675 F.2d 645
GOVERNMENT EMPLOYEES INSURANCE COMPANY, Plaintiff-Appellee,
v.
Robert BROWN and Peggy Brown, Defendants-Appellants.
No. 81-4241.
United States Court of Appeals,
Fifth Circuit.
May 3, 1982.
W. Harvey Barton, John L. Hunter, Pascagoula, Miss., for defendants-appellants.
William M. Rainey, Gulfport, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before CLARK, Chief Judge, THORNBERRY and GARZA, Circuit Judges.
PER CURIAM:
This diversity appeal presents an important issue of Mississippi law which is particularly appropriate for resolution by the Supreme Court of Mississippi. Thus, we defer decision in the cause and certify the issue to the Supreme Court of Mississippi.
Following our practice, we requested that the parties submit a proposed agreed statement of the facts and certificate of the question to be decided. See West v. Caterpillar Tractor Co., Inc., 504 F.2d 967 (5th Cir. 1974). The parties, in response, have agreed on the statement and certificate.
Because resolution of the proposed certified issue could be determinative of the cause, because we find the Mississippi precedents as to the issue insufficiently clear, and because this certification procedure may provide the only means of allowing the Mississippi Supreme Court to authoritatively establish this rule of law, we hereby certify the issue to the Mississippi Supreme Court for such disposition as it deems appropriate.
CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT TO THE SUPREME COURT OF MISSISSIPPI,
PURSUANT TO RULE 46, MISSISSIPPI SUPREME
COURT RULES
TO THE SUPREME COURT OF MISSISSIPPI AND
THE HONORABLE JUSTICES THEREOF:
It appears to the United States Court of Appeals for the Fifth Circuit that the above-styled case involves a question of Mississippi law which is determinative of the cause. There appears to be no precedent in the decisions of the Supreme Court of Mississippi which is controlling.
Under these circumstances, the United States Court of Appeals for the Fifth Circuit hereby certifies the following question of law to the Supreme Court of Mississippi for instructions concerning the question of law, based upon the facts recited hereinafter, pursuant to Rule 46 of the Mississippi Supreme Court Rules.
I.
CERTIFICATION OF THE STATEMENT OF FACTS
On December 5, 1979, the Appellants, Robert Brown and his wife, Peggy Ann Brown, were riding in a vehicle owned by Robert Brown and insured by Government Employees Insurance Company. At that time, they were approaching the intersection of Magnolia Street and Howard Street in Moss Point, Jackson County, Mississippi, when they were involved in a collision which took place with an alleged uninsured motorist, Betty J. Battles.
The policy of insurance which the Appellants had in full force and effect on the date of the accident provided, among other things, for payment of damages as a result of the injuries caused by the negligence of an uninsured motorist. While both insureds were involved in the automobile accident, it was Peggy Ann Brown who claimed the more serious injuries as a result of this accident and made a claim that her damages collectable from an uninsured motorist would exceed $30,000.00.
After this demand was made, the Appellees filed a Bill of Complaint alleging as their cause of action 28 U.S.C.A. Section 2201, commonly known as Federal Declaratory Judgment Action. This action was filed on February 25, 1981 to have the United States District Court for the Southern District of Mississippi define and construe the limits of liability clause under the uninsured motorist coverage of this policy.
In conjunction with the filing of the Declaratory Judgment action, the Appellee tendered the sum of $10,000.00 into the registry of the U.S. District Court proposing that this was the total amount of coverage which would be provided under the policy of insurance.
Subsequent to the filing of the Declaratory Judgment action, the Appellants, Peggy Ann Brown and Robert Brown, each filed their own Declaration in the Circuit Court of Jackson County, Mississippi, on or about April 22, 1981. These actions were civil suits naming as Defendants, the uninsured motorist, Betty J. Battles, and the Appellee insurance company, Government Employees Insurance Company.
In conjunction with the filing of these lawsuits in the Circuit Court of Jackson County, Mississippi, the Appellants also filed a Motion to Dismiss the Declaratory Judgment action, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Thereafter, on May 5, 1981, Government Employees Insurance Company filed a Motion for Summary Judgment in the United States District Court based on their Declaratory Judgment action.
As a result of the hearings on both Motions filed, the United States District Court issued an order dated June 9, 1981, overruling the Brown's Motion to Dismiss and sustaining Government Employees Insurance Company's Motion for Summary Judgment. From that order, Appellants prosecuted their appeal to the Fifth Circuit Court of Appeals. The case was argued on February 4, 1982.
After studying the record, briefs of counsel and the applicable law, the Fifth Circuit Court of Appeals decided that certain unsettled questions of Mississippi law may control the disposition of this appeal. The question on which this Court seeks guidance is presented hereafter.
A certified copy of the applicable Government Employees Insurance Company policy 239-27-82 is attached to this certification as Exhibit "A". That policy reflects the premiums paid for uninsured motorist coverage and also contains the language with regard to the "limits of liability" for uninsured motorist coverage.1
II.
CERTIFIED QUESTION OF UNSETTLED LAW
1. Whether the language contained in this specific Government Employees Insurance Company policy under the "limits of liability" clause is sufficiently clear and unambiguous to prevent the aggregation of uninsured motorist coverage and limit liability to $10,000.00, where separate premiums are charged for more than one unit vehicle under a single policy.
Exhibit "A" has been deleted from the printed opinion at the court's direction. It contains Mr. Brown's Family Automobile Policy Endorsement Declaration, which provides for uninsured motorist coverage limited to $10,000.00 for each person and $20,000.00 for each accident, and indicates that premiums of $13.00, $9.70, and $9.70 for such coverage were paid respectively on the three vehicles insured under the same policy. The exhibit also contains the following "Limits of Liability" section from the master policy's provision for "Protection Against Uninsured Motorists":
(a) Regardless of the number of automobiles or trailers to which this policy applies, the limit of liability for uninsured motorists coverage stated in the declarations as applicable to "each person" is the limit of the company's liability for all damages, including damages for care or loss of services, because of bodily injury sustained by one person as the result of any one accident; and, subject to the above provisions respecting each person, regardless of the number of automobiles or trailers to which this policy applies, the limit of liability stated in the declarations as applicable to "each accident" is the total limit of the company's liability for all damages, including damages for care or loss of services, because of bodily injury sustained by two or more persons as the result of any one accident.