                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                       In the                                  May 7, 2004
  United States Court of Appeals                         Charles R. Fulbruge III
             for the Fifth Circuit                               Clerk
                 _______________

                   m 03-30697
                 _______________




BOLLINGER SHIPYARDS LOCKPORT, L.L.C.; ET AL,

                                      Plaintiffs,

  BOSTON OLD COLONY INSURANCE COMPANY,

                                      Plaintiff-Appellant,

                      VERSUS

 CERTAIN UNDERWRITERS AT LLOYD’S, LONDON,

                                      Defendant-Appellee.



           _________________________

     Appeal from the United States District Court
        for the Eastern District of Louisiana
                  m H-01-CV-708
          _________________________
Before GARWOOD, HIGGINBOTHAM, and                         specifically to insure the trip, was left re-
  SMITH, Circuit Judges.                                  sponsible for payment to Bollinger to the ex-
                                                          tent of $900,000.
JERRY E. SMITH, Circuit Judge:*
                                                             Bollinger and Boston Old Colony sued
   Bollinger Shipyards Lockport, L.L.C.                   Lloyd’s, alleging that the Builder’s All-Risk
(“Bollinger”), a party in the district court but          Policy and CGL policy required that Lloyd’s
not a combatant in this appeal, was contracted            cover the loss. On Lloyd’s’ motion for
by the Army to build cargo barges. Bollinger              summary judgment, the district court found
sub-contracted AmClyde Engineered Products,               that the losses fell outside the coverage of the
Inc. (“AmClyde”), to fabricate and install a              Builder’s All Risk Policy and the CGL policy.
cargo crane on one of those barges, the D/B               The district court accordingly dismissed all
SPRINGFIELD.                                              claims of Bollinger and Boston Old Colony
                                                          against Lloyd’s. Only Boston Old Colony
    Pursuant to the subcontract, AmClyde                  appeals.
named Bollinger as an Assured under its
Builder’s All Risk Policy, with appropriate re-                                 I.
muneration to be paid to the insurer, Certain                We review the district court’s legal
Underwriters at Lloyd’s, London and/or In-                conclusions, including its interpretation of
stitute Companies (“Lloyd’s”). Coverage also              contracts, de novo. Taita Chem. Co. v.
was extended under a Commercial General Li-               Westlake Styrene Corp., 246 F.3d 377, 385
ability (“CGL”) policy issued by Lloyd’s.                 (5th Cir. 2001); Nolan v. Golden Rule Ins.
                                                          Co., 171 F.3d 990, 992 (5th Cir. 1999). In
   Bollinger handed over the SPRINGFIELD                  reviewing a summary judgment, we view any
to AmClyde, which duly installed the crane on             reasonably disputable facts in the light most
the barge at its facility in Slidell, Louisiana.          favorable to the non-moving party, in this case
Possession of the barge then was returned to              Boston Old Colony.
Bollinger, which contracted for tugboats to
transport it to Newport News, Virginia, for                  The insurance policies are governed by
delivery to the Army.                                     Louisiana law, under which we utilize the gen-
                                                          eral rules of contract interpretation, requiring
    The crane and its associated operator’s               determination of the common intent of the
house snapped off the barge during transit and            parties. See Thermo Terratech v. GDC En-
fell overboard. The accident apparently did               viro-Solutions, Inc., 265 F.3d 329, 334 (5th
not result in damage to the barge, apart from             Cir. 2001). The intent of the parties as
the $1.2 million loss of the craneitself. Boston          reflected in the words of the policy determines
Old Colony Insurance Company (“Boston Old                 the proper extent of its coverage. Id.
Colony”), with which Bollinger had contracted
                                                             The first question is whether the Builder’s
                                                          All-Risk Policy extended coverage to the loss
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-       of the crane. That policy is a one-size-fits-all
termined that this opinion should not be published        document, intended to apply to the numerous
and is not precedent except under the limited cir-        projects AmClyde might pursue. AmClyde
cumstances set forth in 5TH CIR. R. 47.5.4.

                                                      2
could pay Lloyd’s to have additional projects          er’s All-Risk Policy should be read in the
covered by the policy, with its clients named as       factual context of the subcontract that required
“additional assureds.” Its provisions, then,           its application, concluded that the “entire pro-
were not specially crafted to reflect the tasks        ject” language referred only to the work done
associated with the installation of the crane on       under the AmClyde subcontract. The court
the SPRINGFIELD, but instead were of a                 noted especially that the subcontract provided
more general nature.                                   that risk of loss was intended to shift from
                                                       AmClyde to Bollinger on return of the barge
   Among the Builder’s All-Risk Policy’s pro-          to the latter. The subcontract stated:
visions was the following:
                                                            SUPPLIER [AmClyde] shall provide
     Insurance hereunder in respect to each               Builder’s All Risk Insurance for 100%
   part, item, or portion of the subject mat-             replacement cost for all PURCHASER
   ter(s) of this insurance shall attach from             [Bollinger] supplied equipment while
   the time of beginning at the risk of an                said equipment is in the possession of
   Assured where that insurance becomes                   SUPPLIER [AmClyde]. Risk of loss
   the responsibility of the named Assured                shall pass on delivery of this LSB-18
   and continued thereafter until                         Crane to PURCHASER [Bollinger].
   completion of the entire project under
   the contract(s) or agreement(s), and                   The parties thus contemplated that the in-
   acceptance by client and/or customer                surance yet to be provided by AmClyde would
   and/or as per contract(s), or agree-                lapse after the SPRINGFIELD was returned to
   ment(s).                                            Bollinger. It is in light of these circumstances
                                                       that the district court interpreted the contract’s
(Emphasis added.) In other words, the                  “entire project” language to mean only the
coverage ended when the “entire project” was           work performed under the subcontract.
completed.
                                                          Boston objects to the district court’s
    Lloyd’s argues that the entire project was         reference to the subcontract in interpreting the
completed with the return of the                       Builder’s All Risk Policy. As Boston Old Col-
SPRINGFIELD to Bollinger and before the                ony correctly notes, the language of the sub-
loss of the crane during the delivery trip. Bos-       contract cannot overwhelm or defeat the plain
ton Old Colony contends that “entire project”          language of the insurance contract. See
should be read to refer not to AmClyde’s               Saavedra v. Murphy Oil USA, Inc., 930 F.2d
whole contract work for Bollinger, but rather          1104, 1110 (5th Cir. 1991). But the district
to the work to be done under the entire prime          court did not act improperly by looking to the
contract. Under Boston Old Colony’s view,              circumstances surrounding the inclusion of
coverage under the Builder’s All-Risk Policy           Bollinger as an additional assured under the
would have ceased only when the Army                   Builder’s All Risk Policy. Indeed, it is
accepted the SPRINGFIELD and only after                impossible to interpret the policy in any
the loss of the crane.                                 fashion without looking to surrounding
                                                       circumstances, for its terms are almost wholly
   The district court, reasoning that the Build-       generic.


                                                   3
   Further, the existence and nature of the               The delivery trip of the SPRINGFIELD
subcontract are among the most important               was very short, as the parties elucidated at oral
circumstances relevant to the interpretation of        argument, only from AmClyde’s facilities to
the policy. It was no error for the district           the custody of towing vessels contracted by
court to look to the subcontract in concluding         Bollinger, just outside of Slidell. For that
that the likely meaning of “entire project” un-        matter, there was evidently no “remodeling” or
der the policy was limited to the completion of        “repairs” planned or undertaken as part of
work under the subcontract. The court’s ref-           AmClyde’s work under the subcontract––the
erence to other circumstances surrounding the          language is included merely to note the many
policy, such as its price and the typical extent       circumstances covered by Lloyd’s’ generic and
of builder’s all risk policies as a species, was       widely applicable Builder’s All Risk Policy.
likewise appropriate.                                  The “Delivery Trip” language cannot be read
                                                       to suggest that the “entire project” language
   In addition to its criticism of the district        was intended to cover events after the
court’s use of the subcontract, Boston Old             completion of AmClyde’s own subcontract.
Colony points to language in the policy that
Boston Old Colony contends supports its in-                Similarly, language in the Policy noting
terpretation of “entire project.” Primarily,           that the coverage of the policy extended
Boston Old Colony points to provisions in the          “worldwide” (with exceptions for icy ports of
policy that it says support its view that the          call) is evidence neither that AmClyde
policy extends coverage for the duration of the        expected to move the SPRINGFIELD across
prime contract. The provisions Boston Old              the Seven Seas, nor that the Louisiana-to-
Colony cites, however, are illustrative only of        Virginia trip was covered by the contract.
the contract’s wide expansive coverage, not            Again, evidence of the policy’s expansive spa-
of its temporal extent.                                tial coverage is not probative of its temporal
                                                       extent.1
    For instance, Boston Old Colony notes that
the policy explicitly extends its coverage to             Boston Old Colony’s arguments are
“prefabrication and/or fabrication and/or erec-        unconvincing, and, as the district court
tion and/or construction and/or installation           observed, the nature of the Builder’s All Risk
and/or repairs and/or remodeling and/or                Policy and the circumstances surrounding its
movements by any means (including ocean                extension of coverage to Bollinger as an
transits by steamer(s) and/or motor vessels(s)         additional assured support the conclusion that
and/or barge(s) in tow).” This generic                 coverage ended at the completion of
language underscores the intended effect of            AmClyde’s “entire project” under the
the contract to cover damages resulting from           subcontract.
all manner of activities in which AmClyde
might engage while undertaking its work. The
“Delivery Trip” language was not added in                 1
                                                            Boston Old Colony notes that under Adden-
contemplation of the voyage of the SPRING-             dum 21 of the Builder’s All Risk Policy, a main-
FIELD from Louisiana to Virginia, but rather           tenance risks clause may extend coverage of the
to encompass any and all “transits” of a               Builder’s All Risk Policy for up to a year. There
covered item from one place to another.                is, however, no evidence to show that any such
                                                       extension was exercised.

                                                   4
                                                       within the contract such an addendum actually
                      II.                              appears. A heading concerning such a policy
   Boston Old Colony also asserts, separately          appears in the table of contents but was ex-
from its arguments concerning the Builder’s            pressly “subject to full wording to be agreed to
All Risk Policy, that the CGL policy should            by Underwriters of the Assured.” Because
have provided coverage of the loss of the              such an addendum was never agreed upon, it
crane and pilot house. It is undisputed that the       is not now a part of the contract. The
temporal coverage of the CGL policy extended           “professional services” exclusion must apply
past the handover of the SPRINGFIELD. Its              with full force.
express terms, however, included exclusions
that prevent the loss of the crane from                   The CGL policy would have acted to cover
coverage under the policy.                             damage that the destruction of the crane
                                                       caused to other parts of the SPRINGFIELD,
    The relevant exclusions were the “faulty           but it cannot cover the failure of the crane.
workmanship” exclusion, also known as the              Boston Old Colony has not alleged that the
“business risk” exclusion, and the “profession-        loss of the crane damaged other parts of the
al services” exclusion. The district court con-        SPRINGFIELD.
cluded that these exclusions placed outside the
coverage any damages to the crane itself,                 AFFIRMED.
where they resulted from poor work by either
AmClyde’s skilled laborers or its professional
staff. They function to leave the risk of
replacing or repairing defective materials as a
commercial risk of the purchaser. In other
words, they prevent a commercial liability pol-
icy from becoming a product or service war-
ranty.

    Inasmuch as the loss of the crane may be,
as Boston Old Colony alleges, the result of
faulty welding and ot her bad work by Am-
Clyde’s blue collar employees, the loss falls
under the “faulty worksmanship” exclusion.
Because loss of the crane was the result of
poor design by AmClyde’s engineers, as Bos-
ton Old Colony alternatively contends, the loss
falls under the “professional services”
exclusion.

    Boston Old Colony also argues that a sep-
arate “Architects / Engineers Professional Lia-
bility Policy” was added to the CGL policy,
but Boston Old Colony cannot show where


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