* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30468

Summary Calendar

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).

United States Court of Appeals

Fifth Circuit

F I L E D

October 26, 2007

Charles R. Fulbruge III

Clerk
No. 07-30468

2

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
No. 07-30468

3

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 andFidelity 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 ofthe $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
No. 07-30468

4

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.