Lexington Insurance v. Autobuses Lucano Inc.

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

FILED
December 3, 2007

No. 07-20526 Charles R. Fulbruge III
Summary Calendar Clerk

LEXINGTON INSURANCE COMPANY

Plaintiff - Appellee
v.

AUTOBUSES LUCANO INC; OFELIA MARTINEZ

Defendants - Appellants

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AUTOBUSES LUCANO INC

Plaintiff - Appellant
v.

LEXINGTON INSURANCE COMPANY;
NATIONAL FIRE & MARINE INSURANCE COMPANY

Defendants - Appellees

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CV-1113
USDC No. 4:06-CV-2801

Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
 No. 07-20526

PER CURIAM:*
The principal issue in this liability insurance coverage dispute is whether
appellant Autobuses Lucano, Inc. is an insured under the primary and excess
policies issued by the appellee insurers, thereby requiring the insurers to defend
and indemnify Autobuses. Reviewing the district court’s grant of summary
judgment in favor of the insurers de novo, Hobbs v. Alcoa, Inc., 501 F.3d 395, 397
(5th Cir. 2007), we affirm for the following reasons.
1. The insurers’ duty to defend is governed by Texas state law, which
requires the court to examine only the “eight corners” of the
underlying pleadings and the plain language of the insurance
policies. Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 350 (5th Cir.
2005).
2. Appellant Martinez argues that the relevant policies and schedules
read as a whole show that Autobuses is an insured.1 She urges that
Autobuses is an insured because the bus that it leased to Ronald
Drummer is listed as a “covered auto.” The policy states that the
insurers are liable for damages that “an insured” legally must pay,
and it lists only “Ronald Drummer DBA Tres Amigos Tours” as the
named insured. Although the “Additional Insured–Lessor”
endorsement modifies the “who is an insured” provision to include
“the lessor named in the Schedule or in the Declarations,” the
district court correctly observed that Autobuses is not named in any
schedule or declaration. The lessor endorsement names as an
additional insured only MCI/Canadian Imperial Bank of Commerce.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
Martinez apparently claims an interest in this matter as a judgment creditor. We
assume that she is a proper appellant with standing to raise this argument.

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 No. 07-20526

Therefore, the plain language of the policy shows that Autobuses is
not an insured.
3. Martinez next argues that Autobuses is an insured because a
certificate of insurance states that Autobuses is “listed as an
Additional Insured see schedule attached.” No schedule was
attached to this certificate, which specifically provided that it
“confer[red] no rights” and did not “amend, extend or alter the
coverage afforded by the policies.” In light of this language, Texas
law provides that the certificate of insurance does not supersede the
plain language of the insurance policy. See TIG Ins. Co. v. Sedgwick
James of Washington, 184 F. Supp. 2d 591, 597 (S.D. Tex. 2001).
Furthermore, we find no ambiguity in the policy language or in the
absence of Autobuses as a named insured under the policy, and we
note that extrinsic evidence may not be used to create an ambiguity.
See Valmont Energy Steel, Inc. v. Commercial Union Ins. Co., 359
F.3d 770, 773–74 (5th Cir. 2004). Because the district court
correctly determined that Autobuses is not an insured under the
relevant policy language, it correctly held that the insurers have no
duty to defend or indemnify.
4. Martinez also argues that the insurers are estopped from denying
coverage because they assumed the defense of both Drummer and
Autobuses without obtaining a reservation of rights or a non-waiver
agreement. See Pennsylvania Nat’l Mut. Cas. Ins. Co. v. Kitty Hawk
Airways, Inc., 964 F.2d 478, 480–81 (5th Cir. 1992). The record
shows that the insurers undertook a defense of Drummer, but
Martinez points to no evidence that they also assumed the defense
of Autobuses. In a letter to Autobuses’ counsel National Fire denied
that Autobuses was an insured and declined to defend. Martinez

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 No. 07-20526

cites only to an opinion letter from an expert stating that both
insurers assumed Autobuses’ defense. This conclusory letter is
insufficient to avoid summary judgment. See In re Segerstrom, 247
F.3d 218, 227 (5th Cir. 2001) (holding that conclusory statements in
expert’s affidavit were unsupported by evidence and failed to create
a genuine issue of material fact).
AFFIRMED.

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