Mescalero Energy, Inc. v. Underwriters Indemnity General Agency, Inc.

56 S.W.3d 313, 158 Oil & Gas Rep. 325, 2001 Tex. App. LEXIS 6352, 2001 WL 1047536
CourtCourt of Appeals of Texas
DecidedAugust 31, 2001
Docket01-96-01590-CV
StatusPublished
Cited by60 cases

This text of 56 S.W.3d 313 (Mescalero Energy, Inc. v. Underwriters Indemnity General Agency, Inc.) 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
Mescalero Energy, Inc. v. Underwriters Indemnity General Agency, Inc., 56 S.W.3d 313, 158 Oil & Gas Rep. 325, 2001 Tex. App. LEXIS 6352, 2001 WL 1047536 (Tex. Ct. App. 2001).

Opinions

OPINION ON REHEARING

LEE DUGGAN, Jr., Justice (Retired).

We deny the Motion for Rehearing filed by appellees Phoenix Assurance PLC, The Ocean Marine Insurance Company, LTD., and Compagnie D’Assurances Maritime, Aerine Et Terrestres. However, we withdraw our opinion dated May 10, 2001, and we issue this opinion in its stead.

Appellant, Mescalero Energy, Inc. (Mes-calero), appeals a summary judgment in favor of appellees, its insurers and underwriters, following an underground oil well blowout during drilling operations. Appel-lees denied coverage, contending that the explosion occurred within a single “formation,” an excludable event under the policy’s conditions of coverage. Because of the conflicting evidence presented, we find that the trial court erred in determining that the term “formation” was unambiguous and in granting summary judgment on that basis. We reverse and remand to the trial court.

I.

Background

In 1993, Mescalero, an oil and gas drilling contractor, began a program to drill [316]*316several horizontal wells in Fayette County, Texas. One of the wells, the Stork # 1 Well, was to be drilled horizontally through a previously existing vertical well. The location of the drilling is commonly referred to as the Austin Chalk.

Mescalero sought coverage for its program through an insurance agency, Carter & Company, and obtained a Blowout Insurance Policy (the “policy”) from the two appellee insurers.1 -The four other appel-lees underwrote the policy.2

The policy provided coverage for described costs in regaining control of a blowout, redrilling expenses, and third-party equipment damaged by covered casualties in Mescalero’s control. A policy endorsement governing underground blowouts states that “[a]n insured well shall also be deemed to be a blowout when there is a sudden, accidental, uncontrollable and continuous flow of oil, gas or water simultaneously between two or more separate formations via by [sic ] the well bore under the surface of the earth or water bottom.”3 (Emphasis added.)

On March 23, 1994, an uncontrolled flow of oil, gas, or water occurred in the Stork # 1 Well. This caused a loss of normal fluid circulation in the well bore and trapped down-hole equipment Mescalero had leased from Horizon Directional Systems, Inc. After several unsuccessful retrieval attempts, Mescalero cut the drill pipe and abandoned the down-hole equipment. When Horizon sued Mescalero for the value of the abandoned equipment, Mescalero forwarded the petition to its insurers for defense under the policy.

The insurers retained Riseden Services, Inc., an oil and gas engineering consulting firm, to analyze the technical aspects of the March 23rd incident. J.E. Riseden, a petroleum engineer and president of Rise-den Services, prepared a report concluding that gas and fluid moving through a fractured, unstable portion of the single formation through which Mescalero had drilled, the Austin Chalk, caused the formation to cave in on the drill pipe. Riseden testified in his deposition and his summary judgment affidavit that he found no evidence that oil, gas, or water had flowed from one formation through the well bore to another separate formation, and concluded that there was no evidence of a “blowout” as defined in the policy. The insurers and underwriters denied the occurrence of an underground blowout, denied coverage for the March 23rd incident, and refused to defend Mescalero against Horizon’s lawsuit.

The insurers and one of the underwriters, Planet Indemnity Company, then filed a declaratory judgment action seeking a determination that Mescalero’s damages were not covered under the terms of the policy because, inter alia, the damages resulted from a “kick,”4 and not from a “blowout” as defined in the policy. They asserted that the accident occurred within a single formation, the Austin Chalk, and not between separate formations, as re[317]*317quired to constitute an underground blowout. Mescalero answered and brought counterclaims against the insurers and underwriter Planet Indemnity Company, asserting that the Austin Chalk was a series of formations, and that the explosion and damage occurred between two or more of them. In an amended counterclaim, Mes-calero joined the remaining underwriters and the insurance agency, Carter & Company, as defendants.5

The insurers and underwriters moved for summary judgment on the ground that, because the Austin Chalk is a single formation, the uncontrollable loss of fluids did not occur “between two or more separate formations” (as required by the policy) and the underground blowout endorsement did not provide coverage for the March 23rd accident.6 The trial court granted the insurers’ and underwriters’ motions for summary judgment, severed Mescalero’s remaining claim against Carter & Company, the insurance agency, and made the summary judgment final and appealable.7

II.

Standard of Review

The party moving for Rule 166a(c) summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether a disputed material fact issue exists, the reviewing court will take as true all evidence favoring the nonmovant. Id. at 548-49. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in the nonmovant’s favor. Id.

III.

Discussion

In a single point of error, Mescalero asserts the trial court erred in granting summary judgment in favor of the insurers and underwriters (collectively, “appel-lees”). Under Mescalero’s definition, the [318]*318Austin Chalk constitutes a series of formations.

Mescalero argues that the term “formation” is ambiguous because it is subject to two reasonable definitions, that any ambiguity should be resolved in favor of the insured, and that because of this ambiguity, the trial court erred in granting summary judgment for appellees on the issue of coverage.

Our analysis turns on the meaning of the term “formation” and the evidence to which we may resort to make this determination.

A. Appellees’ Summary Judgment Motions

In their motions for summary judgment and on appeal, appellees cite Howaed R. Williams & Chaeles J. MeyeRS, Manual of Oil and Gas Terms (9th ed.1994), a commonly cited oil and gas dictionary, which defines a “formation” as

A succession of sedimentary beds that were deposited continuously and under the same general conditions. It may consist of one type of rock or of alterations of types. An individual bed or group of beds distinct in character from the rest of the formation and persisting over a large area is called a “member” of the formation. Formations are usually named for the town or area in which they were first recognized and described, often at a place where the formation outcrops. For example, the Austin chalk formation outcrops at Austin, Texas.

Id. at 559 (emphasis added).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Robert Penta v. Easy Street Capital, LLC
Court of Appeals of Texas, 2023
Winnie Howard v. Stephen Howard
Court of Appeals of Texas, 2015
Contreras v. Clint Independent School District
347 S.W.3d 413 (Court of Appeals of Texas, 2011)
Markel Insurance Co. v. Muzyka
293 S.W.3d 380 (Court of Appeals of Texas, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
56 S.W.3d 313, 158 Oil & Gas Rep. 325, 2001 Tex. App. LEXIS 6352, 2001 WL 1047536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mescalero-energy-inc-v-underwriters-indemnity-general-agency-inc-texapp-2001.