    Case: 13-60287   Document: 00512641132    Page: 1   Date Filed: 05/23/2014




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fifth Circuit

                                                                     FILED
                               No. 13-60287                      May 23, 2014
                                                                Lyle W. Cayce
                                                                     Clerk


STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

                                        Plaintiff–Appellee,

versus

LOGISTICARE SOLUTIONS, LLC; ALBERT GRAHAM,

                                        Defendants–Appellants.




               Appeal from the United States District Court
                 for the Northern District of Mississippi




Before JONES, SMITH, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


     As a volunteer driver for LogistiCare Solutions, LLC (“LogistiCare”),
Elizabeth Mosley provided non-emergency medical transportation services for
Medicaid patients (“members”) using an automobile insured by State Farm
Mutual Automobile Insurance Company (“State Farm”). While transporting
Pearlie Graham, a member, Mosley was involved in an accident in which Gra-
ham was injured.
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                                        No. 13-60287
       Graham’s heirs sued Mosley and LogistiCare in Mississippi state court.
Based on the “for a charge” exclusion contained in the insurance policy, State
Farm sued in federal court seeking a declaration that it has no duty to defend
or indemnify Mosley or LogistiCare in the underlying action. The district court
granted summary judgment for State Farm, and denied summary judgment
for the heirs and LogistiCare, as to both duties. Concluding that State Farm
has a duty to defend but no duty to indemnify, we affirm in part and reverse
in part and remand.


                                               I.
       Mosley registered to become a “volunteer driver” for LogistiCare, agree-
ing to provide non-emergency medical transportation services for members in
exchange for reimbursed mileage expenses. 1 The reimbursement for a particu-
lar ride depended on the applicable mileage rate, 2 the miles driven, 3 and the



       1   The agreement provided in relevant part:
    I have signed my name below to indicate that I desire to volunteer to transport Medi-
    caid members to medical appointments. Naturally, I may refuse to volunteer for any
    specific transport and may stop volunteering to provide transportation altogether at
    any time. Because I am a volunteer, I retain the right to volunteer my time as a
    volunteer driver only at such time I wish to make myself available. . . . I UNDER-
    STAND THAT I AM STRICTLY A VOLUNTEER AND NOT AN EMPLOYEE OF
    LOGISTICARE or LOGISTICARE, INC., and agree I do not have any benefits avail-
    able to employees of LogistiCare, Inc., including but not limited to wages, health
    insurance, accident insurance, worker’s compensation, and retirement benefits. I
    agree that anytime I use my vehicle to perform, I am responsible for making certain
    that the vehicle is properly insured. . . . I expect to be reimbursed solely for my mile-
    age expenses associated with using my own vehicle. I understand that I will be
    reimbursed by LogistiCare, Inc. only for the number of miles driven.
       2A voluntary driver earns 44¢ per mile for an ambulatory member driven and 48¢ for
a wheelchair-bound member.
       3 LogistiCare calculates the mileage based on the number of miles from the driver’s
house to pick up and drop off the member at a medical appointment then back to his or her
residence. LogistiCare reimburses on the calculated number of miles, regardless of the actual
route taken.
                                               2
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                                     No. 13-60287
number of members driven. 4 LogistiCare did not allow Mosley to accept pay-
ment directly from members.
      Pursuant to the Policy issued to Mosley, State Farm agreed “to pay dam-
ages an insured becomes legally liable to pay because of: bodily injury to
others . . . caused by an accident that involves a vehicle for which that insured
is provided Liability Coverage by this policy.” The Policy contained the follow-
ing exclusion that is the focus of this appeal: “THERE IS NO COVERAGE
FOR AN INSURED: . . . FOR DAMAGES ARISING OUT OF THE OWNER-
SHIP, MAINTENANCE, OR USE OF A VEHICLE WHILE IT IS BEING
USED TO CARRY PERSONS FOR A CHARGE. This does not apply to the
use of a private passenger car on a share-the-expense basis.” On appeal,
LogistiCare challenges the summary judgment on five theories: (1) Collateral
estoppel precludes State Farm from re-litigating the applicability of the exclu-
sion; (2) the underlying complaint does not allege facts showing that the “for a
charge” exclusion applies; (3) facts beyond the underlying complaint demon-
strate that the exclusion does not apply; (4) even if the exclusion applies, the
“share-the-expense” exception to the exclusion reinstates coverage; and
(5) alternatively, both the “for a charge” exclusion and the “share-the-expense”
exception are ambiguous. 5


                                            II.
       We review a summary judgment de novo, “using the same standard

      4  If a volunteer driver took multiple members in one trip, LogistiCare allowed the
driver to stack the reimbursements. For example, if a driver took two ambulatory members
on the same trip, he would earn 88¢ per mile for that trip.
      5 Graham’s heirs filed a separate pro se brief raising two arguments: (1) “The court
below denied due process when it failed to find State Farm had a duty and/or duty to indem-
nify both LogistiCare and [] Mosley.”; and (2) “State Farm is collaterally [estopped] from
bringing its declaratory judgment.” We understand the heirs to be attempting to raise the
same arguments as does LogistiCare, so we do not address their challenges separately.
                                            3
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                                  No. 13-60287
   as that employed by the district court under Rule 56.” Kerstetter v. Pac.
   Scientific Co., 210 F.3d 431, 435 (5th Cir. 2000). 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).

Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012), cert. denied, 134 S. Ct.
162 (2013). We consider “all facts and inferences in the light most favorable to
the nonmoving party when reviewing grants of motions for summary judg-
ment.” Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005) (citation omitted).
      In diversity cases, this court applies the substantive law of the forum
state, Mississippi. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
Under Mississippi law, construction of an insurance policy presents a question
of law, which we review de novo. Farmland Mut. Ins. Co. v. Scruggs, 886 So.
2d 714, 717 (Miss. 2004).
      Mississippi treats insurance policies as contracts, which “are to be
enforced according to their provisions.” Noxubee Cnty. Sch. Dist. v. United
Nat’l Ins. Co., 883 So. 2d 1159, 1166 (Miss. 2004). “If a contract contains
ambiguous or unclear language, then ambiguities must be resolved in favor of
the non-drafting party.” U.S. Fid. & Guar. Co. of Miss. v. Martin, 998 So. 2d
956, 963 (Miss. 2008) (citation omitted). “Ambiguities exist when a policy can
be logically interpreted in two or more ways, where one logical interpretation
provides for coverage. However, ambiguities do not exist simply because two
parties disagree over the interpretation of a policy.” Id. (citations omitted). If
a provision is ambiguous, Mississippi courts “will apply the interpretation
favoring the insured, and will determine the intent of the parties to the insur-
ance contract with reference to what a reasonable person in the insured’s posi-
tion would have understood the terms to mean.” Progressive Gulf Ins. Co. v.
We Care Day Care Ctr., Inc., 953 So. 2d 250, 253 (Miss. Ct. App. 2006). Courts
give words “their plain, ordinary, and popular meaning, not a philosophical or
                                        4
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                                       No. 13-60287
scientific meaning.” Id.
       “[P]rovisions that limit or exclude coverage are to be construed liberally
in favor of the insured and most strongly against the insurer.” Lewis v. Allstate
Ins. Co., 730 So. 2d 65, 68 (Miss. 1998). But “if a contract is clear and unam-
biguous, then it must be interpreted as written.” U.S. Fid. & Guar. Co., 998
So. 2d at 963. “[A] court must refrain from altering or changing a policy where
terms are unambiguous, despite resulting hardship on the insured.” Titan
Indem. Co. v. Estes, 825 So. 2d 651, 656 (Miss. 2002).


                                             III.
       In a prior case involving State Farm and LogistiCare, a Georgia trial
court concluded that the same “for a charge” exclusion did not prohibit cover-
age. See State Farm Mut. Auto. Ins. Co. v. Myers, No. 2010CV188726, slip op.
at 10–11 (Super. Ct., Fulton Cnty., Ga., Aug. 15, 2011). In light of that deci-
sion, LogistiCare contends that collateral estoppel prevents State Farm from
re-litigating the “for a charge” exclusion in the present case.
       In the earlier case, a different Medicaid recipient sued a different Logisti-
Care volunteer driver for sexual assault. See id. at 1–2. Although State Farm
argued that the “for a charge” exclusion precluded coverage, the trial court
concluded otherwise. 6 The court consequently denied summary judgment in
favor of State Farm and granted summary judgment in favor of the insured
parties. See id. at 12. The Georgia Court of Appeals reversed, concluding that
“the damages [ ] alleged in the underlying suit did not result from the use of
the car.” State Farm Mut. Auto. Ins. Co. v. Myers, 728 S.E.2d 787, 789 (Ga. Ct.


       6 Myers, slip op. at 11 (“[U]nder the circumstances, it does not appear that the parties
intended to exclude coverage when the insured was reimbursed for mileage expenses, even if
Respondent LogistiCare profited from the transaction. Simply put, the Court is unpersuaded
that the instant exclusion prohibits coverage in the underlying case.”).
                                              5
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                                    No. 13-60287
App. 2012).
        “[I]ssue preclusion prohibits a party from seeking another determination
of the litigated issue in the subsequent action.” United States v. Shanbaum,
10 F.3d 305, 311 (5th Cir. 1994). We apply issue preclusion only if four condi-
tions are met:
      First, the issue under consideration in a subsequent action must be
      identical to the issue litigated in a prior action. Second, the issue must
      have been fully and vigorously litigated in the prior action. Third, the
      issue must have been necessary to support the judgment in the prior
      case. Fourth, there must be no special circumstance that would render
      preclusion inappropriate or unfair.

Id.
        Even assuming Mississippi and Georgia courts would interpret a “for a
charge” exclusion identically, the trial court’s determination that the “for a
charge” exclusion did not apply was not “necessary to support the judgment in
the prior case.” The appellate court’s determination that any injuries alleged
did not arise out of the use of the car mooted its need to decide the exclusion
issue. Cf. Sport Supply Grp., Inc. v. Columbia Cas. Co., 335 F.3d 453, 458 n.4
(5th Cir. 2003). Collateral estoppel poses no obstacle for State Farm.


                                         IV.
        “In Mississippi, an insurance company’s duty to defend its insureds
derives neither from common law nor statute, but rather from the provisions
of its policy, that is, its insurance contract with its insured.” Baker Donelson
Bearman & Caldwell, P.C. v. Muirhead, 920 So. 2d 440, 450 (Miss. 2006). “An
insurance company’s duty to defend its insured is triggered when it becomes
aware that a complaint has been filed which contains reasonable, plausible




                                          6
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                                       No. 13-60287
allegations of conduct covered by the policy.” Id. at 451. 7 “[T]he duty to defend
is broader than the insurer’s duty to indemnify under its policy of insurance:
the insurer has a duty to defend when there is any basis for potential liability
under the policy.” Titan, 876 So. 2d at 1101 (quoting Merchants Co. v. Am.
Motorists Ins. Co., 794 F. Supp. 611, 617 (S.D. Miss. 1992)). “However, no duty
to defend arises when the claims fall outside the policy’s coverage.” Baker, 920
So. 2d at 451.
       LogistiCare contends that the underlying complaint does not allege facts
showing that the “for a charge” exclusion applies. In support of that position,
LogistiCare notes that the “complaint does not allege, in any form or fashion,
what the financial arrangement was between Mosley and LogistiCare for
transporting Pearlie Graham.” State Farm offers two alternative responses:
(1) “Without an allegation stating the transportation was for free, there is no
other implication to be derived other than a charge being levied for the ser-
vice.”; and (2) “The [underlying] complaint provides a clear indication that the
plaintiffs alleged Mosley was using the vehicle in a manner akin to a taxi (i.e.
d/b/a Mosley’s Transportation), and acting in furtherance of this business.”
State Farm also maintains that no extrinsic facts triggered a duty to defend.
       “Automobile liability policies frequently contain provisions exempting
the insurer from liability, or terminating the policy, if the insured automobile
is used for the carrying of passengers for hire, compensation, a consideration,
or a specified charge.” 8 LEE R. RUSS & THOMAS F. SAGALLA, COUCH ON INSUR-
ANCE 3D    § 115:107 (2006). The Policy excludes coverage “for damages arising
out of the . . . use of a vehicle while it is being used to carry persons for a



       7 See also Mulberry Square Prods. v. State Farm Fire & Cas. Co., 101 F.3d 414, 422
(“Mississippi law provides an exception to the ‘allegations of the pleadings’ rule, which holds
that an insurer has a duty to defend when presented with extrinsic facts . . . that trigger
coverage under the policy.”).
                                              7
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                                       No. 13-60287
charge.”    Therefore, before determining whether the underlying complaint
alleges facts showing that the exclusion applies, we must first settle how a
Mississippi court would interpret “for a charge.” On this question, the parties
focus their briefing on Progressive Gulf Insurance Co. v. We Care Day Care
Center, Inc., 953 So. 2d 250 (Miss. Ct. App. 2006), and Travelers Insurance Co.
v. State Farm Mutual Automobile Ins. Co., 175 F. Supp. 673 (E.D. La. 1959),
aff’d, 274 F.2d 208 (5th Cir. 1960) (per curiam). 8
       In Progressive Gulf, a center provided daycare services for the elderly,
which included transportation to and from the facility. The center paid one of
its drivers the minimum wage but did not give her any mileage reimburse-
ment. She was not paid on a per-trip basis, nor did she receive any payment
directly from passengers. On the date of the accident, she used a privately-
owned vehicle covered under a personal automobile insurance policy, which
excluded coverage when the vehicle was “used to carry persons or property for
compensation or a fee.” Progressive Gulf, 953 So. 2d at 252.
       The insurer claimed that “the January 15, 2002 accident was specifically
excluded from liability coverage because the accident occurred while [the
driver] was using the van to carry a person [ ] ‘for compensation or a fee’ in the
form of [her] wages from We Care.” Id. at 254. The court rejected this argu-
ment, concluding that, at least based on the record before it, “for compensation
or a fee” could be given “two equally reasonable meanings”: (1) “any situation
where money is paid to the insured in connection with transporting a person”
or (2) “only those situations where money is paid by the passenger on a per-
trip basis.” Id. at 259–60. Because Mississippi law requires a court to construe


       8 Other courts rely on a variety of different methods for determining whether this type
of exclusion bars coverage. See, e.g., State Farm Mut. Auto. Ins. Co. v. Self, 93 F.2d 139, 140
(5th Cir. 1937). We principally focus our attention on the available, albeit limited, Missis-
sippi caselaw.
                                              8
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                                       No. 13-60287
ambiguity in favor of the insured, the court affirmed the summary judgment
in favor of the center. See id. at 260.
       Progressive Gulf relied upon Travelers, which also involved interpreting
a “for a charge” exclusion under Mississippi law. See id. at 254–55. In Travel-
ers, an employee transported five co-workers in a privately-owned vehicle.
“[A]ll six occupants were at the time of the accident in the course and scope of
their employment . . . .” Although the company paid the driver a mileage allow-
ance separate from his salary, none of the co-workers paid the driver any
money. Travelers, 175 F. Supp. at 674. The district court first noticed that the
“‘carrying persons for a charge’ exclusion was apparently added to the com-
pany’s printed policy form to cover situations in which the insured vehicle was
being used as a taxi on a temporary basis . . . .” Id. at 675. The exclusion had
“no application where an employee is using his own car in the course of his
employment and is being reimbursed by his employer for such use on a mileage
basis.” Id. at 676 (emphasis added). Because the employee was not profiting
from the reimbursement, the “for a charge” exclusion did not apply. 9 We
adopted the district court’s opinion without comment. See State Farm Mut.
Auto. Ins. Co. v. Travelers Ins. Co., 274 F.2d 208 (5th Cir. 1960) (per curiam).
       In light of Progressive Gulf and Travelers, we reject State Farm’s sugges-
tion that “for a charge” exclusion applies whenever a driver receives any money
in connection with his use of the vehicle. Under Mississippi law, that exclusion
bars coverage only where the driver receives payment (1) directly from a pas-
senger (as in the case of a taxi service) or (2) from a third party that amounts
to more than reimbursement.


       9 Travelers, 175 F. Supp. at 676 (“And the mileage is in the usual amount, sufficient
only to cover expenses and perhaps upkeep of the car. In fact, except for the first 75 miles, it
is precisely the amount the Government allows to its employees for use of their own cars for
travel purposes.”).
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                                      No. 13-60287
       We also reject LogistiCare’s suggestion to consider “for a charge” to be
ambiguous. A term is not ambiguous just because it has not been more speci-
fically defined. “For a charge” is not unusual, technical, or otherwise unclear.
Although Progressive Gulf and Travelers conflict on this point, Travelers takes
the better approach. 10
       Turning then to the facts of this case, the underlying complaint, in rele-
vant part, alleged the following:


                                      11.
    Upon information and belief, Defendant Elizabeth W. Mosley, owned,
    operated, and controlled, or in the alternative, was doing business as
    Mosley’s Transportation. Upon information and belief, the Defendant,
    Elizabeth W. [Mosley], owned, operated, and controlled, or in the alter-
    native, was doing business as LogistiCare of MS. Further, upon infor-
    mation and belief, the Defendant, Elizabeth W. Mosley . . . is in the
    business of transporting patients to and from their medical treatment
    facilities.

                                     12.
    The Defendant, LogistiCare Solutions, LLC, in the regular course of
    business, operates and maintains a non-emergency medical transporta-
    tion services business . . . .

                                     13.
    That on or about March 19, 2010, the Deceased, Pearlie Graham, was
    being transported by the Defendant, Elizabeth W. Mosley, and riding
    as a guest passenger in a vehicle being driven and operated by the
    Defendant, Elizabeth W. Mosley, Individually and d/b/a Mosley’s
    Transportation and/or d/b/a LogistiCare of MS, or in the alternative, []
    was acting in furtherance of and within the course and scope of her

       10 Cf. Nationwide Mut. Ins. Co. v. Thomas, 103 So. 3d 795, 804 (Ala. 2012) (“Although
the Nationwide policy does not define the terms used in the carry-for-a-fee exclusion, the
terms are not unusual, technical, or otherwise unclear. . . . [T]herefore, neither the carry-
for-a-fee exclusion as a whole nor the individual terms in the exclusion are ambiguous.”);
Farmers Ins. Exch. v. Knopp, 58 Cal. Rptr. 2d 331, 334 (Cal. Ct. App. 1996) (“We conclude the
meaning a layperson would ascribe to the language of Exclusion No. 1 is not ambiguous.”).


                                             10
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                                       No. 13-60287
   employment with Defendant, LogistiCare Solutions, LLC . . . .

      The complaint does not allege (1) Graham gave Mosley any payment for
transporting her; (2) Mosley was operating a taxi service; or (3) the specific
amount of compensation Mosley received for transporting Graham. At best,
the complaint merely suggests Mosley transported Graham for some business
purpose. Even if it could be inferred that Mosley received some compensation
from LogistiCare as a result of their alleged employment relationship, the
amount of compensation cannot be inferred from the complaint. The complaint
therefore does not demonstrate that Mosley received more than mere reim-
bursement for her services.
      The allegations do not sufficiently trigger the “for a charge” exclusion
and therefore do not absolve State Farm of its duty to defend LogistiCare and
Mosley. The district court erred in granting summary judgment in favor of
State Farm (and denying summary judgment in favor of LogistiCare and Mos-
ley) as to the duty to defend. 11


                                              V.
      “Under Mississippi law, an insurer’s duties to defend and indemnify its
insured are distinct and separate duties requiring the use of different stan-
dards.” Estate of Bradley v. Royal Surplus Lines Ins. Co., 647 F.3d 524, 529
(5th Cir. 2011). “Unlike the duty to defend, which can be determined at the
beginning of the lawsuit, an insurer’s duty to indemnify generally cannot be
ascertained until the completion of litigation, when liability is established, if
at all.” Id. at 531. “This is because, unlike the duty to defend, which turns on
the pleadings and the policy, the duty to indemnify turns on the actual facts



      11   We do not need to determine whether extrinsic facts triggered the duty to defend.
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                                       No. 13-60287
giving rise to liability in the underlying suit, and whether any damages caused
by the insured and later proven at trial are covered by the policy.” Id.
       Therefore, in assessing whether State Farm has a duty to indemnify, we
can look to the entire record. In support of its view that Mosley did not profit
from its scheme, LogistiCare emphasizes three portions of the record: (1) the
fact that the reimbursement rate paid to volunteer drivers paralleled the IRS
reimbursement rate; 12 (2) the fact that Mosley’s Transportation reported losses
to the IRS from 2008 to 2010; and (3) portions of Mosley’s deposition testimony
that LogistiCare believes demonstrate that Mosley did not profit.
       The record does not indicate that Graham directly gave Mosley any
money for transporting her. It does, however, contain several indications that
Mosley intended to receive more than reimbursement through her relationship
with LogistiCare. First, she created Mosley’s Transportation for income she
received as a driver for LogistiCare. LogistiCare provides no explanation for
why a driver would create a business if she only expected to break even from
the arrangement. Second, LogistiCare misreads Mosley’s deposition testi-
mony: She testified that she was not solely volunteering for LogistiCare “out
of the goodness of [her] heart”; “she [wasn’t] losing [] money” for the three years
she transported Medicaid patients; and in fact, after accounting for gas and
other expenses, she was “seeing a little bit of income.”
       Furthermore, LogistiCare’s plan allowed Mosley to profit from this
arrangement in at least two ways. First, because LogistiCare used a predeter-
mined route for determining mileage regardless of the actual route taken,



       12  I.R.S. News Release (Dec. 3, 2009), available at http://www.irs.gov/uac/IRS-
Announces-2010-Standard-Mileage-Rates (“Beginning on Jan. 1, 2010, the standard mileage
rates for the use of a car (also vans, pickups or panel trucks) will be: [(a)] 50 cents per mile
for business miles driven; [(b)] 16.5 cents per mile driven for medical or moving purposes;
[(c)] 14 cents per mile driven in service of charitable organizations.”).
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                                      No. 13-60287
Mosley profited whenever she was able to take a shorter route. And second,
LogistiCare allowed Mosley to stack reimbursements when she drove multiple
members. Nothing in the record remotely suggests that driving two or three
passengers cost Mosley two or three times as much per mile.
       The record makes clear that Mosley intended to and did profit from her
arrangement with LogistiCare. These facts trigger the applicability of the “for
a charge” exclusion.


                                            VI.
       Because the “for a charge” exclusion would absolve State Farm of its duty
to indemnify, we must also determine whether the “share-the-expense” excep-
tion nevertheless imposes coverage. LogistiCare asserts that “[t]he exception
negates the exclusion where the amount provided to the vehicle owner/insured
bears a direct relation to the costs of the driver and is not a charge in excess of
those costs.” To this end, LogistiCare repeats that it merely reimbursed Mos-
ley for her services. In the alternative, LogistiCare suggests that this exception
should also be considered ambiguous.              “If the insurer shows an exclusion
applies, the burden shifts back to the insured to show that there is an exception
to the exclusion.” Ass’n Cas. Ins. Co. v. Major Mart, Inc., No. 1:12CV022-SA-
DAS, 2013 WL 3409217, at *2 (N.D. Miss. July 8, 2013). LogistiCare must
therefore demonstrate that the ride was “on a share-the-expense basis.”
       Even if a passenger pays the insured for the ride, thereby triggering the
exclusion, a share-the-expense exception may nevertheless result in coverage.
Although Progressive Gulf and Travelers involved this type of exception, 13


       13See Progressive Gulf, 953 So. 2d at 252 (“This exclusion does not apply to shared-
expense car pools[.]”); Travelers, 175 F. Supp. at 675 (“’[B]ut the transportation on a share
expense basis in a private passenger automobile of friends, neighbors, fellow employees or
school children shall not be deemed carrying persons for a charge.’”).
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                                       No. 13-60287
neither gives much guidance on how to interpret it. 14
       Regardless of the precise scope of the exception, LogistiCare concedes
that the exception does not apply if the insured receives more money than the
cost of transportation. 15 Because the exception itself refers only to expenses,
the limitation unambiguously does not apply where the insured receives more
than reimbursement. As discussed above, under LogistiCare’s scheme, Mosley
received more than her costs. 16 The “share-the-expense” exception, therefore,
does not apply. The district court did not err in granting summary judgment
in favor of State Farm (and denying summary judgment for LogistiCare and
Graham) as to the duty to indemnify.
       The judgment is AFFIRMED in part and REVERSED in part and
REMANDED for proceedings as needed.




       14  In Progressive Gulf, 953 So. 2d at 260, the court found the exclusion itself to be
ambiguous and therefore did not need to reach its applicability. Travelers could be read to
suggest that the “for a charge” exclusion applied but the exception nevertheless reinstated
coverage. Compare Travelers, 175 F. Supp. at 675 (“Under the circumstances, and particu-
larly in view of the limitation on the exclusion, it would appear that coverage was not excluded
while the employees in suit were passengers in the car.” (emphasis added)), with id. at 675–
76 (“This ‘carrying persons for a charge’ exclusion was apparently added to the company’s
printed policy form to cover situations where the insured vehicle was being used as a taxi on
a temporary basis . . . . It was not intended to cover a situation where fellow employees of
the owner were being carried to work, irrespective of the fact that the employer, rather than
the employees, was paying the mileage.” (emphasis added)). Though this reading is permis-
sible, the court appears not to have found the exclusion to apply. Regardless, Travelers does
not provide any further insight as to when the exception applies.
       15Cf. Gen. Acc. Ins. Co. of Am. v. Gonzales, 86 F.3d 673, 678 (7th Cir. 1996) (“Turning
to Gonzales’s fee, it is clear that his charge reflected a share of the expenses of the trip and
certainly was not designed to cover all of his expenses, much less for profit.”); Travelers, 175
F. Supp. at 675–76.
       16 We therefore do not need to determine whether Mosley and Graham “shared” the
costs of the transportation.
                                              14
