IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-31132

JOHN MAHAFFEY,

Plaintiff

v.

GENERAL SECURITY INSURANCE CO.; ET AL

Defendants

________________________________________________________________________

REDLAND INSURANCE CO.,

Third-Party Defendant–Appellant,

v.

FIRST COAST INTERMODAL SERVICE INC.; GENERAL SECURITY

INSURANCE CO.; ARTHUR WYNN,

Defendants–Third-Party Plaintiffs–Appellees.

Appeal from the United States District Court 

for the Middle District of Louisiana

Before REAVLEY, STEWART, and OWEN, Circuit Judges.

PER CURIAM:

Appellant Redland Insurance Company (Redland) appeals a grant of

summary judgment in favor of appellee General Security Insurance Company

(GSI). The district court ruled that Redland provided primary insurance

United States Court of Appeals

Fifth Circuit

F I L E D

September 26, 2008

Charles R. Fulbruge III

Clerk
No. 07-31132

1 See SAUL SORKIN, GOODS IN TRANSIT § 45.01 (2008) (defining “bobtailing” as “[t]he

operation of a tractor without an attached trailer”).

2

coverage for a commercial truck accident, holding a “nontrucking use”

endorsement in the Redland policy did not exclude coverage because the driver

was not “in the business of” the trucking-company lessee at the time of the

accident. Because we hold that the driver was in the business of the lessee as

a matter of law, we reverse and render judgment for Redland.

I

In 1999, Farr Auto Sales (Farr) leased a truck and provided a driver,

Arthur Wynn,to First Coast Intermodal Service (First Coast)to haul a load from

Bowling Green, Kentucky, to New Orleans, Louisiana. Wynn dropped the load

off in New Orleans at approximately 4 p.m. and called the First Coast

dispatcher. The dispatcher told Wynn to “take the rest of the night off and call

[First Coast dispatch] in the morning to see if they had a load.” After speaking

with the First Coast dispatcher, Wynn drove the truck without its trailer

(“bobtailed”1) to a truck stop where he ate dinner, watched television, took a

shower, and played some slot machines. In total, Wynn stayed at the truck stop

for between six and seven hours.

Although Wynn usually slept in the cab of his truck, a leak left the

mattress in the main cabin wet, and Wynn decided to go to a motel for the night.

On his way to the motel, Wynn was involved in an automobile accident with

John Mahaffey. Mahaffey brought suit in Louisiana state court against Wynn,

First Coast, andFirst Coast’s insurance provider, GSI (collectively, Defendants).

First Coast and GSI removed the case to the Middle District of Louisiana.

Following removal, Defendants filed a third-party complaint against

Redland Insurance Company (Redland), alleging that because Wynn was

bobtailing at the time of the accident, the Redland insurance policy provided

primary coverage.
No. 07-31132

3

Redland provided an insurance policy on the truck that included liability,

personal-injury, uninsured-motorist, and collision coverage, as well as coverage

for other specified causes of loss. The coverage was subject to exclusions and

endorsements, including a nontrucking use endorsement. Although insurance

with a nontrucking use endorsement is often referred to as “bobtail insurance,”

the coverage is not described in terms of bobtailing. Rather, the endorsement

provides that “the insurance does not apply to . . . [a] covered ‘auto’ while used

to carry property in any business . . . [or] a covered ‘auto’ while used in the

business of anyone to whom the ‘auto’ is rented.”

The terms of the lease agreement between Farr and First Coast required

Farr to carry nontrucking use liability insurance and required First Coast to

maintain its own public liability, property, and cargo insurance. Pursuant to a

“deduction notice” Farr signed, First Coast paid the nontrucking liability

insurance premiums and deducted the premiums from amounts paid to Farr

under the lease agreement. At the time of the execution of the lease agreement

between Farr and First Coast, the annual premium for the nontrucking use

policy was $360.00 per year, payable in advance in $30.00 monthly installments.

Although the deduction notice provided a fixed amount to be deducted for

nontrucking use liability insurance, the lease agreement also gave First Coast

the right to change the amount to be deducted for nontrucking use liability

insurance to the amount established by the insurance company.

Although conceding that the GSI policy provided coverage to Mahaffey for

his claim, Defendants filed a motion for partial summary judgment asking the

court to hold that the Redland policy provides primary coverage and the GSI

policy provides excess coverage. The magistrate judge recommended granting

the motion, concluding that because Wynn had no “pending, definite

assignment” and “no requirementfrom First Coastthat he stay in New Orleans”

the night of the accident, Wynn was not in the business of First Coast at the
No. 07-31132

2 Essinger v. Liberty Mut. Fire Ins. Co., 529 F.3d 264, 269 (5th Cir. 2008).

3 FED. R. CIV. P. 56(c).

4 Essinger, 529 F.3d at 269.

4

time of the accident and that, therefore, the Redland policy provided primary

coverage. The district court adopted the magistrate’s recommendation.

Redland first appealed the district court’s grant of partial summary

judgment in March 2002. This court held the appeal was premature. Redland

then filed a motion to make the judgment final pursuant to Federal Rule of Civil

Procedure 54(b). The district court granted the motion. Redland again appeals

the district court’s grant of summary judgment, arguing that Wynn was in the

business of First Coast at the time of the accident.

II

We review a district court’s grant of summary judgment de novo.2

Summary judgmentis proper when there is no genuine issue of material fact and

the movant is entitled to judgment as a matter of law.3In determining whether

there is a genuine issue of material fact, we view facts and inferences in the light

most favorable to the nonmoving party.4

GSI contends that certain deposition testimony of the corporate

representative of First Coast and of Farr was inadmissible lay opinion

testimony, lacks foundation, and has no basis other than hearsay. It is not clear

whether the magistrate judge or the district court relied on this testimony in any

way. Because the case does not turn on this testimony, we do not consider it or

its admissibility.
No. 07-31132

5

In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007) (citing Bonin

v. Westport Ins. Corp., 05-0886 (La. 5/17/06); 930 So. 2d 906, 910).

6

Id. at 207 (quoting LA. CIV. CODE ANN. art. 2047 (1987)).

7

Id. (citing Cadwallader v. Allstate Ins. Co., 02-1637 (La. 6/27/03); 848 So. 2d 577, 580).

8 Empire Fire & Marine Ins. Co. v. Brantley Trucking, Inc., 220 F.3d 679, 681 (5th Cir.

2000); accord Liberty Mut. Ins. Co. v. Conn. Indem. Co., 55 F.3d 1333, 1335 (7th Cir. 1995)

(holding the exclusion “while used in the business of anyone to whom [it] is rented” to be

unambiguous).

9 Brantley Trucking, 220 F.3d at 681 (quoting Hartford Ins. Co. v. Occidental Fire &

Cas. Co., 908 F.2d 235, 239 (7th Cir. 1990)).

5

III

The parties agree Louisiana law applies. Under Louisiana law,

“[i]nterpretation of an insurance contract generally involves a question of law.”5

The words of the insurance contract “must be given their generally prevailing

meaning.”6If the language in the insurance policy is clear and unambiguous,

the insurance contract must be enforced as it is written.7

We have held that the phrase “in the business of” in a nontrucking use

endorsement is unambiguous.8“That ‘contractual language may, on occasion,

pose difficult factual applications . . . ’ and that the parties disagree as to

coverage, does not create ambiguity.”9 Although the application of the

endorsement to these facts may pose difficult questions, the difficulty of the

questions does not create an ambiguity. Because “in the business of” as used in

the nontrucking use endorsementis unambiguous,the issue is properly resolved

as a matter of law on a motion for summary judgment.

The Louisiana Supreme Court has not yet considered when an

independent trucker is acting in the business of a lessee. In the absence of a

decision interpreting a particular insurance clause, we must ascertain how the

Louisiana Supreme Court would rule if faced with interpreting the insurance
No. 07-31132

10 See Cochran v. B.J. Servs. Co. U.S.A., 302 F.3d 499, 502 (5th Cir. 2002).

11 In re Katrina Canal Breaches Litig., 495 F.3d at 206.

12 Cochran, 302 F.3d at 502.

13 See Stanley v. Trinchard, 500 F.3d 411, 423-24 (5th Cir. 2007) (noting thatin making

an “Erie-guess,” this court may consult “decisions from other jurisdictions”).

14 97-0388 (La. Ct. App. 4 Cir. 10/1/97); 700 So. 2d 1311.

15 Id. at 1314.

16 Id. at 1313.

17 Id. at 1314.

6

provision10 by looking to guidance from the constitution, codes, and statutes of

the state of Louisiana;11 decisions from Louisiana intermediate appellate courts

and federal courts applying Louisiana law;12 and decisions from other

jurisdictions.13

No constitutional provision, code, or statute defines when a trucker is

acting in the business of a lessee. The only Louisiana Court of Appeal case

considering whether a driver is in the business of a lessee is LeBlanc v. Bailey.14

In LeBlanc, a trucker was involved in an accident while en route to his home

after finishing deliveries that day.15 The lessee carried commercial automobile

insurance and the driver carried a bobtail policy that contained an endorsement

for nontrucking use, which provided that the bobtail insurance did not apply to

“a covered ‘auto’ while used in the business of anyone to whom the ‘auto’ is

rented.”16 The language of this endorsement for nontrucking use is identical to

the language in the endorsement for nontrucking use in the Redland policy.

The Louisiana Court of Appeal affirmed the trial court’s holding that the

bobtail insurance was primary for the accident as a matter of law.17 Noting that

there was not a bright-line rule to determine whether an independent trucker

is acting in the business of the lessee, the court emphasized that the driver was
No. 07-31132

18 Id.

19 See id.

20 Id. at 1314-15.

21 Id. at 1314 (emphasis added).

7

“free to go where he pleased [and] . . . was not subject to [the lessee’s] control or

paid for his time or mileage. [The driver] was not under dispatch or standby for

further deliveries, and his drive home was more of a personal nature rather than

a work-related function.”18

Although the LeBlanc court did not specifically enumerate factors to be

considered in determining whether a driver is in the business of another for the

purpose of Louisiana insurance law, the decision indicated that relevant

considerations include: whether the driver was free to go where he pleased;

whether the driver was paid for time or mileage; whether the driver was under

dispatch or standby for further deliveries; and whether the activity was more of

a personal or work-related function.19 There is, however, no indication from

LeBlanc that these considerations are exclusive. The LeBlanc court also

expressed concern that construing the bobtail policy to exclude coverage when

the driver was driving home would “render the non-trucking use endorsement

meaningless and would defeat [the insured’s] very purpose in securing this type

of coverage.”20

Applying the reasoning of LeBlanc leads us to conclude that Wynn was

acting in the business of First Coast. One of the important considerations in

LeBlanc was whether the driver was “under dispatch or standby for further

deliveries,” or whether “his drive home was more of a personal nature rather

than a work-related one.”21 Unlike the driver in LeBlanc, who was heading

home after completing his deliveries and was not under predispatch for
No. 07-31132

22 Id. 

23 See 49 C.F.R. § 395.1 (2007) (providing time limits on driving hours and minimum

rest times).

8

deliveries the following day,22 Wynn was not heading home, and he was on

standby for further deliveries because the First Coast dispatcher told him to

“take the rest of the night off and call [First Coast dispatch] in the morning to

see if they had a load.” The First Coast dispatch had not yet released Wynn to

return to his home in Missouri. First Coast’s corporate representative testified

that First Coast drivers had the option to reject offered loads, but Wynn sought

an additional load from First Coast and complied with its request that he take

the night off and call the next day about a load. Although Wynn was “free to go

where he pleased” in the interim, in the sense that First Coast did not direct his

activities that evening, Wynn would have had to stay within close proximity to

New Orleans to be available to pick up a load. Wynn was not paid for his time

or mileage while waiting for the next load, but he would have lost the

opportunity to earn return-trip income if he left before ascertaining whether a

load would be available, and First Coast would have lost an available driver.

Wynn was furthering First Coast’s commercial interests to have a driver on

standby and available to take a load the next day, regardless of whether one

actually became available. Finally, unlike driving home after completing

deliveries, driving to a motel far from home in order to sleep to be adequately

rested, when asked to remain in the area to see if a load becomes available, is a

work-related function for a commercial driver because commercial drivers are

required to have a certain number of rest hours between hauls.23 Accordingly,

Wynn was acting in the business of First Coast as a matter of law.

Our conclusion, based on the reasoning of LeBlanc, that Wynn was in the

business of First Coast is consistent with the “commercial interest” test we
No. 07-31132

24 220 F.3d 679 (5th Cir. 2000).

25 See id. at 680, 682 n.3 (excluding policy coverage “while a covered ‘auto’ is used in

the business of anyone to whom the ‘auto’ is leased or rented”).

26 Id. at 682.

27 Id. at 680.

28 Id.

29 Id. at 682.

30 See, e.g., Acceptance Ins. Co. v. Canter, 927 F.2d 1026, 1028 (8th Cir. 1991) (holding

that a driver was not in the business of a lessee where the driver was driving to his home after

being told there was no cargo available for hauling and to call back a few days later).

9

articulated in Empire Fire & Marine Insurance Co. v. Brantley Trucking, Inc.24

In Brantley Trucking, this court considered language nearly identical to the

nontrucking use policy in this case.

25 Applying Texas law, we held that the

language in the endorsementfor nontrucking use was unambiguous and “clearly

refers to occasions when the truck is being used to further the commercial

interests of the lessee.”26

In Brantley Trucking, the driver of a leased truck, while waiting for cargo

to load at the lessee’s terminal yard, bobtailed to have the truck’s oil changed,

pick up auto parts, and have other maintenance performed at a service station.27

On his way back to the lessee’s terminal, the driver was involved in an

accident.28 We held that the driver was acting in the lessee’s business as a

matter of law because the driver was furthering the commercial interests of the

lessee when he was “only biding his time while the cargo loaded” and was not

“out pursuing leisurely engagement.”29

Decisions in other jurisdictions determining whether a driver was acting

in the business of a lessee also support our holding that Wynn was acting in the

business of First Coast. Unlike driving home, which is generally found to be not

in the business of a lessee,30 Wynn was driving to a motel to sleep with a
No. 07-31132

31 See Liberty Mut. Ins. Co. v. Conn. Indem. Co., 55 F.3d 1333, 1334, 1337 n.5 (7th Cir.

1995) (holding that a driver was in the business of a lessee when returning to pick up a trailer

he left at a truck stop in order to bobtail to spend a night at home and noting the fact that the

driver went home instead of a hotel was not determinative as the driver “had to sleep

somewhere”); Auto-Owners Ins. Co. v. Redland Ins. Co., 522 F. Supp. 2d 891, 898 (W.D. Mich.

2007) (holding that a trucker going to find a place to sleep the night before picking up an

assigned load was in the business of a lessee because he was “on business far from both his

home and the home base of his employer,” the lessee “expected him to get rest so that he would

be eligible to pick up a load the next morning,” and the “essential purpose of [the driver’s]

actions was to benefit [the lessee] by getting the required hours of sleep and ensuring his

ability to make a pick up the following morning”).

32 See LeBlanc v. Bailey, 97-0388 (La. Ct. App. 4 Cir. 10/1/97); 700 So. 2d 1311.

10

reasonable expectation that a load would be available the following day. Courts

have recognized that a driver can be acting in the business of another when

driving to or from a place to sleep or rest.31

Finally, GSI argues that applying the nontrucking use endorsement to

exclude coverage in this case would render the nontrucking use policy

“meaningless.” This argument is unavailing. LeBlanc exemplifies

circumstances under which the nontrucking use endorsement does not preclude

coverage—when a driver is driving home after dropping a load off without

further instructions.32 We could posit other circumstances in which a vehicle is

not being “used in the business of anyone to whom the ‘auto’ is rented,” but we

decline to offer what would be advisory rulings. Our holding reflects the

Redland policy’s purposely tailored coverage and does not render the

nontrucking use policy meaningless.

* * *

Because Wynn was in the business of First Coast at the time of the

accident as a matter of law, we REVERSE the trial court’s grant of summary

judgment and RENDER judgment for Redland.