Granite Const. Co., Inc. v. Bituminous Ins. Companies, 07-91-0133-CV

• Decision Date: 16 June 1992
• Docket Number: No. 07-91-0133-CV,07-91-0133-CV
• Citation: 832 S.W.2d 427
• Parties: GRANITE CONSTRUCTION COMPANY, INC., Appellant, v. BITUMINOUS INSURANCE COMPANIES, Appellee.
• Court: Texas Court of Appeals

Page 427

832 S.W.2d 427

GRANITE CONSTRUCTION COMPANY, INC., Appellant, v. BITUMINOUS INSURANCE COMPANIES, Appellee.

No. 07-91-0133-CV.

Court of Appeals of Texas Amarillo.

June 16, 1992.

Rehearing Denied July 14, 1992.

Crenshaw Dupree & Milam (Cecil Kuhne, of counsel), Lubbock, for appellant.

Jones, Flygare, Galey, Brown & Wharton (James L. Wharton and Bradley M. Pettiet, of counsel), for appellee.

Before REYNOLDS, C.J., and DODSON and POFF, JJ.

REYNOLDS, Chief Justice.

Granite Construction Company, Inc. appeals from the summary judgment declaring, in effect, that Bituminous Insurance Companies do not owe a duty to defend, or pay any award resulting from, a separate negligence suit filed by John R. Valchar against Granite. On the rationale expressed, we will vacate the part of the judgment declaring there is no duty to pay and affirm the remainder of the judgment.

As a construction contractor, Granite contracted with Joe Brown Company to haul asphalt materials from its construction site. In this regard, the contract provided that "[a]ll material shall be FOB [Brown's] truck at the source," and that "[l]oading will be done at no cost to [Brown]."

Pursuant to their contract, Brown agreed to, and did, carry liability and property damage insurance, which had been issued to Brown by Bituminous in the form of general and excess liability policies. Granite was named as an additional insured under the general liability insurance policy by way of an endorsement, which contained the agreement that:

1. The "Persons Insured" provision is amended to include as an insured the person or organization named below [Granite Construction Co.] but only with respect to liability arising out of operations performed for such insured [Granite] by or on behalf of the named insured [Brown].

A certificate of insurance was issued, naming Granite as the certificate holder and containing two pertinent provisions, one printed and one typewritten. The printed provision is in this language:

This is to certify that policies of insurance listed below have been issued to the insured named above [Brown] and are in full force at this time. Notwithstanding any requirement, term or condition of any contract or other document with respect to which this certificate may be issued or may pertain, the insurance af forded by the policies described herein is subject to all the terms, exclusions and conditions of such policies.

The typewritten provision, inserted under the heading "DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES," reads:

CERTIFICATE HOLDER IS ADDED AS AN ADDITIONAL NAMED INSURED FOR ALL GRANITE CONSTRUCTION COMPANY'S WORK IN THE STATE OF TEXAS

The policies of insurance remained in force at all times material to the actions underlying this appeal.

Valchar, employed by Brown, brought a negligence action against Granite, alleging that Granite negligently loaded his truck with dirt in such a manner that it overturned and injured him. Granite requested Bituminous to defend it against Valchar's action. Bituminous refused, stating that the acts of Granite were not covered by Brown's policy and, therefore, there was no duty under the policy provisions to defend Granite against Valchar's pending action.

Upon Bituminous' refusal, Granite initiated the present action, seeking a declaratory judgment that Bituminous had a duty to defend against Valchar's action and to pay any resulting judgment or settlement. Subsequently, Granite filed a motion for partial summary judgment on the ground that under the policy provisions Bituminous had a duty to defend as a matter of law. Bituminous responded and then moved for summary judgment, alleging that as a matter of law Bituminous had no duty to defend Granite and no corresponding duty to pay any resulting judgment or settlement. The trial court overruled Granite's motion, and granted Bituminous' motion for summary judgment.

Appealing, Granite contends the trial court's rendition of summary judgment is erroneous in three respects. This results, Granite submits, because: (1) it is an additional insured under Brown's policy, and Bituminous has a duty thereunder to defend against Valchar's suit; (2) the trial court had no jurisdiction to render judgment concerning Bituminous' obligation to pay any resulting judgment or settlement; and (3) there are fact issues regarding Bituminous' duty to defend it, Granite, and pay any judgment or settlement resulting from the underlying suit.

At the outset, we sustain Granite's second-point contention that the trial court was without jurisdiction to render any determination regarding Bituminous' duty to pay a judgment or settlement resulting from Valchar's as yet unlitigated action. Such a determination is dependent upon a contingent situation, which does not present a justiciable issue in a declaratory judgment action, and, therefore, is an advisory opinion, which the court is not empowered to render. Firemen's Ins. Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331, 332-33 (Tex.1968). As a consequence, that portion of the court's judgment will be vacated. Id. at 333.

Granite's initial contention that Bituminous had a duty to defend against Valchar's suit presents a justiciable issue for determination. Id. at 332. Bituminous' duty to defend is determined by the allegations in Valchar's petition, considered in the light of the policy provisions and without...