Brander v. Nabors

• Decision Date: 05 September 1978
• Docket Number: No. 78-1275,78-1275
• Citation: 579 F.2d 888
• Parties: Francis Everett BRANDER, Individually and on behalf of all those underwriters at Lloyd's subscribing to Policy # 24563, Plaintiff-Appellee, v. Thomas Jackson NABORS, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 888

579 F.2d 888

Francis Everett BRANDER, Individually and on behalf of all those underwriters at Lloyd's subscribing to Policy # 24563, Plaintiff-Appellee, v. Thomas Jackson NABORS, Defendant-Appellant.

No. 78-1275

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Sept. 5, 1978.

William S. Lawson, Tupelo, Miss., Luke M. Dove, Jr., Jackson, Miss., for defendant-appellant.

Baine, Moore, Simmons & Thompson, Louis G. Baine, Jr., Clifford C. Thompson, Jackson, Miss., for plaintiff-appellee.

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

Before THORNBERRY, GODBOLD and RUBIN, Circuit Judges.

PER CURIAM:

The plaintiff, the assignee of its judgment debtor's rights under a medical malpractice insurance policy, contends that the notice provisions ¹ of that policy create an ambiguity as to the nature of coverage afforded and, in any event, contravene public policy. Although the trial court did not ---------------

expressly deal with these arguments, it did hold that the time restrictions in the policy concerning the claims covered were not an impermissible attempt to shorten the applicable state statute of limitations. Miss.Code Ann. of 1972, § 15-1-5. Having reviewed the notice provisions on which the appellant relies, we do not find that they create any ambiguity in the policy; indeed, they reinforce the conclusion that the policy affords coverage on a "claims made" basis. Were the policy in question an "occurrence" policy, the opportunity to give notice of potential claims would be superfluous. Mississippi law does not, as the appellant contends, require insurers to restrict professional liability policies to one of two rigid molds. The provisions of the policy issued by the insurer are lucid, clear, and hence enforceable. The remainding issues in this case were fully considered by the trial judge, and, for the reasons given in his opinion, Brander v. Nabors, N.D.Miss.1978, 443 F.Supp. 764, the judgment below is AFFIRMED.

* Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

1 The policy provides, in relevant part:

"1. WHEREAS the Assured named in the Schedule herein has made a written proposal, a signed copy of which is attached hereto, which bears the date stated in the Schedule and contains particulars and statements which shall be the basis of this contract and are to be considered as incorporated herein, and whereas the Assured has paid the premium stated in the said Schedule.

2. NOW WE THE UNDERWRITERS hereby agree, subject to the terms, limitations, exclusions and conditions of this Insurance, to pay on behalf of the Assured all sums which the Assured shall by law be held liable to pay for damages arising out of bodily injury or mental injury to or death of any patient caused by or alleged to have been caused by error, omission or negligence in professional services rendered or which should have been rendered (hereinafter referred to as Malpractice).

PROVIDED ALWAYS THAT

(a) such Malpractice results in a claim being...