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Great American Lloyds Insurance Co. v. Vines-Herrin Custom Homes, L.L.C.

Court of Appeals of Texas, Fifth District, Dallas

January 9, 2020

GREAT AMERICAN LLOYDS INSURANCE COMPANY AND MID-CONTINENT CASUALTY COMPANY, Appellants/Cross-Appellees
v.
VINES-HERRIN CUSTOM HOMES, L.L.C., HERRIN CUSTOM HOMES, INC., AND EMIL G. CERULLO, Appellees/Cross-Appellants

          On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-03-6903

          Before Justices Myers, Osborne, and Nowell

          OPINION

          LESLIE OSBORNE, JUSTICE.

         On 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.

         Background

         This is the third appeal of an insurance coverage dispute. Detailed facts may be found in our previous opinions, [1] 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.

         In 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.

         Discussion

         1. Standards of review

         In an 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 ...


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