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Plaintiff seeks a declaration regarding the damages sought by plaintiffs in a state court action in the

298th Judicial District Court in Dallas, Texas. These plaintiffs are: Maria Lopez, individually and as next

friend of Rolando Mejia, and Luis Enrique Alvarez, individually and as next friend of Vanessa Alanis and

of Carlos Benitez, and as representative of Ramona Patricia Alanis and of Ramona Patricia Alanis’s unborn

child. Lopez and Alvarez were granted leave to intervene as parties in this action on February 16, 2005. 

Memorandum Opinion and Order – Page 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LINCOLN GENERAL INSURANCE CO., §

§

Plaintiff, §

§

v. § Civil Action No. 3:04-CV-1535-L

§

AUTOBUSES TIERRA CALIENTE, INC., §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the court are: (1) Plaintiff’s Brief in Support of Court Vacating the September 13,

2005 Order, filed November 9, 2007; and (2) Defendant’s Position in Light of the 5th Circuit’s

Decision in Garcia Tours, filed November 9, 2007. After considering these briefs and the applicable

law, the court reopens this case, vacates in part its September 13, 2005 Memorandum Opinion and

Order, and grants Lincoln General Insurance Company’s Motion for Summary Judgment, filed

January 28, 2005.

Plaintiff in this case seeks a declaratory judgment that: (1) there is no coverage under an

insurance policy for damages sought by injured persons who filed a state court action arising out of

a bus accident in Mexico (the “Intervenors”);1 and (2) it has no duty to defend Defendant Autobuses

Tierra Caliente, Inc. for claims arising out of the accident in question. Pl.’s Orig. Compl. and

Request for Decl. Relief (“Compl.”) ¶ 16. Because the parties agreed to stipulate to certain facts,
Memorandum Opinion and Order – Page 2

the court issued a scheduling order that allowed the parties to move directly to summary judgment

briefing. Scheduling Order (Oct. 28, 2004). Plaintiff moved for summary judgment on January 28,

2005, and argued that it was entitled to relief because a policy endorsement, the MCS-90B

endorsement, does not apply to accidents that occur outside of the United States. On September 13,

2005, the court denied Plaintiff’s motion, found that the endorsement applied in this case, and

ordered Defendant and Intervenors to file motions for summary judgment. Defendant and

Intervenors filed motions for summary judgment on October 3, 2005.

On October 19, 2005, Plaintiff filed a motion to reconsider the denial of its summary

judgment motion and argued that the court should reconsider its order in light of a decision in the

Southern District of Texas in a case involving the same plaintiff and the same insurance

endorsement. That court reached the opposite conclusion and held that the endorsement did not

apply to the accident in that case. Before the court ruled on the motion for reconsideration, Plaintiff

filed a motion to stay or abate, asking the court to stay the case because the Southern District case

had been appealed to the Fifth Circuit Court of Appeals, in the case Lincoln General Insurance Co.

v. Maria de la Luz Garcia (“Garcia Tours”). The court denied without prejudice the motion for

reconsideration, granted the motion to stay, and denied without prejudice Defendant and

Intervenors’ pending motions for summary judgment. Intervenors then moved the court to

reconsider its order on the motion to stay. The court denied this second motion to reconsider on

August 28, 2006. 

On July 3, 2007, the court administratively closed this case and directed the parties to inform

it when the appellate court ruled in Garcia Tours. The court has now issued its decision in Garcia

Tours, 501 F.3d 436 (5th Cir. 2007). The court concluded:
Memorandum Opinion and Order – Page 3

Because the . . . accident occurred in Mexico, a place where the forhire motor carrier was not subject to the minimum financial

responsibility requirements of federal law, the MCS-90B

endorsement is not applicable and does not provide coverage for the

. . . accident. Thus, the district court did not err in concluding that the

MCS-90B endorsement does not apply.

Id. at 442. The court informed the parties that it believed that the Garcia Tours decision required

it to vacate its September 13, 2005 order and directed the parties to submit briefing on their

positions. The parties’ briefing is now before the court.

Plaintiff argues that the court should vacate the September 13, 2005 order and grant its

motion for summary judgment. Defendant attempts to distinguish Garcia Tours and argues that it

is an improper party in the underlying state court action. Defendant states that the proper party is

a Mexican entity named Autobuses de Guerrero, S.A. de C.V., and that Plaintiff has a duty to defend

it because it is improperly named as a Defendant.

The court determines that Garcia Tours is directly on point and in light of this authority, it

is clear that the MCS-90B endorsement does not apply to the accident in question and there is no

coverage. Accordingly, there is no genuine issue of material fact that the MCS-90B endorsement

does not apply and that Plaintiff has no duty to defend Defendant in the underlying state lawsuit, and

Plaintiff is entitled to judgment as a matter of law. 

Defendant’s eleventh-hour argument that the true issue is whether Plaintiff must defend it

as an improperly-named party does not save the day. Defendant pleaded in its Answer that it was

misnamed: 

The state court action is mistakenly directed to Autobuses Tierra

Caliente, Inc. The proper Defendant is a related company, Autobuses

de Guerrero, S.A. de C.V., which operates all of the tours within

Mexico, which maintains the necessary licenses to operate in Mexico

and which has insurance for its operations in Mexico. If Defendant
Memorandum Opinion and Order – Page 4

is actually the real party in the State Court Suit, then Plaintiff must

provide coverage under applicable Federal law as described herein

below and this matter should be decided in the state court.

Def.’s Amend. Orig. Answer and Counterclaim ¶ 18. Defendant stated in both its response to

Plaintiff’s motion for summary judgment and its motion for summary judgment that once in Mexico,

the bus was operated by the Mexican entity, and filed an affidavit in support of this statement. Its

briefing, however, focuses on whether the Department of Transportation has jurisdiction outside of

the United States, and whether the particular endorsement applies to an accident that occurred in

Mexico. The issue of whether Defendant was the proper party was not briefed by the parties when

the court considered Plaintiff’s or Defendant’s motion for summary judgment. Defendant’s focus

was whether the endorsement applied, and it did not argue that Plaintiff had a duty to defend it as

an improperly sued party. 

The court determines that Defendant’s argument at this stage that it is an improperly-named

party and that there is an issue regarding Plaintiff’s duty to defend it as an improperly-named party

comes too late. Defendant failed to raise this issue– even though it had two distinct opportunities

to do so: in responding to Plaintiff’s motion for summary judgment and in its own motion for

summary judgment – until the appellate court held that its substantive position on the applicability

of the endorsement was incorrect. Because Defendant did not raise this issue in response to

Plaintiff’s motion for summary judgment or as part of its motion for summary judgment, the court

concludes that its last minute attempt at a “Hail Mary” to save its defense comes too late and is

waived. Moreover, even if Defendant did not waive this argument, it does not alter the outcome.

If the policy does not does not provide for coverage of the bus accident in Mexico, that a party is
Memorandum Opinion and Order – Page 5

properly or improperly named is of no moment, as it does not alter the nonapplicability of the policy

endorsement.

The court directs the clerk of the court to reopen this case. The court determines that for

the relief sought by Plaintiff in its original motion for summary judgment, the Garcia Tours decision

mandates that the court vacate sections II(B)(2) and III of its September 13, 2005 Memorandum

Opinion and Order. The court grants Plaintiff’s motion for summary judgment because there is no

genuine issue of material fact regarding the applicability of the MCS-90B endorsement.

Accordingly, the court determines that the MCS-90B endorsement does not apply to the bus accident

in question and declares that: (1) there is no coverage under Policy Number LPA101811 for any

damages claimed by: Maria Lopez, individually, and as next friend of Rolando Mejia, and Luis

Enrique Alvarez, individually, and as next friend of Vanessa Alanis and of Carlos Benitez, and as

representative of Ramona Patricia Alanis and of Ramona Patricia Alanis’s unborn child, and (2)

Plaintiff has no duty to defend Defendant against any such claims under the terms of Policy Number

LPA101811. The court will issue judgment by separate order pursuant to Rule 58 of the Federal

Rules of Civil Procedure.

It is so ordered this 15th day of January, 2008.

_________________________________

Sam A. Lindsay

United States District Judge