Evergreen Nat. Indem. v. Tan It All, Inc.
| Decision Date | 19 June 2003 |
| Docket Number | No. 03-02-00426-CV.,03-02-00426-CV. |
| Citation | 111 S.W.3d 669 |
| Parties | EVERGREEN NATIONAL INDEMNITY COMPANY, Appellant, v. TAN IT ALL, INC., Appellee. |
| Court | Texas Court of Appeals |
Levon G. Hovnatanian, Christopher W. Martin, Bruce E. Ramage, James Michael Cleary Jr., Martin, Disiere, Jefferson & Wisdom, L.L.P., Houston, for appellant.
William S. Rhea, Rhea & Rodman, L.L.P., Austin, for appellee.
Before Justices KIDD, YEAKEL and PATTERSON.
This is an appeal from a summary judgment in a declaratory judgment action involving first-party commercial insurance coverage. Appellee Tan It All, Inc. ("TIA"), which operates tanning salons, sued its property insurer, Evergreen National Indemnity Company, to recover the cost of tanning equipment stolen from one of its trucks. The truck was parked in the parking lot of a shopping center containing one of TIA's salons. The issue before us is whether the term "described premises" in a commercial property policy covers business personal property located "within 100 feet" of any portion of the entire shopping center complex in which the insured leases only a suite as its business premises.
The district court found the policy to be ambiguous and, based on the doctrine of contra proferentem, interpreted it to provide coverage. Evergreen appeals, complaining that the policy is not ambiguous, but if it is ambiguous, TIA's interpretation is unreasonable. Evergreen further contends that because there is no coverage, TIA was not entitled to attorney's fees or a penalty award under the Prompt Pay of Claims Act. See Tex. Ins.Code Ann. art. 21.55 (West Supp.2003). We will reverse and render that TIA take nothing by its claims.
The facts surrounding the loss are not in dispute; the parties stipulated to many key facts. On July 30, 2000, tanning equipment was stolen from a TIA truck while it was parked in a parking lot at the Town Fork Plaza shopping center on Highway 183 in Austin. TIA operated a tanning salon, Tansyou, in Suite C-5 of the shopping center. The parking lot in question was a "common area" of the shopping center. At the time of the theft, the truck was parked 280 feet from the front entrance of the salon. TIA submitted a claim for the value of the equipment to Evergreen, which the parties stipulated was $45,483.27.
The claim was denied because the "property was not within the coverage area at the time of the theft." TIA sued Evergreen for breach of contract, violations of the Texas Deceptive Trades Practices and Consumer Protection Act ("DTPA"), violations of articles 21.21 and 21.55 of the Texas Insurance Code, and for attorney's fees and costs.1 The district court granted TIA partial summary judgment on the coverage question. TIA subsequently waived its DTPA and article 21.21 claims and moved for final judgment on its contract and article 21.55 claims. The court granted final judgment for TIA, awarding it $45,483.27 for breach of contract, $6,092.96 as prejudgment interest, $12,628.09 as a statutory penalty under article 21.55, $12,000 as attorney's fees, as well as post-judgment interest and costs, and stipulated appellate attorney's fees for any unsuccessful appeal by Evergreen.
The policy in question is a commercial property policy (ISO Form CP 00 10 10 91 (ed.1990)) issued by Evergreen to "Marji Breslow dba Tan It All, Inc.," covering the policy period of November 2, 1999 to November 2, 2000. The basic insuring agreement of the property policy provides:
We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause or Loss.
(Emphasis added.) There is no question that the insured suffered a direct physical loss and that theft is a type of loss covered by the policy. The coverage form categorizes "Covered Property at the premises described in the Declarations" as: ; ; or "Your Business Personal Property" is defined in the policy as:
b. Your Business Personal Property located in or on the building described in the Declarations or in the open (or in a vehicle) within 100 feet of the described premises, consisting of the following unless otherwise specified in the Declarations or on the Your Business Personal Property—Separate Coverage form:2
(1) Furniture and fixtures;
(2) Machinery and equipment;
(3) "Stock";
(4) All other personal property owned by you and used in your business;
(5) Labor, materials or services furnished or arranged by you on personal property of others;
(6) Your use interest as tenant in improvements and betterments. Improvements and betterments are fixtures, alterations, installations or additions:
(a) Made a part of the building or structure you occupy but do not own; and
(b) You acquired or made at your expense but cannot legally remove;
(7) Leased personal property for which you have a contractual responsibility to insure, unless otherwise provided for under Personal Property of Others.
(Emphasis added.)
The parties stipulated that the stolen tanning equipment was business personal property within the meaning of this policy. The crucial question is whether at the time of the theft the tanning equipment was located "at the premises described in the Declarations" or in a vehicle "within 100 feet of the described premises" to constitute covered business personal property.
The relevant declarations sheet is Ever-green's "Commercial Property Coverage Part Declarations." It describes the following premises, including the one at issue:
This case concerns the fourth insured premises listed in the declarations: "13945 North Highway 183, Suite C-5, Austin, TX 78717." Evergreen contends that the policy only covers business personal property at 13945 North Highway 183, Suite C-5, or in a vehicle located within 100 feet of Suite C-5. TIA contends that the policy covers business personal property within 100 feet of any portion of the shopping center at 13945 North Highway 183. The truck containing the tanning equipment was parked 280 feet from the entrance of Suite C-5, but in the parking lot and within 100 feet of other shopping center buildings at 13945 North Highway 183.
TIA leased the premises at Town Fork Plaza, and its written lease of that premises was submitted as summary judgment evidence. TIA's lease of Suite C-5 gave it certain legal rights regarding the common areas of the shopping center, which included the parking lot in dispute. TIA paid separately for its "proportionate share of the cost" of the common area. The landlord required TIA to park its company-owned vehicles in a certain area in the common area parking lot, and that area was more than 100 feet from TIA's storefront. TIA "was not permitted to park company owned vehicles within 100 feet of the storefront itself." At the time of the theft, TIA's truck was parked in the area designated by the landlord.
The lease, however, provides that the common areas of the shopping center are under the "sole management and control" of the landlord. Evergreen points out that TIA's lease grants TIA only a "nonexclusive right and license" to use the common areas.
This appeal involves a traditional summary judgment proceeding. See Tex.R. Civ. P. 166a(c). The propriety of a summary judgment is a question of law, which we review de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Roland v. DaimlerChrysler Corp., 33 S.W.3d 468, 469 (Tex.App.-Austin 2000, pet. denied). We apply the following standards in conducting our review: (1) a summary judgment movant has the burden to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in determining whether a material fact issue exists, evidence favorable to the nonmovant is taken as true; and (3) every reasonable inference is indulged in favor of the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).
When the parties file competing motions for summary judgment, with one granted and the other denied, we review all the summary judgment evidence presented and determine the propriety of the rulings on both summary judgment motions. See CU Lloyd's of Tex. v. Main Street Homes, Inc., 79 S.W.3d 687, 692 (Tex.App.-Austin 2002, no pet.). When both sides move for summary judgment and the trial court grants one and denies the other, we determine all questions presented, and render the judgment the trial court should have rendered. Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). Also, we may render judgment for the other movant as long as both parties sought final judgment in their cross-motions. CU Lloyd's of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex.1998) (per curiam).
Generally, the insured had the burden to prove its claim comes within the scope of coverage provided by the policy, and the insurer has the burden to prove a claim comes within a policy exclusion or limitation of coverage. Venture Encoding Serv. v. Atlantic Mut. Ins. Co., 107 S.W.3d 729, 733 (); see also Tex. Ins.Code Ann. art. 21.58 (West Supp.2003); Employers Cas. Co. v. Block, 744 S.W.2d 940, 944 (Tex.1988). In this case, the insured bears the burden of showing its claim comes within the coverage afforded by the basic insuring agreement of the policy.
To continue reading
Request your trial
-
Visa Inc. v. Sally Beauty Holdings, Inc.
...erred by "dispos[ing] of issues not addressed or disposed of in the trial court," see Evergreen Nat'l Indem. Co. v. Tan It All, Inc. , 111 S.W.3d 669, 679 (Tex. App.—Austin 2003, no pet.) (distinguishing Feldman ), or erred by rendering judgment on breach of contract liability alone. See In......
-
Lennar Corp. v. Great American Ins. Co.
...Inc. v. Twin City Fire Ins. Co., 130 S.W.3d 181, 193 (Tex.App.-Houston [14th Dist.] 2003, pet. denied); Evergreen Nat'l Indem. Co. v. Tan It All, Inc., 111 S.W.3d 669, 675 (Tex.App.-Austin 2003, no pet.). Then, the insurer bears the burden to prove an exclusion or other avoidance of coverag......
-
Terry v. Safeco Ins. Co. of Am.
...the insurer has failed to comply with one of the requirements of [the statute] with respect to the claim.” Evergreen Nat'l Indem. Co. v. Tan It All, Inc., 111 S.W.3d 669, 678 (Tex.App.-Austin 2003, no pet.); see also Harris v. Am. Prot. Ins. Co., 158 S.W.3d 614, 623 (Tex.App.-Fort Worth 200......
-
Robinson v. Home Owners Mgmt. Enters., Inc., 02-16-00380-CV
...if all other canons of construction fail to yield a superlatively defensible interpretation. See, e.g. , Evergreen Nat'l Indem. Co. v. Tan It All, Inc. , 111 S.W.3d 669, 676–77 (Tex. App.—Austin 2003, no pet.). We do not think that the Limited Warranty’s silence about class arbitration crea......
-
CHAPTER 4 PRACTICAL ASPECTS OF PREPARING WORKSHEETS, CHAINING TITLE, AND DOCUMENT INTERPRETATION
...see also Berry v. Fed. Kemper Life Assur. Co., 99 P.3d 1166, 1188 (N.M. Ct. App. 2004); Evergreen Nat. Indem. Co. v. Tan it All, Inc., 111 S.W.3d 669, 677 (Tex. Civ. App. 2003); Layne Christensen Co. v. Zurich Canada, 38 P.3d 757, 770 (Kan. Ct. App. 2002); Columbia Bank & Trust Co. v. U.S. ......