     Case: 09-60220       Document: 00511107103       Page: 1     Date Filed: 05/11/2010




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

                                                  FILED
                                                                           May 11, 2010
                                     No. 09-60220
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

BYRD & ASSOCIATES, PLLC; ISAAC K BYRD, JR.,

                                                  Plaintiff-Appellants,

v.

EVANSTON INSURANCE COMPANY,

                                                  Defendant-Appellee.


                       Appeal from the United States District Court
                         for the Southern District of Mississippi
                                 USDC No. 3:08-CV-260


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:        *


        The issue in this appeal is whether the district court erred when it granted
summary judgment to Evanston Insurance Company (Evanston) in its
professional liability insurance contract dispute with Byrd & Associates, PLLC
(Byrd) because the contract terms unambiguously denied coverage to the claim
underlying the dispute. We hold that the district court did not err; therefore, we
AFFIRM.
        Byrd initially purchased a professional liability insurance policy with

        *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 09-60220      Document: 00511107103 Page: 2        Date Filed: 05/11/2010
                                   No. 09-60220

Evanston in May of 2003 with coverage extending back to February 28, 2003.
The policy was renewed annually by Byrd through February of 2006. The policy
agreement in question has a policy period of one year beginning on February 28,
2005, and ending on February 28, 2006. The policy provides coverage for claims
made during the policy period, or the extended reporting period, because of any
“Act” occurring during the policy period, as well as any “Act” occurring prior to
the policy period “provided that, on or prior to the effective date of this policy, no
Insured was aware of any facts or circumstances from which a reasonable person
would have anticipated a Claim.”
      The policy defines an “Act” as “[t]he performance of or omission of a duty
or obligation by The Insured while rendering legal advice or legal services for
others.”   Additionally, the policy contains a “Prior Acts Exclusion” which
precludes coverage as “to any Claim based upon, arising out of, or in any way
involving any Act . . . happening prior to February 28, 2003.”
      On March 29, 2005, Barbara Butler, a former client of Byrd’s, sued Byrd
for legal malpractice for failing to provide notice of a claim in her wrongful death
medical malpractice case within the statute of limitations prescribed by the
Mississippi Tort Claims Act.        See Miss. Code. Ann. § 11-46-11.         Shortly
thereafter, Byrd filed a claim for coverage with Evanston requesting the
provision of a defense against the claim. Evanston denied the request because
the underlying act occurred in 2000, which was prior to the coverage period.
      Grants of summary judgment are reviewed de novo, with this court
applying the same standard as the district court, viewing the evidence in the
light most favorable to the non-movant. Lauderdale v. Tex. Dep’t of Criminal
Justice, Institutional Div., 512 F.3d 157, 162 (5th Cir. 2007).            Summary
judgment is appropriate when a review of the evidence reveals no genuine issue
of material fact and the movant is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c)(2).



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                                 No. 09-60220

      Byrd argues that the insurance policy in this case is ambiguous, thereby
creating a genuine issue of material fact as to what the terms of the policy mean.
Byrd further argues that the policy should be construed against Evanston, the
party that drafted the policy, and in favor of itself. Under Mississippi law, if the
language in an insurance policy is clear and unambiguous, it is the duty of the
judge to construe the meaning of its terms as it is written. Jackson v. Daley, 739
So. 2d 1031, 1041 (Miss. 1999). The rule of construction requiring that an
insurance policy be read in a manner favoring the insured only applies where the
contract is ambiguous. See, e.g., Nationwide Mut. Ins. Co. v. Yelverton, 417 F.
Supp. 2d 817, 820 (S.D. Miss. 2006). Courts will not strain to find an ambiguity
where none exists, but will instead fulfill the intentions of the parties. Id. “If
the policy language is clear, unequivocal, and, hence unambiguous, its terms will
be enforced.”   Id. (citation omitted).       Byrd maintains that the “Prior Acts
Exclusion” contained in the policy is inconsistent with the coverage provisions,
thereby creating an ambiguity. We conclude, however, that the district court
properly determined that no ambiguity exists in the policy agreement with
respect to the “Prior Acts Exclusion.”
      The coverage provisions of the policy encompass claims arising from acts
occurring outside of the policy period so long as Byrd was unaware of any facts
from which it could reasonably anticipate a claim at the time of the policy
agreement. The “Prior Acts Exclusion” is not inconsistent with this provision as
it merely clarifies that the coverage provisions (including those extending
coverage to acts occurring prior to the policy period) will not apply to any claims
stemming from acts occurring prior to February 28, 2003. The “Prior Acts
Exclusion” caps the retroactive coverage of the insurance policy.
      Because there is no ambiguity in the policy, the exclusion is to be given its
full effect. As such, this case requires no determination as to whether Byrd
reasonably anticipated Barbara Butler’s claim against it. Byrd’s other
arguments in this case also rely on a finding that the presence of the “Prior Acts

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                                No. 09-60220

Exclusion” creates an ambiguity in the policy, and thus we need not address
them. The district court properly held that no genuine issue of material fact
exists in this case and that Evanston is entitled to judgment as a matter of law.
      AFFIRMED.




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