     Case: 14-30054    Document: 00512850499      Page: 1   Date Filed: 11/26/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                  No. 14-30054                    United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
HOLLYBROOK COTTONSEED PROCESSING, L.L.C.,                        November 26, 2014
                                                                    Lyle W. Cayce
             Plaintiff - Appellant Cross-Appellee                        Clerk

v.

AMERICAN GUARANTEE & LIABILITY INSURANCE COMPANY,

             Defendant - Appellee Cross-Appellant




                Appeals from the United States District Court
                    for the Western District of Louisiana


Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.
REAVLEY, Circuit Judge:
      In this appeal involving an insurance dispute both the plaintiff and
defendant appeal rulings by the district court. We conclude that there was no
error in the district court’s order granting a new trial, or its determination that
the jury’s damage award was covered under the applicable insurance policy,
but we conclude that the district court incorrectly determined that the
plaintiff’s attorney’s fees were not covered by the policy. We therefore AFFIRM
in part and REVERSE in part the district court’s judgment and REMAND for
further proceedings.
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                                 No. 14-30054
                                       I.
      Plaintiff Hollybrook Cottonseed Processing, L.L.C. (“Hollybrook”)
contracted with Carver, Inc. for certain cotton processing equipment as part of
its operation of a cotton mill in Louisiana.      Carver’s equipment suffered
repeated mechanical breakdowns, causing Hollybrook to experience significant
downtime of its entire plant and to lose the use of other non-Carver
downstream equipment. Hollybrook sued Carver in state court for breach of
contract and redhibition.    It also sued Carver’s primary insurer, Sentry
Insurance Company, and its excess insurer, Defendant American Guarantee &
Liability Insurance Company (“American”), under Louisiana’s direct action
statute. After the defendants removed the case to federal court, Hollybrook
settled its claims against Carver and Sentry and proceeded against American.
Prior to trial, the district court held on summary judgment that American’s
policy provided coverage for Hollybrook’s claims.
      On the next-to-last day of an eleven-day trial, American’s counsel elicited
testimony from a Carver employee that Hollybrook had demanded that Carver
give it new equipment and $750,000. This testimony violated the district
court’s pre-trial order on a motion in limine that precluded the parties from
disclosing information about offers of settlement and statements made during
settlement negotiations. Hollybrook immediately objected and moved for a
mistrial.   The district court determined that counsel’s conduct had been
intentional and later sanctioned counsel, but it deferred ruling on the motion
for a mistrial. The court gave an immediate curative instruction and polled
the jury for assurance that the jurors could ignore the improper settlement
evidence. On the next day of the trial the jury returned a verdict in favor of
Hollybrook, awarding damages of $1,750,000, which was far below the amount
of damages Hollybrook claimed that it had suffered.


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                                 No. 14-30054
      Hollybrook moved for a new trial on the ground that defense counsel’s
misconduct had tainted the jury. The district court granted the motion, finding
that counsel’s intentional misconduct and the close fit between the jury’s
damages award and the settlement offer left it with no fair assurance that the
jury had ignored the inadmissible evidence. The court therefore ordered a new
trial as to damages only.
      The second trial was conducted before a different district court judge.
The second jury also returned a verdict in favor of Hollybrook but awarded
damages of over $6 million. The award consisted of lost profits of $3.5 million,
the purchase price of the Carver equipment of $381,042 (the amount of which
had been stipulated by the parties), and “other compensatory damages” of $2.5
million. In post-trial briefing, American again challenged the district court’s
insurance coverage determination made on summary judgment, while
Hollybrook additionally sought to recover its attorney’s fees as damages
allowed by Louisiana’s redhibition statute. The district court reaffirmed the
initial coverage determination but it also determined that Hollybrook’s
attorney’s fees were not damages covered by the relevant policy.
      American now appeals the district court’s grant of a new trial and the
court’s coverage determination made on summary judgment. Hollybrook also
appeals, arguing that the district court erroneously denied it recovery of its
attorney’s fees.
                                       II.
      American argues that the district court erroneously granted a new trial
and that the first jury verdict should be reinstated because it was not against
the great weight of the evidence. We review the district court’s decision on a
motion for a new trial for an abuse of discretion. Carr v. Wal-Mart Stores, Inc.,
312 F.3d 667, 670 (5th Cir. 2002). An order granting a new trial is reviewed
more broadly than an order denying one, but an abuse of discretion remains
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                                      No. 14-30054
necessary for reversal. Carson v. Polley, 689 F.2d 562, 570 (5th Cir. 1982). If
“the issues are complex, the evidence is controverted, or the conduct of the trial
was tainted, ‘we will affirm a new trial order even if on our own review of the
“cold record” we are not convinced that the jury verdict was against the great
weight of the evidence.’” Smith v. Transworld Drilling Co., 773 F.2d 610, 613
(5th Cir. 1985) (citation omitted).
       When, as here, the district court is faced with a motion for a mistrial
based on the submission of prejudicial information to the jury, the district court
must decide whether the error is harmless by assessing whether “‘the error did
not influence the jury, or had but very slight effect.’” O’Rear v. Fruehauf Corp.,
554 F.2d 1304, 1308 (5th Cir. 1977) (quoting Kotteakos v. United States, 328
U.S. 750, 764, 66 S. Ct. 1239, 1248 (1946)). We find no abuse of discretion in
the district court’s determination of this question.               As noted above, the
improper testimony about the settlement offer came shortly before the case
was submitted to the jury, and it therefore would have been somewhat fresh
in the jurors’ minds. Furthermore, there is no discernable basis for the jury’s
award apparent from the evidence presented on damages, and American offers
no explanation for how the jury might have arrived at its verdict. 1 Instead, the
jury’s award of $1,750,000 is exactly $1 million more than the settlement offer
about which it heard. Moreover, the jury also indicated during the course of
its deliberations that it was deadlocked on an unspecified matter, yet it
returned its verdict soon after receiving additional instructions. All of these
circumstances raise questions about how the jury arrived at its verdict and
suggest that the jury simply added $1 million to the amount it believed
Hollybrook had been willing to accept.


       1Although Hollybrook claimed at trial that its damages ranged from $5.9 million to
over $15 million, it is unclear how the jury calculated its damages amount despite finding in
Hollybrook’s favor as to liability.
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                                  No. 14-30054
      American argues that because the improper testimony was brief and did
not permeate the trial, it did not influence the jury. However, “[t]he trial judge
is ‘of necessity, clothed with a great deal of discretion in determining whether
an objectionable question is so prejudicial as to require a retrial, . . . (and he)
is in a far better position to measure the effect of an improper question on the
jury than an appellate court which reviews only the cold record.’” O’Rear, 554
F.2d at 1308 (citation omitted). In light of the totality of the circumstances, we
find no abuse of discretion in the district court’s conclusion that it had no fair
assurance the jury was not influenced by the inadmissible settlement
testimony. See id. (“‘[I]f one cannot say, with fair assurance, after pondering
all that happened without stripping the erroneous action from the whole, that
the judgment was not substantially swayed by the error, it is impossible to
conclude that substantial rights were not affected.’” (citation omitted)).
                                        III.
      American next argues that policy exclusions for the insured’s work
product should have precluded coverage for the jury’s damages award rendered
at the second trial. We affirm the district court’s judgment, however, for the
same reasons articulated by the district court.
      The “work product” provisions in the policy precluded coverage for
“‘[p]roperty damage’ to ‘your product’ arising out of it or any part of it” and for
“‘[p]roperty damage’ to ‘your work’ arising out of it or any part of it and included
in the ‘products-completed operations hazard.’”         American contends that
because all of Hollybrook’s damages arose from the injury to the Carver
equipment, the work product exclusion applies to preclude coverage.
      We agree with the district court that under Louisiana law the “work
product” exclusion is intended “to ‘avoid the possibility that coverage under a
CGL policy will be used to repair and replace the insured’s defective products
and faulty workmanship.’” Supreme Servs. & Specialty Co. v. Sonny Greer,
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                                    No. 14-30054
Inc., 958 So. 2d 634, 641 (La. 2007) (citation omitted). The district court
correctly held that while the exclusion precludes coverage for damages due to
the repair or replacement costs of the insured’s actual equipment, it does not
preclude coverage for loss resulting from damage to other property. See Martco
Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 883-84 (5th Cir. 2009); see also Todd
Shipyards Corp. v. Turbine Service, Inc., 674 F.2d 401, 421 (5th Cir. 1982)
(holding that an “injury to work” exclusion “carves out of the policy damage to
the particular work performed by the insured, but not the overall damage that
the incorporation of the defective work product causes to the entire entity”);
Bollinger Shipyards Lockport, L.L.C. v. AmClyde Engineered Prods., 2003 WL
21396773, at *6 (E.D. La. Jun. 11, 2003) (unpublished) (“The work product
exclusion precludes recovery for damage to the product itself.              Coverage
remains for personal injury and ‘other property’ damage.” (citation omitted)).
      Here, Hollybrook’s damages occurred not only from the injury to the
Carver equipment but also from the loss of use of the entire plant, which the
district court held was damage to other property under the policy and was not
excluded by the “work product” exclusion. 2 See Martco, 588 F.3d at 883 (“[L]oss
of use was suffered by the OSB plant as a whole. These injuries were presented
at trial through evidence of specific instances of plant-wide downtime caused
by the various mechanical failures of the Wellons unit.”); Todd Shipyards
Corp., 674 F.2d at 423 (holding that a “work product” exclusion precluded
recovery of the cost to repair or replace a turbine, which the insured had
negligently repaired, but that economic losses from the loss of use of the entire
ship as a result of downtime were not excluded because the ship was
“indisputably property other than the insured’s work product”). American fails



      2  No party disputes that, under the “work product” exclusion, the district court
correctly excluded from the judgment the purchase price of the Carver equipment.
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                                      No. 14-30054
to show that the “work product” exclusion unambiguously applies to the loss of
use of the entire plant in this case. 3 See Martco, 588 F.3d at 880 (holding that
insurer bears the burden of proving that an exclusion to coverage
unambiguously applies).
                                            IV.
       Hollybrook appeals the district court’s refusal to include its attorney’s
fees in the judgment because the court determined that the fees were not
“damages” covered by American’s policy. Hollybrook argues that there was
coverage because American’s policy covered all sums that its insured, Carver,
was legally obligated to pay as damages, and, under Louisiana law, a plaintiff’s
attorney’s fees are an element of damages in a redhibition suit. It asserts that
American has failed to show any policy exclusion that precludes coverage for
the attorney’s fees. We agree with Hollybrook.
       American’s policy required it to “pay those sums that the insured
becomes legally obligated to pay as damages because of . . . ‘property damage’
included within the ‘products-completed operations hazard.’” The relevant
question in this case is whether the attorney’s fees were “damages” caused by
property damage. Because the policy does not define the word “damages” it is
given its ordinary meaning, and any ambiguity must be resolved against the
insurer in favor of coverage. See, e.g., Reynolds v. Select Props., Ltd., 634 So. 2d
1180, 1183 (La. 1994).
       Under Louisiana law, attorney’s fees ordinarily are not recoverable
unless specifically authorized by statute or contract. See Quealy v. Paine,
Webber, Jackson & Curtis, Inc., 475 So. 2d 756, 763 (La. 1985); Russ Herman,


       3 We are also not persuaded by American’s argument that aside from lost profits there
was no evidence of, and therefore no coverage for, the “other compensatory damage” awarded
by the jury. As Hollybrook points out, there was evidence of construction costs to build out
the plant and losses from its inability to meet forward contracts outstanding when the plant
closed.
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                                  No. 14-30054
1 La. Prac. Pers. Inj. § 5:14 (2014). In a redhibition suit attorney’s fees are
expressly allowed. See La. Civ. Code art. 2545. State law provides that a
manufacturer of a defective product may be found liable to the buyer of the
product in a redhibition action for “the return of the price with interest from
the time it was paid, for the reimbursement of the reasonable expenses
occasioned by the sale and those incurred for the preservation of the thing, and
also for damages and reasonable attorney fees.” Id. (emphasis added).
       American argues that attorney’s fees and damages are two separate
remedies, and that the fees are considered to be a penalty rather than a part
of a party’s damages. However, Louisiana courts have specifically stated about
redhibition actions that “[t]he buyer’s reasonable attorney fees are nothing
more than an element of the buyer’s damage.” Borne v. Mike Persia Chevrolet
Co., 396 So. 2d 326, 330 (La. Ct. App. 1981). In Borne, the court addressed a
constitutional challenge to the redhibition statute, stating that the statute “is
not penal in its operation or intent” but rather “simply assigns the cost of
contract litigation over actual defects in products” to the party responsible for
the litigation. Id. As such, the rule in Louisiana “is not that attorney fees are
not an element of damage, but only that they are ordinarily not recoverable.”
Id.
       American points to cases that it argues characterize attorney’s fees as a
penalty, see, e.g., Sharbono v. Steve Lang & Son Loggers, 696 So. 2d 1382, 1386
(La. 1997), and Devillier v. Fidelity & Deposit Co. of Maryland, 709 So. 2d 277,
282 (La. Ct. App. 1998), but those cases did not involve redhibition and are
inapposite. For example, one commentator on Louisiana law has correctly
explained that the legislative history of the redhibition article “clearly stated
that its purpose was to include attorney fees in the liability for damages of . . .
a seller.” Ronald J. Scalise, Jr., 6 La. Civ. L. Treatise, Law of Obligations
§ 12.22 (2d ed. 2014); see also Harris v. Bardwell, 373 So. 2d 777, 783-84 (La.
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Ct. App. 1979) (“CC 2545 was designed to impose liability upon the bad faith
seller and the manufacturer of a defective product which causes damage to a
buyer. That liability expressly includes attorney fees.”).
      As noted above, the policy requires American to pay all “sums” that
Carver becomes “legally obligated” to pay as “damages.” There is no dispute
that Carver, the insured, would be legally obligated to pay Hollybrook’s
attorney’s fees under article 2545. We conclude from the foregoing that the
attorney’s fees in this redhibition action are properly included within
Hollybrook’s damages and the district court erred by refusing to characterize
them as included within the policy’s insuring agreement. American argues
that even so, the fees are excluded by the work product exclusion of the policy.
In a redhibition action a work product exclusion may preclude coverage of
attorney’s fees where the consequential damages directly result from the
alleged defective workmanship. See, e.g., Swarts v. Woodlawn, Inc., 610 So. 2d
888, 891 (La. Ct. App. 1992). As noted above, at least some of the damages
awarded by the jury for the price of the Carver equipment were properly
excluded from Hollybrook’s recoverable damages. We leave to the district court
what portion, if any, of the attorney’s fees are attributable to those excluded
damages and may therefore also fall under the exclusion. The district court’s
judgment is therefore reversed in part and the case is remanded for further
proceedings.
      AFFIRMED IN PART, REVERSED IN PART; REMANDED.




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