IN THE UNITED STATES COURT OF APPEALS

              FOR THE FIFTH CIRCUIT
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                           m 00-60409
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            CLARENDON AMERICA INSURANCE CO.,

                                              Plaintiff-Appellant,

                              VERSUS

      THE EMBERS, INC., D/B/A CENTERFOLD STRIP CLUB;
                  UNKNOWN JOHN DOES;
                                AND
                           PEGGY LARK,
    AS ADMINISTRATRIX OF THE ESTATE OF TONY DAVIS, DECEASED,
             ON BEHALF OF THE ESTATE OF TONY DAVIS
AND ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES OF TONY DAVIS,


                                              Defendant-Appellee.




                   _________________________

             Appeal from the United States District Court
               for the Southern District of Mississippi
                   _________________________
                         September 12, 2001
Before JONES, SMITH, and DeMOSS,                                              II.
  Circuit Judges.                                         We review a summary judgement de novo.
                                                       See Shakelford v. Deloitte, 190 F.3d 398, 403
JERRY E. SMITH, Circuit Judge:*                        (5th Cir. 1999). Interpretation of insurance
                                                       contracts also are reviewed de novo. See Am.
    Clarendon America Insurance Company                States Ins. Co. v. Natchez Steam Laundry, 131
(“Clarendon”) appeals a summary judgment in            F.3d 551, 553 (5th Cir. 1998).
favor of the Embers d/b/a/ Centerfold Strip
Club and Peggy Lark (collectively “Embers”)                                   III.
on Clarendon’s motion for declaratory relief to           The parties agree that Mississippi law ap-
determine coverage and defense duties under            plies. In Mississippi, (1) where the policy is
a commercial general insurance policy. The             plain and unambiguous, the court must
district court held that Clarendon (1) has a           construe the contract as written; (2) the policy
duty to defend Embers in the underlying state          must be read as a whole to give effect to all
court suit, (2) may have a coverage duty to            provisions; (3) the court must read an
Embers for actual damages, but coverage will           insurance policy more strongly against the
turn on a jury question to be determined in the        drafter; (4) where the terms of the policy are
state court action, and (3) has no duty to cover       ambiguous, the court must interpret them in
any punitive damages arising from the                  favor of the insured; (5) where a policy is
underlying suit. Clarendon appeals the first           subject to two reasonable interpretations, a
two determinations. Finding no error, we               court must adopt the interpretation affording
affirm.                                                the greater indemnity to the insured; (6) where
                                                       there is no practical difficulty in making the
                       I.                              language of a policy free form doubt, any
    The coverage questions arose when Lark,            doubtful provision must be resolved against
as administratrix of the estate of Tony Davis          the insurer; (7) a court must interpret policies,
and representative of his wrongful death bene-         especially exclusions, favorably to the insured
ficiaries, sued Embers in state court for the          wherever reasonably possible; and (8) a court
wrongful death. Davis allegedly was killed on          must refrain from changing a policy where the
the premises of the club owned by Embers.              terms are unambiguous, despite any resulting
The state complaint alleges he was killed by an        hardship. See Centennial Ins. Co. v. Ryder
errant bullet to the head in the parking lot of        Truck Rental, Inc., 149 F.3d 378, 382-83 (5th
the club, resulting from a skirmish between            Cir. 1998) (citations omitted).
employees of the club and some recently-
ejected patrons not affiliated with Davis.                 The touchstone of interpretation is the in-
                                                       tention of the parties. “If there is ambiguity
                                                       within a policy of insurance, then the intention
                                                       of the parties to the insurance contract should
                                                       be determined based upon what a reasonable
   *
     Pursuant to 5TH CIR. R. 47.5, the court has       person placed in the insured’s position would
determined that this opinion should not be             have understood the terms to mean.” J & W
published and is not precedent except under the        Foods Corp. v. State Farm Mut. Auto. Ins.
limited circumstances set forth in 5TH CIR. R.         Co., 723 So. 2d 550, 552 (Miss. 1998).
47.5.4.

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                        IV.                               agents, or servants, in the hiring,
    The dispute centers on two sections of the            supervision, retention or control of any
exclusions part of the Clarendon policy. The              person whether or not an officer, agent
first is the so-called “expected or intended in-          or servant of the insured; or(c) the
jury exclusion.” The policy excludes from                 alleged failure of the insured or his
coverage “Bodily Injury or property damage                officers, employees, agents, or servants
expected or intended from the standpoint of               to attempt to prevent, bar, or halt any
the insured. This exclusion does not apply to             such conduct.
bodily injury resulting from the use of
reasonable force to protect persons or                    This exclusion also applies to any claim
property.”       Policy § I.A.2.a. (internal              made by any other person, firm, or or-
quotation marks omitted).            The other            ganization, asserting rights derived
exclusion is for assault and battery. It                  from, or contingent upon any person
excludes from coverage                                    asserting a claim excluded hereunder.
                                                          (internal quotation marks omitted)
   Bodily injury or property damage arising
   from the following:                                 Policy § II.A.2.q.

   (1) assault;                                           The district court held that the facts plead-
                                                       ed in the underlying suit conceivably fall under
   (2) battery;                                        both exclusions. That is, if the actions of the
                                                       Embers employees were done with “reasonable
   (3) harmful or offensive contact between            force to protect persons or property,” while at
   or among two or more persons;                       the same time rising to the level of an
                                                       “assault”, “battery”, or “harmful or offensive
   (4) apprehension of harmful or offensive            contact,” those actions would seem to be both
   contact between or among two or more                excluded by subsection “q” and not excluded
   persons; or                                         by subsection “a.” This, the court held, is an
                                                       ambiguity, to be resolved in favor of coverage.
   (5) threats by words or deeds;

   regardless of degree of culpability or in-              Clarendon argues that, far from there being
   tent and without regard to:                         an ambiguity, the policy is clear as written, and
                                                       an exclusion cannot be used to grant coverage
        (a) whether the acts are alleged to            affirmatively. Clarendon reads the policy so
   be by or at the direction of the insured,           that the exclusion for assault and battery ends
   his officers, employees, agents, or                 the question. Under this view, the non-
   servants; or by anyone otherwise on, at,            exclusion of the same suit under another ex-
   or near premises owned or occupied by               clusion is irrelevant.
   the insured; or by any other person;
                                                          The problem with this argument is that it
        (b) the alleged failure of the                 renders the “reasonable force” clause of the
   insured, or his officers, employees,                “expected or intended injury” exclusion


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superfluous. Both parties recognize this is             comes from the facts of the coverage for this
inconsistent with plain Mississippi law to              insured.1
interpret an insurance policy as a whole and to
“giv[e] operative effect to every provision”.              There undeniably was an assault against
Continental Cas. Co. v. Hester, 360 So. 2d              Davis. If t he assault were the result of
695, 697 (Miss. 1978).                                  “reasonable force to protect persons or
                                                        property” by Embers employees, the policy
    Clarendon apparently recognizes as much in          would not exclude resulting damages from
its reply brief, stating that the “reasonable           coverage under the “expected or intended
force” clause of the “expected or intended in-          injury” exclusion. The plain wording of the
jury” exclusion is not superfluous, because a           “assault and battery” exclusion, though, would
hypothetical may be imagined in which an em-            exclude such damages from coverage. This is
ployee uses reasonable force that does not rise         an ambiguity in coverage.
to the level of an assault or battery, to protect
another patron. Specifically, Clarendon offers                                 V.
a hypothetical in which an employee tackles a              Under Mississippi law, the duty of an in-
patron to prevent him from being hit from               surer to defend the insured against a lawsuit
behind by a flying chair thrown by another              depends only on the facts pleaded in the un-
patron.                                                 derlying lawsuit. If a suit is filed alleging facts
                                                        that bring the suit within coverage of the
   There are two problems with this argument.           policy, the duty to defend is triggered. See
First, it is far from evident that this action by       Moeller v. Am. Guar. & Liab. Ins. Co., 707
the employee is not excluded from coverage              So. 2d 1062, 1069 (Miss. 1998). Any
under the “assault and battery” exclusion for           ambiguities regarding this defense obligation
being a “harmful or offensive contact.” As              are strictly construed against the insurer. See
that same exclusion makes clear, intent is ir-          Amer. States Ins., 131 F.3d at 553 (applying
relevant. Thus, if the patron were injured by           Mississippi law). This duty extends even to
the employee’s heroics, it would not matter             defend suits that are groundless, false, or
that the employee had a noble motive. Thus,             fraudulent. See State Farm Mut. Auto. Ins.
the “assault and battery” exclusion still appears       Co. v. Taylor, 233 So. 2d 805, 808 (Miss.
to be in conflict with the non-exclusion, in the        1970). Consequently, Clarendon owes a duty
“expected or intended injury” exclusion, of             of defense to Embers in the wrongful death
acts of “reasonable force” to protect persons           lawsuit.
or property.
                                                           AFFIRMED.
   Even if one does not rely on this analysis,
Clarendon’s hypothetical fails.            When
analyzing an insurance contract for ambiguity,
the relevant facts are those of the instant case,               1
                                                                   See, e.g., J&W Foods Corp. v. State
not any possible hypothetical that may                  Farm Mut. Auto. Ins. Co., 723 So. 2d 550 (Miss.
eliminate the ambiguity at a theoretical level.         1998) (remanding to determine the intent of stock-
See LEE R. RUSS, COUCH ON INSURANCE §                   holders of close corporation as to whether they
21:11 (3d ed. 1995). The case to be dealt with          intended insurance policy in name of corporation to
                                                        cover relatives of the insured).

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