*1 upper-class white defen- middle and several comparable drug CO., generally INSURANCE
dants convicted GULF STATES find error in We cannot trafficking offenses. Plaintiff-Counter Defendant- that evidence Appellee, conclusion the district court’s to make episode was insufficient of this one v. showing. required Wade SERVICE, ALAMO CARRIAGE Defendants, al., et III Carriage Service, Defendant- makes several other con also Wallace Plaintiff-Appellant. Counter stitutional, statutory, challenges to his sentence, to the use of “cocaine all related Herje CARLSSON, Plaintiff, 841(b). § in 21 base” U.S.C. v.
First, charges that the demon Wallace sentencing of “cocaine to 1 ratio SERVICE, strated 100 ALAMO CARRIAGE 841(b) §in vio powder” base” to “cocaine INC., Defendant-Appellant, Equal Protection Clause because lates the v. disproportionately Americans are African CO., GULF STATES INSURANCE sanction. Sec under the stiffer sentenced Intervenor-Defendant ond, the term “cocaine base” he claims that 841(b) § in 21 and U.S.S.G. as used U.S.C. Third, unconstitutionally vague. § 2D1.1 is sentencing that the 100 to ratio contends Calendar). (Summary powder” in 21 base” to “cocaine of “cocaine 841(b) genocide § racial constitutes U.S.C. of 18 U.S.C. 1091. Wallace’s first violation foreclosed direct circuit two claims are Thomas, v. precedent. United States Rehearing On Petitions for (4th Cir.1990); By United States v. F.2d 37 May (4th Cir.1993); num, F.3d 769 United Pinto, claim, offered no As for the third Wallace Congress or that either
credible evidence Commission, establishing Sentencing ratios, challenged sentencing did so with “destroying” African- “specific intent” racial or ethnic Americans proffer, group. absence of such a In the fail. must also IV we affirm the imposed by the district court on sentence James Darnell Wallace.
AFFIRMED. *2 JOLLY, WIENER,
Before and EMILIO GARZA, Judges. M. Circuit PER CURIAM: action, In this De- fendant/Counter-Plaintiff/Appellant Alamo (Alamo) appeals Inc. district court’s Plaintiff/Counter-Plaintiff/Appel- in favor of (Gulf States). lee Gulf States Insurance Co. Alamo also whether the district by awarding court abused its discretion at- States; torney’s fees to Gulf but because it appeal, does not brief the issue on we do not consider it.1 We conclude underlying litigation alleged facts and claims
excluded from under Alamo’s general of manufacturers’ and contractors’ insurance, liability so that Gulf States had no duty to defend Alamo. Satisfied that Ala- mo’s so meritless as to be frivo- lous, appeal. we dismiss this
I AND
FACTS PROCEEDINGS 7, 1989, Carlsson, January Heije On injured employee, while time, truck owned Alamo. At the general States insured Alamo under a liabili- ty policy. policy provides pertinent That part:
Exclusions. apply:
This insurance does not bodily injury arising b. ... out of operation ... ... of [or] use (1) any ... ... owned insured, ... (2) any operated automobile ... Houston, TX, Ray MeQuary, appel- J. for by any person in the course of his em-
lant. by any ployment insured....2 Jackson, McCaffrey, George Patrick T. personal Carlsson filed Furlow, McCaffrey, Bush & David A. John against Alamo and in state court. TX, Houston, Knight, Campbell, Morris R. injured that he was while appellee. for performing an incidental contract for Alamo while a “vehicle” that was owned appeared Alamo. Gulf and answered City Rouge, Emphasis added. 1. Morrison v. Baton viewing itself, provide a defense for the record under the same standards appear, guided and Carlsson Alamo did the district court.”3 judgment against Alamo on judgment proper genuine took a default when no issue of liability Gulf States moved issues. When that would necessitate a material fact exists *3 nonsuited Gulf summary judgment, Carlsson determining appeal In the trial.4 whether States. grant proper, of a was all light viewed in the most intervened, are but then Questions of favorable to the nonmovant.5 a against Alamo and took severed his claims including the construction and effect of principal Alamo in the judgment as to default law— $415,297.00. unambiguous always Gulf States filed the an contract —are decid- amount of declaratory judgment in federal suit ed de novo.6 instant seeking a that —as there court declaration policy coverage no under the
was —it Duty B. Contract Exclusion: No to Defend Alamo, duty a to defend and thus was judgment against Alamo. not liable for the If the did not cover Carls response, In Alamo asserted a cross-claim damage, son’s or then Gulf States against in the court action. Gulf States state duty owed Alamo no to defend.7 Under Tex then removed the state court Gulf States law, duty as a an court determines insurer’s court, it to federal where was consoli- by examining allegations to defend the pending with the dated petition against filed the insured and the parties ordered to file action. The were policy.8 duty relevant insurance For such a summary judgment. cross-motions established, pleadings allege to be the must “potentially” by claim that is covered the granted
The district court Gulf States’ mo- applicable policy.9 plaintiffs But tion and denied Alamo’s and Carlsson’s mo- petition allegations proved, makes district court also awarded attor- tions. The place plaintiffs would claim within an appeals, ney’s to fees Gulf States. coverage, exclusion from there is no to asserting that the word “vehicle” in Carls- ambiguous, and that son’s Gulf defend.10 beyond “eight States could not look cor-
ners” of the state court and the alleged by If all facts Carlsson were deny coverage insurance contract clearly his claim would fall within the that the “vehicle” was a truck and thus basis Alamo’s exclusion. “automobile,” may may that the word “vehicle” or not be encompassed “automobile,” term and that the automobile exclusion does not
II necessarily apply, adjectives evokes such as nonsensical, fatuous, frivolous, specious, and ANALYSIS to name but a few. The tenor of Alamo’s A. Review Standard of argument is that the word “vehicle” as used ambigu in We review the district court’s Carlsson’s state court novo, judgment summary denial of de “re- ous—that it could refer to “automobile”11 or Sears, Co., 355, Co., Corp. 3. 853 F.2d 8. Walker v. Roebuck Enserch v. Shand Morahan & 952 (5th Cir.1988). 1485, (5th Cir.1992). 358 F.2d 1492 Catrett, 317, 323-25, Corp. 4. Celotex 477 U.S. McManus, Fidelity 9. & Guar. Ins. Underwriters v. 2552-54, 2548, (1986); L.Ed.2d 106 S.Ct. 265 787, (Tex.1982). 633 S.W.2d 56(c). see Fed.R.Civ.P. Walker, at 358. 5. 10. Id. Id.; Exploration, Calpetco Marshall 1981 v. "Automobile” was defined as a land motor 1408, F.2d roads, public vehicle for travel on equipment. does not include mobile 7. T.C. Bateson Constr. Co. v. Lumbermens Mut. Co., 692, (Tex.App.— Casualty 784 S.W.2d 1989, denied). Houston writ [14th Dist.]
Q1 just damages and that if Carlsson and under Federal equipment,”12 Rule “mobile Appellate “mobile when he Procedure 28 U.S.C. were injured, discretionary authority under and the inherent then there was was required to policy and was court. Gulf States against Although the suit defend appeal Alamo’s was dismissed as frivolous. might prompt a a contention law school such Granting part Gulf States’ motion for sanc- imagina- grader give extra credit for exam States, damages, tions and we award to Gulf tion, place in a court of record. it has no (1) pay, and order Alamo to as double $398 petition alleges (2) costs, as fees and costs $620 public Alamo on a a vehicle owned filing serving incurred and was in was rear- $1,000 road when the vehicle he rehearing, its *4 side, ended, limited) (but and struck a third struck reasonable fees for driver’s side door.13 He was time sanctions. carry out a mission for the vehicle employer Carriage sell Alamo Ser- his —to Driving Academy to a Houston-based
vice proprietary Nothing school. operating some suggests that Carlsson was distinguished sort of “mobile automobile; contrary, every from an to the confirms he was vehicle, i.e., motor an automobile. COMPANY, HOME INSURANCE Plaintiff-Appellant, correctly district court held that
The allege any Thus, given the insurance TOWNSEND, David F. Defendant- applicability the obvious of the exclusion, there could be no to defend.
Ill Calendar. of CONCLUSION appeal is dismissed as frivolous.14
DISMISSED. REHEARING
ON PETITIONS FOR IT IS ORDERED that Alamo rehearing is here- Inc.’s by DENIED.
IT IS ORDERED that Gulf States Insur- rehearing hereby ance Co.’s purpose sup- for the GRANTED limited plementing opinion our to award sanctions equipment" carriage that a horse-drawn comes within
12. “Mobile is defined subject regis- equipment.” sug- as a land vehicle to vehicle definition of "mobile tration, (2) exclusively maintained for use gests Carlsson's claim that he was therefore that insured, (3) premises road, for use off potentially a “vehicle" is within (4) designed purpose for the sole coverage. We are with horse- unfamiliar duty equipment. affording mobility heavy carriages that a driver's side door. drawn 13. Alamo asks us to consider that Alamo's busi- 14. See 5th Cir.R. 42.2. operate carriages, and ness was to horse-drawn