Summary Calendar MARILYN CAMPBELL; SHELTON CAMPBELL v. William Rshura;

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 5, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-30406
Summary Calendar
MARILYN CAMPBELL; SHELTON CAMPBELL
Plaintiffs - Appellants
v.
WILLIAM R SHURA; ET AL
Defendants
FIKES TRUCK LINE INC; LANCER INSURANCE CO
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Western District of Louisiana, Shreveport
No. 02-CV-633
--------------------
Before KING, Chief Judge, and HIGGINBOTHAM and WIENER, Circuit
Judges.
PER CURIAM:*
Plaintiffs-Appellants Marilyn and Shelton Campbell appeal
the district court’s grant of summary judgment to Defendants-
Appellees Fikes Truck Line, Inc. and Lancer Insurance Company.
For the following reasons, we AFFIRM.

-- 1 of 7 --

No. 03-30406
-2-
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying this appeal are generally uncontested.
On December 8, 2001, Levi Campbell, Jr. died after a collision in
Louisiana with a 1993 Freightliner tractor trailer driven by
William Shura. The parties agree that on the date of the
accident Shura was an employee of Parks Transportation, a
commercial motor-carrier operator. Ray Owens, who owned the
Freightliner, had leased the truck to Parks Transportation on
June 20, 2001. Thus, Campbell’s survivors brought a wrongful
death action against Shura, Parks, and Park’s insurance carrier,
XYZ Insurer, in Louisiana state court.
Plaintiffs later amended their complaint to include Fikes
Truck Line, Inc. and its liability insurer, Lancer Insurance Co.,
as additional defendants. Fikes had leased the 1993 Freightliner
from Owens on May 21, 2001. More than three months before the
accident, on August 28, 2001, Fikes terminated the lease and
asked Owens to remove Fikes’s placards and decals from the
Freightliner and to return Owens’s copy of the cancelled lease
agreement. Owens complied with these instructions. Thereafter,
Fikes no longer operated the Freightliner and the tractor trailer
was not listed on the insurance policy it renewed with Lancer on
October 1, 2001. Nevertheless, a certificate of insurance that
Fikes was required to file with the Texas Department of
Transportation continued to include the 1993 Freightliner as a
covered vehicle. Fikes claims that it failed to update this

-- 2 of 7 --

No. 03-30406
-3-
1 In the meantime, the district court dismissed the
claims against Parks Transportation and XYZ Insurance for failure
to prosecute and entered a default judgment against Shura.
certificate due to an oversight. This certificate of insurance
constitutes the only connection that either party has alleged
between the Freightliner and either Fikes or Lancer on the date
of the accident.
On March 28, 2002, defendants Fikes and Lancer removed the
case to the United States District Court for the Western District
of Louisiana on the basis of diversity jurisdiction. They
subsequently moved for summary judgment, claiming that they could
not be found legally liable for the Freightliner or for Shura’s
conduct on the date of the accident.1 On March 25, 2003, the
district court granted summary judgment and dismissed the
plaintiffs’ claims against Fikes and Lancer after finding that:
(1) Shura was employed by Parks Transportation, not Fikes, on the
date of the accident and (2) under Louisiana law, the certificate
of insurance Fikes filed with the Texas Department of
Transportation was incapable of creating insurance coverage that
was not part of an actual insurance policy. Plaintiffs timely
appealed.
II. STANDARD OF REVIEW
This court reviews a grant of summary judgment de novo,
applying the same standards as the district court. Daniels v.
City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Summary
judgment should be granted if there is no genuine issue of

-- 3 of 7 --

No. 03-30406
-4-
material fact and the moving party is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(c). “The moving party is
‘entitled to a judgment as a matter of law’ [when] the nonmoving
party has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden of
proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(citations omitted).
III. DISCUSSION
On appeal, the plaintiffs do not challenge the district
court’s conclusion that Shura was driving the Freightliner in the
course and scope of his employment with Parks, and not as an
employee of Fikes, on the day of the accident. Instead, they
argue that it is possible to find Fikes and Lancer legally liable
for the accident because, by listing the Freightliner on a
certificate of insurance with the Texas Department of
Transportation, Fikes and Lancer held themselves out to the
public as liability insurers of the Freightliner. Further, the
plaintiffs contend that Fikes’s cancellation of the lease may
have ended the relationship between Fikes and Owens, yet it could
not obviate Fikes’s liability over the tractor trailer under the
certificate. Defendants, on the other hand, argue that they are
entitled to judgment as a matter of law because there is no valid
legal basis for holding them liable for Freightliner accident.
They claim that Louisiana law decisively demonstrates that filing

-- 4 of 7 --

No. 03-30406
-5-
a certificate of insurance with a public agency does not create
legal liability over a vehicle.
Plaintiffs’ argument--that the certificate of insurance
filed on Fikes behalf with the Texas Department of Transportation
creates liability over the Freightliner–-lacks merit. Both the
district court and the parties have assumed that Louisiana’s
substantive law of insurance policy interpretation control this
issue. Consequently, we may apply Louisiana law to the facts of
this case without engaging in a complicated choice of law
analysis. See Clemtex, Inc. V. Southeastern Fid. Ins. Co., 807
F.2d 1271, 1274 (5th Cir. 1987).
Louisiana law provides that the Texas certificate of
insurance may not “amplif[y], extend[], or modify[]” the terms of
Fikes’s insurance policy with Lancer because the certificate does
not qualify as a “rider, endorsement, or application attached to
or made a part of the policy.” LA. REV. STAT. ANN. 22:654 (West
1995); see Citgo Petroleum Corp. v. Yeargin, Inc., 95-1574, p. 13
(La. App. 3 Cir. 2/19/97); 690 So. 2d 154, 164; cf. Ferguson v.
Plummer’s Towing & Recovery Inc., 98-2894, p. 6 (La. App. 1 Cir.
2/18/00); 753 So. 2d 398, 401 (holding that a certificate of
insurance is prima facie evidence of the genuineness of the facts
stated therein if the certificate was issued between the parties
to a legal action but that a third party may not rely on the
certificate to “change the coverage provided” by an insurance
policy). Defendants proffered uncontroverted evidence that the

-- 5 of 7 --

No. 03-30406
-6-
actual, written insurance policy between Fikes and Lancer, which
was in effect on the date of the accident, by its terms did not
cover the tractor trailer that collided with Levi Campbell.
Therefore, under Louisiana law, the certificate of insurance did
not make either Fikes or Lancer liable for the Freightliner on
the date in question.
Moreover, even though the parties have not raised the issue,
we note that a publicly filed certificate of insurance is not the
equivalent of an insurance policy under Texas law. See R.R.
Comm’n of Tex. v. W.A. Querner Co., 310 S.W.2d 670, 673 (Tex.
Civ. App.-Austin 1958, no writ) (“The distinction between having
or not having insurance and filing evidence of such insurance
with the [state agency] is obvious. Nor is such distinction
technical or trivial. It is one of substance. It is the
existence of the insurance which protects the public, not filing
it with the [state agency].”). Therefore, under either Texas or
Louisiana law, the certificate of insurance does not provide a
basis for holding Fikes and Lancer liable for the Freightliner
accident. Cf. Graham v. Malone Freight Lines, Inc., 314 F.3d 7,
14 (1st Cir. 1999) (rejecting the argument that a carrier could
be held liable for a tractor trailer’s accident simply because
the carrier “did in fact have a certificate of insurance on file
with the Illinois Commerce Commission”).

-- 6 of 7 --

No. 03-30406
-7-
IV. CONCLUSION
Accordingly, we AFFIRM the district court’s grant of summary
judgment in favor of Fikes and Lancer.

-- 7 of 7 --