### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-30950

C.R. PITTMAN CONSTRUCTION COMPANY, INCORPORATED; C.R. PITTMAN, Plaintiffs-Appellants,
v. NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, as Successor by Merger to Transcontinental Insurance Company, Defendant-Appellee

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

No. 2:07-CV-4534

ON PETITION FOR PANEL REHEARING Before SMITH, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM: * We GRANT Appellee’s petition for panel rehearing and issue the following opinion in place of our September 30, 2011 opinion. Pittman Construction Company (“Pittman Construction”) appeals the district court’s grant of sum m ary judgment to National Fire Insurance Company U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 24 , 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-30950 Document: 00511642943 Page: 1 Date Filed: 10/24/2011No. 10-30950

of Hartford (“National”) on Pittman Construction’s claim that N atio n al b r eached

an insurance contract by failing to reimburse Pittman Construction for damages to equipment caused by Hurricane Katrina. For the follow i n g r easons, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Pittman Construction had two contracts, the D wyer Contract and the Cousins Contract , w ith the U.S. Army Corps of Engineers (the “Corps”) to complete two projects. Pittman Construction stored certain equipment to be installed as part of the pumping units for the projects both inside and outside of its w a rehouse in New Orleans, Louisiana. Pittman Construction acquired an “all risks” insurance p olicy from National covering at least some of that equipment. The policy w a s in effect at the time Hurricane Katrina hit New Orleans in 2005. Pittman Construction’s equipment was damaged, and Pittman Constr uction filed suit against National un der the policy. The parties dispute whether the damage was caused by Katrina-related rain and wind or flooding, the latter being excluded from coverage under the insurance policy. 1 Both parties moved for summary judgment. In support of its motion and in opposition to National’s motion, Pittman Construction submitted two affidavits from the company’s owner, Jay Pittman, Jr. (“Pittman”). In the second

Thep olic y s tat es t he fol low ing: 1
B. EXCLU SIO NS
1. We wi ll not pay for “lo ss ” caus ed dir ect ly or indi rec tly by any of the fol low ing. Such “lo ss ” is exc lude d regar dle ss of any other caus e or event that cont ribut es conc urr entl y orinany se quenc e t o the “lo ss .”
b. Wate r (1) Flood , sur fac e wa ter , waves, tid es , tid al waves, ove r f l o w of any body of w ater , or the ir sp ray, all w heth er driven by windor not[ .] 2 Case: 10-30950 Document: 00511642943 Page: 2 Date Filed: 10/24/2011No. 10-30950

affidavit, Pitt m a n s t a ted that he was actually present at the Pittman Construction facility when Hurricane Katrina hit, and that wind tore off parts of the side and roof of the company’s war e house such that rain destroyed the insured p roperty before any flooding occurred. Pittman Construction also provided an affidavit from Donald Ellis, Jr. (“Ellis”), an el e ctric al co ntractor, who averred that, after wind blew away the tarp covering the generators in Pittman Construction’s yard, the rain destroyed them. Ellis’s affidavit was n o t b a sed
upon contemporaneous observation. National moved to strike Ellis’s affidavit 2 because Pittman Construction had failed to provide an expert report by Ellis by the deadline set in the district court’s scheduling order and because the affidavit failed to comply with the reliability standards for expert testimony established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). National moved for summary judgment on the flood exclusion. In a suit it filed against the Corps, Pittman Construction had alleged that defects in the levee system caused flooding that destroyed Pittman Construction’s equipment. Thus, National contended that Pittman Construction was judicially estopped from denying that the damages were caused by flooding. Additionally, in opposition to Pittman Construction’s motion for summary judgment and in further support of its own motion, National provided a two-page affidavit from William Blackwell, a n e m p l oyee of Jefferson Parish and a mechanical specialist. Blackwell conducted an investigation in October 2006—over a year after Hurricane Katrina—of equipment to be installed at one of the sites pursuant to the Cousins Contract. Blackwell opined that “rain would not hav e caused the type of damages sustained by the equipment. The water damage to the equipment would only have occurred as a result of the equipment

The affid avit als o saidthat thed es tru cti on of thegenerat ors “too k pl ace lon g befor e 2 the flo od wa ter s of Hu rri cane Ka tri na occ urr ed as a res ult of brea ches in the New Or leans levee sys tem .” 3 Case: 10-30950 Document: 00511642943 Page: 3 Date Filed: 10/24/2011No. 10-30950

being submerged in water.” Pittman Construction did not object to this affidavit until its motion to alter or amend the judgment. The district court granted National’s motion for summary judgment and dismis s e d P ittman Construction’s suit. The district court found the Pittman affidavits insufficient to create a fact issue because “mere allegations in the form of patently self-serving affidavits do not create an issue o f f a c t p recluding

summa ry judgment.” The district court also struck the Ellis affidavit on timeliness grounds alone. Furthermore, the court found that the Blackwell affidavit demonstrated that flooding caused or contributed to the damage to the equipment, and therefore, trigger e d the policy’s anti-concurrent causation clause. Pittman Constructi o n filed a Rule 59(e) motion to alter or amend the judgment, which the district court denied. Pittman Construction appealed. II. STANDARD OF REVIEW This court reviews a grant of summ a ry j u d g ment de novo , applying the

same standard as the district court. Gelin v. Hous. Auth. of New Orleans , 456 F.3d 525, 527 (5th Cir. 2006). Summary judgment is appropriate if the moving party can show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a m a t t e r o f law.” F E D

. R. C IV

. P. 56(a). “A factual dispute is ‘genuine’ where a reasonable party would return a verdict for the non-moving party.” Chiu v. Plano Indep. Sch. Dist. , 339 F.3d 273, 282 (5th Cir. 2003) (citation omitted). “An issue is material if its resolution could affect the outcome of the action.” Weeks Marine, Inc. v. Fireman’s Fund Ins. Co. , 340 F.3d 233, 235 (5th Cir. 2003) (citing Anderson v. Liberty Lo b by, I n c . , 477 U.S. 242, 248 (1986)). In considering a summary judgment motion, this court views the evidence in the light most favorable to the no n - m o vi n g p arty. United Fire & Cas. Co. v. Hixs o n B ro s. Inc. , 453 F.3d 283, 285 (5th Cir. 2006). However, “[u]nsubstantiated assertions, improbable inferences, and unsupported

4 Case: 10-30950 Document: 00511642943 Page: 4 Date Filed: 10/24/2011No. 10-30950

speculation are not sufficient to defeat a motion for summary judgment.” Brown v. City of Houston , 337 F.3d 539, 541 (5th Cir. 200 3).

III. DISCUSSION “‘Under Louisiana law, ‘[a]n insurance polic y i s 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.’” Bilbe v. Belsom , 530 F.3d 314, 315 (5th Cir. 2008) (quoting In re Katrina Canal Breaches Litig ., 495 F.3d 191, 206 (5th Cir. 2007) (citation omitted)). “‘If the policy wording at issue is clear and unambiguously expresses the p arties’ intent, the insurance contract must be enforced as written.’” Id. (quoting In re Katrina Canal Breaches L itig. , 495 F.3d at 207 (citation omitted)). In addition, “‘Louisiana law

. . . places the burden on the plaintiff [insured] to establish every fact essential to recovery and to establish that the claim falls within the policy coverage.’” Williams v. Allstate Indem. Co. , 359 F. App’x 471, 473 (5th Cir. 2009) (per curiam) (unpublished) (quoting Ho v. State Farm Mut. Auto Ins. Co. , 862 So. 2d 1278, 1281 (La. Ct

. Ap p . 2 0 0 3 ) )

. “Once he has done this, t h e insurer has the burden of demonstrating that the damage at issue is excluded from coverage.” Dickerson v. Lexington Ins. Co. , 556 F.3d 290, 295 (5th Cir. 2009); Doerr v. Mobil Oil Corp ., 774 So. 2d 119, 124 (La. 2000) (stating that

once the insured meets its burden to show that the loss is covered by the policy, “the insurer bears the burden of proving the applicability of an exclusionary clause within a policy”), modified on other grounds on reh’g, 782 So. 2d 573 (La. 2001). Because this policy was an “all risks” policy, Pittman Construction was required only to show damage during the policy period. See In re Katrina Canal Breaches Litig. , 495 F

. 3 d a t 208 (citation omitted) (stating that an “all-risks” policy provides “a special type of coverage that extends to ri s k s n o t usually covered under other insurance; recovery under an all-risk policy will be allowed
5 Case: 10-30950 Document: 00511642943 Page: 5 Date Filed: 10/24/2011No. 10-30950

for all fortuitous losses not resulting from misconduct or fraud, unless the policy contains a specific provision expressly excluding the loss from coverage”). The burden then shifted to National to prove that the damages were caused by an excluded peril. Dickerson , 556 F.3d at 295; Doerr , 774 So. 2 d a t 1 2 4; Dawson Farms, L.L.C. v. Millers Mut. Fire. Ins. Co. , 79 4 S o . 2 d 949, 951 (La. Ct. App. 2001). On ap p e a l , Pittman Construction argues that the district court erred in failing to consider the Pittman affidavits as competent summary judgment evidence raising at least a fact issue as to whether wind and rain, rather than flooding, caused the damage to the equipment. The district court found that the 3 affidavits provided no foundation for the assertion that the hurricane destroyed the equipment before the flood. The court also rejected the affidavits as patently self-serving. Because the district court also struck the Ellis affidavit that Pitt m an C o n s tructio n s ub mitte d , the district court found no competent s u m m ary judgment e vi d e n ce creating a fact issue as to the cause of the damage to the equipment. To the extent that the di s t rict court chose not to consider the Pittman

a f f i d avits because they were “self-serving,” this ruling was in error. A party’s

own testimony is often “self-serving,” but we do not exclude it as incompetent for that reason alone. See Rushing v. Kan. City S. Ry. , 185 F.3d 496, 513 (5th Cir. 1999), superseded by F E D

. R

. E V I D

. 103(a) on other grounds as recognized in Mathis v. Exxon Corp. , 302 F.3d 448, 459 n.16 (5th Cir. 2002) (“[M]erely claiming that the evidence is self-serving does not mean we cannot consider it or that it is insufficient. Much evidence is self-serving and, to an extent, conclusional.”) I n s t e ad, an affidavit based on personal knowledge and containing factual

Pitt man Cons tru cti on pr ovi d e d P i t tm an’s fir st aff idavit in sup por t of its mo tio n for 3
sum mary judgm ent. Pitt man ’s se cond aff idavit , wh ich cont ained additio nal fac ts , wa s fil ed by Pit tm an Co nst ruc tio n i n o pp os itio n t o N atio nal’s m oti on fors umm ary judgm ent. 6 Case: 10-30950 Document: 00511642943 Page: 6 Date Filed: 10/24/2011No. 10-30950

a s s e r tions suffices to create a fact issue, even if the affidavit is arguably sel f

serving. See, e.g., Payne v. Pauley , 337 F.3d 767, 773 (7th Cir. 2003) (“Provided that the evidence meets the usual requirements for evidenc e presented on summary judgment—including the requirements that it be based on personal k nowledge and that it set forth specific facts showing that there is a ge n u i n e issue for trial—a self-serving affidavit is an acceptable method for a non-moving party to present evidence of disputed material f a c t s . ” ); Santiago-Ramos v. Centennial P.R. Wireless Corp. , 217 F.3d 46, 53 (1st Cir. 2000) (“[A] ‘party’s own affidavit, containing relevant information of which he has first-hand knowledge, may be self-serving, but it is nonetheless competent to support or defeat
summary judgment.’” (quoting Cadle Co. v. Hayes , 116 F.3d 957, 961 n.5 (1st Cir. 1997))); Harris v. J.B. Robinson Jewelers , 627 F.3d 235, 239 (6th Cir. 2010) (“A court may not disregard evidence merely because it serves the inter e s t s o f the party introducing it.”); Williams v. Shields , 77 F. App’x 501, 503 (10th Cir. 2003) (unpublished) (“As long as an affidavit i s ‘based upon personal knowledge and

s e t s f orth facts that would be admissible in evidence,’

. . . such averment o f a party is legally competent to oppose summary judgment, notwithsta n di n g i ts inherently self-serving nature.” (internal citation omitted)). If all “self-serving” testimony were excluded from trials, they would be short indeed. Pittman’s affidavits assert that he was present at the warehouse and saw the wind tear off parts of the roof and siding of the building, thereby allowing rain to enter. The affidavits also asserted that it was well-known in the industry that the generators were sensitive to water and would be destroyed if certain parts bec a me wet. Although arguably “self-serving,” the affidavits are not 4

Nat ional did not argue that Pitt man ’s aff idavit s cont ained im pr ope r expe rt testim ony. 4 “U nder [Fed eral Rule of Evidenc e] 701, ‘[ a] lay opi nion mus t be bas ed on per so nal per cep tio n, mus t be one that a norm al per so n wo uld for m fr om thos e per cep tio ns, and mus t be help ful to the [f act find er] .’” Na t’l Hi sp ani c Circus, Inc. v. Rex Truc king, Inc. , 414 F.3d 546, 551 (5t h Cir. 2005)

. Not ably, “Rule 701 doe s not exclud e tes tim ony by cor por ate off icer s or bus ines s ow ners 7 Case: 10-30950 Document: 00511642943 Page: 7 Date Filed: 10/24/2011No. 10-30950

wholly conclusory, are based on personal knowledge, and create a fact issue as to the cause of the damage to the equipment. See Sauquoit Fibers Co. v. Leesona Corp. (In re Yarn Processing Patent Validity Litig.) , 498 F.2d 271, 287 (5th Cir. 1974) (finding that the district court erred in disregardin g “self-serving comments” that created a fact i s sue; noting that “[q]uestions of credibility should not normally be decided by means of summary judgment but should be left for the trier of fact”). Accordingly, the di s t rict court erred in disregarding the Pittman affidavits. Because the Pittman affidavits created a fact issue as to the sole cause of damage to some of the equipment, summary judgment for National was improper. W e r ecognize that National also argues judicial estoppel as a basis f o r affirming the summary judgment. However, at the time s u m m ary j u d gm e nt was gr a n ted, the proceedings before the Corps were ongoing, making the record insufficiently developed for us to consider judicial estoppel at this point. Thus,

we leave this matter for the district court to address upon a complete record on remand. In light of the unobjected-to affidavit of Blackwell, however, we cannot conclude that the district court erred in denying summary judgment to Pittman. With respect to the striking of the Ellis affidavit, because that ruling was based
upon a timetable sinc e changed by the fact of the summary judgment and this

a p p e al, we leave consideration or reconsideration of that ruling to the distric t court on remand in the first instance. Finally, we affirm the district court’s granting of summary judgment in favor of National as to the small tools and equipment coverage and debris

on mat ter s that rela te to thei r bus ines s aff airs , suc h as indu st ry pr actices and pricing. ” Id. at 551- 52; see also Tex

. A&M Res ea rch Found. v. Ma gna Tra nsp ., Inc ., 338 F.3d 394, 403 (5t h Cir. 200 3) (“ Indeed , an o ff icerorem plo yee of a cor por atio n may tes tif y to indu st ry p rac tic es and pricing wi thou t qualif ying as an expe rt. ”)

.

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removal coverage. Pittman Constru c tion had the burden of proof to establish coverage for the small tools and equipment, as the policy does not include those items unless certain conditions are met. See Doerr , 774 So. 2d at 124 (“Wh e n 5 determining whether or not a policy affords coverage for an incident, it is the burden of the insured to prove the incident falls within the policy’s terms.”). There is no indication that the small tools and equipment listed in the schedule

were submitted to National for calculation of a premium. Nor did Pittman Construction provide evidence corroborating the statement in one of Pittman’s affidavits that the tools and equipment were part of the contract price. Compare United States v. Lawrence , 276 F.3d 193, 197 (5th Cir. 2001) (finding that an affidavit testifying that a third party paid the defendant’s debt for him was not sufficient to create a genuine issue of material fact as to whether loans had been paid in full, as the defendant produced no evidence of the payment), and State Farm Fire & Cas. Co. v. Delta Beverage Grp. Inc. , 401 F. App’x 955, 959 (5th Cir. 2010) (per curiam) (unpublished) (finding that an affidavit, without corroborating evid e n c e , stating that neither the affiant nor his employees plugged a cooler into an extension cord was insufficient to def e a t s u m m ary judgment because, among other reaso n s , the affiant could not have personal knowledge of all t he actions of his employees over a two-year period), with Ellipse Commc’ns., Inc. v. Caven , No. 3-07-CV-1922-0, 2009 U.S

. D i s t

. LEXIS 96582, at *4 (N.D. Tex. Oc t

. 16, 2009) (distinguishing the “legless alibi” submi tted in Lawrence from the affidavit submitted by a party that described detailed, recent transactions among institutions whose representatives would be readily avail ab le, together with records, for further discovery to prove or disprove assertions made).

The pol icy sp ecif

ical ly doe s not pr ovide cover age for “[ p] rop ert y wh ich will not beco me 5 par t of the ins tall atio n, excep t too ls and equip me nt for wh ich the cos ts : (1) [i] s inclu ded in the cont rac t price; and( 2) [h] as been rep ort ed to us forp rem iump urp os es [. ] 9 Case: 10-30950 Document: 00511642943 Page: 9 Date Filed: 10/24/2011No. 10-30950

Although the Pittman affidavits raised a fact issue as to whether r a in alone destroyed the generators, they di d n ot indicate that the small tools and equipment were destroyed by a covered peril. Thus, the summary judgment for National r e g a r ding coverage for the small tools and equipment was proper. Similarly, Pittman did not raise a fact issue with respect to compliance with the conditions precedent as to debris removal coverage. IV. CONCLUSION Based on the foregoing, we AFFIRM the summary judgment a s t o the small tools and equipment c over a ge an d deb ri s r e m oval c over a ge, and REVERSE the summary ju d g m e n t as to the remaining issues. We REMAND for further proceedings consistent with this opinion.

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