State Farm Fire & Casualty Co. v. S.S.

858 S.W.2d 374, 1993 WL 233452

• Court: Texas Supreme Court
• Decided: September 10, 1993
• Docket: D-1339
• Status: Published

Opinions

OPINION

HIGHTOWER, Justice.

This cause involves the applicability of the intentional injury exclusion of a homeowner’s policy to a claim resulting from the transmission of genital herpes. State Farm Fire and Casualty Company (State Farm) brought suit against G.W. and S.S. seeking a declaratory judgment that G.W.’s homeowner’s policy did not provide coverage for the claims asserted against him by S.S. The trial court rendered summary judgment in favor of State Farm. The court of appeals reversed and remanded holding that State Farm failed to meet its summary judgment burden because it did not produce conclusive evidence that G.W. intended to transmit herpes to S.S. 808 S.W.2d 668. For the reasons explained herein, we affirm the judgment of the court of appeals.

S.S. contracted genital herpes after engaging in consensual sexual intercourse with G.W. at his home in November 1986. After S.S. requested that G.W. compensate her for her injuries, G.W. notified State Farm, the issuer of his homeowner’s insurance policy. State Farm agreed to investigate the claim and provide G.W. with defense counsel, but required that G.W. sign a “request of services and non-waiver of rights agreement.” G.W.'s homeowner’s policy included an intentional injury exclusion provision. Based on that provision, State Farm questioned whether the policy actually covered S.S.’ claim and rejected S.S.’ settlement offers for amounts within the policy limits. G.W. later rejected State Farm’s offer of counsel and employed his own attorney. S.S. filed suit against G.W. alleging that he negligently transmitted genital herpes to her. S.S. and G.W. settled and entered into an agreement providing for the entry of a $1 million judgment in favor of S.S. and that S.S. would not execute the judgment against G.W. in exchange for the assignment of one-third of any claims which he might have against State Farm for bad faith claims adjustment, deceptive trade practices, or Insurance Code violations. After S.S. and G.W. informed State Farm of the agreed judgment, State Farm instituted this deelarato-ry judgment action seeking a declaration that it is not obligated to pay the f 1 million judgment because, among other things, (1) 5.5.’ claims in the underlying suit fell within the intentional injury exclusion provision in the policy and thus no coverage exists under the policy, and (2) G.W.’s actions in failing to notify State Farm of S.S.’ lawsuit and entering into an agreed judgment without State Farm’s knowledge breached his duty to cooperate under the policy and precluded any recovery by G.W. under the policy. Subsequently, State Farm filed a motion for summary judgment on these grounds. G.W. and S.S. counterclaimed alleging that State Farm engaged in bad faith settlement practices in failing to pay the claim under the policy. S.S. also filed a motion for summary judgment. The trial court rendered summary judgment in favor of State Farm on the specific ground that the homeowner’s policy did not, as a matter of law, provide coverage for any of the claims asserted by S.S. in the underlying suit. The trial court’s summary judgment order did not address State Farm’s claim that G.W. breached his duty to cooperate. The trial court overruled S.S.’ motion for summary judgment and denied G.W. and 5.5. any relief on their counterclaim. The court of appeals affirmed the trial court’s denial of S.S.’ summary judgment holding that S.S. failed to conclusively show that coverage existed as a matter of law. The court of appeals reversed the judgment of the trial court granting summary judgment to State Farm holding that the summary judgment evidence did not conclusively show that G.W. intended to transmit the disease to S.S. nor did it indicate that G.W.’s conduct was so extreme that intent to injure can be inferred as a matter of law. The court of appeals also reversed the summary judgment on G.W. and S.S.’ counterclaims and remanded the cause to the trial court for further proceedings.

I.

State Farm argues that as a matter of law, the transmission of genital herpes is an intentional injury which comes within the “intentional injury exclusion” of G.W.’s homeowner’s policy. Consequently, S.S.’ claim is not covered by G.W.’s homeowner’s policy. We disagree.

Genital herpes is a contagious disease which is spread through sexual intercourse and for which there is no known cure. See generally Louis A. Alexander, Note, Liability in Tort for the Sexual Transmission of Disease: Genital Herpes and the Law, 70 CORNELL L.REV. 101 (1984). Generally, the medical community advises herpes infected patients to avoid sexual intercourse when experiencing actual symptoms of the disease in order to prevent transmission of the disease to their sexual partner. See Ervin Adam, Herpes Simplex Virus Infections, in HUMAN HERPESVIRUS INFECTIONS, CLINICAL ASPECTS 1, 23-25 (Ronald Glaser & Tamar Gotlieb-Stematsky eds., 1982); J. David Oriel, Genital Lesions, in DIAGNOSIS AND TREATMENT OF SEXUALLY TRANSMITTED DISEASES 95, 98-99 (William M. McCormack ed., 1983). However, in recent years, some researchers have identified the theory of asymptomatic shedding, i.e., that a herpes carrier may be contagious and spread the disease even when the individual is not experiencing any symptoms. See Kenneth H. Fife & Lawrence Corey, Herpes Simplex Virus in SEXUALLY TRANSMITTED DISEASES 941 (King K. Holmes et al. eds., 1990); Gregory J. Merts, M.D. et al., Frequency of Acquisition of First-episode Genital Infection with Herpes Simplex Virus from Symptomatic and Asymptomatic Source Contacts, 12 SEXUALLY TRANSMITTED DISEASES 33, 37-39 (1985); James F. Rooney, M.D. et al., Acquisition of Genital Herpes from an Asymptomatic Sexual Partner, 314 NEW ENG.J.MED. 1561, 1563-64 (1986).

The homeowner’s policy covering G.W. in November 1986¹ included the following “intentional injury exclusion” provision:

EXCLUSIONS — Coverage D shall not apply:

to bodily injury or property damage caused intentionally by or at the direction of the Insured[.]

When considering the applicability of similar intentional injury exclusions to claims resulting from the transmission of herpes, other jurisdictions recognize that the resulting damage may be unintended although the acts leading to the damage are intentional. See State Farm Fire & Casualty Co. v. Irene S., 138 A.D.2d 589, 526 N.Y.S.2d 171, 173 (N.Y.App.Div.1988); see also State Farm Fire & Casualty Co. v. Eddy, 218 Cal.App.3d 958, 267 Cal.Rptr. 379, 386 (Cal.Ct.App.1990) (coverage not necessarily precluded when transmission was unexpected, unforeseen, and independent of the intentional sexual conduct). In Milbank Ins. Co. v. B.L.G. & M.M.D., 484 N.W.2d 52, 53 (Minn.Ct.App.1992), a Minnesota court of appeals considered whether B.L.G. “intended” to infect M.M.D. with the herpes virus. Interpreting a similar policy provision, the court held that “[c]overage is not avoided by an intentional act exclusion unless the insured has acted with intent to cause a bodily injury. When the act itself is intended but the resulting injury is not, the insurance exclusion has no application.” Id. at 58. The court concluded that “a reasonable possibility that an actor is contagious does not compel the conclusion that it is highly certain a particular act of his will result in the infection of another.” Id.

This Court recognizes that when “the effect is not the natural and probable consequence of the means which produce it— an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of the means, or an effect which the actor did not intend to produce, and which he cannot be charged with a design of producing — it is produced by accidental means.” Republic Nat’l Life Ins. Co. v. Heyward, 536 S.W.2d 549, 555-56 (Tex.1976). The Court also recognizes “that a person insured against injury effected through accidental means would consider himself insured against such a casualty, since the very purpose of such insurance is to provide indemnity against any fortuitous, unexpected, or undesigned injury.” Id. at 557. Although our language in Republic National referred to “accidents,” the same reasoning applies in cases when the policy contains an intentional injury exclusion. An insured under a policy with an intentional injury exclusion still relies on the policy to provide indemnity against fortuitous, unexpected or undesigned injury.²

When considering whether G.W. intended to injure S.S. it is instructive to examine the meaning of intent. Ordinarily, whether an insured intended harm or injury to result from an intentional act is a question of fact. See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex.1986) (issue of intent is uniquely within the realm of the factfinder); Logan v. Mullís, 686 S.W.2d 605, 608 (Tex.1985) (intent is generally a question of fact to be decided by the jury); see also Raby v. Moe, 153 Wis.2d 101, 450 N.W.2d 452, 456 (1990) (insured’s intent to injure is question of fact). This Court relies on the definition of intent provided in the Restatement (Second) of Torts. Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 412 (Tex.1989); Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985). Under the Restatement (Second) of Torts, an insured intends to injure or harm another if he intends the consequences of his act, or believes that they are substantially certain to follow. RESTATEMENT (SECOND) OF TORTS § 8A (1965). Prosser also provides insight on the nature of intent.

[Ijntent is broader than a desire or purpose to bring about physical results. It extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does.... On the other hand, the mere knowledge and appreciation of a risk— something short of substantial certainly — is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong. In such cases the distinction between intent and negligence obviously is a matter of degree. The line has been drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainty.

W. PAGE KEETON. ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 8, at 35-36 (5th ed. 1984).

Although it is undisputed that G.W. intentionally engaged in sexual intercourse without informing S.S. of his condition, the summary judgment evidence in this case does not indicate that G.W. acted with intent to cause S.S. bodily injury.³ The summary judgment evidence indicates that G.W. did not believe it was possible to transmit the disease without an active lesion and fails to demonstrate that G.W. knew that engaging in sexual intercourse with S.S. was substantially certain to result in transmission of the disease to S.S.⁴

State Farm argues that G.W. committed the intentional tort of battery because S.S.’ consent to the sexual act was vitiated by the fact the G.W. did not inform her that he had herpes. The Restatement discusses when a person’s consent is ineffective so that the person is entitled to maintain any tort action that would be available to him if the consent had not been given. RESTATEMENT (SECOND) OF TORTS § 892B (1979). As an illustration of ineffective consent, the Restatement explains that when A consents to sexual intercourse with B, and B knows that A is ignorant of the fact that B has a venereal disease, B is subject to liability to A for battery, an intentional tort. Id. at cmt. e, illus. 5. However, the Restatement also explains that B’s “own mistake may indeed prevent his conduct from amounting to an intentional tort, as when there is no knowledge that a touching will be harmful.” Id. at cmt. c. Here, it appears to be undisputed, or at least there is a fact issue concerning whether G.W. was operating under the mistaken impression that he could not transmit herpes when he had no symptoms of the disease. Consequently, we conclude that an issue of material fact exists concerning whether G.W. knew at that time with substantial certainty that he would transmit herpes to S.S. Because an issue of material fact exists, we hold that the trial court improperly rendered summary judgment.

II.

State Farm also argues that even if G.W. did not intend to injure S.S. by his conduct, his intent to injure is inferred as a matter of law. We disagree.

Jurisdictions which infer intent in sexual misconduct cases usually do so only in instances of sexual misconduct with minors or forcible sex acts between adults.⁵ Those jurisdictions reason that intent to injure may be inferred only when the character of an act is such that the “degree of certainty that the conduct will cause injury is sufficiently great to justify inferring intent to injure as a matter of law. Loveridge v. Chartier, 161 Wis.2d 150, 468 N.W.2d 146, 151 (1991); see also Woida v. North Star Mut. Ins. Co., 306 N.W.2d 570, 573 (Minn.1981) (inferring intent when the actions were of a calculated nature); Milbank Ins. Co. v. B.L.G. & M.M.D., 484 N.W.2d 52, 58 (Minn.Ct.App.1992) (refusing to address inferred intent without a finding that the defendant engaged in sexual conduct knowing it was highly certain that he would infect the plaintiff). However, “[tjhere is no bright-line rule to determine when intent to injure should be inferred as a matter of law. Rather, each set of facts: ‘must be considered on a case-by-case basis; the more likely harm is to result from certain intentional conduct, the more likely intent to harm may be inferred as a matter of law.’ ” Loveridge v. Chartier, 468 N.W.2d at 151 (quoting K.A.G. v. Stanford, 148 Wis.2d 158, 434 N.W.2d 790, 793 (Ct.App.1988)).

This case differs from the sexual misconduct cases inferring intent because G.W. and S.S. were consenting adults. California and Minnesota specifically refuse to infer intent to injure as a matter of law when the voluntary sexual acts of consenting adults result in the transmission of herpes. See State Farm Fire & Casualty Co. v. Eddy, 218 Cal.App.3d 958, 267 Cal. Rptr. 379, 385 (1990) (refusing to infer intent because the sexual conduct between adults did not constitute rape); North Star Mut. Ins. Co. v. R.W., 431 N.W.2d 138,143 (Minn.Ct.App.1988) (refusing to infer intent as a matter of law in a negligence case involving consenting adults). In this case involving intercourse between consenting adults, there is no evidence that G.W. knew with a high degree of certainty that he would transmit genital herpes to S.S. Consequently, we will not infer intent as a matter of law.

III.

State Farm also argues that the court of appeals erred in failing to affirm the summary judgment on the ground that G.W. breached his duty to cooperate. However, we will not consider an independent summary judgment ground not specified in the trial court’s summary judgment order. Although we decline to affirm the summary judgment on an independent ground, we do so without prejudicing State Farm’s right on remand to reargue those grounds asserted in its summary judgment motion and not addressed by the trial court’s specific summary judgment order.

The trial court’s summary judgment order was specific in that the order specified the ground on which the summary judgment was granted. The order granted State Farm’s summary judgment motion, denied S.S.’ summary judgment motion, and expressly provided: “a Declaratory Judgment is hereby entered that, as a matter of law, the [homeowner’s policy] provides no coverage for any of the claims asserted by [S.S.].” When reviewing a summary judgment granted on general grounds, this Court considers whether any theories asserted by the summary judgment movant will support the summary judgment.

When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious.

Rogers v. Ricane Enter. Inc., 772 S.W.2d 76, 79 (Tex.1989); see also Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). Conversely, in this case, the trial court’s order explicitly specifies the ground relied on for the summary judgment ruling; thus, the summary judgment can only be affirmed if the theory relied oh by the trial court is meritorious, otherwise the case must be remanded. This Court recognizes that “when a trial court has specified the ground on which it was granting summary judgment, we must remand the cause to allow the trial court to rule on the remaining grounds.” State v. Flag-Redfern Oil Co., 852 S.W.2d 480, 484 n. 6 (Tex.1993). In addition, when a trial court grants a summary judgment on a specific ground, this Court’s practice is to “limit our consideration to the grounds upon which summary judgment was granted and affirmed.” Delaney v. University of Houston, 835 S.W.2d 56, 58 (Tex.1992); Delaney, 835 S.W.2d at 62 (Doggett, J., concurring) (“When the order granting summary judgment explicitly states the grounds therefor, and the underlying motion contains other independent grounds for the same relief, the summary judgment can be affirmed only on the grounds specified in the trial court’s order.”); see also Veytia v. Setter, 740 S.W.2d 64 (Tex.App.—San Antonio 1987), aff'd, 756 S.W.2d 303 (Tex.1988).⁶

Courts of appeals also hold that the ground specified in a trial court’s judgment is the only one on which the summary judgment can be affirmed. Maley v. 7111 Southwest Freeway, Inc., 843 S.W.2d 229, 234 (Tex.App.—Houston [14th Dist.] 1992, writ denied); In re Estate of Canales, 837 S.W.2d 662, 668 (Tex.App.—San Antonio 1992, no writ); Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 518 (Tex.App.—Austin 1991, writ denied).⁷ Carlisle reasoned that issues to be reviewed by an appellate court must have been actually presented to and considered by the trial court. Accordingly, when

a party has sought summary judgment on grounds A and B, a judgment expressly granting summary judgment on ground A, without mentioning ground B, can only be construed to mean that the trial court did not consider ground B. To construe it otherwise would be to permit and encourage an inference that is neither warranted by the record nor in keeping with the spirit of Rule 166a(c).

Carlisle, 805 S.W.2d at 518.

Commentators recognize that when the summary judgment expressly states the ground on which the trial court granted the motion, the appellate court is precluded from determining the viability of the other stated grounds when reviewing the summary judgment. TIMOTHY PATTON, SUMMARY JUDGMENT IN TEXAS, PRACTICE, PROCEDURE AND REVIEW, § 8.04 (1992); John Hill Cayce, Jr., Preserving Error on Appeal: A Practical Guide for Civil Appeals in Texas, 23 ST. MARY’S L.J. 15, 73 n. 395, 77-78 n. 420 (1991). Commentators also note that when there are multiple grounds for summary judgment and the order does not specify the ground on which the summary judgment was granted, the appealing party must negate all grounds on appeal. For this reason, commentators suggest that the movant obtain a broad judgment which can be sustained on any theory presented to the trial court and non-movants seek to have the court specify the ground upon which judgment was granted. See generally 6 ROY W. MCDONALD, TEXAS CIVIL APPELLATE PRACTICE § 28.5 (Richard Orsinger 1992); TIMOTHY PATTON, SUMMARY JUDGMENT IN TEXAS, PRACTICE, PROCEDURE AND REVIEW, § 8.04 (1992); David Hittner & Lynne Liberato, Summary Judgments in Texas, 20 ST. MARY’S L.J. 243, 282 (1989). Were this Court to adopt a practice of affirming on alternate grounds even when the trial court specifically ruled only on one ground, non-movants would be required to negate all grounds on appeal, even those not considered by the trial court. The appealing party would thus be required to argue issues on appeal that the trial court never considered or ruled on.

We believe this Court’s practice of declining to consider alternate grounds for summary judgment when the trial court specifically rules on a different ground continues to be the most judicious procedure. Affirming a summary judgment on an independent ground not specifically considered by the trial court usurps the trial court’s authority to consider and rule on issues before it and denies the appellate court of the benefit of the trial court’s decision on the issue. Such a practice results in appellate courts rendering decisions on issues not considered by the trial court and voiding the trial court’s decision without allowing it to first consider the alternate grounds.⁸ Usurping the trial court’s authority does not promote judicial economy, but instead serves as an encouragement for summary judgment movants to obtain a specific ruling from a trial judge on a single issue and then try again with other alternate theories at the court of appeals, then assert the same or additional alternate theories before this Court. Our system of appellate review, as well as judicial economy, is better served when appellate courts only consider those summary judgment issues contemplated and ruled on by the trial court.

For the reasons explained herein, we hold that an issue of material fact exists concerning whether G.W. knew at the time with substantial certainty that he would transmit herpes to S.S., that intent to injure is not inferred as a matter of law, and that the trial court improperly rendered summary judgment. Accordingly, we affirm the judgment of the court of appeals.

Concurring Opinions by Chief Justice PHILLIPS and Justice CORNYN. Dissenting Opinion by Justice GONZALEZ joined by Justice ENOCH. Dissenting Opinion by Justice HECHT.

1 . The standard homeowner's policy currently approved for use in Texas expressly excludes sexually transmitted sickness or disease from coverage under the policy. See 12 Tex.Reg. 1031-32 (1987); State Board of Insurance, Board Order 50372 (Mar. 31, 1987) (approving an amendment to exclude coverage for sexually transmitted disease). However, the policy covering G.W. in November 1986 did not specifically exclude sexually transmitted diseases from coverage.

2 . Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633 (Tex. 1973) is distinguishable. In Argonaut Southwest Ins. Co., this Court considered whether an injury to property was caused by "accident” and thus whether an insurer was obligated to pay under an insurance policy. The policy obligated the insurer to pay for damages “because of injury to or destruction of property, including the loss of use thereof, caused by accident.” Id. at 634 n. 1. We held that when the insured’s acts were voluntary and intentional and the injury is the natural result of the act, the damage was not an accident within the meaning of the policy even though the injury may have been unexpected, unforeseen and unintended. Id. at 635. In this case, when the infected party is not experiencing any symptoms of the disease, transmitting herpes is not a natural result of engaging in sexual intercourse. Additionally, we are not determining whether the transmission of genital herpes was an "accident” or whether G.W.’s acts were intentional, but specifically whether G.W. intentionally caused bodily injury to S.S. by transmitting herpes to her. This distinction is significant because the intentional injury exclusion provision states only that coverage does not exist for intentionally caused bodily injury, and does not state that coverage does not exist for intentional acts.

3 . Justice Hecht’s dissent mischaracterizes the facts of the case by relying on S.S.’ statements in the summary judgment evidence which are expressly controverted by G.W.’s statements. In addition, the dissent infers G.W. is a doctor with special medical knowledge of herpes. However, G.W. is not a medical doctor, but is an optometrist trained to provide corrective eyewear.

4 . Although Justice Hecht’s dissent recognizes that a person is considered to have intended those consequences which are substantially certain to follow, he muddles the application of that test by seemingly arguing that because G.W.’s acts were intentional, the resulting injury was also intentional.

5 . CAM Ins. Co. v. McGinnis, 282 Ark. 90, 666 S.W.2d 689 (1984) (infer intent when stepfather sexually abuses stepdaughter); Allstate Ins. Co. v. Kim W., 160 Cal.App.3d 326, 206 Cal.Rptr. 609 (Cal.Ct.App.1984) (infer intent in case involving sexual assault of a child when act violates criminal statute); Altena v. United Fire & Casualty Co., 422 N.W.2d 485 (Iowa 1988) (involved non-consensual sexual assault of an adult); Linebaugh v. Berdish, 144 Mich.App. 750, 376 N.W.2d 400 (Mich.Ct.App.1985) (infer intent to injure when 21 year old engages in consensual sex with 14 year old); Fireman’s Fund Ins. Co. v. Hill, 314 N.W.2d 834 (Minn.1982) (infer intent when adult sexually abuses foster child in his care); Horace Mann Ins. Co. v. Independent School Dist., 355 N.W.2d 413 (Minn.1984) (infer intent when teacher engages in sexual relations with tenth grade student); State Farm Fire & Casualty Co. v. Williams, 355 N.W.2d 421 (Minn. 1984) (infer intent when professor has noncon-sensual sexual contact with disabled adult); Estote of Lehmann v. Metzger, 355 N.W.2d 425 (Minn.1984) (infer intent when uncle repeatedly sexually assaults niece); Allstate v. Mugavero, 79 N.Y.2d 153, 581 N.Y.S.2d 142, 589 N.E.2d 365 (1992) (infer intent in case of child molestation); Rodriguez v. Williams, 107 Wash.2d 381, 729 P.2d 627 (1986) (infer intent to injure as a matter of law when insured commits incest); Horace Mann. Ins. v. Leeber, 180 W.Va. 375, 376 S.E.2d 581 (1988) (intent to injure inferred as a matter of law in sexual misconduct case involving a teacher's sexual conduct with student); N.N. v. Moraine Mut. Ins. Co., 153 Wis.2d 84, 450 N.W.2d 445 (1990) (intent to injure inferred when insured voluntarily pled guilty to sexual assault of a minor). But see MacKinnon v. Hanover Ins. Co., 124 N.H. 456, 471 A.2d 1166 (1984) (court refused to infer intent merely because the act is nearly certain to produce injury and instead held that the actual expectation or intention of the insured was determinative).

6 . In Veytia, the trial court granted summary judgment on a specific ground. The court of appeals rejected that ground but considered the alternate ground urged by the movant and not addressed by the trial court. After rejecting that ground as well, the court of appeals reversed and remanded to the trial court. This Court affirmed, but only considered the specific ground that the trial court based its summary judgment motion on and did not discuss the merits of the alternate grounds. See Veytia, 756 S.W.2d at 305 ("The court of appeals correctly held that the federal statute did not preempt usurious late charges, and we affirm that holding").

7 . Curry v. Clayton, 715 S.W.2d 77 (Tex.App.—Dallas 1986, no writ) does not conflict with these appellate decisions. Curry does not affirm the trial court’s summary judgment on a ground asserted in the summary judgment motion but not specifically addressed by the trial court’s summary judgment motion. Curry actually contemplates whether the trial court properly ruled on summary judgment evidence rather than the grounds for summary judgment. Reviewing the trial court's discretion to strike admissions deemed admitted and whether Curry demonstrated good cause for a motion to extend time to file responses does not constitute considering or affirming a summary judgment on a ground not specifically ruled on by the trial court.

8 . Such is the case here. When the trial court judge determined there was no coverage under the homeowner's policy, his decision resolved the case and it was not necessary for him to specifically consider the issue of breach of the duty to cooperate.