Loper v. Dufrene

United States Court of Appeals
Fifth Circuit
F I L E D
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.
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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.

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* 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this opinion should not be published and is not precedent except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.
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 Pennsylvania (“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
Parish, 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 rendered

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2 See 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”) coverage 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’ Motion 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 of the Policy.2 This, in turn, meant that
Andrews and Wallace Loper were not “covered individuals” at the
time of the accident. On March 5, 2002, the district court
rendered judgment for NUFIC and dismissed 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”?

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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 district 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 “temporarily
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, there 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 law5 supports the
finding that no lease existed in the instant case. Specifically,

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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 reasons that should now be obvious, the appellants’
request for attorneys’ fees is also rejected. Similarly, we
decline to certify any purported questions of Texas law raised in
this case to the Texas 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 vehicle.6 Here, the evidence indicates that PGS did not have
such exclusive control. Furthermore, the Griffin 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. Conclusion

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6
For the foregoing reasons, all rulings of the district court
in this case are
AFFIRMED.

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