           Case: 14-10266   Date Filed: 09/03/2014   Page: 1 of 4


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10266
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:12-cv-00191-BAE-GRS



FCCI INSURANCE COMPANY,

                                                          Plaintiff - Appellant,

                                  versus

MCLENDON ENTERPRISES, INC.,
BROOKS LAMAR MITCHELL,

                                                       Defendants - Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                            (September 3, 2014)



Before TJOFLAT, JORDAN and BLACK, Circuit Judges.

PER CURIAM:
               Case: 14-10266     Date Filed: 09/03/2014    Page: 2 of 4


      CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA,

PURSUANT TO O.C.G.A. § 15-2-9. TO THE SUPREME COURT OF

GEORGIA AND ITS HONORABLE JUSTICES:

      This case arises from an automobile collision between a vehicle driven by

Brooks Lamar Mitchell in his capacity as an employee of McLendon Enterprises,

Inc. (McLendon) and an Evans County school bus. The district court, applying

Georgia law, determined that Mitchell could recover under McLendon’s policy

with FCCI Insurance Co., which promised to pay sums he was “legally entitled to

recover” from an uninsured motorist. The district court found that Mitchell could

make a claim under this provision even though Evans County’s partial sovereign

immunity prevented Mitchell from establishing in a lawsuit that he was legally

entitled to recover the full amount of his damages from Evans County.

      To reach this decision, the district court looked to Tinsley v. Worldwide Ins.

Co., 442 S.E.2d 877, 878-79 (Ga. Ct. App. 1994), for guidance. In Tinsley, the

Georgia Court of Appeals held that an insured couple could maintain a claim under

their uninsured-motorist coverage notwithstanding the complete sovereign

immunity of the party that injured them (i.e., the tortfeasor) and their resulting

inability to establish in court that they were “legally entitled to recover” from that

party. The Tinsley court reasoned that where it was impossible for an insured party



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to ever obtain a judgment against the tortfeasor, allowing the insurer to escape

liability based on the insured’s failure to do so would defeat the intent and purpose

of Georgia’s Uninsured Motorist Act. Id. at 879.

      Unlike in Tinsley, however, the tortfeasor in the instant case was entitled to

only partial sovereign immunity, so it was not impossible for the insured party to

ever obtain a judgment against it. The district court stated that it “[found] Tinsley

persuasive and extend[ed] its sound reasoning to tortfeasors who are partially

protected by sovereign immunity.” However, neither the Georgia Supreme Court

nor the Georgia Court of Appeals has addressed this situation, and this appeal

therefore hinges on an issue of Georgia law for which no clear, controlling

precedent exists.

      “When substantial doubt exists about the answer to a material state law

question upon which the case turns, a federal court should certify that question to

the state supreme court in order to avoid making unnecessary state law guesses and

to offer the state court the opportunity to explicate state law.” Forgione v. Dennis

Pirtle Agency, Inc., 93 F.3d 758, 761 (11th Cir. 1996). We conclude that this is an

appropriate step to take in the instant case. Accordingly, pursuant to O.C.G.A.

§ 15-2-9(a), we respectfully certify the following question to the Supreme Court of

Georgia:

      Can an insured party recover under an uninsured-motorist insurance
      policy providing that the insurer will pay sums “the insured is legally

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      entitled to recover as compensatory damages from the owner or driver
      of an uninsured motor vehicle” despite the partial sovereign immunity
      of the tortfeasor?

Our phrasing of this question is merely suggestive and does not restrict the scope

of the Court’s inquiry. Amend v. 485 Props., LLC, 409 F.3d 1288, 1289 (11th Cir.

2005). To assist the Court’s consideration, the entire record, together with the

parties’ briefs, shall be transmitted herewith to the Supreme Court of Georgia.

      QUESTION CERTIFIED.




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