Benada Aluminum Products Company, Appellant, v. the Home Insurance Company, Appellee, 368 F.2d 1001 (5th Cir. 1966)

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U.S. Court of Appeals for the Fifth Circuit - 368 F.2d 1001 (5th Cir. 1966) November 18, 1966

Howard R. Hirsch, Miami, Fla., for appellant.

Henry Burnett, Miami, Fla., for appellee.

Before BROWN, BELL and DYER, Circuit Judges.


The complaint presented four separate and identified claims, I through IV inclusive, against the Defendant Insurance Company. On trial by the Court alone, the Court found the Insurer not liable under claims I, III, and IV, but liable under claim II with the issue of damages severed, F.R.Civ.P. 42(b). Plaintiff appeals with respect to the adverse decision regarding liability on claims I, III, and IV. On motion to dismiss the appeal by the Insurer, we must grant it since there has been no determination in compliance with F.R.Civ.P. 54(b).

This means that the District Court's decision on claims I, III, and IV is subject to change by it until the final judgment disposing of all claims and all counts is entered. This is without prejudice to the Appellant seeking reconsideration by the District Court for possible certification by the District Court under F.R.Civ.P. 54(b) or for certification of the question as an interlocutory appeal under 28 U.S.C.A. § 1292(b).

Appeal dismissed.