* 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should not be published and is not precedent except under the limited circumstances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.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-60282

Summary Calendar

_______________

AMERICAN STATES INSURANCE COMPANY,

PlaintiffCounter-DefendantAppellee,

VERSUS

THE ESTATE OF EFFIE NABORS;

 LESLIE LEATHERMAN, d/b/a Quick Tune, Inc.,

and

TULLY MCCRORY,

DefendantsCounter-ClaimantsAppellants.

_________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(3:94CV179-B)

_________________________

October 9, 1996

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*
1 This case apparently was captioned with an incorrect spelling, "Nabors."

2

The Estate of Effie Neighbors,1 Leslie Leatherman (d/b/a

“Quick Tune, Inc.”), and Tully McCrory (collectively, the “defendants”) appeal a summary judgment in favor of American States

Insurance Company (“ASI”). Finding no error, we affirm.

I.

This action arises out of a wrongful death claim filed on

behalf of the heirs of Effie Neighbors against Tully McCrory,

individually and in his capacity as an employee of Quick Tune, Inc.

("Quick Tune"). It is undisputed that McCrory, while operating his

wife’s vehicle on the Quick Tune premises, negligently collided

with Neighbors as she walked across the Quick Tune parking lot,

from which collision Neighbors later died. 

ASI, the underwriter of a garage operations liability policy

for Quick Tune, brought this declaratory action to determine

whether the accident is covered under the liability policy. The

district court granted summary judgment in favor of ASI, concluding

that Neighbors’s injury did not arise from McCrory’s use of an

automobile in the insured’s garage operations or from activities

necessary or incidental to the garage business. 

II.

We review summary judgment de novo. See Hanks v. Transconti-
2 Defendants insist that, as a fringe benefit of employment, Quick Tune

permitted its employees to service their own vehicles without charge. McCrory

contends, in turn, that because he was proceeding to service the vehicle at the

time he struck Neighbors, he was acting within the scope of employment. Whether

such actions were undertaken within the scope of employment is indeed relevant

to Neighbors’s ability to seek damages from Quick Tune under the appropriate

Mississippi state law governing employer/employee responsibilities, but it does

not bear on the question of insurance coverage.

3

nental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992).

Summary judgment is appropriate "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law." FED. R. CIV. P. 56(c). 

The gravamen of defendants’ theory of coverage is that because

McCrory was acting in the scope of employment at the time Neighbors

was struck, the ASI policy should attach. But whether McCrory was

acting in the scope of employment2 is inapposite to the question of

whether ASI is responsible for the injuries; we look to the garage

operations liability policy to determine the latter.

The ASI policy covers bodily injury caused by an accident and

resulting from “garage operations” involving the ownership,

maintenance, or use of a “covered automobile.” Under the policy

terms, a “covered automobile” is one owned by an employee or member

of his household while used in the garage business. “Garage

operations” include the ownership, maintenance, or use of a

“covered automobile” and all operations necessary or incidental to

a garage business. Hence, in order for coverage to attach to the
3 See Travelers Indem. Co. v. Nix, 644 F.2d 1130, 1132 (5th Cir. Unit B May

1981):

It is quite apparent that the parties in contracting for this insurance

policy did not contemplate anything other than what the policy plainly

intends: coverage for liability arising out of the conduct of the

business, or incidental to the business. . . . The policy does not

provide coverage for personal liability arising from personal matters

and cannot be extended to provide coverage for such liability. 

It is also important to note that we do not intend, by our use of the term

“personal liability,” to hinge our decision on the contested fact issue of whether

McCrory was “on the clock” or on his personal time (intending to pick up some maps

for his impending hunting trip) when he hit Neighbors. Rather, we use the term

“personal” in contrast to activities that are incidental or necessary to the garage

business. 

4

accident, McCrory’s wife’s car must have been “used in the garage

business” or “necessary or incidental to a garage business.”

Defendants posit that Quick Tune’s permitting its employees to

service their own cars free of charge, which McCrory alleges that

he was intending to do when he negligently backed over Neighbors,

is sufficient to show that the car was used or was necessary or

incidental to the garage business. Without any legal citation,

defendants proffer a rule that actions of Quick Tune employees from

which it receives benefitSShere, the purported employee recruitment

advantages and skill development opportunities attendant to the

policy of allowing employees to service their cars without

chargeSSevince use in, or necessary or incidental to, the garage

business. 

Such a rule, however, would strain the plain and ordinary

meaning of the language of the policy, bringing within its ambit

activities that the parties did not, at the time of contracting,

contemplate or intend to include.3 In contrast, were the benefits
4 Because we affirm summary judgment after a de novo review of the record,

we need not reach defendants’ second issue on appeal, which is that the district

court abused its discretion in denying their motion for reconsideration of

summary judgment.

5

conferred upon Quick Tune a result of a condition of

employmentSSi.e., if Quick Tune required its employees to shore up

their mechanical skills by practicing on their own carsSSdefendants’ proposed rule might be limited appropriately in

scope. Because we conclude that the district court properly

determined that as a matter of law McCrory’s use of his wife’s

automobile at the time he struck Neighbors was not a garage

business use or incidental or necessary to a garage business, we

affirm.4

III.

Defendants next contend that this action should be dismissed

as to all parties because the Estate of Neighbors did not receive

service of process within 120 days of ASI’s filing suit. See FED.

R. CIV. P. 4(j). ASI does not contest its failure to meet the 120-

day requirement but notes that the Estate filed an answer in

September 1995 in which it did not assert defect in service as a

defense. Under FED. R. CIV. P. 12(h)(1)(B), the defense of

insufficient service of process is waived unless made in a party’s

first responsive pleading or an amendment thereto allowed as a

matter of course. See Kersh v. Derozier, 851 F.2d 1509, 1511 (5th

Cir. 1988).
6

Finally, defendants challenge the grant of their own motion to

sever the Estate from these proceedings on the ground that the

Estate was not a necessary party. Defendants expressly requested

such action of the district court, and the court complied, so

defendants may not complain. See Tel-phonic Serv., Inc. v. TBS

Int’l, Inc., 975 F.2d 1134, 1137 (5th Cir. 1992). 

AFFIRMED.