     Case: 12-30332       Document: 00512135782         Page: 1     Date Filed: 02/05/2013




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                                            FILED
                                                                         February 5, 2013

                                       No. 12-30332                        Lyle W. Cayce
                                                                                Clerk

JOHN KERR,

                                                  Plaintiff - Appellant
v.

STATE FARM FIRE & CASUALTY COMPANY,

                                                  Defendant - Appellee



                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                              USDC No. 3:11-CV-113


Before DeMOSS, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
         Plaintiff-appellant John Kerr appeals the district court’s grant of summary
judgment in favor of defendant-appellee State Farm Fire & Casualty Company
(“State Farm”). We review de novo, applying the same standard as the district
court. Hill v. Carroll Cnty., Miss., 587 F.3d 230, 233 (5th Cir. 2009). Summary
judgment is appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a).

         *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30332     Document: 00512135782      Page: 2   Date Filed: 02/05/2013



                                  No. 12-30332

      In October 2010, Kerr contacted State Farm and reported that his bass
boat and fishing equipment had been stolen from his home. State Farm provided
insurance on the boat at the time it was reported stolen. Under the insurance
policy, Kerr was required, upon the loss of covered property, to provide State
Farm with “records and documents [that it] request[ed],” and to “submit to
examinations under oath” (“EUO”). The policy also provided that “[n]o action
shall be brought [against State Farm] unless there has been compliance with the
policy provisions.” In November 2010, State Farm requested that Kerr provide
an EUO. Kerr refused, instead deciding to retain counsel and file suit against
State Farm. The district court granted summary judgment in favor of State
Farm on the basis that Kerr’s refusal to submit to an EUO and provide
requested documents constituted a material breach of the insurance policy,
precluding Kerr from recovering in a suit under the policy.
      In Louisiana, insurance policies are “subject to the general rules of
contract interpretation as set forth in [the] civil code.” Succession of Fannaly v.
Lafayette Ins. Co., 01-1144 (La. 1/15/02); 805 So. 2d 1134, 1137. “When the words
of an insurance contract are clear and explicit and lead to no absurd
consequences, courts must enforce the contract as written.” Id. As this court has
recently explained, under Louisiana law the “[f]ailure of an insured to cooperate
with the insurer has been held to be a material breach of the contract and a
defense to suit on the policy” and such failure to cooperate “may be manifested
by a refusal to submit to an examination under oath or a refusal to produce
documents.” Hamilton v. State Farm Fire & Cas. Ins. Co., 477 F. App’x 162, 165
(5th Cir. 2012) (unpublished) (internal quotation marks omitted); see also Lee v.
United Fire & Cas. Co., 607 So. 2d 685, 688 (La. Ct. App. 1992) (“[T]he failure
of an insured to cooperate with the insurer has been held to be a material breach
of the contract and a defense to a suit on the policy.”). Kerr argues that “[f]or
coverage to be excluded for an insured’s violation of an insurance policy’s

                                        2
     Case: 12-30332       Document: 00512135782         Page: 3     Date Filed: 02/05/2013



                                       No. 12-30332

cooperation clause, the breach on the part of the insured must be both material
and prejudicial to the insurer.”1 Williams v. Lowe, 2002-355 (La. App. 5 Cir.
10/16/02); 831 So. 2d 334, 336.
       On appeal, Kerr acknowledges that he refused to submit to an EUO, but
argues that State Farm has failed to show prejudice.2 With its motion for
summary judgment, State Farm produced affidavits from members of its Special
Investigative Unit stating that an EUO is an important tool in the claim
investigation process and that by refusing an EUO, Kerr impeded State Farm’s
ability to gather information about the claim. This evidence was sufficient to
show that the refusal to take an EUO prejudiced State Farm’s investigative
process. See Mosadegh v. State Farm Fire & Ins. Co., 330 F. App’x 65, 66 (5th
Cir. 2009) (unpublished) (holding that under Louisiana law, the appellee
insurance company “has certainly demonstrated prejudice to its investigation
and adjustment capacity through [plaintiff-appellant’s] unwillingness to submit
to the required examinations [under oath].”); see also Lee, 607 So. 2d at 688
(noting that when determining whether an insured’s breach of a cooperation
clause should constitute a defense to a suit on the policy, “[a]n outright refusal
to submit to an examination [under oath] is the easy case.” (quoting Stover v.
Aetna Cas. & Sur. Co., 658 F. Supp. 156, 160 (S.D.W.Va. 1987))). Accordingly,
the judgment of the district court is AFFIRMED.




       1
         State Farm argues that prejudice need not be shown when an EUO is refused in a
first-party case. We need not decide this question as we conclude that State Farm proved
prejudice.
       2
         Kerr alternatively argues that the district court should have dismissed the case
without prejudice. However, to the extent that this argument is separate and distinct from the
argument that State Farm failed to show prejudice, Kerr does not point to any supporting
authority. Accordingly, the argument is waived. See Kohler v. Englade, 470 F.3d 1104, 1114
(5th Cir. 2006).

                                              3
