United States District Court,

S.D. Texas,

Houston Division.

FIREMAN’S FUND INSURANCE COMPANY, a/s/o Expack Seafood, Inc., Plaintiff,

v.

ATS LOGISTICS SERVICES, INC., et al., Defendants.

Civil Action No. H-08-2605.

 

July 30, 2009.

 

MEMORANDUM AND ORDER

 

NANCY F. ATLAS, District Judge.

 

This case is before the Court on the Motion for Summary Judgment (“ATS’s Motion”) [Doc. # 19] filed by Defendant ATS Logistics Services, Inc. d/b/a Sureway Transportation Company (“ATS”), to which Plaintiff Fireman’s Fund Insurance Company a/s/o Expack Seafood, Inc. (“Expack”) filed a Response [Doc. # 20]. Expack also filed its own Motion for Summary Judgment (“Plaintiff’s Motion”) [Doc. # 21], to which ATS filed a Response [Doc. # 22]. The Court has carefully reviewed the full record in this case. Based on this review and the application of governing legal authorities, the Court grants ATS’s Motion and denies Plaintiff’s Motion.

 

I. FACTUAL AND PROCEDURAL BACKGROUND

 

Expack imports frozen shrimp for sale at HEB grocery stores in Texas. In July 2006, Expack had a shipment of frozen shrimp stored in a storage facility owned by VersaCold Logistics, LLC (“VersaCold”). Expack hired ATS to arrange for transportation of the shrimp from VersaCold’s facility in Houston to HEB warehouses in Houston and San Antonio. ATS hired Famco Transportation (“Famco”)  to transport the shrimp by refrigerated truck.

 

Famco is owned by third-party defendant Yudel Guajardo.

 

Famco delivered half of the frozen shrimp to the HEB warehouse in Houston without incident. When Famco’s driver arrived at the HEB warehouse in San Antonio, however, he waited for several hours before being told to take the shrimp to a VersaCold facility in San Antonio.

 

The uncontroverted evidence shows that Famco’s driver took the shrimp to the VersaCold facility. At that facility, the driver was instructed to back the truck up to a particular delivery area and to open the door so the shrimp could be unloaded from the truck into the storage facility. As instructed by VersaCold’s employee, the Famco driver waited for the shrimp to be unloaded. After waiting for over an hour with the truck’s doors open, a quality control employee of VersaCold determined that the temperature in the truck was above zero and advised the driver that he would not accept the delivery.

 

Famco arranged for the shrimp to be unloaded into VersaCold’s facility to be inspected by a representative of the United States Department of Agriculture (“USDA”). The inspector examined the shrimp and found that it was “fit for Human Consumption.” See Lot Inspection Certificate, Exh. C to ATS’s Motion. Plaintiff hired the firm of Dufour, Laskay & Strouse, Inc. (“DLS”) to inspect the shipment. DLS examined the shrimp on August 1, 2006, and determined that the shrimp appeared to have thawed and refrozen and, therefore, “was not first quality and could not be utilized for its intended purpose and trade [but] could be used on a secondary basis.” See DLS Report, Exh. C to Plaintiff’s Motion. HEB refused to accept the shipment of shrimp.

 

On July 18, 2008, Fireman’s Fund Insurance Company as the subrogated underwriter of Expack filed this lawsuit against ATS in Texas state court. Following timely removal of the case to federal court, ATS filed a Third-Party Complaint [Doc. # 11] against Diana and Yudel Guajardo d/b/a Famco Transportation. After an adequate time for discovery, ATS and Expack each filed a motion for summary judgment. The motions are now ripe for decision.

 

II. STANDARD FOR SUMMARY JUDGMENT

 

Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party’s case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir.2002). Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); Celotex Corp., 477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir.2008).

 

For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant’s claim in which there is an “absence of a genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005). The moving party, however, need not negate the elements of the non-movant’s case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005). The moving party may meet its burden by pointing out “ ‘the absence of evidence supporting the nonmoving party’s case.’ ” Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir.1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.1992)).

 

If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.2001) (internal citation omitted). “An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party” DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2006) (internal citations omitted).

 

In deciding whether a genuine and material fact issue has been created, the facts and inferences to be drawn from them must be reviewed in the light most favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.2003). However, factual controversies are resolved in favor of the non-movant “only ‘when both parties have submitted evidence of contradictory facts.’ ” Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir.2004) (quoting Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.1999)). The non-movant’s burden is not met by mere reliance on the allegations or denials in the nonmovant’s pleadings. See Diamond Offshore Co. v. A & B Builders, Inc., 302 F.3d 531, 545 n. 13 (5th Cir.2002). Likewise, “conclusory allegations” or “unsubstantiated assertions” do not meet the non-movant’s burden. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir.2008). Instead, the nonmoving party must present specific facts which show “the existence of a genuine issue concerning every essential component of its case.” Am. Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Int’l, 343 F.3d 401, 405 (5th Cir.2003) (citation and internal quotation marks omitted). In the absence of any proof, the court will not assume that the non-movant could or would prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).

 

III. ANALYSIS

 

Plaintiff has asserted a cause of action against ATS “as a common carrier of goods for hire.” See Complaint [Doc. # 1], p. 3. Plaintiff also alleged that ATS was negligent, breached a bailment relationship, and breached a contract. See id. ATS seeks summary judgment on each of these claims.

 

A. Common Carrier Claim

 

Plaintiff alleges that ATS breached its duties as a common carrier. ATS has moved for summary judgment on this claim, arguing that it is not a motor carrier but is, instead, a broker. For purposes of common carrier liability, a “broker” is a person, “other than a motor carrier or an employee or agent of a motor carrier,” that arranges for transportation by motor carrier for compensation. 49 U.S.C. § 13102(1).

 

In its Response to ATS’s Motion and in its own Motion for Summary Judgment, Plaintiff refers to a claim under the Carmack Amendment. Shipments of frozen shellfish, including frozen uncooked shrimp, are specifically exempted from the Carmack Amendment. See 49 U.S.C. § 13506(a)(6)(D); 49 C.F.R. § 372.115.

 

In support of its argument, ATS has presented the affidavit of its Operations Manager, Paul Killmer, who states under oath that ATS is a “broker of transportation services.” See Affidavit of Paul Killmer, Exh. D to ATS’s Motion. ATS has also presented the deposition testimony of Yudel Guaj ardo, who testified that ATS is a freight broker. See Deposition of Yudel Guajardo, Exh. A to ATS’s Motion, p. 6.

 

Expack argues that there is a fact dispute regarding whether ATS is a broker or a freight forwarder  for purposes of common carrier liability. Expack has not, however, presented any evidence that creates a genuine fact dispute. The only evidence in the record on this issue is the Killmer Affidavit and the Guajardo deposition testimony, which both state under oath that ATS is a broker. ATS is entitled to summary judgment on the claim that it breached common carrier duties.

 

A “freight forwarder” is an entity that assembles and consolidates shipments to be transported by a motor carrier. See 49 U.S.C. § 13102(8).

 

B. Bailment Claim

 

Plaintiff alleges that ATS breached a bailment relationship. A “bailment relationship requires the bailee to take possession and control of the bailor’s personal property.” Delaney v. Assured Self Storage, 272 S.W.3d 837, 839 (Tex.App.-Dallas 2008, no pet.) (citing Hoye v. Like, 958 S.W.2d 234, 237-38 (Tex.App.-Amarillo 1997, no pet.); Allright Auto Parks, Inc. v. Moore, 560 S.W.2d 129, 130 (Tex.Civ.App.-San Antonio 1977, writ ref ‘d n.r.e.)). Additionally, the plaintiff must present evidence that demonstrates that the “entity sought to be charged as bailee knew that it was assuming such relationship and responsibilities before it is charged with the duties of bailee.” Delaney, 272 S.W.3d at 839.

 

ATS has presented evidence that it operates only as a broker of transportation services, does not generally take physical possession of the goods being shipped, and did not take physical possession of the shipment in this case. See Killmer Aff., ¶¶ 4-5. Plaintiff has not presented any evidence that ATS took physical possession of the shipment of shrimp. Plaintiff argues that Famco took possession of the shipment as ATS’s agent, but there is no evidence that Famco was acting in any capacity other than as an independent contractor hired to transport the shrimp. Moreover, Plaintiff has presented no evidence that ATS understood at any point that it was assuming a bailment relationship. Plaintiff has failed to present evidence that raises a genuine issue of material fact that ATS was a bailee of the shrimp. ATS is entitled to summary judgment on Plaintiff’s bailment claim.

 

Plaintiff did not plead that ATS has any liability under a respondeat superior or other agency theory. In any event, the Carrier/Broker Agreement (Exh. B to ATS’s Response) at paragraph 10 provides specifically that Famco is acting only as an independent contractor, and Plaintiff has presented no evidence to the contrary.

 

C. Negligence Claim

 

Plaintiff also asserts a negligence claim against ATS, alleging that ATS “negligently fail[ed] to transport and deliver the cargo in the same good manner in which it was received.” See Complaint, p. 3. A cause of action for negligence requires proof of three essential elements: (1) a legal duty owed by the defendant to the plaintiff; (2) a breach of that legal duty; and (3) damages that were proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002); Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 310 (Tex.App.-Houston [1st Dist.] 2007, no pet.).

 

In this case, ATS owed Expack a duty to arrange for proper transportation of the shrimp. There is no evidence that ATS breached this duty. The only evidence in the record shows that ATS hired Famco to transport the shrimp. There is no evidence that Famco is not a reputable, capable trucking company. Moreover, the only evidence in the record is that Famco delivered the shrimp to HEB in San Antonio as it was required to do. HEB, however, did not have room to accept delivery and directed Famco to deliver the shrimp to VersaCold. There is no evidence ATS controlled the events at HEB or at the VersaCold facility. Indeed, Yurel Guajardo testified in his deposition that generally, once a truck arrives at the VersaCold facility, the driver is subject to the control of VersaCold employees regarding how to maneuver the truck and handle the shipment. See Guaj ardo Depo., pp. 24-26.

 

Plaintiff has not presented any evidence that ATS breached any duty it owed to Plaintiff and, therefore, ATS is entitled to summary judgment on Plaintiff’s negligence claim.

 

D. Breach of Contract Claim

 

Plaintiff alleges that ATS breached a contract with Expack. “The essential elements in a suit for breach of contract are: (1) the existence of a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of the breach.” Bank of Texas v. VR Elec., Inc., 276 S.W.3d 671, 677 (Tex.App.-Houston [1st Dist.] 2008, review denied). In response to discovery requests in this case, Plaintiff identified the Bill of Lading, or Shipping Order (attached as Exhibit A to Plaintiff’s Motion) as the contract between the parties. The Bill of Lading provides that the “company” agrees to carry the shrimp to its usual place of delivery and identifies the “company” as any “person or corporation in possession of the property ….“ See Bill of Lading, Exh. A to Plaintiff’s Motion. As was discussed above, there is no evidence that ATS was ever “in possession” of the shrimp. Additionally, the only evidence in the record indicates that the Bill of Lading was created by VersaCold, the storage facility where Famco picked up the shipment for transport to HEB warehouses in Houston and San Antonio. Plaintiff has failed to present evidence that raises a genuine issue of material fact regarding the existence of a contract with ATS.

 

Plaintiff also identified the following documents as supporting its contention that it entered into a contract with ATS: the pallet control receipt which appears to be a receipt for $72 for unreturned pallets; an invoice issued to collect transportation charges relating to the shipment at issue; a load confirmation sheet between ATS and Famco; and pages from a seafood inspection performed at the request of Yudel Guajardo after HEB rejected the shipment. None of these documents constitutes a contract between ATS and Expack.

 

Even if the Bill of Lading constituted a contract between Expack and ATS, Plaintiff has failed to present evidence that raises a genuine issue of material fact on the issues of breach and causation. The Bill of Lading merely requires delivery of the shipment in good condition. There is no evidence that ATS failed to deliver the shipment as directed or that the shipment did not arrive at the VersaCold facility in San Antonio in good condition. As was discussed above, the only evidence in the record shows that the lengthy delay by VersaCold employees in unloading the shipment and/or Famco’s keeping the truck doors open at VersaCold’s direction may have caused damage, if any, to the shipment.

 

Plaintiff has failed to present evidence to support its breach of contract claim against ATS and, as a result, summary judgment in favor of ATS on this claim is granted.

 

IV. CONCLUSION AND ORDER

 

Plaintiff has not presented evidence that raises a genuine issue of material fact to support its claims against ATS. As a result, it is hereby

 

ORDERED that ATS’s Motion for Summary Judgment [Doc. # 19] is GRANTED and Plaintiff’s Motion for Summary Judgment [Doc. # 21] is DENIED. It is further

 

ORDERED that ATS shall file by August 7, 2009, a written status report regarding any claims it continues to pursue against Third-Party Defendants Diana and Yudel Guaj ardo d/b/a Famco Transportation.

Court of Appeals of Mississippi.

Claudine Brown, Individually and as Administratrix of the ESTATE OF Charles BROWN, Deceased and on Behalf of All Wrongful Death Beneficiaries of Charles Brown, Deceased, Appellant

v.

PROGRESSIVE GULF INSURANCE COMPANY, Appellee.

No. 2008-CA-00028-COA.

 

Aug. 11, 2009.

 

EN BANC.

 

IRVING, J., for the Court.

 

¶ 1. Claudine Brown (Brown), administratrix of the Estate of Charles Brown, appeals from the judgment of the Yazoo County Circuit Court granting Progressive Gulf Insurance Company’s (Progressive) motion for summary judgment and denying hers. Brown asserts that the circuit court erred in finding that an insurance policy issued by Progressive to S & S Trucking, Inc. (S & S Trucking), with Scott Penn, Inc. (Scott Penn) named as an additional insured, did not provide any coverage for her decedent, Charles Brown.

 

Hugh Scott Penn, owner of Scott Penn, testified that S & S Trucking was one of several entities created by Sanford Insurance Agency to avoid putting too many trucks on a single insurance policy because there was a limit on the number of trucks that Progressive would insure on a single policy. The S & S Trucking policy named Scott Tenn, Inc. rather than Scott Penn as an additional insured. However, all parties agree that the intended additional insured was Scott Penn, and there is no allegation that Scott Penn was not covered under the S & S Trucking policy.

 

¶ 2. Finding no reversible error, we affirm.

 

FACTS

 

¶ 3. Charles and Jessie Woods  were killed on November 8, 2005, when the tractor-trailers that they were driving collided. At the time of the accident, Woods was an employee of Alma Frances McLean (Frances) and was driving a tractor-trailer that she owned. Frances’s husband, Henry McLean, operated a logging business, and the truck that Woods was driving was used in that business, although neither Frances nor Henry had liability insurance on the truck. As part of the business operation, Henry produced and hauled wood for Scott Penn. Scott Penn had an arrangement to sell wood to International Paper Company (International Paper) pursuant to a Master Wood Purchase and Service Agreement.

 

Although Woods’s first name is spelled throughout the pleadings as “Jessie,” the insurance documents and the witnesses for Progressive, which will be discussed later, have his first name listed as “Jesse.” We have chosen to leave the spelling as indicated.

 

The accident occurred shortly after Woods had delivered a load of wood to International Paper’s facility in Redwood, Mississippi. Hugh testified at a deposition that there was no written contract between Henry and Scott Penn.

 

¶ 4. The agreement reads, in pertinent part, as follows:

 

[Scott Penn] undertakes and agrees to sell, deliver, cut, controvert, and/or transport to [International Paper] or other designated destinations, and [International Paper] undertakes and agrees to purchase and/or accept from [Scott Penn], those certain quantities of pulpwood, saw timber, in-wood chips, residual chips, chip mill chips, fiber fuel, poles, pulling or other forest products….

 

The agreement also provides as follows: “[w]hen [Scott Penn] is transporting [w]ood, pursuant to this Agreement, [Scott Penn] agrees to furnish a sufficient number of safe and operationally sound tractors, trailers, and other transportation equipment of sufficient capacity, together with licensed, and insured, competent drivers.” Further, as it relates to insurance, the agreement states in pertinent part:

Insurance: [Scott Penn] shall carry, with insurers satisfactory to [International Paper], during the term hereof, Auto Liability Insurance, including either “owned, hired and non-owned vehicles” or “hired, non-owned and scheduled vehicles,” with limits of not less than $1,000,000, combined single limit, for both bodily injury liability and property damage liability each occurrence…. Prior to commencing operations hereunder, a Certificate of Insurance evidencing such coverage, satisfactory to [International Paper], shall be furnished to [International Paper], which shall specifically state that such insurance shall provide for at least ten (10) days’ notice to [International Paper] in the event or cancellation or any material change in such insurance policies.

 

¶ 5. To meet its insurance obligations under the agreement, Scott Penn purchased an insurance policy from Ed Sanford Insurance Agency (Ed Sanford), an agent for Progressive. Christine Somrak, manager of administrative claims support for Progressive, testified by deposition that Ed Sanford did not request coverage for hired and non-owned vehicles in the application that it submitted for Scott Penn. Somrak further testified that the policy issued by Progressive, which was for the period of April 4, 2005, to April 4, 2006, did not contain hired and non-owned vehicle endorsements. Additionally, neither Woods nor the truck that he was driving at the time of the accident was listed on any of Scott Penn’s insurance policies with Progressive. Nevertheless, Ed Sanford issued two certificates of liability insurance to International Paper, one to International Paper’s Vicksburg, Mississippi facility and the other to its Canton, Mississippi facility. Both of the certificates indicated that “hired” and “non-owned” vehicles were covered by the policy. Somrak testified that Ed Sanford had no authority to issue the certificates and that Progressive was not aware that the certificates had been issued by Ed Sanford.

 

A copy of the form commercial vehicle policy, along with the policy declarations page, that was issued to S & S Trucking was attached to Progressive’s motion for summary judgment. Neither the form policy nor any of its endorsements provided coverage for hired vehicles.

 

At the time of the accident, Progressive insured a number of commercial vehicles specified on several policies of insurance that listed Scott Penn as an additional insured.

 

Although the certificates indicate that coverage was in place for hired and non-owned vehicles, it should be noted that the face of each certificate bears the following disclaimer: “This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage provided by the polices below.”

 

¶ 6. On December 6, 2005, Brown filed a wrongful death action, individually, and on behalf of Charles’s beneficiaries. Brown sought damages for Charles’s death based on her assertion that Woods negligently caused the accident by driving his tractor-trailer into the southbound lane and colliding head-on with the tractor-trailer being driven by Charles. After several amendments, the complaint finally listed the following defendants: Frances, the Estate of Jessie Woods, Progressive, and Scott Penn. In the complaint, Brown alleges that Frances and Scott Penn are liable for Woods’s negligence under the doctrine of respondeat superior. She sought a declaratory judgment that “[the] [Progressive] automobile liability insurance policies … which named [Scott Penn] as an additional named insured, provided automobile liability insurance indemnity to [Scott Penn], Frances McLean and Jessie Woods, Deceased as ‘insureds’ under said policy for the wreck in question.”

 

Prior to the filing of the lawsuit, neither Scott Penn nor Frances had reported the accident to Progressive. The record reflects that Brown’s attorney notified Progressive about the accident on or about February 15, 2006, which was more than three months after the accident.

 

Brown alleged that the McLeans and Scott Penn were involved in a joint venture to produce wood for International Paper. Later, in a memorandum in support of her motion for summary judgment, Brown abandoned her joint venture argument and stated that “[Scott Penn] is not needed to reach the liability insurance coverage [issue], [since] there is no need to prove agency or joint venture. [Scott Penn’s] Motion for Summary Judgment is confessed as to those issues.”

 

¶ 7. All defendants responded by filing their separate answers in which they generally denied the material allegations of the complaint and asserted affirmative defenses. Progressive and Scott Penn later filed motions for summary judgment. Brown also filed a motion for summary judgment, contending that no genuine issue of material fact existed as to whether the tractor-trailer that she owned, which Woods was driving at the time of the accident, was covered by the policy issued to S & S Trucking for the benefit of Scott Penn.

 

¶ 8. The circuit court denied Brown’s motion for summary judgment, granted Scott Penn’s motion, and dismissed the action against Scott Penn with prejudice, finding that “Defendant Scott Penn, Inc., has no liability to Plaintiff for the accident and/or death at issue.” The circuit court also granted Progressive’s motion, dismissing all of Brown’s claims against it. The circuit court found that no genuine issue of material fact exists as to either Brown’s claims of coverage under the policy issued to S & S Trucking or to Progressive’s claim of non-coverage. The court then entered a judgment in favor of Progressive pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure. It is from this judgment that Brown now appeals.

 

¶ 9. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

 

ANALYSIS AND DISCUSSION OF THE ISSUE

 

¶ 10. Our standard of review as it relates to summary judgment is well settled:

 

[An appellate court] conducts de novo review of orders granting or denying summary judgment and examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996).

 

Henderson v. Un-Named Emergency Room, 758 So.2d 422, 424(¶ 7) (Miss.2000).

 

¶ 11. Brown’s core argument is that the policy issued to S & S Trucking covered hired and non-owned vehicles and that the vehicle that was owned by Frances and driven by Woods at the time of the accident qualifies as either a hired or non-owned vehicle, subject to coverage under the policy. In support of her argument, Brown relies on three things: (1) the certificates of liability insurance issued by Ed Sanford to S & S Trucking indicating that hired and non-owned vehicles were covered under the policy for the period of April 4, 2005, to April 4, 2006; (2) a letter from Progressive to S & S Trucking, dated March 14, 2006, acknowledging the loss that occurred on November 8, 2005, involving Woods, an unlisted operator, and advising that it had added Woods to the policy and assessed a surcharge for the accident; and (3) a renewal declarations page for the policy in question, listing Woods as a rated driver for the renewal period: April 4, 2006, to April 4, 2007.

 

¶ 12. Before we begin our analysis, we make a few pertinent observations and recount some relevant undisputed facts. First, as we have already noted, there is a disclaimer on the face of each of the certificates of liability upon which Brown relies. The disclaimer clearly states: “This certificate is issued as a matter of information only and confers no rights upon the certificate holder. The certificate does not amend, extend or alter the coverage afforded by the [policy] ….“ Second, the March 14, 2006, letter is silent as to retroactivity. Third, notwithstanding the renewal declarations page that was sent to Scott Penn, Scott Penn did not renew the policy that added Woods as an insured driver. Fourth, it is not disputed that Ed Sanford was an agent for Progressive and that he had the apparent authority to issue the certificates. Fifth, Woods was not, and had never been, an employee of Scott Penn. Sixth, at the time of the accident, Scott Penn was not leasing or renting the vehicle that Woods was driving. Seventh, the policy issued by Progressive does not contain a hired vehicle endorsement. Eighth, Scott Penn was dismissed from the lawsuit, and International Paper was never made a party to the lawsuit. Mindful of these observations and undisputed facts, we now address Brown’s contention that the circuit court erred in denying her motion for summary judgment and granting Progressive’s.

 

¶ 13. We first observe that if it were International Paper making a claim for indemnification against Scott Penn or Scott Penn making a claim for coverage, our decision would be more difficult. This is because Scott Penn paid the policy premium and is listed as an additional insured on the policy and the certificates of liability insurance in question were issued to facilitate Scott Penn’s ability to conduct business with International Paper and to protect International Paper from this type of damage claim. However, resolution of this case does not require that we delve into this issue, so we will not engage in dicta.

 

¶ 14. As stated, Brown contends that coverage is extended to her decedent under the policy because of (1) the certificates of liability insurance issued by Ed Sanford to S & S Trucking indicating that hired and non-owned vehicles were covered under the policy for the period of April 4, 2005, to April 4, 2006; (2) a letter from Progressive to S & S Trucking, dated March 14, 2006, acknowledging the loss that occurred on November 8, 2005, involving Woods, an unlisted operator, and advising that it had added Woods to the policy and assessed a surcharge for the accident; and (3) a renewal declarations page for the policy in question, listing Woods as a rated driver for the renewal period: April 4, 2006, to April 4, 2007.

 

¶ 15. We find that Brown’s reliance is misplaced. First, Somrak stated in her deposition that Ed Sanford did not request coverage for hired and non-owned vehicles in the application that he submitted on behalf of Scott Penn, and no such coverage was provided in the policy that was submitted pursuant to the application. Second, it is clear from the face of the certificates of liability insurance that Ed Sanford issued that they do not expand the coverage afforded under the policy because they are not endorsements. Rather, they are intended merely as an explanation of coverage, even though in this instance, they misstated the scope of the coverage. Nevertheless, even if we were to accept that the certificates of liability insurance bound coverage, Brown still cannot prevail. We explain.

 

¶ 16. Chris Scullin, a commercial automobile casualty manager at Progressive, testified via deposition that although the certificates show coverage for hired and non-owned autos, it is Progressive’s position that the vehicle that was driven by Woods does not qualify as an insured vehicle under the definition of a non-owned auto, as defined in the policy, or as a hired vehicle as defined in Progressive’s hired auto endorsement. We have carefully examined the definition of non-owned auto that is contained in the policy and the definition of hired auto as provided in the specimen hired-vehicle endorsement. We agree with Progressive.

 

¶ 17. The hired vehicle endorsement defines a hired auto as “an auto which is not owned by [Progressive], registered in [Progressive’s] name, or borrowed from [Progressive’s] employees and which is obtained under a short-term rental agreement not to exceed thirty (30) days.” Clearly, the vehicle driven by Woods is not covered by this definition. Therefore, there is no need for further discussion of the “hired auto” provision as it relates to coverage. We look now to see whether coverage is provided under the provision for non-owned auto. The policy defines a non-owned auto as follows:

 

“Non-owned auto” means any auto which is:

 

a. not owned by or registered to you, your nonresident spouse or a resident of the household in which you reside;

 

b. not hired, owned by or borrowed from your employees or members of their households; or

 

c. Not hired by you or an employee of yours, and if you are a person, not hired by a resident of the household in which you reside unless it is specifically listed on the policy Declarations.

 

Clearly the vehicle driven by Woods fits within the description of a non-owned auto. However, this is not the end of the discussion, as the policy contains the following rider:

 

EMPLOYERS NON-OWNERSHIP LIABILITY

 

We agree with you that the insurance provided under the Bodily Injury and Property Damage Coverages of the Policy for your insured auto applies to any non-owned auto used in your business by any of your employees, subject to the following provisions:

 

1. Insureds. The “insured” provisions under the Bodily Injury and Property Damage Coverages apply to the insurance provided by this endorsement except that none of the following is an insured with respect to a non-owned auto:

 

a. the owner of a non-owned auto and any agent or employee of that owner.

 

b. an executive officer of yours with respect to an auto owned by him or a member of his household.

 

¶ 18. It is unquestionably clear that, although the vehicle which was involved in the accident in question is a non-owned auto as defined in Scott Penn’s policy, coverage for the vehicle is excluded by the policy because it was owned by Frances and driven by her employee. The non-ownership liability rider specifically provides that the owner of a non-owned auto and the employee of the owner, with respect to the bodily injury and property damage provisions of the policy, are not insureds as that term is defined in the policy.

 

¶ 19. We next address Brown’s contention that the renewal declarations page of the proposed renewal policy and the letter that Progressive sent to Ed Sanford and S & S Trucking raise genuine issues of material fact regarding insurance coverage for Frances’s vehicle that was involved in the accident. We find that there are several reasons why these two facts are not material to the question of whether coverage existed on Frances’s vehicle on the date of the accident. First, as noted, the renewal declarations page that Brown references is for a policy that was set to commence five months after the occurrence of the accident in question. Second, the policy was not renewed. It is true, as Brown argues, that the declarations page lists Woods as a rated driver. However, the policy that was in force on the date of the accident does not list Woods as a rated driver. When the renewal declarations page was prepared on March 15, 2006, it is clear that Progressive was not aware that Woods was deceased because it listed him as a rated driver for a policy period to begin on April 4, 2006, and end on April 4, 2007. The fact that Woods was listed prospectively does not mean that he was covered retroactively, as Brown contends. The question regarding retroactivity brings the discussion to the letter, dated March 14, 2006, that was sent by Progressive to S & S Trucking. The letter reads, in pertinent part, as follows:

 

As already noted, Woods was killed in the accident on November 8, 2005.

 

A loss occurred on the above referenced policy on 11/08/05. Our investigation revealed that the driver at the time of [the] loss was Jesse Woods, an unlisted operator. We have added this driver to the policy along with a surcharge for the accident.

 

¶ 20. Somrak testified that Progressive did not extend coverage to Woods for the accident and that he was added by a customer service representative when the policy came up for renewal. Somrak explained as follows: “The policy was coming up for renewal at this time and that is when our customer service [representative] reviews the policy and noted that there was a loss and there was a loss with an unlisted driver and they were adding him going forward.” Somrak further explained that the customer service representative did not know that Woods was deceased. As for Brown’s contention that Woods was added to the policy retroactively, Somrak was asked the following question: “Okay. Now, before this customer service department issued document 1619, that’s the document where-I’m sorry, 1609, that’s the document where Jesse Woods was added to the policy retroactively for the accident in question?” Somrak responded, “He was not added retroactively.” There is nothing ambiguous about the letter regarding the effective date of coverage for Woods. While the letter stated that a loss had occurred on the policy and that a surcharge had been added, this language merely indicates that a claim had been made against the policy as a result of an accident by an unlisted driver. In no way does this language raise a material issue regarding coverage at the time of the accident.

 

¶ 21. Lastly, Brown has cited several cases that speak to the issue of the proper treatment of ambiguous contracts. We see no need to discuss the holding in any of those cases because we see nothing ambiguous about the policy provisions in question. Additionally, Brown also has cited cases from another jurisdiction which construe the phrases “hired auto” and “non-owned auto” in policies that provide bodily injury and property damage to persons engaging in logging operations. It is sufficient to say that we have examined each of those cases and find that they are easily distinguishable in that they do not contain the employer’s non-ownership liability rider as does the policy in the case before us.

 

¶ 22. In conclusion, we find that the circuit court did not err in finding that no genuine issue of material fact exists with respect to whether Frances or her employee, Woods, are covered under the policy issued to S & S Trucking with Scott Penn listed as an additional insured. We further find that the circuit court did not err in finding that the policy issued to S & S Trucking provides no coverage for Frances or Woods. Therefore, we affirm the judgment of the circuit court granting summary judgment in favor of Progressive and denying Brown’s motion for summary judgment.

 

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

 

KING, C.J., MYERS, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON and MAXWELL, JJ., concur. LEE, P.J., Not Participating.