                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 18, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-31175
                          Summary Calendar



     YOLINDA WASHINGTON

                     Plaintiff - Appellant

     v.

     WESTERN & SOUTHERN LIFE INSURANCE CO

                     Defendant - Appellee



            Appeal from the United States District Court
                for the Western District of Louisiana
                            No. 02-CV-2684


Before KING, Chief Judge, and WIENER and STEWART, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Yolinda Washington appeals from the

district court’s grant of Defendant-Appellee Western & Southern

Life Insurance Co.’s (Western-Southern’s) motion for summary

judgment.   For the following reasons, we affirm.

                           I. BACKGROUND

     The facts of this case are not in dispute.     On November 18,

2000, Richard Washington was injured in a motor vehicle accident,


     *
        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that this opinion should not be published and is not precedent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.
                           No. 03-31175
                                -2-

rendered unconscious, and hospitalized.   After spending four-and-

a-half months in the hospital, he died on April 8, 2001.

     Yolinda Washington, the decedent’s wife, submitted a claim

for accidental death benefits pursuant to an insurance policy

that Mr. Washington had purchased from Western-Southern in 1996.

The policy, which was entitled “Accidental Death and Loss of

Sight or Limbs Policy,” provided for the payment of benefits upon

Mr. Washington’s accidental death or in the event that he lost

his sight or limbs “from injuries received in an accident or from

sickness.”1   According to the terms of the policy, the standard

$100,000 death benefit was available:

     if [Mr. Washington was] killed accidentally.      To be
     accidental, death must be the direct result of injuries
     received in an accident. Death must be independent of
     all other causes. Death must also occur within 90 days
     after the accident. The accident must happen while the
     policy is in force.

(emphasis added).   After conducting a brief investigation,

Western-Southern denied Ms. Washington’s claim because Mr.

Washington had died more than ninety days after the motor-vehicle

accident that led to his hospitalization.

     Ms. Washington subsequently initiated suit against Western-

Southern in Louisiana state court, claiming that the 1996 policy

was a life insurance policy and, therefore, that the ninety-day

limitation was null and void as an unlawful condition on


     1
          Increased benefits would have been available if the
accident occurred while Mr. Washington was riding on a public
conveyance or if the accident was caused by an intoxicated
driver.
                            No. 03-31175
                                 -3-

recovery.   See LA. REV. STAT. ANN. § 22:170(B) (West 2004)

(providing that “[n]o policy of life insurance . . . shall

contain any provision which excludes or restricts liability for

death caused in a certain specified manner . . . except” for

certain enumerated provisions, not including a ninety-day limit

for accidental death).   Western-Southern removed the case to

federal district court under 28 U.S.C. § 1332 (2000).     After

limited discovery, Ms. Washington filed a motion for summary

judgment based on the legal theory articulated above.     In

response, Western-Southern filed its own motion for summary

judgment, contending that the 1996 policy was an accidental death

policy not subject to the restrictions in § 22:170(B).        On

October 7, 2003, the district court agreed that the 1996 policy

was an “accidental death policy,” not a life insurance policy,

and granted Western-Southern’s motion for summary judgment.        Ms.

Washington appeals.

                           II. DISCUSSION

     We review the district court’s grant of summary judgment de

novo.   Shocklee v. Mass. Mut. Life Ins. Co., 369 F.3d 437, 439

(5th Cir. 2004).   Summary judgment is appropriate only where

there is no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law.    Id.   Ms. Washington

contends that the district court erroneously construed Louisiana

insurance law in granting Western-Southern’s motion for summary

judgment.   We review the district court’s interpretation of state
                             No. 03-31175
                                  -4-

law de novo.     See Swearingen v. Owens-Corning Fiberglass Corp.,

968 F.2d 559, 561 (5th Cir. 1992).

     Ms. Washington’s argument that the ninety-day limitation on

recovery is invalid depends on her claim that the 1996 policy

qualifies as life insurance, not accident insurance, under

Louisiana law.    The Louisiana legislature has defined “Life”

insurance as

     Insurance on human lives and insurances appertaining
     thereto or connected therewith. . . . [T]he transacting
     of life insurance includes the granting of annuities or
     survivorship benefits; additional benefits . . . in the
     event of death by accident; additional benefits in event
     of the total and permanent disability of the insured; and
     optional modes of settlement of proceeds.

LA. REV. STAT. ANN. § 22:6(1) (West 2004).   “Health and Accident”

insurance, on the other hand, is defined as

     Insurance of human beings against bodily injury,
     disablement, or death by accident or accidental means, or
     the expense thereof, or against disablement, or expense
     resulting from sickness or old age, or [various forms of
     health insurance] . . . .

Id. § 22:6(2)(a) (emphasis added).

     By its terms, the 1996 policy appears to fit within the

plain language of the “Health and Accident” insurance definition.

That is, instead of generally insuring Mr. Washington’s life and

providing “additional benefits . . . in the event of death by

accident,” the entire focus of the 1996 policy’s provisions was

to insure Mr. Washington against certain forms of “bodily injury,

disablement, or death by accident or accidental means.”     In

addition, the 1996 policy contains provisions that generally
                           No. 03-31175
                                -5-
track those required by Louisiana law to be included in all

health and accident insurance policies, see LA. REV. STAT. ANN.

§ 22:213(A), but omits some of the provisions required by law to

be included in all life insurance policies, see id. § 22:170(A).2

Moreover, as the district court pertinently observed, the 1996

policy’s title, “Accidental Death and Loss of Sight or Limbs

Policy,” bolsters the conclusion that this was an accident

insurance policy and not a life insurance policy.

     Nevertheless, Ms. Washington argues that her position is

vindicated by the reasoning of American Health & Life Insurance

Co. v. Binford, 511 So. 2d 1250 (La. App. 2 Cir. 1987).    In

Binford, an intermediate appellate court held that an insurance

policy, which “provides benefits upon the death of the insured

only if the death is caused by an accidental bodily injury,”

qualified as a life insurance policy because it “provides for

insurance on human lives[,] specifically, . . . for lives lost

through accidental bodily injury.”   Id. at 1253.3   Under Binford,

Ms. Washington argues, the 1996 policy should also be deemed life

insurance, even though the policy does not insure Mr.

Washington’s life generally but authorizes benefits only in the

event that his death is caused by an accident.

     2
          To note but one example, the 1996 policy does not
guarantee that coverage may be reinstated at any time within
three years of default provided that the conditions outlined in
§ 22:170(A)(9) have been met.
     3
          The court noted that the policy’s inclusion of coverage
for “dismemberment or loss of eyesight” did not affect its
categorization as life insurance under the statute. Id.
                           No. 03-31175
                                -6-
     But Binford is not the only pertinent authority.   In at

least two prior intermediate appellate court decisions, Louisiana

jurists categorized insurance policies containing “accidental

death” benefits as “Health and Accident,” not “Life,” insurance

policies.   See Daigle v. Travelers Ins. Co., 421 So. 2d 302, 304

(La. App. 1 Cir. 1982) (rejecting plaintiff’s argument “that the

Accidental Death and Dismemberment Policy should be classified as

life insurance rather than health and accident insurance”);

Willis v. Willis, 287 So. 2d 642, 647 (La. App. 3 Cir. 1974) (on

rehearing) (concluding that “the policy in question was a health

and accident policy containing an accidental death provision

[not] . . . a life policy”).   Because these decisions comport

with the plain language of the Louisiana Insurance Code, as

outlined above, we conclude, as we believe the Louisiana Supreme

Court would, that the 1996 policy was a form of Health and

Accident insurance.4   See Hulin v. Fibreboard Corp., 178 F.3d

316, 318-19 (5th Cir. 1999) (“[I]n determining the content of the

state law to be applied . . . ‘the underlying substantive rule


     4
          Ms. Washington appears to argue, in the alternative,
that the 1996 policy does not meet the definition of “Health and
Accident” insurance because it only provides accident benefits.
This argument is foreclosed by the Louisiana Supreme Court’s
interpretation of LA. REV. STAT. ANN. § 22:6(2)(a). Cf. Rudloff v.
La. Health Servs. & Indem. Co., 385 So. 2d 767, 770 (La. 1980)
(on rehearing) (overruling a prior case that had held that a
policy providing benefits only for hospital and medical care was
not “health and accident” insurance since it did not insure
against injury or death by accident, because § 22:6(2)’s
definition of “Health and Accident” insurance encompasses
policies containing either health or accident insurance, in
addition to policies containing both types of insurance).
                              No. 03-31175
                                   -7-
involved is based on state law and the State’s highest court is

the best authority on its own law.       If there be no decision by

that court then federal authorities must apply what they find to

be the state law after giving ‘proper regard’ to relevant rulings

of other courts of the State’” (quoting Comm’r v. Estate of

Bosch, 387 U.S. 456, 465 (1967))); see also FDIC v. Abraham, 137

F.3d 264, 268 (5th Cir. 1998).

     Accordingly, we hold that the district court did not err in

concluding that the 1996 policy’s clause limiting the recovery of

accidental death benefits to situations where the insured dies

within ninety days of the qualifying accident was valid under

Louisiana law.    See WILLIAM SHELBY MCKENZIE & H. ALSTON JOHNSON, III,

LOUISIANA CIVIL LAW TREATISE: INSURANCE LAW AND PRACTICE § 285, at 628-29

(2d ed. 1996) (explaining that, “in cases involving accidental

loss policies, clauses requiring that the loss be incurred within

ninety days of the accident have been upheld” and arguing that

this outcome is justified because “[t]he insurer is entitled to a

determination of sound causal relationship, and to a prompt

resolution of its financial responsibility”); id. at 628 n.5

(citing cases).

                            III. CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court.
