     Case: 13-30516   Document: 00512658943     Page: 1   Date Filed: 06/10/2014




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

                                                                       FILED
                                                                    June 10, 2014
                                No. 13-30516
                                                                    Lyle W. Cayce
                                                                         Clerk
TETRA TECHNOLOGIES, INCORPORATED; MARITECH RESOURCES,
INCORPORATED,

                                           Plaintiffs - Appellees
v.

CONTINENTAL INSURANCE COMPANY,

                                           Defendant - Appellant




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before SMITH, DeMOSS, and HIGGINSON, Circuit Judges.
DeMOSS, Circuit Judge:
                                      I.
      This appeal arises from an insurance coverage dispute concerning an
industrial accident that occurred on a decommissioned platform in the Outer
Continental Shelf, approximately 34 miles off the coast of Louisiana.
Appellant Continental Insurance Co. (“Continental”) is the insurer of Vertex
Services, LLC (“Vertex”), an oilfield services contractor. Pursuant to a Master
Services Agreement (the “MSA”), Vertex employees performed work for
Appellees Tetra Technologies, Inc. (“Tetra”) and its subsidiary Maritech
Resources, Inc. (“Maritech”). The MSA provides that Vertex must indemnify
Tetra and Maritech for any injuries sustained by Vertex employees while
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                                 No. 13-30516
working for Tetra or Maritech, including any injuries caused by Tetra or
Maritech’s own negligence. The MSA also requires Vertex to make Tetra and
Maritech additional insureds on Vertex’s general liability insurance policy.
      In May of 2011, Tetra and Maritech were involved in salvaging a
decommissioned off-shore platform and engaged Vertex to assist in the
operation. Abraham Mayorga, a Vertex employee, was assigned to work on the
project as a rigger. He worked from the D/B Arapaho, a Tetra-owned barge
with a large crane. According to the complaint he later filed against Tetra and
Maritech, on May 22, 2011, Mayorga’s supervisors instructed him to assist
several other workers in making cuts to the structures supporting a bridge
connecting two sections of the off-shore platform so that the crane on the D/B
Arapaho could remove it. Mayorga and his co-workers made the cuts and then
attached four nylon straps to the bridge, so that the crane could lift it. But,
when the crane operator attempted to separate the bridge from the platform,
the bridge would not come loose. Mayorga’s supervisors directed him and the
other workers to walk out on the bridge to determine why it would not come
loose, while the crane operator would keep tension on the straps to prevent the
bridge from collapsing. While Mayorga and the others were on the bridge,
however, one end of the bridge separated from the platform, causing Mayorga
and the other workers to fall 70-80 feet into the Gulf of Mexico.
      Mayorga and the other workers sued Tetra and Maritech, alleging that
both companies had been negligent in the planning and execution of the
salvage operation. The complaint also alleged an unseaworthiness claim as to
the D/P Arapaho.         Tetra tendered Mayorga’s claim to Vertex for
indemnification pursuant to the MSA, which referred the claim to Continental,
its insurer.   Continental, however, denied coverage. After initiating the
proceedings that are the subject of the instant appeal, Tetra and Maritech


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settled Mayorga’s claim. Continental chose not to participate in the settlement
discussions.
                                       II.
                                       A.
      On November 11, 2012, Tetra and Maritech filed a “Complaint for
Indemnity” against Vertex and Continental.         The complaint alleges that
pursuant to “the terms of the MSA, VERTEX is obligated to defend and
indemnify TETRA and MARITECH from and against the claims asserted by
Mayorga.” The complaint further alleges that, “TETRA and MARITECH are
additional insureds under Continental Insurance Company General Liability
Policy No. ML 0872815.” The complaint additionally states that Tetra and
Maritech “made formal demand upon VERTEX and CONTINENTAL to
defend, indemnify, and hold TETRA and MARITECH harmless from and
against the claims asserted by the plaintiff in the Mayorga action, and to
indemnify Plaintiffs for any liability, damages, loss, cost, or expense arising
out of the Mayorga action, . . . to no avail.” The complaint concludes by seeking
a judgment declaring that Vertex and Continental
      are obligated to defend and indemnify Plaintiffs from and against
      the claims asserted in the Mayorga civil action, and to indemnify
      Plaintiffs for any liability, damages, loss, cost, or expense arising
      out of the Mayorga action, and this action including payment and
      reimbursement of attorneys’ fees, costs, and expenses incurred by
      Plaintiffs in: (a) defending the principal demand in the Mayorga
      action; (b) in [sic] enforcing the contractual obligation of
      Defendants; and (c) in [sic] prosecuting this action.

Continental answered the complaint and asserted several affirmative defenses
based on the terms of the insurance policy. Although an attorney entered an
appearance for Vertex, it never answered Tetra and Maritech’s complaint and
did not meaningfully participate in the district court proceedings.


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      On January 31, 2013, Continental moved for summary judgment. It
asserted numerous arguments, only three of which it continues to press on
appeal. First, Continental argued that the provision of the MSA requiring
Vertex to indemnify Tetra and Maritech for their own negligence is void under
the Louisiana Oilfield Indemnity Act (“LOIA” or “the Act”), and that, as a
result, the additional insured provision of the MSA does not apply to claims by
Vertex employees alleging negligence on the part of Tetra and Maritech.
Second, Continental argued that, even if the LOIA does not void the
indemnification and additional insured provisions of the MSA, Mayorga’s
claims fall within Exclusion (d) to the insurance policy, which provides that
the Continental policy does not extend to “[a]ny obligation of the insured under
a workers[sic] compensation, United States Longshoremen’s [sic] and Harbor
Workers’ Compensation Act, Jones Act, Death on the High Seas Act, General
Maritime Law, Federal Employers’ Liability Act, disability benefits or
unemployment compensation law or any similar law.” Third, Continental
argued that because Mayorga’s injury occurred when the crane of the D/B
Arapaho failed to keep tension on the straps supporting the bridge, his claims
also fall within Exclusion (g), which provides that the policy does not provide
coverage for claims for “bodily injury . . . arising out of: (1) [t]he ownership,
maintenance, use or entrustment to others of any watercraft owned, leased,
rented or chartered to any insured.”
      Tetra and Maritech opposed Continental’s motion for summary
judgment and filed a summary judgment motion of their own. They argued
that the LOIA does not void the indemnity agreement because Vertex’s work
for Tetra and Maritech related to salvaging a decommissioned, non-producing
off-shore platform and therefore did not “pertain to a well,” as required by the
Act. See Lloyds of London v. Transcon. Gas Pipe Line Corp., 38 F.3d 193, 196
(5th Cir. 1994) (citing Transcon. Gas Pipe Line Corp. v. Transp. Ins. Co., 953
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                                 No. 13-30516
F.2d 985, 991 (5th Cir. 1992)). Tetra and Maritech also argued that Mayorga’s
claim does not fall within the scope of Exclusion (d). They asserted that,
although Exclusion (d) references claims under “General Maritime Law,” it
should be construed to exclude coverage only for General Maritime Law claims
based on workers’ compensation-type employer liability. Finally, Tetra and
Maritech argued that Exclusion (g) does not bar coverage because, while
Mayorga’s complaint alleged an unseaworthiness claim as to the D/B Arapaho,
it also alleged several other negligence-based theories of liability that do not
depend on Tetra’s ownership of the D/B Arapaho.
                                       B.
      The district court agreed with Tetra and Maritech that the LOIA does
not void Vertex’s indemnification obligations. Specifically, the court found that
Continental had failed to “offer any evidence that would tend to establish a
functional or geographic nexus between any well and the platforms in
question.”   The district court also agreed with Tetra and Maritech that
Mayorga’s claim does not fall within Exclusion (d). It found that because
Exclusion (d) refers to General Maritime Law in the context of other laws that
provide “for some form of worker compensation or employer liability,” it was
reasonable to read the provision “as excluding coverage for any form of
employer’s liability, but not for general liability claims under general maritime
law, such [as] those of Mayorga against Tetra and Maritech.”
      Finally, with respect to Exclusion (g), the court found that Mayorga’s
complaint alleged liability based both on Tetra’s ownership of the D/B
Arapaho and on actions by Tetra and Meritech that were “completely
independent of Tetra’s ownership” of the barge. The court further found that
based on the summary judgment record, it was “impossible to determine what
if any of Tetra and/or Maritech’s liability arises from ownership and/or use of
the D/B Tetra Arapaho versus other independent sources of liability.”
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Accordingly, the court held that summary judgment was “not appropriate on
th[e] issue.”
      The court then ruled as follows: it denied Continental’s summary
judgment motion and granted Tetra and Maritech’s summary judgment
motion, except “with respect to additional insured coverage under the Policy to
the extent that Abraham Mayorga’s injuries arose out of Tetra’s and/or
Maritech’s ownership, maintenance, or use of the D/B Tetra Arapaho.” The
court later clarified its holding concerning Exclusion (g), stating: “Although the
Court has held (and maintains its holding) that coverage may be excluded to
the extent that liability is ultimately shown to arise from ownership,
maintenance, or use of the D/B Tetra Arapaho, this holding cannot result in
judgment dismissing any part of the plaintiffs’ claim, as questions of fact exist
which preclude such dismissal, as stated in the Order and Reasons.”
                                       C.
      Subsequent to the court’s summary judgment ruling, Continental filed
an unopposed motion seeking either certification of an interlocutory appeal
pursuant to 28 U.S.C. § 1292(b) or entry of final judgment pursuant to Federal
Rule of Civil Procedure 54(b). Section 1292(b) permits a district court to certify
for appeal an “order not otherwise appealable,” when the court is “of the
opinion that such order involves a controlling question of law as to which there
is substantial ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination of the
litigation.” 28 U.S.C. § 1292(b). Rule 54(b), on the other hand, provides that
“[w]hen an action presents more than one claim for relief . . . or when multiple
parties are involved, the court may direct entry of a final judgment as to one
or more, but fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay.” FED. R. CIV. P. 54(b).


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                                 No. 13-30516
     The district court denied Continental’s motion for § 1292(b) certification
on the ground that there was no “substantial ground for difference of opinion
on the questions addressed” in its summary judgment order. The district court
agreed, however, to enter judgment pursuant to Rule 54(b).           The court
explained:
     In this case, the Court finds that there is no just reason for delay.
     Litigating the factual issues necessary to determine the
     applicability of the watercraft exclusion will be expensive for all
     concerned. Given that the personal injury plaintiffs have settled
     their claims, the parties to this indemnity action would be required
     to litigate the cause(s) of the bridge collapse in order to determine
     whether Mayorga’s injuries arise out of Tetra’s ownership,
     maintenance, or use of the barge or from some other source. If the
     Court were to decline to enter final judgment, the parties would be
     required to proceed to such a trial in order to preserve their right
     to appeal to the issues ruled upon on summary judgment.
     Moreover, regardless of the Circuit’s decision on this appeal, there
     is virtually no danger that the Court of Appeals would be presented
     with the same issue twice. Thus, the Court finds that the equities
     favoring immediate appeal outweigh the danger of piecemeal
     appeals.

On April 15, 2013, the court entered judgment “in favor of Tetra Technologies,
Inc. and Maritech Resources, Inc. and against Continental Insurance
Company.” In relevant part, the “Final Judgment” states as follows:
     (1)     The contractual obligation of Vertex Services, LLC and
             Continental Insurance Company to defend and indemnify
             Tetra and Maritech against the claims asserted by Abraham
             Mayorga in Civil Action No. 11-2493 (E.D. La.) is not voided
             by the Louisiana Oilfield Anti-Indemnity Act;
     (2)     Vertex Services, LLC is obligated to indemnify Tetra and
             Maritech for any liability, damages, loss, cost, or expense
             incurred by Tetra or Maritech in defending and settling
             Mayorga’s claims, and in enforcing Vertex’s contractual
             obligations, including but not limited to attorneys’ fees and
             expenses;


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        (3)   Liability coverage for Tetra and Maritech as additional
              insureds under Continental Policy No. ML 0872815 for the
              claims asserted by Mayorga is not precluded by Exclusion
              (d);
        (4)   Liability coverage for Vertex’ contractual obligation to
              defend and indemnify Tetra and Maritech pursuant to the
              Master Services Agreement (MSA) between Vertex and
              Tetra is not precluded by Exclusion (d).

The court’s judgment makes no mention of its holdings conerning Exclusion
(g).
        Continental filed a timely notice of appeal. It argues that the district
court erred in finding that the LOIA does not void the provisions of the MSA
requiring Vertex to indemnify Tetra and Maritech for their own negligence and
to provide insurance coverage for claims alleging the same. It also asserts that
the district court erred in finding that Exclusion (d) does not bar coverage.
Finally, Continental argues that the district court erred in finding that
Mayorga’s complaint alleges liability on any ground other than Tetra’s
ownership of the D/B Arapaho and that, as a result, Exclusion (g) also bars
coverage for Mayorga’s claim.     Vertex did not contest Tetra and Maritech’s
summary judgment motion. It has not filed a notice of appeal and is not an
appellant here.
                                       III.
                                       A.
        This court is “duty-bound to examine the basis of subject matter
jurisdiction” in all cases before it, whether or not the parties raise the issue.
Union Planters Bank Nat’l Ass’n v. Salih, 369 F.3d 457, 460 (5th Cir. 2004).
Federal Rule of Civil Procedure 54(b) permits a district court to enter final
judgment on “one or more . . . claims.” FED. R. CIV. P. 54(b). A district court’s
rulings concerning a particular claim may be appealed under Rule 54(b) only
if the district court has “dispose[d] of that claim entirely.” Monument Mgmt.
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                                  No. 13-30516
Ltd. P’ship I v. City of Pearl, Miss., 952 F.2d 883, 885 (5th Cir. 1992). “The
partial adjudication of a single claim is not appealable, despite a Rule 54(b)
certification.” Ariz. State Carpenters Pension Trust Fund v. Miller, 938 F.2d
1038, 1039-40 (9th Cir. 1991). Thus, unless a district court’s rulings “sound
the ‘death knell’ of litigation in the federal courts” concerning a particular
claim, the court cannot enter judgment on that claim pursuant to Rule 54(b).
Baker v. Bray, 701 F.2d 119, 121 (10th Cir. 1983) (quoting Korgich v. Regents
of N.M. Sch. of Mines, 582 F.2d 549, 550 (10th Cir. 1979)).
      The requirement that the district court must have completely disposed
of a claim in order to enter final judgment under Rule 54(b) is jurisdictional
and must be “met as to each party.” Eldredge v. Martin Marietta Corp., 207
F.3d 737, 740 (5th Cir. 2000). Whether the district court completely disposed
of a claim is a question we review de novo and, implicating our jurisdiction, one
that we may raise at any time. Id. None of the parties addressed in their
principal briefs whether the district court fully disposed of any one claim before
entering judgment on its summary judgment holdings. In accordance with our
duty to ensure that subject matter jurisdiction exists in each case before us, we
requested additional briefing from the parties on that issue.
                                       B.
                                        1.
      Both sides agree that this case involves multiple parties, with Tetra and
Maritech as plaintiffs and Vertex and Continental as defendants. Both sides
also assert that Tetra and Maritech alleged only a single claim against
Vertex—for indemnification—and that the district court fully disposed of that
indemnification claim. Tetra and Maritech argue that the only claim the
district court fully disposed of was their indemnification claim against Vertex,
while Continental maintains that the district court also entirely disposed of at
least one of Tetra and Maritech’s claims against it.
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                                 No. 13-30516
      The judgment states that Vertex “is obligated to indemnify Tetra and
Maritech for any liability, damages, loss, cost, or expense incurred by Tetra or
Maritech in defending and settling Mayorga’s claims, and in enforcing Vertex’s
contractual obligations, including but not limited to attorneys’ fees and
expenses.” On the one hand, the judgment appears to definitively answer the
question of whether Vertex is required to indemnify Tetra and Maritech for
Mayorga’s claim. On the other hand, the actual amount Vertex must pay to
Tetra and Maritech is notably absent from the district court’s judgment. It is
therefore questionable whether, as both sides contend, the district court
entirely disposed of Tetra and Maritech’s indemnification claim against
Vertex. See Pemberton v. State Farm Mut. Auto. Ins. Co., 996 F.2d 789, 791-
92 (5th Cir. 1993) (dismissing for lack of jurisdiction where district court
certified for appeal under Rule 54(b) ruling that insurance company owed
coverage without stating in final judgment precise amount insurance company
was to pay insured in damages). We need not decide that question, however,
since Vertex did not appeal the judgment entered by the district court and is
not an appellant here. See Eldredge, 207 F.3d at 740. We therefore turn to the
key issue in this appeal: whether the district court entirely disposed of any one
claim against Continental.
                                       2.
      Continental’s supplemental briefing suggests that Tetra and Maritech
alleged two discrete claims against it: (1) a claim seeking a declaration that
Continental was required to defend and indemnify Tetra and Maritech against
Mayorga’s claims and (2) a claim seeking money damages for any losses
sustained by Tetra and Maritech resulting from Mayorga’s claim, including the
fees and costs they incurred in prosecuting the instant action against
Continental.   It is doubtful at best, however, that Tetra and Maritech’s
complaint asserts two distinct claims because it seeks both a declaration that
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                                 No. 13-30516
Continental must indemnify them for Mayorga’s claims and a money judgment
against Continental. See Pemberton, 996 F.2d at 791-92. Continental cites us
to St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 338 (5th Cir.
1997), in which we found that we had jurisdiction to review the district court’s
holding that a policy exception identified by an insurance company did not void
coverage. In that case, however, the insurance company initiated the litigation
by seeking a declaration of non-coverage. Id. at 337. Further, the district
court’s decision finding that the policy exclusion was inapplicable was
dispositive of the question of whether the insurance company owed coverage.
Id. 337-38. Continental also cites Jackson v. O’Shields, 101 F.3d 1083, 1084-
85 & n.2 (5th Cir. 1996) as an example of an appeal from a ruling on insurance
coverage in a multi-party action.     In Jackson, however, not only did the
insurance company initiate a declaratory judgment action, but the lower court
had held that the insurance company had no indemnity obligations at all,
which terminated the insurer’s involvement with the case. Id. at 1084-85.
      In any event, we need not conclusively determine whether Tetra and
Maritech have asserted one claim or two against Continental because, even if
we were to construe their request for a declaration on Continental’s indemnity
obligations as a single claim, it is clear that the district court did not fully
dispose of that one “claim.”
                                       3.
      The Fifth Circuit “has not expressly adopted a method for determining
what constitutes a distinct ‘claim for relief’ under Rule 54(b).” Tubos de Acero
de Mex., S.A. v. Am. Int’l Inv. Corp., 292 F.3d 471, 485 (5th Cir. 2002). Indeed,
“[t]here is no generally accepted test that is used to determine whether more
than one claim for relief is before the court.” 10 CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2657 (3d. ed. 2014).
Rather, in determining what constitutes a “claim for relief” within the meaning
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of Rule 54(b), “various courts focus upon different things but are reluctant to
articulate hard-and-fast tests.” Samaad v. City of Dallas, 940 F.2d 925, 931
(5th Cir. 1991), abrogated on other grounds by Stop the Beach Renourishment,
Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 728 (2010). The few Supreme
Court decisions concerning Rule 54(b) “have failed to lead the circuit courts to
a consensus as to the handling of this confusing area of law.” Eldredge, 207
F.3d at 740 (discussing Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737 n. 4 (1976)
and Cold Metal Process Co. v. United Eng’g & Foundry Co., 351 U.S. 445
(1956)).
      The lack of an articulable standard notwithstanding, our previous
decisions provide sufficient guidance for us to determine that the district court
did not fully dispose of Tetra and Maritech’s indemnification claim against
Continental. Specifically, we have held that where a court disposes of an
affirmative defense, or even every affirmative defense raised by the defendant,
the court still has not disposed of a “claim” for Rule 54(b) purposes unless it
makes an express holding as to liability. See Exxon Corp. v. Oxxford Clothes,
Inc., 109 F.3d 1069, 1070 (5th Cir. 1997). Additionally, we have held that where
the district court rules on some issues concerning a claim, but “decline[s] to
complete the analysis” because there are “fact issues extant,” the court may
not certify the issues it has ruled on for appeal under Rule 54(b). N.W. Enters.
Inc. v. City of Houston, 352 F.3d 162, 179 (5th Cir. 2003). Finally, it is clear
from our case law that a district court does not resolve a “claim” merely by
ruling on a threshold legal issue relevant to that claim. See Eldredge, 207 F.3d
at 740-42; see also Halliburton Co. Benefits Comm. v. Graves, 191 F. App’x 248,
249 (5th Cir. 2006).
      Here, the district court’s determination that the LOIA does not void the
Vertex indemnity agreement and associated additional insured provisions
resolves a legal issue antecedent to Tetra and Maritech’s indemnity claim
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                                  No. 13-30516
against Continental; it does not resolve the claim itself. Similarly, the district
court’s holding that Exclusion (d) does not bar coverage disposed of one of
Continental’s affirmative defenses, not the claim against which Continental
asserted the defense. Finally, and most importantly, the district court did not
make a final determination as to whether Exclusion (g) bars coverage for
Mayorga’s claim. As matters stood after the district court entered judgment,
it was possible for Tetra and Maritech to prevail completely or not at all on
their indemnification claim against Continental, depending on the resolution
of certain “factual issues.” Given those circumstances, the district court had
hardly “sounded the death knell” of the litigation between Continental and
Tetra and Maritech concerning Continental’s indemnity obligations and
therefore did not completely dispose of the claim. N.W. Enters. Inc., 352 F.3d
at 179; Baker, 701 F.2d at 121.
      Continental responds by arguing that the questions concerning the
applicability of the LOIA and Exclusion (d) were potentially case dispositive
and, however we might have ruled, it was unlikely we would be faced with the
same issue in successive appeals.       Continental additionally points to the
district court’s finding that litigating the applicability of Exclusion (g) will be
a potentially long and expensive process. Continental’s arguments are better
suited to a § 1292(b) certification, which “is designed to allow for early appeal
of a legal ruling when resolution of the issue may provide more efficient
disposition of the litigation.” Ford Motor Credit Co. v. S.E. Barnhart & Sons,
Inc., 664 F.2d 377, 380 (3d Cir. 1981). Sensibly, however, §1292(b) certification
is only available when there “is substantial ground for difference of opinion,”
which the district court found was lacking in this case. 18 U.S.C. §1292(b).
Thus, what we are presented with here is a request by the district court for us
to sign-off mid-litigation on legal questions it considers non-contentions. Since
the inception of the federal judiciary, however, our role has been to review final
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                                 No. 13-30516
decisions of the trial courts, not to tinker with ongoing cases through piecemeal
appeals, which waste “judicial energy,” create unnecessary delays, and
obstruct the pursuit of meritorious claims. Sherri A.D. v. Kirby, 975 F.2d 193,
201 (5th Cir. 1992) (citation omitted); see also Ali v. Quaterman, 607 F.3d 1046,
1048 (5th Cir. 2010). Indeed, were we to affirm the district court, we would no
doubt be required to endure a second appeal concerning the same claim
between the same parties, this time reviewing the district court’s holdings
concerning Exclusion (g). Rule 54(b) does not permit such piecemeal appeals,
but rather was “created specifically to avoid” them.       Swope v. Columbian
Chems. Co., 281 F.3d 185, 192 (5th Cir. 2002). Accordingly, the district court
erred in entering judgment under Rule 54(b) against Continental.
      For the foregoing reasons, the appeal is DISMISSED for want of
jurisdiction.




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