     Case: 12-30025     Document: 00511978355         Page: 1     Date Filed: 09/07/2012




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

                                                                            FILED
                                                                        September 7, 2012

                                     No. 12-30025                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



BAYOU STEEL CORPORATION; NEW YORK MARINE & GENERAL
INSURANCE COMPANY,

                                                  Plaintiffs–Appellants
v.

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH,
PENNSYLVANIA,

                                                  Defendant–Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CV-1034


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        This insurance coverage dispute, now on its third appeal to this court,
concerns the apportionment of liability for a severe leg injury suffered by a
worker unloading steel bundles owned by Plaintiff–Appellant Bayou Steel
Corporation (“Bayou”). We determine that the district court correctly applied
the law-of-the-case and waiver doctrines, and therefore affirm its grant of

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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summary judgment to Defendant–Appellee National Union Fire Insurance
Company of Pittsburgh, Pennsylvania (“NUFIC-PA”).
            I. FACTUAL AND PROCEDURAL BACKGROUND
      The facts have been previously recounted by this court in Bayou Steel
Corp. v. Evanston Insurance Co., 354 F. App’x 9 (5th Cir. 2009) (“Bayou Steel I”),
and Bayou Steel Corp. v. National Union Fire Insurance Company of Pittsburgh,
Pennsylvania, 642 F.3d 506 (5th Cir. 2011) (“Bayou Steel II”). Ryan Campbell
was injured on October 2, 2002 while unloading steel bundles owned by Bayou
on a barge owned by Memco Barge Lines, Inc. (“Memco”). Bayou had contracted
with Memco to transport the steel from LaPlace, Louisiana to Chicago, Illinois.
Bayou had contracted with Kindra Marine Terminal (“Kindra”), a stevedoring
company, to unload the steel bundles in Chicago. Campbell was working for
Kindra at the time of his injury.
      After settling the suit brought by the injured worker, Bayou and
Plaintiff–Appellant New York Marine & General Insurance Company
(“NYMAGIC”) brought this suit seeking a declaration of coverage and
reimbursement       from   NUFIC-PA        and    Evanston     Insurance     Company
(“Evanston”), which is not a party to this appeal.1 NYMAGIC had issued an
excess wharfinger policy to Bayou; Evanston was Bayou’s commercial general
liability insurer; and NUFIC-PA was Bayou’s commercial umbrella carrier. On
cross-motions for summary judgment, the district court granted NUFIC-PA’s
and Evanston’s motions, ruling that a Longshoreman and Harbor Workers
Compensation Act exclusion applied, but this court reversed and remanded that
judgment. Bayou Steel I, 354 F. App’x at 12–14. On remand and after another
round of cross-motions for summary judgment, the district court granted
NYMAGIC’s motion, determining that Kindra was Bayou’s sub-contractor, and

      1
        This court concluded that Evanston’s policy covered Campbell’s injury in a prior
appeal. Bayou Steel I, 354 F. App’x at 14.

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that therefore Campbell’s injury fell within an exclusion in NYMAGIC’s policy
for personal injuries suffered by employees of Bayou’s sub-contractors. On
appeal, this court again reversed and remanded the district court’s judgment,
holding that “Kindra was Bayou’s contractor—not its sub-contractor—so that
Campbell’s injuries are not excluded from coverage under NYMAGIC’s policy.”
Bayou Steel II, 642 F.3d at 507.
      On remand, another round of cross-motions ensued.             Bayou and
NYMAGIC argued that notwithstanding this court’s determination that the
exclusion for sub-contractor injuries in NYMAGIC’s policy did not apply because
Kindra was Bayou’s contractor, Campbell was actually employed by Innovative
Business Concepts, Inc., which had “supplied” or “rented” him to Kindra; IBC,
therefore, was Kindra’s sub-contractor and the exclusion applied. The district
court applied the law-of-the-case doctrine in rejecting this argument, reasoning
that this same argument had been briefed in Bayou Steel II, and even though
this court’s decision in that appeal failed to mention the IBC argument, it was
implicitly and necessarily rejected: this court could not have reversed the
judgment granted to NYMAGIC if it had not determined that Campbell was
employed by Kindra, not IBC.
      In the alternative, Bayou and NYMAGIC argued that they were entitled
to summary judgment based on Endorsement #4 in NYMAGIC’s policy, which
states:
      Notwithstanding anything to the contrary, this policy shall exclude
      coverage for liability for loss or damage which would be covered
      under the most current terms of the Standard Comprehensive
      General Liability Policy (Occurrence Basis) as promulgated by the
      Insurance Service Office.
The district court determined that even though it agreed with Bayou and
NYMAGIC on the merits of this argument—because this court held in Bayou
Steel I that Bayou’s CGL policy, issued by Evanston, covered Campbell’s


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injury—it was nonetheless waived. The district court conceded that Bayou and
NYMAGIC had alluded to Endorsement #4 in the first round of motions for
summary judgment and on this case’s first appeal to this court. But it had not
been mentioned in their motion for a new trial, in their reply brief filed in this
court during the first appeal, nor in any papers filed during the second round of
summary judgment motions. Referring to its waiver finding as a “close call,” the
district court ultimately concluded that Bayou and NYMAGIC had “abandoned
their invocation of Endorsement #4 by failing to raise it at all before this Court
during the second round of cross-motions, or on appeal to the Fifth Circuit
leading up to Bayou Steel II.” Having rejected both of Bayou’s and NYMAGIC’s
arguments, the district court entered judgment in favor of NUFIC-PA. Bayou
and NYMAGIC timely appealed.
           II. JURISDICTION AND STANDARD OF REVIEW
      The district court had jurisdiction under 28 U.S.C. § 1332. This court has
jurisdiction under 28 U.S.C. § 1291.
      We review de novo the district court’s grant of summary judgment.
Greenwood 950, L.L.C. v. Chesapeake La., L.P., 683 F.3d 666, 668 (5th Cir.
2012). “Summary judgment is appropriate when there is no genuine dispute as
to any material fact and the moving party is entitled to judgment as a matter of
law.” Id.; see Fed. R. Civ. P. 56(a). We review de novo the district court’s
application of the law-of-the-case and waiver doctrines. See Gen. Universal Sys.,
Inc., v. HAL, Inc., 500 F.3d 444, 453 (5th Cir. 2007).
                              III. DISCUSSION
      “The law-of-the-case doctrine posits that when a court decides upon a rule
of law, that decision should continue to govern the same issue in subsequent
stages in the same case.” Med. Ctr. Pharmacy v. Holder, 634 F.3d 830, 834 (5th
Cir. 2011) (internal quotation marks omitted). Therefore, an issue of law
“decided on appeal may not be reexamined by the district court on remand or by

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the appellate court on a subsequent appeal.” Id. (internal quotation mark
omitted). “Conversely, an issue that is not expressly or implicitly decided on
appeal does not become part of the law of the case.” Id.
       The waiver doctrine “holds that an issue that could have been but was not
raised on appeal is forfeited and may not be revisited by the district court on
remand.” Id. Like the law-of-the-case doctrine, the waiver doctrine “serves
judicial economy by forcing parties to raise issues whose resolution might spare
the court and parties later rounds of remands and appeals,” id. (internal
quotation marks omitted), but unlike the law-of-the-case doctrine, the waiver
doctrine “arises as a consequence of a party’s inaction, not as a consequence of
a decision on our part,” id.
       We agree with the district court that in Bayou Steel II this court implicitly
decided that Campbell was employed by Kindra—not IBC—and that therefore
the NYMAGIC policy’s exclusion for personal injuries suffered by employees of
Bayou’s sub-contractors did not apply.2 The Bayou Steel II court stated that the
“ultimate issue” on appeal was “whether Campbell’s employer, Kindra, was
Bayou’s contractor or its sub-contractor for purposes of the” NYMAGIC policy’s
exclusion. 642 F.3d at 507 (emphasis omitted). In addition, the court could not
have logically reversed the summary judgment granted to Bayou and NYMAGIC
had it not rejected their argument that Campbell was an IBC employee; the
argument was raised and provided a means of affirming the summary judgment.
That Campbell did not fall within the exclusion in NYMAGIC’s policy was thus
part of the law of the case, as the district court correctly concluded.
       We also agree with the district court’s conclusion that Bayou and
NYMAGIC waived their argument that Endorsement #4 applies by failing to


       2
         Under Louisiana law, the “[i]nterpretation of an insurance contract generally involves
a question of law.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007)
(citing Bonin v. Westport Ins. Corp., 930 So. 2d 906, 910 (La. 2006)).

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raise it on remand after the first appeal or during the second appeal. Because
they failed to raise it during that period, the issue “could not [have been]
revisited by the district court on remand.” Med. Ctr. Pharmacy, 634 F.3d at 834.
A finding of waiver here serves the purpose of the waiver doctrine, which is to
promote judicial economy by sparing the parties and this court from later rounds
of appeals, such as this. The district court correctly applied the waiver doctrine
to prevent Bayou and NYMAGIC from raising their argument related to
Endorsement #4.
                              IV. CONCLUSION
      For the foregoing reasons, we affirm the district court’s summary
judgment in favor of NUFIC-PA.
      AFFIRMED.




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