                        United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-4024
                                   ___________

Shelter Insurance Companies,            *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Arkansas
Dan Hildreth, et al.,                   *
                                        *
             Appellant.                 *
                                   ___________

                              Submitted: June 11, 2001
                                  Filed: June 27, 2001
                                  ___________

Before LOKEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      TUNHEIM.1
                        ___________

TUNHEIM, District Judge.


      This appeal involves the interpretation, under Arkansas law, of a business
insurance policy that includes a "professional services" exclusion. More specifically,
the issue on appeal is whether the "professional services" exclusion relieves appellee



      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, sitting by designation.
Shelter Insurance Company ("Shelter") of its duty to defend Roger Hockenberry in a
pending state court personal injury lawsuit based on alleged negligent treatment
provided by Hockenberry to appellant Dan Hildreth. The district court2 concluded that
Shelter was not obligated to defend Hockenberry. We affirm.


                           FACTUAL BACKGROUND


      Appellants Dan and Kathy Hildreth sued Roger Hockenberry in Arkansas state
court alleging that Hockenberry negligently caused injury to Dan Hildreth by
manipulating his head and neck at Hockenberry’s place of business. Hockenberry's
insurer, Shelter, sought declaratory relief in United District Court for the Western
District of Arkansas while the personal injury suit was pending to determine if it had
a duty to defend Hockenberry. Shelter alleged that the "professional services"
exclusion contained in the business insurance policy it issued to Hockenberry relieved
it of its duty to defend him. The district court granted Shelter's motion for summary
judgment concluding that the professional services exclusion was applicable and
Shelter had no duty to defend Hockenberry.


      Roger Hockenberry has operated an office of naprapathy in Arkansas for twenty
three years. He describes naprapathy as a "profession of the healing arts" that involves
placing ones hands on the body, palpation, dealing with connective tissue, muscles,
nerves, blood supply, and blood chemistry.3 Naprapathy has its roots in chiropractic

      2
        The Honorable H. Franklin Waters, United States District Court for the
Western District of Arkansas.

      3
        Webster's Ninth New Collegiate Dictionary defines naprapathy as "a system
of treatment by manipulation of connective tissue and adjoining structures (as

                                         -2-
and osteopathic studies. It also includes elements of massage therapy and physical
therapy. Hockenberry received a degree from the Chicago National College of
Naprapathy and he holds an Illinois license to practice naprapathy.4 Hockenberry
believes that he is the only practicing naprapath in the State of Arkansas.


      In his practice, Hockenberry maintains an appointment book, but he only accepts
cash and checks. He keeps patient records and usually has patients fill out a patient
information form, which includes a clause waiving malpractice claims. Hockenberry
has a receptionist that works four days a week and part time on Saturdays.


      His general procedure for treating a new patient is to determine their medical
history, to conduct an examination, to perform some tests and to provide an evaluation.
When a patient arrives for an appointment, Hockenberry has them lie face down on a
table. He then charts their back, checks their alignment and feels for tension. If a
patient has a neck injury, as in the case of Dan Hildreth, Hockenberry performs
stretching treatment, palpation and massage, as well as adjustments, which may cause
a popping sound.5 He also uses heat, ice, mineral ice, diathermy, and ultrasound in his
treatment of patients.


      Hockenberry treated Dan Hildreth on May 12, 1999. Hildreth alleges that he
sought Hockenberry's services to alleviate back pain. Hockenberry applied heat and

ligaments, joints, and muscles) and by dietary measures that is held to facilitate the
recuperative and regenerative process of the body."
      4
          The State of Arkansas does not require a license to practice naprapathy.
      5
       Hockenberry believes that these popping sounds are caused by the release of
body gases.

                                         -3-
massage to Hildreth's back. He then manipulated Hildreth's head in a rapid and forceful
manner. Hildreth alleges that the manipulation resulted in a herniated disc. In the
underlying personal injury lawsuit, Hildreth alleges that he sustained injuries and
permanent disability as a result of Hockenberry's services. His wife, Kathy Hildreth,
alleges loss of consortium.


      After filing a state court action, Hockenberry's insurer, Shelter, sought a
declaratory judgment in federal court that it did not have a duty to defend Hockenberry.
Shelter issued two insurance policies to Hockenberry for the relevant time period. The
first, a homeowner's policy, is not at issue in this case. The second is a business
insurance policy that provided coverage for bodily injury, property damage and
personal liability. The policy reads as follows:


      We will pay on behalf of the insured all sums which the insured shall become
      legally obligated to pay as damages because of:

             1.    Bodily injury or property damage covered by this policy, caused
      by an occurrence and arising out of the ownership, maintenance or use of the
      insured premises and all necessary and incidental operations.

At the heart of the dispute between the parties is an exclusion in the policy for
"professional services or treatment." The exclusion provides that:
      we do not cover:

             9.     bodily injury or property damage arising out of the rendering of
      or failure to render professional services or treatment, including but not
      limited to:

                    (a)    medical, surgical, tonsorial, dental, x-ray, anesthesiology

                    (b)    mental, nursing, physiotherapy, chiropody, massage

                                          -4-
                    (c)    pharmacological, hearing aid, optical, optometrical

                    (d)    cosmetic, sun lamp, steam bath, ear piercing

                    (e)    legal, accounting, advertising

                    (f)    engineering, drafting, surveying or architectural

The parties made cross-motions for summary judgment and the district court found that
the "professional services" exclusion was applicable. Accordingly, the district court
concluded that Shelter was not obligated to defend Hockenberry. The Hildreths now
appeal the district court decision.6


                                       DISCUSSION


I.    Standard of Review


      We review a district court grant of summary judgment de novo. Jurrens v.
Hartford Life Insurance Co., 190 F.3d 919, 922 (8th Cir. 1999). Summary judgment is
appropriate where there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion
for summary judgment, the Court is required to view the facts in a light most favorable
to the nonmoving party. Jurrens, 190 F.3d at 922. Summary judgment is to be granted
only where the evidence is such that no reasonable jury could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
moving party bears the burden of bringing forward sufficient evidence to establish that


      6
         Hockenberry did not appeal the district court order and is therefore not a party
to this appeal.

                                          -5-
there are no genuine issues of material fact and that the movant is entitled to judgment
as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).


II.   Applicability of the Professional Services Exclusion


      Because this is a diversity case, we look to Arkansas state law when interpreting
the provisions of the insurance policy. Bates v. Security Benefit Life Ins. Co., 146 F.3d
600, 603 (8th Cir. 1998). The Court is to determine the plain and ordinary meaning of
an insurance contract as a matter of law. Norris v. State Farm Fire & Casualty Co., 16
S.W.3d 242, 244 (Ark. 2000). Exclusionary endorsements are subject to the same
standard, that its terms must be expressed in clear and unambiguous language. Id.
Insurance policies are generally construed strictly against the insurer and liberally in
favor of the insured. Keller v. Safeco Ins. Co., 877 S.W.2d 90, 92 (Ark. 1994). If an
ambiguity exists, the Court must construe the ambiguity in favor of the insured. Id. In
order for an ambiguity to exist a "term in the insurance policy must be subject to more
than one equally reasonable interpretation." Watts v. Life Ins. Co. of Ark., 782 S.W.2d
47, 49 (Ark. Ct. App. 1990) (citing Wilson v. Countryside Casualty Co., 634 S.W.2d
398, 399 (Ark. 1982)).


      In light of these principles, we find, as did the district court, that the services
Hockenberry provided to Dan Hildreth constitute professional services or treatment
within the meaning of the policy exclusion, relieving Shelter of its duty to defend
Hockenberry.      The language of the exclusionary endorsement is clear and
unambiguous. Although the insurance policy does not specifically define the term
"professional services," only an unreasonable interpretation of the policy language



                                          -6-
could justify requiring Shelter to defend Hockenberry under the circumstances present
in this case. The Court is unwilling to make such an interpretation.


      A number of courts have interpreted similar "professional services" exclusions
and have defined a "professional act or service" as "one arising out of a vocation,
calling, occupation or employment involving specialized knowledge, labor or skill, and
the labor or skill involved is predominantly mental or intellectual rather than physical
or manual." See, e.g., Multnomah County v. Oregon Automobile Ins. Co., 470 P.2d
147, 150 (Or. 1970) (citing Marx v. Hartford Accident and Indemnity Co., 157 N.W.2d
870 (Neb. 1968)). In interpreting these provisions, courts have looked to "the act or
omission itself . . . and not the title or character of the party who performs or fails to
perform the act" to determine whether a particular service or treatment is professional
in nature. Id.


      As a naprapath with an Illinois license and a four-year degree from an institution
dedicated solely to teaching naprapathy, Hockenberry possesses specialized knowledge
that is more intellectual in nature than it is physical or manual. Hockenberry evaluates
his patients and based on those evaluations, employs various treatment alternatives.
These undoubtedly are intellectual decisions rendering his services or treatments
"professional" within the meaning of the policy.


      In addition, the services or treatments provided by a naprapath compare
favorably to other professions that are explicitly excluded in the Shelter policy. The
language of the clause at issue provides an inexhaustive and nonexclusive list of
professional services or treatments that are not covered by the policy. A number of
those services have elements that are closely related to naprapathy or which are

                                          -7-
incorporated into the practice of naprapathy. The treatment provided by Hockenberry
includes elements of massage and physiotherapy, both specifically excluded
"professional services" under the policy.       In addition, naprapathy grew out of
chiropractic and osteopathic services. The similarity of naprapathy to these other
professional services is telling.


       Moreover, Hockenberry's patients clearly believe that he provides a professional
service or treatment. Patients schedule appointments in advance and visit Hockenberry
to alleviate some infirmity or ailment. While certainly not dispositive on the issue, this
fact also supports the conclusion that naprapathy falls within the professional services
exclusion of policy.


       Finally, we are unwilling to transform the business insurance policy at issue into
one for malpractice insurance. As noted above, Hockenberry performs services that
are closely related to chiropody and massage. While those professions purchase
malpractice insurance to cover the types of injuries that occurred in this case,
Hockenberry chose not to do so. Shelter should not be compelled to defend or cover
him for risks that it did not insure.


                                    CONCLUSION


       The insurance policy language at issue here can only reasonably be read in one
manner: that the conduct of Hockenberry, which allegedly caused the injury to Dan
Hildreth, falls with the "professional services or treatment" exclusion and that Shelter
is relieved of its duty to defend Hockenberry in the pending state court personal injury
action.

                                          -8-
The judgment of the district court is affirmed.


A true copy.


      ATTEST:


               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                  -9-
