Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NOS. D-1-GN-16-000956, HONORABLE LORA J. LIVINGSTON, JUDGE
Chief Justice Rose, Justices Field and Bourland
K. Field, Justice
Logan Moss sued appellant Safeco Insurance Company of Indiana
after Safeco denied Moss's claim for water damage under
his homeowners insurance policy. After the parties both filed
motions for summary judgment on the issue of coverage, the
trial court signed an order denying Safeco's motion and
granting a partial summary judgment in favor of Moss. This
permissive appeal followed. Because we conclude as a matter
of law that the policy's exclusion for damage caused by
surface water applies and consequently bars coverage for
Moss's claim, we will reverse the trial court's
April 23, 2015 to April 23, 2016, Safeco insured Moss's
home at 11902 Pleasant Panorama View, Austin, Texas, under
Texas Quality Select Homeowners Policy No. OY6936502
("the Policy"). Following excessive rainstorms in
May 2015, Moss contacted Safeco to report water damage at his
home, namely, water in the master bedroom closet, a bedroom,
and two additional rooms.
hired two professional engineers to inspect the damage.
First, Safeco hired Jason Womack to determine the cause of
the interior water intrusion into Moss's home. Upon
completion of his inspection of the Moss home, Womack issued
a report concluding that the water had entered the home
through an electrical meter conduit and traveled into the
closet. Safeco then hired a second engineer, Darin Lasater,
to determine the original source of the water. In his report,
Lasater concluded, in relevant part, that (1) surface water
runoff flowed down the swale south to north between 11905 and
11901 Pleasant Panorama View; (2) the runoff flowed into an
uncovered electrical basin at the corner of 11905 Pleasant
Panorama View, filling the basin with water; (3) the rising
water in the electrical distribution basin then drained
through an electrical conduit outlet in the basin downgrade
to the electric distribution basin at the southeast corner of
11906 Pleasant Panorama View and, in turn, drained downgrade
to the Moss's residence; and (4) "sufficient head
pressure in the electrical service conduit" forced the
water up the riser and out of the service entrance into the
master closet, and the water spread across the floor and into
the other rooms in the house. Based on the engineers'
reports, Safeco denied Moss's water damage claim citing
the Policy's exclusion for damage caused by surface
subsequently filed suit against Safeco asserting that the
insurance company had committed breach of contract and
seeking a declaration that his claim was covered under the
Policy. In addition, Moss claimed that Safeco had breached
the common-law duty of good faith and fair dealing and had
violated various provisions of the Texas Insurance Code. Moss
filed a traditional motion for summary judgment on his claims
for breach of contract and for declaratory relief. In his
motion, Moss asserted that Safeco had incorrectly applied the
Policy's exclusion for surface water and, therefore, had
wrongly denied coverage on his claim.
then filed a combined traditional and no-evidence motion for
summary judgment on the issue of coverage. In support of its
motion, Safeco attached the business-records affidavit of the
Safeco manager assigned to Moss's claim and, as exhibits
to the affidavit, copies of the Policy, Womack's report,
and Lasater's report. Safeco also attached the affidavit
of Lasater, in which Lasater testified to his education,
qualifications, the scope of his investigation, and a summary
of his conclusions. Lasater's curriculum vitae and a copy
of his report were attached to Lasater's affidavit as
exhibits. In moving for summary judgment on traditional
grounds, Safeco asserted that its summary-judgment evidence
established, as a matter of law, that Moss's claim was
excluded from coverage under the Policy. In the no-evidence
portion of its motion for summary judgment, Safeco argued
that "there is no evidence that the water damage to
Moss's home was not caused directly or indirectly by
considering the competing motions, the trial court signed an
order granting Moss's motion for summary judgment and
denying Safeco's motion for summary judgment. In
addition, the trial court found that Moss was entitled to
judgment on his claim that Safeco "breached the
insurance contract making the basis of this lawsuit" and
declared that Moss was "entitled to coverage under the
insurance contract making the basis of this lawsuit."
This permissive appeal followed.
review a party's summary judgment de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005). Summary judgment is proper when there are no disputed
issues of material fact and the movant is entitled to
judgment as a matter of law. Tex.R.Civ.P. 166a(c). When, as
here, both parties move for summary judgment on overlapping
issues and the trial court grants one motion and denies the
other, we consider the summary-judgment evidence presented by
both sides, determine all questions presented, and render the
judgment the trial court should have rendered. Texas
Workers' Comp. Comm'n v. Patient Advocates of
Tex., 136 S.W.3d 643, 648 (Tex. 2004). When the trial
court does not specify the ground for its ruling, summary
judgment must be affirmed if any of the grounds on which the
judgment was sought were meritorious. State v. Ninety
Thousand Two Hundred Thirty-Five Dollars & No Cents in
U.S. Currency, 390 S.W.3d 289, 292 (Tex. 2013).
resolution of this appeal requires us to interpret Moss's
insurance policy with Safeco. Texas courts construe insurance
policies "using ordinary rules of contract
interpretation" to ascertain the parties' intent as
reflected in the terms of the policy itself. Nassar v.
Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 257 (Tex.
2017) (quoting Gilbert Tex. Constr., L.P. v. Underwriters
at Lloyd's London, 327 S.W.3d 118, 126 (Tex. 2010)).
"When interpreting an insurance contract, we consider
all its parts, read all of them together, and give effect to
all of them." Greene v. Farmers Ins. Exch., 446
S.W.3d 761, 766 (Tex. 2014) (citing Forbau v. Aetna Life
Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994)). The terms of
the policy are given their ordinary and generally accepted
meaning unless the policy shows the words were meant in a
technical or different sense. 3109 Props, L.L.C. v. Truck
Ins. Exch., No. 03-13-00350-CV, 2015 WL 3827580, at *2
(Tex. App.-Austin June 18, 2015, pet. denied) (mem. op.)
(citing Don's Bldg. Supply, Inc. v. OneBeacon Ins.
Co., 267 S.W.3d 20, 23 (Tex. 2008)).
an insurance contract is ambiguous is a question of law.
State Farm Lloyds v. Page, 315 S.W.3d 525, 527 (Tex.
2010). If the language of the policy lends itself to a clear
and definite legal meaning, the policy is not ambiguous and
will be construed as a matter of law. Great Am. Ins. Co.
v. Primo, 512 S.W.3d 890, 893 (Tex. 2017); Kachina
Pipeline Co. v. Lillis, 471 S.W.3d 445, 459 (Tex. 2015).
A policy is ambiguous only if it is genuinely subject to more
than one reasonable interpretation after applying the
pertinent rules of contract interpretation. Nassar,
508 S.W.3d at 258 (citing RSUI Indem. Co. v. The Lynd
Co.,466 S.W.3d 113, 118 (Tex. ...