Cecil Ray Capps v. Humble Oil & Refining Co., Defendant-Third-Party v. Coating Specialists, Inc., Third-Party v. The North West Ins. Co., Intervenor-Appellant, 536 F.2d 80 (3rd Cir. 1976). · Go Syfert
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Cecil Ray Capps v. Humble Oil & Refining Co., Defendant-Third-Party v. Coating Specialists, Inc., Third-Party v. The North West Ins. Co., Intervenor-Appellant, 536 F.2d 80 (3rd Cir. 1976). Cases Citing This Book View Copy Cite
“a party cannot raise a new theory on appeal that was not presented to the court below.”
50 citation events (7 in the last 25 years) across 9 distinct courts.
Strongest positive: Hewitt v. W&T Offshore, Inc. (laed, 2023-12-01)
Treatment trajectory · 1976 → 2026 · click a year to view as-of
1976 2001 2026
Top citers, strongest first. 26 distinct citers. How cited ↗
discussed Cited as authority (rule) Hewitt v. W&T Offshore, Inc.
E.D. La. · 2023 · confidence medium
Additionally, the insurance carrier may waive such rights in its policy of insurance with the employer, or by separate agreement with the third party.”); Capps v. Humble Oil & Refining Co., 536 F.2d 80, 81 (5th Cir. 1976) (rejecting insurance carrier’s argument that it had an independent statutory right to subrogation and holding that the insurance “carrier waived any claim to the settlement between the third party and the employee”). 107 Delozier, 500 F.Supp.3d at 524 (citing Fontenot, 676 So. 2d at 564 ; Hudson, 372 F.3d at 745–46). 108 La.
discussed Cited as authority (rule) Delozier v. S2 Energy Operating, LLC
E.D. La. · 2020 · confidence medium
Mar. 21, 2007) (holding that an “employer may contractually waive its right to reimbursement of workers’ compensation benefits paid to an employee, and the insurance carrier may also waive its rights to reimbursement of benefits paid.”). 52 536 F.2d 80, 81 (5th Cir. 1976). 53 Id. (citing Allen v. Texaco, Inc., 510 F.2d 977, 978 (5th Cir. 1974). 54 See Harris v. Tenneco Oil Co., 563 So.2d 317 (La.
cited Cited as authority (rule) Henry Harris v. Jackson County, Mississippi
5th Cir. · 2017 · confidence medium
Co., 536 F.2d 80, 82 (5th Cir. 1976) (per curiam).
discussed Cited as authority (rule) Marie Reed v. Mike Edwards
5th Cir. · 2012 · confidence medium
As a general rule, “[a] party cannot raise a new theory on appeal that was not presented to the court below,” Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir.1976), but Reed contends that these are “exceptional circumstances” that allow an appellate court to hear an issue for the first time on appeal if “no further factual development is required and a miscarriage of justice would otherwise result,” Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1144-45 (5th Cir. Unit A Sept.1981).
cited Cited as authority (rule) Harbor Insurance Co. v. Urban Construction Co. And Augusta Court Co-Owners Association, Inc., Urban Construction Co.
5th Cir. · 1993 · confidence medium
Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir.1976).
cited Cited as authority (rule) Harbor Ins. Co. v. Urban Const. Co.
5th Cir. · 1993 · confidence medium
Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir. 1976).
cited Cited as authority (rule) In the Matter of James R. \Cobby\" Reed
unknown court · 1988 · confidence medium
Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir.1976).
discussed Cited as authority (rule) 46 Fair empl.prac.cas. 513, 46 Empl. Prac. Dec. P 37,914 Louise T. Smith v. Constance Horner, Director of the United States Office of Personnel Management
11th Cir. · 1988 · confidence medium
A. Disparate Impact 14 In general, "[a] party cannot raise a new theory on appeal that was not presented to the court below." Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir.1976). 4 Here, however, Smith begins by contending that she presented the disparate impact theory to the district court.
discussed Cited as authority (rule) Smith v. Horner
11th Cir. · 1988 · confidence medium
A. Disparate Impact In general, “[a] party cannot raise a new theory on appeal that was not presented to the court below.” Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir.1976). 4 Here, however, Smith begins by contending that she presented the disparate impact theory to the district court.
discussed Cited as authority (rule) Jackson Firefighters Association Local 87 v. City Of Jackson, Mississippi
5th Cir. · 1984 · confidence medium
Cf. Grubbs v. Houston First American Savings Association, 718 F.2d 694, 697 (5th Cir.1983); Delesdernier v. Porterie, 666 F.2d 116, 124-25 (5th Cir.), cert. denied, 459 U.S. 839 , 103 S.Ct. 86 , 74 L.Ed.2d 81 (1982); Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir.1976).
discussed Cited as authority (rule) Jackson Firefighters Ass'n Local 87 v. City of Jackson
5th Cir. · 1984 · confidence medium
Cf. Grubbs v. Houston First American Savings Association, 718 F.2d 694, 697 (5th Cir.1983); Delesdernier v. Porterie, 666 F.2d 116, 124-25 (5th Cir.), cert. denied, 459 U.S. 839 , 103 S.Ct. 86 , 74 L.Ed.2d 81 (1982); Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir.1976).
cited Cited as authority (rule) Linda Miller and Roger Miller v. Hartwood Apartments, Ltd.
5th Cir. · 1982 · confidence medium
Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir. 1976).
cited Cited as authority (rule) Lucille M. Burdue v. United States Steel Corporation, and the American Ship Building Company, and Home Insurance Company
6th Cir. · 1982 · confidence medium
Capps v. Humble Oil and Refining Co., 536 F.2d 80, 81 (5th Cir. 1976); Allen v. Texaco, Inc., 510 F.2d 977, 978-81 (5th Cir. 1975).
cited Cited as authority (rule) Richard D. Snapp v. United States Postal Service-Texarkana Management Sectional Center, William M. Capshaw, Manager, Postmaster
5th Cir. · 1982 · confidence medium
United States v. $22,640.00 in United States Currency, 615 F.2d 356, 359 (5th Cir. 1980); Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir. 1976).
discussed Cited as authority (rule) Donnie A. Leblanc v. Petco, Inc. v. American Home Assurance Company, Intervenor-Appellant (2×)
5th Cir. · 1981 · confidence medium
See, e. g., Petro-Weld v. Luke, 619 F.2d 418, 421 (5th Cir. 1980) (although the waiver precluded reimbursement for the benefits already paid, it did not prevent future compensation benefits determined according to the statutory set-off); Capps v. Humble Oil & Refining Co., 536 F.2d 80, 81-82 (5th Cir. 1976) (carrier which had agreed to waive its rights of subrogation could not avoid the consequences of its agreement, because it had no other rights independent of the right of subrogation for reimbursement); Stewart v. Cran-Vela Rental Co., 510 F.2d 982, 984-985 (5th Cir. 1975) (waiver of subrog…
cited Cited as authority (rule) Fmc Finance Corporation v. Albert D. Murphree, Jr. And Dorothy E. Murphree
5th Cir. · 1980 · confidence medium
Golden Oil Co. v. Exxon Co., U. S. A., 543 F.2d 548 , 551 n. 3 (5th Cir. 1976); Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir. 1976).
discussed Cited as authority (rule) Mendel Schwimmer D/B/A Supersonic Electronics Co. v. Sony Corporation of America and Sony Corporation
2d Cir. · 1980 · confidence medium
Grace Towers Tenants Ass’n v. Grace Housing Development Fund Co., 538 F.2d 491, 495 (2d Cir. 1976); Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir. 1976); National Equipment Rental, Ltd. v. Stanley, 283 F.2d 600, 603 (2d Cir. 1960); Parenzan v. Iino Kaiun Kabushiki Kaisya, 251 F.2d 928, 930 (2d Cir.), cert. denied sub nom., International Terminal Operating Co. v. Iino Kaiun Kaisha, Ltd., 356 U.S. 939 , 78 S.Ct. 781 , 2 L.Ed.2d 814 (1958).
cited Cited "see" Swist Ex Rel. Green v. Barnhart
5th Cir. · 2006 · signal: see · confidence high
See Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir.1976) (“A party cannot raise a new theory on appeal that was not presented to the court below.”).
cited Cited "see" Dorothy J. Fine v. Gaf Chemical Corporation
5th Cir. · 1993 · signal: see · confidence high
See Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir.1976).
cited Cited "see" Fine v. GAF Chemical Corp.
5th Cir. · 1993 · signal: see · confidence high
See Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir. 1976).
cited Cited "see" Rickey Hill v. City of Pontotoc, Mississippi, City of Pontotoc, Mississippi
5th Cir. · 1993 · signal: see · confidence high
See Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir.1976) (noting that court generally will not rule on issues not presented to the district court).
cited Cited "see" In Re Cooper/t. Smith Elizabeth Ross Abshire, Etc. v. Gnots-Reserve, Inc., Sandra Marie Cormier, Etc. v. American Commercial Lines
5th Cir. · 1991 · signal: see · confidence high
See Capps v. Humble Oil & Ref., Co., 536 F.2d 80 , 82 (5th Cir.1976); Coleman v. Associated Pipeline Contractors, Inc., 444 F.2d 737, 740 (5th Cir.1971).
cited Cited "see" George S. McLean v. International Harvester Company
5th Cir. · 1990 · signal: see · confidence high
See, Capps v. Humble Oil Co., 536 F.2d 80 , 82 (5th Cir.1976); Wolf v. Frank, 477 F.2d 467, 475 (5th Cir.1973) (cert. denied, 414 U.S. 975 , 94 S.Ct. 287 , 38 L.Ed.2d 218 (1973)).
cited Cited "see, e.g." Peter N. White v. Zvi Grinfas, Eva Grinfas, Asher Engler and Josephine Engler
5th Cir. · 1987 · signal: see, e.g. · confidence medium
See, e.g., Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir.1976).
cited Cited "see, e.g." Peters v. Speeflo Manufacturing Corp.
E.D. La. · 1984 · signal: see also · confidence low
See also Capps v. Humble Oil & Refining Co., 536 F.2d 80 (5th Cir.1976).
cited Cited "see, e.g." SAL HASKOURI v. UNIVERSITY OF TEXAS AT BROWNSVILLE
unknown court · signal: see, e.g. · confidence medium
See, e.g., Capps v. Humble Oil & Refining Co., 536 F.2d 80, 81 (5th Cir. 1976); Poston v. Carake, 378 F.2d 439 , 442-43 (5th Cir. 1967).
Retrieving the full opinion text from the archive…
Cecil Ray Capps
v.
Humble Oil and Refining Company, Defendant-Third-Party v. Coating Specialists, Inc., Third-Party v. The North West Insurance Company, Intervenor-Appellant
75-4302.
Court of Appeals for the Third Circuit.
Jul 29, 1976.
536 F.2d 80
Published

536 F.2d 80

Cecil Ray CAPPS, Plaintiff-Appellee,
v.
HUMBLE OIL AND REFINING COMPANY, Defendant-Third-Party
Plaintiff-Appellee,
v.
COATING SPECIALISTS, INC., Third-Party Defendant,
v.
The NORTH WEST INSURANCE COMPANY, Intervenor-Appellant.

No. 75-4302

Summary Calendar.[*]

United States Court of Appeals,
Fifth Circuit.

July 29, 1976.

Roger J. Larue, Jr., Donald V. Organ, New Orleans, La., for North West Ins. Co.

E. Burt Harris, Charles B. Lovering, New Orleans, La., for Humble Oil.

Harvy J. Lewis, New Orleans, La., for C. R. Capps.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, Chief Judge, GEWIN and MORGAN, Circuit Judges.

PER CURIAM:

[*~80]1

This is an appeal from an order dismissing the intervention of appellant North West Insurance Company. We affirm.

2

By contract dated July 1, 1963 Coating Specialists, Inc. agreed to perform certain construction work on Humble Oil and Refining Company's outer continental shelf platform. The contract obligated Coating to carry certain types of workmen's compensation and employer's liability insurance, and further provided that Coating and Coating's underwriters waive all rights of subrogation against Humble and its underwriters.

3

North West Insurance Company provided Coating with workmen's compensation and employer's liability insurance. As required, North West agreed to waive its right of subrogation against Humble. Coating paid North West an additional premium in consideration for this agreement.

4

In September 1971 Cecil Ray Capps, a Coating employee, fell and severely injured his back while performing his duties on a Humble offshore drilling platform off the coast of Louisiana. North West made compensation payments to Capps and medical payments on his behalf totaling more than $21,000.

5

On June 30, 1972 Capps filed this damage suit against Humble, contending that his injuries had been caused by the oil company's negligence. North West, by motion dated September 25, 1972, sought to intervene as plaintiff. In its motion, North West alleged that:

6

. . . as the compensation insurer of the employer of the original plaintiff herein, it is subrogated to the rights of the employer against the defendant to be indemnified for the amounts paid to and on behalf of the original plaintiff as disability benefits and medical expenses . . .

7

The trial court permitted North West to intervene, and the insurance company filed an Intervenor's Complaint in which it again alleged that it had paid disability benefits to Capps and had incurred medical expenses on his behalf for which it was legally subrogated to the rights of Capps for indemnity from Humble.

8

Capps and Humble subsequently reached an amicable settlement, but the settlement was predicated upon the dismissal of the intervention filed on behalf of North West. Accordingly, both parties moved to dismiss the claims of the intervenor on the ground that Coating, the intervenor's insured, waived by contract all rights of subrogation against Humble. Relying on our recent decision in Allen v. Texaco, Inc., 510 F.2d 977 (5th Cir. 1974), the trial court dismissed North West's complaint.

9

On appeal, to avoid the consequences of its agreement to waive subrogation rights, North West argues that it has certain "other rights," independent of the right to subrogation, which entitle it to reimbursement by Humble. In Allen, on almost identical facts we rejected a similar argument:

10

An employee was injured on the job and received compensation benefits under the Longshoremen's and Harbor Workers' Compensation Act. The compensation carrier had waived rights of subrogation as to any claim the employee might have against a third party who caused the injury. The employee sued the third party and a settlement was reached. Does the waiver of subrogation rights by the compensation carrier bar a lien against and participation in the proceeds of the settlement between the employee and the third party, to which the carrier would otherwise be legally entitled? The district court held there to be a bar and dismissed the carrier's claim. The compensation carrier argues that the waiver only bars it from filing a suit against the third party as subrogee of the employee's claim, but does not bar its lien against the suit proceeds or settlement proceeds where the employee pursues the claim against the third party and receives a settlement or judgment. We decide the workmen's compensation carrier waived any claim to the settlement between the third party and the employee. We affirm the district court.

11

510 F.2d at 978 (Emphasis supplied).

[*81]12

In addition, North West asserts for the first time on appeal that it may seek reimbursement from Capps, the recipient of the compensation, notwithstanding its waiver of subrogation rights. North West never advanced such a claim below. A party cannot raise a new theory on appeal that was not presented to the court below. Wolf v. Frank, 477 F.2d 467 (5th Cir. 1973), cert. denied, 414 U.S. 975, 94 S.Ct. 287, 38 L.Ed.2d 218 (1973); Autrey v. Williams and Dunlap, 343 F.2d 730 (5th Cir. 1965).

13

AFFIRMED.

*

Rule 18, 5th Cir., Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5th Cir. 1970, 431 F.2d 409, Part I