UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CASSANDRA DIANNE JACKSON,
Plaintiff-Appellee,

v.

BUILDERS TRANSPORT, INCORPORATED,
a Virginia corporation,                                         No. 95-2983
Defendant-Appellant,

and

HARVEY L. DONAHUE,
Defendant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CA-92-13)

Argued: July 8, 1996

Decided: August 2, 1996

Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge,
and JOSEPH F. ANDERSON, JR., United States District Judge for
the District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Alan M. Gelb, FISCHBEIN, BADILLO, WAGNER,
HARDING, New York, New York, for Appellant. Barry M. Hill,
GOMPERS, MCCARTHY, HILL & MCCLURE, Weirton, West Vir-
ginia, for Appellee. ON BRIEF: Pamela Phillips, FISCHBEIN,
BADILLO, WAGNER, HARDING, New York, New York; John E.
Busch, BUSCH & TALBOTT, Elkins, West Virginia, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Cassandra Dianne Jackson (Jackson) brought this action against
Builders Transport, Inc. (BTI), a long-distance trucking company, and
Harvey L. Donahue (Donahue), a truck driver employed by BTI.
Jackson sought damages for personal injuries resulting from an acci-
dent that occurred as she was riding in a BTI truck being driven by
Donahue. BTI appeals from a $500,000 judgment entered in favor of
Jackson. We affirm.

I.

In 1991, while on a driving trip for BTI, Donahue met Jackson at
a truck stop in Houston, Texas. Although BTI had a written policy
prohibiting drivers from carrying passengers, Donahue allowed Jack-
son to ride with him for several weeks. On November 22, 1991, as
he was driving along a mountain road near Elkins, West Virginia,
Donahue lost control of the truck, causing the truck to plummet down
the side of a mountain. The accident rendered Jackson a quadriplegic.1

At the time of the accident, BTI was self-insured for bodily injury
and property damage liability up to $500,000. For liability in excess
of $500,000, BTI had an insurance policy issued by Insurance Com-
pany of North America (INA) that provided $14,500,000 of coverage
_________________________________________________________________
1 Jackson has regained some use of her arms.

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over the self-insured limit of $500,000. Before the accident occurred,
the Interstate Commerce Commission (ICC) had authorized BTI to
self-insure the first $500,000 of its bodily injury and property damage
liability under 49 U.S.C. § 10927.2 BTI also received permission from
the West Virginia Public Service Commission (PSC) to satisfy West
Virginia's financial responsibility requirements through self-insurance.3

Jackson brought this action in United States District Court for the
Northern District of West Virginia,4 alleging that the accident
occurred while Donahue was acting within the scope of his employ-
ment with BTI and that the accident resulted from Donahue's negli-
gence. Jackson demanded judgment against Donahue and BTI in an
amount in excess of $5,000,000. BTI moved for summary judgment,
arguing that it was not vicariously liable to Jackson for Donahue's
negligence because Donahue violated BTI's rules in allowing Jackson
to ride with him. The district court denied the motion.

At the hearing on BTI's summary judgment motion, a question
arose regarding whether BTI's self-insurance constituted coverage for
Donahue even if BTI was not vicariously liable for Donahue's negli-
gence. BTI asserted that its self-insurance did not constitute such cov-
erage. Because the West Virginia Supreme Court of Appeals had
_________________________________________________________________
2 Under 49 U.S.C. § 10927, motor carriers must file with the ICC a cer-
tificate of insurance, proof of qualifications as a self-insurer, or some
other form of security in order to obtain a permit to provide interstate
transportation services. See 49 U.S.C. §§ 10923, 10927; 49 C.F.R.
§§ 1043.1 to .5. The ICC required BTI to have a minimum of $750,000
of liability coverage. See Jackson v. Donahue , 

, 531 (W.
Va. 1995).
3 West Virginia law requires all owners of motor vehicles to maintain
"proof of financial responsibility," i.e. , liability insurance in the mini-
mum amounts of $20,000 for injury to one person and $40,000 for injury
to more than one person arising out of one accident. See W. Va. Code
§§ 17D-2A-3, 17D-4-2. At the time BTI obtained permission to self-
insure, the West Virginia PSC required motor carriers to obtain liability
insurance in the minimum amounts of $50,000 for injury to one person
and $100,000 for injury to more than one person arising out of one acci-
dent. See Jackson, 457 S.E.2d at 531.
4 Jurisdiction was based on diversity of citizenship. See 28 U.S.C.
§ 1332.

                    3
never addressed the question of whether, under West Virginia law, a
self-insured employer owes insurance coverage to its employees
regardless of vicarious liability, the district court indicated that it
would be inclined to certify this question to the West Virginia
Supreme Court of Appeals.

Although BTI disputed whether its self-insurance provided cover-
age for Donahue's negligence, INA acknowledged that the insurance
policy it issued to BTI provided coverage for Donahue's negligence,
but only for damages in excess of $500,000 and then only to the pol-
icy limits. Accordingly, after the summary judgment hearing, INA
negotiated a settlement agreement with Jackson. Although BTI was
not a party to the settlement agreement, it is apparent that the settle-
ment agreement was negotiated as part of an effort among all the par-
ties and the district court to isolate questions that would be certified
to the West Virginia Supreme Court of Appeals. The district court
entered an order summarizing the settlement agreement as follows:

          A settlement has been reached between the plaintiff and
          [INA] for payment of $2 million on behalf of the defen-
          dant[s]. This $2 million is a settlement for the amount of the
          plaintiff's claim against the defendants which exceeds
          $500,000.00. Defendant BTI is self-insured for the first
          $500,000.00 of the plaintiff's claim, and the plaintiff's enti-
          tlement to this first $500,000.00 is an issue yet to be
          resolved. In essence the settlement represents a compromise
          of the amount of the plaintiff's damages at $2.5 million,
          with the $2 million in excess of BTI's self-insurance being
          paid now, and with the plaintiff's entitlement to the first
          $500,000.00 to be determined as an issue of law in the
          future. The $2 million settlement will release [INA] and
          defendant Donahue completely from liability to the plaintiff,
          and it will release defendant BTI from liability in excess of
          its $500,000.00 of self-insurance.

(J.A. 333-34). With Donahue and INA thus removed from the case,
attorneys for BTI and Jackson, along with the district court, devised
two questions to be certified to the West Virginia Supreme Court of
Appeals:

                     4
          1. Under West Virginia law, does a foreign commercial
          trucking company which has been granted authority to self-
          insure its automobile liability exposure in West Virginia
          owe coverage to an employee irrespective of vicarious lia-
          bility?

          If the answer to question 1 is yes, then:

          2. Where there is up to $500,000 in self-insurance avail-
          able, is the extent of the company's coverage obligation lim-
          ited to the dollar amounts [i.e., $20,000] provided for in [W.
          Va. Code § 17D-4-2]?

Jackson, 457 S.E.2d at 526-27.

The West Virginia Supreme Court of Appeals answered the first
question in the affirmative, holding in effect that BTI must provide
insurance coverage for Donahue for this accident. See id. at 530. The
court then answered the second certified question in the negative,
holding that the extent of BTI's coverage obligation was not limited
to $20,000. Id. at 532.

After the West Virginia Supreme Court of Appeals rendered its
decision, Jackson filed a motion in the district court for entry of judg-
ment in the amount of $500,000 against BTI. BTI moved to dismiss
the case, or in the alternative, for a determination that BTI's liability
to Jackson was limited to $20,000, rather than $500,000. The district
court denied BTI's motion to dismiss and granted Jackson's motion
to enter judgment in the amount of $500,000 against BTI, rejecting
BTI's argument that the judgment amount should be limited to
$20,000. BTI appeals, arguing that the district court erred in entering
judgment in the amount of $500,000.5

II.

At the outset, we note that by agreeing to submit the second certi-
fied question to the West Virginia Supreme Court of Appeals, BTI
_________________________________________________________________

5 BTI does not appeal the denial of its motion to dismiss.

                     5
agreed to allow that court to determine, as a matter of West Virginia
law, the amount of insurance coverage it was required to provide for
Donahue's negligence. By answering the second certified question in
the negative, the West Virginia Supreme Court of Appeals signified
that BTI, as an insurer, was obligated to provide $500,000 of insur-
ance coverage for Donahue's negligence. Because federal courts sit-
ting in diversity must apply state law on state law matters, see Erie
R. Co. v. Tompkins, 

, 77 (1938), we are bound to enforce
the West Virginia Supreme Court of Appeals' decision.

BTI argues that we are not bound by the decision of the West Vir-
ginia Supreme Court of Appeals because that court did not base its
decision on West Virginia law, but rather on an erroneous application
of federal law. More specifically, BTI posits that the West Virginia
Supreme Court of Appeals based its decision on an erroneous applica-
tion of federal preemption principles, and that because federal courts
are not bound by state court determinations regarding federal preemp-
tion, see Grantham v. Avondale Indus., 

, 473-74 (5th Cir.
1992), this court is free to disregard the West Virginia Supreme Court
of Appeals' answer to the second certified question. To evaluate this
argument, it is necessary to review the reasoning used by the West
Virginia Supreme Court of Appeals in answering the second certified
question.

The second certified question simply asked whether the extent of
BTI's insurance obligation was limited to the dollar amount, i.e.
$20,000, provided for in W. Va. Code § 17D-4-2. To answer this
question, the West Virginia Supreme Court of Appeals began its anal-
ysis by recognizing that W. Va. Code § 17D-4-2 required liability
insurance in the minimum amount of $20,000 for personal injuries to
one person and that a regulation of the PSC applicable to motor carri-
ers required liability insurance in the minimum amount of $50,000 for
personal injuries to one person. Jackson, 457 S.E.2d at 531. The court
went on to reject the contention that these amounts constituted caps
on the extent of BTI's liability. Id. at 532. In reaching this conclusion,
the court was influenced by the fact that "in granting self-insurer sta-
tus to BTI, the Public Service Commission weighed substantially"
BTI's compliance with the federal minimum requirement of
$750,000. Id. at 531. Indeed, the PSC piggybacked on to the federal
requirements by requiring BTI to provide the PSC with "`any and all

                     6
supplementary information that it provides to the ICC on the same
time basis.'" Id. The court was further influenced by the fact that in
pursuit of permission to self-insure, BTI informed the PSC that the
ICC had authorized BTI to self-insure and that BTI"`will self-insure
its bodily injury and property damage liability to a level of
$500,000.'" Id. The court concluded:

          Obviously, BTI was operating in interstate commerce
          during the period in question and could not have done so
          without complying with the federal requirements. It was
          self-insured in other states, in addition to West Virginia.
          Accordingly, we hold that a foreign commercial trucking
          corporation operating in interstate commerce pursuant to a
          federal regulatory scheme, which provides federal minimum
          limits of liability coverage, is not subject to the[liability]
          limits set forth in W. Va. Code, 17D-4-2 [which provides a
          $20,000 limit], concerning this State's financial responsibil-
          ity provisions, even though the corporation was granted
          authority to self-insure by the West Virginia Public Service
          Commission. Therefore, we answer the second certified
          question in the negative.

Id. at 532.

Accordingly, the West Virginia Supreme Court of Appeals con-
cluded that, as a matter of state law, BTI's obligation to provide insur-
ance coverage was not limited to $20,000 because the decision to
grant BTI permission to self-insure under state law was based on the
existence of the federal minimum requirements and the fact that BTI
informed the PSC that the ICC had authorized BTI to self-insure the
first $500,000 of its bodily injury and property damage liability under
49 U.S.C. § 10927.

An unpublished order certifying the case back to the district court
states that the West Virginia Supreme Court of Appeals answered the
second certified question by finding that "federal minimum limits of
liability coverage imposed on foreign commercial trucking corpora-
tions operating in interstate commerce preempt general state mini-
mum limits of liability coverage set forth in W. Va. Code § 17D-4-2

                     7
. . . ." (J.A. 368). This order was signed by the clerk of the West Vir-
ginia Supreme Court of Appeals.

Seizing on the word "preempt" in the order certifying the case back
to the district court, BTI argues that the West Virginia Supreme Court
of Appeals based its answer to the second certified question on fed-
eral preemption tenets rather than on West Virginia law. Our review
of the West Virginia Supreme Court of Appeals' decision, however,
convinces us that the court did not base its decision on federal pre-
emption. At no point did the court use the words"preempt" or "pre-
emption," cite cases concerning federal preemption, or in any way
discuss federal preemption tenets. Instead, the court emphasized the
factors relied on by the West Virginia PSC in allowing BTI to self-
insure, including the crucial factor that BTI had complied with the
ICC requirements to self-insure. Considering that the PSC "weighed
substantially" BTI's compliance with the higher ICC requirements for
self-insurance, even to the point of ordering BTI to file copies of any
documents it filed with the ICC to the PSC, the court reasoned that
the PSC did not intend for BTI's obligation to provide coverage to be
limited by the West Virginia statutory or regulatory minimum
requirements. As the court stated, "In essence, the PSC granted BTI,
as a self-insured entity, permission to carry bodily injury liability
insurance in the amount of $14,500,000 (with its excess liability car-
rier) and $500,000 in primary self-insurance for total coverage in the
amount of $15,000,000." Jackson, 457 S.E.2d at 526 n.3.

Viewed in the context of the court's emphasis in its published opin-
ion on the factors relied on by the PSC in allowing BTI to self-insure,
the lone reference to the word "preempt" in the unpublished order cer-
tifying the case back to the district court is of no import. The clerk's
use of the word "preempt" did not imply that the federal minimum
requirements preempt state minimum requirements as a matter of fed-
eral law because the West Virginia Supreme Court of Appeals clearly
did not rely on preemption in answering the certified questions.
Rather, properly understood, the clerk's use of the word "preempt"
was a shorthand way of stating that the federal minimum require-
ments, coupled with the ICC's authorization for BTI to self-insure the
first $500,000 of its bodily injury and property damage liability, pro-
vided the cap on BTI's liability under West Virginia law.

                     8
Because the West Virginia Supreme Court of Appeals based its
answer to the second certified question on West Virginia law, we are
bound to enforce that court's decision. See Erie , 304 U.S. at 77.
Accordingly, we affirm the district court's entry of judgment in the
amount of $500,000 in favor of Jackson.

AFFIRMED

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