UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AMERICAN PROTECTION INSURANCE

COMPANY,

Plaintiff-Appellant,

v.

AHLSTROM KAMYR, INCORPORATED;

KAMTECH, INCORPORATED,

Defendants-Appellees,

No. 98-2504

and

LAMB-GRAYS HARBOR COMPANY;

LAMB CANADA LTD/LTEE;

CONTINENTAL CONVEYOR AND

MACHINE WORKS, LIMITED,

Defendants & Third

Party Plaintiffs.

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Irene M. Keeley, District Judge.

(CA-96-203, CA-97-187)

Submitted: June 16, 1999

Decided: June 28, 1999

Before WILKINSON, Chief Judge, and MURNAGHAN

and TRAXLER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Richard Edwin Bliss, MARGOLIS EDELSTEIN, Pittsburgh, Pennsylvania, for Appellant. Andrew G. Fusco, Jeffrey A. Ray, FUSCO &

NEWBRAUGH, L.C., Morgantown, West Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

American Protection Insurance Company (APIC) appeals the district court's grant of summary judgment to Ahlstrom Kamyr, Inc., and

Kamtech, Inc., in APIC's action seeking damages based on a claimed

right to subrogation of insurance proceeds paid by APIC to American

Fiber Resources (AFR) on account of property damage caused by a

fire. We affirm.

Our review is de novo. See Causey v. Balog, 162 F.3d 795, 800

(4th Cir. 1998). Subrogation rights are derived solely from the insured

party. If the insured does not have a right to recover against a third

party, then the insurer-subrogee has no right to recover against the

same third party. See American Sur. Co. v. Town of Islip, 48 N.Y.S.

2d 749, 751 (App. Div. 1944); see also National Union Fire Ins. Co.

v. Silberman, 628 N.Y.S. 2d 126, 127 (App. Div. 1995); USAA Cas.

Ins. Co. v. Brown, 614 N.Y.S. 2d 571, 572 (App. Div. 1994). We find

that the right to proceed against Ahlstrom Kamyr and Kamtech for

damage to AFR's property was AFR's right to waive in its contract

with Ahlstrom Kamyr.

Furthermore, we find that the agreement between AFR and Ahlstrom Kamyr was unambiguous. The parties agreed that AFR would

provide insurance, that Ahlstrom Kamyr and its affiliates would be

listed on the insurance policy as named insureds, and that all rights

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to subrogation for property damage would be waived. 1 Because subrogation rights for property damage were waived, the instant action is

barred. See Trump-Equitable Fifth Ave. v. H.R.H. Constr. Corp., 485

N.Y.S. 2d 65, 68 (App. Div. 1985), aff'd, 488 N.E.2d 115 (N.Y.

1985).

Accordingly, we affirm on the reasoning of the district court. See

American Protection Ins. Co. v. Ahlstrom Kamyr, Inc. , No. CA-97-

187 (N.D.W. Va. Oct. 8, 1998).2

AFFIRMED

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1 We note that in APIC's policy covering AFR's property, APIC agreed

that the policy would not be invalidated if AFR waived its right to

recover for any loss to the property.

2 Although the district court's order is marked as "filed" on September

29, 1998, the district court's records show that it was entered on the

docket sheet on October 8, 1998. Pursuant to Rules 58 and 79(a) of the

Federal Rules of Civil Procedure, it is the date that the order was entered

on the docket sheet that we take as the effective date of the district

court's decision. See Wilson v. Murray, 806 F.2d 1232, 1234-35 (4th Cir.

1986).

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