                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                     January 16, 2006
                           FOR THE FIFTH CIRCUIT
                                                                Charles R. Fulbruge III
                       ))))))))))))))))))))))))))                       Clerk
                               No. 05-30526
                             Summary Calendar
                       ))))))))))))))))))))))))))

BULK PACK, INC., ET AL.,

                                                   Plaintiffs-Appellants,

versus

FIDELITY & DEPOSIT COMPANY OF MARYLAND;
ET AL.,

                                                    Defendants-Appellees,




            Appeal from the United States District Court
                for the Western District of Louisiana
                    USDC No. 3:04-CV-01079-RGJ-JDK




Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     The question presented in this case is whether the district

court erred in granting summary judgment for Appellees Zurich

American Insurance Company and its subsidiary, Fidelity and Deposit

Company   of   Maryland,    on   Appellants’   claim   that    the    insurers

wrongfully denied coverage of a loss.      Because we find that summary

judgment was properly granted, we AFFIRM the district court’s


     *
      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this opinion should not be published and is not precedent except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.
ruling.

I.   BACKGROUND

     Appellees issued a commercial crime insurance policy to Bulk

Pack, Inc. (“Bulk Pack”) and its operation in Mexico, Bulk-Pack de

Mexico, S. de R.L. de C.V. (“Bulk-Pack de Mexico”), covering, inter

alia, acts of employee dishonesty.     In September 2003, Appellants

discovered that Greg Garcia, a Bulk-Pack de Mexico employee, had

embezzled $411,932.24.    Appellants contend that Garcia inflated

weekly requests for money transfers for operating expenses at the

Mexico    location.   Consequently,   Darryl   DeCelle,   a   Bulk   Pack

employee, in Monroe, Louisiana, transferred money from Bulk Pack’s

BankOne Account in the United States to its BankOne Account in

Mexico, where dollars were exchanged for Mexican pesos to be used

by Bulk-Pack de Mexico for operations expenses. Garcia transferred

the surplusage to his own account. Upon receiving Appellants’ proof

of loss, Appellees denied coverage.    Although there is no dispute

as to the fact that theft occurred, the parties’ disagreement

involves the policy’s territorial exclusion provision, which limits

coverage to certain geographic regions.1

     The original petition for damages was filed in the Ouachita

Parish, Louisiana Fourth Judicial District Court on April 21, 2004.



     1
      The provision states, “This insurance covers only acts
committed or events occurring within the United States of
America, U.S. Virgin Islands, Puerto Rico, Canal Zone, or
Canada.”

                                -2-
The case was properly removed to federal district court pursuant to

28 U.S.C. § 1332.    After discovery, the parties filed cross-motions

for summary judgment.      The district court adopted the magistrate

judge’s report and recommendation on the issue being appealed,

whether the policy covers Greg Garcia’s thievery, and granted

summary judgment in favor of Appellees.

II.   STANDARD OF REVIEW FOR SUMMARY JUDGMENT

      We review a district court's grant of summary judgment de novo,

applying the same standard as the district court.               Shepherd v.

Comptroller of Pub. Accounts, 168 F.3d 871, 873 (5th Cir. 1999).

      Pursuant to Federal Rule of Civil Procedure 56(c), summary

judgment is proper when the “pleadings, depositions, answers to

interrogatories,     and   admissions     on    file,   together   with   the

affidavits, if any, show that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter

of law.”   FED. R. CIV. P. 56(c);      Celotex Corp. v. Catrett, 477 U.S.

317, 322–23 (1986);     Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251–52 (1986).      When making its determination, the court must draw

all   justifiable    inferences   in    favor   of   the   nonmoving   party.

Anderson, 477 U.S. at 255;        Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Bodenheimer v. PPG

Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993).

      To defeat a properly supported motion for summary judgment, the

non-movant must present more than a mere scintilla of evidence.


                                    -3-
Anderson, 477 U.S. at 251.       A factual dispute precludes a grant of

summary judgment if the evidence would permit a reasonable jury to

return a verdict for the nonmoving party.             See Merritt-Campbell,

Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir. 1999).

III. DISCUSSION

     Appellants argue that although the term “occurring,” which

appears in the territorial exclusion provision, is not defined, the

policy   does    provide   a   definition    for   the   term   “occurrence.”2

Therefore, they contend that the policy’s definition of “occurrence”

should be applied to the term “occurring.”          As a result, Appellants

assert that because funds were transferred by DeCelle from Monroe,

Louisiana, some of the events occurred in the United States, and

should be covered under the policy.                Additionally, Appellants

analogize cases dealing with venue in the context of federal mail

and wire fraud to their argument that because actions took place in

Louisiana,      events   under   the    policy     occurred     in   Louisiana.

Appellees, on the other hand, argue that Appellants’ reliance on

venue cases is misplaced and that while Garcia inflated estimates

of Bulk-Pack de Mexico’s operations expenses, he embezzled the funds

when he transferred funds from Bulk-Pack de Mexico’s Mexican Bank

account to his own personal account. Specifically, Appellees assert

that because the illegal transfer of funds occurred in Mexico, and


     2
      The policy defines occurrence as “all loss caused by, or
involving, one or more ‘employees’, whether the result of a
single act or a series of acts.”

                                       -4-
not the United States, the policy does not cover the $411,932.24

loss.

     Under Louisiana law,3 courts should construe insurance policies

using     the    familiar     principles     of     contract    interpretation.

Times-Picayune Publ’g Corp. v. Zurich Am. Ins. Co., 421 F.3d 328,

331 (5th Cir. 2005) (quoting Trinity Indus., Inc. v. Ins. Co. of N.

Am., 916 F.2d 267, 269 (5th Cir.1990)).               The words of the policy

reflect    the    parties’    intentions     and    determine   the   extent   of

coverage.       Id. at 331-32.   The words “are to be construed in their

plain, ordinary, and popular sense.”               Calcasieu-Marine Nat’l Bank

of Lake Charles v. Am. Employers' Ins. Co., 533 F.2d 290, 296 (5th

Cir. 1976).       Finally, “the court should consider the policy as a

whole,    and     interpret   the   policy     to     fulfill   the   reasonable

expectations of the parties in the light of the customs and usages

of the industry.”      Times-Picayune, 421 F.3d at 331(quoting Trinity

Indus., 916 F.2d at 269.)).

     We agree with the findings of the magistrate judge, as adopted

by the district court, that the terms of the policy are clear and

unambiguous.       The policy covers loss due to employee dishonesty

committed within the United States, the Virgin Islands, Puerto Rico,

the Canal Zone, and Canada.         The words of the policy do not reflect



     3
      Because this case falls within federal diversity
jurisdiction, we must apply Louisiana law. See Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 79-80 (1938).

                                       -5-
an agreement to provide coverage for acts committed in Mexico.

Moreover, there has been no allegation of dishonesty on the part of

DeCelle, the Bulk Pack employee in Louisiana.       The fact that

Decelle, in accordance with his job description, transferred funds

from the United States, is not dispositive.   The dishonest acts –

the request for inflated funds and the transfer of money from Bulk-

Pack de Mexico’s Mexican Bank account to Garcia’s personal account

– both occurred in Mexico.

IV.   CONCLUSION

      For the foregoing reasons, we AFFIRM the judgment of the

district court as to all claims.

      AFFIRMED.




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