                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS        November 5, 2003

                         FOR THE FIFTH CIRCUIT            Charles R. Fulbruge III
                                                                  Clerk


                             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.



     *
        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that this opinion should not be published and is not precedent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.
                              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
                           No. 03-30406
                                -3-

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


     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.
                             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
                            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
                           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”).
                          No. 03-30406
                               -7-
                         IV.   CONCLUSION

     Accordingly, we AFFIRM the district court’s grant of summary

judgment in favor of Fikes and Lancer.
