     Case: 11-60299    Document: 00511778410         Page: 1     Date Filed: 03/06/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                           FILED
                                                                          March 6, 2012

                                    No. 11-60299                          Lyle W. Cayce
                                  Summary Calendar                             Clerk



JACQUELYN R. LOWE,

                                                  Plaintiff-Appellant
v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:09-CV-185



Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        In this diversity action, Plaintiff-Appellant Jacquelyn Lowe appeals the
district court’s grant of summary judgment in favor of Defendant-Appellee State
Farm Mutual Automobile Insurance Company (“State Farm Mutual”). Finding
no errors in the district court’s decision, we AFFIRM.
        The relevant facts in this case are largely undisputed. In June 2006,
Plaintiff-Appellant Lowe and two other individuals were passengers in a vehicle

       *
         Pursuant to FIFTHCIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in FIFTH
CIR. R. 47.5.4.
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driven by Betty Waters, one of Lowe’s co-workers. While stopped at a traffic
light, Waters’s vehicle was struck from behind by another vehicle, which was
driven by Janet Matthews. As a result of the accident, Plaintiff-Appellant Lowe
suffered a variety of injuries.
      At the time of the accident, Lowe was a resident of Tennessee; she also
owned an automobile registered in Tennessee, over which she obtained
insurance coverage from Defendant-Appellee State Farm Mutual. The State
Farm Mutual insurance policy was issued to Lowe in Tennessee. The insurance
policy provided Lowe with uninsured/underinsured coverage, with a limit of
$100,000. In relevant portion, the policy provided that it would not make
duplicate payments related to uninsured motorists, limiting coverage for any
damages, inter alia: “[t]hat have already been paid to or for the insured [ ] by or
on behalf of any person or organization who is or may be held legally liable for
bodily injury to the insured”; or “that [ ] have already been paid[,] could have
been paid[,] or could be paid to or for the insured under any workers’
compensation law, disability benefits law, or similar law.” Janet Matthews, the
other driver, held a liability insurance policy through Progressive. In settlement
of Lowe’s claims against it, Progressive paid Lowe $23,696.50. Lowe also
received $95,722.63 in workers’ compensation payments for the injuries she
sustained during the accident.1 In addition to these policies, Geico provided
uninsured/underinsured coverage for the vehicle in which Lowe was riding.
      Plaintiff-Appellant Lowe filed the instant suit, arguing that she is entitled
to additional payment for her injuries from State Farm Mutual based on her
insurance policy. State Farm Mutual filed a motion for summary judgment,
arguing that Tennessee substantive law should apply to the dispute, and that
under Tennessee law it was entitled to offset any available or already received


      1
          It is undisputed that the accident occurred in the scope of Lowe’s employment.

                                              2
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                                       No. 11-60299

funds against the policy limits.2 The district court granted the motion for
summary judgment, finding that Tennessee law applied and that Lowe had
already received or was entitled to received payment in excess of the limits of the
State Farm Mutual policy. On appeal, Lowe argues that the district court
should have applied Mississippi state substantive law to the dispute because the
accident occurred in Mississippi, and further, that she can stack the various
insurance policies under Mississippi law.3
       We review a district court’s grant of summary judgment de novo,
construing all facts and inferences in the light most favorable to the nonmoving
party. Cerda v. 2004-EQR1 L.L.C., 612 F.3d 781, 786 (5th Cir. 2010). Summary
judgment is proper only when the movant demonstrates that no genuine issues
of material fact exist and that she is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); Fed. Ins. Co. v. Ace Prop. & Cas. Co., 429 F.3d 120, 122 (5th
Cir. 2005). A choice-of-law determination is reviewed de novo. Mayo v. Hartford
Life Ins. Co., 354 F.3d 400, 403 (5th Cir. 2004).
       We find no error in the district court’s analysis. A federal court sitting in
diversity applies the choice-of-law principles of the forum state.                   Ellis v.
Trustmark Builders, Inc., 625 F.3d 222, 225 (5th Cir. 2010). Therefore, here,
Mississippi choice-of-law rules apply.            Under Mississippi law, we apply the
“center of gravity” test, which focuses on “‘which state has the most substantial


       2
        The Plaintiff originally named as defendants Geico, State Farm Mutual, Janet
Matthews, and Betty Waters. Lowe later voluntary dismissed Geico and Betty Waters.
Additionally, the district court docket indicates that Matthews was never served and she does
not seem to have participated in the action in any way. Thus, State Farm Mutual was the only
remaining defendant at the time of the filing of the motion for summary judgment.
       3
         In the district court, Plaintiff-Appellant Lowe also argued that State Farm Mutual
was judicially estopped from arguing that Tennessee substantive law should apply. Lowe does
not, however, raise this argument on appeal and it is, therefore, waived. See Geiger v. Jowers,
404 F.3d 371, 373 n.6 (5th Cir. 2005) (stating that although pro se briefs are construed
liberally, they are not immune from the rule “that issues and arguments not briefed on appeal
are abandoned”).

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contacts with the parties and the subject matter of the action.’” Williamson
Pounders Architects PC v. Tunica Cnty., Miss., 597 F.3d 292, 296 (5th Cir. 2010)
(quoting Boardman v. United Servs. Auto Ass’n, 470 So.2d 1024, 1031 (Miss.
1985)); Denman v. Snapper Div., 131 F.3d 546, 548–49 (5th Cir. 1998).4 The
district court’s conclusion that Tennessee substantive law applies is supported
by several decision of the Supreme Court of Mississippi, which reached similar
results under facts like those in the instant case. See, e.g., Owens v. Miss. Farm
Bureau Cas. Ins. Co., 910 So.2d 1065, 1069–72 (Miss. 2005) (finding that
Tennessee law applies under similar facts); O’Rourke v. Colonial Ins. Co. of Cal.,
624 So.2d 84, 85–88 (Miss. 1993) (finding that Tennessee law applies under facts
nearly identical to the current suit); Boardman, 470 So.2d at 1034 (finding that
Nebraska law applies under similar facts, even though accident occurred in
Mississippi); see also Moore v. United Servs. Auto. Ass’n, 808 F.2d 1147, 1150–51
(5th Cir. 1987) (reaching similar result). Indeed, almost every relevant fact in
this case—aside from the location of the accident—weighs in favor of applying
Tennessee substantive law to the dispute.
       Under Tennessee law, it is undisputed that an uninsured motorist
insurance carrier can limit its liability by offsetting all other insurance
payments, including workers’ compensation payments, against the policy limits.
Tenn. Code Ann. § 56-7-1201(d);5 Green v. Johnson, 249 S.W.3d 313, 317–23


       4
         Based on that approach, we consider a number of factors, including: (1) the place of
contracting; (2) the place of negotiation of the contract; (3) the place of performance of the
contract; (4) the location of the subject matter of the contract; and (5) the domicile, resident,
nationality, place of incorporation, and place of business of the parties. Boardman, 470 So.2d
at 1032; see also Hartford Underwriters Ins. Co. v. Found. Health Servs. Inc., 524 F.3d 588,
595 (5th Cir. 2008); Ingalls Shipbuilding v. Fed. Ins. Co., 410 F.3d 214, 230–33 (5th Cir. 2005).
       5
           Section 56-7-1201(d) provides:

       (d) The limit of liability for an insurer providing uninsured motorist coverage
       under this section is the amount of that coverage as specified in the policy less
       the sum of the limits collectible under all liability and/or primary uninsured

                                               4
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(Tenn. 2008) (applying § 56-7-1201(d) and stating that it unambiguously allows
for an offset of all funds received from “parties alleged to be liable”); Poper v.
Rollins, 90 S.W.3d 682, 687 (Tenn. 2002) (same). Here, the State Farm Mutual
policy at issue unequivocally provided that any payments received or that may
be recovered from other sources, including other insurance and workers’
compensation payments, would be offset against the policy limits. It is also
undisputed that Lowe has already received greater than $100,000 in
compensation from other sources.             Lowe may not, therefore, recover any
additional payments from State Farm Mutual under the uninsured motorist
provisions of her policy. See Green, 249 S.W.3d at 317 (holding that settlement
proceeds can be deducted from the limits of an uninsured motorist policy); Poper,
90 S.W.3d at 687 (stating that insurance payments may be offset against limits
of uninsured motorist policy); Sims v. Stewart, 973 S.W.2d 597, 600–01 (Tenn.
Ct. App. 1998) (finding that insurance company could reduce payment by an
amount already received from workers’ compensation). Finally, when analyzing
the application of uninsured motorist coverage provisions, both this Court and
the Supreme Court of Mississippi have rejected arguments that the public policy
of Mississippi requires the stacking of insurance policies—as is allowed under
Mississippi law—to provide for maximum coverage. See Owens, 910 So.2d at
1065 (Miss. 2005) (finding that application of Tennessee uninsured motorist law
against stacking of coverage did not offend public policy); O’Rourke, 624 So.2d




      motorist insurance policies, bonds, and securities applicable to the bodily injury
      or death of the insured. With regard to a claim against a governmental unit,
      political subdivision or agency thereof, the limitations of liability established
      under applicable law shall be considered as limits collectible under a liability
      insurance policy.

Tenn. Code. Ann. § 56-7-1201(d).

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at 88–89 (same); Moore, 808 F.2d at 1152–53 (5th Cir. 1987) (same).6 We,
therefore, find no error in the district court’s application of Tennessee
substantive law.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




      6
       The Plaintiff-Appellant also argues that she is entitled to payment from State Farm
Mutual under the medical payment coverage provisions of the policy. This argument was not
made in the district court and is waived on appeal.

                                            6
