State Farm Lloyds v. Performance Imp. Corp.
| Decision Date | 25 March 1998 |
| Docket Number | No. 04-96-00499-CV,04-96-00499-CV |
| Citation | 974 S.W.2d 135 |
| Parties | STATE FARM LLOYDS, Appellant, v. PERFORMANCE IMPROVEMENT CORPORATION; and L.X., Individually and as Next Friend of Jane, A Minor, Appellees. |
| Court | Texas Court of Appeals |
J. Hampton Skelton, Catherine L. Hanna, Scott K. Arnold, Skelton & Woody, Austin, for appellant.
Thomas C. Hall, Law Office of Tom Hall, P.C., Daniel A. Bass, San Antonio, for appellees.
Before HARDBERGER, C.J., and RICKHOFF and JOHN G. HILL, 1 JJ.
State Farm Lloyds appeals from a judgment rendered against it in the amount of $2 million, plus interest and attorney's fees. This was initially a declaratory judgment action with respect to a question of insurance coverage in an underlying matter relating to child molestation. State Farm contends in four points of error that the trial court erred in denying State Farm's Motion for Judgment N.O.V. because, as a matter of law, (1) an underlying judgment against Performance Improvement Corporation, State Farm's insured, was collusive, invalid, and unenforceable against State Farm; (2) Performance's failure to cooperate in its defense precludes any recovery against State Farm; (3) the claims against Performance were excluded from coverage as professional services; and (4) there was not an occurrence, or, at most, there was only one occurrence under the relevant insurance policy. State Farm also urges, alternatively, that the answer to jury questions numbers one and two are against the great weight and preponderance of the evidence.
We reverse and render judgment that the appellees take nothing because the claims against Performance were excluded from coverage as professional services.
Performance was sued by the mother of a young child who alleged damages based upon allegations that the child had been molested, on more than one occasion, by a maintenance employee who had been screened and tested by Performance on behalf of the apartment complex where the child lived. Performance carried its business liability insurance at the time with State Farm.
State Farm urges in point of error number three that the trial court erred in denying its motion for judgment n.o.v. because, as a matter of law, the claims made against Performance were excluded from coverage as "professional services," or, alternatively, that the jury's answer to Question 1 was against the great weight and preponderance of the evidence.
"Upon motion and reasonable notice, a trial court may render judgment notwithstanding the verdict if a directed verdict would have been proper." City of San Benito v. Cantu, 831 S.W.2d 416, 422 (Tex.App.--Corpus Christi 1992, no writ). A "Plaintiff is entitled to an instructed verdict if (a) plaintiff has ... so conclusively supported every fact proposition constituting a component element of at least one theory of recovery that reasonable persons could not differ as to the conclusion that each such proposition is true and (b) the defendant has failed to support some affirmative defense either by proving conclusively, or by offering evidence sufficient to raise a reasonable doubt as to, the truth of each fact proposition constituting a component element of such affirmative defense." 4 MCDONALD TEXAS CIVIL PRACTICE § 21:52 (1992).
In response to a question as to whether the damages assessed against Performance in the underlying lawsuit were assessed due to the rendering or failure to render any professional service with respect to management consulting, the jury answered "no."
State Farm had insured Performance with a Texas Commercial Package policy. The policy provided that it did not apply to " 'bodily injury,' 'property damage,' 'personal injury,' or 'advertising injury' due to the rendering or failure to render any professional service." The policy lists "management consultant" as the excluded professional service.
In the underlying lawsuit, the plaintiff's Fifth Amended Original Petition alleged several causes of action against Performance. One alleged a DTPA violation relating to Performance taking advantage of the plaintiffs' lack of capacity to know the wholly inadequate procedure taken by Sumar, the landlord, and Performance to screen the apartment's employees. The petition also alleged that Performance was negligent in failing to check the criminal histories of prospective employees and in failing to administer a test more capable of revealing deviant or criminal tendencies or personality traits with respect to prospective employees, and that it engaged in a conspiracy to commit negligence by agreeing to facilitate the inadequate screening of prospective employees and by using a test that it knew or should have known was wholly inadequate to perform the screening task. Finally, the petition alleged that the test sold by Performance was a defective and unreasonably dangerous product.
At the trial of the underlying lawsuit, there was no testimony presented that the test administered by Performance, the Wilkerson Audit, was in any way defective or unreasonably dangerous, nor was any argument made to that effect. Testimony that was presented related to the arrangement Performance had with Sumar, the management company, and how the employment screening was conducted. There was also testimony as to what had happened to the plaintiff and on the issue of damages.
We hold that these undisputed facts establish as a matter of law that the liability of Performance in the underlying lawsuit was solely based upon its performance of professional services, management consulting, not on the sale of a product. This is true even if, as suggested by Performance, it was primarily involved in the sale of a product. Consequently, the trial court erred by overruling State Farm Lloyd's Motion For Judgment N.O.V.
Performance contends that the professional services definition is ambiguous. It relies upon the case of Aetna Fire Underwriters Ins. Co. v. Southwestern Eng 'g Co., 626 S.W.2d 99 (Tex.App.--Beaumont 1981, writ ref'd n.r.e.). We find that case to be distinguishable. In Aetna, the insurance policy in question had an exclusion for engineering services. The act giving rise to liability was negligence in locating pipelines. The Court held that the mere locating of pipelines did not fall within the engineering services exclusion because it could not determine as a matter of law that "the physical act of digging for and locating underground pipelines requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, or engineering sciences so as to constitute the practice of professional engineering." Id. at 101. It then said, "The least that can be said is that the term 'engineering services,' not being definitely defined in the contract, is an ambiguous term." Id.
We interpret the Court's decision as saying that if the term "engineering services" included services that did not require engineering education, training and experience so as to constitute the practice of professional engineering then it must be an ambiguous term. Under the facts of this case, the only asserted basis for any liability of Performance was negligence or DTPA liability based upon the performance of professional services, including consultation with management, not upon the sale of a product.
Performance relies upon several out-of-state cases in which it says the phrase "professional services" was held to be ambiguous. These cases include Pacific Indem. Co. v. Linn, 766 F.2d 754 (3rd Cir.1985); Dailey v. Transitron Overseas Corp., 349 F.Supp. 797 (S.D.Tex.1972); Essex Ins. Co. v. Williams St. Ctr., 863 F.Supp. 1373 (D.C.Colo.1994), rev 'd , 52 F.3d 894 (10th Cir.1995); Atlantic Mut. Ins. Co. v. Acker, 1993 WL 536133 (E.D.Pa.1993); American Motorists Ins. Co. v. Republic Ins. Co., 830 P.2d 785 (Alaska 1992); First Newton Nat 'l Bank v. General Casualty Co. of Wis., 426 N.W.2d 618 (Iowa 1988); Shaw v. Fidelity & Casualty Ins. Co., 582 So.2d 919 (La.Ct.App.1991); McCarthy v. Berman, 656 So.2d 717 (La.Ct.App.1995), rev 'd, 668 So.2d 721 (La.1996); Camp Dresser & McKee, Inc. v. The Home Ins. Co., 30 Mass.App.Ct. 318, 568 N.E.2d 631 (1991); Williams v. Herrera, 83 N.M. 680, 496 P.2d 740 (1972); Duke Univ. v. St. Paul Fire and Marine Ins. Co., 96 N.C.App. 635, 386 S.E.2d 762 (1990); Cannon v. First Nat 'l Bank of East Islip, 98 A.D.2d 704, 469 N.Y.S.2d 101 (1983); Shapiro v. Aetna Insurance Company, 26 Misc.2d 820, 208 N.Y.S.2d 83 (1960); Kuzmier v. New Amsterdam Casualty Co., 155 N.Y.S.2d 301 (1956); and Biborosch v. Transamerica Ins. Co., 412 Pa.Super. 505, 603 A.2d 1050 (1992).
We have examined all of these cases and find that as a group they do not serve as authority for any suggestion that the "professional services" exclusion is always ambiguous. To the extent any one of those cases holds that the exclusion is always ambiguous, we respectfully decline to adopt such a holding.
We have also examined a case that is the closest factually to our case. That case is Search EDP v. American Home Assurance Co., 267 N.J.Super. 537, 632 A.2d 286 (1993). In that case, which involved pre-employment screening services, the Court held that the professional services exclusion was unambiguous. Id. at 289. Having reviewed these cases, we conclude that whether the term is ambiguous or not is not governed by an all-encompassing rule, but by an examination of the circumstances of each individual case. As the Court did in Search,we hold that in this case the exclusion is unambiguous.
Performance refers us to the testimony of Neal Johnston, who testified at the declaratory judgment trial that he had never acted as a management consultant to Sumar. The evidence is undisputed, however, that Performance, through Johnston, administered the test in question to Sumar's prospective employees and asked them additional questions concerning their...
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...hold that the term "engineering services" in a policy exclusion is always ambiguous. See State Farm Lloyds v. Performance Improvement Corp., 974 S.W.2d 135 (Tex. App. San Antonio 1998, pet. denied). Second, in the Aetna Fire Underwriters case the act performed by the insured, which was digg......