IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 26, 2007
No. 07-30468 Charles R. Fulbruge III
Summary Calendar Clerk
LEON WHITFIELD; MARY WHITFIELD
Plaintiffs-Appellants
v.
COUNTRYWIDE HOME LOANS INC; FIDELITY NATIONAL INSURANCE
COMPANY
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CV-4166
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Leon Whitfield and Mary Whitfield appeal from the district court’s grant
of summary judgment in favor of the defendants. Reviewing the district court’s
judgment de novo, we affirm. See Little v. Liquid Air Corp., 37 F.3d 1069,
1075–76 (5th Cir. 1994) (en banc).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30468
In 1994, the Whitfields purchased real property located in New Orleans
with a loan from defendant Countrywide Home Loans, Inc. Since that time, they
have maintained flood insurance on the property by purchasing a Standard
Flood Insurance Policy (SFIP) with a coverage limit of $33,000. In June 2003,
the Whitfields refinanced their home through Countrywide and, as part of the
refinancing, purchased a new SFIP with an increased coverage limit of $133,000
and a policy term from May 30, 2003, to May 30, 2004. Through some oversight,
the original $33,000 policy was never cancelled. The $33,000 policy and the
$133,000 policy were initially issued by two separate companies, but defendant
Fidelity National Insurance Company subsequently acquired those companies’
books of SFIPs.
When the Whitfields acquired the second SFIP (the $133,000 policy), their
insurance agent apparently did not identify on the insurance application who
was responsible for payment of the premium, and the Whitfields were therefore
designated as the payors on the policy declaration page. On at least two
separate occasions in 2004, Fidelity sent renewal notices for the $133,000 policy
directly to the Whitfields. The Whitfields contacted Countrywide about their
insurance coverage, but they never sent the renewal notices to Countrywide for
payment, as required under the terms of their mortgage contract. Meanwhile,
Fidelity sent a renewal notice for the $33,000 policy to Countrywide, which had
been designated as the payor on that policy, and Countrywide paid the premium.
Because no premium was ever paid to renew the $133,000 policy, coverage on
that policy lapsed on May 30, 2004. Over one year later, Hurricane Katrina
damaged the Whitfields’ home when it struck New Orleans on August 29, 2005.
The only policy in effect at that time was the $33,000 policy, and Fidelity paid
the Whitfields the coverage limits for that policy.
The Whitfields sued Countrywide, Fidelity, and their insurance agent,
alleging claims for breach of contract and negligence because they did not have
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No. 07-30468
adequate flood insurance coverage at the time of the hurricane. The district
court granted summary judgment to Countrywide and Fidelity because it
concluded that they had breached no duty to the Whitfields, and it entered
judgment pursuant to FED. R. CIV. P. 54(b).
Proceeding pro se, the Whitfields argue that Countrywide and Fidelity are
both liable under theories of breach of contract, negligence, and breach of a
fiduciary duty because of the defendants’ failure to acquire and maintain
adequate flood insurance on their property. They argue that Countrywide
committed clerical errors that resulted in a mixup of their two flood policies and
the cancellation of the $133,000 policy. They also argue that Fidelity negligently
managed the requirements of the National Flood Insurance Program. The
Whitfields’ arguments are contrary to the uncontroverted facts in the record.
The Whitfields’ mortgage contract placed the affirmative duty on the
borrowers to maintain insurance on the property against loss. A “Hazard
Insurance Requirements” agreement specifically required the borrowers to give
the lender all renewal notices or receipts for paid premiums. Further, it
expressly provided that the Whitfields were responsible for ensuring that the
insurance company send a bill to the lender at least 30 days prior to the renewal
date. It is undisputed that Fidelity sent renewal notices directly to the
Whitfields on March 31, 2004, and on May 17, 2004, but the Whitfields never
sent the notices to Countrywide. The undisputed summary judgment evidence
also showed that Countrywide paid the insurance premium for the only policy
for which it received a bill and that Countrywide would have paid the premium
on the $133,000 policy had it received the renewal notice even if such payment
resulted in a negative escrow balance. The Whitfields fail to show a disputed
issue of fact that Countrywide had a duty to obtain insurance or pay a premium
without a bill or renewal notice. Examination of the record fails to show a duty
by Countrywide resulting in negligence or breach of contract. See Little, 37 F.3d
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No. 07-30468
at 1075–76. Furthermore, the relationship between the Whitfields and
Countrywide was governed by the mortgage contract, and the Whitfields fail to
identify a writing which, in light of the contractual terms, shows that
Countrywide failed any fiduciary obligations. See LA REV. STAT. ANN. § 6:1124.
Similarly, Fidelity sent the renewal notices for the $133,000 policy to the
Whitfields because no one else was designated as a payor of the premiums.
There is no showing of a genuine issue of material fact that Fidelity breached
any contractual provisions or was negligent in sending the policy renewal
notices.
The Whitfields present several theories of relief for the first time on
appeal. They assert, for example, that the defendants breached an implied
covenant of good faith and fair dealing, conspired to deny them benefits, acted
with actual malice, and breached an escrow agreement. New legal theories are
not considered for the first time on appeal. See Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999).
The district court’s judgment is AFFIRMED.
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