Message
×
loading..

AMA Discount, Inc. v. Seneca Specialty Insurance Co. , 697 F. App'x 354 ( 2017 )


Menu:
  •      Case: 16-31158      Document: 00514149679         Page: 1    Date Filed: 09/11/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-31158
    FILED
    September 11, 2017
    Lyle W. Cayce
    AMA DISCOUNT, INCORPORATED, doing business as                                         Clerk
    Chef Discount Market; ALI M. ALLAN; MOHAMMED ALLAN,
    Plaintiffs - Appellants Cross-Appellees
    v.
    SENECA SPECIALTY INSURANCE COMPANY,
    Defendant - Appellee Cross-Appellant
    Appeals from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:15-CV-2845
    Before KING, JONES, and ELROD, Circuit Judges.
    PER CURIAM:*
    The court has carefully reviewed the briefs and record in this appeal.
    Having done so, we conclude, contrary to a motions panel of this court, that the
    instant appeal does not fulfill the criteria for granting an interlocutory appeal
    pursuant to 28 U.S.C. § 1292(b). We therefore revoke the certification and
    dismiss the appeal.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-31158     Document: 00514149679     Page: 2   Date Filed: 09/11/2017
    No. 16-31158
    The parties here sought interlocutory appeal of two “controlling
    question[s] of law” as to which there is a “substantial ground for difference of
    opinion” and whose resolution may “materially advance the termination of the
    litigation.” 28 U.S.C. § 1292(b). The district court held, ruling on a summary
    judgment motion, that Seneca had a duty to defend its insured against trade
    dress infringement claims despite various exclusions in the insurance policy.
    The court also issued an opinion holding that factual disputes precluded
    summary judgment on whether Seneca had run afoul of the Louisiana statutes
    governing bad faith refusals to handle claims.        See La. R.S. §§ 22:1973,
    22:1892. The court then agreed that the issues surrounding Seneca’s duty to
    defend AMA Discount should be certified under Section 1292(b) largely
    because of a then-pending appeal from a contrary duty-to-defend ruling of the
    Southern District of Texas.
    The decisions of motions panels of this court on the propriety of
    interlocutory appeals are themselves interlocutory and can be reversed by an
    oral argument panel, like this one, which has the benefit of full briefing and a
    completed record. See United States v. Bear Marine Svcs., 
    696 F.2d 1117
    , 1120
    (5th Cir.1983).
    Having taken advantage of that better opportunity to consider the
    appeal, we note several critical points. First, the allegedly conflicting decision
    from another district court has been settled in the course of appeal.         See
    Awards Depot, L.L.C. v. Scottsdale Ins. Co., No. 16-20246, 
    2016 WL 9526594
    (5th Cir. Oct. 21, 2016). Second, the parties to this appeal do not actually
    challenge what law applies to the issue the district court found decisive. They
    agree that, under Louisiana law, an insurer’s duty to defend depends on the
    factual allegations and not the legal theories alleged in the relevant complaint.
    The parties merely dispute whether the district court accurately applied this
    standard when it held that Seneca had a duty to defend its insured. In sum,
    2
    Case: 16-31158     Document: 00514149679      Page: 3    Date Filed: 09/11/2017
    No. 16-31158
    the “controlling question of law” is one as to which there is no current
    “substantial ground for difference of opinion.” The additional issue, whether
    Seneca’s refusal to defend violates Louisiana law, was not explicitly discussed
    by the district court as fulfilling these threshold criteria. The parties’ agreed
    motion (filed in the district court) to seek interlocutory appeal suggested
    several reasons the bad faith issue might fulfill the criteria, including a lack of
    applicable jurisprudence and the parties’ own disagreement about the
    significance of a Louisiana Supreme Court decision.          See La. Bag Co. v.
    Audubon Indem. Co., 
    999 So. 2d 1104
    (La. 2008). Our independent review does
    not support a Section 1292(b) certification on this issue.
    Perhaps an interlocutory certification would “materially advance the
    termination” of this litigation. If that were the decisive question, of course,
    there would be few roadblocks to interlocutory appeals of legal issues. As the
    parties and the learned district court are aware, however, certification is
    strictly limited by statute, and the statutory criteria here were not met.
    Accordingly, we revoke the certification and DISMISS this appeal.
    3
    

Document Info

Docket Number: 16-31158

Citation Numbers: 697 F. App'x 354

Judges: King, Jones, Elrod

Filed Date: 9/11/2017

Precedential Status: Non-Precedential

Modified Date: 11/6/2024