Clemons v. State Farm Fire and Cas. Co.
| Citation | 879 S.W.2d 385 |
| Decision Date | 30 June 1994 |
| Docket Number | C14-93-01026-CV,Nos. C14-93-01023-C,s. C14-93-01023-C |
| Parties | Jack Clayton CLEMONS, Lydia A. Clemons, and Adolph Assenheimer, Appellants, v. STATE FARM FIRE AND CASUALTY COMPANY and State Farm Lloyds, Appellees. (14th Dist.) |
| Court | Texas Court of Appeals |
Robert G. Yack, Richmond, for appellants.
John Gregory Gilleland, J. Sidney Crowley, Richmond, for appellees.
Before ROBERTSON, CANNON and DRAUGHN, JJ.
This a consolidated appeal from a summary judgment granted in favor of appellees, State Farm Fire and Casualty Company and State Farm Lloyds. Appellants, Jack Clayton Clemons, Lydia A. Clemons, and Adolph Assenheimer, brought suit against appellees, alleging that appellees had a duty to defend them in a prior lawsuit filed against appellants by residents of the Windwood subdivision ("Windwood plaintiffs"). Appellees filed a motion for summary judgment, alleging that no duty to defend existed because appellants' homeowners insurance policies did not cover the allegations asserted against them by the Windwood plaintiffs. The trial court granted the summary judgment on all causes of action asserted by appellants. In three points of error, the Clemonses contend: (1) that the trial court erred in ruling that their insurance policy did not impose a duty to defend on appellees and in granting summary judgment on all of their causes of action; and (2) that the trial court abused its discretion when it denied their motion for continuance. In a single point of error, Assenheimer contends that the trial court erred in granting appellee's, State Farm Lloyds, motion for summary judgment. We affirm.
In October 1989, State Farm Lloyds issued homeowners insurance policies to the Clemonses and Assenheimer. These policies provided Assenheimer and the Clemonses with property and liability insurance coverage. The personal liability provision provided coverage to the insureds for:
all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, and the Company shall defend any suit against the Insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy.
This provision gave coverage for the defense and indemnity of lawsuits filed against the insureds, if the claims came within the coverage of the policy.
In March 1992, the Windwood plaintiffs filed a lawsuit against Mr. Clemons and Assenheimer, among others. The Windwood plaintiffs alleged that Michael and Annette Florance ("Florances") constructed their house and garage in violation of the deed restrictions of the Windwood Subdivision. They further alleged that on September 13, 1990, Assenheimer, the president of the Windwood Civic Association, and Mr. Clemons, the chairman of the Architectural Committee, signed the Florances' plat plan, purportedly on behalf of the Windwood Civic Association, granting approval, even though the plan demonstrated on its face that the house and garage would be in violation of Section 3 of the recorded deed restrictions.
The Windwood plaintiffs also alleged that appellants' conduct constituted negligence, breach of a fiduciary duty, and failure to perform their representative trustee duties, and gross negligence; and alternatively, constructive fraud. They sought injunctive relief to require the defendants to remedy their violation of the deed restrictions and the recovery of $25,000 in attorney's fees. Mr Clemons filed a general denial in the Windwood plaintiffs' lawsuit.
Mr. Clemons and Assenheimer requested State Farm Lloyds to provide them with a defense in the Windwood plaintiffs' suit pursuant to the terms of their homeowners insurance policies. State Farm Lloyds answered with a reservation of rights letter and investigated the claims brought against appellants. State Farm Lloyds later determined that none of the Windwood plaintiffs' allegations made against Mr. Clemons or Assenheimer alleged damages for "property damage" or "bodily injury" as defined by the insurance policies. On June 29, 1992, State Farm Lloyds denied Mr. Clemons' and Assenheimer's demands for defense and indemnity.
Mr. Clemons and Assenheimer forwarded the Windwood plaintiff's third amended petition to State Farm Lloyds and again requested that it defend and indemnify them in the prior suit. At that time, Assenheimer had been dismissed from the lawsuit, and Mr. Clemons had settled his portion of the suit for payment of $1,000. Both Assenheimer's attorney and Mr. Clemons' attorney sent letters to State Farm Lloyds stating that the Windwood plaintiffs were seeking the recovery of damages against the appellants for the reduction or loss in their property values. After reviewing the Windwood plaintiffs' third amended petition, State Farm Lloyds determined that it had no duty to defend or indemnify Mr. Clemons or Assenheimer and again denied their requests.
On March 8, 1993, the Clemonses filed suit against State Farm Fire and Casualty Company and State Farm Lloyds. Assenheimer intervened in the case, but he brought suit only against State Farm Lloyds. Both State Farm Lloyds and State Farm Fire and Casualty Company moved for summary judgment. Assenheimer filed a response to the motion, but the Clemonses did not respond. The trial court granted summary judgment in favor of State Farm Lloyds and State Farm Fire and Casualty Company on all claims asserted by appellants.
In their first point of error, the Clemonses assert that the trial court erred in ruling that their insurance policy, as a matter of law, did not impose a duty to defend on at least one of the appellees. In effect, the Clemonses argue that the trial court erred in granting appellees' motion for summary judgment. In his first point of error, Assenheimer alleges that the trial court erred in granting State Farm Lloyds' motion for summary judgment because: (1) State Farm Lloyds had a duty to defend him based on the pleadings; and (2) State Farm Lloyds' contention of a reasonable basis to deny his claim does not defeat his claim as a matter of law.
On appeal from the granting of summary judgment, we must determine whether the evidence establishes as a matter of law that there is no genuine issue of material fact. Rodriguez v. Naylor, 763 S.W.2d 411, 413 (Tex.1989). In deciding whether a disputed material fact issue exists, the evidence is viewed in favor of the non-movant, resolving all doubts and indulging all reasonable inferences in her favor; and the evidence is taken as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). A defendant as a movant must either: (1) disprove at least one element of each of plaintiff's theories of recovery; or (2) plead and conclusively establish each essential element of an affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979).
In the Clemonses' original petition, they alleged causes of action for breach of contract, negligence, deceptive trade practices, and unfair claims settlement practices. In his first amended plea in intervention, Assenheimer alleged causes of action for breach of contract, breach of the duty of good faith and fair dealings, and violations of the Deceptive Trade Practices-Consumer Protection Act ("DTPA") and the Texas Insurance Code. In summary, appellants claimed that pursuant to the terms of their homeowners insurance policies, appellees were required to provide a defense to them against the prior lawsuit brought by the Windwood plaintiffs. Appellees answered by a general denial and raised several defenses.
A summary judgment may be upheld on appeal on only those grounds expressly set out in the motion for summary judgment. TEX.R.CIV.P. 166a(a), (c); Brooks Fashion Stores, Inc. v. Northpark Nat'l Bank, 689 S.W.2d 937, 941 (Tex.App.--Dallas 1985, no writ); see also City of Beaumont v. Guillory, 751 S.W.2d 491, 492 (Tex.1988).
In their motion for summary judgment, appellees asserted that they were entitled to summary judgment on the following grounds:
(1) State Farm Fire and Casualty Company is not liable to the Clemons.
(2) The Windwood plaintiffs' allegations did not amount to "property damage," thus State Farm Lloyds did not breach the contract.
(3) As a matter of law, State Farm Lloyds did not violate the duty of good faith and fair dealing.
(4) State Farm did not violate the DTPA and Insurance Code.
Appellees relied on the following summary judgment proof to support their motion: (1) the Clemonses' original petition; (2) the original citation; (3) the Windwood plaintiffs' first amended original petition; (4) the docket control order; (5) the claim activity log; (6) the claim committee reports; (6) the insurance policy issued by State Farm Lloyds to Assenheimer (effective December 4, 1991); (7) the Windwood plaintiffs' third amended original petition; (8) the Windwood plaintiffs' second amended original petition; (9) the deeds for Wesley and Delores Heinsohn, Lennard and Shirley Johnson, Dennis Fulkert, James and Susan Warwick, Richard Dodd, F.J. and Sylvia Faughn, Michael and June Glacona, and Michael and Annette Florance; (10) the deed restrictions of the Windwood Subdivision; (11) the letter from Assenheimer's attorney to State Farm Lloyds regarding partial settlement; (12) the letter from the Clemonses' attorney to State Farm Lloyds regarding settlement; (13) the affidavit of David McKnight (claims superintendent for State Farm Insurance Companies); (14) the insurance policy issued by State Farm Lloyds to the Clemonses (effective October 16, 1989 to October 16, 1990); and (15) the insurance policy issued by State Farm Lloyds to Assenheimer (effective October 23, 1989 to October 23, 1990).
In his response to appellees' motion for summary judgment, Assenheimer asserted the following:
(1) State Farm Lloyds had a duty to defend him against the claims of the Windwood plaintiffs.
(2) He alleged...
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