United States Court of Appeals

for the Fifth Circuit

No. 21-10010

Covington Specialty Insurance Company, 

Plaintiff—Appellant,

versus

USAI LP; Lara Briggs-Tafel, JD, 

Defendants—Appellees.

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 3:18-CV-3271

Before Stewart, Ho, and Engelhardt, Circuit Judges.

Per Curiam:*

This case arises from the tragic death of Calvin Marcus McCullers, Jr.

Because McCullers perished while working as a security guard at a property 

allegedly owned by Defendants-Appellees USAI and Lara Briggs-Tafel (the 

“USAI Defendants”), McCullers’ survivors sued them in state court (the 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 20, 2021

Lyle W. Cayce

Clerk

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“McCullers Suit”).1 But we do not have that suit before us. Instead, we must 

decide whether USAI Defendants or Plaintiff-Appellant Covington Specialty 

Insurance Company (“Covington”), with whom USAI Defendants have a 

policy, must defend the McCullers Suit. For the reasons stated by the district 

court below in denying summary judgment to Covington and granting 

summary judgment to USAI Defendants,2 we hold that Covington is bound 

by the terms of its policy with USAI Defendants to defend the McCullers 

Suit. Accordingly, we AFFIRM.

A. Standard of Review

We review a grant of summary judgment de novo, apply the same 

standard as the district court, and view the evidence in the light most 

favorable to the nonmovant. First Am. Title Ins. v. Cont’l Cas. Co., 709 F.3d 

1170, 1173 (5th Cir. 2013). The interpretation of an insurance contract is also 

reviewed de novo. Nat’l Cas. Co. v. W. World Ins., 669 F.3d 608, 612 (5th 

Cir. 2012). Summary judgment is appropriate where “there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a).

1 The underlying case is Tiffany Renee McCullers, individually and on behalf of the 

Estate and Heirs-at-Law of Calvin Marcus McCullers, Jr., deceased v. USAI, LP f/k/a Porky 

Realty Investments, LP, et al., case no. DC-18-08709, filed in the District Court of Dallas 

County, Texas on July 5, 2018.

2 The district court’s May 4, 2020 opinion and order denied Covington’s motion 

for summary judgment. Covington Specialty Ins. v. USAI LP, No. 18-CV-3271-N, 2020 WL 

2132598, at *1 (N.D. Tex. May 4, 2020) [hereinafter Covington I]. Its December 9, 2020 

opinion and order granted summary judgment for USAI Defendants sua sponte. Covington 

Specialty Ins. v. USAI LP, No. 18-CV-3271-N, 2020 WL 7245073, at *1 (N.D. Tex. Dec. 9, 

2020) [hereinafter Covington II].

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B. Applicable Law

Because this is a diversity case, Texas substantive law applies. Erie 

R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see ACE Am. Ins. v. Freeport 

Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th Cir. 2012). The parties 

agree.

Under Texas law, the insured bears the burden of establishing 

coverage under the policy. JAW The Pointe, L.L.C. v. Lexington Ins., 460 

S.W.3d 597, 603 (Tex. 2015). If the insured carries its burden, the insurer 

must “plead and prove” that the insured’s loss falls within an exclusion to 

coverage. Id. If the insurer succeeds, the pendulum swings and the insured

must show that there is an applicable exception to the exclusion that renews 

coverage. Id. 

Texas courts resolve duty-to-defend disputes like this one using the 

“eight corners” rule, looking only to the terms of the policy and the pleadings 

in the underlying suit to determine if the suit implicates the policy and, if so, 

an exclusion to that policy. Zurich Am. Ins. v. Nokia, Inc., 268 S.W.3d 487, 

491 (Tex. 2008). The truth of the allegations is irrelevant. Gore Design 

Completions, Ltd. v. Hartford Fire Ins., 538 F.3d 365, 368 (5th Cir. 2008). 

Allegations must be liberally construed, and all doubts are resolved in favor 

of the insured. Nat’l Union Fire Ins. v. Merchs. Fast Motor Lines, Inc., 939 

S.W.2d 139, 141 (Tex. 1997) (per curiam).

C. Relevant Facts

We first look to the allegations in the operative pleading, the Third 

Amended Petition in the McCullers Suit. McCullers was working as a private 

security guard, “sitting post” inside his vehicle. A thunderstorm passed 

through, causing a nearby stream to rise and flood. After his vehicle became 

“inundated,” McCullers called for help but could not safely move to higher 

ground. “Immediately thereafter,” his vehicle was “engulfed” in 

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floodwater. “As [McCullers] escaped the vehicle, floodwaters swept it and 

[him] over [an] embankment and into Turtle Creek.” Rescue workers found 

the vehicle that day but did not find McCullers’ body until almost two 

months later.

At the time, USAI Defendants were covered by an insurance policy

(the “Policy”) issued by Covington. The Policy covers bodily injury and 

property damage, but not when such injuries “aris[e] out of or result[] from

. . . use [of an] ‘auto’. . . .” The parties do not dispute that the Policy’s 

definition of “auto” includes the vehicle discussed in the McCullers Suit.

D. Analysis

Covington does not dispute that the Policy is implicated by the 

underlying suit. Thus, it bears the burden of establishing that the auto 

exclusion applies. JAW The Pointe, 460 S.W.3d at 603. Covington argues that 

the district court erred in holding that it failed to show that the injuries to 

McCullers resulted from the “use” of his vehicle, which would bring the 

injuries within the auto exclusion. We agree with the district court’s 

reasoning, hold that Covington failed to show that the injuries resulted from 

use of the vehicle, and therefore affirm the district court’s grant of summary 

judgment to USAI Defendants on the duty-to-defend issue.

As the district court found, under Texas law an injury arises out of 

the use of a vehicle for insurance purposes when it 1) arises “out of the 

inherent nature of the automobile,”2) arises “within the natural territorial 

limits of an automobile” before the actual use has terminated, and 3) the 

automobile does not “merely contribute to cause the condition which 

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produces the injury, but . . . itself produce[s] the injury.” Covington I at *3 

(quoting Mid-Century Ins. v. Lindsey, 997 S.W.2d 153, 156 (Tex. 1999)).

3

Applying that law to these allegations, the district court correctly 

concluded that Covington failed as a matter of law to establish either that the 

incident occurred within the territorial limits of the vehicle or that the vehicle 

was a producing cause of McCullers’ death. Id. at *3–4. On the territorial 

limit prong, it is not clear from the allegations whether McCullers died in the 

vehicle before being swept away or was swept away and then died. Id. at *3. 

Thus, the district court was correct to find that Covington failed to meet its 

burden on the territorial limit factor. The court was likewise correct to hold 

that because the allegations state that the floodwaters caused McCullers’

death, not the vehicle, Covington had failed to establish that the vehicle was 

the producing cause of the injury. Id. at *4.

Covington’s arguments to the contrary were properly rejected below 

and are rejected here as well. Covington argues that the relevant “accident” 

was McCullers’ “sitting post” in the vehicle, which “render[ed] 

[McCullers] unable to seek refuge.” But the underlying allegations do not 

state that McCullers was restricted from exiting the vehicle. Instead, they 

state that McCullers was swept away while escaping it, and that McCullers’ 

body was found miles away from the vehicle nearly two months after the 

vehicle was found. Further, the court below properly found that Lindsey and 

its progeny, when ascertaining the relevant event to analyze, “looked to the 

event that caused the injury.” Covington II at *3. Here, the event that caused 

the injury was the flood, not sitting in a vehicle. This argument fails.

3 To the extent Covington argues that Lindsey does not apply, that argument was 

not presented to the district court and is waived. See Patterson v. Dean Morris, L.L.P., 448 

F.3d 736, 741 n.5 (5th Cir. 2006).

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Covington also argues that the district court erred in not applying a 

“but for” causation analysis, asserting that this was the proper standard and 

that McCullers “sitting post” in the vehicle was a but-for cause of his death.

If McCullers had been sitting post in a different location, Covington opines,

he would have been protected from the elements or, at least, would have 

noticed the rising floodwaters. This argument is tenuous at best. The 

allegations provide no basis to conclude that the vehicle prevented McCullers

from noticing the flooding (which occurred in the dead of night), or that the 

vehicle had any causal significance whatsoever. The district court both 

correctly applied the producing cause standard and correctly reasoned that, 

even under but-for causation, Covington failed to carry its burden to show 

that the vehicle played any causative role in McCullers’ death. Id. at *3–4.

E. Conclusion

The court below correctly found that Covington failed to carry its 

burden to show that the auto exclusion applies to the facts as alleged in the 

underlying suit. Thus, Covington must defend the McCullers Suit and 

summary judgment for USAI Defendants was proper. For the reasons stated 

above, we AFFIRM.4

4 Because Covington has a duty to defend, we also affirm the district court’s 

determination that the question of a duty to indemnify is not ripe until the underlying suit 

is resolved. Covington I at *4.

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