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

                                                 FILED
                                                                            July 21, 2009

                                     No. 08-61099                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



GEICO INSURANCE COMPANY

                                                   Plaintiff - Appellee
v.

NANCY WHITE

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                                No. 1:07-CV-1004


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Defendant-appellant Nancy White appeals the district court’s grant of
summary judgment in favor of plaintiff-appellee GEICO Insurance Company and
its declaratory judgment that her recovery is limited to $25,000. For the reasons
stated below, we affirm the district court’s judgment.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       On April 12, 2006, White was injured when her vehicle was struck by a
vehicle driven by Adam Hall, a minor. White brought suit against Hall and his
father (collectively, the “Halls”) in Mississippi state court. The parties entered
into a consent judgment in the amount of $150,000, but they limited recovery to
the amount that could be collected from the Halls’ insurance policy with GEICO
Insurance Company (“GEICO”).            Coverage under the policy was limited to
$25,000, and the Halls insured four different automobiles under the policy. The
Halls’ original policy states that covered losses include:
       1.     bodily injury, sustained by a person, and;
       2.     damage to or destruction of property, arising out of the
              ownership, maintenance, or use of the owned auto or a non-
              owned auto.
       GEICO alleged that this language had been superseded by an Automobile
Policy Amendment (the “Amendment”) that became effective after the Halls
purchased their policy but prior to the date of the accident. The Amendment
states that covered losses include:
       1.     bodily injury, sustained by a person, or
       2.     damage to or destruction of property,
       arising out of the ownership, maintenance, or use of the owned auto
       or a non-owned auto.
       GEICO filed suit in federal district court seeking a declaratory judgment
that its liability was limited to $25,000. White argued that under the language
of the original policy, which does not connect the “ownership, maintenance, or
use” requirement to bodily injury, the total coverage would have been $100,000
(i.e., $25,000 for each of the four automobiles insured rather than just the one
automobile used in the accident).1


       1
        The district court did not reach the merits of White’s interpretation of the policy.
White conceded that coverage would be limited to $25,000 if the Amendment was effective.
Therefore, the district court concluded that it did not need to reach the merits of White’s

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      White argued that there was a genuine issue of material fact as to whether
the Amendment had been mailed to the Halls and had become part of their
policy prior to the accident. The district court concluded that the Amendment
had been mailed to the Halls based on the following: (1) the Halls claimed to
have lost their copy of the policy during Hurricane Katrina; (2) GEICO’s Rule
30(b)(6) representative testified that revisions are sent out “automatically,
programmatically” with the next policy renewal; and (3) the affidavit of K.A.
Jones, an employee in GEICO’s underwriting department, stated that the
Amendment went into effect February 11, 2002, and that “the renewal policy
containing the Amendment was processed to be mailed to the Halls on February
14, 2002.”
                                II. DISCUSSION
      “We review a district court judgment rendered on cross-motions for
summary judgment de novo.” First Colony Life Ins. Co. v. Sanford, 555 F.3d 177,
180 (5th Cir. 2009). “Summary judgment is appropriate when ‘the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.’” Id. (quoting F ED. R. C IV. P. 56(c)); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). We construe all facts
and draw all justifiable inferences in the light most favorable to the nonmoving
party, but “the nonmoving party must set forth specific facts to establish that
there is a genuine issue for trial.” First Colony Life Ins., 555 F.3d at 180. “An
issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a
verdict for the nonmoving party.”        Id. at 181 (quoting Hamilton v. Segue
Software Inc., 232 F.3d 473, 477 (5th Cir. 2000)).




interpretation. Likewise, we make no comment on the validity of White’s claim that the
language used in the original policy increased coverage to $100,000 in this instance.

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      White’s primary contention is that GEICO did not establish that the
Amendment was specifically mailed to the Halls. Rather, GEICO sought only
to show how the Amendment would have been mailed in the ordinary course of
its business practice. The district court addressed this argument by noting that
“[p]lacing letters in the mail may be proved by circumstantial evidence,
including customary mailing practices used in the sender’s business.” Wells
Fargo Bus. Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir. 1982). Under
this rule, White’s argument that GEICO was required to prove the specific
details of mailing the Amendment directly to the Halls lacks merit. GEICO’s
evidence was sufficient to explain the process by which new amendments are
mailed to its current policy holders. The burden then shifted to White to present
some evidence beyond a bare assertion of non-receipt, which she failed to do.
      Moreover, there has never been a direct, unequivocal denial of the fact that
the Halls received the Amendment. The Halls did not submit a copy of their
policy because they lost all of their files and paperwork during Hurricane
Katrina. Thus, White argues only that GEICO has not carried its burden under
the mailbox rule to show that the Amendment was properly mailed.              The
mailbox rule “‘provides that the proper and timely mailing of a document raises
a rebuttable presumption that the document has been received by the addressee
in the usual time.’” Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 419 (5th Cir.
2007) (quoting Schikore v. BankAmerica Supplemental Ret. Plan, 269 F.3d 956,
961 (9th Cir. 2001)). White has provided nothing to rebut that presumption and
has only weakly denied that the Halls received the Amendment. In order to
avoid summary judgment, an assertion of non-receipt must be supported by
circumstantial evidence. Id. at 422. Here, GEICO provided circumstantial
support for its claim that the Amendment was mailed to the Halls in the form
of Jones’s affidavit, but White provided no circumstantial evidence in support of
her claim that it was not received by the Halls. See Duron v. Albertson’s LLC,

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560 F.3d 288, 291 (5th Cir. 2009) (vacating summary judgment where the sender
had “submitted no affidavits in support of the mailing” and, in contrast, the
recipient had “provided a sworn affidavit that she did not receive” the
document). Accordingly, the district court was correct to conclude that GEICO
had mailed the Amendment to the Halls prior to the date of the accident.
       In addition to claiming that GEICO did not carry its burden under the
mailbox rule, White argues that (1) this issue was decided as a matter of law
when she admitted in her answer that the copy of the original policy attached to
the complaint, which did not include the Amendment, was true and correct; and
(2) the district court erred in considering Jones’s affidavit because it was first
submitted with GEICO’s motion for summary judgment, which was after the
discovery deadline.2
       Regarding the first issue, White’s answer noted that the copy of the policy
attached to the complaint was incomplete because it lacked the declarations
page. In other words, White’s answer invited GEICO to supplement what it had
attached to its original complaint. Regarding the second issue, GEICO told
White’s counsel during the Rule 30(b)(6) deposition, when the witness was
struggling to explain the procedure for mailing out amendments to existing
policyholders, that he would obtain an affidavit from the underwriting
department better explaining how and when the Amendment would have been
sent to the Halls. Jones’s affidavit fulfills this promise. Furthermore, GEICO
responds to White’s protestations that she was unable to depose Jones by noting
that Rule 56(f) of the Federal Rules of Civil Procedure allows a party opposing
a motion for summary judgment to request that the court order a continuance
“to enable affidavits to be obtained, depositions to be taken, or other discovery
to be undertaken.” White never sought to depose Jones after receiving his


       2
          It should be noted that White did not provide any legal authority to support either
of these propositions.

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affidavit. White’s counsel’s response was that “[f]rankly, undersigned counsel
was not aware of this provision of Rule 56(f) until it was mentioned in GEICO’s
Appellee’s Brief.” This confession of ignorance as to the Federal Rules of Civil
Procedure does not absolve White from failing to seek further discovery after
receiving Jones’s affidavit. We are thus not persuaded that the district court
erred in considering Jones’s affidavit and in concluding that GEICO carried its
burden under the mailbox rule.
                             III. CONCLUSION
      For the reasons stated above, we AFFIRM the district court’s judgment.




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