William Curb v. Texas Farmers Insurance Company

• Court: Court of Appeals of Texas
• Decided: June 9, 2005
• Docket: 11-03-00406-CV
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

William Curb

Appellant

Vs.                   No. 11-03-00406-CV -- Appeal from Eastland County

Texas Farmers Insurance Company

Appellee

In this insurance coverage case, the trial court granted Texas Farmers Insurance Company=s motion for summary judgment and entered judgment that Texas Farmers had neither the duty to defend nor the duty to indemnify Curb under a homeowner=s insurance policy that Texas Farmers had issued to Curb=s parents.  We affirm.

Curb raises three issues on appeal.  In his first issue, Curb maintains that the trial court erred when it granted Texas Farmers=s motion for summary judgment because there were genuine issues of material fact which prevented the entry of a summary judgment.  In his second issue on appeal, Curb argues that, in a determination of coverage in this case, it would be necessary to determine that his acts were intentional and that that determination is not something that can be determined conclusively.  Therefore, the summary judgment was improper.  In his third issue on appeal, Curb takes the position that the trial court erred when it struck an affidavit that he attempted to use as summary judgment evidence.

When reviewing a traditional motion for summary judgment, the following standards apply: (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non‑movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non‑movant and any doubts resolved in its favor.  TEX.R.CIV.P. 166a; Goswami v. Metropolitan Savings and Loan Association, 751 S.W.2d 487, 491 (Tex.1988); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548‑49 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 676 (Tex.1979).

A trial court must grant a motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law.  Rule 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991).  Once the movant establishes a right to a summary judgment, the non‑movant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Authority, supra at 678‑79.

Texas Farmers filed a traditional motion for summary judgment as well as a no-evidence motion for summary judgment.  See Rule 166a(c) & 166a(i).  Because we believe that the traditional motion for summary judgment is dispositive of this appeal, we will not address Texas Farmers=s no-evidence motion for summary judgment.

The summary judgment evidence shows that Curb was a sophomore at Gorman High School when the events made the subject of this appeal occurred.  Curb and a friend, Stephen Patel, strung fishing line ankle-high in a courtyard area of the school.  They intended to tell some of their friends that the soft drink machine was Aspitting out@ free soft drinks and, thereby, lure them to the courtyard area.  They intended to watch while those friends tripped over the fishing line.  When the friends tripped over the fishing line, Curb and Patel intended to tie them up as a practical joke.  After they had strung up the fishing line, Curb and Patel went to look for their friends.  They found them, but they became sidetracked and forgot about the fishing line. The next night, a teacher, Gail Fischer, was conducting a nighttime play practice.  After play practice was over, she came out of the school building, walked across the courtyard area, and tripped over the fishing line.  Fischer suffered injuries when she fell.  She had tried to leave the building through another door, but she could not open the door because fishing line was tied not only around the courtyard but also around the door handle.  The summary judgment evidence further shows that Fischer also found fishing line tied neck-high in the courtyard area.  A student who was with Fischer also tripped on the fishing line but, apparently, was not seriously injured.

Fischer sued Curb and Curb=s father, as well as Patel and his father.  Fischer=s suit against Patel was settled.  When Fischer filed the lawsuit against the Curbs and the Patels, Curb sought to have his parents= homeowner=s insurance company, Texas Farmers, provide a defense.  Initially, Texas Farmers provided a defense under a reservation of rights.  Later, Texas Farmers withdrew its defense because it believed that the claims were not covered by the policy.

In Fischer=s lawsuit against Curb, the trial court entered a $55,000 judgment in favor of Fischer, Aresulting from Defendant=s negligent acts.@  After Curb lost the Fischer suit, he filed this lawsuit.  Neither Curb=s father nor Patel nor Patel=s father are parties to this lawsuit.  In his second amended original petition, Curb alleged that Texas Farmers violated various provisions of the Deceptive Trade Practices Act,^[1] stated that the violations constituted a breach of contract, and asked for attorneys= fees because A[p]laintiff presented a claim for legal representation and liability coverage under the policy.@   Curb basically seeks to recover from Texas Farmers because of its failure to defend him in the Fischer lawsuit and for its failure to indemnify him for the amount of the judgment entered against him in that lawsuit.  Texas Farmers filed a counterclaim in which it essentially sought findings that there was no coverage, no duty to defend, and no duty to indemnify.

In this lawsuit, the same trial court that heard the Fischer lawsuit found that Curb=s acts were not within the coverage of the homeowner=s insurance policy.  The trial court found that there was no occurrence as defined in the policy and that the acts sued upon were intentional and, therefore, excluded from coverage under the policy. 

Before Texas Farmers would have a duty to defend or a duty to indemnify, the acts sued upon must fall within the coverage provided. The policy issued to Curb=s parents provided for liability insurance when bodily injury or property damage resulted from an Aoccurrence.@  In the policy, Aoccurrence@ is defined as:

6.  AOccurrence@ means an accident, including exposure to conditions, which results in bodily injury or property damage during the policy period.

The policy also contained the following exclusion:

1.  Coverage C (Personal Liability) and Coverage D (Medical Payments to Others) do not apply to:

a.  bodily injury or property damage which is caused by or at the direction of an insured. (Emphasis in original)

The duty to defend and the duty to indemnify by an insurer involve different principles.  Trinity Universal Insurance Company v. Cowan, 945 S.W.2d 819, 821-22 (Tex.1997).  An insurer owes no duty to defend an insured unless the petition in the underlying lawsuit contains allegations of fact which fall within the scope of coverage provided for in the policy of insurance.  National Union Fire Insurance Company of Pittsburg, Pa. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997).

We apply the Aeight corners rule,@ also known as the Acomplaint allegation rule,@ to determine the existence of a duty to defend.  We are required to examine the allegations in the petition and the contents of the policy of insurance.  Trinity Universal Insurance Company v. Cowan, supra; National Union Fire Insurance Company of Pittsburg, Pa. v. Merchants Fast Motor Lines, Inc., supra.   Our focus is on the allegations in the petition that show the origin of the damages; the focus is not on the legal theories alleged. Trinity Universal Insurance Company v. Cowan, supra. We consider the allegations in the petition in light of the policy terms without considering either the truth or falsity of the allegations or what the parties know or believe the true facts to be.  Heyden Newport Chemical Corporation v. Southern General Insurance Company, 387 S.W.2d 22, 24 (Tex.1965).  The same is true even if there has already been a legal determination of the facts.  Heyden Newport Chemical Corporation v. Southern General Insurance Company, supra.  We will not look outside the pleadings and the policy of insurance in our assessment of whether there is a duty to defend.  National Union Fire Insurance Company of Pittsburg, Pa. v. Merchants Fast Motor Lines, Inc., supra at 142.  If a petition does not allege facts that fall within the scope of coverage, an insurer is not required to defend a suit against its insured.  American Physicians Insurance Exchange v. Garcia, 876 S.W.2d 842, 848 (Tex.1994).

The Texas Supreme Court dealt with a question similar to the issues in this case in Trinity Universal Insurance Company v. Cowan, supra.   There, Gage, an employee of H.E.B. Photo Place, made extra prints of some revealing photographs made from a roll of film which had been brought to the photo lab for processing.  These pictures eventually were shown to a friend of the subject in the photos, Cowan.  Cowan sued  H.E.B. and Gage.  H.E.B. settled with Cowan.  Gage called upon Trinity, his parents= homeowners insurance company, to provide a defense to the lawsuit.   Trinity initially provided a defense under a reservation of rights but later denied coverage and withdrew its defense.  Gage made an agreement with Cowan by which he assigned to Cowan any claims that he might have against Trinity.  A nonjury trial followed, and the trial court found Gage negligent and grossly negligent and awarded Cowan $250,000.  Gage did not appear during the trial and did not otherwise defend the lawsuit.  We believe that the issues decided in Cowan are instructive in this appeal. 

Here, while the petition in the underlying case contained several general allegations of negligence against Curb, Patel, and their fathers, the petition showed that Curb and Patel intentionally strung fishing line around the courtyard at the school.  Again, we do not focus on legal theories asserted but, rather, on factual allegations.  Bare allegations of negligence, as in this case, are allegations of legal theories, not factual allegations.  The origin of the damages in this case was the intentional behavior of Curb and Patel.  There might have been other legal theories alleged, but there were no other facts (as opposed to theories of recovery) alleged except that Curb and Patel acted intentionally; and it is of no consequence that the results which would ordinarily follow were visited upon someone of whom they had not thought.  See Trinity Universal Insurance Company v. Cowan, supra; Argonaut Southwest Insurance Company v. Maupin, 500 S.W.2d 633 (Tex.1973).  In Fischer=s petition in the underlying cause, she alleged that Curb and Patel did exactly what they intended to do.  Trinity Universal Insurance Company v. Cowan, supra.   To be accidental, an effect could not reasonably have been anticipated from the conduct that produced it, and the insured A>cannot be charged with the design of producing=@ the effect.  Mid‑Century Insurance Company of Texas v. Lindsey, 997 S.W.2d 153, 155 (Tex.1999)(quoting from Trinity Universal Insurance Com-pany v. Cowan, supra at 827)(in turn quoting from Republic National Life Insurance Company v. Heyward, 536 S.W.2d 549, 557 (Tex.1976))); see also  Argonaut Southwest Insurance Company v. Maupin, supra.  Courts determine, on a case-by-case basis, whether conduct constitutes an Aaccident@ for purposes of insurance coverage.  Wessinger v. Fire Insurance Exchange, 949 S.W.2d 834 (Tex.App. - Dallas 1997, no pet=n).

The injury caused by Curb was of the type that would Aordinarily follow@ from his conduct Aand the injuries could be >reasonably anticipated from the use of the means, or an effect=@ that Curb could be charged with producing. Trinity Universal Insurance Company v. Cowan, supra at 828 (citing State Farm Fire & Casualty Company v. S.S., 858 S.W.2d 374, 377 (Tex.1993)). The summary judgment evidence conclusively establishes that Texas Farmers had no duty to defend Curb because there was no accident and, therefore, no occurrence.

We find it to be significant that in Cowan, as is true in this case, there had been earlier find-ings in a separate lawsuit that Gage was negligent and grossly negligent.  Nevertheless, the Supreme Court found no duty to defend. Farmers Texas County Mutual Insurance Company v. Griffin, 955 S.W.2d 81 (Tex.1997); Trinity Universal Insurance Company v. Cowan, supra at 945.

            Further, the policy of insurance excludes intentional acts from coverage under the policy.  Curb argues that the summary judgment evidence shows that he and Patel simply forgot to go back and untie the fishing line.  However, the allegation that Curb and Patel forgot appears for the first time in this case in connection with summary judgment procedures.  Because that information is not within the eight corners rule, we cannot consider it on the issue of Texas Farmers=s duty to defend. 

            After applying the well-established rules regarding summary judgment review, as we have set out above, we hold that the trial court did not err when it ruled that Texas Farmers had no duty to defend in the underlying lawsuit.

The duty to indemnify is different from the duty to defend.  Whether an insurer has a duty to indemnify its insured is dependent upon the actual facts, not just the facts as alleged.  Trinity Universal Insurance Company v. Cowan, supra at 822.  We have reviewed the summary judgment record, and there is nothing in that record  which would show that Curb=s actions were anything other than intentional, as we have discussed above.  Generally, whether an insured intended the injury to occur is a question of fact.  State Farm Fire & Casualty Company v. S.S., supra at 378.  However, there are instances where the actions of an individual are intentional as a matter of law.  The origin of the injury in this case was the tying of the fishing line around the courtyard.  When a result is the natural and probable consequence of an act or course of action, it is not produced by accidental means.  The natural result of an act is the result that ordinarily follows, may be reasonably anticipated, and ought to be expected.   This standard is objective.  A person is held to intend the natural and probable results of his acts even if he did not subjectively intend or anticipate those consequences. Wessinger v. Fire Insurance Exchange, supra at 837.

The insurance policy in this case only covers an occurrence, meaning an accident; and the policy excludes intentional acts.  Curb=s acts did not constitute an occurrence, and they were intentional.  Therefore, there is no duty to defend and no duty to indemnify.  The trial court did not err when it granted Texas Farmers=s motion for summary judgment.  Curb=s first and second issues on appeal are overruled.

In his third issue on appeal, Curb argues that the trial court erred when it struck an affidavit which he had attached to his response to Texas Farmers=s motion for summary judgment.  There are no citations to the record and no citations of authority on this issue.  Curb=s third issue on appeal is overruled.  See TEX.R.APP.P. 38.9.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

June 9, 2005

Not designated for publication.  See TEX.R.APP.P. 47.2(a).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]TEX. BUS. & COM. CODE ANN. ' 17.41 et seq. (Vernon 2002 & Supp. 2004 - 2005).