Argonaut Southwest Ins. Co. v. Maupin

• Decision Date: 26 July 1972
• Docket Number: No. 11937,11937
• Citation: Argonaut Southwest Ins. Co. v. Maupin, 485 S.W.2d 291 (Tex. Ct. App. 1972)
• Parties: ARGONAUT SOUTHWEST INSURANCE COMPANY, Appellant, v. Louise K. MAUPIN et al., d/b/a Maupin Construction Company, Appellees.
• Court: Texas Civil Court of Appeals

Page 291

485 S.W.2d 291

ARGONAUT SOUTHWEST INSURANCE COMPANY, Appellant, v. Louise K. MAUPIN et al., d/b/a Maupin Construction Company, Appellees.

No. 11937.

Court of Civil Appeals of Texas Austin.

July 26, 1972.

Rehearing Denied Oct. 4, 1972.

L. W. Anderson, Dallas, for appellant.

Huson, Clark & Thornton, Robert B. Thornton, Kampmann, Church & Burns, Harry J. Burns, San Antonio, for appellees.

PHILLIPS, Chief Justice.

Appellees entered into a contract with the State of Texas to make certain improvements to a state highway in Travis County. The contract required plaintiffs to obtain and furnish 'borrow' material for the highway. 'Borrow' is evidently dirt, rock or gravel or 'fill.'

Consequently, one of the Appellees entered into an agreement to purchase 'borrow' material from Fred J. Kipper of Austin. Pursuant to this agreement, Appellees removed 5,744 cubic yards of 'borrow' material from property occupied by Kipper.

After completing all excavation operations, Appellees were notified that Fred J. Kipper was not the owner of the property, was not authorized to execute the agreement and that the fee owners of the property were three men named Meyer. The Meyers then brought suit against Appellees for damage to their fee.

Appellant, the insurance carrier for Appellee, was promptly notified of the suit, however, Appellant declined to defend Appellees or to accept liability for any loss.

Thereafter, judgment was entered in favor of the Meyers and against Appellees for the sum of $4,000 plus court costs which were duly paid by Appellees.

Appellees then sued Appellant on the contract of insurance.

After trial to the court, judgment was entered for Appellees and Appellant has perfected its appeal here.

Appellant is before us on five points of error, the first being that of the trial court in entering judgment in favor of Appellees for attorney's fees, as the Appellant had no duty to defend the case because the suit was for willful and intentional damage, which was not covered by the policy. ¹

The portions of the petition filed by the Meyers in their lawsuit against Appellees, which are relevant here, are as follows:

'Heretofore towit during the month of December, 1965, the partnership, intentionally, wrongfully, and wilfully broke plaintiffs' close, and entered into and upon the land and premises of the plaintiffs, without their consent, and trespassed upon plaintiffs' land to the serious damage of plaintiffs, being the land and premise of the plaintiffs lying in Travis County, Texas, located on the Bee Cave Road, about seven miles west of the City of Austin, said premises known as Cedarcrest.

The partnership, its agents, servants, and employees took and appropriated to their own use, with the intent to so appropriate the same, sand, dirt, and gravel, and rock to be incorporated and consumed in its highway project heretofore referred, being towit, 5,744 cubic yards of said sand, dirt, and gravel, and rock, and said materials were actually used and consumed in said project. The reasonable cash market value of said material at said time and place was the sum of twenty-five (25cents) cents per cubit foot or the sum of $1,438.50, in which amount by its wrongful appropriation the partnership was benefited; and in law and equity the defendants owe the plaintiffs restitution by way of quasi contract.

IV.

Plaintiffs' tract of land aforesaid was particularly valuable at said time and place as residential property. It was ideally located, and the highest and best use of said property was for such purpose. As a result of the partnership's wrongful act in digging out the hillside, plaintiffs' tract was damaged in the difference between the reasonable cash market value of said land and premises before said injury and after said injury in the sum of $7,500.00.

V.

The trespass and appropriation of plaintiff's property has wilful, and without excuse, and defendants have become liable to plaintiffs for such wilful and intentional act for exemplary damages in the sum of $2,500.00.'

Appellant contends that from the portions of the petition set out above, the suit was for willful and intentional damage to property. That under the most liberal construction of the policy, insofar as coverage is sought to be granted by virtue of the 'occurrence' definition, it still does not cover damage which was intended. That with the lawsuit being filed for 'willful and intentional damage,' the allegations of the petition thus controlled the duty of the Appellant company to defend the suit. That, consequently, the action of the trial court in rendering judgment for attorney's fees was wrong.

Appellant's duty to defend is determined by the allegations of the petition in the prior suit. Heyden Newport Chemical Corporation v. Southern General Insurance Company, 387 S.W.2d 22 (Tex.1965).

An examination of the allegations of that petition compels the conclusion that the suit was one in trespass for Appellees' 'intentionally, wrongfully and wilfully' entering upon the Meyers' land and inflicting 'serious damage.' An intentional tort is neither an 'accident' nor an 'occurrence' within the terms of the policy, and as a result, Appellant had no duty to defend in the prior suit.

Appellant's second and fifth points of error, which we group together for discussion, are the error of the court in rendering judgment in favor of appellees because there was no proof offered by Appellees that the amount of settlement was reasonable and made in good faith; that the Appellees took no action, or did not attempt in any manner, by way of cross-action, to recover from Fred. J. Kipper, their damages, nor to offset any amount which was owed to Fred J. Kipper for the market value or royalty owed on the dirt in question.

Under Coverage D, Property Damage Liability (Except Automobile), set out above, Appellant agreed to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof caused by accident.

Appellant has paid the Meyers the amount of judgment rendered against them. We must overrule these points inasmuch as the burden of proof would fall upon Appellant to establish the manner and amount in which the judgment rendered could have been reduced. This it failed to do. See American Fidelity & Casualty Co., Inc. v. Williams, 34 S.W.2d 396 (Tex.Civ.App.1931, writ ref'd). Butler Brothers v. American Fidelity Company, 120 Minn. 157, 139 N.W. 355 (1913).

In this connection, we are of the opinion that the judgment should be modified to delete therefrom the money Appellees agreed to pay Mr. Kipper which is 5cents per yard for 5744 cubic yards of borrow or $287.20. Appellant should not be required to pay for this item used in the road construction to Appellees' benefit.

Appellant's third point of error is that of the Court in rendering judgment in favor of Appellees, because no coverage existed for the loss in question, as such loss was for property damage which was intentional, and, was a mistake in business judgment in not ascertaining the title to the property before removing it.

We overrule this point.

The rule that contracts of insurance strictly construed against the insurer is so generally accepted as a legal maxim that authority for such need not be cited.

Appellant has referred us to cases in other states concerning intentional injury and damages under liability policies. These cases seem to hold that where acts are voluntary and intentional, and injury is the natural result of the act, the result was not caused by accident, even though that result may have been unexpected, unforeseen, and unintended. Thomason v. United States Fidelity and Guaranty Company, 248 F.2d 417, Fifth Circuit (1957). In Thomason, the insured, had directed a blade man to clear off some ground up to some 'iron stakes,' which had been placed in the ground. The property to be bladed was adjacent to a Country Club, and there were some similar iron stakes which marked the out of bounds marker for a fairway. The blade man cleared a portion of the Country Club property up to the out of bounds markers. It was concluded that there was no insurance against liability for damages caused by mistake or error. This line of reasoning was also followed in Albuquerque Gravel Prod. Co. v. American Emp. Ins. Co., 282 F.2d 218, Tenth Circuit (1960); C. Y. Thomason Co. v. Lumbermens Mutual Casualty Co., 183 F.2d 729, Fourth Circuit (1950). There is another line of authority, hereinafter cited, of which Texas is a part, that holds a different view.

Appellees contend, and we so hold, that the removal of the 'borrow' material from the property owned by Meyers was an occurrence or accidental damage or injury to the property of another which is included within the provisions of the policy.

Appellees, in seeking a broader and more comprehensive coverage than was afforded by the original policy tendered them, had their policy enlarged by Endorsement No. 7, to include 'a condition for which the insured is responsible which during the period policy causes physical injury to or destruction of property which was not intended.'

In the case of Massachusetts Bonding and Insurance Company et al. v. Orkin Exterminating Company, Inc., 416 S.W.2d 396 (Tex.1967), the Supreme Court of Texas defined the term accident as follows:

'We construe the term 'accident' as used in the policy to include negligent acts of the insured causing damage which is undesigned and unexpected. See Beaumont, S.L. & W. Ry. Co. v. Schmidt, 123 Tex. 580, 72 S.W.2d 899 (1934); Travelers Ins. Co. v....