Boardman v. United Services Auto. Ass'n, 83-4310

• Decision Date: 14 September 1984
• Docket Number: No. 83-4310,83-4310
• Citation: 742 F.2d 847
• Parties: Joseph BOARDMAN and Henry Boardman, Plaintiffs-Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 847

742 F.2d 847

Joseph BOARDMAN and Henry Boardman, Plaintiffs-Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant-Appellee.

No. 83-4310.

United States Court of Appeals Fifth Circuit.

Sept. 14, 1984.

Harry R. Allen, Billy W. Hood, Gulfport, Miss., for plaintiffs-appellants.

Ben F. Galloway, Sherman Muths, Jr., Gulfport, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BROWN, GEE, and WILLIAMS, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This diversity case presents questions of Mississippi law on which Mississippi should have the final answer and for which Mississippi affords the means to obtain that answer. Guided by the great principles of federalism, we defer decision and certify decisive questions to the Supreme Court of Mississippi, ¹ pursuant to its Rule 46, adopted August 1, 1980.

Our problem--choice of law, Mississippi or Nebraska--arises out of the following situation. Plaintiff-Appellant Joseph Boardman, age 19, was a student in Mississippi during the 1978-79 school term. During the summer of 1979 he worked in Gulfport, Mississippi for his uncle. While at school, Joseph had been permitted by his father to operate an automobile which was insured under his father's insurance policy issued by defendant United Services Automobile Association (USAA). Joseph Boardman drove this automobile until his father delivered it to Joseph's sister. After Joseph no longer had the car, Henry Boardman requested USAA to remove Joseph as a named insured from his automobile insurance policy.

On June 20, 1979, Joseph Boardman purchased a 1970 Chevrolet Caprice from an automobile dealer in Gulfport, Mississippi. He applied for a title and purchased and obtained a Mississippi license tag for his car. After Joseph purchased this particular automobile he discussed with his father having it insured by USAA, but no insurance was purchased, nor was any notice of the acquisition of a new vehicle given to USAA prior to Joseph's accident on July 8, 1979. Thus, prior to the date of the accident, Joseph's 1970 Chevrolet was never added to the policy of his father, nor was any premium paid for coverage under any other insurance contract. Joseph's claim for compensation for his personal injuries arising out of an accident with an uninsured motorist was denied by USAA under the policy's exclusionary clause on the grounds that Joseph was driving a motor vehicle which Joseph solely owned, which was not an insured vehicle as defined under the USAA policy of his father. ²

Plaintiffs filed a motion for partial summary judgment, seeking an adjudication that there existed uninsured motorist coverage for Joseph's personal injuries under Henry Boardman's policy. They also sought an adjudication that the uninsured motorist benefits could be stacked under the terms and provisions of the automobile insurance contract for a total coverage of $60,000. Defendant USAA filed a cross motion for summary judgment seeking an adjudication that there was no uninsured motorist coverage for Joseph's accident. USAA also sought an adjudication that there could be no stacking even if the court found that the coverage existed and that the limitation on benefits available to Joseph Boardman was $10,000.00, the minimum statutory requirement of the Mississippi Safety Responsibility Act.

In its opinion, the District Court held that Mississippi law would be applied to the insurance contract under the Mississippi choice of law "center of gravity" test. The Court also held that (i) the exclusionary clause ³ relied upon by USAA was void as a violation of Mississippi public policy; (ii) Joseph Boardman was an insured under the USAA policy; (iii) the contract of insurance existing between Henry Boardman and USAA provided uninsured motorist coverage to Joseph Boardman; and (iv) the language of the limitation of liability clause found in the policy was ambiguous, thus permitting stacking of the policy limits to provide a total uninsured motorist coverage of $60,000. The interlocutory appeal of USAA was granted on May 16, 1983.

This diversity suit, filed in a Mississippi federal district court, requires that we apply the choice of law rules a Mississippi court would apply had the case been filed in a state court. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). While it is clear that the Mississippi Supreme Court in choice of law situations applies and recognizes the "center of gravity" test, such a decision under that test clearly applicable to the fact situation in this case eludes us. ⁴ While it is clear that under this approach, "the Court trying the action applies the law of the place which has the most significant relationship to the event and parties, or which, because of the relationship or contact with the event or parties, has the greatest concern with the specific issues with respect to the liabilities and rights of the parties to the litigation," Craig v. Columbus Compress and Warehouse Co., 210 So.2d 645 (Miss.1968), it is precisely the significance or the lack of significance of these contacts which troubles us. We discern no clear path from the cases cited by the District Court or the parties. In addition to the unknown relative weight to be given by Mississippi to the choice influencing principles of Sec. 6 and the relevant comments of the Restatement (Second) of Conflicts, ⁵ it is also unclear how the Mississippi courts employ the more specific Sec. 188 ⁶ and Sec. 193 ⁷ which appear to bear on the case before us. Also at stake is the weight of the policy embodied in the Mississippi Safety Responsibility Act in helping to assure that motorists involved in accidents with uninsured motorists do not become public charges in Mississippi. Finally, depending almost certainly on the choice of law decision is the validity of the USAA policy's uninsured motorist exclusionary clause. ⁸

Fully aware of Mississippi's imprimatur on Sec. 6 we might--by piecing together some of our own deliverances and the District Court opinions dutifully following them--come up with a fair prediction of what Mississippi would hold in this case, but we do not think this a wise course. At issue is a matter of great importance to Mississippi. With facilities for positive determination so readily at hand through certification, it is for Mississippi--not us as a fortuitous momentary spokesman--to make its own policy decisions. This is especially so with respect to the ever growing number of serious automobile accidents on the state's highways involving out-of-state vehicles covered or not covered by insurance policies obtained at earlier times and places by persons in our nomadic society.

Concerned that we uphold our Erie ⁹ duty to apply the substantive law of the forum state in a diversity case, we seek guidance from the one court constitutionally entitled to supply it. Indeed, as this case centers upon the strength of local Mississippi policies this course is mandated by the principles of federalism. Federal courts should hesitate to "trade judicial robes for the garb of prophet" J. Brown, Certification--Federalism in Action, 7 Cum.L.Rev. 455 (1977), when an available certification procedure renders the crystal ball or divining rod unnecessary.

Following our usual practice, we are requesting counsel to submit a joint statement of facts and a proposed certificate of questions, see West v. Caterpillar Tractor Co., 504 F.2d 967 (5th Cir.1974). ¹⁰

1 See generally In re McClintock, 558 F.2d 732, n. 2, 3, 4, and 5 (5th Cir.1977) and cases cited; J. Brown, Certification--Federalism in Action, 7 Cum.L.Rev. 455 (1977) (tracing the development of the certification doctrine and the Court's care to avoid "wearing out its welcome" by an apparent practice of ducking troublesome state law questions). Of the certification procedure, then Chief Judge Godbold wrote: "both federal and state judicial systems are the beneficiaries of a procedure rooted in cooperative federalism." American Eastern Development Corp. v. Everglades Marina, 608 F.2d 123, 125 (5th Cir.1979).

2 PART IV--PROTECTION AGAINST UNINSURED MOTORISTS COVERAGE J--UNINSURED MOTORISTS (DAMAGES FOR BODILY INJURY):

To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called "bodily injury," sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile ...

DEFINITIONS: The definitions under Part I, except the definition of "insured", apply to Part IV, and under Part IV: "insured" means:

(a) the named insured and any relative;

(b) any other person while occupying an insured automobile;

(c) any person, with respect to damages he is entitled to recover because bodily injury to which this part applies sustained by an insured under (a) or (b) above.

"insured automobile" means:

(a) an automobile described in the policy for which a specific premium charge indicates that coverage is afforded,

(b) a private passenger, farm or utility automobile, ownership of which is acquired by the named insured during the policy period provided

(1) it replaces an insured automobile as defined in (a) above, or

(2) the company insures under this Coverage all private passenger, farm and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company during the policy period or within 30 days after the date of such acquisition of this election to make the Liability and Uninsured Motorist Coverages under this and no other policy issued by the company applicable to such automobile,

(c) a temporary substitute automobile for an insured automobile as defined in (a) or (b) above, and

(d) a non-owned...