April 12, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Bitco General Insurance Corp. v. Monroe Guaranty Insurance Co., 19-51012, appeal from W.D. Tex.
    • Higginbotham, J. (Higginbotham, Jones, Higginson), insurance
    • Affirming summary judgment that defendant insurer owed a duty to defend a commercial driller that it insured along with the plaintiff insurer under the commercial general liability policies, upon receipt of Texas Supreme Court’s answer to prior certified question.
    • Monroe issued a CGL policy in effect from October 6, 2015, through October 6, 2016, covering damages that occur during the policy period. Two forms of “business loss” exclusions applied to the policy, excluding coverage of property damage to any part of real property on which the insured is working if the property damage arises from those operations, and excluding coverage for property damage to the portion of property that must be restored, repaired, or replaced because the insured’s work was incorrectly performed.
    • The Court held that it could not rely on extrinsic evidence (in the form of a stipulation regarding the date a drill bit got stuck) outside the scope of Texas’s eight-corners rule, in determining whether the property damage occurred prior to Monroe’s policy period. Quoting the Texas Supreme Court’s response to certified question, the Court held, “The stipulation would impermissibly overlap with determining the merits of liability because ‘[a] dispute as to when property damage occurs also implicates whether property damage occurred on that date, forcing the insured to confess damages at a particular date to invoke coverage, when its position may very well be that no damage was sustained at all.'”
    • As to the business risk exclusions, the Court noted that “the applicability of either exception depends on whether the Jones pleading alleges damage to something other than ‘that particular part of [] property’ on which 5D performed its work or operations.” The Court then held, “Here, Monroe cannot carry its burden because it cannot show that either exception unambiguously applies to all the damage alleged, nor can it show that it is unreasonable to construe the exclusionary phrase ‘that particular part’ as applying only to the portion of the property actually pierced by the well.”
  • Central Boat Rentals, Inc. v. M/V Nor Goliath, 21-60501, appeal from S.D. Miss.
    • Higginbotham, J. (Owen, Higginbotham, Elrod), maritime law
    • Affirming district court’s judgment that certain provisions were not a “necessary” under the Commercial Instruments and Maritime Liens Act (“CIMLA”).
    • Plaintiffs were suppliers of tugboats to Epic Companies, an oil platform decommissioning contractor that entered into bankruptcy proceedings; the plaintiffs sought to assert and enforce maritime liens under CIMLA against the Nor Goliath, a heavy lift vessel hired by Epic for a decommissioning project the plaintiffs were suppliers on. The district court entered summary judgment in favor of the Nor Goliath, holding that the services rendered by the tugboats did not create a lien on the vessel.
    • Under CIMLA, “a person providing necessaries to a vessel on the order of the owner or a person authorized by the owner (1) has a maritime lien on the vessel; (2) may bring a civil action in rem to enforce the lien; and (3) is not required to allege or prove in the action that credit was given to the vessel.” “‘[N]ecessaries’ includes repairs, supplies, towage, and the use of a dry dock or marine railway.” The Court held that CIMLA is to be construed strictly “to ensure that maritime liens are not lightly extended[.]”
    • The Court held that the Nor Goliath’s function was not “the entirety of the decommissioning process,” but just its particular function of lifting platform components and placing them on barges. The Court then held that the barges the plaintiffs’ towing services provided were not “equipment necessary for the Nor Goliath’s particular function.” “It is plain that the barges were not equipment for the Nor Goliath, did not help the Nor Goliath’s crane raise and lower the platform components, and so the Nor Goliath did not ‘use’ the barges. It follows that the Towing Companies did not provide a service necessary to the Nor Goliath’s particular function.”

Unpublished

  • Mateo-Juan v. Garland, 20-60614, petition for review of BIA order
    • per curiam (Davis, Jones, Elrod), immigration
    • Dismissing in part and denying in part Guatemalan citizen’s petition for review of BIA order dismissing his appeal from the Immigration Judge’s (IJ) order denying his application for cancellation of removal
  • Munoz v. Garland, 20-61031, petition for review of BIA order
    • per curiam (King, Ho, Duncan), immigration
    • Denying Honduran citizen’s petition for review of BIA order dismissing her appeal from an order of the immigration judge (IJ) denying her motion to reopen removal proceedings.
  • U.S. v. Sullivan, 21-10033, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Avalos, 21-10111, appeal from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Cadena, 21-10873, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, sentencing
    • Affirming 300-month sentence on conviction of carjacking resulting in serious bodily injury.
  • Acosta v. Denka Performance Elastomer, L.L.C., 21-30136, appeal from E.D. La.
    • per curiam (Southwick, Haynes, Higginson), toxic tort
    • Vacating in part and affirming in part dismissal of toxic tort cases arising from releases of chloroprene from neoprene manufacturing facility, and remanding for consideration in light of Butler v. Denka Performance Elastomer, L.L.C., 16 F.4th 427 (5th Cir. 2021).
  • Morris v. LeBlanc, 21-30455, appeal from M.D. La.
    • per curiam (Jones, Elrod, Wilson), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 claim.
  • U.S. v. Thompson, 21-40753, appeal from E.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Rosales-Ramirez, 21-50724, c/w 21-50741, appeal from W.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry and revocation of supervised release.
  • Nyugah v. Garland, 21-60664, petition for review of BIA order
    • per curiam (Jolly, Willett, Engelhardt), immigration
    • Denying in part and dismissing in part Cameroonian citizen’s petition for review of BIA order denying a motion to reconsider an earlier dismissal by the Board.