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this opinion should not be published and is not precedent except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
2
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.
5