# Opposition Brief — Xavier University of Louisiana v. Travelers Casualty Property Co. of America (No. 07-711)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

2
fo . No. 07-711 DEC 2 t 2007
: OPEICE OF THE CLERK.
Su The
Supreme Court of the United States
®

IN RE KATRINA CANAL BREACHES LITIGATION
XAVIER UNIVERSITY OF LOUISIANA,

Petitioner,
V.

TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA,

Respondent.
e

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit

¢

BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI

.

CHARLES FRIED RALPH S. HUBBARD, III
Counsel of Record SIMEON B. REIMONENQ, JR.

1545 Massachusetts Ave. SETH A. SCHMKEECKLE

Cambridge, MA 02138 LUGENBUHL, WHEATON,

(617) 495-4636 PECK, RANKIN & HUBBARD

601 Poydras St., Ste. 2775
New Orleans, LA 70130
(504) 568-1990

STEPHEN E. GOLDMAN
WYSTAN M. ACKERMAN
JOHN M. TANSKI
ROBINSON & COLE LLP
280 Trumbull St.
Hartford, CT 06103
(860) 275-8200

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO (S00) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Did the Fifth Circuit abuse its discretion in
concluding that “the rules of contract interpretation
set forth in the Louisiana Civil Code provide us with
an adequate basis to decide this appeal,” and there-
fore denying Petitioner’s motion to certify a question
of insurance policy interpretation to the state su-
preme court?

ii
CORPORATE DISCLOSURE STATEMENT

Respondent Travelers Property Casualty Com-
pany of America is an indirect wholly-owned subsidi-
ary of The Travelers Companies, Inc.

ili

TABLE OF CONTENTS

Page
CPR IE ROI FUR oEe BOs vac oscesseskssciasasonsinaccavenna i
CORPORATE DISCLOSURE STATEMENT ........ ii
pF we oes el gy | -. Sn ne er iv
STATEMENT OF THE CASB............cccccccosssscoseness 1
SUMMARY OF ARGUMENT ...................cceccseeeees 7
REASONS FOR DENYING THE WRIT.............. 8

I. THE FIFTH CIRCUIT ACTED WELL
WITHIN ITS DISCRETION IN DENY-
ING PETITIONER’S MOTION TO CER-
TIFY QUESTIONS TO THE STATE
PU RUN EP EPMG E60 diss cds aseincsasstcenevacchects 8

Il. PETITIONER’S ATTEMPT TO MANU-
FACTURE A CIRCUIT SPLIT IS WITH-
PR NT ss occu sccintnives tea pea sigte trea 15

Ill. THE LOUISIANA COURT OF APPEAL
DECISION IN SHER IS NOT GROUNDS
FOR GRANTING CERTIORARI............... 20

ON Ripe PIN 4b ants ocahavek cy eens weak ceexeds cane cobs nero 25

lV

TABLE OF AUTHORITIES
Page
CASES
Am. Fid. Bank & Trust Co. v. Heimann, 683
Beate OE SAR IY oso inca cccenisnsna sear tacunecsdaiedinnes 17
Am. Int'l Specialty Lines Ins. Co. v. Canal
Indem. Co., 352 F.3d 254 (5th Cir. 2003)..................5
Arizonans for Official English v. Arizona, 520
Mee I ic ad cea cinaady Scuaauoxesiaobine 13, 14
Baker by Thomas v. Gen. Motors Corp., 522
Spee I CE ores a kegesiasddnomn cea beara nioamemmeies 23
Bi-Rite Enters. v. Bruce Miner Co., 757 F.2d
NE on os chsntsceyh ch cecnsauctsastgncacsoiadcrnciia ves 17
Butner v. United States, 440 U.S. 48 (1979).......0000... 11
Cantwell v. University of Mass., 551 F.2d 879
6 GS Re yxy Feeney ee eR ease ene Ranta 13
Chaney v. Travelers Ins. Co., 249 So. 2d 181
a ee ge ain et ee pee ae 21
Chevron USA, Inc. v. Vermilion Parish Sch.
Bd., 377 €.30 450 (6th Cit. BOO4) vc ccneccscecsseocccss 19, Zz

Citizens Comm. for Better Law Enforcement v.
Lafayette, 685 So. 2d 289 (La. Ct. App. 1996)........ 21

City of Burlington v. Indemnity Ins. Co. of N.

Ae BSe Bie OO Ce Ci BS) oovkvsccocscasscsccckadascccs: 17
City of Houston v. Hill, 482 U.S. 451 (1987) 10
DiBella v. Hopkins, 403 F.3d 102 (2d Cir. 2005) 16

Doe v. City of Chicago 360 F.3d 667 (7th Cir
2004 ) 12

TABLE OF AUTHORITIES —- Continued

Page
Elk Grove Unified Sch. Dist. v. Newdow, 542
aso 0s akc acte ce lc ocierg cane 11
Elkins v. Moreno, 435 U.S. 647 (1978)................. 13, 14
Fields v. Legacy Health Sys., 413 F.3d 943 (9th
I 22 t os as snsdcccgpdibecetsinarpecshadedaanaeae 16
Fiess v. State Farm Lloyds, 392 F.3d 802 (5th
as os cacndanintcessbcatenaadeanaansaumeueaieeeneeen 19
Jefferson v. Lead Indus. Ass’n, 106 F.3d 1245
ac concn 12
Jennings v. BIC Corp., 181 F.8d 1250 (11th Cir.
RR SR Ea ree Sse Oe a a eR 16
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701
ERASER eS Po aioe ll
In re Katrina Canal Breaches Consol. Litig.,
466 F. Supp. 2d 729 (E.D. La. 2006)..............0.0... 3
In re Katrina Canal Breaches Litig., 495 F.3d
Be IN NI BINED oncnccicsc dv onssc ss dniniancndanctdasansaed passim
Lake Charles Diesel, Inc. v. GMC, 328 F.3d 192
i sank Uaewignuansacetem 19, 22
Lamar Homes, Inc. v. Mid-Continent Cas. Co..,
Oe Bee Bete (GEM Cir, BOO) qn. cicncccccscccccccccsscccsssceses 19
Lawrence v. Chater, 516 U.S. 163 (1996) ......0............24
Lehman Bros. v. Schein, 416 U.S. 386 (1974)........ 9 10

Local 514 Transport Workers Union of Am. v
Keating, 358 F.3d 743 (10th Cir. 2004 16

vi

TABLE OF AUTHORITIES - Continued

Page
McMillian v. Monroe County, 520 U.S. 781
a chiar daiduapanwenadeeeeate 1]
One Beacon Ins. Co. v. Don’s Building Supply,
Ene, 490 £.06 SOL (56H Cir, 2007) .......000.00.c000.0000000 19
Pembaur v. City of Cincinnati, 475 U.S. 469
Ne aa ny sade Lan wukhan vveeandnnjasins 11
Powell v. U.S. Fid. & Guar. Co., 88 F.3d 271
a iss han cou unaidaiiiniakswavesciannasae 17
Savoie v. Fireman’s Fund Ins. Co., 347 So. 2d
ac ehacdh ocrcdauisheubaubadadunseuansacwadns 5
Schmude v. Sheahan, 420 F.3d 645 (7th Cir.
ere eis caida dNdkiabedndavaneoces 16
Schroeder v. Bd. of Supervisors of La. State
RPOORE, Tk GOO, BO Ee CL. 1991)... cans cc ccecccccsccccoccncse 5
Shakopee Mdewakanton Sioux Cmty. v. City of
Prior Lake, 771 F.2d 1153 (8th Cir. 1987) .............. 17
Sher v. Lafayette Ins. Co., 2007 WL 4247708
(La. Ct. App. Nov. 19, 2007)...............c..sssec00 6, 20-24
State of Florida ex rel. Shevin v. Exxon Corp.,
So F.20 2o0 (Sth Cir. 1976) ........................-.... 15, 18
Thomas v. American Home Prods., Inc., 519
CNee ne eed daheéspesanaevecsss 1.24
Tidler v. Eli Lilly & Co., 851 F.2d 418 (D.C. Cir
ela Sind dude swusgdvewias 13, 16, 18

Town of Castle Rock v. Gonzales, 545 U.S. 748
(P2005) 13, 14

Vill

TABLE OF AUTHORITIES — Continued

Page
Transamerica Ins. Co. v. Duro Bag Mfg. Co., 50
ee eI AE, SPINE vississs eh pr nsnrscsovernnncrdetssece sane 17
Travelers Indem. Co. v. DiBartolo, 171 F.3d 168
a I la sa entsn dd sect ncccansesilad ncn aaieaiaeemanncceks 17
United States Fid. & Guar. Co. v. Park ’n Go of
Georgia, Inc., 66 F.3d 273 (11th Cir. 1995)............. 18
In re Whitaker Constr. Co., 439 F.3d 212 (5th
te S| ERRANDS a Meroe ee SAREE ee eh ee ND 5
Woodbridge Place Apartments v. Wash. Square
Capital, Inc., 965 F.2d 1429 (7th Cir. 1992)........... 17
York Ins. Co. v. Williams Seafood of Albany,
Ine., 223 F.3d 1253 (11th Cir. 2000) ..................:.... 18
STATUTES
a Te ON OO, I hae spat veavasacnes picadsvnndiudievadennciowiaces 4
Bi, Ke eG, FE ihe aicntctaxesanssrsnideccdeiosae 4
TREATISE

17A Charles A. Wright et al., FEDERAL PRACTICE
AND PROCEDURE § 4248 (1988)...........................12. 15

BRIEF FOR RESPONDENT IN OPPOSITION

Petitioner asks this Court to review the Fifth
Circuit’s decision not to certify a question of insur-
ance policy interpretation to a state supreme court.
There is no reason, let alone a compelling reason, to
grant certiorari. There is no circuit split. No federal
constitutional provision or federal statute is involved.
Petitioner invokes only this Court’s supervisory
power, asking the Court to review a highly discre-
tionary decision by a court of appeals. The Fifth
Circuit acted well within its considerable discretion
in determining that well-established principles of
contract interpretation in the Louisiana Civil Code
provided sufficient guidance for the Fifth Circuit to
decide a straightforward question of insurance policy
construction. Given that Petitioner chose to file this
suit in federal court under diversity jurisdiction, it
can hardly complain about the fact that a federal
court of appeals decided a state law issue rather than
certifying it. The petition for certiorari should there-
fore be denied.

STATEMENT OF THE CASE

Petitioner Xavier University of Louisiana is a
large university located in the City of New Orleans. It
purchased commercial property insurance coverage
from Respondent Travelers Property Casualty Com-
pany of America, which was in effect when Hurricane
Katrina struck on August 29, 2005. Petitioner’s

2

buildings sustained some damage resulting from
Hurricane Katrina’s winds. During the hurricane,
levees broke on several canals in New Orleans, re-
sulting in large-scale flooding. Some of Petitioner’s
buildings were damaged by the floodwaters.

The insurance policy issued by Respondent
covered loss caused by wind, but expressly excluded
loss caused by “flood.” Petitioner also purchased a
separate flood insurance policy through the National
Flood Insurance Program, but the limits were inade-
quate to cover the flood damage to Petitioner’s build-
ings. Seeking to recover for both wind and flood
damage, Petitioner filed this breach of contract suit
against Respondent in the U.S. District Court for the
Eastern District of Louisiana, which had jurisdiction
based on diversity of citizenship.

In the district court, Petitioner filed a mction for
partial summary judgment, seeking a ruling that the
insurance policy covered the damage to its buildings
caused by the massive inundation of New Orleans,
notwithstanding the “flood” exclusion. As Petitioner
put it, it was seeking coverage for “damages to Xa-
vier’s campus following Hurricane Katrina [that]
were caused by ground water which came from the
collapses of the 17th Street Canal and the London
Avenue canal levees... .” Petitioner argued that the
term “flood” should be interpreted as referring to a
“natural” event, and that the levee breaches were
caused by “non-natural” causes — human acts or
omissions in the design, construction or maintenance

of the levees

3

Petitioner’s motion for partial summary judg-
ment was heard together with dispositive motions in
other cases raising essentially the same issue.’ The
district court granted Petitioner’s motion for partial
summary judgment in part, holding that the term
“flood” was ambiguous and should be construed as
referring to “natural” events. In re Katrina Canal
Breaches Consol. Litig., 466 F. Supp. 2d 729, 766-67
(E.D. La. 2006), vacated and remanded, 495 F.3d 191
(5th Cir. 2007). The district court concluded, however,
that there were genuine issues of fact in dispute with
respect to the cause of the levee breaches. /d. at 767.
The district court sua sponte certified its order for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
Id. at 780-81. Respondent filed a petition for permis-
sion to appeal in the Fifth Circuit, which granted
review.

While the case was pending in the Fifth Circuit,
Petitioner and other plaintiffs moved to certify the
question presented to the Louisiana Supreme Court.
These motions were carried with the case to be ruled
upon by the merits panel. When it issued its decision
on the merits, the Fifth Circuit denied the motions to
certify, concluding that “[blecause the rules of con-
tract interpretation set forth in the Louisiana Civil
Code provide us with an adequate basis to decide this

' There is another petition for certioran pending in this
Court in one of the cases that was heard together with the
instant case in both the district court and the court of appeals
See Chehardy v. Allstate Indem. Co., No. 07-713

4

appeal, we decline the certification requests.” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 208 n.11
(5th Cir. 2007).

The Fifth Circuit concluded, unanimously, that
what occurred in New Orleans was clearly a “flood”:

[W]e conclude that the flood exclusions in the
plaintiffs’ policies are unambiguous in the
context of the facts of this case. In the midst
of a hurricane, three canals running through
the City of New Orleans overflowed their
normal boundaries. The flood-control meas-
ures, i.e., levees, that man had put in place
to prevent the canals’ floodwaters from
reaching the city failed. The result was an
enormous and devastating inundation of wa-
ter into the city, damaging the plaintiffs’
property. This event was a “flood” within that
term’s generally prevailing meaning as used
in common parlance, and our interpretation
of the exclusions ends there. The flood is un-
ambiguously excluded from coverage under
the plaintiffs’ all-risk policies, and the dis-
trict court’s conclusion to the contrary was
erroneous.

Id. at 196. In reaching this result, the Fifth Circuit
applied the principles of contract interpretation set
forth in the Louisiana Civil Code. The Code provides
that “[t]he words of a contract must be given their
generally prevailing meaning,” and that “[wlhen the
words of a contract are clear and explicit and lead to
no absurd consequences, no further interpretation
may be made in search of the parties’ intent.” La. Civ.

5

Code arts. 2046, 2047.’ The Fifth Circuit applied the
Code the same way the Louisiana Supreme Court
does. The state supreme court has held that the
“generally prevailing meaning” of a word is the
meaning used in “common parlance” by “a reasonable
person, a person in the street or an average citi-
zen....” Schroeder v. Bd. of Supervisors of La. State
Univ., 591 So. 2d 342, 346 (La. 1991). See also Savoie
v. Fireman’s Fund Ins. Co., 347 So. 2d 188, 191 (La.
1977). As the Fifth Circuit held, there is no doubt that
in common parlance what occurred in New Orleans
was a “flood.” Katrina Canal Breaches, 495 F.3d at
196.

Petitioner filed a petition for rehearing en banc,
arguing, inter alia, that the panel erred in declining
to certify the question presented to the state supreme
court. Petitioner asked the en banc court to certify the
question. Petitioner also moved to stay the mandate
on the grounds that, in Sher v. Lafayette Ins. Co., the
Louisiana Fourth Circuit Court of Appeal was sched-
uled to hear oral argument on the applicability of
a “flood” exclusion in a Hurricane Katrina case.

* Louisiana is a unique civil law jurisdiction in which “the
only authoritative ‘sources of law are legislation and custom,”
and “courts must look first and foremost to the state’s ‘primary
sources of law: the State’s Constitution, codes, and statutes.”
Am. Int'l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d
254, 260 (5th Cir. 2003). See also In re Whitaker Constr. Co., 439
F.3d 212, 222 (5th Cir. 2006) (“In the civil law tradition, the Civil
Code is the ‘solemn expression of legislative will’ to which our
Erie obligation applies.”).

6

Petitioner asked that the mandate be stayed until
both the Louisiana Fourth Circuit and the Louisiana
Supreme Court had issued decisions in Sher. The
Fifth Circuit denied the petition for rehearing en
banc, denied the motion to stay the mandate, and
issued its mandate.

Following issuance of the mandate, discovery has
continued in the district court. Petitioner filed several
motions for partial summary judgment on other
issues that it claims are closely tied to the interpreta-
tion of the “flood” exclusion. While those motions
were pending, the Louisiana Fourth Circuit issued a
decision in Sher. As explained in further detail
herein, the Sher court did not issue a majority opin-
ion on the “flood” exclusion. It voted 2-2 on whether
the term “flood” was ambiguous, with one judge
ruling that the term “flood” was unambiguous, but
that the damage at issue was covered because it was
caused by wind, and one judge concurring in the
result without explaining her views. Sher v. Lafayette
Ins. Co., 2007 WL 4247708 (La. Ct. App. Nov. 19,
2007). After the Sher opinion came down, the district
court denied Petitioner’s motions for partial summary
judgment, without prejudice to the motions being re-
urged after the Louisiana Supreme Court denies
writs or issues a decision on the merits in Sher.

¢

7

SUMMARY OF ARGUMENT

The only issue decided by the Fifth Circuit was a
question of contract interpretation under Louisiana
law. Petitioner does not ask this Court to review the
issue decided by the Fifth Circuit because it knows
that this Court does not, except in extraordinary
circumstances, review decisions by the lower federal
courts on issues of state law. In an effort to manufac-
ture a “federal” issue, Petitioner argues that the Fifth
Circuit erred in failing to certify a question of state
law to the state supreme court. But that is a highly
discretionary decision, dependent on a careful analy-
sis of the state law issue on which certification is
being sought. Petitioner fails to show that the Fifth
Circuit committed any error, let alone such an egre-
gious abuse of discretion as to warrant the exercise of
this Court’s supervisory powers.

This Court gives the courts of appeals consider-
able deference in deciding questions of state law, and,
as part of that process, deciding whether to certify a
question to a state supreme court. In making that
decision, the Fifth Circuit and other courts of appeals
consider all relevant factors, most importantly
whether the applicable principles of state law are
sufficiently clear. Petitioner does not challenge the
criteria applied by the Fifth Circuit in exercising its
discretion. While Petitioner attempts to suggest that
there is a circuit split on the certification of questions
to state supreme courts, there clearly is none.

8

In order to decide whether the Fifth Circuit
abused its discretion, this Court would have to im-
merse itself in Louisiana contract law and its unique
civilian tradition. Such an inquiry would, however,
readily demonstrate that the Fifth Circuit acted well
within its discretion. The question of whether the
massive inundation of New Orleans at the time of
Hurricane Katrina was a “flood” was governed by
well-established, basic principles of contract law set
forth in the Louisiana Civil Code and Louisiana
Supreme Court decisions.

Petitioner also argues that the Fifth Circuit’s
decision conflicts with the decision by the Louisiana
intermediate appellate court in Sher. But there was
no majority opinion in Sher. The plurality opinion
contains little reasoning and ignores the Fifth Cir-
cuit’s decision. A non-precedential, evenly-divided and
sparsely reasoned opinion of one of Louisiana’s five
circuit courts of appeal is not grounds for this Court
to intervene.

REASONS FOR DENYING THE WRIT

I. THE FIFTH CIRCUIT ACTED WELL WITHIN
ITS DISCRETION IN DENYING PETI-
TIONER’S MOTION TO CERTIFY QUES-
TIONS TO THE STATE SUPREME COURT

Certification of a question to a state supreme
court is not governed by any federal statute or rule of
procedure. Instead, it is a procedure that is made

9

available to the federal courts by some state courts of
last resort, and is exercised by the federal courts in
their discretion. This Court has long recognized that
certification to a state supreme court is never “obliga-
tory,” and “in a given case rests in the sound discre-
tion of the federal court.” Lehman Bros. v. Schein, 416
U.S. 386, 390-91 (1974). When a federal court decides
to certify, the decision to answer a certified question,
or decline to do so, rests entirely in the discretion of
the state court. State statutes and rules of court vary
considerably with respect to whether certification is
permitted, the criteria for considering certification,
and which federal courts can certify a question. It is a
procedure that is highly discretionary in both the
federal and state courts.

A court of appeals’ decision on certification is
inherently intertwined with its evaluation of the
merits of the state law issue on which certification is
sought. “(T]he use of such a procedure is more a
question of the considerable discretion of the federal
court in going about the decisionmaking process than
it is a question of a choice trenching upon the funda-
mentals of [this Court’s] federal-state jurisprudence.”
Id. at 394 (Rehnquist, J., concurring). A decision on
certification necessarily depends, in part, on how
well-established the applicable principles of state law
are, and the extent to which state appellate courts (or
courts in other jurisdictions that may be looked to for
guidance) have disagreed on the question presented.
As then-Justice Rehnquist noted, “it would be un-
thinkabie to any of the Members of this Court to

10

prescribe the process by which a district court or a
court of appeals should go about researching a point
of state law which arises in a diversity case.” Id. “Ifa
district court or court of appeals believes that it can
resolve an issue of state law with available research
materials already at hand, and makes the effort to do
so, its determination should not be disturbed simply
because the certification procedure existed but was
not used.” Id.

As this Court has recognized, certification is not
a panacea, and in some instances is clearly improper.
“It would be manifestly inappropriate to certify a
question in a case where ... there is no uncertain
question of state law whose resolution might affect
the pending federal claim.” City of Houston v. Hill,
482 U.S. 451, 471 (1987). For example, “[a] federal
court may not properly ask a state court if it would
care in effect to rewrite a statute.” Jd. While this
Court has at times suggested that, on remand, it may
be appropriate for a court of appeals to certify a
question of state law, Petitioner fails to cite a single
case in which this Court has ever ordered a court of
appeals to use the certification procedure. It does not
appear that this Court has ever done so.

The discretion this Court has given the courts of
appeals on certification goes hand-in-hand with the
considerable deference this Court accords the courts
of appeals in deciding the merits of issues of state
law. This Court’s “custom on questions of state law
ordinarily is to defer to the interpretation of the
Court of Appeals for the Circuit in which the State is

ll

located.” Elk Grove Unified Sch. Dist. v. Newdow, 542
U.S. 1, 16 (2004). See also Pembaur v. City of Cincin-
nati, 475 U.S. 469, 485 n.13 (1986) (“We generally
accord great deference to the interpretation and
application of state law by the courts of appeals.”).
The main reason for this is that “federal judges who
deal regularly with questions of state law in their
respective districts and circuits are in a better posi-
tion than [the Supreme Court] to determine how local
courts would dispose of comparable issues.” Butner v.
United States, 440 U.S. 48, 58 (1979).* Judges on the
Fifth Circuit, for example, are well-versed in Louisi-
ana’s unique system of civil law. The members of the
Fifth Circuit panel in this case collectively had 46
years of experience on the federal appellate bench,
during which they have decided countless questions
of Louisiana law.

The Fifth Circuit acted well within its discretion
in concluding that “the rules of contract interpreta-
tion set forth in the Louisiana Civil Code provide us
with an adequate basis to decide this appeal... .”
Katrina Canal Breaches, 495 F.3d at 208 n.11.
The Fifth Circuit had no difficulty in applying the

* See also McMillian v. Monroe County, 520 U.S. 781, 786
(1997) (“Since the jurisdiction of the [Eleventh Circuit] Court of
Appeals includes Alabama, we defer considerably to that court’s
expertise in interpreting Alabama law.”); Jett v. Dallas Indep.
Sch. Dist., 491 U.S. 701, 738 (1989) (“We think the [Fifth
Circuit] Court of Appeals, whose expertise in interpreting Texas
law is greater than our own, is in a better position to determine
[the state law issues in the case}.”).

12

Louisiana principles of contract law to decide whether
the massive inundation of New Orleans was a “flood.”
Indeed, to the average citizen it seems preposterous
that lawyers are even arguing about whether the
inundation of New Orleans was a “flood.” Petitioner
fails to explain why the governing principles of con-
tract law were so uncertain that this Court should
exercise its supervisory power to grant certiorari, and
then immerse itself in Louisiana contract law to
determine whether the Fifth Circuit abused its dis-
cretion in denying certification. While the question
before the Fifth Circuit was important to policyhold-
ers and the insurance industry, there is no require-
ment that all important questions be certified even if
the applicable principles are clear.

Moreover, the Fifth Circuit was entitled to take
into account the fact that Petitioner chose to sue in
federal district court, knowing that a federal court
would decide the issues of state law presented by the
case. See Jefferson v. Lead Indus. Ass’n, 106 F.3d
1245, 1248 (5th Cir. 1997) (noting that courts are
“slow to honor a request for certification from a party
who chose to invoke federal jurisdiction”) (quoting
17A Charles A. Wright et al., FEDERAL PRACTICE &
PROCEDURE § 4248, at 176 (1988).*

* The courts of appeals frequently look with skepticism on a
motion to certify by the party that chose to litigate in a federal
forum. See, e.g., Doe v. City of Chicago, 360 F.3d 667, 672 (7th
Cir. 2004) (“{I]t’s not a proper alternative to proceeding in the
first instance in state court to sue in federal court but ask that

(Continued on following page)

13

Petitioner relies on three decisions by this Court
which are readily distinguishable. Elkins v. Moreno,
435 U.S. 647 (1978); Arizonans for Official English v.
Arizona, 520 U.S. 43 (1997); Town of Castle Rock v.
Gonzales, 545 U.S. 748 (2005). In all three cases,
there was a state law issue that, depending on how it
was decided, might make it unnecessary to decide a
question of federal constitutional law. In Elkins, this
Court certified a question to the Maryland Court of
Appeals based on the Court’s “longstanding policy
of avoiding unnecessary constitutional questions.”
Elkins, 435 U.S. at 661. Similarly, in Arizonans, the
Court noted in dicta (after concluding that the
plaintiffs had no standing) that the lower courts
could potentially have avoided deciding whether an
amendment to the Arizona Constitution was com-
patible with the U.S. Constitution if the Arizona
Supreme Court had been offered the opportunity to
construe the state constitutional provision. The
Court explained that “[wlarnings against premature
adjudication of constitutional questions bear height-
ened attention when a federal court is asked to
invalidate a State’s law, for the federal tribunal risks

the suit be stayed to permit certifying the interpretive issue to
the state court, thus asking that the suit be split between two
courts.”); Tidler v. Eli Lilly & Co., 851 F.2d 418, 426 (D.C. Cir.
1988) (noting that the position of plaintiffs who brought suit in
federal court “and when they saw the result, thought better of
the state after all ... could hardly have been made less compel-
ling”); Cantwell v. University of Mass., 551 F.2d 879, 880 (1st
Cir. 1977) (“[O]ne who chooses the federal courts in diversity
actions is in a peculiarly poor position to seek certification.”).

14

friction-generating error if it endeavors to construe a
novel state Act not yet reviewed by the State’s highest
court.” Arizonans, 520 U.S. at 79.

In Town of Castle Rock, this Court avoided a
federal constitutional question when it held that
Colorado law did not provide the plaintiff with a right
to police enforcement of a restraining order. The
Court concluded that certification of that question to
the state supreme court was unnecessary. Town of
Castle Rock, 545 U.S. at 758-66 & n.5. Petitioner
relies on the dissent, which concluded that the Court
should have deferred to the Tenth Circuit’s interpre-
tation of Colorado law or, “barring that,” should have
certified the question to the Colorado Supreme Court.
Id. at 778 n.6 (Stevens, J., dissenting) (“Both options
that I favor — deferring to the Circuit’s interpretation
or, barring that, certifying to the Colorado Supreme
Court — recognize the comparative expertise of
another tribunal on questions of state law.” (emphasis

added)).

The federalism concerns that were implicated in
Elkins, Arizonans, and Town of Castle Rock, where
federal courts were asked to strike down a state
statute or state constitutional provision on federal
constitutional grounds, are not present when federal
courts are interpreting state law in diversity cases.
The diversity jurisdiction dockets of the federal courts
of appeals would grind to a halt if they were required
to certify to a state supreme court questions as
straightforward as whether the massive inundation
of a major city was a “flood.” Litigants who, like

15

Petitioner, choose to sue in federal court assume the
risk that the result they obtain from the federal court
of appeals might not be the same result that other
litigants obtain in state court.

If. PETITIONER’S ATTEMPT TO MANUFAC.
TURE A CIRCUIT SPLIT IS WITHOUT
MERIT

Petitioner tries to create a circuit split by citing
instances in which courts of appeals have on occasion
certified questions of insurance policy interpretation
to state courts of last resort. But Petitioner has failed
to show that there is any disagreement among the
courts of appeals, let alone a well-developed dis-
agreement that would require intervention by this
Court.

In exercising its discretion on certification, the
Fifth Circuit takes into consideration all pertinent
factors. “The most important [factors] are the close-
ness of the question and the existence of sufficient
sources of state law ... to allow a.principled rather
than conjectural conclusion.” State of Florida ex rel.
Shevin v. Exxon Corp., 526 F.2d 266, 275 (5th Cir.
1976). The Fifth Circuit also considers, among other
factors, “the practical limitations of the certification
process; significant delay and possible inability to
frame the issue so as to produce a helpful response on
the part of the state court.” Jd. See also 17A Charles
A. Wright et al., FEDERAL PRACTICE AND PROCEDURE
§ 4248 (quoting Shevin’s description of the factors

16

that guide certification and noting that “the Fifth
Circuit ... has had by far the greatest experience
with certification”).

The courts of appeals are in agreement that the
decision on certification is a highly discretionary,
case-by-case determination, in which the court will
consider all pertinent factors. For example, the D.C.
Circuit has noted that “[t]he most important consid-
eration guiding the exercise of this discretion ... is
whether the reviewing court finds itself genuinely
uncertain about a question of state law that is vital to
a correct disposition of the case.” Tidler, 851 F.2d at
426. Similarly, the Second Circuit has stated that it
“will not certify questions of law where sufficient
precedents exist for us to make this determination’;
rather, “[clertification is to be used in those cases
‘where there is a split of authority on the issue, where
[a] statute’s plain language does not indicate the
answer, or when presented with a complex question of
[state] common law for which no |state] authority can
be found.’” DiBella v. Hopkins, 403 F.3d 102, 111 (2d
Cir. 2005) (citations omitted). The Seventh Circuit
considers “several factors ... the most important of
which is whether we feel genuinely uncertain about
an issue of state law.” Schmude v. Sheahan, 420 F.3d
645, 650-51 (7th Cir. 2005).

* Other circuits apply similar factors. See Fields v. Legacy
Health Sys., 413 F.3d 943, 958 (9th Cir. 2005); Local 514 Trans-
port Workers Union of Am. v. Keating, 358 F.3d 743, 758 (10th
Cir. 2004); Jennings v. BIC Corp., 181 F.3d 1250, 1254 n.2 (11th

(Continued on following page)

17

Like the Fifth Circuit, other courts of appeals
have concluded that where the governing principles of
state law are sufficiently clear, there is typically no
need for certification. See, e.g., Transamerica Ins. Co.
v. Duro Bag Mfg. Co., 50 F.3d 370, 372 (6th Cir. 1995)
(“Although Kentucky has not addressed the exact
question at issue, it does have well-established prin-
ciples to govern the interpretation of insurance con-
tracts. Accordingly ... we [] decline to certify it.”);
Woodbridge Place Apartments v. Wash. Square Capi-
tal, Inc., 965 F.2d 1429, 1434 (7th Cir. 1992) (refusing
to certify because “Indiana’s general principles of
contractual construction provide enough guidance”).

The cases cited in the Petition fail to demonstrate
any disagreement between the courts of appeals on
certification, let alone a well-developed one. In City of
Burlington v. Indemnity Ins. Co. of N. Am., 332 F.3d
38 (2d Cir. 2003), the Second Circuit certified ques-
tions of insurance policy interpretation to the Ver-
mont Supreme Court because it found that, in order
to decide those questions, it would have to make
“significant assumptions” about basic, fundamental
principles of Vermont insurance law. Jd. at 50. To use
the terminology of its sister circuits, the Second

Cir. 1999): Travelers Indem. Co. v. DiBartolo, 171 F.3d 168, 169
n.1 (3d Cir. 1999); Powell v. U.S. Fid. & Guar. Co., 88 F.3d 271,
273-74 (4th Cir. 1996); Shakopee Mdewakanton Sioux Cmty. v.
City of Prior Lake, 771 F.2d 1153, 1157 n.2 (8th Cir. 1987); Bi-
Rite Enters. v. Bruce Miner Co., 757 F.2d 440, 443 n.3 (1st Cir
1985); Am. Fid. Bank & Trust Co. v. Heimann, 683 F.2d 999,
1002 (6th Cir. 1982).

18

Circuit was unable to find “sufficient sources of state
law ... to allow a principled rather than conjectural
conclusion” and therefore found itself “genuinely
uncertain about a question of state law that is vital to
the correct disposition of the case.” Shevin, 526 F.2d
at 275; Tidler, 851 F.2d at 426. Here, in contrast, the
Fifth Circuit did not need to make any assumptions
about Louisiana law in applying the well-established
ptinciples of the state’s Civil Code.

Petitioner also cites two cases in which the
Eleventh Circuit certified questions of insurance
policy interpretation to the Georgia Supreme Court.
In York Ins. Co. v. Williams Seafood of Albany, Inc.,
223 F.3d 1253, 1256 (11th Cir. 2000), the court of
appeals found that two policy provisions were in
conflict, that there were several reasonable interpre-
tations, and that Georgia appellate caselaw provided
insufficient guidance. In United States Fid. & Guar.
Co. v. Park ’n Go of Georgia, Inc., 66 F.3d 273, 277-78
(lith Cir. 1995), the court of appeals concluded that
there were two seemingly inconsistent lines of Geor-
gia Supreme Court authority on the basic question of
when a court can look outside the four corners of a
contract to ascertain its meaning. Here, unlike in
Williams Seafood and Park ’n Go, the Fifth Circuit
concluded that the applicable rules of contract inter-
pretation in Louisiana were clear and _ well-
established. Katrina Canal Breaches, 495 F.3d at 208
n.11. Petitioner does not seriously contend that the
applicable principles of Louisiana law were unclear.

19

There is also no merit to Petitioner’s attempt to
create an “intra-circuit” split by suggesting that the
Fifth Circuit’s decisions on certification are inconsis-
tent.° In all three cases relied on by Petitioner, there
was disagreement between the intermediate appel-
late courts in Texas on the questions presented. One
Beacon Ins. Co. v. Don’s Building Supply, Inc., 496
F.3d 361, 364 (5th Cir. 2007); Lamar Homes, Inc. v.
Mid-Continent Cas. Co., 428 F.3d 193, 197-98 (5th
Cir. 2005); Fiess v. State Farm Lloyds, 392 F.3d 802,
809-10 (5th Cir. 2004). Moreover, Texas, unlike Lou-
isiana, is a common-law jurisdiction, which lacks the
type of definitive contractual interpretation statutes
that Louisiana has enacted in its Civil Code. In
Louisiana, legislation is the primary source of law
and judicial decisions are never binding until there is
a series of decisions that rise to the level of jurispru-
dence constante. See Chevron USA, Inc. v. Vermilion
Parish Sch. Bd., 377 F.3d 459, 462 (5th Cir. 2004)
(“[A]lthough we may be guided by decisions rendered
by the Louisiana appellate courts, we are not strictly
bound by them, particularly when the jurisprudence
has not developed to the status of jurisprudence
constante (a series of decisions in accord on a given
issue).”); Lake Charles Diesel, Inc. v. GMC, 328 F.3d
192, 197 (5th Cir. 2003) (noting that, in Louisiana,
“judicial decisions acquire the force of law only when

° If there were inconsistency in the Fifth Circuit’s decisions,
that might lead to en banc review, but would not warrant a
grant of certioran.

20

their numerosity and uniformity are sufficient to
achieve the status of jurisprudence constante’”).

The Fifth Circuit’s denial of the Petitioner’s
motion to certify was consistent with this Court’s
decisions and the standards for certification through-
out the courts of appeals. The Fifth Circuit’s decision
to decline certification was also a permissible exercise
of that court’s considerable discretion. There is thus
no reason, let alone a compelling one, to grant certio-
rari.

lil. THE LOUISIANA COURT OF APPEAL
DECISION IN SHER IS NOT GROUNDS
FOR GRANTING CERTIORARI

The Petition also contends that the Fifth Circuit’s
decision conflicts with Sher, a Hurricane Katrina case
in which the Louisiana Fourth Circuit affirmed a jury
verdict requiring an insurer to pay for damage to the
basement of the insured building, which the insurer
contended was caused by flood. The five-member
panel, however, could not reach a majority on the
rationale for this result. The vote on the “flood”
exclusion was 2-2 with one abstention. A two-judge
plurality concluded, without much explanation, that
the term “flood” was ambiguous. Sher, 2007 WL
4247708, at *4-5 (Love, J., joined by McKay, J.). One
judge concluded that “it is clear that the word ‘flood’
applied to any and all floods,” but then found, based
largely on “judicial notice,” that the damage to
the basement was caused by wind, not flood, and

21

therefore was covered by the policy. Jd. at *20-21
(Tobias, J., concurring in the result). One judge
dissented from the portion of the opinion requiring
the insurer to pay for the damage to the basement.
He concluded that “the term ‘flood,’ as well as the
entirety of the exclusion, is clear and unambiguous.”
Id. at *23 (Cannizzaro, J., concurring in part and
dissenting in part). The fifth member of the court,
Judge Murray, cryptically concurred only in the
result, declining to explain her reasons or join any of
her colleagues’ opinions. Jd. at *20 (“Murray, J.,
concurs in the result.”). Judge Murray offered no
indication of her view on the flood exclusion, leaving
the court evenly split on that issue. Consequently,
Sher only stands for a result — that the plaintiff, for
whatever reason, is entitled to insurance coverage for
water damage to his basement.

Because there was no majority opinion on the
water damage exclusion in Sher, the decision has
little precedential value. Citizens Comm. for Better
Law Enforcement v. Lafayette, 685 So. 2d 289, 293
(La. Ct. App. 1996) (explaining that a plurality
opinion “is of little value as precedent and should
properly be limited to the facts of that case only”);
see also Chaney v. Travelers Ins. Co., 249 So. 2d 181,
184 (La. 1971) (explaining that there was no major-
ity on a seven-member court where one justice
concurred in the result and three justices dissented).
This is especially true in Louisiana, where judicial
decisions are never binding until they rise to the level

22

of jurisprudence constante. See Chevron USA, 377
F.3d at 462; Lake Charles Diesel, 328 F.3d at 197.

Petitioner does not even argue that the Fifth
Circuit would reach a different result based on the
non-precedential decision in Sher. The _ plurality
opinion is unpersuasive, and fails to even acknowl-
edge the Fifth Circuit’s thorough opinion. The plural-
ity reasoned as follows:

A review of the Policy reveals that the par-
ties intended to cover and include all risks
that were not specifically excluded or lim-
ited. Lafayette failed to specifically exclude
all floods because of the ambiguity contained
within the water exclusion. While the Policy
states that it does not cover damage caused
by a “flood,” it also states that it does not
cover “waves, tides, tidal waves,” and the
“overflow of any body of water ... whether
driven by wind or not.” This exclusion in-
cludes “flood,” but then continues to list spe-
cific natural disasters that cause inundations
of water, commonly labeled as “floods.” For
example, a varying cause of a flood can be
man-made or natural, as documented in La.
R.S. 29:762, which states that a flood is a
natural disaster.

Sher, 2007 WL 4247708, at *4.

This reasoning was persuasively rejected by two
other judges on the Sher panel. As Judge Cannizzaro
explained, the words “surface water, waves,” etc. are
“not intended in any way to be a definition of the

23

word ‘flood,’” or otherwise restrict the meaning of
“flood.” Id. at *24 (Cannizzaro, J.). As Judge Tobias
explained, “[t]he greater includes the lesser” and “[i]n
context, it is clear that ‘flood’ includes flood from any
source whatsoever, including surface water, waves, et
cetera.” Id. at *20 (Tobias, J.). To the extent that the
plurality relied on the fact that the word “flood” was
included in a list of “natural disasters” in a Louisiana
homeland security statute, the plurality was grasping
at straws. See id. at *26 (Cannizzaro, J.) (noting that
the homeland security statute “provides no guidance
to the use of the word ‘flood’ relative to the case at
hand and, particularly, to the policy issued by the
defendant (i.e., contract between the parties).”).
Given the lack of persuasiveness of the plurality
opinion, Sher can hardly be expected to persuade the
Fifth Circuit that its lengthy and careful opinion was
an incorrect prediction of how the Louisiana Supreme
Court would rule. See Baker by Thomas v. Gen.
Motors Corp., 522 U.S. 222, 249 (1998).

Sher in no way warrants an order granting the
Petition, vacating the decision below, and remanding.
This procedure, known as GVR, is “potentially appro-
priate” when “intervening developments, or recent
developments that [this Court has] reason to believe
the court below did not fully consider, reveal a rea-
sonable probability that the decision below rests upon
a premise that the lower court would reject if given
the opportunity for further consideration, and where
it appears that such a redetermination may deter-
mine the ultimate outcome of the litigation. .

24

Lawrence v. Chater, 516 U.S. 163, 167 (1996) (per
curiam). While this Court has on occasion issued a —
GVR order where there is an intervening state su-
preme court decision that is squarely contrary to the
decision of a federal court of appeals, see, e.g., Thomas
v. American Home Prods., Inc., 519 U.S. 913 (1996), it
does not appear that this Court has ever issued a
GVR order based on an intervening decision by a
state intermediate appellate court, or based on the
possibility that a state supreme court might decide
the question. Even if an intermediate appellate
decision could be grounds for a GVR order; there is no
“reasonable probability” that the Fifth Circuit “would
reject” its own thorough decision based on a non-
precedential, 2-2 ruling by one of Louisiana’s five
circuit courts of appeal. This is particularly true here
where the Fifth Circuit denied Petitioner’s request to
stay the mandate pending decisions by the Louisiana
appellate courts in Sher.

25

CONCLUSION

The petition for a writ of certiorari should be
denied.

Dated: December 27, 2007 Respectfully submitted,

CHARLES FRIED RALPH S. HUBBARD, III
Counsel of Record SIMEON B. REIMONENQ, JR.
1545 Massachusetts Ave. SETH A. SCHMEECKLE
Cambridge, MA 02138 LUGENBUHL, WHEATON,
(617) 495-4636 PECK, RANKIN & HUBBARD

601 Poydras St., Ste. 2775
New Orleans, LA 70130
(504) 568-1990

STEPHEN E. GOLDMAN
WYSTAN M. ACKERMAN
JOHN M. TANSKI
ROBINSON & COLE LLP
280 Trumbull St.
Hartford, CT 06103
(860) 275-8200

Counsel for Respondent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0320%3A2. Public record. Not legal advice.