Sears, Roebuck and Co. v. Commercial Union Ins. Corp.

• Decision Date: 23 July 1998
• Docket Number: No. 01-97-01139-CV,01-97-01139-CV
• Citation: 982 S.W.2d 151
• Parties: SEARS, ROEBUCK AND COMPANY, Appellant, v. COMMERCIAL UNION INSURANCE CORPORATION, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 151

982 S.W.2d 151

SEARS, ROEBUCK AND COMPANY, Appellant, v. COMMERCIAL UNION INSURANCE CORPORATION, Appellee.

No. 01-97-01139-CV.

Court of Appeals of Texas Houston (1st Dist.).

July 23, 1998.

Daniel B. Nelson, Houston, for Appellant.

Kimberly Kay Coogan, Kent M. Adams, Houston, for Appellee.

Before O'CONNOR, TAFT and SMITH, ^* JJ.

OPINION

TAFT, Justice.

This case involves the interpretation of a commercial general liability insurance policy. Appellant, Sears, Roebuck and Company (Sears), appeals a summary judgment granted to appellee, Commercial Union Insurance Corporation (Commercial Union). We address whether Sears, as a tenant, is a subsidiary, affiliated, associated or allied business entity with its landlord, thus establishing it as a named insured under the terms of a policy issued by Commercial Union. We affirm.

Facts

In 1985, Sears and Weingarten Realty, Inc. (Weingarten) entered into a lease agreement whereby Sears was to lease space in a shopping center owned by Weingarten. Under the terms of the lease, Weingarten was obligated to maintain comprehensive public liability insurance protecting Sears against liability for injury to persons or property occurring in the common areas of the shopping center. The relevant provision of that lease is as follows:

The landlord further agrees to maintain in an insurance company qualified to do business in the State of Texas, Comprehensive Public Liability Insurance, including property damage, insuring Landlord and Tenant against liability for injury to persons or property occurring in or about the Common Areas on the Entire Premises or arising out of the ownership, maintenance, use or occupancy thereof. The limits of liability under such insurance shall not be less than $2,000,000 per occurrence for death or bodily injury and for property damage.

Weingarten subsequently purchased a commercial general liability policy from Commercial Union. The first page of the policy listed the "named insured" as "Weingarten Realty Investors, Et al." An endorsement found on the second page of the policy stated:

It is agreed that the Named Insured shown on the Declarations is amended as follows:

1. Weingarten Realty Investors

2. Weingarten Realty Management Co.

3. Weingarten Properties, Inc.

4. WRI Holdings, Inc.

5. "And all subsidiary, Affiliated, Associated or Allied Companies, Corporations, Firms, Organizations including Partnership and Joint Ventures as are now or hereafter are constituted for which the Named Insured has the responsibility of placing insurance and for which other insurance is not otherwise more specifically provided."

In 1991, Phuong Anh Thi Troung (Troung) claimed she was assaulted on property owned, occupied, or under the control of Sears and Weingarten. Troung later filed a personal injury lawsuit against Sears and Weingarten alleging they were negligent for failing to provide adequate security for the premises. Sears demanded indemnification and defense from Weingarten and Commercial Union pursuant to the lease and the commercial general liability policy. However, both Weingarten and Commercial Union denied Sears' demand for indemnification and defense in the Troung matter. Commercial Union's stated reason for the denial was that Sears was not a named insured under Weingarten's policy. Sears moved for summary judgment alleging it owed no duty to Troung because the incident occurred on premises not owned, occupied, or controlled by Sears. The trial court granted Sears' motion for summary judgment.

After defending the Troung matter at its own expense, Sears brought the current action against Weingarten and Commercial Union. Sears sued Weingarten for breach of contract alleging that, although Weingarten did obtain a commercial general liability policy covering the premises, the coverage of that policy did not comply with the terms of the lease agreement. Sears sued Commercial Union for breach of contract, breach of the duty of good faith and fair dealing, and violations of article 21.21 of the Insurance Code. Sears alleged it had standing to bring these claims against Commercial Union as a named insured on the Weingarten policy.

On April 14, 1997, Commercial Union moved for summary judgment alleging that Sears was not a named insured under the Weingarten policy, and, therefore, had no cause of action against Commercial Union. The trial court granted Commercial Union's motion for summary judgment and severed Sears' claims against Commercial Union from those against Weingarten.

In two points of error, Sears alleges that the trial court erred in granting summary judgment to Commercial Union because (1) Commercial Union failed to prove, as a matter of law, that Sears was not a named insured under the Weingarten policy, and (2) in any event, the language of the Weingarten policy is ambiguous, which raises a material fact issue precluding summary judgment.

Standard of Review

The standards for reviewing a summary judgment are well established: (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law; (2) in deciding whether there is a disputed fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). When the controversy concerns the construction of an unambiguous written instrument, the construction is a matter of law for the court. Western Indem. Ins. Co. v. American Physicians Ins. Exch., 950 S.W.2d 185, 188 (Tex.App.--Austin 1997, no writ).

Named Insured

In its first point of error, Sears contends that Commercial Union did not conclusively prove that Sears was not a named insured under the Weingarten policy, and that, to the contrary, the policy unambiguously shows that Sears was a named insured. Because we are asked to interpret the meaning of the terms of an insurance contract, the general rules of contract construction apply. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995). The primary concern of a court in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument. National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). If an instrument is worded so that it can be given an exact or certain legal interpretation, it is not ambiguous and a court can construe the contract as a matter of law. Louisiana Natural Gas Pipeline, Inc. v. Bludworth Bond Shipyard, Inc., 875 S.W.2d 458, 461 (Tex.App.--Houston [1st Dist.] 1994, writ denied). As with any contract, absent a finding of ambiguity, a court must interpret the meaning and intent of an insurance policy from the four corners of the document without the aid of extrinsic evidence. Carrabba v. Employers Cas. Co., 742 S.W.2d 709, 716 (Tex.App.--Houston [14th Dist.] 1987, no writ). Only after a contract is found to be ambiguous may parol evidence be admitted for the purpose of ascertaining the true intentions of the parties expressed in the contract. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 283 (Tex.1996). When construing a particular provision in an insurance policy, all of the policy's provisions should be given effect, and the whole contract considered, with each clause being used to help interpret the others. Western Indem. Ins. Co., 950 S.W.2d at 188.

In its motion for summary judgment, Commercial Union alleged that it was entitled to summary judgment on Sears' allegations of breach of contract, breach of the duty of good faith and fair dealing, and violations of the Insurance Code, because Sears was not a named insured under the Weingarten policy, and, therefore, could not maintain any action against Commercial Union. Commercial Union correctly stated that, if it proved as a matter of law that Sears was not a named insured on the Weingarten policy, summary judgment was appropriate. As alleged in its petition, Sears' breach of contract claim stated only that, as a named insured on the Weingarten policy, Sears was entitled to defense and indemnification from Commercial...