IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20526

Summary Calendar

LEXINGTON INSURANCE COMPANY

Plaintiff - Appellee

v.

AUTOBUSES LUCANO INC; OFELIA MARTINEZ

Defendants - Appellants

**********************************************************************

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.

United States Court of Appeals

Fifth Circuit

F I L E D

December 3, 2007

Charles R. Fulbruge III

Clerk
No. 07-20526

* 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.

2

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 ofthe 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.
No. 07-20526

3

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 thatthe 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
No. 07-20526

4

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.