                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                   June 5, 2007

                                                        Charles R. Fulbruge III
                                                                Clerk
                          No. 06-60847


ESSEX INSURANCE COMPANY

                    Plaintiff - Appellant

     v.

GREENVILLE CONVALESCENT HOME INC; MOLLIE ROGERS COPELAND, as
Executrix of the Estate of Doris Bariola; EVA ANN BOSCHERT; VERNA
BALL COOK; NANCY PRYOR; BONNIE HATTEN; BETTY SCOTT, individually
and on behalf of the Estate and wrongful death beneficiaries of
Ida Henderson

                    Defendants - Appellees

                    Consol. w/ Case No. 06-60848

ESSEX INSURANCE COMPANY

                    Plaintiff - Appellant

v.

GREENVILLE CONVALESCENT HOME INC; BONNIE HATTEN; GLADIS EVANS

                    Defendants - Appellees

                    Consol. w/ Case No. 06-60851

ESSEX INSURANCE COMPANY

                    Plaintiff - Appellant

v.

GREENVILLE CONVALESCENT HOME INC; MOLLIE ROGERS COPELAND,
Executrix of the Estate of Doris Bariola; EVA ANN BOSCHERT; VERNA
BALL COOK; NANCY PRYOR; BONNIE HATTEN; TRESSIE GREEN,
Individually and on behalf of the Estate and the wrongful death
beneficiaries of Susie Height Green
             Appeals from the United States District Court
         for the Northern District of Mississippi, Greenville
                            No. 4:05-CV-102


Before KING, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM:*

     Plaintiff-appellant Essex Insurance Company appeals the

district court’s entry of final judgment declaring that it has a

duty to defend and indemnify its insured, defendant-appellee

Greenville Convalescent Home, Inc., against certain state-court

claims.    For the following reasons, we AFFIRM in part and VACATE

in part.

                            I. BACKGROUND

     Essex Insurance Company (“Essex”) sought a declaratory

judgment that the Comprehensive General Liability insurance

policy it sold to Greenville Convalescent Home, Inc. (“GCH”)

provides no duty to defend or indemnify GCH against claims

brought by certain long-term care patients (or their

representatives).    The court granted Essex’s motion for summary

judgment in part and denied it in part and determined that Essex

owes a duty to defend GCH against the claims brought by the long-

term care patients.    The court also determined that Essex owes a


     *
        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.


                                  2
duty to indemnify GCH for any damages recovered by the long-term

care patients in relation to their claims for negligence, gross

negligence, and medical malpractice.

     Essex now appeals, asserting that the policy’s “hiring and

supervision” exclusion and “intended and expected injuries”

exclusion bar coverage for, and thus its duty to defend or

indemnify, the underlying claims.

                            II.   DISCUSSION

A.   Standard of Review

     We review a district court’s order granting or denying

summary judgment de novo, applying the same standards as the

district court.    ACS Constr. Co., Inc. of Miss. v. CGU, 332 F.3d

885, 887-88 (5th Cir. 2003).      Summary judgment is proper if the

“pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact.”      FED. R.

CIV. P. 56(c).    “We look to state law for rules governing

contract interpretation.”     F.D.I.C. v. Firemen’s Ins. Co. of

Newark, NJ, 109 F.3d 1084, 1087 (5th Cir. 1997).     Under

Mississippi law, an insurance policy is a contract subject to the

general rules of contract interpretation.      See Clark v. State

Farm Mut. Auto. Ins. Co., 725 So. 2d 779, 781 (Miss. 1998).

Where an insurance policy is clear and unambiguous, the meaning




                                    3
and effect of the policy is a question of law.       Love By Smith v.

McDonough, 758 F. Supp. 397, 399 (S.D. Miss. 1991).

     The duty of an insurance provider to defend its insured

depends upon the language of the policy.       Delta Pride Catfish,

Inc. v. Home Ins. Co., 697 So. 2d 400, 403 (Miss. 1997).      “‘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].’”       Id. (quoting State

Farm Mut. Auto. Ins. Co. v. Taylor, 233 So. 2d 805, 808 (Miss.

1970)).   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.       Ingalls Shipbuilding v. Fed.

Ins. Co., 410 F.3d 214, 225 (5th Cir. 2005); see also Am. Guar. &

Liab. Ins. Co. v. 1906 Co., 273 F.3d 605, 610 (citing cases).

“In 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.”   Am. Guar. & Liab. Ins. Co., 273 F.3d at 610.

B.   Negligent Hiring and Supervision Exclusion

     Essex first argues that despite the policy’s Professional

Liability Endorsement providing coverage for the negligent




                                   4
rendering or failure to render professional services,1 the

policy’s “negligent hiring and supervision” exclusion2 bars

coverage for——and thus relieves Essex of a duty to defend

against——many of the underlying plaintiffs’ factual allegations.

Essex asserts that the district court erred in concluding that

the exclusion did not bar coverage because it relied on the legal

theories advanced in the complaints rather than the factual

allegations in the complaints.

     Because whether Essex has a duty to defend GCH rests on the

factual allegations in the underlying complaint rather than the

determination of those facts, we may resolve Essex’s challenge as

a matter of law.   See generally Green v. Aetna Ins. Co., 349 F.2d

919, 923-924 (5th Cir. 1965) (applying Texas law).   Although the

underlying claims generally sound in the negligent rendering of

     1
         The Professional Liability Endorsement provides that
Essex
           will pay those sums that the insured becomes
           legally obligated to pay as damages because of
           “bodily injury” or “property damage” to which
           this insurance applies and will include
           damages arising out of any negligent act,
           error or omission in rendering or failure to
           render professional services of the type
           described in the Schedule of this policy. We
           will have the right and duty to defend any
           “suit” seeking those damages.
     2
        The pertinent policy provision states that the “insurance
does not apply to any claim, suit, cost or expense arising out
of . . . E. HIRING AND/OR SUPERVISION: Charges or allegations of
negligent hiring, training, placement or supervision.” A later
policy issued to GHC added negligent retention, discrimination,
and harassment as among the claims excluded under the negligent
hiring and supervision exclusion.

                                 5
professional services, Essex points to allegations scattered

throughout the complaints of negligent supervision and hiring and

argues that the exclusion applies to bar its duty to defend GCH

against those allegations and indemnify GCH for any resulting

liability.   In Ingalls Shipbuilding v. Federal Insurance Co.,

however, we held that Mississippi law requires an insurer to

defend claims brought against its insured if the factual

allegations in the underlying complaint state a claim that is

within or arguably within the scope of coverage provided by a

policy.   410 F.3d at 225; accord Am. Guar. & Liab. Ins. Co., 273

F.3d at 611 (“[B]ecause the [Mississippi] state suits allege

multiple grounds for recovery, [the insurer] must provide a

defense if any ground falls within the terms of the policy.”).

Because there are factual allegations of negligence, gross

negligence, and medical malpractice in the underlying complaints

that clearly fall under the policy’s coverage for “damages

arising out of any negligent act, error or omission in rendering

or failure to render professional services,” the district court’s

conclusion that Essex has a duty to defend GCH against those

claims is correct.

     The district court, apparently relying on its conclusion

that Essex had a duty to defend GCH against these claims, also

determined that Essex had a duty to indemnify GCH.      However, the

duty to defend is “broader than the insured’s duty to indemnify

under its policy of insurance.”       Cullop v. Sphere Drake Ins. Co.,

                                  6
129 F. Supp. 2d 981, 982 (S.D. Miss. 2001) (quoting Merchants Co.

v. Am. Motorists Ins. Co., 794 F. Supp. 611, 616 (S.D. Miss.

1992)); see also Green, 349 F.2d at 923-24 (“[I]n determining the

duty of a liability insurance company to defend a lawsuit, the

allegations of the complainant should be considered in the light

of the policy provisions without reference to the truth or

falsity of such allegations . . . or without reference to a legal

determination thereof.”).   Whereas the duty to defend turns on

the factual allegations in a complaint, the duty to indemnify

turns “upon the actual facts that underlie the cause of action

and result in liability.”   See Northfield Ins. Co. v. Loving Home

Care, Inc., 363 F.3d 523, 528-29 (5th Cir. 2004) (applying Texas

law); accord Am. States Ins. Co. v. Synod of the Russian Orthodox

Ch., 335 F.3d 493, 496 (5th Cir. 2003) (“[T]he duty to pay is

determined by the actual basis for the insured’s liability to a

third person.”) (applying Texas law).   “Whether [indemnification]

is available depends on the nature of any such imposed liability.

To determine that means a full trial of the damage claim on the

merits.”   Green, 349 F.2d at 926.   Accordingly, the decision of

the district court on the issue of indemnification is premature.

If GCH is found liable, the factual basis for that liability

finding will determine whether indemnification is required.     See

id. at 926-28; Northfield Ins. Co., 363 F.3d at 528-29; Am.

States Ins. Co., 335 F.3d at 496.    Any associated legal questions

regarding coverage will be informed by the results of the trial,

                                 7
and the resolution of these questions should also await its

conclusion.      We therefore vacate the district court’s conclusion

that Essex has a duty to indemnify GCH.

C.   Expected or Intended Injury Exclusion

     Essex next contends that the policy’s “expected or intended

injury” exclusion3 bars coverage for——and thus Essex’s duty to

defend against——the failures alleged in the underlying

complaints.      The district court concluded that this exclusion did

not apply to the underlying claims because the claims primarily

sounded in negligence and medical malpractice, which do not

involve intentional acts.

     Essex contends that the district court erred in two

respects.    First, Essex differentiates between the meanings of

“intended” and “expected” and argues that the district court

erred because it failed to independently consider whether the

alleged injuries were expected.     Essex essentially advances the

novel argument that because injuries caused by negligent acts are

foreseeable, they fall under the “expected” prong of the expected


     3
         The pertinent policy provision states

            This insurance does not apply to:

            a.     Expected or Intended Injury
                   “Bodily injury” or “property damage”
                   expected or intended from the standpoint
                   of the insured. This exclusion does not
                   apply to “bodily injury” resulting from
                   the use of reasonable force to protect
                   persons or property.

                                    8
and intended injuries exclusion.       By way of example, Essex posits

that it is “clearly foreseeable or easily expected” that the

failure to adequately feed a patient and provide her with needed

therapeutic diets will result in malnutrition.      This argument is

entirely without merit.     Essex relies solely on New Hampshire

Insurance Co. v. Vardaman, 838 F. Supp. 1132 (N.D. Miss. 1993),

in arguing that foreseeable injuries caused by negligent acts are

“expected” ones.   But New Hampshire Insurance Co. is inapposite

because it addresses only expected injuries resulting from

intentional acts, not negligent ones.      We find no support for the

proposition that injuries determined to be foreseeable for

purposes of proximate causation are by definition “expected” ones

within the meaning of the “expected or intended injury”

exclusion.

     Second, Essex argues that the district court erred in its

conclusion that Essex had a duty to defend by relying on the

theories of liability asserted against GCH——instead of the

tortious conduct alleged——to determine that the underlying

complaints asserted no intentional acts.      Essex’s challenge fails

because the underlying claims are supported by numerous factual

allegations of negligent conduct that do not fall within the

“expected or intended injury” exclusion.      Because these

allegations state a claim that is within the scope of coverage

provided by the policy, Essex has a duty to defend GCH.       See

Ingalls, 410 F.3d at 225.    To the extent that the underlying

                                   9
complaints allege expected or intentional injury, a determination

of Essex’s duty to indemnify should await a trial on the merits

for the reasons already considered above.

                        III. CONCLUSION

     For the foregoing reasons, we AFFIRM the district court’s

final judgment declaring that Essex has a duty to defend GCH

against the pending state-court claims but we VACATE the final

judgment declaring that Essex has a duty to indemnify GCH.

     AFFIRMED IN PART AND VACATED IN PART.   Each party shall bear

its own costs.




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