United States District Court, W.D. Virginia, Roanoke Division
December 22, 2016
FALLS LAKE NATIONAL INSURANCE COMPANY, Plaintiff,
ISRAEL MARTINEZ, JR., et al., Defendants.
Glen E. Conrad, Chief United States District Judge
insurance coverage dispute, Falls Lake National Insurance
Company ("Falls Lake") seeks a declaratory judgment
that it has no obligation to indemnify Israel Martinez, Jr.,
Salinas Express, LLC ("Salinas Express"), or SMC
Transport, LLC ("SMC") in connection with a
personal injury action that Brandon Lester filed against
Martinez, Salinas Express, SMC, and others in this court. See
Lester v. SMC Transport, LLC, No. 7:15CV00665 (W.D.
Va.) (the "underlying personal injury action"). The
case is presently before the court on cross-motions for
partial summary judgment filed by Falls Lake, Lester, and
United Specialty Insurance Company ("United
Specialty"). For the reasons set forth below, Falls
Lake's motion will be granted in part and denied in part,
Lester's motion will be granted, and United
Specialty's motion will be denied.
The Underlying Personal Injury Action
sunrise on October 26, 2015, Lester was traveling southbound
on Interstate 81 in Botetourt County. At approximately the
same time, Martinez was operating a semi-tractor owned by and
registered to SMC (the "SMC Tractor"), a commercial
motor carrier based in Texas. The SMC Tractor had been driven
to Virginia to pick up a disabled semi-tractor utilized by
Salinas Express (the "Salinas Express Tractor"),
another commercial motor carrier based in Texas. The disabled
tractor had been left in the parking lot of a rest stop
adjacent to the interstate.
Roy Salinas ("Roy"), and Eddie Lozano used the SMC
Tractor to tow a third tractor (the "Lozano
Tractor") to Virginia, so that Lozano could deliver the
goods that remained in the trailer attached to the disabled
Salinas Express Tractor. Upon arriving at the rest stop, the
Lozano Tractor was unhooked from the SMC Tractor and then
used to deliver the remaining goods. The Salinas Express
Tractor was then hooked up to the SMC Tractor, so that it
could be towed back to Texas.
before 6:00 a.m., Martinez and Roy attempted to leave the
rest stop in the SMC Tractor with the Salinas Express Tractor
in tow. To do so, Martinez drove north, on the entrance ramp
to the rest stop, so that he could make a U-turn onto
southbound 1-81. In attempting to make the U-turn, Martinez
caused the SMC Tractor, towing the Salinas Express Tractor,
to block at least the right lane of travel.
same time, Lester approached the entrance ramp to the rest
stop while traveling in the right lane. He was unable to stop
or maneuver his vehicle in time to avoid hitting the SMC
Tractor. A second vehicle, operated by Anthony Shifflett,
then struck Lester's vehicle.
December 9, 2015, Lester filed the underlying personal injury
action against SMC, Martinez, Salinas Express, and Shifflett.
On September 2, 2016, the court ruled on a number of motions
filed by the parties in that action, including Lester's
motion for partial summary judgment. As is relevant in the
instant action, the court ruled that Martinez and Roy were
employees of Salinas Express at the time of the accident,
that they were acting within the scope of their employment,
and, thus, that Salinas Express is "vicariously liable
for [their] negligent conduct." Lester v. SMC
Transport. LLC. No. 7:15CV00665, 2016 U.S. Dist. LEXIS
118946, at *27-28 (W.D. Va. Sept. 2, 2016). Although Lester
also moved for partial summary judgment on the issue of
whether SMC is vicariously liable for the negligence of
Martinez and Roy, the court denied that motion on the basis
that a reasonable jury could find that Martinez and Roy were
not agents of SMC.
The Insurance Policiesj
The Policy Issued by Falls Lake;
time of the accident, Salinas Express was insured under a
motor carrier liability policy issued by Falls Lake (the
"Falls Lake Policy"), under which the Salinas
Express Tractor was a "covered 'auto.'" The
Falls Lake Policy obligates Falls Lake to "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.'" Falls Lake Motor Carrier Coverage Form
§ 11(A), Docket No. 1-2. Section 11(A)(1) of the Falls
Lake Policy defines "Who Is An Insured." That
section provides, in pertinent part, as follows:
following are "insureds":
a. You for any covered "auto".
b. Anyone else while using with your permission a covered
"auto" you own, hire or borrow except:
(1) The owner or any "employee", agent or driver of
the owner, or anyone else from whom you hire or borrow a
(2) Your "employee" or agent if the covered
"auto" is owned by that "employee" or
agent or a member of his or her household.
e. Anyone liable for the conduct of an "insured"
described above but only to the extent of that liability.
However, none of the following is an "insured":
(1) Any "motor carrier" for hire or his or her
agents or "employees", j other than you and your
(a) If the "motor carrier" is subject to motor
carrier insurance requirements and meets them by a means
other than "auto" liability insurance ....
Id. at § II(A)(1).
addition to the scheduled vehicles for which the Falls Lake
Policy provides coverage, the policy lists three types of
vehicles which "are also covered 'autos' for
Covered Autos Liability Coverage." Id. at
§ I(C). Those vehicles include "Temporary
Substitute Autos, " I specifically:
Any "auto" you do not own while used with the
permission of its owner as al temporary substitute for a
covered "auto" you own that is out of service
because; of its:
d. "Loss"; or
Id. at § 1(C)(3).
The Policy Issued by United Specialty
the time period at issue, SMC was insured under a motor
carrier liability policy issued by United Specialty (the
"United Specialty Policy"). It is undisputed,
however, that the SMC Tractor was not listed on the United
Specialty Policy's schedule of covered autos at the time
of the accident, and, thus, that it was not insured under
that policy. Accordingly, there is no liability coverage
under the United Specialty Policy for the underlying
United Specialty Policy contains an MCS-90
endorsement. That endorsement provides, in pertinent
part, as follows:
In consideration of the premium stated in the policy to which
this endorsement is attached, the insurer (company) United
Specialty] agrees to pay, within the limits of liability
described herein, any final judgment recovered against the
insured [SMC] for public liability resulting from negligence
in the operation, maintenance or use of motor vehicles
subject to the financial responsibility requirements of
Sections 29 and 30 of the Motor Carrier Act of 1980
regardless of whether or not each motor vehicle is
specifically described [in] the policy and whether or not!
such negligence occurs on any route or in any territory
authorized to be served by the insured or elsewhere. Such
insurance as is afforded, for public liability, does not
apply to injury or death of the insured's employees while
engaged in the! course of their employment or property
transported by the insured, designated as cargo. It is
understood and agreed that no condition, provision,
stipulation, or limitation contained in the policy, this
endorsement, or any other endorsement; thereon, or violation
thereof, shall relieve the company from liability or from the
payment of any final judgment, within the limits of liability
herein described, 1 irrespective of the financial condition,
insolvency or bankruptcy of the insured.
However, all terms, conditions, and limitations in the policy
to which the endorsement is attached shall remain in full
force and effect as binding between the insured and the
company. The insured agrees to reimburse the company for any
payment made by the company on account of any accident,
claim, or suit involving a breach of the terms of the policy,
and for any payment that the company would not have been
obligated to make under the provisions of the policy except
for the agreement contained in this endorsement....
Specialty MCS-90 Endorsement at 2, Docket No. 65-8.
The Instant Action
the underlying personal injury action was commenced by
Lester, Falls Lake brought this action seeking a declaratory
judgment that it does not have a duty to indemnify Salinas
Express, Martinez, or SMC with respect to any claims asserted
against them as a result of the accident. The declaratory
judgment action is now before the court on cross-motions for
partial summary judgment filed by Lester, United Specialty,
and Falls Lake. Lester urges the court to conclude that
Salinas Express is entitled to liability coverage under the
Falls Lake Policy. United Specialty urges the court to
conclude that its insured, SMC, is entitled to liability
coverage under the Falls Lake Policy. Falls Lake, on the
other hand, moves the court to i conclude
that coverage is not owed to Salinas Express, SMC, Martinez,
award of summary judgment is appropriate "if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). In determining whether a
genuine dispute of material fact exists, the court must
"view the facts and all justifiable inferences arising
therefrom in the light most favorable to the nonmoving
party." Libertarian Party of Va. v. Judd, 718
F.3d 308, 313 (4th Cir. 2013); see also Anderson v.
Liberty Lobby. Inc., 477 U.S. 242, 249 (1986).
"When faced with cross-motions for summary judgment,
[courts] consider each motion separately on its own merits to
determine whether [any] of the parties deserves judgment as a
matter of law." Bacon v. City of Richmond, 475
F.3d 633, 636-37 (4th Cir. 2007). "The court must deny
[the] motions if it finds that there is a genuine dispute of
material fact, but if there is no genuine issue and one or
the other party is entitled to prevail as a matter of law,
the court will render judgment." Sky Angel U.S., LLC
v. Discovery Commc'ns., LLC, 95 F.Supp.3d
860, 869 (D. Md. 2015) (citation and internal quotation marks
Texas law, which the parties agree applies in the instant
case, the interpretation of an insurance policy presents a
question of law. Seahawk Liquidating Trust v. I
Certain Underwriters at Lloyds London, 810 F.3d
986, 990 (5th Cir. 2016). Courts interpret insurance policies
using the same rules of construction applicable to other
contracts. Tesoro Ref. & Mktg. Co., LLC v. Nat'l
Union Fire Ins. Co., 833 F.3d 470, 474 (5th Cir. 2016)
(citing American Mfrs. Mut. Ins. Co. v. Schaefer,
124 S.W.3d 154, 157 (Tex. 2003)). The court's
"primary concern" is "[e]ffectuating the
parties' expressed intent." Don's Bldg.
Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 23
(Tex. 2008). When a policy uses unambiguous language, the
court! "must enforce it as written." Id.
"If, however, a contract is susceptible to more than one
reasonable interpretation, [the court must] resolve any
ambiguity in favor of coverage." Id.
"Policy terms are given their ordinary and commonly
understood meaning unless the policy itself shows the parties
intended a different, technical meaning." Id.
Coverage under the Falls Lake Policy
their respective motions, Falls Lake and Lester dispute
whether Salinas Express is entitled to indemnification under
the Falls Lake Policy. Although Salinas Express is the named
"insured" under the Falls Lake Policy and the
Salinas Express Tractor is a "covered 'auto,
'" Falls Lake argues that coverage is unavailable
for Lester's injuries because they arose from an accident
involving Lester's vehicle, the SMC Tractor, and
Shifflett's vehicle, and did not "result from the
ownership, maintenance or use of the Salinas Express Tractor.
See Falls Lake Policy § 11(A) ("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'."). For the following reasons,
the court disagrees with Falls Lake and concludes, as matter
of law, that Salinas Express is entitled to coverage. Under
Texas law, the insuring language at issue is interpreted
broadly. See Lincoln Gen. Ins. Co. v. Aisha's
Learning Ctr., 468 F.3d 857, 859-60 (5th Cir. 2006).
"The term 'use? is the general catchall of the
insuring clause, designed and construed to include all proper
uses of the vehicle" State Farm Mut. Auto Ins. Co.
v. Pan Am. Ins. Co., 437 S.W.2d 542, 545 (Tex. 1969).
For liability to "arise out of or "result
from" the use of a covered motor vehicle, "a causal
connection or relation must exist between the accident or
injury and the use of the motor vehicle."
Mid-Century Ins. Co. v. Lindsev, 997 S.W.2d 153, 156
(Tex. 1999); see also Lancer Ins. Co. v. Garcia Holiday
Tours, 345 S.W.3d 50, 55 (Tex. 2011). This "is
interpreted to mean that there is but-for causation, though
not necessarily direct or proximate causation."
Utica Nat'l Ins. Co. v. Am. Indem. Co., 141
S.W.3d 198, 203 (Tex. 2004). Moreover, "the use required
is of the vehicle qua vehicle, rather than simply as
an article of property." Lindsev, 997 S.W.2d at
156. If the vehicle at issue "is only the locational
setting for an injury, the injury does not arise out of any
use of the vehicle." Id. In Lindsev,
the Texas Supreme Court articulated a three-part test for
determining whether an injury arises from the use of a motor
vehicle for purposes of liability insurance coverage:
For an injury to fall within the "use" coverage of
an automobile policy (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, [and] (3) the automobile must not merely
contribute to cause the condition which produces the injury,
but must itself produce the injury.
Id. at 157. The Supreme Court has since held that
"the analysis is the same whether the policy requires
that an injury 'result from' or 'arise out of the
covered auto's use." Lancer Ins. Co., 345
S.W.3d at 55.
Supreme Court's decision in Lindsey
"demonstrates just how broadly its test for
'use' is interpreted." Lincoln Gen.
Ins., 468 F.3d at 859. That case involved a child who
attempted to enter his parents' parked and locked truck
through the truck's sliding rear window to retrieve an
article of clothing. Lindsey, 997 S.W.2d at 154. In
so doing, the child accidentally touched a loaded shotgun
resting in a gun rack mounted over the rear window, causing
the gun to discharge and injure a passenger in another
vehicle. Id. On these facts, the Supreme Court
concluded that the passenger's injury "arose out of
the use of the . . . truck as a matter of law."
Id. at 158. The Court reasoned that the child's
sole purpose was to gain entry into the truck, that his
unorthodox method of entry was not an unexpected or unnatural
use of the vehicle, and that it was the child's efforts
to enter the vehicle that directly caused the gun to
discharge and the nearby passenger to become injured.
Id. Although the case was a "close" one,
the Court ultimately held that the "truck
'produced' ... the injury, " and "was not
merely the situs of activity, unrelated to any use of the
truck that resulted in the accident." Id. at
the Lindsey factors to the instant case, the court
concludes that Lester's injuries resulted from the use of
the Salinas Express Tractor. First, the accident occurred
while the Salinas Express Tractor was being towed from the
rest area. Using a vehicle in this manner is not
"unexpected or unnatural." Lindsey, 997
S.W.2d at 158; see also State Farm Fire and Casualty Co.
v. Pinson, 984 F.2d 610, 612 (4th Cir. 1993)
(emphasizing that "a towed vehicle is a 'used'
vehicle") (collecting cases). Instead, it is part of the
inherent nature of a vehicle. Accordingly, the first factor
second factor is whether the accident arose within the
vehicle's natural territorial limits before its use
terminated. See Lindsey, 997 S.W.2d at 157. Because
the accident occurred on a roadway, while the Salinas Express
Tractor was being towed by the SMC Tractor, the court
concludes that this factor is also satisfied. The mere fact
that Lester's vehicle made contact with the SMC Tractor,
rather than the Salinas Express Tractor, is not dispositive.
See, e.g., State & County Mut. Fire Ins. Co. v.
Trinity Universal Ins. Cos., 35 S.W.3d 278, 282 (Tex.
App. El Paso 8th Dist. 2000) (holding that an accident
"unmistakably" occurred within the natural
territory of an insured vehicle where a woman "died on a
roadway, " after jumping out of the vehicle and being
struck by another car); see also Lindsey, 997 S.W.2d
at 160 (finding this factor satisfied even though the
injuries occurred in an adjacent vehicle).
third factor is whether the covered vehicle "produce[d]
the injury" in question. Lindsey, 997 S.W.2d at
157. As discussed above, the causation inquiry in this
context involves "but-for causation, though not
necessarily direct or proximate causation." Utica
Nat'l Ins. Co., 141 S.W.3d at 203. A but-for cause
is "one without which the event would not have
occurred." Transcon. Ins. Co. v. Crump, 330
S.W.3d 211, 223 (Tex. 2010).
on the undisputed evidence in the instant case, the court
concludes that the Salinas Express Tractor produced the
injuries at issue. The underlying accident would not have
occurred if the Salinas Express Tractor had not broken down
along the interstate and needed to be towed from the rest
stop. The Salinas Express Tractor was connected to the SMC
Tractor at the time of the accident, and the presence and
positioning of the Salinas Express Tractor at the rest stop
resulted in the effort to make a U-Turn from the entrance
ramp onto southbound 1-81. While Falls Lake emphasizes that
Lester's vehicle only made contact with the SMC Tractor
and that the Salinas Express Tractor sustained no damage, the
court finds these facts to be of no consequence, especially
in light of Lindsey. In Lindsey, even
though a shotgun inflicted the injury, the Texas Supreme
Court found that the insured truck "produced" the
injury, since the accident would not have occurred but for
the child's efforts to gain entry to the truck.
Lindsey, 997 S.W.2d at 160. Likewise, in this case,
while Lester's vehicle struck the SMC Tractor, the
disabled Salinas Express Tractor "produced"
Lester's injuries, since the accident would not have
occurred but for the actions undertaken to remove the
disabled truck from the rest stop.
these reasons, the court concludes that the accident at issue
resulted from the use of the Salinas Express Tractor, and,
thus, that Salinas Express is entitled to liability coverage
under the Falls Lake Policy. Accordingly, the court will deny
Falls Lake's motion for partial summary judgment on this
issue, and grant Lester's motion for partial summary
parties also dispute whether SMC is entitled to coverage
under the Falls Lake Policy. United Specialty, SMC's
insurer, argues that SMC is an additional "insured"
under the Falls Lake Policy, and that the SMC Tractor is a
"covered 'auto'" under that policy. For the
following reasons, the court disagrees with United Specialty
and concludes, as a matter of law, that SMC is not entitled
to coverage under the Falls Lake Policy.
SMC is not an additional "insured" under the Falls
Lake Policy. In arguing to the contrary, SMC cites to
subsection (e) of § 11(A)(1), which provides that the
following are "insureds" "Anyone liable for
the conduct of an 'insured' described above but only
to the extent of that liability." Falls Lake Motor
Carrier Coverage Form § 11(A)(1)(e), Docket No. 1-2. SMC
contends that its "only exposure in the underlying suit
is based on vicarious liability, " and that "it is
very probable that . . . any vicarious liability would have
to flow through the named insured Salinas Express."
United Specialty's Br. in Response to Falls Lake's
Mot. for Partial Summ. J. 10, Docket No. 67. In response,
Falls Lake and Lester dispute this assertion and argue that
even if SMC could be deemed an "insured" under
subsection (e), the subsequent "motor carrier"
exclusion precludes coverage for SMC. The court agrees with
Falls Lake and Lester.
defining "Who Is an Insured, " the Falls Lake
Policy excludes certain motor carriers from the definition.
As is relevant in the instant case, the policy provides that
"none of the following is an 'insured'":
(1) Any "motor carrier" for hire or his or her
agents or "employees", other than you and your
(a) If the "motor carrier" is subject to motor
carrier insurance requirements and meets them by a means
other than "auto" liability insurance.
Lake Motor Carrier Coverage Form § 11(A)(1), Docket No.
1-2. "Accordingly, coverage is extended under the policy
to non-employee [motor carriers] only if their insurance
policies offer reciprocal coverage." Ill. Nat'l
Ins. Co. v. Temiam 779 F.Supp.2d 921, 926 (N.D. Ind.
case, it is undisputed that SMC is a "motor
carrier" subject to motor carrier insurance
requirements. Moreover, the court agrees with Falls Lake and
Lester that SMC met those requirements by means other than
"'auto' liability insurance." Indeed, it is
undisputed that the SMC Tractor was not insured at the time
of the accident under any policy of insurance procured by
SMC. Although the United Specialty Policy issued to SMC
contains an MCS-90 endorsement, that endorsement "does
not provide insurance coverage." Real Legacy
Assurance Co. v. Santori Trucking, Inc., 560 F.Supp.2d
143, 147 (D.P.R. 2008) (collecting cases); see also
Carolina Casualty Ins. Co. v. Yeates, 584 F.3d 868, 884
(10th Cir. 2009) (emphasizing that "the MCS-90
endorsement is not an ordinary insurance provision to protect
the insured") (citation and internal quotations marks
omitted). Instead, "[t]he endorsement creates a
suretyship by the insurer to protect the public when the
underlying insurance policy otherwise provides no coverage,
" and "carries with it a right to reimbursement
[from the insured]." Real Legacy Assurance
Co., 560 F.Supp.2d at 147-148; see also Canal Ins.
Co. v. Carolina Cas. Ins. Co., 59 F.3d 281, 283 (1st
Cir. 1995) (holding that the endorsement is a
"suretyship by the insurance carrier to protect the
public -- a safety net -- but not insurance"). Thus,
"[w]here as here, a policy does not provide coverage for
nonlisted vehicles except to third-party members of the
public through operation of [the] form endorsement. . ., the
policy provides no coverage for purposes of disputes among
insurers over ultimate liability." Canal Ins. Co. v.
First Gen. Ins. Co., 889 F.2d 604, 611 (5th Cir. 1989).
Accordingly, because SMC met its motor carrier insurance
requirements by a means other than "'auto'
liability insurance, " SMC is not an "insured"
under the Falls Lake Policy. Falls Lake Policy §
II(A)(1), Docket No. 1-2.
the court agrees with Falls Lake and Lester that the SMC
Tractor is not a "covered 'auto'" under the
Falls Lake Policy. In arguing to the contrary, United
Specialty relies on § 1(C) of the Falls Lake Policy,
which provides that the following types of vehicles are
"also covered 'autos' for Covered Autos
Any "auto" you do not own while used with the
permission of its owner as a temporary substitute for a
covered 'auto' you own that is out of service because
d. "Loss"; or
Id. at § 1(C). United Specialty emphasizes that
it is undisputed that the Salinas Express Tractor was
"broken down, " and that its "broken down
condition was the sole reason for Martinez, Roy Salinas,
Eddie Lozano .. . and Salinas Express to be using the SMC
truck." United Specialty's Br. in Response to Falls
Lake's Mot. for Partial Summ. J. 8-9, Docket No. 67.
assuming that United Specialty's recitation of the
"undisputed" evidence is correct, i the mere fact
that the SMC Tractor was used to tow the Salinas Express
Tractor from the rest stop does not mean that it was a
"temporary substitute" for the disabled vehicle.
Because the term "temporary substitute" is not
defined in the Falls Lake Policy, the court must consider its
"ordinary, everyday meaning." Progressive
County Mut. Ins. Co. v. Sink, 107 S.W.3d 547, 552 (Tex.
2003). The plain and ordinary meaning of the word
"substitute" is a "a person or thing that
takes the place or function of another." Merriam-Webster
visited Dec. 20, 2016). Thus, the court believes that the
term "temporary substitute" clearly refers to a
vehicle that is used place of an insured vehicle that is
broken down or otherwise in need of repair. Accordingly,
"in order for coverage to attach in this case, the
temporary substitute vehicle must have been performing a
function that the disabled insured vehicle would have been
performing but for its temporary disability." Duncan
Auto Realty, Ltd. v. Allstate Ins. Co., 754 So.2d 863,
865 (Fla. Ct. App. 3d Dist. 2000) (citing Couch on
Insurance §§ 117:83 & 117.89 (3d rev. ed.
1997)): see also Stonehocker v. Gulf Ins.
Co., 368 P.3d 1187, 1194 (Mont. 2016) (emphasizing that
"[t]he critical focus under the temporary substitute
auto provision is whether the pickup truck was in fact being
used as a substitute for the Suburban").
this standard, the court fails to see how the SMC Tractor
could be deemed a "temporary substitute" for the
Salinas Express Tractor. Instead, the only "temporary
substitute" was the tractor used by Eddie Lozano to
complete the delivery of goods that the Salinas Express
Tractor was supposed to make. By completing the interstate
job in question, the Lozano Tractor took the place of the
disabled Salinas Express Tractor and performed the function
that it would have performed but for its temporary
disability. The same cannot be said for the SMC Tractor,
which was merely used as a tow truck. Accordingly, the SMC
Tractor is not a "covered 'auto'" and SMC
is not entitled to coverage under the Falls Lake Policy.
reasons stated, Falls Lake's motion for partial summary
judgment will be granted in part and denied in part,
Lester's motion for partial summary judgment will be
granted, and United Specialty's motion for partial
summary judgment will be denied. The Clerk is directed to
send certified copies of this memorandum opinion and the
accompanying order to all counsel of record.
"An MCS-90 endorsement is an
endorsement added to a trucker's insurance policy to
satisfy federal motor-carrier regulations requiring minimum
levels of financial responsibility." Nat'l
Specialty Ins. Go. v. Martin-Vegue, 644 F.App'x 900,
903 n.4 (11th Cir. 2016) (citing 49 U.S.C. § 31139(b);
49 C.F.R. § 387.15).
 The court notes that Roy is not named
as a defendant in the underlying personal injury
 "Where a vehicle is a mere situs
of injury, fungible with any other situs, it is not being
'used.'" Lincoln Gen. Ins., 468 F.3d
857, 860 n.2. For instance, in Lancer Insurance Company
v. Garcia Holiday Tours, the Texas Supreme Court ruled
that the transmission of tuberculosis from a bus driver to
his passengers "did not result from the vehicle's
use but rather from the bus company's use of an unhealthy
driver." 345 S.W.3d at 59. The Court reasoned that
"the bus was the mere physical situs of the exposure to
the infected person, which could have occurred
anywhere." Id. at 58.
 In addition to arguing that Salinas
Express is not entitled to coverage, Falls Lake argues that
coverage is not owed to Salinas Express' employees,
Martinez and Roy. In light of the court's conclusion that
Salinas Express is entitled to coverage under the Falls Lake
Policy, and its earlier ruling that Salinas Express is
vicariously liable for the negligent conduct of Martinez and
Roy, the issue of whether Martinez and Roy are also entitled
to coverage is ultimately of no consequence. In any event,
this issue involves a dispute of material fact regarding the
ownership of the Salinas Express Tractor and whether Martinez
and Roy were acting on behalf of the owner. Accordingly, it
cannot be resolved at this stage of the proceedings.