United States Court of Appeals

Fifth Circuit



## FILED

January 7, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 02-30422

Summary Calendar

_____________________

MELODY JO LOPER; ET AL.,

Plaintiffs,

MELODY JO LOPER; MARSHALL LOPER; TERRY G. LOPER; MARTHA LOPER;

CLINT LOPER; SHANNA LOPER; MALCOLM D. LOPER,

Plaintiffs-Appellants,

versus

HARRIS DUFRENE; ET AL.,

Defendants,

NATIONAL UNION FIRE INSURANCE COMPANY

Defendant-Appellee

----------------------------

THOMAS GRANT MOORE; ET AL.,

Plaintiffs,

HAROLD DAVID ANDREWS

Plaintiff-Appellant,

versus

PGS EXPLORATION (US) INC; ET AL.,

Defendants,

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH,

PENNSYLVANIA,

Defendant-Appellee.

--------------------- Appeals from the United States District Court

for the Eastern District of Louisiana

(99-CV-1350-L c/w 99-CV-2358-L)

---------------------

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.* Pursuant to 5 TH C IR

. R. 47.5, the court has determin ed that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

1 Although CDI operated the van, it did so under a lease from

Centanni and Company, the owner of the van.

2 PER CURIAM: *

Plaintiffs-Appellants appeal the district court’s final

judgment filed on March 5, 2002, dismissing their claims against

National Union Fire Insurance Company of Pennsylva nia (“NUFIC”).

They contend that the district court erred in its analysis of the

NUFIC insurance contract here at issue. For the reasons that

follow, we affirm.

I. Facts and Proceedings

This litigation (originally two suits, which were consolidated

in the district court) arises out of a collision between a van and

a dump truck that occurred on Louisiana Highway 1 in LaFourche

Pari sh, Louisiana. Appellant Harold Andrews (“Andrews”) and

Wallace Loper, the husband of Appellant Melody Jo Loper (“Mrs.

Loper”), were passengers in the van at the time of the accident.

Both were employees of PGS Exploration, Inc. (“PGS”). PGS had

contracted with the van’s operator, Central Dispatch Incorporated

(“CDI”), 1 to provide transportation for its employees from Port

Fourchon, Louisiana, where the seismic vessel on which they worked

was docked , to New Orleans airport for transportation home.

Wallace Loper was killed in the collision and Andrews was rendered2 Se e Loper v. National Union Fire Ins. Co.

, No. Civ.A.

99-1350, 2002 WL 88942 (E.D. La. Jan. 22, 2002) (unpublished).

3 See

, e.g.

, Kona Tech. Corp. v. S. Pac. Transp. Co.

, 225 F.3d

595, 601 (5th Cir. 2000).

3 a ventilator-dependent quadriplegic.

Andrews and Mrs. Loper brought separate suits against, inter

alia

, NUFIC, which furnished insurance (the “Policy”) to PGS and

its employees. In their suits, these Appellants contended that the

Policy’s uninsured motorist (“UIM”) cov erage of PGS included the

van’s passengers at the time of the crash. The suits against NUFIC

proceeded to a bench trial, and in a January 2002 order, the

district court denied Appellants’ Motio n for Judgment against

NUFIC, finding that they had not established that the van in which

Andrews and Wallace Loper were traveling was a “covered auto” under

the UIM provision o f the Policy. 2 This, in turn, meant that

Andrews and Wallace Loper were not “cover ed individuals” at the

time of the accident. On March 5, 2002, the district court

rendered judgment for NUFIC and dismi ssed Appellants’ claims

against it with prejudice.

II. Analysis

A. Standard of Review

The district court’s findings of fact will not be set aside

unless clearly erroneous, but we review any conclusions of law de

novo

. 3

B. Was the van a “covered auto”?4 Appellants argue that language taken from the “Business Auto

Coverage Form” indicates that any auto “lease[d], hire[d],

rent[ed], or borrow[ed]” by PGS is a “covered auto” under the UIM

provision. That definition, however, is only applicable if the

Declarations page of the Policy references the corresponding code

in its UIM section, which it does not. It instead references the

UIM Endorsement page, which contains the “covered auto” definition

quoted above.

5 The dist rict court had decided in February 2001 that Texas

law governs this dispute, a decision that has not been challenged.

4 The essential question is whether the van at issue was a

covered vehicle under the terms of the Policy’s UIM provision. The

UIM provision dictates that a vehicle is covered under the policy

in either of two situations: (1) when it is “owned or leased” by

the insured (in this case, PGS), or (2) when it is “tem porarily

used as a substitute” for an “owned covered auto” that is unusable

because of mechanical problems. 4 No one disputes that PGS did not

own the van, and that it was not being used in place of another

temporarily disabled vehicle. Therefore, the question presented is

whether the vehicle was leased by PGS.

As the district court noted in its order denying judgment to

Appellants, t here was evidence at trial that PGS contracted with

CDI for performance of a variety of services in addition to

transporting employees, including warehousing and transporting

parts. There is, of course, a substantial difference between

contracting to perform services and merely leasing a vehicle. And,

as the district court noted, applicable Texas law 5 supports the

finding that no lease existed in the instant case. Specifically,6 4 S.W.3d 915, 918 (Tex. App. — Dallas 1999, pet. denied).

7 See id. (citing Toops v. Gulf Coast Marine Inc. , 72 F.3d

483, 487 (5th Cir. 1996)).

8 For r easons that should now be obvious, the appellants’

request for attorneys’ f ees is also rejected. Similarly, we

decline to certify any purported questions of Texas law raised in

this case to the Te xas Supreme Court, which Appellant Andrews

requested in his reply brief.

5 Griffin v. Travelers Indemnity Co. dictates that no lease exists if

the purported lessee does not have “exclusive use or control” of

the ve h icle. 6 Here, the evidence indicates that PGS did not have

such exclusive control. Furthermore, the G riffin court found

persuasive our reasoning from Toops v. Gulf Coast Marine Inc.

,

which required a separate contract to establish that a vehicle was

“hired” 7 —— also absent in the instant case.

In short, the evidence at trial showed conclusively not that

PGS leased the vehicle in question, but that it contracted with CDI

for a number of services among which was included the

transportation of employees. This conclusion is fully supported by

applicable Texas law; and, when viewed in the light of the

unambiguous language of the Policy, the van was not a “covered

auto” under the UIM provision of the Policy. In fact, given that

Policy language (and, notwithstanding Appellants’ transposition of

inapplicable language to make it appear otherwise) and the state of

Texas law, this appeal approaches the line separating permissively

aggressive advocacy from frivolousness. 8

III. Conclusion6

For the foregoing reasons, all rulings of the district court

in this case are

AFFIRMED.