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 house was 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

Clerk
No. 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,

‘show thatthere is no genuine issue as to any material fact.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). “Once the moving party

has initially shown ‘thatthere is an absence of evidence to support the non-moving party’s cause,’ the non-movant must come forward with ‘specific facts’ 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 is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code.’” In 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

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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]he force of water would have been sufficientto destroy petitioner’s

family dwelling even if it was undamaged atthe time the water 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’s Water 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 of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the

cause of the excluded event; or (b) other causes of the loss; or

(c) whether other causes acted concurrently or in any sequence with

the excluded event to produce the loss; or (d) whether the event occurs suddenly 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

of water, or spray from any of these, all whether driven

by wind or not.

The district court, after reviewing State Farm’s and Bilbe’s motions for

summary judgment, and the respective motions in opposition, found in favor of

State Farm:

The damage to Plaintiff’s home was caused by the inundation of her

home by what was clearly tidal water from Lake Pontchartrain (her

home was in the Venetian Isles subdivision of Orleans Parish) driven ashore during Hurricane Katrina. The Court determines that

this is water damage within the meaning of State Farm’s policy
No. 07-30869

1 See, e.g., Leonard v. Nationwide 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 is a unique meteorologicalphenomenon 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 quotations omitted) 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). 

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exclusion. . . . State Farm’s water damage exclusion clearly and

unambiguously excludes damage for all floodingSSwhether driven

by hurricane winds or not. 

We agree. We have repeatedly held that the term “flood” includes storm

surges.1Indeed, 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.” Tuepker 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 of which are excluded perils. The omission of the 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 summary judgment, she mentions that wind

damage occurred before the storm surge arrived. This perhaps is a vague allusion to proximate

cause. Even if this is issue is not waived, however, precedent is against her. In Leonard, we

held that

[there are] three discrete categories of damage 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 example of such a concurrent wind-water peril is the storm-surge flooding thatfollows

on the heels of a hurricane’s landfall. The only species of damage covered under

the policy is damage caused exclusively 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 sequence with the excluded event to produce the loss.”

As noted, in the joint pre-trial order, it was uncontested that “[t]he force of water would have

been sufficient to destroy petitioner’s family dwelling even if it 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.

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III.

On appeal, Bilbe asserts several arguments that were not adequately

raised in the district court, including those 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,the
No. 07-30869

4 As the district court observed in denying her motion to modify the scheduling order,

Bilbe “admitted that she had missed three cutoff dates 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 relief from a different source, Ms. Bilbe

filed a Motion to Extend Deadlines for Delivering Expert Reports, Discovery, and filing witness

and exhibitlists” with the magistrate judge, without mentioning “that she had previously been

denied similar relief by the district judge.” “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. 

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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 to alter or amend the judgment, to grant a new

trial, or to grant relief from judgment. 

AFFIRMED.