The Court of Appeals for the Fifth Circuit: A Legal Analysis and Statistical Review of 2005-2006 Insurance Decisions

he Fifth Circuit Court of Appeals decided and published twenty-four insurance-related appeals between June 2005 and May 2006 from cases originating in seven federal district courts. Like petitioners in prior years, the overwhelming majority of the 2005-2006 appellants petitioned the court of appeals to reverse or vacate district courts\u27 adverse summary judgments as well as the lower courts\u27 allegedly questionable interpretations of various insurance contracts. Most of the controversies involved familiar procedural and substantive questions of law, but the Fifth Circuit also decided many questions of fact. Furthermore, several preemption questions and disputes over subject matter jurisdiction appeared among the decisions. More significantly, the Fifth Circuit decided numerous class action disputes during the 2004-2005 term. During the 2005-2006 term, however, the appellate court resolved and published only one class action or class certification dispute. To be sure, that was an unexpected result as Congress enacted the Class Action Fairness Act of 2005 that, by all objective measures, will generate a lot of substantive and procedural controversies and uncertainties. On the other hand, given the severe after-effects of Tropical Storm Allison and Hurricane Katrina, the court of appeals resolved significantly more flood-related insurance disputes during this session. Regardless of the ancillary procedural issues, the underlying substantive conflicts in those cases concerned whether insurers breached some alleged duties under flood insurance contracts. For sure, the court of appeals spent the overwhelming majority of its time and resources answering the familiar and frequently litigated substantive questions of whether insurers were liable for refusing to pay first party coverage and indemnification claims in a timely manner and whether insurers were liable for a “bad-faith” or negligent refusal to defend insureds against third party claims