## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 01-10269

_______________



### M ARY 

### D OUGHTEN



### ,

Plaintiff-Appellant,

VERSUS



### S TATE 

### F ARM 

### M UTUAL 

### A UTOMOBILE 

### I NSURANCE 

### C OMPANY



### ,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

(4:00-CV-1799)

_________________________

February 6, 2002

Befo r e S MITH and D E M OSS

, Circuit Judges,

and L AKE

, District Judge. *

PER CURIAM: ** This appeal is intended to present two questions: (1) Can a dist rict court decide legal

i ssues at summary judgment? (2) Does the

Texas Insurance Code permit an insurance

contract to exclude cov erage for an insured

party’s bodily injuries sustained while riding in

an uninsu r ed family member’s car? We

conclude that it is unnecessary to reach either

issue, because the plaint iff, Mary Dou ghten, * Dis trict Judge of the Southern District of

Texas, sitting by designation.

** Pursuant to 5 TH C IR. 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 5 TH C IR

. 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-inl aw’s car when a third party rear-ended th eir

vehicle, in juring 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 sough t and recovered money

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

insurance carrier paid up to its thi r d-party

policy limit s; (2) State Farm paid up to the

limit of Gray’s underinsured motorists policy;

and (3) State Farm paid up to t he limit of

Doughten’s Personal Injury Protecti on Policy.

Doughten sought payment from Stat e Farm

under her Texas personal automobile po licy

for underinsured motorists. State Farm denied

payment, and Doughten filed this suit in state

co urt, seeking actual damages for breach of

the insura nce contract and extra-contractual

damages pursuant to article 21.21 of the 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 payme n t for

“bodily injury sustained while occupying, or

when struck by, any m

otor vehicle or trailer of

any type owned by you or any family member

which is not i nsured 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 f

ail ure 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 th e standard f or

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 miscar riage of justice.” E .g., Heci Exploration

Co. v. Hollow ay

, 862 F

. 2d 513, 518 & n.7

(5th Cir. 1988) (e mphasis 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 o r [is] an issue which, if ignored, wo uld

result in a miscarriage of justice.” E .g.

, United

Sta tes ex rel. Wallace v. Flintco, Inc. , 143

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

deci de 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 cour t. 1 On the facts of this case, we

will not exercise that di screti on, f or to do so

would interfere with the managerial role 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).3

with that of the district court.

When a party fails to file any response to a

summary judgment motion or offer an excuse

for its failure, the district court should not face

r eversal based on novel issues. At summary

judgment, Do ught en 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 ar g ument and

more resembles the fai l ure to raise an entire

claim or defense. We have previously ignored

defenses wh en argued for the first time on

appeal. 2

On appeal, Do ughten does not even offer

an excuse for failing to respon d to the

summary ju dgment motions. Her failure to

respond should not permit her, effectively, to

circumvent th e district court entirely. When

exercising our discretion to hear issues first

raised on appeal, we should consider how i t

would a ffect judicial economy and management. P ayne v. McLemore’s Wholesale &

Retail Stores

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

Unit A Sept. 1981).

The risk of interfering wi t h the district

court’s abilit

y to r eso lve cases at summary

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

dubiou s arguments. Even if we were to

consider Doughten’s issues on the merits, however, State Fa r m would prevail, for the

reasons cogently set forth by the district court.

III.

Doughten alleges that the court should have

resolved the l egality of the contract’s exclusionary clause throu gh a declaratory

judgment action rather than at summary

jud gment. Doughten misunderstands the

nature of a motion for summary judgment.

Summary judgment is appropri at e if the

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

genuine issue as to any ma t erial fact and that

the moving party is entitled to judgment as a

matter of law.” F ED

. R. C IV

. P. 56(c). The

moving party bears the init ial burden of

demonstrating an absence of evidence

supporting t he nonmovant’s case. C elotex

Corp. v. Catrett

, 477 U.S. 317, 325 (1986). If

the nonmovant bears the burden of proving the

issue at trial, the movant merely can poi nt to

the a bsence of evidence in the record. I d. 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 sum mary judgment, even though they lack

the power to resolve factual disput es. 4 The

2 Estate 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). C

f. Hins ley v. Boudloche , 201 F.3d

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

pl aintiff’s arguments for tolling the statute of

limit a tions where she had not raised them at

summary judgment). 3 Webb v. Cardiothoracic Surgery A ssocs,

P.A.

, 139 F.2d 532, 536 (5th Cir. 1998); F iggie

Int’l, Inc. v. Baile

y , 25 F.3d 1267, 1269-70 (5th

Cir. 1994).

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

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

district court to evaluate legal the ory’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...)4

district court co rrect ly

chose to resolve the

legal issue of the exclusionary clause’s validity

at summar y judgment. We review that

decision de novo

. R ushing v. Kan. City S. Ry.

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

IV.

Texas Insurance Code article 5.06-1

requires automobile liabilit y insurance to

include coverage against uninsured and

underinsured m

otor vehicles. The insured can

waive such coverage in writing. T E X

. I NS

. C ODE A NN

. art. 5.06-1 ( Vernon 1981).

Doughten argues that thi s statutory

requirement creates an amorphous public

policy that invalidat

es St at e Farm’s

exclusionary clause.

The language of the statute p r esents the

first major obstacle for Doughten. The statute

provides that “[t]he coverages required under

t his Article shall not be applicable where any

insured n amed in the policy shall reject the

coverage in writing.” I

d. Because the statute

expressly permits waive r, Doughten woul d

have to advance a unique reason that waivers

o f claims against uninsured family member s

violate public policy. She fails to do so.

Several Texas courts of appeals have ruled

that an insurance compa ny can lawfully

d isclaim uninsured motorists liabilit y f o r

accidents involving unco vered family

members. 5 This rule is consistent with an unbroken line of cases ho lding that insurers

l awfully can exclude some of a family’s

vehicles from coverage. 6

Doughten relies on two cases to show that

the exclusion violates Texas pub lic policy 

### SS Stephens v. State Farm Mu t. Auto. Ins.

Co.

, 508 F.2d 1363 (5th Cir. 1975), and Br i

ones v. State Farm Mut. Auto. Ins. Co. , 790

S.W.2 d 70 (Tex. App. 

### S

S San Antonio 1990,

writ denied). Neither is good law.

In Stephens

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

4 (...continued)

contract interpretati o n 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. SS Corpus Christi

1993, no writ) (upholding ide ntical clause); S tate

(continued...) 5 (...continued)

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

351-52 (Tex. App. SS

Tyler 1993, wr it denied)

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

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

Tatum

, 841 S.W.2d 89, 92 (Tex. App. SS Tyler

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

v. McKinnon

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

App. SS Beaumont 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 vehicle s

consistent with Texas statute requiring liability

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

Griffin

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

A pp. SS Dallas 1994, no writ); Conlin v. Stat e

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

(Tex. App. SS

Austin 1992, writ denied); Harwell v.

State Farm Mut. Auto. Ins. Co.

, 782 S.W.2d 518,

5 20 (Tex. App. SS

Houston [1st Dist.] 1990, n o

writ); Berry v. Tex. Farm Bureau M ut. Ins. Co.

, 782 S.W.2d 246, 247 (Tex. A p p. SS Waco 1989,

writ denied); Be aupre v. Standard Fire Ins. Co.

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

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

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

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

, 486

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

1972, no writ).5

Texas law prohibited an insurer from

ex cluding 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 conclusio n but interpreted d ictum

from the Texas Supreme Cou rt as leaning

toward invalidity. Id.

We no longer need to rely on dictum

, however, b ecause the Texas Supreme Court has

held such clause s valid. H olyfield

, 572

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

state law and upheld a vehicle exclusi on 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

insu rance 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

plaint iff had used the truck “regularly.” Id. at

72. Despite evidence that he had used it

regularly over five years, the court allowed

recovery. I

d. at 74. The court relied heavily

on Stephens and on an interpretation of a

Texas Supreme Court case later rejected in

Holyfield

. I

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

673. The court emphasized that the employer

had provided th e 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 Supreme Court

would at least restrict Briones to its facts. The

authoriti e s that Briones relies on have since

been discredited, and Briones itself describes

a very limit

ed holding. B riones does not

extend to invalidate waivers of claims against

unins ured family members. The weight of authority by Texas’s intermediate appellate

co urts favors validity. 7 The district court

properly upheld the validity of the exclusionary

clause at summary judgment.

AFFIRMED.

7 Cases cited supra note 5.