United States Court of Appeals

for the Fifth Circuit

No. 21-60907

DeMarkus Bradley, individually and on behalf of all 

others similarly situated; Angela Hawkins, 

Plaintiffs—Appellants/Cross-Appellees,

versus

Viking Insurance Company of Wisconsin, 

Defendant—Appellee/Cross-Appellant.

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 3:20-CV-640

Before Jones, Southwick, and Ho, Circuit Judges.1

Leslie H. Southwick, Circuit Judge. 

Two significant questions of Mississippi insurance law are posed in 

this appeal of a denial of coverage for an automobile accident. One is whether 

1 Judge Ho would certify the questions presented in this appeal to the Mississippi 

Supreme Court. See, e.g., JCB, Inc. v. The Horsburgh & Scott Co., 941 F.3d 144, 145 (5th 

Cir. 2019).

United States Court of Appeals

Fifth Circuit

FILED

January 6, 2023

Lyle W. Cayce

Clerk

Case: 21-60907 Document: 00516600297 Page: 1 Date Filed: 01/06/2023
No. 21-60907

2

uninsured motorist coverage can be denied simply because the driver, who 

was the son of the insured, was not listed on the policy? We answer that 

question “no.” The other is whether the policy can be voided because the 

insured committed a material misrepresentation by failing in her application 

for insurance to name, as required, those of driving age who lived in her 

household? We answer that question “yes” and AFFIRM. 

FACTUAL AND PROCEDURAL BACKGROUND

In March 2016, Angela Hawkins, DeMarkus Bradley’s mother,

applied for an automobile insurance policy with Viking Insurance. The 

application required that certain other potential drivers be named:

I understand that I must report to the Company all persons of 

legal driving age or older who live with me temporarily or 

permanently, including all children at college. I understand 

that I must report all persons who are regular operators of any 

vehicle to be insured, regardless of where they reside. 

The policy relevantly defined “regular operator” as a person old enough to 

drive who resides in the insured’s home. 

The application emphasized the importance of accuracy. One place it 

did so was to declare that Viking relied on the answers:

We [Viking] rely upon you to provide us with accurate 

information. This policy, your application (which is made a 

part of this policy as if attached), and your Declarations Page 

include all the agreements between you and us relating to this 

insurance. If you have made any misrepresentations in your 

application or when subsequently asked, this policy may not 

provide any coverage. 

Further, the policy defined “misrepresentation” relatively broadly as

providing information to us that is known by you to be false, 

misleading or fraudulent. This could be presented to us during 

Case: 21-60907 Document: 00516600297 Page: 2 Date Filed: 01/06/2023
No. 21-60907

3

the application for coverage, or during the policy period. It 

must affect either the eligibility for coverage and/or the 

premium that is charged. Concealing information relevant to 

the application, or maintenance of coverage, is also 

misrepresentation. 

Finally, the policy stipulated that “[i]f you misrepresent any fact or condition 

that affects whether a risk is eligible or contributes to a loss, we reserve the 

right to rescind the policy and/or deny coverage.” 

At the time of Hawkins’ March 2016 insurance application, Bradley 

lived with Hawkins, was a resident of her household, and was of legal driving 

age.

2 Thus, Bradley was a regular operator of the Hawkins vehicles. 

Hawkins, though, failed to disclose Bradley on her insurance application as a 

regular operator. For policy renewals between March 2016 and the accident 

in April 2018, Hawkins never added Bradley to her policy. 

In April 2018, Bradley was operating Hawkins’ vehicle when he was 

struck by an uninsured motorist. After the accident, Bradley submitted a 

claim for uninsured motorist (UM) insurance. Hawkins’ policy contained

UM coverage3 and stated that Viking

will pay damages for bodily injury which an insured person is 

legally entitled to recover from the owner or operator of an 

uninsured motor vehicle. The bodily injury must be caused by 

a car accident and result from the ownership, upkeep or use of 

an uninsured motor vehicle. 

2 There is record evidence that DeMarkus Bradley was born in about 1994, and so 

would have been around 22 years old in 2016. 

3 Hawkins rejected UM coverage for her initial Viking policy, issued in 2016. By 

the time of her 2018 renewal, which is the operative policy for the accident underlying this 

litigation, she had UM insurance. 

Case: 21-60907 Document: 00516600297 Page: 3 Date Filed: 01/06/2023
No. 21-60907

4

An “insured person” under the Policy includes “a relative” of the 

named insured and “any other person occupying [the] insured car with the 

permission of” the named insured. Bradley therefore qualified as an insured 

person. However, the policy stated that UM coverage was unavailable when 

an unlisted regular driver is operating the vehicle:

This [UM] coverage does not apply to bodily injury sustained 

by an insured person described by any of the following. 

. . . 

(8) While your insured car is being operated by a regular 

operator who was not reported to us. The regular operator 

must be reported on the original application for insurance or 

otherwise disclosed to us and listed on your Declarations Page 

before the car accident. 

Viking denied Bradley’s claim because it found that Bradley was a 

regular operator of Hawkins’ vehicle but had not been disclosed. Hawkins 

admitted that Bradley was a driver living in her household who had not been 

disclosed. Viking subsequently force-placed Bradley on the policy. 

In October 2020, Bradley and Hawkins sued Viking, seeking damages 

for a wrongful denial of benefits. Bradley and Hawkins asserted that 

excluding drivers not listed on the policy violated Mississippi’s statutorily 

prescribed UM coverage requirements. 

After discovery, both parties moved for summary judgment. The 

district court concluded that Viking’s unnamed driver exclusion was without 

effect. Bradley v. Viking Ins. Co. of Wis., 570 F. Supp. 3d 389, 394 (S.D. Miss. 

2021). Bradley, “as a resident member of Hawkins’ household and as a 

person operating the vehicle with her permission, was an ‘insured’ for UM 

purposes and was not excluded from coverage by” the policy’s unnamed 

driver exclusion. Id. 

Case: 21-60907 Document: 00516600297 Page: 4 Date Filed: 01/06/2023
No. 21-60907

5

Nonetheless, the district court denied coverage because Hawkins had 

failed to disclose in her initial application or in any renewal that Bradley was 

a regular operator of the insured vehicle. Id. at 399. Those failures 

constituted misrepresentations. Id. at 396. Under the policy, Viking could 

deny coverage if the insured “misrepresent[s] any fact or condition that 

affects whether a risk is eligible or contributes to a loss” and defined 

“misrepresentation” as information that is “known by you to be false . . . 

[and] affect[s] either the eligibility for coverage and/or the premium that is 

charged.” Id. at 397 (quotation marks omitted). Hawkins’ 

misrepresentation, the court found, affected the premium charged, and 

Viking therefore had the right to deny Bradley’s UM claim. Id. The court 

granted Viking’s motion for summary judgment. Id. Both parties appealed. 

DISCUSSION

We review the grant of summary judgment de novo. Nationwide Mut. 

Ins. Co. v. Baptist, 762 F.3d 447, 449 (5th Cir. 2014). “When, as here, crossmotions for summary judgment have been ruled upon,” this court examines 

“each party’s motion independently.” Balfour Beatty Constr. L.L.C. v. 

Liberty Mut. Fire Ins. Co., 968 F.3d 504, 509 (5th Cir. 2020) (quotation marks 

and citation omitted). Summary judgment is proper when “there is no 

genuine dispute as to any material fact.” FED. R. CIV. P. 56(a). In reviewing 

the record, “the court must draw all reasonable inferences in favor of the 

nonmoving party, and it may not make credibility determinations or weigh 

the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 

(2000).

We address two issues. The first is the subject of Viking’s crossappeal — does its unnamed driver exclusion violate public policy? The 

second is appellants’ issue — did Viking properly deny coverage based on 

misrepresentation?

Case: 21-60907 Document: 00516600297 Page: 5 Date Filed: 01/06/2023
No. 21-60907

6

I. Unnamed driver exclusion 

Mississippi’s UM statutes are set forth in Mississippi Code Sections 

83-11-101 through 83-11-111. Section 83-11-101 requires that all automobile 

insurance policies provide an “insured” with coverage of damages caused by 

“the owner or operator of an uninsured motor vehicle,” unless a form 

rejecting all UM coverage is signed by the insured. Miss. Code Ann. §§ 83-

11-101(1), (2), (4).

4 “Insured,” for purposes of UM coverage, includes

the named insured and, while resident of the same household, 

the spouse of any such named insured and relatives of either, 

while in a motor vehicle or otherwise, and any person who uses, 

with the consent, expressed or implied, of the named insured, 

the motor vehicle to which the policy applies, and a guest in 

such motor vehicle to which the policy applies, or the personal 

representative of any of the above. 

Id. § 83-11-103(b). It is undisputed that Bradley, as a resident relative of 

Hawkins, is an “insured” under this provision. Our initial question is 

whether an insurer can limit this mandatory UM coverage through policy 

language. Viking on cross-appeal insists that it can.

The Mississippi Supreme Court has not decided whether unnamed 

driver exclusions violate the state’s statutory UM scheme. It has addressed 

other exclusions, though. Most helpful is an opinion from that court 

addressing a “named driver exclusion” in a policy which precluded coverage 

if the insured’s husband were driving her car. Atlanta Cas. Co. v. Payne, 603 

So. 2d 343, 344–45 (Miss. 1992). There, the husband of the insured was 

driving when the vehicle collided with an uninsured motorist; the insurer 

4 An insured has the right to reject all UM coverage by executing a form approved 

by the state Department of Insurance. Miss. Code Ann. § 83-11-101(4). This appeal 

concerns whether a limited rejection can be imposed through a policy provision.

Case: 21-60907 Document: 00516600297 Page: 6 Date Filed: 01/06/2023
No. 21-60907

7

denied benefits. Id. The court stated that Mississippi’s UM statute 

“commands that the injured party shall be able to recover from the UM carrier 

‘all sums which he shall be legally entitled to recover as damages for bodily 

injury or death from the owner or operator of an uninsured motor vehicle.’” 

Id. at 346 (quoting § 83-11-101). It summarized that “the overwhelming 

number of [UM exclusions] that this Court has considered have been found 

to be void and against public policy,” and the named driver exclusion was no 

exception. Id. at 347. 

Since the Mississippi Supreme Court voids policy language that 

excludes a specific individual from UM coverage, we have little doubt it 

would void a more expansive unnamed driver exclusion. Yet, Viking spots 

other language in Payne that, to its eyes, dictates the opposite conclusion. 

The language appears after the Payne court held that named driver exclusions 

are void, when it stated that “in order to limit uninsured motorist coverage, 

‘it must be done in clear and unambiguous language.’” Id. at 348 (quoting 

Hartford Accident & Indem. Co. v. Bridges, 350 So. 2d 1379, 1381 (Miss. 1977)). 

The court continued by holding that “the burden of proof [is] on the insurer 

to show that such an exclusion or any other quasi-rejection of uninsured 

motorist insurance was a knowing and informed decision.” Id.

We find that were we to interpret this odd section of Payne to mean 

that a partial exclusion of UM coverage will be valid so long as the policy 

provision is clear and adequately disclosed, the opinion’s earlier holding as 

to the named-driver exclusionwould be eviscerated. Either the inconsistency 

of the two sections was not recognized by the Payne court or their consistency 

has been missed by this one. A federal district court attempted to explain 

Payne by relying on the fact that the statement in Payne about limiting

coverage with unambiguous language was a quote from a precedent that 

addressed “stacking” of UM coverages. Godwin v. United States, 2016 WL 

6127405, No. 3:14-CV-00391, at *3 (S.D. Miss. Oct. 19, 2016) (discussing 

Case: 21-60907 Document: 00516600297 Page: 7 Date Filed: 01/06/2023
No. 21-60907

8

Bridges, 350 So. 2d at 1381). As the Bridges court put it, “[t]he question of 

law is whether uninsured motorists coverage on three separate automobiles 

in one policy of insurance can be aggregated or stacked.” Bridges, 350 So. 2d 

at 1380. Thus, Godwin’s suggested meaning for Payne is that, as in Bridges, 

the minimum UM coverage must be provided, but clear policy language can 

block aggregating minimum coverage by stacking. Godwin, 2016 WL 

6127405, at *3. Perhaps, but prohibiting the multiplication of UM coverage 

if clear policy language is used is different than allowing an unambiguous 

named-driver exclusion to carve out an exception to minimum UM coverage. 

Of course, the Godwin court likely was not satisfied with its effort to explain, 

either.

An excellent treatise on Mississippi insurance law does not suggest 

Payne modified the requirement to provide minimum UM coverage:

The UM statute sets the minimum requirements for UM 

coverage. An insurer may provide more coverage, but not less, 

than that mandated by the statute. On the other hand, for 

coverage beyond what is required by the statute — so-called 

excess coverage — the parties to the insurance contract may 

freely agree to restrictions as they see fit (or, more realistically, 

as the insurer will impose).

JEFFREY JACKSON AND D. JASON CHILDRESS, MISSISSIPPI INSURANCE LAW 

AND PRACTICE § 18:6 (2022). Payne is cited as one of the examples of 

decisions striking policy provisions as unenforceable because they deny

minimum UM coverage. Id. at n.8. 

We conclude, notwithstanding Payne’s reference to unambiguous 

policy language, that Mississippi law requires the following: if UM coverage 

is not rejected completely by the insured, the policy may provide more 

coverage, but not less, than the statutory minimum. Therefore, whatever 

Case: 21-60907 Document: 00516600297 Page: 8 Date Filed: 01/06/2023
No. 21-60907

9

the confusing language from Payne means, it does not allow an unnamed 

driver exclusion to eliminate the mandatory UM coverage set by statute. 

II. Misrepresentation 

The second issue is whether Viking properly denied UM coverage 

based on misrepresentation. The district court stated that “coverage is 

defeated by Hawkins’ failure to disclose in the application for coverage, or at 

any other time prior to the accident, that she was not the only member of her 

household of driving age and/or who had regular access to the insured 

vehicle(s).” Bradley, 570 F. Supp. 3d at 394. The court referred to policy 

language that Viking had the right to “deny coverage if the insured ‘made 

any misrepresentations in your application or when subsequently asked,’ and 

it defines misrepresentation as providing knowingly false information.” Id. 

at 396. The court wrote that “it is undisputed that [Hawkins] knew she had 

failed to provide required information” when she did not report to Viking all 

persons of driving age who lived with her. Id. 

The plaintiffs’ brief on appeal insists the district court erred by 

allowing Viking’s common law right to void an insurance policy due to 

material misrepresentations to defy “the UM Act that mandates all 

automobile liability insurance policies contain uninsured motorist coverage 

unless the coverage is rejected in writing.” The plaintiffs argue that because 

Bradley is an “insured” under the UM statute, Hawkins’ policy could not 

diminish his coverage. 

On this issue, we have guidance from a Mississippi precedent 

addressing required liability coverage. See Safeway Ins. Co. v. Dukes, 185 So. 

3d 977 (Miss. 2015). There, Tiffany Dukes applied for insurance with 

Safeway Insurance and completed an application that required her to disclose 

all “regular, frequent” drivers of her vehicle. Id. at 978. Robert Hudson, not 

disclosed on Dukes’s policy, was driving Dukes’s car when he injured a child. 

Case: 21-60907 Document: 00516600297 Page: 9 Date Filed: 01/06/2023
No. 21-60907

10

Id. Safeway denied the claim, concluding that the policy was voidable due to 

the failure to list Hudson as a regular, frequent driver on her application. Id. 

In an action between the injured child and Hudson, Safeway moved for 

summary judgment, arguing that Dukes’s policy was void because she made 

a false representation on her application. Id. The trial court disagreed that 

the policy was void, concluding that the insurer was arguing for an exclusion 

from the minimum liability (not UM) coverage required by state statute. Id.

at 979; see Miss. Code Ann. § 63-15-4.

On appeal, the Mississippi Supreme Court saw the question 

differently. “[W]hether the terms of [Dukes’s] policy with Safeway covered 

the accident” under Mississippi’s statutory insurance scheme and “whether 

the policy, itself, was voidable” because of a false warranty, were two 

separate issues. Id. at 981 (quoting Jones–Smith v. Safeway Ins. Co., 174 So.

3d 240, 242 (Miss. 2015)) (emphasis omitted). “[T]he question is whether 

the policy itself is voidable, not whether the terms of the policy covered the 

accident.” Id. at 981. Because “Dukes’s statement warranting that there 

were no other regular, frequent drivers is not literally true,” her policy was 

voidable and Safeway could properly deny coverage. Id. at 981. 

As in Safeway, Viking is not seeking to enforce an “invalid exclusion 

within a valid insurance policy.” Id. (quoting Jones–Smith, 174 So. 3d at 242)

(emphasis omitted). Instead, it argues coverage can be denied based on 

misrepresentation. Though Safeway involved liability and not UM coverage, 

we conclude the same reasoning applies here. Under Safeway’s logic, the 

validity of an unnamed driver exclusion does not have any bearing on whether 

Viking has the right to void its policy based on misrepresentation. 

Before we consider how to apply Safeway, we address a distinction. 

The Safeway Insurance Company applications in the two cited cases each 

had language of warranty: “Applicant warrants that all regular, frequent 

Case: 21-60907 Document: 00516600297 Page: 10 Date Filed: 01/06/2023
No. 21-60907

11

drivers” are listed. Id. at 978. The Mississippi Supreme Court stated that 

because the statement on the application that there were no other drivers was 

“a warranty and not a misrepresentation, the materiality of Dukes’s failure 

to disclose Hudson is not an issue.” Id. at 981 n.3. When, as here, there is no 

warranty in an application, “[t]he materiality of a representation is 

determined by the probable and reasonable effect which truthful answers 

would have had on the insurer.” Jones–Smith, 174 So. 3d at 245 (quoting 

Sanford v. Federated Guar. Ins. Co., 522 So. 2d 214, 217 (Miss. 1988)). 

Was there, then, a material misrepresentation? This court rephrased 

the standard just quoted by holding that an insurer can void a policy for 

material misrepresentation if an insurance application “(1) [] contain[s] 

answers that are false, incomplete, or misleading, and (2) the false, 

incomplete, or misleading answers [are] material to the risk insured against 

or contemplated by the policy.” Carroll v. Metro. Ins. & Annuity Co., 166 F.3d 

802, 805 (5th Cir. 1999) (emphasis in original). We cited a Mississippi 

precedent that held the particular misstatement there “might reasonably 

have influenced the company not to make the contract of insurance.” Id. at 

805 n.10 (citing Prudential Ins. Co. v. Russell’s Estate, 274 So. 2d 113, 116 

(Miss. 1973)). We then identified additional relevant effects by stating that 

“a fact is material if it might have led a prudent insurer to decline the risk, 

accept the risk only for an increased premium, or otherwise refuse to issue 

the exact policy requested by the applicant.” Id. at 805.

“Misrepresentation” also was defined in the Viking policy:

“providing information to us that is known by you to be false, misleading or 

fraudulent.” Thus, the policy requires knowledge of the falsity. The 

plaintiffs argue “the phrase ‘known by you to be false’ converts the inquiry 

from an objective analysis to a subjective one regarding Hawkins’ intent.” 

Because Hawkins testified she “did not intend to mislead or defraud 

Viking,” the plaintiffs contend there is a fact dispute as to whether there was 

Case: 21-60907 Document: 00516600297 Page: 11 Date Filed: 01/06/2023
No. 21-60907

12

misrepresentation under the Policy. A standard definition of “knowledge” 

is “awareness or understanding of a fact or circumstance.” BLACK’S LAW 

DICTIONARY 950 (9th ed. 2009). Strictly as matter of definition, knowledge 

exists if an individual is aware of the relevant facts.5

 Intent, as distinguished 

from knowledge, is not a separate factual question.

Here, a knowing misstatement in the application about the drivers in 

the household was material if it would have caused Viking either not to issue 

the policy or to increase the premium. The following is undisputed. Viking 

required Hawkins to disclose all persons of legal driving age who resided with 

her. Hawkins knew Bradley was living with her, was of driving age, and was 

not disclosed. The only evidence as to the effect of Bradley’s omission is 

from a Viking witness who stated the insured would have had a higher 

premium throughout the life of the policy. In other words, Viking would not 

have refused to insure had it known about the son, but it would have charged 

more. Indeed, that is what Viking did after the accident — force-placed the 

son on the policy and increased the premium. 

In analyzing whether Viking has shown enough, we start with the 

possibility that failure to disclose the additional driver may not have had an 

effect on Viking’s risk for a UM claim. We suggest that possibility because 

“UM coverage proceeds are paid to the injured insured to cover the 

insured’s own claims against uninsured third parties. Liability insurance 

covers claims against the insured by third parties; UM insurance covers 

claims of the insured against uninsured third parties.” JACKSON AND 

5 Knowledge of existing facts can be successfully disputed. In one case, an insured 

omitted he had high blood pressure on his insurance application. Life Ins. Co. of Va. v. 

Shifflet, 359 F.2d 501, 503 (5th Cir. 1966). The facts showed the insured indeed had high 

blood pressure, but he had never been told so. Id. at 503–04. Under Florida law, the court 

held there was no “knowing” misrepresentation. Id. at 504 & 504 n.3. Here, Hawkins had 

actual knowledge of the requested facts.

Case: 21-60907 Document: 00516600297 Page: 12 Date Filed: 01/06/2023
No. 21-60907

13

CHILDRESS, MISSISSIPPI INSURANCE LAW § 18:1. Potentially, then, the 

safety record, age, driving abilities, and even the number of insured drivers 

would not affect the premium charged for insuring against the risk that a 

future, as yet unidentifiable, at-fault driver of an uninsured vehicle would 

collide with the insured. Then again, maybe it would. Viking’s evidence, 

though, did not address the risk in that way. The UM coverage was a separate 

component of the premium, but the record is silent as to whether the UM 

component would have changed if another driver were added to the policy. 

The only evidence was that the premium for the policy would have been 

increased because of the additional driver.

Though we pose this question, there has been no argument here that 

Viking’s evidence was insufficiently focused. In addition, though we find no 

Mississippi state court decisions, this court has held that under that state’s

law, the specific coverage sought by an insured need not “be related to risks 

concealed by an insurance applicant in order for the concealed facts to be 

material.” Carroll, 166 F.3d at 806 n.18 (quoting Wesley v. Union Nat’l Life, 

919 F. Supp. 232, 234 (S.D. Miss. 1995)).

6 In the absence of any argument 

along these lines, we accept that materiality is not affected by the relationship 

between the false statement and the specific coverage being sought in 

litigation. It is enough that the falsity was material to the decision of the 

company to issue the policy at the agreed price.

Consequently, Viking could have voided the policy. Of course, Viking 

did not do so. Instead, it chose to deny coverage. By not voiding, Viking’s 

6 This also seems to be the majority rule: “In most jurisdictions, a 

misrepresentation is considered material and sufficient grounds for rescission or denial of 

a claim regardless of whether the fact misrepresented has any causal connection with the 

death or loss involved in the claim.” John Dwight Ingram, Misrepresentations in Applications 

for Insurance, 14 UNIV. MIAMI BUS. L. REV. 103, 111 (2005). 

Case: 21-60907 Document: 00516600297 Page: 13 Date Filed: 01/06/2023
No. 21-60907

14

policy remained in effect. Do the statutory and judicial prohibitions against 

limiting minimum UM coverage therefore still apply? We have been shown 

nothing from Mississippi caselaw to assist in deciding whether the rather 

demanding UM caselaw would apply to a voidable, but retained, insurance 

policy. Importantly, though, and to use the vernacular, this does not seem to 

us to be a situation in which the insurance company is trying to have its cake 

and eat it too. That is because the benefit to Viking was relatively small —

maintaining a policy on one person’s vehicles. Also, the insured received 

some benefit by still having insurance. Though ambiguities in insurancepolicy terms are interpreted in favor of the insured, Mississippi Farm Bureau 

Cas.Ins. Co. v. Powell, 336 So. 3d 1079, 1084 (Miss. 2022), we are dealing here 

with ambiguity in what Mississippi law would be on these unusual facts. 

Seeking a reasonable legal interpretation will be our approach.

We conclude that if an insurer declines to exercise the greater power 

to void a policy, it still retains the lesser power to exercise a contractual right 

to deny coverage. The Safeway court was concerned that material 

misrepresentations undermine insurers’ ability to make proper assessments 

of risk and set premiums. Safeway, 185 So. 3d at 980. Those same concerns 

are present here and are not altered by the fact that Viking chose not to void 

the policy. Accordingly, Viking had the right to deny the plaintiffs’ claim. 

AFFIRMED. 

Case: 21-60907 Document: 00516600297 Page: 14 Date Filed: 01/06/2023