September 20, 2022, opinions

Designated for publication

  • Coleman E. Adler & Sons, L.L.C. v. Axis Surplus Insurance Co., 21-30478, appeal from E.D. La.
    • Duncan, J. (Smith, Duncan, Oldham), Oldham, J., concurring in part; insurance, COVID-19
    • Affirming dismissal of plaintiff’s claims against insurer, agent, and broker after denial of claims for direct physical loss of or damage to property arising from income lost during mandatory pandemic shutdown.
    • The Court held that the district court did not err in finding that the plaintiff had provided no evidence that his properties suffered any direct physical loss or damage, such that coverage was not available under his policy. The Court held that it was bound to this decision by its rule of orderliness, where an earlier panel had made an Erie guess based on Louisiana intermediate appellate court decisions that the coverage language at issue required a tangible loss. See Q Clothier New Orleans, L.L.C. v. Twin City Fire Ins. Co., 29 F.4th 253, 257 (5th Cir. 2022). The Court rejected the plaintiff’s argument that a subsequent Louisiana intermediate appellate decision going the other way allowed this panel to arrive at a different Erie decision. “Our court’s rule of orderliness applies to Erie cases no less than cases interpreting federal law. … We have only one subsequent decision from an intermediate state court, and that cannot overcome our rule of orderliness.”
    • The Court also held that the district court did not err in holding that the agent and broker did not hold any heightened duty toward the plaintiff that would have required them to advise the plaintiff about pandemic-related coverage.
    • Judge Oldham concurred in part. He raised doubt as to subject-matter jurisdiction over this case that had been removed on diversity grounds, as the removing defendant had only alleged the residence, rather than citizenship, or members of the plaintiff LLC. However, assuming jurisdiction was proper, he agreed with affirming the dismissal of he plaintiff’s claims.


  • U.S. v. Rios, 21-10371, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Munguia-Portales, 22-50190, appeal from W.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.