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

                                                 FILED
                                                                          October 9, 2009

                                   Summary Calendar                    Charles R. Fulbruge III
                                     No. 09-60172                              Clerk



BITUMINOUS CASUALTY CORPORATION

                                                  Plaintiff - Appellee
v.

DORIS BUCKLEY; JUVENILE FEMALE AB, A Minor, By Mother and Next
Friend, Doris Buckley; JUVENILE FEMALE KJ, A Minor, By Mother and
Next Friend, Doris Buckley; JUVENILE MALE BRB, A Minor, By Mother
and Next Friend, Doris Buckley

                                                  Defendants - Appellants




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:07-CV-354



Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiff Bituminous Casualty Corporation (“Bituminous”) filed suit
against Smith Brothers, Inc. (“Smith Brothers”), a company insured under
Bituminous’s policies, seeking a declaratory judgment that Bituminous owed
neither indemnity nor a duty to defend Smith Brothers’ employee David

       *
          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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 09-60172

Ducksworth. The district court granted summary judgment to Bituminous. We
affirm.
                               I. BACKGROUND
      Bituminous issued both a “Commercial Automobile Policy” and a
“Commercial Umbrella Policy” to Smith Brothers. The former policy requires
Bituminous to insure “[a]nyone . . . using with your permission a covered ‘auto’
you own, hire or borrow.” The latter policy held Bituminous liable for damages
to Smith Brothers’ “‘employees’ . . . but only for acts within the scope of their
employment by you or while performing duties related to the conduct of your
business.” The parties agree that Ducksworth is not a named insured-party
under either policy.
      Smith Brothers allows its employees with driver’s licenses to transport
other employees to and from work in a company-owned truck. One such
employee was Sam Hales. On September 28, 2000, Hales was operating a Smith
Brothers truck for this purpose. At some point, Hales became ill. Although he
was aware that Ducksworth was not empowered to drive the truck and did not
have a valid license, he allowed Ducksworth to take over. Shortly thereafter the
truck collided with the Buckleys.
          Bituminous brought this declaratory judgment action in federal court,
under diversity jurisdiction, seeking to have itself freed from any liability for
Ducksworth’s conduct and the injuries that resulted. After a discovery dispute,
the district court determined Bituminous did not need to provide documents
related to its investigation or its reservation of rights letter to Smith Brothers
and/or Ducksworth—a document that allows an insurance company to agree to
defend the insured while reserving the right to “deny coverage in event a
judgment is rendered against” them. Moeller v. Am. Guar. and Liability Ins. Co.,
707 So.2d 1062, 1069 (Miss. 1996). Subsequently, the district court granted
summary judgment to Bituminous, finding it had no duty to indemnify nor

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defend Ducksworth because Ducksworth was not covered as an insured under
the policy Bituminous issued to Smith Brothers. The Buckleys timely appealed
both rulings.
                        II. STANDARD OF REVIEW
      Federal courts apply federal procedural law and state substantive law
when sitting in diversity. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Thus,
procedurally, we apply the federal standard of review for grants of summary
judgment. See Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417, 423 (5th Cir.
2006); Marcel v. Placid Oil Co., 11 F.3d 563, 566 (5th Cir. 1994). We review the
district court’s grant of summary judgment and application of state law de novo.
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). We
affirm only if, taking all reasonable inferences in favor of the non-moving party,
“the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” See Hockman v. Westward Commc’ns,
LLC, 407 F.3d 317, 325 (5th Cir. 2004); F ED. R. C IV. P. 56(c).
      Substantively, the parties agree that Mississippi state law applies in this
case, as Mississippi is the forum state. As a result, “‘we are emphatically not
permitted to do merely what we think best; we must do that which we think the
Mississippi Supreme Court would deem best.’” Centennial Ins. Co. v. Ryder
Truck Rental, Inc., 149 F.3d 378, 382 (5th Cir. 1998) (quoting Miss. Power Co.
v. Roubicek, 462 F.2d 412, 416-17 (5th Cir. 1972)). However, “absent evidence to
the contrary we presume that the Mississippi courts would adopt the prevailing
rule if called upon to do so.” Id. (quotation omitted).

                              III. DISCUSSION
      The Buckleys present three arguments for why there is a genuine issue of
material fact in this case: (1) that without producing a reservation letter
Bituminous is estopped from denying coverage; (2) that Ducksworth had implied

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permission to drive the Smith Brothers’ truck and therefore fell within the
Commercial Automobile Policy’s coverage; and (3) that Ducksworth was within
the scope of his employment when driving the truck and therefore fell within the
Commercial Umbrella Policy’s coverage. We address these arguments in turn.
       A. The Reservation of Rights Letter
       Although the Buckleys are unsure whether a reservation of rights letter
exists, they maintain that, unless Bituminous sent out such a letter, it is
estopped from denying coverage. Therefore, the Buckleys claim that without
evidence of this letter there is a genuine issue of material fact.
       However, this argument is foreclosed by Mississippi law. In Employers
Fire Ins. Co. v. Speed, 133 So.2d 627, 629 (Miss. 1961), the Mississippi Supreme
Court stated, “This Court follows the general rule that waiver or estoppel can
have a field of operation only when the subject matter is within the terms of the
policy, and they cannot operate radically to change the terms of the policy so as
to cover additional subject matter.” See also Am. Income Life Ins. Co. v. Hollins,
830 So. 2d 1230, 1248 (Miss. 2002) (same); Stewart v. Gulf Guar. Life Ins. Co.,
846 So.2d 192, 202 (Miss. 2002) (same). As the entirety of Bituminous’s
argument is that it should be freed from liability because Ducksworth’s conduct
was outside its policy’s coverage, if Mississippi law is that the refusal letter
cannot affect the bounds of coverage, Bituminous’s failure to produce this letter
cannot create a material issue of fact in this case. Therefore, we find that this
argument creates no basis on which to reverse the district court.1



       1
         Although it is unclear from Appellants’ briefing, it is possible that Appellants
appeal simply on the basis that the district court erred in denying their discovery request
for the reservation of rights letter. For the reasons stated above, we find that this
document is not relevant to the issues presented in this case and therefore the district
court did not commit reversible error by denying Appellants’ discovery request. See
Atkinson v. Denton Pub. Co., 84 F.3d 144, 147 (5th Cir. 1996) (stating that the district
court’s disposition of contested discovery matters “is reviewed only for an abuse of
discretion”).

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      B. The Commercial Automobile Policy
      Next, we turn to the Buckleys’ argument that Ducksworth was covered
under Smith Brothers’ Commercial Automobile Policy. That policy states that
it insures “[a]nyone else while using [a company vehicle] with [Smith Brothers’]
permission.” The Buckleys argue that Ducksworth had implied permission from
Smith Brothers to drive the Smith Brothers’ truck, and was thus insured under
the policy.
      Under Mississippi law, a permitted user of an automobile can give express
or implied permission to a third party to drive the vehicle, which places the third
party within the vehicle’s owner’s insurance policy. See Nationwide Mut. Ins.
Co. v. Dunning, 252 F.3d 712, 717 (5th Cir. 2001). However, generally, if the
vehicle’s owner expressly forbids third parties to use the vehicle, the third party
cannot gain secondary coverage through the permitted user. See State Farm
Auto. Ins. Co. v. Moore, 289 So.2d 909, 912 (Miss. 1974), overruled on other
grounds by State Farm Mutual Ins. Co. v. Mettetal, 534 So.2d 189 (Miss. 1988).
Yet, if the permittee has “broad and unfettered domination” over the insured
vehicle, the owner’s permission for the third party to use the vehicle may be
implied. Dunning, 252 F.3d at 717.
      Here, based on his own admission and uncontroverted Smith Brothers
policy—which only allowed those with a valid license to drive the transport
truck— Ducksworth was expressly forbidden from driving the vehicle. Thus, the
only way that he could be insured by the Commercial Automobile Policy is if
Hales had unlimited discretion to operate the truck and therefore gave
Ducksworth implied permission.       However, Hales’s driving privileges were
strictly limited to transporting fellow employees to and from work. Therefore, we
conclude that, under Mississippi law, Ducksworth could not have had permission
to drive the vehicle. Appellants have therefore failed to raise a genuine issue of
material fact regarding whether Ducksworth was covered by this policy.

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      Appellants argue that Hales’s medical condition created an emergency and
that this court should recognize a special emergency exception to the general
rules of agency law, allowing Hales to cloak Ducksworth in authority to drive the
vehicle. Yet, Appellants fail to cite any Mississippi case acknowledging such an
exception. Moreover, were this court to decide to foist such a rule onto
Mississippi, the majority rule cited by Appellants requires that the emergency
make “it impracticable to communicate with the principal” before the agent is
endowed with special authority to permit another to act in his stead. As Hales
was in a car and could have driven to any nearby phone to call Smith Brothers
and inform them of his need for an additional driver or medical attention, we
find no basis to believe Appellants’ proposed exception would apply.
      C. The Commercial Umbrella Policy
      The Buckleys further assert that Ducksworth was covered under the
Commercial Umbrella Policy because he was acting within the scope of his
employment at the time of the accident. The Umbrella Policy held Bituminous
liable “only for acts within the scope of their employment by [Smith Brothers] or
while performing duties related to the conduct of your business.”
      Under Mississippi law, “‘[t]he general rule is that a servant using an
automobile, whether belonging to his master or to himself, in going to and from
his place of work, is not at such times engaged in work for his master but acts
for his own purposes only.’” Evans v. Jackson Coca-Cola Bottling Co., 771 So.2d
1006, 1009 (Miss. App. 2000) (quoting Miss. Power & Light Co. v. Laney, 154
So.2d 128, 134 (Miss. 1963)). Nonetheless, “it is important to ascertain whether
the vehicle is supplied primarily for the purpose of assisting the master’s work
or for the purpose of assisting the employee to perform what is essentially his
own job of getting to or from work.” Brown v. Bond, 1 So.2d 794, 798 (Miss. 1941)
(quotation marks omitted). If it is the former, Mississippi law suggests the agent
may be acting within the scope of his employment. Id.

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      Here, the uncontroverted evidence demonstrates that Smith Brothers
supplied the truck to assist the employees in getting to work, and not to further
the purpose of Smith Brothers’ actual business. A Smith Brothers supervisor,
John Porter, testified that the truck was supplied “to help the employees,” not
the employer. Further, Appellants’ own brief states that the truck was provided
to ease the travel of employees, not as part of on-the-job activities. Therefore, the
Buckleys have failed to create a genuine issue of material fact as to whether
Ducksworth was acting within the scope of his employment at the time of the
collision and thus covered by the insurance policy.
                               IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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