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

                                                                            FILED
                                                                         October 31, 2008

                                       No. 06-60498                   Charles R. Fulbruge III
                                                                              Clerk

NATIONAL UNION FIRE INSURANCE COMPANY

                                                  Plaintiff-Appellant
v.

MISSISSIPPI INSURANCE GUARANTY ASSOCIATION

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:04-CV-340


Before REAVLEY, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
       For the appeal in this diversity action, at issue was a determinative, but
as of then unanswered, question of Mississippi law. We certified that question
to the Mississippi Supreme Court pursuant to Rule 20 of the Mississippi Rules
of Appellate Procedure. Our court asked
       [w]hether a solvent-carrier’s insurance policy, which provides an
       “other-insurance” clause stating it is in excess to any other primary
       insurance, must be exhausted under Mississippi Code Annotated
       § 83-23-123, ahead of [the Mississippi Insurance Guaranty


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-60498

      Association’s (MIGA’s)] statutory coverage of the insolvent-carrier’s
      primary policy.
Nat’l Union Fire Ins. Co. v. Miss. Ins. Guar. Ass’n, 507 F.3d 309, 312 (5th Cir.
2007).
      The Mississippi Supreme Court accepted our certification and rendered an
en banc opinion on 4 September 2008. That court determined the National
Union Fire Insurance Company’s (NUFIC’s) policy at issue was not “a true
excess policy”; and answered the certified question as follows:
      [A] solvent carrier’s insurance policy which is not a true excess
      policy, and which provides an “other-insurance” clause stating it is
      in excess to any other primary insurance, must nevertheless be
      exhausted prior to MIGA’s statutory duty to provide coverage under
      an insolvent-carrier’s primary policy.
Nat’l Union Fire Ins. Co. v. Miss. Ins. Guar. Ass’n, 990 So. 2d 174, 177 (Miss.
2008) (en banc).
      NUFIC is a solvent carrier; and the NUFIC policy at issue contains an
“other-insurance” clause. Accordingly, the summary judgment in favor of MIGA
is AFFIRMED, and this matter is REMANDED to the district court for such
further proceedings, consistent with this opinion, as may be required.
      AFFIRMED; REMANDED.




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