United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-3507

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St. Paul Fire and Marine Insurance *

Company, *

*

Plaintiff/Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Microsoft Corporation, *

* [PUBLISHED]

Defendant/Appellant. *

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Submitted: June 14, 2000

Filed: July 20, 2000

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Before LOKEN, BRIGHT, and ROSS, Circuit Judges.

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PER CURIAM.

St. Paul Fire and Marine Insurance Company ("St. Paul Fire") brought an action

against Microsoft Corporation ("Microsoft") in federal district court seeking a

declaratory judgment defining its obligation to defend or indemnify Microsoft under its

policy insuring the Defendant. 

In this action for declaratory judgment St. Paul Fire asserts that the plaintiffs in

two class actions against Microsoft do not seek consequential damages, the only

damages that are covered by the policy, according to St. Paul Fire. The two lawsuits
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on which St. Paul Fire has refused to defend or indemnify Microsoft are Michael H.

Miller, individually and on behalf of all others similarly situated v. Microsoft Corp.,

(Mobile County Ct., Ala.); and Mark Manning, Steve Collins and Dana Schnitzer, on

behalf of themselves and all others similarly situated v. Microsoft Corp., (Dist. Ct. of

Harrison County, Tex.). Each action alleges that a putative plaintiff class suffered

damage when they "purchased, licensed or otherwise acquired" Microsoft's DOS 6.0

software.

The district court considered the issues on a motion for summary judgment

relating to the Miller and Manning class actions and granted the motion for summary

judgment. The court stated, "The explicit enumeration of the damages sought [in the

lawsuits] leads to the conclusion that all other kinds of damages are excluded. Since

all of the damages enumerated are direct, rather than consequential, the petitions do not

state a claim for consequential damages." Appellant's Add. at 15. Accordingly, the

district court entered a summary judgment order as follows:

The Court hereby declares that plaintiff is not obligated to

defend or indemnify defendant under Policy No. 696NK6427 against

claims asserted in the action filed in the District Court of Harrison

County, Texas, entitled, Mark Manning, Steve Collins and Dana

Schnitzer, on behalf of themselves and all others similarly situated v.

Microsoft Corporation.

The Court hereby declares that plaintiff is not obligated to

defend or indemnify defendant under Policy No. 696NK6427 against

claims asserted in the action filed in Mobile County Court, Alabama,

entitled, Michael H. Miller, individually and on behalf of all others

similarly situated v. Microsoft Corporation.

Id., at 18.
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We have carefully considered the briefs, the record, and the oral argument of the

parties. We conclude that the district court opinion by the Honorable John R. Tunheim

fully and fairly discusses the issues and reaches the correct result in this case.

Accordingly, we affirm on the basis of the district court opinion, St. Paul Fire

and Marine Ins. Co. v. Microsoft Corp., ___ F. Supp. 2d ___ (D. Minn. 2000).

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.