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. 08-61099

Summary Calendar

GEICO INSURANCE COMPANY

Plaintiff - Appellee

v.

NANCY WHITE

Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Mississippi 

No. 1:07-CV-1004

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Defendant-appellant Nancy White appeals the district court’s grant of

summary judgment in favor of plaintiff-appellee GEICO Insurance Company and

its declaratory judgment that her recovery is limited to $25,000. For the reasons

stated below, we affirm the district court’s judgment. 

United States Court of Appeals

Fifth Circuit

F I L E D

July 21, 2009

Charles R. Fulbruge III

Clerk
 The district court did not reach the merits of White’s interpretation of the policy. 1

White conceded that coverage would be limited to $25,000 if the Amendment was effective.

Therefore, the district court concluded that it did not need to reach the merits of White’s

2

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 12, 2006, White was injured when her vehicle was struck by a

vehicle driven by Adam Hall, a minor. White brought suit against Hall and his

father (collectively, the “Halls”) in Mississippi state court. The parties entered

into a consent judgment in the amount of $150,000, but they limited recovery to

the amount that could be collected from the Halls’ insurance policy with GEICO

Insurance Company (“GEICO”). Coverage under the policy was limited to

$25,000, and the Halls insured four different automobiles under the policy. The

Halls’ original policy states that covered losses include:

1. bodily injury, sustained by a person, and;

2. damage to or destruction of property, arising out of the

ownership, maintenance, or use of the owned auto or a nonowned auto.

GEICO alleged that this language had been superseded by an Automobile

Policy Amendment (the “Amendment”) that became effective after the Halls

purchased their policy but prior to the date of the accident. The Amendment

states that covered losses include:

1. bodily injury, sustained by a person, or

2. damage to or destruction of property,

arising out of the ownership, maintenance, or use of the owned auto

or a non-owned auto. 

GEICO filed suit in federal district court seeking a declaratory judgment

that its liability was limited to $25,000. White argued that under the language

of the original policy, which does not connect the “ownership, maintenance, or

use” requirement to bodily injury, the total coverage would have been $100,000

(i.e., $25,000 for each of the four automobiles insured rather than just the one

automobile used in the accident). 

1
interpretation. Likewise, we make no comment on the validity of White’s claim that the

language used in the original policy increased coverage to $100,000 in this instance.

3

White argued that there was a genuine issue of material fact as to whether

the Amendment had been mailed to the Halls and had become part of their

policy prior to the accident. The district court concluded that the Amendment

had been mailed to the Halls based on the following: (1) the Halls claimed to

have lost their copy of the policy during Hurricane Katrina; (2) GEICO’s Rule

30(b)(6) representative testified that revisions are sent out “automatically,

programmatically” with the next policy renewal; and (3) the affidavit of K.A.

Jones, an employee in GEICO’s underwriting department, stated that the

Amendment went into effect February 11, 2002, and that “the renewal policy

containing the Amendment was processed to be mailed to the Halls on February

14, 2002.” 

II. DISCUSSION

“We review a district court judgment rendered on cross-motions for

summary judgment de novo.” First Colony Life Ins. Co. v. Sanford, 555 F.3d 177,

180 (5th Cir. 2009). “Summary judgment is appropriate when ‘the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is

no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.’” Id. (quoting FED. R. CIV. P. 56(c)); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). We construe all facts

and draw all justifiable inferences in the light most favorable to the nonmoving

party, but “the nonmoving party must set forth specific facts to establish that

there is a genuine issue for trial.” First Colony Life Ins., 555 F.3d at 180. “An

issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a

verdict for the nonmoving party.” Id. at 181 (quoting Hamilton v. Segue

Software Inc., 232 F.3d 473, 477 (5th Cir. 2000)). 
4

White’s primary contention is that GEICO did not establish that the

Amendment was specifically mailed to the Halls. Rather, GEICO sought only

to show how the Amendment would have been mailed in the ordinary course of

its business practice. The district court addressed this argument by noting that

“[p]lacing letters in the mail may be proved by circumstantial evidence,

including customary mailing practices used in the sender’s business.” Wells

Fargo Bus. Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir. 1982). Under

this rule, White’s argument that GEICO was required to prove the specific

details of mailing the Amendment directly to the Halls lacks merit. GEICO’s

evidence was sufficient to explain the process by which new amendments are

mailed to its current policy holders. The burden then shifted to White to present

some evidence beyond a bare assertion of non-receipt, which she failed to do. 

Moreover, there has never been a direct, unequivocal denial of the fact that

the Halls received the Amendment. The Halls did not submit a copy of their

policy because they lost all of their files and paperwork during Hurricane

Katrina. Thus, White argues only that GEICO has not carried its burden under

the mailbox rule to show that the Amendment was properly mailed. The

mailbox rule “‘provides that the proper and timely mailing of a document raises

a rebuttable presumption that the document has been received by the addressee

in the usual time.’” Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 419 (5th Cir.

2007) (quoting Schikore v. BankAmerica Supplemental Ret. Plan, 269 F.3d 956,

961 (9th Cir. 2001)). White has provided nothing to rebut that presumption and

has only weakly denied that the Halls received the Amendment. In order to

avoid summary judgment, an assertion of non-receipt must be supported by

circumstantial evidence. Id. at 422. Here, GEICO provided circumstantial

support for its claim that the Amendment was mailed to the Halls in the form

of Jones’s affidavit, but White provided no circumstantial evidence in support of

her claim that it was not received by the Halls. See Duron v. Albertson’s LLC,
 It should be noted that White did not provide any legal authority to support either 2

of these propositions.

5

560 F.3d 288, 291 (5th Cir. 2009) (vacating summary judgment where the sender

had “submitted no affidavits in support of the mailing” and, in contrast, the

recipient had “provided a sworn affidavit that she did not receive” the

document). Accordingly, the district court was correct to conclude that GEICO

had mailed the Amendment to the Halls prior to the date of the accident.

In addition to claiming that GEICO did not carry its burden under the

mailbox rule, White argues that (1) this issue was decided as a matter of law

when she admitted in her answer that the copy of the original policy attached to

the complaint, which did not include the Amendment, was true and correct; and

(2) the district court erred in considering Jones’s affidavit because it was first

submitted with GEICO’s motion for summary judgment, which was after the

discovery deadline. 

2

Regarding the first issue, White’s answer noted that the copy of the policy

attached to the complaint was incomplete because it lacked the declarations

page. In other words, White’s answer invited GEICO to supplement what it had

attached to its original complaint. Regarding the second issue, GEICO told

White’s counsel during the Rule 30(b)(6) deposition, when the witness was

struggling to explain the procedure for mailing out amendments to existing

policyholders, that he would obtain an affidavit from the underwriting

department better explaining how and when the Amendment would have been

sent to the Halls. Jones’s affidavit fulfills this promise. Furthermore, GEICO

responds to White’s protestations that she was unable to depose Jones by noting

that Rule 56(f) of the Federal Rules of Civil Procedure allows a party opposing

a motion for summary judgment to request that the court order a continuance

“to enable affidavits to be obtained, depositions to be taken, or other discovery

to be undertaken.” White never sought to depose Jones after receiving his
6

affidavit. White’s counsel’s response was that “[f]rankly, undersigned counsel

was not aware of this provision of Rule 56(f) until it was mentioned in GEICO’s

Appellee’s Brief.” This confession of ignorance as to the Federal Rules of Civil

Procedure does not absolve White from failing to seek further discovery after

receiving Jones’s affidavit. We are thus not persuaded that the district court

erred in considering Jones’s affidavit and in concluding that GEICO carried its

burden under the mailbox rule. 

III. CONCLUSION

For the reasons stated above, we AFFIRM the district court’s judgment.