UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-60050

KADE MASCARELLA,

Plaintiff-Appellant,

versus

UNITED STATES FIDELITY AND GUARANTY COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Mississippi (98-CV-289)

February 24, 2003

Before BARKSDALE and BENAVIDES, Circuit Judges, and VELA1, District Judge.

PER CURIAM:2

For this diversity action, at issue was a determinative, but

as of then unanswered, question of Mississippi law. On 30 October

2000, by unpublished opinion, we certified that question to the

Mississippi Supreme Court: “Under Mississippi law, is an injured

insured entitled to stack the underinsured motorist coverage of

1 Senior District Judge of the Southern District of Texas, sitting by designation. 2 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. other vehicles covered under his fleet policy thereby making the

third-party tortfeasor’s vehicle an underinsured motor vehicle?”

The Mississippi Supreme Court accepted our certification and

rendered an en banc opinion on 22 October 2002, with rehearing

denied on 2 January 2003. Masceralla v. United States Fidelity and

Guaranty Co., No. 2000-FC-01838-SCT (Miss. 2002), reh’g denied, 2

January 2003. The Mississippi Supreme Court answered: a fleet

policy owner may stack the underinsured motorist coverage of other

vehicles; in this case, however, because the insurance policy was

owned by Mascarella’s employer, Mascarella cannot stack the

coverage. Id. at 9-10.

Accordingly, the summary judgment awarded United States

Fidelity and Guaranty Company is AFFIRMED, and this matter is

REMANDED to district court for any additional proceedings,

consistent with this opinion, as may be required.

AFFIRMED; REMANDED

2