*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-51085

Summary Calendar

 

GUARANTY NATIONAL COMPANIES, Including State and County Mutual Fire

Insurance Company

Plaintiff-Appellant,

versus

THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, ET AL

Defendants

THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY; BURLINGTON

NORTHERN RAILROAD COMPANY, A Delaware Corporation, also known as

Burlington Northern Santa Fe

Defendants-Appellees.

 

Appeal from the United States District Court

For the Western District of Texas

SA-96-CV-1318

 

June 26, 1998

Before HIGGINBOTHAM, DAVIS, and DeMOSS, Circuit Judges.

PER CURIAM:*

Guaranty appeals the lower court’s grant of summary judgment

in favor of ATSF. In particular, Guaranty disagrees with the

magistrate’s holding that Guaranty has a duty to defend and

indemnify ATSF under the additional insured endorsement provision

of the contract between Guaranty and RMI. We affirm.
2

I

ATSF was named an “additional insured” in the insurance

contract extended by Guaranty to RMI. Under this provision,

Guaranty promised to cover ATSF “with respect to legal

responsibility for acts or omissions of a person for whom Liability

Coverage is afforded under this policy.” The effect of the

additional insured agreement is that Guaranty contracted to provide

coverage only for ATSF’s vicarious liability for RMI’s negligent

acts.

The Roths and Struble suits against ATSF seek to hold ATSF

liable for the negligent acts of ATSF’s agents while transporting

them during the course of employment. Though neither Roths nor

Struble expressly referred to RMI in their respective complaints,

they did expressly mention “ATSF’s agents” who were allegedly

negligent in their operation of the vehicle. It was not error for

the magistrate to observe the obvious that RMI was the “agent” to

which the Roths and Struble complaints implicitly referred. See

Int’l Service Ins. Co. v. Boll, 392 S.W. 2d 158, 161 (Tex. Civ.

App.--Houston 1965, writ ref’d n.r.e.) (finding no duty to defend

where insurance contract refused to cover any accident where Roy

Hamilton Boll was the driver; plaintiff alleged vehicle was driven

by his son; and plaintiff only had one son, Roy Hamilton Boll).

Under Texas law, coverage is to be presumed where there is a “doubt

as to whether or not the allegations of a complaint against the

insured state a cause of action within the coverage of a liability

policy.” Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387
3

S.W. 2d 22, 26 (Tex. 1965). Given that ATSF contracted with CTS to

locate a transportation provider and that CTS hired RMI to provide

such transportation for ATSF, there is at least a doubt as to

whether ATSF is vicariously liable for RMI’s alleged negligence in

operating the vehicle on the day in question. We agree with the

lower court that Guaranty has a duty to defend ATSF in the Roths

and Struble suits.

II

Guaranty argues to us that the employee exclusion provision in

the insurance contract issued to RMI eradicates its duty to defend

ATSF. Guaranty did not, however, present this argument in its

response to ATSF’s motion for summary judgment. Our reply to

Guaranty’s plea for us to receive this argument now has been

previously prepared by numerous prior panels:

Although on summary judgment the record is reviewed de

novo, this court for obvious reasons, will not consider

evidence or arguments that were not presented to the

district court for its consideration in ruling on the

motion.

Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir. 1996) (citations

omitted).

AFFIRMED.