Brewer v. Natl Indemnity Co , 413 F.3d 429 ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LEONA BREWER, as Personal 
Representative of the Estate of
EDWARD ROSE, deceased,
Plaintiff-Appellant,
v.
NATIONAL INDEMNITY COMPANY, a
Nebraska Corporation; W. E.
KINGSLEY COMPANY, a Kentucky
Corporation,
Defendants-Appellees,
and
JOE MAYNARD; NORMA JEAN
MAYNARD and GREGORY MAYNARD,  No. 03-1531
d/b/a Maynard’s Wrecker Service;
DENISE M. GAUZE, as Executrix of
the Estate of HERBERT MAYNARD,
d/b/a Maynard’s Used Auto Parts;
JOE A. YOUNG; JOE A. YOUNG
INSURANCE AGENCY, INC., a Kentucky
Corporation; DEBORAH L. HANSHAW,
Defendants,
and
NATIONWIDE MUTUAL INSURANCE
COMPANY; EMILY HOWELL; MANUUEL
ROSE; RHONDA MESSER,
Parties in Interest.

2 BREWER v. NATIONAL INDEMNITY CO.
LEONA BREWER, as Personal 
Representative of the Estate of
EDWARD ROSE, deceased,
Plaintiff-Appellant,
v.
NATIONAL INDEMNITY COMPANY, a
Nebraska Corporation; W. E.
KINGSLEY COMPANY, a Kentucky
Corporation,
Defendants-Appellees,
and
JOE MAYNARD; NORMA JEAN
MAYNARD and GREGORY MAYNARD,  No. 03-1696
d/b/a Maynard’s Wrecker Service;
DENISE M. GAUZE, as Executrix of
the Estate of HERBERT MAYNARD,
d/b/a Maynard’s Used Auto Parts;
JOE A. YOUNG; JOE A. YOUNG
INSURANCE AGENCY, INC., a Kentucky
Corporation; DEBORAH L. HANSHAW,
Defendants,
and
NATIONWIDE MUTUAL INSURANCE
COMPANY; EMILY HOWELL; MANUUEL
ROSE; RHONDA MESSER,
Parties in Interest.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
Elizabeth V. Hallanan, Senior District Judge.
(CA-02-48-2)
Argued: January 22, 2004
Decided: June 30, 2005
BREWER v. NATIONAL INDEMNITY CO. 3
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by published opinion. Judge King wrote the
opinion, in which Judge Motz and Judge Duncan joined.
COUNSEL
ARGUED: Jennifer Sue Fahey, BAILEY & GLASSER, LLP,
Charleston, West Virginia, for Appellant. Anita Rose Casey, MAC-
CORKLE, LAVENDER, CASEY & SWEENEY, PLLC, Charleston,
West Virginia, for Appellees. ON BRIEF: Brian A. Glasser, BAI-
LEY & GLASSER, LLP, Charleston, West Virginia, for Appellant.
OPINION
KING, Circuit Judge:
In this diversity action, Leona Brewer, the Administratrix of the
Estate of Edward Rose, deceased, has appealed the dismissal of her
complaint against National Indemnity Company and W. E. Kingsley
Company (collectively, "National Indemnity"). The district court for
the Southern District of West Virginia concluded that, because Rose
lacked privity with National Indemnity, Brewer lacked standing, as
Administratrix, to pursue her claim against National Indemnity for the
negligent breach of its duty to provide minimum commercial liability
insurance coverage to its insured. See Brewer v. Maynard, No. 118
Civ. 2:02-0048 (S.D. W. Va. Mar. 28, 2003).
By our earlier Order of Certification to the Supreme Court of Ken-
tucky, we found the law of Kentucky applicable to the issue of
whether Brewer possesses standing to sue National Indemnity on the
foregoing claim. See Brewer v. Nat’l Indem. Co., 363 F.3d 333, 339
(4th Cir. 2004). As spelled out in our Order of Certification, however,
we were "unable to identify any controlling precedent," under Ken-
tucky law, on whether Brewer could maintain her claim against
4 BREWER v. NATIONAL INDEMNITY CO.
National Indemnity in the circumstances of this case. Id. at 340.
Accordingly, after outlining the relevant facts and the nature of the
controversy, we certified to the Supreme Court of Kentucky, pursuant
to Kentucky Rule of Civil Procedure 76.37 (entitled "Certification of
question of law"), the following question of law:
[w]hether a fiduciary may maintain an action against an
insurer for negligently underinsuring its insured, where the
fiduciary, the insurer, and the insured have executed an
agreement in which:
(1) the fiduciary settled a wrongful death claim
against the insured for the maximum limit of
the insurance policy, which the insurer
agreed to pay to the fiduciary in consider-
ation for the insured’s release;
(2) the insured assigned to the fiduciary the right
to pursue its claim that the insurer negli-
gently underinsured its insured; and
(3) the insurer agreed to litigate with the fidu-
ciary the claim that it negligently underin-
sured its insured.
Id.The Supreme Court of Kentucky, in the exercise of its discretion,
accepted our certified question of law and has now answered it in the
affirmative. See Brewer v. Nat’l Indem. Co., No. 2004-SC-000270-
CL, ___ S.W.3d ___ (Ky. May 19, 2005). As spelled out therein, the
Court determined, inter alia, that National Indemnity was a party to
the settlement agreement between the insureds and Brewer, and that
Brewer would not have agreed to the release had National Indemnity
not agreed to "further litigate the validity of the claims that were
assigned." Id. at ___. The Court thus held that "Brewer is entitled to
maintain her action against National Indemnity to determine whether
it negligently underinsured" its insured. Id. at ___.
BREWER v. NATIONAL INDEMNITY CO. 5
In view of, and having adopted, the Supreme Court of Kentucky’s
published opinion of May 19, 2005, answering our certified question
of law in the affirmative, we vacate the judgment of the district court
and remand for such other and further proceedings as may be appro-
priate.
VACATED AND REMANDED