IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-2517 (Summary Calendar)

GULF STATES INSURANCE CO.,
Plaintiff-Counter Defendant-Appellee,

versus

ALAMO CARRIAGE SERVICE, ET AL., Defendants,

ALAMO CARRIAGE SERVICE, INC.,

Defendant-Counter Plaintiff-Appellant.

HERJE CARLSSON, Plaintiff,

versus

ALAMO CARRIAGE SERVICE, INC., Defendant-Appellant,

versus

GULF STATES INSURANCE CO.,

Intervenor-Defendant Appellee.

Appeal from the United States District Court

for the Southern District of Texas

(April 19, 1994)1 Morrison v. City of Baton Rouge , 761 F.2d 242, 244 (5th

Cir. 1985).

2 Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

In this declaratory judgment action, Defendant/CounterPlaintiff/Appellant Alamo Carriage Service, Inc. (Alamo) appeals

the district court's grant of summary judgment in favor of

Plaintiff/Counter -Plaintiff/Appellee Gulf States Insurance Co.

(Gulf States). Alamo also questions whether the district court

abused its discretion by awarding attorney's fees to Gulf States;

but because it does not brief the issue on appeal, we do not

consider it. 1 We conclude that the petition in the underlying

litigation alleged facts and claims which, if proved, would clearly

be ex cluded from coverage under Alamo's policy of manufacturers'

and contractors' general liability insurance, so that Gulf States

had no duty to defend Alamo. Satisfied that Alamo's contention is

so meritless as to be frivolous, we dismiss this appeal.

I

FACTS AND PROCEEDINGS

On January 7, 1989, Herje Carlsson, an Alamo employee, was

i njured while driving a truck owned by Alamo. At the time, Gulf

States insured Alamo under a general liability policy. That policy

provides in pertinent part:2 Emphasis added.

3

Exclusions.

This insurance does not apply:

b. to bodily injury

. . . arisi ng out of the . . . operation [or] use . . . of
(1) any automobile . . . owned . . . by . . . any insured, or (2) any other automobile . . . operated by any person in the course of his employment by any insured . . . . 2

Carlsson filed this personal injury action against Alamo and Gulf

States in state court. Carlsson alleged that he was injured while

performing an incidental contract f or Alamo while driving a

"vehicle" that was owned by Alamo. Gulf States appeared and

answered for itself, but did not provide a defense for Alamo.

Alamo did not appear, and Carlsson took a default judgment against

Alamo on liability issues. When Gulf States moved for summary

judgment, Carlsson nonsuited Gulf States.

Gulf States then intervened, but Carlsson severed his claims

a gainst Alamo and took a default judgment as to Alamo in the

principal amount of $415,297.00. Gulf States filed the instant

declaratory judgment suit in federal court seeking a decl aration

that SQ as there was no coverage under the policy SQ it did not have a

duty to defend Alamo, and thus was not liable for the judgment

against Alamo. In response, Alamo asserted a cross-claim against

Gulf Stat es in the state court action. Gulf States then removed

the state court action to federal court, where it was consolidated

with the pending declaratory judgment action. The parties were

ordered to file cross-motions for summary judgment.

The district court granted Gulf States' motion and denied3 Walker v. Sears, Roebuck & Co. , 853 F.2d 355, 358 (5th Cir.

1988).

4 Celotex Corp v. Catrett , 477 U.S. 317, 323-25, 106 S. Ct. 2548, 2552-54, 91 L. Ed. 2d 265 (1986); see F ED

. R. C IV

. P. 56(c).

5 Walker , 853 F.2d at 358.

6 Id. ; Calpetco 1981 v. Marshall Exploration, Inc. , 989 F.2d 1408, 1413 (5th Cir. 1993).

4 Alamo's and Carlsson's motions. The district court also awarded

attorney's fees to Gulf States. Alamo appeals, asserting that the

word "vehicle" in Carlsson's petition is ambiguous, and that Gulf

States could not look beyond the "eight corners" of the state court

petition and the insurance contract to deny coverage on the basis

that the "vehicle" was a truck and thus an "automobile," which

clearly would not be covered by the policy.

II

ANALYSIS

A. Standard of Review

We review the district court's grant or denial of summary

judgm ent de novo, "reviewing the record under the same standards

which guided the district court." 3 Summary judgment is proper when

no genuine issue of material fact exists that would necessitate a

trial. 4 In determining on appeal whether the grant of a summary

judgment was proper, all fact questions are viewed in the light

most favorable to the nonmovant. 5 Questions of law S Q including the

construction and effect of an unambiguous contract SQ are always

decided de novo. 67 T. C. Bateson Constr. Co. v. Lumbermens Mut. Casualty Co.

,

784 S.W.2d 692, 699 (Tex. App. SQ Houston [14th Dist.] 1989, writ denied).

8 Enserch Corp. v. Shand Morahan & Co. , 952 F.2d 1485, 1492 (5th Cir. 1992).

9 Fidelity & Guar. Ins. Underwriters v. McManus , 633 S.W.2d
787, 788 (Tex. 1982).

10 Id.

5 B. Contract Exclusion: No Duty to Defend

If the policy did not cover Carlsson's injury or damage, then

Gulf States owed Alamo no d uty to defend. 7 Under Texas law, a

court determines a n insurer's duty to defend by examining the

allegations in the petition filed against the insured and the

relevant insurance policy. 8 For such a duty to be established, the

pleadings must allege a claim that is "potentially" covered by the

applicable po licy. 9 But when the plaintiff's petition makes

allegations which, if proved, would place the p laintiff's claim

within an exclusion from coverage, there is no duty to defend. 10

If all facts alleged by Carlsson were proved, his claim

clearly would fall within the automobile exclusion. Alamo's

contention that the word "vehicle" may or may not be encompassed in

the policy term "automobile," and that the automobile exclusion

does not necessarily apply, evokes such adjectives as nonsensical,

specious, fatuous, and frivolous, to name but a few. The tenor of

Alamo's argument is that the word "vehicle" as used in Carlsson's

state court petition is ambiguous SQ that it could refer to11 "Automobile" was defined as a land motor vehicle designed

for travel on public roads, but does not include mobile equipment.

12 "Mobile equipment" is defined in the policy as a land vehicle (1) not subject to vehicle registration, (2) maintained for use exclusively on the premises of the insured, (3) designed for use off road, or (4) designed for the sole purpose of affording mobility to heavy duty equipment.

13 Alamo asks us to consider that Alamo's business was to operate horse-drawn carriages, and that a horse-drawn carriage comes within the definition of "mobile equipment." Alamo suggests therefore that Carlsson's claim that he was operating a "vehicle" is potentially within the policy coverage. We are unfamiliar with horse-drawn carriages that have a driver's side

door.

6 "automobile" 11 or "mobile equipment," 12 and that if Carlsson were

operating "mobile equipment" when he was injured, then there was

coverage under the policy and Gulf States was required to defend

the suit against Alamo. Although such a contention might prompt a

law school exam grader to give extra credit for imagination, it has

no place in a court of record.

Carlsson's petition alleges that he was driving a vehicle

owned by Alamo on a public road when the vehicle he was in was

rear-en ded, struck on the side, and struck a third time in the

driver's side door. 1 3 He was driving the vehicle to carry out a

mission for his employer SQ to sell Alamo Carriage Service Driving

Academy to a Houston-based proprietary school. Nothing in the

petition suggests that Carlsson was operating some sort of "mobile

equipment" as distinguished from an automobile; to the contrary,

every fact alleged confirms that he was driving a motor vehicle,

i.e., an automobile.

The district court correctly held that Carlsson's petition did14 See 5 TH C IR . R. 42.2.

7

not allege any claim covered by the insurance policy. Thus, given

the obvious applicability of the automobile exclusion, there could

be no duty to defend.

III

CONCLUSION

For the foregoing reasons, this appeal is dismissed as

frivolous. 14

DISMISSED.