statutory

damages in the form of “double the fair market value of the medical services

provided, but, in no event, less than the greater of $50 per day of non-compliance

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or $2000, together with attorney fees to be determined by the Court as is

provided under [state law].” See id. § 40:2203.1G. 

C. Federal court proceedings

On November 12, 2009, Indian Harbor filed a federal lawsuit seeking a

“judgment declaring that it has no duty to defend or to indemnify BestComp, or

to pay any proceeds under the Policy, for the claims asserted against it.” In

August 2010, Indian Harbor filed a motion for summary judgment in which it

argued that because the statutory damages requested in the state court action

are properly considered penalties, they are not the type of damages covered

under the terms of the policy. Accordingly, it contended that it had no duty to

defend or indemnify BestComp in the Williams lawsuit. In response to this

motion, BestComp argued that while Indian Harbor may not be responsible for

paying statutory damages under section 40.2203.1, it was obligated to defend the

Williams lawsuit and cover claim expenses incurred as a result of this suit.

In November 2010, the district court issued an order resolving Indian

Harbor’s motion. In its order, the district court granted Indian Harbor’s motion

in part when it concluded that damages under section 40.2203.1, along with

certain attorneys’ fees, were not covered by the policy. The district court did,

however, partially deny Indian Harbor’s motion by determining that not only did

Indian Harbor still have a duty to defend BestComp, but was also responsible

for paying claim expenses arising out of the Williams lawsuit. On November 8, 2

2011, the district court granted Indian Harbor’s motion to certify its denial of

Indian Harbor’s motion for summary judgment as a final judgment pursuant to

Federal Rule of Civil Procedure 54(b). This appeal ensued. 

The district court also denied a motion for summary judgment that was filed by 2

Williams L.L.C.

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II.

A. Standard of Review

We review the district court’s grant or denial of summary judgment de

novo, applying the same standard as the district court. Holt v. State Farm Fire

& Cas. Co., 627 F.3d 188 (5th Cir. 2010) (citation omitted). Summary judgment

is appropriate if there is no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A district

court’s interpretation of an insurance contract is a question of law subject to de

novo review. Travelers Lloyds Ins. Co. v. Pacific Emp’rs Ins. Co., 602 F.3d 677,

681 (5th Cir. 2010).

B. Analysis

“When, as here, jurisdiction is based on diversity, we apply the substantive

law of the forum state.” Holt, 627 F.3d at 191 (citing Erie R. v. Tompkins, 304

U.S. 64 (1938)). Louisiana is the forum state in this case; we therefore look to

its law for guidance in resolving this dispute. On appeal, Indian Harbor solely

argues that the district court erred in concluding that it had a duty to defend

BestComp in the Williams lawsuit. Because this appeal turns on the

interpretation of an insurance policy, we begin our analysis with a consideration

of the interpretive tools provided by Louisiana law.

“An insurance policy is a contract between parties and should be construed

by using the general rules of interpretation of contracts in the Civil Code.” In

re Katrina Canal Breaches Litig., 63 So. 3d 955, 963 (La. 2011). The judicial

responsibility in interpreting insurance contracts is to determine the parties’

common intent. La. Ins. Guar. Ass’n v. Interstate Fire and Cas. Co., 630 So. 2d

759, (La. 1994) (citing La. Civ. Code art. 2045). “The parties’ intent as reflected

by the words in the policy determine the extent of coverage.” Id. (citation

omitted). “Such intent is to be determined in accordance with the general,

ordinary, plain and popular meaning of the words used in the policy, unless the

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words have acquired a technical meaning.” Id. (citing La. Civ. Code art. 2047). 

Where a policy of insurance contains a definition of any word or phrase, this

definition is controlling. E.g., Cangelosi v. Allstate Ins. Co., 680 So. 2d 1358,

1362 (La. Ct. App. 1 Cir. 1996). 

“If the words of the policy are clear and explicit and lead to no absurd

consequences, no further interpretation may be made in search of the parties’

intent and the agreement must be enforced as written.” Crabtree v. State Farm

Ins. Co., 632 So. 2d 736, 741 (La. 1994). “The policy should be construed as a

whole and one portion thereof should not be construed separately at the expense

of disregarding another.” Id. (citation omitted). “If after applying the other

general rules of construction an ambiguity remains, the ambiguous contractual

provision is to be construed against the insurer who issued the policy and in

favor of the insured.” Id. (citation omitted). With these general interpretive

tools in mind, we turn to the specific legal issue presented on appeal.

Under Louisiana law, an “insurer’s duty to defend lawsuits against its

insured is broader than its liability for damage claims.” Mossy Motors, Inc. v.

Cameras Am., 898 So. 2d 602, 606 (La. Ct. App. 4 Cir. 2005) (citing Steptore v.

Masco Constr. Co., Inc., 643 So. 2d 1213, 1218 (La. 1994)). “The issue of whether

a liability insurer has the duty to defend a civil action against its insured is

determined by application of the ‘eight-corners rule,’ under which an insurer

must look to the ‘four corners’ of the plaintiff’s petition and the ‘four corners’ of

its policy to determine whether it owes that duty.” Id. “The duty to defend is

determined by the allegations of the plaintiff's petition, with the insurer being

obligated to furnish a defense unless the petition unambiguously excludes

coverage.” Id. at 606-07 (citations omitted). “The duty to defend arises

whenever the pleadings against the insured disclose even a possibility of liability

under the policy.” Id. at 607. To determine whether Indian Harbor has a duty

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to defend BestComp in the Williams lawsuit, we must therefore compare the

policy language with Williams L.L.C.’s state court petition. 

The policy states that Indian Harbor “has the right and duty to defend any

claim against [BestComp] even if any of the allegations of the claim are

groundless, false or fraudulent.” As stated above, the policy defines a claim as

“a demand for money or services naming [BestComp] arising out of an act or

omission in the performance of professional services.” Here, it is evident that

Williams L.L.C.’s state court petition is properly considered a claim as that term

is defined by the policy. In its petition, Williams L.L.C. names BestComp and

demands money as a result of BestComp’s alleged failure to abide by state notice

requirements in performing its professional services, namely, “providing PPO

discounted rates in connection with Louisiana workers’ compensation

payments.” Because the allegations in the state court petition qualify as a claim

under the policy, Indian Harbor has a duty to defend BestComp in the Williams

lawsuit. Accordingly, we conclude that the district court did not commit legal

error in so holding. 

Not only does Indian Harbor have a duty to defend BestComp, but it is

also required to cover claim expenses. The policy is unambiguous with respect

to Indian Harbor’s contractual obligation to pay claim expenses: “[Indian

Harbor] will pay on behalf of [BestComp] all sums in excess of the deductible

that [BestComp] becomes legally obligated to pay as damages and claim

expenses as a result of a claim” made against BestComp. As this language

makes clear, any claim expenses that arise as a result of the claims made in the

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state court action are therefore also covered by the plain terms of the policy. The

district court therefore did not err in arriving at the same conclusion.3

In its brief, Indian Harbor contends that its duty to defend terminated “on

November 12, 2010 when the [d]istrict [c]ourt ruled that [its] policy

unambiguously excludes from coverage the claims asserted in the underlying

putative class action[.]” Throughout its brief, it relies heavily upon this premise

in constructing its arguments. This premise, however, mischaracterizes the

district court’s decision. Contrary to what Indian Harbor suggests, the district

court did not hold that the claims in the Williams lawsuit were outside the scope

of the policy’s coverage. Rather, it unequivocally held that “the plain language

of Indian Harbor’s policy specifically precludes recovery for damages incurred

under section 40.2203.1(G).” Put simply, the district court’s holding addressed

Indian Harbor’s legal obligation to pay damages, not its duty to defend claims

brought against BestComp. Because they are predicated on a faulty premise,

Indian Harbor’s arguments fail to provide a basis for unsettling the district

court’s judgment. 

4

III.

Finding no error, we AFFIRM the district court’s judgment. We also

GRANT Williams L.L.C.’s pending motion to be removed as appellee.5

 At various points in its written submissions, Indian Harbor casually suggests that 3

the terms “damages” and “claim expenses” are “inextricably tied together” and that, as a

result, the district court’s judgment regarding damages also extinguished any duty to pay

claim expenses. Because this argument is presented in a conclusory fashion, we will not

consider it. E.g., United States v. Stalnaker. 571 F.3d 428, 440-41 (5th Cir. 2009) (concluding

that undeveloped arguments that lacked citations to relevant law were waived for inadequate

briefing). 

Not only are Indian Harbor’s arguments based on a faulty premise, but they also pay 4

short shrift to an important portion of any dispute regarding the interpretation of an

insurance policy: the actual language of the insurance contract.

In its brief, BestComp asks for damages under Federal Rule of Appellate Procedure

5

38. Although Indian Harbor’s appeal borders on frivolous, we do not believe it is sanctionable.

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