Opinion
No. 85-4649. Summary Calendar.
February 4, 1986.
Stanton J. Fountain, Jr. and Patti Cruthirds Golden, Biloxi, Miss., for plaintiff-appellant.
James N. Compton, Biloxi, Miss., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.
Odie Joe Reid appeals the grant of summary judgment rejecting his claim for loss of consortium against State Farm Mutual Automobile Insurance Company, his uninsured motorist insurer, resulting from personal injuries sustained by his wife Juanita Reid. Concluding that the district court properly applied Mississippi law to the undisputed facts, we affirm.
Factual Background
Juanita Reid was seriously injured in an accident caused by a negligent, uninsured motorist. Mrs. Reid, accompanied by Henrietta Zahn, was driving an auto belonging to her and her husband. The Reids owned a second vehicle. State Farm issued an insurance policy on each vehicle. The two policies provided the uninsured motorist protection required by Mississippi law, $10,000 per person and $20,000 per accident. Miss.Code § 83-11-101.
Shortly after the accident State Farm settled Mrs. Reid's claims by paying the maximum per person allowance under each policy. In addition to paying this $20,000 to Mrs. Reid, State Farm paid Ms. Zahn the remaining $10,000 per person payment provided by the policy covering the auto involved in the accident.
Odie Joe Reid urges aggregating or stacking the policies and claims entitlement to the remaining $10,000 under the second State Farm policy. He maintains that he is an "insured" and a "person" under the policies. Mr. Reid was not involved in the accident and therefore sustained no bodily injury. His claim derives entirely from the bodily injuries suffered by his wife.
Analysis
At the outset we note the applicable standards of review. Contract interpretation is a question of law, subject to full appellate review. Turbo Trucking Co. v. Underwriters at Lloyd's, 776 F.2d 527 (5th Cir. 1985). That includes a determination as to a contract's facial ambiguity. City of Austin v. Decker Coal Co., 701 F.2d 420 (5th Cir. 1983).
One seeking summary judgment must establish entitlement as a matter of law, Galindo v. Precision American Corp., 754 F.2d 1212 (5th Cir. 1985), and the court will review the facts drawing all inferences most favorable to the party opposing the motion, United States Steel Corp. v. Darby, 516 F.2d 961 (5th Cir. 1975). On appeal we apply the same standards. John v. State of Louisiana, 757 F.2d 698 (5th Cir. 1985).
In this diversity jurisdiction case, we are Erie-bound to apply the substantive law of Mississippi. The district judge, schooled and skilled in the law of his state, Avery v. Maremont Corp., 628 F.2d 441 (5th Cir. 1980), analyzed Mississippi's jurisprudence and concluded that Odie Reid was an insured with a valid claim but that his claim for damages was subject to the per person limitation applicable to his wife's claim. We agree with the district judge's application of Mississippi law, buttressed by an opinion rendered by the Supreme Court of Mississippi after the district court's ruling.
Appellant contends that he is an "insured" and is entitled to the status of a "person" under State Farm's uninsured motorist provisions, advancing as dispositive authority the decisions of the Supreme Court of Mississippi in Pearthree v. Hartford Accident Indem. Co., 373 So.2d 267 (Miss. 1979) [ Pearthree I], and United States Fidelity Guaranty Co. v. Pearthree, 389 So.2d 109 (Miss. 1980) [ Pearthree II]. Standing alone, the Pearthree opinions support appellant's position. However, these decisions may not be viewed in a legal vacuum but must be placed appropriately in the mosaic of the continually evolving substantive law of Mississippi. Doing so, and considering the rulings and rationale of the Pearthree decisions in light of subsequent opinions, particularly State Farm Mutual Automobile Ins. Co. v. Acosta, 479 So.2d 1089 (Miss. 1985), and Old Sec. Cas. Ins. Co. v. Clemmer, 455 So.2d 781 (Miss. 1984), we are convinced that the trial court properly dismissed Reid's claim.
In Pearthree I, the Mississippi court held that a child whose mother was killed in an automobile accident was an insured within the ambit of the uninsured motorist coverage, and that the limits of two policies could be aggregated or stacked. The child was considered an insured because she was entitled under Mississippi law to bring an action for the death of her parent. We apply this ruling to Reid's claim. Under Mississippi law Reid may bring an action for loss of consortium. He is accordingly an insured under State Farm's policies.
In Pearthree II, the court equated "insured" with "person." It is this reference upon which Reid principally relies in asserting his independent loss of consortium claim under the uninsured motorist provision. It is this reference which is markedly restricted, or more probably implicitly overruled, by the Clemmer and Acosta decisions.
In Clemmer, cited by the trial judge in granting State Farm's motion for summary judgment, the Mississippi court interpreted a limits clause of a liability policy to deny recovery by Clemmer who had sustained no physical injuries but who sought an award against the defendant driver. Clemmer attempted to avoid the per person limitation by seeking refuge under the greater per occurrence limitation. The per person maximum had been paid to Clemmer's wife for her personal injuries. The court denied Clemmer recovery because "the award for punitive damages to Mr. Clemmer, a second claimant, is not a claim for all damages arising because of `bodily injury' of a second person so as to reach the `per occurrence' coverage of this policy." 455 So.2d at 784. In reaching this conclusion, the court cited and quoted with approval the decision of the California court in United Services Auto Association v. Warner, 64 Cal.App.3d 957, 135 Cal.Rptr. 34 (1977), a case factually indistinguishable from the case at bar. In Warner an uninjured husband sued for loss of consortium resulting from injuries sustained by his wife. The court held that his claim and that of his wife were, together, subject to the per person limit contained in the policy. The per occurrence limit was found not applicable.
Reid argues that Clemmer is not dispositive because it involves a liability policy. We are persuaded of no reasoned basis for differentiating between liability and uninsured provisions when considering the per person and per occurrence issue, but even if we were, Acosta forecloses the matter.
In the recent Acosta litigation, Betty Acosta, individually and on behalf of her minor daughter Donna, sued State Farm, claiming uninsured motorist benefits under two policies. Donna was driving an Acosta vehicle. State Farm conceded liability to Donna for the maximum per person payment under each policy and paid the maximum benefit to a passenger riding with Donna. The trial court concluded that Mrs. Acosta, who was not injured in the accident, could recover her losses resulting from Donna's injuries from the uninsured motorist insurance on the auto not involved in the accident. The trial court aggregated the policies for that purpose. The Mississippi Supreme Court concluded that "the trial court erred in aggregating the liability of State Farm under the [other vehicle's] uninsured motorist coverage for Betty because she sustained no bodily injury." 479 So.2d at 1090. Citing the Clemmer and Warner cases the court held that "[U]nless there are at least two claimants, under the policy, who have sustained bodily injury, the $20,000.00 [per occurrence] limit does not have application. . . . Betty Acosta was an insured under both policies but suffered no bodily injury, therefore, the policy limits were reached by the payments to Donna, the injured party." 479 So.2d at 1091.
We find Clemmer and Acosta dispositive of the contentions of appellant. We find unpersuasive the suggestion that the policies at bar are ambiguous and that their language significantly differs from the language of the policies in Clemmer and Acosta. Accordingly, the judgment of the district court is AFFIRMED.