U.E. Texas One-Barrington, Ltd. v. General Star Indemnity Co.

332 F.3d 274, 2003 U.S. App. LEXIS 9608, 2003 WL 21143063
CourtCourt of Appeals for the Fifth Circuit
DecidedMay 19, 2003
Docket02-50028
StatusPublished
Cited by22 cases

This text of 332 F.3d 274 (U.E. Texas One-Barrington, Ltd. v. General Star Indemnity Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
U.E. Texas One-Barrington, Ltd. v. General Star Indemnity Co., 332 F.3d 274, 2003 U.S. App. LEXIS 9608, 2003 WL 21143063 (5th Cir. 2003).

Opinions

EDITH H. JONES, Circuit Judge:

Appellant U.E. Texas One-Barrington, Ltd. (“Texas One”) appeals the district court’s grant of summary judgment in favor of appellees General Star Indemnity Company (“General Star”) and Fireman’s Fund Insurance Company (“Fireman’s Fund”) on its claims for insurance coverage relating to damage to the Oak Meadow Apartment complex caused by water leaking from the plumbing system. On appeal, Texas One argues that the district court erred in holding that (1) General Star is not liable for access costs because the damage caused by long-term water leaks are not covered water damage under the General Star policy and (2) the plumbing leaks under each building are, as a matter of law, “separate occurren¿es” for purposes of determining deductibles under the Fireman’s Fund excess coverage policy. Finding no reversible error, we affirm.

[276]*276BACKGROUND

Texas One, at all times relevant to this suit, owned the Oak Meadow Apartments complex (“Oak Meadow”) in San Antonio, Texas. Oak Meadow, built in 1974, consists of thirty residential buildings, three office buildings, and other facilities. Each residential building contains at least four separate apartments. General Star insured Oak Meadow pursuant to a commercial property policy effective from October 21, 1995 to October 21, 1996. Fireman’s Fund provided excess coverage pursuant to a commercial excess property policy effective from October 21, 1995 to October 21, 1996. Around October 1, 1996, Texas One discovered that several of the buildings had suffered foundation movement and above ground damage. The foundation movement and damage resulted from moisture changes in the soil beneath the foundations. Although the cause of these moisture changes remains disputed, tests revealed that nineteen buildings in the complex had experienced plumbing leaks. Texas One admits that it does not know when any of the leaks began. The parties agree that the leaks existed continuously and repeatedly for more than 14 days prior to discovery of the damage. The parties also stipulated that the leaks under any particular building foundation at the property only affected the foundation of that particular building and did not contribute to the movement of any other building foundation at the property nor did they cause any other plumbing leaks.

In November 1999, Texas One filed suit in Texas state court against General Star and Fireman’s Fund for breach of contract arising out of the insurers’ refusal to pay on Texas One’s claims. General Star and Fireman’s Fund removed the case to federal court and subsequently moved for summary judgment.

STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo. Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir.1995) (en banc). Summary judgment is appropriate when, viewing the evidence and all justifiable inferences in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 1551-52, 143 L.Ed.2d 731 (1999); see also Fed. R.Civ.P. 56(c). If the moving party meets its burden, the non-movant must designate specific facts showing there is a genuine issue for trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc).

DISCUSSION

General Star

Texas One argues that General Star was obliged to pay for costs incurred by Texas One in accessing the plumbing system for repair. Texas One raises two arguments in support of its claim: (1) that the language of the General Star policy requires payment of Texas One’s access costs even though payment for the damage caused by the leaks is barred under an exclusionary clause and (2) that General Star admitted that it was obliged to pay for the access costs because it made a partial payment on Texas One’s access cost claims. Texas One’s arguments are without merit. This court recently addressed Texas One’s arguments in a case interpreting policy language identical to the language at issue in this case and held that access costs were not recoverable. See Gen. Accident Ins. Co. v. Unity/Waterford-Fair Oaks, Ltd., 288 F.3d 651, 656 (5th Cir.2002).

[277]*277 Fireman’s Fund

Texas One also contends that the district court erred in determining that the damage to each of the nineteen buildings is a separate occurrence under the Fireman’s Fund excess coverage policy for which Texas One must pay nineteen deductibles. Texas One argues that although each building was damaged by different leaks, there is still only one occurrence for purposes of the Fireman’s Fund policy. Texas One’s argument rests upon its contention that all of the leaks can be traced back to defects in the materials and installation of the underground plumbing system. The Fireman’s Fund policy, in pertinent part, provides:

This Company shall be liable in re- . spect of each and every loss occurrence, irrespective of the number and kinds of risks involved, for 100% of the ultimate net loss excess over and above $1,000,000 ultimate net loss to the Insured in each and every loss occurrence.
The term loss occurrence means the total loss by perils insured against arising out of a single event. When the term applies to loss or losses from the perils of tornado, cyclone, hurricane, windstorm, hail, flood, earthquake, volcanic eruption, riots, riots attending a strike, civil commotion, and vandalism and malicious mischief, a single event means all losses whenever occurring which directly results from such perils during a continuous period of 72 hours.

The policy provides for a maximum payout of $13,267,000 per occurrence.

The damage to the nineteen buildings resulted in more than $1,000,000 net loss to Texas One. However, the damage to any one building did not exceed $1,000,000. Thus, we are called upon to interpret the term “occurrence” and determine whether the damage to the nineteen buildings constitutes one occurrence (resulting in one deductible) or nineteen occurrences (resulting in nineteen deductibles).

Neither party contends that “occurrence” is ambiguous in this contract nor that our determination of the number of occurrences hinges on resolution of a factual dispute. Thus, the interpretation of “occurrence” as used in the contract is a question of law. Ran-Nan Inc. v. General Accident Ins. Co., 252 F.3d 738, 739 (5th Cir.2001) (per curiam). Under Texas law, “the proper focus in interpreting ‘occurrence’ is on the events that cause the injuries and give rise to the insured’s liability, rather than on the number of injurious effects.”2 Id. at 740 (quoting H.E. Butt Grocery Co. v. Nat’l Union Fire Ins. Co., 150 F.3d 526, 530 (5th Cir.1998)).

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332 F.3d 274, 2003 U.S. App. LEXIS 9608, 2003 WL 21143063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ue-texas-one-barrington-ltd-v-general-star-indemnity-co-ca5-2003.