                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                  UNITED STATES COURT OF APPEALS
                                                           October 13, 2006
                      FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk


                            No. 06-30391
                          Summary Calendar



     J. HOUSTON BOSLEY; DEBORAH BOSLEY,

                                       Plaintiffs-Appellants,

                                 v.

     GREAT NORTHERN INSURANCE CO.,

                                       Defendant-Appellee.



          Appeal from the United States District Court
              for the Western District of Louisiana
                           (05-CV-554)



Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*


     J. Houston Bosley and Deborah Bosley appeal the district

court’s grant of summary judgment in favor of appellee Great

Northern Insurance Company. The court determined that the Bosleys’

suit for damages was untimely filed because of a clause in their

insurance policy imposing a one-year limitation on all legal action

against Great Northern.   Because we find that there is a genuine

     *
       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this opinion should not be published and is not precedent except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.
issue of material fact as to whether Great Northern waived the

protection of the limitation clause, we REVERSE the district

court’s grant of summary judgment.

     We review the district court’s grant of summary judgment de

novo,   applying   the    same   standard   as    did    the   district   court.

Terrebonne Parish Sch. Bd. v. Mobile Oil Corp., 310 F.3d 870, 877

(5th Cir. 2002).         Summary judgment is proper if the materials

before the court show that there is no genuine issue as to any

material fact, and that the moving party is entitled to judgment as

a matter of law.    See FED. R. CIV. P. 56(C).          On appeal, we construe

all facts and inferences in the light most favorable to the

nonmoving party.    Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446,

454 (5th Cir. 2005).

     The Bosleys believe that they are entitled to additional

payment from their insurance company for damages occasioned by a

storm on September 1, 2001.       They do not challenge the validity of

the limitations clause in their insurance policy, but they argue

that Great Northern effectively waived the protection of that

clause by lulling the Bosleys into believing that their claims

would be settled without the need for suit.

     Under Louisiana law, an insurer can waive a time limitation

contained in its policy.         Smith v. Metro. Prop. & Cas. Ins. Co.,

868 So.2d 57, 59 (La. Ct. App. 2003).            The waiver “can be express

or tacit, as evidenced by the conduct on the part of the insurer.”


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Id.   Tacit waiver may be found where, for example, the insurer

continues negotiations with the insured and thereby induces the

insured to believe the claim will be settled, or where the insurer

makes an unconditional offer of payment.                     Id. (citing Lima v.

Schmidt, 595 So.2d 624, 634 (La. 1992); Griffin v. Audobon Insur.

Co., 649 So.2d 72, 74 (La. Ct. App. 1994)).

      The district court believed that the theory of waiver was

simply not supported by the authority cited, see Memorandum Ruling

of March 3, 2006, but it is clear to us that Smith and the other

cases presented to this court plainly hold that where an insurer

“lulled [the insured] into believing that the claims she filed were

not going to be contested or would be settled without the need for

suit,” the insurer has waived the protection of the limitation

clause.    Smith, 868 So.2d at 60.

      To   demonstrate    that    Great         Northern     tacitly    waived     this

protection, the Bosleys presented a check they received from Great

Northern on November 13, 2001, which reads: “IN SETTLEMENT OF STORM

DAMAGE LESS $1,000 DED.        PARTIAL.” They contend that this language

indicates    that   the   check      was       only   a   partial    payment,      with

additional payment to follow.         They also presented to the district

court the Affidavit of J. Houston Bosley himself, in which Mr.

Bosley alleges that he and his wife had “numerous communications”

with Mr.    Andy    Tippett,    an   adjuster         from   Great     Northern,    who

acknowledged that the insurer still owed the Bosleys additional


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money.   This affidavit is made somewhat more credible in light of

additional evidence, including deposition testimony and internal

reports from Great Northern, which suggest that Mr. Tippett did

indeed believe   that   the   company      intended   to   pay    the   Bosleys

additional money.

     Great Northern does not disagree that an insurer can, by its

actions, tacitly waive the protection of a limitations clause.

Instead, it tries to distinguish the case law on its facts, and

illustrate why no waiver occurred in this instance.               In our view,

the parties’ conflicting summary judgment evidence only illustrates

that there is indeed a genuine issue of material fact as to whether

waiver   occurred.      For   this       reason,   summary       judgment   was

inappropriate.   Accordingly, we REVERSE the district court’s grant

of summary judgment and REMAND for further action consistent with

this opinion.




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