Grubbs v. Gulf International Marine, Inc. ( 1993 )

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 91-3220
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JONATHAN P. GRUBBS,
Plaintiff-Appellant,
VERSUS
GULF INTERNATIONAL MARINE, INC., ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
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(February 24, 1993)
ON PETITION FOR REHEARING
(Opinion October 19, 1992, 5th Cir., 1992, _____F.2d._____)
Before KING, JOHNSON, AND DAVIS, Circuit Judges.
PER CURIAM:
We decided in this case that marine protection and indemnity
insurance falls within the ocean marine insurance exclusion of the
Louisiana Direct Action Statute, LSA-R.S. § 22:655 (West Supp.
1992). In reaching this conclusion, we relied primarily on the
Louisiana Supreme Court's reasoning in an analogous case, Backhus
v. Transit Cas. Co., 549 So. 2d 283 (La. 1989). The Louisiana high
court held that marine protection and indemnity insurance falls
within the ocean marine insurance exclusion of the Louisiana
Insurance Guaranty Association Fund (LIGA), LSA-R.S. § 22:1375-1394
(West 1978 & Supp. 1992). Backhus, 549 So. 2d at 289.
Since we issued our opinion, two intermediate Louisiana
appellate courts have held that an injured party may bring a direct
action under the Louisiana Direct Action Statute on a marine
protection and indemnity policy.1 When a state's highest court has
not decided a state law question, we must give due consideration to
the opinions of intermediate state appellate courts on that
question. See Lavespere v. Niagara Mach. & Tool Works, Inc., 920
F.2d 259, 260 (5th Cir. 1990). The above intermediate Louisiana
appellate court decisions cast some doubt on how the Louisiana
Supreme Court would resolve this issue. Thus, we believe it
appropriate to exercise the certification privilege granted by Rule
XII of the Rules of the Supreme Court of Louisiana.
CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT TO THE SUPREME COURT OF LOUISIANA:
TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE
SUPREME COURT OF LOUISIANA:
I. Style of the Case
The style of the case that we certify is Jonathan P. Grubbs,
Plaintiff-Appellant, versus Gulf International Marine, Inc., et
al., Defendants-Appellees, No. 91-3220, United States Court of
Appeals for the Fifth Circuit, on appeal from the United States
District Court for the Eastern District of Louisiana.
1
See Hae Woo Youn v. Maritime Overseas Corp., 605 So. 2d 187
(La. Ct. App. 5th Cir. 1992); Treadway v. Certain Underwriters at
Lloyds, No. 92-C-1500 (La. Ct. App. 4th Cir. Sept. 15, 1992).
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II. Statement of Facts
Our opinion No. 91-3220 (5th Cir. October 19, 1992) recites
this case's facts.
III. Question Certified
Whether the Louisiana Direct Action Statute, LSA-R.S. 22:655
(West Supp. 1992) permits an injured party to maintain a direct
action against a marine protection and indemnity insurer.
IV. Conclusion
We disclaim any intent that the Louisiana Supreme Court
confine its reply to the precise form or scope of the legal
question that we certify. The answer provided by the Louisiana
Supreme Court will determine the issue on appeal in this case. We
transfer to the Louisiana Supreme Court this case's record and the
appellate briefs in this case with our certification.
We GRANT Grubbs's petition for rehearing, WITHDRAW our
previous opinion No. 91-3220, and CERTIFY the question stated above
to the Louisiana Supreme Court.
3