Court of Appeals of Texas, Fifth District, Dallas
GREAT AMERICAN LLOYDS INSURANCE COMPANY AND MID-CONTINENT CASUALTY COMPANY, Appellants/Cross-Appellees
VINES-HERRIN CUSTOM HOMES, L.L.C., HERRIN CUSTOM HOMES, INC., AND EMIL G. CERULLO, Appellees/Cross-Appellants
Appeal from the 44th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-03-6903
Justices Myers, Osborne, and Nowell
remand from this Court, the trial court rendered its second
amended final judgment in favor of appellees Vines-Herrin
Custom Homes, L.L.C., Herrin Custom Homes, Inc., and Emil G.
Cerullo (together, "Vines-Herrin"). In three
issues, appellants Great American Lloyds Insurance Company
and Mid-Continent Casualty Company (together, "the
Insurers") contend the trial court erred by rendering
judgment for Vines-Herrin because Vines-Herrin did not meet
its burden to establish the amount of damages owed by each
insurer. Vines-Herrin asserts one issue in a cross-appeal,
arguing the trial court erred by refusing to award additional
attorney's fees. For the reasons we discuss, we affirm
the trial court's judgment.
the third appeal of an insurance coverage dispute. Detailed
facts may be found in our previous opinions,  and we recite
here only the background necessary to resolve this appeal:
. Vines-Herrin, a builder, purchased
commercial general liability (CGL) insurance coverage from
the Insurers for the relevant policy years.
. Cerullo sued Vines-Herrin for construction
defects in his home.
. The Insurers refused to defend
Vines-Herrin in Cerullo's suit.
. Vines-Herrin sued the Insurers for a
declaratory judgment that they owed duties to defend and
indemnify in Cerullo's suit.
. Cerullo's claim against Vines-Herrin
was arbitrated and resulted in an award of $2, 487, 507.77 to
Cerullo. Although they had notice, the Insurers did not
participate in the arbitration.
. Cerullo and Vines-Herrin agreed that
Cerullo would not confirm the arbitrator's award in
exchange for an assignment of Vines-Herrin's claims
against the Insurers.
. After a bench trial on the coverage
issues, the trial court first ruled in Vines-Herrin's
favor, but then relied on an intervening Texas Supreme Court
decision in rendering judgment that Vines-Herrin take
nothing. Vines-Herrin appealed to this Court.
. In Vines-Herrin I, we reversed
the trial court's judgment, concluding that both Great
American and Mid-Continent owed Vines-Herrin a duty to
defend, and Great American's duty to indemnify was
triggered. Vines-Herrin I, 357 S.W.3d at 173. We
remanded the case to the trial court for further proceedings.
. The trial court rendered judgment for
Vines-Herrin in the amount of the arbitrator's award
against both of the Insurers, jointly and severally.
. In Vines-Herrin II, we concluded
that both Insurers owed Vines-Herrin a duty to indemnify.
Vines-Herrin II, 2016 WL 4486656, at *5-7. We also
concluded, however, that the trial court erred by ruling that
each insurer was liable for the entire arbitration award. We
again remanded the case for further proceedings.
. The trial court rendered a second amended
final judgment allocating the $2, 487, 507.77 award on a pro
rata basis based on the number of days each insurer's
policy was implicated for the damages incurred. The trial
court's calculation resulted in a damage award against
Great American for $872, 057.32, and a damage award against
Mid-Continent for $1, 615, 450.45.
. The trial court denied Vines-Herrin's
request for an award of attorney's fees incurred in the
Vines-Herrin II appeal.
three issues, the Insurers contend (1) the trial court erred
by determining the amount of indemnification required by each
insurer based on the insurer's time on the risk; (2) the
evidence is insufficient to support the amount of damages
awarded against each insurer; and (3) the trial court erred
by awarding attorney's fees, and the evidence is
insufficient to support the award. In its cross-appeal,
Vines-Herrin contends the trial court erred by refusing to
award additional attorney's fees incurred in the
Vines-Herrin II appeal.
Standards of review
appeal from a bench trial, the trial court's findings of
fact are reviewable for legal and factual sufficiency of the
evidence by the same standards that are applied in reviewing
the evidence supporting a jury's answer. Sheetz v.
Slaughter,503 S.W.3d 495, 502 (Tex. App.-Dallas 2016,
no pet.). When neither party has requested findings of fact
and conclusions of law following a nonjury trial, all fact
findings necessary to support the trial court's judgment
are implied. Sixth RMA Partners, L.P. v. Sibley, 111
S.W.3d 46, 52 (Tex. 2003). When the ...