   Case: 10-60601       Document: 00511509283          Page: 1    Date Filed: 06/15/2011




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

                                                 FILED
                                                                            June 15, 2011
                                       No. 10-60601
                                                                            Lyle W. Cayce
                                                                                 Clerk



NATIONAL BUILDERS AND CONTRACTORS INSURANCE COMPANY,
a Risk Retention Group,

                                                   Plaintiff-Appellee,
versus

SLOCUM CONSTRUCTION, L.L.C.,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                                  No. 2:09-CV-217




Before SMITH, WIENER, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Slocum Construction, L.L.C. (“Slocum”), appeals a summary judgment on
the request of National Builders and Contractors Insurance Company (“NBCI”)



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 10-60601

for declaratory relief. NBCI, Slocum’s insurer, sought a judgment that it has no
duty to defend Slocum against a counterclaim by Robert Youngblood. We affirm.


                                         I.
      Kelvin Anderson contracted with Slocum to build a house. Anderson
staked out a parcel of land, but Slocum did not know the land was not Ander-
son’s. It is uncertain whether Anderson was aware that the land belonged to
Youngblood, who is related to Anderson and held the land in trust for Walter
McKenzie. Slocum believes that Youngblood was aware that it was building the
house on his land. When Anderson could not pay Slocum for the house, Slocum
tried to sell it. During due diligence, Slocum discovered that Youngblood owned
the land and offered to purchase it from him. When Youngblood refused, Slocum
sued Youngblood for fraud and unjust enrichment; Youngblood countersued for
trespass, seeking lost rental profits.
      Slocum petitioned NBCI for a defense and indemnity against Youngblood’s
counterclaim. Slocum’s commercial general liability (“CGL”) policy covers dam-
ages related to “bodily injury” and “property damage” only if it “is caused by an
‘occurrence.’” The policy further defines “occurrence” as “an accident, including
continuous or repeated exposure to substantially the same general harmful con-
ditions.”
      NBCI sought declaratory relief, arguing that Slocum’s actions were not an
“accident” and thus were not covered by the policy, or, in the alternative, that
there was no “property damage” or “bodily injury,” and that several exclusions
precluded coverage. The district court granted NBCI summary judgment, hold-
ing that Slocum’s actions were not an accident, that there was bodily injury but
no property damage, and that even if Slocum’s actions were not an accident, sev-
eral contractual provisions excluded coverage.



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                                  No. 10-60601

                                       II.
      “We review [a] summary judgment de novo.” Dunn-McCampbell Royalty
Interest, Inc. v. Nat’l Park Serv., 630 F.3d 431, 435 (5th Cir. 2011). There is no
dispute regarding the facts, but only as to the meaning and effect of the insur-
ance policy, which is a question of law. See U.S. Fid. & Guar. Co. v. OmniBank,
812 So. 2d 196, 198 (Miss. 2002). Therefore, this court reviews the interpreta-
tion of that policy de novo. Nat’l Union Fire Ins. Co. v. Kasler Corp., 906 F.2d
196, 198 (5th Cir. 1990). Because we sit in diversity, Mississippi insurance law
determines the scope of the policy’s coverage. See Blakely v. State Farm Mut.
Auto. Ins. Co., 406 F.3d 747, 751 (5th Cir. 2005) (citing Erie R.R. v. Tompkins,
304 U.S. 64, 78-79 (1938)). An insurer has “no duty to defend a claim outside the
coverage of the policy.” Moeller v. Am. Guar. & Liability Ins. Co., 707 So. 2d
1062, 1069 (Miss. 1996). The factual allegations of the complaint in the underly-
ing action determine whether that duty arises. Delta Pride Catfish, Inc. v. Home
Ins. Co., 697 So. 2d 400, 403 (Miss. 1997).


                                       III.
      Slocum’s insurance policy, like nearly all CGL policies, provides coverage
only if the damage is caused by an “occurrence,” which, as stated above, is synon-
ymous with an “accident.” Mississippi looks to the actions of the insured, not the
resulting damages, to decide whether there was an accident. Allstate Ins. Co. v.
Moulton, 464 So. 2d 507, 510 (Miss. 1985). The motivation behind those actions
is irrelevant if the insured intended to act. See OmniBank, 812 So. 2d at 197
(“Even if an insured acts in a negligent manner, that action must still be acci-
dental and unintended to implicate policy language.” (emphasis added)). The in-
sured’s actions must have been “inadvertent.” Architex Ass’n, Inc. v. Scottsdale
Ins. Co., 27 So. 3d 1148, 1161 (Miss. 2010).
      Slocum’s appeal turns on the distinction between an inadvertent action

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and a mistake. The former is an accident, as described above, but the latter is
not, because the insured intended the action underlying the mistake, even if he
did not intend the results or if he based his action on erroneous information.1
       Moulton clarifies the difference between an insured’s intentional actions
and their unintended results. There, the insured swore out a criminal complaint
against a man she suspected of stealing her dog. After the man was arrested
and the charges dismissed, he brought a malicious prosecution claim against the
insured, who sought a defense from her insurer. Her policy contained a nearly
identical definition of “occurrence.”2 In denying coverage, the Mississippi Su-
preme Court determined that
       [a]t the heart of the instant controversy is whether this Court will
       interpret the word “accident” as referring to Mrs. Moulton’s actions
       swearing out a complaint that Anthony Walls had stolen her dog or
       whether “accident” refers to the consequences of that act. . . . [T]he
       term accident refers to Mrs. Moulton’s action and not whatever un-
       intended damages flowed from that act.

          Mrs. Moulton obviously intended to swear out the complaint
       against Anthony Walls. Although she may not have intended for
       him to suffer humiliation or embarrassment, she certainly intended
       for him to be arrested.
Moulton, 464 So. 2d at 510. Moulton’s actions may have been based on a mis-
taken belief, but the court stated in dictum that “it would make no difference
whether [Mrs. Moulton’s] acts were prompted by malice or negligence, or some



       1
         Although that distinction is not formally expressed in Mississippi caselaw, it is a syn-
thesis of the holdings in Moulton and OmniBank, discussed infra.
       2
         Compare Moulton, 464 So. 2d at 508 (“‘Occurrence’ means an accident, including injur-
ious exposure to conditions, which results, during the endorsement period, in bodily injury or
property damage neither expected nor intended from the standpoint of the Insured.”), with Slo-
cum’s policy (“‘Occurrence’ means an accident, including continuous or repeated exposure to
substantially the same general harmful conditions. . . . This insurance does not apply to . . .
‘[b]odily injury’ or ‘property damage’ expected or intended from the standpoint of the in-
sured.”).

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other motivating force.” Id. at 509.
      The Mississippi Supreme Court later turned that dictum into precedent.
See OmniBank, 812 So. 2d 196 (answering certified question from Ramsay v.
OmniBank, 215 F.3d 502 (5th Cir. 2000)). The plaintiffs in the underlying action
in Ramsay had taken out loans from Omnibank to finance their cars and alleged
that the bank had negligently force-placed unnecessary insurance coverage,
thereby increasing their loan, premium, and interest payments. The bank
sought a defense from its insurer, which argued that the bank’s actions were in-
tentional and thus not covered by the CGL policy. The bank countered that the
suit was based on the bank’s negligent conduct, and it was an open question un-
der Mississippi law whether negligent, yet intentional, actions may be consid-
ered accidents.
      We certified that question to the Mississippi Supreme Court, which held,
applying Moulton, that an insurer has no duty to defend “negligent actions that
are intentionally caused by the insured.” OmniBank, 812 So. 2d at 202. Even
though the bank did not intend to overcharge the plaintiffs, it did intend to
charge them some amount. Id. The bank may have acted negligently and may
have made a mistake, but it also acted intentionally, so there was no accident to
defend.
      We look to the allegations in the complaint to determine whether NBCI
has a duty to defend. Youngblood’s countersuit against Slocum is for trespass,
an intentional tort under Mississippi law that requires entering another’s prop-
erty, without right, for one’s own purpose. Saucier v. Biloxi Reg’l Med. Ctr., 708
So. 2d 1351, 1357 (Miss. 1998). To trigger coverage under the policy, therefore,
Slocum must have accidentally built a house on Youngblood’s land.
      Slocum has not convincingly distinguished its mistake in building the




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                                        No. 10-60601

house from the errors of the insureds in Moulton and OmniBank.3 The insured
in Moulton did not intend to swear out a complaint against a person who had not
stolen her dog, but she did intend to swear out a complaint against the plaintiff.
The insured in OmniBank did not intend to overcharge the plaintiffs, but it did
intend to charge them some amount. Slocum intended to build a house on the
land that Anderson staked out. It may not have intended to build one on prop-
erty that did not belong to Anderson, but that is the unintended result of its in-
tentional actions. Therefore, its actions were not an accident under the terms
of its policy, and NBCI has no duty to defend or indemnify.4
       Summary judgment is AFFIRMED.




       3
         Nor did it even attempt to do so. The thrust of Slocum’s argument is that its action
was building a house on Youngblood’s land and that it did not intend to do that. But Slocum
is conflating an intended action with unintended results, as did the insured in Moulton. Slo-
cum cites Scottsdale Insurance Co. v. Bungee Racers, Inc., No. 4:04CV376-P-B, 2006 WL
2375367 (N.D. Miss. Aug. 14, 2006), which held that the insured’s sale of a defective amuse-
ment park ride was accidental because it did not intend to sell a defective product. That deci-
sion, however, (1) is unreported; (2) is not from a Mississippi state court; (3) relied heavily on
ACS Construction Co. v. CGU, 332 F.3d 885 (5th Cir. 2003), which the Mississippi Supreme
Court in Architex later determined was partially incorrect; and (4) did not mention the appar-
ent conflict it created with Moulton and OmniBank.
       4
         We need not decide whether the policy’s exclusions apply, because “exclusionary lan-
guage . . . cannot be used to create coverage where none exists.” Architex, 27 So. 3d at 1160
(quoting ACS, 332 F.3d 885).

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                                  No. 10-60601

JACQUES L. WIENER, JR., Circuit Judge, specially concurring:
      I concur in the result reached by the panel majority that National Builders
and Contractors Insurance Company (“NBCI”) does not have a duty to defend its
insured, Slocum Construction, L.L.C. (“Slocum”), against Robert Youngblood’s
counterclaim for willful trespass. I write separately, however, because I
respectfully disagree with the panel majority’s reasoning; specifically, its
position that, under Mississippi law, Slocum’s acts as a whole do not constitute
an “occurrence” within the meaning of NBCI’s insurance policy. Even though, I
am convinced that, to the contrary, a contractor’s (1) intentional construction of
a building (2) accidentally, i.e., negligently, on the wrong property would
constitute an “occurrence,” this cannot control our determination of coverage
today. Why? Because we are instructed by Mississippi law to look only to the
substance of the complaint — in this case, the substance of Youngblood’s
counterclaim — to determine whether it alleges acts that are covered by the
terms of the insurance policy. When we do that here, we must conclude that
NBCI does not have a duty to defend Slocum against Youngblood’s counterclaim
because the substance of his complaint’s allegation is that Slocum has committed
(and continues to commit) only the intentional tort of willful trespass, which by
definition cannot be an accident. Like the panel majority, I would affirm the
district court’s summary judgment, but I would do so under a different legal
analysis than does the panel majority — an analysis that I believe comports
more faithfully with Mississippi law.
            I. Slocum’s Actions Constituted an “Occurrence”
      It is undisputed that Kelvin Anderson came to Slocum and presented
misleading documents — “a deed and a survey to the property” — thereby falsely
representing to Slocum that he — Anderson — was the owner of the property.
Anderson had also physically staked off the property “in accordance with the
survey” and directed Slocum to build the house there. These facts are not

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                                         No. 10-60601

mentioned by the panel majority in its opinion, but they clearly demonstrate —
at least to me — that Slocum’s act of building the house on Youngblood’s
property was an “occurrence” within the meaning of the NBCI insurance policy.
      To begin with, these facts distinguish this case from Allstate Insurance
Company v. Moulton1 and United States Fidelity & Guaranty Company v.
Omnibank,2 the two Mississippi cases on which the panel majority so strongly
relies. In Moulton, the insured, Mrs. Moulton, mistakenly had the police arrest
an innocent man for stealing her dog, and that man later filed an action against
her for malicious prosecution. The Mississippi Supreme Court emphasized that,
not only must the insured’s acts be committed “consciously and deliberately,” but
also “the likely (and actual) effect of those acts [must be] well within [the
insured’s] foresight and anticipation.”3 This inquiry essentially boils down to one
of foreseeability of the alleged injury. Mrs. Moulton obviously had a natural
expectation that, once arrested, the man (who asserted his innocence, from the
start, claiming that Mrs. Moulton was wrong in her prosecution of him) “would
be subjected to the embarrassment, deprivation of liberty, and other indignities
claimed by [him].”4 In contrast, Slocum could not have reasonably expected that
by entering onto property to build a house commissioned and paid for by
Anderson (who himself asserted that he was the owner of the property and
backed up that assertion with documents falsely confirming that Slocum was
right), Slocum would trespass on Youngblood’s property. For this reason, unlike
Mrs. Moulton, it was not “well within” Slocum’s “foresight and anticipation” that
the “likely (and actual) effect” of its construction of the house on property


      1
          464 So. 2d 507 (Miss. 1985).
      2
          812 So. 2d 196 (Miss. 2002) (en banc).
      3
          Moulton, 464 So. 2d at 509 (emphasis added and quotation omitted).
      4
          Id. (quotation omitted).

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                                         No. 10-60601

Anderson claimed to own would be that Slocum would in fact trespass on
property owned not by Anderson but by Youngblood.
      Likewise, in OmniBank, an individual financed the purchase of her car
through OmniBank, but she did not obtain car insurance, as required by
OmniBank. The bank then allegedly “force-placed” insurance coverage on the car
and added the cost of the premiums and interest to the amount of the loan. After
the borrower learned of the bank’s acts, she filed suit against OmniBank for
“wrongfully force-plac[ing] collateral protection insurance” on her.5 The
Mississippi Supreme Court determined that “OmniBank intended to make a
loan to [the individual], intended to require [the individual] to maintain
insurance, intended to place [the] collateral protection insurance provision in the
loan agreement, and intended to include the premium in the finance charge.” 6
In no way then did OmniBank not intend to force-place insurance coverage on
the borrower, and OmniBank could have anticipated that all of the borrower’s
alleged damages could result from its intentional acts. OmniBank’s insurance
company therefore had no duty to defend OmniBank against that lawsuit in
which the substance of the borrower’s complaint was that OmniBank
intentionally took the wrongful action of force-placing collateral protection
insurance.
      Since handing down its opinions in Moulton and OmniBank, the
Mississippi Supreme Court has issued another relevant opinion, Architex
Association, Inc. v. Scottsdale Insurance Company,7 which the panel majority
largely ignores despite the Architex court’s pertinent reflection on Moulton and
OmniBank. Architex turned on whether the insured building contractor’s


      5
          OmniBank, 812 So. 2d at 197-98.
      6
          Id. at 201.
      7
          27 So. 3d 1148 (Miss. 2010).

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intentional act of hiring subcontractors excluded the insured from coverage for
defective work performed by those subcontractors. The Mississippi Supreme
Court noted that it had previously held “[i]n the non-construction-defect context
of Omnibank” that “‘[t]he only relevant consideration is whether, according to the
declaration, the chain of events leading to the injuries complained of were set in
motion and followed a course consciously devised and controlled by [the insured]
without the unexpected intervention of any third person or extrinsic force.’” 8
Importantly, however, the court went on to distinguish both Moulton and
OmniBank from Architex, explaining:
      Unlike in this case, the insureds in both Moulton and Omnibank
      were the parties who engaged in intentional and allegedly tortious
      conduct leading to the injuries complained of. Thus, the insured’s
      intentional actions did not constitute “accidents,” and the damages
      resulting therefrom did not amount to “occurrences” under the
      respective policies. In the present case, by contrast, the only act or
      conduct considered by the circuit court was the hiring of
      subcontractors, without consideration of whether the underlying
      acts or conduct of the insured or the subcontractors proximately
      causing “property damage” were negligent or intentional or were
      otherwise excluded by policy language. While the alleged “property
      damage” may have been “set in motion” by Architex’s intentional
      hiring of the subcontractors, the “chain of events” may not have
      “followed a course consciously devised and controlled by [Architex],
      without the unexpected intervention of any third person or extrinsic
      force.” 9
      Here, no one argues that when Slocum intentionally entered onto the
property and intentionally built the house for Anderson, it did so anticipating
that the property on which it built was not owned by Anderson. The panel
majority would nevertheless liken the instant case to Moulton and OmniBank,


      8
         Id. at 1153-54 (quoting Omnibank, 812 So. 2d at 200) (emphases and alteration in
original).
      9
          Id. at 1159 (quoting Omnibank, 812 So. 2d at 200-01) (footnote omitted and emphasis
added).

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asserting that “Slocum intended to build a house on the land than Anderson
staked out” just the way that “[t]he insured in Moulton did not intend to swear
out a complaint against a person who had not stolen her dog, but she did intend
to swear out a complaint against the plaintiff” and that “[t]he insured in
OmniBank did not intend to overcharge the plaintiffs, but it did intend to charge
them some amount.”10 But, in making that analogy, the panel majority ignores
the thrust of Architex that courts should look to whether the conduct that
proximately caused the alleged “property damage” was intentional, not whether
the insured has performed an intentional act in the course of causing the
property damage.
      As in Architex, the “chain of events” here did not “follow[] a course
consciously devised and controlled by [Slocum], without the unexpected
intervention of any third person or extrinsic force.”11 Even if it did intentionally
lay the foundation of the house and erect its walls, Slocum did not intentionally
enter onto the property (falsely identified by Anderson as his own) with
knowledge that it did not have the true owner’s permission— the one and only
proximate cause of the one and only allegation of injury advanced in
Youngblood’s counterclaim: willful trespass. Slocum would not have built the
house for Anderson on property not owned by Anderson (and would not have
trespassed      on   Youngblood’s      property)    but    for   Anderson’s      intervening
(mis)direction that Slocum build the house on that specific piece of property.
Therefore, under Mississippi law, Slocum’s actions as a whole did constitute an
“occurrence” within the definition of NBCI’s insurance policy. But our inquiry
cannot end here.
            II. Youngblood Accuses Slocum of Intentional Actions


      10
           Majority Opinion at 6.
      11
           Architex, 27 So. 3d at 1159 (quotation marks and citation omitted).

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       Regardless of my view that Slocum intentionally built the house but did
so accidentally on Youngblood’s land, the core problem with the panel majority’s
analysis is that it fails to begin with, and focus on, the specific “property
damage” alleged by Youngblood — intentional trespass. The panel majority
conflates Slocum’s several distinct acts and assesses them as a whole without
acknowledging that Youngblood does not complain of injury from Slocum’s
construction of the house on his property. Youngblood only complains of Slocum’s
willful trespass on his property. We have explained previously that, “[u]nder
Mississippi law, whether a liability carrier has a duty to defend depends on the
policy language and the allegations of the complaint. Under this so-called
‘eight-corners’ test, the allegations in the complaint are analyzed against the
language in the policy to determine coverage and the duty to defend.”12 Courts
must look to the complaint because, among other things, the injury complained
of “must be alleged to have been caused by an ‘occurrence.’”13 The panel majority
correctly points out that “Slocum’s insurance policy, like nearly all CGL policies,
provides coverage only if the damage is caused by an ‘occurrence,’ which [ ] is
synonymous with an ‘accident.’”14 But we first must know what damage is being
asserted within the four corners of the complaint.
       Here, Youngblood’s counterclaim alleges:
             That the said Slocum Construction company has willfully
       trespassed upon said property and continues to do so buy [sic]
       allowing persons unknown to Mr. Youngblood to traverse upon said


       12
         QBE Ins. Corp. v. Brown & Mitchell, Inc., 591 F.3d 439, 443 (5th Cir. 2009) (citations
omitted).
       13
          Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399-400
(5th Cir. 2008) (emphasis added). See also Equal Emp’t Opportunity Comm’n v. S. Publ’g Co.,
894 F.2d 785, 790-91 (5th Cir. 1990) (“Under Mississippi’s ‘allegations of the complaint’ rule
if the factual allegations of the complaint bring the action within coverage of the policy, the
insurer has a duty to defend.”).
       14
            Majority Opinion at 3.

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       property and rents said property and receives profits therefrom
       against the right of peaceful occupancy entitled to by Mr.
       Youngblood.
             WHEREFORE PREMISES CONSIDERED, counter plaintiff
       Youngblood hereby files this his [sic] counter-complaint for trespass
       and damages herein and . . . herein asks said court to find that
       counter defendant has willfully and unlawfully trespassed upon the
       property of said Robert Youngblood and has sought economic
       benefits therefrom without payments to the trustee now in effect
       and that they should be enjoined from entering on said property and
       shall be liable for the resulting damages to be set forth more fully
       herein upon a full and final hearing . . . .15
This counterclaim against Slocum does not allege that Slocum “damaged”
Youngblood’s property by building the house on it. What it does allege is that
Slocum has and continues to commit the intentional tort of willful trespass on
Youngblood’s property. Under Mississippi law, “willful trespass” must be
knowing, as “[o]ne who acts in good faith and with reasonable prudence, under
a belief that land in question is his own, is not criminally liable for willful or
malicious trespass in going upon land of another . . . .”16 The only claim asserted
against Slocum is that it has intentionally and knowingly trespassed and
continues to trespass intentionally and knowingly on Youngblood’s property. In
no way, then, can Slocum’s behavior — as alleged by Youngblood within the four
corners of his counterclaim — be considered an accident or an “occurrence”
within the four corners of NBCI’s policy, even if Slocum’s act of building the
house arguably was an “occurrence.”
       As for NBCI’s duty to defend, it matters not whether Slocum did in fact
accidentally (and not willfully) trespass on Youngblood’s property. “With regard
to coverage and duty to defend, under Mississippi law, the ultimate outcome or

       15
            (emphases added).
       16
           Johnston v. State, 98 So. 2d 445, 450 (Miss. 1957). This principle would apply equally
if the alleged trespasser acted in good faith and with reasonable prudence under a belief that
he had permission to enter from the property owner.

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merit of the claim is irrelevant with regard to the question of a duty to defend.” 17
What matters is what Youngblood alleged that Slocum did — here, a necessarily
intentional action, which by its own definition cannot be considered an
“occurrence” under NBCI’s policy — regardless of what Slocum in fact did.
       This is why courts, like those of Mississippi, which employ the eight-
corners rule, consistently deny insurance coverage under general liability
insurance policies for claims of intentional torts.18 For example, under Texas law,
which also mandates application of the eight-corners rule, “a claim does not
involve an accident or occurrence when either direct allegations purport that the
insured intended the injury (which is presumed in cases of intentional tort) or
circumstances confirm that the resulting damage was the natural and expected
result of the insured’s actions, that is, was highly probable whether the insured
was negligent or not.”19 Although Mississippi courts have not made this


       17
            Delta, 530 F.3d at 399 (citation omitted).
       18
          See, e.g., Farmland Mut. Ins. Co. v. Scruggs, 886 So.2d 714, 720 (Miss. 2004) (“There
are therefore three reasons why coverage must be denied; first, the plain face of [the third
party’s] complaint does not trigger the policy’s coverage and duty to defend; secondly, the torts
complained of were intentional; and last, public policy compels us to refuse coverage for
intentional and illegal actions.”); Moulton, 464 So. 2d at 508-10 (asking if “malicious
prosecution [is] the type of ‘occurrence’ contemplated by the insurance policy,” acknowledging
that “[m]alicious prosecution is an intentional tort,” and denying coverage). Even in
OmniBank, the Mississippi Supreme Court recognized that the specific question it was
answering was “whether, under Mississippi law, an insurer’s duty to defend under a general
commercial liability policy for injuries caused by accidents extends to injuries unintended by
the insured but which resulted from intentional actions of the insured if those actions were
negligent but not intentionally tortious.” 812 So. 2d at 197 (emphasis added)). Presumably, if
the alleged actions of the insured were intentionally tortious, there would be no question that
an insurer would not have a duty to defend under a general commercial liability policy
covering only negligence.
       19
          Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 9 (Tex. 2007) (citation
omitted). Compare Moulton, 464 So. 2d at 509 (“[T]he likely (and actual) effect of those acts
[must be] well within [the insured’s] foresight and anticipation.”). See also Federated Mut. Ins.
Co. v. Grapevine Excavation Inc., 197 F.3d 720, 724 (5th Cir. 1999) (“[b]oth state and federal
courts sitting in Texas have . . . den[ied] insurance defense and coverage in a steady stream
                                                                                   (continued...)

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distinction as pellucidly as have Texas courts, the Mississippi Supreme Court
has made clear, in the context of qualified immunity, that “[n]egligence is not an
intentional tort.” 20
                                              * * *
       In sum, Youngblood’s one and only allegation — the only claim that NBCI
is asked to defend against — is that Slocum committed the intentional and
knowing tort of willful trespass. That just can’t be an accident! We take the
wrong path if, like the panel majority, we seek to determine whether Slocum’s
intentional act of building the house was also intentionally done on Youngblood’s
property or rather was negligent or accidental. We should only consider what
Youngblood has alleged in his counterclaim, viz., that Slocum’s entrance onto his
property constituted willful (intentional) trespass. As NBCI’s insurance policy
only covers negligence and does not cover intentional torts such as willful
trespass, NBCI does not have a duty to defend Slocum against Youngblood’s
counterclaim for only an intentional tort.21 With continued respect, I must



       19
          (...continued)
of cases [ ], all of which involve the alleged commission of an intentional tort by an insured.
In cases involving claims against an insured for damage arising out of his alleged negligence,
however, a second line of cases has developed . . . .” (internal footnote omitted and emphasis
in original)).
       20
          Webb v. Jackson, 583 So.2d 946, 950 (Miss. 1991) (explaining that, if an officer was
guilty of negligence, then he did not fall under the “intentional tort” exception of qualified
immunity). See also Jordan v. Wilson, 5 So. 3d 442 (Miss. App. 2008):

       It is true that there is no cause of action for “negligent assault.” However, this
       is so not simply because there exists no such cause of action but, rather, because
       an intentional tort cannot be committed negligently. The holding in Webb simply
       recognizes that a claim alleging an intentional tort and a claim alleging
       negligence are mutually exclusive, in that, one who is found to have acted
       negligently cannot at the same time be found to have acted intentionally.

(footnote omitted and emphases added).
       21
            As NBCI points out, “There is no tort of ‘negligent’ trespass in Mississippi.”

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                                 No. 10-60601

conclude that the panel majority’s analysis is flawed by virtue of lumping
together Slocum’s intentional act of construction and its accidental act of doing
so on the wrong property, instead of focusing solely on Youngblood’s claim of
willful (intentional) trespass — which tort is simply not covered by NBCI’s
policy. This (and only this) is why NBCI does not owe Slocum a defense.




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