     Case: 09-60036     Document: 00511036988          Page: 1    Date Filed: 02/26/2010




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

                                                  FILED
                                                                          February 26, 2010

                                       No. 09-60036                    Charles R. Fulbruge III
                                                                               Clerk

DENNIS DOUZART; FAITH SEAWRIGHT,

                                                   Plaintiffs - Appellees,
v.

BALBOA INSURANCE COMPANY,

                                                   Defendant - Appellant.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:07-CV-1057


Before BENAVIDES, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Balboa Insurance Company (Balboa) appeals the district court’s denial of
its motion for summary judgment under 28 U.S.C. § 1292(b).1 In its motion,
Balboa asserted that the damage to Dennis Douzart and Faith Seawright’s


        *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
        1
         This court granted leave to appeal from the district court’s order denying Balboa’s
motion for summary judgment, entered on October 14, 2008, and the district court’s order
denying Balboa’s motion for reconsideration under Rule 59(e), entered on November 25, 2008.
Because Balboa did not seek judicial review of its Rule 59(e) motion before this court, we will
not consider that issue. “An appellant abandons all issues not raised and argued in its initial
brief on appeal.” Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (citations omitted).
   Case: 09-60036    Document: 00511036988      Page: 2   Date Filed: 02/26/2010

                                  No. 09-60036

(Douzarts) home caused by Hurricane Katrina was not covered under the Balboa
policy because the damage to their home resulted from an excluded peril under
the policy–windstorm damage–rather than an explosion, which is not excluded.
In response to Balboa’s motion for summary judgment, the Douzarts supported
their assertion that damage to their home was caused by an explosion resulting
from the accumulation of air inside their home during the hurricane with an
affidavit from Dr. Neil B. Hall. Dr. Hall concluded that “to trigger progressive
failure and the complete destruction of the building due to hurricane wind, it is
most likely that some portion of the building did ‘explode’ in a matter of seconds,
followed by the progressive failure of the structure.”
      The district court found that “there is a genuine issue of material fact
regarding whether the [Douzarts] are entitled to coverage under the
homeowner’s insurance policy issued to them by Balboa” and “that a genuine
issue of material fact exists regarding whether Balboa had an arguable or
legitimate basis for denying the [Douzarts’] claim.”      More particularly, the
district court concluded that Dr. Hall’s testimony “creates a genuine issue of
material fact regarding whether all or part of the damage to the [Douzarts’]
home was caused by an explosion that resulted from a windstorm.” In reaching
its conclusion, the district court noted that Balboa has not submitted any
evidence that it actually inspected the Douzarts’ home even after the Douzarts
informed Balboa that its adjuster had inspected the wrong house. Furthermore,
Balboa has failed to produce its own expert report or any other evidence contrary
to Dr. Hall’s conclusions.
      Accordingly, we affirm the judgment of the district court essentially for the
reasons stated in the district court’s careful and thorough order, dated October
14, 2008, denying Balboa’s motion for summary judgment. AFFIRMED.




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