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Thomas v. Allstate Insurance, 96-60537 (1997)

Court: Court of Appeals for the Fifth Circuit Number: 96-60537 Visitors: 6
Filed: May 05, 1997
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 96-60537 Summary Calendar ROBERT CHARLES THOMAS, As Co-Administrators of the Estate of Katherine Thomas, All as the Wrongful Death Beneficiaries of Ravella Burns; EDWARD THOMAS, As Co-Administrators of the Estate of Katherine Thomas, All as the Wrongful Death Beneficiaries of Ravella Burns; MOSES THOMAS, As Co-Administrators of the Estate of Katherine Thomas, All as the Wrongful Death Beneficiaries of Ravella Burns; HENRY HAYWOOD, JR., As
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                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                          No. 96-60537
                        Summary Calendar



        ROBERT CHARLES THOMAS, As Co-Administrators of the
      Estate of Katherine Thomas, All as the Wrongful Death
         Beneficiaries of Ravella Burns; EDWARD THOMAS, As
      Co-Administrators of the Estate of Katherine Thomas,
        All as the Wrongful Death Beneficiaries of Ravella
          Burns; MOSES THOMAS, As Co-Administrators of the
      Estate of Katherine Thomas, All as the Wrongful Death
       Beneficiaries of Ravella Burns; HENRY HAYWOOD, JR.,
     As Co-Administrators of the Estate of Katherine Thomas,
    All as the Wrongful Death Beneficiaries of Ravella Burns;
      DELORES THOMAS, As Co-Administrators of the Estate of
    Katherine Thomas, All as the Wrongful Death Beneficiaries
                          of Ravella Burns,

                                             Plaintiffs-Appellants,


                             VERSUS


                       ALLSTATE INSURANCE,

                                               Defendant-Appellee.




          Appeal from the United States District Court
            For the Southern District of Mississippi
                        (3;93-CV-601-BN)
                         April 25, 1997


Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*



                                    BACKGROUND

       On September 2, 1990, Ravella Burns (“Burns”) was involved in

a two vehicle accident in Adams County, Mississippi, and died as a

result of that accident.             The other vehicle involved in the

accident was driven by Joseph R. Ware and neither Ware nor the

vehicle he was driving was covered by any automobile liability

insurance at the time of the accident. Burns, however, was insured

pursuant to the terms of an automobile insurance policy issued by

Allstate. The Allstate policy provided uninsured motorist coverage

for Burns’ vehicle involved in the accident, as well as two other

vehicles.     Pursuant to its interpretation of its policy, Allstate

paid    to   the   estate   and   representatives    of   Burns    $10,000    in

uninsured     motorist      coverage   benefits.       The     wrongful   death

beneficiaries of Burns, the plaintiffs in this action, assert that

even    though     the   Allstate    policy   contains    a    “anti-stacking”

provision, the uninsured motorist coverage should be stacked to

provide a total recovery of $30,000 (i.e., $10,000 for each of the

three    covered    vehicles).       They   claim   Allstate    owes   them   an

additional $20,000 in uninsured motorist benefits. Allstate admits

that the plaintiffs, as the wrongful death beneficiaries of Burns,


  *
   Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.

                                        2
have suffered damages of at least $30,000.

     After this lawsuit was initiated, the district court entered

an order on April 28, 1995, staying this action pending a decision

by the Mississippi Supreme Court in Harrison v. Allstate, 
662 So. 2d
1092 (Miss. 1995).        The Harrison decision was rendered on

October 26, 1995, and held that (1) the insured could stack two

bodily injury uninsured motorist coverages; and (2) Allstate could

not be liable for punitive damages because the issue presented was

one of first impression in Mississippi.           
Id. at 1094-95.
       The

Mississippi    Supreme   Court,    however,   declined   to   consider   and

Harrison did not consider the issue presented in this case, i.e.,

if more than two cars are covered by the insurance policy, does the

premium charge for uninsured motorist coverage permit the stacking

as to each additional car.        Because of Harrison, Allstate paid to

the plaintiffs an additional $10,000 plus interest but denies that

it owes any additional coverage for the third car covered by Burns’

policy. Allstate moved for summary judgment and the district court

granted such motion by an opinion and order filed under date of

July 9, 1996, and entered final judgment on July 9, 1996, in favor

of Allstate.    The plaintiffs timely appealed.



                                   OPINION

     We have carefully reviewed the briefs, the record excerpts and

relevant portions of the record itself.        For the reasons stated by


                                      3
the district court in its opinion and order filed under date of

July 9, 1996, the final judgment entered under date of July 9,

1996, is

              AFFIRMED.




                               4

Source:  CourtListener

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