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Click here for the full text of this decision FACTS:In this diversity action, at issue is the summary judgment awarded Great American Insurance Co. of New York. As receiver for Grant Morris (judgment creditor of Jerry Lee Largent), Darrell Minter claims Great American is liable for Morris’ state court judgment against Largent and his employer, Hammer Trucking Inc., arising out of a collision between Morris’ and Largent’s vehicles. Largent was intoxicated at the time. Hammer Trucking had leased to JTM Materials Inc., the vehicle being driven by Largent, which was used exclusively for JTM’s benefit. HOLDING:The judgment in favor of Great American is vacated; the underlying rulings in favor of Great American are affirmed in part and reversed in part; and this matter is remanded for further proceedings consistent with this opinion. Primarily at issue on appeal is whether Largent’s intoxication at the time of the collision precludes his being a permissive user of the vehicle under the omnibus clause of JTM’s primary commercial automobile liability policy, issued by St. Paul Fire and Marine Insurance Co., and, therefore, precludes his being an insured under the Great American excess policy. The court finds that genuine issue of material fact exists for that issue. JTM’s underlying St. Paul policy defines an insured as, “[a]nyone . . . using with [JTM's] permission a covered auto you own, hire, or borrow.” This permissive-user clause is commonly known as an “omnibus clause.” Great American does not contest the truck’s being a “covered auto” under the St. Paul policy. Therefore, at issue is whether, at the time of the collision, Largent was using it with JTM’s permission. Pursuant to its lease with JTM, Hammer Trucking had sole responsibility for maintaining the truck. And, it is undisputed that, on the night of the collision, Largent had express permission from Don Hammer to drive the truck to the maintenance facility. At the state court trial, however, Hammer testified that he gave Largent permission to go to his sister’s house to secure a ride back from the maintenance yard. Great American contends that Largent’s proceeding to his sister’s house was a personal errand, that Hammer Trucking and JTM had told Largent the truck was not to be used for personal errands, and, therefore, Largent’s truck use was outside the scope of the express permission. Given that Largent asserted he had express permission to seek a ride from his sister, and there is competent summary judgment evidence in support, the court finds that a material fact issue exists for whether Largent had express permission to drive the truck to his sister’s house. The court therefore concludes that the district court erred in holding otherwise. The court also holds that, in the light of Largent’s driving record’s containing a history of alcohol offenses as well as a drug felony, JTM’s failure to request Largent’s driving record from the Texas Department of Public Safety, Largent’s being instructed by Don Hammer not to drink and drive, and the dispute over whether JTM informed Largent of its zero-tolerance policy, a genuine issue of material fact exists for whether Largent’s intoxication placed his use of the truck outside the scope of permission. The court then moves on to the MCS-90 endorsement and holds that it is, “in effect, suretyship by the insurance carrier to protect the public a safety net.” Thus, the court states, an insurer’s responsibilities under the endorsement are triggered when the policy to which it is attached does not provide coverage to the insured. The court holds that because the St. Paul policy exhausted its coverage limit, coverage does not exist under the MCS-90 endorsement; therefore, this endorsement does not provide coverage under the Great American policy. The next claimed coverage is under the St. Paul policy’s “exclusive use” clause. For coverage under this clause, Minter must establish that Largent was the owner or person from whom JTM hired or borrowed the truck. The court finds that Hammer Trucking allowed Largent to keep the truck at his residence simply as an accommodation for Largent’s lack of transportation to and from work, and holds that there is no evidence in the record that Hammer Trucking intended to convey any ownership interest to Largent. OPINION:Barksdale, J.; King, Barksdale and Stewart, JJ.

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