Case: 16-31020      Document: 00513975744         Page: 1    Date Filed: 05/02/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                      No. 16-31020
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             May 2, 2017

BRADLEY W. SMITH,                                                          Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant Cross-Appellee

v.

SHELTER MUTUAL INSURANCE COMPANY,

              Defendant - Appellee Cross-Appellant




                  Appeals from the United States District Court
                      for the Middle District of Louisiana
                             USDC No. 3:15-CV-357


Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit
Judges.
PER CURIAM:*
       Plaintiff-Appellant Bradley W. Smith and Defendant-Appellee Shelter
Mutual Insurance Co. (“Shelter”) appeal and cross-appeal the district court’s
order granting partial summary judgment. Concluding that the district court’s
order is not subject to interlocutory review, we dismiss the appeal and cross-
appeal for lack of subject matter jurisdiction.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 47.5.4.
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                                       No. 16-31020
                                              I.
        In 2001, Paul Babin, whom Shelter insured, hit Smith while driving his
car. After the incident, Smith sued Babin in state court. Babin then brought a
cross-claim against Shelter alleging that Shelter had refused to defend or
indemnify him in bad faith and seeking damages for Shelter’s alleged policy
misrepresentations. Following a bifurcated trial in state court, the court found
that (1) Shelter did not have a duty to defend Babin and that (2) “Shelter was
not . . . in any way in bad faith in making its decision that it did not have
coverage. . . . [, as] there was no failure in any part of the duties of the insurer.”
Accordingly, the court ordered that “with respect to the cross[-]claims of Paul A.
Babin, the claims for duty to defend against Shelter Mutual Insurance Company
be and hereby are dismissed, with prejudice.” The court further ordered that
“with respect to the cross-claim of Paul Babin, the claims for bad faith insurance
practices under La. R.S. 22:1892 and 1973 against Shelter Mutual Insurance
Company be and hereby are dismissed, with prejudice.” Babin appealed, and
the Louisiana First Circuit Court of Appeal affirmed the trial court’s judgment
in full. 1
        Smith brought the instant matter against Shelter on an assignment of
Babin’s rights, seeking to recover the excess amount of the state court judgment
beyond Babin’s insurance policy liability and alleging that the excess judgment
occurred as a result of Shelter’s alleged policy misrepresentations. Shelter then
moved for summary judgment based on res judicata, which the district court
granted in part and denied in part. The parties now appeal and cross-appeal
those rulings.



        1The Louisiana First Circuit Court of Appeal amended the district court’s judgment
with respect to the final damages amount, but “[i]n all other respects,” including the
allegations at issue here, it affirmed the district court’s judgment. Smith v. Babin, No. 2015-
CA-1029, 

, at *11 (La. App. Apr. 15, 2016) (unpublished).
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                                 No. 16-31020
                                       II.
      Being a court of limited jurisdiction, we have a responsibility to examine
the basis of our jurisdiction, regardless of whether the parties raise the issue.
United States v. Garner, 

, 284 (5th Cir. 1985). The finality rule is
designed to avoid piecemeal litigation and the delays and costs associated with
“needless precautionary appeals.” Newpark Shipbuilding & Repair, Inc. v.
Roundtree, 

, 401 (5th Cir. 1984) (en banc). Thus, as a general rule,
an order is final only when it “ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Firestone Tire & Rubber
Co. v. Risjord, 

, 373 (1981).
                                      III.
      Noting that it was not clear we had jurisdiction to hear the case, we
solicited additional letter briefs from the parties. In their briefs and during
oral argument, both parties argued that, because the district court dismissed
Smith’s bad faith claim, the district court effectively dismissed Smith’s excess
judgment claim, as the two causes of action are inextricably intertwined. See
Kelly v. State Farm Fire & Cas. Co., 

, 336 (La. 2015); Smith v.
Audubon Ins. Co., 

(La. 1996). Therefore, the parties claim theirs
is an appeal from a final judgment. We disagree.
      Because an unresolved claim remains before the district court, this
appeal is interlocutory in nature. Accordingly, this court has jurisdiction to
hear the case exclusively pursuant to either Federal Rule of Civil Procedure
54(b) or 28 U.S.C. § 1292. See Tetra Techs., Inc. v. Cont’l Ins. Co., 

, 227 (5th Cir. 2014). Because neither party appealed the issue under either
alternative, we DISMISS the appeal for lack of jurisdiction.




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