      Case: 17-30311   Document: 00514478007        Page: 1   Date Filed: 05/18/2018




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

                                                                         FILED
                                     No. 17-30311                    May 18, 2018
                                                                    Lyle W. Cayce
VERONICA BENNETT,                                                        Clerk


              Plaintiff - Appellee

v.

HARTFORD INSURANCE COMPANY OF THE MIDWEST,

              Defendant - Appellant

v.

AXIS SURPLUS INSURANCE COMPANY,

              Defendant - Appellee

and

STATE OF LOUISIANA THROUGH DIVISION OF ADMINISTRATION,
OFFICE OF RISK MANAGEMENT,

              Intervenor - Appellee

**********************************************

TERRON WHITE; GLORIA WHITE,

              Plaintiff - Appellee

v.

HARTFORD INSURANCE COMPANY OF THE MIDWEST,

              Defendant - Appellant
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                                       No. 17-30311
and

STATE OF LOUISIANA THROUGH DIVISION OF ADMINISTRATION,
OFFICE OF RISK MANAGEMENT,

               Intervenor - Appellee




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


Before STEWART, Chief Judge, and HAYNES and WILLETT, Circuit Judges.
CARL E. STEWART, Chief Judge:
       Defendant-Appellant Hartford Insurance Company of the Midwest
(“Hartford”) appeals the district court’s order denying its motion for summary
judgment and granting that of Defendant-Appellee Axis Surplus Insurance
Company (“Axis”). Hartford also challenges the district court’s grant of Axis’s
motion to strike an affidavit submitted in support of its motion for summary
judgment as untimely. For the reasons that follow, we AFFIRM.
                                    BACKGROUND
       On October 17, 2012, Plaintiffs-Appellees Terron White and Veronica
Bennett were rear-ended by a truck operated by James Lee while traveling
southbound on Louisiana Highway 61 in East Baton Rouge Parish. 1 At the
time of the accident, Lee was operating a truck in the course and scope of his
employment with Suttles Truck Leasing, Inc. (“Suttles”) and Dana Transport,



       1White and Bennett are employees of the State of Louisiana and were in the course
and scope of their employment at the time of the accident. The State of Louisiana later
intervened in this lawsuit to exercise its subrogation rights to recover medical expenses paid
to Bennett and White under the Louisiana Workers’ Compensation Act, LA. REV. STAT. ANN.
§ 23:1020, et seq. Bennett, White, and the State of Louisiana are not parties to this appeal.
                                              2
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                                      No. 17-30311
LLC (“Dana Transport”). Bennett and the Whites 2 separately sued Lee,
Suttles, Dana Transport, and others for injuries and damages they sustained
as a result of the accident. They also sued various insurance companies,
including Great West Casualty Insurance Company (“Great West”), American
Guarantee and Liability Insurance Company (“AGLIC”), Hartford, and Axis
under Louisiana’s Direct Action Statute, LA. REV. STAT. ANN. § 22:655, as the
alleged primary and excess liability insurers. 3 The lawsuits, which were
initially filed in Louisiana state court, were removed to federal court and
subsequently consolidated.
       Over the course of this litigation, it became apparent that Great West
was liable as a primary liability insurer, and Axis and AGLIC were liable as
excess liability insurers. Although Hartford issued a primary automobile
liability policy that was effective at the time of the accident, it has disputed
whether the terms of its policy provide coverage in this case. The Hartford
policy identifies eighteen (18) named insureds, including Suttles and Dana
Transport. The Insuring Agreement states Hartford’s obligation to “pay all
sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or
‘property damage’ to which [the policy] applies, caused by an ‘accident’ and
resulting from the ownership, maintenance or use of a covered ‘auto.’” The
policy provides for $2,000,000 in underlying liability coverage. Section I of the
Business Auto Coverage Form identifies “Item Two of the Declarations Page”
as specifying “the ‘autos’ that are covered ‘autos’ for each of the insured’s
coverages.” In turn, “Item Two - Schedule of Coverages and Covered Autos”
(“Item Two”) defines the scope of coverage as follows:


       2 Gloria White joined her husband Terron White’s lawsuit as a plaintiff, seeking
damages for loss of consortium due to his injuries.
       3 Hartford was not added to the lawsuit until Bennett and the Whites were informed

by counsel for Axis that there may be another primary insurance policy whose liability limits
would be triggered and exhausted before that of Axis.
                                             3
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                                        No. 17-30311
       “This policy provides only those coverages where a charge is shown
       in the advance premium column . . . Each of these coverages will
       apply only to those ‘autos’ shown as covered ‘autos.’ ‘Autos’ are
       shown as covered ‘autos’ for a particular coverage by the entry of
       one or more symbols from the COVERED AUTO Section of the
       Business Auto Coverage Form next to the name of the coverage.”

       The Business Auto Coverage Form includes a table defining the various
designated auto symbols, with relevant descriptions providing as follows:
 Symbol       Description of Covered Auto Designation Symbols
   1    Any “Auto”
   2    Owned “Autos” Only: Only those “autos” you own (and for Liability
        Coverage any “trailers” you don’t own while attached to power
        units you own). This includes those “autos” you acquire ownership
        of after the policy begins.
   7    Specifically Described Autos: Only those “autos” described in Item
        Three of the Declarations for which a premium charge is shown
        (and for Liability Coverage any “trailers” you don’t own while
        attached to any power unit described in Item Three). 4


       Importantly, Item Two of the Hartford policy lists the symbol “01” as
describing which autos are afforded liability coverage under the policy; under
the “Description Of Covered Auto Designation Symbols” portion of the
Business Auto Coverage Form, the symbol “01” represents “any ‘auto.’” A
charge of $92,954 is shown in the advance premium column providing liability
coverage for all autos. Thus, the Hartford policy defines “covered auto,” for
purposes of liability coverage, as “any ‘auto’” without further qualification or
limitation. 5




       4  Item Three of the Declarations does not list a schedule of covered autos as is relevant
and necessary for this designation.
        5 The policy defines “auto” as “a land motor vehicle, ‘trailer’ or semitrailer designed to

travel on public roads” other than mobile equipment. It is undisputed that the truck at issue
is an “auto” for purposes of the Hartford policy.
                                                4
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                                     No. 17-30311
      Appended to the Hartford policy is a Composite Rating Basis
Endorsement (“CRB Endorsement”) which explains that the premium was
calculated “by applying a composite rate per covered auto.” The CRB
Endorsement also notes that it “does not change the policy except as shown,”
expressly modifies the policy’s Premium Audit condition by providing
additional explanation for how the premium is calculated for “covered autos,” 6
and states that the vehicles identified therein are “[o]wned ‘autos’ for liability
composite rating premium adjustment purposes.” The CRB Endorsement does
not otherwise refer to the policy’s “covered auto” designation symbol as
indicative of or relevant to the premium audit calculation. The CRB
Endorsement also contains the following table explaining the premium
calculation for “owned ‘autos’” relevant to this policy:




      6  The Premium Audit condition explains that “[t]he estimated premium for [the]
Coverage Form is based on . . . exposures” the insureds identified at the beginning of the
policy period, and that Hartford would “compute the final premium due” after determining
the insureds’ actual exposures at the end of the policy period.
                                            5
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                                       No. 17-30311
This endorsement modifies insurance provided under the following:

                       BUSINESS AUTO COVERAGE PART

SCHEDULE FOR COMPOSITE RATING BASIS-AUTOMOBILE LIABILITY
                      COVERAGE

IT IS AGREED THAT THE PREMIUM FOR THIS INSURANCE SHALL BE
DETERMINED BY APPLYING A COMPOSITE RATE PER COVERED
AUTO.

                                          SCHEDULE

  CLASS CODE OR             STATE ESTIMATED                RATE PER         ESTIMATED
   DESCRIPTION                     # OWNED                  OWNED            PREMIUM
                                    AUTOS                   “AUTO”

 LIGHT-MEDIUM                ALL              48            $1,176.45          $56,470
 TRUCKS
 HEAVY-EXTRA                 ALL
 HEAVY TRUCKS 7
 TRUCK-
 TRACTORS
 PRIVATE                     ALL              37             $950.41           $35,165
 PASSENGER
 TRAILERS                    ALL              1               INCL               INCL


 TOTAL PREMIUM                                86                               $91,635


       After the close of discovery, Hartford and Axis both filed motions for
summary judgment disputing whether the Hartford policy provides coverage.
Axis sought a declaration that Hartford’s policy provided primary coverage for
Bennett and the White’s claims, and that the Axis policy was excess to the
Hartford policy. In so arguing, Axis maintained that the terms of the Business


       7 The CRB Endorsement defines “heavy-extra heavy trucks” as “a motorized auto
other than a ‘private passenger type’ with a gross vehicle weight of more than 20,000 pounds.”
                                              6
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                                       No. 17-30311
Coverage Auto Form unambiguously dictate what qualifies as a “covered ‘auto’”
for purposes of the Hartford policy’s liability coverage provision, and because
Item Two of the Declarations states that the policy covers “any ‘auto,’” the
truck involved in the accident is clearly covered. Further, because the Hartford
policy provides primary coverage, Axis argued that its own policy is excess to
Hartford’s, and Axis is not obligated to make any payments under its policy
“unless or until . . . Hartford pays its entire $2 million limits.”
       Hartford opposed Axis’s motion and filed its own seeking a declaration
that its policy did not provide coverage for the claims stemming from the
accident. 8 Hartford argued that the CRB Endorsement, and not the Business
Auto Coverage Form, defined which of Dana Transport’s autos were “covered
‘autos’” for purposes of the Hartford policy, and specifically offered that the
Hartford policy “unambiguously provide[d] $2,000,000 in underlying liability
coverage on [37] personal passenger vehicles, [48] light-medium trucks which
weigh less than 20,000 pounds, and one trailer.” Hartford averred that the
truck driven by Lee at the time of the accident was not a “covered ‘auto’” under
Hartford’s liability coverage because it weighed in excess of 20,000 pounds and
was therefore designated a “heavy-extra heavy truck” under the CRB
Endorsement, a category of vehicles for which an estimated premium was not
calculated. According to Hartford, the truck driven by Lee was exclusively
covered by an underlying insurance policy issued by Great West, an excess
insurance policy provided by Axis, and a policy of insurance excess to the Axis
policy provided by AGLIC with a liability limit of $15,000,000. 9




       8 Hartford has never challenged that Axis’s coverage obligations would be excess to its
own if the Hartford policy provides coverage.
       9 In response to Hartford’s motion, Axis argued that Hartford “waived its coverage

defense” because it did not specifically raise the defense in any responsive pleadings.
                                              7
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                                    No. 17-30311
      The district court scheduled oral argument on the motions for November
8, 2016. A week before oral argument, Hartford filed a supplemental
memorandum in support of its motion for summary judgment and in opposition
to that of Axis to introduce the affidavit of Ronald Dana (“the Dana affidavit”)
as a Dana Transport representative. Hartford argued that this affidavit, along
with that of Christopher Stafford, Dana Transport’s insurance broker, and
Mark Elliott, a Hartford representative, demonstrates the contracting parties’
intent to omit coverage for heavy-extra heavy trucks under the Hartford
policy. 10 Axis moved to strike the Dana affidavit as unethically obtained,
arguing that Hartford’s attorney solicited the affidavit without notifying Dana
Transport’s counsel of record in violation of Louisiana Code of Professional
Conduct Rule 4.2. Axis also argued that Hartford failed to disclose Ronald
Dana as a potential witness in response to discovery requests and never
disclosed any communications with the affiant despite having been served with
written discovery requests on this topic. Axis alternatively moved to strike
certain paragraphs of the Dana affidavit as stating legal conclusions and for
lack of personal knowledge.
      After hearing argument from the parties, the district court struck the
Dana affidavit as untimely submitted and noted the impropriety of Hartford’s
conduct in obtaining the affidavit, although the alleged ethical violation did
not in any way inform the district court’s ruling. Turning to the parties’
summary judgment motions, the district court held that Lee was an insured
under the policy, recognized that the Hartford policy defined “covered auto” as
“any ‘auto,’” and concluded that the CRB Endorsement did not conflict with the




      10The Elliot and Stafford affidavits were submitted with Hartford’s original motion
for summary judgment to establish the contracting parties’ intent.
                                           8
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                                       No. 17-30311
policy’s insuring agreement. 11 The court reasoned that the insuring agreement
defines the scope of liability coverage, and the purpose of the CRB
Endorsement was “merely to calculate premium.” The district court noted that
if Hartford wanted to restrict coverage to only those autos identified in the
CRB Endorsement, Hartford would have changed the “covered auto”
designation symbol to “07,” which limits liability coverage to “specifically
described autos . . . for which a premium charge is shown.” The district court
concluded that the contract as a whole clearly and unambiguously indicated
that the CRB Endorsement did not modify the liability coverage in the policy,
and rejected the invitation to consider the Elliot and Stafford affidavits to
determine the intent of the contracting parties. On this same basis, the district
court held that the Axis policy ranked after the Hartford policy, and denied
Hartford’s motion for summary judgment. 12 After the district court ruled on
the motions, the case proceeded to a bench trial, and the court awarded
Bennett and the Whites over $3 million in damages, which exhausted the
liability limits established in the Hartford policy. This appeal followed.
                                      DISCUSSION
       On appeal, Hartford challenges (1) the district court’s order striking the
Dana affidavit as untimely filed, and (2) the district court’s holding that the
Hartford policy provides coverage for Bennett and the Whites’ claims. We
consider each issue in turn below.




       11 The parties previously disputed whether Lee was an “insured” as defined under the
Hartford policy, but Hartford does not challenge the district court’s finding in the affirmative
on appeal, thus rendering the only issue concerning the terms of Hartford’s policy whether
the truck involved in the accident is a “covered ‘auto’” under the Hartford policy.
       12 The district court did not address Axis’s waiver argument.

                                               9
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                                        No. 17-30311
   A. Axis’s Motion to Strike
            1. Standard of Review
       The district court’s order striking the Dana affidavit involves both the
enforcement of a scheduling order and the enforcement of discovery rules. This
court reviews both under the deferential abuse of discretion standard. See
Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990) (noting that “a trial
court’s decision to exclude evidence as a means of enforcing a pretrial order
‘must not be disturbed’ absent a clear abuse of discretion” (quoting Davis v.
Duplantis, 448 F.2d 918, 921 (5th Cir. 1971))). Considering the broad discretion
given to trial courts on discovery issues, it is “unusual [for an appellate court]
to find abuse of discretion in these matters.” Swanner v. United States, 406
F.2d 716, 719 (5th Cir. 1969). This court has observed that the trial court’s
decision should be reversed only in an “unusual and exceptional case.” Brown
v. Thompson, 430 F.2d 1214, 1216 (5th Cir. 1970).
            2. Analysis
       The district court cited Hartford’s tardiness in identifying Ronald Dana
as a witness and submitting his affidavit for consideration with its motion for
summary judgment as the primary basis for striking the Dana affidavit. 13
Hartford does not dispute that the affidavit was not timely filed, but argues
that its consideration is crucial for establishing the intent of the parties, and
it therefore should have been considered. Hartford’s argument that the
affidavit’s relevance constitutes “unusual and exceptional circumstances”
warranting reversal of the district court’s decision is unavailing. Hartford did



       13 Although the district court noted the impropriety of Hartford’s conduct in obtaining
the Dana affidavit without authorization from Dana’s attorney under Louisiana Code of
Professional Conduct Rule 4.2, this did not form the basis of the district court’s ruling.
Therefore, we need not address (1) Axis’s standing to raise any alleged ethical violation, (2)
whether Hartford did in fact violate Rule 4.2, and (3) if it did, whether this violation warrants
striking the Dana affidavit.
                                              10
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                                       No. 17-30311
not seek modification of the scheduling order so that it may apprise the district
court of its intent to offer another witness’s testimony so as to give Axis an
opportunity to depose the witness. Nor did Hartford provide any valid
justification for its failure to secure the Dana affidavit before all discovery
deadlines had passed, even conceding at oral argument that it could have done
so. Given these failures, we conclude that this case presents no “unusual and
exceptional circumstances,” and the district court did not abuse its discretion
in striking the Dana affidavit. 14
   B. Axis’s Motion for Summary Judgment
            1. Standard of Review
       “This court reviews a district court’s grant of summary judgment de
novo, applying the same standards as the district court.” Johnson v. World All.
Fin. Corp., 830 F.3d 192, 195 (5th Cir. 2016). “Interpretation of an insurance
contract is a question of law . . . reviewed de novo” on appeal from summary
judgment. Tesoro Ref. & Mktg. Co., L.L.C. v. Nat’l Union Fire Ins. Co., 833 F.3d
470, 473 (5th Cir. 2016). Summary judgment is required if “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). “A genuine dispute of material fact exists
‘if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” Johnson, 830 F.3d at 195 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). “On a motion for summary judgment,
this Court must view the facts in the light most favorable to the non-moving




       14  Even assuming the district court’s order striking the Dana affidavit was erroneous,
because we conclude below that the Hartford policy unambiguously provides coverage, we
need not consider extrinsic evidence of the parties’ intent under Louisiana law. See LA. CIV.
CODE ANN. art. 2046 (1985) (“When the words of a contract are clear and explicit and lead to
no absurd consequences, no further interpretation may be made in search of the parties’
intent.”).
                                             11
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                                  No. 17-30311
party and draw all reasonable inferences in its favor.” Id. (quoting Deville v.
Marcantel, 567 F.3d 156, 163–64 (5th Cir. 2009)) (brackets omitted).
         2. Analysis
      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.” Cadwallader v. Allstate Ins.
Co., 02–1637, p. 3 (La. 6/27/03); 848 So. 2d 577, 580. The Louisiana Civil Code
provides that “[i]nterpretation of a contract is the determination of the common
intent of the parties.” LA. CIV. CODE ANN. art. 2045 (1987); see also
Cadwallader, 848 So. 2d at 580; La. Ins. Guar. Ass’n. v. Interstate Fire & Cas.
Co., 93–0911 (La. 1/14/94); 630 So. 2d 759, 763. An insurance contract must be
“construed according to the entirety of its terms and conditions as set forth in
the policy, and as amplified, extended, or modified by any rider, endorsement,
or application attached to or made a part of the policy.” LA. REV. STAT. ANN. §
22:881 (2009). “If the policy wording at issue is clear and unambiguously
expresses the parties’ intent, the insurance contract must be enforced as
written.” Cadwallader, 848 So. 2d at 580.
      “An insurer, like other individuals, is entitled to limit its liability” and
may alter coverage under its policy through an endorsement as long as the
alteration does not “conflict with statutory law or public policy.” Zeitoun v.
Orleans Par. Sch. Bd., 09–1130, p. 4 (La. App. 4 Cir. 3/03/10); 33 So. 3d 361,
365 (citing La. Ins. Guar. Ass’n., 630 So. 2d at 763). Should an insurer and
insured attach an endorsement to the policy, “the endorsement becomes part
of the contract, and the two must be construed together.” Id. (citing Mattingly
v. Sportsline, Inc., 98–230, p. 7 (La. App. 5 Cir. 10/28/98); 720 So. 2d 1227,
1230). “If a conflict between the endorsement and the policy exists, the
endorsement      prevails.” Id. (citing Chi.   Prop.    Interests,   L.L.C.     v.
Broussard, 08–526, p. 10 (La. App. 5 Cir. 1/13/09); 8 So. 3d 42, 49); LA. CIV.
                                        12
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                                 No. 17-30311
CODE ANN. art. 2056 (1984). It is only “[i]f coverage is provided in the policy,
but then excluded in the endorsement to the policy, [will] coverage . . . be
excluded.” Id.
      Neither party argues that the Hartford policy is ambiguous. Rather, the
parties dispute whether the policy unambiguously provides coverage—Axis’s
contention—or unambiguously excludes coverage—Hartford’s contention.
Resolution of this issue turns primarily on the purpose of the CRB
Endorsement and whether its addition to the insurance policy in any way
altered the liability coverage provision in the insuring agreement. The district
court concluded that the liability coverage provision of the Hartford policy
unambiguously applies to “any auto” because of the designation on Item Two
of the Declarations. It also explained that the CRB Endorsement only describes
how the premium is calculated and therefore does not modify coverage under
the liability provision. Although no Louisiana court has opined on the effect of
a similar endorsement on an insurance policy’s liability coverage provision, we
agree with the district court: the intent of the parties, as evidenced by the
terms of the insurance policy—including the CRB Endorsement—was
unambiguously to provide liability coverage for the claims at issue.
      The two relevant provisions—the “covered ‘auto’” designation in Item
Two of the Declarations Page and the CRB Endorsement—arguably create
some ambiguity when read in isolation. Although the CRB Endorsement
provides that it “does not change the policy” other than to list the basis for
calculating the policy’s premium, that the Schedule listing the vehicles for
which the premium is calculated does not list “heavy-extra heavy trucks”
presents a perceived conflict within the policy. The discrepancy between Item
Two of the Declarations and the CRB Endorsement implies, as Hartford
argues, that the parties did not include “heavy-extra heavy trucks” in the


                                      13
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                                      No. 17-30311
premium calculation because they did not contemplate including that type of
vehicle in the policy’s liability coverage.
       However, we conclude that the “Premium Audit” provision of the
contract clarifies any perceived conflict or ambiguity created by the “covered
‘auto’” designation and the CRB Endorsement. The “Premium Audit” provision
explains the purpose and effect of the CRB Endorsement’s premium
calculation: “The estimated premium for this Coverage Form is based on the
exposures [the insureds] told [Hartford] it would have when the policy began.
We will compute the final premium due when we determine your actual
exposures.” The CRB Endorsement modifies the Premium Audit provision to
specifically identify the insureds’ actual exposures upon which the final
premium is calculated. This leaves open the possibility of the premium
increasing during the policy period to cover vehicles not listed in the Schedule
at the beginning of the policy period, and adequately reconciles the two
seemingly conflicting provisions. 15
       Hartford offers that as a whole, the policy could reasonably be read to
provide coverage for “any ‘auto,’” as Item Two of the Declarations indicates,
with that coverage being “modified” by the CRB Endorsement, which shows
the types of autos for which the insured desired coverage. That is, according to
Hartford, “[i]t is more rational to define ‘any auto’ as ‘any’ of the eighty-six
types of autos identified in the CRB Endorsement.” However, as the district
court noted, Item Two includes as a potential “covered ‘auto’” designation “07,”
which would only provide liability coverage for vehicles for which a premium
is calculated. Hartford and the insureds instead opted to use the “01”
designation for “any auto,” thus providing coverage for any conceivable vehicle.



        The parties do not indicate why the truck at issue was not originally included in the
       15

Schedule setting composite premium rates.
                                             14
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                                  No. 17-30311
See Fay v. Willis, 545 So. 2d 1296, 1299 (La. App. 1 Cir. 6/20/1989) (noting that
providing liability coverage for “any auto” is “all inclusive vis a vis restrictive”
and provides coverage for “all conceivable autos for which there might be
liability exposure”). To interpret the policy as Hartford suggests—as providing
coverage for “any auto” as limited by the CRB Endorsement’s premium
calculation specifications—would render the “07” designation on the
Declarations page without effect.
      Finally, Hartford argues that, even assuming the policy unambiguously
provides coverage, the court may still consider additional extrinsic evidence of
the parties’ intent if there is any doubt about the true intent of the parties. To
support this contention, Hartford cites Louisiana Insurance Guaranty
Association, 93–0911 (La. 1/14/94); 630 So. 2d 759, and Makofsky v.
Cunningham, 576 F.2d 1223 (5th Cir. 1978), which, according to Hartford,
authorize courts to consider extrinsic evidence to illuminate the parties’ intent
as long as such consideration does not modify or alter the terms of the policy—
even if the policy itself is unambiguous. However, neither of these cases stand
for the proposition for which they are offered. Louisiana Guaranty makes clear
that “[t]he parties’ intent as reflected by the words in the policy determine the
extent of coverage.” See La. Ins. Guar. Ass’n, 630 So.2d at 763. Similarly,
Makofsky reiterates the basic principles of contract interpretation under
Louisiana law that the court has applied to this case—contracts “are
interpreted to give effect to the intention of the parties as expressed in the
written terms of the contract,” although “Louisiana courts will not interpret
the words of a contract literally when this leads to unreasonable consequences
or inequitable or absurd results.” Makofsky, 576 F.2d at 1229 (citations
omitted). Neither of these cases articulate principles which would require us
to consider evidence of the contracting parties’ intent outside the four corners
of the Hartford policy.
                                        15
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                                  No. 17-30311
      To the contrary, Louisiana contract interpretation principles restrain us
from considering extra-contractual evidence of the parties’ intent where, as
here, the insurance policy is unambiguous. Extrinsic evidence is admissible
only if “the terms of a written contract are susceptible to more than one
interpretation, or there is uncertainty or ambiguity as to its provisions, or the
intent of the parties cannot be ascertained from the language employed.”
Brown v. Drillers, Inc., 93–1019 (La. 1/14/94); 630 So. 2d 741, 748 n.10 (quoting
Dixie Campers, Inc. v. Vesely Co., 398 So. 2d 1087, 1089 (La. 1981)); see
also Peterson v. Schimek, 98–1712, p. 10 (La. 03/02/99); 729 So. 2d 1024, 1032
(citing LA. CIV. CODE ANN. art. 1848 (2012)) (“[C]ourts are prohibited from
taking parol evidence to explain or contradict an insurance contract’s clear
meaning.”). The Hartford policy is clear in its scope of coverage and does not
suffer from the definitional deficiencies that would warrant considering
extrinsic evidence. Hartford’s argument that the district court, in its search for
the true intentions of the parties to the policy, should have considered extrinsic
evidence, and that its failure to do so was a dereliction of its responsibility to
ascertain the true intentions of the parties, is unavailing.
      Because the Hartford policy provides liability coverage for “any ‘auto,’”
and because the CRB Endorsement does not conflict with the liability coverage
provision of the policy, we hold that the policy unambiguously provides
coverage in this case. Hartford is therefore liable as a co-primary insurer whose
liability limits must be exhausted before recovery may be sought from Axis
consistent with the district court’s final judgment. We therefore conclude that
the district court properly granted Axis’s motion for summary judgment and




                                       16
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                                       No. 17-30311
denied that of Hartford, and affirm the district court’s summary judgment
ruling. 16
   C. Judicial Notice
       On appeal, Hartford argues that we should take judicial notice of “the
fact that Dana has admitted it never purchased coverage for heavy-extra heavy
trucks” in a lawsuit filed by Hartford in the U.S. District Court for the District
of New Jersey. 17 Hartford contends that Dana Transport’s “admission” in its
answer to Hartford’s complaint that the contracting parties intended that the
Hartford policy would not provide coverage for ‘autos’ with a gross vehicle
weight greater than 20,000 pounds is dispositive of the parties’ intent and
should guide our analysis of the contract interpretation issues presented
herein. That the insurance policy unambiguously provides coverage and
establishes the intent of the contract parties obviates the need to establish the
intent of the contracting parties and, further, the need to take judicial notice
of Dana Transport’s intent. We therefore decline Hartford’s invitation to take
judicial notice of Dana Transport’s “admission.”
                                     CONCLUSION
       Considering the foregoing, we AFFIRM the district court’s judgment.




       16  Given that the basis for our holding on Axis’s motion for summary judgment mirrors
the arguments included in Hartford’s motion, we pretermit discussing whether Hartford
waived its coverage defense.
        17 On December 8, 2016, Hartford sued Great West, AGLIC, Axis, and Dana Transport

in the U.S. District Court for the District of New Jersey, seeking reformation of the insurance
contract that forms the basis of this litigation to exclude coverage for “heavy-extra heavy
trucks.” The district court dismissed Hartford’s reformation claim on res judicata grounds,
citing the district court’s order in the instant case as having resolved whether the Hartford
policy provided coverage.
                                             17
