637 Fed.Appx. 113 (5th Cir. 2015), 15-10279, Liberty Insurance Corporation v. Dixie Electric, L.L.C.

Docket Nº:15-10279
Citation:637 Fed.Appx. 113
Opinion Judge:PER CURIAM:
Party Name:LIBERTY INSURANCE CORPORATION, Plaintiff - Appellee v. DIXIE ELECTRIC, L.L.C., Defendant - Appellant
Attorney:For LIBERTY INSURANCE CORPORATION, Plaintiff-Counter Defendant - Appellee: Catherine L. Hanna, Esq., Hanna & Plaut, L.L.P., Austin, TX. For DIXIE ELECTRIC, L.L.C., Defendant-Counter Claimant - Appellant: Don David Martinson, Fanning Harper Martinson Brandt & Kutchin, P.C., Dallas, TX.
Judge Panel:Before STEWART, Chief Judge, and KING, and HIGGINSON, Circuit Judges.
Case Date:December 16, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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637 Fed.Appx. 113 (5th Cir. 2015)

LIBERTY INSURANCE CORPORATION, Plaintiff - Appellee

v.

DIXIE ELECTRIC, L.L.C., Defendant - Appellant

No. 15-10279

United States Court of Appeals, Fifth Circuit

December 16, 2015

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1

Appeal from the United States District Court for the Northern District of Texas. USDC No. 3:14-CV-757.

For LIBERTY INSURANCE CORPORATION, Plaintiff-Counter Defendant - Appellee: Catherine L. Hanna, Esq., Hanna & Plaut, L.L.P., Austin, TX.

For DIXIE ELECTRIC, L.L.C., Defendant-Counter Claimant - Appellant: Don David Martinson, Fanning Harper Martinson Brandt & Kutchin, P.C., Dallas, TX.

Before STEWART, Chief Judge, and KING, and HIGGINSON, Circuit Judges.

OPINION

PER CURIAM:[*]

Plaintiff-Appellee Liberty Insurance Corp. (" Liberty" ), the insurer, brought suit

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in Texas to obtain a judgment declaring that Liberty had no duty to indemnify Defendant-Appellant Dixie Electric, LLC (" Dixie" ), the insured, for a judgment rendered in a New Mexico wrongful death action (" Underlying Lawsuit" ). Both parties filed cross-motions for summary judgment. The district court entered a declaratory judgment and summary judgment in favor of Liberty. Dixie appealed. The main issue on appeal is whether Texas law interprets Dixie's Workers Compensation and Employer's Liability Policy (the " Policy" ) as establishing Liberty's duty to indemnify Dixie for the settlement amount in the Underlying Lawsuit, $1,000,000. For the reasons stated herein, we AFFIRM.

I.

Eddie Hilburn (" Hilburn" ), an employee of Dixie, was killed while on the job after he was electrocuted by an energized line being operated by a co-worker. The summary of facts leading to his death are as follows:

On or about October 1, 2010, Hilburn was working for Dixie, a company hired as a subcontractor for Chevron U.S.A., Inc. Hilburn worked with other members of the Dixie crew as they prepared to install ground wire, remove bank poles, and input new poles for electrical service to a Chevron location in Lea County, New Mexico.

On the day of Hilburn's death, prior to beginning work, the Dixie crew gathered for a meeting to discuss the safety requirements for the job they would perform. Included in that session was information regarding protocol and procedures that would have allowed installation of the new poles to occur without incident. For example, Dixie's Safety Manual informs that mechanical equipment must not be operated within ten feet of energized lines. The Safety Manual further states that only qualified employees and trainees may work on or with exposed energized lines or parts of equipment, and only qualified employees and trainees working under a qualified employee's supervision may work in areas containing unguarded, un-insulated energized lines or parts of equipment operating at fifty volts or more. As the Dixie crew began the process of installing the...

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