                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                             No. 95-60041
                           Summary Calendar



ISOLA D. ROYAL, ET AL.,

                                          Plaintiffs-Appellants,

versus

JERRY ARD,

                                          Defendant-Appellee,

CANAL INSURANCE CO., ET AL.,

                                          Defendants-Appellees.



             Appeal from the United States District Court
               for the Southern District of Mississippi
                           (2:93-CV-202-PS)


                          September 21, 1995

Before HIGGINBOTHAM, DUHE’, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Isola D. Royal, et al., appeal from the District Court's grant

of summary judgment in favor of Canal Insurance Co.         We have

jurisdiction over this timely filed appeal pursuant to 28 U.S.C.

§ 1291, and we affirm the decision of the District Court.

                                  I.

     *
     Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
      This present suit is the third arising from the unfortunate

events of March 24, 1991.    We summarize the facts and history of

the previous two cases only insofar as they are relevant to the

disposition of the current suit.       On March 24, 1991 while driving

a 1987 Peterbuilt truck, Bobby Ard collided with an automobile

driven by Byron K. Royal, resulting in Royal's death.          Members of

Royal's family sued Jerry Ard, Bobby Ard's employer, in the Circuit

Court of Claiborne County, Mississippi.             At the time of the

accident, Jerry Ard possessed two automobile insurance policies.

The first, the Basic Automobile Liability Policy No. G02068 issued

by Canal Insurance Co., covered liability for bodily injury up to

$300,000; the second, the Excess Indemnity Policy No. X003559

issued by Canal Indemnity Co., covered liability in excess of the

primary coverage up to $500,000.       Canal Insurance Co. defended Ard

under the express reservation that Ard's insurance policies with

Canal did not cover the 1987 Peterbuilt.           On June 24, 1993, the

state court rendered judgment for the Royals and awarded damages of

$553,500.

      While the state court tort action was pending, Canal filed a

declaratory judgment suit in the U.S. District Court for the

Southern District of Mississippi naming, among others, the members

of the Royal family as defendants. Canal sought a declaration that

its policy did not cover the 1987 Peterbuilt truck at the time of

the   accident.   Canal's   insurance     policy    limited   coverage   to

personal injuries resulting from the use of "an owned automobile or

of a temporary substitute automobile," the latter of which the


                                   2
policy defined as "an automobile not owned by the named insured or

any resident of the same household, while temporarily used with the

permission of the owner as a substitute for an owned automobile

when withdrawn from normal use for servicing or repair or because

of its breakdown, loss or destruction."

     Canal moved for summary judgment, claiming that the Peterbuilt

was not a "temporary substitute automobile" because Jerry Ard was

the owner of the truck at the time of the accident.1            To support

its motion, Canal filed a copy of a motor vehicle lease agreement

with KTA, Inc. signed by Jerry Ard and his wife, LaGwen.               Canal

claimed that, although denominated as a "lease", the agreement was

actually a conditional sales contract.      Canal pointed out that the

agreement provided that, after making the final lease payment, Ard

could purchase the truck for no extra charge.        In addition, Canal

filed the affidavits of two KTA officers, who stated that the lease

agreement   was   functionally   a   conditional   sale   and   that   they

considered Ard to be the owner of the truck.          According to the

officers, KTA retained title to the truck as security.

     In response, the Royals claimed that the Peterbuilt was

covered by the Canal insurance policy as a "temporary substitute

automobile" because, at the time of the accident, KTA owned the

truck and the truck was being used as a substitute vehicle while

the normal truck used by Ard was undergoing repairs.            To bolster

     1
          The Royals conceded that the Peterbuilt truck was not
covered as an "owned automobile."       To qualify as an "owned
automobile" under the terms of the policy, the automobile must
either (1) be owned by the insured and described in the policy, or
(2) be newly acquired by the insured during the policy period.

                                     3
their claim, the Royals presented certified copies of the title

documents for the 1987 Peterbuilt showing KTA as the owner of

record.

     On June 21, 1994, the district court granted Canal's motion

for summary judgment, concluding that the 1987 Peterbuilt truck did

not qualify as a "temporary substitute automobile" because Jerry

Ard owned the truck at the time of the accident.           Applying

Mississippi law, the district court found that the lease agreement

between KTA and Ard was a conditional sales contract.     The court

noted that the lease agreement provided that "Jerry Ard had to

provide his own insurance except for collateral insurance; taxes

had to be paid by Jerry Ard; Jerry Ard was responsible for any and

all repairs and maintenance; and Jerry Ard had the exclusive use,

possession and control of the 1987 Peterbuilt tractor."   The court

also emphasized that the lease agreement provided that Ard could

purchase the truck for no additional charge upon completion of the

lease payments.   Moreover, Ard in his deposition admitted that he

was the owner of the truck.   Because the 1987 Peterbuilt did not

qualify as a temporary substitute automobile, the court concluded

that the Canal insurance policy did not cover the 1987 Peterbuilt

truck at the time of the accident.   The Royals did not appeal the

District Court's judgment for Canal.

     On June 24, 1993, after the state court had awarded judgment

for the Royals but while the declaratory judgment action was still

pending, the Royals filed a Suggestion for Writ of Garnishment in

the Circuit Court of Claiborne County, Mississippi.       The court


                                 4
issued the Writ of Garnishment against Canal.   Alleging diversity

of citizenship,2 Canal removed the garnishment action to the U.S.

District Court for the Southern District of Mississippi, in which

Canal' motion for summary judgment in its declaratory judgment

action was then pending.   On November 7, 1994, after the court had

rendered judgment for Canal Insurance Co. in the declaratory

judgment action, Canal Indemnity Co. filed a Notice of Joinder to

join in a Motion for Summary Judgment filed by Canal Insurance Co.

that same day.   Relying on the summary judgment in the declaratory

judgment action, Canal claimed that it was not liable to Jerry Ard

since its insurance policy issued to Ard did not cover the 1987

Peterbuilt truck at the time of the accident.

     Furthermore, Canal Indemnity claimed since Canal Insurance was

not liable to Ard on the primary insurance policy, Canal Indemnity

was not liable to Ard on the excess insurance policy.        Canal

emphasized that the excess insurance policy by its own terms

covered Ard only for such loss "as would have been payable under

all of the terms of the [primary policy]."    Canal Indemnity also

pointed to language in the excess liability insurance policy that

provided that the policy was "subject to all the conditions,

agreements, exclusions and limitations of and shall follow the

Primary Insurance in all respects . . . ."



    2
          Canal Insurance Co. is a South Carolina corporation with
its principal place of business in Greenville, South Carolina. The
Royals are all adult citizens of Mississippi or Louisiana. The
district court had jurisdiction of the garnishment action pursuant
to 28 U.S.C. § 1441.

                                 5
     The Royals never responded to Canal's motion for summary

judgment, and, on January 17, 1995, the district court granted

Canal's motion.    The court held that "based on the reasoning in the

previous Opinion of this Court in the declaratory judgment action,

Defendant Canal is entitled to Summary Judgment on the issue of

coverage in the primary policy."           Additionally, the court found

that "the express provisions of the excess policy provide that the

primary policy governs, and thus Canal is entitled to Summary

Judgment as to coverage on this policy as well."        The Royals timely

appealed the district court's decision.

                                     II.

     On appeal, the Royals now argue that, if the lease agreement

with KTA was a conditional sales contract as the district court

found, both LaGwen and Jerry Ard, not just Jerry Ard, owned the

truck.   From     this   premise,    the   Royals   conclude   that,   under

Mississippi law, Jerry Ard did not own the 1987 Peterbuilt truck

and, therefore, the truck qualified as a temporary substitute

automobile under the terms of the Canal insurance policies.

     We are reluctant to address this contention since the Royals

did not raise it (or any other argument) in response to Canal's

motion for summary judgment.        Although the failure to respond to a

motion for summary judgment does not entitle the movant to summary

judgment, Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022-23

(5th Cir. 1995), the nonmovant may not attack the summary judgment

by raising new legal claims on appeal.         John v. State of La. (Bd.

of Trustees for State Colleges & Universities), 757 F.2d 698, 710


                                      6
(5th Cir. 1985); Topalian v. Ehrman, 954 F.2d 1125, 1132 n.10 (5th

Cir.), cert. denied, 113 S. Ct. 82 (1992).    Our review is limited

to the summary judgment record before the trial court.    Topalian,

954 F.2d at 1131 n.10.     The Royals did not raise this claim in

response to Canal's motion for summary judgment in the district

court, nor did the Royals raise it in response to Canal's motion

for summary judgment in the declaratory judgment action, nor did

they appeal that judgment on this ground.   In short, the claim that

the 1987 Peterbuilt truck is not owned by Jerry Ard because it is

owned by LaGwen and Jerry Ard jointly is raised for the first time

on appeal and is, therefore, waived by the Royals.

     Even if the Royals had not waived it, this argument is without

merit.   We are baffled by the claim that because the Peterbuilt

truck is owned jointly by Jerry Ard and his wife, it is, therefore,

not owned by Jerry Ard.   The cases cited by the Royals do not stand

for this proposition.3    To the contrary, under Mississippi law, a

     3
          The Mississippi Supreme Court in Caldwell v. Hartford
Acc. & Indem. Co., 160 So.2d 209, 212 (Miss. 1964), held that an
automobile owned individually by the insured's wife was not owned
by the insured. In reaching this conclusion, the court in Caldwell
followed and quoted from the South Carolina Supreme Court's
decision in Baxley v. State Farm Mut. Auto. Liability Ins. Co., 128
S.E.2d 165, 166 (S.C. 1962), a case which the Royals do not discuss
in their brief for good reason. Although the Baxley court held
that a car owned by the named insured's wife was not owned by the
named insured, the court emphasized that the automobile was owned
by the insured's wife individually, not by the insured and his wife
jointly as is the case here. Id.
     The other cases cited by the Royals are even less availing.
The West Virginia Supreme Court of Appeals in Farley v. American
Auto. Ins. Co., 72 S.E.2d 520, 521 (W. Va. 1952), did not hold that
an automobile owned by a named insured along with another was not
owned by the named insured; rather, the court held that an
automobile owned by one of two named insured was not owned by the
named insured. Finally, the court in Saint Paul-Mercury Indem. Co.

                                  7
co-owner has the rights to possess and use the property and to

share in the rents and profits accruing from the property.             Eden

Drainage Dist. of Yazoo Cty. v. Swaim, 54 So.2d 547, 550 (Miss.

1951), error overruled, 55 So.2d 439 (Miss. 1951).          In addition, a

co-owner   must   pay   his   proportionate    share   of   expenses   for

maintenance of the property.      Id.    While co-owners do not possess

all the rights, such as exclusive possession, that an individual

owner has, the Royals do not explain nor do we perceive how that

difference undermines the conclusion that Jerry Ard owns the 1987

Peterbuilt truck for the purpose of determining the scope of the

insurance coverage.

     Furthermore, even were we to accept the Royals' claim that the

1987 Peterbuilt was not owned by Jerry Ard, we would still be

compelled to affirm the district court.           Unlike the insurance

policies in the cases cited by the Royals, the primary insurance

policy issued by Canal expressly states that a temporary substitute

automobile is an automobile "not owned by the named insured or any

resident of the same household."        This provision prevents insurers

from covering the insured's regular use of vehicles owned by

members of the same household. Accepting the Royals' argument that

Jerry Ard and his wife, LaGwen, jointly own the 1987 Peterbuilt

truck, we still must conclude that the truck does not qualify as a

temporary substitute automobile because the truck is owned by both



v. Heflin, 137 F.Supp. 520, 523 (W.D. Ark. 1956), held that an
automobile owned by a partnership was not owned by the named
insured, who was one of the partners, since partnership property is
not property of the partners individually.

                                    8
the named insured, Jerry Ard, and a resident of his household,

LaGwen Ard.

     Finally, the Royals did not controvert the district court's

conclusion    that   the   excess    insurance    policy's   coverage   is

coterminous with that of the primary policy.          The excess policy

covers Ard only for such loss "as would have been payable under all

of the terms of the [primary policy]."           Furthermore, the excess

policy is "subject to all the conditions, agreements, exclusions

and limitations of and shall follow the Primary Insurance in all

respects."    The district court correctly held that because the

primary policy did not cover the 1987 Peterbuilt at the time of the

accident, the excess insurance policy did not cover it either.

                                    III.

     Canal is entitled to summary judgment because the Royals

"ha[ve] failed to make a sufficient showing on an essential element

of [their] case with respect to which [they have] the burden of

proof."   Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Accordingly, the judgment of the district court is AFFIRMED.




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