               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                       _______________________

                             No. 98-30786
                       _______________________



             NORTH AMERICAN CAPACITY INSURANCE COMPANY,

                                                       Plaintiff-Appellant,

                                    v.

                BRISTER’S THUNDER KARTS INC; ET AL,
                                                       Defendants,

BRISTER’S THUNDER KARTS, INC.; KARTS INTERNATIONAL, INC.; PALOMAR
   INSURANCE CORPORATION; AMERICAN MARKETING CENTER S.E., INC.

                                                       Defendants-Appellees.

_________________________________________________________________

            Appeal from the United States District Court
                for the Eastern District of Louisiana

                           (97-CV-330)
_________________________________________________________________

                               June 16, 1999

Before DeMOSS and PARKER, Circuit Judges, and LAKE,* District
Judge.


PER CURIAM:*

            North American Insurance Company appeals the district

court’s summary judgments granted in favor of the appellees,

Brister’s   Thunder   Karts,    Inc.,    and   Karts    International,   Inc.


    *
     District Judge of the Southern District of Texas, sitting by
designation.
     *
      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this opinion should not be published and is not precedent except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.
(Brister); Palomar Insurance Corporation (Palomar); and American

Marketing Center S.E., Inc. (AMC).         At the crux of this appeal is

North American’s argument that appellees intentionally omitted

information about Brister’s claim history and that those alleged

omissions were material.

      North American premised its claim against Brister on an

October 7, 1994, letter written by Charles Brister in response to

a   request   from   Palomar   to   describe   Brister’s    claim    history.

Brister’s letter mentioned two lawsuits and omitted two lawsuits.
The district court concluded that Brister was entitled to summary

judgment because Brister’s letter was written a year before North

American insured Brister, because the letter made no representa-

tions to North American, and because none of the summary judgment

evidence suggested that the omissions were intentional.

      North American alleged that Palomar breached a fiduciary duty

created by its receipt of a commission from North American and that

Palomar misrepresented Brister’s claims history.                 The district

court concluded that receipt of a commission alone did not create

a fiduciary duty.       The court analyzed the relationship between

North American and Palomar according to a number of factors and

found no fiduciary relationship between North American and Palomar.

      North   American’s   misrepresentation     claim     was   premised   on

Palomar’s failure to forward to North American Brister’s loss runs

for the preceding five years.        The district court concluded that

there was no intentional misrepresentation by Palomar and that




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North American had waived the industry standard of requiring loss

runs for the previous five years.

     North American premised its claim against AMC on its omission

of information about Brister’s claims history.              Finding that

October 11, 1995, was the latest date on which any of the alleged

omissions could have occurred, and that July 2, 1996, was the

latest date on which North American could have discovered the

alleged   omissions,   the   district   court   concluded    that   North
American’s July 11, 1997, lawsuit against AMC was time-barred by

the one-year Louisiana prescriptive period.

     After carefully considering all of North American’s arguments

we are satisfied that the rulings and judgment appealed from are

free of reversible error.    They are therefore AFFIRMED.




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