IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40009
Summary Calendar
DAVID LYNN MILLER,
Plaintiff-Counter Defendant-Appellee,
and
LLOYD PEARSON,
Plaintiff-Appellee,
v.
RUTH AND SAM, INC.,
Defendant-Cross Defendant-Cross Claimant-
Appellee,
and
AMOCO OIL COMPANY,
Defendant-Counter Claimant-Cross Claimant-
Cross Defendant-Appellee,
v.
PRO-MAR INSURANCE UNDERWRITERS, INC.,
Intervenor-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-99-CV-269
--------------------
September 21, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
This appeal arises out of the denial of Pro-Mar Insurance
Underwriters, Inc.’s (Pro-Mar) request for relief as an
intervenor in a suit between Pro-Mar’s insured, Ruth and Sam,
*
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that this opinion should not be published and is not precedent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.
No. 01-40009
-2-
Inc. (R&S), Amoco, and certain personal injury plaintiffs. Pro-
Mar had sought to recover by way of subrogation what it had paid
to R&S and others for the loss of R&S’s vessel, the F/V MISS RITA
J. Pro-Mar contended that in light of a subrogation clause in
the hull insurance policy issued to R&S, it had a contractual
right to subrogation.
The district court denied Pro-Mar’s contractual subrogation
claim, finding that it failed to offer a certified copy of its
policy reflecting its right of subrogation. Pro-Mar did not file
or offer into evidence a certified or otherwise authenticated
copy of what it contended was the applicable policy, i.e., one
with a subrogation clause. Pro-Mar was also given the
opportunity to call witnesses to testify that the applicable hull
policy had a subrogation clause, but failed to do so. With only
the certified copy of the policy provided by R&S, which did not
include a subrogation clause, the district court correctly
determined that the copy of the policy provided by R&S was a true
and correct copy of the applicable policy and governed the
resolution of the subrogation issue.
Although Pro-Mar subsequently filed a certified copy of the
policy which contained the subrogation clause on which it based
its right to subrogation, it was filed in conjunction with Pro-
Mar’s motion for reconsideration, which was not considered by the
court because of Pro-Mar’s failure to comply with the notice of
deficient pleading. As the certified copy of the policy was not
considered by the district court, this court likewise refuses to
consider the policy on appeal. See Theriot v. Parish of
No. 01-40009
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Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“[a]n
appellate court may not consider new evidence furnished for the
first time on appeal and may not consider facts which were not
before the district court at the time of the challenged ruling”).
Because the only certified policy before the district court did
not contain a subrogation clause, the district court did not err
in determining that Pro-Mar did not have a contractual right of
subrogation. Love v. Nat’l Med. Enters., 230 F.3d 765, 780 (5th
Cir. 2000)(district court properly rejected claim of contractual
subrogation where there was no evidence of any contract giving
rise to such subrogation rights).
We also reject Pro-Mar’s argument that the district court’s
denial of its request for subrogation immediately after granting
its right to intervene violated its due process rights. R&S
filed its unopposed motion for apportionment on August 15, 2000.
Pro-Mar filed its motion for leave to file a complaint of
intervention, complaint of intervention, and opposition to the
motion for apportionment on August 22, 2000. Pro-Mar was given
notice of the September 7, 2000, “motion hearing” on September 5,
2000. At the September 7 hearing, the district court withheld
its ruling on the various motions and gave Pro-Mar another chance
to present evidence in opposition to the motion for
apportionment.
The motion for apportionment was specifically noticed to be
heard on September 21, 2000. At that time, Pro-Mar was given the
opportunity to provide a certified or otherwise authenticated
copy of what it contended was the relevant policy and call
No. 01-40009
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witnesses to testify that the applicable hull policy had a
subrogation clause. Pro-Mar was also given the opportunity to
show that R&S was not entitled to the entire settlement sum, in
addition to the proceeds from the hull policy. Pro-Mar did
neither. Pro-Mar never complained that it did not have adequate
notice of the hearing. Nor did Pro-Mar ask for additional time
to provide evidence.
Lastly, Pro-Mar avers that the district court erred in
approving the settlement agreement between R&S and Amoco, which
it contends awarded R&S an amount in excess of its interest and
which was directly contrary to the supporting evidence. Pro-Mar
avers that it is entitled to the full recovery of the $140,000
paid to R&S under the insurance policy.
R&S offered relevant portions of Alvin Edward Smith’s
deposition and the survey of the vessel to show that it was not
fully compensated by Pro-Mar’s payment of $140,000 and that it
was only made whole by the additional payment of the $185,000
settlement agreed to by Amoco. Pro-Mar offered no evidence
concerning R&S’s actual losses, much less any contradictory
evidence. Nor did it offer any evidence that R&S would recover
more than it was entitled if the entire settlement sum was
allocated to R&S despite being given the opportunity to do so.
In light of the evidence before the district court, the court
correctly concluded that R&S would not be made whole unless the
entire settlement amount was allotted to it.
The district court did not err in determining that Pro-Mar
did not have a right to contractual subrogation, that all of the
No. 01-40009
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agreed settlement funds should be allocated to R&S, and
dismissing the claims of R&S, Pro-Mar, and the hull underwriters
against Amoco with prejudice. The judgment of the district court
is AFFIRMED.