     Case: 13-60286   Document: 00512773112   Page: 1      Date Filed: 09/17/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                       No. 13-60286 consolidated with
                                No. 13-60481
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                               September 17, 2014
ACADIA INSURANCE COMPANY,
                                                                  Lyle W. Cayce
                                                                       Clerk
                                   Plaintiff - Appellee,
v.

HINDS COUNTY SCHOOL DISTRICT,

                                   Defendant Cross Claimant - Appellant,
v.

ACE AMERICAN INSURANCE COMPANY,

                                   Cross Defendant - Appellee


BRYANT COWARD; ET AL,

                                         Plaintiffs,
v.

HINDS COUNTY SCHOOL DISTRICT,

                                         Defendant - Appellant,
v.

ACE AMERICAN INSURANCE COMPANY,

                                         Defendant - Appellee
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                  Appeals from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:12-CV-188


Before DAVIS, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       This case involves the scope of two different insurers’ obligations to
defend and indemnify Hinds County School District (“HCSD”) with respect to
the Coward family’s claims. The two insurers are called Ace American and
Acadia. Both insurers filed motions for summary judgment arguing that their
respective insurance policies did not cover the Coward family’s claims. The
district court granted both motions. The district court also denied HCSD’s
motion for leave to amend its pleading to include a counterclaim against Acadia
for a breach of the duty of good faith and fair dealing.
       As explained below, we affirm the district court’s grant of Ace American’s
motion for summary judgment. By contrast, we reverse the district court’s
grant of Acadia’s motion for summary judgment. Finally, we affirm the district
court’s denial of HCSD’s motion for leave to amend because its proposed
counterclaim against Acadia would have been futile.
                                             I.
       The Coward family’s daughter, M.L.C., is confined to a wheelchair and
lacks control over her arms.             The Coward family alleges that while
incapacitated, M.L.C. was injured between 2008 and 2009 by a schoolteacher,
Louise Miley Johnston, who was employed by HCSD. According to the Coward



       * 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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                        Nos. 13-60286 cons. w/13-60481
family, Johnston dropped M.L.C. out of her wheelchair on at least one occasion.
Based on this incident and a number of other acts allegedly committed by
Johnston, the Coward family brought claims against HCSD under Mississippi
tort law and 42 U.S.C. § 1983. The Coward family’s lawsuit is still pending
before the district court.   In the present appeal, HCSD argues that two
insurers, Ace American and Acadia, are obliged to defend and indemnify HCSD
as to the Coward family’s claims.
      The first insurer, Ace American, insured HCSD under Scholastic
Advantage Educators Legal Liability Policy No. EON G23640806 001 (“Ace
American Policy”). This insurance policy sets forth a number of exclusions, one
of which states that “the Insurer shall not be liable for Damages or Claims
Expenses on account of any Claim . . . alleging, based upon, arising out of or
attributable to any . . . Bodily Injury, other than Mental Distress arising out of
a Wrongful Employment Practice.” In its order of June 13, 2013, the district
court concluded that although the Coward family’s claims for bodily injury did
include claims for “Mental Distress,” such claims did not “aris[e] out of a
Wrongful Employment Practice.” The district court therefore reasoned that
the Ace American Policy did not cover the allegations in the Coward family’s
lawsuit and Ace American had no duty to defend HCSD under Mississippi law.
      The second insurer, Acadia, insured HCSD during the relevant time
under Commercial General Liability Policies CNA 4235393-11 and CNA
4235393-12 (“Acadia Policy”), the relevant provisions of which are identical. In
its order of March 29, 2013, the district court concluded that the Coward
family’s claims fell outside the scope of the Acadia Policy for three reasons.
      First, the Acadia Policy provides that any covered “bodily injury” must
be the consequence of an “occurrence,” which the policy further defines as “an
accident, including continuous or repeated exposure to substantially the same
general harmful conditions.” As the district court explained, discovery had
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                             Nos. 13-60286 cons. w/13-60481
produced “no evidence” that M.L.C.’s drop from the wheelchair was accidental,
rather than the result of an intentional act by Johnston.
      Second, the Acadia Policy also excludes from coverage any “expected or
intended” injury and any injury arising from “abuse or molestation.” According
to the district court, however, the Coward family alleged “a pattern of abuse,
which is intentional conduct.” The Coward family’s claims were therefore
excluded from coverage under these provisions of the Acadia Policy as well.
      Third, the district court found that the Coward family was unable to
prove any “bodily injury” that would be covered by the policy. As the district
court acknowledged, “the plaintiffs certainly alleged in their complaint that
M.L.C. had suffered a variety of bodily injuries . . . .” The record, however,
contained “no evidence about treatment by doctors for physical injuries or any
physical limitations M.L.C. will suffer from the alleged abuse. . . . Any physical
injuries she suffered must be inferred from the fact that she fell to the ground,
and even then they appear to be de minimis.” Accordingly, the district court
concluded that Acadia was entitled to summary judgment based on the absence
of evidence regarding M.L.C.’s injuries.
      HCSD appealed the district court’s orders granting summary judgment
in favor of Ace American and Acadia. We consolidated HCSD’s two appeals
and consider each in turn.
                                              II.
      This court reviews a district court’s order granting or denying summary
judgment de novo, applying the same standards as the district court. 1
Summary judgment is proper under Rule 56 of the Federal Rules of Civil
Procedure if the “materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations” and other


      1   ACS Constr. Co., Inc. of Miss. v. CGU, 332 F.3d 885, 887-88 (5th Cir. 2003).
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materials do not establish a “genuine dispute as to any material fact.”
       We look to state law for rules governing contract interpretation. 2 Under
Mississippi law, an insurance policy is subject to the general rules of contract
interpretation. 3 In Mississippi, construction of an insurance policy presents a
question of law, which we review de novo. 4
       The duty of an insurance provider to defend its insured depends upon
the language of the policy. 5 “‘The traditional test’ for whether an insurer has
a duty to defend under the policy language ‘is that the obligation of a liability
insurer is to be determined by the allegations of the complaint or declaration’”
in the underlying action. 6 If the factual allegations in an underlying complaint
state a claim that is within or arguably within the scope of coverage provided
by a policy, then the insurance provider is obligated to defend the insured. 7
Additionally, as held by the Supreme Court of Mississippi in Automobile
Insurance Co. of Hartford v. Lipscomb, 75 So. 3d 557, 559 (Miss. 2011), “the
insurer must provide a defense until it appears that the facts upon which
liability is predicated fall outside the policy’s coverage.”               In Mississippi,
therefore, an insurer is relieved of its duty to defend where “no genuine issue
of material fact” remains as to coverage based on the “language of the policy,
the complaint, and the relevant deposition testimony.” 8
       “‘[T]he duty to defend is broader than the insurer’s duty to indemnify



       2  F.D.I.C. v. Firemen’s Ins. Co. of Newark, NJ, 109 F.3d 1084, 1087 (5th Cir. 1997).
       3  See Clark v. State Farm Mut. Auto. Ins. Co., 725 So. 2d 779, 781 (Miss. 1998); Essex
Ins. Co. v. Greenville Convalescent Home Inc., 236 F. App’x 49, 50-51 (5th Cir. 2007).
        4 State Farm Mut. Auto. Ins. Co. v. LogistiCare Solutions, LLC, 751 F.3d 684, 688 (5th

Cir. 2014) (citing Farmland Mut. Ins. Co. v. Scruggs, 886 So. 2d 714, 717 (Miss. 2004)).
        5 Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So. 2d 400, 403 (Miss. 1997).
        6 Id. (quoting State Farm Mut. Auto. Ins. Co. v. Taylor, 233 So. 2d 805, 808 (Miss.

1970)).
        7 Ingalls Shipbuilding v. Fed. Ins. Co., 410 F.3d 214, 225 (5th Cir. 2005); Am. Guar.

& Liab. Ins. Co. v. 1906 Co., 273 F.3d 605, 610 (5th Cir. 2001).
        8 Lipscomb, 75 So. 3d at 560-61.

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                           Nos. 13-60286 cons. w/13-60481
under its policy of insurance: the insurer has a duty to defend when there is
any basis for potential liability under the policy.’” 9 But “[u]nlike the duty to
defend, which can be determined at the beginning of the lawsuit, an insurer’s
duty to indemnify generally cannot be ascertained until the completion of
litigation, when liability is established, if at all.” 10 “This is because, unlike the
duty to defend, which turns on the pleadings and the policy, the duty to
indemnify turns on the actual facts giving rise to liability in the underlying
suit, and whether any damages caused by the insured and later proven at trial
are covered by the policy.” 11
                                            III.
       We affirm the district court’s order of June 13, 2013, for essentially the
reasons stated in the district court’s opinion. Reading the Ace American Policy
as a whole, the only claims for bodily injury covered under the Ace American
Policy are claims for mental distress experienced by an employee or applicant
for employment due to the actions of the employer. Because M.L.C. is not
HCSD’s employee, her injuries do not arise from a “Wrongful Employment
Practice” under the Ace American Policy.
       The Ace American Policy excludes coverage for bodily injury “other than
Mental Distress arising out of a Wrongful Employment Practice.”                         The
insurance policy further explains that a “Wrongful Employment Practice” must
be predicated on one of thirteen injurious activities. Nearly all of the thirteen
injurious activities can logically arise only out of the employment relationship:
“wrongful dismissal,” “employment-related misrepresentation,” “wrongful



       9 LogistiCare, 751 F.3d at 692; Titan Indem. Co. v. Pope, 876 So. 2d 1096, 1101 (Miss.
App. 2004) (quoting Merchants Co. v. Am. Motorists Ins. Co., 794 F. Supp. 611, 617 (S.D.
Miss. 1992)).
       10 LogistiCare, 751 F.3d at 692 (quoting Estate of Bradley v. Royal Surplus Lines Ins.

Co., 647 F.3d 524, 529 (5th Cir. 2011)).
       11 Id.

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deprivation of a career opportunity,” “wrongful demotion,” “failure to employ
or promote,” “employment-related libel,” “defamatory statements in connection
with an Employee reference,” and “failure to grant tenure.” Other items on
this list are identified using more general terms, such as “discrimination” and
“retaliation,” but even these terms are elsewhere defined in the policy to
include     only   injuries    to   employees       or   applicants      for   employment.
“Discrimination,” for example, is defined specifically to include only “actual or
alleged violation of employment discrimination laws.”
       In arguing that the Coward family has alleged a claim based on a
“wrongful employment practice” under the Ace American Policy, HCSD has
focused on only a single injurious activity from the list of thirteen: “negligent
evaluation.” According to HCSD, the Coward family has alleged that HCSD
negligently     gave     the    schoolteacher,      Johnston,      positive    performance
evaluations. These negligently positive evaluations thereby enabled her to
remain in the classroom where she could cause mental distress to students.
       We reject HCSD’s argument. In Mississippi, the interpretive principle
of ejusdem generis applies both to contractual interpretation as well as to
statutory construction. 12       According to this principle, general words listed
among an enumeration of specific words “are construed to embrace only those
objects similar in nature to those objects enumerated by the . . . specific
words.” 13 The fact that nearly all of the items on the Ace American Policy’s list
of wrongful employment practices could only logically be injurious to an
employee suggests that “negligent evaluation” should be construed in this way
as well.
       This conclusion is supported by the Ace American Policy when it is read


       12 See Morgan v. State ex rel. Dist. Atty., 44 So. 2d 45, 48-49 (1950); City of Hernando
v. N. Mississippi Util. Co., 3 So. 3d 775, 787 (Miss. Ct. App. 2008).
       13 Flye v. Spotts, 94 So. 3d 240, 245 (Miss. 2012) (citation omitted).

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“as a whole,” as required under Mississippi law. 14 The Ace American Policy
defines damages “arising out of a Wrongful Employment Practice” to include
“front pay and back pay,” as well as “liquidated damages awarded pursuant to
the Age Discrimination in Employment Act of 1967 or the Equal Pay Act of
1983,” but not “employment-related benefits, retirement benefits, perquisites,
vacation and sick days . . . provided, however, this limitation does not include
salary, wages, bonuses, commissions and non-deferred cash incentive
compensation . . . .” These detailed provisions, which are only relevant in the
context of an employment relationship, suggest that the term “Wrongful
Employment Practice” was not intended to encompass injuries arising from the
teacher-student relationship.
      Finally, this interpretation finds further confirmation in the blanket
exclusion for all bodily injury other than mental distress. Young students such
as M.L.C., after all, are obviously more likely to experience a bodily injury than
a deprivation of back-pay or retirement benefits. It is evident, therefore, that
young students were not contemplated as potential victims of “negligent
evaluation” or any other wrongful employment practice under the Ace
American Policy.
      For these reasons, the district court was correct to conclude that the
Coward family’s lawsuit is not covered by the Ace American Policy and,
therefore, that Ace American has no duty to defend HCSD. 15 Accordingly, the
district court’s order granting summary judgment on June 13, 2013, is
affirmed.
                                           IV.
       We reverse the district court’s order of March 29, 2013, with respect to


       14See Cherry v. Anthony, Gibbs, Sage, 501 So. 2d 416, 419 (Miss. 1987) (citing Hinds
Motor Co. v. Hederman, 30 So. 2d 70, 72 (Miss. 1947)).
      15 See Delta Pride, 697 So. 2d at 403.

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Acadia’s duties to defend and indemnify. As explained above, the parties
dispute primarily whether Johnston’s alleged conduct constitutes an
“occurrence” that falls within the terms of the Acadia Policy. In the leading
cases, Allstate Ins. Co. v. Moulton, 464 So. 2d 507, 510 (Miss. 1985), and U.S.
Fidelity & Guaranty Co. v. OmniBank, 812 So. 2d 196, 198-200 (Miss. 2002),
the Supreme Court of Mississippi held that insurance for injury caused by an
“occurrence” is triggered only by “accidental” conduct.             As explained in
OmniBank, 812 So. 2d at 201, “a claim resulting from intentional conduct
which causes foreseeable harm is not covered [by the term, ‘occurrence’], even
where the actual injury or damages are greater than expected or intended.”
      We therefore begin our consideration of Acadia’s duty to defend based on
whether Johnston’s alleged conduct was accidental or intentional.                   As
demonstrated in Lipscomb, 75 So. 3d at 559-61, the Mississippi courts’ analysis
of the duty to defend may take into account materials in the record outside the
complaint and the insurance policy.             In that case, the Supreme Court of
Mississippi looked to the “language of the policy, the complaint, and the
relevant deposition testimony” to determine whether the insurer possessed a
duty to defend the insured against a lawsuit arising from a fire in an apartment
building. 16 In particular, the insurance policy in Lipscomb, 75 So. 3d at 559-
61, excluded injuries “[a]rising out of or in connection with a business engaged
in by any insured,” as well as injuries “[a]rising out of the rental or holding for
rental of any premises” that were not found specifically at “an insured
location.” As the Supreme Court of Mississippi explained, the insured’s own
deposition testimony revealed affirmatively that the insured “was operating a
business,” that the insured’s “source of income at the time of the fire was his
rental properties,” and that the apartment building was not an insured rental


      16   Lipscomb, 75 So. 3d at 560-61.
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property. 17 Accordingly, because “no genuine issue of material fact” existed
regarding the applicability of the insurance policy’s exclusions, the Supreme
Court of Mississippi held that the insurer had no duty to defend Lipscomb
against the underlying claims. 18
       Here, by contrast, a genuine issue of material fact does exist with respect
to the applicability of the exclusions in the Acadia Policy. In particular, the
Coward family alleged that Johnston dropped M.L.C. out of her wheelchair and
onto the ground. This allegation is supported by the written statement of
Larina Mason, a physical therapist who worked with Johnston’s students.
Although Mason’s statement is ambiguous, we are obliged to construe the
evidence and draw all reasonable inferences in the non-movant’s favor at the
summary judgment stage. 19 In conducting our present analysis, therefore, we
must draw the reasonable inference based on Mason’s written statement that
M.L.C.’s fall from the wheelchair was unintended and accidental.
       Mason’s written statement contains a number of criticisms regarding
Johnston’s attitude of disrespect toward Mason, the other therapists,
Johnston’s own teaching assistants, and the students.                     Only the first
paragraph, however, is actually relevant to the incident where M.L.C. was
dropped from her wheelchair:
       On 9/08/2008 an incident occurred when I asked for assistance to
       get [M.L.C.] out of her wheelchair and onto a mat on the floor.
       While I had my back turned putting on gloves, I heard a thud.
       When I turned around [M.L.C.] was lying on the floor on the mat.
       Kourtney (assistant in classroom) had transferred her without any
       help. She commented, “She’s alright. I’m not going to hurt my
       back bending over.” I did not see her drop [M.L.C.] on the mat, but
       by her response and the look on Ms. Johnston’s face and the look


       17Id. at 560 & n.9.
       18Id. at 559-61.
      19 Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004) (citing Reeves v.

Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000)).
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       on [M.L.C.’s] face, I know she didn’t transfer her appropriately.

This paragraph is ambiguous, and the parties have parsed it very differently.
According to Acadia, this paragraph means that “Kourtney’s act of dropping
M.L.C. . . . was not an accident, but was intentionally done by Kourtney to keep
her from hurting her own back.” According to HCSD, Mason’s statement is
“couched in terms of negligence,” which “supports Plaintiffs’ allegation” that
the wheelchair incident was “accidental and/or negligent.” It is also evidently
the Coward family’s understanding, based on their complaint in the underlying
lawsuit, that it was not HCSD’s assistant teacher, Kourtney, but rather “Ms.
Johnston” who “dropped M.L.C.” on this occasion. 20
       Fairly read, this ambiguous paragraph would support any of these


       20  It is worth acknowledging that the Coward family’s complaint does not mention
Kourtney, but rather attributes responsibility for dropping M.L.C. solely to Johnston. Given
the ambiguities in Mason’s written statement, however, we think that the Coward family’s
complaint could hypothetically withstand summary judgment even based on its allegation
regarding Johnston. Whatever the most elegant reading of Mason’s written statement might
be, it is at least a reasonable inference that Mason was referring to Johnston rather than
Kourtney when she wrote, “I know she didn’t transfer her appropriately” after M.L.C. was
transferred “without any help.”
        In any event, we are not faced at present with a motion for summary judgment against
the Coward family. In this appeal, we are evaluating only Acadia’s duty to defend, and
Acadia has never once argued that coverage is excluded because Johnston, rather than
Kourtney, was the HCSD employee identified in the Coward family’s complaint. See Acadia
Br. 44. The reason is clear enough: Kourtney was also an employee of HCSD. As provided
under Lipscomb, 75 So. 3d at 559, the Mississippi courts’ analysis of the duty to defend takes
into account not just the allegations in the complaint, but also “the true facts” of which “an
insurer becomes aware” through “independent investigation.” If Kourtney, rather than
Johnston, was revealed by Acadia’s investigation to be responsible for dropping M.L.C., then
HCSD is potentially liable under the same agency theory invoked by the Coward family as to
Johnston. At least as described in Mason’s written statement, both Johnston and Kourtney
were apparently acting within the scope of their employment as HCSD’s teacher and
assistant teacher when they transferred (or failed to transfer) M.L.C. from her wheelchair.
Estate of Brown By & Through Brown v. Pearl River Valley Opportunity, Inc., 627 So. 2d 308,
311 (Miss. 1993) (“[A]n injury arises out of an employment when . . . there is a causal
connection between such injury and the conditions under which the work is required to be
performed.”); see also Cockrell v. Pearl River Valley Water Supply Dist., 865 So. 2d 357, 361-
62 (Miss. 2004). The identity of the HCSD employee who allegedly dropped M.L.C., therefore,
has no consequences in the present appeal.
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proposed interpretations. In particular, because Mason’s written statement
describes an incident involving three female individuals, it is difficult to tell
for certain who is being described by each use of the pronouns, “she” and “her.”
Kourtney may have dropped M.L.C. to avoid hurting her (Kourtney’s) own back
and then told Mason that she (M.L.C.) was “alright” (meaning uninjured). Or
Kourtney may have been describing Johnston as “alright” (meaning
blameless), because her (Johnston’s) help wasn’t actually required to transfer
M.L.C. from the wheelchair. Or Johnston might have been the “she” who
commented that Kourtney was “alright” (meaning capable of performing the
task by herself), which was why Johnston left Kourtney to perform the transfer
“without any help” rather than hurting her (Johnston’s) own back.
       In other words, the written statement is ambiguous. Where the evidence
is “at least ambiguous” with respect to a material issue of fact, as we stated in
Carroll v. Metropolitan Ins. & Annuity Co., 166 F.3d 802, 807 (5th Cir. 1999),
summary judgment must be denied. Here, “[g]iven the ambiguities in the
record, the parties’ conflicting versions of the facts, and the competing factual
inferences arising from this muddle, the only thing clear is that the appellee
could not properly obtain summary judgment on this point.” 21                    Although
Mason’s written statement is difficult to follow, it does support the reasonable
inference that M.L.C. fell from the wheelchair because of accidental conduct by
either Johnston or Kourtney. Accordingly, Acadia is not relieved of its duty to
defend HCSD based on the term, “occurrence,” in the Acadia Policy or the
exclusion for “intended” injury.
       Mason’s statement also prevents summary judgment based on the
Acadia Policy’s exclusion for “abuse or molestation.” All of the Mississippi



       21Impossible Elec. Techniques, Inc. v. Wackenhut Protective Sys., Inc., 669 F.2d 1026,
1032 (5th Cir. 1982); see also Bailey v. O’Donnell, 980 F.2d 1445, at*2 (5th Cir. 1992).
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decisions cited by the parties have applied “abuse or molestation” exclusions
either to sexual conduct 22 or to plainly intentional conduct. 23 Accordingly, if
M.L.C. were dropped from her wheelchair accidentally and unintentionally,
this would not necessarily be excluded as “abuse” under the Acadia policy.
Because “the insurer has a duty to defend when there is any basis for potential
liability under the policy” 24 under Mississippi law, the duty to defend is
therefore triggered in this case. 25
       Conversely, the fact that the Coward family has explicitly alleged that
Johnston subjected M.L.C. to a pattern of “abuse” does not relieve Acadia of
the duty to defend. Most critically, under Mississippi law, “[i]n comparing the
complaints with the policy terms, we look not to the particular legal theories
pursued by the state complainants, but to the allegedly tortious conduct
underlying their suits.” 26 Accordingly, even if the Coward family were to
characterize     a    non-abusive       act   as    “abuse,”     the    Coward      family’s
characterization would not be dispositive of Acadia’s duty to defend under
Mississippi law. Moreover, the Coward family’s complaint does not necessarily
include the wheelchair incident within Johnston’s alleged pattern of abuse.
Apart from the wheelchair incident, the Coward family has also alleged that
Johnston committed numerous other injurious acts. 27 The complaint also



       22  See, e.g., Lincoln Cnty. Sch. Dist. v. Doe, 749 So. 2d 943, 945 (Miss. 1999); Titan
Indem. Co. v. Williams, 743 So. 2d 1020, 1022 (Miss. Ct. App. 1999); see also Cincinnati Ins.
Co. v. Markel Am. Ins. Co., CIVA 307CV168-WHBLRA, 2008 WL 2415248, at *11 (S.D. Miss.
June 11, 2008); Am. Nat. Gen. Ins. Co. v. L.T. Jackson, 203 F. Supp. 2d 674, 678 (S.D. Miss.
2001).
        23 See Maryland Cas. Co. v. Nestle, 1:09 CV 644-LG-RHW, 2010 WL 3735756, at *1

(S.D. Miss. Sept. 17, 2010).
        24 Titan Indem., 876 So. 2d at 1101.
        25 See Delta & Pine Land Co., 530 F.3d at 399 (“As long as the claim is ‘arguably’

covered by the insurance policy, the duty to defend is triggered.”).
        26 Am. Guar. & Liab. Ins. Co., 273 F.3d at 610.
        27 As alleged by the Coward family, the schoolteacher also (1) “use[d] unnecessary

force” to prevent M.L.C. “from flapping her arms,” (2) “struck” M.L.C. “when she was tying
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repeatedly attributes M.L.C.’s injuries to “negligent and grossly negligent acts
or omissions.” Construing the complaint in favor of the non-movant, HCSD, it
is therefore reasonable to conclude that Johnston allegedly committed both a
pattern of abusive acts and at least a single non-abusive act when M.L.C. was
dropped from her wheelchair.
         Additionally, the district court erred by granting summary judgment
based on the absence of any “evidence about treatment by doctors for physical
injuries or any physical limitations M.L.C. will suffer from the alleged abuse.”
The present case is not an instance such as Lipscomb, 75 So. 3d at 559-61, in
which deposition testimony affirmatively demonstrated that coverage was
excluded under the “rental property” exclusion contained in the applicable
insurance policy. Nor is this an instance such as State Farm Mutual Auto. Ins.
Co. v. LogistiCare Solutions, LLC, 751 F.3d 684, 692-93 (5th Cir. 2014), where
the written interrogatories likewise affirmatively demonstrated that the
insured received payment for the use of a vehicle and thus fell within the
applicable insurance policy’s “for a charge” exclusion.
       Here, the district court consulted the record not with respect to an
affirmative demonstration that coverage was excluded, but with respect to the
absence of evidence. Such an analysis of the duty to defend apparently has no
basis in any Mississippi case law. Indeed, such an analysis of the duty to
defend would be fundamentally unfair to the insured. It is, after all, not the
insured who is obliged to bring forward evidence of the plaintiff’s injury, but
the plaintiff. Even if the Coward family has not yet produced evidence of
physical injury, they may yet be able to do so during the ongoing proceedings


her feet to the foot rest,” (3) threw a ball at M.L.C.’s face, (4) sprayed M.L.C.’s face with a can
of aerosol body spray, (5) grabbed M.L.C.’s face, and (6) was verbally cruel and abusive to
M.L.C. on many occasions. See Complaint ¶ 10 (Case No. 3:12-cv-188, Rec. Doc. 14-1);
Complaint ¶¶ 9-12 (Case No. 3:12-cv-188, Rec. Doc. 14-5); Amended Complaint ¶ 9 (Case No.
3:12-CV-731, Rec. Doc. 1-1).
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                        Nos. 13-60286 cons. w/13-60481
before the district court. As for the complaint itself, as the district court
acknowledged, “the plaintiffs certainly alleged in their complaint that M.L.C.
had suffered a variety of bodily injuries.” Accordingly, the district court should
not have concluded that Acadia was entitled to summary judgment based on
the absence of evidence regarding bodily injury.
      Finally, with respect to the duty to indemnify, our decision in Barden
Mississippi Gaming LLC v. Great Northern Ins. Co., 576 F.3d 235, 239-40 (5th
Cir. 2009), explained that the duty to indemnify usually should not be
evaluated “until the resolution of [the underlying claimant’s] lawsuit.”
Similarly, as we explained in Essex Ins. Co. v. Greenville Convalescent Home
Inc., 236 F. App’x 49, 52 (5th Cir. 2007) (citing Green v. Aetna Ins. Co., 349 F.2d
919, 923-26 (5th Cir. 1965)), “[a]ny associated legal questions regarding
coverage will be informed by the results of the trial, and the resolution of these
questions should also await its conclusion.” Given the particular ambiguity
surrounding the key piece of evidence in this case—Mason’s written
statement—the usual rule regarding the duty to indemnify should be applied
here. As compared with speculation about what the Coward family will or will
not be able to demonstrate, or what Mason’s ambiguous written statement
might have meant, the evidence actually produced at trial will provide a firmer
basis on which to judge whether Acadia must indemnify HCSD under the
Acadia Policy.
                                        V.
      Turning to HCSD’s counterclaim, the district court did not abuse its
discretion by denying HCSD leave to amend its pleading under Rule 15 of the
Federal Rules of Civil Procedure. Such leave should not be granted if the
proponent of the amendment fails to state a claim upon which relief may be




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                            Nos. 13-60286 cons. w/13-60481
granted. 28
       Invoking the duty of good faith and fair dealing, HCSD argues that
Acadia had an obligation to provide “indemnity settlement authority” for the
purposes of a mediation on June 20, 2012, to HCSD’s Moeller counsel, who
represents the interests of the insured under Moeller v. American Guarantee
and Liability Insurance Co., 707 So. 2d 1062 (Miss. 1996). In HCSD’s view, its
attorney should have been authorized to settle the Coward family’s claims not
only on behalf of HCSD, but also on behalf of Acadia.
       HCSD cites no authority, however, that would support this argument.
Indeed, as is illustrated by Twin City Fire Insurance Co. v. City of Madison,
MS, 309 F.3d 901 (5th Cir. 2002), the insured’s decision to settle and the
insurer’s decision to settle are ordinarily two independent decisions in
Mississippi. 29    The bad faith alleged in that case involved the insurer’s
improper use of privileged information regarding the insured, which had been
obtained by the insurer through the insured’s Moeller counsel in order to
“develop [the insurer’s] position of non-coverage.” 30                There is no similar
allegation in the present case. There is no suggestion that HCSD’s Moeller
counsel improperly transmitted any of HCSD’s confidential information to
Acadia to help Acadia prepare its case.
       Indeed, the duty that HCSD proposes would appear to create a conflict
of interest. Under Mississippi law, the Moeller counsel is required to act in the
interests of the insured. But HCSD’s theory would vest Moeller counsel with



       28 Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir.
2014); Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000).
       29 Twin City Fire, 309 F.3d at 904 (“The [plaintiffs] settled their claims with [the

insured] for $250,000. In a separate agreement with [the insured], [the insurer] agreed to pay
the settlement amount to the [plaintiffs], reserving its right to seek recoupment from [the
insured] in this declaratory judgment action.”) (emphasis added).
       30 Id. at 905-06.

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                             Nos. 13-60286 cons. w/13-60481
authority to make binding decisions on behalf of the insurer, whose interests—
as the Supreme Court of Mississippi recognized in Moeller, 707 So. 2d at
1070—may be adverse to the interests of the insured.
      We therefore decline HCSD’s invitation to recognize any duty for the
insurer to authorize Moeller counsel to settle claims on the insurer’s behalf.
Accordingly, given the absence of legal authority supporting HCSD’s proposed
counterclaim, the district court acted within its discretion when it rejected
HCSD’s request for leave to amend. 31
                                              VI.
      For the reasons set forth above, we AFFIRM the district court’s grant of
Ace American’s motion for summary judgment and REVERSE the district
court’s grant of Acadia’s motion for summary judgment.                     We therefore
REMAND for further proceedings in accordance with this opinion. We also
AFFIRM the district court’s denial of HCSD’s motion for leave to amend.
      AFFIRMED in part, and REVERSED and REMANDED in part.




      31   Marucci, 751 F.3d at 378; Stripling, 234 F.3d at 873.
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                       Nos. 13-60286 cons. w/13-60481
EDITH BROWN CLEMENT, Circuit Judge, concurring in part and dissenting
in part:
      I agree with the majority that the Ace American Policy covers only
employment-related claims and join in Parts I-III and V of the opinion.
Because the Cowards’ Amended Complaint does not allege an “occurrence”
triggering a duty to defend under the Acadia Policy, I dissent from the
majority’s holding in Part IV that Acadia owes such a duty to HCSD.
                                       I.
      As the majority opinion correctly states, an occurrence is triggered only
by accidental conduct. U.S. Fid. & Guar. Co. v. OmniBank, 812 So. 2d 196, 201
(Miss. 2002). The majority finds the requisite allegation of accidental conduct
in the Amended Complaint’s assertion that Johnston “dropped M.L.C.” But
the majority completely omits the context in which the purported drop is
claimed. The relevant paragraph of the complaint states:
      In or about the spring of 2008, and for the period of around one
      year, Louise Miley Johnston, a teacher at Gary Road Intermediate
      School, engaged in abusive behavior and other conduct including,
      but not limited to, physical and emotional abuse of M.L.C. For
      example, Ms. Johnston sprayed M.L.C. in the face with a can of
      Aerosol spray and dropped M.L.C. She also called M.L.C. a ‘bitch,’
      threw a ball at M.L.C. hitting her in the face . . . . Ms. Johnston
      also grabbed M.L.C.’s face and told her, ‘I hate you, you make me
      sick.’ . . . The foregoing examples of abuse by Ms. Johnston against
      M.L.C. are not exhaustive.
Am. Compl. ¶ 9 (emphases added). The Cowards’ pled Johnston’s drop as an
example of abuse along with other clearly intentional conduct. Read in context,
the Amended Complaint does not allege an accidental drop but claims, as the
district court found, that the drop was another act in a sequence of
intentionally abusive behavior. See Farmland Mut. Ins. Co. v. Scruggs, 886
So. 2d 714, 719 (Miss. 2004) (no duty to defend where “[f]rom the face of
[plaintiff’s] complaint, only intentional torts are alleged” and where
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                            Nos. 13-60286 cons. w/13-60481
“[defendants’] pattern of conduct has been one of intentional acts.”). Under the
majority’s decision, a defendant faced with factual allegations of intentional
misconduct can simply suggest that the actions could have instead been the
product of negligence and thus trigger an insurer’s duty to defend. This now-
permissible reinterpretation of a plaintiff’s allegations, even if contrary to the
language of the complaint, effectively supersedes Mississippi law that an
occurrence cannot result from intentional conduct.
       The single reference to Johnston’s negligence (as opposed to Hinds
County’s own negligence in failing to identify and prevent Johnston’s
intentional behavior) in the Amended Complaint appears in Paragraph 13:
“Upon information and belief, officials of the school and school district were
aware of the negligence and physical and emotional abuse to which M.L.C. was
subjected at the hands of Johnston.” 1 This conclusory use of the word
“negligence” does not transform the character of the factual allegations of
intentional conduct against Johnston into allegations of accidental conduct
constituting an “occurrence.” “Negligence” is not a factual allegation, but a
legal conclusion that cannot itself bring a complaint within the scope of an
insurance policy’s coverage. See E.E.O.C. v. S. Pub. 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.” (emphasis added));                        Emp’rs
Reinsurance Corp. v. Martin, Gordon & Jones, Inc., 767 F. Supp. 1355, 1359-



       1The Cowards’ initial complaint did not allege any negligent conduct at all, but stated
that the action was for the “abuse, battery and infliction of emotional distress against
M.L.C.,” and consistently referred to Johnston’s actions as “abuse and battery.” It was only
after Acadia (and Ace American) refused to provide a defense or indemnify Hinds County
that the Cowards filed an Amended Complaint describing Johnston’s conduct as negligent.
But the Amended Complaint did not contain new factual allegations, it merely included the
word “negligence.”
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                            Nos. 13-60286 cons. w/13-60481
60 (S.D. Miss. 1991) (“[I]t is the facts alleged, not the pleader’s legal
conclusions, that are relevant to the insurer’s duty to defend.”).
       But even if we ignore the fact that the Amended Complaint alleges only
intentional abuse, the “negligent” drop would still not bring the complaint
within the terms of the Acadia Policy. The Mississippi Supreme Court permits
courts to look to evidence outside of the complaint to determine an insurer’s
coverage obligations. See Auto. Ins. Co. of Hartford v. Lipscomb, 75 So. 3d 557,
560 (Miss. 2011).       The drop referred to in the Amended Complaint was
described by Larina Mason, another employee of the school district:
       On 9/08/2008 an incident occurred when I asked for assistance to
       get [M.L.C.] out of her wheelchair and onto a mat on the floor.
       While I had my back turned putting on gloves, I heard a thud.
       When I turned around [M.L.C.] was lying on the floor on the mat.
       Kourtney (assistant in classroom) had transferred her without any
       help. She commented, “She’s alright. I’m not going to hurt my back
       bending over.” I did not see her drop [M.L.C.] on the mat, but by
       her response and the look on Ms. Johnston’s face and the look on
       [M.L.C.]’s face, I know she didn’t transfer her appropriately.
Statement of Larina Mason ¶ 1 (emphases added). The majority concludes
that Mason’s statement is “ambiguous” and engages in a tortured reading of
the paragraph to cast uncertainty as to whom the pronouns “her” and “she”
refer. This is unconvincing because Mason’s statement clearly explains that
Kourtney—not Johnston—transferred M.L.C. 2 The next sentence states that
“she”—Kourtney, the subject of the preceding sentence—declared that she
would not “hurt [her] backing bending over.” 3 Mason then states that she “did


       2  The majority also states that the Cowards understood that Johnston, not Kourtney,
dropped M.L.C. This is incorrect. In their response to Acadia’s interrogatory concerning the
drop, the Cowards stated: “We do not know whether the incident where M.L.C. was dropped
was intentional or not. The only information we have on the incident is . . . the statement of
Larina Mason on April 2, 2009.”
        3 While it is unclear whether Kourtney meant that she had dropped M.L.C. because

she did not want to hurt her back, or whether she meant that she was not going to pick her
up off the mat because doing so would hurt her back, it is clear that Kourtney is the speaker.
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                        Nos. 13-60286 cons. w/13-60481
not see her drop [M.L.C.] on the mat, but by her response and the look on Ms.
Johnston’s face . . . I know she didn’t transfer her appropriately.” Again,
Mason’s use of a pronoun refers to Kourtney. Kourtney is not only the subject
of the previous sentence, but is identified as the sole transferor of M.L.C., and
thus the only person to whom Mason could be referring when she states that
she did not “see her” drop M.L.C. Because Johnston is identified by name in
the sentence, the majority’s contention that Johnston could also be the “her”
that Mason describes as having dropped M.L.C. is simply untenable.
Replacing Johnston’s name with the pronoun “her” would read this way: “I did
not see [Johnston] drop M.L.C. on the mat, but by [Johnston’s] response, and
the look on Ms. Johnston’s face . . . I know she didn’t transfer her
appropriately.” Mason’s use of the pronoun “her” clearly refers to Kourtney—
the person whom Mason describes as dropping M.L.C.—not Johnston, who
witnessed the action and, from Mason’s description, presumably displayed
some sort of shock indicating that Kourtney improperly transferred M.L.C.
      The majority, in a footnote, concludes that even if it was Kourtney and
not Johnston who dropped M.L.C., the Acadia Policy would still be triggered
because “HCSD is potentially liable under the same agency theory invoked by
the Coward family as to Johnston.” Where a plaintiff is seeking to hold an
employer liable for the conduct of an employee, it is the employee’s conduct
that determines whether there has been an “occurrence” triggering coverage of
the liability insurer. See Am. Guarantee & Liab. Ins. Co. v. 1906 Co., 129 F.3d
802, 810 (5th Cir. 1997) (“[T]he ‘ultimate question’ for coverage purposes is
whether the employee’s intentional misconduct itself falls within the definition
of an occurrence.”). Thus, it is the conduct of Johnston, not HCSD, which
determines whether there has been a “bodily injury” caused by an “occurrence”
triggering Acadia’s coverage obligations.


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                        Nos. 13-60286 cons. w/13-60481
      But the Cowards do not allege that HCSD is liable for any negligent
conduct by Johnston under a theory of respondeat superior. The Cowards
allege claims of: (1) conspiracy; (2) breach of fiduciary duty; (3) intentional or
negligent infliction of emotional distress; (4) negligence; (5) negligent
supervision,    assignment,      hiring,    and     retention;    (6)    negligent
misrepresentation; (7) and deprivation of constitutional rights under 42 U.S.C.
§ 1983. Every claim is predicated on Johnston’s intentional abuse of M.L.C.
The Cowards’ negligence claim asserts that HCSD and individual defendant
officials of the school breached their duty of care to M.L.C.
      by negligently failing to act as reasonable and prudent teachers
      and school administrators . . . Specifically, Kourtney Parnell failed
      to timely report Johnston’s mental and physical abuse of M.L.C.,
      thereby causing a delay in appropriate response to the wrongful
      conduct. Once the conduct was reported to defendants, they failed
      to take appropriate action to protect the rights of Plaintiffs under
      the laws of Mississippi and the United States.
Am. Compl. ¶ 44 (emphasis added).
      Neither Kourtney Parnell nor any other non-administrative employee is
named as a defendant in the lawsuit.         The Cowards seek to impute the
“negligence of the teachers, administrative employees and agents of [HCSD]”
to the school district under the doctrine of respondeat superior. Am. Compl. ¶
47. But, contrary to the majority’s contention, the Cowards do not claim that
HCSD is vicariously liable for an unintentional tort—such as a negligent
drop—committed by Johnston (most likely because, as discussed above, none
is alleged). The negligence claim asserted in the Amended Complaint is that
HCSD is responsible for its teachers’ and administrators’ failure to report
Johnston’s intentional abuse and for failing to stop the abuse once they were




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                             Nos. 13-60286 cons. w/13-60481
aware of it. 4 Neither committing intentional abuse, nor failing to report such
abuse, is an “accident” constituting an occurrence under the policy.
       The only other language in the Amended Complaint that could possibly
give rise to the majority’s reading of a general “agency theory” asserting
HCSD’s liability for an accidental act by Johnston is the reference to
respondeat superior in the Cowards’ breach of fiduciary duty claim. This
paragraph alleges that
       [t]he abuses and assaults in this case arose from Ms. Johnston’s
       exercise of authority, power, and access created by her position and
       employment as a teacher for the Defendants. Plaintiffs thus plead
       vicarious liability under the doctrine of respondeat superior and/or
       ratification in that the Defendants knew or should have known of
       the dangerous propensities of Ms. Johnston and could foresee Ms.
       Johnston’s actions as arising from the duties of Ms. Johnston as a
       teacher of the Defendants.
Id. ¶ 35 (emphases added). Again, it is clear that the “agency theory” asserted
here is that HCSD is liable for its administrators’ failure to prevent Johnston’s
intentional conduct. All of the Cowards’ claims are premised on HCSD’s failure
to uncover, warn, and stop Johnston’s intentional abuse of M.L.C.                           The
Cowards simply do not claim that HCSD is liable for any unintentional torts
of Johnston and thus there is no support for the majority’s position that
Kourtney Parnell’s “accidental” drop of M.L.C. could bring the Cowards’ action
within the scope of Acadia’s coverage. See Scruggs, 886 So. 2d at 719 (“A
liability insurance company has an absolute duty to defend a complaint which
contains allegations covered by the language of the policy, but it has absolutely
no duty to defend those claims which fall outside the coverage of the policy.”).




       4 Likewise, the Cowards’ negligent supervision and hiring claim alleges that
defendants “negligently failed to warn Plaintiffs, their family, or any of the pupils’ parents of
Ms. Johnston’s dangerous propensities despite knowledge of these propensities.” Am. Compl.
¶ 49 (emphasis added).
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                           Nos. 13-60286 cons. w/13-60481
       Because the Amended Complaint does not allege accidental conduct by
Johnston constituting an “occurrence” and all of the Cowards’ claims are
premised on Johnston’s intentional abuse of M.L.C., I would affirm the district
court’s ruling that Acadia has no duty to defend HCSD.
                                             II.
       Because the Cowards’ causes of action against Hinds County do not
premise liability on accidental conduct of Johnston that could trigger coverage
under the Acadia Policy, the district court’s grant of summary judgment on
Acadia’s claim that it has no duty to indemnify HCSD should also be affirmed.
It is true that the “duty to indemnify generally cannot be ascertained until the
completion of litigation, when liability is established, if at all.” 5 State Farm
Mut. Auto. Ins. Co. v. LogistiCare Solutions, LLC, 751 F.3d 684, 692 (5th Cir.
2014) (internal quotation marks omitted). This is because the duty “turns on
the actual facts giving rise to liability in the underlying suit, and whether any
damages caused by the insured and later proven at trial are covered by the
policy.” Id. (internal quotation marks omitted). But as any liability on the part
of HCSD must necessarily be premised on the intentional abuse inflicted by
Johnston as alleged in the Amended Complaint, there is no set of facts that
could bring HCSD’s liability within the Acadia Policy’s coverage. Accordingly,




       5 Mississippi federal district courts have consistently held that “because the duty to
defend is broader than the duty to indemnify, where there is no duty to defend, there is no
duty to indemnify.” Haney v. Cont'l Cas. Co., No. 08-482, 2010 WL 235025, at *2 (S.D. Miss.
Jan. 15, 2010); see also Tudor Ins. Co. v. Manchester Educ. Found., Inc., 10-493, 2013 WL
228023, at *2 (S.D. Miss. Jan. 22, 2013) (same); Coleman v. Acceptance Indem. Ins. Co., 08-
260, 2009 WL 1873742, at *6 (S.D. Miss. June 29, 2009), aff’d, 369 F. App’x 595 (5th Cir.
2010) (same); Evanston Ins. Co. v. Neshoba Cnty. Fair Ass’n, Inc., 442 F.Supp.2d 344, 346 n.
1 (S.D.Miss.2006) (same). This court has not established such a “per se rule.” Coleman, 369
F. App’x at 598.
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                           Nos. 13-60286 cons. w/13-60481
I would also affirm the district court’s grant of summary judgment that Acadia
has no duty to indemnify HCSD. 6
       I respectfully dissent.




       6 Shortly after the instant appeal was taken, the district court dismissed all of the
Cowards’ claims except for their § 1983 claim. There is no plausible argument that the Acadia
Policy’s coverage for accidental conduct could encompass any set of facts establishing the
denial of M.L.C.’s asserted constitutional right to bodily integrity.
                                             25
