* Local Rule 47.5.1 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of wellsettled 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that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 93-5635 

Summary Calendar

_______________

HOME INSURANCE COMPANY,

 Plaintiff-Appellant,

VERSUS

DAVID F. TOWNSEND,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

(92-CV-801)

_________________________

(April 27, 1994)

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:*

The plaintiff, Home Insurance Company ("Home"), filed this

action on the basis of diversity of citizenship, seeking rescission of professional liability policies on the ground that the

defendant, attorney David Townsend, had made misrepresentations

in his application. The company moved for summary judgment. The

district court construed the suit as one for declaratory judgment, denied summary judgment, and exercised its perceived dis-
 

1 The appellee has not filed a brief on appeal, despite notice and warning from the clerk.

2

cretion to deny declaratory relief. We vacate and remand.1

In its Memorandum Ruling, the district court stated that

"Home applied to this court for declaratory relief on the issue

of coverage and duty to defend." This is error. Home plainly

asks for rescission: Count I of the complaint is entitled "Rescission of the 1990 Policy," and Count II is entitled "Rescission of the 1992 Policy." As its jurisdictional basis, Home mentions only the diversity statute, not the declaratory judgment

statute. With its complaint, Home tenders its received premiums

into the court registry and asks that the policies "should be

rescinded and should be held null and void ab initio."

The only mention of any term derived from the root word "declare" is in the prayer, wherein Home "further prays that after

due proceedings are had that there be judgment herein in favor of

[Home], and against Townsend, declaring [the policies] rescinded

and made null and void ab initio, . . . and for all equitable and

general relief." (Emphasis added.) Absolutely no mention is

made of coverage or duty to defend.

Read in the context of the entire complaint, the word "declaring" cannot reasonably be interpreted as transforming this

case from a diversity action to rescind into a declaratory judgment action. Accordingly, any deference, in the nature of abuse

of discretion, accorded a district court in deciding whether to

entertain a declaratory judgment action does not pertain here. 
3

Home asks that we decide the motion for summary judgment on

appeal, in the first instance. We conclude, however, that, although determination of the motion may involve purely questions

of law, the district court should have the opportunity to rule,

unburdened by any misconception that Home seeks declaratory relief. We also observe that the district court may not have ruled

on certain motions to intervene; we leave it to that court to

decide those matters, as it deems appropriate.

The judgment is VACATED, and this matter is REMANDED for

further proceedings.