                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                   FILED
                                                         U.S. COURT OF APPEALS
                              No. 09-12385                 ELEVENTH CIRCUIT
                                                            DECEMBER 3, 2009
                          Non-Argument Calendar
                                                            THOMAS K. KAHN
                        ________________________
                                                                 CLERK

                     D.C. Docket No. 07-00221-CV-A-N

CONTINENTAL CASUALTY COMPANY,

                                                       Plaintiff-Appellant,

                                    versus

ALABAMA EMERGENCY ROOM
ADMINISTRATIVE SERVICES, P.C.,

                                                       Defendant-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       ________________________
                             (December 3, 2009)

Before CARNES, WILSON and COX, Circuit Judges.

PER CURIAM:

     Continental Casualty Company (“Continental”) filed this declaratory judgment

action against Alabama Emergency Room Administrative Services, P.C. (“the
Insured”), seeking a declaration that the Insured owed Continental additional

premium on a workers’ compensation insurance policy (“the Policy”). The Insured

provides medical staffing to hospital emergency rooms. Continental pursued its claim

on the theory that an initial premium for the Policy was calculated based on the

Insured’s statements regarding the remuneration paid its employees, but that the

doctors the Insured provided to cover shifts at hospital emergency rooms also should

be considered persons who could subject the Insured to workers’ compensation

liability and therefore their remuneration should be considered in the premium

calculation. The Insured argued that the physicians were independent contractors

rather than employees and, therefore, the doctors could not subject the Insured to

workers’ compensation liability and should not be included in the premium

calculation.

      The parties agreed to submit the case to the district court for resolution based

on agreed facts and briefs. The district court found that the Policy provided coverage

only for workers’ compensation claims by employees, and that the physicians in

question were not employees of the Insured. Therefore, it entered judgment in favor

of the Insured. Continental appeals.

      The parties disagree as to the proper standard of review. Continental argues

that the district court’s decision resolves questions of law and is, therefore, subject

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to de novo review. The Insured argues that, because this case originated as a suit for

declaratory relief, the abuse of discretion standard applies.

      “In Alabama, the interpretation of a contract, including an insurance contract,

is a question of law reviewed de novo.” Twin City Fire Ins. Co. v. Ohio Cas. Ins.

Co., 480 F.3d 1254, 1258 (11th Cir. 2007) (citing Royal Ins. Co. of Am. v. Whitaker

Contracting Corp., 242 F.3d 1035, 1040 (11th Cir. 2001)). This rule applies

notwithstanding the fact that the complaint seeks declaratory relief. See Federal

Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235, 1238 (11th Cir. 2000) (citation

omitted) (in declaratory judgment action, question of law is considered de novo).

      Under Alabama law, the district court’s determination that the emergency room

physicians are independent contractors rather than employees is a factual finding. See

Liberty Mut. Ins. Co. v. D & G Trucking, Inc., 966 So. 2d 266, 268 (Ala. Civ. App.

2006). Therefore, we review that decision for clear error. Fed. R. Civ. P. 52(a)(6).

      The Policy is titled “WORKERS COMPENSATION AND EMPLOYERS

LIABILITY INSURANCE POLICY.” (R.2-40, Ex. 36 at CNA0145). Part

One of the Policy is titled Workers Compensation Insurance. (Id.) Part Two of the

Policy is titled Employers Liability Insurance. (Id. at CNA0146.) The Policy

premium is calculated by multiplying a rate by “payroll and all other remuneration

paid or payable during the policy period for the services of:

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      1.     All [the Insured’s] officers and employees engaged in work
             covered by this policy; and

      2.     All other persons engaged in work that could make us liable
             under Part One (Workers Compensation Insurance) of this
             policy.”

(Id. at CNA0148.)

      Continental argues that, because Part One of the Policy not only indemnifies

the Insured for payment of all workers’ compensation benefits due but also states that

Continental has the “duty to defend at [its] expense any claim, proceeding or suit

against [the Insured] for benefits payable by this insurance,” (id. at CNA0145), the

premium should be calculated based on the remuneration payable not only to officers

and employees of the Insured but to all persons engaged in work that could make

Continental liable for the costs of defending a workers’ compensation lawsuit brought

by any such person.

      We disagree. What claims Continental has the duty to defend is not at issue in

this case.   The Policy states that premium is to be calculated based on the

remuneration payable to persons engaged in work “that could make [Continental]

liable” under the workers’ compensation part of the policy. (Id. at CNA0148.) We

read this phrase to mean that premium must be calculated based on remuneration

payable to persons who could be “due the benefits required . . . by the workers



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compensation law.” (Id. at CNA0145.) The parties do not dispute that, under

Alabama law, workers’ compensation is payable only to employees. Birmingham

Post Co. v. Sturgeon, 149 So. 74, 76 (Ala. 1933.) So, if the emergency room

physicians in question are not employees of the Insured, neither the Insured nor

Continental can be liable to them for payments required by the workers’

compensation laws. And, the premium cannot be calculated based on remuneration

payable to them by the Insured.

      Whether Continental’s duty to defend under Part One of the Policy arises when

a workers’ compensation plaintiff alleges, truthfully or not, that he is an employee of

the Insured is not relevant. To read this Policy to calculate premium based upon the

remuneration paid to the broad universe of persons who might claim to be employees

is not reasonable.

      We find no reversible error in the district court’s determination that the

physicians in question are not employees. First, we reject Continental’s argument

that the district court improperly assumed the role of Alabama state courts by making

the determination that the physicians were not employees. Continental filed this

action seeking a declaration that the Insured owed Continental premium. In order to

determine whether Continental was due the premium, the district court had to

determine whether the physicians were employees (and therefore persons who might

                                          5
be entitled to benefits under the workers’ compensation law). And, we find no clear

error in the district court’s finding that the physicians were not employees of the

Insured. Applying the “right to control” test that Alabama courts use to determine the

existence of an employer-employee relationship, the district court’s order extensively

analyzes the facts of the Insured-physician relationship (see R.6-63 at 13-21) and

concludes that the facts do not evidence the sort of control necessary to establish an

employment relationship. (Id. at 21.) There are facts in the record which support the

district court’s finding, not the least of which is that the contract between the Insured

and each physician identifies the relationship as an independent contractor

relationship in which the physician has no right to workman’s compensation. (See

id. at 14-15.)

      We affirm the judgment.

      AFFIRMED.




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