Adler & Sons v. Axis Surplus Ins Co

Case: 21-30478 Document: 00516478007 Page: 1 Date Filed: 09/20/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 20, 2022
No. 21-30478 Lyle W. Cayce
Clerk
Coleman E. Adler & Sons, L.L.C.; Royal Cloud Nine,
L.L.C.; Latrobe’s on Royal, L.L.C.,
Plaintiffs—Appellants,
versus
Axis Surplus Insurance Company, incorrectly named Axis Surplus
Lines Insurance Company; Risk Placement Services,
Incorporated; Unidentified Parties; Marsh &
McLennan Agency, L.L.C.,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:21-CV-648
Before Smith, Duncan, and Oldham, Circuit Judges.
Stuart Kyle Duncan, Circuit judge:
During the covid-19 pandemic, state and local authorities in Louisiana
ordered nonessential businesses to close for a time. This required Coleman
E. Adler II to temporarily shut his jewelry stores and event spaces in New
Orleans. To recoup income lost during the closure, Adler claimed
reimbursement under his insurance policy’s coverage for “direct physical
loss of or damage to” his property. Adler’s insurer, Axis, denied the claim.
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Adler sued Axis along with his insurance agent and broker. The
district court dismissed Adler’s claims, concluding that Adler suffered no
covered loss or damages and that his agent and broker violated no duty to
advise Adler about pandemic-related coverage. We affirm.
I.
Adler owns and operates jewelry stores and reception venues in New
Orleans. 1 In March 2020, responding to the covid-19 pandemic, government
orders closed Adler’s businesses as nonessential. Adler sought business-
interruption coverage under a commercial property insurance policy. The
policy covers “direct physical loss of or damage to Covered Property . . .
caused by or resulting from any Covered Cause of Loss.” Adler’s insurer,
Axis Surplus Insurance Company (“Axis”), denied the claim.
Adler then brought a state court lawsuit against (1) Axis; (2) Adler’s
insurance agent, Marsh & McLennan Agency LLC (“Marsh”); and
(3) Adler’s wholesale broker, Risk Placement Services, Inc. (“RPS”). 2 Adler
pleaded negligence, breach of contract, and bad faith. He claimed the
businesses were “damaged” under the policy because the coronavirus was
present in them and “the rampant spread of Covid-19 . . . create[d] a
dangerous property condition” that prevented use of the property. Adler also
claimed Marsh and RPS were liable for not having recommended pandemic
coverage.
Marsh removed the case to federal court, joined by the other
defendants. All three separately moved to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). The district court granted
1
The businesses are Coleman E. Adler & Sons, L.L.C.; Royal Cloud Nine, L.L.C;
and Latrobe’s on Royal, L.L.C. We refer to them collectively as “Adler.”
2
Marsh had procured the policy for Adler and RPS facilitated the transaction.
2
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the motions and dismissed Adler’s complaint with prejudice. Adler timely
appealed.
II.
We review a dismissal for failure to state a claim de novo. IberiaBank
Corp. v. Ill. Union Ins. Co., 953 F.3d 339, 345 (5th Cir. 2020). To survive a
motion to dismiss, the plaintiff’s “complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
Interpretation of an insurance policy is a question of law that we also
review de novo. Naquin v. Elevating Boats, L.L.C., 17 F.3d 235, 238 (5th Cir.
2016). “Under Louisiana law, an insurance policy is a contract that must be
construed using the general rules of contract interpretation set forth in the
Civil Code.” Anco Insulations, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh,
787 F.3d 276, 281 (5th Cir. 2015) (footnote omitted). Dismissal is proper if
an insurance contract precludes recovery. IberiaBank, 953 F.3d at 346.
III.
We first examine Adler’s claim that Axis wrongly denied coverage for
“direct physical loss of or damage to property.” The district court found
Adler provided no evidence that his properties suffered any such loss or
damage. We agree with the district court.
“Words and phrases used in an insurance policy are to be construed
using their plain, ordinary and generally prevailing meaning.” Edwards v.
Daugherty, 2003-2103, at *11 (La. 10/1/04); 883 So. 2d 932, 940–41; see also
La. Civ. Code art. 2045–47. “When the words of an insurance contract
are clear and unambiguous and lead to no absurd consequences, courts must
enforce the contract as written and may make no further interpretation in
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search of the parties’ intent.” Gorman v. City of Opelousas, 2013-1734, at *5
(La. 7/1/14); 148 So. 3d 888, 892. Where, as here, the Louisiana Supreme
Court has yet to interpret the policy language at issue, we make an “Erie
guess” as to how that court would read it. See Erie R.R. v. Tompkins, 304 U.S.
64 (1938); see also Carrizales v. State Farm Lloyds, 518 F.3d 343, 345–46 (5th
Cir. 2008).
This is a guess we have already made. In Q Clothier, our court recently
interpreted a Louisiana insurance policy’s coverage for “direct physical loss
of or damage to property” to “cover only tangible alterations of, injuries to,
and deprivations of property.” Q Clothier New Orleans, L.L.C. v. Twin City
Fire Ins. Co., 29 F.4th 253, 257 (5th Cir. 2022) (emphasis added). While
recognizing that the Louisiana Supreme Court had not yet construed this
contract language, we based our Erie guess in part on several Louisiana
intermediate appellate decisions. 3 Accordingly, we held that the clause did
not apply to a retailer’s claim for losses caused by pandemic closure orders.
Id. at 259. Loss of income from such orders was not a “tangible” loss of
property, “[n]or [wa]s it an alteration, injury, or deprivation of property.” Id.
at 259. The retailer’s “property,” we explained, “ha[d] been unchanged by
the orders or the close of its stores,” and so losses of income caused by the
orders were not covered by the policy. Ibid.
3
See Mangerchine v. Reaves, 2010-1052, p. 10–11 (La. App. 1 Cir. 3/25/11); 63 So.
3d 1049, 1056 (interpreting “loss” in a homeowner’s insurance policy to mean
“destruction, ruin, or deprivation”); Widder v. La. Citizens Prop. Ins. Corp., 2011-0196, p.
3–4 (La. App. 4 Cir. 8/10/11); 82 So. 3d 294, 296, writ denied, 2011-2336 (La. 12/2/11); 76
So. 3d 1179 (holding lead contamination that rendered property uninhabitable until gutted
and remediated constituted a “direct physical loss”); Ross C. Adams Const. & Design,
L.L.C., 10-852, p. 6 (La. App. 5 Cir. 6/14/11); 70 So. 3d 949, 952 (defective drywall
resulted in direct physical loss because drywall had to be removed and replaced).
4
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Adler argues we are not bound by Q Clothier because, since that
decision, one Louisiana appeals court has reached a different conclusion. In
Cajun Conti, LLC et al. v. Certain Underwriters at Lloyd’s, London et al., 21-
0343, 2022 WL 2154863, p. 5 (La. App. 4 Cir. 6/15/22), reh’g granted for
clarification only, 21-0343 (La. App. 4 Cir. 8/8/22), the Louisiana Fourth
Circuit held that similar policy language covered a restaurant’s losses
resulting from pandemic closure orders. Adler is mistaken. Our court’s rule
of orderliness applies to Erie cases no less than cases interpreting federal law.
See F.D.I.C. v. Abraham, 137 F.3d 264, 268–69 (5th Cir. 1998) (“Adherence
to th[e] rule [of orderliness] is no less immutable when the matter determined
by the prior panel is the interpretation of state law[.]”) (citing Broussard v. S.
Pac. Transp. Co., 665 F.2d 1387, 1389 (5th Cir. 1982) (en banc)). 4
No exception to the rule of orderliness applies here. Since Q Clothier,
there has been “neither a clearly contrary subsequent holding of the highest
court of [Louisiana] nor a subsequent statutory authority, squarely on point.”
Id. at 269. Nor has there been contrary intervening precedent that
“comprises unanimous or near-unanimous holdings from several—
preferably a majority—of the intermediate appellate courts of [Louisiana].”
Ibid. We have only one subsequent decision from an intermediate state court,
and that cannot overcome our rule of orderliness. Ibid.; see also Dickie
Brennan & Co., L.L.C. v. Zurich Am. Ins. Co., No. 21-30776, 2022 WL
3031303, at *2 n.1 (5th Cir. Aug. 1, 2022) (unpublished) (panel was bound by
4
See also, e.g., Bustos v. Martini Club, Inc., 599 F.3d 458, 462–63 (5th Cir. 2010)
(explaining that, in Erie cases, “[w]e . . . apply panel precedent ‘absent a subsequent state
court decision or statutory amendment which makes [the panel decision] clearly wrong’”)
(quoting Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 425 (5th Cir. 2001)); Ford v. Cimmaron
Ins. Co., Inc., 230 F.3d 828, 832 (5th Cir. 2000) (explaining that “a prior panel’s
interpretation of state law has binding precedential effect on other panels of this court
absent a subsequent state court decision or amendment rendering our prior decision clearly
wrong”) (citing Abraham, 137 F.3d at 269).
5
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Q Clothier despite Cajun Conti because “the issuance of an intermediate
appellate court decision does not alter our duty to apply the rule of
orderliness”).
Accordingly, Q Clothier binds this panel and forecloses Adler’s
arguments. Like the Q Clothier plaintiff, Adler strains to equate its pandemic
losses to the property losses in Chinese drywall cases. See Q Clothier, 29 F.4th
at 259; see also, e.g., In re Chinese Manufactured Drywall Prods. Liab. Litig., 759
F.Supp. 2d 822, 831–32 (E.D. La. 2010). Adler contends that, like drywall-
related losses, his losses were caused by the “the presence of . . . coronavirus
particles” and infected persons, rendering its property unusable. Q Clothier
rejected that argument. Unlike losses arising from pandemic closure orders,
drywall losses arose because the defective drywall emitted sulfur gases,
making the property “unusable or uninhabitable” until the drywall was
“removed and replaced in the property.” Q Clothier, 29 F.4th at 259. Not so
here. Adler has not alleged that the coronavirus physically damaged or
contaminated his property such that it needed to be repaired or replaced.
“COVID-19 itself did not make [Adler’s] stores inherently dangerous or
uninhabitable like the drywall.” Id. at 260. To the contrary, what denied
Adler use of his property was the government’s closure orders. Such losses
do not involve a “tangible alteration to, injury to, or deprivation of property.”
Id. at 260. The district court therefore correctly dismissed Adler’s claims
against Axis. 5
IV.
We next examine Adler’s claims that RPS and Marsh are liable for
breach of contract, breach of fiduciary duty, and negligence. These claims are
5
Adler’s motion to certify this question to the Louisiana Supreme Court, which
the panel carried with the case, is DENIED.
6
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based on those defendants’ alleged failures to (1) advise Adler about
pandemic-related coverage, (2) perform due diligence regarding Adler’s
need for such coverage, and (3) recommend appropriate coverage. The
district court dismissed these claims, concluding neither RPS nor Marsh
owed Adler any “heightened” duty to advise him about the need to obtain
pandemic-related coverage. We again agree with the district court.
To recover under Louisiana law for an agent’s failure to obtain
insurance coverage, a plaintiff must show “(1) an undertaking or agreement
by the insurance agency to procure insurance; (2) failure of the agent to use
reasonable diligence in attempting to place the insurance and failure to notify
the client promptly if he has failed to obtain the insurance; and (3) actions by
the agent warranting the client’s assumption that the client was properly
insured.” Offshore Prod. Contractors, Inc. v. Republic Underwriters Ins. Co., 910
F.2d 224, 229 (5th Cir. 1990) (citations omitted) [hereinafter, “OPC”]. 6 In
Louisiana, an insurance agent “owes a duty of ‘reasonable diligence’ to his
customer,” which is “fulfilled when the agent procures the insurance
requested.” Isidore Newman Sch. v. J. Everett Eaves, Inc., 2009-2161, p. 7 (La.
7/6/10); 42 So. 3d 352, 356 (citing Roger v. Dufrene, 613 So.2d 947, 949 (La.
1993); Karam, 281 So.2d at 730–31)). The agent’s duty, however, “has not
been expanded to include the obligation to advise whether the client has
procured the correct amount or type of insurance coverage.” Id. at 359. To
the contrary, “[i]t is the insured’s responsibility to request the type of
insurance coverage . . . needed,” and “[i]t is not the agent’s obligation to
spontaneously or affirmatively identify the scope or the amount of insurance
coverage the client needs.” Ibid. (emphasis added).
6
See also, e.g., Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728, 730–31 (La.
1973) (stating similar analysis); Dahan Novelties & Co., L.L.C. v. Ohio Cas. Ins. Co., 2010-
0626, p. 5 (La. App. 4 Cir. 10/20/10); 51 So.3d 129, 133–34 (same).
7
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Adler failed to plausibly allege that Marsh or RPS owed any duty to
advise him about pandemic-related coverage. Ibid. Adler does not allege he
“specifically inquired” about such coverage, id. at 358 (citation omitted), and
it is settled under Louisiana law that neither Marsh nor RPS had the
“obligation to spontaneously or affirmatively identify the scope . . . of
insurance coverage [Adler] need[ed].” Id. at 359 (emphasis added). As the
Louisiana Supreme Court has explained, “the only duty imposed on the
[insurance] agent is to obtain the coverage requested by the customer.” Id. at
357 (discussing Graves v. State Harm Mut. Auto Ins. Co., 01-1243 (La. App. 3
Cir. 6/26/02); 821 So.2d 769). Adler never inquired about or asked for
pandemic-related coverage from Marsh or RPS, and that defeats his claims
against those defendants.
Adler nonetheless argues Marsh and RPS have a “heightened duty”
to Adler based on two kinds of allegations. First, they allege Adler has a
“close relationship” with Marsh and RPS, in that they “speak about
coverage regularly” and offer Adler “advice about coverage.” Second, Adler
points to Marsh’s website, which holds out Marsh as an “expert” in advising
the “hospitality industry” about “insurance coverage.” Adler is mistaken.
To begin with, Adler cites no opinion from our court or the Louisiana
Supreme Court establishing that insurance agents or brokers have a
“heightened duty” under certain circumstances to advise customers about
specific kinds of insurance coverage. (Adler relies only on a federal district
court decision that, as explained below, we disagree with). The district court
suggested, however, that our decision in OPC held a “heightened duty” may
exist based on “the agent’s representations of his services and the
relationship and agreements between the agent and his client.” See generally
OPC, 910 F.2d at 224. We disagree that OPC stands for that broad
proposition, and we take the opportunity to clarify that decision in light of
controlling Louisiana law.
8
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In that case, OPC, a maritime construction company, needed
builder’s risk insurance to construct a pipeline. Id. at 226. OPC told its
insurance agent about its specific insurance needs—namely, coverage in the
event that weather damaged OPC’s equipment and interrupted its work. Id.
at 227. The agent recommended “stand-by insurance” but, crucially,
neglected to explain to OPC that such coverage excluded “weather-related
down-time.” Ibid. OPC sued the agent under Louisiana law and prevailed. As
we explained, the agent breached its duty to OPC because the agent was
“aware of the risks against which OPC wanted insurance”—even
“suggest[ing] that OPC could get stand-by insurance to cover [weather-
related] down-time”—and because “OPC never would have purchased
stand-by insurance if it had known that the policy excluded weather down-
time.” Id. at 230. We summarized our holding this way: “[w]here an agent is
familiar with the insured’s business, has reason to know the risks against
which an insured wants protection, and has experience with the types of
coverage available in a particular market, we must construe an undertaking
to procure insurance as an agreement by the agent to provide coverage for
the client’s specific concerns.” Ibid. (citations omitted).
OPC does not stand for the broad and murky proposition that a
client’s “close relationship” with an insurance agent or broker creates a
“heightened duty” to anticipate the client’s insurance needs or recommend
specific coverage. OPC’s facts are far narrower: OPC told its insurance agent
about its specific coverage needs, but the agent procured a policy that
excluded the exact coverage OPC wanted. In other words, the agent breached
its fiduciary duty by negligently failing to obtain the coverage requested by its
client. See ibid. (observing the agent “undertook to procure stand-by
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insurance for OPC which would provide some coverage for down-time due
to weather in the Gulf,” but “did not act diligently to place the insurance”). 7
A subsequent Louisiana Supreme Court decision confirms this is the
correct way to read OPC. In Isidore Newman School v. J. Everett Eaves, Inc., a
private school suffered over $3 million in tuition losses when Hurricane
Katrina closed it for two months. 42 So. 3d at 354. The school sued its
longtime insurance broker, alleging the broker failed to advise the school that
its property insurance covered tuition (and not merely property damage) and
that the coverage amount ($350,000) was too low to cover tuition losses. Ibid.
The Louisiana Supreme Court ruled unanimously for the broker. Surveying
Louisiana law, the court reiterated the established proposition that “an
insurance agent owes a duty of ‘reasonable diligence’ to its customer,” which
“is fulfilled when the agent procures the insurance requested.” Id. at 356
(citing Karam, 281 So.2d at 730–31; Roger, 613 So.2d at 949). At the same
time, though, the court rejected the idea that the broker had a duty to explain
the stated coverage in its client’s policy or to advise the client it was
underinsured. Id. at 358. The court’s conclusion is worth quoting at length:
An agent has a duty of “reasonable diligence” to advise the
client, but this duty has not been expanded to include the
obligation to advise whether the client has procured the correct
amount or type of insurance coverage. It is the insured’s
responsibility to request the type of insurance coverage, and
the amount of coverage needed. It is not the agent’s obligation
to spontaneously or affirmatively identify the scope or the
amount of insurance coverage the client needs. It is also well
7
See also id. at 231 (“Louisiana law does not require [an agent] to discuss every
situation which might arise…. However, the law does require [an agent] to inform a client
when the policy which he procured does not cover a specific risk about which the client
expressed concern.”) (emphasis added); id. at 234 (“[The agent] failed to procure insurance
requested by OPC which would protect OPC against this loss.”) (emphasis added).
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settled that it is insured’s obligation to read the policy when
received, since the insured is deemed to know the policy
contents.
Id. at 359; see also, e.g., Mandina, Inc. v. O’Brien, 2012-0085, p. 14 (La. App.
4 Cir. 7/31/13); 156 So.3d 99, 107 (observing “an agent has no duty to
independently assess the needs of the insured and recommend coverage”)
(quoting Newman, 42 So.3d at 356–57). 8
Adler relies on a federal district court decision to support his
“heightened duty” argument, but that decision misreads OPC. In VCS, LLC
v. Mt. Hawley Ins. Co., 534 F. Supp. 3d 635 (E.D. La. 2021), the district court
reasoned that, even after Isidore Newman, our OPC decision “may still apply
when an agent has reason to know that the client had a specific risk or
requested coverage for specific circumstances.” Id. at 650 (citations
omitted). Based on that reading of OPC, the court held a Louisiana insurer
may owe a “heightened duty” to “advise [a client] regarding virus-related
coverage” because the insurer held itself out on its website as an “advisor[]
of hotel business income insurance.” Id. at 651.
We disagree with the VCS district court’s reading of OPC. As
discussed, OPC does not support the notion that insurers may assume a
“heightened duty” to recommend specific coverage to their clients. If there
were any doubt about that, Isidore Newman laid it to rest. To be sure, Isidore
Newman recognizes an agent’s well-established duty of “reasonable
diligence” to fulfill a client’s insurance requests, but it says nothing about an
agent’s “heightened duty” whenever he has “reason to know” of a client’s
“specific risk.” To the contrary, Isidore Newman held that the agent and
8
Although we disagree with the district court’s suggestion that OPC recognizes a
heightened duty in some circumstances, we agree with the court’s ultimate conclusion that
OPC must be read in light of the subsequent decision in Isidore Newman.
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broker have no “obligation to advise whether the client has procured the
correct amount or type of insurance coverage” nor “to spontaneously or
affirmatively identify the scope or the amount of insurance coverage the
client needs.” 42 So. 3d at 359. Rather, “[i]t is the insured’s responsibility to
request the type of insurance coverage, and the amount of coverage needed.”
Ibid. Finally, neither OPC nor Isidore Newman supports the VCS court’s
specific holding—namely, that an agent assumes a duty to advise clients
about pandemic-related coverage merely by holding itself out on its website
as having expertise in “hotel business income insurance.” See VCS, 534 F.
Supp. 3d at 651. No Louisiana decision supports that. 9
In sum, contrary to Adler’s arguments, what creates a Louisiana
insurance agent’s duty to procure particular coverage is not a “close
relationship” with the insured but an insured’s “specific[]” request for “the
type of insurance coverage . . . needed.” Isidore Newman, 42 So. 3d at 358,
359. As explained, Adler did not allege he specifically requested pandemic-
related coverage from either RPS or Marsh. Adler’s claims against those
defendants were properly dismissed.
IV.
The district court’s judgment is AFFIRMED.
9
Adler also cites the district court’s decision in Sika Investments, L.L.C. v. RLI
Corp., 2021 WL 2134697 (E.D. La. May 26. 2021). But Sika relies on VCS’s erroneous
reading of Isidore Newman and OPS. Id. at *4. We decline to follow Sika for the same
reasons we decline to follow VCS.
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Andrew S. Oldham, Circuit Judge, concurring in part.
It’s not clear to me that we have subject-matter jurisdiction. Section
1332 requires complete diversity among the parties. See 28 U.S.C. § 1332.
The citizenship of a limited liability company is determined by the citizenship
of its members. See MidCap Media Finance LLC v. Pathway Data, Inc., 929
F.3d 310, 314 (5th Cir. 2019). In removing this case, however, the insurance
company alleged only the residence of the relevant member, not his citizenship.
“Citizenship and residence, as often declared by this court, are not
synonymous terms.” Robertson v. Cease, 97 U.S. 646, 648 (1878). That’s
because “[c]itizenship requires not only ‘residence in fact’ but also ‘the
purpose to make the place of residence one’s home.’” MidCap, 929 F.3d at
313 (quoting Texas v. Florida, 306 U.S. 398, 424 (1939)).
I realize this distinction might seem pedantic. But the Supreme Court
says it’s important. The party invoking federal jurisdiction (here the
insurance company) has the burden of establishing it. See McNutt v. General
Motors Acceptance Corp. of Indiana, 298 U.S. 178, 188–89 (1936). And “every
federal appellate court has a special obligation to satisfy itself not only of its
own jurisdiction, but also that of the lower courts in a cause under review,
even though the parties are prepared to concede it.” Bender v. Williamsport
Area School Dist., 475 U.S. 534, 541 (1986) (quotation omitted). And a
recently proposed amendment to Federal Rule of Civil Procedure 7.1 will
require the removing party to “name—and identify the citizenship of—every
individual or entity whose citizenship is attributed to that party . . . .” Fed.
R. Civ. P. 7.1(a)(2) (effective December 1, 2022). The Committee Note to
this proposed amendment singles out the “familiar example [of] a limited
liability company, which takes on the citizenship of each of its owners.” I’d
put the insurance company to its proof.
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If we have jurisdiction, as the majority holds, then I would agree that
we should affirm without regard to Cajun Conti LLC v. Certain Underwriters
at Lloyd’s, London et al., No. 21-0343, 2022 WL 2154863 (La. App. 4th Cir.
June 15, 2022).
14