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

                                No. 15-60774                             FILED
                             Cons w/ No. 15-60876                    March 1, 2017
                                                                    Lyle W. Cayce
                                                                         Clerk
FEDERAL INSURANCE COMPANY,

             Plaintiff - Appellant

v.

SINGING RIVER HEALTH SYSTEM,

             Defendant – Appellee

                                     Consolidated with 15-60876

FEDERAL INSURANCE COMPANY,

             Plaintiff-Counter Defendant - Appellee

v.

SINGING RIVER HEALTH SYSTEM,

             Defendant – Appellant

&

SINGING RIVER HEALTH SYSTEM FOUNDATION,

             Counter Claimant – Appellant



                Appeals from the United States District Court
                   for the Southern District of Mississippi
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Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
       In this insurance coverage dispute, the district court granted partial
summary judgment in favor of Singing River Health System and Singing River
Health System Foundation and partial summary judgment in favor of Federal
Insurance Company. The parties appeal, and we affirm in part, and reverse
and render in part.
                                               I.
       Federal Insurance Company (“Federal”) provided insurance to Singing
River Heath System (“SRHS”) (collectively with Singing River Health System
Foundation, “Medical Insureds”). This coverage dispute between Federal and
Medical Insureds relates to various underlying lawsuits arising from SRHS’s
alleged underfunding of its Retirement Plan and Trust (“SRHS Lawsuits”).
The SRHS Lawsuits involve various claims, such as breach of fiduciary duty,
breach of contract, violations of the United States Constitution and the
Mississippi constitution, and violations of 42 U.S.C. § 1983.
       As relevant to this appeal, Federal issued to SRHS a Health Care
Portfolio, Policy No. 8211-9592, which had a policy period of March 1, 2014 to
March 1, 2015 (the “2014-2015 Policy”). The 2014-2015 Policy contains two
parts, both of which are written on a claims-made basis 1: (1) a Fiduciary
Coverage Section (“Fiduciary Coverage”), and (2) an Executive Liability, Entity
Liability, and Employment Practices Liability Section (“ELI/EPL Coverage”).
The policy limit for Fiduciary Coverage is $1 million for each claim, and the



       1 “A ‘claims made’ policy protects the holder only against claims made during the life
of the policy, while an ‘occurrence’ policy protects the policyholder from liability for any act
done while the policy is in effect.” Jones v. Baptist Mem’l Hosp.-Golden Triangle, Inc., 735
So. 2d 993, 999–1000 (Miss. 1999) (citation omitted).
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policy limit for ELI/EPL Coverage is $5 million for each claim. Under the
Fiduciary Coverage, “[Federal] shall pay, on behalf of the Insureds, Loss for
which the Insureds become legally obligated to pay on account of any Fiduciary
Claim [under certain conditions].” The ELI/EPL Coverage contains a similar
obligation to pay for loss.
      The 2014-2015 Policy contains the following language relevant to this
appeal:
            The applicable limit(s) of liability to pay “loss” will be
            reduced, and may be exhausted, by “defense costs”
            unless otherwise specified herein.
            ....
            The limit of liability to pay “loss” will be reduced and
            may be exhausted by “defense costs”, unless otherwise
            specified herein, and “defense costs” will be applied
            against the retention. In no event will the company
            be liable for “defense costs” or other “loss” in excess of
            the applicable limit(s) of liability.
            ....
            If the Optional Separate Defense Costs Coverage is
            not purchased, Defense Costs shall be part of, and not
            in addition to, the Limits of Liability set forth . . . for
            this coverage section, and the payment by the
            Company of Defense Costs shall reduce and may
            exhaust such applicable Limits of Liability.
(emphasis omitted). SRHS did not purchase the Optional Separate Defense
Costs Coverage. The application for the 2014-2015 Policy states:
            The limit of liability to pay damages or settlements
            will be reduced and may be exhausted by “defense
            costs,” and “defense costs” will be applied against the
            retention amount. In no event will the company be
            liable for “defense costs” or other “loss” in excess of the
            applicable limit of liability.
(emphasis omitted).     In this application, SRHS did not check the box for
Optional Separate Defense Costs Coverage.
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       The 2014-2015 Policy defines Defense Costs as “that part of Loss
consisting of reasonable costs, charges, fees (including but not limited to
attorneys’ fees and experts’ fees) and expenses . . . incurred in defending any
Claim.” “Loss,” in turn, is defined as “the amount that any Insured . . . becomes
legally obligated to pay on account of any covered [Claim], including but not
limited to . . . Defense Costs.”         Finally, the ELI/EPL Coverage contains
Exclusion 7(e), which provides that:
              The Company shall not be liable for Loss on account of
              any Claim . . . for any actual or alleged violation of the
              responsibilities, obligations or duties imposed by any
              federal, state, or local statutory law or common law
              anywhere in the world (including but not limited to the
              Employee Retirement Income Security Act of 1974
              (except section 510 thereof) and the Consolidated
              Omnibus Budget Reconciliation Act of 1985), . . . that
              governs any employee benefit arrangement program,
              policy, plan or scheme of any type . . . (“Employee
              Benefits Program Laws”), including but not limited to
              any . . . retirement income or pension benefit program
              . . . [or] similar arrangement, program, plan or scheme.
       SRHS and various individual insureds tendered defense of the SRHS
Lawsuits to Federal, and Federal defended SRHS and the individual insureds
under a reservation of rights. 2 In its reservation of rights letter, Federal stated
that, pursuant to the policy, Defense Costs deplete the policy limits. Federal
also denied ELI/EPL Coverage on the grounds that Exclusion 7(e) covered the
subject matter of the SRHS Lawsuits.



       2  “When an insurer provides a defense for an insured under a reservation of rights,
the insurer defends the insured ‘while at the same time reserving the right to deny coverage
in [the] event a judgment is rendered against the insured.’” Hartford Underwriters Ins. Co.
v. Found. Health Servs. Inc., 524 F.3d 588, 592 n.2 (5th Cir. 2008) (alteration in original)
(quoting Moeller v. Am. Guar. & Liab. Ins. Co., 707 So. 2d 1062, 1069 (Miss. 1996)).
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      In its subsequent declaratory action, Federal sought a declaration that,
inter alia, “the Limit of Liability under the Fiduciary Coverage Section is $1
million, subject to a $1 million aggregate limit, and a $10,000.00 Retention,
with Defense Costs eroding or depleting those limits.”          It also sought a
declaration that no coverage exists under the ELI/EPL Coverage section.
SRHS filed a counterclaim, which named as a party Singing River Health
System Foundation, formerly known as Coastal Medical Healthcare
Foundation Inc. (the “Foundation”).       The counterclaim alleged “causes of
action” for waiver, estoppel, civil conspiracy, breach of contract, tortious breach
of contract, breach of fiduciary duty, breach of the duty of good faith and fair
dealing, bad faith, interference with contract and business relations, and
conversion, and sought declaratory relief.
      Medical Insureds moved for partial summary judgment and injunctive
relief, or in the alternative for a preliminary injunction.      By this motion,
Medical Insureds requested the court order Federal to continue to pay all
Defense Costs in the SRHS Lawsuits without regard to the policy limits. The
district court granted the motion, entering judgment that “defense costs paid
in the underlying pension plan litigation . . . should not be deducted from the
policy limits.”
      While Medical Insureds’ motion was pending, Federal moved for
summary judgment, requesting the district court issue a declaratory judgment
that Federal’s defense and indemnity obligations for the SRHS Lawsuits are
limited to the policy’s $1 million Limits of Liability for Fiduciary Liability
Coverage and that Defense Costs erode this limit. Medical Insureds then
moved to join necessary parties and for the court to continue its ruling on
Federal’s motion so Medical Insureds could conduct discovery pursuant to
Federal Rules of Civil Procedure 56(d). The district court denied Medical
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Insureds’ motion and granted Federal’s motion in part. After determining that
there was no just reason for delay, the court entered a partial final judgment.
                                             II.
       The district court exercised diversity jurisdiction under 28 U.S.C. § 1332.
Both parties appealed from the district court’s Rule 54(b) partial final
judgment. Because the district court properly entered a partial final judgment
under Rule 54(b), see Eldredge v. Martin Marietta Corp., 207 F.3d 737, 740 (5th
Cir. 2000), we have jurisdiction. 3
       We review a grant of summary judgment de novo, applying the same
standard as the district court. United States v. Lawrence, 276 F.3d 193, 195
(5th Cir. 2001). Summary judgment is proper where there is no genuine
dispute of material fact, and a party is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(a).
       We review a district court’s interpretation of a contract de novo, Gonzalez
v. Denning, 394 F.3d 388, 392 (5th Cir. 2004), and a denial of a Federal Rule of
Civil Procedure 56(d) motion for discovery for an abuse of discretion, Stearns
Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 534 (5th Cir. 1999). Finally,
we review the denial of a motion to join under Federal Rules of Procedure 19(a)
and 20 for an abuse of discretion. Acevedo v. Allsup’s Convenience Stores, Inc.,
600 F.3d 516, 520 (5th Cir. 2010); Bank One Tex. N.A. v. Arcadia Fin. Ltd., 219
F.3d 494, 497 (5th Cir. 2000).


       3 Having determined the district court correctly entered its Rule 54(b) partial final
judgment, we deny Medical Insureds’ motion to dismiss filed on February 12, 2016. It is
therefore administratively unnecessary to consider Federal’s first notice of appeal, as it is
duplicative of its second notice of appeal. The Clerk of Court is directed to administratively
close No. 15-60774, deny Medical Insureds’ motion to dismiss filed November 13, 2015, as
moot, and ensure that all documents related to Federal’s second notice of appeal are docketed
in No. 15-60876. Federal’s appeal and Medical Insureds’ cross-appeal are considered jointly
under No. 15-60876.
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                                       III.
                                        A.
      We first address the issue raised in Federal’s appeal: whether the district
court erred in determining that “Defense costs paid in the underlying pension
plan litigation pursuant to Moeller v. American Guarantee & Liability
Insurance Co., 707 So. 2d 1062 (Miss. 1996), should not be deducted from the
limits applicable to the March 1, 2014 through March 1, 2015 policy.” The
2014-2015 Policy states in multiple places that Defense Costs erode policy
limits and that Federal will not pay Defense Costs over and above policy limits.
On appeal, Medical Insureds argue that (1) the policy terms and Moeller
mandate the payment of Defense Costs separate and apart from the policy
limit and (2) alternatively, public policy prevents Defense Costs from eroding
policy limits.
      Under Mississippi law, insurance policies are to be enforced according to
their provisions. Noxubee Cty. Sch. Dist. v. United Nat’l Ins. Co., 883 So. 2d
1159, 1166 (Miss. 2004). The Mississippi Supreme Court has noted that
             [w]hen parties to a contract make mutual promises
             (barring some defense or condition which excuses
             performance), they are entitled to the benefit of their
             bargain. Thus, insurance companies must be able to
             rely on their statements of coverage, exclusions,
             disclaimers, definitions, and other provisions, in order
             to receive the benefit of their bargain and to ensure
             that rates have been properly calculated.
Id. “[I]n interpreting an insurance policy, this Court should look at the policy
as a whole, consider all relevant portions together and, whenever possible, give
operative effect to every provision in order to reach a reasonable overall result.”
Corban v. United Servs. Auto. Ass’n, 20 So. 3d 601, 609 (Miss. 2009) (alteration
in original) (quoting J & W Foods Corp. v. State Farm Mut. Auto. Ins. Co., 723

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So. 2d 550, 552 (Miss. 1998)). Furthermore, where a contract is clear and
unambiguous, it must be interpreted as written. Id. (citation omitted).
                                       1.
      With this framework in mind, we begin with Moeller, which, Medical
Insureds maintain, requires Federal to pay their Defense Costs without regard
to policy limits. In Moeller, the insurer defended the insureds, a law firm, in a
business dispute under a reservation of rights. 707 So. 2d at 1064, 1066. In
addition to being represented by the insurer’s choice of counsel, the law firm
retained separate counsel in the business dispute. Id. The law firm later
sought to be reimbursed by the insurer for the cost of its separate counsel. Id.
at 1067.   In holding that the insurer was responsible for this cost, the
Mississippi Supreme Court discussed the ethical obligations of counsel and
noted that “other jurisdictions have generally held that in such a situation, not
only must the insured be given the opportunity to select his own counsel to
defend the claim, the carrier must also pay the legal fees reasonably incurred
in the defense.” Id. at 1069–71 (citing cases).
      Moeller does not stand alone, but rather reflects the commonly accepted
rule that where a conflict of interest exists, the insurer must pay for the
insured’s separate counsel.     See 12 NEW APPLEMAN ON INSURANCE LAW
LIBRARY EDITION § 148.04 (2016). Moeller did not speak to the ability of an
insured to include Defense Costs as eroding the policy limit.
      Indeed, Southern Healthcare Services, Inc. v. Lloyd’s of London, 110 So.
3d 735 (Miss. 2013), establishes that Moeller does not create an absolute right
to reimbursement of all defense costs. There, the Mississippi Supreme Court
enforced a provision in an insurance contract that required the insureds to pay
a deductible of $250,000 towards any liability, which included defense costs.
S. Healthcare Servs., 110 So. 3d at 747. In so determining, the court noted that
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Moeller “cannot be read in a vacuum.” Id. at 748. Rather, there was no
indication that the policy in Moeller included a deductible, and “the principles
therein cannot be strictly applied without taking into account the terms of the
specific policies at issue.” Id. Accordingly, “where the policy specifies that
defense costs are included in the deductible, the insurer is not responsible for
defense costs until the deductible has been paid.”        Id.   At bottom, the
Mississippi Supreme Court in Southern Healthcare determined that the
general duty to provide independent counsel set forth in Moeller is subject to
the terms of the applicable policy. Applying this rationale, Federal’s duty to
pay Defense Costs is subject to the terms of the 2014-2015 Policy, which states
in multiple locations that Defense Costs erode policy limits. Indeed, SRHS
specifically declined to purchase separate coverage for Defense Costs.
      Medical Insureds’ contention that Federal cannot subtract Defense Costs
from the policy limits is based on Moeller and the language of the policy,
specifically the phrase “becomes legally obligated to pay.” According to their
argument, Defense Costs is defined by reference to Loss, which is “the amount
that any Insured . . . becomes legally obligated to pay.” Medical Insureds
maintain that, because of this language, the only Defense Costs that can be
eroded are those that Medical Insureds are legally obligated to pay and, under
Moeller, they are not “legally obligated to pay” the Defense Costs because those
costs are to be borne by the insurer, Federal.      This argument rests on a
misunderstanding of Moeller, which says nothing about an insured’s separate
obligation to pay for its counsel. In support of their contention that they had
no obligation to pay for their counsel, Medical Insureds point to various
affidavits that merely restate this same misunderstanding of Moeller. These
affidavits do not undercut the basic premise that, without the insurance policy,
the attorneys’ fees incurred in defending a case would be borne by the client
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either under contract law, a theory of unjust enrichment, or otherwise. Cf. Gon
v. First State Ins. Co., 871 F.2d 863, 868 (9th Cir. 1989) (where the insurer
agreed to pay defense costs that the insured is “legally obligated to pay,” the
insurer “must pay legal expenses as they are incurred, because an insured
becomes legally obligated to pay legal expenses as soon as the services are
rendered”). The fact that the insurance policy places some burden to pay the
fees on the insurance company does not undermine this principle.
      Moreover, Medical Insureds’ argument reads the several eroding policy
provisions out of the policy. They have identified no circumstance under their
reasoning where attorney’s fees would be both covered by the policy and fees
that the insured would be “legally obligated to pay.” In other words, Medical
Insureds argue that Federal must defend all covered or potentially covered
claims and that such sums are ones that they are not “legally obligated to pay.”
Under this reasoning, there would never be any “Defense Costs” as defined in
the policy. Reading several clauses out of the policy, including ones that make
clear that a non-eroding policy will cost extra, is inconsistent with the
requirement to consider the language of the policy as a whole. See Corban, 20
So. 3d at 609. The only reasonable construction of the policy is that the
insurance company assumes the burden of fees and losses that, but for the
insurance policy, would be the insured’s legal obligation.      Accordingly, we
reject Medical Insureds’ argument that Moeller and the policy language
require Federal to pay Defense Costs without regard to policy limits.
                                       2.
      We next turn to Medical Insureds’ public policy arguments. “[C]ourts
must enforce contracts as they are written, unless such enforcement is contrary
to law or public policy.” Allstate Ins. Co. v. Chi. Ins. Co., 676 So. 2d 271, 275
(Miss. 1996) (citation omitted). “In determining whether contracts should be
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invalidated on the ground that they violate public policy, [the Mississippi
Supreme Court] ha[s] held that this should not be done unless the contract is
prohibited by the Constitution, a statute, or condemned by some decision of the
courts construing the subject matter.” Cappaert v. Junker, 413 So. 2d 378, 380
(Miss. 1982).
       Medical Insureds’ first public policy argument is based on Moeller, but,
as already explained, Moeller does not create an absolute duty to defend.
Accordingly, Moeller does not create a prohibition on a defense-within-limits
policy as a matter of public policy.
       We also reject Medical Insureds’ public policy arguments based on
Mississippi statutory law, 4 specifically Mississippi Code sections 41-13-11 and
11-46-17(3). Mississippi Code section 41-13-11 authorizes the board of trustees
of any community hospital to purchase liability insurance. Under the statute,
“[s]uch insurance shall be for such amounts of coverage . . . as the board of
trustees, in its discretion, shall determine.” MISS. CODE ANN. § 41-13-11(4).
According to Medical Insureds, section 41-13-11 prohibits an eroding policy
because the insurance “shall” be for the amount of coverage specified. This is
an improper interpretation of section 41-13-11. This section simply provides
that the board of trustees determines the amount of coverage. See Sw. Miss.
Reg’l Med. Ctr. v. Lawrence, 684 So. 2d 1257, 1265 (Miss. 1996) (noting that,
under Section 41-13-11, “[a] community hospital, in its discretion, may obtain


       4 Medical Insureds also make public policy arguments that are not based on statutes
or cases. For example, although discussing the Mississippi Insurance Department’s “official
position” on defense-within-limits policies, Medical Insureds provide no authority that a
violation of this position is a violation of public policy. Rather, “contracts are not in violation
of the public policy of the government unless either prohibited by express terms or the fair
implication of a statute, or condemned by some decision of the courts construing the subject-
matter.” Cappaert, 413 So. 2d at 380 (emphasis added) (quoting State ex rel. Knox v. Hines
Lumber Co., 115 So. 598, 605 (Miss. 1928)).
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liability insurance coverage out of its operating funds”). Section 41-13-11 does
not require that Defense Costs be excluded from calculation of the amount of
coverage.
      Medical Insureds’ interpretation of section 11-46-17 is similarly
misplaced. In its relevant part, this section provides:
            The policy or policies of insurance or self-insurance
            may contain any reasonable limitations or exclusions
            not contrary to Mississippi state statutes or case law
            as are normally included in commercial liability
            insurance policies generally available to political
            subdivisions. All the plans of insurance or reserves or
            combination of insurance and reserves shall be
            submitted for approval to the board. . . . Whenever any
            political subdivision fails to obtain the board’s
            approval of its plan, the political subdivision shall act
            in accordance with the rules and regulations of the
            board and obtain a satisfactory plan of insurance or
            reserves or combination of insurance and reserves to
            be approved by the board.
MISS. CODE ANN. § 11-46-17(3). By its clear terms, section 11-46-17(3) places
any obligation to obtain board approval on SRHS, not on Federal. Moreover,
the statute does not indicate that any failure to obtain board approval
somehow invalidates the policy.     See also Imperial Premium Fin., Inc. v.
Khoury, 129 F.3d 347, 350–51 (5th Cir. 1997) (analyzing a Texas Insurance
Code provision). Rather, it states that, in the event of any such failure, the
political subdivision “shall act in accordance with the rules and regulations of
the board and obtain a satisfactory plan of insurance or reserves or
combination of insurance and reserves to be approved by the board.” MISS.
CODE ANN. § 11-46-17(3). Indeed, if the effect of any such failure were the
invalidation of the policy, the entire policy would have to be invalidated, not
just the defense-within-limits policy. Moreover, there is proof that the policy

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was agreed to after a full and fair negotiation of all limitations and exclusions.
As the district court noted, the application for the policy was signed by the CEO
and CFO of SRHS.
       In their final public policy argument, Medical Insureds maintain the
defense-within-limits clause is unenforceable because it was not placed on the
board’s minutes. Mississippi law requires that contracts between a public
board and a contracting entity be “spread upon the minutes” of the board and
places the responsibility of complying with the “minutes rule” on the
contracting entity. Wellness, Inc. v. Pearl River Cty. Hosp., 178 So. 3d 1287,
1291 (Miss. 2015). “[B]y enforcing the minutes rule, the [Mississippi Supreme]
Court has recognized the importance of recorded, express consent by all board
members to board actions, as board members are elected officials charged with
the protection of the public’s funds.” Id. at 1292 (citation omitted). Despite
the existence of this general legal proposition, however, Mississippi law
specifically authorizes the board of trustees of a community hospital to obtain
insurance in a statute that does not incorporate the “minutes rule.” See MISS.
CODE ANN. § 41-13-11(4). In light of this clear statutory dictate, we cannot say
that the defense-within-limits provision is unenforceable for failure to place it
on the minutes. 5




       5 We therefore do not address the potentially troubling premise of Medical Insureds’
argument—that, where a private party to a contract fails to spread a contract on the public
entity’s board’s minutes, the public entity can pick and choose which provisions of a contract
it would like to enforce against the private party as opposed to invalidating the entire
contract. See Wellness, 178 So. 3d at 1291 (“[T]he minutes from the Board of Trustees’
meetings do not set forth sufficient terms to establish the liabilities and obligations of the
parties, and thus the court cannot enforce the contract, much less the mediation or arbitration
clauses therein.” (emphasis added)). Taken to its logical extreme, this would allow SHRS to
enforce the requirement to pay the loss while disavowing the policy limits, an absurd result.
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      Ultimately, “insurance companies must be able to rely on their
statements of coverage, exclusions, disclaimers, definitions, and other
provisions, in order to receive the benefit of their bargain, and to ensure that
rates have been properly calculated.” United States Fid. & Guar. Co. v. Knight,
882 So. 2d 85, 92 (Miss. 2004). Mississippi law does not allow the courts to use
rules of construction to defeat the parties’ own agreement as expressed in the
policy. See State Auto. Mut. Ins. Co. of Columbus v. Glover, 176 So. 2d 256, 258
(Miss. 1965)).   Furthermore, “if the insured wanted a policy that had an
unlimited defense obligation, rather than an eroding one, it should have
contracted for such a policy.” N. Am. Specialty Ins. Co. v. Royal Surplus Lines
Ins. Co., 541 F.3d 552, 559 (5th Cir. 2008). Here, the policy states that Defense
Costs erode policy limits, and public policy does not bar such a provision.
Accordingly, the district court erred in determining that Defense Costs did not
erode the policy limit, and Federal is entitled to judgment on this issue.
                                       B.
                                        1.
      We now turn to Medical Insureds’ cross-appeal.          The district court
granted partial summary judgment in favor of Federal, determining that,
            [a]ll of the claims asserted in Almond, Jones, et al.,
            Thompson, Aguilar, Drury, Bosarge, Cobb, et al.,
            Broun, et al., Eiland, Lay, and Lowe, et al., and Counts
            5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21,
            and 22 of the Beasley Complaint are excluded by the
            plain language of the Employee Benefits Program
            Laws exclusion [Exclusion 7(e)] in the ELI/EPL section
            of the policy.
      We have previously explained that, under Mississippi law, exclusionary
provisions are construed against the insurance company such that if there are
two reasonable constructions of such a clause, the one favoring the insured

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must be applied. Liberty Mut. Fire Ins. Co. v. Canal Ins. Co., 177 F.3d 326, 331
(5th Cir. 1999). To determine whether Federal has a duty to defend, this court
looks to the allegations in the underlying complaints. Am. Guarantee & Liab.
Ins. Co. v. 1906 Co., 273 F.3d 605, 610 (5th Cir. 2001). 6
       We start by noting that the language in the exclusion is broad,
encompassing “any Claim . . . for any actual or alleged violation of the
responsibilities, obligations or duties imposed by any federal, state, or local
statutory law or common law anywhere in the world . . . that governs any



       6 As an initial matter, we must consider whether it was proper for the district court to
consider coverage before the SRHS Lawsuits are resolved. We have previously noted that,
“[u]nlike the duty to defend, which can be determined at the beginning of a lawsuit, an
insurer’s duty to indemnify generally cannot be ascertained until the completion of litigation,
when liability is established, if at all.” Estate of Bradley ex rel. Sample v. Royal Surplus Lines
Ins. Co., Inc., 647 F.3d 524, 531 (5th Cir. 2011) (citation omitted) (applying Mississippi law).
“[U]nlike the duty to defend, which turns on the pleadings and the policy, the duty to
indemnify turns on the actual facts giving rise to liability in the underlying suit, and whether
any damages caused by the insured and later proven at trial are covered by the policy.” Id.;
see also D.R. Horton-Tex., Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 743–45 (Tex. 2009)
(applying Texas law); Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 877 (5th Cir. 2009)
(applying Louisiana law).
        While the duty to indemnify generally cannot be resolved solely on the pleadings,
there is an exception to this rule. In Farmers Texas County Mutual Insurance Co. v. Griffin,
955 S.W.2d 81, 82, 84 (Tex. 1997), the Supreme Court of Texas announced that the duty to
indemnify could be resolved at the summary judgment stage when “the insurer has no duty
to defend and the same reasons that negate the duty to defend likewise negate any possibility
the insurer will ever have a duty to indemnify.” Thus, the duty to indemnify may be non-
justiciable at the summary judgment stage if “facts can be developed in the underlying . . .
suit” that negate “any possibility the insurer will ever have a duty to indemnify.” Griffin,
955 S.W.2d at 84 (emphasis omitted); see also Hartford Cas. Ins. Co. v. DP Eng’g, L.L.C., 827
F.3d 423, 430 (5th Cir. 2016) (discussing the “no set of facts” exception in Griffin); see also
Solstice Oil & Gas I, L.L.C. v. Seneca Ins. Co., 655 F. App’x 221, 224–25 (5th Cir. 2016)
(similar). We have applied the general rule of non-justiciability in a case governed by
Mississippi law, noting that “nothing in our research [] suggests that the Mississippi
Supreme Court would deviate from the accepted definition of indemnity if that court were
called upon to decide the question before us.” Royal Surplus, 647 F.3d at 531 n.5. Because
we ultimately conclude that all of the district court’s identified claims fall within Exclusion
7(e) and there are no set of facts that could be developed in the SRHS Lawsuits that would
create a duty to indemnify, judgment as to indemnity is not premature.
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employee benefit arrangement program, policy, plan or scheme of any
type . . . .” We disagree with the Medical Insureds’ argument that the district
court read “govern” too broadly in determining the identified claims fell under
Exclusion 7(e). Laws such as ERISA, the Mississippi Uniform Trust Code, the
Civil Rights Act, the United States Constitution, the Mississippi constitution,
and general common law create obligations with which employee benefit plans
must comply. Accordingly, they “govern” employee benefit plans because the
obligations they create control the pension plans. Indeed, the plaintiffs in the
SRHS Lawsuits only bring claims under the identified common law and
statutes because they create obligations with which pension plans must
comply. Moreover, the language of the exclusion indicates that the exclusion
cannot be limited to laws that “solely governs” employee benefit plans, such as
ERISA or COBRA. The exclusion states that the law provided includes but is
not limited to ERISA and COBRA, meaning the realm of covered law is larger
than those two statutes alone.
      We also reject Medical Insureds’ argument that the constitutional
violations alleged in the Jones, Cobb, and Beasley complaints fall outside of the
exclusion because, by its terms, Exclusion 7(e) only applies to a “violation of
the responsibilities, obligations or duties imposed by any federal, state, or local
statutory law or common law.” Put another way, Medical Insureds maintain
the exclusion does not encompass constitutional claims.           Assuming that
“statutory law” and “common law” modify both “federal” and “state,” Medical
Insureds have not identified a constitutional provision that gives them the
right to sue and receive a remedy. Rather, the “constitutional claims” are
based on statutory or common law, albeit based on an underlying violation of
the constitution. See, e.g., 42 U.S.C. § 1983; Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)). Accordingly, the
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“constitutional claims” fall within Exclusion 7(e) and the district court did not
err in determining there was no ELI/EPL Coverage as to the identified claims.
                                               2.
       We likewise reject Medical Insureds’ remaining arguments on appeal.
Medical Insureds maintain that “issues raised in [their] Verified Counterclaim,
asserting multiple other bases requiring Federal to defend and indemnify
under multiple policies issued from 2009 through 2016, independently
preclude any judgment for Federal on direct or cross-appeal.” 7 To the extent
this argument refers to their waiver and estoppel arguments, the district court
explicitly addressed and rejected these claims, and Medical Insureds do not
challenge these determinations on appeal. 8 To the extent this argument refers


       7 The district court determined that “all claims related to the pension plan are treated
pursuant to the plain language of the policy as having been first made during the March 1,
2014, through March 1, 2015 policy issued to Singing River.” Medical Insureds do not appeal
this determination.
       8 Instead, they maintain that the district court abused its discretion in denying their
motion to conduct discovery on these claims prior to ruling on Federal’s motion for summary
judgment. Rule 56(d) allows the district court to provide additional time for discovery before
ruling on a motion if the nonmovant shows an inability to factually support its opposition.
FED. R. CIV. P. 56(d). While “Rule 56(d) motions for additional discovery are broadly favored
and should be liberally granted,” Am. Family Life Assurance Co. v. Biles, 714 F.3d 887, 894
(5th Cir. 2013) (quoting Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010)), the party filing
the motion must demonstrate “how additional discovery will create a genuine issue of
material fact,” Canady v. Bossier Par. Sch. Bd., 240 F.3d 437, 445 (5th Cir. 2001) (quoting
Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1396
(5th Cir. 1994)). In evaluating a district court’s ruling on Rule 56(d) motions, we generally
assess whether the evidence presented would affect the outcome of a summary judgment
motion. See Biles, 714 F.3d at 894.
       Medical Insureds have failed to explain how additional discovery would have affected
the outcome of the summary judgment motion. See Prospect Capital Corp. v. Mut. of Omaha
Bank, 819 F.3d 754, 758 (5th Cir. 2016) (affirming the denial of a Rule 56(d) motion where
the party failed to “explain how such facts would influence the outcome of the summary
judgment motion”); Biles, 714 F.3d at 894 (facts must “influence the outcome of the pending
summary judgment motion”). The district court specifically addressed the issue of waiver,
estoppel, and duty to defend and found the claims failed. Medical Insureds do not explain
what other conduct, if proven, would have given rise to a claim for waiver or estoppel that
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to additional policies, as the district court noted, the existence of a separate
policy between Foundation and Federal was irrelevant because that policy was
not at issue in the motion for summary judgment. Indeed, the district court
only entered partial final judgment.
      In its final argument, Medical Insureds maintain that the district court
erred in denying their request for joinder of all insureds and plaintiffs in the
underlying SRHS Lawsuits under both Federal Rules of Civil Procedure 19(a)
and 20. Under Rule 19, a party must be joined if:
             (A) in that person’s absence, the court cannot accord
             complete relief among existing parties; or
             (B) that person claims an interest relating to the
             subject of the action and is so situated that disposing
             of the action in the person’s absence may:
                    (i) as a practical matter impair or impede the
                    person’s ability to protect the interest; or
                    (ii) leave an existing party subject to a
                    substantial risk of incurring double, multiple,
                    or otherwise inconsistent obligations because of
                    the interest.
FED. R. CIV. P. 19(a)(1).
      Medical Insureds maintain that all insureds needed to be joined under
19(a)(1)(A) because their presence was necessary to afford complete relief. But
the partial final judgment neither mentions any insureds other than SRHS,
nor does it make Federal’s requested declaration as to the judgment being
binding on the other insureds. The district court was therefore able to afford
complete relief among the parties without joining the additional insureds, and
thus Rule 19(a)(1)(A) did not require their joinder. Medical Insureds also argue
the additional insureds needed to be joined under 19(a)(1)(B) because (1) the


was not already addressed and rejected by the district court. Accordingly, we reject their
argument that the district court abused its discretion in denying their Rule 56(d) motion.
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additional insureds have an interest in establishing the amount of available
funds and preserving those funds to cover judgments against them and (2)
Federal was exposed to a risk of incurring multiple or inconsistent obligations.
But because Medical Insureds and the additional insureds had the same
interest—maximizing coverage—their interests were protected. See Bacardi
Int’l Ltd. v. Suarez & Co., 719 F.3d 1, 10–12 (1st Cir. 2013). As to the risk of
multiple or inconsistent obligations, this risk is borne by Federal, who opposed
the motion to join the additional insureds. The district court determined that
the likelihood was not substantial as required by the statute, and on appeal,
Medical Insureds make no attempt to explain how that determination was in
error.
         Turning to the joinder of the plaintiffs in the SRHS Lawsuits, Medical
Insureds maintain their financial interest in the outcome of coverage dispute
makes them required parties under Rule 19(a)(1)(B)(i). Although we have
determined that insurance plaintiffs may fall under that subsection, see
Ranger Ins. Co. v. United Hous. of N.M., Inc., 488 F.2d 682, 683 & n.3 (5th Cir.
1974), that case is distinguishable. There, the plaintiffs could not intervene in
the federal action because their presence would divest the court of diversity
jurisdiction. Id. at 682–83. By contrast, here, the plaintiffs can intervene
because they are diverse. Accordingly, plaintiffs have means to protect their
interest. See Smith v. State Farm Fire & Cas. Co., 633 F.2d 401, 405 (5th Cir.
1980) (noting that an absent trustee’s ability to protect his interest was not
significantly impaired where “[i]t is clear from the record that the trustee was
aware of this litigation yet did not attempt to be made a party”); see also Am.
Safety Cas. Ins. Co. v. Condor Assocs., Ltd., 129 F. App’x 540, 542 (11th Cir.
2005) (discussing the relationship between required Rule 19(b) and the
possibility of intervention). Moreover, as the district court noted, the plaintiffs
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have the same interest as Medical Insureds—maximizing coverage—so, like
the additional insureds, their interests are protected by Medical Insureds’
vigorous litigation in the coverage dispute. See Bacardi Int’l, 719 F.3d at 12
(“Where an existing party has ‘vigorously addressed’ the interests of absent
parties, we have no need to protect a possible required party from a threat of
serious injury.”). Furthermore, as the district court noted, both the additional
insureds and plaintiffs in the underlying SRHS Lawsuits had not moved to
intervene. See United States v. San Juan Bay Marina, 239 F.3d 400, 407 (1st
Cir. 2001) (noting that an alleged required party’s “decision to forgo
intervention indicates that [it] d[id] not deem its own interests substantially
threatened by the litigation, [and thus] the court should not second-guess [the
district court’s determination it was not a required party], at least absent
special circumstances”).
      Under Rule 20, joinder of plaintiffs is permissive “when (1) their claims
arise out of the ‘same transaction, occurrence, or series of transactions or
occurrences’ and when (2) there is at least one common question of law or fact
linking all claims.” Acevedo, 600 F.3d at 521. But “even if this test is satisfied,
district courts have the discretion to refuse joinder in the interest of avoiding
prejudice and delay, ensuring judicial economy, or safeguarding principles of
fundamental fairness.” Id. (citations omitted). The district court noted that
the logistics in joining all of the requested parties would create substantial
delay, whereas it was in the best interest of all parties to have coverage
determined as soon as possible. We have previously approved of the exercise
of discretion to deny a motion under Rule 20 due to concerns of delay and
judicial economy, see Acevedo, 600 F.3d at 522, and do so here. At bottom, the




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district court did not err in denying Medical Insureds’ motion to join additional
parties. 9
                                             IV.
       As to the district court’s decision regarding Defense Costs, we REVERSE
the grant of summary judgment in favor of Medical Insureds and RENDER
judgment in favor of Federal. We AFFIRM the district court’s grant of partial
summary judgment in favor of Federal regarding ELI/EPL Coverage.




       9 We do not address Medical Insureds’ argument, made for the first time in their reply,
that this court should “revisit” the district court’s decisions regarding whether the claims in
Beasley constitute “related claims.”
                                              21
