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Click here for the full text of this decision FACTS:Hanna Construction Inc. is a road-maintenance contractor. Hanna subcontracted a road-striping job on eastbound I-20 in Smith County to Striping Technologies Inc. Hanna was insured by a commercial general liability policy through Employers Mutual Casualty Co., and Hanna required Striping Technologies to make Hanna an additional insured under Striping Technologies’ commercial general liability policy with St. Paul Insurance Co. In July 1998, Striping Technologies had a striping convoy at work in the left lane. Besides the trucks performing the work, there were two supply trucks/crash trucks. The crash truck bringing up the rear had an arrow board on it and crash barriers around it. The driver of this truck stopped the truck just at the crest of a hill and took it out of gear, waiting for the convoy in front of him to begin climbing the next hill. While in this position, a red Suburban traveling at full speed (the speed limit was 70 m.p.h.) crashed into the crash barrier, killing the driver and one passenger. A second passenger was seriously injured. The decedents’ families sued Striping Technologies and Hanna. Striping Technologies settled with the families for $1 million, to be paid out of its auto policy with St. Paul. Hanna settled with the families for $625,000, to be paid out of the Employers policy. Employers then claimed it was subrogated to Hanna’s right to reimbursement as an additional insured under Striping Technologies’ commercial general liability policy with St. Paul’s. Employers filed a declaratory judgment action that St. Paul had a duty to reimburse Employers. After both sides moved for summary judgment, the trial court granted St. Paul’s motion, denied Employers’ motion and entered a take-nothing judgment against Employers. HOLDING:Affirmed. The court lays out all of the relevant provisions of St. Paul’s commercial general liability policy on Striping Technologies. The policy explained to whmo it was applicable, and then set out several exclusions including an auto exclusion. The court finds it undisputed that the deaths and injuries of the Suburban’s passengers were the result of an event an accident that happened while the policy was in effect, so the event does fall within the general coverage provision. However, the court also finds that the event is excluded from coverage by the auto exclusion. Employers claims that, although impact with the crash truck may have caused the deaths and injuries, the deaths and injuries were not caused by the use or operation of the crash truck as a vehicle; instead the deaths and injuries were caused by the truck’s use as a stationary steel barricade and by the failure to provide adequate warning. The court refers to Mid-Century Ins. Co. v. Lindsey, 997 S.W.2d 153 (Tex. 1999), in which the court set out a three-part test for determining whether an injury arises out of the use of a motor vehicle for purposes of auto-liability insurance coverage: 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; 3. the automobile must not merely contribute to cause the condition which produces the injury but must itself produce the injury. The court notes that at the time of the accident, the truck was being used to transport the driver, the crash barrier and the arrow board. Although the truck was not moving and was not in gear at the time of the crash, it was nonetheless still being used to transport people and equipment. The court also concludes that the truck was not merely the place where the accident occurred. Instead, the accident was caused by the use of the crash truck as an “auto”: its presence on the roadway and the decision to stop the truck in the left lane. Additionally, the failure to provide adequate warnings and traffic control were causes dependent on the use or operation of the truck, not independent causes of the crash. “But for the”use or operation’ of the truck, there would not have been an accident.” Finally, the court concludes that the crash truck did not constitute “other equipment” or “mobile equipment” that would take the accident out of the auto exclusion. Though the trucks performing the road striping may have been special equipment, the truck was not, even with the arrow board atop it. There was no evidence of how the board was operated or whether special pumps, generators or air compressors supplied power to the board. OPINION:Mazzant, J.; Wright, Richter and Mazzant, JJ.

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