UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 96-60013
(Summary Calendar)
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MAXIM MANUFACTURING CORPORATION,
Plaintiff-Appellant,
versus
ILLINOIS INSURANCE EXCHANGE, ET AL,
Defendants,
ALLIANCE GENERAL INSURANCE COMPANY,
Defendant-Appellee.
_______________________________________________
Appeal from the United States District Court
For the Southern District of Mississippi
(3:94-CV-736-LN)
_______________________________________________
August 6, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff Maxim Manufacturing Corporation ("Maxim") appeals
the district court's order granting Defendant Alliance General
Insurance Company's ("Alliance") motion for summary judgment. We
affirm.
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
I
Alliance issued Maxim a products liability insurance policy
that covered legal expenses and compensatory damage awards
associated with Maxim's products. The insurance policy contains a
self-insured retention endorsement ("SIR"), which functions as a
deductible. The policy provides as follows:
The insured's retention may be chargeable by the
following:
A. All compensatory amounts which the insured
shall become legally obligated to pay as
damages because of bodily injury or property
damaged sustained by one or more persons or
organizations. The retention amount will
apply on an each claim basis regardless of the
number of claims arising out of one
occurrence.
The policy lists the SIR amount as $100,000.00 for each claim. The
term "claim" is not defined by the policy.
During the effective period of the policy, two children were
killed by a fire in South Carolina. The children's father, Walter
Andrews, filed a wrongful death action against Maxim in federal
district court in South Carolina, alleging that the fire was caused
by a defective kerosene heater distributed by Maxim. After a
trial, judgment was entered for Maxim. The case was subsequently
settled while the appeal was pending. The defense of the wrongful
death action resulted in over $150,000.00 in legal costs and other
expenses. After paying the first $100,000.00 of these incurred
expenses, Maxim maintained that it had fulfilled its obligation
under the SIR. Alliance disagreed, asserting that the South
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Carolina wrongful death action involved two separate claims because
two children were killed in the fire. Accordingly, Alliance
maintained, Maxim was responsible for the first $200,000.00 of
incurred expenses, because the policy's SIR amount is $100,000.00
for each claim. Maxim filed a declaratory judgment action against
Alliance in federal district court in Mississippi, seeking a
declaration that the South Carolina wrongful death action
constituted only one "claim," as that term is used in the SIR.
Alliance filed a motion for summary judgment, which the district
court granted. Maxim Mfg. Corp. v. Alliance General Ins. Co., 911
F. Supp. 239 (S.D. Miss. 1995). Maxim filed a timely notice of
appeal.
II
Maxim argues that the district court erred when it granted
Alliance's motion for summary judgment. Specifically, Maxim argues
that the district court improperly interpreted the word "claim" in
the SIR. We review a district court's grant of summary judgment de
novo, applying the same standard as the district court. Dutcher v.
Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995). A district
court's interpretation of an insurance policy presents a question
of law. Old Republic Ins. Co. v. Comprehensive Health Care
Assocs., Inc., 2 F.3d 105, 107 (5th Cir. 1993).
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Under Mississippi law,1 unambiguous terms in an insurance
policy which are not defined by the policy should be given their
plain and ordinary meaning. Estate of Osborn v. Gerling Global
Life Ins. Co., 529 So.2d 169, 172 (Miss. 1988). Though no
Mississippi case has previously faced the issue, several courts
have found the word "claim," when used in insurance policy
deductible provisions, to be unambiguous. See Reynolds v. S & D
Foods, Inc., 822 F. Supp. 705, 707 (D. Kan. 1993) ("'Per claim'
does not apply to each occurrence of an incident causing injury,
but instead applies to each assertion by a person that he or she is
entitled to compensation due to injury from an incident.");
Lamberton v. Travelers Indem. Co., 325 A.2d 104, 106-08 (Del.
Super. Ct. 1974) (same), aff'd, 346 A.2d 167 (Del. 1975). We also
find the term "claim," as used in the SIR provision in this case,
to be unambiguous. The language of the SIR makes the distinction
between "claim" and "occurrence" explicit, providing that "[t]he
retention amount will apply on an each claim basis regardless of
the number of claims arising out of one occurrence."
"Claim" has been defined as "a challenging request, a demand
of a right, a calling upon another for something due, a demand for
benefits or payment, or a title to something in the possession of
1
The parties agree that the insurance policy at issue in this case
should be interpreted according to Mississippi law. Although Alliance's
principal place of business is in Illinois, the policy was sold through a
Mississippi insurance agent, Barksdale Bonding and Insurance, Inc., and was sold
to Maxim, a Mississippi product manufacturer.
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another." Reynolds, 822 F. Supp. at 707 (citing WEBSTER'S THIRD
INTERNATIONAL DICTIONARY (1981)). A claim "belongs to the person
making the demand or asserting the right to benefits arising from
some loss inflicted upon him." Burlington County Abstract Co. v.
QMA Assocs., Inc., 400 A.2d 1211, 404 (N.J. Super. Ct. App. Div.
1979). In applying this definition to the present case, we agree
with the reasoning of the district court:
In the case at bar, a right of action accrued to the
estate of each minor decedent. And each estate,
possessing a cause of action, obviously could have
proceeded in a separate action against Maxim. But Walter
Andrews, in his capacities as the personal representative
of each of his deceased children's estates, chose to file
one lawsuit. That he did so was merely a procedural
choice, not a substantive one. The plain fact is, the
claims were asserted on behalf of the estates of two
separate individuals, each possessing its own cause of
action. And that fact is not altered by the fact that
both estates were represented by the same person.
Maxim Mfg. Corp., 911 F. Supp. at 241 (internal footnote omitted).
Accordingly, we find that the wrongful death action filed by Mr.
Andrews constituted two "claims," as that term is used in the SIR
provision at issue. We thus hold that the district court did not
err in granting summary judgment for Alliance.
III
Based on the foregoing, we AFFIRM.
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