UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30373
Summary Calendar
JOHN MAHAFFEY,
Plaintiff,
VERSUS
FIRST COAST INTERMODAL SERVICE, INC., GENERAL SECURITY INSURANCE
COMPANY and ARTHUR WYNN,
Defendants - Third Party Plaintiffs - Appellees,
VERSUS
REDLAND INSURANCE COMPANY,
Third Party Defendant - Appellant
Appeal from the United States District Court
For the Middle District of Louisiana
00-CV-68-C
October 2, 2002
Before JOLLY, HIGGINBOTHAM, and PARKER, Circuit Judges.
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*
PER CURIAM:
Redland Insurance Company (“Redland”) appeals the grant of
partial summary judgment by the district court, which named Redland
the primary insurer for damages resulting from a traffic accident.
The appeal is premature and is hereby dismissed.
I. Background.
First Coast Intermodal Service (“First Coast”) leased several
trucks from Farr Auto Sales (“Farr”), which is not a party in this
case. As part of the lease agreement, Farr provided truck drivers.
One of those drivers was Defendant Arthur Wynn. Wynn was under
contract with Farr and was not an employee of First Coast. General
Security Insurance Company (“General Security”) provided insurance
to First Coast for activities involving actual trucking and
movement of containers and material in furtherance of First Coast’s
business. Redland provided so-called “bobtail” insurance. A
bobtail is a truck without a trailer and the insurance was designed
to cover those times when the truck was being used for non-business
related transportation, i.e., not involving the movement of a
trailer, container, or material, such as during use as a normal
automobile for personal purposes. The Redland policy excluded
coverage for any time that the truck was being used for the
business purposes of the leaser.
*
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this opinion should not be published and is not precedent except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.
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Following a long-haul transport culminating on January 11,
1999, Wynn dropped off the container that he was hauling in New
Orleans, Louisiana, on behalf of First Coast. He called the First
Coast dispatcher, who advised him that there was no return load
available for him that afternoon, but told Wynn to take the night
off and call the dispatcher again in the morning.
Wynn bobtailed the truck to a truck stop in St. Bernard
Parish, where he stayed until about 11:30 p.m. on January 11. He
then bobtailed from the truck stop to a hotel. On the way, he was
involved in an automobile accident with Plaintiff John Mahaffey.
Mahaffey brought suit in the 19th Judicial District Court for the
Parish of East Baton Rouge, alleging that Wynn caused the accident
and that First Coast was vicariously liable for Wynn’s actions. On
January 20, 2000, First Coast, General Security, and Wynn removed
the case to the United States District Court for the Middle
District of Louisiana under diversity jurisdiction. The parties
consented to proceed before a magistrate judge; at that time,
Redland was not a party.
On March 27, 2001, the magistrate judge ruled on a motion for
partial summary judgment by First Coast, holding that First Coast
was not vicariously liable for Wynn because it did not exercise the
right to control Wynn’s actions. In the meantime, the three
defendants/third-party plaintiffs impleaded Redland as a third-
party defendant. The three then moved for partial summary judgment
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on their assertion that Redland provided the primary insurance
coverage for the accident under its bobtail policy. On February 1,
2002, the magistrate judge issued a report and recommendation to
the district judge who was assigned the case, including the
recommendation that the motion for partial summary judgment should
be granted naming Redland as the primary insurer. On March 4,
2002, the district judge issued a ruling adopting that
recommendation, granting the motion, and finding that as between
General Security and Redland, Redland’s policy provided primary
coverage for the damages resulting from the accident.
On March 28, 2002, Redland filed a notice of appeal from the
district court’s ruling.
II. Appealability and Jurisdiction.
Redland asserts that the ruling of the district court is
appealable and that we hold jurisdiction under 28 U.S.C. §§ 1291
and 1292. Section 1291 provides for appeal only “from all final
decisions of the district courts,” except where direct review may
be had in the United States Supreme Court. Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 545 (1946). Section 1292 allows
appeals from certain interlocutory orders, decrees, and judgments,
id., none of which apply here.
In a multi-party suit, a court’s order is final only if it
meets one of two conditions: (1) it must adjudicate all of the
claims of all of the parties, or (2) the court must expressly
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determine that there is no just reason for delay and direct an
entry of judgment under FED. R. CIV. P. 54(b). Young v. Equifax
Credit Information Serv., Inc., 294 F.3d 631, 634 n.2 (5th Cir.
2002); Riley v. Wooten, 999 F.2d 802, 804 (5th Cir. 1993); Jetco
Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.
1973). In this case, the district court did not certify Redland’s
appeal under Rule 54(b). Additionally, the claims of all of the
parties have not yet been adjudicated. Still at issue are the
damages potentially owed to Mahaffey; liability, if any, for
damages amounts exceeding the limits of Redland’s policy; and
counter-claims and cross-claims for contribution and for
indemnification of the costs of defense and attorney’s fees.
Unlike the case of, for example, Jetco, Redland has no basis to
claim that a final result has been reached. In Jetco, we found
jurisdiction where the plaintiffs prematurely appealed the
dismissal of one of three defendants. An agreed judgment disposing
of the claims against the remaining two defendants was later
entered, 473 F.2d at 1231, making a final resolution to the entire
case. There is no such circumstance here. On that basis,
Redland’s appeal is premature and should be dismissed.
Redland argues, however, that its appeal should be immediately
appealable under the collateral order doctrine. The collateral
order doctrine was first addressed in Cohen, 337 U.S. at 545-47.
In Cohen, the Court considered whether a district court’s denial of
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a litigant’s motion to apply a state statute, which would have
required the plaintiff to provide a deposit of security in a
stockholder’s derivative lawsuit, was immediately appealable
although the ruling was not a final judgment disposing of the case.
Id. at 543-45. The Court recognized that a small number of non-
final judgments may be appealable.
This decision appears to fall in that small class which
finally determine claims of right separable from, and
collateral to, rights asserted in the action, too
important to be denied review and too independent of the
cause itself to require that appellate consideration be
deferred until the whole case is adjudicated.
Id. at 546. Determining the right to demand security from the
plaintiff did not make any step toward final disposition of the
merits of the case and would not be merged in the final judgment.
Further, if not immediately reviewed, effective review might have
been too late and the right conferred by the state statute, if
found applicable, might have been lost. Id. In other words, an
irreparable prejudice might have attached to the defendants without
immediate review.
This case is distinguishable. Redland does not seek a
separable right, which might be irretrievably lost. Indeed,
Redland is not prejudiced at all because it can fully appeal the
results of the district court’s partial summary judgment order when
a final judgment has been achieved. The district court’s order was
an integral step toward final disposition on the merits, not a
separable side issue determination. Once the merits have been
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adjudicated, the order will be merged into the final judgment.
Our cases on the collateral order doctrine do not help Redland
either. We recently examined the doctrine in the context of remand
in Falcon v. Transportes Aeros de Coahuila, S.A., 169 F.3d 309 (5th
Cir. 1999), and in Angelides v. Baylor College of Medicine, 117
F.3d 833 (5th Cir. 1997). Because the underlying dispute in those
cases was reviewability of an issue in state court following remand
from federal court, they are not strictly apposite to Redland’s
claim. They do, however, stand for the proposition that the
collateral order doctrine applies when a district court’s
“conclusive” order essentially prevents effective review following
remand and is therefore separable. Falcon, 169 F.3d at 311-12;
Angelides, 117 F.3d at 837. Again, Redland’s putative appeal is
not precluded by the district court’s decision; at most, it is
delayed until final judgment has been entered.
In another context, we also permit immediate appeal of denial
of qualified immunity under the collateral order doctrine. See,
e.g., Palmer v. Johnson, 193 F.3d 346, 350-51. We do so, however,
only if denial is based on a conclusion of law. Id. A claim of
insufficient evidence to support such a conclusion is not
appealable. Id. Here, Redland would cast the district court’s
decision as error as a matter of law. The real analysis, though,
is fact-specific, as the magistrate judge pointed out in her
report. The collateral order doctrine is therefore inapplicable
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to Redland’s claim.
III. Conclusion.
For the reasons stated herein, we find that Redland’s appeal
is premature and is not immediately appealable under the collateral
order doctrine. Therefore, we do not hold jurisdiction to review
the merits of the case. The appeal is hereby DISMISSED.
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