             IN THE UNITED STATES COURT OF APPEALS

                               FOR THE FIFTH CIRCUIT
                                           _______________

                                             m 01-10269
                                           _______________



                                         MARY DOUGHTEN,

                                                               Plaintiff-Appellant,

                                                VERSUS

               STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

                                                               Defendant-Appellee.


                                    _________________________

                             Appeal from the United States District Court
                                 for the Northern District of Texas
                                          (4:00-CV-1799)
                                  _________________________

                                            February 6, 2002


Before SMITH and DEMOSS, Circuit Judges,                  This appeal is intended to present two ques-
  and LAKE, District Judge.*                           tions: (1) Can a district court decide legal
                                                       issues at summary judgment? (2) Does the
PER CURIAM:**                                          Texas Insurance Code permit an insurance
                                                       contract to exclude coverage for an insured
                                                       party’s bodily injuries sustained while riding in
   *
    District Judge of the Southern District of         an uninsured family member’s car? We
Texas, sitting by designation.                         conclude that it is unnecessary to reach either
   **
                                                       issue, because the plaintiff, Mary Doughten,
      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determined that this opinion should not be
published and is not precedent except under the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.              (...continued)
                                    (continued...)     47.5.4.
waived those issues by failing to raise them in       avers that the district court erred in giving ef-
the district court.                                   fect to the exclusionary clause, because it vio-
                                                      lates Texas public policy.
                       I.
   Doughten was a passenger in her son-in-                                    II.
law’s car when a third party rear-ended their            Doughten’s failure to respond to the
vehicle, injuring her. Her son-in-law, James          motion for summary judgment means that she
Gray, also was a member of Doughten’s                 did not raise, in the district court, the issues
household. Defendant State Farm Mutual                she urges on appeal. Fifth Circuit cases do not
Automobile Insurance Company (“State                  consistently describe the standard for
Farm”) insured her and her vehicle and insured        considering an issue raised for the first time on
Gray under a separate policy.                         appeal. Some panels have stated that we need
                                                      not do so “unless it is a purely legal issue and
   Doughten sought and recovered money                our refusal to consider it would result in a mis-
from three sources: (1) The negligent driver’s        carriage of justice.” E.g., Heci Exploration
insurance carrier paid up to its third-party          Co. v. Holloway, 862 F.2d 513, 518 & n.7
policy limits; (2) State Farm paid up to the          (5th Cir. 1988) (emphasis added). More re-
limit of Gray’s underinsured motorists policy;        cently, panels have explained that this court
and (3) State Farm paid up to the limit of            can consider an issue for the first time on ap-
Doughten’s Personal Injury Protection Policy.         peal if “the issue presents a pure question of
Doughten sought payment from State Farm               law or [is] an issue which, if ignored, would
under her Texas personal automobile policy            result in a miscarriage of justice.” E.g., United
for underinsured motorists. State Farm denied         States ex rel. Wallace v. Flintco, Inc., 143
payment, and Doughten filed this suit in state        F.3d 955, 971 (5th Cir. 1998) (emphasis add-
court, seeking actual damages for breach of           ed). We need not resolve the conflict to
the insurance contract and extra-contractual          decide whether Doughten can make new
damages pursuant to article 21.21 of the Texas        arguments on appeal, because she failed to
Insurance Code. State Farm removed on the             respond to the summary judgment motion
basis of diversity jurisdiction.                      altogether.

   State Farm moved for summary judgment;                The courts of appeals retain broad
Doughten did not respond. The court granted           discretion to hear issues not presented to the
summary judgment based on a clause in the in-         district court.1 On the facts of this case, we
surance policy that excludes payment for              will not exercise that discretion, for to do so
“bodily injury sustained while occupying, or          would interfere with the managerial role of the
when struck by, any motor vehicle or trailer of       district court and would confuse our position
any type owned by you or any family member
which is not insured for this coverage under
the policy.”                                             1
                                                           Singleton v. Wulff, 438 U.S. 106, 121 (1978)
                                                      (“The matter of what questions may be taken up
  Doughten alleges two errors. First, she ar-         and resolved for the first time on appeal is one left
gues that declaratory judgment, rather than           primarily to the discretion of the courts of appeals,
summary judgment, was proper. Second, she             to be exercised on the facts of individual cases.”);
                                                      Heci, 862 F.2d at 518 & n.7 (same).

                                                  2
with that of the district court.                          however, State Farm would prevail, for the
                                                          reasons cogently set forth by the district court.
    When a party fails to file any response to a
summary judgment motion or offer an excuse                                     III.
for its failure, the district court should not face          Doughten alleges that the court should have
reversal based on novel issues. At summary                resolved the legality of the contract’s ex-
judgment, Dought en failed to make any legal              clusionary clause through a declaratory
arguments or identify the fact issues necessary           judgment action rather than at summary
to justify a trial. Her error went far beyond the         judgment. Doughten misunderstands the
failure to raise a single legal argument and              nature of a motion for summary judgment.
more resembles the failure to raise an entire
claim or defense. We have previously ignored                 Summary judgment is appropriate if the
defenses when argued for the first time on                evidence on record “show[s] that there is no
appeal.2                                                  genuine issue as to any material fact and that
                                                          the moving party is entitled to judgment as a
   On appeal, Doughten does not even offer                matter of law.” FED. R. CIV. P. 56(c). The
an excuse for failing to respond to the                   moving party bears the initial burden of
summary judgment motions. Her failure to                  demonstrating an absence of evidence
respond should not permit her, effectively, to            supporting the nonmovant’s case. Celotex
circumvent the district court entirely. When              Corp. v. Catrett, 477 U.S. 317, 325 (1986). If
exercising our discretion to hear issues first            the nonmovant bears the burden of proving the
raised on appeal, we should consider how it               issue at trial, the movant merely can point to
would affect judicial economy and man-                    the absence of evidence in the record. Id. at
agement. Payne v. McLemore’s Wholesale &                  323-24. The nonmoving party may not rest on
Retail Stores, 654 F.2d 1130, 1146 (5th Cir.              the mere allegations or denials of its pleadings
Unit A Sept. 1981).                                       but must respond by setting forth specific facts
                                                          indicating a genuine issue for trial.3
   The risk of interfering with the district
court’s ability to resolve cases at summary                  Courts should resolve disputed legal issues
judgment outweighs the slight chance of in-               at summary judgment, even though they lack
justice posed by denying Doughten’s new and               the power to resolve factual disputes. 4 The
dubious arguments. Even if we were to
consider Doughten’s issues on the merits,
                                                             3
                                                                 Webb v. Cardiothoracic Surgery Assocs,
                                                          P.A., 139 F.2d 532, 536 (5th Cir. 1998); Figgie
                                                          Int’l, Inc. v. Bailey, 25 F.3d 1267, 1269-70 (5th
   2
     Estate of Martineau v. ARCO Chem. Co., 203           Cir. 1994).
F.3d 904, 913 (5th Cir. 2000) (refusing to consider
                                                             4
a limitations argument that the party had failed to             Hang On, Inc. v. City of Arlington, 65 F.3d
raise when briefing a motion for summary                  1248, 1257 (5th Cir. 1995) (explaining power of
judgment). Cf. Hinsley v. Boudloche, 201 F.3d             district court to evaluate legal theory’s merits at
638, 645 (5th Cir. 2000) (refusing to consider            summary judgment); Neff v. Am. Dairy Queen
plaintiff’s arguments for tolling the statute of          Corp., 58 F.3d 1063, 1065 (5th Cir. 1995) (hold-
limitations where she had not raised them at              ing that district court properly resolved question of
summary judgment).                                                                               (continued...)

                                                      3
district court correct ly chose to resolve the           unbroken line of cases holding that insurers
legal issue of the exclusionary clause’s validity        lawfully can exclude some of a family’s
at summary judgment. We review that                      vehicles from coverage.6
decision de novo. Rushing v. Kan. City S. Ry.,
185 F.3d 496, 504 (5th Cir. 1999).                          Doughten relies on two cases to show that
                                                         the exclusion violates Texas public pol-
                     IV.                                 icySSStephens v. State Farm Mut. Auto. Ins.
   Texas Insurance Code article 5.06-1                   Co., 508 F.2d 1363 (5th Cir. 1975), and Bri-
requires automobile liability insurance to               ones v. State Farm Mut. Auto. Ins. Co., 790
include coverage against uninsured and                   S.W.2d 70 (Tex. App.SSSan Antonio 1990,
underinsured motor vehicles. The insured can             writ denied). Neither is good law.
waive such coverage in writing. TEX. INS.
CODE ANN. art. 5.06-1 (Vernon 1981).                        In Stephens, 508 F.2d at 1367, we held that
Doughten argues that this statutory
requirement creates an amorphous public
policy that invalidates St ate Farm’s                       5
                                                             (...continued)
exclusionary clause.                                     Farm Mut. Ins. Co. v. Conn, 842 S.W.2d 350,
                                                         351-52 (Tex. App.SSTyler 1993, writ denied)
    The language of the statute presents the             (enforcing clause excluding uninsured family mem-
first major obstacle for Doughten. The statute           bers’ cars from coverage against underinsured
provides that “[t]he coverages required under            motorists); Tex. Farm Bureau Mut. Ins. Co. v.
this Article shall not be applicable where any           Tatum, 841 S.W.2d 89, 92 (Tex. App.SSTyler
insured named in the policy shall reject the             1992, writ denied) (same); Tex. Farmers Ins. Co.
                                                         v. McKinnon, 823 S.W.2d 345, 346-47 (Tex.
coverage in writing.” Id. Because the statute
                                                         App.SSBeaumont 1992, writ denied) (same).
expressly permits waiver, Doughten would
have to advance a unique reason that waivers                6
                                                               Holyfield v. Members Mut. Ins. Co., 572
of claims against uninsured family members               S.W.2d 672, 673 (Tex. 1978) (establishing rule
violate public policy. She fails to do so.               that insurer can refuse to insure certain vehicles
                                                         consistent with Texas statute requiring liability
   Several Texas courts of appeals have ruled            insurance); Farmers Tex. County Mut. Ins. Co. v.
that an insurance company can lawfully                   Griffin, 868 S.W.2d 861, 868-69 (Tex.
disclaim uninsured motorists liability for               App.SSDallas 1994, no writ); Conlin v. State
accidents involving uncovered family                     Farm Auto. Ins. Co., 828 S.W.2d 332, 336-37
members.5 This rule is consistent with an                (Tex. App.SSAustin 1992, writ denied); Harwell v.
                                                         State Farm Mut. Auto. Ins. Co., 782 S.W.2d 518,
                                                         520 (Tex. App.SSHouston [1st Dist.] 1990, no
                                                         writ); Berry v. Tex. Farm Bureau Mut. Ins. Co.,
   4
    (...continued)                                       782 S.W.2d 246, 247 (Tex. App.SSWaco 1989,
contract interpretation at summary judgment              writ denied); Beaupre v. Standard Fire Ins. Co.,
because it was a legal issue).                           736 S.W.2d 237, 238 (Tex. App.SSCorpus Christi
                                                         1987, writ denied); Broach v. Members Ins. Co.,
   5
    Reyes v. Tex. All Risk Gen. Agency, Inc., 855        647 S.W.2d 374, 375 (Tex. App.SSCorpus Christi
S.W.2d 191, 191-92 (Tex. App.SSCorpus Christi            1983, no writ); Stagg v. Travelers Ins. Co., 486
1993, no writ) (upholding identical clause); State       S.W.2d 399, 402-04 (Tex. Civ. App.SSBeaumont
                                    (continued...)       1972, no writ).

                                                     4
Texas law prohibited an insurer from                    authority by Texas’s intermediate appellate
excluding some of an insured’s vehicles from            courts favors validity.7 The district court
uninsured motorists policies while covering             properly upheld the validity of the exclusionary
other vehicles. We recognized that two                  clause at summary judgment.
intermediate appellate courts had reached the
opposite conclusion but interpreted dictum                 AFFIRMED.
from the Texas Supreme Court as leaning
toward invalidity. Id.

   We no longer need to rely on dictum, how-
ever, because the Texas Supreme Court has
held such clauses valid. Holyfield, 572
S.W.2d at 673. We recognized the change in
state law and upheld a vehicle exclusion in
American Economy Insurance Co. v. Tomlin-
son, 12 F.3d 505, 509 (5th Cir. 1994).

    In Briones, the court invalidated an exclu-
sionary clause in an underinsured motorists
insurance contract, 790 S.W.2d at 74, that
barred insureds from recovering if the vehicle
was “available for” the insured’s “regular use,”
id. at 71. The court characterized the question
on appeal as a factual dispute over whether the
plaintiff had used the truck “regularly.” Id. at
72. Despite evidence that he had used it
regularly over five years, the court allowed
recovery. Id. at 74. The court relied heavily
on Stephens and on an interpretation of a
Texas Supreme Court case later rejected in
Holyfield. Id. See Holyfield, 572 S.W.2d at
673. The court emphasized that the employer
had provided the vehicle and that courts
should make this determination on a case-by-
case basis. Briones, 790 S.W.2d at 74.

   We conclude that the Texas Supreme Court
would at least restrict Briones to its facts. The
authorities that Briones relies on have since
been discredited, and Briones itself describes
a very limited holding. Briones does not
extend to invalidate waivers of claims against
uninsured family members. The weight of
                                                           7
                                                               Cases cited supra note 5.

                                                    5
