     Case: 15-30976      Document: 00513584278         Page: 1    Date Filed: 07/08/2016




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

                                      No. 15-30976                                  FILED
                                                                                 July 8, 2016
                                                                               Lyle W. Cayce
RSUI INDEMNITY COMPANY,                                                             Clerk

              Plaintiff - Appellant

v.

AMERICAN STATES INSURANCE COMPANY,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-2820


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
       Appellant RSUI Indemnity Company alleges that Appellee American
States Insurance Company failed to properly defend a lawsuit against their
common insureds. Following a three-day bench trial, the district court entered
judgment for American. In a thorough 33-page order, the court rejected RSUI’s
subrogation claim for two independent reasons: (1) the common insureds had




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-30976      Document: 00513584278         Page: 2    Date Filed: 07/08/2016



                                      No. 15-30976
no rights to subrogate to RSUI; and, even if they did, (2) RSUI did not carry its
burden of proof on causation.
      Without passing on the validity of the first reason, we affirm the district
court’s conclusion that RSUI did not carry its burden of proof on causation.
The parties agree that the district court’s conclusion regarding causation is a
finding of fact that we review for clear error. “Reversal is warranted under
clear error review only if the court is ‘left with the definite and firm conviction
that a mistake has been committed.’” 1 RSUI urges that it offered two expert
reports at trial that should leave us with such a “definite and firm conviction.”
But these reports do nothing to refute the basis of the district court’s finding
on causation—the testimony of the plaintiff’s lawyer that he would not have
settled for less than $3 million. Indeed, as American notes, the reports were
prepared prior to trial and could not have considered this testimony.
      At best, these reports—which were admitted into evidence in lieu of the
preparing expert’s testimony—conflict with the testimony of the plaintiff’s
lawyer. The Supreme Court has “unequivocally stated” that “when a trial
judge’s finding is based on his decision to credit the testimony of one of two or
more witnesses, each of whom has told a coherent and facially plausible story
that is not contradicted by extrinsic evidence, that finding, if not internally
inconsistent, can virtually never be clear error.” 2 We are not persuaded that
this is the exceptional case.
      The judgment of the district court is AFFIRMED.




       1 Barto v. Shore Constr., L.L.C., 801 F.3d 465, 471 (5th Cir. 2015) (quoting Jauch v.
Nautical Servs., Inc., 470 F.3d 207, 213 (5th Cir. 2006) (per curiam)).
       2 Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d 1031, 1036 (5th

Cir. 2015) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985)).
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