Natl Un Fire Ins Co, et al v. MS Ins Guarnt Assn,, No. 06-60498 (5th Cir. 2008)

Annotate this Case

This opinion or order relates to an opinion or order originally issued on October 31, 2007.

Download PDF
IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED October 31, 2008 No. 06-60498 Charles R. Fulbruge III Clerk NATIONAL UNION FIRE INSURANCE COMPANY Plaintiff-Appellant v. MISSISSIPPI INSURANCE GUARANTY ASSOCIATION Defendant-Appellee Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:04-CV-340 Before REAVLEY, BARKSDALE, and PRADO, Circuit Judges. PER CURIAM:* For the appeal in this diversity action, at issue was a determinative, but as of then unanswered, question of Mississippi law. We certified that question to the Mississippi Supreme Court pursuant to Rule 20 of the Mississippi Rules of Appellate Procedure. Our court asked [w]hether a solvent-carrier s insurance policy, which provides an other-insurance clause stating it is in excess to any other primary insurance, must be exhausted under Mississippi Code Annotated ยง 83-23-123, ahead of [the Mississippi Insurance Guaranty * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 06-60498 Association s (MIGA s)] statutory coverage of the insolvent-carrier s primary policy. Nat l Union Fire Ins. Co. v. Miss. Ins. Guar. Ass n, 507 F.3d 309, 312 (5th Cir. 2007). The Mississippi Supreme Court accepted our certification and rendered an en banc opinion on 4 September 2008. That court determined the National Union Fire Insurance Company s (NUFIC s) policy at issue was not a true excess policy ; and answered the certified question as follows: [A] solvent carrier s insurance policy which is not a true excess policy, and which provides an other-insurance clause stating it is in excess to any other primary insurance, must nevertheless be exhausted prior to MIGA s statutory duty to provide coverage under an insolvent-carrier s primary policy. Nat l Union Fire Ins. Co. v. Miss. Ins. Guar. Ass n, 990 So. 2d 174, 177 (Miss. 2008) (en banc). NUFIC is a solvent carrier; and the NUFIC policy at issue contains an other-insurance clause. Accordingly, the summary judgment in favor of MIGA is AFFIRMED, and this matter is REMANDED to the district court for such further proceedings, consistent with this opinion, as may be required. AFFIRMED; REMANDED. 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.