* 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that this opinion should not be published and is not precedent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. 02-60201

Summary Calendar

HERMITAGE INSURANCE COMPANY

Plaintiff - Appellee

v.

GEORGE BREWER; ET AL

Defendants

GEORGE BREWER; MALCOLM G GOODMAN

Defendants - Appellants

Appeal from the United States District Court

for the Southern District of Mississippi

No. 3:01-CV-9-BN

December 30, 2002

Before KING, Chief Judge, and DEMOSS and BENAVIDES, Circuit

Judges.

PER CURIAM:*

Defendants-Appellants George Brewer and Malcolm Goodman

appeal the district court’s denial of their motion to dismiss,

denial of their motion for summary judgment, and grant of
No. 02-60201

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1 Section II of the policy explains who is considered an

insured. The policy states:

1. If you are designated in the Declarations as:

a. An individual, you and your spouse are 

insureds, but only with respect to the conduct of 

a business of which you are the sole owner. . . . 

2. Each of the following is also an insured:

a. Your “employees”, other than your “executive 

officers”, but only for acts within the scope of 

their employment by you or while performing duties

related to the conduct of your business. . . . 

Plaintiff-Appellee Hermitage Insurance Company’s motion for 

summary judgment. For the following reasons, we AFFIRM. 

I. FACTUAL AND PROCEDURAL HISTORY

Roger Creger is the sole owner of Future Energy, Inc.

("Future Energy"), a corporation that assists utility companies

with installation and maintenance of high-voltage electrical

breakers. Roger Creger obtained a general commercial liability

insurance policy from Hermitage Insurance Company (“Hermitage”). 

The policy was purchased through the Association for Independent

Managers and lists the Association for Independent Managers,

Roger Creger, and several other individuals as named insureds. 

The policy does not name Future Energy or Randy Creger as

insureds.1

Future Energy entered into a contract with Entergy Services,

Inc. (“Entergy”) to counsel Entergy on maintenance of electrical

breakers. According to the contract and its subsequent

amendments, Future Energy was to offer advice on how maintenance

should be performed and Entergy employees were to perform the
No. 02-60201

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2 Brewer’s and Goodman’s complaints are virtually

identical. 

3 The professional liability exclusion reads:

EXCLUSION – ENGINEERS, ARCHITECTS[,] OR SURVEYORS

PROFESSIONAL LIABILITY

. . .

This insurance does not apply to “bodily injury,”

“property damage,” “personal injury[,]” or “advertising

injury” arising out of the rendering or failure to

render any professional services by or for you,

including:

1. The preparing, approving, or failing to prepare or

approve maps, drawings, opinions, reports, surveys,

change orders, designs[,] or specifications; and

actual physical maintenance on the breakers. Randy Creger,

Roger's brother, was the Future Energy employee sent to consult

to George Brewer and Malcolm Goodman, the Entergy employees who

were to perform the maintenance. Randy Creger advised Brewer and

Goodman to clean the breakers using denatured alcohol. When

Brewer and Goodman followed these instructions, their alcoholsoaked rags burst into flames and they were severely injured. 

Brewer and Goodman each brought suit in Mississippi state

court against Randy Creger and Future Energy, alleging breach of

contract and negligence and seeking punitive damages.2 When

Randy Creger and Future Energy submitted a claim to Hermitage,

Hermitage denied coverage because neither was a named insured

under the policy. Brewer and Goodman then amended their

complaints to add Roger Creger and Hermitage as defendants.

Hermitage denied coverage for Roger Creger’s claim, citing the

policy’s professional liability exclusion.3 
No. 02-60201

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2. Supervisory, inspection[,] or engineering services. 

Hermitage then filed suit in federal court against Brewer,

Goodman, Roger and Randy Creger, and Future Energy. Hermitage

sought a declaration that: (1) Randy Creger and Future Energy are

not insureds under the policy, so that there is no coverage and

no duty to defend the state-court suits with respect to them; (2)

the professional services exclusion and the contractual liability

exclusion bar coverage for the tort and contract claims against

Roger Creger; and (3) the punitive damages endorsement bars an

award of punitive damages to Brewer and Goodman. 

Brewer and Goodman brought a motion to dismiss the federal

suit based on the “first to file” rule and on principles of

Brillhart abstention. The district court denied their motion. 

The district court determined that the “first to file” rule was

only applicable when there are two federal-court proceedings, not

a state-court proceeding and a federal-court proceeding. The

district court also determined that Brillhart abstention was

inappropriate because there was not a state-court proceeding that

included all of the parties and all of the issues so that

Hermitage could be subject to inconsistent verdicts in state

court. 

Brewer and Goodman then each settled his state-court claims

against Roger Creger, Randy Creger, and Future Energy. By the
No. 02-60201

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4 The district court also rejected Brewer’s and Goodman’s

argument that Hermitage was bound to provide coverage for Randy

Creger and Future Energy due to statements by Jack Winebrenner,

who Brewer and Goodman claimed was a Hermitage agent. 

terms of the settlement, a $1,000,000 judgment was entered

against Roger Creger, Randy Creger, and Future Energy. The

settlement specifies that Brewer and Goodman may not seek payment

from Roger Creger, Randy Creger, or Future Energy if it is

determined that there is no coverage available under the

Hermitage policy. 

After some discovery in federal court, Hermitage filed a

motion for summary judgment and Brewer and filed a cross-motion

for summary judgment, which Roger Creger, Randy Creger, and

Future Energy joined. The district court granted Hermitage’s

summary judgment motion and denied the federal-court defendants’

summary judgment motion. Initially, the district court agreed

with Hermitage that because the state-court case settled with the

alleged insureds escaping liability, Hermitage no longer had a

duty to provide coverage under the terms of the policy. 

Nonetheless, the district court found Hermitage could be bound by

the state-court settlement agreement if it breached its duty to

defend an insured. The district court determined that Hermitage

did not breach its duty to defend Future Energy or Randy Creger

because neither was an insured under the policy.4 The district

court found that Roger Creger was an insured, but that Hermitage
No. 02-60201

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5 Randy Creger, Roger Creger, and Future Energy do not

appeal.

did not breach its duty to defend Roger Creger because the

contractual liability exclusion barred coverage for Brewer’s and

Goodman’s breach-of-contract claims, the professional liability

exclusion barred coverage for Brewer’s and Goodman’s negligence

claims, and the punitive damages endorsement barred coverage for

punitive damages. 

 Hermitage and Brewer appeal.5 They claim that the district

court erred in refusing to dismiss the federal-court case, in

denying their motion for summary judgment, and in granting

Hermitage’s motion for summary judgment. Specifically, they

argue: (1) Brillhart abstention is appropriate; (2) Randy Creger

and Future Energy are insureds under the policy; (3) the statecourt settlement absolving the insureds of personal liability

does not bar coverage; and (4) the professional services

exclusion does not bar coverage. 

II. STANDARD OF REVIEW

This court reviews a district court’s decision whether to

stay proceedings for an abuse of discretion. E.g., Wilton v.

Seven Falls Co., 515 U.S. 277, 288-89 (1995); Black Sea Inv.,

Ltd. v. United Heritage Corp., 204 F.3d 647, 649 (5th Cir. 2000). 

We have previously noted that “[a] district court has broad

discretion to retain or dismiss a declaratory judgment suit where
No. 02-60201

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a parallel state court suit has been filed.” Cornhill Ins. PLC

v. Valsamis, Inc., 106 F.3d 80, 84 (5th Cir. 1997). 

We review a grant of summary judgment de novo, applying the

same standards as the district court. Daniels v. City of

Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied, 122 S. Ct.

347 (2001). Summary judgment should be granted if there is no

genuine issue of material fact for trial and the moving party is

entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). 

A genuine issue of material fact exists when there is evidence

sufficient for a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586-87 (1986). In determining if there is a

genuine issue of material fact, the court reviews the evidence in

the light most favorable to the non-moving party. Daniels, 246

F.3d at 502. 

This is a diversity case and the parties agree that

Mississippi insurance law applies. We review a district court’s

interpretation of an insurance contract under Mississippi law de

novo. Mulberry Square Prods., Inc. v. State Farm Fire & Cas.

Co., 101 F.3d 414, 420 (5th Cir. 1996). Under Mississippi law,

“where an insurance policy is plain and unambiguous, a court must

construe that instrument, like other contracts, exactly as

written.” Centennial Ins. Co. v. Ryder Truck Rental, Inc., 149

F.3d 378, 382 (5th Cir. 1998). If the terms of a policy are
No. 02-60201

-8-

ambiguous, we interpret them in favor of the insured. Id. at

382-83. 

III. DISCUSSION

A. Motion to Dismiss Based on Brillhart Abstention

As a threshold matter, we consider whether the district

court abused its discretion in refusing to dismiss the federal

declaratory-judgment action based on principles of Brillhart

abstention. In Brillhart v. Excess Insurance Co. of America, the

Supreme Court determined that abstention in a federal-declaratory

judgment suit may be appropriate when there is a pending statecourt proceeding. See 316 U.S. 491, 494-97 (1942). The Court

explained that the district court “should ascertain whether the

questions in controversy between the parties to the federal suit

. . . can be better settled in the proceeding pending in the

state court.” Id. at 495. In making this determination, the

district court should consider “whether the claims of all parties

in interest can satisfactorily be adjudicated in that [statecourt] proceeding, whether necessary parties have been joined,

whether such parties are amenable to process in that proceeding,

etc.” Id. The Fifth Circuit has added other factors to

Brillhart list, including: whether the plaintiff filed suit in

anticipation of a lawsuit filed by the defendant; whether the

plaintiff engaged in forum shopping; whether inequities exist in

allowing the plaintiff to gain precedence in time or change
No. 02-60201

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6 Brewer and Goodman base a large part of their argument

that abstention is appropriate on the fact that Hermitage was

eventually served in the state-court Goodman litigation. First,

Brewer and Goodman apparently never brought this fact to the

district court’s attention, and this fact is not in the record on

appeal, so it should not be considered. See, e.g., Kemlon Prods.

& Dev. Co. v. United States, 646 F.2d 223, 224 (5th Cir. 1981). 

Second, even if Hermitage had been served in both cases, there is

still the risk of inconsistent verdicts, so that the district

court did not abuse its discretion in refusing to abstain. 

7 Though Brewer and Goodman allege that the parties

agreed to consolidate the state-court actions, there is no

evidence that the two state-court suits were ever joined.

forums; whether a federal forum is more convenient for parties

and witnesses; and whether retaining federal jurisdiction would

promote judicial economy. Travelers Ins. Co. v. La. Farm Bureau

Fed’n, Inc., 996 F.2d 774, 778 (5th Cir. 1993). 

The district court reviewed the Brillhart factors and

determined that abstention was unwarranted. We find no abuse of

discretion in its decision. At the time of the motion to

dismiss, the state actions did not include the same parties as

the federal action. Though Hermitage had been served in the

Brewer suit, it had not been served in the Goodman suit, despite

the fact that it had been added as a defendant almost two years

prior.6 Further, as the district court correctly noted, there

were two lawsuits pending against Hermitage in state court based

on identical facts and identical legal arguments, which exposed

Hermitage to the possibility of inconsistent judgments.7

Finally, Hermitage does not appear to have been forum shopping in
No. 02-60201

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coming to federal court; rather, it wished to resolve an issue

that had been pending in state court for two years. Though the

state-court suits contained the same issues as the federal suit

and dealt exclusively with state law, the district court properly

weighed the factors for and against abstention and determined

that it need not dismiss this action. 

B. Summary Judgment Motions 

We next consider whether the district court erred in

granting Hermitage’s motion for summary judgment and denying

Brewer and Goodman’s motion for summary judgment. Because the

material facts are undisputed, we are called upon to construe the

meaning of the Hermitage policy as a matter of law.

Before we construe the terms of the policy, we must consider

whether the settlement agreement and consent judgment in state

court preclude a finding of liability against Hermitage. Brewer

and Goodman argue that the district court erred in determining

that because the state-court settlement absolves all alleged

insureds of personal liability, Hermitage has no liability for

coverage. The district court did not err. According to the

policy, Hermitage “will pay those sums that the insured becomes

legally obligated to pay as damages because of ‘bodily injury’ or

‘property damage’ to which insurance applies.” The Settlement

Agreement states that Roger Creger, Randy Creger, and Future

Energy are not personally liable for the settlement amount in the
No. 02-60201

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8 The settlement agreement states that Future Energy,

Roger Creger, and Randy Creger 

agree[] to accept[] a settlement of these actions with

plaintiffs for the One Million Dollars ($1,000,000.00)

in liability limits under the Hermitage Policy. In

exchange for this agreement, plaintiffs will not seek

to recover from Future Energy, Inc., Roger Creger[,]

and Randy Creger, any of the funds dedicated to payment

under this Settlement Agreement in the event of a final

adjudication that coverage does not exist under the

Hermitage Policy. 

9 Jones is factually similar to this case. The Jones

plaintiffs settled their state-court suit with the insured and

one insurance company, but a second insurance company,

Underwriters, did not participate in the settlement negotiations

or consent to the settlement agreement. See 888 F.2d at 359-61. 

We found that because personal liability was a condition

precedent to coverage, Underwriters was not liable to pay the

settlement amount, even if there was coverage under the policy. 

See id. at 361-62. We then noted that “[t]he only circumstance

in which Underwriters can be bound by the agreed judgment” is if

it waived its right to rely on the policy condition because it 

breached a duty to its insured, such as the duty to defend. Id.

event that there is no coverage under the Hermitage policy.8 We

have previously encountered this situation. In Jones v. Southern

Marine & Aviation Underwriters, Inc., we held that under

Mississippi law, when personal liability of an insured is a

condition of coverage and the insured is not personally liable

under a settlement agreement, the insurer is not obligated to pay

third-party victims under the settlement agreement.9 See 888

F.2d 358, 361 (5th Cir. 1989); see also Putman v. Ins. Co. of N.

Am., 673 F. Supp. 171, 177 (N.D. Miss. 1987), aff’d, 845 F.2d

1020 (5th Cir. 1988) (under Mississippi law, an agreement that

removed personal liability of insured over a set amount also
No. 02-60201

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10 We have further explained that under Mississippi law,

an insurer that breached its duty to defend will be liable for

any settlement agreement up to the policy limits, but will not be

liable for settlement costs or other consequential damages. See

Liberty Mut. Fire Ins. Co. v. Canal Ins. Co., 177 F.3d 326, 336-

39 (5th Cir. 1999). Brewer and Goodman only claim coverage up to

the policy limits in this case.

11 Hermitage argues that under Mississippi law, an insurer

may not waive a condition that relates to policy coverage and the

policy in this case conditions coverage on an insured’s personal

liability. Hermitage is correct that under Mississippi law,

conditions impacting coverage generally may not be waived by

removed obligation of the insurer to pay because the insurance

policy provided coverage only if the insured was liable). Roger

Creger, Randy Creger, and Future Energy are not “legally

obligated to pay” any sum, so the district court correctly found

that under the terms of the policy, Hermitage cannot be found

liable for coverage. 

Brewer and Goodman argue that Hermitage may nonetheless be

liable for the settlement amount if Hermitage breached its duty

to defend. The district court agreed. The district court was

correct, for under Mississippi law, “when an insurer breaches its

duty to defend an insured, the insurer is liable and bound by any

settlement agreements made by the insured as a result of this

breach.”10 Miss. Ins. Guaranty Ass’n v. Byars, 614 So. 2d 959,

964 (Miss. 1993); see also Jones, 888 F.2d at 362. An insurer

that breaches its duty to defend may be found liable for a

settlement even if the settlement absolves the insured of

personal liability.11 See Jones, 888 F.2d at 362. 
No. 02-60201

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implication. See, e.g., Yazoo County v. Int’l Surplus Lines Ins.

Co., 616 F. Supp. 153, 156 (S.D. Miss. 1985). Yet, we have

specifically held that under Mississippi law, an insurer waives a

policy condition requiring personal liability when it breaches

its duty to defend. See Jones, 888 F.2d at 361-62. Hermitage’s

argument is thus without merit. 

An insurer has a duty to defend if the pleadings in a

lawsuit against an insured arguably state facts that bring the

claimed injury within the policy coverage. See Mulberry Square

Prods., 101 F.3d at 421. “Ultimate liability by the insurer is

not dispositive of its duty to defend. . . . [T]he insurer has a

duty to defend when there is any basis for potential liability

under the policy.” Merchants Co. v. Am. Motorists Ins. Co., 794

F. Supp. 611, 617 (S.D. Miss. 1992). 

1. Duty to Defend Randy Creger and Future Energy 

We now consider whether Hermitage breached its duty to

defend Randy Creger and Future Energy. Brewer and Goodman

contend that the district court erred in finding that Randy

Creger and Future Energy are not insureds under the Hermitage

policy. The district court found that Randy Creger is not an

insured because he is not one of Roger Creger’s employees. The

district court also found that Future Energy was not an insured

under the policy because the policy only extends to Roger Creger

and Future Energy is a separate legal entity. We agree. 

The insurance policy lists, as named insureds, the

Association for Independent Managers and twenty-three
No. 02-60201

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individuals, including Roger Creger, who were added by

endorsement. Randy Creger and Future Energy are not named

anywhere in the policy.

Brewer and Goodman argue that Future Energy is an insured

under the policy because coverage extends to businesses that are

solely owned by an insured. The policy states: “If you are

designated in the Declarations as[] [a]n individual, you and your

spouse are insureds, but only with respect to the conduct of a

business of which you are the sole owner.” Brewer and Goodman

read this language to say that both Roger Creger and any business

over which he is the sole owner are insureds. Yet, the policy

language clearly states that Roger Creger is the insured and he

is only covered for activities relating to his wholly-owned

business. Future Energy is not itself an insured; claims against

Future Energy, a separate legal entity, are not covered under the

policy.

Brewer and Goodman argue that Randy Creger is covered by the

policy because he is an employee of Roger Creger. The policy

states that coverage extends to “[y]our employees . . . but only

for acts within the scope of their employment . . .” The statecourt complaints refer to Randy Creger as an employee of Future

Energy, not of Roger Creger. Further, the only evidence on

whether Randy Creger was an employee of Roger Creger was Randy

Creger’s testimony, in which he stated that he was an employee of
No. 02-60201

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12 Because Roger Creger was not Randy Creger’s employer,

we need not consider whether Randy Creger was acting within the

scope of his employment.

13 Brewer and Goodman do not argue on appeal that there is

coverage for the breach-of-contract or punitive damages claims. 

Thus, the only issue remaining is whether the professional

services exclusion bars the negligence claim against Roger

Creger.

Future Energy, not Roger Creger. Future Energy is not an

insured, so Randy Creger is not covered by the policy.12 Thus,

the district court correctly found that there was no breach of

the duty to defend with respect to Randy Creger and Future

Energy. 

2. Duty to Defend Roger Creger

Finally, we consider whether Hermitage breached its duty to

defend Roger Creger. The parties agree that Roger Creger is an

insured under the policy. The parties disagree as to whether the

policy’s professional services exclusion bars coverage in this

case.13 The exclusion makes coverage inapplicable to claims

“arising out of the rendering or failure to render any

professional services” including “[s]upervisory, inspection or

engineering services.” The district court found that the

professional services exclusion bars coverage because all of the

claims arise out of services Roger Creger, Randy Creger, and

Future Energy provided that required specialized skill and

expertise. We agree.

Under Mississippi law, a “professional service” is one
No. 02-60201

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“arising out of a vocation, calling, occupation, or employment 

involving specialized knowledge, labor, or skill, and the labor

or skill involved is predominately mental or intellectual, rather

than physical or manual.” Burton v. Choctow County, 730 So. 2d

1, 5-6 (Miss. 1997); see also Titan Indem. Co. v. Williams, 743

So. 2d 1020, 1025-26 (Miss. Ct. App. 1999). In determining

whether an act is of a professional nature, Mississippi courts

“look not to the title or character of the party performing the

act but to the act itself.” Burton, 730 So. 2d at 7 (quoting

Marx v. Hartford Accident & Indem. Co., 157 N.W.2d 870, 872 (Neb.

1968)). 

Whether a claim arises from a professional service is

determined from the allegations in Brewer’s and Goodman’s statecourt complaints. The complaints allege that Roger Creger was

himself negligent and that he is responsible for Randy Creger’s

negligence through the doctrine of respondeat superior. Because

we found that Future Energy, not Roger Creger, was Randy Creger’s

employer, Roger Creger likely is not liable for Randy Creger’s

torts. Nonetheless, we will consider whether claims against both

Roger and Randy Creger were due to injuries caused during the

performance of professional services. 

The complaints state that Future Energy, Roger Creger, and

Randy Creger, based on their “skill, training[,] and expertise,

had a duty to design a safe cleaning product to be used” and that
No. 02-60201

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14 In their state-court complaints, Brewer and Goodman

characterize the contract as one “for the supervision and

expertise required in overhauling Entergy’s 500,000 volt

electrical breakers” and state that the contract required a onsite Future Energy consultant to “provid[e] instructions to the

employees of Entergy as to the construction work[] [and] to

ascertain and assure that the construction work was progressing

in strict accordance with the plans and specifications of such

work on such a hazardous activity.” The complaints also state,

“Under said contractual arrangement and agreement, the Defendant

Future [Energy], through its agent and employee in the capacity

of Field Service Engineer, Defendant Randy Creger, designated

supplies, supervised[,] and instructed the employees of Energy in

the repairs of said breakers.” 

they are liable for their “failure to designate a safe cleaning

solvent,” “failure to exercise ordinary care based on [their]

expertise and training, to know that the denatured alcohol was

inappropriate,” “failure to warn Plaintiff of the dangers of the

use of the denatured alcohol,” “failure to foresee that the

denatured alcohol was subject to sparking,” “failure to supervise

the work with proper safety,” and “failure to follow proper

electrical safety practices.” All of the allegations relate to

decisions the defendants made based on their expertise in

handling high-voltage breakers. The complaints do not allege

negligence based on what a reasonable person would have done

under the circumstances. 

Further, the claims arise out of the Future Energy-Entergy

contract, in which Future Energy agreed to furnish consulting

services to Entergy and Entergy agreed to have its employees

perform physical maintenance on the breakers.14 The basis for
No. 02-60201

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the contract is that Future Energy has specialized expertise

about high-voltage electrical breakers that even Entergy, a

utility company, did not have. The fact that specialized

expertise was essential to the performance of the contract shows

that the contract was for “professional services.” See Burton,

730 So. 2d at 7-8 (finding that activities a layperson could

perform without special training, such as bathing another person,

are not “professional services”); cf. Thermo Terratech v. GDC

Enviro-Solutions, Inc., 265 F.3d 329, 336 (5th Cir. 2001)

(finding that under Louisiana insurance law, an act that could

have been done by an unskilled or untrained employee is not a

“professional service”). Roger Creger, Randy Creger, and Future

Energy were responsible for giving advice on how maintenance

should be done; they were not hired to actually do the

maintenance. See Cochran v. B.J. Servs. Co. USA, 302 F.3d 499,

507 (5th Cir. 2002) (holding, under Louisiana law, that a

contract that did not “provide[] any instruction, specialized or

otherwise, to contractors on how to accomplish any particular

job” was not a contract for “professional services”). All of the

activities that Brewer and Goodman allege Roger Creger

negligently performed or was responsible for another performing

are thus “professional services.”

Brewer and Goodman contend that Roger Creger and Randy

Creger could not offer “professional services” because they do
No. 02-60201

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15 For example, the complaints state that: 

Randy Creger[] held himself out to Plaintiff to be an

expert in this field and has specialized knowledge of

high[-]voltage electrical breaker repairs and the

associated activity thereof. . . .

Randy Creger knew, or by the nature of his training and

expertise, should have known that the denatured alcohol

which he specifically designated for Plaintiff to use

in the cleaning of the breaker had a flashpoint of 54

degrees and that the static electricity of the heavy

voltage nearby was subject to sparking and flaming up

said alcohol. . . .

Defendants, based upon their skill, training[,] and

expertise, had a duty to design[ate] a safe cleaning

product to be used for such cleaning adjacent to high

voltage lines.

not have advanced degrees. Under Mississippi law, though, a

person is not required to have formal training before he can

render a “professional service.” See Burton, 730 So. 2d at 8. 

Rather, a person need only have specialized expertise or skill

that is predominantly mental or intellectual. See Burton, 730

So. 2d at 5-6. There is ample testimony that Roger Creger and

Randy Creger developed years of on-the-job experience to become

experts in handling electrical breakers. Indeed, the state-court

complaints consistently refer to Roger Creger and Randy Creger as

experts.15

Brewer and Goodman argue that the professional services

exclusion is ambiguous because the title of the exclusion

suggests that it only applies to engineers, architects, or

surveyors, while the text of the exclusion is more broad, and

that this ambiguity should be resolved in their favor. The mere
No. 02-60201

-20-

fact that the parties disagree about the meaning of a provision

does not make the provision ambiguous. Burton, 730 So. 2d at 6. 

The term “professional services” has a well-defined meaning under

Mississippi law. See Burton, 730 So. 2d at 5-6 (Miss. 1997)

(adopting definition used by several other states); Shelton v.

Am. Ins. Co., 507 So. 2d 894, 896 (Miss. 1987). Further, while

the exclusion’s title refers only to “engineers, architects, and

surveyors,” the language of the exclusion clearly refers to all

“professional services,” including, but not limited to,

activities such as engineering and surveying. See Winter Garden

Ornamental Nursery, Inc. v. Cappleman, 201 So. 2d 479, 480 (Fla.

Ct. App. 1967) (stating the “general rule” that while a caption

may be used to explain an ambiguity in the “operative part of the

clause,” it should not be used to “create ambiguity where none

exists”). Many courts have considered the exact language at

issue here and have concluded that the exclusion is not limited

to engineering, architectural, and surveying services. See,

e.g., Cochran, 302 F.3d at 502-08 (interpreting Louisiana law);

Prisco Serena Sturm Architects, Ltd. v. Liberty Mut. Ins. Co.,

126 F.3d 886, 892-93 (7th Cir. 1997) (interpreting Illinois law);

Harbor Ins. Co. v. OMNI Constr., Inc., 912 F.2d 1520, 1522-25

(D.C. Cir. 1990) (interpreting District of Columbia law). The

exclusion is not ambiguous. 

Finally, Brewer and Goodman suggest that the policy coverage
No. 02-60201

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is illusory if the professional services exclusion applies in

this case. Though the exclusion bars coverage for claims arising

from bad consulting advice, it does not bar coverage for other

claims arising from Roger Creger’s business operations, such as

claims for personal injuries on business premises or property

damage to business premises. See Prisco Serena Sturm Architects,

126 F.3d at 893 (explaining the difference between comprehensive

general liability coverage and professional liability coverage in

a case with facts similar to this one). Brewer and Goodman also

cite evidence that Roger Creger and Entergy believed the

Hermitage policy was sufficient to cover any claims arising out

of Future Energy’s contract with Entergy. Roger Creger’s and

Entergy’s beliefs are insufficient to show coverage when there is

no coverage under the policy’s terms. The district court did not

err in finding that the professional services exclusion bars

claims against Roger Creger so that Hermitage did not breach its

duty to defend him. 

IV. CONCLUSION

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

Brewer’s and Goodman’s motion to dismiss and motion for summary

judgment and grant of Hermitage’s motion for summary judgment are

AFFIRMED.