Pharmacists Mtl Ins v. Hardy

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
January 16, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 06-60562
Summary Calendar
PHARMACISTS MUTUAL INSURANCE COMPANY,
Plaintiff - Counter Defendant - Appellee,
versus
GARY HARDY, Individually and as Administrator of the Estate of
Wayne Hardy,
Defendant - Counter Claimant - Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
(1:04-CV-112)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gary Hardy challenges a declaratory judgment, denying benefits
under a commercial automobile policy issued by Pharmacists Mutual
Insurance Company (PMIC).
In September 2003, Hardy’s son was killed in an automobile
accident in Booneville, Mississippi while driving Hardy’s vehicle.
Hardy seeks $250,000 in underinsured motor vehicle benefits under
a commercial automobile policy, issued by PMIC. Following a

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September 2005 bench trial, the district court entered a
declaratory judgment in favor of PMIC.
Because federal jurisdiction is premised on diversity grounds,
we apply Mississippi substantive law. See Erie R. Co. v. Tompkins,
304 U.S. 64 (1938). In addition, “[t]he standard of review for a
bench trial is well established: findings of fact are reviewed for
clear error and legal issues are reviewed de novo”. In re Mid-
South Towing, Co., 418 F.3d 526, 531 (5th Cir. 2005) (internal
citation and quotation marks omitted). Interpretation of an
insurance policy is a question of law, reviewed de novo. Allstate
Ins. Co. v. Disability Serv. of the Southwest, Inc., 400 F.3d 260,
263 (5th Cir. 2005).
The district court ruled: Hardy’s vehicle, operated by the
decedent at the time of the accident, was not a covered vehicle
under the PMIC commercial policy; instead, it was insured under a
personal insurance policy issued by a different insurer.
Accordingly, it concluded: because the decedent was not operating
a covered vehicle at the time of the accident, there could be no
recovery under PMIC’s policy. See Crane v. Liberty Mut. Ins. Co.,
19 F.Supp. 2d 654, 659 (S.D. Miss. 1998) (“covered vehicle” is a
“vehicle insured under the liability provisions of the subject
policy”.); see also Miss. Code Ann. § 83-11-103(b) (1999). This
conclusion, not challenged by Hardy, is dispositive of this appeal.
(Hardy disputes the district court’s ruling concerning other
reasons the decedent was not an “insured” under the terms of the

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PMIC policy. Because the district court did not err in its not-
covered-vehicle ruling, we need not reach this issue.)
AFFIRMED

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