*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this opinion should not be published and is not precedent except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. 99-20952

Summary Calendar

 

UNITED NATIONAL INSURANCE COMPANY

Plaintiff-Counter Defendant-Appellee

versus

SIPCO SERVICES AND MARINE INC; SIPCO SERVICES INC; BROWN & ROOT

INC, doing business as Brown & Root Braun

Defendants-Counter Claimants-Appellants

AMOCO OIL COMPANY; AMOCO CORPORATION; AMOCO CHEMICAL COMPANY

Defendants-Appellants

 

Appeals from the United States District Court

For the Southern District of Texas

USDC No. H-97-CV-3720

 

April 12, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

This is an appeal of a declaratory judgment in favor of United

Insurance Company to determine coverage and the duty to defend in

state court litigation over a personal injury. Sidney Ervin was

employed by SIPCO, a subcontractor for Brown & Root, which was a 
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general contractor working under contract with Amoco at its

Chocolate Bayou plant in Brazoria County, Texas. Ervin claimed he

was injured by inhaling toxic chemicals in the course of his

employment as a sandblaster and painter working on petroleum

storage plants at the Chocolate Bayou plant. The personal injury

claim has been settled, but a cross-claim for indemnity by Brown &

Root and Amoco against SIPCO is pending in state court. The

district court adopted the magistrate judge's recommendation to

grant United Insurance Company's motion for summary judgment,

determining that the insurance policy's pollution exclusion clause

barred coverage of the personal injury claim as a matter of law.

We AFFIRM.

We review de novo the interpretation of insurance contracts.

See Certain Underwriters at Lloyd's London v. C.A. Turner Constr.

Co., 112 F.3d 184, 186 (5th Cir. 1997). 

The appellants argue that Ervin's claim was covered by the

policy because he sued for the failure to provide him with proper

respiratory equipment rather than for being exposed to toxic fumes.

Texas courts consider the factual allegations on which a claim is

based rather than the legal theories on which the claimant relies.

See National Union Fire Ins. Co. of Pittsburgh v. Merchants Fast

Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997)(per curiam); see

also Adamo v. State Farm Lloyds Co., 853 S.W.2d 673, 676 (Tex. App.

-- Houston [14th Dist.] 1993, writ denied)(stating that "[i]t is

not the cause of action alleged that determines coverage but the

facts giving rise to the alleged actionable conduct")(emphasis in
 

1The policy defines "contamination" as "any unclean or unsafe

or damaging or injurious or unhealthful condition arising out of

the presence of pollutants, whether permanent or transient in any

environment." 

3

original). We agree with the district court that the facts alleged

control the coverage issue rather than the plaintiff's legal

theories in the underlying action. In any event, the policy

excludes coverage for 

a) The contamination of any environment by pollutants that are

introduced at any time, anywhere, in any way;

b) Any bodily injury, personal injury, . . . arising out of

such contamination[.]

We agree with the district court that Ervin's injury arose out of

the contamination1 of the environment in which he worked by

pollutants. Although Ervin sued for the failure to provide him

with protective equipment, the policy unambiguously excludes

coverage for his bodily injury, which arose from the presence of

pollutants.

Under the Texas doctrine of concurrent causation the insurer

will have a duty to defend and indemnify when there are independent

causes of an injury, one of which is covered and the other excluded

by the policy. See Guaranty Nat'l Ins. Co. v. North River Ins.

Co., 909 F.2d 133, 137 (5th Cir. 1990). The appellants argue that

the pollutants and the failure to provide Ervin with proper

protective gear were independent causes of his injury, avoiding the

pollution exclusion clause. 

However, under Texas law, the insurer is not liable when a

covered cause is dependent upon the excluded cause. See Commercial

Union Ins. Co. v. Roberts, 7 F.3d 86, 89-90 (5th Cir. 1993). In
4

Commercial Union, the defendant was sued in negligence for failing

to obtain treatment for pedophilia, which would have prevented him

from sexually molesting his victims. See 7 F.3d at 87. The

insurance company argued there was no coverage or duty to defend

because the intentional conduct -- the sexual molestation -- was

not covered by the policy, and the defendant argued that the causes

were concurrent and independent. See Commercial Union, 7 F.3d at

88. We distinguished Guaranty and found no duty to defend or

indemnify, reasoning that "[t]he allegations are not mutually

exclusive; rather they are related and interdependent. Without the

underlying sexual molestation there would have been no injury and

obviously no basis for a suit against Dr. Roberts for negligence."

Commercial Union, 7 F.3d at 89-90. 

Here, the pollutants and failure to provide Ervin with

protective gear would constitute related and interdependent causes

of his injury, since the failure to provide him with the equipment

was a cause of his injury only because of his exposure to the

pollutants. Since his exposure to the pollutants was a necessary

condition of his respiratory injury, the failure to provide him

with protective gear cannot be an independent cause of that injury.

As in Commercial Union, without the contamination there would have

been no injury and hence no suit against the employer for

negligence. The district court properly determined that there was

no coverage.

Because we find that there is no coverage, we do not reach the

appellant's argument that there was coverage in spite of the fact
5

that Ervin was exposed to the chemicals before United Insurance

Company issued the policy in question and manifested the injury

afterward.

AFFIRMED.