UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AMERICAN PROTECTION INSURANCE
COMPANY,
Plaintiff-Appellant,

v.

AHLSTROM KAMYR, INCORPORATED;
KAMTECH, INCORPORATED,
Defendants-Appellees,
                                                               No. 98-2504
and

LAMB-GRAYS HARBOR COMPANY;
LAMB CANADA LTD/LTEE;
CONTINENTAL CONVEYOR AND
MACHINE WORKS, LIMITED,
Defendants & Third
Party Plaintiffs.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CA-96-203, CA-97-187)

Submitted: June 16, 1999

Decided: June 28, 1999

Before WILKINSON, Chief Judge, and MURNAGHAN
and TRAXLER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Richard Edwin Bliss, MARGOLIS EDELSTEIN, Pittsburgh, Penn-
sylvania, for Appellant. Andrew G. Fusco, Jeffrey A. Ray, FUSCO &
NEWBRAUGH, L.C., Morgantown, West Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

American Protection Insurance Company (APIC) appeals the dis-
trict court's grant of summary judgment to Ahlstrom Kamyr, Inc., and
Kamtech, Inc., in APIC's action seeking damages based on a claimed
right to subrogation of insurance proceeds paid by APIC to American
Fiber Resources (AFR) on account of property damage caused by a
fire. We affirm.

Our review is de novo. See Causey v. Balog, 162 F.3d 795, 800
(4th Cir. 1998). Subrogation rights are derived solely from the insured
party. If the insured does not have a right to recover against a third
party, then the insurer-subrogee has no right to recover against the
same third party. See American Sur. Co. v. Town of Islip, 48 N.Y.S.
2d 749, 751 (App. Div. 1944); see also National Union Fire Ins. Co.
v. Silberman, 628 N.Y.S. 2d 126, 127 (App. Div. 1995); USAA Cas.
Ins. Co. v. Brown, 614 N.Y.S. 2d 571, 572 (App. Div. 1994). We find
that the right to proceed against Ahlstrom Kamyr and Kamtech for
damage to AFR's property was AFR's right to waive in its contract
with Ahlstrom Kamyr.

Furthermore, we find that the agreement between AFR and Ahls-
trom Kamyr was unambiguous. The parties agreed that AFR would
provide insurance, that Ahlstrom Kamyr and its affiliates would be
listed on the insurance policy as named insureds, and that all rights

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to subrogation for property damage would be waived. 1 Because subro-
gation rights for property damage were waived, the instant action is
barred. See Trump-Equitable Fifth Ave. v. H.R.H. Constr. Corp., 485
N.Y.S. 2d 65, 68 (App. Div. 1985), aff'd, 488 N.E.2d 115 (N.Y.
1985).

Accordingly, we affirm on the reasoning of the district court. See
American Protection Ins. Co. v. Ahlstrom Kamyr, Inc. , No. CA-97-
187 (N.D.W. Va. Oct. 8, 1998).2

AFFIRMED
_________________________________________________________________
1 We note that in APIC's policy covering AFR's property, APIC agreed
that the policy would not be invalidated if AFR waived its right to
recover for any loss to the property.
2 Although the district court's order is marked as "filed" on September
29, 1998, the district court's records show that it was entered on the
docket sheet on October 8, 1998. Pursuant to Rules 58 and 79(a) of the
Federal Rules of Civil Procedure, it is the date that the order was entered
on the docket sheet that we take as the effective date of the district
court's decision. See Wilson v. Murray, 806 F.2d 1232, 1234-35 (4th Cir.
1986).

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