     Case: 09-30586     Document: 00511007197          Page: 1    Date Filed: 01/19/2010




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

                                                  FILED
                                                                          January 19, 2010

                                     No. 09-30586                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



HOMESTEAD INSURANCE COMPANY,

                                                   Plaintiff - Appellee
v.

GUARANTEE MUTUAL LIFE COMPANY,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:03-CV-3116


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Appellant Guarantee Mutual Life Company appeals the district court’s
grant of summary judgment for Appellee Homestead Insurance Company on the
issue of liability.    Homestead has moved to dismiss the appeal for lack of
jurisdiction, arguing that the judgment is not a final, appealable judgment, and
Guarantee has not followed the certification process of 28 U.S.C. § 1292(b). We
agree that we lack jurisdiction; we therefore grant Homestead’s motion and


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-30586     Document: 00511007197      Page: 2   Date Filed: 01/19/2010



                                   No. 09-30586

dismiss the appeal.
      The background of this case is summarized in our prior opinion in this
case, see Homestead Ins. Co. v. Guarantee Mut. Ins. Co., 287 F. App’x 306, 307
(5th Cir. 2008) (per curiam), and we repeat only the relevant facts. In 2004,
Tonti Development Corporation (Tonti) purchased insurance policies from both
Homestead Insurance Company (Homestead) and Guarantee Mutual Life
Company (Guarantee). The following year, a Tonti employee filed suit against
Tonti and a coworker, claiming to have been the victim of the coworker’s
intentional tort. Guarantee initially undertook the defense, but withdrew after
being added as a defendant. Homestead then assumed the defense, reserving its
right to claim that the tort fell outside the coverage of the policy it issued. After
two jury trials and two appeals, Tonti was found not liable for the coworker’s
actions.
      Homestead then filed suit in federal district court, seeking (1) a
declaratory judgment that it had no duty to defend Tonti and (2) reimbursement
of its costs and fees from Guarantee.        The district court initially granted
summary judgment for Guarantee based on a policy defense, but we reversed,
finding that Guarantee had waived its right to assert that defense. Id. at 309.
On remand, Homestead moved for summary judgment on the question of
liability, reserving for trial a determination of the costs it incurred defending
Tonti. Guarantee then filed a cross-motion for summary judgment, seeking
dismissal of Homestead’s claim. The district court issued an Order and Reasons
on June 29, 2009, granting Homestead’s motion for summary judgment on the
question of liability and denying Guarantee’s cross-motion. Guarantee filed a
notice of appeal on July 8, 2009. Homestead subsequently moved to dismiss the


                                         2
   Case: 09-30586    Document: 00511007197      Page: 3   Date Filed: 01/19/2010



                                   No. 09-30586

appeal for lack of jurisdiction.
      We have jurisdiction to review all final decisions of the district courts, 28
U.S.C. § 1291, certain interlocutory orders, id. § 1292(a), and collateral orders,
Goodman v. Harris County, 443 F.3d 464, 467 (5th Cir. 2006). We also have
jurisdiction over certain orders certified by the district court if application is
made within ten days and we grant permission to appeal. 28 U.S.C. § 1292(b).
“[A] judgment for the plaintiff that determines liability for, but does not fix the
amount of, damages is appealable solely under 28 U.S.C. § 1292(b) . . . .”
Pemberton v. State Farm Mut. Auto. Ins. Co., 996 F.2d 789, 791 (5th Cir. 1993);
accord Thibodeaux v. Executive Jet Int’l, Inc., 328 F.3d 742, 749 n.15 (5th Cir.
2003). Guarantee has not sought certification nor applied within the ten-day
period, and we accordingly lack jurisdiction over this appeal.
      Guarantee cites United States v. Brook Contracting Corp., 759 F.2d 320
(3d Cir. 1985), for the proposition that a judgment is final and appealable if only
a ministerial act is required to implement it. In that case, the government had
requested a specified amount in each of two complaints filed against the
defendants. Id. at 322. When the district court granted the government’s
motion for summary judgment, it did not specify the amount of damages that
were being awarded. Id. at 322–23. The Third Circuit held that the “‘practical
effect’” of the judgment was nevertheless final because the government’s motion
for summary judgment requested an award of the amounts listed in the
complaints, and only a “‘ministerial act’” would be required to implement the
judgment granting that motion. Id. at 323 (quoting Hattersley v. Bollt, 512 F.2d
209, 213–14 (3d Cir. 1975)).
      We find Brook Contracting readily distinguishable.             Here, while


                                        3
   Case: 09-30586   Document: 00511007197     Page: 4   Date Filed: 01/19/2010



                                 No. 09-30586

Homestead alleged an amount of damages in its complaint, the motion for
summary judgment specifically stated that Homestead sought “only a
determination as to Guarantee’s liability for the entirety of Tonti’s defense,
leaving the determination of the amount of Guarantee’s liability for trial.”
Unlike in Brook Contracting, an amount of damages cannot be discerned from
the district court’s grant of summary judgment such that a ministerial act could
implement a final judgment against Guarantee.
      The district court’s order is not a final judgment over which we have
jurisdiction, nor does an exception to that requirement apply. We therefore
GRANT Homestead’s motion to dismiss and DISMISS Guarantee’s appeal.




                                       4
