* Pursuant to Local 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20541

_____________________

ASSICURAZIONI GENERALI

Plaintiff - Appellee

v.

CROWN CENTRAL PETROLEUM CORPORATION

Defendant - Appellant

and

CECIL A BUFFALO; DONALD RAY HARRISON; ROBERT KEITH SUITS, JR

Defendants

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(CA-H-95-3240)

_________________________________________________________________ May 23, 1996

Before KING, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM: *

Assicurazioni Generali SpA (“Generali”) brought an action1 Pre sumably, the salesperson was Mike Elmore. Neither

Reynolds or Elmore was certain that Elmore was the person contacted

on this occasion. However, John Shank, executive vice president of

RSI, testified as to how RSI ordinarily would come to send a work

crew to Crown: “The most logical way is that Crown would call Mike

Elmore, their sales rep, and indicate they had a job . . . .”

2 against Crown Central Petroleum Corporation (“Crown”), among

others, seeking a declaratory judgment that it was not obligated to

provide insurance coverage to Crown as an additional insured under

a n insurance policy issued to Reactor Services Internatio nal

(“RSI”). Crown appeals the district court’s granting of summary

judgment in favor of Generali. We reverse.

I. BACKGROUND

Generali issued a comprehensive general liability insurance

policy to RSI for the period November 1, 1991, through November 1,

1992 (the “Generali/RSI Policy”). The policy contained a blanket

additional insured endorsement that provided:

Coverage includes additional assured as required by

contract but only in respect of work performed by or on

behalf of the assured.

For the purpose of preparing certificates of insurance to evidence

this endorsement, RSI presented its insurance agent, Gow and Hanna

Insurance, with a list of RSI’s regular customers, including Crown.

On April 23, 1992, a tail gas recovery unit malfunctioned at

Crown’s refinery in Pasadena, Tex as. That afternoon, Ronnie

Reynolds, Crown’s maintenance manager, phoned a salesperson at RSI

about servicing the recovery unit. 1 Reynolds arranged for RSI to3

come to the refinery the next morning, April 24, 1992. Reynolds

and the RSI salesperson discussed the basics of the job and

Reynolds obtained a price estima te. Reynolds then contacted Ed

Lofland in Crown’s purchasing department to obtain a purchase order

number for the job. Lofland telephoned RSI and left a message for

salesperson Mike Elmore, notifying him that RSI needed to sign

Crown’s indemnification agreement. Reynolds also called to inform

RSI of the pu rchase order number and the need to sign the

paperwork; he did not discuss on the phone the specifics of Crown’s

insurance requirements.

Lofland prepared a written, computer-generated contract to be

executed by Crown and RSI (the “Crown/RSI Contract”). The contract

specified that its effective date was April 23, 1992. Paragraph

1.5 of the Crown/RSI Contract required RSI to make Crown an

additional insured on RSI’s Policy (the “Additional Insured

Requirement”):

. . . CONTRACTOR shall at all times during the progress

of the Work, and at CONTRACTOR’s own expense, on forms

and with insurers acceptable to CROWN, carry and maintain

the minimum insurance coverage which is desc ribed in

Exhibit “A,” which Exhibit is attached to this AGREEMENT

and made a part of this contract. CONTRACTOR shall

furnish to CROWN the original or copies of the insurance

certificates which evidence such insurance coverage.

CROWN shall be added as an additional named ins ured in

all such certificates, except insurance providing

protection against worker’s or workmen’s compensation

claims.

On the a fternoon of April 23, 1992, RSI’s salesperson told

Leon Bryce, a superintendent for RSI, to go to the refinery the2 This was an amended motion for summary judgment; Generali

earlier filed a motion for summary judgment that was withdrawn and

is not at issue in this appeal.

4 next morning to sign Crown’s paperwork. On the morning of April

24, 1992, purchasing manager James Davis signed the Crown/RSI

Contract on behalf of Crown. Shortly before noon, Bryce arrived at

Crown’s offices to sign the Crown/RSI Contract as he had been

instructed. However, because the Crown representative with whom

Bryce was to meet had stepped out of the office, Bryce proceeded to

the RSI job site without signing the contract.

Thirty to forty-five minutes later, a fire occurred at the RSI

job site on Crown’s premises. Two members of the RSI crew were

injured (the “Accident”). Approximately three hours after the

Accident, Bryce r eturned to Crown’s offices and signed the

Crown/RSI Contract. Four months later, the two injured RSI

employees sued Crown in the 189th District Court of Harris County,

Texas. The lawsuit, styled D onald Ray Harrison and Robert Keith

Suits, Jr. v. Crown Central Petroleum Corp. And Cecil A. Buffalo

,

Civil Action No. 92-035808, resulted in monetary loss to Crown.

Generali brough t a declaratory action in the United States

District Court for the Southern District of Texas to determine the

legal rights of certain parties under the Generali/RSI Policy.

Crown filed a third-party complaint against Gow and Hanna Insurance

and others. Cigna intervened. Generali moved for summary judgment

against Crown, 2 arguing that (1) RSI was not contractually bound to3 There was a question as to whether the severance order of

May 19, 1995, could be treated as a Rule 58 judgment and, thus,

whether Crown’s first notice of appeal was timely filed. Fed. R.

Civ. P. 58. This question became moot after the district court

entered the Rule 58 judgment on September 25, 1995, and Crown

timely filed a second notice of appeal.

5 include Crown as an additional insured at the time of the Accident,

(2) the known-loss rule under Texas law precluded making insurance

coverage retroactive when the insured had knowledge of the incident

at the time coverage was created, and (3) the Accident was not an

“occurrence” as defined by the Generali/RSI Policy. The district

court entered a memorandum and order granting Generali’s motion for

summary judgment on April 4, 1995. The order was not appealable

because it did not dispose of Generali’s claims against the other

defendants, Crown’s third-party claims, or Cigna’s claims.

Therefore, Crown filed an unopposed motion for severance. On May

17, 1995, the district court signed an order severing Generali’s

claims against Crown into a new case and subsequently the district

court amended the order to renumber the severed case. Crown filed

a notice of appeal eight days aft er the severance. On September

25, 1995, t he district court entered a Rule 58 separate-document

judgment; that same day, Crown filed a notice of appe al from the

Rule 58 judgment. 3

II. ANALYSIS

We review the granting of summary judgment de novo , applying

the same criteria used by the district court in the first instance.4 The parties agree that Texas substantive law governs this

dispute.

6 Norman v. Apache Corp.

, 19 F.3d 1017, 1021 (5th Cir. 1994);

Conkling v. Turner

, 18 F.3d 1285, 1295 (5th Cir. 1994). First, we

consult the applicable law to ascertain the material factual

issues. King v. Chide , 974 F.2d 653, 655-56 (5th Cir. 1992). We

then review the evidence bearing on those issues, viewing the facts

and inferences to be drawn therefrom in the light most favorable to

the nonmoving party. L emelle v. Universal Mfg. Corp.

, 18 F.3d

1268, 1272 (5th Cir. 1994); FDIC v. Dawson

, 4 F.3d 1303, 1306 (5th

Cir. 1993), cert. denied

, 114 S. Ct. 2673 (1994). Summary judgment

is proper "if the pleadings, depo sitions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law." Fed. R. Civ. P. 56(c). Where the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party, a dispute about a material fact is “genuine.”

Meadowbriar Home for Children, Inc. v. Gunn

, 81 F.3d 521, 533 (5th

Cir. 1996 )(citing A nderson v. Liberty Lobby, Inc.

, 477 U.S. 242,

248 (1986); Amburgey v. Corhart Refractories Corp., Inc.

, 936 F.2d

805, 809 (5th Cir. 1991).

In the instant case, the district court concluded that, under

Texas law, 4 the known-loss doctrine precluded cov erage for Crown

under t he Additional Insured Requirement of the Crown/RSI5 In its amended motion for summary judgment, Generali

argued, inter alia , that the Accident did not meet the definition

of “occurrence” under the terms of the Generali/RSI Policy because

it was “expected or intended.” Although the district court

acknowledged but did not address this argument, Generali reurges it

on appeal.

7 Contract. 5 According to the known-loss doctrine, an attempt to

create insurance coverage retroactively for an accident that

predates the policy’s coverage is legally ineffective if either the

insurer or th e insured knew of the accident at the time the

coverage is created. Burch v. Commonwealth County Mut. Ins. Co.

,

450 S.W.2d 838, 840-41 (Tex. 1970). Because it is undisputed that

Bryce did not sign the Crown/RSI Contract on behalf of RSI until

after the Accident and because the Additional Insured Requirement

was not discussed explicitly before Bryce signed the contract, the

district court found that Crown d id not become an additional

insured under the Generali/RSI Policy until after the Accident.

Crown argues, however, that RSI accepted Crow n’s offer,

including the Additional Insured Requirement, on April 23, 1992,

when RSI agreed to sign Crown’s paperwork, or at the latest, when

RSI began servicing Crown’s tail gas recovery unit on April 24,

1992. Accordingly, Crown maintains that, because the complete

Crown/RSI Contract was formed and became effective before the

Accident, the known-loss doctrine is not implicated in the case at

bar. Based on the summary judgment evidence and Texas law, we find

that there is a fact question as to whether the Additional Insured

Requirement was in effect at the time the Accident occurred.6 In Generali’s reply to Crown and Cigna’s responses to its

amended motion for summary judgment, Generali stated that it “does

not necessarily d isagree that RSI and Crown Central may have

reached so me agreement prior to the execution of the written

Agreement by RSI.”

8 A binding contract between two parties requires an offer and

acceptance. N ickerson v. E.I.L. Instruments, Inc.

, 874 S.W.2d 936,

939 (Tex. App.--Hou ston [1st Dist.] 1994, writ denied); s ee also

Crest Ridge Constr. Group, Inc. v. Newcourt Inc.

, 78 F.3d 146, 152

(5th Cir. 1996)(Benavides, J., specially concurring). There must

be a meeting of the minds as to all of the contract’s essential

terms. S mith v. Renz

, 840 S.W.2d 702, 704 (Tex. App.-Corpus

Christi 1992, writ denied); Calvin V. Koltermann v. Underream

Piling Co.

, 563 S.W.2d 950, 956 (Tex. Civ. App.--San Antonio 1977,

writ ref’d n.r.e.); see also Mesa Petroleum Co. v. Coniglio

, 629

F.2d 1022, 1026 (5th Cir. 1980). In order to accept the offer,

however, it i s not necessary that a party know all of the terms.

Lone Star Steel Co. v. Scott

, 759 S.W.2d 144, 152 ( Tex. App.--

Texarkana 1988, writ denied) (citing Restatement (Second) of

Contracts § 23 cmt. e). A contract may be formed as long as the

parties know the substance, if not all the details, of the

agreement. K arl Rove & Co. v. Thornburgh

, 39 F.3d 1273, 1293 n.87

(5th Cir. 1994).

The district court did not explicitly reject, and Gen erali

does not necessarily dispute, Crown’s contention that a contract

between Crown and RSI existed at the time of the Accident. 67 Generali concedes that RSI accepted an offer from Crown

before the Accident. However, the contract so created cannot be

the Crown/RSI Contract if the Additional Insured Requirement was an

essential term of the Crown/RSI Contract as Generali suggests.

9 Generali’s primary argument appears to be that the Additional

Insured Requirement was an essential term of the Crown/RSI Contract

and, because this term was not s pecifically discussed or agreed

to--as all essential terms must be, the Crown/RSI Contract was not

effective until Bryce actually signed the instrument containing the

Additional Insured Requirement. Generali appears to argue

alternatively that, while a contract may have existed at the time

of the Accident, the Additional Insured Requirement was not a part

of that contract. 7

According to Texas law, acceptance of an offer need not be in

writing. “[P]arties may enter into an oral contract even though

they are contemplating a formal writing.” Cothron Aviation, Inc.

v. Avco Corp.

, 843 S.W.2d 260, 263 (Tex. App.--Fort Worth 1992,

writ denied). Moreover, performance of the act which the offeree

was requested to promise to perform may constitute valid

acceptance. T homas v. Reliance Ins. Co.

, 617 F.2d 12 2, 128 (5th

Cir. 1980); United Concrete Pipe Corp. v. Spin-Line Co.

, 430 S.W.2d

360, 364 (Tex. 1968); see also Restatement (Second) of Contracts §§

31-32. “The rule in Texas is that a contract in writing signed by

one party and expressly accepted orally by the other, o[r] the

terms t hereof performed and the benefits thereof accepted, is in

law the written contract of the parties and binding on both.”10

Turner, Collie & Braden v. Brookhollow, Inc. , 624 S.W.2d 203, 213

(Tex. Civ. App.--Houston [1st Dist.] 1981), aff’d in part and rev’d

in part on other grounds

, 642 S.W.2d 160 (Tex . 1982); R ubin v.

P olunsky

, 366 S.W.2d 234, 236 (Tex. Civ. App.--San Antonio 19 63,

writ ref’d n.r.e.).

Whether RSI accepted the entire Crown/RSI Contract before the

Accident is a jury question. Because “[p]arties rarely express a

direct intention as to the moment when they conceive themselves to

be bound by a contract[,] . . . intention is usually an inference

to be drawn by the fact finder from other facts and circumstances

in evidence.” C othron 843 S.W.2d at 263-64. Crown maintains that

RSI was required to assent to all of the terms and conditions

contained in the Crown paperwork in order to secure the job

servicing Crown’s malfunctioning tail gas recovery unit. According

to Crown, therefore, as of April 23, 1992, the Additional Insured

Requirement was a part of its offer to RSI--a term wi thout which

Crown would not have contracted with RSI. Stated differently, the

Additional Insured Requirement was a condition precedent to the

formation of the contract. Under Texas law, whether parties

intended to form a contract is a question for the jury. C rest

Ridge

, 78 F.3d at 151. Thus, “to the extent that the [condition

precedent] co ncern[s] contract formation, it present[s] a jury

question.” Id. at 151 n.4; see Calvin , 563 S.W.2d at 956.

Reynolds testified that Crown and RSI “discussed the

particulars of the job” by phone on April 23, 1992. He stated that11

Crown and RSI agreed to the location of the job, the specific work

to be done, the time the work was to start, the materials RSI

needed to bring with them, and a price estimate. We believe that

a reasonable jury could find that Crown and RSI did not consider

t he Additional Insured Requirement an essential term of the

Crown/RSI Contract, but that Crown and RSI intended to be bound,

before the Acci dent occurred, by the entire Crown/RSI Contract,

including the Additional Insured Requirement. We believe a

reasonable jury could determine that RSI accepted Crown’s offer, on

April 23, 1992, orally--or, on April 24, 1992, by performance.

Lofland testified that he called Elmore at RSI and told the

receptionist “to have somebody come by to sign our indemnification

agreement.” Shank, executive vice president at RSI, testified that

customers of RSI routinely includ ed insurance requirements and

hold-harmle ss clauses in their contracts. He indicated that the

Crown/RSI Contract was “a very typical agreement betw een RSI and

one of its customers.” RSI superintendent Bryce testified that it

was his understanding that RSI had agreed to undertake the job at

the Crown refinery. He stated that an RSI salesperson told him, on

April 23, 1992, that RSI was sending a crew to begin a job at Crown

the next day. There is no dispute that RSI sent a crew to the

Crown refinery and began performing the servicing required under

the Crown/RSI Contract before the Accident occurred.

From the evidence presented to the district court, a

reasonable fact finder could conclude that RSI routinely entered12

into contracts with regular customers without knowing more about

their respective hold-harmless and insurance requirements than that

RSI must accept them. Testifying that, in order to work for a

customer, RS I typically was required to agree to the customer’s

terms, Shank added: “We agree to their terms and conditions, as

long as they fall within our guidelines.” He stated that he knew

of nothing in the Crown/RSI Contract that would have prevented RSI

from agreeing to it.

In its Memorandum and Order, the district court did not

address the issue of whether the Additional Insured Requirement was

an essential term of the Crown/RSI Contract or expressly resolve

the issue of whether RSI’s assent by phone to Crown’s offer, the

beginning of performa nce, or both, constituted acceptance. The

district court focused instead on one aspect of the parties’ course

of dealing. The court found that Crown’s prior course of dealing

was in sufficient to establish that the Additional Insured

Requirement was a term of the Crown/RSI Contract before the

Accident:

The summary judgment evidence precludes Crown Central’s

argument that because of its past course of dealing with

RSI, RSI as a matter of law agreed to make Crown Central

an additional insured even before RSI signed the

agreement.

However, in order to defeat Generali’s motion for summary judgment,

it was not necessary for Crown to show that RSI, as a matter of

law, agreed to th e Additional Insured Requirement before the

Accident. Rather, Crown was required to show only that a13

reasonable jury could find that RSI agr eed to the Additional

Insured Requirement before the Accident. Meadowbriar , 81 F.3d at

533.

Reiterating verbatim the language of Generali’s amended motion

for summary judgment, the district court noted that, of the jobs

performed by RSI in the dozen years preceding the Crown/RSI

Contract, “[o]nly four of the jobs i nvolved agreements that

required RSI to make Crown Central an additional insured on its

[Generali] policy” while, “on at least four occasions[,]” the jobs

did not involve such a requirement. In light of the totality of

the summary judgment evidence, we do not find this evidence

determinative.

More te lling, we believe, was the course of dealing with

regard to RSI’s acceptance of the terms and conditions included in

Crown’s written contracts. Crown produced summary judgment

evidence that RSI regularly agreed to Crown’s terms, sight unseen,

and signed Crown’s contracts without reading them. Shank testified

that, in the case of routine customers, RSI considered itself bound

by the terms and conditions of purchase orders received after the

commencement of work. He was asked whether RSI had a policy of

reviewing “the language contained in a purchase order before

agreeing to do work for the customer[:]”

A. Yes, we reviewed the language in a contract before

we’d do work with them on a first-time basis.

Q. Then after that you would not typically say, “Well,8 In a deposition t aken on September 15, 1994, Davis was

asked if RSI and Crown entered into a master service agreement in

May 1992 to “avoid any confusion or misunderstandings in the

future.”

A. There never was any confusion betwee n us and RSI

about a contract. The confusion is when there’s an

incident and attorneys get involved.

. . . .

Q. At the time you signed the blanket agreement with

RSI in May of 1992, did you form an opinion at that

particular time that there had been some

misunderstandings or confusion about what legal

obligations Crown had or that third-party contractors

had?

A. Absolutely none between Crown and RSI. They had

absolutely no problem with signing our agreement because

I felt like it was their understanding. This was nothing

more than what they had been doing all along.

14 wait a minute, I have to read” --

A. I don’t read every purchase order on routine

customers, no.

Q. Is there anything unusual, to your understanding,

back in April of 1992 for a salesperson of RSI to agree

to sign a customer’s paperwork in order to do the work?

A. For routine customers, it was not.

Davis testified that ther e was no misunderstanding or confusion

between Crown and RSI as to the nature of their contractual

relation ship. 8 Bryce testified that, on June 23, 1992, he was

instructed to go to Crown for a specific purpose--“[t]o sign a work

order for the work.”

Generali directs our attention to a number of contract cases

in support of its contention that Crown and RSI had not agreed to

the terms of the Crown/RSI Contract at the t ime of the Accident.15

In each of these cases, however, the existence of a contract, or

the existence or meaning of one or more of its terms, was disputed

by one of the purported parties to the contested contract. The

case s ub judice involves nothing of the sort. In this case,

neither Crown or RSI contests the existence of the Crown/RSI

Contract; neither party disputes the meaning or the validity of any

of its terms, the Additional Insured Requirement included.

“[Texas] courts rightfully assume tha t the parties to a contract

are in the best position to know what was intended by the language

they employed, by their subsequent acts relative to it.” Droemer

v. Transit Mix Concrete

, 457 S.W.2d 332, 335 (Tex. Civ. App.--

Corpus Christi 1970, no writ) (citation omitted).

We find that there was sufficient summary judgment evidence as

to when there was a meeting of th e minds on the various terms of

the Crown/RSI Contract, essential and otherw ise, to carry these

issues to the jury. Thus, summary judgment was improper on the

issue of whethe r Crown was an additional insured under the

Generali/RSI Policy when the Accident occurred. Because this issue

must be left to the jury, there is no need to consider the knownloss issue or the “occurrence” issue raised by Generali.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court

is REVERSED and the cas e is remanded for further proceedings16

consistent with this opinion.