Petition for Writ of Certiorari — Boardman v. United Services Automobile Ass'n
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ro85-4684) || FILED
. SEP 18 1985
Supreme Court of the United States
OCTOBER TERM, 1984
JOSEPH BOARDMAN and HENRY BOARDMAN,
Petitioners
versus
UNITED SERVICES AUTOMOBILE ASSOCIATION,
Respondent
Petition for Writ of Certiorari
To the United States Court of Appeals
For the Fifth Circuit
Petition for Writ of Certiorari
BEN F. GALLOWAY, ESQUIRE
OWEN & GALLOWAY
POST OFFICE BOX 218
GULFPORT, MISSISSIPPI 39502
(601) 868-2821
SHERMAN MUTHS, JR., ESQUIRE
POST OFFICE DRAWER 1630
GULFPORT, MISSISSIPPI 39502
(601) 864-3156
ATTORNEYS FOR PETITIONERS
SE Se IE GATT ET I SS EN EEE IE
CLERK
i
QUESTIONS PRESENTED FOR REVIEW
J.
Where federal jurisdiction has been invoked to decide a
conflict of laws question, is a determination of the sufficien-
cy of contacts by the trial court a factual finding which can-
not be set aside without a declaration that such factual
findings are clearly erroneous, and absent such a declaration
by a reviewing court, has there been a deprivation of due
process of law? Stated differently, does due process of
law require an appellate court to apply the clearly errone-
ous rule to factual findings of a trial court?
Il.
In a conflict of laws case, has there been a violation of
due process of law and of the Full Faith and Credit Clause
where the substantive law selected by the reviewing court
is the law of the state with insignificant contact or an in-
significant aggregation of contacts with the parties and the
subject matter of the litigation?
ii
TABLE OF CONTENTS
Questions Presented for Review ...........--++-:
Opinions Below... wince cence een eee es
Statement of Jurisdiction ..............eeeeeee
Constitutional Provisions Involved .............---
Statement of the Case 2. inc cece ce eee en eenen
| errr rr ee ee
POINT I
DUE PROCESS OF LAW REQUIRES RULE
52(a) OF THE FEDERAL RULES OF
CIVIL PROCEDURE BE STRICTLY CON-
STRUED AND THE TRIAL COURT'S
DETERMINATION AS TO THE MATTER
OF SUFFICIENCY OF CONTACTS NECES-
SARY FOR THE CENTER OF GRAVITY
TEST IS A FACTUAL FINDING WHICH
CANNOT BE SET ASIDE WITHOUT A
DECLARATION BY A REVIEWING COURT
THAT SUCH FACTUAL FINDING IS
CLEARLY ERRONEOUS IN ACCORD-
ANCE WITH RULE 52(a) OF THE FEDER-
AL RULES OF CIVIL PROCEDURE. .......
s. -
iii
TABLE OF CONTENTS (Continued)
PAGE
POINT II
THE ADOPTION OF THE OPINION OF
THE MISSISSIPPI SUPREME COURT BY
THE UNITED STATES COURT OF AP-
PEALS IS VIOLATIVE OF THE FULL
FAITH AND CREDIT CLAUSE AND IS A
DENIAL OF DUE PROCESS OF LAW
PROVIDED BY THE FOURTEENTH A-
gree oa ee 13
TE Me ein nds 55.04 k4 00.0 ba 808s 20
Ce ek a ky che bn dm Oe 21
APPENDIX A
Memorandum Opinion of the United States
District Court for the Southern District of
Mississippi entered October 25, 1982. ........ A-1
APPENDIX B
Boardman yv. United Services Automobile
Association, 742 F.2d 847 (Sth Cir. 1984).... A-24
APPENDIX C
Boardman yv. United Services Automobile
Association, 763 F.2d 663 (Sth Cir. (1984) ... A-35
-N
iv
TABLE OF CONTENTS (Continued)
PAGE
APPENDIX D
Boardman y. United Services Automobile
Association, 470 §.2d 1024 (Miss. 1985) ..... A-42
APPENDIX E
Opinion of the United States Court of Ap-
peals, Fifth Circuit, entered on August 19,
SES arr et ee Aart Ss a ee ee A-70
v
TABLE OF CITATIONS
CASES: PAGES
Allstate Ins. Co. v. Lavina Hague, 449 US 302,
66 L Ed 2d $21, 10! S Ct 633 (1981) ........ 14, 15, 16
Boardman v. United Services Automobile Asso-
ciation, 742 F.2d 847 (Sth Cir. 1984) ............ Be
Boardman vy. United Services Automobile Asso-
ciation, 763 F.2d 663 (Sth Cir. 1984) ............... l
Boardman vy. United Services Automobile Asso-
ciation, 470 So.2d 1024 (Miss. 1985)............... 2
Commissioner v. Duberstein, 363 US 278, 4 L Ed
yp Gye & Fie es, 26, Si ern 12
Erie R. R. Co. v. Tompkins, 304 US 64, 58 S Ct
817, 82 L Ed-1188 (1938)............ Coates 10, 11
Herrick v. Liberty Mutual, 274 N.W.2d 147, (Ne-
RR ee es a ee ere ee rae 8
Homes Insurance Company v. Dick, 281 US 397,
74 L Ed 926, 50S Ct 338 (1930)......... 10, 13, 14, 16
John Hancock Mutual Life Insurance Company
v. Yates, 299 US 178, 81 L Ed 106, 57 S Ct
i ere ret Pepi, eer 10, 13, 14, 16
Klaxon Co. v. Stentor Electric Mfg. Co., 313 US
487, 496, 61 S Ct 1020, 85 L Ed 1477, 1480
CRG S ci ctind ane eea ene Oetiker Behe 1]
Lowery v. State Farm Mutual Automobile Insur-
ance, 285 So.2d 767 (Miss. 1973) ................ 8,9
Mitchell v. Craft, 211 So.2d 509 (Miss. 1960) ......... 12
Phillips Petroleum Corporation v. Shutts, et al,
EY hore wack ce Gu kG aOKW dk WOE was Ke 19
Pulilman-Standard, Div. of Pullman, Inc. v. Swint,
456 US 273, 72 L Ed 2d 66, 102 S Ct 1781
CO BE eos a ek a bw a aes he oo eee oe 12
vi
TABLE OF CITATIONS (Continued)
CASES
Rogers vy. Lodge, 71 L Ed 2d 1012, 102 § Ct 3272
CRORES cnn ence cd adds ceebesnaeée een eee
Ruhlin y. New York Life Ins. Co., 304 US 202,
58 S Ct 860, 82 L Ed 1290 (1938).............
Sampson vy. Channell, 110 F.2d 754 (1st. Cir.) cert.
denied; 310 US 650, 60 S Ct 1099, 84 L Ed
SAE ws GR cik.c 6 KGW a a Rie es ee he ED
Shirev v. Louisville & Nashville R. R. Co., 327
ww tilt. Le By, Pe eres ee
Sumrall vy. Resolute Ins. Co., 377 F.2d 671 (Sth
= +. ree ry eer eer rere eee
UNITED STATES CODE:
Title 28, United States Code § 1254 ...........
Title 28, United States Code § 1257 ...........
Title 28, United States Code § 1332 ...........
FEDERAL RULE:
Rule 52(a) of the Federal Rules of Civil Pro-
PAGES
I ong 0600 e6040be ees eees 4,5,9, 10, 12,19
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1984
JOSEPH BOARDMAN AND HENRY BOARDMAN,
Petitioners
versus
UNITED SERVICES AUTOMOBILE ASSOCIATION,
Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
OPINIONS BELOW
On October 25, 1982, a Memorandum Opinion was
entered by the United States District Court for the Southern
District of Mississippi in favor of the Petitioners. A copy of
said Opinion is printed herein as Appendix A. An Interlo-
cutory Appeal was filed by the Respondent in the United
States Court of Appeals, Fifth Circuit, from this Opinion.
On September 14, 1984, the United States Court of
Appeals, Fifth Circuit, directed the parties to develop a
common certificate of the issues. Boardman v. United Ser-
vices Automobile Association, 742 F.2d 847 (Sth Cir. 1984).
A copy of this Opinion is printed herein as Appendix B.
On October 23, 1984, the case was certified to the Missis-
sippi Supreme Court. Boardman vy. United Services Automo-
bile Association, 763 F.2d 663 (Sth Cir. 1984). A copy of
this Opinion is printed herein as Appendix C.
2
By decision dated May 22, 1985, the Mississippi Supreme
Court answered the certified questions. Boardman v. United
Services Automobile Association, 470 So.2d 1024 (Miss.
1985). A copy of this decision is printed herein as Appendix
D.
On August 19, 1985, the United States Court of Appeals,
Fifth Circuit, entered an Opinion adopting the Opinion of
the Mississippi Supreme Court, and directed the District
Court to enter Judgment in accordance with the Or*sion.
A cop. of said Opinion is printed herein as Appendix. E.
3
STATEMENT OF JURISDICTION
The Judgment of the United States Court of Appeals,
Fifth Circuit, was entered on August 19, 1985, and in effect
incorporated the Opinion of the Mississippi Supreme Court
dated May 22, 1985. The jurisdiction of this Court is invoked
under 28 U.S.C. §§ 1254 and 1257 since a right has been
especially set up and claimed under the Constitution of the
United States.
CONSTITUTIONAL PROVISIONS INVOLVED
AMENDMENT V
“No person shall be held to answer for a
capital or otherwise infamous crime, unless
on a presentment or indictment of a grand
jury, except in cases arising in the land or
naval forces, or in the militia, when in actual
service, in time of war or public danger; nor
shall any person be subject for the same
offense to be twice put in jeopardy of life
or limb; nor shall be compelled in any crimin-
al case to be a witness against himself, nor
be deprived of life, liberty, or property,
without due process of law; nor shall private
property be taken for public use without
just compensation.”
AMENDMENT XIV, SECTION 1
‘“*.. .nor shall any state deprive any person of
life, liberty, or property without due process
of law....”
4
ARTICLE IV, SECTION 1
“Pull Faith and Credit shall be given in each
State to the public acts, records, and judicial
proceedings of every other State. And the
Congress may by general laws prescribe the
manner in which such acts, records and
proceedings shall be proved, and the effect
thereof.”
FEDERAL RULE INVOLVED
Federal Rules of Civil Procedure Rule 52(a)
“(a) Effect. In all actions tried upon the facts
without a jury or with an advisory jury, the
court shall find the facts specially and state
separately its conclusions of law thereon, and
judgment shall be entered pursuant to Rule
58: and in granting or refusing interlocutory
injunctions the court shall similarly set forth
the findings of fact and conclusions of law
which constitute the grounds of its action.
Requests for findings are not necessary for
purposes of review. Findings of fact shall not
be set aside unless clearly erroneous, and due
regard shal! be given to the opportunity of
the trial court to judge the credibility of the
witnesses. The findings of the master, to the
extent that the court adopts them, shall be
considered as the findings of the court. It will
be sufficient if the findings of fact and con-
clusions of law are stated orally and recorded
in open court following the close of the evi-
dence or appear in an opinion or memoran-
dum of decision filed by the court. Findings
5
of fact and conclusions of law are unneces-
sary on decisions of motions under Rules
12 or 56 or any other motion except as
provided in Rule 41(b).”
6
STATEMENT OF THE CASE
The Petitioner Joseph Boardman, age 19, entered Missis-
sippi State University at Starkville, Mississippi during the
fall and spring semesters of the 1978-1979 term. In May of
1979, Joseph Boardman came to Gulfport, Mississippi dir-
ectly from school to work for his paternal uncle who owns a
concrete business in Gulfport, Mississippi. During the fall and
spring semesters of 1978-1979, the Petitioner Joseph Board-
man was permitted by his father, the Petitioner Colonel
Henry Boardman, to operate a Ford Pinto vehicle which
was insured under a policy of insurance issued by the Re-
spondent United Services Automobile Association in the
name of the Petitioner, Colonel Henry Boardman. During
this time period, Colenel Henry Boardman was temporar-
ily stationed with the United States Air Force in the State
of Nebraska, and the insurance policy was mailed to Colonel
Boardman in Nebraska.
The Petitioner Joseph Boardman drove the Ford Pinto
to Gulfport, Mississippi, and operated this vehicle until
his father, the Petitioner Colonel Henry Boardman, came
to Mississippi and recovered the vehicle in order to deliver
it to his daughters in Cincinnati, Ohio. Thereafter, on June
14, 1979, the Petitioner Henry Boardman requested the
Respondent remove the Petitioner Joseph Boardman as
a named insured on his automobile insurance policy. Joseph
Boardman, however, remained insured for purposes of un-
insured motorist coverage as he was a member of the house-
hold of Henry Boardman.
On June 20, 1979, Joseph Boardman purchased a Chev-
rolet Caprice automobile in Gulfport, Mississippi. An appli-
cation was made by Joseph Boardman for title, and addition-
ally he purchased a Mississippi license tag for the Chevrolet
Caprice automobile. After Joseph Boardman purchased
this particular automobile there was a discussion with his
father concerning having the Chevrolet Caprice vehicle
insured with the Respondent, but no insurance was actually
purchased prior to the subject accident.
On July 8, 1979, the Petitioner Joseph Boardman, was
involved in an automobile accident caused by the negligence
of an uninsured motorist. As a result of this accident, Joseph
Boardman has lost his right eye, suffered multiple facial
fractures, chipped his right knee cap, severed tendons and
fractured bones in his right foot.
This case initially involved a claim for uninsured motorist
coverage under the terms of the policy of insurance existing
between the Petitioners and the Respondent. The controver-
sy centers around what has been referred to as the ‘‘owned-
vehicle”” exclusion as applied to the Chevrolet Caprice ve-
hicle. The relevance of the ““owned-vehicle”’ exclusion is that
this particular clause has been declared invalid under Missis-
sippi law as being adverse to public policy, while under
Nebraska law, this particular exclusion has been upheld.
On May 19, 1981, a Complaint was filed by the Petitioners
in the United States District Court for the Southern District
of Mississippi under the diversity jurisdiction of the federal
court. 28 USC § 1332. On June 11, 1981, the Respondent
filed an Answer. Various discovery proceedings were con-
ducted by the parties from June 15, 1981 through July 31,
1981. On August 5, 1981, the Petitioners filed a Motion for
Partial Summary Judgment, and on September 4, 1981, a
Cross-Motion for Summary Judgment was filed by the
Respondent. Essentially, both parties requested the United
States District Court to make a determination as to the
duties and obligations existing under the contract of auto-
_mobile insurance existing between the parties.
8
On October 23, 1982, the District Court filed a Memor-
andum Opinion (Appendix A), and on November 1, 1982 a
Judgment was entered granting the Petitioners’ Motion for
Partial Summary Judgment and denying the Respondent’s
Motion for Summary Judgment.
On January 1, 1983, an Amended Judgment was filed
wherein the parties agreed that the issues were final as to
liability and damages and leave was granted for an interlocu-
tory appeal. The appeal was initially denied; however, on
Petition for Rehearing granted May 23, 1983, the United
States Court of Appeals for the Fifth Circuit granted the
interlocutory appeal.
This is a conflict of laws case, and the Respondent United
Services Automobile Association maintained before the
United States District Court and before the United States
Court of Appeals, Fifth Circuit, that Nebraska law should
be applied in construction of the uninsured motorist cover-
ages under the subject policy, because Nebraska law upholds
the ‘‘owned-vehicle” exclusionary clause. Herrick v. Liber-
ty Mutual, 274 N.W.2d 147 (Nebraska 1979).
The Respondent contends that since the policy of insur-
ance was issued in Nebraska while the Petitioner Colonel
Henry Boardman was temporarily stationed in that State,
and because the Petitioner Joseph Boardman purchased
a Chevrolet Caprice automobile in Mississippi, that the
automobile was an “owned-vehicle” not listed on the insur-
ance policy, and therefore would be excluded under the
uninsured motorists provisions of the policy.
Contr*ry to this position, the Petitioners seek coverage
and argue that Mississippi law should be applied in construing
the insurance policy. Mississippi law condemns the “‘owned-
vehicle” exclusion clause. Lowery v. State Farm Mutual
9
Automobile Insurance, 285 So.2d 767 (Miss. 1973).
In a detailed factual finding, the District Court in its
Opinion dated October 25, 1982, found in favor of the
Petitioners and applied Mississippi law to the construction
of the insurance agreement existing between the parties.
The District Court thus afforded the Petitioner Joseph
Boardman coverage under the uninsured motorist provisions
fo the insurance contract.
The Respondent filed an appeal to the United States
Court of Appeals, Fifth Circuit, and on September 14,
1984, the Court of Appeals requested the parties develop
a common certificate of issues. On October 23, 1984, the
Court of Appeals certified the case to the Mississippi Su-
preme Court, and on May 22, 1985, the Mississippi Supreme
Court answered the certified questions and held Nebraska
law governed the construction of the insurance policy. The
exclusionary clause of the Respondent’s policy became
effective, and therefore there is no uninsured motorists
coverage for the injuries suffered by the Petitioner Joseph
Boardman.
The decision of the Mississippi Supreme Court dated
May 22, 1985, and adopted by the Court of Appeals on
August 19, 1985, has engendered Constitutional issues to
be reviewed by this Court. Particularly, the Mississippi
Supreme Court’s application of Nebraska law to the sub-
stantive issues of this litigation is violative of the Full Faith
and Credit Clause (Article [V § 1) and the due process
mandates of the Fourteenth Amendment to the United
States Constitution. The Opinion of the Mississippi Supreme
Court did not declare the District Court’s analysis of the
center of gravity test to be clearly erroneous under Rule
52(a), but nevertheless relinquished the Petitioners to the
inequities of Nebraska law. The Opinion is in contradiction
10
to the teachings of the United States Supreme Court cases of
Homes Insurance Company v. Dick, 281 US 397, 74 L.Ed
926, 50 S.Ct. 338 (1930), and John Hancock Mutual Life
Insurance Company v. Yates, 299 US 178, 81 L.Ed. 106, 57
S.Ct 129 (1936) which hold that if a state has only insignif-
icant contacts with parties and the occurrence or transaction,
application of such state’s law is unconstitutional.
ARGUMENT
I.
DUE PROCESS OF LAW REQUIRES RULE
52(a) OF THE FEDERAL RULES OF CIVIL
PROCEDURE BE STRICTLY CONSTRUED
AND THE TRIAL COURT’S DETERMIN-
ATION AS TO THE MATTER OF SUFFICI-
ENCY OF CONTACTS NECESSARY FOR
THE CENTER OF GRAVITY TEST IS A
FACTUAL FINDING WHICH CANNOT BE
SET ASIDE WITHOUT A DECLARATION
BY REVIEWING COURT THAT SUCH
FACTUAL FINDING IS CLEARLY ERRON-
EOUS IN ACCORDANCE WITH RULE 52(a)
OF THE FEDERAL RULES OF CIVIL
PROCEDURE.
Rule 52(a) of the Federal Rules of Civil Procedure and the
decisions of this Court require the affirmance of the factual
findings of the District Court unless such findings are declar-
ed to be clearly erroneous by the reviewing court.
Except in matters governed by federal law, when a federal
court’s jurisdiction is predicated upon the diversity of citi-
zenship of the parties, the federal court must apply the
substantive law of the state in which it is sitting. Erie R. R.
11
Co. v. Tompkins, 304 US 64, 58 S Ct 817, 82 LEd 1188
(1938); Shirey v. Louisville & Nashville R. R. Co.. 327 F.2d
549 (5th Cir. 1964). If, in a diversity case, the federal court is
required to construe an insurance contract, the federal
court will apply applicable state law. Ruhlin v. New York
Life Ins. Co., 304 US 202, 58 SCt 860, 82 L Ed 1290
(1938). When there is a question as to which state law
should be applied, the federal court must follow a conflict
of laws rule which conforms to those prevailing in the state
in which it sits; viz, the conflict of laws rules of the state.
Klaxon Co. v. Stentor Electric Mfg. Co., 313 US 487, 496,
61 S Ct 1020, 85 L Ed 1477, 1480 (1941). The purpose of
applying the state law of the forum is to assure equal admin-
istration of justice in coordinate state and federal courts.
Ibid. See also Sampson v. Channell, 110 F.2d 754 (ist Cir.)
cert. denied; 310 US 650, 60 S Ct 1099, 84L Ed 1415
(1940).
Under Mississippi law, the center of gravity test is applica-
ble and the foundation of this legal test is the determination
of the sufficiency of contacts which is clearly a factual
finding.
The United States District Court clearly identified the
sufficient contacts the Petitioners maintained with the
State of Mississippi so as to apply Mississippi law in regard
to the insurance contract subject of this litigation.
On certification, the Mississippi Supreme Court rejected
the United States District Court’s Opinion, and as related
above, the United States Court of Appeals, Fifth Circuit,
adopted the Opinion of the Mississippi Supreme Court.
No reviewing court has ever determined that the United
States District Court for the Southern District of Mississippi
_ was clearly erroneous in any finding of fact.
12
The center of gravity concept was approved in Mitchell
vr. Craft, 211 So.2d 509 (Miss. 1969), and this test draws a
determination as to the sufficiency of contacts with the
forum state in a conflict of laws case.
Again, the United States District Court for the Southern
District of Mississippi reviewed all of the facts and made a
factual finding that there was a sufficient aggregation of
contacts so as to apply Mississippi law in interpreting the
subject insurance contract.
This Court has recognized that the clearly erroneous
standard of Rule 52(a) of the Federal Rules of Civil Proce-
dure applies broadly to all categories of factual findings.
In Pullman-Standard, Div. of Pullman, Inc. v. Swint, 456
US 273, 72 L.Ed. 2d 66, 102 S Ct 1781 (1982), this Court
declared that Rule 52 does not make exceptions or attempt
to exclude certain categories of factual findings from the
obligation of a Court of Appeals to accept the District
Court’s findings unless they are erroneous. This Court stated
in Pullman that Rule 52 does not divide facts into cate-
gories, and that in particular, Rule 52 does not divide find-
ings of fact to those which deal with ultimate facts and
those which deal with subsidiary facts.
In Rogers v. Lodge, 71 L Ed 1012, 102 S Ct 3272 (1982),
this Court underlined the importance a reviewing Court
must give a District Court’s findings of fact. Rule 52 broadly
requires the findings of fact not be set aside unless clearly
erroneous. Commissioner v. Duberstein, 363 US 278, 4 L
Ed 2d 1218, 80 S Ct 1190 (1960), emphasizes that Rule
52(a) applies not only to the District Court’s findings of
fact, but also to factual inferences.
In Sumrall v. Resolute Ins. Co., 377 F.2d 671 (Sth Cir.
1967), the United States Court of Appeals, Fifth Circuit,
13
stated that the clearly erroneous rule prevents any possibili-
ty for reversal where there is support in the record for
factual findings of the District Court.
In this particular case, there has been a denial of due
process of law as the reviewing court never addressed the
clearly erroneous rule.
Il.
THE ADOPTION OF THE OPINION OF
THE MISSISSIPPI SUPREME COURT BY
THE UNITED STATES COURT OF AP-
PEALS IS VIOLATIVE OF THE FULL
FAITH AND CREDIT CLAUSE AND IS A
DENIAL OF DUE PROCESS OF LAW
PROVIDED BY THE FOURTEENTH A-
MENDMENT.
Approximately fifty years ago, this Court held in two
separate cases that if a state has only insignificant contacts
with the parties and the occurrence or transaction, then
application of such state’s law is unconstitutional. Homes
Insurance Company vy. Dick, 281 US 397, 74 LEd 926,
50 SCt 338 (1930). John Hancock Mutual Life Insurance
Company v. Yates, 299 US 178, 81 LEd 106,57 SCt 129
(1936).
Home Ins. Co. v. Dick concerned an insurance policy
which has been issued in the Country of Mexico by a Mexi-
can insurer to a Mexican citizen, covering presumably a
Mexican risk. The subject policy was later assigned to a Mr.
Dick, who was domiciled in Mexico, although he remained
a nominal permanent resident of the State of Texas. The
subject policy restricted coverage to losses occurring in
certain waters of the Country of Mexico. The loss Mr. Dick
14
contended was actionable under the policy occurred in
Mexican waters. The claim was denied, and Mr. Dick brought
suit in Texas against a New York reinsurer. Neither the
Mexican insurer, nor the New York reinsurer had any con-
nection with the State of Texas. This Court held that ap-
plication of Texas law to void the insurance contract’s
limitation of action clause violated due process.
The constitutional questions were also discussed in John
Hancock Mutual Life Insurance Company yv. Yates. In this
case, the insurer, a Massachusetts corporation, issued a con-
tract of life insurance on a New York resident. The particular
life insurance contract was applied for, issued, and delivered
in the State of New York where the insured and his wife
resided. After the insured died in New York, his wife moved
to Georgia and brought suit on the policy in Georgia. Under
Georgia law, the jury was permitted to take into account
certain oral modifications when determining whether or not
the life insurance policy application contained material
misrepresentations. Under New York law, such misrepresen-
tations were to be evaluated solely on the basis of the written
application. The Georgia Court applied Georgia law. This
Court reversed, finding the application of Georgia law to be
unconstitutional.
Home Ins. Co. v. Dick and John Hancock Mutual Life Ins.
Co. v. Yates were both discussed in the recent case of A/l-
state Ins. Co. v. Lavina Hague, 449 US 302, 66 L.Ed.2d
521, 101 S.Ct. 633 (1981). In Hague, the Appellee’s husband
died of injuries suffered when a motorcycle on which he was
riding as a passenger was struck by an automobile. The
accident occurred in the State of Wisconsin near the Min-
nesota border. The operators of both the motorcycle and the
automobile were Wisconsin residents, as was the Appellee’s
decedent. The decedent was, however, employed in Min-
nesota and commuted daily to work in that state from
15
Wisconsin. Neither the motorcycle operator nor the driver of
the automobile which struck the motorcycle carried any
valid insurance, but the decedent held a policy issued by
Allstate Insurance Company covering three automobiles
owned by the decedent, and which contained uninsured
motorist coverage. The policy limited such uninsured mo-
torist coverage to $15,000 for each vehicle. After the ac-
cident, the decedent’s wife moved to, and became a resident
of Minnesota, and brought action in the Minnesota Court
seeking a declaration under Minnesota law that the $15,000
uninsured motorist coverage on each of the three vehicles
could be stacked to provide a total coverage of $45,000.
Allstate defended on the basis that whether or not the three
uninsured motorist coverages should be stacked should be
determined by Wisconsin law, since the insurance policy was
delivered in Wisconsin, the accident occurred there, and all
persons involved were Wisconsin residents at the time of the
accident.
Wisconsin law disallowed stacking; Minnesota permitted
stacking. The Minnesota Supreme Court affirmed the lower
Minnesota Court, and found that Minnesota law should be
applied in the case. The decision of the Minnesota Supreme
Court was affirmed by this Court which concluded that
Minnesota had a significant aggregation of contacts with the
parties and the occurrence, creating state interests, such that
application of Minnesota law is neither arbitrary nor funda-
mentally unfair, and did not violate the Due Process Clause
of the Fourteenth Amendment or the Full Faith and Credit
Clause.
One important aspect of Hague is that this Court con-
cluded that an important consideration in determining the
choice of law question was the fact that the Appellee Hague
became a Minnesota resident prior to the institution of
litigation. The Court concluded that the change of residence
16
by the Appellee, and her appointment as representative of
her husband's estate constituted a Minnesota contact which
gave Minnesota an interest in the Appellee’s recovery. The
Court also noted and discussed Yates to the effect that a
post-occurrence change of residence to the forum state may
be sufficient in and of itself to confer power on the forum
state to choose its law, and the Supreme Court further
concluded that Yares holds that such a change of residence
is not irrelevant.
In the case at bar, the Mississippi Supreme Court complete-
ly disregarded the fact that the Petitioner Henry Boardman
moved back to his permanent home, Mississippi, so that at
the time of filing of litigation, both Petitioners, Henry
Boardman and his son, Joseph Boardman, resided in the
State of Mississippi. This is one of the contacts with the
State of Mississippi that the District Court considered, and
it is certainly a proper consideration under the teachings
of Hague and Yates.
In a concurring Opinion by Justice Stevens in Hague
it was noted that contracting parties can make their ex-
pectations explicit by providing in their contract either
that the law of a particular jurisdiction shall govern ques-
tions of contract interpretation, or that a particular or
subsequent rule, for instance, “stacking”, shall or shall
not apply. Justice Stevens also noted that the insurance
policy in Hague provided for coverage for accidents through-
out the United States, and thus, at the time of contracting,
the parties in Hague certainly could have anticipated the
laws of other states other than Wisconsin could govern
particular claims arising under the policy. By virtue of
doing business in Minnesota, Allstate Insurance Company
was aware that it could be sued in Minnesota Courts. There-
fore, the decision « * the Minnesota Courts to apply the law
of the forum in Hague did not frustrate the reasonable
17
expectations of the contracting parties.
In the present case, the Mississippi Supreme Court has
applied Nebraska law when to do so would be unconstitu-
tional as the parties in the present iitigation had only in-
significant contact with the State of Nebraska.
Unbelievably, the decision of the Mississippi Supreme
Court continually made reference to the fact that the in-
surance contract was issued in Nebraska through United
Services Automobile Association’s agent in Nebraska. This
is certainly not accurate, and amounts to an improper ad-
dition of another contact to the State of Nebraska, and is
violative of the parties Statement of Facts in the Statement
of the Case issued by the Court of Appeals, Fifth Circuit, in
its Opinion certifying questions to the Mississippi Supreme
Court.
The Respondent United Services Automobile Association
is a reciprocal inter-insurance exchange who issues its policies
from San Antonio, Texas, and limits its policyholders to
active or retired military personnel. United Services Auto-
mobile Association does not have “agents”. The Mississippi
Supreme Court made an erroneous conclusion that the in-
surance contract was issued in Nebraska through United
Services Automobile Association’s ‘agent’? in Nebraska,
and is certainly in complete contradiction to the agreed
upon facts in this case.
The constitutional problems engendered by application
of Nebraska law are magnified by the totally insignificant
contacts the State of Nebraska has with the parties of this
case and the occurrence or transaction. Particularly, the
only contact Nebraska has with the present case is that
the insurance policy was issued to the Petitione: Henry
Boardman in the State of Nebraska while Henry Boardman
18
was stationed as a temporary resident of the State of Ne-
braska while he was a member of the United States Air
Force.
The District Court in its Opinion outlined the significant
relationships or factors relating to the claim for uninsured
motorisi coverage in the State of Mississippi. Specifically,
the following constitute the significant contacts of the State
of Mississippi which the District Court properly recognized:
‘“(a) Shortly before the accident, the Peti-
tioner Joseph Boardman had been a full
time student at Mississippi State University;
(bj) At the time of the accident, Joseph
Boardman was temporarily residing in Gulf-
port, Mississippi, working to earn money so
that he could return to Mississippi State
University in the fall;
(c) Approximately a week before the
accident, Joseph Boardman had purchased a
vehicle in the State of Mississippi and further
purchased a Mississippi tag for said vehicle:
(d) The accident subject of this litigation
occurred in Gulfport, Mississippi;
(e) All witnesses to the accident reside in
the State of Mississippi;
(f) At the time of the filing of this litiga-
tion, Petitioner Colonel Henry Boardman
moved back to the State of Mississippi, so
at the time of filing, both Petitioners resided
in the State of Mississippi;
(g) At the time of the accident, the Re-
spondent United Services Automobile As-
sociation was qualified to do business in the
State of Mississippi and in fact issued in-
surance policies in the State of Mississippi;
19
(h) Respondent United States Automobile
Association is an inter-insurance exchange
which exclusively issues insurance policies to
persons who are actually members of the
United States Armed Services or who have
been enlisted in the Armed Forces of the
United States and necessarily this Respondent
could expect its policyholders to be quite
mobile and it would be quite unrealistic and
unfair to restrict questions concerning cover-
age to the state where the insurance policy
was Originally issued.”
Application of Nebraska law as directed by the Mississippi
Supreme Court violates the Full Faith and Credit Clause
and the Fourteenth Amendment as indeed the contacts with
the State of Nebraska are undeniably insignificant. The
Mississippi Supreme Court improperly invented a contact,
i.e., the agent in Nebraska who does not exist, and the
Mississippi Supreme Court fully failed to appreciate the
legal significance of the residency of the Petitioners in the
State of Mississippi at the time litigation was instituted.
As recent as June 26, 1985, this Court decided the case
of Phillips Petroleum Corporation v. Shutts, et al, 53 LW
4879, which again held that the Due Process Clause and the
Full Faith and Credit Clause require that in a conflict of
laws case, that in consideration of such substantive law to be
selected, a state must have a significant aggregation of con-
tacts with the parties and the subject matter.
The determination of sufficiency of contacts is a factual
determination to be made by the District Court under Rule
52 of the Federal Rules of Civil Procedure. The District
Court in this case, applied Mississippi law on the basis of
detailed factual findings as to the sufficiency of contacts,
ard this determination has never been shown to be clearly
erroneous.
20
CONCLUSION
It is respectfully submitted that this Court should grant
this Petition and issue a Writ of Certiorari to the United
States Court of Appeals, Fifth Circuit.
Respectfully submitted,
OF ee 4 Cp hhirnwyz fi
BEN F. GALLOWAY -
OWEN & GALLOWAY
POST OFFICE BOX 218
GULFPORT, MISSISSIPPI 39502
(601) 868-2821
SHERMAN MUTHS, JR., ESQUIRE
POST OFFICE DRAWER 1630
GULFPORT, MISSISSIPPI 39502
(601) 864-3156
ATTORNEYS FOR PETITIONERS
21
CERTIFICATE OF SERVICE
I, Ben F. Galloway, Attorney for Petitioners, do hereby
certify that 1 have this day mailed, by United States mail,
postage prepaid, three true and correct copies of the above
and foregoing Petition for Writ of Certiorari to the firm of
Bryan, Nelson, Allen, Schroeder & Cobb, at their usual
mailing address of Post Office Drawer 4108, Gulfport,
Mississippi, 39502.
This the 17th day of September, 1985.
phew “4 Loalheweg a
BEN F. GALLOWAY
OWEN & GALLOWAY
Post Office Box 218
Gulfport, Mississippi 39502
(601) 868-2821
SHERMAN MUTHS, JR., ESQUIRE
Post Otfice Drawer 1630
Gulfport, Mississippi 39502
(601) 864-3156
A-1
APPENDIX A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JOSEPH BOARDMAN and HENRY BOARDMAN
Plaintiffs
V.
UNITED SERVICES AUTOMOBILE ASSOCIATION
Defendant
CIVIL ACTION NO. S81-0219(N)
Filed Oct. 25, 1982
MEMORANDUM OPINION
This cause is before the Court on the basis of a Motion for
Partial Summary Judgment filed by the plaintiffs, Joseph and
Henry Boardman, and a Motion for Summary Judgment
by the defendant, United Services Automobile Association
(USAA). Both parties to this action are requesting thu the
Court make a determination of the duties and obligations
existing under a policy of automobile insurance which exists
between the parties.
In essence, the plaintiffs have filed their Motion for Partial
Summary Judgment, seeking an adjudication that there
existed uninsured motorist coverage under Henry Boardman’s
policy for his son, Joseph Boardman’s accident, this being in
the sum of $60,000.00. The defendant has also filed a
Motion for Summary Judgment seeking an adjudication
that under the terms of the insurance contract there is no
A-2
uninsured motorist coverage for the accident. In the alterna-
tive, the defendant argues that if the Court finds that cover-
age exists, the limit of benefits available to the plaintiffs is
in the amount of the $10,000.00 minimum statutory require-
ment of the Mississippi Safety Responsibility Act. The Court
is of the opinion that there are no genuine issues of material
fact and thus the issues before the Court are strictly ques-
tions of law.
The facts of this controversy are basically undisputed.
As previously stated, the plaintiffs are Henry and Joseph
Boardman. At the time the suit was filed, Henry Boardman
was a resident of the state of Alabama and Joseph Board-
man was a resident of the state of Mississippi. USAA is a
foreign insurance company which is also authorized to do
business in the state of Mississippi. The company issued
automobile insurance Policy Number 036-97-48U-7 102-9
to Henry Boardman when he was a resident of Omaha,
Nebraska, stationed with the United States Air Force in
Omaha, which covered the period from September 15,
1978, to Septembe: 15, 1979. The policy covered three
automobiles, and a separate premium was paid on each.
The evidence indicates that Joseph Boardman, age 19,
entered Mississippi State University, Starkville, Mississippi,
during the fall and spring semesters of the 1978-79 term
and in May, 1979 came to Gulfport, Mississippi, directly
from school to work for his paternal uncle who operates
Coast Materials located in Gulfport. While Joseph was in
school he was permitted by his father to operate a Pinto
automobile which was one of the vehicles insured under
the above policy of insurance. Joseph drove the Pinto to
Gulfport and operated it until his father came to Gulfport
and took possession of it in order to deliver it to Joseph’s
sisters who lived in Cincinnati, Ohio.
A-3
On June 14, 1979, Henry Boardman requested that
USAA remove Joseph as a named insured on the automobile
insurance policy, which deletion was made by USAA on
June 16, 1979. Henry Boardman had also requested that
USAA reinstate as operators of the 1977 Pinto his daughters
Rosamon and Suzanne, who had been deleted while the
vehicle was in Joseph’s possession.
On June 20, 1979, Joseph purchased a 1970 Chevrolet
Caprice automobile from Jay-Jay Chevrolet in Gulfport.
He signed a title application prepared by the dealer, and
on the same day Jay-Jay delivered the vehicle with an in-
voice. An application was made by Joseph for title, and he
purchased a Mississippi license tag for the vehicle. Subse-
quent to the purchase of the Caprice, Joseph had a dis-
cussion with his father concerning insurance coverage;
however, none was actually purchased prior to the acci-
dent, which forms the basis for this action.
It is undisputed that on the evening of July 8, 1979,
Joseph Boardman was at his apartment watching television
with three other young men. A decision was made by all
the boys to drive to a popular night spot in Biloxi, Mis-
sissippi, and accordingly, Joseph drove one passenger in
the Caprice while David Turan, another young man, drove
his vehicle to the same night spot. On the return trip, the
young men were traveling on U.S. Highway 90 when a
third vehicle pulled onto the highway in front of the Turan
vehicle, and in attempting to avoid striking it, the Turan
vehicle crossed in front of Joseph Boardman’s vehicle,
forcing it to leave the road, where Joseph lost control,
resulting in the accident which is the subject of this con-
troversy.
As a result of the accident, Joseph Boardman lost his
right eye, suffered multiple facial fractures, chipped his
A-4
right knee cap, severed tendons and fractured bones in his
left foot, for which he received medical treatment from the
Keesler Medical Center in Biloxi, Mississippi, and Maxwell
Air Force Base in Montgomery, Alabama.
There has been an allegation in the affidavit of Walter E.
Smith, claims supervisor of USAA, that David Turan and
Joseph Boardman were “racing” at the time of the accident.
This allegation is unsupported by any direct evidence and
would therefore, in the opinion of this Court, constitute
hearsay not sufficient to raise a question of material fact
in this matter.
As previously stated, the 1970 Caprice was never added
to the policy of Henry Boardman, nor was any premium
paid for any coverage under that or any other insurance
contract. Subsequent to the accident, the plaintiffs filed
this claim for uninsured motorist benefits arising from
this accident under the USAA policy in which Henry Board-
man was the named insured. USAA denied coverage as
to Joseph Boardman on the ground that he was driving
an owned motor vehicle, which was not an insured vehicle
under the subject policy, thereby being specifically ex-
cluded under the policy terms.
The following questions of law are present and will be
discussed fully herein by the Court: (1) Under conflict
of law principles, do the laws of Nebraska or Mississippi
provide the basis for the interpretation of the insurance
1. The USAA insurance policy provides:
“Exclusions: This policy does not apply under Part IV: (a) to bodily
injury to an insured while occupying an automobile (other than an
insured automobile) owned by the named insured or a relative or
through being struck by such an automobile;”
A-5
policy in the case sub judice? (2) Is the policy exclusion
of ‘“‘owned”’ vehicles not listed on the policy valid and
applicable? (3) If the exclusion is void and coverage exists,
is there aggregation or “stacking” of uninsured motorist
coverage for the three vehicles listed in the declarations
of Henry Boardman’s policy?
CONFLICT OF LAWS
Jurisdiction herein is based on diversity of citizenship,
compelling this Court, pursuant to the dictates of £rie,
to apply the conflict of laws rule which conforms to those
prevailing in the state in which it sits; vis-a-vis, the conflict
of laws rule of the state of Mississippi. Klaxon Co. v. Stentor
Electric Mfg. Co., 313 U.S. 487, 496, 61 Sup. Ct. 1020,
85 L.Ed. 1477, 1486 (1941).
The Mississippi Supreme Court, in dealing with conflict
of laws issues, has traditionally applied the “center of grav-
ity” test to matters of this nature. Under this test, the
court trying the cause of action will apply the law of the
place which has the most significant relationship to the
event and the parties, or, 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 respective litigation. See Craig
v. Columbus Compress & Warehouse Co., 210 So.2d 645
(Miss. 1968). In a case decided subsequent to Craig, the
Mississippi Supreme Court determined that ‘‘a case is to
be governed by the law of the forum unless it is expressly
shown that a different law applies, and in case of doubt,
a court will naturally prefer the laws of its own state.”
Mitchell v. Craft, 211 So.2d 509, 512 (Miss. 1969). The
Mitchell court proceeded to list certain criteria which a
court should consider in determining a conflict of laws
question. Borrowing from the RESTATEMENT SECOND
A
of CONFLICT OF LAWS § 145 (1968), the court stated:
(2). Contacts to be taken into account in
applying the principles of § 6 to deter-
mine the law applicable te an_ issue
include:
(a) the place where the injury oc-
curred,
(b) the place where the conduct
causing the injury occurred,
(c) the domicil, residence, nationality,
place of incorporation and place
of business of the parties, and
(d) the place where the relationship,
if any, between the parties is
centered.
These contacts are to be evaluated according
to their relative importance with respect to
the particular issue.
Id. at 515,
Although the Court is aware that Mitchell was a tort
action the applicability of those principles to the present
controversy is apparent from a reading of the subsequent
decision of the Fifth Circuit Court of Appeals concerning
the interpretation of an insurance contract. As alluded
to, the “center of gravity” test was applied in an insurance
contract interpretation context in the case of Bluebird
Body Co. v. Ryder Truck Rental, 583 F.2d, 717 (Sth Cir.
1978). Bluebird involved a situation where although the
A-7
accident giving rise to the cause of action occurred in Mis-
sissippi, the insurance company had paid off the claims
of the injured Mississippi residents as well as the driver and
passenger of the private car involved in the collision. As a
result, the court found that Mississippi had no real concern
with the issues involved in the litigation. Initially, the Blue-
bird court determined that since the suit was filed in United
States District Court in Mississippi, the court must apply
the general choice of law rule that would be applied by a
Mississippi court had the case been filed in state court.
It then proceeded to state that Mississippi recognized and
applied the “center of gravity” approach resolving choice
of law issues in contract cases. See Dunavant Enterprises,
Inc. v. Ford, 294 So.2d 788 (Miss. 1974). The court went
on to find that the contacts with the state of Georgia were
much more significant than those of Mississippi, which
therefore led to the conclusion that Georgia law would
control the interpretation of the policy. 583 F.2d at 723.
USAA has cited several cases for the proposition that
in choice of law situations involving insurance policies,
the Mississippi Supreme Court has held that the laws govern-
ing the construction of those policies are substantive in
nature and as such, the substantive law of the state where
the policy originated should apply. Nationwide Mutual
Ins. Co. v. Tillman, 249 Miss. 141, 161 So.2d 604, 613
(1964); United States Fidelity and Guaranty Co. v. Yost,
183 Miss. 65, 183 So. 260, 263, 185 So. 564 (1938); /nter-
state Life and Accident Co. v. Pannell, 169 Miss. 50, 152
So. 635, 638 (1934). It is evident from a perusal of those
decisions that they were based upon the ‘“‘center of grav-
ity” test so that the contacts with the state in which the
policy was issued were greater than those of the forum
state. The Court notes, though, that the defendants go
on to cite the Bluebird case as the leading authority for
the “center of gravity’ approach in resolving choice of
A-8
law issues in contract cases, and that furthermore, the
application of that rule under the circumstances of the
case sub judice would not alter the fundamental principal
of lex loci contractus. In reading the Bluebird decision,
it is apparent that the state of issuance was but one factor
which the court considered in determining which state
had the greater contacts.
The Court agrees with counsel for both parties that the
“center of gravity” test is the applicable standard in deter-
mining which law would apply herein. We therefore must
proceed to the consideration of the relevant factors in
determining whether the law of the forum state or the
law of the state where the contract was issued is control-
ling; that is, whether Nebraska or Mississippi law would
apply. The facts are basically undispuicd and show that
the USAA policy was issued in Nebraska to Henry Board-
man, who, at the time, was a resident of Nebraska. At the
time the policy was issued, it covered three vehicles which
were garaged in the state of Nebraska. It is undisputed
that USAA sets its insurance premiums for the state of
Nebraska based upon los: ratios as determined from poli-
cies of insurance issued there, which would also include
claims arising from accidents which occur in sister states.
The defendants therefore allege that considering these
contacts, under the Bluebird decision, the law of the state
of Nebraska would be the appropriate law to apply in the
interpretation of the USAA insurance policy; however,
we are of a different opinion when the contacts with the
state of Mississippi are examined. Those contacts include
the accident which has given rise to this cause of action.
The parties involved in the accident, including both plain-
tiffs, are all residents of the state of Mississippi; the vehicle
for which coverage is sought under the applicable policy
of insurance was purchased in the state of Mississippi; a
Mississippi license tag was issued for the vehicle; ali wit-
A-9
nesses to the accident reside in Mississippi; and finally,
at the time of the accident, the defendant, USAA, was
qualified to do business in Mississippi and, in fact, issued
insurance policies in Mississippi. Relevant to this considera-
tion, is the fact that USAA is an inter-insurance exchange
which principally issues insurance policies to persons who are
members of the United States armed forces and therefore
is aware of the transient nature of those insureds and their
families.
Considering the criteria laid down in Mitchell and Blue-
bird, and considering the relevant undisputed facts in the
case, we are of the opinion that Mississippi would meet
the “‘center of gravity” test as previously discussed, that
Mississippi has the most significant contacts with this case,
and therefore, that Mississippi iaw should be applied. The
factors which are of primary significance to the Court in
making this determination include the occurrence of the
accident and injury in Mississippi. Additionally, although
the policy of insurance was issued in Nebraska, by virtue
of the nature of USAA’s issuance of policies to members
of the armed forces, they could and should expect those
insured persons to be transient, and therefore, USAA could
anticipate being hailed into court in a foreign jurisdiction.
To require every insured who files a claim against USAA
to litigate that claim in the state in which the policy was
issued, notwithstanding other relevant factors which the
court should consider, would put an onerous burden on
those claimants and would fly directly in the face of the
“center of gravity” test. It is our conclusion therefore that
Mississippi law applies and controls the interpretation of
the insurance policy in this case.
THE EXCLUSION
The Court need not engage in a discussion of whether
the Joseph Boardman vehicle was, at the time of the acci-
A-10
dent, an “owned” vehicle as within the exclusionary clause
since, as will be more fully discussed, the determination
that Mississippi law is applicable has obviated the necessity
of such a determination. Furthermore, the Court notes
that the parties have stipulated that under the laws of Missis-
sippi, the vehicle in question would be an “owned” motor
vehicle. Thus the Court need only address the validity of
the exclusionary clause under Mississippi law.
It is incumbent upon the Court, however, to determine
initially whether vel non the plaintiff, Joseph Boardman,
is an insured under the uninsured motorist provisions of
the policy in question. USAA’s obligation to pay under
the uninsured motorist provisions of the policy are con-
tained in Coverage J.- The policy provisions delineate who
is an insured under the PART I - LIABILITY section of
the policy. That section states: “Persons Insured: The fol-
lowing are insureds under Part I: (a) with respect to the
owned automobile, (1) the named insured and any resi-
dent of the same household, .. . ; ‘relative’ means a rela-
tive of the named insured who is a resident of the same
household; . . . .” Not only has the defendant admitted
that under this provision of the policy the plaintiff, Joseph
2. Uninsured Motorists (Damages for Bodily Injury): To pay all
sums which the insured or his legal representative shali be legally
entitled to recover as damages from the owner or operator of an unin-
sured automobile because of bodily injury, sickness or disease, in-
cluding death resulting therefrom, hereinafter called “‘bodily injury,”
sustained by the insured, caused by accident and rising out of the
ownership, maintenance or use of such uninsured automobile; pro-
vided, for the purposes of this coverage, determination as to whether
the insured or such representative is legally entitled to recover such
damages, and if so the amount thereof, shall be made by agreement
between the insured or such representative and the company or, if
they fail to agree, by arbitration.
A-11
Boardman, would undoubtedly be an insured, but the evi-
dence is uncontradicted that he, although attending Missis-
sippi State and working during the summer months in Gulf-
port, Mississippi, maintained his permanent address with
his parents in Omaha, Nebraska. Furthermore, the evidence
indicates that the plaintiff, Joseph Boardman, was receiving
monetary support from his father, Henry Boardman, at the
time that he was a student at Mississippi State University.
We are further of the opinion that it is a reality of modern
society that children will often leave home to attend school
outside the state of their residence and that not only the
parents but the insurance companies themselves should
anticipate such an arrangement, and therefore, the Court
must interpret the meaning of the word “relative” in a
liberal manner so as to best effectuate the true intent of
the parties at the time that they entered into this insurance
contract. We therefore are of the opinion that Joseph Board-
man falls within the definition of a “relative” under the
policy terms and would thus be an insured thereunder.
The defense of USAA is, in part, predicated upon the
validity of the exclusionary clause of the contract in ques-
tion. That clause provides:
Exclusions: This policy does not apply under
Part IV:
(a) to bodily injury to an insured while
occupying an automobile (other than
an insured automobile) owned by the
named insured or a relative or through
being struck by such an automobile.
The validity of the aforementioned clause has been addres-
sed by the Mississippi Supreme Court in the case of Lowery
v. State Farm Mutual Automobile Insurance Co., 285 So.2d
A-12
767 (Miss. 1973), in which the court, in a very lengthy and
thorough opinion, discussed the validity of a similar clause
as it related to the uninsured motorist statutes of the state
of Mississippi. In Lowery, the plaintiff was riding and oper-
ating a Honda motor bike, and through no fault of his own,
was struck by a car driven by an uninsured motorist. As a
result of the accident, he sustained extensive injuries. He
alleged that since he lived in the household of his father,
he was insured under the terms of the policy against injury
resulting from the negligent acts of an uninsured motorist.
The plaintiff contended, at both the trial and appellate
level, that the insurance company was indebted to him
for the injuries sustained as a result of the accident since
he was injured by an uninsured motorist. The motorcycie
on which the plaintiff was riding was not listed as an insured
vehicle under the terms of the policy; however, the plain-
tiff did come within the definition of the term “insured”
thereunder. The issue in Lowery was whether the insurance
policy covered an insured owner of a vehicle and the mein-
bers of his family who are injured while riding in or on
another motor vehicle not mentioned in the insurance
policy. As stated, the policy also contained a clause which
provided, in part:
This insurance does not apply .. . to bodily
injuries to an insured while occupying or
through being struck by a land motor vehicle
owned by a named insured or any resident
of the same household, if such vehicle is
not an owned motor vehicle, .. . /d. at 769.
As previously stated, the Mississippi Supreme Court
engaged in a lengthy, thorough and analytical discussion
of the validity of such a clause as it related to the uninsured
motorist statutes, particularly those in Mississippi. We note
parenthetically that, as previously stated, since the defense
A-13
in the action sub judice is dependent upon this Court’s
applying Nebraska law as it relates to the validity of the
exclusionary clause, the previous determination that Miss-
issippi law applies obviates the necessity for a discussion
of how Nebraska law would treat this exclusionary clause.3
In holding that the above exclusionary clause was void
as a violation of public policy, the Mississippi Supreme
Court in Lowery stated:
In interpreting similar, if not identical
statutes, the vast majority of jurisdictions
have stated that the purpose of such unin-
sured motorist laws is to provide protection
to innocent insured motorists and passengers
injured as a result of the negligence of finan-
cially irresponsible drivers.
‘ * * * Its purpose is to give the same protec-
tion to the person injured by an uninsured
motorist as he would have had if he had been
injured in an accident caused by an automo-
bile covered by a standard liability policy.
Such provisions are to be liberally construed
to accomplish such purpose.’ Rampy vy. State
Farm Mutual Automobile Insurance Co.,
278 So. 24 428 (Miss. 1973).
Id. at 770.
3. Under Nebraska law, as outlined in Herrick v. Liberty Mutual,
274 N.W. 2d 147 (Neb. 1979), it appears that an exclusionary clause
of the type in the case sub judice would be valid, as it would bar
recovery of the plaintiff herein if we found that the insured was oper-
ating an “owned ” automobile other than an insured automobile
listed in the policy.
A-14
In its analysis, the Mississippi Supreme Court spoky to the
proper relation of such exclusionary clauses to the public
policy of the state as set forth in MISS. CODE ANN. §§
83-11-101 and 83-11-103 (Supp. 1980). In concluding, the
Lowery court stated: “The great weight of authority sup-
ports the appellant’s contention that the exclusionary clause
in the present case violates the public policy of this state as
manifested by the Mississippi Uninsured Motorist Act.”
Id. at 777.
Having considered and analyzed the clause in question, we
are of the opinion that under the Mississippi Supreme Court’s
holding in Lowery, the clause in the USAA policy is void
as against public policy, and if the Mississippi Supreme
Court were called upon to interpret the language of the
USAA policy, it would so hold. Since this Court is Erie
bound to follow the substantive law of Mississippi as stated
in Lowery, we hold that the clause in question is void be-
cause against public policy, and therefore, coverage would
exist as to the plaintiff, Joseph Boardman, as an insured
within the definitions of the policy. It is clear to this Court
that the holding in Lowery dictates such a result.
STACKING
The final question for the Court involves the question of
whether the plaintiffs, under the policy terms, can aggregate
or “‘stack” insurance coverage herein. The pertinent language
in the policy in question reads:
Limits of Liability:
(a) The limit of liability for uninsured
motorists coverage stated in the decla-
rations as applicable to “each person”
is the limit of the company’s liability
for all damages, including damages for
A-15
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 provision respecting each
person, the limit of liability stated in
the declarations as applicable to “each
accident”’ is the total limit of the com-
pany’s liability for all damages, including
damages for care or loss of services,
because of bodily injury sustained by
two or more persons as a result of any
one accident.
We are aware of the numerous decisions by the Mississippi
Supreme Court speaking to the question of “‘stacking”’ under
an uninsured motorist provision in an insurance policy, and
that we are Erie bound to interpret the provision in the
USAA policy in the case sub judice in light of those pro-
nouncements by the Mississippi Supreme Court.
It is clear to this Court that the ability to stack uninsured
motorists coverage is well established in Mississippi. One of
the first pronouncements on this issue was made in Southern
Farm Bureau Casualty Insurance Co. v. Roberts, 323 So. 2d
536 (Miss. 1975), wherein the Mississippi Supreme Court
held that the plaintiff could aggregate coverage unde: *he
uninsured motorist endorsement on three separate insurance
policies in order to recover all sums to which he was legally
entitled as damages for bodily injury. /d. at 537. See also
State Farm Mutual Auto Insurance Co. v. Bishop, 329 So. 2d
670 (Miss. 1976). The Roberts court based its decision upon
the statutorily required uninsured motorist endorsement,
stating that since premiums were charged and collected on
each policy, the policyholder should be allowed to realize
the benefits for which he had paid. /d. at 538.
A-16
Two years later, the Mississippi Supreme Court decided
Hartford Accident & Indemnity Co. v. Bridges, 350 So. 2d
1379 (Miss. 1977), a case which is analagous to the case sub
judice, and in which the Mississippi Supreme Court relied
upon Roberts in reaching its decision. The pertinent limits
of liability clause in the policy in the Bridges case read:
The limit of liability for uninsured motorists
coverage stated in the declarations as appli-
cable to “teach 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 provision respecting each person,
the limit of liability stated in the declarations
as applicable to “each accident” is the total
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 acci-
dent. /d. at 1381.
As is apparent, the policy language in Bridges is identical
to that in the USAA policy at issue herein. Although it
determined that the limits of liability language was ambigu-
ous, the Bridges court did recognize that an insurance com-
pany could legally limit its uninsured motorist coverage to
the minimum specified by the financial responsibility law.
Id. See Talbot v. State Farm Mutual Automobile Insurance
Co., 291 So. 2d 699 (Miss. 1974). The court went on to
state that this must be done by “clear ard unambiguous
language.”’ The conclusion of the court was that the language
in the limits of liability clause was “ambiguous and must
be construed most strongly against its creator.” /d. at 1382.
Again, “stacking” was allowed. In giving further support
A-17
to its holding, the court found that, as in the present case,
the insurance company had charged a separate premium
for the uninsured motorist coverage on each automobile
and not a lump sum premium.‘ As previously stated, the
Bridges decision stands for the proposition that if the insur-
ance company wished to limit its coverage, it must provide
for such limitation in “clear and unambiguous language”
which wou.d impart to the insured a clear understanding
that such limitations were present.
In Pearthree vy. Hartford Accident & Indemnity Co., 373
So. 2d 267 (Miss. 1979), the supreme court again held
that the plaintiff could aggregate uninsured motorist coverage
on two cars, and that this could be done to determine the
overall liability of the insured. /d. at 268. In Pearthree,
the court determined that the policy language fell squarely
within the criteria established by Bridges, but that the
interpretation allowing aggregation was required because of
the ambiguity found in the limiting clause in the policy
covering more than one car, and not because separate premi-
ums were charged. /d. at 270. Again, the material language
in we Pearthree decision tracks that of the exclusionary
4. This Court is cognizant that the charging of a separate premium
is not necessarily controlling in determining whether the insured has
aggregate coverage under the uninsured motorist provisions of the
policy; however, as stated in Bridges, the charging of a separate pre-
mium raises the presumption or inference that the coverage in the
policy is the same as would be supplied if the coverage was provided
for in separate and distinct policies covering the same auto vehicles.
A-18
clause in the case sub judice.®
In 1980, United States District Judge Dan M. Russell,
Jr., handed down his decision in St. Arnaud y. Allstate
Insurance Co., 501 F. Supp. 192 (S.D. Miss. 1980), in which
he cited Roberts, Bishop, Bridges, and Pearthree, holding
that there existed an ambiguity in the limits of liability
clause in the uninsured motorist provisions of the policy,
and further, that the “stacking” of the uninsured motorist
coverage would be allowed to determine the insured’s limits
of liability. Although we are cognizant that the determina-
tion of the ambiguity in the St. Arnaud case turned partly
upon the definition of the term “‘under-insured automobile,”
we feel compelled to note that the limits of liability clause
in St. Arnaud in all material respects was identical to that
in the USAA policy in question, and that the court in St.
Arnaud, after making the determination that the term
“under-insured automobile” actually meant uninsured
motorist, went on to find that an ambiguity did exist in the
5. The limitation clause in the Pearthree case read:
Limits of liability:
(a) The limit of liability for Uninsured Motorist (Family Protection)
Coverage stated in the declaration 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 per-
son as the result of any one accident and, subject to the above provision
respecting each person, 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 a result
of any one accident. Jd. at 269.
A-19
terms of the policy because the company did not clearly and
unambiguously restrict its liability therein.6
Finally, this Court is quite familiar with the case of Blan-
sett v. American Employers Insurance Co., 652 F.2d 535
(Sth Cir. 1981), wherein the Fifth Circuit affirmed this
Court’s decision limiting coverage to $10,000 on a fleet
policy insuring seven vehicles, notwithstanding that the
policy specified a separate premium for the uninsured motor-
ist coverage provided on each vehicle. In limiting coverage in
the Blansett case, this Court based its decision on the langu-
age of the limits of liability clause in the insurance policy.
Comparing the language of the limits of liability clauses in
the Blansett case and in the policy presently under consider-
ation, it is clear that in Blansett, the insurer clearly and
unambiguously limited its uninsured motorist coverage
to a minimum amount specified by the financial responsi-
bility law. The pertinent part of the policy, and more speci-
fically the limitations of liability clause, in the Blansett case
read:
6. Under the uninsured motorist coverage, the policy in St Arnaud
stated that:
(6) (a) The limit of liability stated in the Declarations
as applicable to “each person” is the limit of All-
state’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 provision respect-
ing each person, the limit of liability stated in the
Declarations as applicable to “each accident” is the
totc' limit of Allstates’s liability for all damages,
inclu: ag damages for care or loss of services, because
of bocily injury sustained by two or more persons
as the result of any one accident. Jd. at 193.
A-20
Il. LIMITS OF LIABILITY
Regardless of the number of (1) persons or
insureds under this pclicy, (2) persons who
sustain bodily injury, (3) claims made or
suits brought on account of bodily injury
or (4) highway vehicles to which this policy
applies,
(a) The limit of liability stated in the
schedule as applicable to ‘each person”
is the limit of the company’s liability
for all damages because of bodily injury
sustained by one person as the result
of any one accident and, subject to the
above provision respecting “each per-
son,”’ the limit of liability stated in the
schedule as applicable to “each acci-
dent” is the total limit of the company’s
liability for all damages because of
bodily injury sustained by two or more
persons as the result of any one acci-
dent. /d. at 536-537.
(Emphasis added.)
There is a distinction between the policy language in
Blansett and the USAA policy. The relevant phrase in Blan-
sett is: “Regardless of the number of . . . highway vehicles
to which this policy applies. . . .”” This phrase is not found in
the USAA policy which, however, does describe a “limit
of liability” in language identical to that found in Bridges.
Additionally, in Blansett, the limits of liability clause con-
cerned all claims made on account of bodily injury, which
would include uninsured motorist claims, and thus provided
the rationale for limiting coverage therein. In Blansett, the
A-21
Fifth Circuit also recognized the well established rule that if
the language in question could be said to be unclear or am-
biguous, it must be construed most strongly against the
insurer, the drafter of it. Jd. at 536; State Farm Mutual
Automobile Insurance Co. v. Taylor, 233 So. 2d 805 (Miss.
1970).
Finally, the Fifth Circuit stated, ““Even straining to do so,
we can discern no relevant ambiguity in this language, ’ and
found that the language in the Blansett case was sufficiently
clear to limit the coverage under the uninsured motorist
provisions of the policy. 652 F.2d at 537.
Considering the policy language in the instant case, we
find that the plaintiffs should be permitted to aggregate or
“stack” the coverage afforded by the insurance policy. In
addition to the aforementioned dictates by the courts of
Mississippi, the plaintiff, Henry Boardman, did own an
automobile policy covering three vehicles on which separate
premiums were paid, and although not dispositive of the
question of the limits of liability herein, it is indicative of
and does raise a presumption which supports aggregation.
Aggregation should also be permitted because of the specific
language employed in the subject policy. Identical language
was found to be ambiguous and sufficiently unclear to
allow aggregation in the Bridges, Pearthree, and St. Arnaud
decisions. We find that the language which USAA has used in
an attempt to legally limit its liability in order to prevent
aggregation is not clear and unambiguous. Furthermore,
the language of the policy itself contains no such appropriate .
limiting language; vis-a-vis, language which would sufficiently
impart to the insured the limitations of liability under the
uninsured motorist provisions of the policy as was present
in Blansett. Instead, we find that the language itself indica-
tes that aggregation should be permitted. Under the pro-
visions of the policy entitled “Conditions,” it is stated that
A-22
“Conditions 1, 2, 3, 6, 14, 15, 16 and 18 apply to all Parts”
of the policy, while “Conditions 4 and 5, 7 through 13, and
17 apply only to” Parts I, II, and III. Part IV (the uninsured
motorist provision) is excluded from Condition 4, which
provides, in part, “When two or more automobiles are
insured hereunder, the terms of this policy shall apply
separately to each. . . .” It is clear from this language that
separate and distinct coverage as to the uninsured motorist
provision is specifically excluded, and therefore, a fortiori
that aggregation under that provision is contempiated. This
finding is supported additionally by the fact that USAA,
under Part IV of the policy, has agreed “‘[t]o 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 . . . sus-
tained by the insured,. .. .”
This Court therefore finds that as a matter of law there
exists an ambiguity in the limits of liability clause in the
USAA policy. Furthermore, there is a conflict existing
between conditions for the policy and the iimits of liabil-
ity clause so that under the dictates of Blansett and other
decisions, interpretation of such a clause as it relates to cover-
age must be resolved in favor of the plaintiffs hereunder,
and therefore, aggregation must be permitted. See State
Farm Mutual Automobile Insurance Co. v. Taylor, 233
So. 2d 805 (Miss. 1970).
A-23
CONCLUSION
In sum, Mississippi law applies under the ‘center of grav-
ity” test; that under the decisions of the Mississippi Supreme
Court, the exclusionary clause relied upon by USAA is null
and vild as a violation of public policy; that Joseph Board-
{ man is an insured under the USAA policy herein; that the
| contract of insurance existing between the plaintiffs and the
defendant provides uninsured motorist coverage to the
plaintiff, Joseph Boardman; and that the language of the
limits of liability clause herein is ambiguous, thus permitting
aggregation of the policy limits to provide a total of $60,000
uninsured motorist coverage for the plaintiff, Joseph Board-
man.
We therefore are of the opinion that the plaintiffs’ Motion
for Partial Summary Judgment is well taken and is hereby
granted. Accordingly, the defendant’s Motion for Summary
Judgment is without merit and is denied.
A Judgment conforming with this opinion, approved as
to form by counsel, shall be submitted to the Court within
the time and manner provided by our local rules.
THIS the 21st Gay of October, 1982, at Biloxi, Mississippi.
/s/ WALTER L. NIXON, JR.
UNITED STATES DISTRICT JUDGE
A-24
APPENDIX B
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.
In action for uninsured motorist coverage under automo-
bile insurance policy, the United States District Court for the
Southern District of Mississippi, Walter L. Nixon, Jr., Chief
Judge, found, interalia, that Mississippi law would be applied
under Mississippi choice-of-law “‘center of gravity” test, and
insurer brought interlocutory appeal. The Court of Appeals,
Brown, Circuit Judge, held that since weight which would
be given to various factors by Mississippi was unknown,
Court of Appeals would certify choice-of-law questions to
Mississippi Supreme Court.
Order accordingly.
1. Federal Courts KEY 392
Where action concerning uninsured motorist coverage
involved choice of law which would be applied by Mississippi
courts and weight which would be given to various factors
by Mississippi was unknown, Court of Appeals would certify
choice-of-law questions to Mississippi Supreme Court. Miss.
Sup.Ct.Rules, Rule 46.
A-25
2. Insurance KEY 467.51(1)
Under Nebraska law, automobile insurance contract’s
exclusionary language denying benefits for uninsured motor-
ists coverage is valid.
3. Federal Courts KEY 392
Mississippi Supreme Court would not be bound by perim-
eters of questions certified to it by Court of Appeals.
Harry R. Allen, Billy W. Hood, Gulfport, Miss., for plain-
tiffs-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 deci-
sion and certify decisive questions to the Supreme Court of
Mississippi,! pursuant to its Rule 46, adopted August 1,
1980.
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
A-26
Our problem—choice of law, Mississippi or Nebraska—aris-
es 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 Ur'ted 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 io the policy of his father, nor was any
premium paid for coverage under any other insurance con-
tract. Joseph’s claim for compensation for his personal
injuries arising out of an accident with an uninsured motor-
ist 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
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).
A-27
vehicle as defined under the USAA policy of his father.2
2.
PART IV—PROTECTION AGAINST UNINSURED MOTORISTS
COVERAGE J-—UNINSUREC “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, «xcept 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 passen-
ger, 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 » hin 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 automobile while operated by the named in-
sured; and the term “insured automobile” includes a trailer
while being used with an automobile described in (a), (b), (c) or
(d) above, but shall not include:
(1) any automobile or trailer owned by a resident of the same
household as the named insured,
(2) any automobile while used as a public or livery conveyance,
A-28
Plaintiffs filed a motion for partial summary judgment,
seeking an adjudication that there existed uninsured motor-
ist 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 fo the Mississippi Safety Responsibility Act.
In its opinion, the District Court held that Mississippi law
would be applied to the insurance contract under the Miss-
issippi choice of law “center of gravity” test. The Court
also held that (i) the exclusionary clause? 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 ambigu-
ous. thus permitting stacking of the policy limits to provide
or
(3) any automobile while being used without the permission
of the owner.
EXCLUSIONS: This policy does not apply under Part IV:
(a) to bodily injury to an insured while occupying an automobile
(other than an insured automobile) owned by the named insured
or a relative, or through being struck by such an automobile. . .
(emphasis added).
3. See supra note 2.
A-29
a total uninsured motorist coverage of $60,000. The inter-
locutory appeal of USAA was granted on May 16, 1983.
[1,2] 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 grav-
ity”’ test, such a decision under that test cleariy applicable
to the fact situation in this case eludes us.4 While it is clear
4. As a partial example, the court has closely examined the following
cases involving Mississippi choice of law principles for guidance in this
matter: Maryland Casualty Co. v. Integrity Insurance Co., 693 F.2d
506, 511 (5th Cir.1982); Vicon, Inc. v. CMI, Corp., 657 F.2d 768
(5th Cir.1981); FMC Finance Corp. v. Reed, 592 F.2d 238 (5th Cir.
1979); Blue Bird Body Co. v. Ryder Truck Rental, 583 F.2d 717
(5th Cir.1978); Bunge Corp. v. Biglane, 418 F.Supp. 1159 (S.D.Miss.
1976); Maryland Casualty Co. v. Williams, 377 F.2d 389 (5th Cir.
1967); Mid-Continent Telephone Corp. v. Home Telephone Co., 319
F.Supp 1176 (N.D.Miss.1970); Spragins v. Louise Plantation, 391
So.2d 97 (Miss.1980); Vick v. Cochran, 316 So.2d 242 (Miss.1975);
see Dunavant Enterprises, Inc. v. Bowman, 274 $0.2d 109 (Miss.
1973); Mitchell v. Craft, 211 So.2d 509 (Miss.1968); Craig v. Colum-
bus Compress & Warehouse Co., 210 So.2d 645 (Miss.1968); Nation-
wide Mutual Insurance Co. v. Tillman, 249 Miss. 141, 161 So.2d 604
(1964).
A-30
that under this approach, “the Court trying the action applies
the law of the place which has the most significant relation-
ship 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 Miss-
issippi to the choice influencing principles of § 6 and the
relevant comments of the Restatement (Second of Con-
flicts,> it is also unclear how the Mississippi courts employ
5. § 6. Choice-of-Law Principles
(1) A court, subject to constitutional restrictions will follow a
statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors, relevant to the
choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the
relative interests of those states in the determination of the
particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be
applied.
A-31
the more specific § 1886 and § 1937 which appear to bear
cn the case before us. Also at stake is the weight of the pol-
icy embodied in the Mississippi Safety Responsibility Act in
6. § 188. Law Governing the absence of Effective Choice by the
Parties
(1) The rights and duties of the parties with respect
to an issue in contract are determined by the local
law of the state which, with respect to that issue, has
the most significant relationship to the transaction
and the parties under the principles stated in § 6.
(2) In the absence of an effective choice of law
by the parties (see § 187), the contracts to be taken
into account in applying the principles of § 6 to
determine the law applicable to an issue include:
(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the
contract, and
(e) the domicil, residence, nationality, place of
incorporation and place of business of the parties,
These contacts are to be evaluated according to their
relative importance with respect to the particular
issue.
(3) If the place of negotiating the contract and the
place of the performance are in the same state, the
local law of this state will usually be applied, except
as otherwise provided in §§ 189-199 and 203.
7. § 193. Contracts of Fire, Surety or Casualty Insurance
The validity of a contract of fire, surety or casualty
insurance and the rights created thereby are deter-
mined by the local law of the state which the parties
understood was to be the principal location of
the insured risk during the term of the policy, unless
with respect to the particular issue, some other state
has a more significant relationship under the prin-
ciples stated in § 6 to the transaction and the parties,
in which event the local law of the other state will
be applied.
A-32
helping to assure that motorists involved in accidents with
uninsured motorists do not become public charges in Missis-
sippi. Finally, depending almost certainly on the choice of
law decision is the validity of the USAA policy’s uninsured
motorist exclusionary clause.8
8. If Nebraska law is held to govern the insurance contract. the
exclusionary clause is valid because the Supreme Court of Nebraska
has clearly upheld the validity of the insurance contract’s exclusionary
language denying benefits for uninsured motorist coverage. Accord-
ingly, if Nebraska law applies under the Mississippi “center of gravity”
test, Joseph Boardman cannot recover for his injuries. See Herrick v.
Liberty Mutual Fire Insurance Co., 202 Neb. 116, 274 N.W.2d 147
(1979). The Herrick Court held as follows:
In Shipley v. American Standard Insurance Co.
of Wisconsin, 183 Neb. 109, 158 N.W.2d 238 (1968),
the Plaintiff was operating an uninsured motor-
cycle when he was injured in a collision with another
motorcycle operated by an uninsured motorist. We
held that the Plaintiff could not recover under the
uninsured motorist provision of a policy which
insured a Chevrolet automobile owned by the Plain-
tiff excluded coverage for “bodily injury to an
insured while occupying an automobile (other than
an insured automobile) owned by the named in-
sured. . . . We held that an uninsured motorist en-
dorsement should be interpreted in light of the
statutory requirements concerning victims of neg-
ligent and financial irresponsible motorists, citing
Stephens v. Allied Mutual Insurance Company,
182 Neb. 562, 156 N.W.2d 133, (1968). An over-
riding public policy of protecting an owner/operator
who inexcusably has no applicable bodily injury
liability is not presently discernible.
An insurance contract should be interpreted in
accordance with reasonable expectations of the
insured at the time of the contract, Stephens v.
Allied Mutua!, supra. Plaintiff does not assert that
he had bodily injury liability coverage applicable
to his motorcycle under the contract. He might
A-33
Fully aware of Mississippi’s imprimatur on § 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 for-
tuitous 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 net covered by insurance policies obtained at earlier
times and places by persons in our nomadic society.
expect the uninsured motorist endorsement to
cover loss while he was operating his motorcycle,
but such expectations are unreasonable.
The statute, of course, relates to automobile lia-
bility insurance policies. It requires that uninsured
motorist coverage be included in any such policies
delivered or issued for delivery in the state unless
rejected by the insured. The purpose of the coverage
is to protect the insured from uninsured motorists
who do not have liability insurance on their vehicle.
It is difficult to find a policy in the statute to protect
one uninsured motorist from another uninsured
motorist. This is what the Shipley case referred to
when it stated: “An overriding public policy of
protecting an owner/operator who _ inexcusably
has no applicable bodily liability coverage is not
presently discernible.” (Emphasis added)
A-34
Concerned that we uphold our Erie? 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.
[3] Following our usual practice, we are requesting
counsel to submit a joint statement of facts and a proposed
certificate of questions, see West yv. Caterpillar Tractor
Co., 504 F.2d 967 (Sth Cir. 1974).1°
WEST KEY NUMBER SYSTEM
9. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82
L.Ed. 1188 (1938).
10. We point out to the Supreme Court of Mississippi, no doubt
unnecessarily, that they need not feel bound in any fashion by the
perimeters of the questions certified. We iterate that
[T]he particular phrasing used in the certified ques-
tion is not to restrict the Supreme Court’s con-
sideration of the problems involved and the issues
as the Supreme Court perceives them to be in its
analysis of the record certified in this case. This
latitude extends to the Supreme Court’s restatement
of the issue or issues in the matter in which the
answers are to be given, whether as a comprehensive
whole or in subordinate or even contingent parts.
Martinez v. Rodriguez, 394 F.2d 156, 159 n. 6 (5th Cir.1968).
A-35
APPENDIX C
Joseph BOARDMAN and Henry Boardman,
Plaintifi-Appellants,
Vv.
UNITED SERVICES AUTOMOBILE ASSOCIATION,
Defendant-Appellee.
No. 83-4310.
United States Court of Appeals,
Fifth Circuit.
Oct. 23, 1984.
Harry R. Allen, Billy W. Hood, Gulfport, Miss., for plain-
tiffs-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 appeal presents important issues of modern choice
of law principles which are particularly appropriate for
resolution by the Mississippi Supreme Court. Broadly speak-
ing, at issue is what relative weight a Mississippi court would
give-employing the Mississippi “center of gravity” test-
to the choice of law principles in § 6, 188, and 193 of the
A-36
Restatement (Second) of Conflicts.
Following our usual practice, we requested that the
parties submit a proposed agreed certificate of the issues
for decision. Commendably, they have reached full agree-
ment. Since we also agree that these are the substantive
issues presented, we submit the parties’ statement of facts
and our issues disclaiming, however, any intention or desire
that the Supreme Court of Mississippi confine its reply
to the precise form or scope of the questions certified.
CERTIFICATE FROM THE UNITED STATES COURT
OF APPEALS FOR THE FIFTH CIRCUIT TO THE SU-
PREME COURT OF MISSISSIPPI
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 in this Court
involves questions or propositions of the law of the State
of Mississippi which are determinative of the cause, and
there appear to be no controlling precedents in the decision
of the Supreme Court of Mississippi. This Court hereby
certifies the fcllowing questions of law to the Supreme
Court of Mississippi for instructions concerning said ques-
tions of law, based on the facts recited herein:
1. Style of the Case.
The style of the case in which this certificate is made
is Joseph Boardman and Henry Boardman, plaintiffs/appel-
lees v. United Services Automobile Association, defendant/
appellant, being case number 83-9017, United States Court
of Appeals for the Fifth Circuit, such case being an appeal
from the United States District Court from the Southern
A-37
District of Mississippi.
2. Statement of the Case.
|. USAA issued an automobile insurance policy to Henry
W. Boardman, a resident of Qmaha, Nebraska, for a policy
period covering September 15, 1978, to September 15,
1979. (R 83)
2. The insurance contract was issued in Nebraska, while
Henry Boardman was stationed with the United States
Air Force in Omaha. (R 83)
3. The policy covered a 1975 Oldsmobile, a 1974 Ford
Pinto, and a 1977 Ford Pinto, all principally garaged in
Nebraska. (R 83)
4.The Plaintiff-Appellee Joseph Boardman, age 19,
entered Mississippi State University of Starkville, Missis-
sippi, during the Fall and Spring semesters of the 1978-
1979 term (deposition of Joseph Boardman, page 8).
5. During the Fall and Spring semesters of 1978-1979,
Joseph was permitted by his father, Col. Henry Boardman,
to operate the Pinto automobile which was insured under
the policy of insurance issued by the Defendant, United
Services Automobile Association, in the name of Plain-
tiff-Appellee, Col. Henry Boardman.
6.In May of 1979, Joseph Boardman, came to Gulfport,
Mississippi, directly from school to work for his paternal
uncle who owns and operates Coast Materials, located in
Gulfport, Mississippi (deposition of Joseph Boardman,
page 9).
7. Joseph Boardman drove the Ford Pinto automobile
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to Gulfport and operated this automobile until his father
came to Gulfport and recovered this vehicle in order to
deliver the automobile to Joseph’s sisters who live in Cin-
cinnati, Ohio (deposition of Henry Boardman, page 11).
8. On June 14, Henry Boardman requested the Defendant
to remove Joseph as a named insured on the automobile
insurance policy (deposition of Henry Boardman, page 10).
9.USAA effected the deletion of Joseph Boardman
on June 16, 1979. (R 95)
10. On June 20, 1979, Joseph Boardman purchased
a Chevrolet Caprice automobile from Jay Jay Chevrolet,
Gulfport, Mississippi.
11. An application was made by Joseph Boardman
for title and additionally he purchased a Mississippi license
tag for the Chevrolet Caprice automobile (deposition of
Joseph Boardman, pages 16, 19).
12. The 1970 Chevrolet was never added to the policy
of Henry Boardman, nor was any premium paid for any
coverage under that or any other insurance contract.
13. On July 8, 1979, at approximately 3:00 a.m., Joseph
Boardman was injured in an accident with an uninsured
motorist, David Turan, in Gulfport, Mississippi, while driving
the 1970 Chevrolet.
14. The Plaintiff-Appellee, Joseph Boardman, did not
receive title to tiic Chevrolet automobile until July 9, 1979,
or one day following the accident (affidavit of Henry Board-
man, R 57).
15. Damages sustained by Joseph Boardman include
A-39
severe personal injuries which are undisputed.
16. The claim for uninsured motorist benefits arising
from the accident under the USAA policy in which Henry
Boardman was the named insured, was denied to Joseph
Boardman on the grounds that Joseph was driving an owned
motor vehicle, which was not an insured vehicle under the
subject policy, thereby being specifically excluded under
the policy terms.
17. Nebraska law upholds the “owned vehicle” exclu-
sionary clause.
18. The “owned vehicle” exclusionary clause is invalid
under Mississippi law.
3. Questions to be Certified.}
What relative weight would Mississippi give—applying
the “center of gravity” test to the choice of law principles
of § 6, 188, and 193, of the Restatement (Second) of
conflicts-to the undisputed facts of this case on the fol-
lowing issues.
1. Would Mississippi or Nebraska law apply
in construing the USAA automobile insur-
ance contract issued to Henry Boardman;
or stated differently, under the Mississippi
“center of gravity” test, which state would
L. We emphasize our disclaimer again, see note 10, Boardman
v. United Services Automobile Association, 742 F.2d 847 (5th Cir.
1984) that our phrasing of the questions is not meant to restrict the
supreme court of Mississippi to answering the issues as it perceives
them.
A-40
be deemed to have the most significant
contacts with the insurance policy for choice
of law purposes?
2. Would Mississippi or Nebraska law govern
the validity of the uninsured motorist exclu-
sionary clause;2 or stated differently, if
Nebraska law is held to govern the insurance
contract, does Mississippi public policy
prevent the enforcement of the exclusionary
~ clause?
3. Would Mississippi or Nebraska law govern
the issue of vehicle ownership; or stated
differently, would Mississippi under its
“center of gravity” test consider Missis-
sippi or Nebraska to have the most signi-
ficant contacts for the purpose of establish-
ing the law governing vehicle ownership?
The final question proposed by the parties—assuming
arguendo that uninsured motorists coverage exists is ag-
gregation allowed-—has recently been decided in a case cer-
tified by our Court to the Mississippi Supreme Court. Gov-
ernment Employces Insurance Co. v. Brown, 46 So.2d
1002 (Miss. 1984) appears to permit aggregation.? Accord-
ingly, possessed of a clear answer, we do not submit this
issue to the busy Mississippi tribunal.
The entire record in this case, together with copies of
2. The insurance policy exclusionary clause can be found in note
2, Boardman v. United Services Automobile Association, 742 F.2d
847 (5th Cir. 1984).
*3. Footnote omitted.
A-41
the briefs of the parties, our initial opinion, and the agreed
certification are transmitted herewith.
DATE:
CERTIFIED.
A-42
APPENDIX D
Joseph BOARDMAN and Henry W. Boardman
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION
No. 55967.
Supreme Court of Mississippi
May 22, 1985
I.
This case comes to us via the lateral appellate process
authorized by Rule 46 of the rules of this Court. Specifically,
three questions have been certified to us by the United States
Court of Appeals for the Fifth Circuit, as will appear below,
although that court has disclaimed “‘any intention or desire
that the Supreme Court of Mississippi confine its reply to
the precise form or scope of the questions certified”.
Rule 46, as originally promulgated, contemplated that
we would answer via certification pure questions of law. The
questions presented here in no insignificant part are in the
nature of law application questions—what result obtains from
applying the rules of law to the facts of the case?—rather
than pure questions of law as to what is the law of Missis-
sippi on a particular point. There are presented, however,
matters with respect to which we perhaps may be of help.
In a spirit of cooperative federalism, and motivated further
by the realization that this action arises out of an incident
Occurring almost six years ago and obviously needs to be
brought to a conclusion as soon as possible, we will provide
several insights which we hope will be of assistance to the
Court of Appeals.
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En route and for future reference, we will discuss our
certification procedure and try to delineate more clearly
what was intended by this court in the promulgation of
Rule 46.
II.
Included in the opinion of the Court of Appeals setting
forth the questions certified is a statement of facts. From our
review of the record it appears that there is no dispute
regarding any fact material to the questions certified. In
summary form, the facts are:
1. United Services Automobile Association (USAA)
is an inter-insurance exchange which issues insurance policies
exclusively to persons who are members of the Armed
Forces of the United States. USAA was the Defendant in
the United States District Court for the Southern District
of Mississippi and is the Appellant in the Court of Appeals.
2. USAA was and is qualified to do business in Missis-
sippi and in fact has issued insurance policies in Mississippi.
3. USAA issued an automobile insurance policy to
Col. Henry W. Boardman, a resident of Omaha, Nebraska,
for a policy period covering September 15, 1978, to Sept-
ember 15, 1979. Henry W. Boardman was one of the Plain-
tiffs in the District Court and is one of the Appellees in the
Court of Appeals.
4. The insurance contract was issued in Nebraska
through USAA’s agent in Nebraska, while Henry Boardman
was stationed with the United States Air Force in Omaha.
5. The policy covered a 1975 Oldsmobile, a 1974 Ford
Pinto, and a 1977 Ford Pinto, all principally garaged in
Nebraska.
A-44
6. The other Plaintiff-Appellee, Joseph W. Boardman,
age 19, entered Mississippi State University at Starkville,
Mississippi, during the Fall and Spring semesters of the
1978-1979 term.
7. During the Fall and Spring semesters of 1978-1979,
Joseph was permitted by his father, Col. Henry Boardman, to
operate the Pinto automobile which was insured under the
policy of insurance issued by the Defendant, USAA, in the
name of Plaintiff-Appellee, Col. Henry Boardman.
8. In May of 1979, Joseph Boardman, came to Gulf-
port, Mississippi, to take a summer job working for his pater-
nal uncle who owns and operates Coast Materials, located
in Gulfport, Mississippi.
9. Joseph Boardman drove the Ford Pinto automobile
to Gulfport and operated this automobile until his father
came to Gulfport and recovered this vehicle in order to
deliver the automobile to Joseph’s sisters who live in Cin-
cinnati, Ohio.
10. On June 14, 1979, Henry Boardman requested
USAA to remove Joseph Boardman as a named insured on
the automobile insurance policy.
11. USAA effected the deletion of Joseph Boardman on
June 16, 1979.
12. On June 20, 1979, Joseph Boardman purchased a
used 1970 Chevrolet Caprice automobile from Jay Jay
Chevrolet, Gulfport, Mississippi.
13. An application was made by Joseph Boardman for
a certificate of title and, additionally, Joseph purchased a
Mississippi license tag for the Chevrolet Caprice automobile.
A-45
14. The 1970 Chevrolet was never added to the insurance
contract between USAA and Col. Henry Broadman, nor was
any premium paid to USAA for any coverage under that or
any other insurance contract.
15. On July 8, 1979, at approximately 3:00 a.m., Joseph
Boardman was injured in an accident with an uninsured
motorist, David Turan, in Gulfport, Mississippi, while driving
the 1970 Chevrolet.
16. The Plaintiff-Appellee, Joseph Boardman, did not
receive title to the Chevrolet automobile until July 9, 1979,
or one day following the accident.
17. Damages sustained by Joseph Boardman as a result
of the accident of July, 8, 1979, include severe personal
injuries which are undisputed.
18. The USAA policy afforded uninsured motorist
coverage to all insureds under the policy but contained the
following exclusion therefrom:
EXCLUSIONS: This policy does not apply
under Part IV:
(a) to bodily injury to an insured while
occupying an automobile (other than an
insured automobile) owned by the named
insured or a relative, or through being struck
by such an automobile . . . . [emphasis
added]
This clause is referred to as the ‘“‘owned vehicle exclusionary
clause”’.
19: The claim for uninsured motorist benefits arising
from the accident under the USAA policy in which Henry
A-46
Boardman was the named insured, was denied to Joseph
Boardman on the grounds that Joseph was driving an owned
motor vehicle, which was not an insured vehicle under the
subject policy, thereby being specifically excluded under
the policy terms.
20. Nebraska law appears to uphold the ‘‘owned vehicle”
exclusionary clause, See Herrick y. Liberty Mutual Fire
Insurance Company, 202 Neb. 116, 118-19, 274 N.W.2d
147, 148-49 (1979); Shipley v. American Standard Insurance
Company of Wisconsin, 183 Neb. 109, 111-12, 158 N.W.2d
238, 240 (1968).
21. The ‘‘owned vehicle” exclusionary clause does not
preclude uninsured motorist coverage under Mississippi law.
See Lowery v. State Farm Mutual Automobile Insurance Co.,
285 So.2d 767, 777-78 (Miss. 1973).
The process of adjudication, both at the trial level and at
the appellate levei, has a three-fold nature. The point is rather
elementary, but it needs restatement here.
First is the function of fact identification. The court must
make a determination of, and then state, the relevant factual
characteristics of the particular matter at bar.
Second, the court must make a formulation in general
terms of the relevant law to be applied. This is the function
of law declaration.
Obviously, the chronological ordering of the performance
of the fact identification function and the law declaration
function becomes a chicken-and-the-egg proposition, for the
facts help determine what rules of law are relevant, and the
rules of law help determine what facts are relevant.
A-47
Third, and finally, there is the function of law application.
This is the job of linking up the particular with the general,
the facts with the law. This is the point of ultimate decision
in the case.
Failure to keep these three functions distinct in mind has
led to problems which we need not expound upon here.
Those problems are brought to mind, however, as we con-
front the questions put to us by the Court of Appeals in this
case, since we have been asked to advise the Court of Appeals
what state’s law governs the instant controversy—Mississippi
or Nebraska. That is a law application question.
We recognize that the Court of Appeals is charged to as-
certain just what our choice of law rules are. See Klaxon
Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487,
496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477, 1480-81
(1941); Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3,
4-5, 96 S.Ct. 167, 168, 46 L.Ed.2d 3, 5 (1975). By our
Rule 46 we have recognized our responsibility to supply
such rules when there is substantial room for doubt regarding
their content. Since state law is to be applied, we recognize
and appreciate the spirit of cooperative federalism implicit
in the certification practice in the Fifth Circuit whatever
discordant notes may be produced in a given case. We are
further motivated in the case at bar by our view that the
United States District Court for the Southern District of
Mississippi has misunderstood and misapplied our law.
[1] The point is that our Rule 46 was adopted to enable
us to answer questions related to the Jaw declaration func-
tion—and that function only. This we have done in large
part by the adoption of the center of gravity test. See Craig
v. Columbus Compress & Warehouse Co., 210 So.2d 645,
649 (Miss.1968); Mitchell v. Craft, 211 So.2d 509, 512
(Miss.1968). Restatement (Second) of Conflicts of Laws,
§6, has long since been incorporated into our law. See
A-48
Mitchell y. Craft, 211 So.2d at 516; Spragins v. Louise
Plantation, Inc., 391 So.2d 97, 100 (Miss. 1980).
Since 1968 we have refined and applied the Craig-Mitchell
center of gravity test in a variety of factual and legal contexts
in McNeal y. Administrator of Estate of McNeal, 254 So.2d
§21, 524-525 (Miss. 1971); Fells v. Bowman, 274 So.2d
109, 112-113 (Miss.1973); Dunavant Enterprises Inc. v. Ford,
294 So.2d 788, 791-792 (Miss.1974); Vick v. Cochran,
316 So.2d 242, 245-248 (Miss.1975); Spragins v. Louise
Plantation, Inc., 391 So.2d 97, 99-101 (Miss. 1980); Tideway
Oil Programs, Inc. vy. Serio, 431 So.2d 454, 457-458 (Miss.
1983). These decisions do not answer every question that
may be asked about our choice of law rules—nor, in the
nature of things, could they. They do, however, provide our
rules with substantial flesh.
We are not insensitive to the traditional formulation of
the anti-forum shopping rationale of the Erie doctrine—that
where, as here, a federal court exercises subject matter
jurisdiction solely because of diversity of citizenship, the out-
come of the litigation in federal court should be
substantially the same, so far as legal rules
determine the outcome of a litigation, as it
would be if tried in a State court.
Guaranty Trust Co. v. York, 326 U.S. 99,
109, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079,
2086 (1945).
The federal judiciary may proceed on the assumption that
in such cases a district judge sits merely as another trial
judge of the state. Beasley y. Fairchild Hiller Corp., 401
F.2d 593, 595 (Sth Cir. 1968). If it does so it enforces federal
rules emanating from federal policies. This state’s interests,
Sgn a
A-49
though compatible, are not identical. Otherwise, we would
inevitably find ourselves in the anomalous position of re-
solving controversies arnong parties wholly subject to the in
personam jurisdiction of the federal court and in no juris-
dictional sense before any court of this state. In answering
the questions certified today we are aware that we come
quite close to doing just that. The process of adjudication
is not so amorphous that such is necessary as the only way
the federal judiciary may achieve the laudable goals of
Erie. Though subscribing to no theory of mechanical juris-
prudence, we wor’. think it ordinarily within the com-
petence of a federai judge, given stipulated facts and eight
decisions of this Court declaring and refining the applicable
legal priticiples, to decide the case substantially the same, so
far as legal rules determine the outcome of a litigation, as
would the appropriate state court.
The point for the moment is simply that our interest in
the protection of the integrity of the law of this state and in
assuming a responsible role in cooperative federalism, all
consistent with our own docket control problems, are ade-
quately served by a restriction of our activities under our
Rule 46 to the performance when properly requested of the
function of declaring in general terms the controlling rules
of law of the State of Mississippi.
We hope what we have said above clarifies the nature and
scope of our certification process under Rule 46. We realize
that the considerations stated could well lead to the con-
clusion that we should decline certification in this case.
Indeed in all cases we retain the discretion to so decline.
Still there must be some give and take, and it hardly befits
our role in our constitutionally ordained enterprise of fed-
eralism to act like a stick in the mud whenevéf questions
certified are not pure law declaration questions. In the
present case, however, a combined consideration of how long
A-50
this case has been dragging on since it was originally gen-
erated by the automobile accident of July 8, 1979, coupled
with the desire to proceed—and to be perceived to have
proceeded—in complete good faith in a spirit of cooperative
federalism, we will shed such insights as we can on the ques-
tions presented.
IV.
In 1968, this state’s choice of law rules were modified to
embrace the “‘center of gravity” concept. Mitchell v. Craft,
211 So.2d 509, 512 (Miss.1968); Craig v. Columbus Com-
press & Warehouse Co., 210 So.2d 645, 649 (Miss.1968, In
cases where a question is presented as to whether the sb-
stantive rules of decision should be our own or those of some
other state, Mitchell and Craig committed us to a determina-
tion of which state has the most substantial contacts with the
parties and the subject matter of the action.
Embracing the Restatement (Second) of Conflicts of Laws,
86, Mitchell enumerated a number of factors relevant to a
choice of law determination. These include: (1) the needs
of the interstate and international systems; (2) the relevant
policies of the forum; (3) the relevant policies of other
interested states and the relevant interest of those states in
the determination of a particular issu~, ,‘°\ the protection
of justified expectations; (5) the basic policies underlying
the particular field of law; (6) certainty, predictability, and
uniformity of results; (7) ease and determination in appli-
cation of law to be applied. Mitchell v. Craft, 211 So.2d at
516; Spragins v. Louise Plantation, Inc., 391 So.2d 97, 100
(Miss.1980). Evaluation and balancing of these factors has
proven quite elusive.
Two nuances of our choice of law approach, important
to this case, need be emphasized.
A-51
{2} First, the law of a single state does not necessarily
control every issue in a given case. We apply the center of
gravity test to each question presented, recognizing that the
answer produced in some instances may be that the law of
this state applies and on other questions in the same case
the substantive law of another state may be enforceable.
We note that Fells v. Bowman, 274 So.2d 109 uiss.1973)
has recognized that this Court is not necessai y required
to apply the law of a single state to every
facet of the case.
274 So.2d at 112. See also, Vick v. Cochran,
316 So.2d 242, 246 (Miss.1975).
Second, we recognize that there will be cases where,
applying the center of gravity doctrine, we might conclude
in the first instances that the law of another state should be
applied. Where that law is contrary to the deeply ingrained
and strongly felt public policy of this state, however, we
have recognized that we may nevertheless apply and enforce
this state’s positive substantive law. McNeal v. Administrator
of Estate of McNeal, 254 So.2d 521, 524 (Miss. 1971).
¥
We turn now to the specific questions put by the Court of
Appeals.
QUESTION NO. 1
Would Mississippi or Nebraska law apply in construing the
USAA automobile insurance contract issued to Henry Board-
man; or stated differently, under the Mississippi “center of
gravity” test, which state would be deemed to have the most
significant contacts with the insurance policy for choice of
law purposes?
A-52
A.
We regard this as a general question asking which state’s
law would apply to the construction of this insurance con-
tract, absent peculiar countervailing considerations. The
answer is superficially easy. The contract in question was
made and entered into in the state of Nebraska. Henry
Boaiusuian at the time was a resident of Nebraska and at all
times relevant hereto all insureds under the contract have
been residents of Nebraska. Moreover, the insurer, USAA,
was acting through a Nebraska agent. The policy covered
three automobiles each of which, according to the stipulated
facts before us was “principally garaged in Nebraska’. The
principal location of the risks insured against was in Ne-
braska. Mississippi's contacts with this contract and the
parties are fortuitous, arising from the fact that Joseph
Boardman took a summer job in Gulfport. All of this suggests
that Nebraska law should apply.
In this setting, we note that we have been asked by the
Court of Appeals to comment upon the relative weight
given under Mississippi law to the choice of law principles
found in Sections 6, 188 and 193, Restatement (Second)
of Conflicts of Laws (1971). When we engage in these con-
siderations, our problem is seen not quite so simple, al-
though our answer—that Nebraska law applies—remains
intact.
[3] As indicated above, this Court has expressly approve t
Restatement §6 and incorporated it into the law of this
state. Spragirs v. Louise Plantation, Inc., 391 So.2d 97,
100 (Miss.1980); Mitcheil v. Craft, 211 So.2d 509, 515-516
(Miss.1968). Short of authoring a treatise on the subject
which would be neither helpful nor read, we will simply
say that the factors enumerated in Restatement §6 will
from case to case be given such relative weight as they
A-53
are entitled, consistent with the general scheme of the center
of gravity test.
Restatement §188 applies to contract cases generally. In
pertinent part, it provides:
§188. Law Governing the absence of
Effective Choice by the Parties
*_*e* e* &
(2) In the absence of an effective choice of
law by the parties (see §187), the contracts
to be taken into account in applying the
principles of §6 to determine the law appli-
cable to an issue include:
(a) the place of contracting,
(b) the place of negotiation of the
contract,
(c) the place of performance,
(d) the location of the subject mat-
ter of the contract, and
(e) the domicil, residence, nationali-
ty, place of incorporation and place of
business of the parties.
These contacts are to be evaluated according
to their relative importance with respect to
the particular issue.
Restatement §188 narrows the focus of §6. Section 188
sets forth certain principles to be applied in making choice of
law determinations in contract actions generally. We have
never expressly addressed Restatement §188, although it
appears generally consistent with our center of gravity
opinions authored in the context of actions arising ex con-
tractu. See Dunavant Enterprises, Inc. v. Ford, 294 So.2d
A-54
788, 791-92 (Miss.1974): Craig v. Columbus Compress &
Warehouse Co., 210 So.2d 645, 648-49 (Miss. 1968).
[4] A dissertation on Restatement §188 would be less
than helpful at this point as this is an action on the un-
insured motorist feature of a liability insurance contract
and Restatement §193 provides the starting point for the
choice of law inquiry in such cases.
a
Restatement § 193 provides:
Contracts of Fire, Surety or Casualty
Insurance
The validity of a contract of fire, sure-
ty or casualty insurance and the rights created
thereby are determined by the local law
of the state which the parties understood
was to be the principal location of the insured
risk during the term of the policy, unless
with respect to the particular issue, some
other state has a more significant relation-
ship under the principles stated in §6 to
the transaction and the parties, in which
event the local law of the other state will
be applied.
{5S} To begin with, we regard Restatement §193 as
among the choice of law rules applicable in this state. We
have no prior cases construing §193. Nevertheless, having
embraced the general center of gravity test found in Re-
statement §6 in Mitchell and Spragins, we perceive no
reason why when it comes to actions on insurance con-
tracts we shouid chart a separate course. Restatement §193
presents a fair and enlightened set of principles and we
adopt them.
A-55
The central thrust of Restatement §193 is that the law
applicable in actions on insurance contracts (other than
those providing life insurance) should the law of the state
the parties understood was to be the principal location of
the risk. Note that the phrase “principal location” is used,
not “exclusive location” or other like phraseology. This
choice of wording no doubt reflects the reality that choice
of law questions do not arise unless at least two states have
some arguable basis for application of their law.
[6] In the case of an automobile liability insurance
policy, issued to a citizen of Nebraska covering his house-
hold, it seems inescapable, as we have indicated above,
that the principal location of the risk is in the State of
Nebraska. This is particularly so where, as here, the policy
covers three automobiles each of which, according to the
stipulated facts before us, was “principally garaged in
Nebraska”’.
Restatement §193 announces a general rule that, where
the greater portion of the risk be in a particular state for
the major portion of the insurance period, the risk’s princi-
pal location is the most important choice of the applicable
law. Restatement (Second) of Conflicts of Laws §193
comment b(1971). On the other hand, comment d to Re-
statement § 193 recognizes that
There may also be occasions when following
the issuance of the policy the principal loca-
tion of the risk is shifted to some other state.
In such a situation, this other state will have
a natural interest in the insurance of the risk
and it may be that its local law should be
applied to determine at least some issues
arising under the policy. In any event, appli-
cation of the local law of the other state
A-56
would hardly be unfair to the insurance
company, at least with respect to some
issues, if the company had reason to fore-
see when it issued the policy that there
might be a shift to another state of the
principal location of the risk.
[7] The specific risk at issue here is that Joseph W.
Boardman, or some other “insured” under the policy, might
become involved in an automobile accident with a negli-
gent uninsured motorist. The principal location of that
risk, at least insofar as Joseph W. Boardman is concerned,
was in Mississippi on July 8, 1979, and had been in Missis-
sippi for the greater part of the immediately preceding
ten months. From this point of view there would be force
to the argument that under Restatement §193 Mississippi
law should furnish the rule of decision regarding the insur-
er’s liability.
[8-10] The outcome-determinative question here, how-
ever, appears to be one of coverage. The question is whether
Joseph W. Boardman is an “insured” under the policy having
any right to sue under the uninsured motorist coverage
of his father’s policy at all. This is a matter having little
to do with the location of the risk. This coverage question
invokes the exception to the general “principal location
of the insured risk”’ rule of Restatement §193. In our view
the coverage issue tendered here is an issue unrelated to the
insured risk, as a result of which the choice of law deter-
mination must be made by reference to the more general
principles of Restatement §6 and §188, for here we are
concerned with the meaning of the insurance contract on
the question of what individuals would be covered as “‘in-
sureds”. When Henry W. Boardman, then a resident of
Omaha, Nebraska, effected automobile insurance coverage
in Nebraska through USAA’s Nebraska agent, the only
A-57
reasonable expectation the parties could have had was
that the question of what members of the Boardman family
would be protected would be determined by reference to
Nebraska law.
Focusing upon the criteria of Restatement §188(2):
(a) the place of contracting was in Nebraska,
(b) the place of negotiation of the contract was in
Nebraska,
(c) the place of performance was substantially in
Nebraska,
(d) the location of the subject matter of the contract,
i.e., the principal location of the risks insured against, was
in Nebraska (although the specific risk that Joseph W. Board-
man would be involved in an accident with a negligent
uninsured motorist—only one risk among the many arguably
insured against by the policy—was on July 8, 1979, in Missis-
sippi), and
(e) the residence of Henry W. Boardman was Nebraska
while USAA, though not a Nebraska corporation, acted
through a Nebraska agent.
[11] Eschewing application of any mathematical or
otherwise mechanical process to an evaluation of the §188
factors, we regard it as clear that they militate in favor
of the application of Nebraska law to the outcome-
determinative question presented in the case at bar.
We have considered carefully the Mississippi contacts
A-58
suggested, first, in the opinion of the District Court, at
pages 7-8, and second in the Boardman’s brief in the Court
of Appeals. In each instance a failure to perceive two impor-
tant distinctions is apparent. In considering the questions
certified and taking liberties to which we are entitled, we
submit the following observations, hoping they will be
of value.
We are not, for present purposes, concerned with the
tort claim of Joseph Boardman against the uninsured motor-
ist. No doubt that tort claim should be adjudicated accord-
ing to substantive Mississippi law, although this result would
not inexorably follow if Joseph Boardman and the unin-
sured motorist had both been residents of Nebraska. See
Mitchell v. Craft, 211 So.2d 509, 514 (Miss.1968) (Missis-
sippi law applied to tort action by a Mississippian against
a Mississippian arising out of accident occurring in Loui-
siana).
Moreover, we are not concerned immediately with the
risk that Joseph W. Boardman would encounter a negligent
uninsured motorist. Our focus rather is upon the question
whether Joseph W. Boardman was one of the ‘“‘insured’s”
under the policy entitled to claim the benefits provided
thereunder, whatever those benefits might be.
[12-13] Second, there are important, though because
subtle often missed, distinctions between the factors that
govern adjudications of questions of in personam juris-
diction, venue and choice of law. The correct pattern of
analysis in each of these areas of inquiry is separate and
distinct from the other two. As here, the distinction is
often blurred. That in an action arising out of a tort com-
mitted in Louisiana, a Louisiana defendant may have suf-
ficient contacts with Mississippi to render that defendant
amenable to suit here does not necessarily mean that Missis-
A-59
sippi substantive law governs the substantive rights and
liabilities of the parties. Administration of Tulane Educa-
tional Fund v. Cooley, 462S0.2d 696, 701-702 (Miss. 1984).
Conversely, that California has sufficient contacts so that
its substantive law should govern a child support modi-
fication action does not necessarily render a New York
defendant amenable to suit in California. Kulko v. Superior
Court, 436 U.S. 84, 98-101, 98 S.Ct. 1690, 1699-1701,
56 L.Ed.2d 132, 145-146 (1978).
[14] The Mississippi contacts suggested by the Board-
mans are
(1) Shortly before the accident, the Plain-
tiff-Appellee Joseph Boardman had been
a full time stude ~ at Mississippi State Univer-
sity.
We regard this factor as relevant to resolution of the choice
of law question in this contract only insofar as it may sug-
gest the “principal location” of the risk. Because the ques-
tion at issue does not involve the scope of the risk insured
against but rather who are the parties entitled to benefits
under the policy, this factor is essentially meaningless.
Restatement (Second) of Conflicts of Laws § 188(2) (1971).
(2) At the time of the accident, Joseph
Boardman was temporarily residing in Gulf-
port, Mississippi, working to earn money
so that he could return to Mississippi State
University in the fall.
[15-22] The same observations made with respect
to (1) above apply here. This factor is of no substantial
significance for adjudication of the coverage question pre-
sented.
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(3) Approximately a week before the
accident, Joseph Boardman had purchased
a vehicle in the State of Mississippi and fur-
ther purchased a Mississippi tag for said
vehicle.
Again we fail to see how this factor informs the particular
choice of law inquiry before the Court. Joseph’s purchase of
a vehicle in Mississippi and the purchase of a Mississippi tag
are the factors which simply have nothing to do with the
coverage question in issue, unless, of course, Joseph is some-
how suggesting that he has become a resident of Mississippi.
This, of course, would produce a threshold disaster for
Joseph’s claim if it should be sufficient to exclude him from
the Henry Boardman household. For purposes of answering
the choice of law questions before us today, we proceed
with confidence that at all relevant times Joseph Boardman,
as well as Henry Boardman, was a resident and citizen of
Nebraska.
(4) The accident subject to this litigation
occurred in Gulfport, Mississippi.
This could be a factor of controlling significance for in per-
sonam jurisdiction purposes under our long-arm statute.
Miss.Code Ann. §§ 13-3-57 to -63 (Supp.1984). If we
were concerned with ascertaining the substantive rules of
law applicable to the determination of the tort claim by
Joseph Boardman against the uninsured motorisf, this factor
would be of enormous significance. On the coverage ques-
tion preliminary to presentation of an uninsured motorist
claim against USAA, however, we regard it as fortuitous and
hence irrelevant.
(5) All witnesses to the accident reside in
the State of Mississippi.
A61
This factor is irrelevant to the particular choice of law in-
quiry at issue. On the other hand, it would be of substantial
relevance if we had a venue inquiry before us and would
certainly be of some importance in the determination of the
in personam jurisdiction amenability question.
(6) At the time of the filing of this litiga-
tion, the Plaintiff-Appellee Col. Henry Board-
man moved back to the State of Mississippi,
so at the time of filing, both Plaintiffs-
Appellees resided in the State of Mississippi.
The suggestion that plaintiffs can change the substantive
law according to which a particular action must be adjudi-
cated by changing their citizenship prior to filing suit simply
won’t wash. The choice of law inquiry must relate to the
times relevant to the transaction or occurrence giving rise
to the claim ab initio. Where the Boardmans lived at the
time suit was filed would, however, be relevant to the subject
matter jurisdictional inquiry under 28 U.S.C. § 1332
(Supp.1985). See Baker v. Keck, 13 F.Supp. 486, 488-89
(E.D.I11.1936). This factor would also be relevant to a venue
inquiry.
(7) At the time of the accident, the Defen-
dant-Appellant United Services Automobile
Association was qualified to do business
in the State of Mississippi and in fact issued
insurance policies in the State of Mississippi.
Again this is a factor wholly unrelated to our choice of law
inquiry. That USAA was qualified to do business in Missis-
sippi and in fact had issued insurance policies in Mississippi
would, of course, conclusively establish its amenability to
suit m this state. Where that suit arises out of a contract
issued by USAA in Nebraska through a Nebraska agent to
A-62
Nebraska residents, however, this factor fades into insigni-
ficance in the context of our efforts to identify the rules
by which the validity of owned vehicle exclusionary clause
must be determined.
(8) The Defendant-Appellant United Ser-
vices Automobile Association is an inter-
insurance exchange which exclusively issues
insurance policies to persons who are actually
members of the United States Armed Services
or who have been enlisted in the Armed
Forces of the United States and necessarily
this Defendant-Appellant could expect its
policyholders to be quite mobile and it
would be quite unrealistic and unfair to re-
strict questions concerning coverage to the
state where the insurance policy was origin-
ally issued.
Again, we have a factor quite important for in personam
jurisdiction and venue purposes but wholly irrelevant for
choice of law purposes.
[23] An additional factor considered by the District
Court was that the uninsured motorist tort feasor was also
a resident of Mississippi. Here again we have a factor influ-
encing venue. On the other hand, we are wholly unable to
see how the residence of the uninsured motorist could have
anything to do with the determination of the applicable
rules of substantive law to govern the contract claim by
the Boardmans against USAA, nor for that matter would
this factor have any relevance to the in personam jurisdic-
tion inquiry.
[24] The error of the District Court’s analysis-its blur-
ring of the distinctions between the choice of law inquiry
A-63
and the in personam jurisdiction inquiry—is made apparent
on page 8. There the District Court states:
Although the policy of insurance was issued
in Nebraska, by virtue of the nature of
USAA’s issuance of policies to members of
the Armed Forces, they could and should
expect those insured persons to be transient,
and, therefore, USAA could anticipate be-
ing haled into court in a foreign jurisdiction.
This notion, however, has nothing to do with choice of law
questions. Rather, it derives from Worldwide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567,
62 L.Ed.2d 490, 501 (1980). The question in Worldwide
Volkswagen was whether a nonresident defendant was
constitutionally amenable to suit in a foreign jurisdiction.
Whether that defendant could reasonably anticipate being
haled into court in the foreign jurisdiction was held to be
a factor of primary importance. Nothing in Worldwide
Volkswagen or in any other case correctly analyzing the
sort of question we have here suggests that anticipation
of being haled into court in a foreign state is a factor deter-
minative of choice of law questions.
The District Court continues
To require every insured who filed a claim
against USAA to litigate that claim in the
state in which the policy was issued, notwith-
standing other relevant factors which the
court should consider, would put an onorous
burden on those claimants and would fly
directly in the fact of the “center of gravity”
test.
[25] Again, the District Court confuses amenability
to suit in a foreign forum with choice of law. For the reason
A-64
recited, USAA was amenable to in personam jurisdiction
in Mississippi and particularly in the United States District
Court for the Southern District of Mississippi. Even if USAA
had not formally qualified to do business in this state, it
could have been subjected to in personam jurisdiction here.
On the other hand, once USAA’s amenability to suit in
Mississippi is established, there is no injustice or hardship
worked upon insureds by requiring them to litigate in this
state according to substantive rules emanating from the
state in which the policy originally issued.
QUESTION NO. 2
Would Mississippi or Nebraska law govern
the validity of the uninsured motorist ex-
clusionary clause; or stated differently, if
Nebraska iaw is held to govern the insurance
contract, does Mississippi public policy
prevent the enforcement of the exclusionary
clause?
As we all know, this Court takes a dim view of insurer
efforts to exclude cases and persons from coverage of the
uninsured motorist provisions of an automobile insurance
policy. See, e.g., State Farm Mutual Auto Insurance Co.
vy. Nester, 459 So.2d 787, 789-93 (Miss.1984); Lowery vy.
State Farm Mutual Automobile Insurance Co., 285 So.2d
767, 777-78 (Miss.1973). If this action had been brought
in a Mississippi court on a contract made between Mississippi
insureds and a resident or nonresident insurer acting through
a Mississippi agent, there could be little doubt of the out-
come.
What we have here, however, is a non-Mississippi insurer
making a contract in Nebraska through a Nebraska agent
with a Nebraska insured whose son decides to take a summer
A-65
job in Gulfport, Mississippi. We also have here an action
brought in a United States court, not a Mississippi court,
although the significance of this fact is not for us to deter-
mine.
This question is not, what would be the public policy of
this state regarding an exclusion such as that claimed here
were the insureds Mississippians. Rather, the question is
whether we have a public policy which is so strong that it
would override the reasonable expectation (if they thought
about it) of both USAA and Henry Boardman that at the
very least the coverage questions arising with respect to
their contract would be governed by the law of Nebraska.
We say all of this in the context of Lowery v. State Farm
Mutual Automobile Insurance Co., 285 So.2d 767 (Miss.
1973), which holds that enforcement of an owned vehicle
exclusionary clause comparable to that with which we are
here concerned, where included in a policy issued in this
state, is precluded under our Uninsured Motorist Statute.
Miss.Code Ann. § § 83-11-101 et seq. (1972).
[26] As indicated above, one of the important princi-
ples we enforce is that no foreign state’s substantive law
will be enforced in courts of this state where to do so would
be offensive to the deeply ingrained or strongly felt public
policy of the state. In this context, note that Mitchell v.
Craft, refused to enforce the Louisiana contributory neg-
ligence rule in the face of this state’s longstanding compara-
tive negligence statute. 211 So.2d at 513-16. Similarly,
McNeal v. Administrator of Estate of McNeal, refused to
allow enforcement in this state of the Louisiana direct
actions statute in the face of the strong public policy of this
state precluding intr: uly tort actions. 254 So.2d at 524.
On the other hand, we have recognized that highway
safety regulations of the State of Louisiana may be enforced
A-66
in Mississippi, even though our rules differ from those in
Louisiana. Fells v. Bowman, 274 So.2d 109, 112-113 (Miss.
1973). Moreover, we have recognized, in guest passenger
tort action, enforceability ir. the courts of this state of the
Alabama guest statute even though Mississippi has no simi-
lar statute. Vick vy. Cochran, 316 So.2d 242, 246-247 (Miss.
1975). Beyond that we have recognized that the real estate
property laws of other states may be enforced in our courts.
Spragins v. Louise Plantation, Inc., 391 So.2d 97, 99-100
(Miss.1980); Tideway Oil Programs, Inc. v. Serio, 431 So.2d
454, 457-458 (Miss. 1983).
Further reflection suggests the need for clarification and
refinement of this public policy exception to our choice of
law rules. We assume that there are no rules of law extant
in this state which would be contrary to public policy. An
enactment of the legislature is said by definition to express
the public policy of the state. We do our dead level best on
this Court to assure that the common law rules emanating
from our adjudication are consistent with the clear public
policy of the state. We, nevertheless, have and enforce choice
of law rules which from time to time allow the positive
substantive law of this state to be set aside in favor of the
laws of another state possessing greater contacts with the
parties and the action.
Every choice of law problem, by definition, arises out of
a situation where the substantive law of the competing
state differs from that of this state. Because of this and be-
cause every law of this state presumably reflects the public
policy of this state, we are caught in a Catch-22. The way
out is recognition that some of our laws reflect public poli-
cies which are more fundamental and more inviolable than
others. Some of our laws reflect public policies more strong-
ly felt and more deeply ingrained than others. For example,
Mississippi’s comparative negligence and intra-family tort
A-67
immunity rules reflect longstanding public policies that may
be said to be fundamental. Enforcement of the contrary rules
proposed in Mitchell and McNeal would be offensive to our
sense of justice. On the other hand, we can hardly say a mis-
carriage of justice would attend enforcement of Louisiana
highway safety lews when a accident occurs in Louisiana
as in Fells v. Bowman, nor would injustice attend enforce-
ment of the Alabama guest passenger statute which, even
though we have not enacted a like statute, reflects a core
of common sense. Easiest of all are our cases where title
to properties in another state are affected and where we
recognize that the property laws of the foreign state involved
should be enforced for by definition the real property laws
of this state have no application to real property not situated
within this state.
[27] We recognize that no clear line can be drawn
between cases such as Mitchell and McNeal, on the one
hand, and Fells and Vick, on the other hand. We likewise
recognize that in deciding each new case a judgment call
is necessary. Still it seems clear to us that the rule of law
emanating from Lowery though reflective of the public
policy of this state, is not one expressive of a public policy
so strong that under these facts a countervailing Nebraska
rule should be ignored. This particularly so when we recall
that application of the factors listed in Restatement §
188(2) point so strongly to Nebraska as the state which
ought to furnish the rule decision governing adjudication
of the coverage question here presented.
When all is said and done, we are concerned with an
insurance contract made and entered into in Nebraska
between a Nebraska insured and nationwide insurer acting
through a Nebraska agent. However public policy consider-
ations prevailing in this state may affect an insurance con-
tract written in Mississippi, we must in fairness recognize
A-68
that we have no substantial interest in the upholding of the
public policy of this state, manifest through our Uninsured
Mororist statute, when the question is: who is an insured
under a Nebraska insurance contract. This is particularly
so in view of the fact that the party seeking to recover
under the insurance contract was at the controlling time
not a resident of this state. Accordingly, we advise the
Court of Appeals that there is no public policy in this state
that would preclude enforcement of the exclusionary clause
of this insurance contract.
QUESTION NO. 3
Would Mississippi or Nebraska law govern
the issue of vehicle ownership, or stated
differently, would Mississippi under its
“center of gravity’ test consider Mississippi
or Nebraska to have the most significant
contacts for the purposes of establishing
the law governing vehicle ownership?
As indicated above, we apply the “center of gravity”
test to each issue. That other issues may be determinable
by reference to Nebraska law does not necessarily mean
that all issues in the case are so determinabie. The rights
and liabilities of Joseph Boardman and the uninsured motor-
ist, for example, are surely determinable by reference to
Mississippi substantive law.
[28] The vehicle ownership question in this case is one
of contract construction. It concerns the 1970 Chevrolet
Caprice automobile purchased by Joseph W. Boardman
in Gulfport, Mississippi, on June 20, 1979. The automobile
was being operated in Mississippi at the time of the accident.
Hence, Mississippi has the most significant contacts with
regard to the vehicle ownership issue. If this action were
A-69
before a court of competent jurisdiction of this state, the
positive law of Mississippi would be enforced regarding the
construction and application of the owned vehicle ci: use
in the USAA automobile insurance contract.
CERTIFIED QUESTIONS ANSWERED
* Footnotes omitted throughout Appendix B.
A-70
APPENDIX E
Joseph BOARDMAN and Henry Boardman,
Plaintiffs-Appellants,
7x
UNITED SERVICES AUTOMOBILE ASSOCIATION,
Defendant-Appellee.
No. 83-4310.
United States Court of Appeals,
Fifth Circuit.
Aug. 19, 1985.
Appeal from the United States, District Court for the
Southern District of Mississippi; Walter L. Nixon, Jr., Chief
Judge.
Before BROWN, GEE, and WILLIAMS, Circuit Judges
JOHN R. BROWN, Circuit Judge:
This diversity case returns to us after certification and an-
swer from the Mississippi Supreme Court. On September
14, 1984, we requested the parties to develop a common
certificate of the issues. Boardman v. United Services Auto-
mobile Association, 742 F.2d 847 (5th Cir.1984). On Octo-
ber 23, 1984, we certified this case to the Mississippi Su-
preme Court. Boardman vy. United Services Automcbdile
Association, 763 F.2d 663 (Sth Cir.1984). By decision on
May 22, 1985, the Mississippi Supreme Court has answered.
470 So.2d 1024 (Miss.1985). The facts and procedural
history are amply set forth in the above’ three decisions
A-71
and call for no further recitation here. For our present pur-
poses, it suffices to remand this case to the district court
with instructions for it to enter judgment consistent upon the
principles elucidated by the Mississippi Supreme Court:
(1) Nebraska law governs the construction
of the United States Automobile Asso-
ciation (USAA) policy.
(2) Nebraska law governs application of the
owned motor vehicle exclusion of Henry
Boardman’s policy.
(3) Mississippi law governs the status of the
vehicle as an owned motor vehicle under
the policy.
The Mississippi Supreme Court has made it clear that the
exclusionary, clause of the USAA policy was triggered and
that there was no coverage for the injuries suffered by
Joseph Boardman.
Appellee’s full faith and credit contentions are without
merit and we do not address them in this litigation which has
been protracted for nearly six years.
REMANDED WITH INSTRUCTIONS.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.