     Case: 14-31266      Document: 00513075860         Page: 1    Date Filed: 06/11/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-31266                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            June 11, 2015
MEYERS WAREHOUSE, INCORPORATED,                                            Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CANAL INDEMNITY COMPANY,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-2948


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       This case arises out of an insurance dispute between Plaintiff-Appellant
Meyers Warehouse, Inc. (“Meyers”) and Defendant-Appellee Canal Indemnity
Company (“Canal”).        Meyers is the owner and operator of several trucks,
trailers, and trucking operations.             Meyers purchased “Business Auto
Coverage” insurance from Canal. In November 2011, Meyers was notified that



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 14-31266
it had delivered contaminated liquid sugar to Hiram Walker (“Walker”), which
caused significant damage to Walker’s production line. Walker did not file a
lawsuit, but, instead, the parties negotiated a settlement. As a result of the
settlement negotiations, Dedicated Wash, the company responsible for
cleaning Meyers’s tankers, indemnified Meyers and paid for the damages
incurred by Walker.
      At some point, Canal received notice of Walker’s potential claim against
Meyers. According to Meyers, Canal issued a reservation of rights letter and
refused to participate in Meyers’s defense, leaving Meyers to defend itself in
the settlement negotiations. According to Canal, it initiated an investigation
of the claim and discovered that a third party, Dedicated Wash, had accepted
liability and settled the claim. The parties dispute whether or not Canal had
a duty to defend Meyers during the settlement negotiations even though no
lawsuit was ever filed.
      On January 3, 2014, Canal filed a Motion for Summary Judgment on this
issue. The district court granted summary judgment in favor of Canal. The
court analyzed the insurance policy’s language and, finding no ambiguity,
determined that Canal’s duty to defend only arose when “suit” was filed.
Because no civil proceeding, arbitration, or other alternative dispute resolution
proceeding was initiated by Walker, the court concluded that Canal did not
have a duty to defend. Accordingly, the court entered judgment in favor of
Canal on August 6, 2014.
      Meyers did not immediately appeal the district court’s order and reasons
or judgment, but, instead, filed a “Motion to Reconsider” twenty-eight days
after the court entered its judgment. Meyers cited no rule under which the
motion was brought and no authority for asking the district court to reconsider
its ruling.   In its motion, Meyers argued that (1) the insurance policy is
ambiguous and should have been interpreted in favor of Meyers and (2) the
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                                       No. 14-31266
“common-fund doctrine” should have guided the court’s interpretation of the
policy. The district court construed the motion as a motion to alter or amend
the judgment, pursuant to Federal Rule of Civil Procedure 59(e), and denied
the motion on October 10, 2014.              Meyers filed a timely notice of appeal,
appealing “from the final judgment entered in this action on the 10th day of
October, 2014.”
                              STANDARD OF REVIEW
       The parties disagree over the proper standard of review. Significantly,
Meyers provides no standard of review in its opening brief, 1 but, instead,
asserts that “the Trial Court should not have granted the Motion for Summary
Judgment” and that “Canal’s Motion for Summary Judgment should be
DENIED.” In its reply brief, Meyers suggests that this court should review the
district court’s grant of summary judgment de novo. Canal claims, however,
that Meyers did not appeal the district court’s grant of summary judgment and,
thus, “the issues that the District Court considered in the Motion for Summary
Judgment are not the issues properly before this Honorable Court.” According
to Canal, Meyers only appealed the district court’s October 10 order, denying
Meyers’s Rule 59(e) motion, which, Canal claims, this court should review for
abuse of discretion.


       1 Canal urges this court to dismiss Meyers’s appeal due to its failure to provide a
statement of the applicable standard of review, as provided in Federal Rule of Appellate
Procedure 28(a)(8)(B). Canal also urges the court to dismiss Meyers’s appeal for other
deficiencies. Canal points out that on January 26, 2015, this court sent Meyers a letter
informing it that its brief was deficient and needed to be corrected within fourteen days.
Specifically, Meyers failed to include a statement of the case in its brief and failed to file
record excerpts. Meyers did not correct these deficiencies within fourteen days as required
but instead submitted a corrected brief on February 24, 2015, the day before Canal’s brief
was due. Canal explains that it did not receive notice of the corrective action until February
25, 2015, the same day that Canal submitted its responsive brief in this matter. Canal
correctly identifies that Fifth Circuit Rule 42.3.1.1 provides that an appeal may be dismissed
for want of prosecution if the brief is deficient and not corrected within the appropriate time.
Because we conclude that Canal succeeds on the merits, however, we decline to dismiss the
appeal due to briefing deficiencies.
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                                 No. 14-31266
      We are not convinced that Meyers only appealed the district court’s
denial of the Rule 59(e) motion and that the motion for summary judgment is
not properly before us. Federal Rule of Appellate Procedure 3(c)(1)(B) provides
that a notice of appeal must “designate the judgment, order, or part thereof
being appealed.” However, we have previously indicated that we will forgive
“technical” errors made in a notice of appeal. See Lockett v. Anderson, 230 F.3d
695, 700 (5th Cir. 2000). When, for instance, “a motion for reconsideration has
been denied, and the appellant appeals only from the denial of this Rule 59
motion . . . we can infer that the party meant to appeal the adverse underlying
judgment.” Id.; see also United States v. O’Keefe, 128 F.3d 885, 890 (5th Cir.
1997) (explaining that a mistake on a notice of appeal does not bar this court
from exercising jurisdiction where the intent of the appealing party is
discernable and there is no prejudice to the other party).          We find it
unnecessary to decide the appropriate standard of review, an issue that neither
party adequately addresses, because even under the most stringent standard
of review the district court should be AFFIRMED. Accordingly, we will proceed
under the assumption that the district court’s grant of summary judgment is
properly before us and we will review that grant de novo. See Templet v.
HydroChem Inc., 367 F.3d 473, 477 (5th Cir. 2004) (“This Court review grants
of summary judgment de novo, applying the same standard as the district
court.”).
                                DISCUSSION
      Meyers first argues that the district court incorrectly interpreted the
language of the insurance policy. Meyers provides no caselaw to support this
contention. See Fed. R. App. P. 28(a)(8)(A) (requiring appellant to include
“contentions and the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies” (emphasis added)); see Knatt
v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge Parish, 327 F. App’x 472, 483 (5th
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Cir. 2009) (unpublished) (“A party that asserts an argument on appeal, but
fails to adequately brief it, is deemed to have waived it.”). Instead, Meyers
quotes portions of the insurance policy, concludes that an ambiguity exists, and
argues, with no legal support, that “[a]ny ambiguity goes against the author of
the Policy.” Even if we consider this minimally briefed argument, we disagree
with Meyers’s reading of the insurance contract. As the district court correctly
noted, the insurance policy is not ambiguous on this point. The coverage
portion of the policy provides that Canal has a “duty to defend any ‘insured’
against a ‘suit’ asking for” certain covered damages. The policy defines “suit”
as a “civil proceeding,” which includes “[a]n arbitration proceeding . . . to which
the ‘insured’ must submit or does submit with [Canal’s] consent” or “[a]ny other
alternative dispute resolution proceeding . . . to which the insured submits with
[Canal’s] consent.”   An informal settlement negotiation that precedes the
commencement of any civil proceeding is not covered by the terms of the
contract.
      Meyers contends that the insurance policy “consistently lumps the terms
claim, suit or loss together” and that this creates an ambiguity that should
have been construed against Canal. While Meyers is correct in noting that
elsewhere in the insurance policy the words “claim” and “loss” are used, we
disagree with Meyers’s contention that these references create an ambiguity.
For instance, the coverage portion of the policy states that Canal “may
investigate and settle any claim or ‘suit’ as [it] consider[s] appropriate.” The
policy also provides that the insured has certain “duties in the event of
accident, claim, suit or loss.” The insured’s duties include sending Canal
“copies of any request, demand, order, notice, summons or legal paper received
concerning the claim or ‘suit’” and cooperating with Canal “in the investigation
or settlement of the claim or defense against the ‘suit.’” These provisions do
not purport to impose a duty on Canal to defend Meyers in the event a “claim”
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                                  No. 14-31266
is made. Accordingly, we reject Meyers’s inadequately briefed contention that
the district court misinterpreted the insurance policy language.
      Meyers next claims that because “the Policy is silent on when the Duty
to Defend begins,” the district court should have used the “common-fund
doctrine” to fill in the “gaps.” This argument fails, however, because we have
already determined that the policy is not silent on when the duty to defend
begins.      Accordingly, there were no “gaps” for the district court to fill.
Furthermore, Meyers did not mention this argument to the district court until
after the court ruled on the motion for summary judgment and entered the
final judgment. See Advocare Int’l, LP v. Horizon Labs., Inc., 524 F.3d 679, 691
(5th Cir. 2008) (“A Rule 59(e) motion must clearly establish either a manifest
error of law or fact or must presented newly discovered evidence and cannot
raise issues that could, and should, have been made before the judgment
issued.” (citations and internal quotation marks omitted)).
                                 CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment in
this case.




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