Calvert, Connie v. State Farm Lloyds

• Court: Court of Appeals of Texas
• Decided: June 8, 2000
• Docket: 13-99-00172-CV
• Status: Published

Opinion

NUMBER 13-99-172-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

CONNIE CALVERT, Appellant,

v.

STATE FARM LLOYDS, Appellee.

___________________________________________________________________

On appeal from the County Court at Law No. Three of Nueces County, Texas.

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O P I N I O N

Before Justices Seerden, Chavez, and Rodriguez

Opinion by Justice Chavez

Appellee State Farm Lloyds provided homeowner's insurance for appellant Connie Calvert. Calvert noticed cracks in the foundation and walls of her house, and also in the outer walls of an above ground jacuzzi in her backyard. Calvert filed a claim with State Farm, and State Farm hired consultants to perform inspections at Calvert's home and to determine the cause of these cracks. The consultants noted a leak in a plumbing line connecting to a wet bar inside the house, and also a plumbing leak within the walls of the jacuzzi. Although recommending that the leaks be fixed, the consultants concluded that climactic forces, not the plumbing leaks, were responsible for the cracks in Calvert's house and jacuzzi. Fixing both leaks would involve some expense in breaking through walls to access the leaks. State Farm paid to access the leaking plumbing connecting to the wet bar, but denied all other claims on the ground that they were not covered under Calvert's homeowner's policy.

Calvert brought suit over the denial of her claim for damages to the jacuzzi, alleging breach of contract and that State Farm had denied her claim in bad faith. State Farm moved for summary judgment, which was granted. We affirm the judgment of the trial court.

The standard of review in a summary judgment case is well-established:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

American Tobacco Co. v. Grinell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

Calvert was covered under Form B of the Standard Homeowner's Policy. "Coverage A (Dwelling)" of that policy includes coverage for the "dwelling" as well as "other structures on the residence premises set apart from the dwelling by clear space." Calvert's jacuzzi is clearly such a structure.

However, among the exclusions to the policy is this provision:We do not cover loss under Coverage A (Dwelling) caused by settling, cracking, bulging, shrinkage, or expansion of foundations, walls, floors, ceilings, roof structures, walks, drives, curbs, fences, retaining walls or swimming pools.

The Texas Supreme Court has determined, however, that this exclusion is repealed by a provision of the "Perils Insured Against" section of the policy for situations where the damage is caused by plumbing leaks. See Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 742 (Tex. 1998). The provision of the "Perils Insured Against" section provides coverage for damage caused by:

Accidental Discharge, Leakage, or Overflow of Water or Steam from within a plumbing, heating or air conditioning system or household appliance. A loss resulting from this peril includes the cost of tearing out and replacing any part of the building necessary to repair or replace the system or appliance. But this does not include loss to the system or appliance from which the water or steam escaped. (Bold type in original.)

In this case, the uncontroverted conclusion of the consultants hired by State Farm was that the cracks in the outer walls of the jacuzzi were not caused by a plumbing leak. Therefore, the "exclusion repeal" for plumbing leaks discussed in Balandran does not provide coverage under the facts of this case. Furthermore, because the walls of the jacuzzi are part of the "system or appliance from which the water or steam escaped," the policy does not provide coverage for the expense of breaking into the jacuzzi walls to repair the leaking plumbing.

We conclude that no coverage is provided under Calvert's policy, and the trial court did not err in granting summary judgment to State Farm. The judgment of the trial court is affirmed.

MELCHOR CHAVEZ

Justice

Do not publish.

TEX. R. APP. P. 47.3.

Opinion delivered and filed this

the 8^th day of June, 2000.