                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              June 15, 2006
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       ____________________                      Clerk

                             No. 05-30995

                         Summary Calendar
                       ____________________


     KEVIN J CANNATELLA

                Plaintiff - Appellee

          v.

     TIMOTHY D GOLDEN, ET AL

                Defendants

     ALLSTATE INSURANCE COMPANY, Sued herein as the
     Uninsured/Under Insured Motorist Carrier of Plaintiff, Kevin
     J Cannatella

               Defendant - Appellant
_________________________________________________________________

          Appeal from the United States District Court
              for the Eastern District of Louisiana
                         No. 2:02-CV-3705
_________________________________________________________________

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Defendant-appellant Allstate Insurance Company appeals the

district court’s denial of its post-judgment Motion for

Determination of Policy Coverage, which argued that plaintiff-

     *
        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that this opinion should not be published and is not precedent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.

                                 -1-
appellee Kevin Cannatella could not recover the $2000 limit for

his medical payments under Allstate’s uninsured/underinsured

motorist policy because the policy excluded coverage if such

payments are “covered under any worker’s compensation law.”      For

the following reasons, we REVERSE the order of the district court

denying Allstate’s motion.

              I.    FACTUAL AND PROCEDURAL BACKGROUND

     On November 1, 2001, while on duty with the Louisiana State

Police running radar on Interstate 10, plaintiff-appellee Kevin

Cannatella (“Cannatella”) suffered neck and back injuries when a

vehicle driven by Timothy Golden (“Golden”) struck Cannatella’s

police cruiser.    At the time of the accident, Cannatella was

working a Local Agency Cops Enforcement (“LACE”) detail, which is

an overtime project available to state police officers through

their employment with the state police department, for the St.

Charles parish.1   On November 1, 2002, Cannatella filed suit in a

     1
        Under Louisiana law, the sheriff of any parish within the
state may contract with the state police department

     for the regular assignment of an agreed number of
     employees of the division of state police to the
     municipality or parish, as the case may be, so as to
     provide police protection therein and to enforce both
     state laws and local ordinances, in consideration of the
     payment by the municipality, parish, or other unit of
     government of a sum agreed upon by them and the
     department.

LA. REV. STAT. ANN. § 40:1388 (2006).    According to Cannatella,
although the local parish actually pays for the service, officers
performing LACE detail receive compensation at the overtime rate in
the check issued to them by the state police department. R. at

                                 -2-
Louisiana state court against Golden, Golden’s liability insurer,

Safeco Insurance Company of America (“Safeco”), and Cannatella’s

own uninsured/underinsured motorist carrier, Allstate Insurance

Company (“Allstate”).   The case was removed to the United States

District Court for the Eastern District of Louisiana on December

16, 2002 as a diversity action with an amount in controversy in

excess of $75,000 under 28 U.S.C. § 1332(a).

     Following a pretrial conference on January 30, 2004, the

parties stipulated that Safeco’s applicable policy limit was

$100,000, that Allstate’s applicable policy limit was $10,000,

and that Cannatella’s cause of action did not exceed the sum of

the available insurance limits, exclusive of interest and costs.

Prior to trial, Safeco tendered the full $100,000 policy limit to

Cannatella in exchange for dismissal of the suit against them.

On September 20, 2004, the district court granted a joint motion

for partial dismissal with prejudice of all claims against Golden

and Safeco, leaving only the remaining causes of action against

Allstate.

     A jury trial took place on May 16, 2005.   The jury rendered

its verdict in favor of Cannatella, awarding damages for the

injuries he sustained in the automobile accident in the amount of




275. Moreover, Cannatella testified that he performed his detail
in the same patrol unit and with the same equipment issued to him
by the state police. Id. at 276.

                                -3-
$117,000.2   The district court entered judgment on the verdict on

May 24, 2005, noting that “[r]ecovery is limited in accordance

with the policy issued to Kevin J. Cannatella by Allstate

Insurance Company.”    R. at 202.    Allstate subsequently tendered

its $10,000 policy limit to Cannatella in satisfaction of the

judgment.

     Following the trial, a dispute arose between the parties as

to whether Cannatella was entitled to a $2000 limit in medical

payments coverage under the Allstate policy as part of the

judgment.    On July 13, 2005, Allstate filed a post-judgment

Motion for Determination of Policy Coverage, arguing that

Cannatella was not entitled to medical payments because the

policy expressly provided that such coverage “does not apply to

any person to the extent that the treatment is covered under any

workers compensation law.”    Def.’s Ex. 1: Allstate Auto Insurance

Policy at 5.    Because Cannatella was working in the course and

scope of his employment for the Louisiana State Police at the

time of the accident, Allstate contended that Cannatella was

     2
        The jury’s damage award was divided into the following
components: (1) $41,500 for physical pain, past and future; (2)
$5000 for mental pain, past and future; (3) $3000 for permanent
disability; (4) $17,500 for loss of earnings, past and future;
and (5) $50,000 for medical expenses, past and future. R. at
193. The jury also found that Allstate had not acted
arbitrarily, capriciously, and without probable cause in failing
to pay Cannatella’s claim after it received satisfactory proof of
loss. Id. at 194. According to the record, although the jury
was aware of Safeco’s settlement before the trial, it was unaware
of the precise amount of that payment to Cannatella while
deliberating and calculating the damage award. Id. at 192.

                                    -4-
covered under Louisiana’s worker’s compensation law.     Cannatella

responded that he had no worker’s compensation insurance while

performing LACE detail for the St. Charles parish on the date of

the accident and therefore made no claim to receive any such

benefits.   Further, Cannatella argued that Allstate had not

provided any evidence or witnesses to show the St. Charles

District Attorney afforded him a worker’s compensation policy.

     On August 12, 2005, the district court issued a brief Order

and Reasons denying Allstate’s motion, which was entered on

August 15, 2005.   The district court found that Cannatella was

entitled to the $2000 in medical payments coverage under

Allstate’s policy because “Allstate presents no proof that

[Cannatella’s] medical payments were covered by worker’s

compensation[.]”   R. at 212-13.    Allstate timely filed its notice

of appeal from the order denying its motion on September 22,

2005.3

     3
        Cannatella has not submitted a brief on this appeal
despite at least two notices from the clerk’s office to do so.
Nonetheless, this court must examine the basis of its
jurisdiction on its own motion if necessary. See Mosley v.
Cozby, 813 F.2d 659, 660 (5th Cir. 1987) (dismissing appeal for
lack of effective notice of appeal). “‘A timely notice of appeal
is not jurisdictional; however, in this circuit it is a
prerequisite to our exercise of jurisdiction.’” United States v.
Carr, 979 F.2d 51, 55 (5th Cir. 1992) (quoting United States v.
Winn, 948 F.2d 145, 153 (5th Cir. 1991)). A notice of appeal
must be filed with the district court clerk within thirty days
after the judgment or order appealed from is entered. FED. R.
APP. P. 4(a)(1)(A); see also 28 U.S.C. § 2107(a). Allstate did
not file its notice of appeal until September 22, 2005, more than
a week after the original filing deadline of September 14, 2005.
However, the final time for filing a timely notice of appeal was

                                   -5-
                            II.   DISCUSSION

     Although not specifically labeled as such, because

Allstate’s motion was filed more than ten days after the entry of

judgment on the jury’s verdict, we shall approach this case as an

appeal from a motion for relief from judgment or order under FED.

R. CIV. P. 60(b).    See Shepherd v. Int’l Paper Co., 372 F.3d 326,

327 n.1 (5th Cir. 2004) (“If the motion is filed within ten days

of the judgment or order of which the party complains, it is

considered a Rule 59(e) motion; otherwise, it is treated as a

Rule 60(b) motion.”).    We review the district court’s denial of a

Rule 60(b) motion for abuse of discretion.       Warfield v. Byron,

436 F.3d 551, 555 (5th Cir. 2006).       “It is not enough that the

granting of relief might have been permissible, or even warranted

denial must have been so unwarranted as to constitute an abuse of

discretion.”   Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402

(5th Cir. 1981).

     We first turn to the language of the policy itself to

determine whether the district court abused its discretion in

concluding that Cannatella was entitled to the $2000 in medical

payments coverage.    The parties do not dispute that Louisiana law

governs this action.    “Under Louisiana law, a court should

interpret an insurance policy under ordinary principles for the


extended by court order to November 25, 2005, because the
district clerk’s office was closed temporarily due to the effects
of Hurricane Katrina. Accordingly, Allstate’s notice of appeal
is deemed timely for the purposes of this appeal.

                                   -6-
interpretation of a contract.    The intentions of the parties, as

reflected by the words of the policy, should determine the extent

of coverage.”    Trinity Indus., Inc. v. Ins. Co. of N. Am., 916

F.2d 267, 269 (5th Cir. 1990).      Part II of Allstate’s Auto

Insurance Policy provides coverage for “all reasonable expenses

incurred for medical treatment, services, or products actually

rendered.”    Def.’s Ex. 1: Allstate Auto Insurance Policy at 5.

However, the policy also includes an exclusionary provision,

expressly stating that “[t]his coverage does not apply to any

person to the extent that the treatment is covered under any

workers compensation law.”    Id.

     The sole point of contention on this appeal is whether

Canatella was covered under any worker’s compensation policy

during his LACE detail for the St. Charles parish and, thus,

excluded from the $2000 limit for medical payments under the

plain language of the policy.4      Cannatella insisted below that

there was no evidence adduced during the trial to substantiate

Allstate’s claim that Cannatella was in fact covered under

Louisiana’s worker’s compensation law on the date of the

accident.    Allstate contends, however, that Cannatella’s

undisputed employment as a state trooper while performing his

     4
        The record demonstrates that Cannatella actually received
medical treatment following the accident on November 1, 2001, in
excess of $2000. Moreover, Allstate does not dispute
Cannatella’s testimony that he never filed a worker’s
compensation claim to seek reimbursement of the medical payments.
R. at 259.

                                 -7-
LACE detail entitled him to worker’s compensation coverage under

the governing statutes in Louisiana and therefore falls within

the ambit of Allstate’s exclusionary provision.5   In its Order

     5
        During cross-examination, Cannatella conceded that he was
working within the course and scope of his employment as a state
trooper on the date of the accident, even though he was unsure
about the effect of his LACE detail assignment on any worker’s
compensation benefits.

     Q.   Well, at the time of the November 1, ‘01, accident
          on the Bonne Carre spillway, you were within the
          course and scope of your work as a state trooper;
          isn’t that right?
     A.   Yes, sir.
     Q.   And among your benefits through your employment
          with the state police, you are able to make a
          Workers’ Compensation claim because you were in the
          course and scope of your employment; is that right?
     A.   Yes, sir.
     Q.   And your Workers’ Compensation claim would extend
          to payment of any medical bills that you might
          incur which were caused by you being involved in
          this automobile accident, right?
     A.   I’m not quite sure what Workmen’s Comp would cover.
                              . . . .
     A.   I’m not fully up to date on what the Workmen’s Comp
          law is, but also due to the fact that although I
          was representing the state police, I was not
          actually working because I was being paid by -- at
          the time, which was the District Attorney’s Office,
          so I’m not sure what, if any, that would have fell
          [sic] under.

R. at 298-99. The testimony of Lieutenant William Dorris at
trial further clarified this arrangement during cross-examination
by Cannatella’s attorney.

     Q.   Now, Trooper, when you are running LACE, while
          you’re in a state police uniform and a state police
          vehicle, you are actually working for the district
          attorney of whatever parish has requested your
          services, correct? They are the ones who paid you
          through the state police.
     A.   You’re paid through them. You’re actually working
          for   the   state   police,    but   all   monetary

                               -8-
and Reasons, the district court treated the issue as a matter of

proof in concluding that Cannatella was entitled to the $2000

limit under Allstate’s policy.    Upon review of the applicable

Louisiana statutory and case law, however, we conclude that this

dispute is more properly characterized as an issue of law.

     Under Louisiana law, the state’s worker’s compensation

scheme generally affords coverage to police officers like

Cannatella.   See LA. REV. STAT. ANN. § 23:1034(A) (providing

coverage under Louisiana’s worker’s compensation law “to every

person in the service of the state or a political subdivision

thereof[,]” including “members of the police department, or

municipal employees performing police services for any

municipality who are not elected officials”); see also LA. REV.

STAT. ANN. § 40:1374 (“Every employee of the division of state

police, except the head thereof, shall be considered an employee

of the state within the meaning of the worker’s compensation law

of this state and entitled to the benefits of all the provisions

of that law applicable to state employees.”).      Further, the LACE

detail assignment in this case appears to be an example of how

local municipalities and parishes may contract with the state

police at their own expense for local enforcement of both state

laws and local ordinances.   See LA. REV. STAT. ANN. § 40:1388.


          reimbursements is      [sic]   through   the   District
          Attorney’s Office.

Id. at 470-71.

                                 -9-
Cannatella failed to identify any authority, statutory or

otherwise, that demonstrated how his assignment to LACE detail in

the St. Charles parish on the date of the accident resulted in

any forfeiture of his statutory entitlement to worker’s

compensation coverage.   Therefore, in light of the applicable

statutory authority, the plain language of Allstate’s policy, and

the factual circumstances of this case, we conclude that

Cannatella was covered under the state’s worker’s compensation

scheme as a matter of law and, consequently, not entitled to the

$2000 medical payment limit.6

     Moreover, we note that this case is directly controlled by

the decision of the Supreme Court of Louisiana in Bentley v.

Allstate Insurance Co., 715 So. 2d 1195 (La. 1998).   The question

presented in Bentley concerned the application of precisely the

same exclusionary provision in an Allstate auto insurance policy

to a similar factual scenario in which the insured was injured


     6
        Indeed, even if his worker’s compensation benefits were
ultimately paid by the St. Charles parish pursuant to the LACE
detail assignment, Cannatella’s performance of law enforcement
duties would nonetheless entitle him to such coverage under
Louisiana law. See LA. REV. STAT. ANN. § 23:1034.1 (“Any law
enforcement officer employed by any municipality, who, while on
or off duty, and outside his jurisdiction, but within the State
of Louisiana, performs any law enforcement action and is injured
shall be entitled to the provisions for compensation as provided
herein and shall be paid such workers’ compensation benefits by
the municipality by which he is employed.”). Moreover,
Allstate’s policy plainly excludes medical payments to the extent
“treatment is covered under any workers compensation law[,]”
regardless of the precise source of those benefits. Def.’s Ex.
1: Allstate Auto Insurance Policy at 5 (emphasis added).

                                -10-
while in the course and scope of her employment with the state of

Louisiana.   Like the district court’s reasoning in the case at

bar, the court of appeal determined that Allstate had “failed to

discharge its burden of proving the exclusion applies” and

accordingly affirmed the trial court’s denial of Allstate’s

motion for summary judgment.   Bentley v. Allstate Ins. Co., 701

So. 2d 257, 260 (La. Ct. App. 1997).

     In dissent, Judge Plotkin reasoned that the case was

controlled by Pinnell v. Patterson Services, Inc., 491 So. 2d 637

(La. 1986), which dictated that the trial court judgment be

reversed and summary judgment granted in favor of Allstate.

     Unquestionably, Bentley’s injuries were covered under
     workers’ compensation.      Moreover, contrary to the
     majority’s conclusion, the Allstate policy exclusion at
     question unambiguously excludes medical coverage “to any
     person to the extent that treatment is covered under any
     workers compensation law.”
                              . . . .
     The Pinell case is correctly based on pure contract
     interpretation, which requires that this court interpret
     insurance policies, like other contracts, according to
     the clear, unambiguous language of the policy.       The
     majority’s interpretation nullifies important contract
     language without reason.

Bentley, 701 So.2d at 260 (Plotkin, J., dissenting).   The Supreme

Court of Louisiana subsequently reversed the judgment of the

court of appeal “for the reasons assigned by Judge Steven R.

Plotkin in his dissenting opinion” and granted summary judgment

to Allstate.   Bentley, 715 So. 2d at 1195-96; see also Pinell v.

Patterson Servs., Inc., 491 So. 2d at 640 (“The exclusionary

clause does not preclude benefits under the policy only in the

                               -11-
event workmen’s compensation was actually paid to the insured and

retained by him.   The clause operates as an exclusion when one

‘had a right to compensation,’ as opposed to when one received

compensation.”).   Therefore, as a federal court deciding the case

pursuant to its diversity jurisdiction under 28 U.S.C. § 1332(a),

we conclude that the district court abused its discretion in

failing to apply directly controlling precedent from the Supreme

Court of Louisiana to this case.

                         III.   CONCLUSION

     For the foregoing reasons, we REVERSE the order of the

district court holding Cannatella entitled to the $2000 in

medical payments coverage under Allstate’s auto insurance policy.

Costs shall be borne by Cannatella.




                                -12-
