National Union Fire Insurance v. Mississippi Insurance Guaranty Ass'n

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 31, 2008
No. 06-60498 Charles R. Fulbruge III
Clerk
NATIONAL UNION FIRE INSURANCE COMPANY
Plaintiff-Appellant
v.
MISSISSIPPI INSURANCE GUARANTY ASSOCIATION
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:04-CV-340
Before REAVLEY, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
For the appeal in this diversity action, at issue was a determinative, but
as of then unanswered, question of Mississippi law. We certified that question
to the Mississippi Supreme Court pursuant to Rule 20 of the Mississippi Rules
of Appellate Procedure. Our court asked
[w]hether a solvent-carrier’s insurance policy, which provides an
“other-insurance” clause stating it is in excess to any other primary
insurance, must be exhausted under Mississippi Code Annotated
§ 83-23-123, ahead of [the Mississippi Insurance Guaranty
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-60498
Association’s (MIGA’s)] statutory coverage of the insolvent-carrier’s
primary policy.
Nat’l Union Fire Ins. Co. v. Miss. Ins. Guar. Ass’n, 507 F.3d 309, 312 (5th Cir.
2007).
The Mississippi Supreme Court accepted our certification and rendered an
en banc opinion on 4 September 2008. That court determined the National
Union Fire Insurance Company’s (NUFIC’s) policy at issue was not “a true
excess policy”; and answered the certified question as follows:
[A] solvent carrier’s insurance policy which is not a true excess
policy, and which provides an “other-insurance” clause stating it is
in excess to any other primary insurance, must nevertheless be
exhausted prior to MIGA’s statutory duty to provide coverage under
an insolvent-carrier’s primary policy.
Nat’l Union Fire Ins. Co. v. Miss. Ins. Guar. Ass’n, 990 So. 2d 174, 177 (Miss.
2008) (en banc).
NUFIC is a solvent carrier; and the NUFIC policy at issue contains an
“other-insurance” clause. Accordingly, the summary judgment in favor of MIGA
is AFFIRMED, and this matter is REMANDED to the district court for such
further proceedings, consistent with this opinion, as may be required.
AFFIRMED; REMANDED.
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