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United States Court of Appeals,
Fifth Circuit.
No. 96-40662.
NAUTILUS INSURANCE COMPANY, Plaintiff-Appellee,
v.
Maria De Jesus ZAMORA, et al., Defendants,
Maria De Jesus Zamora, Defendant-Appellant.
June 13, 1997.
Appeal from the United States District Court for the Southern
District of Texas.
Before DAVIS, STEWART and PARKER, Circuit Judges.
STEWART, Circuit Judge:
Maria de Jesus Zamora was shot while she worked as a cashier
at Mariscos El Marinero Restaurant (Mariscos), a restaurant located
in Laredo, Texas. She sued the restaurant in Texas state court,
alleging that her injuries resulted from Mariscos's negligence.
Nautilus filed this suit in federal court seeking a declaratory
judgment that it had no duty to defend or indemnify Mariscos for
the injuries suffered by Zamora. The district court granted
Nautilus's motion for summary judgment, concluding that because
Zamora's injuries would not have occurred but for her employment,
her injuries arose out of and occurred in the course of her
employment. As such, the district court held that the policy
unambiguously excluded Zamora's injuries from coverage. We affirm,
but for slightly different reasons than those articulated by the
district court.
BACKGROUND
1

The facts of this case are undisputed. On March 19, 1993,
Zamora was working as a cashier at Mariscos when a gang of three
men walked in and began shooting. Two persons were killed. Zamora
was shot in the chest, suffered fractured ribs, and experienced
severe nervous shock. Zamora filed a negligence suit against
Mariscos in state court. Mariscos thereafter sought coverage from
Nautilus under its commercial general liability policy. Nautilus
filed this declaratory judgment action in federal district court,
seeking a determination that it had no duty to defend or indemnify
Mariscos. The policy excluded, among other things, bodily injury
to "[a]n employee of the insured arising out of and in the course
of employment by the insured; ..." (Emphasis added.) Nautilus
moved for summary judgment and argued that because Zamora was
injured during her shift at Mariscos, Zamora's injuries "ar[ose]
out of" and were suffered "in the course of [her] employment."
The district court agreed with Nautilus. First, the court
concluded that Zamora suffered her injuries while she was in the
course of her employment at Mariscos. Second, borrowing from
Texas's workers' compensation case law, the district court held
that the phrase "arose out of" meant that Nautilus was not
obligated to defend or indemnify Mariscos if, but for her
employment, Zamora would not have been injured. Because the
evidence was undisputed that Zamora would not have been shot but
for her employment with Mariscos, the district court granted
summary judgment in favor of Nautilus. Zamora filed this timely
appeal.
2

DISCUSSION
Because we sit in diversity, we must apply Texas law, mindful
that in making an Erie guess, "[w]e are emphatically not permitted
to do merely what we think best; we must do that which we think
the [Texas] Supreme Court would deem best." Jackson v. Johns-
Manville Sales Corp., 781 F.2d 394, 397 (5th Cir.) (en banc), cert.
denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986). We
review a grant of summary judgment de novo, applying the same
criteria used by the district court in the first instance. Norman
v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.1994). The
interpretation of an insurance contract and its exclusions is a
question of law which we review de novo. See National Union Fire
Ins. Co. v. Kasler Corp., 906 F.2d 196, 198 (5th Cir.1990)
(interpreting Texas law).
We begin with basic principles of Texas insurance law. Texas
has adopted the "eight corners rule," which provides that Texas
courts "look only to the pleadings and the insurance policy to
determine whether the duty to defend exists." Cullen/Frost Bank of
Dallas, N.A. v. Commonwealth Lloyd's Ins. Co., 852 S.W.2d 252, 255
(Tex.App.-Dallas 1993, writ ref'd with per curiam opn.). "If a
petition does not allege facts within the scope of coverage, an
insurer is not legally required to defend a suit against its
insured." American Physicians Ins. Exch. v. Garcia, 876 S.W.2d
842, 848 (Tex.1994). We must liberally construe the allegations of
the pleadings, and any doubt about coverage is resolved in favor of
the insured. Cullen/Frost, 852 S.W.2d at 255. "[I]f the insurance
3

contract is expressed in plain and unambiguous language, a court
cannot resort to the various rules of construction." Barnett v.
Aetna Life Ins. Co., 723 S.W.2d 663, 665 (Tex.1987). Policy
exclusions are strictly construed against the insurer. Ramsay v.
Maryland Am. Gen. Ins. Co., 533 S.W.2d 344, 349 (Tex.1976).
Because there is no dispute about the circumstances
surrounding Zamora's injuries, this case presents a pure question
of law about the meaning of Nautilus's employment-related
exclusion. The parties agree that Zamora's injuries occurred in
the course of her employment with Mariscos, and the sole question
we face is whether Zamora's injuries "ar[ose] out of" her
employment. The district court concluded that her injuries did.
In reaching that conclusion, the district court imported the
"positional risk" or "but for" test commonly applied in workers'
compensation cases. See Walters v. American States Ins. Co., 654
S.W.2d 423, 426 (Tex.1983); Employers' Casualty Co. v. Bratcher,
823 S.W.2d 719, 721-22 (Tex.App.-El Paso 1992, writ ref'd); North
River Ins. Co. v. Purdy, 733 S.W.2d 630, 633 (Tex.App.-San Antonio
1987, no writ). The district court reasoned that "Zamora would not
have been shot had she not been working as a cashier for Mariscos
on March 19, 1993. Under the positional-risk test, therefore, her
injuries "arose out' of her employment and fall within the [policy]
exclusion."
We cannot conclude, however, that the Texas Supreme Court
would turn to workers' compensation principles as a means of
interpreting the terms of an insurance contract. First, the
4

positional-risk doctrine is a judicially created tool for
interpreting Texas's workers' compensation statute, and not used
for the purpose of interpreting insurance contracts. See, e.g.,
Westchester Fire Ins. Co. v. American Gen. Fire & Cas. Co., 790
S.W.2d 816, 818 (Tex.App.-Austin 1990, no writ) (declining to
follow decision which interpreted statute, rather than terms of
insurance policy). Second, and perhaps most importantly, in an
uninterrupted line of cases, Texas courts (including the Texas
Supreme Court) have consistently interpreted policy language
identical to that in this case and come to the conclusion that the
language unambiguously excludes from coverage injuries occurring
while the employee is performing work-related duties.1 Our
understanding of Texas insurance law comports with these
decisions.2
1See Transport Ins. Co. v. Standard Oil Co., 161 Tex. 93, 337
S.W.2d 284, 287 n. 3, 288-90 (1960), overruled on other grounds,
Commercial Standard Ins. Co. v. American Gen. Ins. Co., 455 S.W.2d
714 (Tex.1970); T.I.M.E., Inc. v. Maryland Cas. Co., 157 Tex. 21,
300 S.W.2d 68, 70-71 (1957); Truck Ins. Exch. v. Musick, 902
S.W.2d 68, 70 (Tex.App.-Forth Worth 1995, writ ref'd); National
Union Fire Ins. Co. v. National Convenience Stores, Inc., 891
S.W.2d 20, 21 (Tex.App.-San Antonio 1994, no writ); Westchester
Fire Ins. Co., 790 S.W.2d at 818 & n. 2; Aberdeen Ins. Co. v.
Bovee, 777 S.W.2d 442, 444 (Tex.App.-El Paso 1989, no writ);
Travelers Indem. Co. v. Cen-Texas Vending Co., 530 S.W.2d 354, 354-
55 (Tex.Civ.App.-Eastland, writ ref'd n.r.e); Olivier v. Life &
Cas. Ins. Co., 440 S.W.2d 398, 400 (Tex.Civ.App.-Beaumont 1969,
writ ref'd n.r.e.); Metropolitan Life Ins. Co. v. Wilson, 102
S.W.2d 454, 456-57 (Tex.Civ.App.-Beaumont 1937, no writ).
2See Western Heritage Ins. Co. v. Magic Years Learning Ctrs.
& Child Care, Inc., 45 F.3d 85, 90 (5th Cir.1995) (interpreting
Texas insurance law); Old Republic Ins. Co. v. Comprehensive
Health Care Assocs., Inc., 2 F.3d 105, 108-110 (5th Cir.1993)
(same); National Union Fire Ins. Co. v. Kasler Corp., 906 F.2d at
197, 199-200 (same); see also Acceptance Ins. Co. v. Hood, 895
F.Supp. 131, 134 (E.D.Tex.1995) (same).
5

Here, it is undisputed that Zamora was performing her duties
as a cashier when she was shot. We therefore hold that the Texas
Supreme Court, if faced with the policy exclusion and facts of this
case, would conclude that Zamora's injuries "arose out of" her
employment and that therefore Nautilus had no duty to defend or
indemnify Mariscos. See T.I.M.E., Inc., 300 S.W.2d at 71 (holding
that employee's injuries arose out of employment because employee
was injured when "he was engaged in performing duties of his
employment"); National Union Fire Ins. Co., 891 S.W.2d at 21
(holding that exclusion applied because "[a]ll of the acts alleged
that arguably resulted in [the employee's] bodily injury occurred
on the defendant company's premises and during office hours or
during an office party").
Judgment AFFIRMED.

6