### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 07-30869 Summary Calendar

KATHLEEN M. BILBE, Plaintiff-Appellant, v. DONALD BELSOM; STATE FARM FIRE AND CASUALTY COMPANY, Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana

Before SMITH, BARKSDALE and ELROD, Circuit Judges.. JERRY E. SMITH, Circuit Judge:

Kathleen Bilbe’s housewas destroyed by Hurricane Katrina. She submitted claims under a homeowners policy and a flood insurance policy issued by State Farm Fire and Casualty Company (“State Farm”). For the latter policy, State Farm paid Bilbe the policy limit of $96,400, but, after accounting for the deductible, paid only $1,466.27 under the homeowners policy, citing the Water Damage Exclusion. Bilbe, appearing pro se in the district court and on appeal, sued State United States Court of Appeals

Fifth Circuit 

### F I L E D May 12, 2008 Charles R. Fulbruge III ClerkNo. 07-30869

2 Farm and its agent in state court; the agent was dismissed, and State Farm removed to federal court, where Bilbe alleged that the Water Damage Exclusion does not apply because it was the storm surge, not a flood, that had caused the damage. The district court granted summary judgment for State Farm, and we affirm.

I. We review de novo a grant of summary judgment under Federal Rule of Civil Procedure 56. See, e.g., TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002). Summary judgment will be affirmed “only if ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ when viewed in the light most favorable to the non-movant, ‘showthat there is nogenuine issue as toany material fact.’” I d

. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). “Once the moving party has initially shown ‘that there is an absence ofevidence tosupport the non-moving party’s cause,’ the non-movant must come forward with ‘specificfacts’ showing a genuine factual issue for trial.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “Under Louisiana law, ‘[a]n insurance policy isa contract between the parties and should be construed by using the general rules of interpretation ofcontracts set forth in the Louisiana Civil Code.’” I n re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007) (quoting Cadwallader v. Allstate Ins. Co., 848 So. 2d 577, 580 (La. 2003)), cert. denied, 128 S. Ct. 1230, and cert. denied, 128 S. Ct. 1231 (2008). “If the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written.” Id. at 207 (quoting Cadwallader, 848 So. 2d at 580).No. 07-30869

3 II. In her statement of undisputed material facts, Bilbe conceded that “[t]he subject property was struck by a storm surge,” and the “dwelling and contents received water to a height of 13.5'.” In the joint pre-trial order, it was uncontested that “[t]heforceofwater would have been sufficient todestroy petitioner’s family dwelling even ifit was undamaged at the time thewater impacted it” and that “following Hurricane Katrina, all of the contents on the first floor of Plaintiff’s home were covered by standing water.” The homeowners policy’sWater Damage Exclusion limits insurance coverage thusly: 2. We do not insure under any coverage for any loss which would not have occurred in the absence ofone or more ofthe following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other c auses of the loss; or (c) whether other causes acted concurrently or in any sequencewith the excluded event to produce the loss; or (d) whether the event occurssuddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these:

. . . .
c. Water Damage, meaning: (1) flood, surface water, waves, tidal water, tsunami, seiche, overflow of a body ofwater, or spray from any ofthese, all whether driven by wind or not.

The di strict court, after reviewing State Farm’s and Bilbe’s motions for summaryjudgment, and the respective motions in opposition, found in favor of State Farm: The damage to Plaintiff’s home was caused by the inundation ofher home by what was clearly tidal water from Lake Pontchartrain (her home was in the Venetian Isles subdivision ofOrleans Parish) driven ashore during Hurric ane Katrina. The Court determines that this is water damage within the meaning of State Farm’s policyNo. 07-30869

1 See, e.g., Leonard v. N ationwide Mut. Ins. Co., 499 F.3d 419, 437 (5th Cir. 2007) (“Courts have interpreted water-damage exclusions like the one found in the Leonards’ policy to encompass the peril of wind-driven inundation by water, or storm surge, for ages. . . . No decision of this court or any other of which we are aware endorses the Leonards’ view that storm surge isa unique meteorological phenomenon not contemplated by water-damages exclusions like Nationwide’s.”), cert. denied, 2008 U.S. LEXIS 3106 (U.S. Apr. 14, 2008).

2 Compare id. at 429 (“Mississippi courts give effect to the plain meaning of an insurance policy’s clear and unambiguous language. No rule of construction requires or permits [Mississippi courts] to make a contract differing from that made by the parties themselves, or to enlarge an insurance company’s obligations where the provisions of its policy are clear.”) (internal citations and quotationsomitted) with Katrina Canal , 495 F.3d at 207 (“[Under Louisiana insurance law, t]he words of a contract must be given their generally prevailing meaning. When 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. If the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written.”) (internal citations and quotations omitted). 4 exclusion.

. . . State Farm’s water damage exclusion clearly and unambiguously excludes damage for all flooding

### SS whether driven by hurricane winds or not. We agree. We have repeatedly held that the term “flood” includes storm surges. 1 Indeed, we have addressed this very issue, involving this very clause, in reference to Mississippi law, explicitly rejecting the argument that “damages caused by storm surge are not excluded from coverage by the Water Damage Exclusion.” T uepker v. State Farm Fire & Cas. Co., 507 F.3d 346, 352-53 (5th Cir. 2007). Louisiana courts, like those in Mississippi, construe insurance unambiguous contracts according to their plain language. 2 Consequently, precedent dictates that “[t]he phrase ‘storm surge’ is little more than a synonym for
a ‘tidal wave’ or wind-driven flood, both ofwhich are excluded perils. The omission ofthe specific term ‘storm surge’ does not create ambiguity in the policy regarding coverage available in a hurricane and does not entitle the [homeowner] to recovery for . . . flood-induced damages.” Leonard, 499 F.3d at 437-38.No. 07-30869

3 In Bilbe’s memorandum in opposition to summaryjudgment, she mentions that wind damageoccurred before thestorm surgearrived. This perhaps is a vague allusion to proximate cause. Even if this is issue is not waived, however, precedent is against her. In L eonard, we held that [there are] three discrete categories ofdamage at issue

. . . : (1) damage caused exclusively by wind; (2) damage caused exclusively by water; and (3) damage caused by wind ‘concurrently or in any sequence’ with water. The classic exampleofsuch a concurrentwind-water peril isthestorm-surgeflooding that follows on the heels ofa hurricane’s landfall. The only species of damage covered under the policy is damage caused e xclusively by wind. But if wind and water synergistically caused the same damage, such damage is excluded. Leonard, 499 F.3d at 430. The contract states that the Water Damage Exclusion applies regardless of “whether other causes acted concurrently or in any sequencewith theexcluded event to producethe loss.” As noted, in thejoint pre-trial order, it was uncontested that “[t]he force ofwater would have been sufficient todestroy petitioner’sfamily dwelling even ifit was undamaged at the time the water impacted it,” and Bilbe conceded that a storm surge “struck” the home. Therefore, even if her proximate cause argument is considered, summary judgment was appropriate. 5 III. On appeal, Bilbe asserts several arguments that were not adequately raised in the district court, including tho se relating to the efficient proximate
cause doctrine, Louisiana’s Valued Policy Law, personal property payments, sanctions, and which party bears the burden of proof. 3 These arguments are waived. See, e.g., Nissho-Iwai Am. Corp. v. Kline , 845 F.2d 1300, 1307 (5th Cir. 1988).Bilbe likewise argues that the district court abused its discretion when it denied several of her pre-trial motions. We see no abuse of discretion. If Bilbe believed that she was unable to respond effectively to the motion for summary judgment, she should not have offered her own motion for summary judgment but instead should have moved for a continuance pursuant to Federal Rule of Civil Procedure 56(f). We also afford district courts a great deal of deference in determining whether to modify scheduling orders, especially where, as here, theNo. 07-30869

4 As the district court observed in denying her motion to modify the scheduling order, Bilbe “admitted that she had missed three cutoffdates that had been set forth in the scheduling order,” and the court pointed to numerous examples of Bilbe’s deficient filing practices. “Finding this conduct unacceptable, the Court denied Ms. Bilbe’s request to reset deadlines. Thereafter, in an apparent attempt to obtain the same relieffrom a different source, Ms. Bilbe filed a Motion to Extend Deadlinesfor Delivering Expert Reports, Discovery, and filing witness and exhibit lists” with the magistratejudge, without mentioning “that she had previously been denied similar relief by the districtjudge.” “Although the Court [acknowledged] that the simple solution would be to continue the trial and set new deadlines, [it rejected that solution because] such a ruling would condone Ms. Bilbe’s behavior, and the Court [was] unwilling to do so.” The district court did not abuse its discretion in finding no good cause to amend the scheduling order. 6 record suggests that the movant repeatedly demonstrated a lack of diligence. 4 Finally, because the district court’s decision is correct as a matter of law, it did not err in denying Bilbe’s motion toalter or amend thejudgment, to grant a new trial, or to grant relief from judgment. AFFIRMED.