Argonaut Southwest Ins. Co. v. Maupin, No. B--3664

CourtSupreme Court of Texas
Writing for the CourtDENTON
Citation500 S.W.2d 633
PartiesARGONAUT SOUTHWEST INSURANCE COMPANY, Petitioner, v. Louise K. MAUPIN et al., d/b/a Maupin Construction Company, Respondents.
Docket NumberNo. B--3664
Decision Date17 October 1973

Page 633

500 S.W.2d 633
ARGONAUT SOUTHWEST INSURANCE COMPANY, Petitioner,
v.
Louise K. MAUPIN et al., d/b/a Maupin Construction Company,
Respondents.
No. B--3664.
Supreme Court of Texas.
Oct. 17, 1973.
Rehearing Denied Nov. 21, 1973.

Anderson, Henley, Shields, Bradford & Pritchard, L. W. Anderson, Dallas, for petitioner.

Kampmann, Church & Burns, Harry Burns, Huson, Clark & Thornton, Robert b. Thornton, San Antonio, for respondents.

DENTON, Justice.

This suit by Louise K. Maupin, et al, d/b/a Maupin Construction Company, arose out of a suit filed against them by Theo P. Meyer, Eugene L. Meyer and Theo P. Meyer, Jr., to recover damages to the Meyers' property. Argonaut Southwest Insurance Company, Maupin's insurer and petitioner here, refused to defend the Meyers' suit after timely notice. Maupin then brought this suit against Argonaut for the amount of the Meyers' judgment against Maupin and attorney's fees. The trial court, without a jury, granted judgment against Argonaut, the insurer, upon an agreed statement of facts. The court of civil appeals affirmed the trial court's judgment except for attorney's fees, and held the insurer had no duty to defend the suit which was based on an intentional tort. 485 S.W.2d 291.

In July 1965, the plaintiff below, Maupin Construction Company, entered into a contract with the State of Texas to make certain improvements to a state highway in Travis County, Texas. The contract required Maupin to obtain and furnish borrow material for roadway fills. Thereafter, Eugene J. Reilly, one of the partners of the Maupin Company, entered into an agreement to purchase borrow material

Page 634

from Fred. J. Kipper of Austin. Approximately 5,744 cubic yards of borrow material was subsequently removed from this property occupied by Kipper. It was later determined that Kipper was not the owner of the property, but was merely a tenant in possession. The true owners of the property were the three men named Meyer, who subsequently brought suit against Maupin in trespass alleging that Kipper was not authorized to execute the agreement in question. The Maupin Company thereupon called upon its insurance carrier, Argonaut Insurance Company, to defend such suit. The insurance company denied coverage and refused to defend. The Maupin Company provided its own defense and subsequently paid the judgment rendered against them in the amount of $4,000. Maupin then filed this present suit against Argonaut to recover the amount it paid on the Meyer Judgment plus attorney's fees. The trial court entered judgment against Argonaut for the amount of the judgment plus $1,000 attorney's fees. The principal question to be determined is whether the insurer was required to pay damages because of the injury to property caused by accident or an occurrence within the provisions of the policy. 1

The respondents contend, and the court of civil appeals held, that the removal of the borrow material from the property owned by the Meyers was an occurrence or accidental damage or injury to the property of another which is included within the provisions of the policy. In so holding the court relied principally upon Massachusetts Bond. & Ins. Co. v. Orkin Exterm. Co., 416 S.W.2d 396 (Tex.1967). That case arose from the alleged damages arising from the application of Lindane, a pesticide, to the rice crop. The jury found that Orkin was negligent in the application of Lindane to the rice and premises of Gulf Coast, which negligence was the proximate cause of damage to the rice. In construing a similar policy, as the one being considered here, the court construed the term 'accident' as used in that policy to include negligent acts of the insured causing damage which is undesigned and unexpected. In our opinion this case does not support the position of the insured, respondent herein.

We have not found, nor have we been cited, a Texas authority directly in point. In Langford Electric Co. v. Employers Mut. Indem. Corp., 210 Minn. 289, 297 N.W.

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843 (1941), where the insured was granted an easement to install an electric transmission line, but was specifically instructed not to cut trees outside of the easement, the Minnesota Supreme Court denied...

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205 practice notes
  • Collin v. American Empire Ins. Co., No. B073231
    • United States
    • California Court of Appeals
    • January 5, 1994
    ..."].) This issue was articulated most clearly by the Texas Supreme Court in Argonaut Southwest Insurance Company v. Maupin (Tex.1973) 500 S.W.2d 633, where the insured removed 6,000 cubic yards of soil from a site with [21 Cal.App.4th 814] the approval of the occupant. Unfortunately, as in t......
  • Lamar Homes, Inc. v. Mid-Continent Cas. Co., No. 05-0832.
    • United States
    • Supreme Court of Texas
    • August 31, 2007
    ...accident and thus not an occurrence regardless of whether the effect was unintended or unexpected. Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex,1973). But a deliberate act, performed negligently, is an accident if the effect is not the intended or expected result; that is......
  • Lamar Homes, Inc. v. Mid-Continent Cas. Co., No. 05-0832.
    • United States
    • Supreme Court of Texas
    • August 31, 2007
    ...accident and thus not an occurrence regardless of whether the effect was unintended or unexpected. Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973). But a deliberate act, performed negligently, is an accident if the effect is not the intended or expected result; that is......
  • National American Ins. Co. v. Breaux, No. CIV.A. 1:03CV1378.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • January 6, 2005
    ...Co., 143 F.3d at 193; Enserch Corp. v. Shand Morahan & Co., 952 F.2d 1485, 1492 (5th Cir.1992); Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973). Instead, all the facts alleged in the third party's complaint are assumed to be true. See Centrum GS Ltd., 283 F.3d at 713; ......
  • Request a trial to view additional results
205 cases
  • Collin v. American Empire Ins. Co., No. B073231
    • United States
    • California Court of Appeals
    • January 5, 1994
    ..."].) This issue was articulated most clearly by the Texas Supreme Court in Argonaut Southwest Insurance Company v. Maupin (Tex.1973) 500 S.W.2d 633, where the insured removed 6,000 cubic yards of soil from a site with [21 Cal.App.4th 814] the approval of the occupant. Unfortunately, as in t......
  • Lamar Homes, Inc. v. Mid-Continent Cas. Co., No. 05-0832.
    • United States
    • Supreme Court of Texas
    • August 31, 2007
    ...accident and thus not an occurrence regardless of whether the effect was unintended or unexpected. Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex,1973). But a deliberate act, performed negligently, is an accident if the effect is not the intended or expected result; that is......
  • Lamar Homes, Inc. v. Mid-Continent Cas. Co., No. 05-0832.
    • United States
    • Supreme Court of Texas
    • August 31, 2007
    ...accident and thus not an occurrence regardless of whether the effect was unintended or unexpected. Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973). But a deliberate act, performed negligently, is an accident if the effect is not the intended or expected result; that is......
  • National American Ins. Co. v. Breaux, No. CIV.A. 1:03CV1378.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • January 6, 2005
    ...Co., 143 F.3d at 193; Enserch Corp. v. Shand Morahan & Co., 952 F.2d 1485, 1492 (5th Cir.1992); Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973). Instead, all the facts alleged in the third party's complaint are assumed to be true. See Centrum GS Ltd., 283 F.3d at 713; ......
  • Request a trial to view additional results

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