Vest v. Gulf Ins. Co.
| Decision Date | 21 March 1991 |
| Docket Number | No. 05-90-00945-CV,05-90-00945-CV |
| Citation | 809 S.W.2d 531 |
| Parties | Jerry L. VEST and Beverly Vest, Appellants, v. GULF INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Michael Sloan, McKinney, for appellants.
David J. Schubert, Aaron L. Mitchell, Dallas, for appellee.
Before ENOCH, C.J., and BAKER and BURNETT, JJ.
Jerry L. Vest and Beverly Vest appeal the summary judgment rendered in favor of Gulf Insurance Company in this breach of contract action. In two points of error, the Vests contend that the trial court erred when it granted Gulf's motion for summary judgment and when it failed to grant their motion for summary judgment. We overrule both points of error. We affirm the trial court's judgment.
A fire destroyed the Vests' home and its contents. Gulf paid the policy limits on both the house and its contents under its policy with the Vests. The actual damages sustained by the Vests because of the total loss of their home and its contents exceeded the policy limits. Because of language in the policy, which sets forth various damage measures, the Vests demanded that Gulf pay their actual damages. Gulf refused. The Vests filed suit alleging breach of contract and sought a declaratory judgment to determine the rights of the parties under the policy. Both parties moved for summary judgment. The trial court granted Gulf's summary judgment. The court found that the policy was unambiguous as a matter of law and that Gulf had fulfilled its obligations under the policy.
In two points of error, the Vests contend that the trial court erred when it granted Gulf's motion for summary judgment and when it failed to grant their motion for summary judgment. They argue that the policy is ambiguous as to the measurement of damages. They claim Gulf failed to establish that it paid the entire amount due them under the policy. Further, the Vests argue that because of the ambiguity they established as a matter of law their right to the actual damages sustained as a result of the loss of their home and its contents.
Summary judgment may be rendered only if the pleadings, depositions, admissions, and affidavits show (1) that there is no genuine issue as to any material fact and (2) that the moving party is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). A summary judgment seeks to eliminate patently unmeritorious claims and untenable defenses, not to deny a party its right to a full hearing on the merits of any real issue of fact. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952).
Under rule 166a, both plaintiff and defendant may simultaneously move for summary judgment. When both parties move for summary judgment, each party must carry its own burden, and neither can prevail because of the failure of the other to discharge its burden. Cove Inv., Inc. v. Manges, 602 S.W.2d 512, 514 (Tex.1980). To prevail on a summary judgment, a plaintiff must conclusively prove all of the elements of the cause of action as a matter of law. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); TEX.R.CIV.P. 166a. To establish their right to summary judgment, the Vests needed to prove that there was no genuine issue of material fact that Gulf owed them the entire amount of their actual damages, without limitation, as a matter of law. In contrast, a defendant as movant must either (1) disprove at least one element of each of plaintiff's theories of recovery or (2) plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979). To establish its right to summary judgment, Gulf had to plead and conclusively establish that it fulfilled its obligations under the policy and that its liability is restricted to the amounts stated in the policy, thereby rebutting the Vests' cause of action. Since both parties moved for summary judgment, this Court considers all evidence accompanying both motions in determining whether to grant either party's motion. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 401 (1958).
The rules of construction that control contracts also control insurance policies. Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 665 (Tex.1987). The question of whether an insurance provision is ambiguous is a question of law for the court to decide. Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex.1983). An insurance provision is ambiguous when it is susceptible to two or more inconsistent interpretations, both of which are fair and reasonable. Entzminger v. Provident Life & Accident Ins. Co., 652 S.W.2d 533, 535 (Tex.App.--Houston [1st Dist.] 1983, no writ). The court will interpret and liberally construe insurance policies in favor of the insured and strictly against the insurer, especially when dealing with exceptions and words of limitation. Kelly Assoc. v. Aetna Cas. & Sur. Co., 681 S.W.2d 593, 596 (Tex.1984). However, this rule applies only when an ambiguity exists in the policy. Courts should not strain to find an ambiguity, if, in doing so, they defeat the probable intentions of the parties, even though the insured may suffer an apparent harsh result as a consequence. Courts attempt to construe a contract so as to avoid rendering any of its terms meaningless. Yancey v. Floyd West & Co., 755 S.W.2d 914, 918 (Tex.App.--Fort Worth 1988, writ denied).
The Vests' insurance policy provided in pertinent part:
LIMITS OF LIABILITY COVERAGES
$58,000 A Dwelling
$34,000 B Unscheduled Personal Property
....
... Unless otherwise provided, this insurance shall apply only at the premises of the dwelling described on Page 1, and liability of the Company shall not exceed: the specified Limits of Liability; nor, the actual cash value of the property at the time of loss ascertained with proper deduction for depreciation; nor, the amount it would cost to repair or replace the property with like kind and quality, with proper deduction for depreciation, within a reasonable time after the loss without allowance for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair; nor shall it exceed the interest of the Insured.
....
REPLACEMENT COST COVERAGE--If at the time of loss the Limit of Liability applicable to the described dwelling is 80% or more of the full replacement cost of said dwelling, the coverage of the policy applicable to the building structure suffering loss is extended to include the full cost of repair or replacement (without deduction for...
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