Gibson v. Liberty Mutual Group

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 19, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-10649
Summary Calendar
OLIVIA GIBSON,
Plaintiff-Appellant,
versus
LIBERTY MUTUAL GROUP
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-2306-D
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
The plaintiff, Olivia Gibson, appeals from the district
court’s granting of summary judgment to the defendant, Liberty
Mutual Group. Finding no error, we AFFIRM.
The plaintiff filed suit against the defendant raising
contractual and extracontractual claims arising from the
defendant’s refusal to pay a theft loss claim made under a home
owner’s insurance policy. The defendant removed the case to
federal court and moved for summary judgment, contending that the

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No. 04-10397
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record established that the theft was committed by the plaintiff’s
estranged husband, Jared Harris, a named insured, and thus excluded
from coverage. The district court granted the motion and the
plaintiff timely appealed.
We review a district court's decision to grant or deny summary
judgment de novo, applying the same legal standards as the district
court. Foster Wheeler Energy Corp. v. An Ning Jiang MV, 383 F.3d
349, 354 (5th Cir. 2004). Summary judgment is proper if, when
viewing the evidence in the light most favorable to the nonmoving
party, the record indicates that there is "no genuine issue of
material fact and that the moving party is entitled to judgment as
a matter of law." Fed. R. Civ. P. 56(c).
The plaintiff appears to argue on appeal that (1) Harris was
not a named insured, and (2) the defendant has not established that
Harris committed the theft. The declaration page of the insurance
policy at issue shows that Harris was a named insured from November
1998 to November 1999, the period in which the loss occurred. The
plaintiff claims that the defendant improperly added Harris to the
insurance policy without her knowledge or consent. The only
evidence supporting the plaintiff’s assertion is an affidavit from
her son, Bennie Gibson, stating that he “learned that on November
4, 1998, [Harris] called [the defendant] and added himself as a
listed insured, over the phone, to my mother’s homeowner’s policy.
These changes were made without any verbal or written instruction,
approval, or signature from my mother. [Harris] did not have the

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No. 04-10397
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1 The plaintiff initiated her case in the Texas courts.
Accordingly, she filed an “original petition” rather than an
“original complaint.”
legal capacity at the time to make such changes to my mother’s
policy.” The district court properly struck this portion of the
affidavit because it contains legal conclusions and hearsay and was
not based upon Bennie’s personal knowledge. See Fed. R. Civ. P.
56(e), Fed. R. Evid. 802, 701. Accordingly, there is no evidence
supporting the plaintiff’s claim that Harris was improperly added
to the insurance policy.
The insurance policy at issue insures against a loss due to a
“[t]heft, including attempted theft and loss of property from a
known place when it is likely that the property has been stolen[,]”
but it does not cover a “loss caused by theft . . . [c]ommitted by
an insured.” The district court relied on the following evidence
in concluding that the theft for which the claim was submitted was
committed by Harris: (1) Bennie’s sworn petition, filed in Oklahoma
District Court, in which he averred that he should be appointed the
plaintiff’s guardian because, among other reasons, Harris “removed
all of [the plaintiff’s] personal property and jewelry valued at
over $5,000", and (2) the plaintiff’s assertion in her original
petition in this case that she “brought a claim to [the
defendant’s] attention, claiming that approximately $35,000 of her
personal property had been stolen and/or converted by Mr. Jared
Harris.”1

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No. 04-10397
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2 The plaintiff has filed the following motions: (1) Motion
to Vacate Order and Memorandum Opinion, (2) Motion to Remand and
Reverse Decision and Waiver of Appellate Brief, and (3) Motion
for Sanctions and Costs. Because we find no error in the
district court’s opinion, we also find no merit to any of the
plaintiff’s motions.
The plaintiff argues that the district court should not have
relied upon Bennie’s sworn petition because it was somehow
“incomplete”. The petition was signed by Bennie, under oath,
notarized and submitted to the court. Accordingly, we fail to see
how the petition is incomplete. Furthermore, the plaintiff is
bound by the admission in her original petition in this case that
Harris was responsible for the theft for which she submitted a
claim. We find no error in the district court’s opinion.2
The judgment of the district court is thus AFFIRMED.
AFFIRMED; MOTION TO VACATE ORDER AND MEMORANDUM OPINION,
MOTION TO REMAND AND REVERSE DECISION AND WAIVER OF APPELLATE
BRIEF, AND MOTION FOR SANCTIONS AND COSTS DENIED.

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