               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                           No. 99-20952

                         Summary Calendar



UNITED NATIONAL INSURANCE COMPANY
          Plaintiff-Counter Defendant-Appellee

                              versus

SIPCO SERVICES AND MARINE INC; SIPCO SERVICES INC; BROWN & ROOT
INC, doing business as Brown & Root Braun
          Defendants-Counter Claimants-Appellants

AMOCO OIL COMPANY; AMOCO CORPORATION; AMOCO CHEMICAL COMPANY
          Defendants-Appellants


          Appeals from the United States District Court
                For the Southern District of Texas
                       USDC No. H-97-CV-3720

                          April 12, 2000



Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     This is an appeal of a declaratory judgment in favor of United

Insurance Company to determine coverage and the duty to defend in

state court litigation over a personal injury.    Sidney Ervin was

employed by SIPCO, a subcontractor for Brown & Root, which was a




     *
      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this opinion should not be published and is not precedent except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.
general   contractor   working   under   contract   with   Amoco   at   its

Chocolate Bayou plant in Brazoria County, Texas.       Ervin claimed he

was injured by inhaling toxic chemicals in the course of his

employment as a sandblaster and painter working on petroleum

storage plants at the Chocolate Bayou plant.        The personal injury

claim has been settled, but a cross-claim for indemnity by Brown &

Root and Amoco against SIPCO is pending in state court.                 The

district court adopted the magistrate judge's recommendation to

grant United Insurance Company's motion for summary judgment,

determining that the insurance policy's pollution exclusion clause

barred coverage of the personal injury claim as a matter of law.

We AFFIRM.

     We review de novo the interpretation of insurance contracts.

See Certain Underwriters at Lloyd's London v. C.A. Turner Constr.

Co., 112 F.3d 184, 186 (5th Cir. 1997).

     The appellants argue that Ervin's claim was covered by the

policy because he sued for the failure to provide him with proper

respiratory equipment rather than for being exposed to toxic fumes.

Texas courts consider the factual allegations on which a claim is

based rather than the legal theories on which the claimant relies.

See National Union Fire Ins. Co. of Pittsburgh v. Merchants Fast

Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997)(per curiam); see

also Adamo v. State Farm Lloyds Co., 853 S.W.2d 673, 676 (Tex. App.

-- Houston [14th Dist.] 1993, writ denied)(stating that "[i]t is

not the cause of action alleged that determines coverage but the

facts giving rise to the alleged actionable conduct")(emphasis in


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original). We agree with the district court that the facts alleged

control the coverage issue rather than the plaintiff's legal

theories in the underlying action.                    In any event, the policy

excludes coverage for

  a) The contamination of any environment by pollutants that are
  introduced at any time, anywhere, in any way;
  b) Any bodily injury, personal injury, . . . arising out of
  such contamination[.]

We agree with the district court that Ervin's injury arose out of

the    contamination1         of   the   environment     in   which   he   worked   by

pollutants.       Although Ervin sued for the failure to provide him

with       protective    equipment,       the   policy    unambiguously     excludes

coverage for his bodily injury, which arose from the presence of

pollutants.

       Under the Texas doctrine of concurrent causation the insurer

will have a duty to defend and indemnify when there are independent

causes of an injury, one of which is covered and the other excluded

by the policy.          See Guaranty Nat'l Ins. Co. v. North River Ins.

Co., 909 F.2d 133, 137 (5th Cir. 1990).                The appellants argue that

the pollutants          and    the   failure    to   provide   Ervin   with   proper

protective gear were independent causes of his injury, avoiding the

pollution exclusion clause.

       However, under Texas law, the insurer is not liable when a

covered cause is dependent upon the excluded cause. See Commercial

Union Ins. Co. v. Roberts, 7 F.3d 86, 89-90 (5th Cir. 1993).                        In

       1
     The policy defines "contamination" as "any unclean or unsafe
or damaging or injurious or unhealthful condition arising out of
the presence of pollutants, whether permanent or transient in any
environment."

                                            3
Commercial Union, the defendant was sued in negligence for failing

to obtain treatment for pedophilia, which would have prevented him

from sexually molesting his victims.               See 7 F.3d at 87.        The

insurance company argued there was no coverage or duty to defend

because the intentional conduct -- the sexual molestation -- was

not covered by the policy, and the defendant argued that the causes

were concurrent and independent.             See Commercial Union, 7 F.3d at

88.    We distinguished Guaranty and found no duty to defend or

indemnify, reasoning that "[t]he allegations are not mutually

exclusive; rather they are related and interdependent. Without the

underlying sexual molestation there would have been no injury and

obviously no basis for a suit against Dr. Roberts for negligence."

Commercial Union, 7 F.3d at 89-90.

       Here,   the   pollutants    and   failure    to   provide   Ervin    with

protective gear would constitute related and interdependent causes

of his injury, since the failure to provide him with the equipment

was a cause of his injury only because of his exposure to the

pollutants.     Since his exposure to the pollutants was a necessary

condition of his respiratory injury, the failure to provide him

with protective gear cannot be an independent cause of that injury.

As in Commercial Union, without the contamination there would have

been   no   injury   and   hence   no    suit    against   the   employer    for

negligence.     The district court properly determined that there was

no coverage.

       Because we find that there is no coverage, we do not reach the

appellant's argument that there was coverage in spite of the fact


                                         4
that Ervin was exposed to the chemicals before United Insurance

Company issued the policy in question and manifested the injury

afterward.

     AFFIRMED.




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