                           UNITED STATES COURT OF APPEALS
                                    FIFTH CIRCUIT

                                       _________________

                                           No. 01-40656

                                       (Summary Calendar)
                                       _________________


               EDWARD ALLEN BOLES, Individually and as Representative of the
               Estate of Deborah Leigh Boles; JUANITA RUTH WALKER
               BOLES, Individually and as Representative of the Estate of Deborah
               Leigh Boles

                                       Plaintiffs - Cross Defendants - Appellees,

               versus


               BOMBARDIER INC; ET AL

                                       Defendants

               ASHLIE M LEWIS

                                       Cross Claimant - Appellant.



                           Appeal from the United States District Court
                                For the Eastern District of Texas
                                  USDC No. 2:00-CV-10-TJW


                                 January 21, 2002
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*




       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       Appellant Ashlie M. Lewis (“Lewis”) appeals the district court’s order granting Appellees

Edward Allen Boles and Juanita Ruth Boles’ (“Boles”) motion for summary judgment. The district

court held that Lewis was not entitled to recover from the Boles based on the indemnity provision

in the settlement agreement signed by the parties. On appeal, we must determine whether the district

court’s order was a final judgment as defined in 28 U.S.C. § 1291, whether the district court correctly

held that Lewis was not entitled to indemnity, and whether the court correctly dismissed Lewis’

additional breach of contract claim.

       We review a motion for summary judgment de novo, applying the same standard as the

district court. Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 271 F.3d 624, 626 (5th Cir.

2001). A motion for summary judgment is properly granted only if there is no genuine issue as to any

material fact. Id.

       This appeal arises out of a product liability suit filed by Boles against Bombardier, a

manufacturer of personal watercrafts. The Boles’ daughter Deborah was fatally injured in 1998 when

a personal watercraft manufactured by Bombardier (and driven by Lewis) crashed into the watercraft

driven by Deborah Boles. The Boles brought a previous action against Lewis, which settled with the

execution of an agreement under which the Boles agreed to indemnify Lewis against all future claims

or actions arising out of the accident asserted “by, through, and/or under” the Boles.

       About a year after the settlement with Lewis was executed, the Boles brought suit against

Bombardier. Alleging that Lewis was the proximate cause of the Boles’ damages, Bombardier filed

a third-party claim against Lewis. Lewis answered Bombardier’s third-party claim by denying

culpability, and asserting a cross-claim against the Boles for reimbursement of defense costs pursuant

to the indemnity provision in the settlement agreement. The Boles subsequently settled their claims


                                                 -2-
against Bombardier, and the action was dismissed with a “take-nothing” judgment in favor of

Bombardier. Bombardier’s third-party claim against Lewis was also dismissed, and the only claim

remaining was Lewis’ cross-claim against the Boles.

        The Boles then moved for summary judgment, arguing that the indemnity clause did not cover

Lewis’ claim. While this motion was pending, Lewis requested leave of the court to amend her

pleadings to include a breach of contract claim. The District Court entered an order granting Boles’

motion for summary judgment and Lewis’ motion for leave to amend her counter-claim, and denying

all other pending motions.

                                                    I

        We have jurisdiction over appeals from final decisions of the district court. For a decision to

be final, it must “end[] the litigation on the merits and leave[] nothing for the court to do but execute

the judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). In multiparty litigation,

the claims and liabilities of all the parties must be finally adjudicated, or the court must expressly

determine there is no just reason for delay and direct an entry of judgment. Riley v. Wooten, 999 F.2d

802, 804 (5th Cir. 1993).

        Because the district court properly considered and dismissed all of the outstanding claims in

this action, this court has appellate jurisdiction under 28 U.S.C. § 1291. The claim between Boles

and Bombardier terminated when the district court entered a take nothing judgment in favor of

Bombardier, leaving only the claim by Lewis against Boles. Later, the district judge granted Lewis’

motion to amend the counter-claim, granted the Boles’ motion for summary judgment, and denied

all remaining motions. Because all of the parties’ claims were finally adjudicated by this order, the

judgment was properly appealed to this court.


                                                  -3-
                                                 II

       The District Court, applying Texas law in this diversity action, concluded that the cross-action

between Bombardier and Lewis was not an action covered by the scope of the indemnity agreement

signed by the parties. We agree. The settlement agreement between Boles and Lewis contained the

following language regarding indemnification:

               . . .Plaintiffs [Boles], . . . HAVE AGREED TO AND DO HEREBY
               INDEMNIFY AND HOLD HARMLESS the Defendants [Lewis]
               from any and all claims, demands, actions and causes of action of
               whatsoever nature or character, INCLUDING CLAIMS BASED
               UPON THE FAULT OR NEGLIGENCE OF THE DEFENDANTS,
               which have been o r which may hereafter be asserted by any person,
               firm, or corporation claiming by, through, and/or under the
               Plaintiffs arising out the incident made the basis of the Lawsuit.
               (emphasis added).

       In a case with remarkably similar facts, a Texas court interpreted such “by, through and/or

under” language to prohibit recovery under an indemnity clause. In Manhattan Construction Co. v.

Hood Lanco, an indemnity provision was executed in favor of a settling party (Manhattan), covering

any claims that occurred by, through, or under the original plaintiff (Hood Lanco). 762 S.W.2d 617,

618-19 (Tex. App. – Houston 1988, writ denied). When another defendant (Westlake) sued by the

plaintiff filed a claim against Manhattan seeking indemnity, Manhattan filed suit against Hood Lanco

(the original indemnitor) arguing that the indemnity provision in the settlement agreement required

Hood Lanco to indemnify it against Westlake’s claim. Id. at 619. The court, applying the plain

meaning of the clause, held that Manhattan could not recover because Westlake’s subsequent claim

did not arise “by, through and under” Hood Lanco’s (the original plaintiff’s) original claim for

damages. Id. Likewise, in this case, Bombardier brought the action against Lewis under the

authority of a Texas statute permitting joinder of responsible tort-feasors. TEX. CIV. PRAC.& REM.


                                                 -4-
CODE ANN. § 33.004 (Vernon 1997) (governing joinder of responsible third parties). This is an

independent statutory ground, not related to the original claim filed by the Boles.

       Therefore, we agree with the district court’s determination, and hold that Bombardier’s claim

against Lewis is not covered by the scope of the indemnity clause.

                                                 III

       Lewis claims on appeal that the district court improperly granted summary judgment when

it failed to consider the breach of contract claim raised in her amended pleadings. We reject this

argument, because it is clear from the court’s order that the court granted Lewis’ motion requesting

leave to amend her pleadings and considered her breach of contract claim.1 Regardless of whether

the amended claim is addressed by the moving party in its motion for summary judgment, when leave

is granted to amend the pleadings, the motion for summary judgment is considered to apply to the

pleadings as amended.      See 10A CHARLES ALAN WRIGHT            ET AL.,   FEDERAL PRACTICE      AND

PROCEDURE §2722 (3d ed. 1998); Index Fund, Inc. v. Hagopian, 609 F. Supp. 499, 503 (S.D.N.Y.

1985) (stating that when motion for summary judgment and motion to amend the pleadings are

presented together, the motion for summary judgment is considered in light of the amended

pleadings); cf. Shawnee Int.’l v. Hondo Drilling Co., 742 F.2d 234, 236 (5th Cir. 1984) (considering

motion for 12(b)(6) dismissal and amended pleadings, and dismissing complaint as amended under

12(b)(6)). Therefore, the court properly considered the breach of contract claim.



       1
         The court’s order specifically refers to the amended claim adding breach of contract, stating:
“The court grants and has considered Lewis’ Amended Cross Claim. Cross Plaintiffs amended the
complaint to include additional allegations of breach of contract. The construction of the indemnity
clause will address all claims and motions submitted by the parties.” Boles v. Bombardier, No. 2:00-
CV-10 (E.D. Tex. May 16, 2001) (order granting summary judgment and motion to amend counter-
claim, and denying all remaining motions).

                                                 -5-
        The district court did not error by dismissing Lewis’ breach of contract claim. This claim is

based solely on the settlement agreement, under which the Boles contractually agreed to indemnify

Lewis. See Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 719 (5th Cir. 1995) (evaluating indemnity

claim as “straight-forward breach of contract claim”). Because we have already determined the

contractual provision at issue does not entitle Lewis to recovery, Lewis’ breach of contract claim also

fails on the merits.2

        For the foregoing reasons, the district court’s order is AFFIRMED.




        2
          Lewis argues in her brief that the Boles violated the settlement agreement with Lewis by
“filing the suit [against Bombardier] and creating the procedural mechanism that gave rise to the suit
against Ashlie Lewis.” We are not persuaded by this argument. First, the settlement agreement
prevented only future suits against Lewis, not any other party. Second, Lewis’ sole claim is for
recovery of defense costs, a claim arising only under the indemnity provision of the settlement
agreement.

                                                 -6-
