     Case: 13-31125     Document: 00512700230      Page: 1   Date Filed: 07/16/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                  Fifth Circuit

                                                                        FILED
                                                                      July 16, 2014
                                    No. 13-31125
                                                                      Lyle W. Cayce
                                                                           Clerk
WISZNIA COMPANY, INCORPORATED, doing business as Wisznia and
Associates,

                                            Plaintiff–Appellant
v.

GENERAL STAR INDEMNITY COMPANY,

                                            Defendant–Appellee




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


Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
              I.      INTRODUCTION AND BACKGROUND
      Plaintiff–Appellant Wisznia Company, Incorporated (“Wisznia”), an
architecture firm, sued its general-liability insurer, Defendant–Appellee
General Star Indemnity Company (“General Star”). Wisznia sought to recover
its costs in defending a lawsuit brought by its former client, Jefferson Parish.
Wisznia contends General Star was obligated to defend Wisznia against the
civil suit brought by Jefferson Parish under the terms of two insurance policies.
In the underlying lawsuit, Jefferson Parish essentially asserted Wisznia
improperly designed a building and did not adequately coordinate with the
builders during its construction.
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                                 No. 13-31125
      General Star refused to defend Wisznia and asserted that the relevant
insurance policies excluded coverage for damages arising from the rendering
of professional services.   After removing the case to federal court under
diversity jurisdiction, General Star moved for summary judgment arguing it
had no duty to defend Wisznia.       The district court agreed and granted
summary judgment because the allegations in Jefferson Parish’s petition
“pertained to the rendering of or failure to render professional services by
Wisznia,” and entered final judgment for General Star.          Wisznia timely
appealed. For the reasons stated below, we affirm.
          II.   JURISDICTION AND STANDARD OF REVIEW
      The district court had jurisdiction based on diversity of citizenship
because Wisznia, a Louisiana corporation with its principal places of business
in Louisiana, is diverse from General Star, a Connecticut corporation with its
principal place of business in Connecticut. See 28 U.S.C. § 1332(a). We have
jurisdiction to review the district court’s final judgment. 28 U.S.C. § 1291. We
review a grant of summary judgment de novo. Coleman v. Hous. Indep. Sch.
Dist., 113 F.3d 528, 533 (5th Cir. 1997). Summary judgment is appropriate if
“the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
We view all facts in the light most favorable to the nonmovant and draw all
reasonable inferences in the nonmovant’s favor. Coleman, 113 F.3d at 533.
      A federal court sitting in diversity applies the substantive law of the
forum state, in this case Louisiana. See Learmonth v. Sears, Roebuck & Co.,
710 F.3d 249, 258 (5th Cir. 2013). We review the district court’s determination
of Louisiana state law de novo. Johnston & Johnston v. Conseco Life Ins. Co.,
732 F.3d 555, 562 (5th Cir. 2013). “To determine Louisiana law, we look to the
final decisions of the Louisiana Supreme Court.” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 206 (5th Cir. 2007). In the absence of a decision by the
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Louisiana Supreme Court, we predict how, in our best judgment, that court
would decide the question. Id. We do so with the principle in mind that under
Louisiana’s civil law tradition, we must first examine “primary sources of
law”—the constitution, codes, and statutes—because “‘[j]urispurdence . . . is a
secondary law source in Louisiana.’” Id. (quoting Prytania Park Hotel, Ltd. v.
Gen. Star Indem. Co., 179 F.3d 169, 175 (5th Cir. 1999)). Accordingly, we are
not strictly bound by Louisiana intermediate appellate courts; however, we will
not disregard them “unless we are convinced that the Louisiana Supreme
Court would decide otherwise.” Id. (citing Am. Int’l Specialty Lines Ins. Co. v.
Canal Indem. Co., 352 F.3d 254, 261 (5th Cir. 2003)).
                             III.    DISCUSSION
      Wisznia’s sole contention on appeal is that the district court erred in
concluding General Star owed Wisznia no duty to defend it in its case against
its former client, Jefferson Parish, and in granting General Star’s motion for
summary judgment. Wisznia argues the professional-liability exclusion in its
general-liability insurance policies issued by          General    Star did not
unambiguously exclude coverage and, therefore, the policies obligated General
Star to defend Wisznia. Thus, decision on this question requires us to predict
how the Louisiana Supreme Court would interpret the insurance policies that
General Star issued to Wisznia, so we begin by reviewing principles of
insurance law articulated by the Louisiana Supreme Court.
A.    Louisiana Insurance Law
      Under Louisiana law, “[a]n insurance policy is a contract between the
parties and should be construed by using the general rules of interpretation of
contracts set forth in the Louisiana Civil Code.” Mayo v. State Farm Mut. Auto.
Ins. Co., 2003-1801, p. 3 (La. 2/25/04); 869 So. 2d 96, 99. The Louisiana Civil
Code provides that “[t]he judiciary’s role in interpreting insurance contracts is
to ascertain the common intent of the parties to the contract” by construing
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words and phrases “using their plain, ordinary and generally prevailing
meaning.” Id. (citing La. Civ. Code Ann. arts. 2045, 2047).
B.    The Duty to Defend
      Insurance policies generally provide that the insurer has the right and,
indeed, the duty to defend the insured. See, e.g., Hartford Accident & Indem.
Co. v. United Gen. Ins. Co., 855 F.2d 228, 231 (5th Cir. 1988). When the
insurance policy clearly provides coverage for damages allegedly caused by the
insured, the insurer is usually eager to defend the insured to limit its liability;
difficulties arise when the insurer concludes there is no coverage. 15 William
Shelby McKenzie & H. Alston Johnson, III, Louisiana Civil Law Treatise § 7:2
& n.1 (4th ed. 2013).
      Under Louisiana law, the insurer’s duty to defend suits against its
insured “is broader than its liability for damage claims.” Am. Home Assurance
Co. v. Czarniecki, 230 So. 2d 253, 259 (La. 1969). Thus, Louisiana courts decide
the scope of the insurer’s duty to defend by comparing the insurance policy to
the “the allegations [in] the injured plaintiff’s petition, with the insurer being
obligated to furnish a defense unless the petition unambiguously excludes
coverage.” Id. Under the “eight-corners rule,” courts compare the four corners
of the petition with the four corners of the insurance policy without resort to
extrinsic evidence. See Marco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 872
(5th Cir. 2009) (citing Adams v. Frost, 43,503, p. 9 (La. App. 2 Cir. 8/20/08); 990
So. 2d 751, 756); 15 McKenzie & Johnson, supra, § 7:2 & n.11 (“Courts have
referred to this comparison as the ‘eight-corners’ rule—the four corners of the
petition are compared with the four corners of the insurance policy.” (citing
Vaughn v. Franklin, 2000-0291 (La. App. 2 Cir. 3/28/01); 785 So. 2d 79).
      In applying the eight-corners rule, ambiguous terms in the insurance
policy are strictly construed against the insurer. Mayo, 869 So. 2d at 100;
Although the allegations in the petition are “liberally interpreted” in favor of
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the insured, Am. Home Assurance Co., 230 So. 2d at 259, “[i]t is well settled
that the allegations of fact, and not conclusions, contained in the petition
determine the obligation to defend.” 15 McKenzie & Johnson, supra, § 7:2 &
n.9 (emphasis added) (collecting cases); accord In re Stone Petroleum Corp.,
961 F.2d 90, 92 (5th Cir. 1992) (“Only the factual allegations of the pleadings
are considered for purposes of analyzing the duty to defend [under Louisiana
law;] [m]ere conclusions are irrelevant.”). Under Louisiana law, General Star
“bears the burden of proving the applicability of [the] exclusionary clause.”
Doerr v. Mobil Oil Corp., 2000-0947 (La. 12/19/00), 774 So. 2d 119, 124,
misstatement of fact in the opinion corrected on reh’g, 2000-0947 (La. 3/16/01),
782 So. 2d 573.
C.    The Four Corners of Jefferson Parish’s Petition Against Wisznia
      The parties disagree about the legal significance of the allegations in
Jefferson Parish’s petition against Wisznia. Wisznia argues that the “Jefferson
Parish Suit’s Petition alleged that Wisznia was liable for both professional
liability and ordinary negligence.” Wisznia directs the court to paragraphs
XIX, XX, XLIX, and LI of Jefferson Parish’s petition to support this argument.
General Star concedes the petition includes the word “negligence,” but
characterizes this word as a “catch-all allegation.” General Star directs the
court to paragraph XLIX of the petition as evidence that “there can be no
possible claim that Wisznia allegedly breached any general duty of care to
report unsafe conditions or protect persons.” Based on the factual allegations
in the petition, General Star argues that the district court correctly concluded
that every one of these factual allegations “pertained to the rendering of or
failure to render professional services by Wisznia,” and that “[n]ot one factual
allegation supported a claim for simple, non-professional negligence.”
(alteration in original) (quoting the district court’s opinion).


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                                  No. 13-31125
      We turn now to examine the factual allegations in the petition,
construing the allegations liberally in favor of Wisznia, the insured. Therein,
Jefferson Parish alleged it entered into a “design contract” with Wisznia for
design of the Performing Arts Center, “an ongoing construction project.”
Under this agreement, Jefferson Parish alleged that “WISZNIA agreed to use
its professional architectural engineering and construction administration
skills and knowledge to prepare plans and specifications containing design,
technical, and other data and professional opinions for the design of [the arts
center].” Jefferson Parish also alleged:
      WISZNIA warranted that the professional services . . . would be
      conducted in a manner that reflects the highest standards of
      professional care and impliedly warranted that the professional
      services would be free of defects, and that the completed project
      . . . would result in a fully functional facility, fit for its intended
      uses.
      Jefferson Parish went on to allege that “[a]s a direct and proximate result
of WISZNIA’s breach of its contractual warranty, negligence, and lack of
professional skill in designing [the performing arts center], THE PARISH has
experienced and continued to experience certain problems with THE
PROJECT that have arisen, and which continue to arise, during the ongoing
construction project.” The Parish also alleged that, under the design contract,
“WISZNIA is obligated to indemnify and hold the Parish harmless for all
damages, losses or claims that arise out of the breach of the design contract or
the negligence, errors, omissions, failure to perform, or intentional acts of
WISZNIA, its employees, agents, or consultants.”
      Finally, Jefferson Parish averred that “WISZNIA was negligent and
breached its contractual and warranty obligations to the PARISH” by:
      a) Designing and preparing a defective set of plans and
         specifications for the project;


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                                       No. 13-31125
       b) Failing to coordinate the design with its consultants in an
          effective and professional manner;
       c) Failing to design [the performing arts center] with any accurate
          and sufficient structural detailing, requiring the modification of
          the building;
       d) Failing to provide specification that were definite in concept;
       e) Under-designing the project such that the design fails to meet
          WISZNIA’s professional obligations to Petitioner; and
       d) [sic] Any and all negligent acts and omissions and/or
          contractual or warranty breaches to be proven at trial.
As a “direct and proximate result of WISZNIA’s negligence, failure of
professional skill, breach of contract, and breach of warranty in the faulty
design,” Jefferson Parish alleged that it “has suffered damages and WISZNIA
is liable to petitioner for any and all such damages occasioned by the negligence
and/or breach of contract or warranty.”
D.     The Four Corners of the General Star Insurance Policies
       We turn now to the insurance policies that General Star issued to
Wisznia. 1        Under      the    heading       “EXCLUSION           –    ENGINEERS,
ARCHITECTS OR SURVEYORS PROFESSIONAL LIABILITY,” the
policies provide as follows:
       This insurance does not apply to “bodily injury”, “property
       damage” or “personal and advertising injury” arising out of the
       rendering of or failure to render any professional services by you
       or any engineer, architect or surveyor who is either employed by
       you or performing work on your behalf in such capacity.
The policies define “professional services” to include:




       1There are two separate policies at issue in this appeal: a policy issued to Wisznia for
2008 and a policy issued for 2009. Because Jefferson Parish’s allegations include Wisznia’s
conduct in both years and the policies are identical in all relevant respects, we analyze them
together.
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      1. The preparing, approving, or failing to prepare or approve,
         maps, shop drawings, opinions, reports, surveys, field orders,
         change orders or drawings and specifications; and
      2. Supervisory, inspection architectural or engineering activities.
E.    Louisiana Case Law Evaluating Professional-Liability Exclus-
      ions Asserted by General-Liability Insurers
      The professional-liability exclusion at issue here is similar to the
professional-liability exclusion at issue in McCarthy v. Berman, 95-1456, p. 4
(La. 2/28/96); 668 So. 2d 721, 723–24.       The insurance policy at issue in
McCarthy provided: “We will not pay for: . . . Any accidental event, personal
injury, or advertising injury, arising out of the rendering of or the failure to
render scientific or professional services, or consulting business or technical
services.” 668 So. 2d at 723. There, the Louisiana Supreme Court described
that exclusion as “typical of the professional services exclusion generally found
in comprehensive business liability policies,” also known as general-liability
policies. Id. The court explained that coverage for professional “exposure is
provided by special policies,” id. (citing 15 McKenzie & Johnson, supra, § 201),
and that these “[s]pecial policies covering professional liability do not replace
comprehensive general liability insurance, but provide protection from
professional errors and omissions that are usually excluded by comprehensive
general liability policies.” Id. (footnote omitted). In reversing the trial court
on interlocutory appeal, the Louisiana Supreme Court held that the
professional liability exclusion precluded coverage. The court reasoned that
the policy “was designed to insure all types of business [and] first excludes from
its general business coverage any personal injury arising out of professional
services.”   Id. at 7.    The court held that “coverage is excluded by [the
professional liability exclusion] when the personal injury arises out of the
rendering of or failure to render professional services of any kind.” Id. at 8.


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       Because the duty to defend is broader than coverage, McCarthy is not
directly apposite here; however, the underlying principles articulated by the
Louisiana Supreme Court there in analogous circumstances inform our
prediction of how that court would resolve this appeal.
       Louisiana case law 2 teaches that a petition’s invocation of the word
“negligence” is insufficient to obligate a professional liability insurer to defend
the insured.     The Louisiana Fourth Circuit Court of Appeal’s decision in
Louisiana Stadium & Exposition District v. BFS Diversified Products, LLC, is
instructive.    2010-0587 (La. App. 4 Cir. 9/15/10); 49 So. 3d 49.                   There,
Hurricane Katrina essentially destroyed the roof of the Louisiana Superdome,
even though the storm winds were within the roof’s design parameters. Id. at
1. The stadium’s owner sued the architect, RoofTech, and its insurers for
defective design of the roof and included allegations of negligence.                     Id.
RoofTech and its professional-liability insurer in turn sued RoofTech’s general-
liability insurer for the defense costs. See id. at 2. The trial court held that
the general-liability insurer had no duty to defend Rooftech based on the
professional-liability exclusion in the insurance policy, and Rooftech and its
professional-liability insurer appealed. Id. at 2–3. The Louisiana Fourth
Circuit Court of Appeal affirmed. The court applied the “eight-corners rule”
and compared the professional-liability exclusion to the petition.                  In the
petition, the plaintiffs alleged: “The Roofing System ultimately failed . . . due
to work negligently performed by and/or advice negligently rendered by the
Architect and consultants. The Architect and Consultants were negligent.” Id.
at 3–4 (emphasis added). Despite the petition’s repeated invocation of the word


       2The parties do not direct this Court to binding authority from the Louisiana Supreme
Court on the issue before us on appeal, and we are aware of none. Therefore, we turn to
intermediate appellate decisions. See Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d 624,
627 (5th Cir. 2000) (“[I]n the absence of a ruling from the state’s highest court, this Court
may look to the decisions of intermediate appellate state courts for guidance.”).
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“negligence” in the underlying lawsuit, the court rejected as “ludicrous”
Rooftech’s argument that some tasks it performed were non-professional:
“RoofTech was hired for its expertise in the specialized roofing business; it is
not far-reaching to find that all of the services it rendered in connection with
this three-year massive project were professional in nature.” Id. at 6.
      In contrast, if the factual allegations, liberally construed, give rise to an
ordinary claim for negligence, then the general-liability insurer may be
obligated to defend the insured. The Louisiana First and Third Circuit Courts
of Appeal reached this conclusion in Gregoire v. AFB Construction, Inc., 478
So. 2d 538 (La. Ct. App. 1985) (per curiam), and CBM Engineers Inc. v.
Transcontinental Insurance Co., 460 So. 2d 745 (La. Ct. App. 1984).             In
Gregoire, a construction company employee was injured when he came into
contact with a high-voltage electricity wire while stringing telephone wires.
The trial court held the general-liability insurer owed no duty to defend,
finding that the employee’s allegations related solely to liability for
professional services which were excluded from coverage under the policy.
Gregoire, 478 So. 2d at 540. The Louisiana First Circuit Court of Appeal
reversed. Id. at 541. The court explained that the petition, liberally construed,
included allegations that the engineers “were negligent in their supervision of
the project and allowed the project to proceed when they knew, or should have
known, the utility pole . . . was in an unreasonably dangerous condition.” Id.
The court reasoned that because these allegations “could be construed to
include the breach of the general duty of reasonable care,” the allegations did
not solely relate to professional services. Id. The Louisiana Third Circuit
Court of Appeal reached the same conclusion in CBM Engineers, in which two
workers were severely injured, and one died, when an elevator used by
construction workers fell. Id. at 746. The trial court found that the policy
obligated the general-liability insurer to defend the engineering firm, and the
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                                  No. 13-31125
court of appeal affirmed. Id. at 747–48. The court explained that, liberally
construed, the petition alleged liability for breach of the general duty of
reasonable care “to report unsafe conditions, whether the hazard was caused
by a failure or omission involving engineering, or from another source.” Id. at
747.
F.     Applying the “Eight-Corners Rule”
       Applying the eight-corners rule, we predict that the Louisiana Supreme
Court would hold that Jefferson Parish’s petition, liberally construed,
unambiguously excludes coverage. As in Louisiana Stadium & Exposition
District and as the district court observed, every one of the factual allegations
pertained to the rendering of professional architecture services. The damages
claims are for breach of an agreement in which, Jefferson Parish alleged,
Wisznia agreed to use its “professional architectural engineering and
construction administration skills and knowledge to prepare plans and
specifications containing design technical, and other data” for the design of the
performing arts center. Jefferson Parish alleged the damages it suffered were
the “direct and proximate result of WISZNIA’s breach of its contractual
warranty, negligence, and lack of professional skill.” In short, Jefferson Parish
alleged in its petition that it hired Wisznia to use its professional skills to
design a building and coordinate its construction, and the building that
Wisznia delivered did not pass muster. As in Louisiana Stadium & Exposition
District, Jefferson Parish allegedly hired Wisznia “for its expertise,” and “it is
not far-reaching to find that all of the services it rendered in connection with
[the performing arts center] project were professional in nature.” 2010-0587,
at p. 6. And as in Louisiana Stadium & Exposition, Jefferson Parish sued
Wiznia because it was dissatisfied with the final product, the performing arts
center.


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                                 No. 13-31125
      Moreover, the factual allegations in the Jefferson Parish petition here do
not give rise to an ordinary claim for negligence—such as an unreasonably
dangerous work site—unlike the factual allegations in Gregoire and CBM
Engineers.   In both Gregoire and CBM Engineers, the injured petitioners
alleged that the insured was responsible for dangerous conditions on the job
site that implicated the insured’s general duty of reasonable care: an exposed
high-voltage electricity wire in Gregoire and an elevator that fell on
construction workers in CBM Engineers. Thus, unlike the factual allegations
in this case—which are comprised of allegations of defective building design
and construction supervision—the allegations in Gregoire and CBM Engineers,
liberally construed, included claims for breach of the general duty of
reasonable care to report dangerous conditions. And as in Louisiana Stadium
& Exposition District, Jefferson Parish’s petition’s repeated invocation of the
word “negligence” is insufficient to obligate General Star to defend Wisznia.
See Coleman v. Sch. Bd. of Richland Parish, 418 F.3d 511, 523 (5th Cir. 2005)
(“Under Louisiana law, [we decide] the scope of the duty to defend under an
insurance agreement” by looking “only to the factual allegations in the
complaint, however; ‘statements of conclusions in the complaint that are
unsupported by factual allegations will not trigger a duty to defend.’”). Thus,
the professional-liability exclusion in the insurance policies unambiguously
excludes coverage arising from Wisznia’s design of the Jefferson Parish
performing arts center.
      Wisznia’s reliance on our decision in Stone Petroleum is misplaced,
because that case is consistent with our decision here. There, a maritime
surveyor agreed to examine a barge, damaged by severe weather, to estimate
the damage and cost of repair and to obtain repair bids. Stone Petroleum, 961
F.2d at 90–91. While under repair, the barge exploded, and the explosion and
fire injured and killed many workers. Id. at 91. The barge owner sued the
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maritime surveyor alleging he failed “to properly ensure that the production
facility was safe for the specified work.” Id. at 91–92. The surveyor’s general-
liability insurer declined to defend him because his policy excluded coverage
for damages “due to the rendering of or failure to render any professional
service.” Id. at 91. After a bench trial, the district court held the claims against
the surveyor were professional malpractice claims that did not trigger a duty
to defend. Id. This Court reversed. Relying on CBM Engineers and Gregoire,
we observed that, under Louisiana law, “[o]nly the factual allegations of the
pleadings are considered for purposes of analyzing the duty to defend[;] [m]ere
conclusions are irrelevant.” Id. at 92. This Court nonetheless declined to
strictly apply this rule because, it reasoned, to do so “would result in a direct
conflict with the holdings and rationale of Gregoire and CBM,” because strictly
applying this rule, “taken to its natural conclusion, would jeopardize every
insured’s right to a defense in federal court merely because the action was
initiated by a pure notice and not a fact pleading,” in light of “the essential
difference between the federal notice pleading standard and the Louisiana fact
pleading rubric.” Id. at 93.
      Stone Petroleum is distinguishable from this case because, as in Gregoire
and CBM, the petition alleged, inter alia, that the marine surveyor failed to
ensure the job site “was safe for the specified work.” Id.at 91–92. This is unlike
Louisiana Stadium & Exposition District and this case in which the petition
alleged the final product—the Superdome roof or the Jefferson Parish
performing arts center—of professional services was unsatistfactory.
      Moreover, the apprehension we expressed in Stone Petroleum is of no
moment here because Jefferson Parish’s petition, liberally construed, would
not give rise to a claim for ordinary negligence under both the arguably more
generous federal and the arguably more rigorous Louisiana fact pleading
standards. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2010) (“Although for the
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purposes of a motion to dismiss we must take all of the factual allegations in
the complaint as true, we ‘are not bound to accept as true a legal conclusion
couched as a factual allegation.’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007))). To the extent we were concerned in Stone Petroleum that an
insured may need additional defense in federal court, whereas in state court it
would need none, due to the difference in pleading standards, we note that “we
no longer apply the minimal standard of adequate pleading set forth in Conley
v. Gibson, [355 U.S. 41, 45–46 (1957)]” in light of Twombly and Iqbal.
Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368, 372 (5th Cir.
2008). Because the factual allegations in Jefferson Parish’s petition do not give
rise to a claim for ordinary negligence under even the arguably more generous
federal pleading standard and are instead exclusively devoted to professional
negligence, coverage is unambiguously excluded consistent with our decision
in Stone Petroleum. See 961 F.2d at 92 (“Only the factual allegations of the
pleadings are considered for purposes of analyzing the duty to defend. Mere
conclusions are irrelevant.”).
      Therefore, the district court correctly concluded that General Star owed
no duty to defend Wisznia because the insurance policies unambiguously
excluded coverage for professional liability.
                             IV.    CONCLUSION
      For the foregoing reasons, we AFFIRM.




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