     Case: 19-30863      Document: 00515409409         Page: 1    Date Filed: 05/08/2020




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

                                                                               FILED
                                    No. 19-30863                            May 8, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
GILCHRIST CONSTRUCTION COMPANY, L.L.C.,

              Plaintiff - Appellant

v.

TRAVELERS INDEMNITY COMPANY; ARCH INSURANCE COMPANY,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:18-CV-925


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Gilchrist Construction Company, LLC (“Gilchrist”)
appeals the dismissal of its breach of contract claims and declaratory judgment
action against its insurers, Arch Insurance Company (“Arch”) and Travelers




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-30863
Indemnity Company (“Travelers”) (collectively, “insurers”). 1 We affirm, for
essentially the reasons expressed by the district court.
       Gilchrist contracted with two individuals to remove dirt from their
property for use in a nearby road construction project and to store debris-laden
dirt and other materials on their property. Under the contract, Gilchrist agreed
to “leave a clean, nicely shaped dirt pile to the [property owners’] satisfaction
when all activities are complete.” After completion of the project, those
property owners filed suit against Gilchrist in Louisiana state court, alleging
that Gilchrist “intentionally and maliciously buried rubble/debris in and
around [their] property” and “underpaid [them] for the dirt it excavated,”
bringing claims for breach of contract and bad faith breach of contract (“the
underlying action”).
       After a jury found in favor of the property owners in the underlying
action, awarding them $5,559,000 in damages, Gilchrist filed the instant action
against its insurers, bringing a breach of contract claim and seeking a
declaratory judgment with respect to the insurers’ duties to defend and
indemnify it in the underlying action.
       The commercial general liability policies issued to Gilchrist by both Arch
and Travelers cover claims for “property damage” arising from an “occurrence.”
Both the Arch and Travelers policies define “occurrence” as “an accident,
including continuous or repeated exposure to substantially the same general
harmful conditions.” Neither policy contains a definition of “accident.”
       The district court correctly concluded that neither insurer owes Gilchrist
defense or indemnity with respect to the underlying action because none of the




       1The district court ruled on Gilchrist’s claims against Travelers and Arch in separate
opinions for essentially the same reasons. Gilchrist’s failure to distinguish between the
insurers in its briefing does not affect our analysis.
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                                      No. 19-30863
intentional and malicious behavior alleged therein was an accident and thus
does not constitute an occurrence. 2
       Black’s Law Dictionary defines “accident” as “an unintended and
unforeseen injurious occurrence; something that does not occur in the usual
course of events or that cou[ld] not be reasonably anticipated.” 3 We have
stated, in the context of Louisiana insurance policies, that “when the word
‘occurrence’ is defined as an ‘accident,’ the occurrence of an unforeseen and
unexpected loss constitutes an ‘accident’ and therefore an ‘occurrence.’” 4
Louisiana jurisprudence holds “that an event is caused by accident if [it is]
unusual an unexpected from the viewpoint of the person to whom it happens.” 5
       The acts alleged in the underlying action here are intentional and not
accidental. They are not the sort of unexpected incident the policies cover.
Gilchrist’s argument that the property owners did not expect or anticipate the
property damage alleged in the underlying action because they expected the
land to be left in a suitable condition, as the contract required, is unavailing.
The fact that the parties expressly bargained for Gilchrist to “leave a clean,
nicely shaped dirt pile to the [property owners’] satisfaction when all activities
are complete” does not result in the violation of that contractual provision




       2 The district court did not reach the insurers’ alternative arguments that: (1)
exclusions in the policies preclude coverage or (2) the policies did not provide coverage
because Gilchrist had knowledge of the property damage before the policies began.
       3 Accident, BLACK’S LAW DICTIONARY (9th ed. 2009).
       4 Freeport-McMoRan Energy v. Mullen, 233 F. App’x 341, 345 (5th Cir. 2007) (per

curiam) (quoting N. Am. Treatment Sys., Inc. v. Scottsdale Ins. Co., 943 So.2d 429, 444 (La.
App. 1st Cir. 2006)).
       5 Gray v. State, 191 So.2d 802, 816 (La. App. 3d Cir. 1966) (emphasis added).

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                                        No. 19-30863
being unforeseeable or unexpected and therefore included in coverage. 6
AFFIRMED. 7




       6  See Longleaf Investments, L.L.C. v. Cypress Black Bayou Recreation and Water
Conservation Dist., 162 So.3d 479, 484 (La. App. 2d Cir. 2015), (concluding that insurer owed
no duty to defend underlying action by landowner against insured alleging that insured
intentionally breached contract with landowner because breach by insured was neither an
accident nor an occurrence).
        7 The fact that the original petition in the underlying action included an allegation of

continuing trespass as a result of the continued presence of the debris does not change our
analysis. The substance of the allegations in both the original petition and the amended
petition, which removes any trespass claim, makes clear that the property owners seek
recourse for property damage they allege arose out of Gilchrist’s intentional acts. See LaFever
v. Whitely, 613 So.2d 1007, 1009 (La. App. 1st Cir. 1992) (finding no duty to defend because
no accident or occurrence when “the mere addition of the word ‘negligently’ to the allegations
of [the amended] petition [did] not change the facts alleged therein, which, if accepted as true,
clearly establish that her injuries are the result of ‘willful and malicious acts’”).
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