Grubbs v. Gulf International Marine, Inc.

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 25, 1993
• Docket: 91-3220
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS for the Fifth Circuit

_____________________________________

No. 91-3220 _____________________________________

JONATHAN P. GRUBBS,

Plaintiff-Appellant,

VERSUS

GULF INTERNATIONAL MARINE, INC., ET AL.,

Defendants-Appellees.

______________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana ______________________________________________________ (February 24, 1993)

ON PETITION FOR REHEARING

(Opinion October 19, 1992, 5th Cir., 1992, _____F.2d._____)

Before KING, JOHNSON, AND DAVIS, Circuit Judges.

PER CURIAM:

We decided in this case that marine protection and indemnity

insurance falls within the ocean marine insurance exclusion of the

Louisiana Direct Action Statute, LSA-R.S. § 22:655 (West Supp.

1992). In reaching this conclusion, we relied primarily on the

Louisiana Supreme Court's reasoning in an analogous case, Backhus

v. Transit Cas. Co., 549 So.2d 283 (La. 1989). The Louisiana high

court held that marine protection and indemnity insurance falls

within the ocean marine insurance exclusion of the Louisiana Insurance Guaranty Association Fund (LIGA), LSA-R.S. § 22:1375-1394

(West 1978 & Supp. 1992). Backhus, 549 So.2d at 289.

Since we issued our opinion, two intermediate Louisiana

appellate courts have held that an injured party may bring a direct

action under the Louisiana Direct Action Statute on a marine

protection and indemnity policy.1 When a state's highest court has

not decided a state law question, we must give due consideration to

the opinions of intermediate state appellate courts on that

question. See Lavespere v. Niagara Mach. & Tool Works, Inc., 920

F.2d 259, 260 (5th Cir. 1990). The above intermediate Louisiana

appellate court decisions cast some doubt on how the Louisiana

Supreme Court would resolve this issue. Thus, we believe it

appropriate to exercise the certification privilege granted by Rule

XII of the Rules of the Supreme Court of Louisiana.

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT TO THE SUPREME COURT OF LOUISIANA:

TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE

SUPREME COURT OF LOUISIANA:

I. Style of the Case

The style of the case that we certify is Jonathan P. Grubbs,

Plaintiff-Appellant, versus Gulf International Marine, Inc., et

al., Defendants-Appellees, No. 91-3220, United States Court of

Appeals for the Fifth Circuit, on appeal from the United States

District Court for the Eastern District of Louisiana.

1 See Hae Woo Youn v. Maritime Overseas Corp., 605 So.2d 187 (La. Ct. App. 5th Cir. 1992); Treadway v. Certain Underwriters at Lloyds, No. 92-C-1500 (La. Ct. App. 4th Cir. Sept. 15, 1992).

2 II. Statement of Facts

Our opinion No. 91-3220 (5th Cir. October 19, 1992) recites

this case's facts.

III. Question Certified

Whether the Louisiana Direct Action Statute, LSA-R.S. 22:655

(West Supp. 1992) permits an injured party to maintain a direct

action against a marine protection and indemnity insurer.

IV. Conclusion

We disclaim any intent that the Louisiana Supreme Court

confine its reply to the precise form or scope of the legal

question that we certify. The answer provided by the Louisiana

Supreme Court will determine the issue on appeal in this case. We

transfer to the Louisiana Supreme Court this case's record and the

appellate briefs in this case with our certification.

We GRANT Grubbs's petition for rehearing, WITHDRAW our

previous opinion No. 91-3220, and CERTIFY the question stated above

to the Louisiana Supreme Court.