                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT


                                    No. 01-30857


 ROBIN PASSARO LOUQUE, Individually and on behalf of all others
                       similarly situated,

                                                        Plaintiff-Appellant,

                                        versus

                          ALLSTATE INSURANCE COMPANY,

                                              Defendant-Appellee.
_________________________________________________________________

              Appeal from the United States District Court
                  for the Eastern District of Louisiana

_________________________________________________________________

                                  December 13, 2002

Before JOLLY, JONES, and BARKSDALE, Circuit Judges.

EDITH H. JONES, Circuit Judge:

              The district court assumed removal jurisdiction and then

dismissed the case for failure to state a claim upon which relief

can be granted in this putative class action, which challenges

Allstate’s alleged policy of refusing to settle minor-impact, soft-

tissue injury actions against its insureds. The principal issue on

appeal   is     whether     the     amount-in-controversy    requirement    for

diversity jurisdiction was satisfied by the potential recovery of

attorney’s fees under Louisiana law pertaining to insurance claims

handling.        We   affirm      the   district   court’s   conclusion    that

attorney’s fees could be recovered under Louisiana law, and that
such sum would satisfy the amount-in-controversy requirement.            We

also affirm the dismissal granted to Allstate on the merits.

                                BACKGROUND

           Allstate   insured        Robin   Louque,   the    named   class

representative, under an automobile policy providing $10,000 in

liability coverage. Louque alleges that she was in an automobile

accident in which another person was injured, she was sued by the

victim, and Allstate refused to settle.            Judgment was entered

against Louque and Allstate for $7569, including $5000 in statutory

penalties for violations of LA. REV. STAT. ANN. § 22:1220 (requiring

an insurer to “make a reasonable effort to settle claims with the

insured or   the   claimant,    or    both”).    Allstate    satisfied   the

judgment, but apparently successfully appealed the penalty award.

           Louque contends that Allstate’s policy was to refuse to

settle minor-impact, soft-tissue injury (MIST) claims where the

claimant was represented by an attorney, regardless of a claim’s

merit.    The resulting delays and judgments adversely affected

Allstate policy holders’ creditworthiness. Louque pleads that this

practice effected a breach of contract, breach of Allstate’s

fiduciary obligations under the policies, and violation of LA. REV.

STAT. ANN. § 22:1220, the provision at issue in the third-party

action.   LA. REV. STAT. ANN. § 22:658, also at issue in this appeal,

is not mentioned in Louque’s complaint.




                                       2
            After Allstate removed this action to federal court based

on diversity jurisdiction, it moved to dismiss.                 Louque sought to

remand, asserting that the jurisdictional amount was not satisfied.

The district court denied remand and held that this action is

governed    by   §   22:658,    a     provision    whose    mandatory    award   of

attorney’s fees satisfies the jurisdictional amount.                    Louque v.

Allstate Ins. Co., No. 01-CV-1282, at 3-4 (E.D. La. June 21, 2001)

(unpublished). Dismissal was granted for failure to state a claim.

Id. at 5-8.

                                      DISCUSSION

A.   Removal Jurisdiction

            The parties spar primarily over whether § 22:658 is

applicable,      and,   if     not,    whether     the     requisite    amount   in

controversy for diversity jurisdiction (greater than $75,000) is

otherwise satisfied.         Diversity of citizenship is not at issue.

See 28 U.S.C. § 1332.

            This court reviews the denial of remand de novo. Manguno

v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 722 (5th Cir.

2002). Louisiana prohibits Louque from stating an ad damnum in her

petition.     Therefore, Allstate must establish the jurisdictional

amount by a preponderance of the evidence.                 Id. at 723.     This is

accomplished if “(1) it is apparent from the face of the petition

that the claims are likely to exceed $75,000, or, alternatively,

(2) the defendant sets forth ‘summary judgment type evidence’ of


                                          3
facts in controversy that support a finding of the requisite

amount.” Id.     The district court held:     “Because Louque intends to

represent a nationwide class of ‘tens of thousands, if not hundreds

of thousands of individuals’ and seeks both damages and penalties

for each class member, the Court finds that Louque’s attorneys’

fees will easily exceed the jurisdictional threshold.”

           Along this line, LA. CODE CIV. PROC. provides:

           The court may allow the representative parties
           their reasonable expenses of litigation,
           including attorney’s fees, when as a result of
           the class action a fund is made available, or
           a recovery or compromise is had which is
           beneficial, to the class.

Art. 595 (emphasis added).       Citing In re Abbott Laboratories, 51

F.3d 524, 526-27 (5th Cir. 1995), aff’d by an equally divided

court, 529 U.S. 333 (2000), the district court held that,

     [u]nder . . . article 595, attorneys’ fees in a class
     action lawsuit are wholly allocable to the named
     plaintiff; and, when article 595 is coupled with a
     statutory provision mandating an award of attorneys’
     fees, federal courts will consider that potential award
     when determining the amount in controversy.

District Court Opinion at 2.      See Manguno, 276 F.3d at 723 (“For

purposes of determining the amount in controversy in a Louisiana

class action, it has been the belief of some courts that . . .

article 595 allocates to the class representative the aggregate

attorney’s fees sought for the entire class if a separate statute

provides   for   recovery   of   attorney’s   fees   as   an   element   of

damages.”) (citing Abbott Laboratories, supra) (emphasis added).


                                    4
            Recently, our court has clarified that because art. 595

gives a court discretion to award attorney’s fees to a class

representative    as     “expenses   of    litigation,”   such    fees   are

includable in a jurisdictional amount determination for diversity

purposes    regardless    of   the   existence    of   separate   statutory

authorization of attorneys fees.          Grant v. Chevron Phillips Chem.

Co., 2002 U.S. App. LEXIS 21266 (5th Cir. 2002).            Unfortunately,

this new decision does not assist the resolution of this case,

because Allstate did not raise and preserve in the trial court the

applicability of art. 595 alone to support an attorney’s fee

award.1    We must proceed according to a pre-Grant analysis.


     1
      To preserve such an issue, the “raising party must present
the issue so that it places the opposing party and the court on
notice that a new issue is being raised.” Portis v. First Nat’l
Bank of New Albany, Miss., 34 F.3d 325, 331 (5th Cir. 1994).
Allstate’s removal notice stated, in addition to the possibility
that Louque’s claims seek recovery under § 22:658, that she “seeks
to certify a class action under . . . article 591, et seq., which
provides for    recovery   of   attorneys’   fees   by   the  named
representative.” The removal notice then string cited to precedent
purportedly holding that the “potential award of attorneys’ fees
allocated to plaintiff pursuant to Article 595 satisfies the amount
in controversy requirement.” We assume this stated the art. 595
issue. But, in responding to Louque’s remand motion, which briefly
referenced art. 595, Allstate did not address whether art. 595
alone could support a fee award. Our court has held that, “‘for
obvious reasons, [we] will not consider evidence or arguments . .
. not presented to the district court for its consideration in
ruling on the motion.’” Ellison v. Software Spectrum, Inc., 85
F.3d 187, 191 (5th Cir. 1996) (quoting Stults v. Conoco, Inc., 76
F.3d 651, 657 (5th Cir. 1996)) (emphasis added).       As a general
rule, a party may not allude to an issue in the district court,
abandon it at the crucial time when the district court might have
been called to rule upon it, and then resurrect the issue on
appeal. See, e.g., Hargrave v. Fibreboard Corp., 710 F.2d 1154,
1163-64 (5th Cir. 1983). That Louque herself mentioned the issue,

                                      5
            In district court, Allstate maintained that Louque’s

claims   are   governed   by   the   two   earlier-described   Louisiana

statutes:   §§ 22:658 and 22:1220.       While both provisions have been

held to sustain an attorney’s fee award, only § 22:658 mandates

such relief.    Section 22:658(A) provides in pertinent part:

            (1) All insurers . . . shall pay the amount of
            any claim due any insured within thirty days
            after receipt of satisfactory proofs of loss
            from the insured or any party in interest.

            (2) All insurers . . . shall pay the amount of
            any third party property damage claim and of
            any reasonable medical expenses claim due any
            bona fide third party claimant within thirty
            days after written agreement of settlement of
            the claim from any third party claimant.

LA. REV. STAT. ANN. § 22:658(A) (emphasis added).        Subpart (B)(1)

provides:

            Failure to make such payment within thirty
            days after receipt of such satisfactory
            written proofs and demand therefor, as
            provided in . . . [§] 22:658(A)(1), or within
            thirty days after written agreement or
            settlement as provided in . . . [§] 22:658
            (A)(2) when such failure is found to be
            arbitrary, capricious, or without probable
            cause, shall subject the insurer to a penalty,
            . . . together with all reasonable attorney
            fees for the prosecution and collection of
            such loss.

LA. REV. STAT. ANN. § 22:658(B)(1) (emphasis added).




which Allstate then failed to brief, is insufficient to preserve
Allstate’s error. See Hargrave.


                                     6
          Louque sued under § 22:1220(A), which provides, inter

alia:

          An insurer . . . owes to his insured a duty of
          good faith and fair dealing. The insurer has
          an affirmative duty to adjust claims fairly
          and promptly and to make a reasonable effort
          to settle claims with the insured or the
          claimant, or both.



LA. REV. STAT. ANN. § 22:1220(A) (emphasis added).   Subpart (C)

states that,

          [i]n addition to any general or special
          damages ... for breach of the imposed duty,
          the claimant may be awarded penalties assessed
          against the insurer in an amount not to exceed
          two times the damages sustained or five
          thousand dollars, whichever is greater.

LA. REV. STAT. ANN. § 22:1220(C) (emphasis added).     The award of

attorney’s fees is not mentioned.

          This court, noting the similarity of these provisions,

has permitted the same type of recovery under either one, even

where one of the provisions was not expressly cited.          In re

Hannover Corp. of America, 67 F.3d 70, 75 (5th Cir. 1995).    On the

basis of Hannover, Allstate maintained, and the district court

held, that, even though Louque did not plead § 22:658, it may

nevertheless govern her entitlement to attorney’s fees.     See Reed

v. Recard, 744 So. 2d 13, 20 (La. Ct. App. 1998), writ denied, 738

So. 2d 572 (La. 1999).




                                 7
            On its face, § 22:658 does not squarely cover a claim by

Louque for Allstate’s excessive, injurious delay in litigating and

paying off a claim after judgment.         The statute penalizes instead

arbitrary or capricious failures either to pay (1) a claim due the

insured “within thirty days after receipt of satisfactory proofs of

loss,” or (2) a third-party claim “within thirty days after written

agreement of settlement.”       § 22:658(A)(1) and (2).       Nevertheless,

Louisiana    courts   have    for   two   decades   allowed   an    award   of

attorney’s fees in cases where an insurer’s bad faith refusal to

settle led to an excess judgment.         See Smith v. Audubon Ins. Co.,

656 So. 2d 11, 17 (La. Ct. App. 1995), rev’d on other grounds, 679

So. 2d 372 (La. 1996).       Smith cited § 22:658 and relied on earlier

decisions.   See Maryland Casualty Co. v. Dixie Ins. Co., 622 So. 2d

698 (La. App. 1993), writ denied, 629 So. 2d 1138 (La. 1993); Roy

v. Glaude, 494 So. 2d 1243 (La. Ct. App. 1986); Fertitta v.

Allstate Ins. Co., 439 So. 2d 531 (La. App. 1983), aff’d on other

grounds, 462 So. 2d 159 (La. 1995); Domangue v. Henry, 394 So. 2d

638 (La. App. 1980).     This court has previously acknowledged that

these cases establish Louisiana law.          Parich v. State Farm Mut.

Auto. Ins. Co., 919 F.2d 906 (5th Cir. 1990), cert. denied sub nom.

Judice v. Parich, 499 U.S. 976 (1991).

            When Smith reached the Louisiana Supreme Court, one judge

criticized, in dissent, the lower court’s handling of attorneys’

fees and the caselaw on which the lower court relied.              Smith, 679



                                      8
So. 2d at 378-80 (Calogero, J., dissenting).              This is irrelevant.

The Louisiana Supreme Court should not have reached this issue, as

it decided the case on a dispositive antecedent ground.              Moreover,

we can hardly accord a solo dissenting opinion any weight as an

expression of Louisiana law.

           The    concurrence      suggests    that     the   applicability   of

§ 22:658 is a novel issue as to which an Erie guess is required of

this court.      Under the present circumstances — in which we are

determining whether Louque’s petition raised claims over $75,000

for the sole purpose of determining her satisfaction of the federal

jurisdictional requirement — we find that course unnecessary to

pursue.    First, it is plain that Louisiana courts have condoned

attorney fee-shifting in certain bad faith insurance claim handling

cases for years.       Like the district court, we do not think it

inappropriate to consider all possible bases for an attorney’s fee

award to Louque where she pleaded one statutory ground of recovery:

Other grounds are readily available in Louisiana; both this court

(Hannover,    supra)    and      Louisiana    courts     (Reed,   supra)   have

recognized overlap in the grounds for recovery; and Louque, as

mistress of her complaint, did not disavow her intention to seek a

recovery of fees.

           Second,     it   is    not   for   us   to   second-guess   whether

Louisiana courts will ultimately find the Smith-Maryland Casualty-

Domangue   line   of   cases      congruent    with,    supplemental   to,    or

contradicted by § 658.        Those cases presently afford a basis for

                                        9
recovery of attorney’s fees by an insured, and we are Erie-bound to

respect their authority.2

            Third, when determining the amount in controversy for

diversity     purposes,    a   federal    court   need   not   pre-try   the

sufficiency     of   the   plaintiff’s     complaint.      Subject   matter

jurisdiction is not defeated by the possibility that the complaint

ultimately fails to state a claim on which Louque could actually

recover attorney’s fees.       As this court has explained,

     there is no inconsistency in the district court’s action
     of denying remand and then dismissing [plaintiff’s]
     claims. . . . “Jurisdiction . . . is not defeated ...
     by the possibility that the averments might fail to state
     a cause of action on which [plaintiff] could actually
     recover.”

Hawkins v. Nat. Ass’n of Sec. Dealers, Inc., 149 F.3d 330, 331 (5th

Cir. 1998) (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)).

            Thus, the question before us is whether the complaint,

fairly read, states a claim exceeding $75,000.3                A successful

     2
      In her brief, Louque criticizes the district court’s
distinguishing, in its merits determination, cases, like those
cited above, against an insurer for bad faith refusal to settle.
The district court had observed that those cases required an excess
judgment against the insured. Louque then says:

          Appellant respectfully suggests that the facts and
     damages as alleged by the Appellant are res nova and are
     no different than an excess judgment situation. In fact,
     Allstate’s actions in these instances could be much more
     damaging than an excess judgment.

Louque cannot rely on these cases for affirmative recovery while
disavowing their applicability to the amount in controversy
determination.
     3
      No pertinent jurisdictional amount facts are in dispute.

                                     10
result for Louque on the merits of her claims that Allstate failed

‘to adjust all claims fairly and promptly and to make reasonable

efforts to settle’ would put her in line to recover class action

attorney’s fees far exceeding $75,000.           The court accordingly had

jurisdiction    over     her   claim   and,     through    its   exercise   of

supplemental jurisdiction, over the claims of the class.               See 28

U.S.C. § 1367; Abbott Laboratories, supra.

B.   Merits

            Louque’s challenge to the dismissal of her case is

perfunctory.    In two pages of briefing, she cites — once each — LA.

REV. STAT. ANN. §§ 22:658 and 1220, but no caselaw.4              She argues,

without   quoting   or    citing   the      insurance   contract,   that    her

pleadings reference “a policy provision which has been breached by

Allstate.”    She asserts as a conclusion that Allstate breached its

fiduciary duty to her.         She draws an analogy to the bad-faith

refusal-to-settle cases.        See n.2, supra.           Louque’s brief, in

short, may not even pass muster under the minimum criteria that we

require for a reasoned, record-based presentation of a party’s

position.     5TH CIR. R. 28.2; see also FED. R. APP. P. 28(a)(9)(A);

United States v. Martinez, 263 F.3d 436 (5th Cir. 2001).

            Louque’s arguments are, in any event, fully disposed of

by the district court’s opinion, which we quote:


     4
      As Louque did not argue the merits of her claims under §§
1220 or 658 on appeal, they are waived. St. Paul Mercury Ins. Co.
v. Williamson, 224 F.3d 425, 445 (5th Cir. 2000).

                                       11
                 a. Breach of Contract
     To state a claim for breach of an insurance contract
under Louisiana law, a plaintiff must allege a breach of
a specific policy provision. See Bergeron v. Pan Am.
Assurance Co., 731 So. 2d 1037, 1045 (La. App. 4th Cir.
1999). In the instant case, although Louque claims that
Allstate refused to settle “valid” claims, she fails to
cite any policy provision that requires Allstate to
settle claims before trial. In fact, the only policy
provision Louque cites provides that Allstate has
unfettered discretion in deciding whether to settle
cases:

     We will defend an insured person sued as the
     result of a covered auto accident, even if the
     suit is groundless, false or fraudulent. We
     will choose the counsel. We may settle any
     claim if we believe it is proper.

Def.’s Ex. A at 5.

     In Employers Surplus Line Ins. Co. v. City of Baton
Rouge, 362 So. 2d 561, 564 (La. 1978), the Louisiana
Supreme Court construed a similar policy provision. The
Employers policy provided that the insurance company was
authorized to “make such investigation, negotiation and
settlement of any claim or suit it deems expedient.” Id.
at 565. The Louisiana Supreme Court explained that:

     This provision vests the insurer with absolute
     authority to settle claims within the limits
     of the policy with the insured’s having no
     power   to   compel  the   insurer   to   make
     settlements or prevent it from doing so.

Id. As in Employers Surplus, Allstate is given absolute
discretion over whether or not to settle a claim.
Because Allstate’s policy does not obligate it to settle
any claim before trial, the Court finds that Louque fails
to state a claim for breach of contract.

           b. Breach of Fiduciary Obligation
     Louque also alleges that Allstate breached a
fiduciary obligation by failing to settle “valid claims”
before trial. However, as stated above, Allstate was not
contractually bound to settle Louque’s claim; and
Louisiana law does not recognize an extracontractual
obligation where there is no risk of exposing the insured
to excess liability. See, e.g., Ragas v. MGA Ins. Co.,

                           12
     1997 WL 79357, at *2 (E.D.La. Feb. 21, 1997) (McNamara,
     J.) (holding that an insured has no cause of action
     against its insurer for bad faith refusal to settle in
     the absence of an adjudicated excess judgment against the
     insured).   In the case at bar, Louque has neither an
     “adjudicated excess judgment” nor even any claim that
     Allstate’s decision to go to trial exposed her to excess
     liability. To the contrary, Louque avers that prior to
     trial the “third party was claiming damages well below
     the $10,000 policy limits of [Louque’s] policy.” Compl.
     at ¶ 5. Because Louque does not allege that Allstate’s
     alleged refusal to settle exposed her to excess
     liability, the Court finds that she has failed to state
     a cause of action for breach of fiduciary obligation.

          For these reasons, Louque’s complaint against Allstate

failed to state a claim upon which relief can be granted.   FED. R.

CIV. PROC. 12(b)(6).

                            CONCLUSION

          The district court correctly assumed removal jurisdiction

and correctly entered judgment dismissing Louque’s complaint.

          AFFIRMED.




                                13
RHESA HAWKINS BARKSDALE, Circuit Judge, specially concurring:

     I concur in the majority's holding:          (1) Allstate did not

preserve   in   district   court   the   applicability   of   article   595

(therefore, our recent Grant decision is not applicable); and (2)

pursuant to Rule 12(b)(6), Louque failed to state a claim upon

which relief can be granted.

     I   have   some   misgivings,   however,   concerning    whether   the

diversity jurisdictional amount is satisfied.       Therefore, I concur

dubitante in holding § 22:658 applicable.            (In my view, the

applicability vel non of § 22:658 in its present form (amended in

1989) has not been decided by Louisiana courts; an Erie-analysis is

required. In any event, in the light of Grant's holding concerning

article 595, it may well be that this § 22:658 issue will seldom,

if ever, surface again.)
