E. GRADY JOLLY, Circuit Judge:
This insurance dispute requires us to decide whether Lexington Insurance Company must defend and indemnify LCS Corrections Services, Inc., against a claim that LCS's alleged failure to provide medications to an inmate housed at one of its facilities caused the inmate's death. Two insurance contracts are at issue in this appeal: a Commercial General Liability ("CGL") policy and a Commercial Umbrella Liability ("CUL") policy. The district court, in separate rulings, held that, under the CGL policy, Lexington had a duty to defend LCS, but without reaching the indemnification issue under that policy; and that, under the CUL policy, Lexington had no duty to defend or indemnify LCS. For the reasons that will follow, we vacate the district court's judgment in part and hold that Lexington is not required to defend or
This dispute over the insurance policies stems from a tort action by the heirs (the "Plaintiffs") of Mario Garcia ("Garcia").
After Garcia's death, the Plaintiffs filed suit against LCS, alleging claims of medical malpractice under state law and constitutional violations under 42 U.S.C. § 1983. Initially, in the previous tort litigation that underlies this appeal, the district court allowed only the medical malpractice claims to go to trial. In that trial, a jury returned a $2.25 million verdict in favor of the Plaintiffs.
LCS then filed this separate action in another district court, seeking a declaration that Lexington is required to defend and indemnify LCS in the underlying § 1983 action. Thus, this declaratory judgment appeal involves only the question of insurance coverage and only for the § 1983 claim. This appeal, however, implicates two insurance policies.
By way of background, Lexington issued three policies to LCS — the CUL and CGL policies that are at issue in this suit, along with a Healthcare Professional Liability ("HPL") policy, which is not a subject of this appeal.
More particularly, this appeal primarily involves two exclusions, one from each policy: a "medical services" exclusion to the CGL policy, and a "professional liability" exclusion to the CUL policy. Common to
So, we turn to the merits of this declaratory judgment appeal, seeking an answer only to insurance coverage for the underlying § 1983 claim: whether Lexington owes a duty to defend and/or indemnify LCS, under either the CGL or the CUL policies.
As we have earlier indicated, we focus on exclusions in each of the policies — first on the medical services exclusion in the CGL policy and, second, on the professional liability exclusion in the CUL policy.
We will first discuss the CGL policy, under which the district court held that Lexington had a duty to defend Garcia's claims against LCS. In this respect, we will initially consider whether Lexington must provide a defense to LCS. We will later turn our attention to the duty to indemnify.
At the outset, LCS and the Plaintiffs contend that we need not even consider the medical services exclusion because the civil rights endorsement in the CGL policy overrides the medical services exclusion, which is to say, that the civil rights endorsement stands on its own and is not subject to the medical services exclusion of the primary policy. The civil rights endorsement provides as follows:
(Emphasis added.)
We cannot agree that the civil rights endorsement overrides the medical services exclusion. The civil rights endorsement, by its terms, is only a modifier of the insurance agreement itself. Consequently, the endorsement is subject to, and governed by, all other relevant terms of the primary insurance agreement, to which it is attached, unless otherwise stated. This means that it is subject to the exclusions in the policy, including the medical services exclusion. See Michelet v. Scheuring Sec. Servs. Inc., 95-2196, p. 12-13
In sum, our review of the policy leads to the conclusion that the medical services exclusion applies to the Plaintiffs' claim if the allegations in the Complaint fall within the medical services exclusion, which we now turn to address.
The medical services exclusion provides as follows:
The parties dispute whether this case is controlled by subpart (a) or subpart (b) of the medical services exclusion. According to LCS and the Plaintiffs, only subpart (b) is relevant; only it addresses the dispensation of medication. They further argue that because all parties agree that subpart (b) does not, itself, exclude coverage in this case, a fortiori, coverage of the § 1983 claim exists under the CGL policy. But Lexington says, not so fast; there is more to the definition of "medical services" than subpart (b); subpart (a) broadly excludes "medical, surgical, dental or nursing treatment." As applied to the facts in this case, subpart (a) excludes coverage of the denial of medication to Garcia.
We believe that Lexington is correct: because the exclusions are listed in the disjunctive, we must consider subpart (a) of the medical services exclusion as distinct from subpart (b). The inclusion of "or" after subpart (c) demonstrates that the exclusion is written in the disjunctive, and each subpart must be considered separately. See, e.g., PPG Indus., Inc. v. Shell Oil Co., 727 F.Supp. 285, 287 (E.D.La. 1989) ("[U]nder the law of Texas, contract language should be given its `plain grammatical
So now we move on to consider whether the Plaintiffs' allegations fall within subpart (a) of the exclusion. Relevant here, the medical services exclusion denies coverage of "any liability of the Insured arising out of the ... failure to render `Medical Services.'" (Emphasis added.) Thus, we ask whether the Plaintiffs' alleged injury relates to the failure to render "Medical Services," which services are defined as "medical, surgical, dental or nursing treatment."
In essence, the Plaintiffs allege that Garcia died when the staff at the Detention Center failed to provide him with his prescribed benzodiazepines. When speaking generally, administering medication to an individual or to a group of people is certainly a form of "medical treatment." See Duncanville Diagnostic Ctr., Inc. v. Atl. Lloyd's Ins. Co. of Tex., 875 S.W.2d 788, 791 (Tex.App.1994) ("Administering drugs as well as providing medical advice or making a medical diagnosis requires the exercise of trained medical judgment.").
Although the Plaintiffs and LCS argue that Garcia died as a result of LCS's adhering to its administrative policy, and not from a failure to render medical services, this distinction proves unavailing here. In a closely similar comparison, as discussed in more detail infra, we have "distinguished between `professional' tasks and `administrative' tasks." Nat'l Cas. Co., 669 F.3d at 615. Garcia's death, however, was caused by the failure to provide benzodiazepines to him, in other words, a failure to render a professional service. It may be true that no professional decision was made in denying the medicine. But providing and administering medicine to an inmate in a prison is a medical service, which LCS failed to render, for whatever reasons. See Allstate Ins. Co. v. Disability Servs. of the Sw., Inc., 400 F.3d 260, 265 (5th Cir.2005) (concluding that a medical services exclusion applied to a quadriplegic plaintiff's claims of inadequate medical treatment, which stemmed in part from his lack of access to a telephone to inform medical personnel of his injuries, because "the claim that [the patient's] death was caused by the failure to provide communication devices is inseparable from the [plaintiffs'] claim that [the defendant] failed to provide adequate medical care, and the medical services exclusion applies"). Consequently, Lexington owes no duty to defend LCS under the CGL policy, we VACATE the district court's ruling in this respect, and REMAND the case for
Having decided that Lexington owes no duty to defend, we must also briefly consider whether Lexington owes a duty to indemnify LCS under the CGL policy for any liability on the Plaintiffs' § 1983 claim. Although a court must generally decide whether an insurer has a duty to indemnify at the conclusion of litigation, it may decide the issue earlier when it is clear that the court's ruling on the duty to defend must also control the duty to indemnify. Griffin, 955 S.W.2d at 84. In the context of this case, it follows that there is no duty to indemnify for the same reasons that we concluded there is no duty to defend — the medical services exclusion plainly excludes from coverage any liability that is based on the failure of LCS to render medical services, including the failure to provide medications, to inmates. To the extent that the district court declined to reach this duty, we VACATE its ruling, and REMAND the case for entry of judgment in Lexington's favor on this issue.
As we said at the outset of this opinion, there are two policies involved. Having concluded that Lexington owes no duty to defend or indemnify under the CGL policy, we must next decide whether Lexington owes a duty to defend or indemnify LCS under the CUL policy.
Thus, in considering the CUL policy, we focus on the professional liability exclusion, which provides as follows:
Because the term "professional service" is not defined by the contract, we look to the general definition of such services:
Admiral Ins. Co. v. Ford, 607 F.3d 420, 423 (5th Cir.2010) (alterations in the original) (quoting Atl. Lloyd's Ins. Co. of Tex. v. Susman Godfrey, L.L.P., 982 S.W.2d 472, 476-77 (Tex.App.1998)). Here, the parties do not dispute the basic interpretation of the policy terms. Instead, the parties direct their arguments to whether the allegations in the Complaint arise out of professional or non-professional services.
As with the medical services exclusion above, the application of the professional liability exclusion in the CUL policy turns on whether the Plaintiffs have adequately alleged that a separate administrative policy — not the denial of "professional services" — caused Garcia's death. In the context of a professional services exclusion,
The dispositive inquiry here is whether providing medications to inmates in a prison is a professional medical service. Duncanville Diagnostic Ctr., Inc., 875 S.W.2d at 791 ("Administering drugs as well as providing medical advice or making a medical diagnosis requires the exercise of trained medical judgment. These acts also demand the application of specialized education and knowledge."). Indeed, LCS and the Plaintiffs do not contest that distributing medications to inmates in a prison is a service that requires professional training, care, and judgment. Instead, they argue that administrative personnel at LCS adopted a policy of refusing to provide certain medications to inmates and that the development of this policy did not require the exercise of professional skill or judgment. To the contrary, LCS and the Plaintiffs argue that LCS adopted the policy for business reasons.
LCS and the Plaintiffs have sliced this issue too thin, however, by arguing that a separate administrative policy actually caused the injury, i.e., the liability, in this case. Admittedly, our cases have held that an administrative action is not excluded from coverage by a professional services exclusion when the administrative action itself causes an injury separate from any injury caused by the professional service. See, e.g., Willbros RPI, Inc. v. Cont'l Cas. Co., 601 F.3d 306, 310-12 (5th Cir.2010) (recognizing that conduct falls outside a professional services exclusion if the conduct "provides an independent but for cause of the injury"); Guar. Nat'l Ins. Co. v. N. River Ins. Co., 909 F.2d 133, 136-37 (5th Cir.1990) (concluding that a hospital's failure to maintain adequate security regarding its windows did not fall within a professional services exclusion). In contrast to these cases, the Plaintiffs here have alleged only a failure on the part of LCS to provide a professional service, i.e., the distribution of medication, to Garcia. Even if the policy were adopted for administrative reasons, the effect of the policy is that LCS failed to provide a professional service to an inmate, which is alleged to have caused Garcia's death. Cf. Nat'l Cas. Co., 669 F.3d at 611, 615-16 (concluding that potential liability regarding the dispatch of emergency personnel to an accident scene could fall outside a professional liability exclusion when the emergency personnel allegedly failed to use proper care in loading an individual into an ambulance). The questions are whether the subject injury was caused by particular conduct of the insured, and whether such conduct falls inside or out-side the definition of professional services. A policy itself is not conduct. Furthermore, that LCS personnel may not have made a professional decision in adopting its administrative policies does not address the coverage question. The policy excludes a professional "service"; LCS failed to provide a professional service by not providing medications to inmates, and thus comes within the specified conduct excluded from coverage.
The provisions of the professional liability exclusion further support our interpretation of this provision. The exclusion applies to: (1) liability arising out of the rendering of professional services; (2) liability arising out of the failure to render professional services; and (3) liability arising out of omissions, malpractice, and mistakes
Finally, we conclude that there is no duty to indemnify LCS with respect to the CUL policy. As we explained with regard to the CGL policy, a reviewing court may determine the duty to indemnify before the conclusion of the underlying litigation "when the insurer has no duty to defend and the same reasons that negate the duty to defend likewise negate any possibility the insurer will ever have a duty to indemnify." Griffin, 955 S.W.2d at 84 (emphasis omitted). The district court concluded that "no facts can be developed in the Garcia Lawsuit that can transform the failure to administer medication into an administrative policy unrelated to the failure to render professional medical services." Based on our review of the record, we agree. As we have said, any administrative policy plainly amounted to a refusal to render a professional service to Garcia.
Thus, we AFFIRM the district court's rulings addressing the CUL policy.
In sum, our review of the CGL and CUL policies leads us to conclude that the § 1983 claim is excluded from coverage by both policies. Accordingly, we hold that Lexington owes no duty to defend or indemnify LCS under the CGL policy; and we also hold that Lexington owes no duty to defend or indemnify LCS under the CUL policy. We further hold that the district court did not err in granting summary judgment for Lexington under the CUL policy, and thus AFFIRM the judgment in this respect. Finally, we hold that the district court erred in its judgment with respect to the CGL policy, and we REMAND the case for entry of judgment in favor of Lexington.
AFFIRMED in part, VACATED in part, and REMANDED, for entry of judgment consistent with this opinion.