## REVISED, FEBRUARY 5, 1998

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-10779

_______________________

AMERICAN STATES INSURANCE COMPANY,

Plaintiff-Appellee,

Cross Appellant,

and

NORTH RIVER INSURANCE CO; UNITED STATES FIRE

INSURANCE COMPANY; WESTERN WORLD INSURANCE COMPANY, INC.

Intervenor Plaintiffs-Appellees

Cross Appellants,

versus

H. BARRY BAILEY, ET AL.,

Defendants,

H. BARRY BAILEY,

Defendant-Appellee,

CASSIE E. ALLBAUGH; CANDIS WHITE; ALLISON LOVETT;

GINGER PIERSON; JAYNE GARDNER; RUBY WOOLRIDGE;

PATCHEZ FOX WELDON HAYNES, Reverend;

WILLIAM LONGSWORTH, Reverend;

THE FIRST UNITED METHODIST CHURCH OF FORT WORTH, INC.;

KAY JOHNSON; DORAYNE LEVIN; GAIL COOKE; J. CHARLES SHELLEY,

Intervenor Defendants-Appellants

Cross Appellees.

_________________________________________________________________

Appeals from the United States District Court

for the Northern District of Texas

_________________________________________________________________ January 30, 1998* District Judge for the Northern District of Texas, sitting

by designation.

1 The four associate ministers are the Reverends William

Longsworth, Weldon Haynes, Kay Johnson, and J. Charles Shelley.

2 BEFORE KING and JONES, Circuit Judges and KENDALL, District Judge. *

EDITH H. JONES, Circuit Judge:

T his declaratory judgment suit was filed by three

insurance carriers seeking a declaration that they have no duty to

either defend or indemnify their insureds for claims that stem from

alleg ations of sexual misconduct against the Reverend H. Barry

Bailey. The district court granted summary judgment for the

carriers. This appeal ensued. We find that the claims alleged

against the carriers’ insureds are excluded from coverage by the

policies at issue. Therefore, the carriers have no duty to defend

or indemnify their insureds, and we affirm.

I.

In February 1995, seven women (the “Allbaugh plaintiffs”)

filed suit in Texas district court against the Reverend H. Barry

Bailey alleging a variety of tort claims which all stemmed from

alleged sexual improprieties by Bailey. Bailey was the pastor-incharge of the First United Methodist Church of Fort Worth (“FUMC”).

In June 1995, Gail Cooke filed a separate suit in Texas

district court against Bailey, FUMC, and four associate ministers

of FUMC. 1 Her claims against Bailey were essentially the same as

those of the Allbaugh plaintiffs. Her claims against FUMC and the

four associate ministers were based on vicarious liability and the3

all egation that FUMC and the associate ministers knew or should

have known of Bailey’s conduct and should have attempted to stop or

warn Cooke of his behavior. In August 1995, Dorayne Levin

intervened in Cooke’s state court suit.

In May 1995, American Stat es Insurance Co. (“American

States”) filed this declaratory judgment acti on in federal court

under diversity jurisdiction. In July 1995, North River Insurance

Co. and United States Fire Insurance Co. (collectively “Crum &

Forster”) intervened in American States’s declaratory judgment

action. Western World Insurance Co. (“Western World”) also

intervened in July 1995. The Allbaugh plaintiffs, Cooke, Levin,

FUMC, and the four associate ministers were all eventually joined

as defendants in this federal suit. In May 1996, the district

court granted the insurance carriers’ motions for summary judgment,

finding that they had a duty neither to defend nor to indemnify

their insureds (Bailey, FUMC, and the four associate m inisters)

against the claims of the Allbaugh plaintiffs, Cooke, and Levin.

The Allbaugh plaintiffs, Cooke, Levin, FUMC, and the four

associate ministers appealed the district court’s grant of summary

judgment. Before this court heard the case at oral argument, the

Allbaugh plaintiffs, Cooke, and Levin settled with Bailey.

Therefore, the only issues remaining before this court are Crum &

Forster’s and Western World’s duty to defend or indemnify FUMC and

the four associate ministers against the claims of Co oke and2 American States insured only Bailey and, therefore, is no

longer a party to this litigation.

The settlements between Bailey and Cooke and Levin included an

agreement not to pursue any actions against FUMC or the four

associate ministers for vicarious liability for Bailey’s conduct.

Cooke’s and Levin’s remaining claims against FUMC and the four

associate minister are listed in the next section of this opinion.

4 Levin. 2 Also before the court is the issue of whether the district

court erred in finding that the Allbaugh plaintiffs, Cooke, and

Levin are liable for all three insurance carriers’ court costs.

II.

Cooke’s and Levin’s specific claims against FUMC and the

four associate ministers are as follows:

1. intentional infliction of emotional and mental

distress

2. breach of fiduciary duty, for which fiduciary duty

is defined alternatively as the duty to discipline

a pastor, the duty of trust and confidence between

a parishioner and a pastor, or the duty to report

Bailey’s conduct to church authorities

3. negligent credentialing of Bailey

4. negligent hiring of Bailey

5. negligent assignment of pastoral charges to Bailey

6. negligent supervision of Bailey

7. negligent failure to wa rn others of known or

knowable harassing and abusive behavior by Bailey

8. negligent dereliction of duties as ordained

ministers and agents, servants, and employees of

the United Methodist Church

9. negligent counseling

Although Cooke and Levin have settled with Bailey, the ir claims

against him remain relevant to determining coverage as to FUMC and

the four associate ministers. Cooke’s and Levin’s specific claims

against Bailey are as follows:

1. battery

2. assault

3. false imprisonment

4. invasion of privacy5

5. intentional infliction of emotional and mental

distress

6. breach of fiduciary duty

7. negligence

8. negligent counseling

9. failure to warn plaintiffs of his sexual deviancy

10. defamation ( Cooke only )

The alleged facts underlying Cooke’s and Levin’s claims

against Bailey are also relevant to determining coverage. In

general, Cooke and Levin contend that “[b]etween 1976 and 1994 the

Reverend Barry Bailey continued to abuse his position as Pastor-inCharge of the First United Methodist Church of Fort Worth, Inc., to

force or induce women to engage with him in lewd, lascivious,

obscene, and immoral sexual conduct, sexual abuse, and sexual

harassment.” Cooke describes the specific facts underlying her

claims as follows:

3.15. During the 1976 to 1994 time-frame, Reverend

Bailey initiated conversations with her, in person and by

telephone, which were inappropriate, lewd, and obscene.

During these conversations, Reverend Bailey persisted in

inappropriate sexual discussions involving sexual

affairs, graphic sexual acts

. . . , g raphic sexual

language, and personally insulting sexual language.

3.16. Reverend Bailey also exposed [himself] to Ms.

Cooke on several occasions at the Church and even at the

parsonage with his own wife in the next room.

3.17. Reverend Bailey also accosted Ms. Cooke at

the Church on several occasions. In those encounters,

Reverend Bailey inappropriately grabbed private areas of

Ms. Cooke’s body and on s everal occasions physically

blocked her exit from offices or rooms on the Church

property, forcing himself and his comments upon her.

. . . .

3 .19. Gail Cooke recently became aware of

information which leads her to believe, and she does

allege, t hat Reverend Bailey has made slanderous and

defamatory statements about her to third pe rsons, such

statements being actionable under the legal theories of6

slander and defamation, for which she seeks recovery of

damages herein.

Plaintiff’s Third Amended Petition at 16-18. Levin describes the

specific facts underlying her claims as follows:

3.20. At approximately 11 a.m. on September 1,

1993, Intervenor [Levin] presented herself to Reverend

Barry Bailey for her meeting.

. . . During this meeting

with Reverend Bailey, Intervenor described that she was

a victim of childhood sexual abuse and had suffered

emotional and psychological injuries as a result of that

abuse. Intervenor also disclosed to Reverend Bailey her

sexual abuse by a therapist and her experiences which

followed from that abuse. Reverend Bailey showed great

interest in the specifics of how the therapist had abused

Intervenor. He also inquired and showed great interest

in how Intervenor’s husband had been abusive to her

during her marriage.

. . . .

3.22. Additionally, Reverend Bailey advised

Intervenor to “start s aying yes to people who ask you

out, and if a man wants to have s ex with you, it’s

probably normal. If it does not work out, say yes to the

next man who asks you out.” Reverend Bailey also advised

Intervenor to stop working on her sexual abuse counseling

project and “get a job” because “you can’t do anything to

stop this.” He also told Intervenor that he wanted to

meet with her again and to schedule another appointment.

First Amended Plea in Intervention of Dorayne Levin at 16-17.

III.

As an initial matter, Cooke and Levin argue that the

district court did not have jurisdiction to rule on the duty to

indemnify because the underlying state court suit had not reached

final judgment and, therefore, th ere was no justiciable

controversy. In the alternative, Cooke, FUMC, and the four

associate ministers argue that even if the district cou rt had3 Cooke, Levin, FUMC, and the four associate ministers do not

contest the jurisdiction of the district court to decide the issue

of the duty to defend.

7 jurisdiction, it should have abstained from exercising its

jurisdiction. 3

We review a district court’s determina tion that there

existed a justiciable controversy de novo. S ee Ynclan v.

Department of Air Force

, 943 F.2d 1388, 1390 (5th Cir. 1991). The

decision of a district court to exercise its declaratory judgment

jurisdiction is reviewed for abuse of discretion. See Wilton v.

Seven Falls Co., 115 S. Ct. 2137, 2144 (1995).

A.

A federal court may not i ssue a declaratory judgment

unless there exists an “actual controversy.” See Middle South

Energ y, Inc. v. City of New Orleans , 800 F.2d 488, 490 (5th Cir.

1986) (citing Maryland Cas. Co. v. Pacific Coal & Oil Co.

, 312 U.S.

270, 273 (1941)). An actual controversy may exist when an

insurance carrier seeks a declaratory judgment that it has a duty

neither to defend nor indemnify its insured in a state court action

that has not yet proceeded to judgment. S ee Western Heritage Ins.

Co. v. River Entertainment

, 998 F.2d 311, 315 (5th Cir. 1993). The

district court thus had jurisdiction to rule on the duty to

indemnify despite the fact that the underlying state court suit had

not yet reached final judgment.

B.

A district co urt has broad, but not unfettered,

discretion to retain or dismiss a declaratory judgment suit. See4 We have cautioned district courts to provide a written or

oral explanation for their decisions to grant or deny a motion to

dismiss a declaratory judgment action. S ee Travelers Ins. Co.

, 996

F.2d at 779 n.14. Nonetheless, in cases where the district court

did not o ffer an explanation, we have proceeded to engage in an

independent review of the relevant factors under Travelers

Insurance Co. to determine whether the distri ct court abused its

discretion in granting or denying the motion to dismiss. See id.

at 779. As in T ravelers Insurance Co.

, the district court in this

cas e offered no explanation for its decision to deny appellants’

motion to dismiss. See id. at 778-79. As in Travelers Insurance

Co.

, we have conducted an independent review of the six factors

relevant to the abstention doctrine in a declaratory judgment

action. S ee id

. at 779. We conclude that the district court did

not abuse its discretion in deciding to adjudicate this case on the

merits.

8 Wilton , 115 S. Ct. at 2144; T ravelers Ins. Co. v. Louisia na Farm

Bureau Fed’n, Inc.

, 996 F.2d 774, 778 (5th Cir. 1993). Under Texas

law, the duty to defend is broader than the duty to indemnify. S ee

Gulf Chem. & Metallurgical Corp. v. A ssociated Metals & Minerals

Corp.

, 1 F.3d 365, 369 (5th Cir. 1993). Logic and common sense

dictate that if there is no duty to defend, then there must be no

duty to indemnify. S ee Western Heritage Ins. Co.

, 998 F.2d at 315.

Given that the district court was going to decide the issue of the

duty to defend (the propr iety of which Cooke, FUMC, and the four

associate ministers do not question), it was not an abuse of

discretion for the district court also to decide the issue of the

duty to indemnify. 4

IV.

This court reviews a grant of summary judgment de novo.

See Canutillo Indep. Sch. Dist. v. National Union Fire Ins. Co.

, 99

F.3d 695, 700 (5th Cir. 1996). A district court’s interpretation

of an insurance contract is a question of law which this court also9

reviews de novo. See id . An insurer bears the burden of proving

that exclusions in the policy in question bar coverage for the

plaintiff’s claims. See id. at 701.

In this diversity case, Texas rules of c ontract

interpretation control. S ee id

. at 700. Under Texas law, the

interpretation of insurance contracts is governed by the same rules

that apply to contracts in general. S ee id. (citing Fo rbau v.

Aetna Life Ins. Co. , 876 S.W.2d 132, 133 (Tex. 1994)).

Ex ceptions and limitations in an insurance policy are

strictly construed against the insurer. S ee id. at 701 (citing

Kelly Assocs., Ltd. v. Aetna Cas. & Sur. Co ., 681 S.W.2d 593, 596

(Tex. 1984)). Therefore, this court “must adopt the construction

of an exclusionary clause urged by the insured as long as that

construction is not itself unreasonable, even if the construction

u rged by the insurer appears to be more reasonable or a more

accurate reflection of the parties’ intent.” Id. (quoting Barnett

v. Aetna Life Ins. Co

., 723 S.W.2d 663, 666 (Tex. 1987)). These

rules favoring the insured, however, are applicable only when there

i s an ambiguity in the policy; if the exclusions in question are

susceptible to only one reasonable interpretation, then these rules

do not apply. S ee id. (citin g National Union Fire Ins. Co. v.

Hudson Energy Co ., 811 S.W.2d 552, 555 (Tex. 1991)).

In determining an insurer’s duty to defend, Texas courts

utilize the “eight corners rule.” S ee National Union Fire Ins. Co.

v. Merchants Fast Motor Lines, Inc.

, 939 S.W.2d 139, 141 (Tex.

1997). Under this rule, an insurer’s duty to defend is determined5 All of Western World’s policies list two named insureds:

FUMC and First United Methodist Church of Fort Worth Foundation,

Inc. The latter is not a party to this litigation.

6 Cooke and Levin argue extensively in their briefs that the

four associate ministers are not insureds under Western World’s

commercial general liability policies, but rather “professionals

covered by the policy.” By making this distinction, Cooke and

Levin attempt to establish that the policies’ “sexual action”

exclusion is inapplicable to the four associate ministers because

the exclusion applies only to “insureds.” Cooke’s and Levin’s

argume nt is meritless based upon the simple and unambiguous

language of the policies.

10 by the language of the insurance policy and a liberal

interpretation of the allegations in the pleadings. See id. “In

reviewing the underlying pleadings, the court must focus on the

factual allegations that show the origin of the damages rather than

on the le gal theories alleged.” I d. (citing Adamo v. State Farm

Lloyds Co. , 853 S.W.2d 673, 676 (Tex. App.—Houston [14th Dist.]

1993, writ denied) (“It is not the c ause of action alleged that

determines co verage but the f acts giving rise to the alleged

actionable conduct.”)).

A. Western World Policies

Western World issued three commercial general liability

policies to FUMC. The policy numbers and coverage periods are as

follows: (1) GLA 328492, 11/11/91 to 11/11/92; (2) GLA 358038,

8/6/92 to 8/6/93; and (3) NGL 05750, 8/6/93 to 8/6/94. FUMC is the

only relevant named insured on each policy. 5 The four associate

ministers are insureds under each policy as either executive

officers or employees of FUMC. 6

Each policy contains the following exclusion:

SEXUAL ACTION EXCLUSION7 For the purposes of this discussion, the term “arising out

of” is indistinguishable from the term “arising from,” which is the

term used in Western World’s “sexual action” exclusion.

11 It is agreed that no coverage exists for claims or

suits brought against any insured for damages arising

from sexual action. Sexual action includes, but is not

limited to, any behavior with sexual connotation or

purpose—whether performed for sexual gratification,

discrimination, intimidation, coercion or other reason.

It is further agreed th at this exclusion applies

even if an alleged cause of the damages was the insured’s

negligent hiring, placement, training, supervision, act,

error or omission.

Cooke, Levin, FUMC, and the four ass ociate ministers argue that

this exclusion does not preclude coverage for Cooke’s and Levin’s

claims against FUMC and the four associate ministers. They are

incorrect.

The plain meaning of “sexual action” as described in the

exclusion includes all of Bailey’s misconduct. It is impossible to

characterize Bailey’s behavior as other than having a “sexual

connotat ion or purpose” and being “performed for sexual

gratification.” The exclusion establishes very broad parameters

for acts that fall within its compass by using the words, “[s]exual

action includes, but is not limited t o,” and Bailey’s actions

toward Cooke and Levin unambiguously fall within those parameters.

This court has held that the words “arising out of,” 7

when used within an insurance policy, are “broad, general, and

comprehensive terms effecting broad coverage.” R ed Ball Motor

Freight, Inc. v. Employers Mut. Liab. Ins. Co. , 189 F.2d 374, 378

(5th Cir. 1951). The words are “understood to mean ‘originating

from,’ ‘having its origin in,’ ‘growing out of’ or ‘flowing from.’”12

Id. ; s ee also Continental Cas. Co. v. City of Richmond

, 7 63 F.2d

1076, 1080-81 (9th Cir. 1985) (applying Red Ball ’s interpretation

of the term “arising out of,” and concluding that a claim need only

bear an “incidental relationship” to the excluded injury for the

policy’s exclusion to apply). Without Bailey’s sexual misconduct,

Cooke and Levin w ould have no claims against FUMC and the four

associate ministers. Every alleged harm caused to Cooke and Levin

by FUMC and the four associate ministers stems from and is

integrally related to Bailey’s acts. Therefore, we agree with the

d istrict court that all of the factual allegations that under lie

Cooke’s a nd Levin’s legal claims against FUMC and the four

associate ministers arise out of Bailey’s sexual actions, thereby

precluding coverage under Western World’s policies.

In Old Republic Insurance Co. v. Comprehensive Health

Care Associates, Inc.

, 2 F.3d 105, 108-09 (5th Cir. 1993), this

court hel d that claims for negligence per se, ratification,

negligent hiring, and negligent supervision against an employer for

the sexual misconduct of its employee were barred from coverage by

the following exclusion:

In consideration of the premium charge, it is agreed

that such coverage as is provided by this policy shall

not apply to any claim, deman d and causes of action

arising out of, or resulting from

. . . sexual abuse

. .

. whether caused by, or at the instigation of, or at the

direction of, or omission by, the Insured, his employees,

patrons or any causes whatsoever.

Id. at 108. This “sexual abuse” exclusion is sufficiently similar

to the “s exual action” exclusion in Western World’s policies to

draw a close parallel between Old Republic and the case before us.8 All of Crum & Forster’s policies list two named insureds:

F UMC and First United Methodist Church of Fort Worth Foundati on, Inc. The latter is not a party to this litigation.

13 Although Cooke and Levin allege a litany of causes of action

against FUMC and the four associate ministers that were not alleged

in Old Republic , the fundamental reasoning of Old Republic that a

broadly worded “se xual abuse” exclusion is not to be narrowly

construed remains applicable. Western World has no duty to defend

or to indemnify FUMC or the four associate ministers against any of

Cooke’s or Levin’s claims.

In addit ion, we note that many of Cooke’s and Levin’s

claims are expressly excluded from coverage bec ause the alleged

causes of damages included FUMC’s and the four associate ministers’

“negligent hiring, placement, training, supervision, act, error or

omission.”

B. Crum & Forster Policies

Crum & Forster issued two types of policies to FUMC, a

general liability policy and a workers’ compensation and employers’

liability policy. 8 In total, Crum & Forster issued five policies

to FUMC. Each policy issued is briefly outlined below:

1. General Liability Policy

A. Policy # 503-11-6391

(1) Coverage period: 8/6/93 to 8/6/94

(2) Issued by: U.S. Fire Insurance Co.

2. Workers’ Compensation and Employers’ Liability Policies

A. Policy # 408-52-45-28

(1) Coverage period: 8/6/90 to 8/6/91

(2) Issued by: U.S. Fire Insurance Co.

B. Policy # 408-52-46-57

(1) Coverage period: 8/6/91 to 8/6/92

(2) Issued by: U.S. Fire Insurance Co.

C. Policy # 405-52-47-41

(1) Coverage period: 8/6/92 to 8/6/939 The policy defines “bodily injury” as “bodily injury,

s ickness or disease sustained by a person, including death

resulting from any of these at any time.”

14 (2) Issued by: North River Insurance Co.

D. Policy # 408-52-48-09

(1) Coverage period: 8/6/93 to 8/6/94

(2) Issued by: North River Insurance Co.

The general liability policy contained two types of coverage.

Coverage A provided coverage for damages resulting fr om bodily

injury, and Coverage B provided coverage for damages resulting from

personal injury.

1. General Liability Policy

(a). Coverage A

Coverage A insures against damages resulting from bodily

injury caused by an “occurrence.” 9 “Occurrence” is defined as “an

accident, including continuous or repeated exposure to

substantially the same general harmful conditions.” Because none

of Bailey’s actions were ac cidental, it follows that no coverage

exists for any of Cooke’s and Levin’s claims against FUMC and the

four associate ministers.

Under Texas law, where a third-party’s li a bility is

related to and interdependent on other tortious activities, the

ultimate issue is whether the underlying tortious activities are

encompassed within the definition of “occurrence.” See Cornhill

Ins. PLC v. Valsamis, I nc. , 106 F.3d 80, 87 (5th Cir. 1997); N ew

York Life Ins. Co. v. Travelers Ins. Co.

, 92 F.3d 336, 339 (5th

Cir. 1996). An insurer has no duty to defend or to indemnify its

insured against claims that could not be brought absent the1 0 The policy defined “occurrence” as “an accident, including

continuous and repeated exposure to conditions, which results in

bodily injury or property damage neither expected or intended from

the standpoint of the insured . . . .”

15 und erlying and excluded tortious activities. S ee Cornhill Ins.

PLC , 106 F.3d at 87; New York Life Ins. Co. , 92 F.3d at 339. For

instance, in New York Life Ins. Co. v. Travelers Ins. Co.

, New York

Life was sued for the negligent hiring, training, and supervision

of one its employees, who allegedly defrauded a New York Life

client. S ee New York Life Ins. Co. , 92 F.3d at 337, 340. The

court found that the employee’s underlying fraudulent acts were not

an “occurrence” under the policy. 10 S ee id. at 339. Consequently,

the court held that the claims against New York Life were excluded

from coverage because “[a] claim against a principal is ‘related’

to and ‘interdependent’ on a clai m against an agent if the claim

against the principal would not exist absent the claim against the

agent.” Id. at 340.

All of Cooke’s and Levin’s claims against F UMC and the

four associate ministers either require proof of misconduct by

Bailey or are related to and interdependent on Bailey’s sexual

misconduct. The basic factual allegation underlying every claim in

this lawsuit is that Bailey enga ged in inappropriate sexual

behavior with Cooke and Levin. While the alleged failure of FUMC

and the four associate ministers to adequately respond to Bailey’s

conduct m ay have exacerbated Cooke’s and Levin’s injuries, there

would have been no injuries at all absent Bailey’s improper acts.

Therefore, if Bailey’s conduct is excluded from coverage, then so1 1 We note that an intentional act and the intent to cause

injury are two distinct concepts. S ee Trinity Ins. Co.

, 945 S.W.2d

at 828 n.6. Our analysis, therefore, does not touch upon an

insurance policy’s language dealing with intentional injury.

16 are all of Cooke’s and Levin’s claims against FUMC and the four

associate ministers.

The Texas Supreme Court has held that a person’s acts are

not accidental when he commits an intentional act that results in

injuries that ordinarily follo w from or could be reasonably

anticipated from the intentional act. See Trinity Universal Ins.

Co. v. Cowan

, 945 S.W.2d 819, 827-28 (Tex. 1997). Although a

person may not intend the harm caused by his acts, if the harm is

a natural or probable result of those acts, they are not caused by

an “accident.” 1 1 S ee id. It is impossible not to conclude that

Bailey’s acts were intentional. For example, one cannot

“accidentally” expose oneself to a parishioner during a counseling

session. Appellants produce no evidence that Bailey did not intend

to engage in sexually inappropriate behavior with them. Their

artful pleading s uggesting that Bailey’s acts were negligent or

reckless cannot overcome the basic facts underlying their claims.

In short, Crum & Forster has no duty to defend or to

indemnify FUMC or the four as sociate ministers under Coverage A.

All of Cooke’s and Levin’s claims against FUMC and the four

associate ministers are related to and interdependent on Bailey’s

sexual actions, which were not “occurrences” as defined by the

policy.

(b). Coverage B1 2 The policy defines “personal injury” as “injury, other than

‘bodily injury,’ arising out of one or more of the following

offenses: (a) False arrest, detention or imprisonment; . . . (d)

Oral or written publication of material that slanders or libels a

person or organization or disparages a person’s or organization’s

goods, products or services; or (e) Oral or written publication of

material that violates a person’s right of privacy.”

17 Coverage B insures against damages resulting from

personal injury. 12 Because neither Cooke nor Levin allege any

facts or claims against FUMC and the four associate ministers

based upon “personal injury” as defined by the policy, we find no

duty to defend or to indemnify on the part of Crum & Forster

under Coverage B.

2. Workers’ Compensation and Employers’ Liability Policies

Cooke, Levin, FUMC, and the four associate minsters

fail to argue in their briefs that the district court incorrectly

denied coverage under Crum & Forster’s Workers’ Compensation and

Employers’ Liability policies. Although each party explains in

its brief the contents of the policies and why the district court

held that there was no duty to defend or to indemnify under the

policies, they do not proceed to argue why or on what grounds the

district court’s finding was legally or factually incorrect.

Failure to provide any legal or factual analysis of an

issue results in waiver. See United States v. Green , 964 F.2d

365, 371 (5th Cir. 1992); see also Port Arthur Towing Co. v. John

W. Towing, Inc. , 42 F.3d 312, 319 (5th Cir. 1995) (holding that a

question posed for appellate review but not argued in the opening

brief is waived). Cooke, Levin, FUMC, and the four associate

ministers waived the issue of the duties to defend and indemnify18

under Crum & Forster’s Workers’ Compensation and Employers’

Liability policies.

V.

Finally, Cooke, Levin, FUMC, and the four associate

ministers argue that the district court erred in awarding court

costs to American States, Crum & Forster, and Western World as

the prevailing parties. We review a district court’s award of

court costs for abuse of discretion. See International Assoc. of

Machinists v. Texas Steel Co. , 538 F.2d 1116, 1121-22 (5th Cir.

1976). In the instant case, the district court did not abuse its

discretion in awarding court costs.

VI.

For the foregoing reasons, we AFFIRM the decision of

the district court.

AFFIRMED.