FILED

United States Court of Appeals

Tenth Circuit

June 18, 2008

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ZURICH AMERICAN INSURANCE

COMPANY, successor in interest to
Zurich Insurance Company (U.S.
Branch),
Plaintiff - Appellee,
CERTAIN UNDERWRITERS AT
LLOYDS LONDON WHO
SUBSCRIBED TO POLICY NO. 150;
VALLEY FORGE INSURANCE
COMPANY, a Pennsylvania insurance
company,
Plaintiffs-CounterDefendants - Appellees,
v.

Nos. 06-1357 and 06-1370

O'HARA REGIONAL CENTER FOR

REHABILITATION, business form
unknown; CERTAIN
UNDERWRITERS AT LLOYDS
LONDON SUBSCRIBING TO
POLICY NO. 150,
Defendants,
and

HEALTH CARE MANAGEMENT

PARTNERS, LTD., doing business as
O'Hara Regional Center for
Rehabilitation; ORCR, INC., doing
business as O'Hara Regional Center
for Rehabilitation; SOLOMON
HEALTH MANAGEMENT, LLC,
doing business as Solomon Health
Services, LLC; HERSCH ARI
KRAUSZ; and DAVID SEBBAG,
individuals; V. ROBERT SALAZAR,
an individual,
Defendants-CounterClaimants-Appellants.

VALLEY FORGE INSURANCE

COMPANY, a Pennsylvania insurance
company; ZURICH AMERICAN
INSURANCE COMPANY, successor
in interest to Zurich Insurance
Company (U.S. Branch),
Petitioners,

No. 06-515

v.
CERTAIN UNDERWRITERS AT
LLOYD'S LONDON WHO
SUBSCRIBING POLICY NO. 150;
HEALTH CARE MANAGEMENT
PARTNERS, LTD., doing business as
O'Hara Regional Center for
Rehabilitation; ORCR, INC., doing
business as O'Hara Regional Center
for Rehabilitation; SOLOMON
HEALTH MANAGEMENT, LLC,
doing business as Solomon Health
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Services, LLC; HERSCH "ARI"

KRAUSZ; DAVID SEBBAG; V.
ROBERT SALAZAR, individuals,
Respondents.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
(D.C. NO. 05-cv-373-RPM)

Submitted on the briefs.

Before LUCERO, HOLLOWAY, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.

The question presented in this consolidated case is whether general liability

insurance policies trigger a duty to defend false billing claims made by the United
States and the State of Colorado. OHara Regional Center for Rehabilitation
argues that its insurance carriers should defend and indemnify it against the
governments lawsuit under the False Claims Act and state common law claims.
We hold that the applicable insurance policies do not cover these types of claims.

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Having jurisdiction pursuant to 28 U.S.C. 1291, 1 and finding no error, we

AFFIRM.
I. Background
Factual Background
OHara is a long-term care facility in Denver that has been operated by
various corporate entities. 2 OHara was licensed by the State of Colorado as a
Class V rehabilitation nursing center, meaning it was certified to provide care to
residents requiring a substantially greater quantity and quality of skilled nursing
care compared to residents at ordinary nursing homes.
OHara entered into provider agreements with the United States and the
State of Colorado under the Medicare and Medicaid programs. Pursuant to the
provider agreements at issue here, Medicaid paid OHara for the specialized care
1

We deny Valley Forges motion to dismiss this appeal for lack of

appellate jurisdiction. A judgment in a consolidated case is reviewable, even if
other claims are pending, if the district court certified the judgment pursuant to
Rule 54(b) of the Federal Rules of Civil Procedure. See Trinity Broad. Corp. v.
Eller, 827 F.2d 673, 675 (10th Cir. 1987). Because the district court properly
certified this judgment, we have jurisdiction.
2

Three corporate entities were involved with OHaras operations. Health

Care Management Partners conducted business as the OHara Regional Center for
Rehabilitation from August 27, 1996, until June 1998. Defendant, ORCR, Inc.,
was incorporated on May 5, 1998, and conducted business as OHara from June 2,
1998 until approximately December 31, 2000. Defendant Solomon Health
Management managed OHara from January 1, 1996, until June 2000.
During the times relevant to the underlying lawsuit, Hersch Ari Krausz
and David Sebbag were OHaras owners and managers. V. Robert Salazar was
an owner, officer, and manager for Solomon.
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almost twice the reimbursement rate it paid other long-term care facilities in
Colorado.
Following an audit of OHaras billing practices, the government concluded
that OHara had submitted inflated invoices for patient services. Specifically, the
government claimed OHara was inadequately staffed to meet the statutory and
regulatory requirements provided for in the provider agreements. To recover the
overpayments, it sued OHara in 2004, alleging that from September 1, 1997
through December 31, 2000, OHara knowingly presented or caused to be
presented claims for payment to the Medicare and Medicaid programs, for care,
goods or services not rendered, that were inadequate or worthless, or that were
rendered in violation of applicable statutes, regulations, and guidelines with a
nexus to payment. R., Vol. 30, at 4940, 12. The government also claimed that
OHara systematically and routinely understaffed [the facility] in violation of
the provider agreements. R., Vol. 30, at 4940, 11. The government, however,
did not seek damages on behalf of any patients who might have been harmed by
the allegedly inadequate staffing levels.
The government brought a federal cause of action under the False Claims
Act, 31 U.S.C. 3729(a), and also asserted common law claims under Colorado
law, including: payment by mistake of fact, unjust enrichment, common law
fraud, restitution and disgorgement of illegal profits, and recoupment of
overpayments. Following the commencement of the lawsuit, OHara tendered its
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defense to three of its general liability insurance carriers for the years in question:
Zurich, 3 Valley Forge, 4 and Lloyds. 5 OHaras theory of coverage was that the
3

Zurich Policy.

We will pay on behalf of any insured . . . [damages] that any

insured becomes legally obligated to pay . . . because of injury to
which this insurance applies. The injury must be caused by a
medical incident . . . . Medical incident means any act or
omission in . . . the rendering or failing to render . . . medical,
surgical, dental, x-ray, or nursing service or treatment, or the
furnishing of food or beverage in connection therewith; any service
or treatment conducive to health or of a professional nature . . . .
R., Vol. 27, at 4667, 4757 (emphasis added).
4

Valley Forge Policy.

Valley Forge denies that its umbrella policy includes professional liability
coverage. OHara asserts, however, that the umbrella policy should be reformed
to correspond to the coverage provided in the professional liability section of the
Resident Health Care Package Policy. For the purposes of this appeal, we assume
that the umbrella policy has been reformed to include the following professional
liability provisions:
We will pay those sums that the insured becomes legally obligated to
pay as damages because of a professional incident in the course of
performing professional services for your resident health care
facility . . . . Professional Incident means . . . [a]ny act or omission
in the furnishing or failure to furnish professional services including
the furnishing of food, beverages, medications or appliances in
connection with such services and the postmortem handling of human
bodies.
R., Vol. 28, at 4813, 4815 (emphasis added).
5

Lloyds Policy.

We will pay those sums that you become legally obligated to pay as
(continued...)
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allegations of billing irregularities were encompassed by the professional

services provision in each policy, which covered liability caused by errors and
omissions in the furnishing or failure to furnish professional servicesin this
case, OHaras billing and staffing practices.
Valley Forge and Zurich accepted OHaras tender of defense under a
reservation of rights, while Lloyds disclaimed coverage altogether.
Procedural Background
While the governments lawsuit proceeded in federal court, all three
insurers filed separate complaints against OHara, seeking a declaratory judgment
that they had no duty to defend or indemnify OHara. The insurers claimed the
professional services provisions did not provide coverage for the claims of fraud

(...continued)
damages because of injury to which this insurance applies. . . . This
insurance applies to injury only if . . . [t]he injury is caused by a
medical incident . . . and [t]he injury arises out of the individual
insureds profession as a licensed health care provider. . . . Medical
incident means any act or omission . . . [a]rising out of the
providing of or failure to provide professional health care
services. . . .
* * *
We will pay those sums that you become legally obligated to pay as
damages because of injury to which this insurance applies. . . . This
insurance applies to injury only if . . . [t]he injury is caused by a
business entity incident . . . . Business entity incident means
any act or omission arising out of the providing of or failure to
provide professional health care services . . . .
R., Vol. 29, at 490607, 4912 (emphasis added).
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made by the government in the underlying lawsuit. The district court

consolidated the cases, and all parties filed cross-motions for summary judgment.
The district court granted the insurers summary judgment, and
subsequently certified the judgment as final and appealable. This timely appeal
followed.
II. Standard of Review
We review de novo the grant of summary judgment to determine whether
any genuine issues of material fact were in dispute and, if not, whether the district
court correctly applied the substantive law at issue. Viernow v. Euripides Dev.
Corp., 157 F.3d 785, 792 (10th Cir. 1998). Summary judgment is appropriate if
the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
In applying this standard, we view the evidence and draw reasonable
inferences in the light most favorable to the nonmoving party. Simms v.
Oklahoma ex rel. Dept of Mental Health & Substance Abuse Servs., 165 F.3d
1321, 1326 (10th Cir. 1999). Summary judgment is appropriate if the evidence
is such that no reasonable jury could return a verdict for the nonmoving party.
Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1062 (10th Cir. 2002) (citation
and quotation marks omitted). Because this case arises under our diversity
jurisdiction, Colorado insurance law applies.
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III. Discussion
OHara primarily makes two arguments in support of its theory that the
professional services provisions of the insurance contracts provide coverage.
First, it claims that the misconduct alleged by the government arose from
OHaras negligent design and implementation of health care practicesnamely,
its failure to provide professionally adequate nursing or medical services.
Second, it claims that its billing practices pursuant to the Medicare and Medicaid
provider agreements also constitute professional services covered by the policies.
We find neither argument persuasive. 6
A. Duty to Defend and Indemnify
Before turning to the specific language of the policies, several broad
principles guide our assessment of the insurers duty to defend and indemnify.
Under Colorado law, an insurers duty to defend is broader than the duty to
indemnify. If there is no duty to defend, then there is no duty to indemnify. See
Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 299 (Colo. 2003)
(Because the duty to defend encompasses any potential claims raised by the facts
and the duty to indemnify relates to the actual liability imposed, this court has

OHara additionally contends the district court did not analyze the express
language of the insurance policies at issue. The insurers and OHara also
disagree about whether various policy exclusions bar coverage. Because we
interpret the professional services language of the applicable policies as not
covering the activities alleged in the governments complaint, it is unnecessary
for us to address these arguments.
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considered the duty to defend to be a broader concept than the duty to

indemnify.).
When determining whether a duty to defend exists, a court applying
Colorado law look[s] no further than the four corners of the underlying
complaint. Id. The facts alleged in the complaint, not the legal claims asserted
by the plaintiff, determine the insurers duty. Gerrity Co. v. CIGNA Property &
Cas. Ins. Co., 860 P.2d 606, 607 (Colo. Ct. App. 1993). If the complaint alleges
any facts that might fall within the coverage of the policy, then the insurer has a
duty to defend the insured. Hecla Mining Co. v. New Hampshire Ins. Co., 811
P.2d 1083, 1089 (Colo. 1991).
B. Application
OHara argues the insurers have a duty to defend the company against the
governments lawsuit because the governments allegations fall within the
policies broad coverage for professional nursing and medical services. The
relevant coverage provisions are roughly the same for each of the insurers. They
provide coverage where the insured causes injury by negligently (1) providing
nursing or medical services or treatment; or (2) generally, providing professional
services.
In OHaras view, these policies provide coverage because the
governments complaint is premised on negligence in either (1) providing

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professional nursing or medical services, or (2) processing and submitting

Medicare and Medicaid forms.
1. Professional Nursing or Medical Services
No one disputes the insurance policies at issue cover errors or omissions
made in the furnishing or failing to furnish professional nursing or medical
services. The dispute centers on OHaras view that the governments case is
predicated on OHaras failure to provide adequate professional nursing services.
According to OHara, the thrust of the governments argument is that it failed to
adequately staff the facility, thus breaching the staffing requirements of the
provider agreements. But for the inadequate staffing levels, OHara would
otherwise have been in compliance with the provider agreements. 7
We disagree. The governments injury was not caused by OHaras failure
to provide professional services, but instead resulted from OHaras submission of
false and fraudulent claims for reimbursement. Specifically, the crux of the
governments claim is that OHara promised to provide a certain level of patient
care; it represented to the government it provided the contractually agreed levels
of care; but, in fact, it did not provide the agreed services. As we read the

Colorado law requires more than a but for relation between the covered
activity and the injury. [T]he claimant must [also] show that the [covered
activity] and the injury are directly related or inextricably linked so that no
independent significant act or [omission] interrupted the but for causal chain
between the covered [activity] and the injury. State Farm Mut. Auto. Ins. Co. v.
Kastner, 77 P.3d 1256, 1264 (Colo. 2003); see infra Part III.B.1 (Lloyds Policy).
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governments cause of action, the problem was not the actual level of services
provided to OHaras patients, but rather that OHara billed for services it did not
providenamely, enhanced services. This violates the provider agreements.
Several cases support this analysis. The insurers, for example, point to a
substantially similar case in which the court rejected a nursing homes argument
that inadequate staffing could be covered under the professional services
provision. Horizon West, Inc. v. St. Paul Fire & Marine Ins. Co., 214 F. Supp. 2d
1074 (E.D. Cal. 2002), affd, 45 F. Appx 752 (9th Cir. 2002). In that case, the
insurance policy stated, [w]ell pay amounts you and others protected under this
agreement are legally required to pay to compensate others for injury or death
resulting from . . . the providing or failure to provide professional services while
this agreement is in effect. Horizon West, 214 F. Supp. 2d at 1076. As in the
present case, the plaintiff alleged the facility falsely and fraudulently submitted
Medicare and Medicaid claims for services it did not provide. In concluding the
insurer did not have a duty to defend, the court found the insureds
injuriesthe possible reimbursement of fraudulent payments it receivedwere
caused by the companys billing practices rather than its nursing services. 8
8

OHara argues that Horizon West is not persuasive authority. First,

OHara suggests Horizon West relied on a definition of professional services that
has not yet been followed in Colorado. This definition, however, was first
articulated in Marx v. Hartford Accident & Indemnity Co., 157 N.W.2d 870,
87172 (Neb. 1968), and is the most widely used definition used by courts
throughout the country. See 23 Appleman on Insurance 146.3[A] (discussing
(continued...)
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The decision in Horizon West is consistent with the approach followed in

other jurisdictions that have considered whether liability policies cover claims
under the False Claims Act or related causes of action. For example, in M/G
Transport Services, Inc. v. Water Quality Insurance Syndicate, 234 F.3d 974 (6th
Cir. 2000), a subcontractor signed a contract with the United States government
agreeing to transport coal to the Tennessee Valley Authority. As a condition of
the contract, the subcontractor agreed to comply with the Clean Water Act. Id. at
97576. A False Claims Act suit was subsequently filed against the
subcontractor, alleging it falsified records to hide violations of the Clean Water
Act so it could obtain payment from the United States. The subcontractor then
sued its insurer, alleging the insurer had a duty to defend the company against the
lawsuit because the policy covered any amounts paid by reason of or with
respect to liability to the United States for violations of the Clean Water Act. Id.
at 97778. The Sixth Circuit rejected the subcontractors arguments for the
following reasons:

(...continued)
authority). We conclude Colorados courts would similarly adopt this definition.
OHara also argues Horizon West is factually distinguishable because
Zurich, Valley Forge, and Lloyds polices provide broader coverage. We reject
this argument as explained below. Finally, OHara notes that Horizon West
involved a qui tam action brought by a private party, while the present case
involves claims brought by the government. It is not clear why this fact would
affect the policies coverage, and, in any event, we reject this argument.
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M/Gs arguments are thinly disguised attempts to bootstrap liability

for FCA violations into the coverage provided by the environmental
pollution policies. Under these circumstances, we cannot conclude
that M/Gs liability . . . was by reason of, or with respect to, liability
to the United States for cleanup costs under the Clean Water Act. An
FCA action is not converted into a Clean Water Act action simply
because a violation of the Clean Water Act is a predicate to
establishing the falsity of a claim, or may be used as a measure of
damages under the FCA.
Id. at 978.
We similarly reject OHaras attempt to bootstrap liability for False Claims
Act violations into the coverage provided by the professional liability policies
issued by Zurich, Valley Forge, and Lloyds. See also Hampton Med. Group v.
Princeton Ins. Co., 840 A.2d 915, 91718 (N.J. Super. Ct. App. Div. 2004)
(holding insurerwhich provided psychiatrists a professional liability policy
covering injur[ies] caused by a medical incident arising out of your supplying
or failure to supply professional servicesdid not have a duty to defend the
psychiatrists against a lawsuit alleging they billed Blue Cross/Blue Shield for
services they never provided).
OHara nonetheless makes additional arguments suggesting the insurance
policies should be broadly interpreted to cover the governments fraud
allegations. In essence, OHara argues that even if it received sums of money for
services it never provided, the insurance companies should be on the hook when it
is required to disgorge the payments. After reviewing the language of the three

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applicable policies, we disagree. The logic of Horizon, M/G Transport Services,

and Hampton Medical Group applies equally here.
Zurichs Policies
OHara argues Zurichs policies provide especially expansive coverage
because the language covers injuries related to the rendering of nursing services,
not just injuries caused by the failure to furnish such services. The policies
explain,
Any such act or omission, together with all related acts or omissions in the
furnishing of or failing to furnish such services to any one person shall be
considered as one medical incident.
R., Vol. 27, at 4667, 4757 (emphasis added). Based on this language, OHara
argues Zurich has a duty to defend because the governments suit is related to its
facilitys alleged failure to provide adequate nursing services.
But in making this argument, OHara takes the phrase related acts or
omissions out of context. When the sentence is read in its entirety, it is clear
that the purpose of the cited clause is not to define or expand the scope of the
policys coverage to include any activity related to the failure to furnish
professional servicessuch as billing the government for services not provided.
Instead the clause merely clarifies that one medical incident can involve several
covered acts or omissions.
Valley Forges Policy

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OHara also argues Valley Forges policy provides broad coverage for
inadequate staffing. In particular, the policy extends coverage to professional
services performed for your resident health care facility. Aplt. Opening Br. 34.
OHaras description of the policy, however, is incomplete. The policy requires
a causal connection between the injury alleged and a covered activity. The policy
states we will pay those sums that the insured becomes legally obligated to pay
as damages because of a professional incident in the course of performing
professional services for your resident health care facility. R., Vol. 28, at 4813
(emphasis added).
Because no causal connection exists between the failure to perform nursing
services and the damages alleged by the governmenti.e., over-billingValley
Forges policy does not cover the underlying lawsuit.
Lloyds Policy
Finally, OHara argues Lloyds policy should be interpreted broadly
because it includes the phrase arising out of within the definitions of medical
incident and business entity incident. OHara suggests the Colorado Supreme
Court has interpreted the phrase as creating a but-for test. See, e.g., Northern
Ins. Co. v. Ekstrom, 784 P.2d 320, 323 (Colo. 1989). Because the injury alleged
by the government would not have occurred but for the nursing facilitys
substandard care, the argument goes, this test is satisfied.

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This argument is misplaced. The Colorado Supreme Court subsequently

clarified that the phrase arising out of requires more than a mere but for
relation between the injury and the covered activity. See State Farm Mut. Auto.
Ins. Co. v. Kastner, 77 P.3d 1256, 1264 (Colo. 2003). [T]he claimant must
[also] show that the [covered activity] and the injury are directly related or
inextricably linked so that no independent significant act or [omission]
interrupted the but for causal chain between the covered [activity] and the
injury. Id. OHaras false representations to the government here constituted an
independent act that interrupted the causal chain between OHaras failure to
furnish adequate nursing services and the governments injurythe overpayment
of claims.
Because the alleged failure to furnish adequate nursing services is not
directly related or inextricably linked to the injury claimed by the
government, OHara failed to demonstrate that the insurers had a duty to defend.
2. Billing Practices
OHara alternatively argues the insurers had a duty to defend the company
because its billing practices constitute professional services covered by the
policies.
Professional liability policies do not insure against all liability incurred by
the insured. E.g. Medical Records Assocs., Inc. v. Am. Empire Surplus Lines Ins.
Co., 142 F.3d 512, 513 (1st Cir. 1998) (applying Massachusetts law); 23
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Appleman on Insurance 146.3[A] (2d ed., 2003). Instead, such policies often
use the term professional services or an equivalent phrase to describe the scope
of the coverage. 23 Appleman on Insurance 146.3[A]. Zurichs policies refer
to any service . . . of a professional nature. R., Vol. 27, at 4667, 4757. Valley
Forges policy uses the phrase professional services. R., Vol. 28, at 4815.
And, Lloyds policy refers to professional health care services. R., Vol. 29, at
491213. The terms are not defined in any of the policies, and Colorado courts
have not clarified the meaning of the phrase.
The definition of professional services most frequently relied on by courts
was first set forth in Marx v. Hartford Accident & Indemnity Co., 157 N.W.2d
870, 87172 (Neb. 1968); 23 Appleman on Insurance 146.3[A]. A
professional act or service is one arising out of a vocation, calling, occupation,
or employment involving specialized knowledge, labor, or skill, and the labor or
skill involved is predominantly mental or intellectual, rather than physical or
manual. Marx, 157 N.W.2d at 872; see also Noyes Supervision, Inc. v. Canadian
Indem. Co., 487 F. Supp. 433, 438 (D. Colo. 1980) (applying Colorado law)
(relying in part on Marx to determine the meaning of the term professional
services in an insurance contract); cf. Titan Indem. Co. v. Travelers Prop. Cas.
Co. of Am., 181 P.3d 303, 30708 (Colo. Ct. App. 2007) (declining to rely on
Marx and other cases in determining the meaning of the term professional
services because the phrase was defined in the policy).
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Although processing Medicare and Medicaid claims may be difficult and

time consuming, the activity does not characterize a professional service. The
court in Horizon West reached a similar conclusion. Horizon West, 214 F. Supp.
2d at 1079 (Horizon West . . . fails to offer any legal authority that submission
of Medicare and Medicaid claims constitutes anything other than ordinary
activities achievable by those lacking the relevant professional training and
expertise. (quoting Medical Records, 142 F.3d at 514 (applying Massachusetts
law)). 9
In fact, courts generally have concluded the preparation of bills or invoices
does not qualify as professional services. 23 Appleman on Insurance 146.3[B]
(collecting cases); see, e.g., Medical Records, 142 F.3d at 51516; see also Cohen
v. Empire Cas. Co., 771 P.2d 29, 31 (Colo. Ct. App. 1989). For example, in
Medical Records, a law firm sued a medical records processing business, alleging
the company overcharged for copies. The company referred the claim to its
insurer, arguing the applicable policy covered [l]oss which the Insured shall
become legally obligated to pay . . . by reason of any actual or alleged negligent
act, error or omission committed in the rendering or failure to render the
Professional Services stated in the Declarations. Medical Records, 142 F.3d at
9

Nor has OHara created a material fact dispute by proffering an affidavit

claiming that Medicare and Medicaid billing practices are difficult and complex.
Preparing bills is an ordinary activity of business, and, while federal regulations
may be complex, such an activity does not constitute a part of the professional
services of a nursing home.
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514. The Declarations only identified the professional services as Medical

Records Processor. Id.
In determining whether the policy covered the underlying lawsuit, the court
relied in part on the definition of professional services articulated in Marx. Id. at
515 (citing Marx, 157 N.W.2d at 872). It concluded the insurer did not have a
duty to defend the company because setting a price for photocopies and producing
accurate invoices did not require the level of particularized knowledge necessary
to be characterized as a professional service. See id. at 516. The processing of
Medicare and Medicaid claims likewise does not require a specialized
professional service.
Nor does Colorado law support a professional malpractice theory. For
example, in a case involving a claim of a lawyer refusing to pay for the legal
services of co-counsel, the Colorado Court of Appeals considered whether such a
claim could be covered as arising out of any act or omission of the Insured in
rendering or failing to render professional services for others in the Insureds
capacity as a lawyer. Cohen, 771 P.2d at 30 (emphasis added). Although the
court did not define the phrase professional services, it explained billing
practices were not covered by the policy,
Expenses incurred by a lawyer for maintaining his office, hiring
secretaries, investigators, consultants, expert witnesses, and
associates are incidental to a lawyers business. His failure to pay
either the cost of, or the reasonable value for, such business expenses
cannot rationally be deemed a failure to provide legal advice or
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assistance to others in his professional capacity as a lawyer.

Id. at 31.
In much the same way, OHaras billing practices are incidental to its
business as an operator of a nursing facility. OHaras failure to file accurate
reimbursement claims with the government is not a failure to provide services in
its professional capacity.
Because the underlying lawsuit does not allege an injury caused by an
activity covered by the insurance policies at issue in this case, the insurers do not
have a duty to defend or indemnify OHara.
IV. Additional Motions
Valley Forge and Zurich also filed a petition for permission to appeal the
district courts order declaring that Valley Forge and Zurich are entitled to
reimbursement for defense costs they have expended in defending OHara. We
dismiss the interlocutory appeal as improvidently granted because prevailing
parties generally lack standing to appeal a district court order. See Nicodemus v.
Union Pac. Corp., 318 F.3d 1231, 1234 (10th Cir. 2003). The insurers are
entitled to pursue any remaining claims against OHara on remand. 10
We also deny OHaras motion to certify to the Colorado Supreme Court
the question of whether Valley Forge and Zurich are entitled to recoup costs.
This court generally will not certify questions to a state supreme court when the
10

Because we dismiss the interlocutory appeal, no filing fee is due.

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requesting party seeks certification only after having received an adverse decision
from the district court. In re Midpoint Development, LLC, 466 F.3d 1201, 1207
(10th Cir. 2006). Finally, we grant Lloyds motion to correct its answer brief.
V. Conclusion
For the reasons stated above, we AFFIRM. The case is remanded to the
district court for further proceedings consistent with this opinion.

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