UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 01-50523 Summary Calendar

BRUCE H. WITHERS,

Plaintiff-Appellant,

VERSUS

CNA INSURANCE COMPANIES; CONTINENTAL CASUALTY COMPANY,

Defendants-Appellees.

Appeal from the United States District Court For the Western District of Texas (EP-0-CV-3-EP) December 3, 2001

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

This lawsuit arose out of an injury sustained by the

plaintiff, Bruce H. Withers (Withers), when he was struck by a

vehicle operated by an uninsured motorist. Just prior to the

accident, Withers was traveling in a vehicle owned by his employer,

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Stan’s Frozen Foods, during the course and scope of his employment.

Withers stopped at a roadside rest stop to use the facilities.

Withers parked the vehicle in the parking lot, exited the vehicle,

and had taken about three or four steps across the parking lot

toward the restroom facilities when he was struck by the uninsured

vehicle. The vehicle which Withers had been driving was insured by

his employer through the Defendants, CNA Insurance Companies and

Continental Casualty Company. After the accident Withers filed a

claim for uninsured motorist benefits under his employer’s policy.

The Defendants denied the claim. Withers then sued the Defendants,

claiming that he qualified as “an insured” under the policy and

that the Defendants breached their contractual duty to him by

denying coverage. Withers also claimed that the Defendants’

refusal to cover his injuries violates the Texas Deceptive Trade

Practice Act (DTPA) and the Texas Insurance Code and constitutes a

violation of the Defendants’ duty of good faith and fair dealing to

him. The Defendants moved for summary judgment on the grounds that

Withers is not entitled to recover because he was not an insured

under the policy. The district court conducted a summary judgment

hearing and concluded that the Defendants’ motion should be

granted. Withers appeals to this Court.

We have read the briefs, the record excerpts, and relevant

portions of the record. For the reasons stated by the district

judge in his Order filed under date of May 7, 2001, we affirm the

Final Judgment entered of even date therewith.

2 AFFIRMED.

3