MEMORANDUM AND ORDER
This is an insurance coverage dispute. In 1999, Plaintiff TIG Insurance Company (“TIG”) paid $235,000 in settlement of a claim brought against its insured, Plaintiff Safety Lights Sales & Leasing, Inc. (“Safety Lights”). 1 Plaintiffs seek to recover from Lumbermens Mutual Casualty Company (“Lumbermens”) this sum, as well as $38,685.02 in attorneys’ fees paid by TIG *594 on behalf of Safety Lights, claiming that Safety Lights had primary or concurrent coverage under an insurance policy issued by Lumbermens. Plaintiffs have also sued Sedgwick James of Washington (“Sedg-wick”), the insurance broker who represented to Safety Lights that it was insured by Lumbermens. All parties have moved for summary judgment. See Plaintiffs’ Motion for Summary Judgment [Doc. # 36] (“Plaintiffs’ Motion”); Defendant Lumbermens Mutual Casualty Company’s Motion for Summary Judgment [Doc. #33] (“Lumbermens’ Motion”); Defendant Sedgwick James’ Motion for Summary Judgment [Doc. # 35] (“Sedgwick’s Motion”). Having considered the parties’ briefs, all matters of record and the аpplicable authorities, the Court concludes that Plaintiffs Motion should be denied; and Defendant Lumbermens’ Motion should be granted. The Court further concludes that Plaintiffs’ claims against Sedgwick fail as a matter of law and Defendant Sedg-wick’s Motion should be granted.
I. BACKGROUND FACTS
Between 1996 and 1998, Lumbermens provided commercial general liability insurance to Corporate Express, Inc. Sedgwick was an insurance broker. Lumbermens authorized Sedgwick to solicit certain types of insurance on Lum-bermens’ behalf. Sedgwick was also authorized, on a limited basis, to enter into binders for insurance contracts on behalf of Lumbermens. See Agency Agreement, Ex. 1 to Affidavit of Richard Otto (Ex. B to Lumbermens’ Motion) (“Otto Affidavit”). Sedgwick was the insurance broker for Corporate Express, Inc. and its affiliates.
For the time in issue, Lumbermens issued two commerciаl general liability (“CGL”) insurance policies to Corporate Express, Inc. and its affiliates. The first policy, Policy No. 5AA 038 362 00 (“Policy 362'00”), provided coverage from December 31, 1996 until February 28, 1998. See Ex. A to Lumbermens’ Motion. The named insureds on that policy were U.S. Delivery Systems, Inc. and its subsidiaries, United Transnet, Inc. and its subsidiaries, and Corporate Express, Inc. (the parent company of U.S. Delivery Systems and United Transnet). Policy 362 00 contains no provision for additional insured coverage.
Lumbermens also issued CGL Policy No. 5AA 038 300 01 (“Policy 300 01”). That policy provided coverage from February 28, 1997 until February 28, 1998. The named insured on the policy was Corporate Express, Inc., including its subsidiaries. However, Corporate Express Delivery Systems, Inc. (“CEDS”) and its subsidiaries specifically were excluded from coverage under the “named insured” provision of Policy 300 01. See Ex. B tо Sedgwick’s Motion. Policy 300 01 provided additional insured coverage to persons or organizations “where required by written or oral contract” with respect to “liability arising out of your [the named insured’s] operations or premises owned by or rented to you [the named insured].”
U.S. Delivery Systems is a subsidiary of CEDS. Therefore, U.S. Delivery Systems was insured only under Policy 362 00, and was expressly excluded from coverage under Policy 300 01. Via Net is a U.S. Delivery Systems Houston subsidiary, and, therefore, also was insured only under Policy 362 00.
One of Via Net’s customers was Safety Lights. In March 1996, Safety Lights sent a letter to Via Net, stating that Via Net was required to produce a certificate of insurance for (among other things) general and auto liability in order to remain a vendor with Safety Lights. The letter also stated that the certificate of insurance should evidence “waiver of subrogation and additional insured in favor of Safety *595 Lights Company” within fifteen days. See Letter from Judy Messer, Safety Lights Co., to Via Net, March 19, 1996 (Ex. G to Plaintiffs’ Mem.).
In February 1997, Sedgwick issued a certificate of insurance to Safety Lights as “holder.” The certificate lists Via Net and U.S. Delivery Systems as the insureds under Policy 362 00. The top of the certificate states, “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 afforded by the policies below.” See Certificate of Insurance (Ex. D to Plaintiffs’ Mem.). The bottom of the certificate contains the statement, “Certificate holder [Safety Lights] is added as additional insured re: general liability.”
On June 25, 1997, Guy Wright, an employee of U.S. Delivery Systems, Inc., 2 was injured while delivering a steel plate to Safety Lights. Wright’s hand was crushed during unloading when Safety Lights personnel dropped the plate. Wright sued Safety Lights. On October 27, 1997, counsel for Safety Lights in Wright’s litigation (the “Wright suit”) notified Sedgwick of the suit and requested a defense and indemnification pursuant to the representation of additional insured status on the certificate of insurance. See Letter from Reid Gettys to Lori Lang, October 27, 1997 (Ex. E to Plaintiffs’ Mem.). On December 5, 1997, Dennis Cupp of on behalf of Lumbermens 3 wrote back to Gettys, stating that Safety Lights was not an additional insured under any policy issued by Lumbermens to U.S. Delivery Systems. See Letter from Dennis Cupp to Reid Get-tys, December 5, 1997 (Ex. F to Plaintiffs’ Mem.).
The Wright suit against Safety Lights was eventually settled in November 1999 for $235,000. Defense costs for Safety Lights were $38, 685.02, which TIG paid.
On February 10, 1999, TIG filed suit against Sedgwick and Lumbermens in Texas state court. Defendant Lumber-mens removed the сase to this Court on March 30, 1999. In their amended complaint, Plaintiffs TIG and its insured Safety Lights seek a declaration that Defendants were obligated to defend and indemnify in the Wright suit. In the alternative, Plaintiffs seek reformation of Policy 362 00 to conform to the “intent of the parties” to provide coverage for Safety Lights under that insurance policy. Plaintiffs also allege violations of the Texas Insurance Code and the Texas Deceptive Trade Practices Act (“DTPA”), breach of contract, negligence and negligent misrepresentation, breach of the duty of good faith and fair dealing, and fraud. Plaintiff TIG also claims it is entitled to contractual and equitable subro-gation. 4 See Plaintiffs’ First Amended Original Complaint [Doc. # 21] (“Complaint”). Plaintiffs, Lumbermens and Sedgwick each have moved for summary judgment on all claims.
*596 II. SUMMARY JUDGMENT STANDARD
In deciding a motion for summary judgment, the Court must determine whether “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c);
Celotex Corp. v. Catrett,
The party moving for summary judgment has the initial burden of demonstrating the absence of a material fact issue with respect to those issues on which the movant bears the burden of proof at trial. The movant meets this initial burden by showing that the “evidence in the record would not permit the nonmovant to carry its burden of proof at trial.”
Smith,
III. DISCUSSION
A. Liability of Lumbermens for Coverage Under Policy 362 00 and Claim of Reformation
Plaintiffs claim that Defendant Lumber-mens should provide coverage under Policy 362 00 under various theories. For the reasons disсussed below, Plaintiffs’ arguments are unavailing.
1. Certificate of Insurance
Plaintiffs contend that the certifícate of insurance issued to them by Sedgwick, which states that Safety Lights is an additional insured under Policy 362 00, creates insurance coverage under Policy 362 00.
It is well-established under Texas law that when a certificate of insurance contains language stating that the certificate does not amend, extend, or alter the terms of any insurance policy mentioned in the certificate, the terms of the certificate are subordinate to the terms of the insurance policy. The certificate of insurance will not suffice to create insurance coverage if such coverage is precluded by the terms of the policy.
See generally Warn v. Metropolitan Life Ins. Co.,
In
Granite,
the plaintiff contractor was furnished with a certificate of insurance stating that he was an additional insured under the hiring company’s general liability policy. The certificate of insurance stated on its face that coverage was “subject to all terms, exclusions and conditions” of the underlying insurance policy.
Id.
at 428. The insurance policy limited additional insured coverage to “liability arising out of operations performed for [the additional] insured by or on behalf of the named insured.”
Id.
The plaintiff contractor attempted to claim insurance coverage for damages arising out of an accident not within the policy’s additional insured provision. The court held that there was no coverage, noting that “by its very language, [the certificate] specified that the insurance coverage was that provided by, but subject to the terms, exclusions and conditions of, the named insured policies.”
Id.
at 429. The court held that “the insurance afforded [plaintiff] is provided by the insurance policies, not by the certificate of insurance.”
Id.
at 430.
See also CIGNA Ins. Co. of Texas v. Jones,
The certificate of insurance issuеd by Sedgwick clearly states that the certificate is issued “as a matter of information *598 only,” and that it does not purport to “amend, extend, or alter” the terms of any insurance policies listed therein. Policy 362 00 does not make any provision for additional insured coverage. As explained in Granite, a certificate of insurance cannot create insurance coverage when the underlying policy does not provide for coverage. Plaintiffs do not cite any Texas authority to support their contention that the certificate of insurance per se creates a contract with a carrier for insurance coverage for the holder of the certificate, such as Safety Lights.
Plaintiffs contend that they never received a copy of Policy 862 00, and that they relied upon Sedgwick’s representations of coverage on thе certificate of insurance. This argument does not change the result. Plaintiffs have cited no Texas authority for the proposition that one may reasonably rely on the text of the certificate of insurance in lieu of the policy language, nor is the Court aware of such authority. Indeed, the above-cited cases support the practical result that the holder of a certificate of insurance should obtain the insurance policy to ascertain his coverage.
Therefore, the Court concludes that Plaintiffs are not entitled to insurance coverage by virtue of the certificate of insurance issued by broker Sedgwick.
2. Mutual Mistake
Plaintiffs also argue that Policy 362 00 is “incomplete” and that it does not “reflect the underwriting intent that it include a blanket additional insured endorsement.” Plaintiffs’ Reply to Defendant Lumber-mens Response to Plaintiffs’ Motion for Summary Judgment, at 6. Plaintiffs seek reformation of Policy 362 00 to include an additional insured provision.
Under Texas law, insurance policies are interpreted and construed according to the rules applicable to contracts generally.
National Union Fire Ins. Co. v. CBI Industries,
Plaintiffs contend that the absence of a blanket additional insured provision in Policy 362 00 was the result of a mutual mistake among Lumbermens, Sedgwick, and Corporate Express. When a party alleges mutual mistake, the court should not interpret the language contained in the contract but should determine whether the contract itself is valid.
Williams v. dash,
Texas courts have clarified that the doctrine of mutual mistake should not be made freely available because parties must be able to depend upon the finality of their written contracts.
Williams,
Plaintiffs have not produced evidence that establishes — or raises a genuine fact question of-a mutual mistake between the original parties to Policy 362 00. Plaintiffs point to correspondence in February and March 1996 between Sedgwick and Lum-bermens personnel regarding the Corporate Express, Inc. account. See Ex. Q to Plaintiffs’ Mem., Letter from Dudley Johnson, Sedgwick James of Washington, to Richard Otto, Kemper National Insurance Company, March 18, 1996; Memorandum from Lisa Christensen and Dick Otto, Kemper National Insurance Companies, to Dudley Johnson, Sedgwick James of Washington, February 29, 1996. The correspondence, referring generally to “Corporate Express, Inc.,” reflects that the parties agreed upon the wording of аn “additional insured” endorsement providing additional insured coverage “as required by written or oral contract.” See id. However, the correspondence does not identify the policies, dates of coverage, or lines of insurance to which the additional insured provision would apply. 6 Indeed, Policy 300 01 does contain an additional insured endorsement, providing additional insured coverage where required by written or oral contract, for liability arising out of the named insured’s operations or premises. The correspondence on which Plaintiffs rely does not thus establish that the parties to Policy 362 00 intended to include a similar additional insured provision in that Policy.
Plaintiffs also rely on evidence produced by Defendant Sedgwick in response to Plaintiffs’ Motion for Summary Judgment. Sedgwick takes thе position that the representations on the certificate of insurance are correct. 7 See Defendant Sedgwick’s Response to Plaintiffs’ Motion for Summary Judgment (“Sedgwick’s Response”), at 2. Carly List, a Sedgwick account manager for the Corporate Express, Inc. account, states that the insurance policy for United Transnet was intended to be subject to the terms and conditions of other policies issued to Corporate Express, Inc. entities. 8 See Affidavit of Carly List (“List Affidavit”), attached to Sedgwick’s Response. As evidence, List refers to a letter she sent to Richard Otto (of Kemper) on December 16, 1996. See Ex. A to List Aff. However, the letter nowhere mentions additional insured coverage under the United Transnet policy, and thus List’s intention at the time was not clearly expressed. 9 Most importantly, List’s Decembеr 16, 1996 letter simply does not constitute clear evidence demonstrating *600 that Lumbermens intended Sedgwick to issue certificates of insurance evidencing additional insured status for Safety Lights or any others under Policy 362 00.
List also states in her affidavit that it was her understanding that Policy 362 00 would be subject to the terms and conditions of Policy Nos. 5AA 038 300 00 (“Policy 300 00”) and 5AA 038 301 00 (“Policy 301 OO”).
10
She states that both policies included an additional insured provision.
11
Consistent with List’s and Sedgwick’s position in this case, Sedgwick issued a “Confirmation of Placement” dated February 27, 1997, to CEDS stating that Policy 362 00, among others issued to CEDS, was “subject to policy terms, conditions, limitations, and exclusions contained in polices 6AA 038 300 00 and 5AA 038 301 00.”
See
Confirmation of Placement, Ex. B to List Affidavit. The “Confirmation of Placement,” however, is a document issued by Sedgwick to CEDS, and contains no indication that
Lumbermens
agreed to the brоad provisions therein, or intended specifically to include an additional insured provision in the new Policy 362 00 for CEDS and its subsidiaries. Evidence of a unilateral mistake will not suffice to invalidate a contract or permit reformation on the basis of mutual mistake.
Wallerstein,
List also states in her affidavit that Lumbermens employees, when notified of the Wright suit, were concerned with whether Safety Lights was an additional insured pursuant to oral or written contract. See List Aff., at 2; see also Letter from Dennis Cupp to Reid Gettys, December 5, 1997 (noting that Safety Lights is not an additional insured under any Lum-bermens policy but also asking attorneys for Safety Lights if any oral contract [with a named insured on a Lumbermens policy] for additional insured status existed). Lumbermens’ inquiries were made by employees different from those responsible for negotiating the policy coverаge. These inquiries, after the accident for which coverage is sought, are not probative evidence of Lumbermens’ intent when entering into the insurance contract. 12
*601 The Court concludes that Plaintiffs have failed to carry their burden to show a genuine fact issue exists that there was a mutual mistake as to additional insured coverage in Policy 362 00. Therefore, the Court finds that Policy 362 00, as written, is unambiguous in its exclusion of additional insured coverage. Plaintiffs’ claim for reformation of that policy fails.
3. Vicarious Contractual Liability
Finally, Plaintiffs contend that Sedgwick falsely represented that Safety Lights was covered under Policy 362 00. Plaintiffs argue that Sedgwick acted as Lumber-mens’ recording agent, that Sedgwick had actual or apparent authority to commit to insurance terms for Lumbermens, and that Lumbermens is bound by Sedgwick’s representatiоns. The Court is unpersuaded.
Agents and Brokers Distinguished.
— Texas courts have distinguished the duties and abilities, of recording agents, soliciting agents, and brokers. A recording agent is an agent of an insurance company who is authorized to “write, sign and execute insurance policies and to bind the insurer.”
Celtic Life Ins. Co. v. Coats,
Texas courts also recognize the classification of “insurance broker.” As a general rule, an insurance broker is considered to be the agent of the insured, not the insurer.
See Continental Casualty Co. v. Bock,
Actual Authority. — Sedgwick and Lumbermens contend that Sedgwick lacked both actual and apparent authority to commit Lumbermens to the insurance terms in issue here. In his affidavit, Richard Otto, underwriting director for the Lumbermens Risk Management Group, states that Sedgwick was not a soliciting or recording agent for Lumbermens. . See Otto Aff., ¶ 4. Sedgwick also disavows a role as an agent of Lumbermens, claiming instead that it acted as the insurance broker for Corporate Express. See Whitters Aff.
The documentary evidence of record is not consistent with all Defendants’ contentions. The Agency Agreement between Sedgwick and Lumbermens clearly shows that Sedgwick was an agent for Lumber-mens to a limited extent and with limited authority. Sedgwick was authorized to solicit various types of insurance on behalf *602 of Lumbermens, including general liability-insurance. See Agency Agreement (Ex. 1 to Otto Affidavit), ¶ 1. The Agency Agreement also states that Sedgwick is authorized, on a limited basis, to “bind [Lumber-mens] respecting contracts of insurance” “to the extent specific authority is granted in schedule(s) attached.” Id. ¶ 2. The pertinent schedule shows that Sedgwick had authority to issue certain binders for insurance on behalf of Lumbermens. Regarding commercial general liability insurance, Sedgwick was authorized to issue a binder for insurance of up to $300,000. See Agency Agreement and attached schedule (second page). 13 The Agency Agreement thus gives Sedgwick authority to issue insuranсe binders, but not actual insurance policies. Policy 362 00 was a CGL policy, with coverage of $10,000,000 in the aggregate and a single occurrence limit of $1,000,000. See Ex. A to Lumber-mens’ Motion. Sedgwick was not actually authorized on Lumbermens’ behalf to make binding representations to cover additional insureds under Policy 362 00. The early 1996 correspondence between Sedg-wick and Lumbermens produced in Plaintiffs’ Exhibit Q supports this conclusion: The parties’ correspondence detailed certain aspects of negotiations regarding the Corporate Express, Inc. policies and thus corroborates the conclusion that Sedgwick lacked the authority to set the limits, wording, and particulars of the risks Lum-bermens would accept in this large and complicated insurance package. Thus, Plaintiffs have nоt established a genuine question of fact that Sedgwick had actual authority to bind Lumbermens with representations which enlarged, waived, or otherwise altered the terms of Policy 362 00.
Apparent Authority.
— Plaintiffs alternatively contend that Sedgwick had apparent authority to bind Lumbermens, at least to the additional insured provision that Safety Lights was led to believe was provided by Sedgwick for Lumbermens. In determining whether ' an agent possessed apparent authority, a court must look only at the acts of the alleged principal.
Morris,
Plaintiffs claim that Lumbermens permitted Sedgwick to issue certificates of insurance without Lumbermens’ prior approval, and that this permission constitutes a grant of apparent authority. This argument is unavailing. A person purporting to rely on an agent’s apparent authority must have reasonably believed, based on the acts of the principal, that the agent had authority for the acts in issue. The
principal
must make some manifestation to the plaintiff, a
third party
to the agency relationship, that he is conferring the relevant authority upon the alleged agent.
Ebner v. First State Bank of Smithville,
Therefore, the Court rejects Plaintiffs’ vicarious liability arguments.
4. Other Claims Against Lumber-mens
Having concluded that Plaintiffs have failed to establish or to raise a genuine fact question that Sedgwick was Lumbermens’ actual or apparent agent for purposes relevant to the issues before the Court, the Court also concludes as a matter of law that Plaintiffs’ claims that Lumbermens negligently or fraudulently misrepresented coverage are legally insufficient. Plaintiffs point to no statements by Lumbermens or its agents that were incorrect or false.
To the extent Plaintiffs also assert other claims based on Lumbermens’ failure to defend or indemnify in the Wright suit, those claims fail as a matter of law, since Plaintiffs have failed to show entitlement to coverage under Policy 362 00. The Court therefore concludes that Lumber-mens is entitled to summary judgment on Plaintiffs’ claims for breach of contract and breach of the duty of good faith and fair dealing for failure to defend or indemnify. Furthermore, Plaintiff TIG’s claims for contractual and equitable subrogation are moot and therefore must be dismissed.
B. Misrepresentation Claims Against Sedgwick
Plaintiffs have alleged that Sedgwick’s issuance of the certificate of insurance certifying that Safety Lights was an addition-, al insured under Policy 362 00 constitutes an actionable affirmative misrepresentation. Plaintiffs have pled common law negligent misrepresentation and fraud, as well as violations of Article 21.21 of the Texas Insurance Code and Section 17.46 of the DTPA.
1. Negligent and Fraudulent Misrepresentation
In order to prevail on a claim of negligent or fraudulent misrepresentation, a plаintiff must show that he reasonably relied upon the defendant’s false representations.
See American Tobacco Co. v. Grinnell,
“A claim for misrepresentation can not stand when the party asserting the claim is legally charged with knowledge of the true facts.”
Shindler v. Mid-Continent Life Ins. Co.,
The Court concludes that Safety Lights, claiming to be an additional “insured” under Policy 362 00, should be held to the same obligation as a named insured to review a policy of insurance on which it seeks to rely, and its reliance solely on the agent’s certificate of insurance is not reasonable under the circumstances presented by the admissible evidence. While the *604 cited cases do not involve additional insureds, there is no admissible evidence to suggest that Safety Lights, had it made the request, would have been unable to obtain and read the insurance policy in issue. 14 Indeed, had the request been made, it is likely that the issues of which CGL insurance policy applied to U.S. Delivery Services and whether an additional insured was permitted would have been detected in a timely fashion.
Moreover, Safety Lights, the holder of a certificate of insurance, was warned it was not entitled to rely on the certificate itself for coverage.. The certificate stated to the holder that the certificate did not create coverage.
See Granite,
Thus, the Court finds that Plaintiffs’ reliance upon Sedgwick’s representation of Safety Lights’ additional insured status was not reasonable. Accordingly, as a matter of law, Plaintiffs’ claims for negligent and fraudulent misrepresentation fail. 16
2. Statutory Claims
Section 4 of Article 21.21 of the Texas Insurance Code and Section 17.46 of the DTPA prohibit the making of any statement misrepresenting the terms of any insurance policy.
See
TX. INS. CODE art. 21.21, § 4(1); TX. BUS. & COM. § 17.46. Since amendments enacted in 1995, in order to state a claim for misrepresentation under the DTPA or Article 21.21 or DTPA, a plaintiff must show a misrepresentation upon which he relied which was the producing cause of economic damages. TX. BUS. & COM. § 17.50(a);
see American Home Shield of Texas, Inc. v. Kortz,
Section 17.45(11) of the DTPA defines economic damages to mean “damages for pecuniary loss, including costs of repair and replacement. The term does not include exemplary damages.” Defendant
*605
Sedgwick contends that Safety Lights cannot state a claim under the DTPA because it has incurred no economic damages. The Court agrees. Safety Lights’ damages and expenses related to the
Wright
suit were entirely born by TIG. There is no evidence in the record of any economic damage suffered by Safety Lights. Therefore, Safety Lights’ DTPA and Article 21.21 claims fail as a matter of law. While TIG in its own right suffered an economic loss, Plaintiff TIG brings this suit only under its rights of subrogation under the insurance policy it issued to Safety Lights.
See
Complaint [Doc. # 1], ¶ 2. Subrogation is the “substitution of one person in the place of another as to a lawful right or claim.”
In re Texas Property and Casualty Ins. Guaranty Co.,
*606 IV. CONCLUSION
The Court, on the available summary judgment record, holds as a matter of law that Plaintiffs have failed to establish a genuine fact question that additional insured coverage exists under Policy 362 00. The certificate of insurance Sedgwick issued to Safety Lights does not create insurance coverage from Lumbermens where the Policy actually issued provides for none. Plaintiffs have failed to carry their burden to show (or create a genuine fact issue) that there was a mutual mistake in the drafting of Policy 362 00. Plaintiffs therefore cannot show they were entitled to reformation of that contract. Plaintiffs have also failed to establish or raise a genuine question that Sedgwick had authority, actual or apparent, to bind Lumbermens to provide additional insured coverage to Safety Lights. Lumbermens cannot as a matter of law be liable for any negligent misrepresentatiоns, fraudulent misrepresentations, or misrepresentations made in violation of Article 21.21 of the Texas Insurance Code or the DTPA that Sedgwick may have made. Because there is no coverage for Safety Lights under Policy 362 00, Plaintiffs’ claims for defense and indemnity under the policy are dismissed as moot. Plaintiff TIG’s claim for payment on the basis of subrogation also fails.
The Court also concludes that Plaintiffs have failed to produce probative evidence sufficient to establish all the elements of their claims that Sedgwick is liable for any negligent, fraudulent, Article 21.21 or DTPA misrepresentations. It is therefore
ORDERED that Plaintiffs’ Motion for Summary Judgment [Doc. # 36] is DENIED;
ORDERED that Defendant Lumber-mens’ Motion for Summary Judgment [Doc. # 33] is GRANTED; and
ORDERED that Defendant Sedgwick James’ Motion for Summary Judgment [Doc. # 35] is GRANTED.
A separate final judgment will be entered forthwith.
Notes
. Plaintiff TIG brings this suit in the name of Safety Lights under TIG's rights of subrogation.
. The reсord is unclear if Wright worked for Via Net, or U.S. Delivery Services. The distinction does not appear material.
. Cupp actually was employed by Kemper Risk Management Services, an affiliate of Kemper National Insurance ("Kemper”), the parent company of Lumbermens. The Court refers to these companies interchangeably, adopting the parties' practice in the documents submitted as part of the summary judgment record.
.Plaintiffs do not differentiate between the Defendants in the Complaint. However, from the Complaint and oral argument held January 18, 2001, it appears that the only claims applicable to Sedgwick, as an insurance broker, are the claims for violation of the Texas Insurance Code, the DTPA, negligence, misrepresentation and fraud.
. Sebasto, and RNA Investments are not published cases; therefore, under Tex.R.App. P. 47.7, the opinions are not to be cited as binding authority. The Court nevertheless finds their reasoning to be persuasive.
. While Johnson's March 18, 1996 Memorandum to Otto also refers to "U.S. Delivery customers,” there is no acknowledgment by Kemper for Lumbermens that Lumbermens ultimately agreed to the additional insured provision as to U.S. Delivery.
. Sedgwick states that copies of certificates of insurance issued were forwarded to Lumber-mens in the normal course of business. See Affidavit of Kristoffer Whitters (Ex. A to Sedg-wick's Motion) ("Whitters Affidavit”). Lum-bermens denies that it received the certificate of insurance showing Safety Lights as an additional insured under Policy 362 00. See Otto Aff., 11 5.
. List does not mention specific policy numbers. The Court notes that United Transnet, Inc. was also a named insured, along with U.S. Delivery Systems, Inc., on Poliсy 362 00. However, in the absence of any mention of Policy 362 00 in List's affidavit or supporting correspondence, the Court cannot assume that references to policy provisions for United Transnet were also meant to apply to U.S. Delivery Systems. United Transnet is a separate entity from Via Net and its parent, U.S. Delivery Systems.
. Otto's reply to List's oblique reference in her letter to certificates of insurance is vague at best: "I am in agreement with the exception of certificates. We have agreed on how *600 to issue certificates.” Id. There is no evidence of record as to the substance of the parties’ agreement, or whether it applied to Policy 362 00.
. In its motion for summary judgment, Sedgwick states that it issued thousands of certificates of insurance evidencing additional insured status for Corporate Exprеss. See Whitters Aff. However, Sedgwick states that it issued these certificates pursuant to Policy 300 01. Id. Sedgwick nowhere mentions in its own Motion for Summary Judgment that it issued, correctly or incorrectly, certificates showing additional insured status under Policy 362 00, other than the single certificate issued to Safety Lights. Counsel for Sedg-wick asserted in oral argument that other certificates were issued under Policy 362 00, but there is no evidence of this in the record.
. Policy 300 00, covering Corporate Express, Inc. from February 1996 to February 1997, contains an additional insured provision providing coverage where required by oral or written contract for liability arising out of the named insured’s operations or premises. See Exs. I & J to Plaintiffs' Mem. No party has produced a copy of Policy 301 00. Both policies are distinct from Policy 300 01, previously mentioned, which contained an additional insured clause but excluded CEDS and its subsidiaries (including Via Net).
. At best, this proof is a mere scintilla of evidence insufficient to raise a genuine question of fact to preclude summary judgment.
See Doe v. Dallas Independent School District,
. All counsel at oral argument concurred that this is the correct interpretation of the Agency Agreement. See Agency Agreement, Schedule, at 1-2. The schedule states, “Agent may issue binders for the insurance and within the limits herein stated.’’
. There is no evidence in the record to demonstrate- that Safety Lights ever attempted to obtain a copy of what it was told was the applicable policy prior to the Wright suit. Sedgwick's counsel, in oral argument, alluded to a lengthy delay in Lumbermens providing a copy of Policy 362 00 to Sedgwick, and that the policy that ultimately arrived unexpectedly did not contain an additional insured clause. See also List Aff., at 2. However, the record on these matters is incomplete. In any event, there is no evidence that this delay is an excuse for Safety Lights' failure to check, or at least to verify, the coverage.
. Moreover, while the certificate stated that Safety Lights was an additional insured, it did not state the terms and conditions of additional insured coverage. If Policy 362 00 had'in fact contained an additional insured provision, but one that excluded coverage for the liability ultimately incurred by Safety Lights, Safety Lights would not be entitled to coverage merely by virtue of the representation of additional insured status on the certificate.
.In addition, Plaintiffs have not offered any evidence to show that Sedgwick made the misrepresentation of coverage knowingly or recklessly, as is required for a claim of fraudulent misrepresentation.
Johnson & Higgins v. Kenneco Energy Inc.,
. Sedgwick asserts an alternative basis for dismissal of Plaintiffs' DTPA and Insurance Code claims, namely that Plaintiffs do not satisfy the reliance requirement for these causes of action. Since 1995, reliance has been an essential element of these claims. TX. BUS. & COM. § 17.50;
American Home Shield of Texas, Inc.,
The Court need not and does not reach the issue of reliance as to the DTPA and Article 21.21claims in this case. However, as noted in the discussion on Plaintiffs' fraud and negligent misrepresentation claims against Sedg-wick, in Texas, a named insured is held to have notice or constructive knowledge of all provisions in the policy of insurance.
See Ruiz,