Tucker v. Allstate Texas Lloyds Ins. Co.

• Decision Date: 06 December 2005
• Docket Number: No. 06-05-00086-CV.,06-05-00086-CV.
• Citation: 180 S.W.3d 880
• Parties: Lonnie L. TUCKER and Kerry Hartless, Appellants, v. ALLSTATE TEXAS LLOYDS INSURANCE COMPANY, Appellee.
• Court: Texas Supreme Court

180 S.W.3d 880

Lonnie L. TUCKER and Kerry Hartless, Appellants, v. ALLSTATE TEXAS LLOYDS INSURANCE COMPANY, Appellee.

No. 06-05-00086-CV.

Court of Appeals of Texas, Texarkana.

Submitted November 23, 2005.

Decided December 6, 2005.

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Jerry D. Conner, Houston, for appellants.

Roy L. Stacy, Pamela J. Touchstone, Stacy & Conder, LLP, Dallas, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice CARTER.

Lonnie L. Tucker and Kerry Hartless appeal from a summary judgment rendered in favor of Allstate Texas Lloyds Insurance Company, based on Allstate's position that it had no coverage for an injury to Hartless. In short, the summary judgment evidence shows that the two had moved Tucker's home-built light plane¹ onto a set of movable scales to weigh it—just out of curiosity—and while finishing lining up one of the main wheels, Tucker tipped the plane onto its nose, pinning Hartless under the propeller. Hartless sought to recover from Tucker; Tucker called on Allstate, who provided his homeowner's insurance, to defend him. Allstate does not contend that coverage would not exist, but takes the position that an exclusionary clause prevents recovery.

Procedurally, the insurer sought a declaratory judgment specifying its rights and responsibilities under the terms of the policy, arguing that it had no duty to defend or cover the claim.

Allstate filed a motion for summary judgment, which was granted. Tucker's motion for summary judgment² was denied. Tucker and Hartless contend that the court erred by granting summary judgment because Allstate failed to establish as a matter of law that it did not have a duty to defend. We agree.

In its motion for summary judgment, Allstate took the position that the injury was not covered under the "aircraft" exclusion because it "arose out of" the ownership, loading, maintenance, and/or use of Tucker's airplane. It asked the trial court to hold that coverage was excluded and that it had no duty to either defend or to indemnify. The trial court granted the motion.

As a general rule, the insurer is obligated to defend if there is, potentially, an action alleged within the policy coverage, even if the allegations do not clearly show there is coverage. Nat'l Union Fire Ins. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997); Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex.1965).

Thus, the correctness of the judgment depends on the meaning of the policy exclusion, and its application to the alleged facts that resulted in the accident as shown by the pleadings, and the attached evidence. The exclusion is reproduced in whole.

1. Coverage C (Personal Liability) and Coverage D (Medical Payments to Others) do not apply to:

. . . .

h. bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of aircraft:

Aircraft means any device used or designed for flight, except model or hobby aircraft not used or designed to carry people or cargo.

The evidence shows that the two friends, who own similar aircraft, were aircraft aficionados, and while they were at the airport where their aircrafts were stored, they began talking about the weight of the planes. Since a set of balance scales was in one of the hangars, they picked the scales up and moved them over to Tucker's airplane first, and slid one beneath each of the wheels. The scales were under the wheels, but while Tucker was positioning one scale to center it, he pulled on one side and the airplane nosed over on top of them both, pinning Hartless under the propeller.

Duty to Defend

A liability insurer is obligated to defend a suit if the facts alleged in the pleadings would give rise to any claim within the coverage of the policy. Utica Nat'l Ins. Co. v. Am. Indem. Co., 141 S.W.3d 198, 201 (Tex.2004). An insurer's duty to defend is determined solely by the allegations in the pleadings and the language of the insurance policy. King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187 (Tex.2002). The insurer bears the burden to show that a policy exclusion applies, and courts adopt the insured's construction of an exclusion whenever it is reasonable, even where the construction urged by the insurer appears to be more reasonable. Utica Nat'l Ins. Co., 141 S.W.3d at 202; Altivia Corp. v. Greenwich Ins. Co., 161 S.W.3d 52, 54 (Tex.App.-Houston [14th Dist.] 2004, no pet.).

Even though this is a summary judgment, because of the nature of the declaratory relief sought, a different standard of review is involved than in the normal summary judgment appeal. See Utica Lloyd's of Tex. v. Sitech Eng'g Corp., 38 S.W.3d 260, 263 (Tex.App.-Texarkana 2001, no pet.). Whether an insurer in a liability policy is obligated to defend the insured is a question of law to be decided by the court. State Farm Lloyds v. Kessler, 932 S.W.2d 732, 735 (Tex.App.-Fort Worth 1996, writ denied). In determining whether the insurer is obligated to defend the insured, we are to use the eight corners rule. Nat'l Union Fire Ins. Co., 939 S.W.2d at 141. The eight corners rule compares the provisions within the four corners of the policy with the factual allegations contained within the four corners of the plaintiff's pleadings (in the underlying lawsuit) to determine whether any claim alleged in the pleadings is within the coverage of the policy. Id.

In this case, Hartless's petition is attached as an exhibit to Allstate's motion for summary judgment. It contains no specifics about the nature of the claimed injury, the location of the injury, the way the injury occurred, or any other matter. The petition alleges Hartless suffered injuries November 23, 2002, as a result of Tucker's negligence. Allstate acknowledges these allegations trigger the homeowner's policy and suggests the focus of the case is on the policy exclusions.

We have previously acknowledged that, where the terms of the policy are ambiguous, or where the petition in the underlying suit does not contain factual allegations sufficient to enable the court to determine whether the claims are within the policy coverage, the court may consider extrinsic evidence to assist it in making the determination. Utica Lloyd's of Tex., 38 S.W.3d at 263; Kessler, 932 S.W.2d at 736; State Farm Fire & Cas. Co. v. Wade, 827 S.W.2d 448, 450 (Tex.App.-Corpus Christi 1992, writ denied). Some courts have recognized that extrinsic evidence is allowed in very limited circumstances, including: (1) whether a person has been excluded from coverage, (2) whether the property in the suit has been excluded from any coverage, and (3) whether the policy exists. See Fielder Road Baptist Church v. Guideone Elite Ins. Co., 139 S.W.3d 384, 388 (Tex.App.-Fort Worth 2004, pet. granted).³

Here, both parties have urged that we consider the evidence presented to the trial court. Thus, in this instance, we will review the evidence that was before the trial court at the time that it made its determination and apply that information to our review of the policy to determine whether the court correctly determined Allstate had no duty to defend.

When interpreting the terms of an insurance contract, we follow the general rules of contract construction. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995). Our primary concern is to ascertain the true intent of the parties as expressed in the written contract. Nat'l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995); Vincent v. Bank of Am., N.A., 109 S.W.3d 856, 866 (Tex.App.-Dallas 2003, pet. denied).

Exclusionary clauses acting as limitations on liability are strictly construed against the insurer and in favor of the insured. CBI Indus., Inc., 907 S.W.2d at 520; Vincent, 109 S.W.3d at 866. We are to adopt the construction of an exclusionary clause urged by the insured so long as that construction is not unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties' intent. Utica Nat'l Ins. Co., 141 S.W.3d at 202.⁴

Ownership

It is clear from the summary judgment evidence that Tucker owned the aircraft. Allstate has made no argument to suggest how a personal injury could "arise from" his ownership of the aircraft, and we perceive no way in which that concept could be applied here. To suggest that simply because Tucker owned the aircraft, any personal injury in which the aircraft was implicated in any fashion was excluded does violence to the remaining portion of the exclusory clause. The Texas Supreme Court has held on several occasions that "arise out of" means that there is a causal connection or relation—a "but for" causation—though not necessarily direct or proximate causation. Id. at 203. There is no causal connection between Tucker's ownership of the airplane and the accident. Tucker could be liable for his negligent acts resulting in an accident which caused injuries to Hartless regardless of whether he owned the airplane. The trial court could not have properly rendered summary judgment on that basis.

Maintenance

Maintenance is one of the more clear-cut concepts involved in this phrase. Maintaining a device suggests that some action is being taken to keep it in operating condition, or to make it operable. In a discussion, the Texas Supreme Court has applied that term as encompassing the broader meaning involving the concept of supporting, sustaining, carrying on, and continuing in its purpose-even to the extent of including refueling a vehicle to keep it operable. State Farm Mut. Auto. Ins. Co. v. Pan Am. Ins. Co., 437 S.W.2d 542, 545 (Tex.1969).

Under any definition, there is no evidence to suggest that Tucker and Hartless were involved in maintaining the vehicle. It was inoperable, and there is nothing to indicate their actions had any purpose toward making it operable, either directly or indirectly—and the...