     Case: 15-30471      Document: 00513433781   Page: 1   Date Filed: 03/22/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                  No. 15-30471
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                  March 22, 2016
LARRY NAQUIN, SR.,                                                Lyle W. Cayce
                                                                       Clerk
             Plaintiff

v.

ELEVATING BOATS, L.L.C.,

             Defendant-Third Party Plaintiff - Appellant

v.

STATE NATIONAL INSURANCE COMPANY,

             Third Party Defendant - Appellee




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


Before DENNIS, ELROD, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      In this insurance coverage dispute, Elevating Boats, LLC (“EBI”) appeals
a summary judgment in favor of State National Insurance Company (“SNIC”).
For the reasons outlined below, we AFFIRM the district court.
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                                           No. 15-30471
                                                  I.
       This appeal flows directly from a previous decision by this court. In that
matter, Larry Naquin was using an EBI land-based crane to relocate a test
block when the pedestal of the crane snapped, causing the crane to topple over.
Naquin v. Elevating Boats, L.L.C., 744 F.3d 927, 931 (5th Cir. 2014). Upon
jumping from the crane house, Naquin sustained a broken left foot, a severely
broken right foot, and a lower abdominal hernia. Id. Naquin’s cousin’s
husband, another EBI employee, was crushed by the crane and killed. Id.
Despite reparative surgeries and physical therapy sessions, Naquin was
unable to return to physical work. Id.
        Naquin subsequently sued EBI pursuant to the Jones Act, and the suit
proceeded to trial. Id. After a three-day trial, a jury concluded that Naquin was
a Jones Act seaman and that EBI’s negligence caused his injury. The jury
subsequently awarded Naquin $1,000,000 for past and future physical pain
and suffering, $1,000,000 for past and future mental pain and suffering, and
$400,000 for future lost wages. Id. EBI appealed, challenging, among other
things, the grant of Jones Act seaman status to Naquin and the sufficiency of
evidence to establish EBI’s negligence. Id. at 932.
        Pertinent to this appeal, the Naquin majority 1 affirmed the jury’s verdict
as to liability, concluding that the jury correctly determined that Naquin
qualified as a Jones Act seaman; the entire panel, though, agreed that EBI
acted negligently in failing to provide a reasonably safe work environment and
work equipment. Naquin, 744 F.3d at 932–38. Specifically, as to the negligence
inquiry, we held: “EBI was the only party responsible for welding the LC-400


       1 The Naquin panel consisted of Circuit Judges Davis and Jones and District Court Judge
Milazzo. Judge Jones dissented, “concur[ring] in all of th[e] good opinion except the decision affirming
Naquin’s status as a seaman.” Naquin, 744 F.3d at 941. By her estimation, Naquin was not a Jones
Act seaman because he failed both the duration and nature components of the test outlined by the
Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347 (1995).
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                                  No. 15-30471
crane to its base, a weld which was indisputably defective and the direct cause
of Naquin’s injuries.” Id. at 937. We, however, vacated the verdict as it related
to damages and remanded the matter to the district court to conduct a new
trial on that specific issue. Id. at 938–41.
      The district court subsequently granted EBI leave to file a third-party
complaint against its insurance companies, SNIC and Certain London
Insurers (“London Insurers”). In its third-party demand, EBI complained that
both SNIC and London Insurers breached their insurance contracts by denying
EBI’s insurance claims arising from Naquin’s accident and by failing to provide
EBI with defense and indemnity. EBI, in connection to its claims, also sought
statutory bad-faith damages pursuant to Louisiana Civil Code 1997 and
Louisiana Recording Statute 22:1973. The district court granted a motion to
sever, ordering that EBI’s claims against SNIC and London Insurers be
severed from the remaining issue of damages and resolved by a separate trial.
      SNIC moved for summary judgment, asserting, chiefly, that EBI was not
entitled to coverage under its Protection & Indemnity Policy (the “Policy”)
because coverage did not extend to Naquin’s land-based incident and that EBI
failed to comply with the notice requirements imposed by the Policy. EBI
responded in opposition, explaining that it was entitled to indemnity under the
“any casualty or occurrence” language of the Policy. The remaining opposition
to SNIC’s summary judgment motion concerned EBI’s perceived lack of actual
notice. Upon consideration of both parties’ arguments, the district court
granted summary judgment to SNIC. Thereafter, the district court entered
final judgment in favor of SNIC, and later denied EBI’s Rule 59(e) Motion to
Reconsider.
                                        II.
      We consider only whether the district court erred in granting summary
judgment to SNIC on the grounds that the Policy did not cover EBI’s liability
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                                  No. 15-30471
for Naquin’s incident and that SNIC, therefore, exhibited no bad faith in
denying coverage. Summary judgment is proper when “the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review the district
court’s grant of summary judgment de novo, construing all facts and inferences
in the light most favorable to the nonmoving party. See EEOC v. Chevron
Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009). Because the proper
interpretation of an insurance policy presents a legal question, not a factual
one, the district court’s interpretations of the Policy are also reviewed de novo.
See Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 878 (5th Cir. 2009).
      A. Scope of Coverage

      The “Indemnity” provision of the Policy at the heart of this appeal,
provides:
      Subject to all exclusions and other terms of this Policy, the
      Underwriters agree to indemnify the Assured for any sums which
      the Assured, as owner of the Vessel, shall have become liable to
      pay, and shall have paid in respect of any casualty or occurrence
      during the currency of the Policy, but only in consequence of any
      other matters set forth hereunder . . .

(emphasis added). The district court interpreted this critical language as
excluding coverage to EBI due to the circumstances surrounding its liability in
Naquin. We endorse this interpretation.
      In the absence of a specific and controlling federal maritime rule over
this dispute, we interpret this maritime insurance contract under Louisiana
state law. See Albany Ins. Co. v. Anh Thi Kieu, 927 F.2d 882, 886 (5th Cir.
1991). Under Louisiana law, “an insurance policy is a contract between the
parties and should be construed using the general rules of contract
interpretation set forth in the Louisiana Civil Code.” First Am. Bank v. First



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                                          No. 15-30471
Am. Transp. Title Ins. Co., 585 F.3d 833, 837 (5th Cir. 2009); see also
Cadwallader v. Allstate Ins. Co., 848 So. 2d 577, 580 (La. 2003).
       Words and phrases used in an insurance policy should be construed
using their plain, ordinary and generally prevailing meaning, unless the words
have acquired a technical meaning. Cadwallader, 848 So. 2d at 580; Carbon v.
Allstate Ins. Co., 719 So.2d 437, 439–40 (La. 1998). Thus, when the words of
the insurance contract “are unambiguous and the parties’ intent is clear, the
insurance contract will be enforced as written.” Doerr v. Mobil Oil Corp., 774
So. 2d 119, 124 (La. 2004) (citing La. Civ. Code Ann. art. 2046). A contractual
“provision susceptible of different meanings must be interpreted with a
meaning that renders it effective and not with one that renders it ineffective,”
so as to avoid rendering any provision in the contract superfluous. La. Civ.
Code Ann. art. 2049; Berk-Cohen Assocs., LLC v. Landmark Am. Ins. Co., No.
07-9205, 2009 WL 3738152, at *3–4 (E.D. La. Nov. 5, 2009). The provisions of
the contract “must be interpreted in light of the other provisions so that each
is given the meaning suggested by the contract as a whole.” La. Civ. Code Ann.
art. 2050; First Am. Bank, 585 F.3d at 837.
       As relevant here, SNIC avers that the terms of the subject Policy—
specifically, the “as owner of the Vessel” clause—does not provide coverage for
the land-based incident due to EBI’s negligence as described in Naquin. Before
the district court, EBI urged a blanket reading of the Policy that would provide
coverage for “any casualty or occurrence” for which EBI might become liable. 2




       2  We note that EBI’s arguments on appeal evince a marked departure from those argued in
opposition to summary judgment before the trial court. It is the record before the district court that
we consider on this appeal. See Offshore Drilling Co. v. Gulf Copper & Mfg. Corp., 604 F.3d 221, 226
(5th Cir. 2010) (“We will not consider an argument asserted for the first time on appeal.”); see also
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).

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                                  No. 15-30471
      We are persuaded, guided by the law and facts before us, that EBI’s
strained interpretation of the Policy is unreasonable in this context. See La.
Civ. Code Ann. art. 2050; First Am. Bank, 585 F.3d at 837. We, therefore, follow
the district court in holding that there is no genuine issue that the scope of
coverage of the Policy does not extend to EBI’s liability for the Naquin incident.
In reaching this conclusion, we decline EBI’s invitation to read the provision
in the piecemeal fashion that it prefers—a construal that would directly
contradict the well-established Louisiana rules regarding contractual
interpretation. See Foret v. La. Farm Bureau Cas. Ins. Co., 582 So. 2d 989, 991
(La. App. 1 Cir. 1991) (“An insurance contract must be construed as a whole;
one section is not to be construed separately or at the expense of disregarding
other sections.”). The only way to give meaning to both provisions of the Policy
is to construe the Policy as limiting coverage to “any casualty or occurrence”
which arises out of EBI’s conduct “as owner of the Vessel.”
      Moreover, our holding is required under our precedent. See Lanasse v.
Travelers Ins. Co., 450 F.2d 580 (5th Cir. 1971). In Lanasse, the plaintiff was
injured when the operator of a platform owned by Chevron allowed a welding
machine to swing against the vessel’s railing. Id. at 582. Chevron claimed, in
part, that its liability was covered under the terms of a standard P&I Policy.
Id. at 583. Chevron, the Lanasse court reasoned, “was found at fault for the
manner in which the crane was operated. The vessel offered nothing further
than a condition or locale for the accident.” Id. at 584. As we explained:
      There must be at least some causal operational relation between the
      vessel and the resulting injury. The line may be a wavy one
      between coverage and noncoverage, especially with industrial
      complications in these ambiguous amphibious operations plus
      those arising from the personification of the vessel as an actor in a
      suit in rem. But where injury is done through nonvessel operations,
      the vessel must be more than the inert locale of the injury. Nothing
      more occurred here, for it was Chevron’s actions as a platform

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                                           No. 15-30471
        operator or as a crane operator that caused the harm, and that does
        not make it a liability of a shipowner.

Id. (emphasis added). It follows then that the holding required under this
indistinguishable and controlling decision could not be clearer. Naquin’s
incident in no way arose out of EBI’s conduct as “owner of the Vessel.” Naquin,
devoid of any indication that EBI was liable due to such conditions, confirms
as much; this understanding alone forecloses EBI’s arguments to the contrary.
See Naquin, 744 F.3d at 937 (“EBI was the only party responsible for welding
the LC–400 crane to its base, a weld which was indisputably defective and the
direct cause of Naquin’s injuries.”). Furthermore, the land-based crane did not
break on or even in close proximity to a vessel. Thus, EBI’s attempts to craft a
causal connection to a vessel are discharged, plainly and simply, by the
underlying facts and Naquin’s holding.
        Where there is no causal operational relation between the vessel and the
resulting injury, there is no extension of coverage for liability. We, therefore,
arrive at the identical conclusion as the Lanasse court: “it was [EBI’s] actions
as platform operator or as a crane operator that caused the harm, and that
does not make it a liability of a shipowner.” 450 F.2d at 584. 3
        B. Bad Faith
        Louisiana law instructs that in order for a claim of statutory bad faith to
survive, it must be based on a valid underlying claim. Matthews v. Allstate Ins.
Co., 731 F. Supp. 2d 552, 566 (E.D. La. 2010). As discussed above, we hold that
the Policy does not extend to EBI’s liability associated with the defective crane;
consequently, EBI has no valid underlying claim on which to stand.


        3  The district court also considered EBI’s argument that SNIC was required to provide it with
actual notice that the Policy limited coverage to EBI’s conduct as owner of a vessel, ultimately finding
the Policy’s language “sufficiently clear” to give notice regarding the limitation of coverage. We agree
that there existed no requirement that SNIC provide EBI with actual notice of the terms of the policy.
See, e.g., Urban Planning and Innovations, Inc. v. Alexander & Sanders Ins. Specialist, No. 07-7537,
2008 WL 191328, at *1 (E.D. La. Jan. 22, 2008).
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                                           No. 15-30471
Accordingly, the district court did not err in dismissing EBI’s claim for bad
faith. 4
                                     III.
        We AFFIRM the district court’s grant of summary judgment in favor of
SNIC.




        4 Because we affirm the district court’s grant of summary judgment to SNIC, we also affirm
the district court’s denial of EBI’s Motion to Reconsider pursuant to Federal Rule of Civil Procedure
59(e). Such motions are not the proper vehicle for rehashing evidence, legal theories, or arguments
that could have been offered or raised before entry of judgment. Templet v. Hydrochem, Inc., 367 F.3d
473, 479 (5th Cir. 2004). “Motions for a new trial or to alter or amend a judgment must clearly establish
either a manifest error of law or fact or must present newly discovered evidence. These motions cannot
be used to raise arguments which could, and should, have been made before the judgment issued.
Moreover, they cannot be used to argue a case under a new legal theory.” Simon v. United States, 891
F.2d 1154, 1159 (5th Cir. 1990) (quoting Fed. Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th
Cir.1986)). “Relief under Rule 59(e) is also appropriate when there has been an intervening change in
the controlling law.” Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003) (citing In
re Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002)). In denying EBI’s motion, the district
court concluded: “EBI has failed to present evidence to show that this court’s previous Order, granting
summary judgment on EBI’s claims in favor of SNIC, contained manifest errors of fact or law, and
that EBI’s motion is merely an attempt to rehash arguments which have already been raised before
this court.” We agree.
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