                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS         January 7, 2004

                       FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                       _____________________                      Clerk

                            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.

                      ---------------------
         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.
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


      *
       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
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”?


      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
     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,


     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
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

      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
     For the foregoing reasons, all rulings of the district court

in this case are

AFFIRMED.




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