*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-60120 

Summary Calendar

_____________________

NATIONAL FIRE & MARINE INSURANCE COMPANY

Plaintiff-Appellee,

v.

CHARLES EPPS

 dba

 Ace Rental Service dba Cheppe Foods, Inc, Et al

Defendants,

MALIKAH GLOVER, Through Her Parents Gregrick and Sandra

Glover

Defendant-Appellant.

 ____________________________________________________________

Appeal from the United States District Court

for the Southern District of Mississippi

(3:96-CV-176-BN)

_________________________________________________________________

September 12, 1997

Before KING, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

Defendant-appellant Malikah Glover, through her parents

Gregrick and Sandra Glover, appeals the district court’s entry of

summary judgment in favor of plaintiff-appellee National Fire &

Marine Insurance Company. The district court granted summary
2

judgment on National Fire’s claim for a declaratory judgment that

claims of negligence asserted by Glover against Charles Epps, an

insured under an automobile liability insurance policy issued by

National Fire, and Douglas Luster, a driver of the vehicle

insured under the policy, are not covered by the National Fire

insurance policy issued to Epps. We affirm. 

I. BACKGROUND

This case arises out of the rape of Malikah Glover, a

participant in Jackson State University’s National Youth Sports

Program, by two other youths also participating in the program. 

The factual allegations underlying the claims asserted by Glover

against Epps and Luster for which National Fire has denied any

defense or indemnity obligation are summarized below. 

In the summer of 1993, Malikah Glover participated in the

National Youth Sports Program (“the Program”), a program

sponsored by Jackson State University in Jackson, Mississippi for

the benefit of area youth. On June 18, 1993, Glover was a

passenger on a bus owned by Charles Epps d/b/a Ace Rental

Service, whom Jackson State had hired to provide transportation

services for the Program. The bus was insured under a liability

policy issued by National Fire (“the National Fire Policy”),

which named Charles Epps d/b/a Ace Rental Service as named

insured.

Douglas Luster was driving the bus at the time that Glover

was a passenger on it. Luster mistakenly transported Glover and
3

other participants in the Program to Jackson State’s Athletics

and Assembly Center, an unsupervised and unsecured area, instead

of to the T.B. Ellis Gymnasium, where the Program’s activities

were actually to be held.

After the Program participants exited the bus, three males,

all participants in the Program, approached Glover. One of them

seized Glover and dragged her into a stairwell. Two of the males

raped her while the third served as a lookout. 

Glover filed suit in state court against Epps and Luster,

among others, alleging that Luster is liable for negligence and

that Epps is both liable for his own negligence and vicariously

liable for the negligence of Luster. National Fire subsequently

filed this action in the District Court for the Southern District

of Mississippi, seeking a declaratory judgment that the National

Fire Policy establishes no duty of defense or indemnity with

respect to any claim asserted by Glover. 

The district court entered summary judgment in favor of

National Fire, holding that National Fire possesses neither a

duty to indemnify Epps or his employees nor defend Epps or Luster

with respect to Glover’s claims against them. Glover appeals

that portion of the district court’s judgment declaring that

National Fire has no duty of indemnity with respect to any of

Glover’s claims.

II. STANDARD OF REVIEW
4

“We review a grant of summary judgment de novo, applying the

same criteria used by the district court in the first instance.”

Texas Manufactured Housing Ass’n v. City of Nederland, 101 F.3d

1095, 1099 (5th Cir. 1996). Summary judgment is proper “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 judgment as a matter of law.” 

FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S.

317, 327 (1986).

III. DISCUSSION

Because our jurisdiction is based on diversity of

citizenship, we apply the substantive law of Mississippi. See

Erie R.R. v. Tompkins, 304 U.S. 64 (1938); Powers v. Vista Chem.

Co., 109 F.3d 1089, 1093 (5th Cir. 1997).

Glover argues that the district court erred in granting

summary judgment in favor of National Fire because a fact issue

exists as to whether Luster’s mistake in leaving Glover at the

wrong location proximately caused her to be raped. Glover

contends that such a fact issue exists because a reasonable jury

could conclude that Luster and/or Epps could have reasonably

foreseen that their actions might result in injury to Glover. 

However, we need not decide this issue because a determination of

whether a fact issue exists as to the liability of Epps and

Luster is not requisite to a determination of whether the
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National Fire Policy requires indemnification for such liability

should it attach.

The National Fire Policy provides in relevant part as

follows:

We will pay all sums an “insured” legally must pay as

damages because of “bodily injury” or “property damage”

to which this insurance applies caused by an “accident”

and resulting from the ownership, maintenance or use of

a covered “auto”. 

The Mississippi Supreme Court has had occasion to interpret

similar policy language in several cases.

In Roberts v. Grisham, the plaintiffs, the widow and child

of Wesley Roberts, who was fatally shot while sitting in a parked

truck, brought suit against the shooter, Wesley Grisham, and the

uninsured motorist insurer of the truck. 487 So. 2d 836, 837

(Miss. 1986). In that case, Grisham drove his automobile

alongside Roberts’s truck, exited his vehicle, which was

uninsured, and walked up to Roberts’s driver’s side window. Id. 

Roberts and Grisham argued for several minutes, and Grisham

subsequently shot Roberts in the head, killing him. Id.

Roberts’s uninsured motorist policy provided coverage only

for liability “‘aris[ing] out of the ownership, maintenance or

use of the uninsured motor vehicle.’” Id. at 837. The court

held as a matter of law that, based on the above limitation on

coverage, the defendant insurer had no duty to pay Roberts’s

widow and child under the policy for damages sustained as a

result of Roberts’s death. Id. at 839. The court reasoned that
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“[v]oluntary, deliberate acts are independent acts which render a

vehicle’s use incidental, viz, argument followed by assault or

shooting, which result in injury did not arise out of the use of

the insured vehicle.” Id. 

In Coleman v. Sanford, 521 So. 2d 876 (Miss. 1988), and

Spradlin v. State Farm Mut. Auto. Ins. Co., 650 So. 2d 1383

(Miss. 1995), the court relied on Roberts in concluding that

insurers were not liable under uninsured motorist coverage

provisions containing the same coverage limitation at issue in

Roberts and this case for injuries sustained by insureds shot by

other motorists. In Coleman, the court additionally concluded

that the plaintiff could not recover under the defendant

motorist’s liability policy, which also provided coverage only

for damages arising out of the ownership, maintenance or use of

the defendant motorist’s vehicle. Coleman, 521 So. 2d at 877.

In both cases, the assailant fired the shots from inside an

automobile and used the automobile to catch up with the injured

party. Coleman, 521 So. 2d at 876-77; Spradlin, 650 So. 2d at

1385. However, the court concluded in each case that “[i]n spite

of those facts, the shooting was still, in the language of

Roberts, a voluntary, deliberate act which rendered use of the

vehicle incidental.” Coleman, 521 So. 2d at 877; Spradlin, 650

So. 2d at 1388.

In this case, the use of Epps’s bus and the rape of Glover

share a causal link even more tenuous than the causal links
7

between the use of automobiles and the shootings in Roberts,

Coleman, and Spradlin. First, the rape did not occur on the bus. 

Second, neither the driver nor a current passenger on the bus

committed the rape. The only link between the bus and the rape

is that the bus transported Glover to the location where she was

later raped. Roberts, Coleman, and Spradlin make clear that such

an attenuated causal connection cannot support liability under

the National Fire Policy. Under Mississippi law, the rape of

Glover was “a voluntary, deliberate act which rendered use of the

[bus] incidental.” Coleman, 521 So. 2d at 877.

IV. CONCLUSION 

For the foregoing reasons, the judgment of the district

court is AFFIRMED.