LA Fiber Corp, et al v. Firemans Fund Ins Co

* 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should not be published and is not precedent except under the limited circumstances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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-30465
_______________
LOUISIANA FIBER CORPORATION
and
RICHARD K. HOWARD, JR.,
Plaintiffs-Appellants,
VERSUS
FIREMAN’S FUND INSURANCE COMPANY,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
(94-CV-1085)
_________________________
December 19, 1996
Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Louisiana Fiber Corporation (“Louisiana Fiber”) and Richard
Howard, Jr., appeal a summary judgment in favor of Fireman’s Fund
Insurance Company (“Fireman’s Fund”) on a duty-to-defend claim
arising out of various allegations of business torts. Finding no

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2 Because the first amended federal complaint and the first amended state
complaint contain substantially similar recitations of the facts relevant to the
duty to defend claims, we need not address each separately.
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error, we affirm.
I.
This duty-to-defend suit arises out of a business relationship
between Louisiana Fiber and Howard, who is one of its executives,
and Leo Miller, Jr., an attorney, and Tommy Condrey, a 50% share-
holder in Dixie River Cotton Products, Inc. (“Dixie River”).
Condrey and Howard formed Dixie River in 1985 to buy and sell
cottonseed; Miller was Dixie River’s outside counsel and a director
of the corporation.
In separate state and federal lawsuits, Condrey alleged that
Howard, Miller, and Louisiana Fiber had conspired, among other
things, to defraud Dixie River of corporate assets.2 Of particular
interest is Condrey's allegation that Howard, acting on behalf of
Dixie River, submitted a bid to the Port Authority of Lake
Providence to obtain a leasehold at the Port Authority. After the
bid had been approved by the Port Authority, however, Howard,
Miller, and Louisiana Fiber allegedly conspired to transfer, and
did transfer, the leasehold to Louisiana Fiber.
Louisiana Fiber was covered by two substantially similar
commercial general liability policies issued by Fireman's Fund that
provided certain coverage for bodily injury, property damage,

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personal injury, and advertising injury. After receiving notice of
Condrey’s state and federal actions, Louisiana Fiber filed the
instant action, claiming that Fireman's Fund had a duty to defend
against Condrey's allegations. The district court granted
Fireman's Fund's motion for summary judgment, finding that,
although the commercial general liability coverage insurance
arguably covered the conversion claims, Fireman's Fund was released
from a duty to defend by other applicable policy exclusions.
II.
A.
We review a grant of summary judgment de novo. See Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.
1992). Summary judgment is appropriate “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 and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c).
B.
Under Louisiana law, an insurer's duty to defend is broader
than its liability for damage claims. See Yount v. Maisano,
627 So. 2d 148, 153 (La. 1993). The insurer is obligated to defend
a suit unless the allegations described in the complaint unambigu-

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ously exclude coverage. See id. “Thus, the insurer is obligated
to defend if the complaint discloses even a possibility of
liability under the policy.” Jensen v. Snellings, 841 F.2d 600,
612 (5th Cir. 1988). Even if the main thrust of the complaint
falls outside policy coverage, the duty to defend arises if there
are any facts that support a claim that is not unambiguously
excluded. See id. Ambiguities are construed against the insurer.
See ADA Resources, Inc., v. Don Chamblin & Assocs., Inc.,
361 So. 2d 1339, 1343 (La. App. 3d Cir. 1978). The insurer's duty
to defend is determined solely from the plaintiff's pleadings and
the policy, without consideration of extraneous evidence. See
Selective Ins. Co. of Southeast v. J.B. Mouton & Sons, Inc.,
954 F.2d 1075, 1078 (5th Cir. 1992).
According to Louisiana Fiber, Condrey's conversion claims are
subsumed under the provisions of the comprehensive general
liability insurance policy dealing with “personal injury.” Among
other things, the policy covers “personal injury” arising out of
“wrongful entry into, or eviction of a person from, a room,
dwelling or premises that the person occupies.” Louisiana Fiber
argues that, because it is impossible to convert or wrongfully take
possession of a leasehold interestSSwhich is the substance of the
Condrey allegationsSSwithout “wrongful entry into” the premises,
the policy plainly encompasses Condrey's complaint.
Cognizant of the liberal duty-to-defend construction rules and

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our directive to look only to the allegations in the complaint, we
conclude that the insurance policy unambiguously excludes coverage
for the allegations outlined in Condrey's complaints. Although
Condrey alleged in his original federal complaint that the lease
had been executed first by Dixie River before being transferred
wrongfully to Louisiana Fiber, Condrey made no such allegations in
his first amended federal complaint. An amended complaint
supersedes the original complaint and renders it of no legal
effect, unless the amended complaint specifically refers to and
adopts or incorporates by reference the earlier pleading. See
Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir. 1985).
Condrey’s first amended federal complaint neither alleges nor
refers to or incorporates by reference the original complaint’s
allegations that the lease had in fact been executed in Dixie
River’s name prior to being transferred to Louisiana Fiber.
Accordingly, any alleged entry by Louisiana Fiber or Howard onto
the leasehold premises was not “wrongful” under the terms of the
policy.
AFFIRMED.

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