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

                                                 FILED
                                                                          October 19, 2009
                                     No. 09-60328
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




ERIC PLUNKETT, Individually and as
Wrongful Death Beneficiary of Tory Lynn Plunkett, Deceased,
Hunter Dale Plunkett, Deceased, and Emma Grace Plunkett, Deceased,

                                                   Plaintiff-Appellant,

versus

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

                                                   Defendant-Appellee.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                                 No. 1:07-CV-185




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60328

      Eric Plunkett unsuccessfully sought a declaration regarding who was an
insured party under an insurance policy. We reverse and render judgment.


                                        I.
      Plunkett was a guest passenger in an automobile, driven by his wife, that
collided with a vehicle driven by Tyler Gray. Both drivers and Mrs. Plunkett’s
unborn twins were killed. Gray, son of William Gray and Debra Pruitt and step-
son of Dillard Pruitt, was an unemancipated minor of whom Mrs. Pruitt and Mr.
Gray had joint custody. State Farm Mutual Automobile Insurance Company
(“State Farm”) had issued an automobile insurance policy to Dillard Pruitt that
covered relatives of the named insured and defined “relative” as someone “re-
lated to you or your spouse by blood, marriage, or adoption who resides primarily
with you.”


                                        II.
      Plunkett brought a declaratory judgment action, with jurisdiction based
on diversity of citizenship, seeking a declaration that Tyler Gray is properly con-
sidered an “insured” under Dillard Pruitt’s State Farm liability policy. The dis-
trict court granted State Farm’s motion for summary judgment, holding that, un-
der Mississippi law, Tyler Gray did not reside primarily with the Pruitts and
thus was not covered by the policy held by his stepfather. We review a summary
judgment on the interpretation of an insurance policy de novo. Principal Health
Care, Inc. v. Lewer Agency, Inc., 38 F.3d 240, 242 (5th Cir. 1994).


                                       III.
      Plaintiff argues that Grange Mutual Casualty Co. v. United States Fidelity
& Guaranty Co., 853 So.2d 1187 (Miss. 2003), requires a finding that Tyler Gray
is covered by his stepfather’s policy. Grange held that “[i]t is clear that the law

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                                   No. 09-60328

in this state is that an unemancipated minor is considered a household resident
of both the custodial parent and the non-custodial parent for purposes of automo-
bile insurance.” Id. at 1190. The district court held that that statement is dic-
tum and thus not binding authority in Mississippi. The court then proffered an
“Erie-guess” that the Mississippi Supreme Court, as presently constituted, would
not hold, as a matter of law, that unemancipated minors are household residents
of both parents for purposes of automobile insurance. We disagree.
         In Grange, the court held that an unemancipated minor was covered under
a liability insurance policy issued in the names of her father and stepmother.
Id. at 1190-91. The policy in question contained language relating to coverage
of family members that is virtually identical to the policy in the instant case.
Just as here, the policy in Grange extended coverage to relatives of the insured
and limited the definition of “relative” to those who “reside primarily” with the
named insured. The district court, however, found that “it was the Court’s as-
sessment of the facts of residency in Grange, more so than its analysis of Missis-
sippi law, which motivated the actual holding in the case.” That reasoning is
error.
         The Grange court analyzed the residence of the unemancipated minor in
two parts. The court first held that she was a resident of the household of both
parents as a matter of law. Id. at 1190. The court then held, in the alternative,
that, as a matter of fact, she primarily resided with the insured named on the
subject policy. Id. at 1190-91 The district court concluded that the Grange court
had relied on the factual aspect of its analysis in deciding the case, rendering its
legal holding only dictum.
         To the contrary, however, the analysis was merely an argument in the al-
ternative, and the primary support for the decision came from the court’s legal
determination. The factual discussion came after the plain statement of Missis-
sippi law and only made the point that, even if the law were different, the plain-

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                                  No. 09-60328

tiff would still prevail. That additional support for the court’s conclusion does
not turn its primary statement into dictum and does not undermine its status
as binding legal precedent in Mississippi. The district court was bound to apply
the law established in Grange.
      The district court further reasoned that the Grange court misinterpreted
Mississippi precedent. In avoiding the thrust of Grange, however, the district
court considered and relied on the same cases that were carefully considered
there. Where there is plain legal precedent from the state’s highest court, a fed-
eral court sitting in diversity is bound to apply it.
      Finally, the district court made a distinction in the definition of “insured”
between uninsured motorist coverage and liability coverage. The court conclud-
ed that the uninsured motorist statute extends coverage beyond plain contrac-
tual language and that interpretations under the statute are not meant to be ap-
plied in other contexts, including the field of private liability insurance. Grange
held, however, that there is no distinction between the uninsured motorist stat-
ute and liability insurance coverage in deciding whether an unemancipated min-
or is a resident of both the custodial and non-custodial parent’s household.
Grange, 853 So.2d at 1190. The argument for cabining the liberal interpretive
scheme adopted in the uninsured motorist context is, therefore, unpersuasive.
      Grange sets out unequivocal precedent in Mississippi: An unemancipated
minor is a household resident of both custodial and noncustodial parents for pur-
poses of automobile insurance. Id. An insurance provision that extends only to
family members who “reside primarily” with the named insured is covered by
Grange, and factual arguments related to primary residence are foreclosed.
Moreover, Erie-guesses are appropriate only where there is no definite precedent
on point from a state’s highest court. Because Grange provides such precedent
in Mississippi, there is no room for prognostications as to whether the state high
court, as presently constituted, would come to the same conclusion.

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                                      No. 09-60328

      Under Mississippi state law, Tyler Gray must be considered a resident of
the household of Dillard Pruitt. Therefore, he is an “insured” under the policy.
Accordingly, we REVERSE and RENDER judgment in favor of Plunkett.1




      1
          Judge Dennis concurs in the judgment only.

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