1 Pursuant to the 5th Cir. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5th Cir. R. 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-31196

Summary Calendar

GLORIA JAMES; IEIA LEWIS,

Plaintiffs-Appellants,

VERSUS

ALLSTATE LIFE INSURANCE COMPANY; RONALD GUIDRY,

Defendants-Appellees.

Appeal from the United States District Court

For the Eastern District of Louisiana

(96-CV-3324-K)

July 7, 1998

Before DUHÉ, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

PER CURIAM: 1

Brian James (“James”) purchased a life insurance policy from

Allstate Insurance Company, an Illinois corporation. Ronald Guidry

(“Guidry”), an Alls tate agent and a Louisiana citizen, assisted

James in completing a policy application and submitted the

application to Allstate. An independent investigative company,

PMS, Inc., verified the application info rmation by speaking with

James. Allstate issued a policy to James, who, four months later,2

died from a gunshot wound to the head. Allstate’s post-death

investigation disclosed that the application contained false

information. The inquiry revealed that James had been charged with

t wo felonies, had undergone drug treatment, and was on probat ion

when he applied for the policy. Neither the application nor the

PMS, Inc. investigation divulged these facts. Allstate, therefore,

rescinded the policy and returned the premium payments.

James’s beneficiaries, who are Louisiana reside nts and the

plaintiffs here , sued Allstate and Guidry. They alleged damages

suffered through the fault of both parties in the rescission of the

insurance policy, i n failing to properly inform James in the

application’s preparation, and in failing to properly prepare the

application. They contended that Guidry did not ask James all the

questions on the application and that Guidry supplied some of the

answers himself.

The defendants removed the suit; the plaintiffs moved to

remand. The defendants claimed that Guidry was fraudulently joined

to defeat federal diversity jurisdiction. Guidry moved for summary

judgment. The district court determined that Guidry had been

fraudulently joined, finding th at there was no reasonable

possi bility that Louisiana law might hold him liable.

Consequently, it granted Guidry’s motion for summary judgment and

denied plaintiffs’ motion to remand. The plaintiffs now appeal.

We review the denial of a motion to remand de novo

. B urden v.

General Dyn amics Corp. , 60 F.3d 213, 216 (5th Cir. 1995). We3

review a grant of summary judgment under the same standard. I d

. at

221.

The district court properly found that the defendants met

their onerous burden for proving fraudulent joinder as reviewed in

Ford v. Elsbury

, 32 F. 3d 931, 935 (5th Cir. 1994). As an Allstate

insurance agent, under Louisiana law and the facts of this case,

Guidry had no d uty to the insured; he owed a duty solely to his

principal, Allstate. La. Civ. Code Ann. arts. 3016 (West 1998);

Smason v. Celti c Life Ins. Co. , 615 So. 2d 1079, 1087 (La.App. 4

Cir. 1993). Because Guidry neither issued the policy nor was party

to the insurance contract, he cannot be held liable for the

policy’s rescission. We find no Louisiana law that imposes a duty

upon an agent to make certain that an applicant has accurately

responded to the questions posed.

Even if Guidry had a personal duty to complete the application

accurately and properly, which we do not decide here, plaintiffs

are unable to prove that a breach of that duty caused their alleged

damages, denial of the $500,000 death benefit. James’s answers to

PMS, Inc., were the same re sponses found on the application.

Allstate’s underwriting procedures would have initially prohibited

coverage if Allstate had been informed of James’s felony charges,

drug treatment, and probation.

The district court, relying on the same facts and the

conclusions it drew from them in its denial to remand, properly

granted summary judgment in favor of the defendant, Guidry.4

We AFFIRM bo th the denial of the motion to remand and the

grant of summary judgment.