                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                    UNITED STATES COURT OF APPEALS
                                                              June 29, 2007
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk


                             No. 06-31179
                           Summary Calendar



     GREAT AMERICAN ASSURANCE CO.,

                                        Plaintiff-Appellee,

                                  v.

     JACK THORSON and CHARLENE THORSON,

                                          Defendants-Appellants.



         Appeal from the United States District Court for the
                     Eastern District of Louisiana
                              2:05-CV-2195



Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     In November, 2002, Jack and Charlene Thorson (“the Thorsons”)

purchased a thoroughbred racehorse, Kimberlite Pipe, for breeding

mares.     They purchased a policy from Great American Assurance

Company to insure against death and infertility from November,

2002, to November, 2003 (“Original Policy”).      They renewed this

policy, with some alterations, providing coverage from November,

     *
        Pursuant to 5th Cir. 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that this opinion should not be published and is not precedent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 5th Cir. R.
47.5.4.
2003, to November, 2004 (“Renewal Policy”).

     After receiving medical reports that Kimberlite Pipe suffered

some congenital abnormalities suggesting infertility, the Thorsons

filed a claim against Great American in 2004.           Great American

denied the claim and filed a declaratory action seeking relief from

coverage, and the Thorsons counterclaimed arguing that their claim

was denied in bad faith.      The district court granted summary

judgment in favor of Great American, and we AFFIRM that judgment.

     We review the district court’s summary judgment de novo.

Terrebonne Parish Sch. Bd. v. Mobile Oil Corp., 310 F.3d 870, 877

(5th Cir. 2002).   Summary judgment is appropriate when no genuine

issue of material fact exists, and one party is therefore entitled

to judgment as a matter of law.       Id.

     It is undisputed that the Thorsons are not covered under the

Original Policy.   That policy contained a “Stallion First Season

Infertility”   endorsement   (“SFSI”),      which   protected   against

infertility due to congenital abnormalities which result “in the

failure of the insured stallion to achieve a fertility percentage

of 60% or more during its first season at stud.”       Kimberlite Pipe

had a 66% fertility rate during its first season, so the Thorsons

had no claim under this provision.

     In Kimberlite Pipe’s second season at stud, its fertility rate

fell below 60%.    However, the Renewal Policy applicable to that

season did not contain an SFSI, but only an “Accident, Illness,


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Disease, Infertility” Endorsement (“AIDI”).            As opposed to the

SFSI, which explicitly covered congenital defects, the AIDI applied

only if infertility resulted “from an accident, illness or disease

which occurs after the effective date of this endorsement.”             The

Thorsons do not allege that Kimberlite Pipe’s infertility resulted

from any accident, illness or disease occurring after the effective

date of the Renewal Policy (November, 2003).           They allege only a

congenital defect as the cause of infertility.         This falls outside

the scope of the plain language in the Renewal Policy’s AIDI.

     The Thorsons respond that Kimberlite Pipe’s infertility did

not occur until after the effective date of the Renewal Policy.

The Thorsons claim that the AIDI “plainly states that coverage is

provided if Kimberlite Pipe becomes ‘infertile’ after the inception

of the Renewal Policy.”        But that is not what the AIDI says,

plainly or otherwise.       It states that the accident, illness or

disease causing infertility must occur after the Renewal Policy

takes effect, and the congenital defect was present long before the

Renewal   Policy’s   effective   date.     Infertility    resulting    from

congenital defects is only covered under the SFSI in the Original

Policy, which did not apply to the second season.

     Because we find that the explicit terms of the Renewal Policy

do not cover infertility caused by congenital defects, we do not

address the district court’s alternative grounds for its judgment,

which relate   to    the   Thorsons   failure   to   timely   notify   Great



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American   upon   first   learning   of   Kimberlite   Pipe’s   potential

infertility.

     We AFFIRM the district court’s judgment.




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