American States Insurance v. Bailey , 133 F.3d 363 ( 1998 )

REVISED, FEBRUARY 5, 1998
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-10779
_______________________
AMERICAN STATES INSURANCE COMPANY,
Plaintiff-Appellee,
Cross Appellant,
and
NORTH RIVER INSURANCE CO; UNITED STATES FIRE
INSURANCE COMPANY; WESTERN WORLD INSURANCE COMPANY, INC.
Intervenor Plaintiffs-Appellees
Cross Appellants,
versus
H. BARRY BAILEY, ET AL.,
Defendants,
H. BARRY BAILEY,
Defendant-Appellee,
CASSIE E. ALLBAUGH; CANDIS WHITE; ALLISON LOVETT;
GINGER PIERSON; JAYNE GARDNER; RUBY WOOLRIDGE;
PATCHEZ FOX WELDON HAYNES, Reverend;
WILLIAM LONGSWORTH, Reverend;
THE FIRST UNITED METHODIST CHURCH OF FORT WORTH, INC.;
KAY JOHNSON; DORAYNE LEVIN; GAIL COOKE; J. CHARLES SHELLEY,
Intervenor Defendants-Appellants
Cross Appellees.
_________________________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________________________________________________
January 30, 1998
BEFORE KING and JONES, Circuit Judges and KENDALL, District Judge.*
EDITH H. JONES, Circuit Judge:
This declaratory judgment suit was filed by three
insurance carriers seeking a declaration that they have no duty to
either defend or indemnify their insureds for claims that stem from
allegations of sexual misconduct against the Reverend H. Barry
Bailey. The district court granted summary judgment for the
carriers. This appeal ensued. We find that the claims alleged
against the carriers’ insureds are excluded from coverage by the
policies at issue. Therefore, the carriers have no duty to defend
or indemnify their insureds, and we affirm.
I.
In February 1995, seven women (the “Allbaugh plaintiffs”)
filed suit in Texas district court against the Reverend H. Barry
Bailey alleging a variety of tort claims which all stemmed from
alleged sexual improprieties by Bailey. Bailey was the pastor-in-
charge of the First United Methodist Church of Fort Worth (“FUMC”).
In June 1995, Gail Cooke filed a separate suit in Texas
district court against Bailey, FUMC, and four associate ministers
of FUMC.1 Her claims against Bailey were essentially the same as
those of the Allbaugh plaintiffs. Her claims against FUMC and the
four associate ministers were based on vicarious liability and the
*
District Judge for the Northern District of Texas, sitting
by designation.
1
The four associate ministers are the Reverends William
Longsworth, Weldon Haynes, Kay Johnson, and J. Charles Shelley.
2
allegation that FUMC and the associate ministers knew or should
have known of Bailey’s conduct and should have attempted to stop or
warn Cooke of his behavior. In August 1995, Dorayne Levin
intervened in Cooke’s state court suit.
In May 1995, American States Insurance Co. (“American
States”) filed this declaratory judgment action in federal court
under diversity jurisdiction. In July 1995, North River Insurance
Co. and United States Fire Insurance Co. (collectively “Crum &
Forster”) intervened in American States’s declaratory judgment
action. Western World Insurance Co. (“Western World”) also
intervened in July 1995. The Allbaugh plaintiffs, Cooke, Levin,
FUMC, and the four associate ministers were all eventually joined
as defendants in this federal suit. In May 1996, the district
court granted the insurance carriers’ motions for summary judgment,
finding that they had a duty neither to defend nor to indemnify
their insureds (Bailey, FUMC, and the four associate ministers)
against the claims of the Allbaugh plaintiffs, Cooke, and Levin.
The Allbaugh plaintiffs, Cooke, Levin, FUMC, and the four
associate ministers appealed the district court’s grant of summary
judgment. Before this court heard the case at oral argument, the
Allbaugh plaintiffs, Cooke, and Levin settled with Bailey.
Therefore, the only issues remaining before this court are Crum &
Forster’s and Western World’s duty to defend or indemnify FUMC and
the four associate ministers against the claims of Cooke and
3
Levin.2 Also before the court is the issue of whether the district
court erred in finding that the Allbaugh plaintiffs, Cooke, and
Levin are liable for all three insurance carriers’ court costs.
II.
Cooke’s and Levin’s specific claims against FUMC and the
four associate ministers are as follows:
1. intentional infliction of emotional and mental
distress
2. breach of fiduciary duty, for which fiduciary duty
is defined alternatively as the duty to discipline
a pastor, the duty of trust and confidence between
a parishioner and a pastor, or the duty to report
Bailey’s conduct to church authorities
3. negligent credentialing of Bailey
4. negligent hiring of Bailey
5. negligent assignment of pastoral charges to Bailey
6. negligent supervision of Bailey
7. negligent failure to warn others of known or
knowable harassing and abusive behavior by Bailey
8. negligent dereliction of duties as ordained
ministers and agents, servants, and employees of
the United Methodist Church
9. negligent counseling
Although Cooke and Levin have settled with Bailey, their claims
against him remain relevant to determining coverage as to FUMC and
the four associate ministers. Cooke’s and Levin’s specific claims
against Bailey are as follows:
1. battery
2. assault
3. false imprisonment
4. invasion of privacy
2
American States insured only Bailey and, therefore, is no
longer a party to this litigation.
The settlements between Bailey and Cooke and Levin included an
agreement not to pursue any actions against FUMC or the four
associate ministers for vicarious liability for Bailey’s conduct.
Cooke’s and Levin’s remaining claims against FUMC and the four
associate minister are listed in the next section of this opinion.
4
5. intentional infliction of emotional and mental
distress
6. breach of fiduciary duty
7. negligence
8. negligent counseling
9. failure to warn plaintiffs of his sexual deviancy
10. defamation (Cooke only)
The alleged facts underlying Cooke’s and Levin’s claims
against Bailey are also relevant to determining coverage. In
general, Cooke and Levin contend that “[b]etween 1976 and 1994 the
Reverend Barry Bailey continued to abuse his position as Pastor-in-
Charge of the First United Methodist Church of Fort Worth, Inc., to
force or induce women to engage with him in lewd, lascivious,
obscene, and immoral sexual conduct, sexual abuse, and sexual
harassment.” Cooke describes the specific facts underlying her
claims as follows:
3.15. During the 1976 to 1994 time-frame, Reverend
Bailey initiated conversations with her, in person and by
telephone, which were inappropriate, lewd, and obscene.
During these conversations, Reverend Bailey persisted in
inappropriate sexual discussions involving sexual
affairs, graphic sexual acts . . . , graphic sexual
language, and personally insulting sexual language.
3.16. Reverend Bailey also exposed [himself] to Ms.
Cooke on several occasions at the Church and even at the
parsonage with his own wife in the next room.
3.17. Reverend Bailey also accosted Ms. Cooke at
the Church on several occasions. In those encounters,
Reverend Bailey inappropriately grabbed private areas of
Ms. Cooke’s body and on several occasions physically
blocked her exit from offices or rooms on the Church
property, forcing himself and his comments upon her.
. . . .
3.19. Gail Cooke recently became aware of
information which leads her to believe, and she does
allege, that Reverend Bailey has made slanderous and
defamatory statements about her to third persons, such
statements being actionable under the legal theories of
5
slander and defamation, for which she seeks recovery of
damages herein.
Plaintiff’s Third Amended Petition at 16-18. Levin describes the
specific facts underlying her claims as follows:
3.20. At approximately 11 a.m. on September 1,
1993, Intervenor [Levin] presented herself to Reverend
Barry Bailey for her meeting. . . . During this meeting
with Reverend Bailey, Intervenor described that she was
a victim of childhood sexual abuse and had suffered
emotional and psychological injuries as a result of that
abuse. Intervenor also disclosed to Reverend Bailey her
sexual abuse by a therapist and her experiences which
followed from that abuse. Reverend Bailey showed great
interest in the specifics of how the therapist had abused
Intervenor. He also inquired and showed great interest
in how Intervenor’s husband had been abusive to her
during her marriage.
. . . .
3.22. Additionally, Reverend Bailey advised
Intervenor to “start saying yes to people who ask you
out, and if a man wants to have sex with you, it’s
probably normal. If it does not work out, say yes to the
next man who asks you out.” Reverend Bailey also advised
Intervenor to stop working on her sexual abuse counseling
project and “get a job” because “you can’t do anything to
stop this.” He also told Intervenor that he wanted to
meet with her again and to schedule another appointment.
First Amended Plea in Intervention of Dorayne Levin at 16-17.
III.
As an initial matter, Cooke and Levin argue that the
district court did not have jurisdiction to rule on the duty to
indemnify because the underlying state court suit had not reached
final judgment and, therefore, there was no justiciable
controversy. In the alternative, Cooke, FUMC, and the four
associate ministers argue that even if the district court had
6
jurisdiction, it should have abstained from exercising its
jurisdiction.3
We review a district court’s determination that there
existed a justiciable controversy de novo. See Ynclan v.
Department of Air Force, 943 F.2d 1388, 1390 (5th Cir. 1991). The
decision of a district court to exercise its declaratory judgment
jurisdiction is reviewed for abuse of discretion. See Wilton v.
Seven Falls Co., 115 S. Ct. 2137, 2144 (1995).
A.
A federal court may not issue a declaratory judgment
unless there exists an “actual controversy.” See Middle South
Energy, Inc. v. City of New Orleans, 800 F.2d 488, 490 (5th Cir.
1986) (citing Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S.
270, 273 (1941)). An actual controversy may exist when an
insurance carrier seeks a declaratory judgment that it has a duty
neither to defend nor indemnify its insured in a state court action
that has not yet proceeded to judgment. See Western Heritage Ins.
Co. v. River Entertainment, 998 F.2d 311, 315 (5th Cir. 1993). The
district court thus had jurisdiction to rule on the duty to
indemnify despite the fact that the underlying state court suit had
not yet reached final judgment.
B.
A district court has broad, but not unfettered,
discretion to retain or dismiss a declaratory judgment suit. See
3
Cooke, Levin, FUMC, and the four associate ministers do not
contest the jurisdiction of the district court to decide the issue
of the duty to defend.
7
Wilton, 115 S. Ct. at 2144; Travelers Ins. Co. v. Louisiana Farm
Bureau Fed’n, Inc., 996 F.2d 774, 778 (5th Cir. 1993). Under Texas
law, the duty to defend is broader than the duty to indemnify. See
Gulf Chem. & Metallurgical Corp. v. Associated Metals & Minerals
Corp., 1 F.3d 365, 369 (5th Cir. 1993). Logic and common sense
dictate that if there is no duty to defend, then there must be no
duty to indemnify. See Western Heritage Ins. Co., 998 F.2d at 315.
Given that the district court was going to decide the issue of the
duty to defend (the propriety of which Cooke, FUMC, and the four
associate ministers do not question), it was not an abuse of
discretion for the district court also to decide the issue of the
duty to indemnify.4
IV.
This court reviews a grant of summary judgment de novo.
See Canutillo Indep. Sch. Dist. v. National Union Fire Ins. Co., 99
F.3d 695, 700 (5th Cir. 1996). A district court’s interpretation
of an insurance contract is a question of law which this court also
4
We have cautioned district courts to provide a written or
oral explanation for their decisions to grant or deny a motion to
dismiss a declaratory judgment action. See Travelers Ins. Co., 996
F.2d at 779 n.14. Nonetheless, in cases where the district court
did not offer an explanation, we have proceeded to engage in an
independent review of the relevant factors under Travelers
Insurance Co. to determine whether the district court abused its
discretion in granting or denying the motion to dismiss. See id.
at 779. As in Travelers Insurance Co., the district court in this
case offered no explanation for its decision to deny appellants’
motion to dismiss. See id. at 778-79. As in Travelers Insurance
Co., we have conducted an independent review of the six factors
relevant to the abstention doctrine in a declaratory judgment
action. See id. at 779. We conclude that the district court did
not abuse its discretion in deciding to adjudicate this case on the
merits.
8
reviews de novo. See id. An insurer bears the burden of proving
that exclusions in the policy in question bar coverage for the
plaintiff’s claims. See id. at 701.
In this diversity case, Texas rules of contract
interpretation control. See id. at 700. Under Texas law, the
interpretation of insurance contracts is governed by the same rules
that apply to contracts in general. See id. (citing Forbau v.
Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994)).
Exceptions and limitations in an insurance policy are
strictly construed against the insurer. See id. at 701 (citing
Kelly Assocs., Ltd. v. Aetna Cas. & Sur. Co., 681 S.W.2d 593, 596
(Tex. 1984)). Therefore, this court “must adopt the construction
of an exclusionary clause urged by the insured as long as that
construction is not itself unreasonable, even if the construction
urged by the insurer appears to be more reasonable or a more
accurate reflection of the parties’ intent.” Id. (quoting Barnett
v. Aetna Life Ins. Co., 723 S.W.2d 663, 666 (Tex. 1987)). These
rules favoring the insured, however, are applicable only when there
is an ambiguity in the policy; if the exclusions in question are
susceptible to only one reasonable interpretation, then these rules
do not apply. See id. (citing National Union Fire Ins. Co. v.
Hudson Energy Co., 811 S.W.2d 552, 555 (Tex. 1991)).
In determining an insurer’s duty to defend, Texas courts
utilize the “eight corners rule.” See National Union Fire Ins. Co.
v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.
1997). Under this rule, an insurer’s duty to defend is determined
9
by the language of the insurance policy and a liberal
interpretation of the allegations in the pleadings. See id. “In
reviewing the underlying pleadings, the court must focus on the
factual allegations that show the origin of the damages rather than
on the legal theories alleged.” Id. (citing Adamo v. State Farm
Lloyds Co., 853 S.W.2d 673, 676 (Tex. App.—Houston [14th Dist.]
1993, writ denied) (“It is not the cause of action alleged that
determines coverage but the facts giving rise to the alleged
actionable conduct.”)).
A. Western World Policies
Western World issued three commercial general liability
policies to FUMC. The policy numbers and coverage periods are as
follows: (1) GLA 328492, 11/11/91 to 11/11/92; (2) GLA 358038,
8/6/92 to 8/6/93; and (3) NGL 05750, 8/6/93 to 8/6/94. FUMC is the
only relevant named insured on each policy.5 The four associate
ministers are insureds under each policy as either executive
officers or employees of FUMC.6
Each policy contains the following exclusion:
SEXUAL ACTION EXCLUSION
5
All of Western World’s policies list two named insureds:
FUMC and First United Methodist Church of Fort Worth Foundation,
Inc. The latter is not a party to this litigation.
6
Cooke and Levin argue extensively in their briefs that the
four associate ministers are not insureds under Western World’s
commercial general liability policies, but rather “professionals
covered by the policy.” By making this distinction, Cooke and
Levin attempt to establish that the policies’ “sexual action”
exclusion is inapplicable to the four associate ministers because
the exclusion applies only to “insureds.” Cooke’s and Levin’s
argument is meritless based upon the simple and unambiguous
language of the policies.
10
It is agreed that no coverage exists for claims or
suits brought against any insured for damages arising
from sexual action. Sexual action includes, but is not
limited to, any behavior with sexual connotation or
purpose—whether performed for sexual gratification,
discrimination, intimidation, coercion or other reason.
It is further agreed that this exclusion applies
even if an alleged cause of the damages was the insured’s
negligent hiring, placement, training, supervision, act,
error or omission.
Cooke, Levin, FUMC, and the four associate ministers argue that
this exclusion does not preclude coverage for Cooke’s and Levin’s
claims against FUMC and the four associate ministers. They are
incorrect.
The plain meaning of “sexual action” as described in the
exclusion includes all of Bailey’s misconduct. It is impossible to
characterize Bailey’s behavior as other than having a “sexual
connotation or purpose” and being “performed for sexual
gratification.” The exclusion establishes very broad parameters
for acts that fall within its compass by using the words, “[s]exual
action includes, but is not limited to,” and Bailey’s actions
toward Cooke and Levin unambiguously fall within those parameters.
This court has held that the words “arising out of,”7
when used within an insurance policy, are “broad, general, and
comprehensive terms effecting broad coverage.” Red Ball Motor
Freight, Inc. v. Employers Mut. Liab. Ins. Co., 189 F.2d 374, 378
(5th Cir. 1951). The words are “understood to mean ‘originating
from,’ ‘having its origin in,’ ‘growing out of’ or ‘flowing from.’”
7
For the purposes of this discussion, the term “arising out
of” is indistinguishable from the term “arising from,” which is the
term used in Western World’s “sexual action” exclusion.
11
Id.; see also Continental Cas. Co. v. City of Richmond, 763 F.2d
1076, 1080-81 (9th Cir. 1985) (applying Red Ball’s interpretation
of the term “arising out of,” and concluding that a claim need only
bear an “incidental relationship” to the excluded injury for the
policy’s exclusion to apply). Without Bailey’s sexual misconduct,
Cooke and Levin would have no claims against FUMC and the four
associate ministers. Every alleged harm caused to Cooke and Levin
by FUMC and the four associate ministers stems from and is
integrally related to Bailey’s acts. Therefore, we agree with the
district court that all of the factual allegations that underlie
Cooke’s and Levin’s legal claims against FUMC and the four
associate ministers arise out of Bailey’s sexual actions, thereby
precluding coverage under Western World’s policies.
In Old Republic Insurance Co. v. Comprehensive Health
Care Associates, Inc., 2 F.3d 105, 108-09 (5th Cir. 1993), this
court held that claims for negligence per se, ratification,
negligent hiring, and negligent supervision against an employer for
the sexual misconduct of its employee were barred from coverage by
the following exclusion:
In consideration of the premium charge, it is agreed
that such coverage as is provided by this policy shall
not apply to any claim, demand and causes of action
arising out of, or resulting from . . . sexual abuse . .
. whether caused by, or at the instigation of, or at the
direction of, or omission by, the Insured, his employees,
patrons or any causes whatsoever.
Id. at 108. This “sexual abuse” exclusion is sufficiently similar
to the “sexual action” exclusion in Western World’s policies to
draw a close parallel between Old Republic and the case before us.
12
Although Cooke and Levin allege a litany of causes of action
against FUMC and the four associate ministers that were not alleged
in Old Republic, the fundamental reasoning of Old Republic that a
broadly worded “sexual abuse” exclusion is not to be narrowly
construed remains applicable. Western World has no duty to defend
or to indemnify FUMC or the four associate ministers against any of
Cooke’s or Levin’s claims.
In addition, we note that many of Cooke’s and Levin’s
claims are expressly excluded from coverage because the alleged
causes of damages included FUMC’s and the four associate ministers’
“negligent hiring, placement, training, supervision, act, error or
omission.”
B. Crum & Forster Policies
Crum & Forster issued two types of policies to FUMC, a
general liability policy and a workers’ compensation and employers’
liability policy.8 In total, Crum & Forster issued five policies
to FUMC. Each policy issued is briefly outlined below:
1. General Liability Policy
A. Policy # 503-11-6391
(1) Coverage period: 8/6/93 to 8/6/94
(2) Issued by: U.S. Fire Insurance Co.
2. Workers’ Compensation and Employers’ Liability Policies
A. Policy # 408-52-45-28
(1) Coverage period: 8/6/90 to 8/6/91
(2) Issued by: U.S. Fire Insurance Co.
B. Policy # 408-52-46-57
(1) Coverage period: 8/6/91 to 8/6/92
(2) Issued by: U.S. Fire Insurance Co.
C. Policy # 405-52-47-41
(1) Coverage period: 8/6/92 to 8/6/93
8
All of Crum & Forster’s policies list two named insureds:
FUMC and First United Methodist Church of Fort Worth Foundation,
Inc. The latter is not a party to this litigation.
13
(2) Issued by: North River Insurance Co.
D. Policy # 408-52-48-09
(1) Coverage period: 8/6/93 to 8/6/94
(2) Issued by: North River Insurance Co.
The general liability policy contained two types of coverage.
Coverage A provided coverage for damages resulting from bodily
injury, and Coverage B provided coverage for damages resulting from
personal injury.
1. General Liability Policy
(a). Coverage A
Coverage A insures against damages resulting from bodily
injury caused by an “occurrence.”9 “Occurrence” is defined as “an
accident, including continuous or repeated exposure to
substantially the same general harmful conditions.” Because none
of Bailey’s actions were accidental, it follows that no coverage
exists for any of Cooke’s and Levin’s claims against FUMC and the
four associate ministers.
Under Texas law, where a third-party’s liability is
related to and interdependent on other tortious activities, the
ultimate issue is whether the underlying tortious activities are
encompassed within the definition of “occurrence.” See Cornhill
Ins. PLC v. Valsamis, Inc., 106 F.3d 80, 87 (5th Cir. 1997); New
York Life Ins. Co. v. Travelers Ins. Co., 92 F.3d 336, 339 (5th
Cir. 1996). An insurer has no duty to defend or to indemnify its
insured against claims that could not be brought absent the
9
The policy defines “bodily injury” as “bodily injury,
sickness or disease sustained by a person, including death
resulting from any of these at any time.”
14
underlying and excluded tortious activities. See Cornhill Ins.
PLC, 106 F.3d at 87; New York Life Ins. Co., 92 F.3d at 339. For
instance, in New York Life Ins. Co. v. Travelers Ins. Co., New York
Life was sued for the negligent hiring, training, and supervision
of one its employees, who allegedly defrauded a New York Life
client. See New York Life Ins. Co., 92 F.3d at 337, 340. The
court found that the employee’s underlying fraudulent acts were not
an “occurrence” under the policy.10 See id. at 339. Consequently,
the court held that the claims against New York Life were excluded
from coverage because “[a] claim against a principal is ‘related’
to and ‘interdependent’ on a claim against an agent if the claim
against the principal would not exist absent the claim against the
agent.” Id. at 340.
All of Cooke’s and Levin’s claims against FUMC and the
four associate ministers either require proof of misconduct by
Bailey or are related to and interdependent on Bailey’s sexual
misconduct. The basic factual allegation underlying every claim in
this lawsuit is that Bailey engaged in inappropriate sexual
behavior with Cooke and Levin. While the alleged failure of FUMC
and the four associate ministers to adequately respond to Bailey’s
conduct may have exacerbated Cooke’s and Levin’s injuries, there
would have been no injuries at all absent Bailey’s improper acts.
Therefore, if Bailey’s conduct is excluded from coverage, then so
10
The policy defined “occurrence” as “an accident, including
continuous and repeated exposure to conditions, which results in
bodily injury or property damage neither expected or intended from
the standpoint of the insured . . . .”
15
are all of Cooke’s and Levin’s claims against FUMC and the four
associate ministers.
The Texas Supreme Court has held that a person’s acts are
not accidental when he commits an intentional act that results in
injuries that ordinarily follow from or could be reasonably
anticipated from the intentional act. See Trinity Universal Ins.
Co. v. Cowan, 945 S.W.2d 819, 827-28 (Tex. 1997). Although a
person may not intend the harm caused by his acts, if the harm is
a natural or probable result of those acts, they are not caused by
an “accident.”11 See id. It is impossible not to conclude that
Bailey’s acts were intentional. For example, one cannot
“accidentally” expose oneself to a parishioner during a counseling
session. Appellants produce no evidence that Bailey did not intend
to engage in sexually inappropriate behavior with them. Their
artful pleading suggesting that Bailey’s acts were negligent or
reckless cannot overcome the basic facts underlying their claims.
In short, Crum & Forster has no duty to defend or to
indemnify FUMC or the four associate ministers under Coverage A.
All of Cooke’s and Levin’s claims against FUMC and the four
associate ministers are related to and interdependent on Bailey’s
sexual actions, which were not “occurrences” as defined by the
policy.
(b). Coverage B
11
We note that an intentional act and the intent to cause
injury are two distinct concepts. See Trinity Ins. Co., 945 S.W.2d
at 828 n.6. Our analysis, therefore, does not touch upon an
insurance policy’s language dealing with intentional injury.
16
Coverage B insures against damages resulting from
personal injury.12 Because neither Cooke nor Levin allege any
facts or claims against FUMC and the four associate ministers
based upon “personal injury” as defined by the policy, we find no
duty to defend or to indemnify on the part of Crum & Forster
under Coverage B.
2. Workers’ Compensation and Employers’ Liability Policies
Cooke, Levin, FUMC, and the four associate minsters
fail to argue in their briefs that the district court incorrectly
denied coverage under Crum & Forster’s Workers’ Compensation and
Employers’ Liability policies. Although each party explains in
its brief the contents of the policies and why the district court
held that there was no duty to defend or to indemnify under the
policies, they do not proceed to argue why or on what grounds the
district court’s finding was legally or factually incorrect.
Failure to provide any legal or factual analysis of an
issue results in waiver. See United States v. Green, 964 F.2d
365, 371 (5th Cir. 1992); see also Port Arthur Towing Co. v. John
W. Towing, Inc., 42 F.3d 312, 319 (5th Cir. 1995) (holding that a
question posed for appellate review but not argued in the opening
brief is waived). Cooke, Levin, FUMC, and the four associate
ministers waived the issue of the duties to defend and indemnify
12
The policy defines “personal injury” as “injury, other than
‘bodily injury,’ arising out of one or more of the following
offenses: (a) False arrest, detention or imprisonment; . . . (d)
Oral or written publication of material that slanders or libels a
person or organization or disparages a person’s or organization’s
goods, products or services; or (e) Oral or written publication of
material that violates a person’s right of privacy.”
17
under Crum & Forster’s Workers’ Compensation and Employers’
Liability policies.
V.
Finally, Cooke, Levin, FUMC, and the four associate
ministers argue that the district court erred in awarding court
costs to American States, Crum & Forster, and Western World as
the prevailing parties. We review a district court’s award of
court costs for abuse of discretion. See International Assoc. of
Machinists v. Texas Steel Co., 538 F.2d 1116, 1121-22 (5th Cir.
1976). In the instant case, the district court did not abuse its
discretion in awarding court costs.
VI.
For the foregoing reasons, we AFFIRM the decision of
the district court.
AFFIRMED.
18