     Case: 18-60608      Document: 00515337772         Page: 1    Date Filed: 03/09/2020




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

                                                                                FILED
                                                                             March 9, 2020
                                      No. 18-60608
                                                                             Lyle W. Cayce
                                                                                  Clerk
LIBERTY MUTUAL FIRE INSURANCE COMPANY, as subrogee of
Chickasaw County School District,

               Plaintiff - Appellee

v.

FOWLKES PLUMBING, L.L.C.; SULLIVAN ENTERPRISES,
INCORPORATED; QUALITY HEAT ; AIR, INCORPORATED,

               Defendants - Appellants



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 1:17-CV-10


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM:*
       While contractors were restoring windows at a school, a fire broke out
that destroyed the school. The school district’s insurer paid for the damage,
but then brought this subrogation claim against the contractors. In response,
the contractors asserted that a subrogation waiver in their agreement with the
school district bars the suit. The district court disagreed, holding that the
subrogation waiver relieves the contractors of liability only for damage to the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-60608     Document: 00515337772    Page: 2   Date Filed: 03/09/2020



                                 No. 18-60608
windows that were the focus of their work. The waiver does not, in the district
court’s view, apply to the damage to the rest of the school.
      Recognizing that the scope of the subrogation waiver is a close question
on which courts around the country have disagreed, the district court
authorized an interlocutory appeal, which we accepted.         See 28 U.S.C. §
1292(b). We then certified the question to the Supreme Court of Mississippi.
See Liberty Mut. Fire Insur. Co. v. Fowlkes Plumbing, L.L.C., 934 F.3d 424 (5th
Cir. 2019).
      The Supreme Court of Mississippi ruled that “the waiver of subrogation
applies to work and non-work property.”        Liberty Mut. Fire Insur. Co. v.
Fowlkes Plumbing, L.L.C., -- So. 3d --, 2020 WL 830904, at *4 (Miss. Feb. 20,
2020). It explained that the subrogation waiver “operates as a blanket waiver
of property damage to the extent that the property is covered by insurance.”
Id. at *2. It further reasoned that the “phrase ‘to the extent the property is
covered by insurance’ means that any damage that is paid by insurance
proceeds is covered.’” Id.
      Because the Supreme Court of Mississippi has concluded that the
subrogation waiver covers all damage to the school, the waiver provides the
contractors with a complete defense to this subrogation suit. Accordingly, we
REVERSE the district court’s ruling and RENDER judgment dismissing the
complaint.




                                       2
