     Case: 10-31212     Document: 00511692339         Page: 1     Date Filed: 12/12/2011




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

                                                                            FILED
                                                                        December 12, 2011
                                      No. 10-31212
                                                                           Lyle W. Cayce
                                                                                Clerk
RICHARDS CLEARVIEW, LIMITED LIABILITY COMPANY,

                                                         Plaintiff - Appellee

v.

SEARS, ROEBUCK & COMPANY

                                                         Defendant - Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CV-7204


Before JONES, Chief Judge, and DAVIS and DeMOSS, Circuit Judges.

PER CURIAM:*
        In this appeal, Sears, Roebuck & Company (“Sears”) challenges the
judgment of the district court awarding damages for breach of Sears's
longstanding contract with Richards Clearview (“Clearview”) to bear part of the
cost of public liability insurance covering the parking and common areas of the
shopping mall where Sears located a store in suburban New Orleans. Sears also
asserts that the district court abused its discretion in refusing to permit the




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 10-31212

filing of an amended counterclaim on the eve of trial. Although our reasoning
on the first point differs from that of the trial court, we affirm the judgment.
      The contract, governed by Louisiana law, states in pertinent part that:

      Seller (Richards Clearview) shall obtain...public liability insurance
      for the full protection of Seller, Purchaser [Sears], and all occupants
      of Seller's Parcel against all claims...arising out of the use...of the
      parking and other common areas located on either Seller's Parcel or
      the Sears Parcel...Purchaser shall pay Seller its pro rata share of
      the cost of providing said insurance. Purchaser's pro rata share
      shall be a fraction of such cost, the numerator of which is the
      number of square feet of gross floor space contained in all buildings
      located on Sears Parcel and of which the denominator is the number
      of square feet of gross interior floor space of all buildings located on
      both Seller's Parcel and Sears Parcel.

      Whether this provision is ambiguous is a question of law for the court.
Reliant Energy Servs., Inc., v. Enron Canada Corp., 349 F.3d 816, 821 (5th Cir.
2003). We do not find it ambiguous as to Sears's obligations. Sears is required
to pay a pro rata share of insurance that will cover all claims arising out of the
use of the parking and common areas of the entire mall. Sears does not contend
that Richards Clearview misapplied the fraction governing the allocation of
Sears's share of the premium. Instead, Sears complains that because Richards
Clearview purchased too much insurance, i.e. liability insurance for not only the
parking and common areas but the entire interior of the mall, it should only
have to pay for a portion of the insurance premium representing its share of the
parking and common areas alone. We disagree. Richards Clearview was
entitled to purchase a policy that covered the parking and common areas along
with the rest of the mall. After all, claims "arising out of the use . . . of the
parking and other common areas . . ." may also and rather frequently will

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                                  No. 10-31212

involve both the tenant space, including that of Sears, as well as the parking and
common areas. The fraction representing Sears’s proportion of the costs, based
as it is on gross interior floor space of all buildings, reinforces the concept that
liability insurance could cover the entire shopping center. Because Sears agreed
to pay a pro rata share of this insurance, Richards Clearview correctly charged
the retailer according to the contract.
      We also find no abuse of discretion in the district court's refusal to allow
Sears to assert, within a week of trial, a counterclaim for the appellee's failure
to name Sears as an "other insured" on the liability policy. As the district court
noted, this claim was not specifically mentioned in earlier pleadings and was
eminently knowable to Sears at a much earlier stage of the litigation. Sears
thus had the obligation to raise the issue well before the pretrial order
discussions. FED. R. CIV. P. 16(b); S&W Enters. L.L.C. v. SouthTrust Bank of
Alabama, NA, 315 F.3d 533, 535 (5th Cir. 2003). Sears advanced no good cause
for waiting to the last moment.
      For these reasons, the judgment is AFFIRMED.




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