                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-3507
                                     ___________

St. Paul Fire and Marine Insurance    *
Company,                              *
                                      *
            Plaintiff/Appellee,       *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * District of Minnesota.
Microsoft Corporation,                *
                                      *        [PUBLISHED]
            Defendant/Appellant.      *
                                 ___________

                               Submitted: June 14, 2000
                                   Filed: July 20, 2000
                                    ___________

Before LOKEN, BRIGHT, and ROSS, Circuit Judges.
                            ___________

PER CURIAM.

      St. Paul Fire and Marine Insurance Company ("St. Paul Fire") brought an action
against Microsoft Corporation ("Microsoft") in federal district court seeking a
declaratory judgment defining its obligation to defend or indemnify Microsoft under its
policy insuring the Defendant.

      In this action for declaratory judgment St. Paul Fire asserts that the plaintiffs in
two class actions against Microsoft do not seek consequential damages, the only
damages that are covered by the policy, according to St. Paul Fire. The two lawsuits
on which St. Paul Fire has refused to defend or indemnify Microsoft are Michael H.
Miller, individually and on behalf of all others similarly situated v. Microsoft Corp.,
(Mobile County Ct., Ala.); and Mark Manning, Steve Collins and Dana Schnitzer, on
behalf of themselves and all others similarly situated v. Microsoft Corp., (Dist. Ct. of
Harrison County, Tex.). Each action alleges that a putative plaintiff class suffered
damage when they "purchased, licensed or otherwise acquired" Microsoft's DOS 6.0
software.

        The district court considered the issues on a motion for summary judgment
relating to the Miller and Manning class actions and granted the motion for summary
judgment. The court stated, "The explicit enumeration of the damages sought [in the
lawsuits] leads to the conclusion that all other kinds of damages are excluded. Since
all of the damages enumerated are direct, rather than consequential, the petitions do not
state a claim for consequential damages." Appellant's Add. at 15. Accordingly, the
district court entered a summary judgment order as follows:

                    The Court hereby declares that plaintiff is not obligated to
       defend or indemnify defendant under Policy No. 696NK6427 against
       claims asserted in the action filed in the District Court of Harrison
       County, Texas, entitled, Mark Manning, Steve Collins and Dana
       Schnitzer, on behalf of themselves and all others similarly situated v.
       Microsoft Corporation.

                     The Court hereby declares that plaintiff is not obligated to
       defend or indemnify defendant under Policy No. 696NK6427 against
       claims asserted in the action filed in Mobile County Court, Alabama,
       entitled, Michael H. Miller, individually and on behalf of all others
       similarly situated v. Microsoft Corporation.

Id., at 18.




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       We have carefully considered the briefs, the record, and the oral argument of the
parties. We conclude that the district court opinion by the Honorable John R. Tunheim
fully and fairly discusses the issues and reaches the correct result in this case.

     Accordingly, we affirm on the basis of the district court opinion, St. Paul Fire
and Marine Ins. Co. v. Microsoft Corp., ___ F. Supp. 2d ___ (D. Minn. 2000).

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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