Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., No. A-10141

CourtSupreme Court of Texas
Writing for the CourtHAMILTON
Citation387 S.W.2d 22
Docket NumberNo. A-10141
Decision Date27 January 1965
PartiesHEYDEN NEWPORT CHEMICAL CORPORATION et al., Petitioners, v. SOUTHERN GENERAL INSURANCE COMPANY, Respondent.

Page 22

387 S.W.2d 22
HEYDEN NEWPORT CHEMICAL CORPORATION et al., Petitioners,
v.
SOUTHERN GENERAL INSURANCE COMPANY, Respondent.
No. A-10141.
Supreme Court of Texas.
Jan. 27, 1965.
Rehearing Denied March 10, 1965.

Barnes & Barnes, Beaumont, for petitioners.

John H. Benckenstein, Beaumont, for respondent.

HAMILTON, Justice.

This is a suit between petitioners, Heyden Newport Chemical Corporation and its insurer, The Insurance Company of North America, against Southern General Insurance Company, the respondent, to recover the cost of defending a prior suit under the omnibus clause of Southern General's policy. In the prior suit Heyden Newport Chemical Corporation, Newport Industries Division, hereinafter referred to as 'Newport Industries', was named as a defendant along with Raymond Pickering and Arthur Marks in an action brought to recover damages for the death of Sam Traylor. The defendant, Raymond Pickering, carried an automobile liability insurance policy with the Southern General Insurance Company, hereinafter referred to as 'Southern General'. Newport Industries demanded that Southern General furnish it a defense in such prior suit, claiming to be an additional insured under the omnibus provision of the policy covering Pickering. Southern General furnished Pickering and Marks a defense but refused to defend Newport Industries. Newport Industries had a policy of insurance with The Insurance Company of North America, who furnished this defense and joined Newport Industries in the present suit as a plaintiff. A jury being waived, the trial court after hearing evidence granted judgment for Southern General. The Court of Civil Appeals has affirmed. 376 S.W.2d 821. We reverse the judgments of the Court of Civil Appeals and the trial court and remand with instructions.

The allegations in the prior suit were in part as follows:

'II

'Defendant, Newport Industries, is a turpentine refining business along with other related items. The raw materials from which said turpentine and other items are refined are old pine stumps that are full of resin and are sometimes referred to as 'rich' and 'litered' stumps. The principal source or supply of said raw materials or stumps is from the pine woods of Louisiana and East Texas. The stumps are purchased from lumber companies, dynamited and removed from the ground with bulldozers, loaded by men onto trucks, and hauled to Newport Industries by means of trucks. At all material times herein, Defendant, Raymond Pickering was an agent for Newport Industries, and his job was to purchase said stumps in the field, and get the said stumps to Newport Industries at Oakdale, Louisiana. Defendant Raymond Pickering was the owner of many trucks, which were used to haul said stumps and had employees to load and haul said stumps. Defendant Arthur Marks job was to drive a truck into the forest, load it with stumps, and haul the stumps to Newport Industries in Oakdale, Louisiana.

'IV.

'Heretofore, to-wit: On or about the 16th day of February, 1961, at about 6:30 A.M., Sam Traylor, a husband and father of plaintiffs was wrongfully killed when a motor vehicle driven by defendant Arthur Marks, who was then and there in the course of his employment with defendant Raymond Pickering, collided with his pickup truck on Highway #63, approximately Seven (7) miles east of Jasper, Texas. The said collision, made the basis of this suit, was brought about by one or more of the negligent acts on the part of the said Arthur Marks

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as hereinafter set out with particularity * * * At the time of said collision made the basis of this suit, the driver of the vehicle, Arthur Marks, was within the scope of his employment with defendant Raymond Pickering, and at the time of said collision under the exclusive direction of defendant Raymond Pickering.'

The policy of insurance contained the following provisions:

'I. COVERAGE A-BODILY INJURY LIABILITY: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or discase, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile. * * *

'II. DEFENSE, SETTLEMENT, SUPPLEMENTARY PAYMENTS: With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the company shall:

'(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; * * *

'I...

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307 practice notes
  • Yancey v. Floyd West & Co., No. 2-87-263-CV
    • United States
    • Court of Appeals of Texas
    • July 28, 1988
    ...Pleadings and terms of the policy determine an insurer's duty to defend. Heyden Newport Chemical v. Southern General Ins. Co., 387 S.W.2d 22, 24 The ambiguity, although not specifically alleged, must come from the interpretation of: the contract as to whether the policies are "claims-made" ......
  • Bitco Gen. Ins. Corp. v. Acadia Ins. Co., CIVIL ACTION NO. 1:18-CV-526
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • December 16, 2019
    ...Sur. Co. , 903 F.3d 435, 447 (5th Cir. 2018) ; Zurich Am. Ins. Co. , 268 S.W.3d at 491 ; Heyden Newport Chem. Corp. v. S. Gen. Ins. Co. , 387 S.W.2d 22, 24 (Tex. 1965). The duty to defend does not arise, however, until a complaint alleging a potentially covered claim is tendered to the insu......
  • 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
    ...discovered to be untrue, an insurer that has contracted to defend must do so. See Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1965). The duty to defend does not arise, however, until a complaint alleging a potentially covered claim is tendered to the insurer......
  • American Physicians Ins. Exchange v. Garcia, No. D-1239
    • United States
    • Supreme Court of Texas
    • March 9, 1994
    ...him. See Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973); Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1965). If a petition does not allege facts within the scope of coverage, an insurer is not legally required to defend a suit against i......
  • Request a trial to view additional results
307 cases
  • Yancey v. Floyd West & Co., No. 2-87-263-CV
    • United States
    • Court of Appeals of Texas
    • July 28, 1988
    ...Pleadings and terms of the policy determine an insurer's duty to defend. Heyden Newport Chemical v. Southern General Ins. Co., 387 S.W.2d 22, 24 The ambiguity, although not specifically alleged, must come from the interpretation of: the contract as to whether the policies are "claims-made" ......
  • Bitco Gen. Ins. Corp. v. Acadia Ins. Co., CIVIL ACTION NO. 1:18-CV-526
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • December 16, 2019
    ...Sur. Co. , 903 F.3d 435, 447 (5th Cir. 2018) ; Zurich Am. Ins. Co. , 268 S.W.3d at 491 ; Heyden Newport Chem. Corp. v. S. Gen. Ins. Co. , 387 S.W.2d 22, 24 (Tex. 1965). The duty to defend does not arise, however, until a complaint alleging a potentially covered claim is tendered to the insu......
  • 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
    ...discovered to be untrue, an insurer that has contracted to defend must do so. See Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1965). The duty to defend does not arise, however, until a complaint alleging a potentially covered claim is tendered to the insurer......
  • American Physicians Ins. Exchange v. Garcia, No. D-1239
    • United States
    • Supreme Court of Texas
    • March 9, 1994
    ...him. See Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973); Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1965). If a petition does not allege facts within the scope of coverage, an insurer is not legally required to defend a suit against i......
  • Request a trial to view additional results

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