Spates v. Republic Ins. Co.
| Decision Date | 10 August 1988 |
| Docket Number | No. 04-87-00268-CV,04-87-00268-CV |
| Citation | 756 S.W.2d 88 |
| Parties | J.B. SPATES and Sharon Spates, Appellants, v. REPUBLIC INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Charles A. Schmidt, San Antonio, for appellants.
Charles A. Deacon, Brock & Kelfer, San Antonio, for appellee.
Before BUTTS, CANTU and REEVES, JJ.
This is an appeal from summary judgment denying fire insurance coverage to the appellants. Appellants, J.B. and Sharon Spates, bought a Texas Standard Homeowners Policy covering their home at 8826 Wilma Jean, San Antonio, Texas. Sometime in the summer of 1984, appellants began to construct a new home and moved out of the Wilma Jean residence. On September 19, 1984, the Wilma Jean house was destroyed by fire. Appellants made a claim under their insurance policy, but Republic Insurance Company, (appellee), refused to honor the claim on grounds that the house was not being used "principally for dwelling purposes" at the time of the fire. Appellants filed suit, and appellee moved for and was granted summary judgment.
Appellants in a single point of error allege that the trial court erred in granting summary judgment in favor of appellee because there existed factual issues as to (1) the intent of the parties to the insurance contract, (2) whether the house was ever vacated, and (3) the exact date of vacancy. Appellants rely on a provision in the policy stating that when the dwelling is deemed vacant all coverage will be suspended "effective 60 days after date" that the dwelling is deemed vacant.
In any summary judgment case, the burden is on the movant to show that there is no genuine material fact issue and that the movant is entitled to judgment as a matter of law. TEX.R.CIV.P. 166-A(c). The nonmovant, appellants in this case, need show opposing evidence to the motion only after the movant has presented competent extrinsic evidence in support of the summary judgment. See Nutchey v. Three R's Trucking Co., Inc., 674 S.W.2d 928, 929 (Tex.App.--Amarillo 1984, writ ref'd n.r.e.).
Appellee's summary judgment proof consisted of a copy of the insurance policy and the sworn statement of appellant, J.B. Spates. The homeowners policy provides, under the section captioned PROPERTY INSURED, as follows:
COVERAGE A--DWELLING, as described on Page 1 of this policy, while occupied by the insured principally for dwelling purposes.
Under the section captioned BASIC CONDITIONS, the policy specified:
VACANCY--If the Insured ceases to reside in the described dwelling and the unscheduled personal property or a substantial portion thereof is removed therefrom, the dwelling shall be deemed vacant and the coverage applicable to said dwelling as provided under Section 1 of this policy and all coverage under the Dwelling Extension shall be suspended effective 60 days after date of removal of such unscheduled personal property and remain suspended during such vacancy.
Appellee contends that Texas courts have considered the Texas Standard Homeowner's Policy and have found the controlling language to be "while occupied by the insured principally for dwelling purposes." See Fisher v. Indiana Lumbermens Mut. Ins. Co., 456 F.2d 1396, 1398 (5th Cir.1972); see also Doyle v. Member's Mut. Ins. Co., 679 S.W.2d 774 (Tex.App.--Fort Worth 1984, writ ref'd n.r.e.); Bryan v. United States Fire Ins. Co., 456 S.W.2d 702 (Tex.Civ.App.--Corpus Christi 1970, writ ref'd n.r.e.).
We have reviewed the cases cited by appellee, and we find no reference in any of the cases to the 60-day grace period that appears in the instant policy. Specific provisions in a contract prevail over more general ones. See Davis v. Texas Life Ins. Co., 426 S.W.2d 260 (Tex.Civ.App.--Waco 1968, writ ref'd n.r.e.). We have determined that the cases cited by appellee do not render void the 60-day vacancy provision in appellants' policy. Nor can we hold that this provision is without legal effect.
We hold that appellee's summary judgment proof must establish, as a matter of law, that the fire occurred after the expiration of 60 days following appellants' vacating of their Wilma Jean house, as provided in the basic conditions portion of the policy.
A review of the sworn statement of J.B. Spates reveals that several attempts were made to pin down the exact date that appellants moved out of the Wilma Jean house. The pertinent testimony of J.B. Spates is as follows:
To continue reading
Request your trial
-
D.C. Lloyds Ins. v. Mao
...empty, that is, without contents of substantial utility for more than sixty days prior to the October 28, 2006 fire. See Spates v. Republic Ins. Co., 756 S.W.2d 88, 91 (Tex. App.—San Antonio 1988, no writ) (holding fact question concerning date homeowners vacated the insured house precluded......