EVANSTON INSURANCE COMPANY, Plaintiff-Appellant/Cross-Appellee v. LEGACY OF LIFE, INC., Defendant-Appellee/Cross-Appellant, 487 F. App'x 163

PER CURIAM: We explained this case’s factual background and the issues involved in a prior opinion. Evanston Ins. Co. v. Legacy of Life, Inc., 645 F.3d 739 (5th Cir.2011) (.Ev-anston I). In that opinion, we explained that this “Texas law diversity case involves important and determinative questions of Texas law as to which there is no controlling Texas Supreme Court precedent,” id. at 741, therefore we certified the following questions to the Supreme Court of Texas pursuant to Texas Constitution Art. 5, § 3-C and Texas Rule of Appellate Procedure 58.1: 1.

Does the insurance policy provision for coverage of “personal injury,” defined therein as “bodily injury, sickness, or disease including death resulting therefrom sustained by any person,” include coverage for mental anguish, unrelated to physical damage to or disease of the plaintiffs body? 2.

Does the insurance policy provision for coverage of “property damage,” defined therein as “physical injury to or destruction of tangible property, including consequential loss of use thereof, or loss of use of tangible property which has not been physically injured or destroyed,” include coverage for the underlying plaintiffs loss of use of her deceased mother’s tissues, organs, bones, and body parts? Id. at 751. The Supreme Court of Texas answered both questions in the negative. Evanston Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d 377, 379-80 (Tex.2012).

Because the insurance policy does not include coverage for the claims alleged against Legacy of Life, Inc. in the underlying lawsuit, the district court erred in concluding that Evanston Insurance Company had a duty to defend Legacy in that lawsuit. The conclusion that Evanston has no duty to defend Legacy in the underlying lawsuit resolves all remaining issues before this court. See Evanston I, 645 F.3d at 751. Accordingly, we REVERSE the district court’s grant of declaratory and partial

summary judgment in favor of Legacy and RENDER judgment in favor of Evanston and against Legacy on their respective declaratory judgment claims. We AFFIRM the district court’s dismissal of Legacy’s remaining counterclaims asserted in its amended answer and the district court’s order denying Legacy’s request for attorneys’ fees in the present lawsuit. We VACATE the district court’s order requiring Evanston to pay the costs of this suit. 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.