                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT


                          No. 01-60830
                        Summary Calendar


          AMERICAN NATIONAL GENERAL INSURANCE COMPANY,

                                                Plaintiff-Appellee,
                               and

         STATE FARM FIRE AND CASUALTY INSURANCE COMPANY,

                                     Intervenor Plaintiff-Appellee,

                             versus

                      L.T. JACKSON, ET AL.,

                                                        Defendants,

                          L.T. JACKSON,

                                               Defendant-Appellant,

                               and

                       L.T. JACKSON TRUST,

                        Defendant-Intervenor Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
             for the Southern District of Mississippi
                         (3:99-CV-885-LN)
_________________________________________________________________
                           May 29, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges:

PER CURIAM:*


     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
     At issue is whether appellate jurisdiction exists in the light

of the district court’s not having entered a separate judgment,

contrary to Federal Rule of Civil Procedure 58, and, if there is

such jurisdiction, whether summary judgment was properly entered

declaring Plaintiffs American National General Insurance Company

and State Farm Fire and Casualty Insurance Company have no duty to

defend or indemnify Defendants L.T. Jackson and L.T. Jackson Trust.

AFFIRMED.

                                        I.

     In the action at hand, Plaintiffs seek a declaratory judgment

that they have no duty, pursuant to insurance policies issued to

Jackson, to defend or indemnify Defendants with respect to an

action filed by the United States of America claiming sexual

discrimination in violation of the Fair Housing Act, 42 U.S.C. §

3601 et seq.      The Government contended that Jackson, as the owner

or manager of residential rental properties, made physical sexual

advances toward female tenants and explicitly based the terms,

conditions, and privileges of their tenancy on granting sexual

favors.

     For    the   action   at   hand,       summary   judgment   was   granted,

declaring Plaintiffs had no duty to defend or indemnify Defendants.

For the policies issued by American National, and noting that they

provided coverage only for accidental occurrences of bodily injury,



under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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property damage, or personal injury and provided further that

losses resulting from intentional acts were not covered, the

district court declared American National had no duty under the

policies because of an exclusion for bodily injury resulting from

sexual molestation.

     For the State Farm policies, the district court again noted

they provided coverage only for accidental occurrences of bodily

injury, property damage, or personal injury and excluded from

coverage damages resulting from intentional conduct.                   In declaring

State Farm had no duty under the policies, the district court held

there was no occurrence, because any personal injury inflicted was

not the result of accidental conduct.

                                        II.

     Because a separate judgment was not entered, we must decide

whether   we    have   appellate      jurisdiction.         If   we   do,   we   must

determine whether summary judgment was proper.

                                        A.

     In   the    “MEMORANDUM        OPINION   AND    ORDER”      granting   summary

judgment, the district court stated:               “A separate judgment will be

entered in accordance with Rule 58 of the Federal Rules of Civil

Procedure”.       American     Nat’l    Gen.       Ins.   Co.    v.   Jackson,    No.

3:99CV885LN,     at    22   (S.D.    Miss.    26    Sept.   2001)     (unpublished)

(Jackson-USDC).        However, a separate judgment was not entered.

Rule 58 provides:      “Every judgment shall be set forth on a separate


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document.   A judgment is effective only when so set forth and when

entered as provided in Rule 79(a)[setting forth the filing duties

of the district court clerk of court]”.                  FED. R. CIV. P. 58.

      The   lack   of   a        separate       judgment,      alone,    is    not    a

jurisdictional bar to this appeal.                 Instead, “where the parties

voluntarily   proceed       on    appeal        from    an   otherwise    final      and

appealable order but lack a Rule 58 separate judgment, the courts

of appeals may hear the appeal”.               Baker v. Mercedes Benz of N. Am.,

114 F.3d 57, 60 (5th Cir. 1997); see Bankers Trust Co. v. Mallis,

435 U.S. 381, 384-85 (1978) (“it could not have been intended that

the separate-document requirement of Rule 58 be such a categorical

imperative that the parties are not free to waive it”; “[i]f, by

error, a separate judgment is not filed before a party appeals,

nothing but delay would flow from requiring the court of appeals to

dismiss the appeal”.).       We will not consider the merits, however,

“if the notice of appeal would have been untimely if the order

appealed had constituted a Rule 58 judgment”.                   Baker, 114 F.3d at

61.

      The parties voluntarily proceed in this appeal.                    In response

to this court’s directive that they address the separate-judgment

issue, Defendants and State Farm maintain the order is final in

nature and effectively terminated the litigation; neither objects

to the lack of a separate judgment.                    American National does not

address this issue.


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      Concerning the finality of the summary judgment order, a

“‘decision is ordinarily considered final and appealable under [28

U.S.C.] § 1291 only if it ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment”.

Doleac v. Michalson, 264 F.2d 470, 479 (5th Cir. 2001) (emphasis in

original) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706,

712 (1996)). The summary judgment declaring Plaintiffs had no duty

to   defend   or   indemnify   Defendants    ended   the   litigation;   as

acknowledged by the district court, the only matter remaining was

entry of judgment.    See, e.g., Mallis, 435 U.S. at 387 (“Here, the

District Court clearly evidenced its intent that the opinion and

order from which an appeal was taken would represent the final

decision in the case.”).

      Finally, the notice of appeal from the 26 September 2001

opinion and order was timely filed on 26 October 2001.         See FED. R.

APP. P. 4(a) (“notice of appeal ... must be filed ... within 30 days

after the judgment or order appealed from is entered”). Therefore,

despite the absence of a separate judgment, we have jurisdiction.

                                   B.

      A summary judgment is reviewed de novo, applying the identical

standard used by the district court.        E.g., Stewart v. Murphy, 174

F.3d 530, 533 (5th Cir.), cert. denied, 528 U.S. 906 (1999).         Such

judgment should be granted if “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the


                                    5
affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law”.   FED. R. CIV. P. 56(c).   “We view the pleadings

and summary judgment evidence in the light most favorable to the

nonmovant.”   Stewart, 174 F.3d at 533.

     For essentially the reasons stated by the district court in

its comprehensive and well-reasoned opinion, we affirm the summary

judgment declaring that Plaintiffs do not have a duty to defend or

indemnify Defendants with respect to the Fair Housing Act action

brought by the United States.    Jackson-USDC, at 1-22.

                                III.

     For the foregoing reasons, the judgment is

                                                          AFFIRMED.




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