Pennsylvania Gen Ins v. A.G. Perry & Son Inc, et a

* District Judge of the Eastern District of Texas, sitting by
designation.
** 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that this opinion should not be published and is not precedent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.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 99-21008
__________________
PENNSYLVANIA GENERAL INSURANCE COMPANY,
Plaintiff-Counter Defendant-Appellee,
versus
A.G. PERRY & SON, INC., Et Al.,
Defendants,
versus
RICK HUCKABY; JERI BOYD,
Defendants-Counter Claimants-Appellants.
______________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston Division
H-97-CV-3839
______________________________________________
July 3, 2000
Before JONES and BENAVIDES, Circuit Judges, and COBB,* District
Judge.
PER CURIAM:**
This appeal presents issues arising out of a fatal traffic

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accident that occurred on November 14, 1996. Lester Lamon, driving
a tractor/trailer rig which was then covered under a general
insurance policy issued by Pennsylvania General Insurance Company
(PGI) to A.G. Perry & Son, Inc. (P & S), the truck’s owner, was
attempting to complete a turn on U.S. Highway 59, in Texas. Before
he could complete the turn into a crossover on the highway, two
vehicles, one passenger car and one van, struck the trailer which
was then blocking the southbound lanes of traffic. A third vehicle
narrowly avoided the collision and instead struck several highway
signs. The driver who hit the signs suffered minor injuries; the
driver of the van suffered various injuries but survived the
accident; the driver and the passenger of the third vehicle,
Donovan Johnson and Joshua Huckaby respectively, were killed in the
collision.
The insurance policy issued by PGI provided coverage up to
$1,000,000 per “accident” for the term from August 1, 1996, to
August 1, 1997. An “accident” under the terms of the policy is
defined as “bodily injury and property damage resulting from
continuous or repeated exposure to substantially the same
conditions.” Additionally, the policy contained an MPC-90
endorsement (referred to by the parties variously as a BMC-90
endorsement or a MCS-90 endorsement). This endorsement, as
required by federal law, provides coverage to any final judgment
recovered against P & S, regardless of whether the vehicle
specifically involved in the accident was named in the policy.
PGI, then, under the terms of the endorsement, is entitled to

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recover from P & S reimbursement for any payments made in
accordance with the endorsement that were not otherwise payable
under the terms of the policy.
This appeal concerns matters stemming from a lawsuit filed in
state court by Joshua’s parents, Rick Huckaby and Jeri Boyd,
against Lamon and P & S which alleged Lamon to be at fault for
Joshua’s death. Donovan’s parents also filed suit as did the
driver of the van, Louis Wyrick. In response to this suit, PGI
filed an action for declaratory judgment, in federal court, seeking
to have the district court construe under federal law several
provisions of the insurance contract now at issue. Specifically,
PGI sought a determination that the claims of the respective
defendants arose from but one accident and that its potential
liability on those claims exceeded policy limits. PGI thus sought
declaration that despite this potential liability, its maximum
exposure under the insurance contract was the policy limit of
$1,000,000. Huckaby and Boyd, in response, filed a counter-claim
in district court seeking a declaration that PGI would be
responsible, under the terms of the endorsement, for any final
judgment against P & S.
The parties subsequently entered into settlement negotiations
which later resulted in all parties, except Huckaby and Boyd,
settling their claims for a total of $1,056,687.94. Huckaby and
Boyd refused to participate in the settlement.
PGI then moved for summary judgment in the district court as
to its declaratory action and with respect to Huckaby and Boyd’s

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counterclaim. The district court granted that motion and entered
final summary judgment for PGI on September 30, 1999.
Huckaby and Boyd now complain that the district court erred in
finding, as stated in its Memorandum Opinion and Order of the same
date, that the incident of November 14, 1996, constitutes one
accident or occurrence under the terms of the policy, thus the
$1,000,000 policy limit applies to any and all claims arising out
of that accident; and, further, that the district court erred in
finding that the plain terms of the endorsement, when read in
conjunction with the policy, mandates its application to the facts
of this accident but presents no ambiguity where it states that it
applies “within the limits of liability prescribed herein.”
Huckaby and Boyd maintain that error lies in the district court’s
conclusion, reasoned from these findings, that the endorsement is
subject to the limits of the policy itself, and, as P & S had
exhausted the policy limit by settling the various other claims
against it, PGI has no further duty to defend or indemnify P & S
against any claims arising from the November 14, 1996 accident.
This appeal presents no material factual disputes. Rather,
Huckaby and Boyd dispute the district court’s application of the
relevant law to the facts of the case. Our careful review of the
briefs and the applicable law, however, convinces us that the
district court did not err in concluding that P & S had exhausted
the limits of its insurance policy with respect to this accident,
thus relieving PGI of any further duties. Therefore, for
essentially the reasons stated by the district court in its

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carefully reasoned Memorandum Opinion and Order entered September
30, 1999, we AFFIRM the judgment of the district court in all
respects.
AFFIRMED.

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