Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Colony Insurance Co. v. Hearts With Hope Foundation

United States District Court, S.D. Texas, Houston Division

February 28, 2018

Colony Insurance Company, Plaintiff,
v.
Hearts with Hope Foundation, Defendant.

          MEMORANDUM OPINION AND ORDER

          Gray H. Miller United States District Judge.

         Pending before the court are a motion for summary judgment (Dkt. 14) filed by plaintiff Colony Insurance Company (“Colony”) and a cross-motion for summary judgment (Dkt. 22) filed by intervenor Texas Mutual Insurance Company (“Texas Mutual”). Having considered the motions, responses, replies, record evidence, and applicable law, the court is of the opinion that Texas Mutual's motion should be GRANTED and Colony's motion should be DENIED.

         I. Background

         A. Factual and Procedural Background

         This case involves Colony's alleged duty to defend an underlying lawsuit.[1] Dkt. 1. In that suit, Vance and Karen Anderson sued defendant Hearts with Hope Foundation (“Hearts with Hope”) as guardians and next friends of their child, VA. Dkt. 14-1 at 2. The Andersons allege that Karen Anderson worked for Hearts with Hope, an organization that provides care for children with mental and emotional disturbances. Id. at 3. On January 18, 2015, Hearts with Hope assigned Anderson-pregnant at that time-to dispense medication to children in its care. Id. at 4. While in the medicine room, a child hit her in the stomach, “causing her amniotic sac to rupture and causing injury to VA.” Id. The Andersons allege that “[a]s a result of these injuries, ” VA was born prematurely and suffered severe physical and emotional injuries. Id.

         Hearts with Hope tendered the Andersons' claim to Colony and Texas Mutual. Dkt. 17 at 5; Dkt. 16 at 5. Texas Mutual is currently defending the underlying lawsuit, but Colony denied coverage. Dkt. 16 at 5. Both Colony and Texas Mutual issued an insurance policy to Hearts with Hope. Dkt. 14 at 7; Dkt. 16 at 5. Colony's policy included commercial general liability (“CGL”) and professional liability (“PL”) coverage. Dkt. 14-2 at 25, 29.

         In the instant suit, Colony seeks a declaratory judgment that it does not owe a duty to defend or indemnify Hearts with Hope. Dkt. 1. Texas Mutual intervened as a defendant and counter-plaintiff, asserting that Colony has such a duty. Dkt. 10; Dkt. 19. Colony filed its motion for summary judgment, asking the court to declare that its policy does not cover the underlying lawsuit. Dkt. 14. Texas Mutual filed a cross-motion for summary judgment, asking the court to declare that Colony must share in Hearts with Hope's defense. Dkt. 22.

         B. Colony's Policy

         The general provisions of Colony's policy provide that Colony “will have the right and duty to defend the insured against any ‘suit' seeking ‘damages' to which this insurance applies.” Dkt. 14-2 at 11. However, the policy excludes any claim “[b]rought by any insured against any other insured.” Id. at 16.

         Under the policy's CGL coverage, Colony must pay “‘damages' because of ‘bodily injury' . . . to which this insurance applies.” Id. at 29. The policy does not apply to a claim:

Based upon or arising out of “bodily injury” to:
(1) an “employee” of the insured arising out of and in the course of:
(a) employment by the insured; or
(b) performing the duties related to the conduct of the insured's business; or
(2) the spouse, child, parent, brother or sister of that “employee” as a consequence of Paragraph (1) above.

Id. at 32.

         Under the policy's PL coverage, Colony must pay “‘damages' because of a ‘wrongful act' to which this insurance applies.” Id. at 25. “Wrongful act” is defined as:

an act, error or omission in the rendering of or failure to render “professional services” by any insured covered under this Policy and performing the operations described under BUSINESS DESCRIPTION in the Declarations including an act, error or omission resulting in the violation of any right guaranteed to your resident under state or federal law or guidelines regulating your business as a resident health facility.

Id. at 24. “Professional services” means providing:

a. medical, surgical, dental, x-ray, mental health or nursing service or treatment, or the furnishing of food or beverage in connection with such service or treatment;
b. medications, medical supplies or medical appliances;
c. health or therapeutic service, treatment ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.