Chris Harrison v. U.S.A.A. Insurance Company

• Court: Court of Appeals of Texas
• Decided: April 19, 2001
• Docket: 03-00-00362-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-00-00362-CV

Chris Harrison, Appellant

v.

U.S.A.A. Insurance Company, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT

NO. 99-08536, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING

This appeal arises from a dispute over coverage under a homeowner's insurance policy. The trial court rendered a summary judgment in favor of appellee U.S.A.A. Insurance Company ("USAA") on appellant's causes of action against it. We affirm the trial court's judgment.

Factual and Procedural Background

The parties do not dispute the facts in this case. Chris Harrison, a homeowner insured by USAA, noticed that the caulking at the juncture between her bathtub and the tile above it had deteriorated. The deterioration allowed water sprayed from the shower head to seep through the caulking to the surrounding wooden structure, causing it to rot. Harrison replaced the sheetrock, floor joists, and beams that had rotted, as well as wall tile and flooring in the bathroom that was supported by rotted wood, and sought coverage from USAA under her homeowner's insurance policy. Following USAA's denial of coverage, Harrison sued USAA for breach of contract, breach of the duty of good faith and fair dealing, and violations of the Insurance Code. USAA filed both a traditional and a no-evidence motion for summary judgment on Harrison's claims. See Tex. R. Civ. P. 166a(c), (i). The trial court granted summary judgment without stating its grounds. On appeal, Harrison challenges the summary judgment rendered on her breach of contract claim. She argues that the district court misinterpreted the legal effect of two provisions of her homeowner's insurance policy: the ensuing loss provision and the exclusion repeal provision.

Discussion

When a trial court's judgment does not specify the ground relied upon for its ruling, the summary judgment must be affirmed if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). Thus, if we affirm on the traditional motion for summary judgment, we need not address the no-evidence motion. In this case, neither party contends that the insurance policy is ambiguous, nor do we find any ambiguity under the undisputed facts. Therefore, the construction of the policy is a question of law for the court, not a factual issue. See City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968). We review the summary judgment accordingly to determine whether USAA established that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

An insurance policy is a contract, and it is governed by the same rules of construction applicable to all contracts. Balandran v. Safeco Ins. Co., 972 S.W.2d 738, 740-41 (Tex. 1998). The court's primary goal is to give effect to the written expression of the parties' intent. Id. at 741; Spooner, 432 S.W.2d at 518. The court must read all parts of the policy together, striving to give meaning to every sentence, clause, and word. Balandran, 972 S.W.2d at 741; Spooner, 432 S.W.2d at 518. All policy terms are given their ordinary and generally accepted meanings. Security Mut. Cas. Co. v. Johnson, 584 S.W.2d 703, 704 (Tex. 1979).

In her first issue, Harrison argues that the ensuing loss provision of the policy provides coverage for her property damage. In its motion for summary judgment, USAA argued that exclusion 1(f) of Harrison's policy negated coverage for her loss and that the ensuing loss exception to this exclusion did not reinstate coverage. Harrison maintains that damage due to wear and tear would generally be excluded, but that because she sustained ensuing loss caused by water damage, the exception to the exclusion applies.

Section 1 of Harrison's policy contains the following exclusion:

• We do not cover loss caused by:



• wear and tear, deterioration or loss caused by any quality in property that causes it to damage or destroy itself.



• rust, rot, mold or other fungi.

. . . .

We do cover ensuing loss caused by . . . water damage . . . if the loss would otherwise be covered under this policy.

Although courts analyzing sequences of events resulting in loss have inconsistently identified which event in the series causes a homeowner's loss, we determine that the event causing Harrison's loss here is the rotting of the wood surrounding her bathtub. Hardware Dealers Mut. Ins. Co. v. Berglund, 393 S.W.2d 309, 314 (Tex. 1965); see, e.g., Aetna Cas. & Sur. Co. v. Yates, 344 F.2d 939, 940-41 (5th Cir. 1965); State Farm Lloyds v. Marchetti, 962 S.W.2d 58, 61 (Tex. App.-Houston [1st Dist.] 1997, writ denied); Lambros v. Standard Fire Ins. Co., 530 S.W.2d 138, 139-40 (Tex. Civ. App.-San Antonio 1975, writ ref'd); see also Larry L. Gollaher, The 1960 Texas Standard Homeowners Policy, 24 Sw. L.J. 636, 650 (1970). But see Employers Cas. Co. v. Holm, 393 S.W.2d 363, 366-67 (Tex. Civ. App.-Houston 1965, no writ) (considering initial event in series to be cause of loss). Exclusion (f) of Harrison's policy explicitly removes from coverage loss caused by rot. Thus, unless an exception to this exclusion applies, the policy does not cover her loss.

Harrison's argument that the ensuing loss clause provides coverage for her loss reverses the causation required by that exception. To qualify for the exception, ensuing water damage must follow from one of the types of damage enumerated in exclusion (f). Lambros, 530 S.W.2d at 141-42. In other words, the ensuing loss provision covers water damage that results from, rather than causes, rotting. Id. Assuming that the leaking of water into the wood constitutes water damage, the leaking preceded, rather than followed, Harrison's excluded loss. The ensuing loss provision therefore does not extend coverage to Harrison's loss. We overrule issue one.

In her second issue, Harrison argues that the exclusion repeal provision overrides exclusion (f). The exclusion repeal provision states:

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.

Exclusions 1.a through 1.h under Section 1 Exclusions do not apply to loss caused by this peril.

USAA argued in its summary judgment motion that water leaking through deteriorated caulking around the bathtub does not constitute the accidental discharge of water from within a plumbing system. USAA contends that caulking is not a part of the "plumbing system"; thus the discharge here is not covered by the exclusion repeal provision. We agree.

The term "plumbing system" is not defined within Harrison's homeowner's policy, so we must give the phrase its ordinary and generally accepted meaning. See Security Mut. Cas. Co., 584 S.W.2d at 704. Plumbing serves the essential purpose of supplying and recirculating water and sewage in and about a building. See Plumbing License Law, Tex. Rev. Civ. Stat. Ann. art. 6243-101, § 2(1)(A) (West Supp. 2001). Typically, a building's plumbing system is considered to be the built-in network of pipes, fixtures, appurtenances and appliances used for that purpose. See id.; see also Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 647 (Tex. 1996) (describing a plumbing system as consisting of pipes, insert fittings, and crimp rings). Almost exclusively, when Texas courts consider plumbing claims under clauses similar to the instant exclusion repeal provision, these claims involve water escaping from pipes located within the unseen internal structure of a home. See, e.g., Balandran, 972 S.W.2d at 739 (underground plumbing leak); State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 447 (Tex. 1997) (leak in drainline system under the foundation); Marchetti, 962 S.W.2d at 58 (discharge from underground sewage lines). While we do not determine the exact limit of the plumbing system, it cannot be so broad as to include caulking.

Our conclusion is reinforced by the requirement that the discharge of water come from "within" the plumbing system. After water is released from the shower head, the water that penetrates the caulking cannot be said to have been accidentally discharged from within the water distribution network. The discharge of water from within the plumbing system more logically occurs when the water leaves the shower head than when it seeps between the bathtub and the wall tile. We conclude that USAA established as a matter of law that the leaking of water through the caulking was not an accidental discharge of water from within the plumbing system. We accordingly overrule issue two.

Conclusion Because USAA established as a matter of law that Harrison's loss is excluded under the policy and that the exclusion repeal provision does not apply, we affirm the trial court's summary judgment.

Jan P. Patterson, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Patterson

Affirmed

Filed: April 19, 2001

Do Not Publish

1-42. In other words, the ensuing loss provision covers water damage that results from, rather than causes, rotting. Id. Assuming that the leaking of water into the wood constitutes water damage, the leaking preceded, rather than followed, Harrison's excluded loss. The ensuing loss provision therefore does not extend coverage to Harrison's loss. We overrule issue one.

In her second issue, Harrison argues that the exclusion repeal provision overrides exclusion (f). The exclusion repeal provision states:

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.

Exclusions 1.a through 1.h under Section 1 Exclusions do not apply to loss caused by this peril.

USAA argued in its summary judgment motion that water leaking through deteriorated caulking around the bathtub does not constitute the accidental discharge of water from within a plumbing system. USAA contends that caulking is not a part of the "plumbing system"; thus the discharge here is not covered by the exclusion repeal provisio