                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           July 2, 2004

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                       _____________________                     Clerk

                            No. 03-60441
                       _____________________

MARTIN TURNER, Etc.; ET AL.,

                                                         Plaintiffs,

MARTIN TURNER, Individually and Representative of Syndicates
MEB861, WHS2, COX 590, TMH 625, COP1036, RCT 483, WTK457,
Wurttembergische Versicherung AG, and Terra Nova Insurance
Company Limited,

                               Plaintiff - Appellant-Cross-Appellee,

                                versus

TRANSPORT INTERNATIONAL POOL INC.; ET AL.,

                                                         Defendants,

                                versus

TRAVELERS CASUALTY & SURETY COMPANY,

                               Garnishee - Appellee-Cross-Appellant.

__________________________________________________________________

           Appeal from the United States District Court
        for the Southern District of Mississippi, Biloxi
                        USDC No. 1:99-CV-17
_________________________________________________________________

Before JOLLY, JONES, and PRADO, Circuit Judges.

PER CURIAM:*

     This appeal presents a dispute over insurance coverage in a

commercial general liability policy owned by Mississippi Design &

     *
       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this opinion should not be published and is not precedent except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.
Development, Inc. ("MDD").            We begin with a recitation of the

background facts.

                                        I

      MDD was sued by the Carlo Corporation in federal court,                for

damages to Carlo’s slot machines.           Carlo contended that MDD had

failed properly and adequately to inspect the trailers in which

Carlo’s slot machines were to be transported and stored, with the

result -- at some point either in transportation or storage or both

--    that   water   entered    the    trailers,    thereby       damaging   the

water-sensitive slot machines.         The complaint was later amended to

substitute as plaintiff, Martin Turner, Carlo’s subrogated insurer

who had compensated Carlo for its losses.                MDD notified its

insurer, Travelers, of the suit and requested that Travelers

provide MDD with a defense and indemnification. On August 3, 1998,

MDD   received   a   letter    from    Travelers   denying    a    defense   and

indemnification based on a "sale, storage or safekeeping" exclusion

in the policy -- obviously contending that the damage to the

machines occurred during storage, not during transportation, which

the policy covered.

      On June 25, 2001, MDD and Turner entered into a consent

judgment, in favor of Turner and against MDD for $630,000.              As part

of the consent judgment, the parties entered into a covenant not to

execute, under which Turner agreed not to enforce the judgment

against MDD; in turn, MDD assigned its right to recover under the



                                        2
Travelers policy to Turner.1       Accordingly, the consent judgment was

entered against MDD on June 27, 2001.           On February 5, 2002, Turner

filed a Suggestion of Writ of Garnishment in federal court against

Travelers, seeking to recover the proceeds of MDD’s insurance

policy.     The   district    court,      ruling   against    Turner,    granted

Travelers’ motion for summary judgment, concluding that Travelers

did not breach its duty to defend MDD and therefore could not be

held liable under the consent judgment.            Both parties timely filed

notices of appeal:     Turner appeals the district court’s grant of

summary   judgment,   holding      that     Travelers   did   not   breach   its

contractual duty to defend; Travelers cross-appeals, arguing that

the district court erred in granting Turner’s motion for leave to

file a written contest, that Turner’s claims are time-barred, and

that there was no “occurrence” under the terms of the policy.

     This   court   reviews    a   district     court’s    grant    of   summary

judgment de novo and considers the same criteria that the district

court relied upon when deciding the motion.               Mongrue v. Monsanto

Co., 249 F.3d 422, 428 (5th Cir. 2001).

                                       II

     In its original briefing, Travelers argues with only one

sentence that the Writ of Garnishment in this case is void under

Mississippi law because it was never enrolled.                 See Buckley v.

     1
      As MDD’s assignee, Turner can obtain only those rights that
MDD could have itself asserted against Travelers. Ind. Lumberman’s
Mut. Ins. Co. v. Curtis Mathes Mfg. Co., 456 So.2d 750, 754 (Miss.
1984).

                                       3
Personnel Support Systems, Inc., 852 So.2d 648 (Miss. 2003);

Estelle v. Robinson, 805 So.2d 623 (Miss. App. 2002).2              This

argument is waived as inadequately briefed. See FED. R. APP. P.

28(a)(9)(A).     Moreover,   Travelers’    attempt   to   present   this

contention more fully on the eve of oral argument, styled as a

motion to dismiss, does not save it.      Cousin v. Trans Union Corp.,

246 F.3d 359, 373 n.22 (5th Cir. 2001) (stating that issues not

raised and argued in a party’s initial brief are normally waived on

appeal). Moreover, this argument is also waived because it appears

that it was never presented to the district court.         See Stewart

Glass & Mirror, Inc. v. U.S. Auto Glass Discount Centers, Inc., 200

F.3d 307, 316-17 (5th Cir. 2000).3




     2
     We note that Turner has now enrolled the judgment; this fact,
however, does not affect the disposition of this appeal.
     3
      We also note that application of FED. R. CIV. P. 69(a) is not
jurisdictional by virtue of its incorporating Mississippi execution
practice and procedure. Even if a Mississippi court would lack
subject matter jurisdiction to take any action with regard to an
unenrolled judgment, see Buckley, 852 So.2d at 650-52, the
incorporation of this Mississippi rule under FED. R. CIV. P. 69(a)
does not deprive this court of jurisdiction. See FED. R. CIV. P. 82
(stating that the Federal Rules of Civil Procedure, including Rule
69(a), “shall not be construed to extend or limit the jurisdiction
of the United States district courts”); 14 JAMES WM. MOORE ET AL,
MOORE’S FEDERAL PRACTICE § 82.02 (3d ed. 2003) (stating that the Rules
do not “affect the federal courts’ subject matter jurisdiction”;
instead “they are concerned exclusively with the fair and efficient
administration of justice in the federal courts”).

                                  4
                                   III

     Having determined that Travelers waived its argument regarding

the effect of Turner’s failure to enroll the Writ of Garnishment --

and that we have jurisdiction over this case -- we now turn to

address Travelers’ cross-appeals.

     Travelers cross-appeals the district court’s decision granting

Turner’s motion for leave to file a written contest, arguing that

the motion was untimely.    Once again we are required by FED. R. CIV.

P. 69(a) to apply Mississippi procedural rules.            Mississippi law

provides that:

          If the plaintiff believes that the answer of
          the garnishee is untrue, or that it is not a
          full discovery as to the debt due by the
          garnishee, or as to the property in his
          possession belonging to the defendant, he
          shall, at the term when the answer is filed,
          unless the court grant further time, contest
          the same, in writing, specifying in what
          particular he believes the answer to be
          incorrect.

MISS. CODE ANN.   §   11-35-45.   The    first   problem   with   Travelers’

argument is that the statute requires that objections be filed

within the court term when the district courts in Mississippi have

no terms but continually are “in session”.         See S.D. MISS. LOCAL RULE

77.1(A) (providing that “Court Always Open.         There are no terms of

court in the United States district courts of Mississippi”).

Second, the Mississippi statute allows the court to grant Turner

“further time” to file his answer.        Third, the Mississippi Supreme

Court has overlooked the rigid requirements of this statute and


                                    5
allowed the case to proceed despite “the lack of formal pleading.”

State Farm Mut. Auto. Ins. Co. v. Eakins, 748 So.2d 765, 768 n.2

(Miss. 1999).

     Travelers also argues that Turner’s claim is time barred by

Mississippi’s three-year statute of limitations. See MISS. CODE ANN.

§ 15-1-49.   This argument confuses the nature of the claim at issue

and is thus misplaced.      This lawsuit is based upon Travelers’

breach of its duty to indemnify MDD, not its duty to defend.   Under

the terms of the policy Travelers agreed to pay MDD “those sums

that [MDD] becomes legally obligated to pay” and Turner’s claim

accrued when MDD became legally obligated to pay -- upon the entry

of the final consent judgment.    Owens-Illinois, Inc. v. Edwards,

573 So.2d 704, 706 (Miss. 1990) (stating that in Mississippi, a

cause of action accrues when “it comes into existence as an

enforceable claim; that is, when the right to sue becomes vested”).

Thus, the cause of action accrued on June 27, 2001 and this

lawsuit, filed on February 5, 2002, is timely.4

                                 IV

     We finally turn to evaluate the district court’s grant of

summary judgment in favor of Travelers, which dismissed Turner’s

complaint.    The district court relied on the “sale, storage or

safekeeping” exclusion in the policy to hold that Travelers had no


     4
     We do not address Travelers’ argument, raised for the first
time on appeal, that there was no “occurrence” as required by the
policy. See Stewart Glass & Mirror, 200 F.3d at 316-17.

                                  6
duty to defend.   We find that the district court’s grant of summary

judgment was error and therefore we REVERSE.

     Under Mississippi law, “unjustifiably denying liability or

breaching a duty to defend will preclude an insurer from relying on

policy provisions that deny coverage.”       Jones v. S. Marine &

Aviation Underwriters, Inc., 888 F.2d 358, 362 (5th Cir. 1989).

Thus, we must decide whether Travelers’ refusal to defend MDD was

“unjustifiable”; if it were, Travelers is precluded from relying on

the "sale, storage or safekeeping" exclusion.

     Mississippi cases have decided that a “liability insurance

company has an absolute duty to defend a complaint which contains

allegations covered by the language of the policy; it clearly has

no duty to defend a claim outside the coverage of the policy.”

Sennett v. United States Fidelity and Guar. Co., 757 So.2d 206, 212

(Miss. 2000) (emphasis added) (quoting Moeller v. American Guar. &

Liab. Ins. Co., 697 So.2d 400, 403 (Miss. 1997)); see also United

States Fidelity & Guar. Co. v. OmniBank, 812 So.2d 196, 200 (Miss.

2002).   Consequently, “the obligation of a liability insurer [to

defend] is to be determined by the allegations in the complaint” as

applied to the policy language. Sennett, 757 So.2d at 212 (quoting

Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So.2d 400, 403

(Miss. 1997).     Finally, any doubt with regard to an insurer’s

defense obligation is resolved in favor of the insured.     Liberty

Mut. Fire Ins. Co. v. Canal Ins. Co., 177 F.3d 326, 331 (5th Cir.



                                  7
1999); see also Moeller v. Am. Guar. & Liab. Ins. Co., 707 So.2d

1062, 1069 (Miss. 1996) (stating that “the insurance carrier has a

contractual duty to furnish a legal defense, whether the claim

later proves to be meritorious or not”).

      In the instant case, it is uncertain from the complaint before

us whether Travelers had a duty to defend; that is, the complaint

does not allege whether the damage to the slot machines took place

during    transportation    (requiring     a   defense)    or    storage   (not

requiring a defense because of the exclusion).              When we resolve

this uncertainty in favor of Turner, however, we must presume that

the   damage   occurred     during   transportation.       Thus,    Travelers’

reliance on the “sale, storage or safekeeping” is precluded and its

refusal to defend MDD is “unjustifiable”.          Consequently, Travelers

is liable for the consent judgment entered against MDD.

      For these reasons the district court’s grant of summary

judgment in    favor   of   Travelers     is   REVERSED,   and     judgment   is

RENDERED in favor of Turner.5

      5
     Turner has also filed a motion for sanctions against Travelers
under FED. R. APP. P. 38, 28 U.S.C. § 1927, and our inherent
authority to regulate the conduct of the parties and their
attorneys, see Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991).
Specifically,    Turner   complains   that    Travelers   submitted
supplemental authorities under FED. R. APP. P. 28(j) and filed the
previously discussed motion to dismiss, supra § II, on the eve of
oral argument with the intent to thwart Turner’s preparations in
this case.    Moreover, Turner argues that after oral argument,
Travelers again abused the 28(j) procedure by submitting additional
authorities amounting to a re-argument of its appeal.

     Turner’s contentions have some merit. First, it is clear that
Travelers was aware of its primary argument in the motion to

                                      8
                                            REVERSED and RENDERED.




dismiss when its original brief was filed in this case (Travelers’
original brief dedicated one line to arguing that the judgment was
void because it had not been enrolled).     Thus, its attempt to
reassert and develop the issue on the eve of oral argument is most
reasonably explained by either bad faith or negligence. Second,
its letter filed after oral argument pursuant to Rule 28(j) was
stricken by this court as an attempt to re-brief the case.

     While this case may present a situation where sanctions would
be appropriate, we also recognize the issues raised in Travelers
motion to dismiss could conceivably be construed as jurisdictional.
Furthermore, its failure adequately to brief the issue may be
attributable to negligence rather than bad faith. We will not
assume the worst, and accordingly Turner’s motion for sanctions is
DENIED.

                                 9
