IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60872

PROGRESSIVE GULF INSURANCE COMPANY

Plaintiff - Appellee

v.

MARIA PALACIOS ESTATE, deceased; MARIANO PALACIOS; JOANNY

MARIANA PALACIOS; C.N.P., a minor, through his natural guardian, Mariano

Palacios

Defendants - Appellants

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:08-CV-494

Before GARZA and BENAVIDES, Circuit Judges, and CRONE , District Judge.

*

PER CURIAM:

**

The Estate of Maria Palacios (“Palacios Estate”) appeals the district court’s

denial of its partial summary judgment motion, as well as the district court’s

grant of Progressive Gulf Insurance Co.’s (“Progressive”) summary judgment

United States Court of Appeals

Fifth Circuit

F I L E D

September 3, 2010

Lyle W. Cayce

Clerk

 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.

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motion. For the following reasons, we AFFIRM in part, and REVERSE and

REMAND in part.

Darel Thigpen and his wife founded Glorious One Ministries (“Glorious

One”), a transportation ministry whose purpose was to provide transportation

to students and team members at the schools where Thigpen worked as

headmaster. Progressive insured a 1990 MCI forty-eight passenger bus owned

and operated by Glorious One. The MCI bus was used to transport school

basketball players to and from tournaments. It served that purpose until

breaking down while en route to a tournament. Lacking the funds necessary to

make repairs on the MCI bus, Thigpen repaired a fifteen-passenger Chevy van

that Glorious One owned, but that had been inoperable, in order to transport the

students.

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Although the MCI bus remained inoperable, Thigpen renewed the

insurance policy on the bus but continued to use the Chevy van for

transportation. A few months later, Thigpen was involved in a motor vehicle

accident while driving the Chevy van, which resulted in the death of Maria

Palacios (“Palacios”). The Palacios Estate filed a wrongful death action against

Thigpen, who, in turn, filed a claim for coverage under the Progressive policy.

Shortly thereafter, Progressive filed a declaratory judgment action in the

district court, seeking a declaration that it was not required to provide coverage

to Thigpen for his use of the Chevy van. The Palacios Estate counter-claimed,

seeking, inter alia, a declaratory judgment that Progressive was required to

provide coverage under its policy. Both claims center on a provision in the

insurance contract regarding whether the Chevy van was a “temporary

substitute auto” and therefore covered under the insurance agreement. In

particular, the policy stipulated Progressive would provide coverage to “[a]ny

 The Chevy van was not insured during the time period relevant to this dispute. 1

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auto specifically described on the Declaration Page,” including any “temporary

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substitute autos.” “Temporary substitute auto” was defined under the policy as

“any auto used, with the permission of its owner, as a substitute for an insured

auto that has been withdrawn from normal use due to breakdown, repair,

servicing, loss or destruction.”

Both parties moved for summary judgment as to whether the Chevy van

was both a “substitute” and a “temporary” vehicle. The district court determined

that genuine issues of material fact existed as to whether the Chevy van was a

“substitute” vehicle, denying summary judgment for both parties on that issue.

However, the district court also found that Thigpen intended to use the van for

“an unlimited or indefinite” amount of time and, thus, that there was no genuine

issue of material fact as to whether Thigpen’s use of the Chevy van was

“temporary.” Accordingly, the district court granted Progressive’s motion for

summary judgment.

Progressive also moved for summary judgment on whether the Palacios

Estate’s claims for contribution and indemnity were foreclosed by the voluntary

payment doctrine. The district court denied summary judgment on that issue,

finding that factual questions remained on whether recovery was barred by the

doctrine.

We review the district court’s grant of a FED. R. CIV. P. 56(c) summary

judgment motion de novo. In re Egleston, 448 F.3d 803, 809 (5th Cir. 2006). We

will affirm summary judgment if the record reveals no genuine issue of material

fact and the movant is entitled to judgment as a matter of law. Croft v. Governor

of Tex., 562 F.3d 735, 742 (5th Cir. 2009). On cross-motions for summary

judgment, we review each party’s motion independently, viewing the evidence

The parties do not dispute that only the MCI bus was identified on the policy’s 2

Declaration Page.

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and inferences in the light most favorable to the nonmoving party. Ford Motor

Co. v. Tex Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001).

First, the Palacios Estate appeals the district court’s denial of its motion

for partial summary judgment on the ground that genuine issues of material fact

existed as to whether the Chevy van constituted a “substitute” for the MCI bus.

The district court did not err in determining that there are sufficient structural

dissimilarities between the two vehicles and conflicting deposition testimony

discussing the prior uses of those vehicles to preclude determining as a matter

of law that the Chevy van was a “substitute” vehicle. Accordingly, we affirm the

district court’s denial of the Palacios Estate’s motion for summary judgment on

this issue.

The Palacios Estate also appeals the district court’s grant of summary

judgment in favor of Progressive as to whether the Chevy van constituted a

“temporary” vehicle. As a federal court sitting in diversity, we look to

Mississippi law to construe the insurance policy in this case. See Erie R.R. Co.

v. Tompkins, 304 U.S. 64, 78)80 (1938); Centennial Ins. Co. v. Ryder Truck

Rental, Inc., 149 F.3d 378, 382 (5th Cir. 1998). No Mississippi case, however,

has considered the meaning of “temporary” in the context of insurance coverage

for a “temporary substitute vehicle.” Courts in other states have analyzed

similar provisions, differing significantly on how to construe the term, and many

focus on the operator’s intent when evaluating the permanency of the

substitution. Compare Armstrong v. Nationwide Mut. Ins. Co., 209 S.E. 2d 903,

904 (Va. 1974) (no coverage under temporary substitute vehicle provision where

substitute use “was of an unlimited or indefinite duration”), and Duncan Auto

Realty, Ltd., v. Allstate Ins. Co., 754 So. 2d 863, 865 (Fla. Dist. Ct. App. 2000)

(temporary use “means that a substituted vehicle’s use is to be of limited

duration, at the conclusion of which the substitute vehicle is to be discarded”),

with Nat’l Indem. Co. v. Ryder Truck Rental, Inc., 472 So. 2d 856, 858 (Fla. Dist.

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Ct. App. 1985) (“Whether a substitute automobile is used temporarily is a matter

of intent, the use being deemed temporary where it was intended not be used

permanently.”), and St. Paul Fire & Marine Ins. Co. v. Nyquist, 175 N.W.2d 494,

497–98 (Minn. 1970) (holding that use of an automobile may be “temporary”

even if used for several months, “so long as the owner does not view such use as

permanent”). Given the difference of opinion among state courts on how the

word “temporary” may be construed within the context of a “temporary

substitute vehicle” provision, reasonable minds could differ on interpretation of

the term in the insurance policy at issue. Here, we will apply a construction that

favors the insured, the Palacios Estate. See Nationwide Mut. Ins. Co. v. Lake

Caroline, Inc., 515 F.3d 414, 419 (5th Cir. 2008); FDIC v. Firemen’s Ins. Co., 109

F.3d 1084, 1087 (5th Cir. 1987).

This case presents a fact-specific dispute as to whether Thigpen intended

to make the necessary repairs to the MCI bus, such that the Chevy van was a

“temporary” substitute. Thigpen had been using the Chevy van for nearly

fourteen months at the time of the accident giving rise to this case. And, as the

district court noted, he could not say when the MCI bus would be repaired. On

the other hand, Thigpen renewed his insurance policy with Progressive on the

disabled vehicle even though it had become inoperable eleven months earlier.

The evidence included an affidavit from one witness who talked with Thigpen

at various times about the van’s temporary status. And indeed, Thigpen’s own

affidavit alleged that “[t]he Chevy van was never intended to be a permanent

replacement for the MCI bus” and that “[i]t was a temporary substitute vehicle

up until [the date of the accident].” We conclude that a genuine issue of

material fact exists on the issue of whether Thigpen intended the Chevy van to

serve as a “temporary” substitute for the disabled MCI bus, and reverse the

district court’s grant of summary judgment in favor of Progressive.

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Last, the Palacios Estate asks us to consider, both substantively and

procedurally, the district court’s ruling that denied Progressive’s motion for

summary judgment based on the voluntary payment doctrine. Progressive has

not cross-appealed the district court’s ruling and we decline the Palacios Estate’s

invitation to undertake an advisory review of that ruling. Our review of the

record reveals no procedural error in the district court’s consideration of that

motion. See Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009).

AFFIRMED in part, REVERSED in part, and REMANDED.

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