*Circuit Judge of the Second Circuit, sitting by

designation. 

1

United States Court of Appeals,

Fifth Circuit.

No. 93-7100.

UNITED STATES FIRE INSURANCE CO., Plaintiff-Counter DefendantAppellant, Cross-Appellee,

v.

CONFEDERATE AIR FORCE, Defendant-Third Party Plaintiff-Counter

Claimant-Appellee, Cross-Appellant,

v.

AVIATION OFFICE OF AMERICA, Third Party Defendant-Appellant,

Cross-Appellee.

March 15, 1994.

Appeals from the United States District Court for the Southern

District of Texas.

Before VAN GRAAFEILAND,* SMITH and WIENER, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

United States Fire Insurance Company ("U.S. Fire") and

Aviation Office of America, Inc. ("AOA") appeal from a final

judgment awarding Confederate Air Force ("CAF") $2,047,500,

representing interest, attorney's fees and damages arising out of

the alleged misrepresentation of coverage provided in a U.S. Fire

aircraft insurance policy issued to CAF. Although the judgment was

entered against AOA, U.S. Fire's aviation insurance manager, the

parties and the court below treated U.S. Fire and AOA as "one

entity," and the judgment so provided. CAF cross-appeals from that

part of the judgment that "discounted" $1,000,000 from the original
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award of $3,047,500, because of U.S. Fire's payment of $1,000,000

to CAF pursuant to a settlement agreement, which provided for

repayment of the $1,000,000 if that amount was found to be in

excess of the policy limits. We vacate the judgment in its

entirety and remand to the district court with instructions to

enter judgment in favor of U.S. Fire and against CAF in the amount

of $1,000,000 plus interest and attorney's fees as provided in the

settlement agreement, together with the costs of this appeal.

CAF is a Texas corporation which maintains a "flying museum"

of over 100 vintage aircraft used in displays and air shows. Prior

to 1984, CAF insured its aircraft under a policy issued by American

Continental Insurance Company through its managing agent Southern

Aviation Insurance Group (the "SAIG policy"). The SAIG policy

provided CAF with "Single Limit Bodily Injury and Property Damage"

coverage of $1,000,000 per "occurrence." However, it contained a

recovery sublimit of $100,000 per passenger for bodily injuries.

Dissatisfied with the passenger sublimit restriction in the SAIG

policy, CAF decided to replace it with a policy omitting that

limitation.

In early 1984, John Allen, an agent who procured insurance for

CAF, and Richard Post, an underwriter for AOA, discussed the

possibility of acquiring a policy from U.S. Fire. Allen furnished

Post with a copy of the SAIG policy and told him that CAF desired

the same kind of coverage without the passenger sublimit. Post

agreed to provide CAF with single combined limit coverage of

$1,000,000 per aircraft with no sublimits under U.S. Fire's
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"SuperPlain" aircraft policy. Post notified Allen over the

telephone that coverage of CAF's fleet under the U.S. Fire policy

commenced on September 17, 1984.

On October 13, 1984, a PBY-6 Catalina aircraft owned by CAF

crashed into Laguna Madre, killing seven passengers and severely

injuring three others. At the time of the crash, an AT-6 aircraft,

also owned by CAF, was flying near the PBY-6. A passenger aboard

the AT-6 was photographing the PBY-6 in flight. The AT-6 pilot

requested the pilot of the PBY-6 to fly closer to the water so that

the AT-6 could obtain better photographs. However, the AT-6 did

not perform any maneuver that caused the crash, which, absent any

plane defect, was caused by error on the part of the PBY-6 pilot.

The U.S. Fire policy was delivered to Allen in November 1984.

Allen read the policy and, with the exception of a policy

endorsement unrelated to the instant case, believed it provided the

coverage he had requested. The policy stated in relevant part:

6. COVERAGES AND LIMITS OF LIABILITY: The most we will pay

under each coverage we provide is shown below for each aircraft....

LIABILITY TO OTHERS:

...

D. Single Limit

Bodily Injury

Property Damage

Including Pass[engers]

each occurrence $1,000,000

In September 1985, representatives of the families of injured

or deceased passengers received letters from CAF indicating that
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the U.S. Fire policy provided total coverage of only $1,000,000.

Neither Allen nor CAF raised the question whether the U.S. Fire

policy might provide coverage in excess of $1,000,000 until a

lawyer for one of the families pointed out in October 1985 that

another covered aircraft, the AT-6, was present when the PBY-6

crashed. Although U.S. Fire disputed the existence of coverage in

excess of $1,000,000, it agreed to settle the claims of the

victims' families for a total payment of $2,000,000. However, in

the settlement agreement U.S. Fire reserved the right to litigate

with CAF the coverage dispute regarding the additional $1,000,000

payment.

In February 1986, U.S. Fire sued CAF in the United States

District Court for the Southern District of Texas seeking a

declaratory judgment that it was liable for no more than $1,000,000

as a result of the Laguna Madre crash and that CAF was obligated to

repay it $1,000,000 plus interest and attorney's fees pursuant to

the terms of the settlement agreement. U.S. Fire moved for summary

judgment. In a memorandum and order dated August 5, 1987, the

district court granted U.S. Fire's motion, holding that there had

been only one "occurrence" and that "occurrence" involved only one

aircraft, the PBY-6. The court ordered CAF to pay U.S. Fire

$1,000,000 plus prejudgment interest and attorney's fees.

Before judgment was entered, however, the district court

permitted CAF to amend its pleadings to assert a counterclaim

against U.S. Fire and third-party claims against AOA, Allen and

Allen's company, Falcon Insurance Agency, for misrepresentation of
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insurance coverage in violation of the Texas Deceptive Trade

Practices Act ("DTPA"), Tex.Bus. & Com.Code Ann. §§ 17.41 et seq.,

and the Tex.Ins.Code Ann. art. 21.21, § 16. Although CAF

subsequently withdrew its claims against Allen and Falcon Insurance

Agency, the claim against U.S. Fire and AOA, which the parties

treated as one entity, went to trial. At the close of CAF's

evidence, U.S. Fire and AOA moved for a directed verdict. The

district court deferred ruling on the motion, stating it would

"just carry [the motion] along." In a special verdict, the jury

found that Richard Post, an agent of AOA, knowingly had

misrepresented the coverage provided CAF in the U.S. Fire policy

and that this misrepresentation was the producing cause of damages

to CAF.

The district court denied U.S. Fire and AOA's motion for

judgment notwithstanding the verdict. The judgment thereafter

entered held AOA liable for $3,047,500, representing CAF's actual

and trebled damages, prejudgment interest and attorney's fees.

This figure then was "discounted" in the judgment by the $1,000,000

that U.S. Fire had paid in excess of its policy limits.

THE POLICY LIMITS

In evaluating a district court's decision to grant summary

judgment, we review the record under the same standards that guided

the district court. See Walker v. Sears, Roebuck & Co., 853 F.2d

355, 358 (5th Cir.1988). We review questions of law de novo, see

Moore v. Eli Lilly & Co., 990 F.2d 812, 815 (5th Cir.), cert.

denied, --- U.S. ----, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993), and
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we affirm the grant of summary judgment only if there are no

genuine issues of material fact and the moving party is entitled to

judgment as a matter of law, see Celotex Corp. v. Catrett, 477 U.S.

317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Ranger

Ins. Co. ex rel. Bernstein v. Estate of Mijne, 991 F.2d 240, 243

(5th Cir.1993). The district court correctly held that the above

requirements were met in the instant case.

The U.S. Fire policy's definition of occurrence, so far as

pertinent, is "a sudden event ... involving the aircraft ...

neither expected nor intended by you, that causes bodily injury ...

to others...." The district court interpreted the word

"occurrence" as "the occurrence of the event or incident for which

CAF was liable, namely the crash of the PBY-6 aircraft." The

parties had stipulated that the AT-6 plane did not perform any

maneuver which caused the crash. The request by the AT-6 pilot

that the PBY-6 pilot fly somewhat lower so that a better picture

could be taken was not a "sudden event involving the [AT-6]" within

the policy coverage of that plane. In other words, it was not an

"occurrence" involving the AT-6 within the plain meaning of the

policy.

Under Texas law, an unambiguous insurance policy, like any

other contract, will be enforced as written. Upshaw v. Trinity

Companies, 842 S.W.2d 631 (Tex.1992); Melton v. Ranger Ins. Co.,

515 S.W.2d 371, 373 (Tex.Civ.App.—Fort Worth 1974, writ ref'd

n.r.e.). Under the plain and unambiguous meaning of the U.S. Fire

policy, the "occurrence" that caused the injuries and damages in
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the instant case was the crash of the PBY-6 into the water.

Insofar as the AT-6 was concerned, this was not an occurrence. See

Maurice Pincoffs Co. v. St. Paul Fire & Marine Ins. Co., 447 F.2d

204, 206 (5th Cir.1971). The district court did not err in

granting U.S. Fire's motion for summary judgment.

THE DECEPTIVE TRADE PRACTICES AWARD

At the outset, we hold that pursuant to this Court's liberal

and equitable interpretation of Fed.R.Civ.P. 50(b), U.S. Fire

preserved its right to challenge the sufficiency of CAF's evidence.

See Davis v. First Nat'l Bank, 976 F.2d 944, 948-49 (5th Cir.1992),

cert. denied, --- U.S. ----, 113 S.Ct. 2341, 124 L.Ed.2d 251

(1993); Merwine v. Board of Trustees, 754 F.2d 631, 634-35 (5th

Cir.), cert. denied, 474 U.S. 823, 106 S.Ct. 76, 88 L.Ed.2d 62

(1985). We therefore have considered the merits of U.S. Fire's

motion for judgment n.o.v. and conclude that it should have been

granted.

Since the seminal case of Boeing Co. v. Shipman, 411 F.2d

365, 374 (5th Cir.1969) (en banc), we have followed its teachings

in deciding when a case should be taken from the jury. We there

said that "[i]f the facts and inferences point so strongly and

overwhelmingly in favor of one party that the Court believes that

reasonable men could not arrive at a contrary verdict, granting of

the motion[ ] is proper." We added: "A mere scintilla of evidence

is insufficient to present a question for the jury." Id. For

later consistent holdings, see Love v. King, 784 F.2d 708, 710 (5th

Cir.1986); Mack v. Newton, 737 F.2d 1343, 1351 (5th Cir.1984);
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Ford v. General Motors Corp., 656 F.2d 117, 119 (5th Cir.1981).

Viewed in the light of these teachings, U.S. Fire's motion for

judgment n.o.v. should have been granted.

 In order to find misrepresentation in the instant case, the

jury would have had to find either that U.S. Fire represented that

CAF would receive a particular kind of policy that it did not

receive or that it denied coverage against loss under specific

circumstances that it previously had represented would be covered.

See Parkins v. Texas Farmers Ins. Co., 645 S.W.2d 775, 776-77

(Tex.1983); Employers Casualty Co. v. Fambro, 694 S.W.2d 449, 452

(Tex.App.—Eastland 1985, writ ref'd n.r.e.). As to the first

issue, there is no question but that CAF received the policy it

requested. It wanted a policy similar to the SAIG policy it

already had, but without the $100,000 per passenger limitation on

liability. That is what it received. Moreover, with regard to the

definition of "occurrence" which is the pivotal issue in this case,

the definitions in the two policies are substantially the same.

That is what CAF's expert, Gary Beck, said and no witness disputed

it. Neither does this Court.

Q And, as we discussed earlier, the definition of

occurrence is something you would normally find in an aviation

insurance contract, right?

A Yes.

Q That is something that you would expect?

A Yes.

Q And there is one also in the AOA policy that is at Item

No. M here and on this one it is No. 3 here?

A Yes.
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Q Right? Now we have the Southern Aviation one

reproduced here and we have already had this identified. I

would like for you to look again if you would, please, at the

substance of the definition of occurrence in the Southern

policy, the substance of the definition of occurrence in the

AOA policy, and tell me whether they are substantively the

same?

A I think they are substantively the same.

Gary Beck—Cross, TR 296.

CAF attempts to frame the issue of misrepresentation as if a

statement that each of its planes had $1,000,000 in coverage was

false. Such a statement, if made, was not false. Each plane did

have $1,000,000 in coverage. Coverage, as that word generally is

used in reference to insurance contracts, refers to the aggregate

or sum of the risks covered by the policy. See D'Angelo v. Cornell

Paperboard Prods. Co., 59 Wis.2d 46, 207 N.W.2d 846, 849 (1973);

Webster's Third New International Dictionary at 525. It does not

identify the risks that are covered. To say, therefore, that plane

AT-6 had $1,000,000 in coverage does not mean that a total of

$1,000,000 would be paid to those who make a claim of any nature

against the company. The money is available only for the risks

insured against, in this case the happening of an occurrence, a

"sudden event involving the [AT-6] neither expected nor intended by

[CAF]."

During the discussions between Post and Allen that preceded

the Laguna Madre crash, which is the only period during which any

misrepresentation by Post could have affected CAF adversely, Post

and Allen never discussed how the terms of the policy would apply

to hypothetical circumstances involving CAF aircraft. Certainly,
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no discussion ever was had concerning a hypothetical accident

anything like the unusual one at issue herein. The district court

erred as a matter of law in denying U.S. Fire's motion for judgment

notwithstanding the verdict.

The judgment of the district court is VACATED. The matter is

REMANDED to the district court with instructions to enter judgment

in favor of U.S. Fire and against CAF in the amount of $1,000,000

plus interest and attorney's fees as provided in the settlement

agreement, together with the costs of this appeal.