McKool v. Reliance Ins. Co.

Decision Date08 January 1965
Docket NumberNo. 16435,16435
Citation386 S.W.2d 344
PartiesMike McKOOL, Appellant, v. RELIANCE INSURANCE COMPANY, Appellee.
CourtTexas Court of Appeals

McKool & McKool, and Bill Jones, Dallas, for appellant.

Thompson, Coe, Cousins & Irons and Franklin H. Perry, Dallas, for appellee.

BATEMAN, Justice.

Appellant Mike McKool sued appellee Reliance Insurance Company for loss due to chipping and cracking of ceramic tile affixed to the walls of his swimming pool, caused by freezing of the water in the pool. The policy sued on insured appellant against 'all risks of physical loss' to his home except as excluded in that part of the policy providing that the insurance does not cover, inter alia:

'i. Loss caused by inherent vice, wear and tear, deterioration; rust, rot, mould or other fungi; dampness of atmosphere, extremes of temperature; contamination; vermin, termites, moths or other insects;

'k. Loss under Coverage A caused by settling, cracking, bulging, shrinkage, or expansion of foundations, walls, floors, ceilings, roof structures, walks, drives, curbs, fences, retaining walls or swimming pools;

'Exclusions i, j, k, shall not apply to ensuing loss caused by collapse of building, water damage, or breakage of glass which constitutes a part of the building, provided such losses would otherwise be covered under this policy.' (Italics ours)

The case was submitted to the trial court on an agreed statement of the facts, and the sole question presented is whether the loss is excluded from the insurance coverage as having been caused by 'extremes of temperature' mentioned in paragraph i. or by the 'cracking' mentioned in paragraph k. The trial court held that it was so excluded, and we agree. Appellant's theory is that the loss, having been caused by ice, which is solidified water, was therefore caused by 'water damage,' thus making inapplicable the exclusions of loss by 'extremes of temperature' and by 'cracking'. In support of this theory appellant reminds us of certain well settled rules of construction of ambiguous insurance contracts. We consider these rules to be inapplicable because we find the terms of this contract to be clear and unambiguous and feel that it should be construed as other contracts and the words and phrases thereof taken in their ordinary meaning. Employers Mut. Cas. Co. of Des Moines, Iowa v. Nelson, Tex.Sup.Ct.1962, 361 S.W.2d 704, 709.

To find ambiguity in this policy one must close his eyes...

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12 cases
  • Fiess v. State Farm Lloyds
    • United States
    • Texas Supreme Court
    • 30 d3 Março d3 2005
    ...caused by water damage ensuing from an excluded peril is covered if the excluded initial cause has an ensuing-loss provision); McKool, 386 S.W.2d at 345-46 ("[A]lthough losses caused by extremes of temperature or cracking are not covered by the policy, all ensuing losses . . . caused by wat......
    • United States
    • Texas Court of Appeals
    • 26 d4 Janeiro d4 2006
    ...1975, writ ref'd) (quoting WEBSTER'S NEW INT'L DICTIONARY 852 (2d ed., unabridged, 1959), and citing McKool v. Reliance Ins. Co., 386 S.W.2d 344, 345 (Tex.Civ.App.-Dallas 1965, writ dism'd)). In Lambros, the court considered facts and policy provisions paralleling those in the present case.......
  • Zeidan v. State Farm Fire & Cas. Co.
    • United States
    • Texas Court of Appeals
    • 20 d4 Março d4 1997
    ...n.r.e.); Twin City Fire Ins. Co. v. Guthrie, 427 S.W.2d 901 (Tex.Civ.App.--Fort Worth 1968, no writ); McKool v. Reliance Ins. Co. 386 S.W.2d 344 (Tex.Civ.App.--Dallas 1965, writ dism'd). ...
  • Blaylock v. American Guarantee Bank Liability Ins. Co.
    • United States
    • Texas Supreme Court
    • 12 d3 Maio d3 1982
    ...Farm Fire & Casualty Co. v. Volding, 426 S.W.2d 907 (Tex.Civ.App.-Dallas 1968, writ ref'd n.r.e.); McKool v. Reliance Ins. Co., 386 S.W.2d 344 (Tex.Civ.App.-Dallas 1965, writ dism'd). We disapprove this language.2 Mrs. Blaylock also contends that the exclusions pleaded by American are inapp......
  • Request a trial to view additional results
1 books & journal articles
    • United States
    • Full Court Press Zalma on Property and Casualty Insurance
    • Invalid date 806.[87] Lambros based its holding on two earlier cases which explained the meaning of “ensuing loss.” McKool v. Reliance Ins. Co., 386 S.W.2d 344, 345-346 (Tex. Civ. App.-Dallas 1965, writ dism’d) (“Giving to the words used [ensuing from] their ordinary meaning, we think it clearly appe......

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