IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 01-10269

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MARY DOUGHTEN,

Plaintiff-Appellant,

VERSUS

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

(4:00-CV-1799)

_________________________

February 6, 2002

Before SMITH and DEMOSS, Circuit Judges,

and LAKE, District Judge.*

PER CURIAM:**

This appealisintended to present two questions: (1) Can a district court decide legal

issues at summary judgment? (2) Does the

Texas Insurance Code permit an insurance

contract to exclude coverage for an insured

party’s bodily injuriessustained while riding in

an uninsured family member’s car? We

conclude that it is unnecessary to reach either

issue, because the plaintiff, Mary Doughten,

* District Judge of the Southern District of

Texas, sitting by designation.

** 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.

(continued...)

**(...continued)

47.5.4.
2

waived those issues by failing to raise them in

the district court.

I.

Doughten was a passenger in her son-inlaw’s car when a third party rear-ended their

vehicle, injuring her. Her son-in-law, James

Gray, also was a member of Doughten’s

household. Defendant State Farm Mutual

Automobile Insurance Company (“State

Farm”) insured her and her vehicle and insured

Gray under a separate policy.

Doughten sought and recovered money

from three sources: (1) The negligent driver’s

insurance carrier paid up to its third-party

policy limits; (2) State Farm paid up to the

limit of Gray’s underinsured motorists policy;

and (3) State Farm paid up to the limit of

Doughten’s PersonalInjury Protection Policy.

Doughten sought payment from State Farm

under her Texas personal automobile policy

for underinsured motorists. State Farm denied

payment, and Doughten filed this suit in state

court, seeking actual damages for breach of

the insurance contract and extra-contractual

damages pursuant to article 21.21 ofthe Texas

Insurance Code. State Farm removed on the

basis of diversity jurisdiction.

State Farm moved for summary judgment;

Doughten did not respond. The court granted

summary judgment based on a clause in the insurance policy that excludes payment for

“bodily injury sustained while occupying, or

when struck by, any motor vehicle or trailer of

any type owned by you or any family member

which is not insured for this coverage under

the policy.”

Doughten alleges two errors. First, she argues that declaratory judgment, rather than

summary judgment, was proper. Second, she

avers that the district court erred in giving effect to the exclusionary clause, because it violates Texas public policy.

II.

Doughten’s failure to respond to the

motion for summary judgment means that she

did not raise, in the district court, the issues

she urges on appeal. Fifth Circuit cases do not

consistently describe the standard for

considering an issue raised for the first time on

appeal. Some panels have stated that we need

not do so “unless it is a purely legal issue and

our refusal to consider it would result in a miscarriage of justice.” E.g., Heci Exploration

Co. v. Holloway, 862 F.2d 513, 518 & n.7

(5th Cir. 1988) (emphasis added). More recently, panels have explained that this court

can consider an issue for the first time on appeal if “the issue presents a pure question of

law or [is] an issue which, if ignored, would

result in a miscarriage ofjustice.” E.g., United

States ex rel. Wallace v. Flintco, Inc., 143

F.3d 955, 971 (5th Cir. 1998) (emphasis added). We need not resolve the conflict to

decide whether Doughten can make new

arguments on appeal, because she failed to

respond to the summary judgment motion

altogether.

The courts of appeals retain broad

discretion to hear issues not presented to the

district court.1 On the facts of this case, we

will not exercise that discretion, for to do so

would interfere with the managerialrole of the

district court and would confuse our position

1

Singleton v. Wulff, 438 U.S. 106, 121 (1978)

(“The matter of what questions may be taken up

and resolved for the first time on appeal is one left

primarily to the discretion of the courts of appeals,

to be exercised on the facts of individual cases.”);

Heci, 862 F.2d at 518 & n.7 (same).
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with that of the district court. 

When a party fails to file any response to a

summary judgment motion or offer an excuse

for itsfailure, the district court should not face

reversal based on novel issues. At summary

judgment, Doughten failed to make any legal

arguments or identify the fact issues necessary

to justify a trial. Her error went far beyond the

failure to raise a single legal argument and

more resembles the failure to raise an entire

claim or defense. We have previously ignored

defenses when argued for the first time on

appeal.2 

On appeal, Doughten does not even offer

an excuse for failing to respond to the

summary judgment motions. Her failure to

respond should not permit her, effectively, to

circumvent the district court entirely. When

exercising our discretion to hear issues first

raised on appeal, we should consider how it

would affect judicial economy and management. Payne v. McLemore’s Wholesale &

Retail Stores, 654 F.2d 1130, 1146 (5th Cir.

Unit A Sept. 1981).

The risk of interfering with the district

court’s ability to resolve cases at summary

judgment outweighs the slight chance of injustice posed by denying Doughten’s new and

dubious arguments. Even if we were to

consider Doughten’s issues on the merits,

however, State Farm would prevail, for the

reasons cogently set forth by the district court.

III.

Doughten allegesthat the courtshould have

resolved the legality of the contract’s exclusionary clause through a declaratory

judgment action rather than at summary

judgment. Doughten misunderstands the

nature of a motion for summary judgment.

Summary judgment is appropriate if the

evidence on record “show[s] that there is no

genuine issue as to any material fact and that

the moving party is entitled to judgment as a

matter of law.” FED. R. CIV. P. 56(c). The

moving party bears the initial burden of

demonstrating an absence of evidence

supporting the nonmovant’s case. Celotex

Corp. v. Catrett, 477 U.S. 317, 325 (1986). If

the nonmovant bearsthe burden of proving the

issue at trial, the movant merely can point to

the absence of evidence in the record. Id. at

323-24. The nonmoving party may not rest on

the mere allegations or denials of its pleadings

but must respond by setting forth specific facts

indicating a genuine issue for trial.3

Courts should resolve disputed legal issues

at summary judgment, even though they lack

the power to resolve factual disputes.4 The

2Estate of Martineau v. ARCO Chem. Co., 203

F.3d 904, 913 (5th Cir. 2000) (refusing to consider

a limitations argument that the party had failed to

raise when briefing a motion for summary

judgment). Cf. Hinsley v. Boudloche, 201 F.3d

638, 645 (5th Cir. 2000) (refusing to consider

plaintiff’s arguments for tolling the statute of

limitations where she had not raised them at

summary judgment).

3 Webb v. Cardiothoracic Surgery Assocs,

P.A., 139 F.2d 532, 536 (5th Cir. 1998); Figgie

Int’l, Inc. v. Bailey, 25 F.3d 1267, 1269-70 (5th

Cir. 1994).

4 Hang On, Inc. v. City of Arlington, 65 F.3d

1248, 1257 (5th Cir. 1995) (explaining power of

district court to evaluate legal theory’s merits at

summary judgment); Neff v. Am. Dairy Queen

Corp., 58 F.3d 1063, 1065 (5th Cir. 1995) (holding that district court properly resolved question of

(continued...)
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district court correctly chose to resolve the

legal issue of the exclusionary clause’s validity

at summary judgment. We review that

decision de novo. Rushing v. Kan. City S. Ry.,

185 F.3d 496, 504 (5th Cir. 1999).

IV.

Texas Insurance Code article 5.06-1

requires automobile liability insurance to

include coverage against uninsured and

underinsured motor vehicles. The insured can

waive such coverage in writing. TEX. INS.

CODE ANN. art. 5.06-1 (Vernon 1981).

Doughten argues that this statutory

requirement creates an amorphous public

policy that invalidates St ate Farm’s

exclusionary clause.

The language of the statute presents the

first major obstacle for Doughten. The statute

provides that “[t]he coverages required under

this Article shall not be applicable where any

insured named in the policy shall reject the

coverage in writing.” Id. Because the statute

expressly permits waiver, Doughten would

have to advance a unique reason that waivers

of claims against uninsured family members

violate public policy. She fails to do so.

Several Texas courts of appeals have ruled

that an insurance company can lawfully

disclaim uninsured motorists liability for

accidents involving uncovered family

members.5 This rule is consistent with an

unbroken line of cases holding that insurers

lawfully can exclude some of a family’s

vehicles from coverage.6

Doughten relies on two cases to show that

the exclusion violates Texas public policySSStephens v. State Farm Mut. Auto. Ins.

Co., 508 F.2d 1363 (5th Cir. 1975), and Briones v. State Farm Mut. Auto. Ins. Co., 790

S.W.2d 70 (Tex. App.SSSan Antonio 1990,

writ denied). Neither is good law.

In Stephens, 508 F.2d at 1367, we held that

4

(...continued)

contract interpretation at summary judgment

because it was a legal issue).

5 Reyes v. Tex. All Risk Gen. Agency, Inc., 855

S.W.2d 191, 191-92 (Tex. App.SSCorpus Christi

1993, no writ) (upholding identical clause); State

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5

(...continued)

Farm Mut. Ins. Co. v. Conn, 842 S.W.2d 350,

351-52 (Tex. App.SSTyler 1993, writ denied)

(enforcing clause excluding uninsured family members’ cars from coverage against underinsured

motorists); Tex. Farm Bureau Mut. Ins. Co. v.

Tatum, 841 S.W.2d 89, 92 (Tex. App.SSTyler

1992, writ denied) (same); Tex. Farmers Ins. Co.

v. McKinnon, 823 S.W.2d 345, 346-47 (Tex.

App.SSBeaumont 1992, writ denied) (same).

6 Holyfield v. Members Mut. Ins. Co., 572

S.W.2d 672, 673 (Tex. 1978) (establishing rule

that insurer can refuse to insure certain vehicles

consistent with Texas statute requiring liability

insurance); Farmers Tex. County Mut. Ins. Co. v.

Griffin, 868 S.W.2d 861, 868-69 (Tex.

App.SSDallas 1994, no writ); Conlin v. State

Farm Auto. Ins. Co., 828 S.W.2d 332, 336-37

(Tex. App.SSAustin 1992, writ denied); Harwell v.

State Farm Mut. Auto. Ins. Co., 782 S.W.2d 518,

520 (Tex. App.SSHouston [1st Dist.] 1990, no

writ); Berry v. Tex. Farm Bureau Mut. Ins. Co.,

782 S.W.2d 246, 247 (Tex. App.SSWaco 1989,

writ denied); Beaupre v. Standard Fire Ins. Co.,

736 S.W.2d 237, 238 (Tex. App.SSCorpus Christi

1987, writ denied); Broach v. Members Ins. Co.,

647 S.W.2d 374, 375 (Tex. App.SSCorpusChristi

1983, no writ); Stagg v. Travelers Ins. Co., 486

S.W.2d 399, 402-04 (Tex. Civ. App.SSBeaumont

1972, no writ).
5

Texas law prohibited an insurer from

excluding some of an insured’s vehicles from

uninsured motorists policies while covering

other vehicles. We recognized that two

intermediate appellate courts had reached the

opposite conclusion but interpreted dictum

from the Texas Supreme Court as leaning

toward invalidity. Id. 

We no longer need to rely on dictum, however, because the Texas Supreme Court has

held such clauses valid. Holyfield, 572

S.W.2d at 673. We recognized the change in

state law and upheld a vehicle exclusion in

American Economy Insurance Co. v. Tomlinson, 12 F.3d 505, 509 (5th Cir. 1994).

In Briones, the court invalidated an exclusionary clause in an underinsured motorists

insurance contract, 790 S.W.2d at 74, that

barred insureds from recovering if the vehicle

was “available for” the insured’s “regular use,”

id. at 71. The court characterized the question

on appeal as a factual dispute over whether the

plaintiff had used the truck “regularly.” Id. at

72. Despite evidence that he had used it

regularly over five years, the court allowed

recovery. Id. at 74. The court relied heavily

on Stephens and on an interpretation of a

Texas Supreme Court case later rejected in

Holyfield. Id. See Holyfield, 572 S.W.2d at

673. The court emphasized that the employer

had provided the vehicle and that courts

should make this determination on a case-bycase basis. Briones, 790 S.W.2d at 74.

We conclude that the Texas SupremeCourt

would at least restrict Brionesto itsfacts. The

authorities that Briones relies on have since

been discredited, and Briones itself describes

a very limited holding. Briones does not

extend to invalidate waivers of claims against

uninsured family members. The weight of

authority by Texas’s intermediate appellate

courts favors validity.7 The district court

properlyupheld the validityofthe exclusionary

clause at summary judgment.

AFFIRMED.

7

 Cases cited supra note 5.