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

                                                 FILED
                                                                         December 30, 2009

                                       No. 09-30140                    Charles R. Fulbruge III
                                                                               Clerk

STEPHEN WILLIAMS; VANESSA WILLIAMS,

                                                   Plaintiffs - Appellants
v.

ALLSTATE INDEMNITY COMPANY,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                               USDC No. 2:08-CV-62


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Stephen and Vernessa Williams appeal the district court’s grant of
summary judgment to insurer Allstate Indemnity Company (“Allstate”) on their
claims for payment of losses suffered during Hurricane Katrina under their
homeowners’ insurance policy.             Because the record as narrowed by the
unappealed evidentiary rulings of the district court discloses no competent
summary judgment evidence that the Williamses suffered any losses in excess
of what Allstate has already paid, we AFFIRM.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                      No. 09-30140

                          I. Facts & Procedural History
      The Williamses’ home suffered serious damage during Hurricane Katrina.
At that time, the Williamses’ home was insured under a homeowners’ policy
issued by Allstate that provided $123,000 in coverage for the primary structure,
$12,300 in coverage for other structures, and $61,500 in coverage for the home’s
contents. The home was also insured under a flood policy issued by Allstate.
The Williamses reported a loss to Allstate on August 31, 2005.             Allstate
inspected the property on October 17, 2005 and ultimately paid the Williamses
a total of $134,762.43 under the two policies. These paid claims represented
losses estimated by Allstate in several categories: (1) under the homeowners’
policy, (a) $15,352.14 for wind damage to the house, fence, and trees;1 (b)
$1,165.35 for      depreciation; and (c) $2,500 for advanced additional living
expenses; and (2) under the flood policy, (a) $68,661.16 for structure damage to
the house and (b) $50,000 for losses from the contents of the house. Allstate
made the last of these payments in March of 2007.
      On August 27, 2007, the Williamses and six other plaintiffs filed a lawsuit
against Allstate in Louisiana state court seeking payment of the full policy limits
under the homeowners’ policy. Allstate removed the lawsuit to the United
States District Court for the Eastern District of Louisiana on November 1, 2007;
shortly afterward, the court ordered the plaintiffs’ claims severed and refiled.
The Williamses refiled their claim on January 3, 2008. After discovery, Allstate
moved for summary judgment, which the district court granted on November 26,
2008. The Williamses timely appealed.
                               II. Standard of Review
      We review a grant of summary judgment de novo, N. Am. Specialty Ins.
Co. v. Royal Surplus Lines Ins. Co., 541 F.3d 552, 555 (5th Cir. 2008), but



      1
          This number includes the policy’s $2,460 hurricane deductible.

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determinations of the admissibility or competency of summary judgment
evidence only for abuse of discretion, McIntosh v. Partridge, 540 F.3d 315, 320
(5th Cir. 2008). Summary judgment is proper “if the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” F ED. R. C IV. P. 56(c). A genuine issue of material fact exists
when the evidence is such that a reasonable jury could return a verdict for the
non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When
reviewing a grant of summary judgment, we view all facts and evidence in the
light most favorable to the non-moving party, United Fire & Cas. Co. v. Hixson
Bros., 453 F.3d 283, 285 (5th Cir. 2006), but the scope of our “inquiry is limited
to the summary judgment record before the trial court.” Topalian v. Ehrman,
954 F.2d 1125, 1131–32 n.10 (5th Cir. 1992). To avoid summary judgment, the
non-movant must go beyond the pleadings and come forward with specific facts
indicating a genuine issue for trial. Piazza’s Seafood World, LLC v. Odom, 448
F.3d 744, 752 (5th Cir. 2006). We may “affirm a grant of summary judgment on
any grounds supported by the record and presented to the [district] court.”
Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008).
                                  III. Analysis
      The Williamses appeal the district court’s determination that Allstate
owes no further indemnity to them for “structure damage” losses covered by the
homeowners’ policy. “Louisiana law . . . places the burden on the plaintiff
[insured] to establish every fact essential to recovery and to establish that the
claim falls within the policy coverage.” Ho v. State Farm Mut. Auto Ins. Co., 862
So. 2d 1278, 1281 (La. Ct. App. 2003); see also Doerr v. Mobil Oil Corp., 774 So.
2d 119, 124 (La. 2000) (“When determining whether or not a policy affords
coverage for an incident, it is the burden of the insured to prove the incident falls
within the policy’s terms. On the other hand, the insurer bears the burden of

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proving the applicability of an exclusionary clause within a policy.” (citations
omitted)), modified on other grounds, 787 So. 2d 573 (La. 2001).
      While these principles of law are clear, the parties dispute the question of
who bears the burden when an insured has suffered not only some losses which
are covered by the policy but also some which fall within an exclusion to
coverage. It is unnecessary for us to decide this question here because the
Williamses, of course, cannot recover from Allstate for a loss for which they have
already been paid pursuant to the policy, as is alleged to have occurred here.
The prima facie burden would rest with the Williamses at trial to show that, at
a minimum, they suffered a structure damage loss—whether covered or within
an exclusion—in excess of what Allstate has already paid on that claim. As
such, at summary judgment, Allstate needed only to note—as it did—the
absence of competent summary judgment evidence on this question to shift the
burden to the Williamses to identify evidence showing a genuine issue of
material fact sufficient to preclude summary judgment. See, e.g., Miss. River
Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000) (“If the burden at
trial rests on the non-movant, the movant must merely demonstrate an absence
of evidentiary support in the record for the non-movant’s case.”).
      The only “evidence” to which the Williamses direct the court in support of
their claim for damages in excess of what they have already been paid are (1) a
purported affidavit from Ms. Williams, which did not precisely estimate the
structure damage loss but explained that, despite spending all the money from
Allstate—plus $65,000 from the “Road Home” program—on repairs, the
Williamses “ran out of money to complete the repairs”; and (2) a report from the
Williamses’ proposed expert, Kenneth Savage, which estimated total repair costs
at $140,549.95. The affidavit and report, however, are not in the summary
judgment record: the district court affirmatively excluded this evidence, and the



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Appellants did not appeal that exclusion; therefore, we may not consider it.2 See
Topalian, 954 F.2d at 1131–32 n.10 (“[This court’s inquiry is limited to the
summary judgment record before the trial court . . . .”). The Williamses’ only
other summary judgment evidence of structure damage loss is in the form of
receipts showing $46,550.60 in repair costs—far less than the total amount
already paid by Allstate.3
       To the extent that the Williamses contend that the total of the receipts is
more than they have been paid on the wind damage claims, they wholly failed
to provide any evidence whatsoever to explain these receipts.                   Indeed, the
receipts exist in a virtual vacuum in the record that makes any interpretation
of their import effectively impossible. The receipts themselves do not clearly
reflect damage to the structure at all, let alone structure damage for which the
Williamses have or have not already been compensated. It was the Williamses’
burden in opposition to summary judgment “set out specific facts showing a
genuine issue for trial.” See F ED. R. C IV. P. 56(e)(2). In the absence of any
context to or explanation of these receipts, we cannot find that the district court
erred in its ruling.4
       There is therefore no genuine issue of material fact as to whether the
Williamses’ property actually suffered structural damage from any cause in
excess of the amount already paid by Allstate. Because the existence of a loss


       2
           We express no opinion on the merits of the district court’s unappealed evidentiary
rulings.
       3
         Inasmuch as the only remaining evidence in the record supporting the Williamses’
claims of loss consists of receipts, we need not address the Appellee’s alternative
contention—rejected by the district court—that, under the Policy, only receipts may serve as
evidence of loss.
       4
        Allstate also notes that the receipts appear to be principally for interior repairs—and
that the Williamses’ deposition testimony discloses only flood damage to the interior of the
house. The Williamses have not contested this allegation. Allstate has already paid more
than the total of the receipts for flood damage.

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not already paid by the insurer is fundamentally a “fact essential to recovery”
that the insured must prove before triggering any responsive burden on the
insurer’s part, see, e.g., Ho, 862 So. 2d at 1281, the Williamses’ failure to adduce
or identify competent summary judgment evidence showing the existence of such
an unpaid loss is a sufficient basis, by itself, to affirm summary judgment on the
structural damage claims.
       The Williamses’ other purported contractual claims against Allstate were
insufficiently briefed on appeal for the court to consider.5 Absent any valid
contractual claim, their claims for statutory penalties pursuant to former
sections 658 and 1220 of title 22 of the Louisiana Revised Statutes necessarily
fail as well.6 Under Louisiana law, “a plaintiff attempting to base her theory of
recovery against an insurer on [sections 22:658 and 22:1220] must first have a
valid, underlying, substantive claim upon which insurance coverage is based.
The penalties authorized by these statutes do not stand alone; they do not
provide a cause of action against an insurer absent a valid, underlying,
insurance claim. This conclusion reflects the general principle that statutes
allowing for the imposition of penalties must be strictly construed.” Clausen v.
Fid. & Deposit Co. of Md., 660 So. 2d 83, 85–86 (La. Ct. App. 1995) (footnote
omitted).




       5
           On a single page of their brief in which the Williamses explain why summary
judgment is inappropriate, the Williamses assert that “the parties dispute the value of their
property and the value of the contents.” Later on the same page, the Williamses assert that
“the parties are also at odds over the amount of Alternative Living Expenses [(ALE)] for which
Allstate is responsible and the reason ALE was necessary.” No further argument or citation
to the record on these two issues is provided anywhere in the brief. The Williamses’ “failure
to cite or refute the record not only waives this complaint on appeal but demonstrates the lack
of evidence in [their] favor.” See Messer v. Meno, 130 F.3d 130, 135 (5th Cir. 1998). These
arguments are waived.
       6
          These provisions have since been renumbered sections 1892 and 1973, respectively,
of title 22.

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                            IV. Conclusion
      We therefore AFFIRM summary judgment for Appellee Allstate in all
respects.




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