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JOSEPH W. BOARDMAN and HENRY W. BOARDMAN v. UNITED SERVICES AUTOMOBILE ASSOCIATION

MAY 22, 1985

JOSEPH W. BOARDMAN and HENRY W. BOARDMAN
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION



BEFORE, PATTERSON, C.J.; DAN M. LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This case comes to us via the lateral appellate process authorized by Rule 46 of the rules of this Court. *fn1 Specifically, three questions have been certified to us by the United States Court of Appeals for the Fifth Circuit, *fn2 as will appear below, although that court has disclaimed" any intention or desire that the Supreme Court of Mississippi confine its reply to the precise form or scope of the questions certified ". *fn3

 Rule 46, as originally promulgated, contemplated that we would answer via certification pure questions of law. The questions presented here in no insignificant part are in the nature of law application questions - what result obtains from applying the rules of law to the facts of the case? - rather than pure questions of law as to what is the law of Mississippi on a particular point. There are presented, however, matters with respect to which we perhaps may be of help. In a spirit of cooperative federalism, and motivated further by the realization that this action arises out of an incident occurring almost six years ago and obviously needs to be brought to a conclusion as soon as possible, we will provide several insights which we hope will be of assistance to the Court of Appeals.

 En route and for future reference, we will discuss our certification procedure and try to delineate more clearly what was intended by this Court in the promulgation of Rule 46.

 II.

 Included in the opinion of the Court of Appeals setting forth the questions certified is a statement of facts. From our review of the record it appears that there is no dispute regarding any fact material to the questions certified. In summary form, the facts are:

 1. United Services Automobile Association (USAA) is an inter-insurance exchange which issues insurance policies exclusively to persons who are members of the Armed Forces of the United States. USAA was the Defendant in the United States District Court for the Southern District of Mississippi and is the Appellant in the Court of Appeals.

 2. USAA was and is qualified to do business in Mississippi and in fact has issued insurance policies in

 Mississippi.

 3. USAA issued an automobile insurance policy to Col. Henry W. Boardman, a resident of Omaha, Nebraska, for a policy period covering September 15, 1978, to September 15, 1979. Henry W. Boardman was one of the Plaintiffs in the District Court and is one of the Appellees in the Court of Appeals.

 4. The insurance contract was issued in Nebraska through USAA's agent in Nebraska, while Henry Boardman was stationed with the United States Air Force in Omaha.

 5. The policy covered a 1975 Oldsmobile, a 1974 Ford Pinto, and a 1977 Ford Pinto, all principally garaged in Nebraska.

 6. The other Plaintiff-Appellee, Joseph W. Boardman, age 19, entered Mississippi State University at Starkville, Mississippi, during the Fall and Spring semesters of the 1978-1979 term.

 7. During the Fall and Spring semesters of 1978-1979, Joseph was permitted by his father, Col. Henry Boardman, to operate the Pinto automobile which was insured under the policy of insurance issued by the Defendant, USAA, in the name of Plaintiff-Appellee, Col. Henry Boardman.

 8. In May of 1979, Joseph Boardman, came to Gulfport, Mississippi, to take a summer job working for his paternal uncle who owns and operates Coast Materials, located in Gulfport, Mississippi.

 9. Joseph Boardman drove the Ford Pinto automobile to Gulfport and operated this automobile until his father came to Gulfport and recovered this vehicle in order to deliver the automobile to Joseph's sisters who live in Cincinnati, Ohio.

 10. On June 14, 1979, Henry Boardman requested USAA to remove Joseph Boardman as a named insured on the automobile insurance policy.

 11. USAA effected the deletion of Joseph Boardman on June 16, 1979.

 12. On June 20, 1979, Joseph Boardman purchased a used 1970 Chevrolet Caprice automobile from Jay Jay Chevrolet, Gulfport, Mississippi.

 13. An application was made by Joseph Boardman for a certificate of title and, additionally, Joseph purchased a

 Mississippi license tag for the Chevrolet Caprice automobile.

 14. The 1970 Chevrolet was never added to the insurance contract between USAA and Col. Henry Boardman, nor was any premium paid to USAA for any coverage under that or any other insurance contract.

 15. On July 8, 1979, at approximately 3:00 a.m., Joseph Boardman was injured in an accident with an uninsured motorist, David Turan, in Gulfport, Mississippi, while driving the 1970 Chevrolet.

 16. The Plaintiff-Appellee, Joseph Boardman, did not receive title to the Chevrolet automobile until July 9, 1979, or one day following the accident.

 17. Damages sustained by Joseph Boardman as a result of the accident of July 8, 1979, include severe personal injuries which are undisputed.

 18. The USAA policy afforded uninsured motorist coverage to all insureds under the policy but contained the following exclusion therefrom:

 EXCLUSIONS: This policy does not apply under Part IV:

 (a) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such an automobile . . . . [emphasis added]

 This clause is referred to as the" owned vehicle exclusionary clause ".

 19. The claim for uninsured motorist benefits arising from the accident under the USAA policy in which Henry Boardman was the named insured, was denied to Joseph Boardman on the grounds that Joseph was driving an owned motor vehicle, which was not an insured vehicle under the subject policy, thereby being specifically excluded under the policy terms.

 20. Nebraska law appears to uphold the" owned vehicle "exclusionary clause. See Herrick v. Liberty Mutual Fire Insurance Company, 202 Neb. 116, 118-19, 274 N.W.2d 147, 148-49 (1979); Shipley v. American Standard Insurance Company of Wisconsin, 183 Neb. 109, 111-12, 158 N.W.2d 238, 240 (1968).

 21. The" owned vehicle "exclusionary clause does not preclude uninsured motorist coverage under Mississippi law. See Lowery v. State Farm Mutual Automobile Insurance Co., 285 So.2d 767, 777-78 (Miss. 1973).

 III.

 The process of adjudication, both at the trial level and at the appellate level, has a three-fold nature. The point is rather elementary, but it needs restatement here.

 First is the function of fact identification. The court must make a determination of, and then state, the relevant factual characteristics of the particular matter at bar.

 Second, the court must make a formulation in general terms of the relevant law to be applied. This is the function of law declaration.

 Obviously, the chronological ordering of the performance of the fact identification function and the law declaration function becomes a chicken-and-the-egg proposition, for the facts help determine what rules of law are relevant, and the rules of law help determine what facts are relevant.

 Third, and finally, there is the function of law application. This is the job of linking up the particular with the general, the facts with the law. This is the point of ultimate decision in the case. *fn4

 Failure to keep these three functions distinct in mind has led to problems which we need not expound upon here. Those problems are brought to mind, however, as we confront the questions put to us by the Court of Appeals in this case, since we have been asked to advise the Court of Appeals what state's law governs the instant controversy - Mississippi or Nebraska. That is a law application question.

 We recognize that the Court of Appeals is charged to ascertain just what our choice of law rules are. See Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 22, 85 L.Ed. 1477, 1480-81 (1941); Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4-5, 96 S. Ct. 167, 168, 46 L.Ed.2d 3, 5 (1975). By our Rule 46 we have recognized our responsibility to supply such rules when there is substantial room for doubt regarding their content. Since state law is to be applied, we recognize and appreciate the spirit of cooperative federalism implicit in the certification practice in the Fifth Circuit whatever discordant notes may be produced in a given case. We are further motivated in the

 case at bar by our view that the United States District Court for the Southern District of Mississippi has misunderstood and misapplied our law.

 The point is that our Rule 46 was adopted to enable us to answer questions related to the law declaration function - and that function only. This we have done in large part by the adoption of the center of gravity test. See Craig v. Columbus Compress & Warehouse Co., 210 So.2d 645, 649 (Miss. 1968); Mitchell v. Craft, 211 So.2d 509, 512 (Miss. 1968). Restatement (Second) of Conflicts of Laws, 6, has long since been incorporated into our law. See Mitchell v. Craft, 211 So.2d at 516; Spragins v. Louise Plantation, Inc., 391 So.2d 97, 100 (Miss. 1980).

 Since 1968 we have refined and applied the Craig-Mitchell center of gravity test in a variety of factual and legal contexts in McNeal v. Administrator of Estate of McNeal, 254 So.2d 521, 524-525 (Miss. 1971); Fells v. Bowman, 274 So.2d 109, 112-113 (Miss. 1973); Dunavant Enterprises, Inc. v. Ford, 294 So.2d 788, 791-792 (Miss. 1974); Vick v. Cochran, 316 So.2d 242, 245-248 (Miss. 1975); Spragins v. Louise Plantation, Inc., 391 So.2d 97, 99-101 (Miss. 1980); Tideway Oil Programs, Inc. v. Serio, 431 So.2d 454, 457-458 (Miss. 1983). These decisions do not answer every question that may be asked about our choice of law rules - nor, in the nature of things, could they. They do, however, provide our rules with substantial flesh.

 We are not insensitive to the traditional formulation of the anti-forum shopping rationale of the Erie doctrine - that where, as here, a federal court exercises subject matter jurisdiction solely because of diversity of ...


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