Rule 60(b)(5) and a co-defendant’s appeal

Lowry Development LLC v. Groves & Assocs. Insurance involved a real estate developer who sued its insurer about coverage for wind damage, and alternatively, its insurance agent for negligence.  No. 11-60670 (Aug. 3, 2012).  The district court granted summary judgment for the developer against the insurer (thereby mooting the claim against the agent), which the Fifth Circuit reversed.  Id. at 3.   The developer then sought to reinstate its claim against the agent.  The Court found that the agent’s dismissal was “based on an earlier judgment that has been reversed or vacated” and thus came within Fed. R. Civ. P. 60(b)(5).  The agent argued that the insurer should have taken a protective appeal at the time of the original dismissal, but the Court, “[a]cknowledging that [plaintiff’s Rule 60(b) motion looks like the protective appeal it failed to file,” found no abuse of discretion in the district court’s decision to grant the motion.  Id. at 10.