     Case: 12-10317       Document: 00512098205         Page: 1     Date Filed: 01/02/2013




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

                                                                            FILED
                                                                          January 2, 2013

                                     No. 12-10317                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



CSA NUTRACEUTICALS GP, L.L.C., a Texas limited liability company,
formerly known as CSA Nutraceuticals, L.L.C.; CSA NUTRACEUTICALS,
L.P., a Texas limited liability partnership

                                           Plaintiffs - Appellants Cross-Appellees
v.

CHUBB CUSTOM INSURANCE COMPANY

                                           Defendant - Appellee Cross-Appellant



                   Appeals from the United States District Court
                        for the Northern District of Texas
                                  3:10-CV-2155


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       For the reasons explained by the district court, we find that Chubb Custom
Insurance Company (“Chubb”) had no duty to defend CSA Nutraceuticals GP,
L.L.C., and CSA Nutraceuticals, L.P., (collectively “CSAN”) in the California
state court lawsuit (“the underlying suit”) because the complaints filed in the
underlying suit did not even potentially seek recovery for “bodily injury.” The

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-10317    Document: 00512098205     Page: 2   Date Filed: 01/02/2013



                                 No. 12-10317

complaints in the underlying suit clearly and unequivocally allege that
consumers were induced to purchase ineffective weight loss products by false
and fraudulent misrepresentations. However, the complaints do not include a
single factual allegation suggesting that any consumer has ever been physically
harmed by the weight loss products. As the district court observed: “Failing to
achieve weight reduction means the body basically did not change. It does not
mean that the body was injured.” R. 1730. Although, as CSAN notes, relief
based on bodily injury was available under the statutes relied upon in the
complaints, this is irrelevant – the focus is on the factual allegations of a
complaint. See, e.g., Farmers Tex. Cnty. Mut. Ins. Co. v. Griffin, 955 S.W.2d 81,
82 (Tex. 1997). Furthermore, Zurich American Insurance Co. v. Nokia, Inc., 268
S.W.3d 487 (Tex. 2008), on which CSAN relies heavily, is plainly inapposite. In
that case, the plaintiffs in an underlying suit sought recovery based on
“biological injury” and specifically described the ways in which their bodies had
allegedly been injured. Here, the plaintiffs in the underlying case alleged that
they were financially harmed by purchasing an ineffective product.
      The judgment of the district court is AFFIRMED. Because we affirm the
district court’s judgment on the ground explained above, we need not reach the
issues presented in Chubb’s cross-appeal.




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