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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 93-5635
Summary Calendar
_______________
HOME INSURANCE COMPANY,

Plaintiff-Appellant,
VERSUS
DAVID F. TOWNSEND,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
(April 27, 1994)
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:
The plaintiff, Home Insurance Company ("Home"), filed this
action on the basis of diversity of citizenship, seeking rescis-
sion of professional liability policies on the ground that the
defendant, attorney David Townsend, had made misrepresentations
in his application. The company moved for summary judgment. The
district court construed the suit as one for declaratory judg-
ment, denied summary judgment, and exercised its perceived dis-
cretion to deny declaratory relief. We vacate and remand.1
1 The appellee has not filed a brief on appeal, despite notice and warn-
ing from the clerk.

In its Memorandum Ruling, the district court stated that
"Home applied to this court for declaratory relief on the issue
of coverage and duty to defend." This is error. Home plainly
asks for rescission: Count I of the complaint is entitled "Re-
scission of the 1990 Policy," and Count II is entitled "Rescis-
sion of the 1992 Policy." As its jurisdictional basis, Home men-
tions only the diversity statute, not the declaratory judgment
statute. With its complaint, Home tenders its received premiums
into the court registry and asks that the policies "should be
rescinded and should be held null and void ab initio."
The only mention of any term derived from the root word "de-
clare" is in the prayer, wherein Home "further prays that after
due proceedings are had that there be judgment herein in favor of
[Home], and against Townsend, declaring [the policies] rescinded
and made null and void ab initio, . . . and for all equitable and
general relief." (Emphasis added.) Absolutely no mention is
made of coverage or duty to defend.
Read in the context of the entire complaint, the word "de-
claring" cannot reasonably be interpreted as transforming this
case from a diversity action to rescind into a declaratory judg-
ment action. Accordingly, any deference, in the nature of abuse
of discretion, accorded a district court in deciding whether to
entertain a declaratory judgment action does not pertain here.
Home asks that we decide the motion for summary judgment on
appeal, in the first instance. We conclude, however, that, al-
though determination of the motion may involve purely questions
2

of law, the district court should have the opportunity to rule,
unburdened by any misconception that Home seeks declaratory re-
lief. We also observe that the district court may not have ruled
on certain motions to intervene; we leave it to that court to
decide those matters, as it deems appropriate.
The judgment is VACATED, and this matter is REMANDED for
further proceedings.
3