                   United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                             ________________

                            Nos. 02-3675/02-3676
                             ________________

Carolina Casualty      Insurance      *
Company,                              *
                                      *
           Appellee,                  *      Appeal from the United States
                                      *      District Court for the
     v.                               *      District of Minnesota.
                                      *
Alfred Burbach, Continental           *            [PUBLISHED]
Insurance Company,                    *
                                      *
           Appellants,                *
                                      *

                             ________________

                             Submitted: October 22, 2003
                                 Filed: January 14, 2004
                             ________________

Before BYE, HANSEN, and MELLOY, Circuit Judges.
                         ________________

HANSEN, Circuit Judge.

     Carolina Casualty Insurance Company ("Carolina") brought this declaratory
judgment action against Continental Insurance Company ("Continental"), Alfred
Burbach ("Burbach"), and Armstrong Rigging & Erecting, Inc. ("Armstrong
Rigging),1 seeking a declaration relating to disputed insurance coverage. We now
reverse the district court's determination that Continental's policy provides the
primary insurance coverage for this dispute.

       We review de novo the district court's grant of summary judgment. In re Minn.
Mut. Life Ins. Co. Sales Practices Litig., 346 F.3d 830, 833 (8th Cir. 2003). Summary
judgment is appropriate if the record, viewed in the light most favorable to the
nonmoving party, demonstrates that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

        The facts underlying this case are not in dispute. Burbach was a flatbed semi-
tractor trailer driver employed by Marquardt Transportation Company ("Marquardt").
On March 17, 1987, Burbach sustained permanent injuries when he attempted to
move part of a heavy load of freight that had not been properly secured on the flatbed
trailer he was preparing to drive to South Dakota. The freight belonged to Portec
Corporation, which had hired Armstrong Rigging to load and secure the freight on
the flatbed trailer. Carolina is Marquardt's truckers' insurance provider, and
Continental is the insurance provider for Armstrong Rigging. Continental has issued
two policies to Armstrong Rigging. One is a Commercial General Liability Policy,
and the second is a Business Auto Insurance Policy. After a complex series of state
and federal court actions, which are fully outlined in the district court's opinion but
are not relevant to the single issue in this appeal, Burbach obtained a binding
arbitration award against Armstrong Rigging for his damages, which award has been
reduced to judgment.




      1
       Armstrong Rigging was a defendant in the case but is not a party to this
appeal.
                                          2
       Carolina filed this action against Burbach, Continental, and Armstrong
Rigging, seeking a declaration that its insurance policy does not cover Armstrong
Rigging's liability for Burbach's judgment. The district court concluded on summary
judgment motions that both Carolina's and Continental's insurance policies provide
coverage for Armstrong's liability, but after an analysis of total policy insuring intent,
the district court ultimately concluded that Continental's policy provided the primary
insurance in this instance. Continental and Burbach appeal.

        We begin our analysis by noting what is not at issue in this appeal. Carolina
does not appeal the district court's judgment that both Carolina's truckers' policy and
Continental's commercial liability policy provide coverage to Armstrong Rigging in
the circumstances of this case. Under Carolina's truckers' policy, issued to
Marquardt, Armstrong Rigging is an insured as a permissive user of Marquardt's
trailer for the purpose of loading it. The sole issue on appeal is which policy provides
the primary coverage for Armstrong Rigging's determined liability, and its resolution
requires an examination of the "other insurance" provisions of the respective policies.

        The interpretation of a contractual provision in an insurance policy is a
question of law subject to de novo review. Nat'l Union Fire Ins. Co. of Pittsburgh v.
Terra Indus., Inc., 346 F.3d 1160, 1164 (8th Cir. 2003). The parties agree that this
diversity action is governed by Minnesota law. See id. (noting state law governs
interpretation of insurance policies). When considering this case, the district court
first held that, looking only to the "other insurance" clauses of the policies, Carolina's
coverage is primary. Nevertheless, the court also went on to consider the total policy
insuring intent in light of the primary risks upon which each policy's premiums were
based and the primary function of each policy. Based upon that further analysis, the
district court ultimately concluded that Continental's policy provides the primary
coverage.




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       Recent Minnesota case law, however, clarifies that it was inappropriate for the
district court to consider the policy insuring intent in this case. Subsequent to the
district court's opinion and subsequent to the filing of briefs in this appeal, the
Supreme Court of Minnesota decided a new case on point, and we called for
supplemental briefing. In a case between two automobile insurers, the Supreme Court
of Minnesota held that while courts may look beyond the language of the applicable
insurance policies to determine the priority of coverage where two or more companies
are liable to the insured, "looking to insuring intent is appropriate only where policies
contain conflicting 'other insurance' clauses." Christensen v. Milbank Ins. Co., 658
N.W.2d 580, 587 (Minn. 2003). Thus, we must first consider whether the language
of the "other insurance" clauses at issue in these policies conflict with each other. If
they do not, our inquiry is at an end, and we must apply the policy provisions as they
are written.

       Carolina's "other insurance" clause states that it provides primary insurance for
any truck owned by Marquardt and excess insurance for any covered truck not owned
by Marquardt. Continental's Business Auto Policy provides similar coverage to
Armstrong Rigging for its vehicles. Because Armstrong Rigging did not own the
Marquardt trailer, its Continental-issued Business Auto Policy would not provide
primary coverage for Burbach's injuries. Continental's Commercial General Liability
Policy generally provides primary liability insurance, but an exception states that it
provides only excess coverage where "the loss arises out of the . . . use of . . . 'autos.'"
(Appellant Continental's Add. at 32.) That policy defines "autos" as any "land motor
vehicle, trailer or semi-trailer designed for travel on public roads." (Id. at 33.)

       The "other insurance" clauses at issue here do not conflict with each other.
Carolina provides primary coverage for vehicles owned by Marquardt, as was the
trailer to be driven by Burbach and permissively used by Armstrong Rigging.
Continental's auto policy specifically states that it provides only excess insurance for
vehicles not owned by Armstrong Rigging. Finally, although Armstrong Rigging's

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Commercial General Liability Policy issued by Continental provides primary
insurance in most instances, an express exception states that it provides only excess
insurance when an auto was involved in the loss. Burbach's accident occurred on the
trailer bed of a vehicle owned by Marquardt. Thus, consistent with the terms of all
of the policies, only Carolina's policy provides primary insurance in this
circumstance. The district court's first impression as to primary coverage was correct.
It was therefore inappropriate for the district court to consider policy insuring intent.

       Carolina argues that the Christensen case is inapposite because it involved a
priority dispute between two automobile policies, whereas the present dispute
involves two policies designed to serve fundamentally different purposes. This
distinction is not stated in Christensen. The discussion of priority in that case hinges
on the language of the "other insurance" clauses at issue and makes no mention of the
similar nature or purposes of the relevant insurance contracts as a whole. As we
indicated above, Carolina did not appeal the district court's determination that its
policy provides coverage for Armstrong Rigging in this instance; the only disputed
determination is that of priority, which in this case begins and ends with the language
used in the "other insurance" clauses at issue.

       General contract interpretation principles require courts to construe the
language of insurance policies according to the terms the parties have used in order
to give effect to the intention of the parties as stated in the contract. Christensen, 658
N.W.2d at 587. If that language is unambiguous, the terms are to be taken in their
plain and ordinary sense "so as to give effect to the intention of the parties as it
appears from the entire contract." Id. (internal quotation marks omitted). After
stating these general contract principles and the exception that courts may look
beyond the language of insurance policies when determining priority, the Supreme
Court of Minnesota further explained that analyzing insuring intent is inappropriate
unless the language of the two policies conflict. Id. at 588. Because there is neither
an ambiguity nor a conflict between the express terms of the policies at issue in the

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present case, the holding of the Christensen case compels our conclusion that the
Carolina policy is primary.

      Accordingly, we reverse and remand for entry of judgment declaring Carolina's
insurance policy to be primary in this dispute.
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