SA-OMAX 2007, L.P. v. Certain Underwriters at Lloyd's, London

374 S.W.3d 594, 2012 WL 2553620, 2012 Tex. App. LEXIS 5294
CourtCourt of Appeals of Texas
DecidedJuly 3, 2012
DocketNo. 05-11-00739-CV
StatusPublished
Cited by6 cases

This text of 374 S.W.3d 594 (SA-OMAX 2007, L.P. v. Certain Underwriters at Lloyd's, London) 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
SA-OMAX 2007, L.P. v. Certain Underwriters at Lloyd's, London, 374 S.W.3d 594, 2012 WL 2553620, 2012 Tex. App. LEXIS 5294 (Tex. Ct. App. 2012).

Opinion

OPINION

Opinion By

Justice MYERS.

SA-OMAX 2007, L.P. appeals the trial court’s judgment that it take nothing on its claims against Certain Underwriters at Lloyd’s, London (Underwriters). Appellant brings two issues contending the trial court erred by (1) denying appellant’s motion for summary judgment and (2) granting Underwriters’ motion for summary judgment. The issue in this case is whether an insurance policy’s sublimit of liability for “theft” applied to damage to a building caused by thieves while committing theft. We affirm the trial court’s judgment.

BACKGROUND

Appellant owned a building and had it insured with Underwriters. Appellant’s insurance policy with Underwriters covered direct physical loss or damage “caused by or resulting from any Covered Cause of Loss.” To determine what is a “Covered Cause of Loss,” the policy states, “See applicable Cause of Loss Form as shown in the Declarations.” The declarations page states under “Coverages Provided” that the limit of insurance on the building is $1,237,461. The declarations page also states there is coverage for “Theft” but with a “Sublimit” of $25,000.1 The policy also provides, “The most we will pay for loss or damage in any one occurrence is the applicable Limit of Insurance shown in the Declarations.”

[597]*597In June 2010, a person or persons unknown went onto the roof of the building and stole copper pipes and wiring from five HVAC units on the roof of the building. In removing the pipes and wiring, the thieves cut holes in the roof. The roof sustained further damage as the thieves dragged the copper coils across the roof. The interior of the building then suffered damage from rain entering through the holes in the roof. Appellant’s total loss exceeded $80,000. Appellant applied to Underwriters for coverage for the stolen property and the damage to the building. Underwriters concluded that both the stolen property and the damage to the building were subject to the $25,000 sublimit for theft. Underwriters paid appellant $25,000 and denied the claim for coverage to the extent it exceeded $25,000.

Appellant sued Underwriters for breach of contract, violations of the Texas Insurance Code, and breach of the duty of good faith and fair dealing. Both sides moved for summary judgment on the issue of whether the damage to the building from the theft was subject to the $25,000 sub-limit for theft. The trial court granted Underwriters’ motion for summary judgment, denied appellant’s motion, and rendered judgment that appellant take nothing on its claims.

SUMMARY JUDGMENT

The standard for reviewing a traditional summary judgment is well established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); McAfee, Inc. v. Agilysys, Inc., 316 S.W.3d 820, 825 (Tex.App.-Dallas 2010, no pet.). The movant 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. Tex.R. Civ. P. 166a(c). In deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at 549; In re Estate of Berry, 280 S.W.3d 478, 480 (Tex.App.-Dallas 2009, no pet.). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.2005). We review a summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. Dickey v. Club Corp., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied).

When, as here, both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. Guynes v. Galveston Cnty., 861 S.W.2d 861, 862 (Tex.1993); Howard v. INA Cnty. Mut. Ins. Co., 933 S.W.2d 212, 216 (Tex.App.-Dallas 1996, writ denied). Neither party can prevail because of the other’s failure to discharge its burden. Howard, 933 S.W.2d at 216. When both parties move for summary judgment, we consider all the evidence accompanying both motions in determining whether to grant either party’s motion. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000). When the trial court grants one motion and denies the other, the reviewing court should determine all questions presented. Id. The reviewing court should render the judgment that the trial court should have rendered. Id. When a trial court’s order granting summary judgment does not specify the grounds relied upon, the reviewing court must affirm the summary judgment if any of the summary judgment grounds are meritorious. Id.

INSURANCE POLICIES

When interpreting an insurance policy, courts apply the general rules of contract construction to ascertain the par[598]*598ties’ intent. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 126 (Tex.2010); TIG Ins. Co. v. N. Am. Van Lines, Inc., 170 S.W.3d 264, 268 (Tex.App.-Dallas 2005, no pet.). Our primary goal is to give effect to the parties’ intent as expressed in the written contract. Gilbert Tex. Constr., 327 S.W.3d at 126; U.S. Fire Ins. Co. v. Scottsdale Ins. Co., 264 S.W.3d 160, 167 (Tex.App.-Dallas 2008, no pet.). We read all parts of the policy together, striving to give meaning to all portions while avoiding rendering any portion inoperative. Gilbert Tex. Constr., 327 S.W.3d at 126; U.S. Fire Ins. Co., 264 S.W.3d at 167. Each part of the contract should be given effect, but “[n]o one phrase, sentence, or section [of a contract] should be isolated from its setting and considered apart from the other provisions.” Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 6134 (Tex.1994) (quoting Guardian Trust Co. v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579, 583 (1938)).

If the insurance contract can be given an exact or certain legal interpretation, then it is not ambiguous, and we must interpret the insurance policy’s meaning and intent from its four corners. TIG Ins. Co., 170 S.W.3d at 268. Parol evidence is not admissible to create an ambiguity, but the contract may be read in light of surrounding circumstances to determine whether an ambiguity exists. Balandran v. Safeco Ins.

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374 S.W.3d 594, 2012 WL 2553620, 2012 Tex. App. LEXIS 5294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sa-omax-2007-lp-v-certain-underwriters-at-lloyds-london-texapp-2012.