Court of Appeals of Texas, Ninth District, Beaumont
JAMES C. ILER AND LINDA ILER, Appellants
RVOS FARM MUTUAL INSURANCE COMPANY, Appellee
Submitted on March 23, 2017
Appeal from the 75th District Court Liberty County, Texas
Trial Cause No. CV0902090
McKeithen, C.J., Kreger and Johnson, JJ.
and Linda Iler ("the Ilers" or
"Appellants") appeal the trial court's
take-nothing judgment pursuant to the jury's verdict in
favor of RVOS Farm Mutual Insurance Company
("RVOS"). On appeal, the Ilers argue that the trial
court erred in allowing the jury to interpret an exclusionary
clause in an insurance policy and that the trial court erred
in denying Appellants' motion for judgment
notwithstanding the verdict because they conclusively
established their damages and attorney's fees.
Alternatively, the Ilers argue that charge error requires a
RVOS denied their claim for damages allegedly caused by
Hurricane Ike in 2008, the Ilers sued RVOS, with whom the
Ilers contracted for property insurance for their home in
Liberty. In their suit, the Ilers alleged claims for breach
of contract, breach of duty of good faith and fair dealing,
and violations of certain sections of the Texas Insurance
Code. On September 24, 2015, the Ilers filed
Plaintiffs' Motion for Construction of Provision of
Contract, requesting a ruling from the trial court
"construing the language of an exception to an exclusion
in the insurance contract that forms the basis of this suit
so that the court's interpretation can be submitted to
the jury in the charge." The relevant policy exclusion
provided as follows:
PART 8 "Losses Not Covered"
1. The following exclusions apply to loss to property
described under Part 3 - PROPERTY COVERAGE, but they do not
apply to an ensuing loss caused by fire, smoke or
explosion. . . . .
c. We do not cover loss caused by windstorm, hurricane or
. . . .
(4) the interior of a covered building or to personal
property contained in a covered building unless direct force
of wind or hail makes an opening in a roof or wall and rain
enters through this opening and causes the damage.
Ilers further requested that the trial court "find that
the words 'wind makes an opening in a wall' include
wind-created separations between a door and a doorframe,
between two doors, and between a window and a window
frame[.]" RVOS filed a response to the motion and argued
that neither the definition of wall nor the definition of
door in the Merriam-Webster dictionary supports the
Ilers' contention that a door is considered part of a
wall, neither definition references the other, and the
definition of wall does not state that it includes windows
and doorways as part of the wall. According to RVOS,
"[u]sing the ordinary common meanings of words, had
coverage been intended, the words 'windows' and
'doors' would have been included." On October 7,
2015, the Ilers filed Plaintiffs' Amended Motion for
Construction of Provision of Contract stating the following:
Plaintiffs seek a ruling from the court construing the
language of an exception to an exclusion in the insurance
contract that forms the basis of this suit so that the
court's interpretation can be submitted to the jury in
the charge. Plaintiffs seek a holding that the language is
unambiguous and an interpretation of the language, and
alternatively seek a holding that the language is ambiguous
and an interpretation of the language. Specifically,
Plaintiffs request the court find that the words of the
exception cover a situation in which wind creates a
separation between a door and its frame or threshold, between
two doors, and between a window and its frame.
Ilers argued that "[a]s only the interpretation of an
exclusion is in dispute, Plaintiffs contend there is no
ambiguity in the contract and the interpretation of the
exclusion is a matter of law for the court." According
to the Ilers, (1) the ordinary and generally-accepted meaning
of the word "opening" includes a space created when
two things that are meant to go together are separated, and
that any separation of a door and its frame and threshold
large enough for rain to pass through is an opening; and (2)
the ordinary and generally-accepted meaning of the words
"opening in a wall" would include doorways and
window openings, and if the wind forces a separation between
a door and its frame or threshold large enough for rain to
get through then the wind makes an opening in a wall.
pre-trial hearing, the trial court found, based on the four
corners of the contract, that the exclusion was not
ambiguous, there was no conflict in the law, and that any
conflict in the evidence would be for the jury to decide. The
trial court further explained:
I denied [RVOS's] motion for summary judgment because I
wasn't prepared to say as a matter of law that the facts
and events of this case do not fall within coverage.
This jury may decide by [sic] hurricane force wind blowing
through the weather stripping created a hole or a gap in the
wall. I think that's a point of evidence, and it's a
point of argument that you're going to make towards this
jury for them to find or not find.
They may decide __ I don't see that that's a question
trial court severed the extra-contractual claims from the
breach of contract claim, and the breach of contract claim
was tried to the jury.
Testimony and Post-Judgment Pleadings
Iler (Linda) testified she and her family moved into their
newly-built home in Liberty County in March 2007. The Ilers
purchased an insurance policy from an insurance agent in
Dayton, Texas. At trial, Linda identified the "The Star
Policy[, ]" the insurance policy through RVOS that the
Ilers purchased. Linda testified that she was aware that she
and her husband were required to pay premiums under the
policy, and that they did not have to pay any premium for
excluded items. Linda also testified that she and her husband
were aware that Part 8 of the policy was the exclusion
portion of the policy, and that they were aware of that
portion at the time they bought the policy.
year and a half after moving into the home, Hurricane Ike
made landfall. According to Linda, she was present at the
home when the hurricane made landfall and she became
concerned that the French doors in the back of her house that
opened inward into the house might be pushed open by the
winds. She testified she pushed a recliner chair against the
doors so "that for some reason if the doors did give
that would maybe stop the doors from opening
completely." Linda testified that someone at the radio
station reported to her that the winds had been blowing 120
miles per hour during the hurricane.
to Linda, she noticed water on the floor in front of the
French doors the morning after the worst of the storm had
passed. She testified she used three or four bath towels to
clean up the water. Linda explained at trial that once the
winds died down later that morning she walked the exterior of
the house and did not see any flood water or watermarks on
the outside of her home. She testified that on the lot they
owned next to their house she noticed the tops of trees were
gone and branches were lying on the ground, and that one tree
had been knocked down. According to Linda, there were no
watermarks on the interior walls of her home, she did not
notice any leaks in the ceiling or broken windows, she
noticed that the weather stripping that was on the French
doors prior to Hurricane Ike now was gone, and she did not
see anything that would lead her to believe that a flood
caused water to get on the floor. Linda testified that the
windows and doors of her home were closed during the storm
and that she did not see a hole in her home's roof or
testified that for about ten days after Hurricane Ike the
family stayed at Linda's mother-in-law's home because
her mother-in-law had a generator big enough to run the air
conditioning. According to Linda, during that ten-day period
she made a visit to her home and noticed that the wood
flooring where the water had been had started to buckle, and
that over time there was damage to the floor under beds that
were up against windows in other rooms.
explained at trial that she made an insurance claim with
RVOS, two adjusters inspected her home, and she told the
adjusters that the weather stripping around the doors was
gone and that she thought the wind and the rain had caused
the floor damage. Linda testified about a letter dated
October 16, 2008, which was admitted into evidence at trial.
According to Linda, RVOS stated in the letter that the
Ilers' insurance policy does not include flood coverage
and that the claim was denied because Part 8 of their
insurance policy excludes "loss caused by or resulting
from flood, surface water, waves, tidal water or tidal waves,
overflow of streams or other bodies of water or spray from
any of these whether or not driven by wind." Linda
further testified that she received a letter from RVOS dated
April 27, 2009, stating that after Alamo Claims Service
inspected the damage, RVOS was "unable to make an
allowance for the damage or further investigative testing as
the damage was not caused by the named peril in [the
Ilers'] policy." The April letter was also admitted
into evidence. Linda explained to the jury that she hired the
company that built the house to repair the flooring, and the
flooring was repaired. According to Linda, at the time of
trial she and her husband still had not paid the company for
further testified as follows:
Q. Mrs. Iler, do you know what a doorway is?
. . . .
A. Oh, a doorway, yes, of course.
Q. Is a doorway an opening in a wall?
A. Yes, it is.
Q. If you attached a door to a doorway but you leave the door
open, is there an opening in the wall?
Q. If you close the door, is there an opening in the wall?
. . . .
Q. . . . . If the wind blew very hard against the door and if
the wind caused the door to bow or separate or otherwise
create space between the door itself and the door frame or
the threshold or between the doors and that separation was
big enough for rain to go through, is a space between a door
and its frame or between two doors or between a door and its
threshold, is a space an opening?
Q. So, would you say that if the wind blew hard enough to
make a separation between two doors, around the door, under
the door, it has made an opening?
. . . .
Q. Can a wall have a doorway in it?
Q. Can a wall have a window opening ...