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### REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-60815

Summary Calendar.

Gary P. BOATNER; Paula K. Boatner, Plaintiffs-Appellees,

v.

ATLANTA SPECIALTY INSURANCE COMPANY, Defendant-Appellant.

June 27, 1997.

Appeal from United States District Court for the Southern District

of Mississippi.

Before W. E UGENE DAVIS, EMILIO M. GARZA and STEWART, Circuit

Judges.

STEWART, Circuit Judge:

This case requires us to determine the scope of Mississippi's

Uninsured Motorist Act (UM Act). Bradley Boatner went to Honduras

on a humanitarian mission and was killed as he rode in the back of

a flatbed truck. Both the owner and the driver of the truck were

uninsured. Boatner's parents sought payment from Atlanta Specialty

Insurance Company (Atlanta Specialty) pursuant to the uninsured

motorist endorsement in the Boatners' automobile policy. Atlanta

Specialty denied coverage, asserting a territorial restriction in

the policy, which limited recovery to losses occurring within the

United States (and its te rritories and possessions), Canada, and

Puerto Rico. The Boatners brought a declaratory judgment suit in

state court, and the case was removed to federal court on the basis

of diversity jurisdiction. Atlanta Specialty moved for judgment on2

the pleadings, but the district court denied the motion, holding

that the territorial restriction was aga inst Mississippi public

policy as embodied in the UM Act. At the conclusion of discovery,

Atlanta Specialty moved for summary j udgment, again arguing that

the territorial restriction in the Boatners' policy precl u ded

coverage. The district court denied the motion for the same

reasons it denied Atlanta's motion for judgment on the pleadings.

Atlanta Specialty appeals. Because we find that the territorial

restriction in the Boatne rs' policy does not violate Mississippi

public policy, we reverse and render judgment for Atlanta

Specialty.

BACKGROUND

On January 18, 1994, seventeen-year-old Bradley Boatner,

together with members of the Pearl River Baptist Association

Brotherhood, traveled to a rural mountainous area in Honduras to

provide humanitarian medical relief to citizens of that region. It

had been raining that day. At about dusk, the medical team

(approximately 25-30 in all) loaded into the back of an open

flatbed truck and departed on a dirt road. Boatner was seated on

a box of supplies in the left, front corner of the truck (i.e.,

behind the driver). As the truck proceeded along the dirt road at

approximately 20-30 miles per hour, the driver noticed a hole in

the road and attempted to drive around i t. As the driver

negotiated the hole, he came too close to the edge of the road, and

because it had been raining, the soil gave way. The truck teetered

for a moment and then veered off the road, throwing Boatner from3

the truck. Boatner was killed instantly. Other members of the

medical team were also seriously injured. Neither the owner of the

truck nor the driver owned automobile insurance.

PROCEDURAL HISTORY

Gary P. Boatner and Paula K. Boatner (the parents of Bradley

Boatner) had purchased an automobile insurance policy from Atlanta

Specialty, which provided for $100,000 per person in un insured

motorist coverage. The Boatners owned and insured three vehicles,

making available $300,000 in uninsured motorist coverage. The

Boatners' policy, however, contained the following territorial

restriction applicable to the entire policy:

POLICY PERIOD AND TERRITORY

A. This policy applies only to accident a nd losses which

occur:

1. ....

2. Within the policy territory.

B. The policy territory is:

1. The United States of America, its territories or possessions;

2. Puerto Rico; or

3. Canada.

On August 31, 1994, the Boatners, through counsel, sought payment

under the uninsured motorist provision of the policy to compensate

them for the death of their son. Atlanta Specialty denied

coverage, stating that the territorial restriction in the policy

precluded coverage because Bradley Boatner's death occurred in

Honduras, which plainly brought t he Boatners' claim within the4

terms of the exclusion.

The Boatners thereafter filed a declaratory judgment action in

state court, and the case was removed to federal court on the basis

of diversity jurisdiction. Atlanta Specialty moved for judgment on

the pleadings, arguing th at the unambiguous terms of the

territorial restriction precluded coverage as a matter of law. The

district court disagreed, holding that the territorial restriction

was against Mississippi public policy as embodied in the UM Act.

At the conclusion of discovery, Atlanta Specialty moved for summary

judgment, asserting the arguments made in its pre-discovery motion.

The district court denied the motion as frivolo us and ordered

Atlanta Specialty to pay the Boatners' legal expenses in connection

with defending the motion. Rather than go through a trial on the

merits, Atlan ta Specialty stipulated to $275,000 in damages plus

attorneys' fees totaling $1,500 (for having to defend the frivolous

summary judgment motion). This appeal followed.

DISCUSSION

Whether the territorial restric tion in Atlanta Specialty's

uninsured motorist policy violates Mississippi public policy is an

issue of first impression. It is by now well-settled that in

making an Erie [R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82

L.Ed. 1188 (1938)] guess "[w]e are emphatically not permitted to do

merely what we think best; we must do that which we think the

Mississippi Supreme Court would deem best." J ackson v. JohnsManville Sales Corp., 781 F.2d 394, 397 (5th Cir.) (en banc), cert.

denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986).1 The Mississippi Supreme Court has found various provisions of

uninsured motorist policies ambiguous. S ee Government Empl oyees

Ins. Co. v. Brown, 446 So.2d 1002, 1006 (Miss.1984) (limitation of

liability clause); P earthree v . Hartford Accident & Indem. Co.,

373 So.2d 267, 270-71 (Miss.1979) (same); H artford Accident &

Indem. Co. v. Bridges, 350 So.2d 1379, 1381-82 (Miss.1977) (same);

compare Blansett v. American Employers Ins. Co., 652 F.2d 535, 536-

37 (5th Cir. Unit A Aug.1981) (per curiam) (holding that limitation

of liability clause was unambiguous). There is no dispute in this

case that the territorial restriction in the Boatners' policy, if

valid, unambiguously precludes coverage for the death of Bradley

Boatner.

5 "[U]nder Erie we cannot skirt the clear import of state decisional

law solely because the result is harsh." P arson v. United States,

4 60 F.2d 228, 234 (5th Cir.1972) (quoted in J ackson, 781 F.2d at

397). We review d e novo the district court's interpretation of an

insurance contract. M ulb erry Square Productions, Inc. v. State

Farm Fire & Cas. Co., 101 F.3d 414, 420 (5th Cir.1996)

(interpreting Mississippi law). Any ambiguity in the policy is

construed against the insurer, and exclusions in uninsured motorist

policies are strictly construed. S ee State Farm Mut. Auto. Ins.

Co. v. Nester, 459 So.2d 787, 790 (Miss.1984). 1

I. MISSISSIPPI'S UNINSURED MOTORIST STATUTE—ITS LEGISLATIVE BIRTH

AND JUDICIAL UPBRINGING

Section 83-11-101—Mississippi's UM Act—provides in part as

follows:

(1) No automobile liability insurance policy or contract

shall be issued ... unless it contains an endorsement or

provisions undertaking to pay the insured all sums which he

shall be legally enti tled to recover as damages for bodily

injury or death from the owner or operator of an uninsured

motor vehicle, within limits which shall be no less than those

set forth in the Mississippi Mot o r Vehicle Safety

Responsibility Law

....

(Emphasis added.) Mississippi's UM Act therefore incorporates by2 Missouri Gen. Ins. Co. v. Youngblood, 51 5 F.2d 1254, 1256

(5th Cir.1975).

6 reference the limitations found in Mississippi's Motor Vehicle

Safety Responsibility Act, which provides in part:

(2) Such owner's policy of liability insurance:

* * * * * *

(b) shall pay on behalf of the insured named therein

... all sums which the insured shall become legally

obligated to pay as damages arising out of the ownership,

maintenance or use of such motor vehicles w ithin the

United States of America or the Dominion of Canada,

subject to limits ... as follows: ten thousand dollars

($10,000.00) because of bodily injury to or death of one (1) person in any one (1) accident and, subject to said

limit for one (1) person, twenty thousand dollars

($20,000.00) because of bodily injury to or death of two

(2) or more persons in any one (1) accident, and five

thousand do llars ($5,000.00) because of injury to or

destruction o f property of others in any one (1)

accident.

(3) Such operator's policy of liability insurance shall

pay on behalf of the insured

... all sums which the insured

shall become legally obliga ted to pay as damages ... within

the same territorial limits and subject to the same limits of

liability as are set forth above with respect to an owner's

policy of liability insurance.

M ISS .C ODE A NN . § 63-15-43 (1996) (emphasis added).

Although neither st atute is "a paradigm of legislative

exactitude," 2 our task nonetheless is to determine whether the UM

Act incorporates the Safety Responsibility Act's territorial

restriction, such that the UM Act's scope is limited to accidents

involving uninsured motorists in the United States and Canada. For

if it does, then we must conclude that the territorial restriction

in Atlanta Specialty's policy does not violate Mississippi public

p olicy. Before we get to this question, however, we find it7

helpful to briefly recount the legislative birth of the UM Act and

the judicial gloss placed upon the relationship between the UM Act

and the Safety Responsibility Act.

A. The UM Act's Legislative Birth

Enacted in 1952, Mississippi's Safety Responsibility Act

provided innocent persons killed or injured in automobile accidents

w ith compensation for injuries resulting from a driver's

negligence. S ee Travelers Indem. Co. v. Watkins, 209 So.2d 630,

632 (Miss.1968); s ee generally Richard T. Phillips, A Guide to

Uninsured Motorist Insurance Law in Mississippi, 52 M ISS .L.J. 255,

257 (1982). The statute provided that insurers would provide

specified amounts of liability coverage for accidents occurring in

the United States and Canada. § 63-15-43(2)(b), (3). However, the

Safety Responsibility Act left essentially three gaps in coverage:

negligent drivers would often violate the law and fail to purchase

liability insurance; coverage was denied on the basis of uninsured

motorist exclusions or policy breaches; and the tortfeasor

sometimes happened to be a hit-and-run driver. Phillips, 52

M ISS .L.J. at 258.

The UM Act was designed to fill these gaps. Otherwise known

as " "family protection insurance,' " uninsured motorist coverage

"provide[s] innocent injured motorists a means of recovery of all

sums to which they are entitled from an uninsured motorist."

Wickline v. United States Fidelity & Guar. Co., 530 So.2d 708, 712

(Miss.1988). Indeed, the UM Act was hailed as "an example of the

successful interworkings of the legislature, the insurance3 In Atlanta Cas. Co. v. Payne, 603 So.2d 343 (Miss.1992), the

Mississippi Supreme Court suggested that there are three principles

that should guide our interpretation of the UM Act. I d. at 345-46

(liberal construction; construing ambiguous provisions against the

insurer; and statute prevails in policy-statute conflict). We

have remained faithful to this co mmand but have broadened our

analysis somewhat to account for the unique facts, circumstances,

and arguments presented in this case.

8 industry, the courts, and advocates representing injured

Mississippians." Phillips, 52 M I SS .L.J. at 255; s ee also Rampy v.

State Farm Mut. Auto. Ins. Co., 278 So.2d 428, 431-32 (Miss.1973)

(noting the insurance industry's role in passing the UM Act). In

particular, because the Safety Responsibi lity Act only offered

incentives to purchase liability insurance, those inj ured by

persons without liability coverage were often left without adequate

monetary compensation for their i njuries. Phillips, 52 M I SS .L.J.

at 257. The UM Act eliminated this "one free accident" scenario

and provided that insurance companies must pr ovide Mississippi

motorists wit h the same level of uninsured motorist coverage

provided in the Safety Responsibility Act. I d. at 258. With this

basic framework on the books, Mississippi courts were trusted with

the job of defining the precise contours of the UM Act.

B. The UM Act's Judicial Upbringing

The Mississippi Supreme Court has applied a relatively thick

coat of judicial gloss to the UM Act. Four principles form the

basis of our Erie guess. 3

First, the Mi ssissippi Supreme Court has repeatedly stated

that courts should liberally construe the provisions of the UM Act4 See Johnson v. Preferred Risk Auto. Ins. Co., 659 So.2d 866,

871-72 (Miss.1995); Aetna Cas. & Sur. Co. v. Williams, 623 So.2d

1005, 1008 (Miss.1993); State Farm Mut. Auto. Ins. Co. v. Davis,

613 So.2d 1179, 1181 (Miss.1992); P ayne, 603 So.2d at 345; H arris

v

. Magee, 573 So.2d 646, 651 (Miss.1990); L awler, 569 So. 2d at

1153; C ossitt v. Federated Guar. Mut. Ins. Co., 541 So.2d 436, 440

(Miss.1989); W ickline, 530 So.2d at 711; M ississippi Farm Bureau

Mut. Ins. Co. v. Garrett, 487 So.2d 1320, 1324 (Miss.1986); S tate

Farm Mut. Auto. Ins. Co. v. Daughdrill, 474 So.2d 1048, 1052

(Miss.1985); N

ester, 459 So.2d at 790, 792; D unnam v. State Farm

Mut. Auto. In s. Co., 366 So.2d 668, 671 (Miss.1979); S tevens v.

United States Fidelity & Guar. Co., 345 So.2d 1041, 1043

(Miss.1977); Lowery, 285 So.2d at 770; Rampy v. State Farm Mut.

Auto. Ins. Co., 278 So.2d at 432; s ee also Preferred Risk Ins. Co.

v. Insurance Co. of N. Am., 824 F.Supp. 614, 619 (S.D.Miss.1993);

Curry v. Travelers Indem. Co., 728 F.Supp. 1299, 1300

(S.D.Miss.198 9); P referred Risk Mut. Ins. Co. v. Poole, 411

F.Supp. 429, 437 (N.D.Miss.), aff'd per curiam, 539 F.2d 574 (5th

Cir.1976).

5 See Payne, 603 So.2d at 346; N ester, 459 So.2d at 790, 792-

93; D unnam, 366 So.2d at 671; S outhern Farm Bureau Cas. Ins. Co.

v. Roberts, 323 So.2d 536, 538 (Miss.1975) (quoting Van Tassel v.

Horace Mann Mut. Ins. C o., 296 Minn. 181, 207 N.W.2d 348, 351-52

( 1973)); P arker v. Cotton Belt Ins. Co., 314 So.2d 3 42, 344

(Miss.1975); H arthcock v. State Farm Mut. Auto. Ins. Co., 248

So.2d 456, 458 (Miss.1971); H odges v. Canal Ins. Co., 223 So.2d

630, 634 (Miss.1969); see also Poole, 411 F.Supp. at 439.

6 See Dunnam, 366 So.2d at 670; S tate Farm Mut. Auto. Ins. Co.

v. Moore, 289 So.2d 909, 911 (Miss.1974) (interpreting the Safety

Responsibility Act); U nited States Fidelity & Guar. Co. v.

Stafford, 253 So.2d 388, 391 (Miss.1971); see also Universal

Underwriters Ins. Co. v. American Motorists Ins. Co., 541 F.Supp.

755, 760 (N.D.Miss.1982) (interpreting the Safety Responsibility

Act); Poole, 411 F.Supp. at 436.

9 to effectuate the remedial and humanitarian purp oses of the Act. 4

Second, uninsured motorist provisions within automobile insurance

policies must be interpreted from the standpoint of the injured

insured. 5 Third, if the provisions of the UM Act provide broader

protectio n than the uninsured motorist policy, then the terms of

the Act become part of the policy, providing the insured a

statutory level of monetary protection. 6 Fourth, although the7 See McCoy v. South Cen. Bell Tel. Co., 688 So.2d 214, 215-16

(Miss.1996) (looking to other jurisdictions' view of whether

self-insured companies are required to provide uninsured motorist

coverage to their employees or lessees); C ossitt, 541 So.2d at

441-42 (relying on interpretations of "analogous" uninsured

motorist statutes); S tate Farm Mut. Auto. Ins. Co. v. Kuehling,

475 So.2d 1159, 1162-63 (Miss.1985) (looking for guidance to

"similar" uninsured motorist statutes which provide for

underinsured motorist coverage); D aughdrill, 474 So.2d at 1053-54

(declining to follow interpretations of o ther states' dissimilar

uninsured motorist statutes); T albot v. State Farm Mut. Auto. Ins.

Co., 291 So.2d 699, 701 (Miss.1974) (looking to authority of other

states regarding whether insureds, under uninsured motorist

policies, can agg regate coverage provided in a single insurance

poli cy which insures more than one vehicle), o verruled on other

grounds, Government Employees Ins. Co. v. Brown, 446 S o.2d 1002

(Miss.1984); L owery, 285 So.2d at 77 1-77 (reviewing cases

interpreting other states' uninsured motorist statutes and

concluding that "the great weight of auth ority supports the

[plaintiff's] contention that the exclusionary clause violates the

public policy of this state"); R ampy, 278 So.2d at 432-34 (looking

for guidance to interpretations of "similar, if not identical"

uninsured motorist statutes); McMinn, 276 So.2d at 685 (treating

as "persuasive and enlightening" other uninsured motorist statutes

which do not contain the exact phraseology of the UM Act);

Harthcock, 248 So.2d at 461-62 (looking to other j urisdictions'

interpretation of "other insurance" clause); T ravelers Indem. Co.

v. Chappell, 246 So.2d 498, 501-04 (Miss.1971) (adopting view among states that if two escape clauses within insurance policy operate

to negate coverage, those escape clauses are null and void).

8 Harris v. Magee, 573 So.2d at 653; s ee also Wi ckline, 530

So.2d at 714; D unnam, 366 So.2d at 672. Our case law is in accord

with this view. See Johnston v. Safeco Ins. Co. of Am., 727 F.2d

548, 550 (5th C ir.1984) (per curiam) (rejecting plaintiff's

argument because it rested on state uninsured motorist statutes

"that are grossly different from Mississippi's").

10 Mississippi Supreme Court has not always closed its judicial eye to

t he insurance law of other jurisdictions, 7 the court has more

recently suggested that courts interpreting Mississippi uninsured

motorist law should be "guided by [the terms of Mississippi's]

uninsured mot orist statute, not the jurisprudence of foreign

jurisdictions." 8

Based on these principles of uninsured motorist coverage, the9 See Nationwide Mut. Ins. Co. v. Garriga, 636 So.2d 658, 663-

65 (Miss.1994) (declaring invalid offset provision which operated

to deny insured the maximum excess coverage the insured paid for);

E mployers Mut. Cas. Co. v. Tompkins, 490 So.2d 897, 904-05

(Miss.1986) (declaring void policy provision which stated that

nonlisted vehi cles would not be covered, but failed to inform

insured that insured would not receive minimum statutory coverage);

Nester, 459 So.2d at 793 (holding that policy exclusion for

uninsured motorist claims involving permissive users violated

Mississippi public policy as expressed in the UM Act); S tate Farm

Mut. Auto. Ins. Co. v. Bishop, 329 So.2d 670, 673 (Miss.1976) ("An

insurance company cannot by the provisions in one uninsured

motorist endorsement limit its liability and endorsement in a

separate policy and defeat the mandat ory provisions of the

statute."); T albot, 291 So. 2d at 703 (declaring invalid clause

which reduced u ninsured motorist coverage by amounts paid under

medical coverage provisions of policy); L owery, 285 So.2d at 771-

77 (declaring invalid restriction in policy that required "insured"

to own the automobile described in the policy until un insured

motorist coverage applied); H arthcock, 248 So.2d at 459-60, 461-62

(holding that conditioning uninsured motorist coverage on insured's

agreement to not settle with other tortfeasors contravenes the UM

Act; also declaring void "other insurance" provision of policy

which operated to relieve insurer of payment if insured secured

statutory minimum from o ther source); s ee also Youngblood, 515

F.2d at 1256-58 (declar ing invalid provision in policy which

reduced uninsured motorist coverage based on amounts paid under

bodily injury liability provision); P oole, 411 F.Supp. at 439

(declaring invalid policy provision which excluded occupants of

vehicle from uninsured motorist coverage).

1 0 See, e.g., Talbot, 291 So. 2d at 701 (declaring valid a

limitation of liabilit y provision, which permitted parties to

contract to statutory minimum).

11 Mississippi Supreme Court has stated that "the overwhelming number

of uninsured motorist insuran ce policy exclusion provisions that

t his Court has considered have been found to be void and against

public policy." P ayne, 603 So.2d at 347. 9 Of course this does not

mean that every exclusion necessarily violates Mississippi public

policy, for some provisions have survived challenges brought by

Mississippi insureds. 10 Policy terms that meet the minimum

requirements under the UM Act by definition cannot run counter to12

Mississippi public policy. See, e.g., Gillespie v. Southern Farm

Bureau Cas. Ins. Co., 343 So.2d 467, 470 (Miss.1977); T ravelers

Indem. Co. v. Chappell, 246 So.2d at 509 (interpreting the Safety

Responsibility Act); s ee also Black v. Fidelity & Guar. Ins.

Underwriters, Inc., 582 F.2d 984, 989 (5th Cir.1978).

II. DOES THE TERRITORIAL RESTRICTION IN ATLANTA Specialty'S

UNINSURED MOTORIST POLICY VIOLATE MISSISSIPPI PUBLIC POLICY AS

EXPRESSED IN THE UM ACT?

With this background in mind, we now turn to the central

question presented in this appeal: Did the Mississippi legislature

intend, without expli citly saying so, to provide Mississippians

worldwide uninsured m otorist coverage? Or did the legislature

import into the UM Act the territorial limits prescribed by the

Safety Responsibility Act? We have looked at the statute,

canvassed the case law and commentary in this area, and conclude

that nothing in the language or purpose of the statute or the case

law supports the conclusion that the UM Act expresses a policy

judgment that Mississippians are entitled to worldwide un insured

motorist coverage. Instead, we find that the UM Act is subject to

the same territorial restrictions found in the S afety

Responsibility Act.

A. The UM Statute—Its Plain Meaning and its Purpose

A bedrock principle of statutory construction in Mississippi

is that courts should strive to effectuate the intent of the

legislature and the purpose of the legislation. S ee Easterling v.

Howie, 179 Miss. 680, 176 So. 585 (1937). Legislative intent, the

Mississippi Supreme Court has said, is the " "pole star of13

guidance.' " Evans v. Boyle Flying Serv., Inc., 680 So.2d 821, 825

(Miss.1996) (quoting Quitman County v. Turner, 196 Miss. 746, 18

So.2d 122, 124 (1944)). At the same time, we have been instructed

to avoid deciding "what the law ought to be" and focus instead on

"the positive command of the statute." W ickline, 530 So.2d at 714

(emphasis added); see also Brown v. Hartford Ins. Co., 606 So.2d

122, 125 (Miss.1992). We must show "due regard ... for the

differing functions of the legislative and judicial branches of

government. Such due regard prevents us from rewriting the

statutes to reach a more preferable result under the pretext of

interpretation." C ossitt, 541 So .2d at 442; s ee also Harris v.

Magee, 573 So.2d at 655.

At the outset, we note that it is far from clear that if the

UM Act does not include the territorial limitations of the Safety

Responsibility Act, it must follow that the UM Act mandates

worldwide uninsured motorist coverage. For one can plausibly argue

that absent the territorial restriction, the UM Act is silent as to

territorial scope and an insu rer may therefore limit coverage to

Mississippi alone. This conclusion would be in keeping with

Daughdrill, 474 So.2d 1048, in which the Mississippi Supreme Court

(interpreting the UM Act) held that "a statute which enumerates and

specifies the subjects or things upon which it is to operate, is to

be construed as excluding from its effect those subjects not

expressly mentioned or included under a general clause." I d. at

1051 (construing Southwest Drug Co. v. Howard Bros. Pharmacy, 320

So.2d 776 (Miss.1975)); s ee also Cossitt, 541 So.2d at 44014

(applying the principle to the UM Act).

However, we do not believ e that the Mississippi legislature

intended to re strict uninsured motorist coverage to Mississippi

alone. By referring to the "limits" of the Safety Responsibility

Act, the Mississippi legislature plainly intended to import into

the UM Act the protections afforded by the Sa fety Responsibility

Act (which provides coverage for the United States and Canada).

See Belk v. Bean, 247 So.2d 821, 828 (Miss.1971) ("Where statutes

refer specifically to another statute, it specifically embodies the

statute referred to into the adopting statute. The effect of the

adopting of an earlier statute is to incorporate the entire section

o f the earlier statute, the same as if recopied in th e later

statute.").

The district court's conclusion that the plain terms and

purpose of the UM Act provide worldwide uninsured motorist coverage

rests on two grounds. First, the district court reasoned that

because the UM Act did not explicitly state that uninsured motorist

coverage is subject to a territorial restriction, "[t]he Court will

not read provisions into the UM Act which were not included by the

legislature." Second, the district court concluded that the term

"limits" in the UM Act refers only to the monetary, and not

territorial, limits in the Safety Responsibility Act. The district

court reached thi s conclusion based on the "ordinary meaning" of

the word "limits" in insurance policies and the fact that "limits"

in the Safety Responsibility Act appears after the territ orial

restriction in that statute. From these two premises, the district15

court held that "[i]f the insuran ce companies are opposed to

providing [worldwide uninsured motorist] coverage, their remedy

lies with the Mississippi legislature and not with this Court." We

are not persuaded.

The district court's first rationale simply proves too much.

Just because the Mississippi legislature did not explicitly include

a territorial restriction in the UM Act does not mean that

uninsured motorist coverage should extend to automobile accidents

occurring around the world. The district court itself read into

the UM Act the monetary limits found in the Safety Responsibility

Act even though those monetary limits do not appear on the face of

the UM Act.

More over, rather than support such a construction of the UM

Act, the plain terms of the UM Act in fact belie the contention

that the Act represents an across-the-board polic y judgment that

Mississippians shall receive worldwide uninsured motorist coverage.

As we have pointed out, the UM Act incorporates the "limits" of the

Safety Responsibility Act. The Safety Responsibility Act

distinguishes between policies issued to owners and those issued to

operators. § 63-15-43(2)(a) & (b) (owners); § 63-15-43(3)

(operators). Notably, although not stated as such in the section

applicable to owners of automobiles, subsection (3) of the Safety

Responsibility Act imports the "territorial limits" applicable in

subsection (2)(b). This reference to "territorial limits" in

subsection (3) unambiguously suggests that uninsured motorist

coverage for policies issued to operators of automobiles is subject16

to the territorial restriction in the Safety Responsibili ty Act.

Accordingly, we find it highl y implausible (indeed, there is not

even a hint) that the Mississippi legislature intended to establish

a policy of worldwide coverage for owners of automobiles, but limit

coverage to specified territories in operator liability

policies—especially because the plain terms of the Safety

Responsibility Act provide that owne r and operator policies are

subject to exactly the same limitations.

More to the point, to the extent that the district court's

conclusion can be read to apply t o uninsured motorist claims

brought under owner and operator policies, the district co urt's

reasoning writes the words "terr itorial limits" out of § 63-15-

43(3). This is so for obvious reasons: If, as the district court

concluded, the UM Act is not at all subject to the territorial

limitations of the Safety Responsibility Act, yet the Safety

Responsibility Act explicitly states that operator pol icies are

subject to the "territorial limits" in § 63-15-43(2)(b), then the

"territorial limits" language of § 63-15-43(3) is rendered

nugatory. We decline to read such critical terms out of the Safety

Responsibility Act.

The district court's second rationale fails as well because

the district court erron eously concluded that the term "limits"

only refers to the monetary limits in the Safety Responsibility

Act. Based on the meaning and location of the word "limits," the

district court found, by negative implication, that the Mississippi

legislature intended through the UM Act to provide Mississippians17

worldwide uninsured motorist cove rage. We conclude that the

Mississippi legislature, through nothing more than silence, could

not have intended to provide Mississippians such broa d-based

uninsured motorist coverage.

By all accounts, the UM Act was enacted to fill the gaps left

by the Safety Responsibility Act—nothing more and nothing less. As

we have said, the Mississippi legislature intended to provide

Mississippians injured by uninsured motorists a floor of coverage;

the Safety Responsibility Act provides that floor. Nothing in

Mississi p pi case law or commentaries suggests the Mississippi

legislature, through the UM Act, addressed the problem of

Mississippians injured by uninsu red motorists around the world.

Notwithstanding the tragic and compelling facts presented in this

case, our dut y under E rie prevents us from finding worldwide

uninsured motorist coverage under the UM Act.

In short, we find that the only construction of the UM Act

which properly accounts for subsection (3) in the Safety

Responsibility Act and recogn izes the gap-filling role of the UM

Act is that the term "limits" in the UM Act refers to the

territorial and monetary limitations in the Safety Responsibility

Act. The case law bolsters our conclusion.

B. The Case Law

We have found no indication in Mississippi case law that the

UM Act requires insurers to provide Mississippi insureds worldwide

uninsured motorist coverage. We reach this conclusion by analyzing

the territorial restriction in the Boatners' policy in light of the18

four principl es we have extracted from Mississippi's uninsured

motorist case law.

1. Liberal Construction

The Mississippi Supreme Court has instructed us to avoid

exceptions or exemptions from coverage under the UM Act. S ee In re

Guardianship of Lacy v. Allstate Ins. Co., 649 So.2d 195, 197

(Miss.1995); G arrett, 487 So.2d at 1323. At the same time,

however, we simply cannot rewrite the UM Act "to include situations

not expressly provided for or contemplated under the guise of

liberally construing the statute in order to accomplish its

designed purpose." C ossitt, 541 So.2d at 440; s ee also Medders v.

United States Fidelity & Guar. Co., 623 So.2d 979, 989 (Miss.1993);

Washington v. Geor gia Am. Ins. Co., 540 So.2d 22, 25-26

(Miss.1989).

We reiterate that neither the plain language of nor the

purpose b ehind the UM Act suggests that worldwide uninsured

motorist cove rage represents Mississippi public policy. The

Mississippi legislature was simply not concerned with this problem,

and the Boatners have provided no persuasive authority to the

contrary. The result urged by the Boatners would require us, under

the rubric of liberal construction, to extract from the UM Act that

which does not exist.

2. Interpreting the Territorial Restriction from the Standpoint of

the Boatners

This principle of uninsured motorist law essentially turns on

the Boatners' expectations with regard to cov erage for Bradley

Boatner's death. The Mississippi Supreme Court has repeatedly said1 1 See Spradlin v. State Fa rm Mut. Auto. Ins. Co., 650 So.2d

1383, 1387 (Miss.1995); P ayne, 603 So.2d at 345, 346, 348-49;

Lawler v. Govern ment Employees Ins. Co., 569 So.2d 1151, 1154

(Miss.1990); Aitken v. State Farm Mut. Auto. Ins. Co., 404 So.2d

1040, 1043 (Miss.1981), overruled on other grounds, State Farm Mut.

Auto. Ins . Co. v. Nester, 459 So.2d 787 (Miss.1984); L owery v.

State Farm Mut. Auto. Ins. Co., 285 So.2d 767, 770 (Miss.1973);

Rampy, 278 So.2d at 432; M cMinn v. New Hampshire Ins. Co., 276

So.2d 682, 684 (Miss.1973).

19 that the Mississippi legislature intended to put "first accident"

insureds in as good a position as they would have b een had the

uninsured motorist purchased automobile liability insurance

pursuant to the terms of the Safety Responsibility Act. 11

According ly, our task is to determine whether the Boatners could

have expected coverage under their policy if the owner or operator

of the flatbed truck was insured.

The answer to this question is plain enough—the Boatners could

not have expected coverage under the circumstan ces of this case

because the Safety Responsibility Act provides coverage only for

accidents occurring in the United States and Canada. S ee, e.g.,

Spradlin, 650 So.2d at 1387-88 (declining to find UM Act coverage

for shooting that did not involve the operation, use, or

maintenance of an automobile when such coverage would not have been

available under t he Safety Responsibility Act). Thus, both the

district court's and the Boatners' reading of the UM Act as

providing broader (worldwide) coverage than the Safety

Responsibility Act does not square with Mississippi principles of

divining the intent behind the UM Act.

3. Does the UM Act Provide Broader Protection than the Atlanta

Specialty Policy?12 Relying on a decision from the Montana Supreme Court, the

Boatners argue that uninsured motorist coverage under the UM Act is

"portable." ( Citing Jacobson v. Implement Dealers Mut. Ins. Co.,

196 Mont. 542, 640 P.2d 908, 912 (1982)). This argument, however,

is question-begging because the issue is whether Mississippi's UM

Act provides for worldwide portability (as opposed to portability

within the United States and Canada).

20 Both the district court and the Boatners rely on language from

the Mississippi Supreme Court's decision in Lowery, 285 So.2d 767,

which states that

"Whenever bodily injury is inflicted upon [a] named insured or

insured members of h is family by the negligence of an

uninsured motorist under whatever conditions, locations, or

circumstances, any of such insureds happen to be in at the

time, they are covered by uninsured motor ist liability

insurance ...."

Id. at 773 (quoting Mullis v. State Farm Mut. Auto. Ins. Co., 252

So.2d 229, 233 (Fla.1971)). From this statement, the district

court and the Boatners conclude that the UM Act provides for

worldwide uninsured motorist coverage and that therefore Atlanta

Specialty's territorial restriction is void b ecause it provides

less protection than that contemplated by the UM Act. 12 We cannot

agree.

To begin wi th, we hesitate to hold that this language is a

permanent fixture of Mississippi uninsured motorist law because the

language (1) comes from an out-of-state court's interpretation of

its own uninsured mot orist statute and (2) was quoted, for

illustrative pu rposes, in a series of quoted passages from other

jurisdictions. Nonetheless, even if we assume that this language

is a correct statement of Mississippi law, we do not subscribe to

the district court's or the Boatners' inter pretation of that21

language. We agree with Atlanta Specialty that the L owery court

was not speaking of worldwide uninsured motorist coverage; rather,

the court was suggesting—as the plain language of the Lowery

opinion states—that covered insureds " "may be pedestrians at the

time of

... injury, they may be riding in motor vehicles of others

or in public conveyances and they may occupy motor vehicles

(including Honda motorcycles) owned by but which are not "insured

automobiles" of [the] named insured.' " Lowery, 285 So.2d at 773

(quoting Mullis, 252 So.2d at 233).

4. Turning a Blind Eye to Foreign Jurisdictions

Finally, although the Mississippi Supreme Court has not always

ignored the view among other American jurisdictions on questions of

uninsured motorist law (see supra note 7), we have focused our

analysis on and grounded our conclusion in the plain terms of the

UM Act as well as the Mississippi Supreme Court's interpretation of

it.

CONCLUSION

Mindful of the adage that hard cases make bad law, we conclude

that the territorial restriction in Atlanta Specialty's uninsured

motorist policy does not violate Mississippi public policy as

embodied in the UM Act. Accordingly, we REVERSE the district

court's judgment and RENDER judgment for Atlanta Specialty.

REVERSED AND RENDERED.