* District Judge of the Eastern District of Texas, sitting by

designation.

 

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that this opinion should not be published and is not precedent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

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 99-21008

__________________

PENNSYLVANIA GENERAL INSURANCE COMPANY,

Plaintiff-Counter Defendant-Appellee,

versus

A.G. PERRY & SON, INC., Et Al.,

Defendants,

versus

RICK HUCKABY; JERI BOYD,

Defendants-Counter Claimants-Appellants.

______________________________________________

Appeal from the United States District Court 

for the Southern District of Texas, Houston Division

H-97-CV-3839

______________________________________________

July 3, 2000

Before JONES and BENAVIDES, Circuit Judges, and COBB,* District

Judge.

PER CURIAM:**

This appeal presents issues arising out of a fatal traffic
2

accident that occurred on November 14, 1996. Lester Lamon, driving

a tractor/trailer rig which was then covered under a general

insurance policy issued by Pennsylvania General Insurance Company

(PGI) to A.G. Perry & Son, Inc. (P & S), the truck’s owner, was

attempting to complete a turn on U.S. Highway 59, in Texas. Before

he could complete the turn into a crossover on the highway, two

vehicles, one passenger car and one van, struck the trailer which

was then blocking the southbound lanes of traffic. A third vehicle

narrowly avoided the collision and instead struck several highway

signs. The driver who hit the signs suffered minor injuries; the

driver of the van suffered various injuries but survived the

accident; the driver and the passenger of the third vehicle,

Donovan Johnson and Joshua Huckaby respectively, were killed in the

collision.

The insurance policy issued by PGI provided coverage up to

$1,000,000 per “accident” for the term from August 1, 1996, to

August 1, 1997. An “accident” under the terms of the policy is

defined as “bodily injury and property damage resulting from

continuous or repeated exposure to substantially the same

conditions.” Additionally, the policy contained an MPC-90

endorsement (referred to by the parties variously as a BMC-90

endorsement or a MCS-90 endorsement). This endorsement, as

required by federal law, provides coverage to any final judgment

recovered against P & S, regardless of whether the vehicle

specifically involved in the accident was named in the policy.

PGI, then, under the terms of the endorsement, is entitled to
3

recover from P & S reimbursement for any payments made in

accordance with the endorsement that were not otherwise payable

under the terms of the policy. 

This appeal concerns matters stemming from a lawsuit filed in

state court by Joshua’s parents, Rick Huckaby and Jeri Boyd,

against Lamon and P & S which alleged Lamon to be at fault for

Joshua’s death. Donovan’s parents also filed suit as did the

driver of the van, Louis Wyrick. In response to this suit, PGI

filed an action for declaratory judgment, in federal court, seeking

to have the district court construe under federal law several

provisions of the insurance contract now at issue. Specifically,

PGI sought a determination that the claims of the respective

defendants arose from but one accident and that its potential

liability on those claims exceeded policy limits. PGI thus sought

declaration that despite this potential liability, its maximum

exposure under the insurance contract was the policy limit of

$1,000,000. Huckaby and Boyd, in response, filed a counter-claim

in district court seeking a declaration that PGI would be

responsible, under the terms of the endorsement, for any final

judgment against P & S.

The parties subsequently entered into settlement negotiations

which later resulted in all parties, except Huckaby and Boyd,

settling their claims for a total of $1,056,687.94. Huckaby and

Boyd refused to participate in the settlement.

PGI then moved for summary judgment in the district court as

to its declaratory action and with respect to Huckaby and Boyd’s
4

counterclaim. The district court granted that motion and entered

final summary judgment for PGI on September 30, 1999. 

Huckaby and Boyd now complain that the district court erred in

finding, as stated in its Memorandum Opinion and Order of the same

date, that the incident of November 14, 1996, constitutes one

accident or occurrence under the terms of the policy, thus the

$1,000,000 policy limit applies to any and all claims arising out

of that accident; and, further, that the district court erred in

finding that the plain terms of the endorsement, when read in

conjunction with the policy, mandates its application to the facts

of this accident but presents no ambiguity where it states that it

applies “within the limits of liability prescribed herein.”

Huckaby and Boyd maintain that error lies in the district court’s

conclusion, reasoned from these findings, that the endorsement is

subject to the limits of the policy itself, and, as P & S had

exhausted the policy limit by settling the various other claims

against it, PGI has no further duty to defend or indemnify P & S

against any claims arising from the November 14, 1996 accident.

This appeal presents no material factual disputes. Rather,

Huckaby and Boyd dispute the district court’s application of the

relevant law to the facts of the case. Our careful review of the

briefs and the applicable law, however, convinces us that the

district court did not err in concluding that P & S had exhausted

the limits of its insurance policy with respect to this accident,

thus relieving PGI of any further duties. Therefore, for

essentially the reasons stated by the district court in its
5

carefully reasoned Memorandum Opinion and Order entered September

30, 1999, we AFFIRM the judgment of the district court in all

respects.

AFFIRMED.