             IN THE UNITED STATES COURT OF APPEALS

                                FOR THE FIFTH CIRCUIT
                                             _______________

                                               m 01-60492
                                             _______________



                      NATIONWIDE MUTUAL FIRE INSURANCE COMPANY,

                                                               Plaintiff-Appellee,

                                                  VERSUS

            SCOFIELD C. BERTHELOT; JANICE BERTHELOT; TIMOTHY WAAGA,
                          AND ANDREA MARIE WOODCOCK,
                      BY AND THROUGH HER CONSERVATRIX, JANICE BERTHELOT,


                                                               Defendant-Appellant.


                                      _________________________

                              Appeal from the United States District Court
                                for the Southern District of Mississippi
                                    _________________________
                                          (1:00-CV-94-BrR)
                                           March 28, 2002



Before REAVLEY, SMITH, and DENNIS,                        Nationwide Mutual Fire Insurance Com-
  Circuit Judges.                                      pany (“Nationwide”) brought a declaratory
                                                       judgment action to uphold the validity and ap-
PER CURIAM:*                                           plication of an insurance clause; the clause ex-
                                                       cluded coverage for bodily injuries suffered by
                                                       relatives who live in the insured’s household.
                                                       The district court excluded expert testimony
   *
     Pursuant to 5TH CIR. R. 47.5, the court has       on what Mississippi state insurance law should
determined that this opinion should not be pub-        be and, instead, followed Mississippi State
lished and is not precedent except under the limited   Supreme Court cases upholding family house-
circumstances set forth in 5TH CIR. R. 47.5.4.         hold exclusions. Finding no error, we affirm.
                       I.                                  Nationwide defend him.
   In August 1999, Andrea Woodcock, the
daughter of Scofield C. and Janice Berthelot,                  Based on diversity jurisdiction, Nationwide
suffered injuries when Timothy Waaga crashed               filed the instant declaratory judgment against
a boat into another boat operated by Donald                Scofield Berthelot, Janice Berthelot, Waaga,
Snyder. Janice Berthelot held the title to                 and Woodcock, requesting the court to declare
Waaga’s boat and had given him permission to               the defendants ineligible for coverage. After a
use it.                                                    bench trial, the court found that the policy
                                                           excluded coverage for Woodcock’s bodily in-
    Nationwide insured the boat under a policy             juries and ruled that Nationwide did not have
issued to the Berthelots in 1976. The policy,              an obligation to defend Waaga, should not pay
however, did not cover family members who                  any judgments rendered against Waaga, and
live in the household and suffer bodily                    should not pay any claims by Woodcock
injuries.1 At the time of the accident,                    against Waaga.
Woodcock had resided at the Berthelot
household since April 1999 to assist her                                           II.
mother in caring for her father after his heart               John Kornegay testified that he believed the
surgery. Woodcock maintained a trailer on                  Mississippi Supreme Court should strike down
their property, which she sometimes slept in.              the family household exclusion; he averred that
She had a separate post office box where she               the state’s abrogation of interspousal immunity
received most of her mail. She belonged to                 logically requires invalidating family household
travel and camping clubs that entitled her to              exclusion clauses. The district court excluded
park her trailer and reside at various parks and           the evidence under FED. R. EVID. 702 because
camping areas for extended periods of time.                it would not “assist the trier of fact.” We
                                                           review a decision to admit or exclude expert
   After the accident, Janice Berthelot sued               testimony for abuse of discretion.2 The party
Waaga in state court         for negligence,               asserting error must prove “substantial
requesting compensatory and punitive                       prejudice.” Kona Tech. Corp. v. S. Pac.
damages. The Berthelots made claims under                  Transp. Co., 225 F.3d 595, 602 (5th Cir.
their homeowner’s insurance policy for                     2000).
Woodcock’s injuries. Waaga requested that
                                                             We do not need to delve into subtle
                                                           questions about the admissibility of expert
   1
     The policy begins by defining the term “in-
sured” with reference to family members sharing a
residence:

                                                              2
         “‘Insured’ means you and the following                 Gen. Elec. Co. v. Joiner, 522 U.S. 136, 136
   who live in your household: a. your                     (1997) (“We have held that abuse of discretion is
   relatives.”                                             the proper standard of review of a district court’s
                                                           evidentiary rulings.”); Waco Int’l, Inc. v. KHK
   The policy then contains the following                  Scaffolding Houston, Inc., 278 F.3d 523, 528 (5th
exclusion: “2. Coverage ESSPersonal liability does         Cir. 2002) (“Review of a district court’s admission
not apply to: . . .f. bodily injury to an insured as       or exclusion of evidence is for abuse of
defined in definitions 3a and 3b.”                         discretion.”) (citation omitted).

                                                       2
testimony on legal matters.3 The district court             state law de novo. Doddy, 101 F.3d at 461.
correctly decided to reject Kornegay’s
testimony for the simple reason that it would                                     A.
not “assist the trier of fact.” See FED. R. CIV.               Courts should give effect to a “clear and
P. 702. The district court and we are bound to              unambiguous” insurance policy or contract,
follow the Mississippi Supreme Court’s                      Universal Underwriters Ins. Co. v. Ford, 734
existing precedent, Doddy v. Oxy, USA, Inc.,                So. 2d 173, 176 (Miss. 1999), and should con-
101 F.3d 448, 461 (5th Cir. 1996), so it is                 strue ambiguous or unclear terms against the
useless for an expert to speculate on what that             drafter of the contract, usually the insurance
court should in fact do, United States v. Nine              company, State Farm Mut. Auto. Ins. Co. v.
Million Forty-One Thousand Five Hundred                     Scitzs, 394 So. 2d 1371, 1372-73 (Miss.
Ninety-Eight Dollars and Sixty-Eight Cents,                 1981). An insurance policy is ambiguous if
163 F.3d 238, 255 (5th Cir. 1999).                          people can reasonably subject it to more than
                                                            one interpretation. Universal Underwriters,
                      III.                                  394 So. 2d at 176.
   Nationwide’s policy excludes coverage for
bodily injury suffered by relatives who live in                Berthelot admits that the policy excludes
the insured’s household. The district court                 coverage for relatives living in his household
found that this family household exclusion                  but argues, first, that Woodcock lived in the
prevents Woodcock from recovering and that                  house only temporarily, and, second, that the
the Mississippi Supreme Court would consider                policy’s failure to distinguish between
the family household exclusion valid and                    temporary and permanent residence is
consistent with public policy. Berthelot argues             ambiguous. Both arguments lack merit.
that the court erred by concluding that
Woodcock fell within the exclusion and that                     Berthelot explains that Woodcock planned
the family household exclusion violates                     to stay only until he recovered from surgery.
Mississippi public policy.                                  She sometimes slept in a travel trailer, she
                                                            rented a post office box, and she maintained
   When sitting in diversity, federal courts                travel memberships. Despite all of these facts,
have an obligation to apply state law as                    even Berthelot admits that Woodcock lived
interpreted by the highest court in the state.              with the Berthelots. The policy applies to all
Doddy, 101 F.3d at 461. If the state supreme                relatives living in the household, and
court has not decided an issue, we should                   Woodcock lived in their household at the time
make an Erie guess by predicting what that                  of the accident. Berthelot does not point to
court would do. Washington v. Dep’t of                      any Mississippi law that would cabin the clause
Transp., 8 F.3d 296, 299-300 (5th Cir. 1993).               to temporary rather than permanent residents.
We review the district court’s interpretation of
                                                               When asked to define similar terms like
                                                            “household resident” in other insurance
   3
     Experts can only testify about legal issues tied       coverage disputes, Mississippi courts have
to factual disputes and subsidiary to the                   adopted a broad definition. For example, a
factfinder’s ultimate question. C.P. Interests, Inc.        college child away at school still resides with
v. Cal. Pools, Inc., 238 F.3d 690, 699 (5th Cir.            both of his adult parents. Aetna Cas. and Sur.
2001).                                                      Co. v. Williams, 623 So. 2d 1005, 1009-10

                                                        3
(Miss. 1993).      Adult married children              valid.4
“temporarily staying” at their parents’ homes
also count as residents for the purpose of                The abrogation of spousal and family im-
insurance coverage. Johnson v. Preferred               munity does not compel the Mississippi
Risk Auto. Ins. Co., 659 So. 2d 866, 872-75            Supreme Court to overrule Thompson and
(Miss. 1995). Finally, a child over whom               Perry. The abrogation of immunity eliminated
divorced parents have custody still resides with       a mandatory, judicial barrier to tort remedies
her mother as she drives the child to enter her        among family members. Ales, 650 So. 2d at
father’s custody. Thompson v. Miss. Farm               485-86; Glascox, 614 So. 2d at 911; Burns,
Bureau Mut. Ins. Co., 602 So. 2d 855, 856-57           518 So. 2d at 1211. Thompson and Perry
(Miss. 1992).                                          rested on the freedom of strangers, the
                                                       insurance company and insured, to define the
   In these cases, expanding the definition of         scope of their contractual liabilities ex ante.
resident expanded the scope of coverage, but           Thompson, 602 So. 2d at 857-58; Perry, 170
under Berthelot’s policy, expanding the                So. 2d at 630. Although the Mississippi
definition of “insured,” would, in most cases,         Supreme Court has decided that family
reduce the scope of coverage. We see no                immunities cannot bar suit for unforeseen
reason, however, why that should matter.               accidents and unanticipated losses, this does
                                                       not logically require prohibiting family
                       B.                              members and insurers from limiting the scope
   The Bartholets argue the Mississippi                of coverage contractually.
Supreme Court would find the family
household exclusion clause invalid because                AFFIRMED.
that court has abrogated the doctrines of
parental and spousal immunity, Ales v. Ales,
650 So. 2d 482 (Miss. 1993) (parents suing
child); Glascox ex rel. Denton v. Glascox, 614
So. 2d 906 (Miss. 1993) (child suing parent);
Burns v. Burns, 518 So. 2d 1205 (1988) (wife
suing parent). The Bartholets, however,
cannot point to a single court that has applied
Mississippi law to invalidate a family
household exclusion.
                                                          4
                                                            Warren v. United States Fidelity & Guar.
   The Mississippi Supreme Court has twice             Co., 797 So. 2d 1043, 1045-46 (Miss. Ct. App.
upheld the validity of these exclusions,               2001) (applying family household exclusion and
                                                       refusing to adopt strained interpretation because of
emphasizing that the insurer and insured
                                                       public policy); Atlanta Cas. Co. v. Powell, 83
should have the contractual freedom to alter
                                                       F. Supp.2d 749, 751 (N.D. Miss. 1999)
the scope of coverage. Thompson, 602 So. 2d            (explaining validity of exclusion clause); Amer.
at 857-58; Perry v. S. Farm Bureau Cas. Ins.           Fire & Indem. Co. v. Scottsdale Ins. Co., No.
Co., 170 So. 2d 628, 630 (Miss. 1965). Every           198CV258, 2000 WL 991626, *1 (N.D. Miss.
other court that has applied Mississippi law to        June 26, 2000) (unpublished) (noting that parties
family household exclusions has found them             agreed that exclusionary language is “valid and
                                                       enforceable”).

                                                   4
