                          NUMBER 13-13-00235-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


SUPERIOR CRUDE GATHERING, INC.,                                             Appellant,

                                            v.

ZURICH AMERICAN INSURANCE COMPANY,                                            Appellee.


                    On appeal from the 319th District Court
                          of Nueces County, Texas.


                          MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Justice Rodriguez
       This appeal of a summary judgment involves a question of insurance coverage.

Appellant Superior Crude Gathering, Inc.’s (Superior Crude) sole issue is whether the trial

court properly granted summary judgment, ruling that an insurance policy (the Policy)

issued by appellee Zurich American Insurance Company (Zurich) to Superior Crude did
not cover Superior Crude’s claims. We affirm.

                                             I. BACKGROUND

      On February 9, 2010, Superior Crude trucks unloaded oil into Tank 13 at its

Ingleside, Texas terminal.            Superior Crude reported crude oil leaking from that

aboveground storage tank (the Event, oil spill, or oil release) on or about that day.

Superior Crude notified Zurich of the oil release and requested insurance coverage.

      Under the Policy, Zurich provided Superior Crude with the following forms of

insurance coverage that were effective during the relevant time: (1) Commercial General

Liability (CGL) Coverage; and (2) Truckers Coverage. Zurich denied Superior Crude’s

claim for coverage under both forms of insurance. Superior Crude does not challenge

the denial of the CGL coverage; it does challenge Zurich’s denial of the Truckers

Coverage.

      Section II.A of the Truckers Coverage part of the Policy, a section referred to as

the insuring agreement, provided Superior Crude with the following liability coverage:

      We will 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.”

      We will also pay all sums an “insured” legally must pay as a “covered
      pollution cost or expense” to which this insurance applies, caused by an
      “accident” and resulting from the ownership, maintenance or use of covered
      “autos.”

The Truckers Coverage excluded from this liability coverage, among other things, the

following: (a) pollution, found at subsection II.B.11,1 and (b) “‘[p]roperty damage’ to or


      1   Subsection II.B.11, titled “Pollution,” excluded, in relevant part, coverage for the following:

                                                      2
‘covered pollution cost or expense’ involving property owned or transported by the

‘insured’ or in the ‘insured’s’ care, custody or control,’” at subsection II.B.6.2 However,

the Truckers Coverage modified its liability coverage and exclusions for pollution claims

through its “Pollution Liability—Broadened Coverage for Cover Autos—Business Auto,

Motor Carrier and Truckers Coverage Forms” (PLBC) endorsement. First, the PLBC

endorsement set out that subsection II.B.11, the total pollution exclusion, did not apply to

the Truckers Coverage; instead, that exclusion applied “only to liability assumed under a

contract or agreement.”           Second, the PLBC endorsement provided that subsection

II.B.6, the care, custody, or control exclusion, did not apply to the coverage for transport

and storage of pollutants. In other words, the PLBC endorsement expanded pollution

coverage by limiting or eliminating aspects of the pollution exclusions found elsewhere in

the body of the Policy.

       After Zurich denied its claim, Superior Crude filed suit. In relevant part, Superior

Crude sought a declaratory judgment to construe this coverage. It also asserted, among

other things, breach of contract and violations of the Texas Insurance Code and the Texas



       “Bodily injury” or “property damage” arising out of the actual, alleged or threatened
       discharge, dispersal, seepage, migration, release or escape of “pollutants”:

       a.        That are, or that are contained in any property that is:

                 (1)     Being transported or towed by, handled, or handled for movement into,
                         onto or from, the covered “auto”;

                 (2)     Otherwise in the course of transit by or on behalf of the “insured”; or

                 (3)     Being stored, disposed of, treated or processed in or upon the covered
                         “auto” . . . .

       2   The Policy titled this exclusion “Care, Custody or Control.”

                                                      3
Deceptive Trade and Practices Act.

       On August 13, 2012, Zurich and Superior Crude each filed a traditional motion for

summary judgment. In its motion, Superior Crude argued that the PLBC endorsement

provision of the Truckers Coverage provided expanded coverage in this case. It urged

that “[b]y virtue of this endorsement, there was no longer a pollution exclusion under the

Truckers [C]overage for the escape of pollution that was . . . in the course of transit by or

on behalf of [Superior].”

       Superior Crude supported its “in transit” coverage argument with the June 4, 2012

affidavit of Jeff Kirby, the owner of Superior Crude. In his affidavit, Kirby stated that

       Superior [Crude] purchased and took title to the oil at the well head in the
       field. The oil was then transported by tanker trucks. The oil that is the
       subject of the Event was still owned by Superior [Crude]. It was still in
       Superior [Crude’s] possession at the time of the Event. The oil had not
       been finally delivered, disposed of, nor—given its monetary value—
       abandoned by Superior [Crude]. It was still in transit by Superior [Crude].
       It was being temporarily stored until it could be loaded onto marine barges
       to be moved up the inland waterway to the Port of Texas City and Nederland
       where it would be finally delivered and sold to Superior’s customers BP and
       Sunoco, respectively. However, before it could be finally delivered and
       sold to BP and Sunoco, the Event occurred.

       In response to Superior Crude’s motion, Zurich claimed that Superior Crude did

not meet its burden of proving that coverage existed under the Policy. It asserted that

Superior Crude’s interpretation was incorrect because “it ignore[d] the requirements of

the insuring agreement.”

       Zurich’s traditional motion for summary judgment argued, among other things, that

Superior Crude was not entitled to coverage because the oil release did not result from

the “ownership, maintenance or use” of a covered auto under the insuring agreement.


                                              4
Zurich argued that in this case there was “no nexus to a covered vehicle at all” and that

“Superior [did not] claim that a covered vehicle caused, produced, or contributed to the

Oil Release.”

       In support of its motion, Zurich attached evidence showing that Superior Crude

had determined that the cause of the release was collapse or subsidence of the floor in

the storage tank, resulting in a crack in the tank floor that allowed oil to leak out. Zurich

also attached the following witness affidavit that Superior Crude produced during

discovery:

       I [am] Ralph Bubba [G]amble . . . , whose occupation is the South West
       Texas Regional Manager for BBB Tank Services, Inc. I have been in this
       area for 11 years. I certify that the reason for the failure bottom plate on
       tank 13 located in Ingleside Texas at the Falcon Refinery, was caused by
       several holes in the bottom plate causing the sand erosion that lead up to
       catastrophic failure of the two lap welded seams located on the East North
       East section of the tank in-between the clean out door and the man-way to
       crack and give way. The plates after taken out of the tank were
       photographed and visual testing was performed. Also the last inspection
       report showed that there were several arcas [sic] of the underside of the
       floor bottom that had been loss of metal thickness, which help speed up the
       process and lead to the pin holes thru-out the tank. Mostly the larger holes
       are located on the East North East side of the tank.

       In response to Zurich’s position that the insuring agreement provision applied,

Superior Crude asserted that “loading and unloading” were incorporated into the definition

of “use” for purposes of coverage under the Policy.         It argued that “[t]he pollution

expenses Superior [Crude] incurred as a result of the rupture of the bottom of Tank 24

arose out of, and resulted directly from—and during—the unloading of the Superior-

owned oil from the Superior-owned trucks into Tank 13.” Superior Crude supported this

position with Kirby’s second affidavit dated August 23, 2012, which set out, in relevant


                                             5
part, the following:

       5.      . . . . This oil was in the process of being unloaded from the tanker
       trucks . . . into Tank 13 at Superior’s Ingleside facility immediately before,
       during, and immediately following the discovery of the leak in Tank 13.
       Due to the nature of the failure of the bottom of Tank 13, the precise moment
       of the rupture is incapable of being known.

              ....

       7.      The oil that Superior [Crude] purchases in the field, transports to the
       Ingleside terminal, and then unloads into Tank 13 contains naturally
       occurring salt water. Because the salt water is heavier than oil, it will sink
       to the bottom of the tank when the oil is unloaded into the tank. Due to the
       corrosive nature of the salt water, combined with the electrolysis of salt on
       steel, there is additional, naturally occurring corrosion to the bottom of the
       plates. That is why the plates are routinely and periodically inspected.

       8.      Following the failure of the bottom of Tank 13, and after the tank was
       emptied, I participated in an inspection which revealed that tiny pin holes
       had developed in various locations on plates comprising the floor of
       Tank 13. These holed [sic] allowed the salt water to escape undetected
       out of the bottom of the tank. The salt water then, in turn, created pockets
       or voids in the sand that had been supporting the tank bottom. As [a] result
       of the voids underneath the tank bottom/floor, as the tank was filled with oil
       during the unloading process from the trucks, the weight of the additional
       oil on the now “unsupported” tank bottom caused the tank bottom to subside
       and “sink” in the voids that had been created. This resulted in stress on
       the lap weld seams of the [“overlapping”] plates comprising the tank bottom.
       As a result of the oil being unloaded into Tank 13 on February 9, 2010, the
       additional weight of the oil being unloaded from the trucks into Tank 13
       placed stress on the weakened tank floor bottom to the point that the weight
       exceeded the weight-bearing capacity of the tank floor. The tank floor then
       suddenly and catastrophically ruptured causing the oil that was being
       unloaded from the trucks into Tank 13 to leak out of the bottom. Shortly
       thereafter the leak was discovered.

       9.       The leak occurred during the unloading of the oil from the Superior-
       owned tanker trucks into Tank 13 at Superior’s terminal in Ingleside. To
       state it more simply and directly, the Event and the resulting pollution related
       costs and expenses occurred and resulted during and as a result of the
       unloading of oil from the (insurance policy-scheduled) tanker trucks into
       Tank 13 which ruptured as a result of the additional weight of the oil being
       unloaded from the tanker trucks into Tank 13, exceeding the load bearing

                                              6
       capacity of the weakened tank floor.

       Superior Crude also filed a second amended petition, alleging that the PLBC

endorsement of the Truckers Coverage expanded pollution coverage to include the Event

because it “occurred while the oil was still owned by Superior [C]rude, still in its

possession, and prior to it being finally delivered to Superior[ Crude’s] purchaser.” But

this time, in response to Zurich’s insuring-agreement-coverage argument, Superior Crude

also claimed that “the Event arose out of the ‘use’ of Superior [Crude’s] scheduled trucks,

tanker trucks, and trailers.”

       Zurich replied to Superior Crude’s response to its summary judgment motion,

arguing that the response was without merit because (1) “Superior [Crude’s] interpretation

of the Policy relies on language that is not in the Policy,” and (2) “the Policy requires that

a covered injury be caused by the ownership, maintenance or use of a covered auto, not

just that it occur[ed] during the ownership, maintenance or use of a covered auto.” Zurich

again asserted that Superior Crude failed to meet its own summary judgment burden or

to raise a genuine issue of material fact in response to Zurich’s motion. Zurich attached

to its e-filed motion the affidavit of Holly Trager, Zurich’s custodian of records for this

lawsuit. The affidavit proved up twenty-two pages of business records attached to her

affidavit. The business records included a December 31, 2010 letter from Zurich to

Superior Crude, which provided:

       Our coverage investigation, as it pertains to the Truckers Coverage Form,
       is complete. We have reviewed documentation from the EPA as to the
       cause of loss, and a crack in the tank floor is the sole reason listed. This
       loss does not arise out of the maintenance, use or ownership of the vehicles
       used to transport the crude oil. As such, this is not a claim that would be
       covered under the Truckers Coverage Form.

                                              7
The EPA documentation referenced in this December correspondence and attached to

Trager’s affidavit was an October 18, 2010 letter from Superior Crude to the EPA

identifying the cause of the spill as “[a] crack in the floor of Tank 13.”3

        After considering both motions for summary judgment and reviewing the pleadings

and papers on file, the trial court granted Zurich’s summary judgment motion and denied

Superior Crude’s motion. The trial court further declared that “the Zurich Policy at issue

does not provide coverage for claims related to the crude oil release that occurred on or

about February 9, 2010.” Superior Crude appealed from the trial court’s final judgment.

                          II. STANDARD OF REVIEW AND APPLICABLE LAW

        We review the trial court's ruling on a motion for summary judgment de novo.

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). In the case of a

traditional summary judgment, the issue on appeal is whether the movant met the

summary judgment burden by establishing that no genuine issue of material fact exists

and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

        On cross-motions for summary judgment, each party bears the burden of

establishing it is entitled to judgment as a matter of law.                   City of Garland v. Dallas

Morning News, 22 S.W.3d 351, 356 (Tex. 2000); Shoberg v. Shoberg, 830 S.W.2d 149,

151–52 (Tex. App.—Houston [14th Dist.] 1992, no writ) (op. on reh’g) (explaining that



        3   Superior Crude filed a motion to strike Zurich’s reply on the basis that Zurich filed it untimely in
violation of a Rule 11 agreement. Zurich responded to the motion to strike, and Superior Crude replied to
that response. At the hearing on the parties’ motions for summary judgment, the trial court carried Superior
Crude’s motion to strike with the case. The record contains no order granting or denying this motion. The
trial court stated in its judgment that it considered both motions for summary judgment and reviewed the
pleadings and papers on file. We will do likewise.
                                                       8
when both plaintiff and defendant move for summary judgment, each must carry its own

burden to conclusively prove all elements of cause of action as matter of law); see TEX.

R. CIV. P. 166a(c).   We review the summary judgment evidence presented by both

parties, determine all questions presented, and render the judgment that the trial court

should have rendered or remand the cause if neither party has met its summary judgment

burden. City of Garland, 22 S.W.3d at 356; Al's Formal Wear of Houston, Inc. v. Sun,

869 S.W.2d 442, 444 (Tex. App.–Houston [1st Dist.] 1993, writ denied) (op. on reh’g).

      An insured seeking coverage has the initial burden of establishing coverage under

the terms of the policy. Gilbert Tex. Const., L.P. v. Underwriters at Lloyd’s London, 327

S.W.3d 118, 124 (Tex. 2010); Ulico Cas. Co. V. Allied Pilots Ass’n, 262 S.W.3d 773, 782

(Tex. 2008). We need not consider a policy’s exclusions and other provisions unless

and until the insured shows its claim comes within the policy’s insuring agreement. See

Gilbert Tex. Const., 327 S.W.3d at 124.

                                     III. DISCUSSION

A. The Issue

      Superior Crude presents the following issue for our review:

      In light of the fact that the Event arose out of or resulted from—and during—
      the unloading of oil from Superior’s insured oil tanker trucks, did the trial
      court err in ruling that the Zurich Policy did not provide coverage for claims
      related to the Event; notwithstanding the existence of a ‘Pollution Liability-
      Broadened Coverage for Covered Autos—Business Auto, Motor Carrier
      and Truckers Coverage’ endorsement on the Policy?

(Emphasis in original.)

      Although the Truckers Coverage includes a PLBC endorsement—and Superior

Crude uses “notwithstanding” language in its articulation of the issue, suggesting reliance

                                            9
on that provision—we conclude it is the Truckers Coverage insuring agreement that

controls our determination of coverage. The insuring agreement provides that Zurich

would pay “all sums an ‘insured’ legally must pay as a ‘covered pollution cost or expense’

to which this insurance applies, caused by an ‘accident’ and resulting from the ownership,

maintenance or use of covered ‘autos.’” Specific to this provision Superior Crude sets

out that “the question is simply whether or not the leak arose out of or resulted from the

unloading of the oil into Tank 13.”4 (Emphasis in original.). This question addresses

the “use” of covered tankers.

B. The “Use” Language

        The Texas Supreme Court has consistently held that the “use” language found in

an insuring agreement requires a causal relation between the covered auto and the injury

or damage. See Lancer Ins. Co. v. Garcia Holiday Tours, 345 S.W.3d 50, 56–58 (Tex.

2011); Mid-Century Ins. Co. of Tex. v. Lindsey, 997 S.W.2d 153, 156–64 (Tex. 1999);

State Farm Mut. Auto. Ins. Co. v. Whitehead, 988 S.W.2d 744, 745 (Tex. 1999) (per




        4   Superior Crude also claims that the Policy covered the loading and unloading of oil because it
did not specifically exclude those actions. See Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson
Energy Co., Inc., 811 S.W.2d 552, 555 (Tex. 1991) (“An intent to exclude coverage must be expressed in
clear and unambiguous language.”); see also EMCASCO Ins. v. Am. Int’l Specialty Lines Ins. Co., 438 F.3d
519, 525 (5th Cir. 2006) (“Texas courts have read business auto policies to cover loading and unloading of
the covered vehicle even if that is not specifically mentioned in the text of the policy.”). Zurich responds
that it is not arguing that the Policy excluded loading and unloading activities from coverage or that it based
its denial of coverage on such an exclusion. See Farmers Ins. Exch. v. Rodriguez, 366 S.W.3d 216, 226
(Tex. App.—Houston [14th Dist.] 2012, pet. denied) (“[A]utomobile liability policies may cover loading and
unloading of a vehicle even when those terms are not specifically included in the policy.”) (emphasis added).
Instead, Zurich claims that it denied Superior Crude’s claim because the oil release “[did] not arise out of
the maintenance, use, or ownership of the vehicles used to transport the crude oil.” (Emphasis added.)
Because we conclude herein that the insuring agreement did not cover the Event at issue, we need not
discuss the issue of whether coverage for loading and unloading of oil was specifically excluded under the
policy. See TEX. R. APP. P. 47.1.


                                                     10
curiam); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Merchants Fast Motor Lines, 939

S.W.2d 139, 142 (Tex. 1997) (per curiam). “To be a producing cause of harm, the use

must have been a substantial factor in bring[ing] about the injury, which would not

otherwise have occurred.” Lancer, 345 S.W.3d at 57 (citing W. Invs., Inc. v. Ureno, 162

S.W.3d 547, 551 (Tex. 2005)). Whether this causal relationship exists between the

tanker trucks and the oil spill is the dispositive issue before this Court. “[W]hen the injury

complained of is purely incidental to the use of a vehicle, this nexus is not shown and the

policy does not provide coverage.” Whitehead, 988 S.W.2d at 745.

C. The Lindsey Causal-Relationship Test

       A determination of whether there is a causal relation between injury and auto is

fact-specific. Lindsey, 997 S.W.2d at 157. And although not an absolute test, the Texas

Supreme Court recommended the following factors that it considered “helpful in focusing

the analysis” of the coverage question:

       (1)    the accident must have arisen out of the inherent nature of the
              automobile, as such,

       (2)    the accident must have arisen within the natural territorial limits of an
              automobile, and the actual use must not have terminated,

       (3)    the automobile must not merely contribute to cause the condition
              which produces the injury, but must itself produce the injury.

Lancer, 345 S.W.3d 55–56 (quoting Lindsey, 997 S.W.2d at 157).

       1. Lindsey’s First Factor

       We need not address the first factor set out in Lindsey—the inherent-nature-of-

the-automobile factor—because even assuming that unloading oil is within the inherent

nature of the tanker trucks, we still conclude, as discussed below, that the second and

                                             11
third factors could not be satisfied. So we begin our review with the second factor. See

TEX. R. APP. P. 47.1.

       2. Lindsey’s Second Factor

       Lindsey’s second factor provides, in relevant part, that “the accident must have

arisen within the natural territorial limits of an automobile . . . .” Lindsey, 997 S.W.2d at

157; see Brown v. Houston Indep. Sch. Dist., 123 S.W.3d 618, 622 (Tex. App.—Houston

[14th Dist.] 2003, pet. denied) (applying the Lindsey test and concluding that the patrol

car was not being “used” when the injuries from the assault “did not occur within the

territorial limits of the patrol car; instead, they occurred in appellant's truck and in the

parking lot”). Courts have determined that “natural territorial limits” are not limited to the

interior of a vehicle. See Mid-Continent Cas. Co. v. Global Enercom Mng’t, Inc., 323

S.W.3d 151, 156 (Tex. 2010) (per curiam) (concluding that the loss occurred “within the

natural territorial limits” of an F-250 pickup when the workers fell from a “headache ball”

that was attached to a rope, attached to a pulley, and anchored to the front bumper of the

truck); Farmers Ins. Exch. v. Rodriguez, 366 S.W.3d 216, 220, 227 (Tex. App.—Houston

[14th Dist.] 2012, pet. denied) (holding that Rodriguez’s injuries occurred “within the

natural territorial limits of the trailer, even though Woodling and Rodriguez had taken a

few steps out of the trailer” and the deer stand no longer touched the trailer as they were

unloading it); see Salcedo v. Evanston Ins. Co., 462 Fed. App'x 487, 491 (5th Cir. 2012)

(per curiam) (instructing that the accident occurred within the truck's natural territorial

limits when a hose from a plant's asphalt reservoir to an oil truck ruptured as hot oil was

moving through it and injured a worker before the actual use—the uploading of oil—


                                             12
terminated).5 In this case, however, the accident—the oil release—did not arise within

the natural territorial limits—the interior or exterior of any tanker truck or even, by

extension, an area outside the tanker trucks. Instead, the accident arose within the

natural territorial limits of the aboveground oil storage tank.

        The summary judgment evidence establishes that the accident—the oil release or

spill—occurred from within an aboveground oil storage tank. The oil escaped through a

crack in the floor of Tank 13. It did not escape or spill from the tanker trucks. No oil

escaped from a rupture of any tanker truck hose; no oil escaped from a failure of any

other tanker truck part. In his affidavit, Kirby described the failure of the weakened

bottom of Tank 13. As Superior Crude asserts and Kirby sets out in his affidavit, the

additional weight of the oil being unloaded “exceeded the weight[-]bearing capacity of the

[weakened] tank floor,” and the weakened tank floor “suddenly and catastrophically

ruptured.” The fact that oil flowed from the tanker trucks into Tank 13, without more, is

not enough to support a determination that the accident in this case arose within the

natural territorial limits of the tanker trucks. See Lindsey, 997 S.W.2d at 157. The

summary judgment evidence shows that it was the natural territorial limits of the tank, not

the tanker trucks, from which the Event arose.

        3. Lindsey’s Third Factor

        Finally, focusing on Lindsey’s third component, the “auto” must not merely

contribute to cause the condition that produces the injury; it must produce the injury. See



        5 The Fifth Circuit determined that Salcedo v. Evanston Insurance Co. is not precedent except

under the limited circumstances set forth in 5th Circuit Rule 47.5.4, which it concluded did not apply in
Salcedo. 462 Fed. App’x 487, 488 (5th Cir. 2012) (per curiam); see 5TH CIR. R. 47.5.
                                                   13
id. This “factor is especially troublesome because of the difficulty in many circumstances

of deciding what role a vehicle, as opposed to other things, played in producing a

particular injury . . . . The degree of the vehicle’s involvement in the production of the

injury is a difficult factor to judge . . . .” Id. at 157–58. And as the Texas Supreme Court

has noted, “not every injury capable of connection to the use of an auto is a covered use.”

Lancer, 345 S.W.3d at 56 (comparing cases where the courts determined that the vehicle

was not a producing cause of the injury, which occurred in or near the vehicle with cases

where the courts concluded that the vehicle caused the injury).

       The summary judgment evidence in this case established that the cause of the oil

release was subsidence in the soil below Tank 13 that led to a crack in the tank floor. On

October 18, 2010, Kirby reported to the EPA that the cause of the oil release was “[a]

crack in the floor of Tank 13.” On November 3, 2010, Gamble signed an affidavit on

behalf of Superior Crude stating that the cause of the release was sand erosion that

caused the tank floor “to crack and give way.” On November 3, 2011, responding to

Zurich’s requests for admission, Superior Crude admitted that “[t]he cause of the Oil

Release was the result of a subsidence and/or collapse of the Tank 13 floor bottom of the

tank . . . .” And in Kirby’s second affidavit, he explained that: (1) because salt water

naturally occurs in oil, it will sink to the bottom of the tank when oil is unloaded into it; (2)

there was naturally-occurring corrosion to the bottom of the plates in the tank because of

the corrosive nature of salt water; and (3) this corrosion caused tiny pin holes to develop

on the plates comprising the floor of Tank 13 and allowed salt water to escape undetected

out the bottom. Kirby also set out that the salt water then created pockets or voids in the


                                               14
sand that had supported the tank bottom. Kirby continued,

      As a result of these voids underneath the tank bottom/floor, as the tank was
      filled with oil during the unloading process from the trucks, the weight of the
      additional oil on the now “unsupported” tank bottom caused the tank bottom
      to subside and “sink” in the voids that had been created. This resulted in
      stress on the lap weld seams of the plates comprising the tank bottom. As
      a result of the oil being unloaded into Tank 13 on February 9, 2010, the
      additional weight of the oil being unloaded from the trucks into Tank 13
      placed stress on the weakened tank floor bottom to the point that the weight
      exceeded the weight-bearing capacity of the tank floor. The tank floor then
      suddenly and catastrophically ruptured causing the oil that was being
      unloaded from the trucks into Tank 13 to leak out of the bottom .

      Based on our review of the summary judgment evidence presented by both parties,

we cannot conclude that Superior Crude met its burden, as the insured, of establishing

coverage under the terms of the policy. See Gilbert Tex. Const., 327 S.W.3d at 124;

Ulico Cas. Co., 262 S.W.3d at 782. It has not shown that use of a covered auto—the

tanker trucks in this case—caused the oil release.

      Superior Crude nonetheless argues

      that the unloading process from the insured trucks of 520 tons of oil into
      Tank 13 exceeded the load bearing capacity of the tank floor causing it to
      break and the oil to flow out as the oil continued to be unloaded from the
      insured trucks. In other words, the floor of Tank 13 failed—and the Event
      occurred—as a result of—and during—the unloading of the oil from the
      insured trucks into the Tank.

(Emphasis in original.)   We are not persuaded by this argument.            The summary

judgment evidence does not establish that the oil unloaded from the tanker trucks

exceeded the load bearing capacity of the tank floor and caused it to break. What the

summary judgment evidence shows is that the weight of oil unloaded from the tanker

trucks exceeded the load bearing capacity of the already weakened tank floor.

      Superior Crude also asserts that it is even more apparent that it satisfied Lindsey’s

                                            15
third factor “when the causal relationship involved here is compared to the attenuated

relationship between the Lindsey truck and the injury in that case. If ‘use’ of a pickup

can cause personal injuries from a shotgun blast, ‘use’ of an oil tanker unloading oil can

certainly cause an oil spill.” See Lindsey, 997 S.W.2d 153, 156–64. Again, we are not

persuaded by Superior Crude’s argument.

       In Lindsey, a nine-year-old boy, Richard Metzer, was attempting an unorthodox

entry into a parked, locked pickup truck through its sliding rear window when “he

accidentally touched a loaded shotgun resting in a gun rack mounted over the rear

window, causing the gun to discharge. The buckshot struck Richard Lindsey, who was

seated in his mother’s car parked next to the pickup.” Id. at 154. The Lindsey Court

concluded the following:

       Lindsey’s injury arose out of the use of the Metzer truck as a matter of law.
       Metzer’s son’s sole purpose was to gain entry into the truck to retrieve his
       clothing. His conduct did not stray from that purpose. He did not play with
       the gun, or try to shoot it, or load or unload it, or purposefully handle it in
       any way. His contact with the gun was entirely inadvertent. Although the
       boy was attempting an unorthodox method of entry, it was not an
       unexpected or unnatural use of the vehicle, given his size, the fact that the
       vehicle was locked, and the nature of boys. It was the boy’s efforts to enter
       the vehicle that directly caused the gun to discharge and Lindsey to be
       injured. . . . Application of the third . . . factor makes this a close case, but
       we think on balance the Metzer truck “produced” . . . the injury. Certainly,
       the truck was not merely the situs of activity, unrelated to any use of the
       truck that resulted in the accident.

Id. at 158–59.

       Although suggesting that the causal connection in this case is less attenuated than

the Lindsey connection, Superior Crude makes no claim that some part of the truck

malfunctioned or was inadvertently misused during the loading process, such that the

tanker truck directly caused the oil spill. Cf. id. (explaining that “[i]t was the boy’s efforts
                                             16
to enter the vehicle that directly caused the gun to discharge and Lindsey to be injured”).

Superior Crude makes no allegations that the drivers of the tanker trucks or anyone else

took affirmative actions while unloading the oil that may have contributed to the accident,

and no evidence supports such a conclusion.           Cf. id.; Austin Indep. Sch. Dist. v.

Gutierrez, 54 S.W.3d 860, 866 (Tex. App.—Austin 2001, pet. denied) (concluding that a

girl’s injuries, which occurred when she was hit by a car and killed, arose out of the use

of the school bus when the bus driver took “the affirmative action of honking the horn”

signaling the girl she could cross the street).       In short, the facts in Lindsey are

distinguishable from the facts in this case.

       Like Lindsey, this is a close case, see Lindsey, 997 S.W.2d at 159, but unlike

Lindsey, we cannot conclude that there was a causal relation between the tanker trucks

and the oil spill. Focusing on the facts that show the origin of the damages, see id. at

164 (citing Nat’l Union Fire Ins., 939 S.W.2d at 141), the tanker trucks merely contributed

to the condition that produced the oil release; they did not cause the oil release. See id.

at 157. In other words, the tanker trucks were not “substantial factor[s] in bring[ing] about

the injury, which would not otherwise have occurred.” See Mid-Continent Cas. Co., 323

S.W.3d at 156 (citing Ureno, 162 S.W.3d at 551); Lancer, 345 S.W.3d at 57. At best, the

loading of oil into the tank was only an incidental connection between the oil release and

a covered “auto.” See Whitehead, 988 S.W.2d at 745.

E. Summary

       Having reviewed the summary judgment evidence presented by both parties, see

City of Garland, 22 S.W.3d at 356, we agree with the trial court that, as a matter of law,


                                               17
Superior Crude’s claimed injury was not covered by the Policy provided by Zurich; under

Lindsey specifically, the injury was not covered under the Policy’s Truckers Coverage

insuring agreement. And because Superior Crude, the insured, has not shown that its

claim comes within the Truckers Coverage insuring agreement, we need not consider

whether the PLBC endorsement provides coverage.         See Gilbert Tex. Const., 327

S.W.3d at 124. The trial court properly granted Zurich’s motion for summary judgment

and denied Superior Crude’s motion.       We overrule Superior Crude’s sole issue on

appeal.

                                    IV. CONCLUSION

      We affirm the judgment of the trial court.

                                                            NELDA V. RODRIGUEZ
                                                            Justice

Delivered and filed the
31st day of July, 2014.




                                           18
