* Local Rule 47.5 provides:

"The publication of opinions that have no precedential value and

merely decide particular cases on the basis of well-settled

principles of law imposes needless expense on the public and

burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-60147

Summary Calendar

AUDUBON INSURANCE COMPANY,

 Plaintiff-Appellant,

VERSUS

TERRY ROAD WINE AND LIQUOR, INC., 

MELISSA A. MAY AND DONALD R. MAY,

 Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Mississippi

(3:94 CV 333)

( September 8, 1995 )

Before GARWOOD, WIENER, and PARKER, Circuit Judges.

PER CURIAM*:

In this insurance coverage dispute, the district court

granted in part and denied in part Audubon Insurance Company's
2

("Audubon") motion for summary judgment to deny coverage to

Terry Road Wine and Liquor, Inc. ("Terry Road"). Relying upon

language contained in the insuring agreement, the district court

held Audubon had a duty to defend Terry Road against Donald May's

loss of consortium claim and to indemnify Terry Road for any

liability incurred as a result of the loss of consortium claim. 

Audubon appeals, arguing that the district court erred when it

interpreted the insuring agreement. We agree and therefore

reverse and render summary judgment for Audubon.

FACTS

On April 1, 1994, Donald R. May and Melissa A. May, who are

husband and wife, filed two separate lawsuits against Terry Road

in the Circuit Court of the First Judicial District of Hinds

County, Mississippi. Both complaints sought recovery for alleged

personal injuries received in an automobile accident resulting

from the alleged illegal sale of intoxicating beverages by Terry

Road to the minor plaintiff Donald May.

In their complaints, the Mays allege that on or about

November 24, 1993 they were injured in an automobile being driven

by Ronnie White, a minor who was intoxicated from the alcohol

allegedly sold to Donald May. Specifically, the Mays allege that

Donald May was sold alcohol by an employee of Terry Road in

violation of Mississippi law, and that such sale constituted a

proximate cause of the accident and their resulting damages.

In their respective complaints, the Mays sought recovery for

numerous compensatory damages and also punitive damages. In his
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complaint, Donald R. May included a claim for loss of consortium. 

It is this claim and Audubon's duty to defend and indemnify Terry

Road with respect to this claim that is the subject of this

appeal.

Terry Road made a claim for liability coverage under the

subject Audubon policy for the claims asserted against it by the

Mays. Terry Road was provided with a notice of defense under a

reservation of rights. Audubon then filed a complaint for

Declaratory Judgment seeking a declaration that it had no duty to

defend or indemnify Terry Road with respect to either of the

Mays' complaints.

PROCEEDINGS BELOW

On June 9, 1994, Audubon filed its complaint for Declaratory

Judgment requesting that the court adjudicate its duties to Terry

Road under a businessowner's policy issued by Audubon to Terry

Road. On September 29, 1994, Audubon filed a Motion for Summary

Judgment requesting a judgment that, under the terms and

conditions of the policy, it had no duty to defend or indemnify

Terry Road in relation to the two separate lawsuits filed by the

Mays against Terry Road.

The district court held that Audubon had no duty to defend

or indemnify Terry Road regarding any claims asserted by Melissa

May and that it had no duty to indemnify Terry Road regarding any

claims asserted by Donald May, except for his loss of consortium

claim. Audubon appealed.

DISCUSSION
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This court reviews a trial court's grant or denial of

summary judgment under the same standard as that used by the

trial court - we employ a de novo standard of review with respect

to the law, and the facts are viewed with deference to the

nonmovant even though the court need not defer to any fact

assumptions made by the trial court. Frazier v. Garrison Ind.

Sch. Dist., 980 F.2d 1514, 1520 (5th Cir. 1993) (internal

citations omitted).

Mississippi courts treat insurance contracts just like all

other contracts. See Robinette v. American Liberty Ins. Co.,

720 F.Supp. 577, 579-80 (S.D. Miss. 1989), aff'd, 896 F.2d 552

(5th Cir. 1990). Thus, if a particular insurance policy

provision is clear and unambiguous, it will be enforced as

written. See id. However, if the policy provision is ambiguous,

then the ambiguities will be construed against the insurer and in

favor of the insured. Pemberton v. State Farm Mutual Auto Ins.,

Co., 803 F.Supp. 1187, 1192 (S.D. Miss. 1992).

The policy language at issue in the instant case reads as

follows:

A. COVERAGES

1. Business Liability

a. Audubon Insurance Co. will pay those sums that 

 the insured becomes legally obligated to pay as

 damages because of "bodily injury", "personal 

 injury" or "advertising injury" to which

this insurance applies. 

c. Damages because of "bodily injury" include 

 damages claimed by any person or

organization for care, loss of services or

death resulting at any time from the "bodily

injury". 
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EXCLUSIONS

1. Applicable to Business Liability Coverage - 

 This insurance does not apply to:

c. "Bodily injury". . . for which any insured may 

 be held liable by reason of:

(1) Causing or contributing to the 

intoxication of any person;

(2) The furnishing of alcoholic beverages to

a person under the legal drinking age or 

 under the influence of alcohol; or

(3) Any statute, ordinance or regulation 

relating to the sale, gift,

distribution or use of alcoholic beverages.

The district court first found that the Mays' bodily injury

claims were clearly excluded by the alcohol/intoxication clause in

the Audubon policy. All of the parties agree with this finding.

However, the district court also found that Donald May's claim for

loss of consortium did not fit within the alcohol/intoxication

exclusion. Consequently, the court ruled that Audubon had a duty

to provide Terry Road with a defense.

In making this finding, the district court focused upon the

"because of" language contained in the coverage section of the

Audubon policy. The court stated, "damages for loss of consortium

can be said to be because of the bodily injury (as the term "bodily

injury" is defined in the policy) suffered by Donald May's wife"

(emphasis in original). The district court appears to have

overlooked significant language contained in the insuring

agreement.

The coverage section of the policy reads "because of 'bodily

injury' to which this insurance applies" (emphasis added). The

district court recognized that loss of consortium is a claim
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arising from injury to a spouse but failed to apply the coverage

section as written. Under Mississippi law, clear and unambiguous

insurance contracts must be construed exactly as written. Foreman

v. Continental Cas. Co., 770 F.2d 487, 489 (5th Cir. 1985).

As written, the coverage section clearly applies only to

damages because of bodily injury covered under the insurance

policy. It is undisputed that the bodily injury claims are not

covered under the policy. Consequently, the loss of consortium

claim, arising from an excluded claim, is not covered by the

policy.

CONCLUSION 

After an independent review of the language contained in the

policy, we have determined that Donald May's claim for loss of

consortium is not covered by the terms of insuring agreement.

Therefore, we conclude that the district court erred when it

refused to grant summary judgment to Audubon on this claim.

The judgment of the district court is therefore REVERSED, and

summary judgment is RENDERED in favor of Audubon.