Thomas v. Allstate Insurance

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 96-60537
Summary Calendar

ROBERT CHARLES THOMAS, As Co-Administrators of the
Estate of Katherine Thomas, All as the Wrongful Death
Beneficiaries of Ravella Burns; EDWARD THOMAS, As
Co-Administrators of the Estate of Katherine Thomas,
All as the Wrongful Death Beneficiaries of Ravella
Burns; MOSES THOMAS, As Co-Administrators of the
Estate of Katherine Thomas, All as the Wrongful Death
Beneficiaries of Ravella Burns; HENRY HAYWOOD, JR.,
As Co-Administrators of the Estate of Katherine Thomas,
All as the Wrongful Death Beneficiaries of Ravella Burns;
DELORES THOMAS, As Co-Administrators of the Estate of
Katherine Thomas, All as the Wrongful Death Beneficiaries
of Ravella Burns,

Plaintiffs-Appellants,

VERSUS

ALLSTATE INSURANCE,

Defendant-Appellee.

Appeal from the United States District Court
For the Southern District of Mississippi

April 25, 1997

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:

BACKGROUND

On September 2, 1990, Ravella Burns (“Burns”) was involved in
a two vehicle accident in Adams County, Mississippi, and died as a

result of that accident. The other vehicle involved in the

accident was driven by Joseph R. Ware and neither Ware nor the

vehicle he was driving was covered by any automobile liability

insurance at the time of the accident. Burns, however, was insured

pursuant to the terms of an automobile insurance policy issued by

Allstate. The Allstate policy provided uninsured motorist coverage

for Burns’ vehicle involved in the accident, as well as two other

vehicles. Pursuant to its interpretation of its policy, Allstate

paid to the estate and representatives of Burns $10,000 in

uninsured motorist coverage benefits. The wrongful death

beneficiaries of Burns, the plaintiffs in this action, assert that

even though the Allstate policy contains a “anti-stacking”

provision, the uninsured motorist coverage should be stacked to

provide a total recovery of $30,000 (i.e., $10,000 for each of the

three covered vehicles). They claim Allstate owes them an

additional $20,000 in uninsured motorist benefits. Allstate admits

that the plaintiffs, as the wrongful death beneficiaries of Burns,

have suffered damages of at least $30,000.

After this lawsuit was initiated, the district court entered

an order on April 28, 1995, staying this action pending a decision

by the Mississippi Supreme Court in Harrison v. Allstate, 662 So.

2d 1092 (Miss. 1995). The Harrison decision was rendered on

October 26, 1995, and held that (1) the insured could stack two

bodily injury uninsured motorist coverages; and (2) Allstate could

not be liable for punitive damages because the issue presented was

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one of first impression in Mississippi. Id. at 1094-95. The

Mississippi Supreme Court, however, declined to consider and

Harrison did not consider the issue presented in this case, i.e.,

if more than two cars are covered by the insurance policy, does the

premium charge for uninsured motorist coverage permit the stacking

as to each additional car. Because of Harrison, Allstate paid to

the plaintiffs an additional $10,000 plus interest but denies that

it owes any additional coverage for the third car covered by Burns’

policy. Allstate moved for summary judgment and the district court

granted such motion by an opinion and order filed under date of

July 9, 1996, and entered final judgment on July 9, 1996, in favor

of Allstate. The plaintiffs timely appealed.

OPINION

We have carefully reviewed the briefs, the record excerpts and

relevant portions of the record itself. For the reasons stated by

the district court in its opinion and order filed under date of

July 9, 1996, the final judgment entered under date of July 9,

1996, is

AFFIRMED.

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