United States District Court, N.D. Mississippi, Aberdeen Division
Court has previously denied Defendants' motions for
summary judgment and reconsideration because it found that
the agreements entered into between the Chickasaw County
School District and Defendants did not waive subrogation
rights for certain property damaged in a fire. Thus, the
School District's insurer, Liberty Mutual, retained
rights to recover for those damages and could continue their
suit against Defendants.
now ask this Court for permission to appeal those orders
[Doc. Nos. 114, 125]. Defendants further request this Court
recommend the Fifth Circuit Court of Appeals certify the
waiver of subrogation question to Mississippi Supreme Court.
For the foregoing reasons, the Court finds the motion 
should be granted.
2015, nonparty Chickasaw County School District entered into
a contractual agreement ("Agreement" or "the
Agreement") with Defendant Sullivan Enterprises to
perform window restoration work on the Houlka Attendance
Center. See Affidavit of Dr. Betsy Collums [Doc. No.
107-1] at ¶ 7; Document A101-2007, Agreement between
Chickasaw County School District and Sullivan Enterprises,
Inc. [Doc. No. 107-2, Exhibit A]. On July 30, 2015, while
construction work was ongoing a fire began that consumed the
entire Houlka Attendance Center Building. Collums Aff. at
result of this fire, Plaintiff Liberty Mutual, the school
district's property insurer, paid the school district
$4.3 million for the damages caused to the building.
Affidavit of Jay Goldstein [Doc. No. 107-4] at ¶ 13.
Liberty Mutual then brought this subrogation action against
the Defendants, alleging that their negligence started the
fire and seeking to recover insurance proceeds it paid out to
the School District.
their motion for summary judgment, Defendants argued that the
Agreement between Sullivan Enterprises, the contractor, and
the School District provided a waiver of subrogation for the
claims at hand. This Court found that the waiver of
subrogation provision only extended to damages of property
considered to be "Work" property as defined by the
Agreement. As a result, the Agreement did not prevent Liberty
Mutual from seeking recovery for damages to non-Work
property. Therefore, this Court denied Defendants' motion
with respect to Liberty Mutual's claims for those
reach that decision, this Court had to decide whether the
scope of the provision was determined by the nature of
property damaged-an approach often described as the
"minority" approach and described by this Court as
the "damage type" approach-or by which insurance
policy paid for the damages, described as the
"majority" or "insurance source"
approach. See Trinity Universal Ins. Co. v. Bill Cox
Const., 75 S.W.3d 6, 11-12 (Tex. Civ. App. 2001). The
Court found the "damage type" approach applicable
and therefore found that the waiver of subrogation provision
did not prevent Liberty Mutual from seeking to recover
damages it paid for non-Work property.
result, the Court granted Defendants' motion with respect
to damages for Work property and denied the motion with
respect to damages for non-Work property. Defendants moved
for reconsideration of that order, which this Court denied.
Defendants now seek to appeal those orders.
U.S.C. § 1292(b) Standard
U.S.C. § 1292(b) provides that a district court may
grant a party permission to file an appeal of an otherwise
non-appealable order when the Court finds the order: (1)
involves a controlling question of law; (2) the question must
be one where there is a substantial ground for a difference
of opinion; and (3) an immediate appeal may materially
advance the ultimate termination of litigation. To certify an
order for interlocutory appeal, all three criteria must be
met. Aparicio v. Swan Lake, 643 F.2d 1109, 1110 n.2
(5th Cir. Unit A Apr. 1981). Such appeals are "not
favored" and courts should "strictly construe
statutes permitting them." Thibodeaux v. Vamos Oil
& Gas Co., 487 F.3d 288, 292 (5th Cir. 2007) (citing
Complaint of Ingram Towing Co., 59 F.3d 415, 515
(5th Cir. 1995)).
there a controlling question of law?
Court must first consider whether there is a controlling
question of law. While section 1292(b) "authorizes
certification of orders for interlocutory appeal, not
certification of questions, " it is nonetheless
"helpful if the district judge frames the controlling
question(s) that the judge believes is presented by the order