King v. Dallas Fire Insurance Co.

27 S.W.3d 117, 2000 WL 892871
CourtCourt of Appeals of Texas
DecidedSeptember 21, 2000
Docket01-99-00442-CV
StatusPublished
Cited by9 cases

This text of 27 S.W.3d 117 (King v. Dallas Fire Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King v. Dallas Fire Insurance Co., 27 S.W.3d 117, 2000 WL 892871 (Tex. Ct. App. 2000).

Opinions

OPINION

FRANK G. EVANS, Justice (Retired).

Appellant Carlyle King, individually and d/b/a Tiedown Construction Company (King), appeals from a declaratory summary judgment in favor of appellee, Dallas Fire Insurance Company (Dallas Fire), which had issued a commercial general liability policy to King. The sole issue on appeal is whether the summary judgment proof shows, as a matter of law, that Dallas Fire has no legal duty to defend King in a personal injury suit brought against King by a third party. We affirm, concluding that the insurance policy in question does not require Dallas Fire to defend King in the underlying action.

Suit Against King

In 1997, Greg Jankowiak sued Carlyle King individually and d/b/a Tiedown Construction Company in the District Court of Harris County, alleging that one of King’s employees, Carlos Lopez, while working for King, had “attacked” Jankowiak and kicked him in the face when he, Jankow-iak, was down on his hands and knees. Jankowiak also alleged that Lopez, as an employee of King, was “negligent in reacting to [Jankowiak’s] verbal confrontation,” and that King was therefore hable to Jan-kowiak on the basis of the doctrine of respondeat superior. Jankowiak further alleged that King was hable for the injuries to Jankowiak because of King’s “negligent hiring, training, and supervision” of Lopez.

King forwarded the Janowiak petition to Dallas Fire, which refused to defend on the ground the petition did not allege an “occurrence” within the meaning of the pohcy. Jankowiak later amended its petition to allege that Lopez had “negligently reacted to a business based confrontation about property damage that [Jankowiak] reasonably beheved Defendant Lopez caused.” In this amended pleading, Jan-kowiak also alleged that King was liable for “negligent hiring, lack of adequate training, and lack of adequate supervision” of Lopez. The amended petition further [120]*120asserted that King had “negligently failed to run any background criminal check or prior employment check” on Lopez before hiring him and had “negligently failed to determine whether Defendant Lopez had an unreasonable or past propensity for violence.” The petition further alleged that King had not provided Lopez with any written or verbal training “about safety matters or about how to peaceably and responsibly handle work generated construction site situations.... ” After receipt of this amended petition, Dallas Fire again asserted the suit did not allege an “occurrence” within the meaning of the policy coverage, and therefore, that it had no legal duty to defend King. King then brought this declaratory judgment action asking the court to determine that Dallas Fire was legally obligated under the policy to defend the underlying action against him. Dallas Fire responded with affirmative defenses of (1) no coverage, i.e., no “occurrence” alleged within the meaning of the policy, and (2) the exclusion of coverage because the injury was intentional.

Motions for Summary Judgment

Dallas Fire moved for summary judgment alleging there was no “accident” and no “occurrence,” because Lopez’s intentional conduct resulted in an injury that ordinarily followed or could reasonably be anticipated from such intentional conduct. King responded by filing his own motion for summary judgment stating that, at the time of Lopez’s hiring, training and supervision, King clearly did not intend or reasonably anticipate that Lopez would assault Jankowiak, and, that from King’s perspective, the occurrence was clearly an “accident.” Thus, King asserted, his alleged errors in hiring, supervising, and training Lopez were “accidents,” and the plaintiffs petition in the underlying case alleged an “occurrence” within the meaning of the policy provisions. King further asserted that the intentional injury exclusion does not apply to the facts of this case because the policy expressly requires that the plaintiffs allegations be examined separately in regard to each insured. Further, King asserts, he did not commit an intentional injury because he could not have been substantially certain, when he hired Lopez, that Lopez would assault Jan-kowiak.

Standard of Review

To be entitled to summary judgment, Dallas Fire, as defendant in the trial court, was required to show, as a matter of law, that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiffs cause of action.Tex.R. Civ. P. 166a(b); Union Pump Co. v. Allbritton, 898 S.W.2d 773, 774 (Tex.1995); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). In essence, Dallas Fire was required to conclusively disprove one or more of the essential elements of the plaintiffs cause of action. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476-77 (Tex. 1995); Union Pump, 898 S.W.2d at 774. In reviewing the summary judgment record, we must consider the evidence in the light most favorable to the non-movant and resolve any doubt in the non-movant’s favor. Doe, 907 S.W.2d at 477.

Duty to Defend

Under Texas law an insurer’s duty to defend must be determined from the allegations of the plaintiffs petition in the underlying action, considered in the light of the policy provisions, and without reference to the truth or falsity of such allegations. Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973). Thus, the insurer has the burden of demonstrating that the allegations in the plaintiffs petition are excluded from coverage under the policy. Adamo v. State Farm Lloyds Co., 853 S.W.2d 673, 676 (Tex. App. — Houston [14th Dist.] 1993, wilt denied). Any doubt regarding the interpretation of the plaintiffs petition must be resolved in favor of the insured. Id. Moreover, even if the plaintiffs allegations do [121]*121not clearly show there is coverage, the insurer, as a general rule, will be obligated to defend if there is, potentially, an action alleged within the coverage of the policy. Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex. 1965).

Because the question of an insurance carrier’s contractual duty to defend is one of law, we must conduct a de novo review. State Farm Gen. Ins. Co. v. White, 955 S.W.2d 474, 475 (Tex.App.— Austin 1997, no writ). In deciding this legal question, we must focus our inquiry on the facts alleged in the underlying petition, not on legal theories. Id. Further, we must apply a broad interpretation to the allegations in the petition in determining their meaning under the language of the insurance policy. National Union Fire Ins. Co. of Pittsburgh v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997); White, 955 S.W.2d at 475.

The Plaintiffs Petition

The allegations in the plaintiffs amended petition allege that while he was working at the same apartment construction site as King’s employee,1 he noticed that some electric breakers and copper wire had been damaged or were missing. He also noticed some “bobcat” tracks and knew that King’s company had been operating a bobcat while doing clean up work. The plaintiff alleges that he “tracked down and approached” King’s employee, Lopez, who was driving the bobcat, and asked him about the breakers and copper wire.

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27 S.W.3d 117, 2000 WL 892871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-dallas-fire-insurance-co-texapp-2000.