United National Insurance v. Mundell Terminal Services, Inc. ( 2014 )


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  •      Case: 13-50052   Document: 00512509794    Page: 1   Date Filed: 01/23/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 13-50052                     January 23, 2014
    Lyle W. Cayce
    UNITED NATIONAL INSURANCE COMPANY,                                      Clerk
    Plaintiff–Appellee
    v.
    MUNDELL TERMINAL SERVICES, INC.,
    Defendant–Appellant
    SCARBROUGH MEDLIN & ASSOCIATES, INC.; KEITH D. PETERSON &
    COMPANY, INC.,
    Intervenor Defendants–Appellants
    Appeals from the United States District Court
    for the Western District of Texas
    Before SMITH, PRADO, and ELROD, Circuit Judges.
    EDWARD C. PRADO, Circuit Judge:
    Defendant Mundell Terminal Services, Inc. (“MTS”) and Intervenor
    Defendants Keith D. Peterson & Company, Inc. (“KDP”) and Scarbrough
    Medlin & Associates, Inc. (“SMA”) appeal from the district court’s grant of
    summary judgment in favor of Plaintiff United National Insurance Company
    (“UNIC”) in this declaratory judgment insurance coverage dispute. The case
    involves certain property owned by BAL Metals International Incorporated
    (“BMI”) that was stolen while MTS stored it in its warehouse. The district
    court held on summary judgment that UNIC’s first-party property insurance
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    No. 13-50052
    policy issued to MTS is excess to BMI’s own insurance policy and, therefore, no
    coverage exists under UNIC’s policy. The district court also denied KDP’s Rule
    59 motion to amend. For the reasons that follow, we affirm the district court
    in all respects.
    I.   FACTUAL AND PROCEDURAL BACKGROUND
    MTS operates a warehouse business in El Paso, Texas. In 2008, BMI
    entered into a contract with MTS to store copper sheeting at one of MTS’s
    warehouse facilities. On November 28, 2010 and December 5, 2010, thieves
    stole BMI’s copper, valued at $483,389.20, from the MTS warehouse.
    Before the thefts, MTS had purchased a first-party property insurance
    policy from UNIC (the “UNIC policy”). The “Building and Personal Property
    Coverage Form” in the UNIC policy states in pertinent part: “We will pay for
    direct physical loss of or damage to Covered Property at the premises described
    in the Declarations caused by or resulting from any Covered Cause of Loss.”
    The UNIC policy defines “Covered Property” to mean “the type of property
    described in this section, A.1, and limited in A.2., Property Not Covered, if a
    Limit of Insurance is shown in the Declarations for that type of property.”
    Section A.1 of the UNIC policy lists and defines the following three
    categories of Covered Property:
    (a) “Building”;
    (b) “[MTS’s] Business Personal Property located in or on the
    building described in the Declarations . . ., consisting of the
    following unless otherwise specified[:] . . . (3) Stock”; and
    (c) “Personal Property of Others that is: (1) In your care, custody
    or control; and (2) Located in or on the building described in the
    Declarations . . . .”
    Though the bulk of these provisions are standard-form, the parties had
    expanded section A.1.b to include “Stock,” elsewhere defined as “merchandise
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    held in storage or for sale, raw materials and in-process or finished goods,
    including supplies used in their packing or shipping.”           Moreover, the
    “Supplemental Declarations” page provides a $500,000 coverage limit for
    “Stock, including Property of Others while in the insured’s care, custody and
    control.” A coverage extension permitted the parties to “extend the insurance
    that applies to [MTS’s] Business Personal Property to apply to . . . Personal
    property of others in [its] care, custody or control” (the “Coverage Extension”).
    Coverage under this extension is limited to claims of $2,500 or less and it
    further provides that “[UNIC’s] payment for loss of or damage to personal
    property of others will only be for account of the owner of the property.”
    Section A.2 limits section A.1 and lists seventeen categories of property
    not covered under the UNIC policy. Under section A.2.k (“Exclusion K”), in
    particular, “Covered Property does not include: . . . Property that is covered
    under another coverage form of this or any other policy in which it is more
    specifically described, except for the excess of the amount due (whether you
    can collect on it or not) from that other insurance[.]”
    Aon Risk Solutions issued an insurance policy to BMI (the “Aon policy”),
    which covers the stolen copper. The Aon policy has a policy limit of $25 million.
    The UNIC policy has a policy limit of $500,000.
    In response to MTS’s timely claims for the copper thefts, UNIC sent a
    “reservation of rights” letter to MTS on December 31, 2010. On January 5,
    2011, pursuant to the Aon policy, Aon paid BMI $483,389.00 for the loss. On
    February 24, 2011, Aon, as subrogee of BMI, filed a law suit against MTS (the
    “BMI lawsuit”). In March 2011, MTS requested that UNIC defend it in the
    BMI lawsuit. UNIC rejected MTS’s request because the UNIC policy did not
    provide liability coverage of any kind.
    On December 15, 2011, UNIC brought this declaratory judgment action.
    In its suit, UNIC sought the following three declarations: (1) UNIC has no duty
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    to defend or indemnify MTS against the claims asserted in the BMI suit
    because the UNIC policy does not provide liability coverage to MTS; (2)
    Exclusion K of the UNIC policy precludes coverage for the thefts of BMI’s
    copper; and (3) UNIC has no duty to reimburse MTS or BMI for amounts paid
    by Aon for the full value of the stolen copper because the UNIC policy is excess
    to the Aon policy under section G.2 of the “Commercial Property Conditions” of
    the UNIC policy.
    On June 20, 2012, UNIC moved for summary judgment in its declaratory
    judgment action, which MTS and BMI opposed. On July 25, 2012, KDP filed
    an intervenor complaint and, on August 13, 2012, SMA did the same. KDP, as
    the authorized managing general underwriter for UNIC’s forest products
    industry insurance, issued the UNIC policy. SMA, a Texas insurance broker,
    requested the coverage for MTS. KDP and SMA separately opposed UNIC’s
    motion for summary judgment.
    On December 21, 2012, the district court granted summary judgment in
    favor of UNIC on the first and second declarations. The district court found
    that “there is no genuine dispute as to the fact that the UNIC policy does not
    impose upon UNIC any duty to defend or indemnify MTS in the BMI suit,” and
    that “there is no genuine dispute as to the material fact that the Exclusion (k)
    provision precludes coverage for the thefts of the copper under the UNIC
    policy.” The district court did not reach the third declaration regarding UNIC’s
    alternative claim that section G.2 of the “Commercial Property Conditions”
    precludes coverage for the thefts. KDP then filed a Motion to Alter or Amend
    Judgment pursuant to Federal Rule of Civil Procedure 59(e), which the court
    denied on February 4, 2013.
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    MTS, KDP, and SMA (collectively “Appellants”) timely appealed the
    district court’s judgment excluding coverage. 1 KDP also appeals the district
    court’s denial of its Rule 59 motion to amend.
    II.   JURISDICTION
    Appellants seek review of a final judgment of the district court.
    Accordingly, this Court has jurisdiction pursuant to 28 U.S.C. § 1291.
    III.   STANDARD OF REVIEW
    We review the district court’s ruling on summary judgment de novo,
    applying the same standard as the district court in the first instance. Turner
    v. Baylor Richardson Med. Ctr., 
    476 F.3d 337
    , 343 (5th Cir. 2007) (citation
    omitted).     Having diversity jurisdiction over this action, we apply the
    substantive law of the forum state. See Erie R.R. Co. v. Tompkins, 
    304 U.S. 64
    , 78 (1938). In the underlying action, Texas is the forum state and, thus,
    Texas law governs this dispute.
    Texas courts “construe insurance policies according to the same rules of
    construction that apply to contracts generally.” Don’s Bldg. Supply, Inc. v.
    OneBeacon Ins. Co., 
    267 S.W.3d 20
    , 23 (Tex. 2008).                  When interpreting
    insurance contracts, courts seek “to ascertain the true intentions of the parties
    as expressed in the instrument.” Coker v. Coker, 
    650 S.W.2d 391
    , 393 (Tex.
    1983). To this end, Texas courts “examine and consider the entire writing in
    an effort to harmonize and give effect to all the provisions of the contract so
    that none will be rendered meaningless,” id.; give policy terms “their ordinary
    and commonly understood meaning unless the policy itself shows the parties
    intended a different, technical meaning,” Don’s Bldg. Supply, Inc., 
    267 S.W.3d 1
     MTS, KDP, and SMA each filed their own briefing. MTS’s brief does not, however,
    raise any independent arguments, merely incorporating SMA’s brief. KDP’s brief also largely
    mirrors SMA’s brief. Accordingly, this opinion primarily references SMA’s brief even though
    all three appellants have filed briefs.
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    at 23; and “strive to honor the parties’ agreement and not remake their
    contract by reading additional provisions into it,” Gilbert Tex. Constr., L.P. v.
    Underwriters at Lloyd’s London, 
    327 S.W.3d 118
    , 126 (Tex. 2010).
    Moreover, courts must decide if a contract contains ambiguous
    provisions. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 
    940 S.W.2d 587
    , 589 (Tex. 1996) (“Whether a contract is ambiguous is a question
    of law . . . .”). If the contract “can be given a definite or certain meaning as a
    matter of law,” courts will not consider the contract to be ambiguous. 
    Id. A provision
    is not ambiguous “simply because the parties interpret a policy
    differently.” 
    Gilbert, 327 S.W.3d at 133
    ; Kelley–Coppedge, Inc. v. Highlands
    Ins. Co., 
    980 S.W.2d 462
    , 465 (Tex. 1998). Rather, a court will find a term
    ambiguous if “the language of a policy or contract is subject to two or more
    reasonable interpretations.” Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. CBI
    Indus., Inc., 
    907 S.W.2d 517
    , 520 (Tex. 1995). If a contract is ambiguous, such
    ambiguity will be construed against the insurer. Gonzalez v. Mission Am. Ins.
    Co., 
    795 S.W.2d 734
    , 737 (Tex. 1990) (“Where an insurance policy’s provisions
    are ambiguous or inconsistent, and is [sic] subject to two or more reasonable
    interpretations, then that construction which affords coverage will be the one
    adopted.”).
    IV.   DISCUSSION
    We first address the district court’s grant of UNIC’s motion for summary
    judgment and then turn to the district court’s denial of KDP’s Rule 59 motion.
    A. UNIC’s Motion for Summary Judgment
    At issue is whether the theft of the copper is covered under the UNIC
    policy. Under section A.1, “Covered Property” means (1) the type of property
    described in section A.1, (2) subject to the limitations in section A.2, (3) for
    which the Declarations show a limit of insurance. The parties do not dispute
    that the copper is property described in section A.1, or that the Supplemental
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    Declaration page states a limit in the amount of $500,000. Rather, the dispute
    primarily focuses upon whether Exclusion K of the UNIC policy precludes
    coverage for the thefts of the stolen copper.
    Exclusion K is commonly characterized as an excess “other insurance”
    clause, which will vary, limit, or eliminate the insurer’s obligation to reimburse
    the insured where other insurance may cover the same loss. 15 Couch on
    Insurance § 219:1 (2009 & Supp. 2012). “The well-known and evident purpose
    of such ‘other insurance’ [clauses] is to avoid and guard against the moral
    hazards and attendant temptations to fraud which might be reasonably
    expected to arise out of the existence of undisclosed concurrent policies of
    insurance having identity of scope and of subject matter.” Dubuque Fire &
    Marine Ins. Co. v. Reynolds Co., 
    128 F.2d 665
    , 666 (5th Cir. 1942).
    Under Texas law, “[t]he provisions of an ‘other insurance’ clause apply
    only when the ‘other’ insurance covers the same property and interest therein
    against the same risk in favor of the same party.” Hartford Cas. Ins. Co. v.
    Exec. Risk Specialty Ins. Co., No. 05-03-00546-CV, 
    2004 WL 2404382
    , at *2
    (Tex. App.—Dallas Oct. 28, 2004, pet. denied) (mem. op.). Applying this test,
    the parties do not dispute that the two policies cover the same property—BMI’s
    copper—against the same risk of theft. This leaves to our determination: (1)
    what interests in the copper the policies cover, and (2) in whose favor. We
    address each in turn.
    1. Coverage of the Same Interest
    The parties agree that, by storing BMI’s goods in MTS’s warehouse, the
    two formed a bailor–bailee relationship. Texas law allows a bailee to insure
    bailed goods for their full value, for the benefit of itself and the bailor. Anchor
    Cas. Co. v. Robertson Transp. Co., 
    389 S.W.2d 135
    , 138 (Tex. Civ. App.—
    Corpus Christi 1965, writ ref’d n.r.e.). Alternatively, a bailee may insure only
    its limited interest in the bailed goods by employing express language to that
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    effect. See Cumis Ins. Soc., Inc. v. Republic Nat’l Bank of Dall., 
    480 S.W.2d 762
    , 764 (Tex. Civ. App.—Dallas 1972, writ ref’d n.r.e.). Where such limiting
    language is absent from an insurance policy, Texas law presumes that a bailee
    has insured both its interest and the bailor’s interest when the bailee takes an
    insurance policy on the bailed goods. See 
    id. at 764–65.
          SMA argues, in two steps, that this presumption should not apply here.
    First, SMA asserts that the term “interest” as used in the “other insurance”
    test is properly construed as “insurable interest.” Second, SMA contends that
    the UNIC policy and the Aon policy insure distinct “insurable interests.” In
    SMA’s view, the UNIC policy insured MTS’s “insurable interest” as the bailee
    of the copper, which specifically includes its duty to account and return the
    copper to BMI, and its pecuniary interest in earning income, retaining
    customers, and generating goodwill. In contrast, the Aon policy insured only
    “BMI’s insurable interest as the owner of the copper.” We disagree with SMA
    at both steps.
    First, SMA does not point to any Texas case, and we have not found any,
    that utilizes “insurable interest” when applying the “other insurance” test. On
    the contrary, Texas law applies the doctrine of “insurable interest” when
    assessing the validity of insurance contracts, see Jones v. Tex. Pac. Indem. Co.,
    
    853 S.W.2d 791
    , 794 (Tex. App.—Dallas 1993, no writ), which is not at issue
    here. The purpose of the “insurable interest” doctrine is to discourage the use
    of insurance for illegitimate purposes, such as wagering.        E.g. Valdez v.
    Colonial Cnty. Mut. Ins. Co., 
    994 S.W.2d 910
    , 914 (Tex. App.—Austin 1999,
    pet. denied); Pac. Fire Ins. Co. v. John E. Morris Co., 
    12 S.W.2d 971
    , 971 (Tex.
    Comm’n App. 1929). SMA offers no support for its proposition that “insurable
    interest” as used in that context should be similarly applied in the “other
    insurance” test, and we reject SMA’s attempt to do so.
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    Second, SMA fails to cite any language in the UNIC policy that limits
    coverage to MTS’s interests as bailee. Thus, under Texas law, we presume that
    MTS has insured both its interest and BMI’s interest. Even if SMA can point
    to distinct “insurable interests” between the UNIC policy and the Aon policy,
    their coverage “need not be completely coextensive to be considered ‘other
    insurance’ as to each other.” See Nutmeg Ins. Co. v. Emp’rs Ins. Co., No. 3:04-
    CV-1762, 
    2006 U.S. Dist. LEXIS 7246
    , at *36 (N.D. Tex. Feb. 24, 2006) (citing
    Am. Cent. Ins. Co. v. Harrison, 
    205 S.W.2d 417
    , 420 (Tex. Civ. App.—Eastland
    1947, writ ref’d n.r.e.)). Both policies cover at least BMI’s interest in the copper
    itself. This sufficiently constitutes coverage of the same interest under the
    “other insurance” test. See Liverpool & London & Globe Ins. Co. v. Delta Cnty.
    Farmers’ Ass’n, 
    121 S.W. 599
    , 601 (Tex. Civ. App. 1909, writ ref’d) (“[W]herever
    there are two separate insurers liable for the same loss the fact that one policy
    covers more property or wider risks than the other does not prevent the
    insurance being double on the subjects covered by both.” (citations omitted)).
    2. Coverage in Favor of the Same Party
    To help determine which party the UNIC policy favors, we first resolve
    an underlying dispute: whether the stolen copper is properly classified as
    “[MTS’s] Business Personal Property” under section A.1.b or as “Personal
    Property of Others” under section A.1.c. SMA categorizes the copper as MTS’s
    stock under section A.1.b, which generally covers “[MTS’s] Business Personal
    Property located in or on the building described in the Declarations” and to
    which the parties added the sub-category “Stock.” SMA argues that BMI’s
    copper is “Stock” under A.1.b because the Supplemental Declarations provide
    a coverage limit for “Stock, including Property of Others while in the insured’s
    care, custody and control.”
    According to UNIC, the copper falls under section A.1.c, which covers
    “Personal Property of Others that is: (1) In your care, custody, and control; and
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    (2) Located in or on the building described in the Declarations.” In support,
    UNIC relies upon the plain language of the policy and contends that the copper
    was owned by BMI, and thus is Personal Property of Others under section
    A.1.c. Even if the copper is considered “Stock,” UNIC asserts that the coverage
    for “Stock, including Property of Others” as stated in the Supplemental
    Declarations falls under section A.1.c by way of the Coverage Extension.
    Finally, UNIC argues that we should reject SMA’s argument that the copper
    falls under A.1.b because this argument is being raised for the first time on
    appeal.
    We agree with UNIC’s final point and hold that SMA waived the issue of
    whether coverage for the stolen copper would fall under section A.1.b or section
    A.1.c. See Conley v. Bd. of Trs. of Grenada Cnty. Hosp., 
    707 F.2d 175
    , 178 (5th
    Cir. 1983) (stating as a “general principle of appellate review,” failure to raise
    an argument before the district court waives that argument, unless the issue
    is a purely legal one and the asserted error is so obvious that the failure to
    consider it would result in a miscarriage of justice); see also XL Specialty Ins.
    Co. v. Kiewit Offshore Servs. Ltd., 
    513 F.3d 146
    , 153 (5th Cir. 2008) (“An
    argument not raised before the district court cannot be asserted for the first
    time on appeal.” (citing Stokes v. Emerson Elec. Co., 
    217 F.3d 353
    , 358 n.19
    (5th Cir. 2000))). SMA does not dispute that it failed to argue before the district
    court that coverage falls under section A.1.b, despite UNIC’s assertion on
    summary judgment that section A.1.c controls. Rather, SMA replies only that
    it did not “advance a new theory or issue on appeal” because it had argued
    before the district court that:
    [C]overage exists because MTS had a reasonable expectation of
    coverage and such interpretation was reasonable; under Texas
    rules of construction, MTS’s reasonable interpretation must be
    adopted; and because the term “other insurance” is not defined in
    the Policy, the term is ambiguous and consistent with controlling
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    authorities MTS’s reasonable           interpretation that provided
    coverage must be adopted.
    Nothing in these arguments remotely indicates an argument that coverage
    applies under section A.1.b. SMA’s argument regarding MTS’s “reasonable
    expectation of coverage,” for example, was simply that MTS reasonably
    expected that it was procuring coverage that would cover a storage customer’s
    stolen property. SMA suggested nothing about which category of property that
    coverage may be provided under, much less contested UNIC’s position that
    section A.1.c controlled. Similarly devoid of any argument that coverage is
    provided under section A.1.b., SMA’s argument concerning MTS’s “reasonable
    interpretation” was only that “other insurance”—for purposes of the “other
    insurance” test—must be insurance that benefits MTS. Broadly arguing that
    “other insurance” must benefit MTS, however, does not encapsulate every
    possible theory and argument in support thereof. Neither of these arguments
    raised the section A.1.b argument “to such a degree that the trial court may
    rule on it.” See XL 
    Specialty, 513 F.3d at 153
    (citation and internal quotation
    marks omitted). The issue is waived and, thus, the stolen copper is properly
    classified as property under section A.1.c, subject to the limitations set forth in
    section A.2.
    Continuing to apply the “other insurance” test, then, we hold that both
    the UNIC policy and the Aon policy are in favor of BMI. Section A.1.c of the
    UNIC policy provides that UNIC’s “payment for loss of or damage to personal
    property of others will only be for the account of the owner of the property.” As
    the district court correctly noted, “[t]he plain meaning of the phrase ‘for the
    account of’ suggests that the [UNIC] policy covers the personal property of
    others on behalf of, or for the benefit of, the owners of the property.”
    Furthermore, as the district court also observed, section A.1.c limits any
    payment “only” to the account of the owner of the personal property, thereby
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    demonstrating the parties’ intent to solely benefit the owner of the property
    and not the insured. Consequently, because the owner of the copper is BMI,
    any loss incurred under the UNIC policy would actually be paid to BMI, and
    thus the UNIC policy is in favor of BMI. As there is no dispute that the Aon
    policy is also in BMI’s favor, this element of the “other insurance” test is also
    satisfied.
    The UNIC policy and the Aon policy thus cover the same property and
    interest therein, i.e., BMI’s interest in the copper; against the same risk, i.e.,
    theft; and in favor of the same party, i.e., BMI. We therefore hold that the Aon
    policy constitutes “other insurance” with respect to the UNIC policy. Pursuant
    to Exclusion K, no coverage exists under the UNIC policy for the thefts of BMI’s
    copper.
    SMA complains that “[t]he implications of [such a holding] are
    profound—MTS now faces a subrogation claim that would not exist if UNIC
    honored the property insurance policy MTS purchased, and for which payment
    of loss is not dependent on fault.” To be sure, “dueling coinsurers must place
    the interests of their insureds before their own,” Amerisure Ins. Co. v.
    Navigators Ins. Co., 
    611 F.3d 299
    , 308 (5th Cir. 2010), and insurers must “‘give
    dominant consideration to the rights of the insured,’” 
    id. (quoting Hardware
    Dealers Mut. Fire Ins. Co. v. Farmers Ins. Exch., 
    444 S.W.2d 583
    , 588–89 (Tex.
    1969)). That MTS now must face a subrogation claim, however, has no bearing
    here because the UNIC policy is a first-party property policy and does not
    provide liability coverage of any kind.       “Property insurance policies are
    intended solely to indemnify the insured for his actual monetary loss by the
    occurrence of the disaster. . . . Liability policies, on the other hand, insure
    against loss arising out of legal liability, usually based upon the assured’s
    negligence.” Highlands Ins. Co. v. City of Galveston, Tex., 
    721 S.W.2d 469
    , 471
    (Tex. App.—Houston [14th] 1986, writ ref’d n.r.e.) (citation and internal
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    quotation marks omitted). While a liability policy may insure against a loss
    arising out of the subrogation claim MTS now faces, MTS chose not to procure
    such insurance. We reject SMA’s attempt to inject a concern regarding the
    subgrogation claim where MTS has not retained liability insurance and where
    UNIC, as the district court found, has no duty to defend or indemnify.
    Accordingly, we affirm the district court’s grant of summary judgment.
    B. KDP’s Rule 59 Motion to Amend
    Following the district court’s grant of summary judgment in favor of
    UNIC, KDP brought a motion to amend the judgment under Federal Rule of
    Civil Procedure 59(e), alleging factual and legal conflicts between the district
    court’s Final Judgment and its accompanying Memorandum Opinion and
    Order. The Final Judgment stated that “[n]o coverage exists under Policy No.
    KPM0000170 for the thefts of [BMI’s] copper occasioned on or about November
    25, 2010, and December 4, 2010, at [MTS’s] warehouse.” On appeal, KDP
    argues that the district court erred in denying its request to amend or alter the
    judgment to reflect that coverage existed under the undisputed terms of the
    UNIC policy—as stated in the Memorandum Opinion and Order—and to
    clarify or correct the Final Judgment to reflect that the “no coverage” finding
    was the result of the application of a policy exclusion. KDP asserts that this
    “risks a manifest injustice” against KDP because the judgment, left unaltered,
    “raises significant risk of improper application of collateral estoppel or res
    judicata effects.”
    “A Rule 59(e) motion must clearly establish either a manifest error of law
    or fact or must present newly discovered evidence and cannot raise issues that
    could, and should, have been made before the judgment issued.” Advocare Int’l
    LP v. Horizon Labs., Inc., 
    524 F.3d 679
    , 691 (5th Cir. 2008) (internal quotation
    marks and footnotes omitted). This Court reviews “the denial of a Rule 59(e)
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    motion only for abuse of discretion.” Simon v. United States, 
    891 F.2d 1154
    ,
    1159 (5th Cir. 1990).
    We discern no conflict between the district court’s final judgment and its
    memorandum opinion. As the district court explained in its order denying the
    motion, “the ultimate issue before the Court was not whether the thefts of the
    copper were or were not covered under the declaration pages of the policy—in
    isolation from the provisions in the rest of UNIC’s policy . . . but was whether
    ‘the thefts of the copper [were] not covered under its policy.’” KDP does not
    allege that the district court erred in this formulation of the issue. To resolve
    this issue, the district court first found that the copper was a type of property
    described in section A.1 before finding that a limitation in section A.2 applied.
    Neither finding, however, is in conflict with the court’s declaration of “no
    coverage” because, under the policy as a whole, section A.2 limits section A.1.
    The district court therefore did not abuse its discretion in denying KDP’s Rule
    59 motion. Accordingly, we affirm.
    V.   CONCLUSION
    For the foregoing reasons, we AFFIRM the district court’s grant of
    summary judgment in favor of UNIC and AFFIRM the district court’s denial
    of KDP’s Rule 59 motion.
    14