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
January 11, 2021
MEMORANDUM OPINION
Before PIRTLE, PARKER, and DOSS, JJ.
Appellant, Michelle Latray, acting as a receiver on behalf of certain judgment
creditors, appeals the trial court’s rendition of summary judgment in favor of Appellee,
Colony Insurance Company d/b/a Colony Specialty Insurance Company (hereinafter
“Colony”). Latray also appeals the trial court’s denial of her motion for partial summary
judgment. Through her appeal, Latray argues the trial court erred in its rulings because
Colony 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. We
will affirm the judgment of the trial court.
BACKGROUND
This appeal arises from an insurance coverage dispute stemming from Boatright’s
dumping of debris onto property owned by W.L. Roberts and others. 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 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 1 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 Robertses. Neither Garrett nor Boatright sought the Roberts’ permission
before placing the debris on the property.
Thereafter, Garrett and Boatright took debris 2 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
1 Boatright testified Garrett had lived at that home where the debris was deposited for “nearly twenty
years.”
2 The debris included brick and metal rebar.
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had placed forty tons of debris on the Roberts’ property. 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. 3 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 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”), 4 violation of section 541 of the Texas Insurance
Code, 5 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
3 W.L. Roberts alleged damages including property damage, cleanup costs, debris removal costs,
soil testing, soil analysis, environmental studies, and attorney’s fees.
4 TEX. BUS. & COM. CODE ANN. § 17.46 (West 2020).
5 TEX. INS. CODE ANN. §§ 541.051-541.061 (West 2009).
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Boatright was operating under the misconception that he had authority to dump the debris
on the Roberts’ property. The trial court granted Colony’s motion for summary judgment
and denied Latray’s motion for partial summary judgment.
On appeal, Latray contends the trial court erred in granting Colony’s motion for
summary judgment and in denying her motion for partial summary judgment because the
acts of Boatright and Garrett were negligent in nature, not intentional, and thus the policy
provided coverage. Latray argues that the issue is whether Boatright’s intentional acts of
taking the debris to the Roberts’ property and leaving it where Garrett directed constituted
an “occurrence” under the insurance policy. Colony contends those acts do not and thus,
there was no coverage under the policy and the trial court did not err in its rulings.
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-
4
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.
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
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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, Latray argues the trial court erred in not granting her partial
motion for summary judgment concerning Colony’s duty to defend. Colony disagrees,
arguing that because there was no coverage, no duty to defend arose.
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 upon 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.
6
LEXIS 4480, at *7-9 (Tex. App.—Eastland June 9, 2005, no pet.) (mem. op.). An 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
7
[1st Dist.] 2005, pet. denied) (citing King v. Dallas Fire Ins. Co., 85 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. 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 the building and tripped over the line. She was injured and sued the student
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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.The same is true here. 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 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
9
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 Mid-Century Ins. Co. v. Lindsey, 997 S.W.2d 153, 155 (Tex. 1999)
(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. Furthermore,
contrary to Latray’s contention, the mere assertion of negligence is not sufficient to trigger
a duty to defend as that duty is dependent on the allegations in the pleadings and the
policy coverage, not the asserted legal theories. Curb, 2005 Tex. App. LEXIS 4480, at
*8; Freedman v. Cigna Ins. Co. of Tex., 976 S.W.2d 776, 779 (Tex. App.—Houston [1st
Dist.] 1998, no pet.). 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. And because there was no coverage, Colony was under no duty to defend
Boatright in the claims brought by Latray. We resolve Latray’s first issue against her.
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ISSUE TWO—DUTY TO INDEMNIFY
Similar to the position taken in her first issue, by the second issue, Latray contends
the trial court erred in granting Colony’s motion for summary judgment because there is
a contested fact issue concerning whether Boatright’s actions constituted an “occurrence”
under the policy. Latray argues Boatright’s actions were negligent in nature rather than
intentional, and thus, the policy provided coverage. Again, Colony contends the evidence
shows Boatright’s actions were intentional and there was no “occurrence” under the
policy, thus establishing there was no coverage and no duty to indemnify. We agree with
Colony’s contention.
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 Excavation, Inc., 197
F.3d 720, 723 (5th Cir. 1999)). Colony argues that this line of cases applies here.
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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 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
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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 Dallas Court of Appeals’s decision 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
and the effect is not what would have been intended or expected had the
deliberate action been performed non-negligently.
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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. 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. 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’ 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.
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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 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 Robertses.
15
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.
Therefore, the trial court did not err in granting summary judgment in favor of Colony
because there was no duty to indemnify under these facts. We overrule Latray’s second
issue.
REMAINING ISSUES
Latray’s claims of violations of the DTPA, Texas Insurance Code, and common law
duty of good faith and fair dealing require a finding of coverage under the policy of
insurance in question. As we have explained above, under the express terms of the policy
there was no coverage. Because no coverage exists, summary judgment was proper as
to these claims. KB Home, 2008 Tex. App. LEXIS 771, at *23-24 (citing Emmert v.
Progressive Cnty. Mut. Ins. Co., 882 S.W.2d 32, 36 (Tex. App.—Tyler 1994, writ denied);
Bartlett v. Am. Republic Ins. Co., 845 S.W.2d 342, 348-49 (Tex. App.—Dallas 1992, no
writ); Koral Indus., Inc. v. Sec.-Conn. Life Ins. Co., 788 S.W.2d 136, 147 (Tex. App.—
Dallas 1990, no writ)). We overrule Latray’s remaining issues.
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CONCLUSION
Having overruled each of Latray’s appellate issues, we affirm the judgment of the
trial court.
Patrick A. Pirtle
Justice
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