           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           October 6, 2009

                                       No. 08-60465                    Charles R. Fulbruge III
                                                                               Clerk


AMERICAN RELIABLE INSURANCE COMPANY

                                                   Plaintiff - Appellee

v.

ELIZABETH CAROL CLIBURN, In Her Capacity as Guardian of the Persons
and Estates of Michelle Lynn Cole, a minor, Gary Brandon Cole, a minor,
Ashley Victoria Cole, a minor, Jarrett Boyd Cole, a minor, and In Her
Capacity as Guardian of the Person and Estate of Erika Lakrista Lynn Cole,
a minor and as Administratrix of the Estate of Gary Lynn Cole, deceased and
on Behalf of All Wrongful Death Beneficiaries of Gary Lynn Cole, deceased;
LINDA WHITE, Guardian of the Person and Estate of Erika Lakrista Lynn
Cole, a minor

                                                   Defendants - Appellants


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 3:03-CV-62


Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Elizabeth Carol Cliburn (“Cliburn”), as guardian of
Gary Lynn Cole’s minor children and administratrix of his estate, appeals the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-60465

district court’s grant of declaratory relief in favor of American Reliable Insurance
Company (“American Reliable”). A grant of declaratory relief is reviewed for an
abuse of discretion. See United Teacher Assocs. Ins. Co. v. Union Labor Life Ins.
Co., 414 F.3d 558, 569 (5th Cir. 2005). However, to the extent that the decision
rests on an interpretation of law, the court’s review is de novo. See Black Sea
Inv., Ltd. v. United Heritage Corp., 204 F.3d 647, 649 (5th Cir. 2000). For the
following reasons, we AFFIRM the district court’s grant of declaratory relief.
      On November 2, 2000, Gary Lynn Cole (“Cole”), Tonya Abel (“Abel”), and
their daughter, Erika Lakrista Lynn Cole (“Erika”), were involved in a car
accident. Cole and Abel were killed; Erika survived. Including Erika, Cole left
behind five minor children, the defendants in this case. As a result of the
accident, Cliburn, in her capacity as guardian and administratrix, instituted a
wrongful death action against Cole’s employer, GRT, Inc. (“GRT”), in state court.
GRT demanded that American Reliable, with whom it had a Commercial Truck
Policy (“Policy”), provide for GRT’s defense and pay for any resulting liability.
American Reliable promptly instituted this declaratory judgment action in the
district court, seeking a determination of the scope of the Policy’s coverage.
      The material facts in this case are undisputed.        In October 2000, an
eighteen-wheeler owned by GRT for use in hauling farm products became
disabled. In order to make the repairs, GRT directed its truck driver, Cole, to
haul the eighteen-wheeler’s transmission to Florida to be exchanged for a new
one, which Cole would transport back to GRT. GRT borrowed a pickup truck
from its manager, Robert Parker, for Cole’s use in making the trip. Despite
instructions to travel alone, Cole decided to bring Abel and their daughter Erika.
At some point during the trip Abel was driving and lost control, causing the
pickup truck to crash and fatally injuring both Cole and Abel. Erika survived.
The question in this declaratory relief action is whether there is coverage for the
alleged wrongful death of Cole under American Reliable’s policy with GRT.

                                         2
                                        No. 08-60465

       The Policy issued by American Reliable and held by GRT is a liability
policy covering specifically listed vehicles.1 According to its terms, American
Reliable is obligated to “pay all sums an ‘insured’ legally must pay as damages
because of ‘bodily injury’ or ‘property damage’ to which this insurance applies,
caused by an ‘accident’ and resulting from the ownership, maintenance or use
of a covered ‘auto’.” In addition to the eighteen-wheeler, the term “covered
autos” includes certain trailers, mobile equipment, and temporary substitute
vehicles, as defined in the policy. This coverage is subject to a number of
exclusions.        Relevant to this case is the exclusion entitled “Employee
Indemnification and Employer’s Liability”, which excludes “‘[b]odily injury’” to
“[a]n ‘employee’ of the ‘insured’ arising out of and in the course of: (1)
Employment by the ‘insured’; or (2) Performing the duties related to the conduct
of the ‘insured’s’ business . . . .”2
       Counsel for Cliburn has argued, ably and forcefully, that while the pickup
truck was not a listed vehicle, coverage may nevertheless extend to the accident
either because the pickup qualifies as a temporary substitute vehicle or because
the accident occurred as a “result” of the maintenance of the eighteen-wheeler.
However, if Cole falls under the employee exclusion the scopes of these coverage
provisions are irrelevant. We thus turn to this issue first and find Cole’s injuries
to be clearly excluded from coverage under this insurance policy.
       There appears to be no dispute that Cole was a regular, permanent truck
driver employee of GRT for the purposes of intra and interstate trucking.
Appellants contend, however, that on this trip Cole was not paid wages and
consequently he was not “employed” by GRT at the time of the accident.
Accordingly, they argue, he did not fall under the employee exemption at the

       1
           The only listed vehicle is the broken down eighteen-wheeler.
       2
        This exclusion applies “[w]hether the ‘insured’ may be liable as an employer or in any
other capacity.”

                                               3
                                     No. 08-60465

time of the accident.3     We find this distinction to be immaterial under the
language of the policy.
      The language in the employee exclusion is broad. By its terms it excludes
not only bodily injury to employees arising out of and in the course of
“employment” but also injuries that arise out of and in the course of
“[p]erforming the duties related to the conduct of the ‘insured’s’ business.” Even
if Cole was only paid $300.00 “to cover expenses” for the purposes of the Florida
trip, the trip constituted no break in his employment with GRT and he remained
an employee in this interim time.          Thus, because his injuries arose while
performing duties related to the conduct of GRT’s business he was excluded from
coverage under the policy. No amount of strict construction “against the insurer”
on this exclusion can change these words’ “clear and unambiguous” meaning.
Titan Indem. Co. v. Estes, 825 So. 2d 651, 656 (Miss. 2002) (“Although
ambiguities in an insurance policy are construed against the insurer, a court
must refrain from altering or changing a policy where terms are unambiguous,
despite resulting hardship on the insured.”). This is not a case where Cole made
the trip on his own initiative.       He was requested to do so by GRT.             GRT
furnished a pickup truck. GRT was the sole beneficiary of the mission. GRT
gave him $300.00 in travel expenses up front, and the evidence shows that it
intended to pay him when he returned based on the time the trip took. In short,
he was an employee of GRT on a mission for GRT and as such the policy
exclusion applies to his injuries.
      Our interpretation of this exclusion provision means we need not resolve
the more difficult issues regarding the scope of the coverage provisions.
Accordingly, the district court’s grant of declaratory relief is
                                                                           AFFIRMED.


      3
        The appellee argues that Cole would have been paid had the journey been completed
successfully. This is the closest this case comes to presenting an issue of disputed fact.

                                            4
