Miller v. Ruth And Sam Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 24, 2001
• Docket: 01-40009
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40009 Summary Calendar

DAVID LYNN MILLER,

Plaintiff-Counter Defendant-Appellee, and

LLOYD PEARSON, Plaintiff-Appellee, v.

RUTH AND SAM, INC.,

Defendant-Cross Defendant-Cross Claimant- Appellee, and

AMOCO OIL COMPANY,

Defendant-Counter Claimant-Cross Claimant- Cross Defendant-Appellee, v.

PRO-MAR INSURANCE UNDERWRITERS, INC.,

Intervenor-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-99-CV-269 -------------------- September 21, 2001

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

This appeal arises out of the denial of Pro-Mar Insurance

Underwriters, Inc.’s (Pro-Mar) request for relief as an

intervenor in a suit between Pro-Mar’s insured, Ruth and Sam,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-40009 -2-

Inc. (R&S), Amoco, and certain personal injury plaintiffs. Pro-

Mar had sought to recover by way of subrogation what it had paid

to R&S and others for the loss of R&S’s vessel, the F/V MISS RITA

J. Pro-Mar contended that in light of a subrogation clause in

the hull insurance policy issued to R&S, it had a contractual

right to subrogation.

The district court denied Pro-Mar’s contractual subrogation

claim, finding that it failed to offer a certified copy of its

policy reflecting its right of subrogation. Pro-Mar did not file

or offer into evidence a certified or otherwise authenticated

copy of what it contended was the applicable policy, i.e., one

with a subrogation clause. Pro-Mar was also given the

opportunity to call witnesses to testify that the applicable hull

policy had a subrogation clause, but failed to do so. With only

the certified copy of the policy provided by R&S, which did not

include a subrogation clause, the district court correctly

determined that the copy of the policy provided by R&S was a true

and correct copy of the applicable policy and governed the

resolution of the subrogation issue.

Although Pro-Mar subsequently filed a certified copy of the

policy which contained the subrogation clause on which it based

its right to subrogation, it was filed in conjunction with Pro-

Mar’s motion for reconsideration, which was not considered by the

court because of Pro-Mar’s failure to comply with the notice of

deficient pleading. As the certified copy of the policy was not

considered by the district court, this court likewise refuses to

consider the policy on appeal. See Theriot v. Parish of No. 01-40009 -3-

Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“[a]n

appellate court may not consider new evidence furnished for the

first time on appeal and may not consider facts which were not

before the district court at the time of the challenged ruling”).

Because the only certified policy before the district court did

not contain a subrogation clause, the district court did not err

in determining that Pro-Mar did not have a contractual right of

subrogation. Love v. Nat’l Med. Enters., 230 F.3d 765, 780 (5th

Cir. 2000)(district court properly rejected claim of contractual

subrogation where there was no evidence of any contract giving

rise to such subrogation rights).

We also reject Pro-Mar’s argument that the district court’s

denial of its request for subrogation immediately after granting

its right to intervene violated its due process rights. R&S

filed its unopposed motion for apportionment on August 15, 2000.

Pro-Mar filed its motion for leave to file a complaint of

intervention, complaint of intervention, and opposition to the

motion for apportionment on August 22, 2000. Pro-Mar was given

notice of the September 7, 2000, “motion hearing” on September 5,

2000. At the September 7 hearing, the district court withheld

its ruling on the various motions and gave Pro-Mar another chance

to present evidence in opposition to the motion for

apportionment.

The motion for apportionment was specifically noticed to be

heard on September 21, 2000. At that time, Pro-Mar was given the

opportunity to provide a certified or otherwise authenticated

copy of what it contended was the relevant policy and call No. 01-40009 -4-

witnesses to testify that the applicable hull policy had a

subrogation clause. Pro-Mar was also given the opportunity to

show that R&S was not entitled to the entire settlement sum, in

addition to the proceeds from the hull policy. Pro-Mar did

neither. Pro-Mar never complained that it did not have adequate

notice of the hearing. Nor did Pro-Mar ask for additional time

to provide evidence.

Lastly, Pro-Mar avers that the district court erred in

approving the settlement agreement between R&S and Amoco, which

it contends awarded R&S an amount in excess of its interest and

which was directly contrary to the supporting evidence. Pro-Mar

avers that it is entitled to the full recovery of the $140,000

paid to R&S under the insurance policy.

R&S offered relevant portions of Alvin Edward Smith’s

deposition and the survey of the vessel to show that it was not

fully compensated by Pro-Mar’s payment of $140,000 and that it

was only made whole by the additional payment of the $185,000

settlement agreed to by Amoco. Pro-Mar offered no evidence

concerning R&S’s actual losses, much less any contradictory

evidence. Nor did it offer any evidence that R&S would recover

more than it was entitled if the entire settlement sum was

allocated to R&S despite being given the opportunity to do so.

In light of the evidence before the district court, the court

correctly concluded that R&S would not be made whole unless the

entire settlement amount was allotted to it.

The district court did not err in determining that Pro-Mar

did not have a right to contractual subrogation, that all of the No. 01-40009 -5-

agreed settlement funds should be allocated to R&S, and

dismissing the claims of R&S, Pro-Mar, and the hull underwriters

against Amoco with prejudice. The judgment of the district court

is AFFIRMED.