Gibson v. Canal Insurance Co ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 13, 2006
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
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No. 05-30459
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CYNTHIA GIBSON
Plaintiff - Appellant
v.
CANAL INSURANCE COMPANY; ET AL
Defendants
CANAL INSURANCE COMPANY
Defendant - Appellee
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Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:03-CV-3566
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Before JONES, Chief Judge, KING and DENNIS, Circuit Judges.
PER CURIAM:*
The subject of this appeal is denominated a Judgment. It
begins by considering an order which denied motions for summary
judgment filed by plaintiff and defendants and goes on to order
that “coverage owed by defendant Canal Insurance is $100,000
pursuant to Federal Rule of Civil Procedure 54(b).” Although the
*
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that this opinion should not be published and is not precedent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.
parties and the district court apparently considered this
Judgment to be an appropriate Fed. R. Civ. P. 54(b) judgment, it
is clearly not a final judgment as to defendant Canal Insurance
Company since, as we were informed at oral argument, issues of
liability and damages remain to be resolved. What the parties
and the district court may have intended was to invoke 28 U.S.C.
§ 1292(b) and to ask the Court of Appeals to resolve a
controlling question of law with respect to the reformation of an
insurance policy issued by Canal Insurance Company. However,
neither the plaintiff nor Canal applied to the Court of Appeals
for permission to appeal the Judgment within ten days after the
entry of the Judgment, as required by § 1292(b). Since neither
the requirements of Fed. R. Civ. P. 54(b) nor those of § 1292(b)
have been complied with, we have no jurisdiction. See Liberty
Mutual Ins. Co. v. Wetzel, 424 U.S. 737 (1976).
This appeal is DISMISSED. Each party shall bear its own
costs.
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