     Case: 15-10443     Document: 00513571779     Page: 1   Date Filed: 06/29/2016




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

                                                                         FILED
                                                                       June 29, 2016
                                   No. 15-10443
                                                                       Lyle W. Cayce
                                                                            Clerk
HARTFORD CASUALTY INSURANCE COMPANY; HARTFORD LLOYDS
INSURANCE COMPANY,

               Plaintiffs - Appellees

v.

DP ENGINEERING, L.L.C.; JOHN SCROGGINS,

               Defendants - Appellants




                   Appeal from the United States District Court
                        for the Northern District of Texas


Before DAVIS, SOUTHWICK, and COSTA, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
         DP Engineering, L.L.C., and its employee, John Scroggins, were sued by
individuals injured in an industrial accident at an Entergy nuclear power
plant.     The present suit concerns DP Engineering’s insurers, Hartford
Casualty Insurance Company and Hartford Lloyds Insurance Company. The
two Hartford companies sought a declaratory judgment that they had no duty
to defend or indemnify DP Engineering in those lawsuits. The district court
granted summary judgment to the insurers. DP Engineering appeals. We
AFFIRM in part and REVERSE and REMAND in part.
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                                No. 15-10443
              FACTUAL AND PROCEDURAL BACKGROUND
      DP Engineering, L.L.C., entered into an agreement to provide
engineering services for a project at an Entergy nuclear power plant in
Arkansas. John Scroggins, an engineer with DP Engineering, worked on the
project.   Entergy needed to remove and refurbish a “stator,” which is a
cylindrical 520-ton component of the electricity-generation system. The stator
was lifted out of its cradle and secured to a gantry. The gantry with its load
was then to be moved on tracks across a large deck. At an opening in the deck,
the stator would be lowered, placed onto a vehicle, and moved outside the
building for maintenance work. At some point in the procedure, the gantry
collapsed. Both the gantry and stator crashed to the floor, causing massive
property damage to Entergy’s plant. One worker died. Others were injured.
      Entergy sued DP Engineering and Scroggins, along with others involved
in the project, for breach of contract and negligence (the “Entergy lawsuit”).
DP Engineering, Entergy, and the other companies involved in the stator
project were sued by the estate of the deceased worker and three injured
workers. Scroggins was not a defendant in these four lawsuits (collectively the
“personal injury lawsuits”).
      DP Engineering’s insurers, Hartford Casualty Insurance Company and
Hartford Lloyds Insurance Company (together “Hartford”), sought a
declaratory judgment that there was no duty to defend or indemnify under
their policies. Hartford Casualty had issued a primary insurance policy and
an umbrella policy to DP Engineering. Hartford Lloyds had issued only a
primary insurance policy. All three policies contained an exclusion of coverage
for injuries or damages arising out of DP Engineering’s professional services.
      DP Engineering asserted counterclaims against Hartford, seeking a
declaratory judgment that Hartford had a duty to defend and bringing a breach
of contract claim for Hartford’s refusal to accept the defense. Both parties
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                                  No. 15-10443
moved for summary judgment. The district court granted Hartford’s motion
for summary judgment, holding there was no duty to defend or duty to
indemnify, and denied DP Engineering’s motion. The district court reasoned
that the allegations in the underlying lawsuits only related to DP
Engineering’s professional engineering services, and so the policies’
professional services exclusions applied.      The court entered judgment for
Hartford on Hartford’s claims and DP Engineering’s counterclaims and
awarded taxes and costs against DP Engineering. DP Engineering timely
appealed.


                                  DISCUSSION
        We review the district court’s grant of a summary judgment de novo.
Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163 (5th Cir. 2006).
Summary judgment is proper when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). Texas law applies in this diversity suit.
See Graper v. Mid-Continent Cas. Co., 756 F.3d 388, 391 (5th Cir. 2014).
        DP Engineering contends the district court erred in entering summary
judgment for Hartford on the duty to defend and duty to indemnify under the
policies.    The parties have presented arguments only about whether the
professional services exclusion precludes policy coverage, so we limit our
review to that question. We address the duty to defend and then the duty to
indemnify. DP Engineering also complains about the district court’s resolution
of its counterclaims, which we address last.


   I.       Hartford’s Duty to Defend
        DP Engineering claims Hartford is not relieved of its duty to defend
under the policies. Hartford has a duty to defend if the facts alleged in the
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                                   No. 15-10443
pleadings would give rise to any claim covered by the policy. See National
Union Fire Ins. Co. of Pittsburgh v. Merchs. Fast Motor Lines, Inc., 939 S.W.2d
139, 141 (Tex. 1997). To determine whether a lawsuit would give rise to a
covered claim, Texas law applies the “Eight Corners Rule.” See Willbros RPI,
Inc. v. Cont’l Cas. Co., 601 F.3d 306, 309 (5th Cir. 2010). Under that rule, a
court looks only at the insurance policy itself and the pleadings in the
complaint in the underlying suit.       Id.   The court focuses “on the factual
allegations that show the origin of the damages rather than on the legal
theories advanced.” Id. The insurer has the burden to prove an exclusion
applies. Gore Design Completions, Ltd. v. Hartford Fire Ins. Co., 538 F.3d 365,
370 (5th Cir. 2008). We resolve doubts about an exclusion in favor of the
insured. Id. at 368–69. “If a complaint potentially includes a covered claim,
the insurer must defend the entire suit.” Zurich Am. Ins. Co. v. Nokia, Inc.,
268 S.W.3d 487, 491 (5th Cir. 2008). For example, where the policy excludes
coverage for professional services as it does here, if the underlying complaints
allege injury occurred both because of negligent professional services and
negligent services of some other kind, Hartford has to defend the entire
lawsuit. See Willbros, 601 F.3d at 312.
      We first review the relevant policy language. The professional services
exclusions in each policy contain slightly different language but are
substantively the same. They exclude coverage for bodily injury or property
damage “arising out of” DP Engineering’s “rendering of or failure to render any
professional services . . . .” An injury arises out of professional services if there
is but-for causation, “though not necessarily direct or proximate causation,”
between the injury and the professional services. Utica Nat’l Ins. Co. of Tex. v.
Am. Indem. Co., 141 S.W.3d 198, 203 (Tex. 2004).
      We must also determine what is meant by “professional services,” a term
which is defined similarly in each policy. Such services “include[] . . . [t]he
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                                        No. 15-10443
preparing, approving, or failure to prepare or approve, maps, shop drawings,
opinions, reports, surveys, field orders, change orders, designs or drawings and
specifications; and . . . [s]upervisory, inspection, architectural or engineering
activities.” 1 The umbrella policy also contains an exclusionary endorsement
titled “Designated Professional Services,” which indicates that the professional
services are those described on Form IH 12 01. That Form states that the
excluded professional services are “Engineering Services.” 2
       We also find caselaw instructive. A service is “professional” if it requires
“specialized knowledge or training,” not solely because a professional performs
the service. Atlantic Lloyd’s Ins. Co. of Tex. v. Susman Godfrey, L.L.P., 982
S.W.2d 472, 476–77 (Tex. App.—Dallas 1998, pet. denied).                         Professional
services are “mental or intellectual [work], rather than physical or manual”
and involve “a practical dealing with affairs” of others. Maryland Cas. Co. v.
Crazy Water Co., 160 S.W.2d 102, 105 (Tex. Civ. App.—Eastland 1942, no writ).
Another Texas appellate court held the following allegations fall within a
professional engineering services exclusion: failing to make daily inspections,
negligently designing an excavation system, and negligently drafting plans.
See Utica Lloyd’s of Tex. v. Sitech Eng’g Corp., 38 S.W.3d 260, 262–64 (Tex.
App.—Texarkana 2001, no pet.).
       We have distinguished professional services from those that are non-
professional or administrative. See National Cas. Co. v. W. World Ins. Co., 669



       1 The only differences between the quoted definition and the definition in the other
two policies is that the other two definitions do not include “shop drawings,” “field orders,” or
“architectural” activities. These minor differences, however, do not change the meaning of
the definition for our purposes.
       2 To the extent DP Engineering argues that we should find this policy language

ambiguous and look to the definition of “engineering services” in TEX. OCC. CODE § 1001.003,
we reject such an argument. We agree with a Texas appellate court that did not find
“engineering services” in a similar policy exclusion ambiguous. See Utica Lloyd’s of Tex. v.
Sitech Eng’g Corp., 38 S.W.3d 260, 263–64 (Tex. App.—Texarkana 2001, no pet.).
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                                       No. 15-10443
F.3d 608, 615 (5th Cir. 2012); Willbros, 601 F.3d at 310. While professional
services require specialized knowledge or training and involve the exercise of
judgment, administrative services usually occur in the “execution” of a decision
that was based on professional judgment. Western World, 669 F.3d at 615–16.
For example, approval of a drilling plan is a professional engineering service,
but the execution of the plan, which involves construction and conducting
drilling operations in accordance with the plan, does not clearly fall within the
exclusion. See Willbros, 601 F.3d at 310–11.
       We now examine the factual allegations in the underlying lawsuits and
compare them to the policy language.                   As a preliminary matter, DP
Engineering does not direct us to specific allegations that describe non-
professional services. Instead, DP Engineering lists out the allegations in all
five complaints and states that “[o]ne, some or all of the above” allegations do
not arise out of DP Engineering’s professional services. Undertaking our own
more focused analysis, we look at the facts alleged in the Entergy lawsuit 3 and
then the personal injury lawsuits.
       The Entergy complaint alleges DP Engineering breached its contract and
was negligent because it: (1) was involved in a decision not to perform a load
test on the gantry to ensure it could lift the stator; (2) knew or should have
known of certain inaccurate and false statements by the gantry engineer,
Claus Frederiksen, that it was not possible for the gantry to undergo a load
test and such a test was unnecessary because the gantry had previously lifted
heavier objects; (3) had concerns about the failure to anchor the gantry to the



       3DP Engineering briefly complains that the district court should not have discussed
provisions of the contract between Entergy and DP Engineering, which was attached to the
Entergy complaint, in considering the factual allegations in the Entergy lawsuit. Hartford
responds that because the contract was attached to the complaint, it is a part of the pleadings.
We do not decide this argument because we do not rely on any of the provisions in the Entergy
and DP Engineering contract to decide whether there is a duty to defend.
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                                  No. 15-10443
building itself but did not act on those concerns; (4) failed to provide qualified
and competent personnel; and (5) did not comply with applicable standards in
Entergy’s manual requiring a load test. The Entergy complaint alleges that
Scroggins was negligent because he was an agent of DP Engineering and had
superior knowledge and skill, which obligated him to disclose defects and
deficiencies of which he was aware.
      The above allegations relate to the professional judgment that DP
Engineering and Scroggins exercised in designing, reviewing, and approving
the plan to remove the stator. All the factual allegations suggest that DP
Engineering or Scroggins designed and approved the plan, and none suggest
that they were involved in negligently executing it.
      In the personal injury lawsuits, the complaints allege DP Engineering
gave “engineering advice” on the stator project and that DP Engineering
employees were used by other defendants for “non-engineering tasks.” The
personal injury complaints list 17 allegations against all the defendants, which
include allegations of negligence in the plan to construct and use the crane, the
decision to continue removing the stator after problems arose, and the hiring,
supervision, and training of independent contractors. Against DP Engineering
specifically, the personal injury complaints allege DP Engineering: (1) had
insufficient policies and procedures to hire and train qualified engineers and
other staff; and (2) provided incompetent and unqualified engineers and other
staff. The allegations relating to punitive damages state that DP Engineering
      ignored the appropriate and applicable standards regarding the design
      evaluation[,] . . . . improperly used an assumption of transverse frame
      loading that was less than two percent of the handled load[, failed to
      conduct] a required load test[,] . . . . did not inspect all load bearing welds
      before and after a load test[, and] . . . . was unable to provide to the NRC
      inspection team any alternate approved standard for the design and
      testing of the crane . . . .


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                                  No. 15-10443
      The personal injury complaints describe how the defendants, including
DP Engineering, improperly planned and designed the stator project. None of
the allegations indicate that the accident happened because of something akin
to “subcontractors simply fail[ing] to aim the directional drill correctly” in
accordance with a properly designed plan, Willbros, 601 F.3d at 311, or, “a
worker . . . simply [making] a mistake in the implementation of the design,”
Gore Design Completions, 538 F.3d at 372. Instead, looking at the factual
allegations together, the underlying lawsuits “arise out of” DP Engineering’s
alleged failure to properly exercise its professional, engineering judgment on
the stator project.
      For example, one allegation is that the defendants “[chose] not to inspect
the load bearing welds before the lift was attempted.” Hartford emphasizes
the description of these acts as choices, but we do not find that description
determinative. We must look at the underlying factual allegations, rather than
the way they are pled. Sitech Eng’g Corp., 38 S.W.3d at 264. This allegation
describes a professional service because inspecting equipment to ensure it is
properly designed and constructed before using the equipment for a complex
project such as this requires special knowledge, expertise, and training. See
Susman Godfrey, 982 S.W.2d at 476–77.            Other allegations address the
defendants’ failure to require a load test, failure to provide a safe and effective
plan for stator removal, and failure to properly determine the appropriate
equipment to safely complete the project. These actions all require special
knowledge and expertise.
      As mentioned, the personal injury complaints also contain general
statements that DP Engineering employees aided in “non-engineering tasks”
under the direction of Entergy’s and another defendant’s project managers. We
have rejected a “bald statement that certain (unspecified) acts were non-
professional” and instead focused on whether any of the alleged facts described
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                                  No. 15-10443
non-professional conduct. See Admiral Ins. Co. v. Ford, 607 F.3d 420, 426 (5th
Cir. 2010). The facts alleged do not include administrative, non-professional
activities conducted by DP Engineering. DP Engineering asserts that “using
a crane, constructing a crane, providing a crane, welding a crane, [and]
assembling a crane” are not professional services because “the average
construction worker” who performs such activities would not need an
engineering degree to do so.       While this statement may be true, DP
Engineering points to no factual allegation that it or its employee negligently
used a crane, constructed a crane, or welded a crane. While DP Engineering
and others allegedly “[chose] not to ensure the crane was properly assembled,”
we read this language to describe DP Engineering’s negligence in failing to
inspect the crane after it had been constructed, an inspection that would
require professional expertise.
      Finally, the personal injury lawsuits contain allegations that DP
Engineering negligently hired, trained, supervised, or retained its employees
and contractors. These allegations fall within the professional services
exclusion because they are “related [to] and interdependent” with the allegedly
negligent rendition of professional services, rather than “independent and
mutually exclusive.” See Duncanville Diagnostic Ctr., Inc. v. Atl. Lloyd’s Ins.
Co. of Tex., 875 S.W.2d 788, 791–92 (Tex. App.—Eastland 1994, writ denied).
The negligent hiring allegations do not trigger a duty to defend.
      The underlying lawsuits fall within the professional services exclusion
because the factual allegations in the underlying complaints describe injuries
that “arise out of” DP Engineering’s and Scroggins’s allegedly negligent
engineering services. Therefore, the district court correctly entered summary
judgment for Hartford that there was no duty to defend.




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                                 No. 15-10443
   II.     Hartford’s Duty to Indemnify
         “An insurer’s duty to defend and indemnify are distinct and separate
duties.” Farmers Tex. Cnty. Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 82 (Tex.
1997). An insurer may have a duty to defend a lawsuit but may not have a
duty to indemnify the insured. Id. Alternatively, an insurer may not have to
defend a lawsuit but may eventually have a duty to indemnify. See D.R.
Horton-Texas, Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 743–45 (Tex. 2009);
Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 254 (5th Cir. 2011).
These duties can arise independently of one another because the duty to defend
is determined by pleadings, but the duty to indemnify is determined by the
facts that are eventually ascertained in the underlying lawsuit. See D.R.
Horton-Texas, 300 S.W.3d at 744. Accordingly, the duty to indemnify typically
cannot be adjudicated until there has been a judgment in the underlying suit
because facts proven at trial may differ slightly from the allegations. See
Griffin, 955 S.W.2d at 83–84; Peachtree, 647 F.3d at 254–55.
         The Texas Supreme Court has identified one situation when a duty to
indemnify can be resolved solely on the pleadings in the underlying lawsuit.
See Griffin, 955 S.W.2d at 84. In Griffin, the court held that an insurer can
obtain a declaratory judgment on its duty to indemnify based only on the
pleadings in the underlying suit if “the same reasons that negate the duty to
defend likewise negate any possibility the insurer will ever have a duty to
indemnify.” Id. (emphasis omitted). In that case, the plaintiff alleged a drive-
by shooting caused injuries, and the insurance policy covered “auto
accident[s].” Id. The court reasoned that there was no set of facts that could
be proved in the underlying lawsuit that could transform an alleged drive-by
shooting into an auto accident covered under the policy. Id.
         When a case is not analogous to Griffin, an insurer cannot obtain
resolution of the duty to indemnify solely on the basis of the pleadings in the
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                                  No. 15-10443
underlying lawsuit.     See D.R. Horton-Texas, 300 S.W.3d at 744–45.           The
insurer may have to wait to resolve its duty to indemnify until after a trial in
the underlying litigation because facts established at trial determine the duty
to indemnify. Id. at 745. Alternatively, the parties may offer extrinsic evidence
to prove or negate the insurer’s duty to indemnify if the underlying lawsuit
never goes to trial or if trial does not develop the facts necessary to determine
policy coverage. Id. at 744; Peachtree, 647 F.3d at 254–55.
      Hartford argued below, and the district court accepted, that Griffin
allowed the court to adjudicate the duty to indemnify based on the pleadings
in the underlying lawsuits. Hartford claimed that like Griffin, “nothing will
change the fact that advice provided with respect to the movement and removal
of a 550 ton stator requires specialized knowledge and training.” The district
court concluded that because there was no duty to defend, there was also no
duty to indemnify. The court stated “none of the allegations in any of the
underlying lawsuits states facts that would invoke coverage under any of the
three insurance policies at issue.”
      Hartford submits that one of our court’s recent decisions supports the
district court’s resolution. See LCS Corr. Servs., Inc. v. Lexington Ins. Co., 800
F.3d 664 (5th Cir. 2015). We held there that an insurer had no duty to defend
the insured, a corporation that operated a detention center, in an inmate’s
Section 1983 lawsuit. Id. at 671–72, 674. A medical services exclusion applied
based on allegations in the complaint that officials at the detention center
refused to provide the inmate additional doses of medicine. Id. at 671, 674.
The court held there was also no duty to indemnify, finding Griffin applicable.
Id. at 668 n.4, 672, 674. “In the context of this case, it follows that there is no
duty to indemnify for the same reasons . . . there is no duty to defend . . . .” Id.
at 672.


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                                  No. 15-10443
      LCS Corrections Services is distinguishable. The sole alleged act of
negligence in LCS Corrections Services was a failure to provide medication to
an inmate. Id. at 671. The Griffin exception applied there because the panel
reasoned that no facts proved at a trial could transform the failure to provide
medication into something that was not medical services. Id. at 674. Unlike
in LCS Corrections Services, the underlying lawsuits here involve complex
facts and multiple allegedly negligent parties. The factual allegations do not
negate any possibility that Hartford will ever have a duty to indemnify
because, as DP Engineering argues, there is “an array of possible factual and
legal scenarios,” that could have caused the crane and stator to fall, some of
which may create coverage. The allegations in the underlying lawsuits here
do not conclusively foreclose that facts adduced at trial may show DP
Engineering also provided non-professional services, which would be covered
under the policy. Unlike the alleged drive-by shooting in Griffin, which under
no set of facts could become an “auto accident,” the rendition of professional
services alleged here could co-exist with the rendition of non-professional
services that contributed to the accident.
      Because we hold that Griffin does not apply, we reverse the district
court’s grant of summary judgment to Hartford on the duty to indemnify. The
district court should not have determined the duty to indemnify based on the
pleadings in the underlying lawsuit. See D.R. Horton-Texas, 300 S.W.3d at
744–45; Peachtree, 647 F.3d at 254–55. The district court may need to “defer
resolution of indemnity issues until the liability litigation is resolved.” Griffin,
955 S.W.2d at 84. Alternatively, if trials in the underlying lawsuits do not
occur or if the trials do not resolve all factual issues related to coverage, the
parties may offer additional evidence to determine whether Hartford has a
duty to indemnify. See D.R. Horton-Texas, 300 S.W.3d at 744.


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                                No. 15-10443
   III.   DP Engineering’s Counterclaims
      DP Engineering argues the district court erred in adjudicating its
counterclaims sua sponte without giving the required notice.          Hartford
responds that once the district court decided there was no duty to defend, DP
Engineering’s counterclaims necessarily failed.
      DP Engineering’s counterclaims relied on Hartford having a duty to
defend under the policies. DP Engineering presented all its legal arguments
about Hartford’s duty to defend in response to Hartford’s motion for summary
judgment, as well as in its own cross-motion for summary judgment.
Accordingly, DP Engineering had ample opportunities to present arguments in
support of its counterclaims as to why a duty to defend existed. See British
Caledonian Airways Ltd. v. First State Bank of Bedford, 819 F.2d 593, 595–96
(5th Cir. 1987) (citing 10A WRIGHT, MILLER & KANE, FEDERAL PRACTICE &
PROCEDURE § 2720 (3d ed.)). There was no error in entering judgment against
DP Engineering on its counterclaims because those claims were necessarily
resolved after the court considered all the arguments and determined that as
a matter of law, Hartford had no duty to defend. See Jensen v. Snellings, 841
F.2d 600, 618 (5th Cir. 1988) (entering summary judgment sua sponte when an
insurer’s duty to defend was argued at length to the district court). We agree
with the district court’s resolution of the duty to defend, and therefore DP
Engineering’s counterclaims. DP Engineering’s counterclaims do not address
Hartford’s duty to indemnify, which we hold the district court erred in
resolving at summary judgment.
      We AFFIRM the district court’s grant of summary judgment on
Hartford’s duty to defend and the district court’s resolution of DP
Engineering’s counterclaims related to the duty to defend. We REVERSE the
district court’s grant of summary judgment to Hartford on its duty to indemnify
and REMAND for further proceedings consistent with this opinion.
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