UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60830
Summary Calendar
AMERICAN NATIONAL GENERAL INSURANCE COMPANY,
Plaintiff-Appellee,
and
STATE FARM FIRE AND CASUALTY INSURANCE COMPANY,
Intervenor Plaintiff-Appellee,
versus
L.T. JACKSON, ET AL.,
Defendants,
L.T. JACKSON,
Defendant-Appellant,
and
L.T. JACKSON TRUST,
Defendant-Intervenor Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(3:99-CV-885-LN)
_________________________________________________________________
May 29, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges:
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
At issue is whether appellate jurisdiction exists in the light
of the district court’s not having entered a separate judgment,
contrary to Federal Rule of Civil Procedure 58, and, if there is
such jurisdiction, whether summary judgment was properly entered
declaring Plaintiffs American National General Insurance Company
and State Farm Fire and Casualty Insurance Company have no duty to
defend or indemnify Defendants L.T. Jackson and L.T. Jackson Trust.
AFFIRMED.
I.
In the action at hand, Plaintiffs seek a declaratory judgment
that they have no duty, pursuant to insurance policies issued to
Jackson, to defend or indemnify Defendants with respect to an
action filed by the United States of America claiming sexual
discrimination in violation of the Fair Housing Act, 42 U.S.C. §
3601 et seq. The Government contended that Jackson, as the owner
or manager of residential rental properties, made physical sexual
advances toward female tenants and explicitly based the terms,
conditions, and privileges of their tenancy on granting sexual
favors.
For the action at hand, summary judgment was granted,
declaring Plaintiffs had no duty to defend or indemnify Defendants.
For the policies issued by American National, and noting that they
provided coverage only for accidental occurrences of bodily injury,
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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property damage, or personal injury and provided further that
losses resulting from intentional acts were not covered, the
district court declared American National had no duty under the
policies because of an exclusion for bodily injury resulting from
sexual molestation.
For the State Farm policies, the district court again noted
they provided coverage only for accidental occurrences of bodily
injury, property damage, or personal injury and excluded from
coverage damages resulting from intentional conduct. In declaring
State Farm had no duty under the policies, the district court held
there was no occurrence, because any personal injury inflicted was
not the result of accidental conduct.
II.
Because a separate judgment was not entered, we must decide
whether we have appellate jurisdiction. If we do, we must
determine whether summary judgment was proper.
A.
In the “MEMORANDUM OPINION AND ORDER” granting summary
judgment, the district court stated: “A separate judgment will be
entered in accordance with Rule 58 of the Federal Rules of Civil
Procedure”. American Nat’l Gen. Ins. Co. v. Jackson, No.
3:99CV885LN, at 22 (S.D. Miss. 26 Sept. 2001) (unpublished)
(Jackson-USDC). However, a separate judgment was not entered.
Rule 58 provides: “Every judgment shall be set forth on a separate
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document. A judgment is effective only when so set forth and when
entered as provided in Rule 79(a)[setting forth the filing duties
of the district court clerk of court]”. FED. R. CIV. P. 58.
The lack of a separate judgment, alone, is not a
jurisdictional bar to this appeal. Instead, “where the parties
voluntarily proceed on appeal from an otherwise final and
appealable order but lack a Rule 58 separate judgment, the courts
of appeals may hear the appeal”. Baker v. Mercedes Benz of N. Am.,
114 F.3d 57, 60 (5th Cir. 1997); see Bankers Trust Co. v. Mallis,
435 U.S. 381, 384-85 (1978) (“it could not have been intended that
the separate-document requirement of Rule 58 be such a categorical
imperative that the parties are not free to waive it”; “[i]f, by
error, a separate judgment is not filed before a party appeals,
nothing but delay would flow from requiring the court of appeals to
dismiss the appeal”.). We will not consider the merits, however,
“if the notice of appeal would have been untimely if the order
appealed had constituted a Rule 58 judgment”. Baker, 114 F.3d at
61.
The parties voluntarily proceed in this appeal. In response
to this court’s directive that they address the separate-judgment
issue, Defendants and State Farm maintain the order is final in
nature and effectively terminated the litigation; neither objects
to the lack of a separate judgment. American National does not
address this issue.
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Concerning the finality of the summary judgment order, a
“‘decision is ordinarily considered final and appealable under [28
U.S.C.] § 1291 only if it ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment”.
Doleac v. Michalson, 264 F.2d 470, 479 (5th Cir. 2001) (emphasis in
original) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706,
712 (1996)). The summary judgment declaring Plaintiffs had no duty
to defend or indemnify Defendants ended the litigation; as
acknowledged by the district court, the only matter remaining was
entry of judgment. See, e.g., Mallis, 435 U.S. at 387 (“Here, the
District Court clearly evidenced its intent that the opinion and
order from which an appeal was taken would represent the final
decision in the case.”).
Finally, the notice of appeal from the 26 September 2001
opinion and order was timely filed on 26 October 2001. See FED. R.
APP. P. 4(a) (“notice of appeal ... must be filed ... within 30 days
after the judgment or order appealed from is entered”). Therefore,
despite the absence of a separate judgment, we have jurisdiction.
B.
A summary judgment is reviewed de novo, applying the identical
standard used by the district court. E.g., Stewart v. Murphy, 174
F.3d 530, 533 (5th Cir.), cert. denied, 528 U.S. 906 (1999). Such
judgment should be granted if “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
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affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law”. FED. R. CIV. P. 56(c). “We view the pleadings
and summary judgment evidence in the light most favorable to the
nonmovant.” Stewart, 174 F.3d at 533.
For essentially the reasons stated by the district court in
its comprehensive and well-reasoned opinion, we affirm the summary
judgment declaring that Plaintiffs do not have a duty to defend or
indemnify Defendants with respect to the Fair Housing Act action
brought by the United States. Jackson-USDC, at 1-22.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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