United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
FISH Senior United States District Judge.
the court is the plaintiff's motion for summary judgment
(docket entry 29). For the reasons stated below, the
plaintiff's motion is granted.
plaintiff, Evanston Insurance Company
(“Evanston”), brought this action seeking a
judgment declaring that it has no duty to defend the insured,
Omar Soto (“Soto”) and The Alden Roofing Company,
LLC (“Alden”), in a pending state court
action. See generally Evanston's
Complaint and Request for Declaratory Judgment
(“Complaint”) (docket entry 1). On May 8, 2015,
Evanston issued a one-year general liability insurance policy
to Soto, who owns a residential roofing
business.See id. ¶ 8 (citing Exhibit
A). On July 13, 2015, Jose Valdez-Arevalo
(“Valdez-Arevalo”) fell and was injured while
working on a roof for Soto. Brief in Support of Its Motion
for Summary Judgment (“Evanston's Brief”) at
4 (docket entry 25); Appendix in Support of Evanston's
Motion for Summary Judgment (“Appendix”) at 62-63
(docket entry 27).
plaintiffs in the state court action, Valdez-Arevalo and his
wife Carolina Garcia (“Garcia”), assert claims
for negligence against Soto and are seeking monetary
damages. Id. at 65-66. Specifically,
Valdez-Arevalo and Garcia assert that Soto failed to provide
Valdez-Arevalo with a safe work area and the requisite safety
equipment. See id. at 63-64. Soto and Alden have
requested defense and indemnity from Evanston under the
policy in the state court action. Complaint ¶ 9.
Evanston agreed to defend Soto subject to a reservation of
rights. Id. ¶ 11.
commenced this action on September 13, 2016, seeking a
declaration that it has no duty to defend or indemnify Soto
or Alden in the state court action. Id. ¶¶
12-20. On February 22, 2017, Evanston filed the instant
motion for summary judgment. Evanston's Motion for
Summary Judgment (docket entry 29). The defendants did not
file a response. The motion is now ripe for decision.
judgment is proper when the pleadings, depositions,
admissions, disclosure materials on file, and affidavits, if
any, “show[ ] that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a),
(c)(1). A fact is material if the governing
substantive law identifies it as having the potential to
affect the outcome of the suit. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). An issue as to a
material fact is genuine “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id.; see also Bazan ex rel. Bazan
v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001)
(“An issue is ‘genuine' if it is real and
substantial, as opposed to merely formal, pretended, or a
sham.”). To demonstrate a genuine issue as to the
material facts, the nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Electric Industrial
Company v. Zenith Radio Corporation, 475 U.S. 574, 586
(1986). The nonmoving party must show that the evidence is
sufficient to support the resolution of the material factual
issues in his favor. Anderson, 477 U.S. at 249
(citing First National Bank of Arizona v. Cities Service
Company, 391 U.S. 253, 288-89 (1968)).
evaluating a motion for summary judgment, the court views the
evidence in the light most favorable to the nonmoving party.
Id. at 255 (citing Adickes v. S.H. Kress &
Company, 398 U.S. 144, 158-59 (1970)). However, it is
not incumbent upon the court to comb the record in search of
evidence that creates a genuine issue as to a material fact.
See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir.
2003). The nonmoving party has a duty to designate the
evidence in the record that establishes the existence of
genuine issues as to the material facts. Celotex
Corporation v. Catrett, 477 U.S. 317, 324 (1986).
“When evidence exists in the summary judgment record
but the nonmovant fails even to refer to it in the response
to the motion for summary judgment, that evidence is not
properly before the district court.” Malacara,
353 F.3d at 405.
Duty to Defend
follows the “eight-corners” rule of insurance
contract interpretation. See, e.g., GuideOne
Elite Insurance Company v. Fielder Road Baptist Church,
197 S.W.3d 305, 308 (Tex. 2006). This rule instructs courts
to determine whether an insurer has a duty to defend based
solely on the language contained within the four corners of
the insurance policy and the allegations contained within the
four corners of the plaintiff's pleadings. Allstate
Insurance Company v. Disability Services of the Southwest,
Inc., 400 F.3d 260, 263 (5th Cir. 2005); National
Union Fire Insurance Company of Pittsburgh, Pa. v. Merchants
Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997)
(per curiam). If the pleadings allege facts stating a cause
of action that potentially falls within the insurance
policy's scope of coverage, the insurer has a duty to
defend. Liberty Mutual Insurance Company v. Graham,
473 F.3d 596, 600 (5th Cir. 2006). The duty is determined
based on the presumption that the allegations in the
plaintiff's pleadings are true. Disability Services
of the Southwest, 400 F.3d at 263; Fielder Road
Baptist Church, 197 S.W.3d at 308. The insured bears the
initial burden of showing that there is coverage, while the
insurer bears the burden of showing that any exclusion in the
policy applies. Trinity Universal Insurance Company v.
Employers Mutual Casualty Company, 592 F.3d 687, 691-92
(5th Cir. 2010). “If an insurer has a duty to defend
its insured against any portion of the underlying suit, then
the insurer is required to defend the entire suit.”
General Star Indemnity Company v. Gulf Coast Marine
Associates, Inc., 252 S.W.3d 450, 455 (Tex.
App.--Houston [14th Dist.] 2008, pet. denied).
of countervailing considerations guides the court's
review of the facts alleged within the four corners of the
underlying pleadings. On the one hand, “the
insurer's duty to defend is limited to those claims
actually asserted in an underlying suit” and does not
extend to “a claim that might have been alleged but was
not, or a claim that more closely tracks the true factual
circumstances surrounding the third-party claimant's
injuries but which, for whatever reason, has not been
asserted.” Pine Oak Builders, Inc. v. Great
American Lloyds Insurance Company, 279 S.W.3d 650,
655-56 (Tex. 2009). “If the petition only alleges facts
excluded by the policy, the insurer is not required to
defend.” Id. at 655 (citation and internal
quotation marks omitted). The court must not “(1) read
facts into the pleadings, (2) look outside the pleadings, or
(3) imagine factual scenarios which might trigger
coverage.” Gore Design Completions, Limited v.
Hartford Fire Insurance Company, 538 F.3d 365, 369 (5th
Cir. 2008) (citation and internal quotation marks omitted).
On the other hand, the factual allegations that are contained
within the pleadings must be liberally construed: “If
the petition does not state facts sufficient to bring the
case clearly within or outside the insured's coverage,
the insurer is obligated to defend if potentially
there is a claim under the complaint within the coverage of
the insured's policy.” Gulf Coast Marine
Associates, 252 S.W.3d at 454 (citing Merchants Fast
Motor Lines, 939 S.W.2d at 141) (emphasis in original).
A court may draw reasonable inferences from the pleadings
that trigger an insurer's duty to defend, id. at
456, and doubts about whether “‘the allegations
of a complaint against the insured . . . [are] sufficient to
compel the insurer to defend the action . . . will be
resolved in [the] insured's favor.'”
Merchants Fast Motor Lines, 939 S.W.2d at 141
(quoting Heyden Newport Chemical Corporation v. Southern
General Insurance Company, 387 S.W.2d 22, 26 (Tex.
1965)). The net result is that insurers are advised to chart
a cautious course: “When in doubt, defend, ”
Gore Design Completions, 538 F.3d at 369.
Whether Evanston Has a Duty to Defend Soto
contends that the policy specifically excludes coverage for
Valdez-Arevalo and Garcia's claims against Soto.
Evanston's Brief at 7. The policy states that the
following is excluded:
“Bodily injury” to:
(1) An “employee”, “volunteer worker”
or “temporary worker” of the Named
Insured arising out of and in the course of:
(a) Employment by the Named Insured; or
(b) Performing duties related to the conduct of the Named
(2) The spouse, partner, child, parent, brother, sister or
any other relative of that “employee”,
“volunteer worker” or “temporary
worker” as a consequence of Paragraph (1) above.
This exclusion applies whether the insured may be liable as
an employer or in any other capacity and to an obligation to
share damages with or repay someone else who ...