*

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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-10166

Summary Calendar

_______________________

OKLAHOMA SURETY COMPANY,

Plaintiff-Appellee,

versus

ROBERT MCCAULEY

Defendant,

and

ROADRUNNER TRUCKING, INC; 

JIMMY LEE GIPSON; CLAREATHA OWENS

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(5:95-CV-174-C)

_________________________________________________________________

November 18, 1996

Before JOLLY, JONES and STEWART, Circuit Judges.

PER CURIAM:*

Roadrunner Trucking, Inc., Jimmy Lee Gipson, and

Clareatha Owens appeal the decision of the district court granting
2

summary judgment in favor of Oklahoma Surety Company. For the

reasons that follow, we AFFIRM.

DISCUSSION

The relevant facts are not disputed. On the evening of

April 25, 1993, Robert McCauley borrowed a truck owned by his

employer, Complete Service, Inc. (CSI), to help tow an inoperable

Pontiac Firebird belonging to Tammy Marricle from Union, Texas to

Marricle’s home in Snyder, Texas. The plan was to hook the

Firebird to the truck with a chain. All went well until McCauley

missed the turnoff to Marricle’s home. Rather than continue

traveling on U.S. Highway 84 to the next crossover, McCauley and

Marricle decided to unhook the Firebird, roll it back downhill to

the missed turnoff, and then reconnect the truck and the car and

proceed to Marricle’s home. Approximately three or four minutes

after stopping the truck on the side of the road, and after

unhooking the chain from the Firebird, Marricle’s Firebird was

struck by a truck owned by Roadrunner Trucking, Inc. The

Roadrunner Truck was driven by Jimmy Lee Gipson, with Clareatha

Owens as a passenger. The CSI truck was not physically involved in

the collision.

As could be expected, the accident resulted in lawsuits

against Complete Services, Inc., Marricle, and McCauley in state

court in Midland, Texas. Oklahoma Surety Company (OSC), which had
3

issued a business automobile insurance policy to CSI, filed a

complaint against McCauley, Roadrunner Trucking, Gipson, and Owens

in the United States District Court for the Northern District of

Texas seeking a declaratory judgment that McCauley was not an

insured under the OSC policy; that OSC had no duty to defend

McCauley; and that Roadrunner Trucking, Gipson, and Owens were not

potential third-party beneficiaries under the policy.

The insurance policy issued by OSC to CSI provides in

part:

We will pay all sums an insured legally must pay as

damages because of bodily injury or property damage to

which this insurance applies, caused by an accident and

resulting from the ownership; maintenance or use of a

covered auto. . . .

1. WHO IS AN INSURED

The following are insureds:

a. You for any covered auto.

b. Anyone else while using with your permission a

covered auto you own, hire or borrow . . . .

Business Auto Coverage Form, Section II - Liability Coverage. OSC

admits that McCauley is insured under the policy “while using” the

truck with CSI permission. OSC, however, asserts that McCauley was

not “using” the CSI truck at the time of the accident within the

meaning of the policy and that the collision did not “result from”

the use of the CSI truck.

The issue before the district court was whether a truck

which had stopped and was no longer attached to the vehicle it had

been towing, fell within the “while using” term of the OSC

insurance policy when an accident occurred between a third vehicle
4

and the towed vehicle. Both sides filed motions for summary

judgment. 

The district court granted OSC’s motion for summary

judgment. The district court found a complete lack of involvement

by either McCauley or the CSI truck in the accident and concluded

that the accident did not result from the “use” of the CSI truck.

The district court therefore held that McCauley is not an insured

under the OSC policy; that OSC is not obligated to defend or

indemnify McCauley; and that Gipson, Owens, and Roadrunner Trucking

are not potential third-party beneficiaries under the OSC policy.

Gipson, Owens, and Roadrunner Trucking timely appeal.

DISCUSSION

We review the district court’s grant of summary judgment

de novo, applying the same standard as the district court. Duffy

v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995).

Summary judgment is appropriate when there is no genuine issue of

material facts and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c); see Stewart Title Guaranty

Co. v. Old Republic National Title Insurance Co., 83 F.3d 735, 738

(5th Cir. 1996). The sole issue on appeal is whether as a matter

of law McCauley’s use of the CSI truck falls within the coverage

provided by the OSC insurance policy.

Federal courts sitting in diversity apply the substantive

law of the state in which they sit. Rogers v. Corrosion Products,
5

Inc., 42 F.3d 292, 295 (5th Cir.), cert. denied, __ U.S. __, 115 S.

Ct. 2614 (1995). Under Texas law, a contract of insurance is

subject to the same rules of construction applicable to other

contracts. State Farm Life Insurance Co. v. Beaston, 907 S.W.2d

430, 433 (Tex. 1995). The court’s primary concern in construing an

insurance policy is to determine the intention of the parties and

to give effect to their written expressions as contained in the

policy. National Union Fire Insurance Co. v. CBI Industries, Inc.,

907 S.W.2d 517, 520 (Tex. 1995); Beaston, 907 S.W.2d at 433.

Unless good reasons appear for doing otherwise, the language used

in an insurance policy must be given its ordinary meaning.

Commercial Standard Insurance Co. v. Hartzog, 619 S.W.2d 417, 419

(Tex. App. - Houston 1981, writ ref’d n.r.e.). If an insurance

policy is worded such that it can be given “only one reasonable

construction, it will be enforced as written.” State Farm Fire &

Casualty Co. v. Reed, 873 S.W.2d 698, 699 (Tex. 1993). If,

however, the policy is susceptible to more than one reasonable

interpretation, it is ambiguous and the court “must resolve the

uncertainty by adopting the construction most favorable to the

insured.” Id. Whether the insurance policy is ambiguous is a

question of law. CBI Industries, 907 S.W.2d at 520.

Appellants contend the district court erred in granting

summary judgment for OSC. Relying on Maryland Casualty Co. v.

Cross, 112 F.2d 58 (5th Cir.), cert. denied, 311 U.S. 701, 61 S.
6

Ct. 141 (1940) and Red Ball Motor Freight, Inc. v. Employers Mutual

Liability Insurance Co., 189 F.2d 374 (5th Cir. 1951), Appellants

assert that unhitching Marricle’s vehicle from the CSI truck was

merely a temporary cessation of the tow and that the collision was

a foreseeable consequence resulting from McCauley’s use of the CSI

truck. In essence, Appellants argue that but for McCauley’s use of

the CSI truck, the collision between the Roadrunner truck and

Marricle’s Firebird would not have occurred and therefore McCauley

was “using” the truck within the meaning of the OSC policy. We

disagree, and find that the decisions in Cross and Red Ball do not

support Appellants’ interpretation of the OSC insurance policy.

In Cross, the plaintiff was injured when his leg struck

the fender of a parked automobile owned by Kenneth Mason. At the

time of the accident, a trailer was attached to Mason’s vehicle.

Mason’s insurance company denied coverage based on a towing

exclusion contained in the insurance policy. The trial court

entered judgment in favor of plaintiff based on the fact that

Mason’s vehicle was standing still at the time of the accident and

therefore was not technically “towing” the trailer. This court

reversed, finding the trial court’s literal reading of the policy

unworkable. The court stated:

The fair and practical construction is that when Mason

attached the trailer to his automobile and started towing

it to Longview he waived his insurance for the trip, for

he was using the automobile for towing a trailer. A

casual stop on the way without leaving the highway or
7

detaching the trailer would not be a cessation of the use

which would restore the insurance.

Cross, 112 F.2d at 60.

In Red Ball, an employee of the plaintiff was to drive a

truck containing a shipment of cargo. The employee stopped at the

employer’s gas tank to fill the truck with gas. To pump gas, the

employee had to open a valve between two gasoline tanks. After

filling the truck, the employee negligently failed to properly

close the valve. Gasoline ultimately overflowed, ran down the city

gutters, and exploded. Plaintiff’s insurance company denied

coverage under a policy that provided for damages “arising out of

the ownership, maintenance, or use of the automobile,” defining

“use” to include the loading and unloading of the automobile. Red

Ball, 189 F.2d at 376 n.1.

The trial court found for the insurance company. This

court reversed. While not adopting the plaintiff’s theory that

fueling was a loading operation, the court noted that under the

“complete operation theory,” Texas courts broadly read loading and

unloading provisions to provide coverage for “foreseeable

consequences of what was done in connection with the use of the

car.” Id. at 377. The court concluded that “this act of the driver

of the [truck], in not closing the valve, was an act incident to,

and having a connection with, the ownership, maintenance, or use of

the truck.” Id. at 378.
8

Neither Cross nor Red Ball supports a reading of the OSC

insurance policy that would require OSC to provide coverage in this

case. The CSI truck had stopped, the tow chain had been detached,

and McCauley and Marricle were either planning to roll the Firebird

back down the hill or were in the process of doing so when the

accident occurred. This was not merely a “casual stop on the way.”

Cross, 112 F.2d at 60. Further, unlike the situation in Red Ball,

where filling the truck with gasoline was necessary to use the

vehicle, the act of towing and the acts that occurred here were

independent acts associated with, but not necessary to, the use of

the CSI truck. Finally, the phrase “while using” implies the

active use of an automobile. See Nationwide Property and Casualty

Insurance, Co. v. McFarland, 887 S.W.2d 487, 493 (Tex. App. -

Dallas 1994, writ denied)(“use” defined as “the employment of a

vehicle as a means of transportation, or some other purpose

incident to transportation”). As noted, the CSI truck in this case

was stopped and detached from the Firebird. In no sense was the

CSI truck in “use” at the time of the accident. Cf. Liberty Mutual

Insurance Co. v. American Employers Insurance Co., 556 S.W.2d 242,

245 (Tex. 1977)(unloading a vehicle is a “use” of the vehicle);

Federal Insurance Co. v. Forristall, 401 S.W.2d 285, 292 (Tex. App.

- Beaumont 1966, writ ref’d n.r.e.)(use of one’s own car to push

another is considered “use”); Wiebel v. American Farmers Insurance

Co., 140 A.2d 712, 713-14 (Del. Super. Ct. 1958)(fact that
9

automobile had been used and would again be used shortly thereafter

did not create a “use” when accident occurred during a period of

non-use).

CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.