Nationwide Mut Ins v. Berthelot

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 01-60492 _______________

NATIONWIDE MUTUAL FIRE INSURANCE COMPANY,

Plaintiff-Appellee,

VERSUS

SCOFIELD C. BERTHELOT; JANICE BERTHELOT; TIMOTHY WAAGA, AND ANDREA MARIE WOODCOCK, BY AND THROUGH HER CONSERVATRIX, JANICE BERTHELOT,

Defendant-Appellant.

_________________________

Appeal from the United States District Court for the Southern District of Mississippi _________________________ (1:00-CV-94-BrR) March 28, 2002

Before REAVLEY, SMITH, and DENNIS, Nationwide Mutual Fire Insurance Com- Circuit Judges. pany (“Nationwide”) brought a declaratory judgment action to uphold the validity and ap- PER CURIAM:* plication of an insurance clause; the clause ex- cluded coverage for bodily injuries suffered by relatives who live in the insured’s household. The district court excluded expert testimony * Pursuant to 5TH CIR. R. 47.5, the court has on what Mississippi state insurance law should determined that this opinion should not be pub- be and, instead, followed Mississippi State lished and is not precedent except under the limited Supreme Court cases upholding family house- circumstances set forth in 5TH CIR. R. 47.5.4. hold exclusions. Finding no error, we affirm.

I. Nationwide defend him. In August 1999, Andrea Woodcock, the daughter of Scofield C. and Janice Berthelot, Based on diversity jurisdiction, Nationwide suffered injuries when Timothy Waaga crashed filed the instant declaratory judgment against a boat into another boat operated by Donald Scofield Berthelot, Janice Berthelot, Waaga, Snyder. Janice Berthelot held the title to and Woodcock, requesting the court to declare Waaga’s boat and had given him permission to the defendants ineligible for coverage. After a use it. bench trial, the court found that the policy excluded coverage for Woodcock’s bodily in- Nationwide insured the boat under a policy juries and ruled that Nationwide did not have issued to the Berthelots in 1976. The policy, an obligation to defend Waaga, should not pay however, did not cover family members who any judgments rendered against Waaga, and live in the household and suffer bodily should not pay any claims by Woodcock injuries.1 At the time of the accident, against Waaga. Woodcock had resided at the Berthelot household since April 1999 to assist her II. mother in caring for her father after his heart John Kornegay testified that he believed the surgery. Woodcock maintained a trailer on Mississippi Supreme Court should strike down their property, which she sometimes slept in. the family household exclusion; he averred that She had a separate post office box where she the state’s abrogation of interspousal immunity received most of her mail. She belonged to logically requires invalidating family household travel and camping clubs that entitled her to exclusion clauses. The district court excluded park her trailer and reside at various parks and the evidence under FED. R. EVID. 702 because camping areas for extended periods of time. it would not “assist the trier of fact.” We review a decision to admit or exclude expert After the accident, Janice Berthelot sued testimony for abuse of discretion.2 The party Waaga in state court for negligence, asserting error must prove “substantial requesting compensatory and punitive prejudice.” Kona Tech. Corp. v. S. Pac. damages. The Berthelots made claims under Transp. Co., 225 F.3d 595, 602 (5th Cir. their homeowner’s insurance policy for 2000). Woodcock’s injuries. Waaga requested that We do not need to delve into subtle questions about the admissibility of expert 1 The policy begins by defining the term “in- sured” with reference to family members sharing a residence:

2 “‘Insured’ means you and the following Gen. Elec. Co. v. Joiner, 522 U.S. 136, 136 who live in your household: a. your (1997) (“We have held that abuse of discretion is relatives.” the proper standard of review of a district court’s evidentiary rulings.”); Waco Int’l, Inc. v. KHK The policy then contains the following Scaffolding Houston, Inc., 278 F.3d 523, 528 (5th exclusion: “2. Coverage ESSPersonal liability does Cir. 2002) (“Review of a district court’s admission not apply to: . . .f. bodily injury to an insured as or exclusion of evidence is for abuse of defined in definitions 3a and 3b.” discretion.”) (citation omitted).

testimony on legal matters.3 The district court state law de novo. Doddy, 101 F.3d at 461. correctly decided to reject Kornegay’s testimony for the simple reason that it would A. not “assist the trier of fact.” See FED. R. CIV. Courts should give effect to a “clear and P. 702. The district court and we are bound to unambiguous” insurance policy or contract, follow the Mississippi Supreme Court’s Universal Underwriters Ins. Co. v. Ford, 734 existing precedent, Doddy v. Oxy, USA, Inc., So. 2d 173, 176 (Miss. 1999), and should con- 101 F.3d 448, 461 (5th Cir. 1996), so it is strue ambiguous or unclear terms against the useless for an expert to speculate on what that drafter of the contract, usually the insurance court should in fact do, United States v. Nine company, State Farm Mut. Auto. Ins. Co. v. Million Forty-One Thousand Five Hundred Scitzs, 394 So. 2d 1371, 1372-73 (Miss. Ninety-Eight Dollars and Sixty-Eight Cents, 1981). An insurance policy is ambiguous if 163 F.3d 238, 255 (5th Cir. 1999). people can reasonably subject it to more than one interpretation. Universal Underwriters, III. 394 So. 2d at 176. Nationwide’s policy excludes coverage for bodily injury suffered by relatives who live in Berthelot admits that the policy excludes the insured’s household. The district court coverage for relatives living in his household found that this family household exclusion but argues, first, that Woodcock lived in the prevents Woodcock from recovering and that house only temporarily, and, second, that the the Mississippi Supreme Court would consider policy’s failure to distinguish between the family household exclusion valid and temporary and permanent residence is consistent with public policy. Berthelot argues ambiguous. Both arguments lack merit. that the court erred by concluding that Woodcock fell within the exclusion and that Berthelot explains that Woodcock planned the family household exclusion violates to stay only until he recovered from surgery. Mississippi public policy. She sometimes slept in a travel trailer, she rented a post office box, and she maintained When sitting in diversity, federal courts travel memberships. Despite all of these facts, have an obligation to apply state law as even Berthelot admits that Woodcock lived interpreted by the highest court in the state. with the Berthelots. The policy applies to all Doddy, 101 F.3d at 461. If the state supreme relatives living in the household, and court has not decided an issue, we should Woodcock lived in their household at the time make an Erie guess by predicting what that of the accident. Berthelot does not point to court would do. Washington v. Dep’t of any Mississippi law that would cabin the clause Transp., 8 F.3d 296, 299-300 (5th Cir. 1993). to temporary rather than permanent residents. We review the district court’s interpretation of When asked to define similar terms like “household resident” in other insurance 3 Experts can only testify about legal issues tied coverage disputes, Mississippi courts have to factual disputes and subsidiary to the adopted a broad definition. For example, a factfinder’s ultimate question. C.P. Interests, Inc. college child away at school still resides with v. Cal. Pools, Inc., 238 F.3d 690, 699 (5th Cir. both of his adult parents. Aetna Cas. and Sur. 2001). Co. v. Williams, 623 So. 2d 1005, 1009-10

(Miss. 1993). Adult married children valid.4 “temporarily staying” at their parents’ homes also count as residents for the purpose of The abrogation of spousal and family im- insurance coverage. Johnson v. Preferred munity does not compel the Mississippi Risk Auto. Ins. Co., 659 So. 2d 866, 872-75 Supreme Court to overrule Thompson and (Miss. 1995). Finally, a child over whom Perry. The abrogation of immunity eliminated divorced parents have custody still resides with a mandatory, judicial barrier to tort remedies her mother as she drives the child to enter her among family members. Ales, 650 So. 2d at father’s custody. Thompson v. Miss. Farm 485-86; Glascox, 614 So. 2d at 911; Burns, Bureau Mut. Ins. Co., 602 So. 2d 855, 856-57 518 So. 2d at 1211. Thompson and Perry (Miss. 1992). rested on the freedom of strangers, the insurance company and insured, to define the In these cases, expanding the definition of scope of their contractual liabilities ex ante. resident expanded the scope of coverage, but Thompson, 602 So. 2d at 857-58; Perry, 170 under Berthelot’s policy, expanding the So. 2d at 630. Although the Mississippi definition of “insured,” would, in most cases, Supreme Court has decided that family reduce the scope of coverage. We see no immunities cannot bar suit for unforeseen reason, however, why that should matter. accidents and unanticipated losses, this does not logically require prohibiting family B. members and insurers from limiting the scope The Bartholets argue the Mississippi of coverage contractually. Supreme Court would find the family household exclusion clause invalid because AFFIRMED. that court has abrogated the doctrines of parental and spousal immunity, Ales v. Ales, 650 So. 2d 482 (Miss. 1993) (parents suing child); Glascox ex rel. Denton v. Glascox, 614 So. 2d 906 (Miss. 1993) (child suing parent); Burns v. Burns, 518 So. 2d 1205 (1988) (wife suing parent). The Bartholets, however, cannot point to a single court that has applied Mississippi law to invalidate a family household exclusion. 4 Warren v. United States Fidelity & Guar. The Mississippi Supreme Court has twice Co., 797 So. 2d 1043, 1045-46 (Miss. Ct. App. upheld the validity of these exclusions, 2001) (applying family household exclusion and refusing to adopt strained interpretation because of emphasizing that the insurer and insured public policy); Atlanta Cas. Co. v. Powell, 83 should have the contractual freedom to alter F. Supp.2d 749, 751 (N.D. Miss. 1999) the scope of coverage. Thompson, 602 So. 2d (explaining validity of exclusion clause); Amer. at 857-58; Perry v. S. Farm Bureau Cas. Ins. Fire & Indem. Co. v. Scottsdale Ins. Co., No. Co., 170 So. 2d 628, 630 (Miss. 1965). Every 198CV258, 2000 WL 991626, *1 (N.D. Miss. other court that has applied Mississippi law to June 26, 2000) (unpublished) (noting that parties family household exclusions has found them agreed that exclusionary language is “valid and enforceable”).