                                                            United States Court of Appeals
                                                                     Fifth Circuit
                   UNITED STATES COURT OF APPEALS
                        for the Fifth Circuit                    FILED
                                                                 April 20, 2007

                                                           Charles R. Fulbruge III
                                No. 06-30492                       Clerk


In Re: In the Matter of: SOUTH LOUISIANA SUGARS COOPERATIVE INC,
  as Owner/Operator of the 1937 155' Dock Barge for Exoneration
                 From or Limitation of Liability
                        ------------------
SOUTH LOUISIANA SUGARS COOPERATIVE INC, as Owner/Operator of the
                      1937 155' Dock Barge,

                 Third Party Plaintiff - Appellant,


                                   VERSUS


                        AUDUBON INSURANCE GROUP,

                 Third Party Defendant - Appellee.



            Appeal from the United States District Court
               for the Eastern District of Louisiana

Before REAVLEY, DeMOSS, and BENAVIDES, Circuit Judges.

DeMOSS, Circuit Judge:

     This is an action in which the Appellant, South Louisiana

Sugars   Cooperative,    Inc.    (“SLSC”),   sought   coverage     from        the

Appellee,   Audubon Insurance Group (“Audubon”), under a commercial

general liability policy after SLSC was sued for personal injuries

by a third party. Audubon asserts two exclusions within the policy

apply to deny all coverage. The district court granted summary

judgment in favor of Audubon, and SLSC now appeals. For the

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following reasons, we VACATE the decision of the district court and

remand for further proceedings.

                I. Factual and Procedural History

     The facts of this case are not disputed. Trevor Barnes, an

employee of Acadia Labor Services ("Acadia"), was injured while

aboard a dock barge owned by SLSC. Barnes sued SLSC, and SLSC filed

a limitation action and a third-party complaint against Audubon.

SLSC claimed that Audubon's commercial general liability policy

provided coverage for Barnes' personal injury claims. Audubon

denied any obligation by asserting that either the "employee"

exclusion and/or the "watercraft" exclusion applied to Barnes'

claims.

     Both parties moved for summary judgment. The court granted

Audubon's motion based on the employee exclusion after determining

that Barnes was a “leased worker” and therefore an employee of SLSC

as defined by the policy. The court did not discuss whether the

watercraft exclusion would have alternatively served as adequate

grounds for summary judgment.

     SLSC moved for reconsideration and additionally presented new

evidence in the form of an affidavit that would have supported an

alternate theory that Barnes was a "temporary worker" and not a

"leased worker" under the policy. The court denied the motion for

reconsideration and refused to consider the new affidavit because

SLSC did not provide any explanation for not previously producing

the new evidence.

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     SLSC now appeals both the grant of Audubon's motion for

summary     judgment   and   the   denial     of   SLSC's   motion    for

reconsideration. On appeal, Audubon argues that the watercraft

exclusion could serve as alternate grounds for affirming the

district court.

                             II. Discussion

     A. Standard of Review

     A district court's grant of summary judgment is reviewed de

novo. Consumers County Mut. Ins. Co. v. P.W. Trucking & Sons, 307

F.3d 362, 365 (5th Cir. 2002). Summary judgment is proper when the

“pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

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

     B.   The Employee Exclusion

     The insurance policy excludes coverage for bodily injuries to

employees. The term "employee" is defined to include a "leased

worker." The policy defines "leased worker" as:

     "Leased worker" means a person leased to you by a labor

     leasing firm under an agreement between you and the labor

     leasing firm, to perform duties related to the conduct of

     your    business.   "Leased   worker"     does   not   include

     "temporary worker."1


     1
      “Temporary worker” is defined as a person who is furnished
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     The following evidence was submitted to the court through

affidavits and is not disputed by the parties:

     (1)   Acadia and SLSC had a verbal agreement under which

     Acadia agreed to supply labor workers to SLSC to provide

     stevedoring services;

     (2)   As a condition of the verbal agreement between SLSC

     and   Acadia,    Acadia   was   required   to   provide    general

     liability coverage for at least $1,000,000 and maintain

     workers’ compensation insurance on its employees;

     (3)   Acadia decided which employees went to work for SLSC

     and also provided an on-site supervisor to oversee its

     employees at SLSC's facilities;

     (4)   Acadia submitted weekly invoices to SLSC;

     (5)   Barnes was employed by Acadia at the time of the

     accident;

     (6)   Acadia retained all rights to hire or fire Barnes,

     paid Barnes’ salary, and maintained workers’ compensation

     insurance for Barnes; and

     (7)   Pursuant to the policy issued to Acadia, Louisiana

     Workers     Compensation     paid    benefits    to   Barnes    in

     connection      with   his   injuries   sustained     at    SLSC’s

     facilities.



to SLSC either (1) as a substitute for a permanent employee, or (2)
to meet seasonal or short-term workload conditions.
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       Based on this evidence alone, the district court determined

Acadia to be a labor leasing firm and Barnes to be a leased worker

pursuant to the oral agreement between Acadia and SLSC. We are

unconvinced that this evidence, without further development, is

sufficient to establish as a matter of law that Barnes is a leased

worker as defined by the policy. Therefore we remand this issue to

the district court for further proceedings.

       C.        The Watercraft Exclusion

       The       district     court   did     not      address    whether,    in     the

alternative, coverage for Barnes’ injuries are excluded under the

policy’s         watercraft    exclusion.2       We     decline    to    address     the

applicability of this exclusion at this time in light of the fact

that       the   Louisiana     Supreme   Court        has   granted     certiorari    to

determine         if   the   language    of     this    watercraft      exclusion     is

ambiguous. See Henry v. S. La. Sugars Coop., Inc., 940 So. 2d 688

(La. Ct. App. 2006), rev. granted by 948 So. 2d 183 (La. Feb. 2,

2007). Therefore, on remand, the district court should take into

consideration the ruling of the Louisiana Supreme Court when

determining the applicability of this exclusion to the case at



       2
      This provision excluded coverage for bodily injury arising out
of the use or operation of any watercraft owned by SLSC. There
was an exception to the application of this exclusion, however, if
the watercraft is “ashore on premises” owned by SLSC. The parties
dispute whether the dock barge moored next to SLSC’s facility is
“ashore on premises” owned by SLSC.
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hand.

                        III.   Conclusion

     For the foregoing reasons we VACATE the order of the district

court granting summary judgment in favor of Audubon and REMAND for

further proceedings.




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