Michelle Latray as Receiver of the Assets of Clifton Boatright for the Benefit of Judgment Creditors W.L. Roberts, Dana Roberts, Erin Leigh Roberts, and Katelyn Robert Gonzales v. Colony Insurance Company D/B/A Colony Specialty Insurance Co. ( 2021 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00350-CV
MICHELLE LATRAY AS RECEIVER OF THE ASSETS OF CLIFTON BOATRIGHT FOR
THE BENEFIT OF JUDGMENT CREDITORS W.L. ROBERTS, DANA ROBERTS, ERIN
LEIGH ROBERTS, AND KATELYN ROBERTS GONZALES, APPELLANT
V.
COLONY INSURANCE COMPANY
D/B/A COLONY SPECIALTY INSURANCE CO., APPELLEE
On Appeal from the 77th District Court
Limestone County, Texas
Trial Court No. 31,528-A; Honorable Patrick Simmons, Presiding
November 4, 2021
MEMORANDUM OPINION ON MOTION FOR REHEARING
Before PIRTLE and PARKER and DOSS, JJ.
By her appeal, Appellant, Michelle Latray, acting as a receiver on behalf of
certain judgment creditors, argued the trial court erred in its summary judgment rulings
because Appellee, Colony Insurance Company, had both the duty to defend and the
duty to indemnify her judgment debtor, Clifton Boatright, and that none of the policy
exclusions asserted by Colony were applicable. By opinion dated January 11, 2021,
this court affirmed the judgment of the trial court. 1
Pending before this court is Appellant’s Motion for Rehearing by which Latray
brings three issues. First, she argues that both this court’s and the trial court’s
interpretation of the facts deprived her of the right to a jury trial regarding the conduct of
Clifton Boatright. She asserts also that this court “ignored other acts other than
dumping.” Second, Latray contends this court should rehear this matter to allow her to
assert reasons for remand to the trial court for a jury determination as to whether
Boatright’s actions were intentional or negligent. Third, Latray complains that this court
failed to follow precedent regarding determination of the duty to defend relying on facts
of the case rather than pleading allegations. While we will deny Appellant’s Motion for
Rehearing, we will withdraw our opinion and judgment dated January 11, 2021, and in
lieu thereof, substitute the following opinion and judgment. 2
BACKGROUND
This appeal arose from an insurance coverage dispute stemming from
Boatright’s dumping of debris onto property owned by W.L. Roberts and others
(hereafter “the Roberts”). The City of Kosse hired Boatright to demolish the town’s old
high school. Their agreement included Boatright’s removal and disposal of the debris
resulting from the demolition. Their agreement also required Boatright to obtain a policy
1 Latray v. Colony Ins. Co., No. 07-19-00350-CV, 2021 Tex. App. LEXIS 168 (Tex. App.—
Amarillo Jan. 11, 2021, no pet. h.) (mem. op.).
2 Originally appealed to the Tenth Court of Appeals, sitting in Waco, this appeal was transferred
to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE
ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Tenth Court of Appeals and
this court on any relevant issue, this appeal will be decided in accordance with the precedent of the
transferor court. TEX. R. APP. P. 41.3.
2
of liability insurance prior to the commencement of demolition. An agent for Colony
issued a policy covering the planned operations.
David Garrett, a friend of Boatright’s and a long-time tenant 3 on the Roberts’
property, asked Boatright if he could take some of the debris to use for purposes of
erosion control. According to Boatright, he mistakenly believed the property on which
Garrett wished to place the debris belonged to Garrett when, in fact, the property
belonged to the Roberts. Boatright did not inquire of Garrett whether he owned that
property. Neither Garrett nor Boatright sought the Roberts’ permission before placing
the debris on the property. Further, neither sought a permit to dump the debris nor did
either man consult an expert regarding erosion control.
Thereafter, Garrett and Boatright took debris 4 from the demolition site and placed
it on the Roberts’ property. At times, Boatright borrowed his mother’s dump truck to
move larger loads of the debris to the property. By the end of the project, Garrett and
Boatright had placed forty tons of debris on the Roberts’ property. The two also
damaged fencing as they entered and exited the property, causing over $8,000 in
property damages. When W.L. Roberts discovered the debris on his property, he filed
suit against Boatright and others for illegal dumping and damage to his land. 5 Roberts
subsequently obtained a judgment against Boatright for $50,000, plus $309 in court
costs. After the judgment became final, the court also issued a Turnover Order
Boatright testified Garrett had lived at that home where the debris was deposited for “nearly
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twenty years.”
4 The debris included brick and metal rebar.
5 W.L. Roberts alleged damages including property damage, cleanup costs, debris removal costs,
soil testing, soil analysis, environmental studies, and attorney’s fees.
3
pursuant to section 31.002 of the Texas Civil Practice and Remedies Code, appointing
Latray as a receiver, to take possession of non-exempt property for the purpose of
liquidating that property for the benefit of Boatright’s judgment creditors. See TEX. CIV.
PRAC. & REM. CODE ANN. § 31.002 (West 2020).
As required by his demolition contract, prior to the commencement of demolition,
Boatright obtained a liability insurance policy issued by Colony. After the judgment
against Boatright was returned and the Turnover Order was issued, Latray sought relief
under the insurance policy issued to Boatright by Colony. When Colony denied that
coverage, Latray filed this suit against Colony for breach of contract, violation of the
Deceptive Trade Practices Act (“DTPA”), 6 violation of section 541 of the Texas
Insurance Code, 7 and breach of the common law duty of good faith and fair dealing.
Colony argued that because Boatright’s actions were intentional, the policy did not
cover Boatright’s acts and thus, it had no duty to defend nor indemnify. Colony filed an
amended traditional motion for summary judgment on that basis. Latray also filed a
motion for partial summary judgment arguing Colony owed Boatright a duty to defend as
a matter of law because, although the conduct was intentional, the alleged negligence
was “accidental” because Boatright was operating under the misconception that he had
authority to dump the debris on the Roberts’ property. She asserted that other acts
committed by Boatright were negligent acts and as such, Colony had both a duty to
defend and indemnify. The trial court granted Colony’s motion for summary judgment
and denied Latray’s motion for partial summary judgment.
6 TEX. BUS. & COM. CODE ANN. § 17.46 (West 2020).
7 TEX. INS. CODE ANN. §§ 541.051-541.061 (West 2009).
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ANALYSIS
STANDARD OF REVIEW
We review a trial court’s ruling on a summary judgment motion under a de novo
standard of review. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In
conducting our review, we take as true all evidence favorable to the nonmovant, and we
indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.
Valence Operating Co., 164 S.W.3d at 661; Knott, 128 S.W.3d at 215.
A party-defendant moving for traditional summary judgment bears the burden of
proving that no genuine issue of material fact exists on at least one essential element of
the plaintiff’s cause of action and that it is entitled to judgment as a matter of law. Mejia-
Rosa v. John Moore Servs., No. 01-17-00955-CV, 2019 Tex. App. LEXIS 6405, at *11-
13 (Tex. App.—Houston [1st Dist.] July 25, 2019, no pet.) (mem. op.) (citing TEX. R. CIV.
P. 166a(c); Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex.
2017)). In that regard, a matter is conclusively established if reasonable people could
not differ as to the conclusions to be drawn from the evidence. Mejia-Rosa, 2019 Tex.
App. LEXIS 6405, at *12 (citing City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.
2005)). If the movant meets its burden, the burden then shifts to the nonmovant to raise
a fact issue precluding summary judgment. Mejia-Rosa, 2019 Tex. App. LEXIS 6405, at
*12 (citing Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)).
When, as here, parties file cross-motions for summary judgment, each party in
support of its motion necessarily takes the position that there is no genuine issue of fact
in the case and that it is entitled to judgment as a matter of law. SW Bell Tel. Co. v.
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Combs, 270 S.W.3d 249, 259-60 (Tex. App.—Amarillo Oct. 28, 2008, pet. denied)
(citing City of Pflugerville v. Capital Metro. Transp. Auth., 123 S.W.3d 106, 109 (Tex.
App.—Austin 2003, pet. denied)). When both parties move for summary judgment on
the same issues and the trial court grants one motion and denies the other, the
reviewing court considers the summary judgment evidence presented by both sides and
determines all questions presented. Combs, 270 S.W.3d at 260 (citing Valence
Operating Co., 164 S.W.3d at 661; Comm’rs Court of Titus County v. Agan, 940 S.W.2d
77, 81 (Tex. 1997)).
Further, when the summary judgment order does not specify the grounds on
which it was granted, as is the case here, the appealing party must demonstrate that
none of the proposed grounds are sufficient to support the judgment. Mejia-Rosa, 2019
Tex. App. LEXIS 6405, at *13 (citing West v. SMG, 318 S.W.3d 430, 437 (Tex. App.—
Houston [1st Dist.] 2010, no pet.)). Therefore, we will affirm a summary judgment ruling
if any of the grounds asserted in the motion are meritorious. Mejia-Rosa, 2019 Tex.
App. LEXIS 6405, at *13 (citations omitted).
ISSUE ONE—DUTY TO DEFEND
Through her first issue on appeal, Latray argued the trial court erred in not
granting her partial motion for summary judgment concerning Colony’s duty to defend.
Colony disagreed, arguing that because there was no coverage, no duty to defend
arose. In the Motion for Rehearing, Latray argues she is entitled to have the trial court’s
ruling on the issue of the duty to defend reheard or reconsidered as a matter of law
because this court is to look only to the pleadings and the policy under the eight corners
rule to determine the duty to defend. Latray contends that in the original petition
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through her third amended petition, she alleged negligent acts. She says those acts are
“very relevant” under Colony’s duty to defend because the “very fact negligence is
alleged” triggers the duty to defend as a matter of law. While Colony asserts the
underlying insured’s actions were intentional, Latray argues that even if true, the
underlying facts are irrelevant as to a duty to defend.
Whether an insurance carrier owes a duty to defend a claim being made against
an insured under an insurance policy is a question of law that we review de novo. St.
Paul Ins. Co. v. Tex. Dep’t of Transp., 999 S.W.2d 881, 884 (Tex. App.—Austin 1999,
pet. denied). Initially, the insured bears the burden of establishing coverage under the
terms of the insurance policy in question. JAW The Pointe, L.L.C. v. Lexington Ins. Co.,
460 S.W.3d 597, 603 (Tex. 2015); StarNet Ins. Co. v. RiceTec, Inc., 586 S.W.3d 434,
444 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (citing Ewing Constr. Co. v.
Amerisure Ins. Co., 420 S.W.3d 30, 33 (Tex. 2014); Gilbert Tex. Constr., L.P. v.
Underwriters at Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010)). To avoid liability
and a duty to defend, the insurer then has the burden to plead and prove that the loss
falls within an exclusion to the policy’s coverage. Gilbert Tex. Constr., L.P., 327 S.W.2d
at 124. See TEX. INS. CODE ANN. § 554.002 (providing that in a “suit to recover under an
insurance . . . contract, the insurer . . . has the burden of proof as to any avoidance or
affirmative defense that the Texas Rules of Civil Procedure require to be affirmatively
pleaded”).
Specifically, the acts sued on must fall within the policy coverage before a duty to
defend arises. Curb v. Tex. Farmers Ins. Co., No. 11-03-00406-CV, 2005 Tex. App.
LEXIS 4480, at *7-9 (Tex. App.—Eastland June 9, 2005, no pet.) (mem. op.). An
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insurer does not owe a duty to defend an insured unless the petition in the underlying
lawsuit contains allegations of fact which fall within the scope of coverage provided for
in the policy of insurance. Id. (citing Nat’l Union Fire Ins. Co. of Pittsburg, Pa. v.
Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997)).
To determine the existence of a duty to defend, we apply the “eight corners rule,”
also known as the “complaint allegation rule[.]” Curb, 2005 Tex. App. LEXIS 4480, at *7
(citation omitted) (citing Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821 (Tex.
1997); Nat’l Union Fire Ins. Co. of Pittsburg, Pa., 939 S.W.2d at 141). Our focus is on
the allegations in the petition that show the origin of the damages; the focus is not on
the legal theories alleged. Curb, 2005 Tex. App. LEXIS 4480, at *8 (citing Cowan, 945
S.W.2d at 821-22). We consider the allegations in the petition in light of the policy
terms without considering either the truth or falsity of the allegations or what the parties
know or believe the true facts to be. Curb, 2005 Tex. App. LEXIS 4480, at *8 (citing
Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 24
(Tex.1965)). The same is true even if there has already been a legal determination of
the facts. Curb, 2005 Tex. App. LEXIS 4480, at *8 (citation omitted). We do not look
outside the pleadings and the policy of insurance in our assessment of whether there is
a duty to defend. Id. (citation omitted). If a petition does not allege facts that fall within
the scope of coverage, an insurer is not required to defend a suit against its insured. Id.(citing Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 848 (Tex.1994)).
However, any doubt as to whether the insurer has a duty to defend should be resolved
in favor of the insured. Archon Invs. v. Great Am. Lloyds Ins. Co., 174 S.W.3d 334, 339
(Tex. App.—Houston [1st Dist.] 2005, pet. denied) (citing King v. Dallas Fire Ins. Co., 85
8
S.W.3d 185, 186 (Tex. 2002); Collier v. Allstate Cnty. Mut. Ins. Co., 64 S.W.3d 54, 59
(Tex. App.—Fort Worth 2001, no pet.)).
Generally, 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. Archon Invs., 174 S.W.3d at 339 (citations omitted). The alleged underlying
facts determine coverage, not the enumerated causes of action. Id. (citations omitted).
A duty to defend any of the claims requires the insurer to defend the entire suit. Id.(citations omitted). However, an insurer’s duty to defend its insured is separate and
distinct from its duty to indemnify, which is not based on the pleadings in the underlying
lawsuit but instead on the facts that establish liability according to the provisions of the
insurance contract. Id. (citation omitted). Furthermore, it arises only after the insured
has been adjudicated legally responsible for damages in a lawsuit by judgment or
settlement. Id. The “duty to defend is thus broader than the duty to indemnify; if an
insurer has no duty to defend, it has no duty to indemnify; but an insurer may have a
duty to defend without being ultimately shown to have a duty to indemnify.” Id. (citations
omitted).
We find the court’s decision in Curb to be illustrative in determining whether
Colony had a duty to defend Boatright as it pertains to the dumping of debris on the
Roberts’ property. In Curb, a high school student and some of his friends strung fishing
line around the courtyard at school with the intent of luring their friends there so that
they would trip over the line. Curb, 2005 Tex. App. LEXIS 4480, at *3-4. After the
students strung the fishing line, they went to look for their friends but got distracted
when they found them and forgot about the fishing line. The next night, a teacher left
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the building and tripped over the line. She was injured and sued the student and his
father for compensation for those injuries. The student sought to have his parent’s
homeowner’s insurance company provide a defense. The insurance company argued
that because the conduct in question was intentional, there was no “accident” and,
therefore, no coverage, and because there was no coverage, it had no duty to defend.
The trial court granted the insurance company’s motion for summary judgment. On
appeal, the appellate court agreed, finding liability did not arise as the result of an
accident because the teacher’s pleadings alleged the student’s acts were exactly what
he intended to do. Id. The court went on to say that “[t]o be accidental, an effect could
not reasonably have been anticipated from the conduct that produced it, and the insured
‘cannot be charged with the design of producing’” the effect. Curb, 2005 Tex. App.
LEXIS 4480, at *11 (citing Mid-Century Ins. Co. of Texas v. Lindsey, 997 S.W.2d 153,
155 (Tex.1999)). Thus, because the injury caused by the student was of the type that
would “ordinarily follow” from his conduct “and the injuries could be ‘reasonably
anticipated from the use of the means, or an effect[,]’” the summary judgment evidence
conclusively established that the insurance company had no duty to defend the student.
Curb, 2005 Tex. App. LEXIS 4480, at *11. Simply stated, there was no accident and,
therefore, no insured occurrence. Id.We reach the same conclusion here as it pertains to Boatright’s dumping of
debris on the property. The policy in question defines an “occurrence” as “an accident,
including continuous or repeated exposure to substantially the same general harmful
conditions.” “Accident” is not defined in the policy. However, the Texas Supreme Court
has stated that an injury is accidental if “from the viewpoint of the insured, [it is] not the
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natural and probable consequence of the action or occurrence which produced the
injury; or in other words, if the injury could not reasonably be anticipated by insured, or
would not ordinarily follow from the action or occurrence which caused the injury.”
Lennar Corp. v. Great Am. Ins. Co., 200 S.W.3d 651, 663 (Tex. App.—Houston [14th
Dist.] 2006, pet. denied) (citing Lindsey, 997 S.W.2d at 155) (quoting Republic Nat’l Life
Ins. Co. v. Heyward, 536 S.W.2d 549, 557 (Tex.1976)). Under this rubric, two factors
bear on the determination of whether an insured’s action constitutes an accident: (1) the
insured’s intent and (2) the reasonably foreseeable effect of the insured’s conduct.
Lennar Corp., 200 S.W.3d at 663 (citation omitted).
The pleadings show Boatright clearly intended to move the debris to the Roberts’
property and leave it there. Because the damage to the property was the very presence
of the debris on the property, the damages were a reasonably foreseeable result of
Boatright’s intentional conduct. Furthermore, the damages claimed were of a type that
ordinarily flowed from the conduct, not damages of an accidental nature. The terms of
the policy establish that it does not cover intentional acts of this nature. Here, the
summary judgment evidence established, as a matter of law, that the placement of the
debris on the property was no accident and, therefore, no “occurrence” under the terms
of the policy. Because there was no occurrence, there was no coverage concerning the
dumping of debris.
However, the same is not true with regard to the claims brought by Latray
concerning other negligent acts of Boatright, particularly the damage to the fencing that
occurred as Boatright and Garrett entered and exited the Roberts’ property. Latray
alleged that Garrett, as agent for Boatright, was negligent in operating a commercial
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vehicle (a dump truck) without authorization of the owner, and among other acts,
knocked down fencing as he drove onto and off the property, causing over $8,000 in
damage. She also notes some of the damage was caused by Garrett’s truck and trailer.
Garrett and Boatright intended to use the dump truck and truck and trailer to move the
debris onto the property. However, they did not intend to damage the fencing on the
property as they did so. As such, Latray contends, the result of damaged fencing was
not a reasonably foreseeable effect of using the vehicles to move debris from the school
to the Roberts’ property.
Nevertheless, the insurance policy here included an auto exclusion. That
provision reads as follows:
Aircraft, Auto or Watercraft
“Bodily injury” or “property damage” arising out of the ownership,
maintenance, use or entrustment to others of any aircraft, “auto” or
watercraft owned or operated by or rented or loaned to any insured. Use
includes operation and “loading or unloading.”
This exclusion applies even if the claims against any insured allege
negligence or other wrongdoing in the supervision, hiring, employment,
training or monitoring of others by that insured, if the “occurrence” which
caused the “bodily injury” or “property damage” involved the ownership,
maintenance, use or entrustment to others of any aircraft, “auto” or
watercraft that is owned or operated by or rented or loaned to any insured.
This exclusion does not apply to:
(1) A watercraft while ashore on premises you own or rent;
(2) A watercraft you do not own that is:
(a) Less than 26 feet long; and
(b) Not being used to carry persons or property
for a charge;
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(3) Parking an “auto” on, or on the ways next to, premises
you own or rent, provided the “auto” is not owned by or
rented or loaned to you or the insured;
(4) Liability assumed under any “insured contract” for the
ownership, maintenance or use of aircraft or watercraft;
or
(5) “Bodily injury” or “property damage” arising out of:
(a) The operation of machinery or equipment
that is attached to, or part of, a land vehicle
that would qualify under the definition of
“mobile equipment” if it were not subject to
a compulsory or financial responsibility law
or other motor vehicle insurance law in the
sate where it is licensed or principally
garaged; or
(b) The operation of any of the machinery or
equipment listed in Paragraph f.(2) or f.(3)
of the definition of “mobile equipment.”
Latray argues the auto exclusion does not apply “to the completed operations
covered under the policy because the damage was caused by negligent actions and
decision making . . . the dump truck itself didn’t cause the accidental property damages,
but flawed, negligent disposal operations, and negligent decision making. The very fact
[Boatright] operated a commercial dump truck without permission, or a CDL, was failure
to use ordinary care and to act as a reasonably prudent person in attempting to
complete his operations.” Latray also applies this reasoning to the “unloading and
loading” exclusion and says the policy language is ambiguous. We disagree with each
of Latray’s assertions.
Colony argues the auto exclusion quoted above “extinguishes [its] duty to defend
and duty to indemnify Boatright.” We agree. As support for its argument, Colony notes
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the exclusion applies to the “use of an auto” and points us to the Texas Supreme
Court’s opinion in Lindsey, 997 S.W.2d at 157. There, the Court stated as follows:
[f]or an injury to fall within the “use” coverage of an automobile policy (1)
the accident must have arisen out of the inherent nature of the automobile,
as such, (2) the accident must have arisen within the natural territorial
limits of an automobile, and the actual use must not have terminated, (3)
the automobile must not merely contribute to cause the condition which
produces the injury, but must itself produce the injury.
Lindsey, 997 S.W.2d at 157 (citations omitted). See also Lyons v. State Farm Lloyds &
Nat’l Cas. Co., 41 S.W.3d 201, 205 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).
A fourth factor is also to be examined: “whether a person is using a vehicle as a vehicle
depends not only on his or her conduct, but on his or her intent.” Tucker v. Allstate Tex.
Lloyds Ins. Co., 180 S.W.3d 880, 887 (Tex. App.—Texarkana 2005, no pet.).
As noted by Colony, the damages in this matter arose from the use of an “auto,”
i.e., the dump truck, that Boatright admitted he borrowed from his mother and that he
admitted he operated to dump the debris onto the Roberts’ property. He said he took
approximately fifteen dump truck loads of about two and a half tons each from the site
to the Roberts’ property. Thus, Boatright’s intent was to use the dump truck as a dump
truck. The damages to the land and to the fencing were a direct result of Boatright’s
use of the dump truck, an “auto” as set forth in the auto exclusion provision of the policy.
Thus, each of the requisites of the test set forth in Lindsey are satisfied here.
Latray also makes a secondary argument that some of the damages were
caused by Garrett’s truck and trailer and that the trailer would be a covered exclusion,
although she argues his negligent actions would be covered as a volunteer worker. We
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first note that the policy defines “auto” to mean “a land motor vehicle, trailer or
semitrailer designed for travel on public roads, including any attached machinery or
equipment.” Therefore, the exclusion would apply to Garrett’s truck and trailer. Colony
responds to Latray’s additional arguments, stating (1) that Garrett is not a volunteer
worker as defined in the policy, (2) the portion of the policy Latray references related to
medical coverage payments, not the provision at issue here, and (3) that there is no
judgment against Garrett and thus, Colony has no duty to him in any event. Based on
our review of the pleadings and the policy, we agree with each of Colony’s responses.
Additionally, while Latray argues the auto exclusion did not apply because
Boatright did not own the dump truck and was not authorized to use it, neither of those
facts negate the application of the exclusion. Indeed, the exclusion applies to “autos”
that are “operated by or rented or loaned to any insured.” Likewise, the exclusion does
not require that the operator of the “auto” be authorized to use it and even if it did,
Boatright testified his mother permitted him to use the dump truck. Latray does not
make any similar arguments regarding Garrett’s truck and trailer.
Latray’s other arguments supporting her assertion that the exclusion did not
apply also fail. She argues the exclusion did not apply because the damages of which
she complained were not caused “solely” by the use of the dump truck but also through
the use of Garrett’s truck and trailer. The exclusion requires only that the property
damage is of the sort “arising out of” the use of the “auto.” The Texas Supreme Court
has defined the phrase “arising out of” to mean “originating from, having its origin in,
growing out of or flowing from.” Lancer Ins. Co. v. Garcia Holiday Tours, 345 S.W.3d
50, 54 (Tex. 2011). It has also said that “‘arise out of’ means that there is simply a
15
‘causal connection or relation,’ Mid-Century Insurance Co., 997 S.W.2d at 156 (Tex.
1999), which is interpreted to mean that there is but-for causation, though not
necessarily direct or proximate causation.” Utica Nat’l Ins. Co. v. Am. Indem. Co., 141
S.W.3d 198, 203 (Tex. 2004) (citations omitted). A review of the pleadings and the
policy before us certainly show the complained-of damages satisfy these definitions of
“arising out of.”
Latray further argues that the auto exclusion does not apply because the
damages were caused by Boatright’s negligence, including his negligence in failing to
obtain a permit, his negligence in failing to obtain a commercial driver’s license, or his
negligence through failing to supervise Garrett. Even assuming all acts causing the
damages were negligent, the auto exclusion explicitly states, “[t]his exclusion applies
even if the claims against any insured allege negligence or other wrongdoing in the
supervision, hiring, employment, training or monitoring of others by that insured, if the
‘occurrence’ which caused the ‘bodily injury’ or ‘property damage’ involved the
ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or
watercraft that is owned or operated by or rented or loaned to any insured.” Therefore,
we cannot agree with Latray’s contention.
Lastly, Latray argues “[t]he damage was not excluded under this section and is
ambiguous at best, see policy language[.]” While she identifies the page number of the
record on which the policy language may be found, she does not identify which
provision is ambiguous nor does she explain how any provision is ambiguous. Further,
she does not assert an alternative interpretation of the exclusion. As such, Latray has
waived this aspect of her argument and we will not address it. TEX. R. APP. P. 38.9
16
(requiring a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record). We overrule Latray’s first issue.
ISSUE TWO—DUTY TO INDEMNIFY
Similar to the position taken in her first issue, by the second issue, Latray
contended the trial court erred in granting Colony’s motion for summary judgment
because there was a contested fact issue concerning whether Boatright’s actions
constituted an “occurrence” under the policy. Latray argued Boatright’s actions were
negligent in nature rather than intentional, and thus, the policy provided coverage and
the company owed a duty to indemnify. Colony contended the evidence showed
Boatright’s actions were intentional and there was no “occurrence” under the policy,
thus establishing there was no coverage and no duty to indemnify.
The issue of whether Colony had a duty to indemnify is a legal issue to be
reviewed de novo. Great Am. Lloyds Ins. Co. v. Mittlestadt, 109 S.W.3d 784, 786 (Tex.
App.—Fort Worth 2003, no pet.). Under the terms of the policy here, for there to be an
“occurrence,” there must have been an “accident,” causing property damage. As the
parties note, two lines of cases regarding “occurrence” have evolved in this area.
The first line of cases, the “Maupin line,” pertains to coverage of claims against
an insured for damage caused by the insured’s intentional torts. See Argonaut Sw. Ins.
Co. v. Maupin, 500 S.W.2d 633 (Tex. 1973); KB Home v. Emps. Mut. Cas. Co., No. 2-
06-383-CV, 2008 Tex. App. LEXIS 771, at *17-20 (Tex. App.—Fort Worth Jan. 31,
2008, no pet.) (mem. op.) (citing Gehan Homes, Ltd. v. Emps. Mut. Cas. Co., 146
S.W.3d 833 (Tex. App.—Dallas 2004, no pet.); Federated Mut. Ins. Co. v. Grapevine
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Excavation, Inc., 197 F.3d 720, 723 (5th Cir. 1999)). Colony argues that this line of
cases applies here.
In Maupin, the plaintiffs alleged that the insured acted intentionally, wrongfully,
and willfully, when it took fill material from the plaintiffs’ property without their consent.
The appellate court held that there was no “occurrence” because the conduct was
alleged to be intentional. Maupin involved a contract between the State of Texas and
Maupin, part of which entailed the acquisition of “borrow material” for roadway fills.
Maupin, 500 S.W.2d at 634. Maupin contracted with a third party for the purchase of
that material. Id. Maupin then removed about 5,744 cubic feet of the material from the
property. Id. at 635. It was later determined that the person with whom Maupin had
contracted for removal of the material did not own the property but rather, was a tenant-
in-possession. Id. While Maupin argued there was no intent to injure the landowners
and that the removal of the material from the property was done under the authority of a
contract, the court found that intent was irrelevant. Id. The court noted that the damage
complained of there was the removal of the large amount of material from the property
without the owner’s consent. Thus, Maupin “did exactly what they intended to do. The
fact that they did not deal originally with the owners of the property was the mistake or
error. There was no insurance against liability for damages caused by mistake or error.”
Id. Further, the court concluded Maupin’s act in trespassing on the property did not
constitute an accident; Maupin did what they intended to do by removing the material
from the property. Id. Furthermore, the fact that Maupin was unaware of the true owner
of the property had “no bearing upon whether the trespass was caused by accident.
[Maupin’s] acts were voluntary and intentional, even though the result or injury may
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have been unexpected, unforeseen and unintended.” Id. Consequently, the Court
determined there was “no coverage under the policy for damages caused by mistake or
error as to the ownership of the property in question. The damage was not an accident
or occurrence within the meaning of this policy.” Id. at 635.
The second line of cases comes from the Texas Supreme Court’s decision in
Mass. Bonding & Ins. Co. v. Orkin Exterminating Co., 416 S.W.2d 396 (Tex. 1967). In
that case, the Court found that the term “accident,” as used in the insurance policy at
issue, included negligent acts causing damages that were “undesigned and
unexpected.” Id. at 400. Likewise, subsequent cases have held that the terms
“accident” and “occurrence” include damages that are unexpected, unforeseen, or
undesigned as a result of an insured’s intentional, but negligent behavior. KB Home,
2008 Tex. App. LEXIS 771, at *19 (citing Great Am. Ins. Co. v. Calli Homes, Inc., 236
F.Supp.2d 693, 699 (S.D. Tex. 2002)). It is this line of cases Latray seeks to apply to
the insurance policy in question in this proceeding, arguing that the damages to the
Roberts’ property were unexpected and unforeseen based on Boatright’s mistaken
belief that he had permission to deposit the debris on the property.
As is pertinent to the case now before us, one such case interpreting this second
line of cases is the decision by the Dallas Court of Appeals in Hallman v. Allstate Ins.
Co., 114 S.W.3d 656 (Tex. App.—Dallas 2003), rev’d on other grounds, 159 S.W.3d
640 (Tex. 2005), wherein the court observed:
There is not an accident when the action is intentionally taken and
performed in such a manner that it is an intentional tort, regardless of
whether the effect was unintended or unexpected. However, there is an
accident when the action is intentionally taken but is performed negligently
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and the effect is not what would have been intended or expected had the
deliberate action been performed non-negligently.
Id. at 660-61 (citations omitted). Similarly, in 2004, in Gehan Homes, Ltd., 146 S.W.3d
at 842, the Dallas Court of Appeals analyzed the situation before it in light of the
language in Hallman and determined that the insurers did not establish as a matter of
law that the petition failed to allege an “occurrence” under the terms of the policy where
the “intentional act of performing the contract was allegedly performed negligently. The
purported damage was an unexpected and undesigned consequence of Gehan’s
alleged negligence.” Id. at 843 (citations omitted).
We do not agree the same is true here regarding the dumping of debris. The
undisputed evidence in the record before us shows Boatright intended to move the
debris onto the Roberts’ property and he intended to leave it there. Furthermore, there
were no allegations that Boatright was negligent in the performance of those acts. The
damage sustained was the consequence of the simple presence of the debris on the
Roberts’ land. This is similar to, albeit the reverse of, the removal of material from the
land in Maupin. There, Maupin intended to remove the material from the property and
the damage to the land was the removal of that material—under the mistaken belief
they had permission to do so—resulting in a finding of no accident and no insurance
coverage against liability for damages caused by that mistake or error. Maupin, 500
S.W.2d at 635. Nothing in the record indicates Boatright’s intentional acts were
performed negligently, as in Orkin. Rather, the contract with the City of Kosse required
Boatright to demolish the old high school and remove the debris. In the performance of
that contract, Boatright intentionally removed the debris and placed it on the Roberts’
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property—under the mistaken belief he had permission to do so—resulting in damage to
the property from the mere presence of the debris itself, not some unintended
consequence of Boatright’s intentional act.
Additionally, Boatright’s conduct is distinguishable from the conduct of the
exterminator in Orkin who intentionally sprayed the rice mill but did so in a negligent
manner, resulting in unexpected damages to the rice. Orkin Exterminating Co., 416
S.W.2d at 400-01. Had that contract been performed properly, the rice would not have
been damaged at all. Conversely, in this case, no matter how carefully Boatright
performed the acts he did, the same damages would still have occurred. Because the
damages sustained in this cause were not proximately caused by an error or mistake
and not by any negligent acts, Boatright’s conduct and resultant liability are far more
akin to the contractor in Maupin than it is the exterminator in Orkin. As such, under the
pleadings and facts of this case, we find the Maupin line of cases to be controlling.
We have reviewed the summary judgment record and there is nothing in the
record which would show Boatright’s actions were anything other than intentional.
Typically, whether an insured intended the injury to occur is a question of fact. Curb,
2005 Tex. App. LEXIS 4480, at *13-14 (citation omitted). However, there are instances
where the actions of an individual are intentional as a matter of law. Id. The origin of
the injury in this case was Boatright’s deposit of debris on the Roberts’ land. “When a
result is the natural and probable consequence of an act or course of action, it is not
produced by accidental means. The natural result of an act is the result that ordinarily
follows, maybe reasonably anticipated, and ought to be expected.” Id. This is an
objective standard. Id. Further, a “person is held to intend the natural and probable
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results of his acts even if he did not subjectively intend or anticipate those
consequences.” Id. (citing Wessinger v. Fire Ins. Exch., 949 S.W.2d 834 (Tex. App.—
Dallas 1997, no pet.)). Thus, Boatright acted intentionally even if he did not intend the
result, i.e., to injure the Roberts. According to Boatright, he believed Garrett to be the
owner of the land and that Garrett was using the debris for erosion control. According
to Garrett, he believed he was doing the right thing by using the debris for erosion
control. But, none of that is relevant to whether Boatright’s actions were intentional and
thus not covered by the terms of the policy. Based on the record before us and
reviewing the evidence in the requisite light, we find there was no “occurrence” under
the policy and consequently, no coverage as it pertains to the dumping of the debris on
the Roberts’ property.
That said, as with the duty to defend, the same is not true with regard to Latray’s
claims of negligence with regard to other negligent acts like the damages to the fencing.
As we have discussed in our analysis herein, the conduct of moving and dumping the
debris was an intentional act. But, as Latray alleged in her pleadings, the damage to
the fencing on the Roberts’ property occurred through the negligent use of the dump
truck and Garrett’s truck and trailer during ingress and egress to the property and during
dumping of the debris. Garrett and Boatright caused damage to the fencing by their use
of the vehicles but the damage to the fence was “unexpected, unforeseen, or
undesigned” as a result of their intentional but negligent use of the vehicles. This is akin
to the negligent spraying that occurred in Orkin. See Orkin Exterminating Co., 416
S.W.2d at 400-01. In that case, if the spraying had been performed properly, there
would have been no damage to the rice. Here, if Garrett and Boatright had properly
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used the vehicles to enter and exit the property and while dumping the debris, the
fencing would not have been damaged. However, as we discussed at length in our
analysis of Colony’s duty to defend, the auto exclusion included in the policy applies
here and therefore, there was no coverage and Colony has no duty to indemnify
Boatright. See Collier v. Allstate County Mut. Ins. Co., 64 S.W.3d 54, 62 (Tex. App.—
Fort Worth 2001, no pet.) (finding no duty to indemnify for same reasons there was no
duty to defend). See also Yorkshire Ins. Co. v. Diatom Drilling Co., 280 S.W.3d 278,
283 (Tex. App.—Amarillo 2007, pet. denied) (rendering take-nothing judgment against
alleged insured due to policy exclusion). We overrule Latray’s second issue.
REMAINING ISSUES
Latray also brought claims of violations of the DTPA, Texas Insurance Code, and
common law duty of good faith and fair dealing. However, in her motion for rehearing,
she does not identify any specific error in this court’s opinion with regard to those
claims. We thus will not further address those remaining issues.
CONCLUSION
We deny Appellant’s Motion for Rehearing for the reasons stated herein and
affirm the judgment of the trial court.
Patrick A. Pirtle
Justice
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