First Amer Title Ins v. First Trust Nat'l

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MAY 18, 2004
April 21, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 03-60348
_____________________
In The Matter Of: BILOXI CASINO BELLE INC
Debtor
------------------------------------------
FIRST AMERICAN TITLE INSURANCE CO
Appellant
v.
FIRST TRUST NATIONAL ASSOCIATION
Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
Before KING, Chief Judge, and JONES and SMITH, Circuit Judges.
KING, Chief Judge:
The bankruptcy court held that the title insurance policy
issued to Appellee First Trust National Association (“First
Trust”) insured First Trust’s security interest in a casino boat
being constructed at a location remote from the insured land
where the boat would eventually be moored. The district court
affirmed. Finding that the policy does not provide coverage, we
reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
This insurance coverage dispute has its roots in Belle
Casinos, Inc.’s (“BCI’s”) failed effort to build two gambling
developments in Mississippi. Since 1990, the state has permitted
gambling on riverboat casinos located on the waters of the
Mississippi River and on vessels moored in the coastal waters
south of the state’s three southern-most counties. See, e.g.,
MISS. CODE ANN. §§ 19-3-79, 75-76-1 et seq., 87-1-5, 97-33-1
(2003). BCI and its wholly owned subsidiary Biloxi Casino Belle,
Inc. (“BCBI”) planned to operate one casino along the Mississippi
River in Tunica and the other casino along the waterfront in
Biloxi. The Tunica casino boat was to be constructed on-site,
but the Biloxi boat--named the “Biloxi Belle II”--was to be built
some miles away in Gulfport and then floated to Biloxi, where
casino-related improvements and structures would be built on the
waterfront parcels that had been leased for this purpose.
To finance the casino projects, BCI issued $75 million in
mortgage notes underwritten by Bear Stearns & Co. The notes were
issued pursuant to an indenture executed between BCI as issuer
and First Trust as indenture trustee for holders of the mortgage
notes. BCI loaned the proceeds of the mortgage notes to BCBI,
and in return BCBI gave BCI a promissory note. To secure the
2
loan, BCBI executed in BCI’s favor a Leasehold Deed of Trust,
Security Agreement and Fixture Filing with Assignment of Rents
(“Leasehold Deed of Trust”) on the Biloxi project, as well as
various other security instruments. The Leasehold Deed of Trust
gave BCI security interests in most of the realty (including
fixtures) and personalty associated with the casino project,
including “ships” and “boats.” BCI assigned its interests in
these instruments to First Trust, the indenture trustee.
BCBI deposited the proceeds of the loan into two escrow
accounts at First National Bank of Commerce (“First National
Bank”) under a Disbursement and Escrow Agreement between BCI as
lender, BCBI as borrower, and First National Bank as escrow
agent. BCI’s rights under this Disbursement and Escrow Agreement
were likewise assigned to First Trust.
The deal documents contemplated several devices that would
protect the interests of First Trust (and ultimately the
interests of the holders of the mortgage notes for whom First
Trust acted as indenture trustee). The documents required
contractors’ performance bonds, for instance, and provided that
contractors would execute lien waivers. Importantly, they also
called for First Trust to acquire title insurance from Appellant
First American Title Insurance Company (“First American Title”)
to insure (at least some of) the interests securing the loan that
was paying for the construction of the casino project. As noted
3
earlier, the Leasehold Deed of Trust and other security
instruments gave First Trust a security interest in almost all of
the property, both real and personal, associated with the Biloxi
casino project. The key issue in this case is whether the title
insurance policy covers only First Trust’s security interests in
the realty component of the project or instead whether the
policies also protect First Trust’s security interests in the
Biloxi Belle II while it was being constructed.
First Trust was not directly involved in the negotiations
leading to the issuance of the title insurance policies but
instead left the matter to Bear Stearns, which in turn was
represented by the law firm of Gibson, Dunn & Crutcher. First
American Title was represented by David Wheeler, a Biloxi-based
attorney. Wheeler gave First Trust a binding commitment to issue
title insurance on or around October 12, 1993, the closing date
of the loan transactions described above. About a month after
the closing, Wheeler sent Gibson Dunn a copy of the policies.
The title insurance policy at issue here is the 1990 version of
the standard-form Loan Policy developed by the American Land
Title Association.1 The policy insured First Trust against,
inter alia, losses that would occur if another lien (including in
some cases a mechanic’s lien) took priority over First Trust’s
1
The American Land Title Association and the Dixie Land
Title Association have both filed amicus briefs in this case, in
support of First American Title.
4
insured security interest. The policy also obligated the insurer
to pay expenses associated with defending the title and the
insured security interest. Attached to the standard forms were
several schedules and endorsements that set forth policy-specific
details. Of particular note is Item 4 on Schedule A, which
identified “the instruments creating the estate or the interest
in real estate which is hereby insured.” In the original version
of the policy that Wheeler sent to Gibson Dunn, Item 4 cross-
referenced a rider that listed not only the Leasehold Deed of
Trust--which all sides agree was supposed to be listed--but also
various financing statements (Mississippi form UCC-1) that
described, using language generally the same as that used in the
Leasehold Deed of Trust, many broad categories of BCBI personalty
and fixtures in which First Trust held a security interest. Like
the Leasehold Deed of Trust, the UCC-1 forms cover “ships” and
“boats.” The attachments to the UCC-1s included descriptions of
the real property associated with the casino project, and the
forms were recorded in the county deed-of-trust books.
In the months that followed Gibson Dunn’s receipt of the
insurance policy, Gibson Dunn and Wheeler corresponded regarding
numerous corrections to the forms. In April 1994, Wheeler sent
the revised pages of the policy to Gibson Dunn. In addition to
making the changes requested by Gibson Dunn, Wheeler noted that
the revised copy eliminated the reference to the UCC-1 financing
statements, leaving the Leasehold Deed of Trust as the only
5
document listed in Schedule A, Item 4. In the current
litigation, the parties take sharply differing views of how to
characterize these exchanges. According to First American Title,
the commitment documents negotiated by the parties concerned only
land, and the inclusion of the financing statements in the
initial version of the policy documents was simply a drafting
mistake that Wheeler corrected with Gibson Dunn’s approval.
According to First Trust, in contrast, the inclusion of the UCC-
1s was not a mistake at all, since the title insurance policies
were always intended to cover more than just the real estate
associated with the Biloxi project. Or, says First Trust, if
their inclusion was initially a mistake, Wheeler could not amend
the policy without First Trust’s consent, which the Gibson Dunn
attorneys did not give him and were not authorized to give him.
In any event, it seems that First Trust only saw the later
version of the policy and did not learn of the initial version
until years later when, in connection with this case, First
American Title submitted it as an attachment to its complaint.
Meanwhile, construction of the casino boats was running over
budget. The contractor for the casino boats, Charles N. White
Construction Company (“White Construction”), continued to receive
payments from the accounts at First National Bank despite the
overruns. First Trust eventually put a stop to the payments and
later sued First National Bank for alleged incompetence in the
6
latter’s role as disbursement and escrow agent.2 White
Construction, which now claimed that it was still owed payments
for work it had already performed, filed a Mississippi statutory
watercraft lien on the still-uncompleted Biloxi Belle II in June
1994. The next month, White Construction sued BCI in Mississippi
state court to enforce its lien. BCI and BCBI then filed Chapter
11 bankruptcy petitions in August. A number of lawsuits among
BCI, BCBI, First Trust, White Construction, and the principals of
various of those parties ensued over the course of the next few
years.
One paragraph of White Construction’s watercraft-lien
complaint against BCI listed First Trust as a party that had a
potentially competing interest in the Biloxi Belle II. In
October 1994, First Trust sent First American Title a letter
giving notice of the lawsuit. First American Title acknowledged
the letter the next month and expressed its understanding that
First Trust was not requesting a defense. Some two years later,
in December 1996, First Trust requested a defense in the White
Construction litigation, which had by now been removed to federal
court and referred to the bankruptcy court. First American Title
agreed to provide a defense, but under a reservation of its
rights to deny coverage. First Trust rejected First American
2
The litigation eventually reached this court and is
further described in First Trust National Ass’n v. First National
Bank of Commerce, 220 F.3d 331 (5th Cir. 2000).
7
Title’s tendered counsel, however, asserting that the reservation
of rights created a conflict of interest. First Trust wanted
First American Title to pay for counsel of the former’s choice.
First American Title therefore filed an adversary complaint in
the bankruptcy court in March 1997, seeking a declaratory
judgment that it was not responsible for any losses or expenses
associated with White Construction’s claims against First Trust.
First Trust counterclaimed, seeking payment of its expenses in
defending against White Construction’s claims and indemnification
for any losses that would occur if White Construction’s lien
primed First Trust’s security interest in the Biloxi Belle II.
Most of the litigation stemming from the failed casino
projects came to a close in July 1997 with the filing and the
bankruptcy court’s approval of the BCI/BCBI Amended Joint
Liquidating Plan (the “Plan”). Under the Plan, White
Construction received $1.7 million for its claims. The insurance
coverage dispute between First Trust and First American Title
continued, however. In August 1999, the bankruptcy court granted
First American Title’s motion for partial summary judgment,
absolving First American Title of any liability for litigation
expenses incurred before First Trust’s December 1996 request for
a defense. In March 2000, the parties filed cross-motions for
summary judgment regarding First American Title’s liability for
First Trust’s post-December 1996 defense expenses and the $1.7
million paid to White Construction, money that otherwise would
8
have gone to First Trust’s noteholders. The bankruptcy court
denied First American Title’s motion, granted First Trust’s
motion, and awarded First Trust over $1.4 million.3 First
American Title appealed the bankruptcy court’s decision to the
district court, which affirmed the bankruptcy court’s judgment in
all respects. First American Title now appeals to this court.4
II. ANALYSIS
The bankruptcy court granted First Trust’s motion for
summary judgment and denied First American Title’s cross-motion.
We review the decision de novo. See Williams v. Int’l Bhd. of
Elec. Workers, Local 520 (In re Williams), 298 F.3d 458, 461 (5th
Cir. 2002). Summary judgment is appropriate when there is no
3
This amount is composed of the $1.7 million that White
Construction received under the Plan, plus interest of
approximately $300,000, plus $222,000 in post-December 1996
litigation expenses, less $800,000 that First Trust received from
Chicago Title Insurance Company for certain claims related to the
Tunica project.
4
Bankruptcy jurisdiction exists under 28 U.S.C.
§ 1334(b) in this case because White Construction settled its
lien priority litigation against First Trust in exchange for
First Trust’s assignment of any recovery in this case to the
BCI/BCBI liquidating trust (of which First Trust is liquidating
trustee) for the benefit of unsecured creditors. See Citizens
Bank & Trust Co. v. Case (In re Case), 937 F.2d 1014, 1016-20
(5th Cir. 1991) (upholding bankruptcy jurisdiction over a suit on
a note that the debtor executed as part of the bankruptcy plan’s
settlement of existing debts). The suit thus “pertain[s] to the
implementation or execution of the plan,” Bank of La. v. Craig’s
Stores of Tex., Inc. (In re Craig’s Stores of Tex., Inc.), 266
F.3d 388, 390 (5th Cir. 2001). Jurisdiction does not exist
merely by virtue of the fact that an asset of the bankruptcy
estate (namely the Biloxi Belle II) is the subject of this
insurance coverage dispute.
9
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. FED. R. CIV. P. 56(c); BANKR. R.
7056 (applying Rule 56 to adversary bankruptcy proceedings).
First American Title offers several different theories
according to which we might reverse the judgments below. It
argues that coverage is barred by Exclusion 3(a) of the policy
because First Trust created White Construction’s lien by
mismanaging disbursements from the escrow accounts, and it
additionally claims that First Trust never gave proper notice of
White Construction’s claims. For its part, First Trust denies
those contentions. Most of the parties’ energies, however, are
devoted to the language of the title insurance policy, and we
find that we can decide the case on that basis.
Under Mississippi law, which the parties agree applies to
this contract, the plain terms of an insurance policy are
enforced as written. See Lewis v. Allstate Ins. Co., 730 So. 2d
65, 68 (Miss. 1998). If, however, the terms are ambiguous, then
doubts are resolved against the drafter and in favor of coverage.
See J&W Foods Corp. v. State Farm Mut. Auto. Ins. Co., 723 So. 2d
550, 552 (Miss. 1998).5 A policy is ambiguous if it “can be
5
It is sometimes said that the usual rule of construing
ambiguities against the insurer should have less force in the
context of title insurance loan policies, since those policies
were originally created by the lenders, not the title insurers.
See Michael F. Jones & Rebecca R. Messall, Mechanic’s Lien Title
Insurance Coverage for Construction Projects: Lenders and
Insurers Beware, 16 REAL EST. L.J. 291, 306-07 (1988).
Mississippi law does not appear to have recognized such an
10
interpreted to have two or more reasonable meanings.” Id. Here,
we believe that the title insurance policy is unambiguous on the
question whether First Trust’s interests in the casino vessel
being constructed in Gulfport are covered.
First Trust’s asserted basis for coverage is the policy’s
seventh insuring clause. That portion of the policy states that
First American Title Insurance Company . . . insures
. . . against loss or damage . . . incurred by reason of:
. . .
7. Lack of priority of the lien of the insured
mortgage over any statutory lien for services,
labor or material . . . arising from an
improvement or work related to the land
. . . .
(emphasis added).
One point of contention in this case is whether White
Construction’s lien arose from an improvement or work “related to
the land.” According to the policy, the “land” means “the land
described or referred to in Schedule A, and improvements affixed
thereto which by law constitute real property” but does not
include property beyond the bounds of the area described in
Schedule A. First Trust contends that construction of the casino
boat, which was to be moored next to the land in Biloxi
indefinitely, is “related to the land,” while First American
Title, emphasizing that the unfinished boat never left Gulfport
exception to the usual rule, however. In any event, we conclude
that the policy is unambiguous, so we do not employ this rule of
construction in this case.
11
and allegedly was not intended to be a fixture, argues that it is
not “related to the land.” That is, the parties dispute whether
White Construction’s lien is the type of risk that is covered
under insuring clause 7. But coverage would also be unavailable
under the policy if the interest said to be insured--namely,
First Trust’s security interest in the Biloxi Belle II--is not
within the term “insured mortgage.” We find this latter inquiry
to be determinative of the case.
The “insured mortgage” for purposes of this particular
policy is specified by reference to Schedule A, the customized
schedule that sets forth policy-specific matters such as the
amount of the policy, the effective date, and so forth. For
present purposes, the crucial part of Schedule A is Item 4, which
states:
4. The instruments creating the estate or the interest
in real estate which is hereby insured are
described as follows:
SEE ATTACHED RIDER
When one turns to the attached rider, one finds first a reference
to the Leasehold Deed of Trust executed between BCI and BCBI and
later assigned to First Trust. As described earlier, in the
first version of this rider, but not in the later version, there
are also references to several UCC-1 financing statements and
other documents. The financing statements describe First Trust’s
security interest in various items of BCBI’s property, including
12
the Biloxi Belle II, and they also attach descriptions of the
Biloxi parcels.
The parties sharply disagree over whether the later version
of the policy is the legally effective version or is instead a
failed attempt to amend the earlier, legally binding policy. If
the first version of the policy--the version that includes the
references to the UCC financing statements--is the binding
version of the insurance policy, then (says First Trust) there
can be no doubt but that First Trust’s interest in the casino
boat is insured under the policy. First Trust also argues,
however, that its security interest in the casino boat is covered
even without the UCC financing statements; in so arguing, First
Trust relies on the fact that the Leasehold Deed of Trust gives
it a security interest in the casino boat (along with much other
BCBI property) as well as in the land. First American Title
argues that First Trust’s security interest in the casino boat--
which is not an interest in land--is not covered under either
version of the policy.
We hold that the title insurance policy does not cover First
Trust’s security interest in the casino boat being constructed in
Gulfport. Even if Wheeler did not successfully change the rider
to remove the references to the UCC financing statements, First
Trust’s security interest in the boat and all of the other
personalty described in the financing statements cannot be the
“insured mortgage” that the title insurance policy protects.
13
Tellingly, Item 4 on Schedule A specifies the insured mortgage by
referring to “[t]he instruments creating the estate or the
interest in real estate which is hereby insured.” This language
poses two serious problems for First Trust’s attempt to use the
UCC-1s to bring the boat within the policy.
First, the language refers to “the estate or the interest in
real estate.” The Biloxi Belle II, under construction on a barge
in Gulfport, was not real estate.6 It is conceivable, we
suppose, that the qualifier “in real estate” could be read to
6
Mississippi law provides that otherwise-prohibited
gambling is legal when it is conducted on a “cruise vessel”
located in the waters south of Mississippi’s three southern-most
counties or on a “vessel” located along the Mississippi River.
See MISS. CODE ANN. §§ 87-1-5, 97-33-1. A “cruise vessel” like the
Biloxi Belle II must satisfy certain Coast Guard regulations.
Id. § 27-109-1. Although the Biloxi Belle II would not go
anywhere in the course of its normal gaming operations, it would
be capable of being unmoored and towed away if necessary. It
seems unlikely that the Biloxi Belle II would have become a
fixture even when it was moored along the Biloxi waterfront--
though the record is not well developed on this point--but in any
event the boat undisputably never was so affixed. The situation
can be quite different with respect to the casino “vessels”
located along the Mississippi River, which can be somewhat less
boat-like. See id. (distinguishing between “vessel” and “cruise
vessel”); see also Ben H. Stone et al., Site Approval of Casinos
in Mississippi--A Matter of Statutory Construction, or a Roll of
the Dice?, 64 MISS. L.J. 363 (1995) (explaining the differences
between the regulatory regimes governing the two types of
casinos). Therefore, the apparent admission of a First American
Title agent that the company has insured at least two casinos
along the Mississippi River is inapposite. Indeed, the
deposition pages to which First Trust directs us actually
undercut First Trust’s argument in that the agent states that the
two casinos were insurable because they were built directly on
the land and were “pretty much fixture[s].” The agent also said
that the boats had to be specifically identified as covered
“because it’s kind of excluded by the terms of the policies.”
14
apply only to “interest” but not “estate,” so that Item 4 would
insure instruments creating an “interest in real estate” but an
“estate” in any type of property. But by far the more natural
reading is that “in real estate” modifies both “estate” and
“interest.” The language thus embraces fee estates, leasehold
estates, security interests, and so on, as long as those property
interests are in real estate. This reading is powerfully
confirmed, moreover, when one considers other portions of the
policy, which give no indication of an intent to cover interests
in personalty and every indication of insuring interests in land.
Cf. J&W Foods Corp., 723 So. 2d at 552 (explaining that the court
should consider the whole insurance policy, construing one clause
in light of others). From the insuring clauses to the exclusions
to Schedule A, the policy is replete with references to “land”
and “real property.” But those same provisions contain no
references to “chattels,” “goods,” “movables,” “personalty,” or
“personal property.” The only impression an objective reader of
the policy can come away with is that the document is firmly tied
to terra firma.7
7
In a sense, this is hardly surprising, as this is a
title insurance policy. Title insurance is usually defined in
terms of real estate. See, e.g., BLACK’S LAW DICTIONARY 808 (7th
ed. 1999); 1 ERIC MILLS HOLMES & MARK S. RHODES, HOLMES’S APPLEMAN ON
INSURANCE 2D § 1.31 (1996). But we are mindful of the limitations
of the ready bromide that title insurance covers only interests
in real estate. Cf. LA. REV. STAT. ANN. § 22:2092.2(18) (West
Supp. 2004) (defining “title insurance policy” as potentially
encompassing either “movable or immovable property”). In
particular, First Trust explains that Chicago Title Insurance
15
The second problem that confronts First Trust’s theory is
that Item 4 refers to “[t]he instruments creating the estate or
the interest in real estate.” A UCC-1 financing statement is not
a document that creates a security interest in any type of
property. On the contrary, it is a method of giving notice of
the existence of a security interest created by a security
agreement. See, e.g., First Bank v. E. Livestock Co., 837 F.
Supp. 792, 797, 799 (S.D. Miss. 1993) (“A financing statement
does not create a security interest . . . . [T]he sole function
of financing statements under the U.C.C. is to put third
parties--usually prospective buyers or lenders--on notice that
there may be an enforceable security interest in the property of
the debtor.”); BLACK’S LAW DICTIONARY 646 (7th ed. 1999). Insuring
clause 7, which insures “the priority of the lien of the insured
mortgage,” does not insure the lien of a financing statement, for
such a document, unlike a mortgage or other security agreement,
effects no lien.
Given the above considerations, we find unavailing First
Trust’s reminder that the policy’s general definition of
“mortgage” tells us that the term can mean “mortgage, deed of
Company must not have been aware of this platitude, for the
company sold in Mississippi in the recent past a “UCC-9” policy
that protected security interests in personalty arising under
Article 9 of the UCC. The policy at issue in this case, however,
is not an innovative UCC-9 policy but is instead a traditional,
mundane lender’s title insurance policy. Some policies offered
by traditional title insurers might cover interests in
personalty, but this one does not.
16
trust, trust deed, or other security instrument.” That
definition, First Trust urges, is broad enough to encompass
instruments that create security interests in personal property
like the Biloxi Belle II. Mortgages, deeds of trust, and trust
deeds are all generally understood to refer primarily (even if
not always exclusively) to documents that create security
interests in land. Under the canon of ejusdem generis,8 one
could perhaps argue that “other security instrument” should be
restricted similarly. Nonetheless, even assuming that the
policy’s definition of the term “mortgage” could include
documents creating security interests in personalty, what is
controlling here is that the policy provides protection not for
“mortgages” in general but only for the particular policy’s
“insured mortgage.” And, as we explained above, the “insured
mortgage” under this policy can only be an instrument that
creates an interest in real estate, or else the whole policy
would be rendered mysterious. Accordingly, the reference to the
UCC-1 financing statements in the initial copy of the policy
cannot reasonably be thought to bring the Biloxi Belle II within
the coverage of the policy.
8
“Under the doctrine of ‘ejusdem generis,’ where general
words follow the enumeration of particular classes of persons or
things, the general words will be construed as applicable only to
persons or things of the same general nature or class as those
enumerated.” Rhoden v. State Farm Fire & Cas. Co., 32 F. Supp.
2d 907, 912 (S.D. Miss. 1998) (citing Cole v. McDonald, 109 So.
2d 628, 637 (1959)), aff’d, 200 F.3d 815 (5th Cir. 1999) (table).
17
Although First American Title has strenuously disavowed the
inclusion of the UCC-1s, in the end their inclusion does not make
as great a difference as one might suppose. This is because the
Leasehold Deed of Trust, admittedly a part of every version of
the policy, creates in First Trust’s favor a security interest in
much of BCBI’s personalty as well as in its real property. (The
full title of this wide-ranging document, the reader will recall,
is “Leasehold Deed of Trust, Security Agreement and Fixture
Filing with Assignment of Rents.”) First Trust accordingly
argues that the casino boat is covered by virtue of the Leasehold
Deed of Trust, even without the UCC-1s. But First Trust’s
argument would prove too much. The Leasehold Deed of Trust would
necessarily have to be listed on the policy because it is “[t]he
instrument[] creating the estate or the interest in real estate
which is hereby insured.” But it does not follow that the many
other security interests created in that same document, which are
not interests “in real estate,” are also insured. Cf. Havstad v.
Fid. Nat’l Title Ins. Co., 68 Cal. Rptr. 2d 487, 489-90 (Cal. Ct.
App. 1st Dist. 1997) (holding that a title insurance policy did
not insure an easement that did not satisfy the policy’s
definition of the insured “land,” notwithstanding that the
policy’s scheduled description of the insured property
incorporated a subdivision map that showed easements). Given the
land-oriented nature of the policy as a whole, including the
language of Item 4 on Schedule A, it would be unreasonable to
18
construe the policy as reaching the Leasehold Deed of Trust’s
security interests in the multitudes of categories of personalty
that the document concerns. Instead, the Leasehold Deed of Trust
is insured under the policy only to the extent that it creates a
security interest in real estate.
We conclude that the title insurance policy does not insure
First Trust’s security interest in the Biloxi Belle II.9
Accordingly, First American Title has no duty to indemnify First
Trust for amounts paid in settlement of the White Construction
litigation. Further, because the allegations in that litigation
were clearly outside of the policy’s coverage, First American
Title is not liable for First Trust’s defense expenses. See
Moeller v. Am. Guar. & Liab. Ins. Co., 707 So. 2d 1062, 1068-69
(Miss. 1996). Summary judgment should have been granted in First
American Title’s favor, not First Trust’s.
III. CONCLUSION
9
Since we find the language of the policy clear on this
point, we need not consider other indicia of the parties’ intent.
See Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 351-53 (Miss.
1990). In any event, we note that the evidence is mixed, with
each side finding certain facts that support its theory. We have
not overlooked First Trust’s assertion that the dollar value of
the policy was too high for the policy to insure only the Biloxi
parcels and improvements to be built thereon. First American
Title responds that the figure anticipates that the land would
appreciate when it became a casino, and that the insured amount
is too low if the policy was supposed to cover the improvements
to the land, the leasehold interest in the land, and the casino
boat. It would be difficult for us to say which side is correct
on this and other points, but the clarity of the policy negates
the need to venture a guess.
19
For the foregoing reasons, the district court’s judgment
affirming the bankruptcy court’s judgment is REVERSED. The case
is REMANDED to the district court for further remand to the
bankruptcy court for entry of an appropriate order granting First
American Title’s request for declaratory relief.
20