### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40186

MATERIALS EVALUATION AND TECHNOLOGY CORPORATION, Plaintiff-Appellant,
v. MID-CONTINENT CASUALTY COMPANY, Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:10-CV-740

Before STEWART, Chief Judge, and DAVIS, and CLEMENT, Circuit Judges. PER CURIAM: * Plaintiff-Appellant Materials Evaluation and Technology Corporation (“METCO”) appeals the district court’s grant of summary judgment in favor of Defendant-Appellee M id-Continent Casualty Company (“Mid-Continent”). The district c ourt ruled that endorsement “M L 1 190,” the Employers’ Liability Exclusion Endorsement, precluded Mid-Continent’s duty t o defend under a commercial general liability insurance policy. For th e f ollowing reasons, we AFFIRM the district court’s grant of summary judgment. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D March 18, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40186 Document: 00512178313 Page: 1 Date Filed: 03/18/2013No. 12-40186 I. A. I nsured-I

nsurer Relationship between M ETCO and Mid-Continent METCO first purchased a commercial g eneral liability policy from MidContinent in 1997 and a nnually renewed its coverage through at least 2004. Of particular relevance to this case are the 2002 and 2003 policies. The 2002 policy, which was effective from July 18, 2 002 to July 1 8, 2003, provided, inter alia , for an Employer’s Liability exclusion (the “Exclusion”). The Exclusion, which is listed in Section 1, subsection 2(e), of t he Coverage A Bodily Injury a nd Property Damage Liability of the 2 0 0 2 p o licy p rovide in relevant part:

2. This insurance does not apply to: (e) Employer’s Liability “Bodily injury” to: (1) An “employee” of the insured a r i s ing o ut of and in the course of: (a) Employment by the insured; or (b ) Performing duties related to the conduct o f the insured business;

. . . This exclusion applies: (1) Whether t he insured may b e liable a s an employer or in any other capacity; and (2) To any obligation to share damages with or repay s omeone else who must pay damages because of the injury.
This exclusion does n ot apply to liability assumed by the insured under an “insured contract.” Therefore, the Exclusi o n d i d not apply to a “ c ontract or a greement

. . . under which [METCO] assume[s] t ort liability of another party to pay for ‘bodily injury’ . . . .” The effective d ates for the 2003 policy were July 18, 2 003 to July 18, 2004. The coverage f

or the 2003 policy also contained the same Exclusion as the 2002

2 Case: 12-40186 Document: 00512178313 Page: 2 Date Filed: 03/18/2013No. 12-40186

policy. H owever, the 2003 policy differed from the 2 002 policy because the 2003 policy included the Employers’ Liability Excl u s ion Endorsement (the “Endorsement”). The Endorsement provides in relevant part:

This endorsement modifies insurance provided under the following:
COMMERC IAL G ENERAL LIABILITY C OVERAGE PART

. . . This insurance does not apply:

. . . 2. To any liability or obligation for which any “insured,” or any company as its insurer, may be held liable to any person o r entity, including any o t h e r “insured,” as a result of “bodily injury” to a ny employee sustained in the c o urse o f e mployment or supervision by an “insured”; or

. . . 4. To a ny liability of a ny “insured” to defend, indemnify, share payments or damages with, or repay a nyone on account of any obligation arising out o f “bodily injury” to any employee of the nature specified in . . . 2 above.
This exclusion shall be e ffective regardless of whether the liability or obligation is asserted d i r ectly or i n directly against any “insured” a s an employer, contractor, subcontractor, t hird party defendan t , o r in any other capacity.

. . . All Other Terms and Conditions Remain Unchanged. Accordingly, while the 2002 policy provided for coverage arising from an employee’s injuries if l iability arose from a third-party contractual relationship, the 2003 policy excluded this liability from coverage. B. METCO-DuPont Agreement and Bertrands’ Bodily I n jury Claims METCO performs materials testing for clients at various industrial sites in the Gulf Coast region, w hich requires METCO employees to work at these

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sites. In February 2003, METCO and E.I. du Pont d e N e m o u r s and Company (“DuPont”) executed an agreement (“DuPont Agreement”) whereby METCO agreed to provide various t esting service s a t a DuPont f acility in Beaumont, Texas. The DuPont Agreement included a n indemnity clause, which required METCO and DuPont to “indemnify, defend and hold harmless the other Party” for various types of liability. In March 2004, two of METCO’s employees, Christopher and Jacqueline Bertrand, sustained b odily i n j u r i es while working at the D uPont facility. The Bertrands filed suit against DuPont in state court, which DuPont settled. Pursuan t t o the DuPont Agreement’s i n demnity c lause, DuPont demanded reimbursement from METCO for fees and l itigation expenses in defending and settling t he B ertrands’ claims. METCO refused t o i n d e mnify DuPont, and on June 29, 2010, DuPont sued METCO for breach of contr a c t

. M E TCO subsequently t endered the DuPont suit to its insurance carrier, Mid-Continent, for defense and indemnity.
C. Mi d-Continent’s Denial of Coverage and METCO a nd MidContinent’s Lawsuit
In July 2010, Mid-Continent denied METCO’s request to defend, claiming that METCO’s coverage was excluded under the provisions o f t he Coverage A B o dily I n j u ry a n d P r o p e rty Damage Liability insuring agreement und e r th e 2 0 0 3 policy. METCO then f iled the instant action in state court seeking a declaratory judgmen t t h a t M id-Continent had a d uty to defend METCO in the lawsuit brought b y DuPont. METCO also advanced claims for breach of contract, breach of the duty of good f

aith and fair d ealing, reformation of the insurance policy due to m u tual m istake or fraud, and violations of the Texas Insurance C ode and the Texas Deceptive Trade Practices Act. The a ction was removed to federal court

on t he b asis of diversity j u risdiction. Mid-Continent subsequently asserted the

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Endorsement as an additional ground in refusing t o defend METCO in an amended answer. In the district court, Mid-Continent filed a motion for summary judgment. METCO filed a cross-motion for partial summary judgment, claiming, inter alia , that the terms of the 2 002 policy, and not t he 2003 policy, control Mid-Continent’s duty to defend because Texas law presumes that a policy renewal i s made on the same t erms o f the original policy unless there is evidence of a contrary agreement. The magistrate judge ruled t h at the 2003 policy controls because the Bertrands’ i nj u r i es occurred during the effective dates of that p olicy. T he magistrate judge then applied the eight-corners rul e 1 and concluded that the Endorsement precluded Mid-Continent’s duty to defend METCO’s c laims and th at there was n o evidence supporting METCO’s remaining claims. The district court adopted the magistrate judge’s report and recommend a t ion and granted summary judgment in favor of Mid-Continent. METCO now appeals. II. We r e v iew the district court’s grant of summary judgment d e novo. Admiral Ins. C

o. v . Ford , 607 F.3d 4 2 0, 422 ( 5th Cir. 2010) (citation omitted). Summary judgment i s appropriate when “the movant shows t hat there is no genuine dispute as t o any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). We m ust view all facts a nd evidence in the light most favorable to the non-moving party w hen considering a motion for s ummary j udgment. Dameware Dev ., L

. L

. C. v. Am. Gen. Life Ins. Co ., 688 F.3d 203, 206-07 ( 5th Cir. 2012) (citation omitted). In this diversity j urisdiction

1 Unde r Te x as ’s “e ight co rne rs ” rule , “the s co pe o f an ins ure r’s duty to de fe nd ag ains t a law s uit is de te rmine d e x clus iv e ly by the alle g a tio ns in the ple ading s and the lang uag e o f the ins urance po licy .” Nat’l Cas

. Co

. v . W. Wo rld Ins

. Co

. , 669 F.3d 608, 612 (5th Cir. 2012) (citing Nat’l Unio n Fire Ins

. Co

. v . Merchs

. Fast Mo to r Lines , 939 S.W .2d 139, 141 (Te x . 1997)).

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action, we apply the substantive law of Texas. Coe v . Chesapeake Exploration, L.L.C. , 695 F.3d 311, 316 (5th Cir. 2012) (citation omitted). I II. A. On appeal, METCO does not challenge the district court’s conclusion that the Endorsement bars c overage of the DuPont lawsuit. Rather, METCO argues that t he 2003 policy is on the same te r m s a s t h e 2 002 p olicy because a policy renewal is on the same t erms as the original; thus, according to M ETC O , t he Endorsement is not enforceable. We conclude, however, that the 2003 policy is v alid a nd enforceabl e as written. The Bertrands were injured in March 200 4, and the 2003 policy was effective from July 18, 2003 to July 18, 2004. T h u s , t h e 2 003 policy is the relevant one for determining METCO ’ s c o v e r a ge. Further, the 2003 policy’s language, as p reviously stated, specifically negates Mid

- Continent’s duty to defend METCO. 2 Therefore, under general contract principles, we conclude that METCO is bound by the Endorsement included i n t he 2003 policy. State Farm Lloyds v. Page , 315 S

. W.3d 525, 527 (Tex. 2010) (noting that t he interpretation of an insuranc e contract is guided by g eneral contract principles of contract construction and that the p rimary goal is to examine the policy l anguage to ascertain the parties’ intent). B. METCO’s asserted ba s es for r elief in reliance on Liverpool & London & Globe Insurance Co. v. Swann , 382 S.W.2d 521 (Tex. Civ. App.–Beaumont 1964,

no p et.), Harbor I

nsurance Co. v. Urban Construction Co ., 990 F.2d 195 (5th Cir.

2 Mo re o v e r, w e no te Mid-Co ntine nt do e s no t hav e a duty to inde mnify be caus e the Endo rs e me nt s pe cifically pre clude s co ve rag e fo r “any liability o f any ins ure d to i nde mnify

. . . any one on acco unt o f any o blig atio n aris ing o ut o f ‘bo dilyinj ury ’ to any e mplo y e e . . . [s us taine d i n the co urs e o f e mplo y me nt].”

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1993), a nd Indiana & Ohio Live Stock Insurance Co. v. Keiningham , 1 61 S.W. 384 (Tex. Civ. App.–Dallas 1913, writ ref’d) are unavailing. In Liverpool , the Texas Court of Appeals addressed whether a n i n s u r e d could recover under h is fire insurance policies for fire damage to h is store where the insurance agent sent a l e t t e r to the insured offering to renew the policy based on the request of the insured’s w ife. 382 S.W.2d a t 522. H o w e v e r, the agent failed to issue the renewal p olicy, and the policy expired one day prior to the fire. I

d

. I n holding that the insurance agent’s letter constituted a policy renewal offer on the same terms as the o riginal policy, the Liverpool c o urt first noted that: The law is w ell s et t l ed in [Texas] that an insurance

c o m p any, through its duly authorized agent, may contract by parol for the renewal of [ an] i n s u r a nce policy; and, in the absence of agreement to the contrary, the presumption i s t hat the renewal is u pon the same terms, conditions, a nd amount as provided in t h e original policy.
Id. (citation and internal quotation marks omitted). The matter sub judice is distinguishable from Liverpool

. Mid-Continent issued the 2003 policy, which contained the Endorseme n t , a condition varying the t erms of the 2002 policy. We thus c o nclude that the 2003 policy was clearly

an “agreement to the c ontrary,” and Liverpool’ s presumption is not appli c able here. METCO next contends that i t was excused from reading the 2 003 policy because “Texas adopted the m ajority r u l e t h a t does not require the insured to examine the delivered policy and permits h i m to r ely upon the assumption that

7 Case: 12-40186 Document: 00512178313 Page: 7 Date Filed: 03/18/2013No. 12-40186

[a r enewal policy is on the s ame t e r m s a s t he original.]” In s upport of this argument, METCO cites to Harbor Insurance. 3 In Harbor Insur a n c e , we addressed reformation of an i nsurance policy under t he majority rule w here the insurer and insured committed a mutual mistake. 9 90 F .2d a t 199-200. In that c a se, the insurer, Harbor Insurance and the insured, Urban, had a prior a g r e e m e n t t o renew the policy on the same terms as the p revious year’s policy, which included a modi f ying endorsement. Id

. at 1 97. Due to the parties’ mutual mistake, the modifying endorsement was not attached to the renewal policy. Id. Several years later, a construction defect action was commenced against Urban, which r esulted in an arbitration award against Urb an. Id. at 198. Urban then demanded indemnification b y Harbor Insurance for the award. I d. Harbor Insurance denied th e claim and sought a declarator y j u d gment that it d i d n o t h a ve a d uty t o indemnify U rban. Id. H arbor I nsurance admitted

3 Altho ugh no t e x te ns iv e ly arg ue d by METCO , METCO cite s Fireman ’s Fund Indemnity Co

. v. Bo y le G eneral Tire C

o ., 392 S.W .2d 352 (Te x . 1965) in s uppo rt o f the pro po s itio n that it did no t hav e a duty to e x amine t h e p o l i c y . In Bo y le , an ins urance a g e nt agre e d to the i ns ure d’s re que s t to pro v i de co ve rag e fo r the ins ure d’s e mplo y e e s but the ins urance ag e nt did no t include the e mplo y ee s unde r the po licy

. Id

. at 355. Tw o emplo ye es s ubs e que ntly s t o l e mo ne y fro m the bus ine s s . Id. Bo y le did no t re ad the po licy until s e v eral y ears afte r i t w as is s ue d and s o ught re fo rmatio n o f the po licy

. Id. The Te x as Supre me Co urt e x plaine d that “an ins ure d w ho acce ptsa po licyw itho ut dis s e nt, ispre s ume d to kno w itsco nte nts , but thepre s umptio n maybeo v e rco me bypro o f that he did no t kno witsco nte ntsw he n it
w as acce pte d, as by s ho w i ng that w he n he re ce iv ed it he put it aw ay w i th o u t e x aminatio n, o r that he re l ie d upo n the k n o w l e d g e o f the i ns ure r and s uppo s e d he had co rre ctly draw n it.” Id. (citatio n and inte rnal quo tatio n marks o mitte d). The Bo y le co urt the re fo re allo w e d re fo rmatio n o f the po licy

. Id. at 358. Po s t- Bo

y le cas e s hav e applie d Bo y le’s pre s umptio n w he re the po licy did no t co mply w ith a prio r agre eme nt be tw e e n the ins urance ag e nt and the ins ure d. See Co lo nial Sav. Ass’n v. Tay lo r, 544 S.W .2d 116, 119 (Te x . 1976) (co ncludi n g t h a t a n ins ure d o v e rcame the Bo y le pre s umptio n w he n a lie nho lde r, w hich had a duty s imilar to an ins urance ag e nt, indicate d that it w o uld pro cure fire co v e rag e o f the pr o p e r t y a n d t h e lie nho lde r faile d to fully ins ure the pro pe rty); Ins. Netw o rk of Tex

. v. Klo esel , 266 S.W .3d 456, 479-81 (Te x . App.–Co rpus Chris ti 2008, pe t. de nie d) (co ncluding that the ins ure d re s taurant o w ne rs o v e rcame Bo

y le’s pre s umptio n w he re the ins ure d i nfo rme d t h e ag e n t prio r to the ag e nt’s pro cure me nt o f the po licy that it w ante d to be co v e re d fo r tainte d fo od, a nd the pro cure d po licy co ntaine d a co mmunicable dis e as e e x clus io n w hich e x clude d co v e rag e o f cus to me rs ’ He patitisA claims ) The s e cas es are dis tinguis hable fro m the pre s e nt matte r. Bo y le, Co lo nial Savings, and K lo esel all inv o lv e d the ins ure d no t e x amining the po licy o n the bas is that the po licie s w e re inte nde d to pro te ct the ins ure d fro m the co v ere d ris k bas e d o n prio r co mmunicatio ns w ith an ins urance ag e nt or a party that had a s imilar dutyasan ins urance ag e nt. 8 Case: 12-40186 Document: 00512178313 Page: 8 Date Filed: 03/18/2013No. 12-40186

however, that the subsequently delivered written policy “did not reflect the agreement of the p a r t i e s ” because it omitted t he modifying endorsement that

was included in the prior policy. Id. at 199. N otwith s t a n d i n g this admission, the district court ruled that “as a matter of law an insured is b ound by the terms of a policy when he accepts the policy. ” I d. I n d i s agreeing with the district court, we noted that the majority rule “ does not r e quire the insured to examine the deli v ered policy and p ermits him t o rely upon the assumption that the agreement was expressed in the writing.” Id. at 200. Accordingly, we held that there w as a mutual mistake, b u t we declined to allow for reformation of the policy because the statute of lim i t a t i o n s expired on U rban’s claim

. I d. at 201. We therefore affirmed the district court’s decision. I d. at 202. Contrary t o what METCO argues, Harbor Insurance d oes not stand for the b lanket proposition that a policyholder has a right to a ssume that “a renewal policy is on the same t erms as the original.” Harbor Insurance specifically dealt

w ith the issue o f reformation under the majority rule where the parti e s committed a mutual mistake b ased on a prior agreement. Id. at 199-200. In the instant case, there is no prior agreement supporting t h e p r o p osition that METCO and M id-Continent agreed to not include the Endorsement in the 2003 policy but that the parties, through mutual mistake, subsequently included the Endorsement in the 2003 policy anyway. Therefore, w e conclude that the facts of t his case are misaligned with Harbor Insurance , and we d e cline t o extend our holding in Harbor Insurance to the facts here. For simila r r e a sons, METCO’s reliance on Keiningham is misplaced. In Keiningham , the insured sent an application to his insurer requesting a renewal of h is current livestock insurance policy. 161 S.W. at 384. The insurer responded by delivering a p olic y w h i ch was “represented to be in compliance with his a p p lication” but which i n fact included an additional restrictive provision. I

d

. T h e i n s ured failed t o read the policy and did not discover the
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restrictive provision until he a ttempted t o make a claim under the policy. Id. at 384-85. The K

einingha m c o u r t n oted that “the provision i n the policy is in conflict with the appl i c a t i o n” and held t hat the i nsured was not bound by the restrictive provision. I d. at 3 85. The court stated, “[t]he application was one
a p p a r e n t ly prepared and printed by [the insurer] for its private use and if i t intended to ingraft upon i t some new provision after [the insured] h ad signed
same, s ome notice of such intention must have been given [t o t h e i n s ured] to bind him thereto.” Id. at 386. We also c onclude that METCO’s argument u n d e r Keiningham is unpersuasive b ecause there i s no evidence in the record that METCO completed

a p o l i c y renewal a pplication or otherwise requested t hat the 2 003 renewal policy be issued on the same terms as the 2002 policy. Liverpool , Harbor Insurance, and K einingham are clearly distinguishable from the instant case, a n d w e d e cline to view them as s u pportive o f M ETCO’s contention. C. METCO next c ontends that Mid-Continent di d not provide “actual notice” that the Endorsement was i nclud e d i n the 2 003 policy. By way o f several affidavits submitted by administrative officers and its insurance agent, METCO

avers that it w as unaware that Mid-Continent i nclude d the Endorsement. METCO cites Automobile Insurance Co. v. United Electric Service Co., 275 S.W.2d 833 (Tex. Civ. App.–Fort Worth 1955, w r i t ref’d n.r.e.), and four cases from other jurisdictions in support of its notice argument. 4 The court in Automobile Insurance concluded that an insured did not receive sufficient notice of a co-insurance endorsement even though the insurer delivered “ten s ingle page endorsements, three s impl e c r e d i t memoranda and

4 G o v’t Emps. Ins. Co

. v. United States , 400 F.2d 172 (10th Cir. 1968) , Whiteside v. New Castle Mut. Ins. Co ., 595 F. Supp. 1 0 96 (D

. D e l. 1984); Campbell v. Ins. Serv. A gency , 424 N.W

. 2d 785 (Minn. Ct. App. 1988); N. R iver Ins. Co . v. Yo ung , 453 S.E.2d 205 (N.C. Ct. App. 1995) 10 Case: 12-40186 Document: 00512178313 Page: 10 Date Filed: 03/18/2013No. 12-40186

two renewal policies” to the insured’s office manager. 275 S.W.2d a t 8 36. Automobi l e Insurance, h owever, primarily concerned the r eformation of an insurance policy based on mutual mistake. Here, there is no mutual mistake. In the instant case, the policy declaration within the 2003 p olicy c ontained the following language with respect to t erms a nd c h a n g e s m ade t o the policy. The Policy Declaration provided: “IN RETURN FOR T HE PAYMENT OF THE PREMIUM, AND SUBJECT TO AL L T H E T ERMS OF THIS POLICY, WE AGR E E W I T H YOU TO P ROVIDE THE INSURANCE AS STATED IN THIS POLICY.” Shortly after this language, the Endorsement (ML 1 190 ) i s l isted under t he heading of “ Form(s) and Endorsement(s) made a part of this policy at this time.” Additionally, the page in which the E n d o rsement i s discussed conspicuously s tates, “THIS ENDORSEMENT C HANGES THE POLICY. PLEASE READ I T CAREFULLY,” and “[t]his endorsement modifies insurance provided under the f ollowing: COMMERCIAL GENERAL LIABILITY COVERAGE PART. . . .” By receiving the proposed 2003 policy which included n o t i f i cation of the i n clusion of the Endorsement, M ETCO had sufficient notice that the Endorsement was included in the 2003 policy. D. METCO f

urther asserts there is evidence of fraud in this c ase. METCO argues t h at Mid-Continent c o m m i t t e d fraud by claiming that the 2003 policy

was a “renewal,” thereby misrepresenting the terms of the 2003 policy when it included the Endorsement because, by definition, a renewal is o n the s a m e terms as the original policy. Under Texas law, the party asserting fraud is required to prove: (1) that a material representation was made; (2) t h e representation was false; (3) w hen the r epresentation was made , t h e s peaker knew it was false or made it recklessly without any knowledge of the truth and a s a

11 Case: 12-40186 Document: 00512178313 Page: 11 Date Filed: 03/18/2013No. 12-40186 positive assertion; (4) the s peake r made t h e representation w i t h the intent t h at the other p arty should act u p on it; (5) the party acted in reliance on t h e representation; and (6) the party thereby suffered injury.
In re FirstMerit Bank, N.A. , 52 S.W.3d 749, 758 (Tex. 2001) (citation omitted). To s upport this claim, METC O s pecifically a rgues t hat: (1) MidContinent ’ s r epresentation was material; (2) M i d -Continent knew the representation t o be false; (3) Mid-Continent intended METCO to sign the 2003 policy on the belief that it was a renewal of the 2002 policy terms ; (4) METCO purchased the r e n e w al policy; (5) METCO relied o n Mid-Continent’s representation; and (6) METCO was injured when M i d-Continent denied

c o v e r a g e based o n the Endorsement. In the a lternative, METCO avers that there is a conflict between the terms of the Endorsement and t h e Exclusion, and that the Exclusion controls. The district court did not address METCO’s reformation claim on t he basis of fraud because M E T C O failed t o object to the magistrate’s r e port; t h erefore,

our review is limited to plain error. See Douglass v . United Servs

. Auto. Ass’n , 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), s uperceded by statute on other grounds , 28 U.S.C. § 6 36(b)(1) (extending the t ime to file objections from ten to fourteen days). Under plain error r eview, t he appellant must show (1) an error; (2) that is clear or o b v ious; and (3) that affected t he a ppellant’s substantial rights. Baisden v . I’m Ready Prods

. Inc ., 693 F.3d 491 , 506 (5th Cir. 2012) (citation omitted). Although the 2003 policy is a renewal policy, it cannot b e c haracterized as
a renewal o n the s ame terms a s the 2002 policy when considered in light of other language in the 2003 policy. See State F arm Lloyds, 315 S.W.3d at 527 (“[The

c o u r t ] must read all parts o f the contract together, giving effect to each word , 12 Case: 12-40186 Document: 00512178313 Page: 12 Date Filed: 03/18/2013No. 12-40186

clause, a nd sentence, a nd avoid making a ny p rovision w ithin the policy inoperative.”). T he p olicy declaration page a nd the Endorsement page e xplicitly provide language no tif yi n g the insured that t he Endorsement changed the terms of the 2002 p olicy. Accordingly, Mid-Continent di d not make a material representation that th e 2003 policy was on the same t erms a s the 2 002 policy as argued by METCO. Therefore, M ETCO has n o t demonstrated any error, plain

or otherwise. Furthermore, there is n o conflict between the Endorsement and the E xclusion because the Endorsement controls. TIG Ins

. Co . v . N. Am. Van Lines , Inc ., 170 S.W.3d 2 64, 271 (Tex. App.–Dallas 2005) (noting that when there is a conflict b etween an endorsement and the p o licy the endorsement generally supersedes conflicting printed terms contained in the general policy.) Accordingly, the Endorsement contained i n the 2 003 policy is e nforceable, and METCO’s attempts to attack the Endorsement fail. IV. METCO finally contends that the district court e r r e d in dismissing its claims relating to breach of contract, breach o f the duty of good faith a n d f a ir dealing, and violations of the Texas Deceptive and Trade Practices Act and the Texas Insurance Code. Because we have concluded that Mid-Continent did not have a duty to defend or indemnify METCO, these claims fail. V. For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment.

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