### 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 ClerkNo. 07-20526

* Pursuant to 5

TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. 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 theappellee insurers, thereby requiring the insurers todefend and indemnify Autobuses. Reviewing the district court’s grant of summary judgment in favor ofthe insurers de novo, Hobbsv. 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. L incoln 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 i nsured. 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 ofthe policy shows that Autobuses is not an insured. 3. Martinez next argues that A utobuses is an insured because a certificate of insurance states that Autobuses is “l isted 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 lawprovides that the certificate ofinsurance does not supersede the plain language ofthe insurance policy. SeeTIG 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 ofAutobuses as a named insured under the policy, and we note that extrinsicevidence may not be used tocreate 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 Autobuseswithout obtaining a reservation ofrights 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. 1 992). The record shows that the insurers undertook a defense of Drummer, but Martinez points to no evidence that they also assumed the defense ofAutobuses. In a letter to Autobuses’ counsel National Fire denied that Autobuses was an insured and declined to defend. MartinezNo. 07-20526

4 c ites only to an opinion letter from an expert stating that both insurers assumed Autobuses’ defense. This conclusory letter is insufficient to avoid summaryjudgment. See In reSegerstrom, 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.