     Case: 14-31126      Document: 00513064495         Page: 1    Date Filed: 06/02/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-31126                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                             June 2, 2015
GLOBAL MANAGEMENT ENTERPRISE, L.L.C.,                                      Lyle W. Cayce
                                                                                Clerk
              Plaintiff–Appellant,

v.

COMMERCE & INDUSTRY INSURANCE COMPANY,

              Defendant–Appellee.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:11-CV-1681


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       Commerce and Industry Insurance Company (d/b/a Chartis) provided
Global Management Enterprise, L.L.C. (Global) with workers’ compensation
insurance. Global’s policy excluded employees who were eligible for benefits
under the federal Longshore and Harbor Workers’ Compensation Act
(LHWCA), but it contained an endorsement that, by its terms, extended



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 14-31126      Document: 00513064495        Page: 2    Date Filed: 06/02/2015



                                     No. 14-31126
coverage to “street cleaning.” After Librado De La Cruz, a Global employee,
allegedly suffered an injury while cleaning a beach, Chartis refused to provide
benefits, initially relying on the LHWCA exclusion and later also denying that
De La Cruz fell under the street-cleaning endorsement.
      Global sued Chartis for breach of contract and for violating Louisiana’s
bad-faith insurance practices statute.          The district court initially granted
summary judgment in favor of Chartis on all claims. We reversed, holding that
De La Cruz was not covered by the LHWCA. Chartis then paid benefits to
De La Cruz and moved for summary judgment on the bad-faith claim. The
district court again granted summary judgment to Chartis. Global appeals.
We affirm the judgment of the district court.
                                            I
      As we explained in our previous decision:
      [Global] is a temporary employment agency that provides short-
      term workers for various construction and industrial purposes. . . .
      In the months following the Deepwater Horizon oil spill, Global
      hired a number of workers to assist with clean-up efforts in and
      around the Gulf of Mexico. On August 21, 2010, Global employee
      Librado De La Cruz was allegedly injured while lifting a bag of oil-
      laden sand that would later be loaded onto a truck and transferred
      to a vessel for removal. It is undisputed that De La Cruz spent up
      to two hours actively loading and unloading the vessel at the pier,
      and six or seven hours cleaning the beaches. At the time of the
      incident, De La Cruz was working on a beach located a few feet
      from Gulf waters and around a half-mile from the pier at which
      the vessel was docked. 1
The workers’ compensation policy that Chartis issued to Global has two
provisions at issue in the present appeal. The first provision is contained in
the policy as it was initially issued to Global.          This provision specifically



      1  Global Mgmt. Enters., LLC v. Commerce & Indus. Ins. Co., 574 F. App’x 333, 334-35
(5th Cir. 2014) (per curiam).
                                            2
    Case: 14-31126        Document: 00513064495      Page: 3   Date Filed: 06/02/2015



                                      No. 14-31126
excludes from coverage “bodily injury to any person in work subject to the
Longshore and Harbor Workers’ Compensation Act.”                  However, Global
purchased an endorsement, effective July 29, 2010, to expand the scope of the
policy. The second relevant provision, contained in this endorsement, states
that the class code “9402 (Street Cleaning & Drivers)” was added to Global’s
policy. The parties dispute whether this endorsement caused De La Cruz to
fall within the policy’s coverage.
      Chartis initially accepted De La Cruz’s workers’ compensation claim and
started paying benefits. 2 However, without informing Chartis, De La Cruz
applied to the Department of Labor for benefits under the LHWCA, but he
withdrew that application prior to the agency’s determination of whether De
La Cruz was covered by the statute. 3 Chartis later terminated De La Cruz’s
workers’ compensation benefits, expressly relying on only the LHWCA
exclusion. 4 While the dispute was pending but before litigation began, an
auditor employed by Chartis stated multiple times that beach-cleaning work,
and thus De La Cruz, properly fell under code 9402.
      Global sued Chartis, alleging breach of contract, negligence, and bad
faith. 5 Chartis moved for summary judgment. 6 The district court concluded
that De La Cruz was a longshoreman, rejected the argument that he was
covered due to the endorsement, and dismissed all of Global’s claims. Global
appealed.
      While Global’s appeal was pending, we decided New Orleans Depot


      2   Global Mgmt., 574 F. App’x at 335.
      3   Id.
      4   Id.
      5   Id.
      6   Id.


                                               3
     Case: 14-31126          Document: 00513064495          Page: 4     Date Filed: 06/02/2015



                                          No. 14-31126
Services, Inc. v. Director, Office of Worker’s Compensation Programs, an en
banc opinion that overruled a thirty-year-old decision defining the scope of the
LHWCA. 7 We vacated the judgment in this case and remanded for the district
court to determine whether New Orleans Depot applied. 8 The district court
concluded that New Orleans Depot did not impact its prior analysis and again
granted summary judgment in favor of Chartis. Global again appealed.
       We reversed and remanded, holding that De La Cruz sustained injuries
at a situs not covered by the LHWCA. 9 Chartis then paid De La Cruz’s
workers’ compensation claim and filed another motion for summary judgment
seeking to dismiss Global’s bad-faith claim. The district court granted the
motion. Global appeals.
                                                 II
       In this diversity action, we apply Louisiana law as interpreted by the
Louisiana state courts. 10           In the absence of on-point Louisiana law, our
“primary obligation” is to make an “Erie guess” as to how the Louisiana
Supreme Court would decide the question before us. 11
       “We review a district court's grant of summary judgment de
novo, applying the same legal standards that the district court applied, and we
view the evidence in the light most favorable to the nonmoving party.” 12



       7   718 F.3d 384, 394 (5th Cir. 2013) (en banc).
       8 Global Mgmt. Enters., L.L.C. v. Commerce & Indus. Ins. Co., 539 F. App’x 514, 515
(5th Cir. 2013) (per curiam).
       9 Global Mgmt. Enters., LLC v. Commerce & Indus. Ins. Co., 574 F. App’x 333, 337
(5th Cir. 2014) (per curiam).
        See Keen v. Miller Envtl. Grp., Inc., 702 F.3d 239, 243 (5th Cir. 2012) (citing Mid-
       10

Continent Cas. Co. v. Swift Energy Co., 206 F.3d 487, 491 (5th Cir. 2000)).
       11   Id. (quoting Gilbane Bldg. Co. v. Admiral Ins. Co., 664 F.3d 589, 593 (5th Cir. 2011)).
       12   Id. (quoting Gilbane, 664 F.3d at 593).


                                                  4
     Case: 14-31126          Document: 00513064495      Page: 5     Date Filed: 06/02/2015



                                       No. 14-31126
Summary judgment is appropriate if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” 13
                                             III
       Louisiana’s bad-faith statute imposes monetary penalties on an insurer
that fails to timely pay a claim when the insurer’s failure is “arbitrary,
capricious, or without probable cause,” 14 which is demonstrated by showing
that the insurer’s “willful refusal of a claim is not based on a good-faith
defense.” 15 “An insurer’s conduct depends on the facts known to the insurer at
the time of its action, and [the Louisiana Supreme Court] has declined to assess
penalties when the insurer has a reasonable basis to defend the claim and acts
in good-faith reliance on that defense.” 16 Because the bad-faith statute is
“penal in nature, . . . it is to be strictly construed[,] and . . . sanctions should be
imposed only in those instances in which the facts negate probable cause for
nonpayment.” 17 The insured has the burden of proving a lack of probable
cause. 18
       The Louisiana Supreme Court has remarked that “when there is a
dispute over the extent of coverage afforded by an insurance policy, the insurer
bears the risk of misinterpreting its own policy and will be liable for penalties



       13   FED. R. CIV. P. 56(a).
       14LA. REV. STAT. § 22:1892 (B)(1). This provision was previously codified at LA. REV.
STAT. § 22:658.
       15La. Bag Co. v. Audubon Indem. Co., 2008-0453, p. 14 (La. 12/2/08); 999 So. 2d 1104,
1114 (citation omitted).
       16Id. (quoting Reed v. State Farm Mut. Auto. Ins. Co., 2003-0107, p. 13 (La. 10/21/03);
857 So. 2d 1012, 1021) (internal quotation marks omitted).
       17Id. at p. 25; 999 So. 2d at 1120 (quoting McDill v. Utica Mut. Ins. Co., 475 So. 2d
1085, 1092 (La. 1985)) (internal quotation marks omitted).
       18Chevalier v. Reliance Ins. Co. of Ill., 953 F.2d 877, 883 (5th Cir. 1992) (citing
Rushing v. Dairyland Ins. Co., 449 So. 2d 511, 514 (La. App. 1984)).


                                              5
     Case: 14-31126         Document: 00513064495        Page: 6     Date Filed: 06/02/2015



                                          No. 14-31126
for its errors.” 19 Despite this broad language, not every misinterpretation
results in penalties.          Rather, the misinterpretation must be arbitrary,
capricious, or without probable cause in order for penalties to attach. 20
       Under Louisiana law, the general rule is that “[i]nsurance policies are
liberally construed in favor of coverage, and exceptions to coverage are strictly
construed against the insurer.” 21 Global contends that Chartis acted in bad
faith by concluding that the street-cleaning endorsement did not override the
LHWCA exclusion and cover De La Cruz.
       We assume that, as a general rule, an endorsement would override an
exclusion. However, the LHWCA exclusion is not only a term of the contract,
but a mandate of state law.                 Louisiana specifically prohibits workers’
compensation payments to “any employee covered by” the LHWCA. 22
Accordingly, the present case does not merely pit an exclusion against an
endorsement because the exclusion at issue has the force of state law behind
it. Global’s argument therefore relies on a faulty premise: that Chartis acted



        La. Bag Co., 2008-0453, at p. 19; 999 So. 2d at 1117 (citing Carney v. Am. Fire &
       19

Indem. Co., 371 So. 2d 815, 819 (La. 1979)).
       20 See LA. REV. STAT. § 22:1892(B)(1); Carney, 371 So. 2d at 819 (concluding that an
insurer’s erroneous interpretation of a policy provision was not arbitrary, capricious, or
without probable cause because it comported with the interpretation of the trial court and
intermediate court of appeals in Louisiana, as well as the supreme courts of four other states,
even though the Louisiana Supreme Court ultimately disagreed with the insurer’s
interpretation); Rudloff v. La. Health Servs. & Indem. Co., 385 So. 2d 767, 771 (La. 1980) (on
rehearing) (refusing to assess penalties against the insurer when the statute at issue had not
been judicially interpreted and left “room for disagreement” at the time the insured
submitted her claim); see also Morey v. W. Am. Specialized Transp. Servs., Inc., 968 F.2d 494,
499 (5th Cir. 1992) (“This Court . . . has taken the position that an unfavorable judgment
does not automatically subject an insurer to penalties under [the Louisiana bad-faith
statute].”); cf. La. Bag Co., 2008-0453, at pp. 18-19; 999 So. 2d at 1116-17 (concluding that an
insurer acted in bad faith when there was no “legitimate . . . coverage question”).
       21Capital Bank & Trust Co. v. Equitable Life Assurance Soc’y of the U.S., 542 So. 2d
494, 496 (La. 1989) (citation omitted).
       22   LA. REV. STAT. § 23:1035.2.
                                               6
    Case: 14-31126          Document: 00513064495           Page: 7   Date Filed: 06/02/2015



                                             No. 14-31126
in bad faith by applying the exclusion over the endorsement in violation of the
general rule.
      To establish that Chartis acted in bad faith, Global cannot bypass
Chartis’s conclusion that De La Cruz was subject to the LHWCA exclusion. In
other words, Global must establish, under the summary judgment standard,
that Chartis acted in bad faith in two respects. First, it must establish that
Chartis acted in bad faith by concluding that De La Cruz fell under the
LHWCA. Then it must establish that Chartis acted in bad faith by refusing to
conclude that De La Cruz fell under the endorsement. Because we conclude
that Global has not met its burden regarding the LHWCA coverage issue, we
need not address the endorsement.
      No reasonable factfinder could conclude that Chartis’s incorrect
interpretation of the LHWCA was arbitrary, capricious, or without probable
cause. In J.E. Merit Constructors, Inc. v. Hickman, the Louisiana Supreme
Court addressed similar facts. 23 A Louisiana workers’ compensation judge
ruled, in part, in favor of the employer. 24 The intermediate appellate court
reversed some of the findings that favored the employer and concluded that
the employer acted arbitrarily and capriciously on the pertinent issue. 25 On
appeal, the Louisiana Supreme Court only addressed the intermediate
appellate court’s bad-faith finding. 26 The court noted:
      Significantly, the workers’ compensation judge found in favor of
      [the employer] on both disputed issues. While these substantive
      determinations were later reversed on appeal, the finding of the
      workers’ compensation judge in favor of [the employer] is virtually
      conclusive that its actions were reasonable and were not arbitrary


      23   2000-0943 (La. 1/17/01); 776 So. 2d 435 (per curiam).
      24   Id. at pp. 2-4; 776 So. 2d at 436-37.
      25   Id. at p. 4; 776 So. 2d at 437.
      26   Id. at pp. 4-5; 776 So. 2d at 437.
                                                   7
     Case: 14-31126          Document: 00513064495           Page: 8   Date Filed: 06/02/2015



                                              No. 14-31126
       and capricious. If this were not so, it would suggest that the
       workers’ compensation judge’s ruling in favor of [the employer]
       was itself arbitrary and capricious. It would very rarely be
       appropriate for an appellate court to award attorney’s fees based
       on employer actions which the trier of fact previously found did not
       rise to the level of being arbitrary and capricious (and in fact found
       to be meritorious). 27
The Louisiana Supreme Court concluded that the employer and employee had
a bona fide dispute about “the facts and the law,” such that the employer did
not act in bad faith. 28
       The present case is indistinguishable from Hickman.                     Although the
district court erroneously concluded that De La Cruz was injured at a situs
covered by the LHWCA, its holding is “virtually conclusive” that Chartis’s
decision to dispute LHWCA coverage was “reasonable and . . . not arbitrary
and capricious.” 29 Moreover, Global does not argue or point to any evidence
suggesting that the district court’s error on the LHWCA issue was exceptional.
Rather, it urges that our standard of review is de novo, such that we should
not give weight to the district court’s conclusion. Global confuses the issues.
Although our standard of review is de novo, we are bound to apply Louisiana’s
substantive law in this diversity case. Louisiana law provides that when the
initial court to review an insurance dispute sides with the insurer, on a
question of fact or law, that court’s decision, which later proves erroneous,
creates a very strong presumption that the insurer did not act in bad faith.
Accordingly, we conclude that Chartis did not act in bad faith when it
misinterpreted the LHWCA and denied coverage to De La Cruz.




       27   Id. at p. 6; 776 So. 2d at 438.
       28Id. at pp. 5-6; 776 So. 2d at 437-38; accord Willis v. Alpha Care Home Health, 2001-
0638, pp. 1-2 (La. 6/15/01); 789 So. 2d 567, 568 (per curiam).
       29   Hickman, 2000-0943, at p. 6; 776 So. 2d at 438.
                                                   8
Case: 14-31126   Document: 00513064495           Page: 9   Date Filed: 06/02/2015



                              No. 14-31126
                          *        *         *
 For the foregoing reasons, we AFFIRM the judgment of the district court.




                                   9
