Greenbrook Inc v. State Farm Fire

*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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-60296
Summary Calendar
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GREENBROOK INC.,
Plaintiff - Appellant-Cross-Appellee
versus
STATE FARM FIRE AND CASUALTY COMPANY; ET AL.,
Defendants
STATE FARM FIRE AND CASUALTY COMPANY,
Defendant - Appellee-Cross-Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(00-CV-711-BN)
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November 27, 2002
Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Greenbrook, Inc. appeals the summary judgment dismissing its
breach of contract action against State Farm Fire and Casualty
Company. In a well-reasoned and thorough opinion, the district
court held that Greenbrook had failed to show that there was a
genuine issue of material fact with regard to whether State Farm
breached the terms of the insurance policy. Alternatively, the

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**We reject State Farm’s argument that we lack jurisdiction
because Greenbrook’s motion to alter or amend, although timely
filed, was insufficient to toll the time for filing a notice of
appeal because it did not state any basis for altering or amending
the judgment and did not make a request that the judgment be
altered or amended in any “certain way.” As is obvious from the
district court’s Opinion and Order denying the motion to alter or
amend, the motion and accompanying memoranda complied with the
procedural requirements of Rule 59. Although the district court
was unpersuaded by the motion, it nevertheless was adequate to toll
the time for filing a notice of appeal.
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district court held that State Farm was entitled to summary
judgment on the ground that Greenbrook had failed to comply with
the terms of the appraisal provision of the insurance policy prior
to commencing this action. The district court denied as moot State
Farm’s alternative request to appoint an umpire to facilitate the
appraisal process, stating that either party could move to reopen
the case in the event further judicial intervention with regard to
the selection of an umpire was necessary.
Greenbrook argues that the summary judgment should be reversed
because there was no additional evidence that should have been
presented to establish its entitlement to recovery of operating
expenses. It contends further that it complied with the terms of
the appraisal provision of the policy prior to commencing this
action. On cross-appeal, State Farm argues that Greenbrook’s
breach of the appraisal provision of the policy voids all coverage
under the policy.**
We have reviewed the record and the briefs, and find no
reversible error. As the district court correctly held, the

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parties disagree as to the amount of covered losses sustained by
Greenbrook. Under the terms of the insurance policy, such disputes
must be submitted to an appraisal if demanded in writing by either
party; and State Farm has made such a demand. As the district
court observed, however, there is no Mississippi precedent to
support State Farm’s argument that an insured’s failure to comply
with an appraisal provision renders the underlying insurance policy
void. We therefore AFFIRM the summary judgment, essentially for
the reasons stated by the district court. See Greenbrook, Inc. v.
State Farm Fire and Casualty Company, No. 3:00-cv-711BN (S.D. Miss.
July 24, 2001).
A F F I R M E D.

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