IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 98-30786
_______________________
NORTH AMERICAN CAPACITY INSURANCE COMPANY,
Plaintiff-Appellant,
v.
BRISTER’S THUNDER KARTS INC; ET AL,
Defendants,
BRISTER’S THUNDER KARTS, INC.; KARTS INTERNATIONAL, INC.; PALOMAR
INSURANCE CORPORATION; AMERICAN MARKETING CENTER S.E., INC.
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CV-330)
_________________________________________________________________
June 16, 1999
Before DeMOSS and PARKER, Circuit Judges, and LAKE,* District
Judge.
PER CURIAM:*
North American Insurance Company appeals the district
court’s summary judgments granted in favor of the appellees,
Brister’s Thunder Karts, Inc., and Karts International, Inc.
*
District Judge of the Southern District of Texas, sitting by
designation.
*
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this opinion should not be published and is not precedent except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.
(Brister); Palomar Insurance Corporation (Palomar); and American
Marketing Center S.E., Inc. (AMC). At the crux of this appeal is
North American’s argument that appellees intentionally omitted
information about Brister’s claim history and that those alleged
omissions were material.
North American premised its claim against Brister on an
October 7, 1994, letter written by Charles Brister in response to
a request from Palomar to describe Brister’s claim history.
Brister’s letter mentioned two lawsuits and omitted two lawsuits.
The district court concluded that Brister was entitled to summary
judgment because Brister’s letter was written a year before North
American insured Brister, because the letter made no representa-
tions to North American, and because none of the summary judgment
evidence suggested that the omissions were intentional.
North American alleged that Palomar breached a fiduciary duty
created by its receipt of a commission from North American and that
Palomar misrepresented Brister’s claims history. The district
court concluded that receipt of a commission alone did not create
a fiduciary duty. The court analyzed the relationship between
North American and Palomar according to a number of factors and
found no fiduciary relationship between North American and Palomar.
North American’s misrepresentation claim was premised on
Palomar’s failure to forward to North American Brister’s loss runs
for the preceding five years. The district court concluded that
there was no intentional misrepresentation by Palomar and that
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North American had waived the industry standard of requiring loss
runs for the previous five years.
North American premised its claim against AMC on its omission
of information about Brister’s claims history. Finding that
October 11, 1995, was the latest date on which any of the alleged
omissions could have occurred, and that July 2, 1996, was the
latest date on which North American could have discovered the
alleged omissions, the district court concluded that North
American’s July 11, 1997, lawsuit against AMC was time-barred by
the one-year Louisiana prescriptive period.
After carefully considering all of North American’s arguments
we are satisfied that the rulings and judgment appealed from are
free of reversible error. They are therefore AFFIRMED.
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