579 F.3d 469 (5th Cir. 2009), 08-10381, Ooida Risk Retention Group, Inc. v. Williams

Docket Nº:08-10381.
Citation:579 F.3d 469
Opinion Judge:EMILIO M. GARZA, Circuit Judge:
Party Name:OOIDA RISK RETENTION GROUP, INC., Plaintiff-Appellant, v. Derrick Shamoyne WILLIAMS, Defendant, v. Edith Knighton, as next friend of B.L.W. a minor child; Terra Moses-White, as next friend of B.L.W. a minor child; N'Gai Browning, as next friend of T.M. Jr., a minor child, Intervenors-Appellees.
Attorney:Thomas W. Fee, Rebecca Elizabeth Bell, Timothy Russell George, Fee, Smith, Sharp & Vitullo, Dallas, TX, Plaintiff-Appellant. Julia Fields Pendery, Dallas, TX, for Intervenors-Appellee.
Judge Panel:Before REAVLEY, BARKSDALE and GARZA, Circuit Judges.
Case Date:August 12, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 469

579 F.3d 469 (5th Cir. 2009)

OOIDA RISK RETENTION GROUP, INC., Plaintiff-Appellant,

v.

Derrick Shamoyne WILLIAMS, Defendant,

v.

Edith Knighton, as next friend of B.L.W. a minor child; Terra Moses-White, as next friend of B.L.W. a minor child; N'Gai Browning, as next friend of T.M. Jr., a minor child, Intervenors-Appellees.

No. 08-10381.

United States Court of Appeals, Fifth Circuit

August 12, 2009

Page 470

[Copyrighted Material Omitted]

Page 471

Thomas W. Fee, Rebecca Elizabeth Bell, Timothy Russell George, Fee, Smith, Sharp & Vitullo, Dallas, TX, Plaintiff-Appellant.

Julia Fields Pendery, Dallas, TX, for Intervenors-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY, BARKSDALE and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

This appeal arises out of litigation pertaining to a single-vehicle accident that killed Tony Moses (" Moses" ). Moses was the sole proprietor of Slim Shady Express and a commercial motor carrier. At the time of the accident that killed Moses, Moses' tractor-trailer was being driven by Derrick Shamoyne Williams. Ooida Risk Retention Group, Inc., Moses' insurer, brought an action in federal district court to obtain a declaration that it owed no duty to defend or indemnify Williams in any underlying negligence suit against Williams. Moses' family (" Intervenors" ) intervened in the federal action, and the district court granted summary judgment to Intervenors. Ooida contends on appeal that the district court erred in finding that no exclusion applied to deny coverage under Moses' insurance policy. Because we find that Moses and Williams are statutory " employees" under the Motor Carrier Safety Act, and that the " Fellow Employee" exclusion thus applies to deny coverage, we reverse the district court and render summary judgment in favor of Ooida.

I

Ooida issued a standard Commercial Motor Carrier Policy (the " Policy" ) to Slim Shady Express, a federally regulated interstate motor carrier under the Motor Carrier Safety Act. The Policy provided $1 million in liability coverage for tractor-trailer rigs owned and operated by Moses.

At the time of the accident, Williams was driving the tractor-trailer rig on an interstate in Florida. Williams lost control of the rig, causing it to overturn and roll down an embankment. Moses, who was occupying the rig's sleeper berth, was crushed and killed. Moses' family members filed a negligence suit in state court against Williams. Ooida provided a defense to Williams under a reservation of rights.

Ooida subsequently filed a declaratory judgment action in federal district court, seeking a judicial declaration that it owed no duty under the Policy to defend or indemnify Williams in the underlying negligence suit. Moses' family successfully intervened, and the parties filed cross motions for summary judgment. The district court denied Ooida's motion and granted Intervenors' motion for summary judgment, holding that Ooida had a duty to defend Williams in the underlying suit. The court found that Williams was an " insured" under the Policy, and that the " Employee Indemnification" and " Fellow Employee" exclusions contained in the Policy did not operate to preclude coverage, as the court could not determine whether Williams was an " employee" of Moses. The district court also found that the " occupant hazard endorsement" was void because it conflicted with Texas's statutory requirements for minimum liability insurance. The court concluded that the Ooida's liability was the full policy limit of $1,000,000. Ooida timely appealed.

II

We review the grant of a motion for summary judgment de novo, applying the same standards as the district court. Mid-Continent Cas. Co. v. JHP Dev., Inc., 557 F.3d 207, 212 (5th Cir.2009). The

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insurer's duty to defend is a question of law that is also reviewed de novo. Liberty Mut. Ins. Co. v. Graham, 473 F.3d 596, 599 (5th Cir.2006). Summary judgment is proper when, viewing the evidence in light most favorable to the non-moving party, the record reflects that no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).

As the parties agree, Texas law governs this insurance dispute. In Texas, the insurer's duty to defend is governed by the " eight corners rule," which holds that the duty to defend is determined solely from the terms of the policy and the pleadings of the third-party claimant. JHP Dev., Inc., 557 F.3d at 212 (citing GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 307 (Tex.2006)). Only these two documents are ordinarily relevant to the duty-to-defend inquiry. Graham, 473 F.3d at 599-600. " [A] plaintiff's factual allegations that potentially support a covered claim are all that is needed" to invoke the duty to defend; the duty to defend does not rely on the truth or falsity of the allegations. JHP Dev., Inc., 557 F.3d at 212 (citing GuideOne, 197 S.W.3d at 310). If the underlying pleading alleges facts that may fall within the scope of coverage, the insurer has a duty to defend; if, on the other hand, the pleading only alleges facts excluded by the policy, there is no duty to defend. Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d 523, 528 (5th Cir.2004).

While the duty to defend depends on the allegations in the pleadings, the " duty to indemnify is triggered by the actual facts that establish liability in the underlying lawsuit." Columbia Cas. Co. v. Ga. & Fa. RailNet, Inc., 542 F.3d 106, 111 (5th Cir.2008) (internal quotation marks and citations omitted). Accordingly, an insurer's duty to defend and duty to indemnify are distinct, as in general the underlying suit must be resolved in order to determine the latter. Id.

III

Ooida argues that several policy exclusions apply to deny coverage and thus to foreclose its duty to defend.

A

As an initial matter, the parties' arguments rely on differing assumptions about who is the " insured" under the plan. Ooida contends that the " insured" is Slim Shady Express, and that Moses is thus an " employee" of the named insured. Intervenors, however, argue that Williams, as the party against whom the claim is asserted, is the " insured." We must thus first look to the relevant policy provisions to determine who is the " insured" party for purposes of coverage.

Under " Who is an insured," the Policy states:

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 ...

The Policy's definition of " insured" also contains a clause that states that " coverage applies separately to each insured seeking coverage or against whom a claim or suit is brought." In Commercial Standard Insurance Co. v. American General Insurance Co., 455 S.W.2d 714 (Tex.1970), the Texas...

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