Mid-Continent Cas. Co. v. Castagna
| Decision Date | 20 August 2013 |
| Parties | MID-CONTINENT CASUALTY COMPANY, Appellant v. VANESSA CASTAGNA, Appellee |
| Court | Texas Court of Appeals |
AFFIRM in Part, REVERSE in Part, and RENDER; and Opinion Filed August 20, 2013.
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Before Justices O'Neill, Francis, and Fillmore
Opinion by Justice Fillmore
In this insurance coverage dispute, appellant Mid-Continent Casualty Company (Mid-Continent) raises a single issue on appeal, asserting the trial court erred by denying its motion for summary judgment and by granting appellant Vanessa Castagna's motion for summary judgment. We reverse the trial court's judgment in part and affirm the trial court's judgment in part.
Background
Castagna and her husband entered into a "Construction Contract—Contract of Sale" (construction contract) with McClure Brothers Custom Homes, LP to build a residence in Frisco, Texas. Construction of the residence was completed and the closing of the purchase of the residence occurred in late 1999. The residence and the rights under the construction contract arenow owned by Castagna. She sued McClure Brothers Custom Homes, LP and McClure Brothers Homes, LLC regarding problems with the foundation of the residence in the lawsuit captioned Vanessa Castagna v. McClure Brothers Custom Homes, LP & McClure Brothers Homes, LLC, Cause No. 2008-10277-16, 16th Judicial District Court, Denton County, Texas. The dispute was the subject of binding arbitration. Mid-Continent defended McClure Brothers Custom Homes, LP and McClure Brothers Homes, LLC, in the arbitration under a reservation of rights. The arbitrator issued an arbitration award in favor of Castagna and against McClure Brothers Custom Homes, LP and McClure Brothers Homes, LLC, jointly and severally. The trial judge in Cause No. 2008-10277-16 rendered a final judgment confirming the arbitration award and incorporating the arbitrator's findings.
Great American Lloyd's Insurance Company (Great American) issued two commercial general liability (CGL) policies to "McClure Brothers Custom Homes, LP" for the policy periods March 31, 1998 to March 31, 1999, and March 31, 1999 to March 31, 2000. Mid-Continent issued CGL policy number 04-GL-000056544 to "McClure Brothers Custom Homes, LP," for the policy period March 31, 2001 to March 31, 2002 (the 2001 to 2002 policy). Mid-Continent issued CGL policy number 04-GL-000098247 to "McClure Brothers Homes, L.P., III," and CGL policy number 04-GL-000098279 to "McClure Brothers Homes LLC," "McClure Brothers Homes LP.," and "McClure Brothers Homes LP Two" for the policy period August 5, 2002 to August 5, 2003 (collectively the 2002 to 2003 policies). Mid-Continent issued CGL policy number 04-GL-000641650 to "McClure Brother Homes LLC," "McClure Brothers Homes LP," "McClure Brothers Homes LP II," "McClure Brothers Homes LP III," "McClure Brothers Homes LP Four," and "McClure Brothers Management Co" for the policy period August 5, 2006 to August 5, 2007 (the 2006 to 2007 policy). Castagna sued insurers Mid-Continent and Great American in the lawsuit underlying this appeal, Cause No. 2012-15701, in the 101st JudicialDistrict Court, Dallas County, Texas, seeking indemnity for the final judgment confirming the arbitration award.1
Castagna filed a motion for partial summary judgment against Mid-Continent in which she asserted Mid-Continent was obligated to pay the final judgment confirming the arbitration award because the damages awarded were covered under the 2001 to 2002 policy and the two 2002 to 2003 policies. Mid-Continent and Great American filed a traditional motion for summary judgment on the insurance coverage issues in which they asserted there is no insurance coverage under the Mid-Continent or Great American insurance policies because McClure Brothers Custom Homes, LP and McClure Brothers Homes, LLC were not insured during the policy periods in which the alleged property damage occurred and because the damages awarded fall within the contractual liability exclusion and the completed operations exclusion of the CGL policies. Mid-Continent and Great American also filed a no-evidence motion for summary judgment, arguing Castagna had not and could not present any evidence that Mid-Continent or Great American breached any insurance contract issued between 1998 and 2007, because there was no evidence that there was an occurrence or property damage prior to 2006, that the contractual liability exclusion in the CGL policies is not applicable, that the work was performed solely by an entity other than the insured or its subcontractor, and that the insured segregated damages covered under liability insurance and damages not covered under liability insurance.
Castagna announced a nonsuit without prejudice of her claims against Great American. The trial court signed a final judgment in which it granted Castagna's motion for summary judgment and denied Mid-Continent's motions for summary judgment.2 The trial court's finaljudgment awarded Castagna the amount of the arbitration award, pre-judgment interest, attorney's fees, and conditional attorney's fees for appeal. Mid-Continent filed this appeal of the denial of its motion for summary judgment and the grant of Castagna's motion for summary judgment.
Standard of Review
The standards of review for traditional and no-evidence summary judgments are well known. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); Gen Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.—Dallas 2000, no pet.). With respect to a traditional motion for summary judgment, the movant has the burden to demonstrate that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. See TEX. R. CIV. P.166a(c); Nixon, 690 S.W.2d at 548-49. We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. See TEX. R. CIV. P. 166a(i); Tex. Wings, Inc., 12 S.W.3d at 832-33. To defeat the no-evidence summary judgment, the nonmovant is required to produce more than a scintilla of probative evidence to raise a genuine issue of material fact on each challenged element of its claims. See TEX. R. CIV. P. 166a(i); Tex. Wings, Inc., 12 S.W.3d at 833. When a party moves for a traditional summary judgment under rule 166a(c) and a no-evidence summary judgment under rule 166a(i), we first review the trial court's judgment under the standards of rule 166a(i). Green v. McKay, 376 S.W.3d 891, 898-99 (Tex. App.—Dallas 2012, pet. denied).
When, as here, both sides move for summary judgment, and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both sides and determine all questions presented. Comm'rs Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). We review the summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Howard v. INA Cnty. Mut. Ins. Co., 933 S.W.2d 212,216 (Tex. App.—Dallas 1996, writ denied). If we conclude the trial court committed reversible error, we render the judgment the trial court should have rendered. Id.
We consider the evidence in the light most favorable to the nonmovant. See Nixon, 690 SW.2d at 549. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). When a party moves for summary judgment on multiple grounds and the trial court's order granting summary judgment does not specify the ground or grounds on which it was based, the party appealing that order must negate all possible grounds upon which the order could have been granted. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.—Dallas 2009, pet. denied). We will affirm the summary judgment if any theory advanced by the movant is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
Applicable Law
"Under Texas law, an insurer may have two responsibilities relating to coverage—the duty to defend and the duty to indemnify." Gilbane Bldg. Co. v. Admiral Ins. Co., 664 F.3d 589, 594 (5th Cir. 2011) (citing D.R. Horton-Tex., Ltd. v. Markel Int'l Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009)). An insurer's duties to defend and indemnify are typically separate and distinct obligations. King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187 (Tex. 2002). The insurer's duty to defend arises when a third party sues the insured on allegations that, if taken as true, potentially state a cause of action within the terms of the policy. Gehan Homes, Ltd. v. Employers Mut. Cas. Co., 146 S.W.3d 833, 838 (Tex. App.—Dallas 2004, pet. denied). The duty to defend protects the insured by requiring a legal defense to allegations without regard to whether they are true, but it does not extend to allegations, true or false, that have not been made. Pine Oak Builders, Inc. v. Great Am. Lloyds Ins. Co., 279 S.W.3d 650, 656 (Tex. 2009). The insurer's duty toindemnify, on the other hand, is triggered not by allegations in the pleadings but by whether a plaintiff ultimately prevails on a claim covered by the policy. Vines-Herrin Custom Homes, LLC v. Great Amer. Lloyds Ins. Co., 357 S.W.3d 166, 172 (Tex. App.—Dallas 2011, pet. filed). The duty to indemnify is "determined based on the facts actually established in the underlying suit." Burlington N. & Santa Fe Ry. Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 334 S.W.3d 217, 219 (Tex. 2011); see also Vines-Herrin Custom Homes, 357 S.W.3d at 172. The duty to indemnify means the insurer will "pay all covered claims and judgments against an insured." Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252-53 (5th Cir. 2011) (quoting D.R. Horton-Tex., Ltd., 300 S.W.3d at 743).
An insurer has no duty to indemnify its insured...
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