Assicurazioni Generali, S.p.A. v. Ranger Ins. Co.

Decision Date21 September 1995
Docket NumberNo. 94-20404,94-20404
Citation64 F.3d 979
PartiesASSICURAZIONI GENERALI, S.p.A., Plaintiff-Appellee, v. RANGER INSURANCE CO., et al., Defendants, Ranger Insurance Co., ETL Corp., and Empire Truck Lines, Inc., Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

David J. Sacks, Sacks & Associates, Houston, TX, Steven C. Howard, Rand Nolen, Tucker, Hendrix & Gascoyne, Houston, TX, for appellants.

Bernard Caesar, Kenneth E. Sheehan, Caesar & Napoli, New York City, for appellee.

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

Before WISDOM, DUHE and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

The central issue of this appeal involves the interpretation of an exclusion attached to a "non-trucking" insurance policy. The case stems from a motor vehicle collision. A dispute arose regarding coverage between the insurance carrier for the truck owner and the insurance carrier for the lessee of the truck. Determining that the language of the exclusion in the owner's policy is ambiguous, we find that the truck owner's insurance policy provided coverage. We therefore reverse.

I. FACTS AND PROCEDURAL HISTORY

Lillie Hooker owned the truck involved in the accident, a 1978 Peterbuilt Tractor. She leased the truck to ETL Corporation, who then leased it to a related company, Empire Trucking Lines. The lease agreements were in effect on the date in question. Pursuant to the lease agreement, Hooker was responsible for carrying insurance on the truck covering accidents occurring when the truck was operating "not under dispatch to Empire." Appellee Assicurazioni Generali S.p.A. (Generali) provided "non-trucking" insurance to Hooker, and Appellant Ranger Insurance Company (Ranger) provided commercial auto insurance to Empire. Both policies were in effect on the date of the accident.

Hooker's son, Jeffrey Mitchell, was Hooker's designated driver on February 4, 1992. On that date, Mitchell stated that he was having problems with the brakes. He declined to be dispatched and was not transporting property. The dispatcher for Empire understood that after Mitchell declined to be dispatched, Mitchell took the truck out of service. Empire, however, did not mark the truck out of service. He was "bobtailing" 1 in route to the repair shop when the accident occurred. Kelley Barnes and Derrick Bundage were injured in the accident. Barnes and Bundage filed a state court action against Hooker. Thereafter, Generali filed this action, requesting that the district court enter a declaratory judgment that Generali does not provide coverage to Hooker, Mitchell, Empire, or ETL for the claims arising from the vehicular collision. Generali also requested that the district court enter a judgment declaring that Ranger did provide coverage for the accident. Ranger counterclaimed, requesting the district court to enter a declaratory judgment that Generali provided primary coverage to ETL, Empire, Hooker, and Mitchell. The district court entered a declaratory judgment that Ranger provided primary coverage and that the endorsements attached to Generali's policy excluded coverage. Ranger appeals.

II. STANDARD OF REVIEW

This is an appeal from a declaratory judgment, and we have jurisdiction based on the diversity of citizenship. We therefore apply Texas law. Ranger Ins. Co. v. Estate of Mijne, 991 F.2d 240, 243 n. 9 (5th Cir.1993). Texas courts construe insurance policies like contracts. National Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991). The interpretation of a contract is a question of law, and thus, we review it de novo. D.E.W., Inc. v. Local 93,

Laborers' International Union of N. Am., 957 F.2d 196, 199 (5th Cir.1992).

III. WHETHER THE EXCLUSIONS APPLY

Ranger contends that the magistrate judge erred in finding that the "in the business of" endorsements attached to Generali's policy excluded coverage for the accident, arguing that, at the time of the accident, the truck was not engaged in the business of transporting property, and, thus, the exclusions in Generali's policy did not apply. The endorsements at issue provided as follows:

INSURANCE FOR NON-TRUCKING USE (LIMITED)

(BOBTAIL/DEADHEAD)

* * * * * *

WE agree with you that such insurance as is afforded by the policy for Bodily Injury, Property Damage, Uninsured Motorist Coverage and/or Personal Injury Protection does not apply:

(a) To any person or organization or any agent or employee thereof, other than YOU, 2 engaged in the business of transporting property by auto for others;

(b) While the auto is being used to carry property in any business;

(c) While a trailer, semi-trailers, or another truck or tractor unit, whether owned or non-owned, is attached to any truck or tractor described above.

(emphasis in original) (footnote added).

In support of its contention that the truck was not "engaged in the business of transporting property" 3 at the time of the accident, Ranger relies on the following stipulated facts: Mitchell was in route to repair the tractor's brakes; Mitchell was not transporting property; Mitchell was not under dispatch; Mitchell was bobtailing and had taken the tractor out of service.

Although the court below acknowledged the preceding facts, it found that, as a matter of Texas law, Mitchell was engaged in the business of transporting property for Empire at the time of the accident, citing Greyhound Van Lines, Inc. v. Bellamy, 502 S.W.2d 586 (Tex.App.--Waco 1973); Rainbow Express, Inc. v. Unkenholz, 780 S.W.2d 427 (Tex.App.--Texarkana 1989, writ denied). 4

In Greyhound, the plaintiff sued the lessee of the truck, Greyhound, for personal injuries caused by the negligence of the truck driver. 502 S.W.2d at 587. The jury found that the truck driver negligently injured the plaintiff while attempting to assist the plaintiff, a mechanic, repair the brakes. Greyhound's Rejecting Greyhound's defense, the Texas court of appeals explained that "Article 6701c-1, Vernon's Texas Civil Statutes, prohibits the lessee of a commercial motor vehicle or truck-tractor from operating such vehicle over the public highways of this state unless the lease provides that the lessee shall have 'full and complete control and supervision' over the operation of the vehicle." Id. at 588. 5 Additionally, the Court stated that, in accordance with the leases's provisions, the owner furnished the driver with the truck subject to Greyhound's approval. Under those circumstances, the Court held that Greyhound's claim that its right to exclusive control of the truck did not include the right of supervision of the driver's undertaking to repair the truck was unpersuasive. Id.

defense was that the driver was not its employee, but instead was an employee of the owner of the truck or an independent contractor.

The Court further opined that "article 6701c-1 was obviously enacted to eliminate any uncertainty that might otherwise exist as to who is responsible for wrongs inflicted upon the public at large through the operation on our state highways by lessees of the vehicles named in the statute." Id. Notwithstanding any other rule, the Court found that Greyhound was prohibited from claiming that the driver was not under its exclusive control and supervision at the time the plaintiff was injured. Id. The overriding force behind the decision in Greyhound was to give effect to the public policy embodied in article 6701c-1, i.e., to make certain that a member of the public injured by such a leased vehicle would have certainty in determining who is held responsible.

In Rainbow, supra, a tire on the truck leased to Rainbow blew out, causing the driver to lose control of the truck and strike the plaintiff's vehicle. 780 S.W.2d at 429. The truck was hauling goods to Illinois at the time of the accident. Joe Dixon owned the truck, and, pursuant to the lease to Rainbow, Dixon was to maintain the trucks. There was testimony that Dixon instructed the trucker to drive to Illinois without purchasing new tires. The jury found Dixon negligent, a finding that was not appealed. The Court stated that "the duty of maintenance and repair is a nondelegable function that is required to be under the control of the lessee." 780 S.W.2d at 432 (citing, inter alia, Greyhound ). The Court then reasoned that because Dixon was performing the nondelegable duty of keeping the truck properly maintained, he was a vice-principal of Rainbow, the lessee, as a matter of law. Id.

Neither Greyhound nor Rainbow are controlling in that they do not dispose of the issue at bar--whether the language "engaged in the business of transporting property" clearly and unambiguously excludes the repair of the truck in the context of an endorsement to an insurance policy. Both cases are distinguishable in that they involve the liability of the lessee. The Greyhound court, looking to the lease provisions and article 6701c-1, held that the lessee's right to exclusive control of the truck included the supervision of the driver's repair of the truck, and, thus, the court found the lessee liable for the driver's negligent acts under the doctrine of respondeat superior. Similarly, the Rainbow court held that because the owner of the truck was performing the lessee's nondelegable duty of maintaining the truck, he was a vice-principal of the lessee, and, thus, the lessee was liable. In both of the above Texas cases, the courts were mindful of the important policy of protecting an injured member of the public in accordance with article 6701c-1.

Neither party has cited (nor has our research revealed) a Texas case involving a coverage dispute between two insurers in which the court has defined the scope of an endorsement that excludes coverage when a truck is engaged in the business of transporting property. The issue presented in this case is not whether there is any insurance coverage of the accident. Instead, the issue is whether the...

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