* 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this opinion should not be published and is not precedent except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. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

January 16, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

))))))))))))))))))))))))))

No. 05-30526

Summary Calendar

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BULK PACK, INC., ET AL.,

Plaintiffs-Appellants,

versus

FIDELITY & DEPOSIT COMPANY OF MARYLAND;

ET AL.,

Defendants-Appellees,

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:04-CV-01079-RGJ-JDK

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM: *

The question presented in thi s case is whether the district

court erred in granting summary judgment for Appellee s Zurich

American Insurance Company and its subsidiary, Fidelity and Deposit

Company of Maryland, on Appellants’ claim that the i nsurers

wrongfully denied coverage of a loss. Because we find that summary

judgment was properly granted, we AFFIRM the distr ict court’s1 The provision states, “This insurance covers only acts

committed or events occurring within the United States of

America, U.S. Virgin Islands, Puerto Rico, Canal Zone, or

Canada.”

-2- ruling.

I. BACKGROUND

Appellees i ssued a commercial crime insurance policy to Bulk

Pack, Inc. (“Bulk Pack”) and its operation in Mexico, Bulk-Pack de

Mexico, S. de R.L. de C.V. (“Bulk-Pack de Mexico”), covering, inter

alia

, acts of employee dishonesty. In September 2003, Appellants

discove red that Greg Garcia, a Bulk-Pack de Mexico employee, had

embezzl e d $411,932.24. Appellants contend that Garcia inflated

weekly requests for money transfers for operating expenses at the

Mexico locat ion. Consequently, Darryl DeCelle, a Bulk Pack

employee, in Monroe, Louisiana, transferred money from Bulk Pack’s

BankOne Account in the United States to its BankOne Account in

Mexico, where dollars were exchanged f or Mexican pesos to be used

by Bulk-Pack de Mexico for operations expenses. Garcia transferred

the surplusage to his own account. Upon receiving Appellants’ proof

of loss, Appellees denied cover age. Although there is no dispute

as to the fact that theft occ urred, the parties’ disagreement

involves the policy’s territorial exclusion provision, which limits

coverage to certain geographic regions. 1

The origin al petition for damages was filed in the Ouachita

Parish, Louisiana Fourth Judicial District Court on April 21, 2004.-3-

The case was properly removed to federal district court pursuant to

28 U.S.C. § 1332. After discovery, the parties filed cross-motions

for summary judgmen t. The district court adopted the magistrate

judge’s report and recommen dation on the issue being appealed,

whether the policy covers Greg Garcia’s thievery, and granted

summary judgment in favor of Appellees.

II. STANDARD OF REVIEW FOR SUMMARY JUDGMENT

We review a district court's grant of summary judgment de novo

,

applying the same standard as the district court. S hepherd v.

Comptroller of Pub. Accounts , 168 F.3d 871, 873 (5th Cir. 1999).

Pursuant to Federal Rule of Civil P rocedure 56(c) , summary

judgment is proper when the “pleadings, depositions, answers to

interrogatories , and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter

of law. ” F ED. R. CIV. P. 56(c) ; C elotex Corp. v. Catrett

, 477 U.S.

317, 322–23 (1986) ; A nderson v. Liberty Lobby, Inc.

, 477 U.S. 242,

251–52 (1986)

. When making its determination, the court must draw

all justifiable inferences in favor of t he nonmoving party.

Anderson

, 477 U.S. at 255 ; M atsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp.

, 475 U.S. 574, 587-88 (1986) ; Bodenheimer v. PPG

Indus., Inc.

, 5 F.3d 955, 956 (5th Cir. 1993)

.

To defeat a properly supported motion for summary judgment, the

non-movant must present more than a me re scintilla of evidence.2 The policy defines occurrence as “all loss caused by, or

involving, one or more ‘employees’, whether the result of a

single act or a series of acts.”

-4- Anderson

, 477 U.S. at 251. A f actual dispute precludes a grant of

summary judgment if the evidence would permit a reasonable jury to

return a verdict for the non moving party. S ee Merritt-Campbell,

Inc. v. RxP Prods., Inc.

, 164 F.3d 957, 961 (5th Cir. 1999)

.

III. DISCUSSION

Appellants argue that altho u gh the term “occurring,” which

appears in the territorial exclusion provision, is not defined, the

policy does provide a definition for the term “occurrence.” 2

Therefore, they contend that the policy’s definition of “occurrence”

should be applied to the term “occurring.” As a result, Appellants

assert that because funds were transferred by DeCelle from Monroe,

Louisiana, some of the events o ccurred in the United States, and

should be covered under the policy. Additionally, Appellants

analogize cases deal ing with venue in the context of federal mail

and wire fraud to their argument that because actions took place in

Louisiana, events under the policy occurred in Louisiana.

Appellees, on the other hand, argue that Appellan ts’ reliance on

venue cases is misplaced and that while Garcia inflated estimates

of Bulk-Pack de Mexico’s operations expenses, he embezzled the funds

when he transferred funds from Bulk-Pack de Mexico’s Mexican Bank

account to his own personal account. Specifically, Appellees assert

that because the illegal transfer of funds occurred in Mexico, and3 Because this case falls within federal diversity

jurisdiction, we must apply Louisiana law. See Erie R.R. Co. v.

Tompkins , 304 U.S. 64, 79-80 (1938).

-5- not the United States, the policy does not cover the $411,932.24

loss.

Under Louisiana law, 3 courts should construe insurance policies

using the familiar principles of contract interpretation.

Times-Picayune Publ’g Corp . v. Zurich Am. Ins. Co. , 421 F.3d 328,

331 (5th Cir. 2005) (quoting Trinity Indus., Inc. v. Ins. Co. of N.

Am.

, 916 F.2d 267, 269 (5th Cir.1990)). The words of the policy

reflect the parties’ intentions and determ ine the extent of

coverage. I d. at 331-32. The words “are to be construed in their

plain, ordinary, and popular sense.” C alcasieu-Marine Nat’l Bank

of Lake Charles v. Am. Employers' Ins. Co.

, 533 F.2d 290, 296 (5th

Cir. 1976). Finally, “the court should consider the policy as a

whole, an d interpret the policy to fulfill the reasonable

expectations of the parties in the light of the customs and usages

of the industry.” T imes-Picayune

, 421 F.3d at 331(quoting Trinity

Indus. , 916 F.2d at 269.)).

We agree with the findings of the magistrate judge, as adopted

by the district cou rt, that the terms of the policy are clear and

unambiguous. The policy covers loss due to employee dishonesty

committed within the United States, the Virgin Islands, Puerto Rico,

the Canal Zone, and Canada. The words of the policy do not reflect-6-

an agreement to provide coverage for acts committed in Mexico.

Moreover, there has been no allegation of dishonesty on the part of

DeCelle, th e Bulk Pack employee in Louisiana. The fact that

Decelle, in accordance with his job description, transferred funds

from the United States, is not dispositive. The dishonest acts –

the request for inflated funds and the transfer of money from BulkPack de Mexico’s Mexican Bank account to Garcia’s personal account

– both occurred in Mexico.

IV. CONCLUSION

For the foregoing reasons , we AFFIRM the judgment of the

district court as to all claims.

AFFIRMED.