2                    United States Court of Appeals,

                                 Fifth Circuit.

                                 No. 94-20404.

           ASSICURAZIONI GENERALI, S.P.A., Plaintiff-Appellee,

                                       v.

                RANGER INSURANCE CO., et al., Defendants,

 Ranger Insurance Co., ETL Corp., and Empire Truck Lines, Inc.,
Defendants-Appellants.

                             Sept. 21, 1995.

Appeal from the United States District Court for the Southern
District of Texas.

Before WISDOM, DUHÉ and BENAVIDES, Circuit Judges.

      BENAVIDES, Circuit Judge:

      The central issue of this appeal involves the interpretation

of an exclusion attached to a "non-trucking" insurance policy. The

case stems from a motor vehicle collision.                 A dispute arose

regarding coverage between the insurance carrier for the truck

owner and the insurance carrier for the lessee of the truck.

Determining that the language of the exclusion in the owner's

policy is ambiguous, we find that the truck owner's insurance

policy provided coverage.         We therefore reverse.

                     I. FACTS AND PROCEDURAL HISTORY

      Lillie Hooker owned the truck involved in the accident, a 1978

Peterbuilt Tractor.      She leased the truck to ETL Corporation, who

then leased it to a related company, Empire Trucking Lines.                The

lease agreements were in effect on the date in question.              Pursuant

to   the    lease   agreement,    Hooker    was   responsible   for   carrying


                                       1
insurance on the truck covering accidents occurring when the truck

was     operating     "not     under    dispatch        to   Empire."        Appellee

Assicurazioni Generali S.p.A. (Generali) provided "non-trucking"

insurance      to    Hooker,    and    Appellant    Ranger     Insurance      Company

(Ranger) provided commercial auto insurance to Empire.                           Both

policies were in effect on the date of the accident.

      Hooker's son, Jeffrey Mitchell, was Hooker's designated driver

on February 4, 1992.           On that date, Mitchell stated that he was

having problems with the brakes.               He declined to be dispatched and

was   not     transporting      property.         The    dispatcher     for    Empire

understood that after Mitchell declined to be dispatched, Mitchell

took the truck out of service.             Empire, however, did not mark the

truck out of service.          He was "bobtailing"1 in route to the repair

shop when the accident occurred. Kelley Barnes and Derrick Bundage

were injured in the accident.              Barnes and Bundage filed a state

court action against Hooker.               Thereafter, Generali filed this

action, requesting that the district court enter a declaratory

judgment      that   Generali    does     not    provide     coverage   to    Hooker,

Mitchell, Empire, or ETL for the claims arising from the vehicular

collision.      Generali also requested that the district court enter

a judgment declaring that Ranger did provide coverage for the

accident.      Ranger counterclaimed, requesting the district court to

enter     a   declaratory      judgment    that    Generali     provided      primary

coverage to ETL, Empire, Hooker, and Mitchell.                 The district court


      1
      "Bobtailing" means driving a tractor without a trailer
attached.

                                           2
entered    a   declaratory   judgment     that       Ranger   provided   primary

coverage and that the endorsements attached to Generali's policy

excluded coverage.     Ranger appeals.

                        II. STANDARD OF REVIEW

      This is an appeal from a declaratory judgment, and we have

jurisdiction based on the diversity of citizenship.               We therefore

apply Texas law.    Ranger Ins. Co. v. Estate of Mijne, 991 F.2d 240,

243 n. 9 (5th Cir.1993).     Texas courts construe insurance policies

like contracts.    National Union Fire Ins. Co. v. Hudson Energy Co.,

811 S.W.2d 552, 555 (Tex.1991).         The interpretation of a contract

is a question of law, and thus, we review it de novo.              D.E.W., Inc.

v. Local 93, Laborers' International Union of N. Am., 957 F.2d 196,

199 (5th Cir.1992).

                   III. WHETHER THE EXCLUSIONS APPLY

     Ranger contends that the magistrate judge erred in finding

that the "in the business of" endorsements attached to Generali's

policy excluded coverage for the accident, arguing that, at the

time of the accident, the truck was not engaged in the business of

transporting property, and, thus, the exclusions in Generali's

policy did not apply.         The endorsements at issue provided as

follows:

                INSURANCE FOR NON-TRUCKING USE (LIMITED)
                           (BOBTAIL/DEADHEAD)


                         *    *   *       *      *     *

          WE agree with you that such insurance as is afforded by
     the policy for Bodily Injury, Property Damage, Uninsured
     Motorist Coverage and/or Personal Injury Protection does not
     apply:

                                      3
     (a) To any person or organization or any agent or employee
          thereof, other than YOU,2 engaged in the business of
          transporting property by auto for others;

     (b) While the auto is being used to carry property in any
          business;

     (c) While a trailer, semi-trailers, or another truck or
         tractor unit, whether owned or non-owned, is attached to
         any truck or tractor described above.

(emphasis in original) (footnote added).

     In support of its contention that the truck was not "engaged

in the business of transporting property"3 at the time of the

accident,   Ranger   relies   on   the   following   stipulated   facts:

Mitchell was in route to repair the tractor's brakes; Mitchell was

not transporting property;         Mitchell was not under dispatch;

Mitchell was bobtailing and had taken the tractor out of service.

     Although the court below acknowledged the preceding facts, it

found that, as a matter of Texas law, Mitchell was engaged in the

business of transporting property for Empire at the time of the

accident, citing Greyhound Van Lines, Inc. v. Bellamy, 502 S.W.2d

586 (Tex.App.—Waco 1973);     Rainbow Express, Inc. v. Unkenholz, 780

S.W.2d 427 (Tex.App.—Texarkana 1989, writ denied).4

     2
      For purposes of this appeal, we do not decide whether "YOU"
includes Mitchell.
     3
      See endorsement section (a).
     4
      The district court also relied on Hartford Ins. Co. v.
Occidental Fire & Cas. Co., 908 F.2d 235, 238 (7th Cir.1990), in
which the Seventh Circuit, construing Wisconsin law, determined
that the driver was using his truck "in the business of" the
lessee while having the trailer repaired. While the opinion in
Hartford contains language arguably indicating that any time that
a vehicle is being repaired it is in the business of the lessee,
it is distinguishable from the instant case on its facts. In
that case, the truck was carrying refrigerated cargo in a trailer

                                    4
     In Greyhound, the plaintiff sued the lessee of the truck,

Greyhound, for personal injuries caused by the negligence of the

truck driver.   502 S.W.2d at 587.   The jury found that the truck

driver negligently injured the plaintiff while attempting to assist

the plaintiff, a mechanic, repair the brakes.   Greyhound's defense

was that the driver was not its employee, but instead was an

employee of the owner of the truck or an independent contractor.

     Rejecting Greyhound's defense, the Texas court of appeals

explained that "Article 6701c-1, Vernon's Texas Civil Statutes,

prohibits the lessee of a commercial motor vehicle or truck-tractor



that leaked freon. The buyer rejected the cargo. The truck
lessee instructed the driver to unload the cargo into cold
storage and await further instructions because the lessee needed
that truck to carry the cargo. In the interim, the driver left
his trailer to be repaired. The truck, while bobtailing, was
involved in an accident returning to the repair shop. The
Seventh Circuit held that the truck was operating in the business
of the truck lessee at the time of the accident. 908 F.2d at
238. In the instant case, the driver had declined dispatch
because he needed to have his truck's brakes repaired and was not
supervising any cargo.

          Recently, in Liberty Mutual Insurance Co. v.
     Connecticut Indem. Co., 55 F.3d 1333, 1338 (7th Cir.1995),
     the Seventh Circuit, applying Indiana law, determined that
     the endorsement in the truck driver's indemnity policy
     applied to exclude coverage because the truck driver, who
     owned the truck, was "in the business of" the truck lessee
     at the time of the accident. Liberty, however, can be
     distinguished from the instant case for the same reasons as
     Hartford, supra. In Liberty, the truck driver was
     responsible for cargo left at a truck stop and under orders
     to deliver the cargo. The Liberty court, relying on
     Hartford, emphasized that the inquiry depends on: whether
     the accident occurred while the truck driver was under
     dispatch orders; whether the lessee could control his
     actions; and whether the driver was responsible for the
     cargo. Liberty, like Hartford, is distinguishable from the
     case at bar because Mitchell was not under dispatch and was
     not responsible for any cargo.

                                5
from operating such vehicle over the public highways of this state

unless the lease provides that the lessee shall have "full and

complete    control    and   supervision'   over   the   operation   of   the

vehicle."    Id. at 588.5     Additionally, the Court stated that, in

accordance with the leases's provisions, the owner furnished the

driver with the truck subject to Greyhound's approval. Under those

circumstances, the Court held that Greyhound's claim that its right

to exclusive control of the truck did not include the right of

supervision of the driver's undertaking to repair the truck was

unpersuasive.    Id.

     The Court further opined that "article 6701c-1 was obviously

enacted to eliminate any uncertainty that might otherwise exist as

to who is responsible for wrongs inflicted upon the public at large

through the operation on our state highways by lessees of the

vehicles named in the statute."          Id.   Notwithstanding any other

rule, the Court found that Greyhound was prohibited from claiming

that the driver was not under its exclusive control and supervision

at the time the plaintiff was injured.         Id.   The overriding force

behind the decision in Greyhound was to give effect to the public

policy embodied in article 6701c-1, i.e., to make certain that a

member of the public injured by such a leased vehicle would have

certainty in determining who is held responsible.

     In Rainbow, supra, a tire on the truck leased to Rainbow blew


     5
      Although Greyhound's lease contained the language in
article 6701c-1, the Court stated that if the clause had not been
in the lease, it "would have been a part of their lease contract
as a matter of law." Greyhound, 502 S.W.2d at 588.

                                     6
out, causing the driver to lose control of the truck and strike the

plaintiff's vehicle.   780 S.W.2d at 429.    The truck was hauling

goods to Illinois at the time of the accident.    Joe Dixon owned the

truck, and, pursuant to the lease to Rainbow, Dixon was to maintain

the trucks.   There was testimony that Dixon instructed the trucker

to drive to Illinois without purchasing new tires.    The jury found

Dixon negligent, a finding that was not appealed.    The Court stated

that "the duty of maintenance and repair is a nondelegable function

that is required to be under the control of the lessee."         780

S.W.2d at 432 (citing, inter alia, Greyhound ).       The Court then

reasoned that because Dixon was performing the nondelegable duty of

keeping the truck properly maintained, he was a vice-principal of

Rainbow, the lessee, as a matter of law.    Id.

     Neither Greyhound nor Rainbow are controlling in that they do

not dispose of the issue at bar—whether the language "engaged in

the business of transporting property" clearly and unambiguously

excludes the repair of the truck in the context of an endorsement

to an insurance policy.    Both cases are distinguishable in that

they involve the liability of the lessee.     The Greyhound court,

looking to the lease provisions and article 6701c-1, held that the

lessee's right to exclusive control of the truck included the

supervision of the driver's repair of the truck, and, thus, the

court found the lessee liable for the driver's negligent acts under

the doctrine of respondeat superior.   Similarly, the Rainbow court

held that because the owner of the truck was performing the

lessee's nondelegable duty of maintaining the truck, he was a


                                 7
vice-principal of the lessee, and, thus, the lessee was liable. In

both of the above Texas cases, the courts were mindful of the

important policy of protecting an injured member of the public in

accordance with article 6701c-1.

      Neither party has cited (nor has our research revealed) a

Texas case involving a coverage dispute between two insurers in

which the court has defined the scope of an endorsement that

excludes coverage when a truck is engaged in the business of

transporting property.                The issue presented in this case is not

whether there is any insurance coverage of the accident.                             Instead,

the   issue    is        whether      the    lessor's       policy       provides    coverage

additional to that of the lessee's policy.                          Specifically, Ranger,

the insurer for the lessee, does not contest its coverage of the

accident      but    contends         that     Generali's       policy      also     provides

coverage.       The court below relied on cases that involved an

important public policy that is not present in the case at bar.

      Analogously, in Industrial Indemnity Company v. Truax Truck

Line,   Inc.,       45    F.3d     986      (5th       Cir.1995),    a    Mississippi    case

involving a coverage dispute over a trucking accident between two

insurers, the district court found that one insurer provided

coverage based in part on the fact that certain federal regulations

required the lessee to have exclusive use of the truck.                              We found

that the district court erred in looking to the effect of the

federal    regulations           on   the    risk       allocation       between    insurers,

because the policy behind the federal regulations (protecting

injured members of the public) had no application to coverage


                                                   8
disputes among insurers.             Id. at 991-92 & n. 7 (citing Canal

Insurance Co. v. First General Insurance Co., 889 F.2d 604 (5th

Cir.1989));      see also Hartford Ins. Co. v. Occidental Fire & Cas.

Co., 908 F.2d 235 238 (7th Cir.1990) ("The existence of additional

insurance       funds   affects      only       the   ultimate    distribution     of

liability, a subject on which the regulations are indifferent.").

      If a provision in an insurance policy is subject to more than

one reasonable interpretation, such uncertainty should be resolved

against the drafter of the policy. Barnett v. Aetna Life Insurance

Company, 723 S.W.2d 663, 666 (Tex.1987).                  "An intent to exclude

coverage must be expressed in clear and unambiguous terms."                      State

Farm Fire & Cas. Co. v. Reed, 873 S.W.2d 698, 699 (Tex.1993).

      At the time of the accident, Mitchell was neither under

dispatch nor transporting property. He was bobtailing and in route

to a repair shop to have the brakes repaired.                    Further, Empire's

dispatcher understood that Mitchell had taken Hooker's truck out of

service.        We   find   that,    under      those   circumstances,        Ranger's

assertion that the truck was not engaged in the business of

transporting property a reasonable interpretation of the exclusion

provision.      We also find reasonable Generali's interpretation that

activities       undertaken     to    enable      the   repair     of   the    brakes

constitutes engaging in the business of transporting property

because    it    furthers     the    commercial       interests   of    the   lessee.

Accordingly, because we conclude that the "in the business of"

endorsement is vague and subject to more than one reasonable

interpretation, we resolve the doubt against the drafter and find


                                            9
that the exclusion does not apply.        We find that the district court

erred in finding that Generali's policy did not provide coverage

for the accident.

                     IV. PRIMARY VERSUS EXCESS COVERAGE

         Finally, the district court found Ranger's coverage primary

because Ranger's policy provided "that its coverage is "primary for

any covered auto while hired or borrowed by [Empire] and used

exclusively     in    [Empire's]   business.'    "     Ranger   does   not

specifically challenge the basis for that holding.          We therefore

will not disturb the court's holding that Ranger's policy provided

primary coverage.        Nonetheless, Ranger contends that Generali's

policy provides primary coverage because the insured, Hooker, owned

the truck.6    We agree.    The Generali policy expressly provides that

"[f]or any covered "auto' you own, this policy provides primary

insurance."     Accordingly, we hold that both Ranger and Generali

provide primary coverage of the accident.        In the court below, the

parties stipulated as follows:

          The parties agree that if the Court finds that the
     Generali policy was triggered, and that both the Ranger policy
     and the Generali policy provide primary coverage for the
     incident in question, the responsibility for coverage shall be
     shared on a pro rata basis between Ranger and Generali, based
     on the amount of coverage provided for under each policy. In
     effect, Ranger would bear two-thirds (2/3) of the proven loss,
     and Generali would bear one-third (1/3) of the proven loss.

In accordance with the above stipulation, we find that the Ranger

policy covers two-thirds of the proven loss, and the Generali

policy covers one-third of the proven loss.


     6
      It is undisputed that Hooker owned the truck.

                                     10
     For the reasons expressed herein, the judgment of the district

court is REVERSED and RENDERED against Generali in accordance with

this opinion.




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