<=
/SPAN>[PPS],=20
in the course of its plumbing duties was to install a wall hung =
lavatory=20
on the premises. [PPS] did not install the wall hung lavatory =
properly and=20
as a result Ms. Pangarakis was injured. This failure to follow =
proper=20
plumbing practices in installing the lavatory constitutes=20
negligence.
Pangarakis made claims for medical =
expenses,=20
physical pain and suffering, mental anguish, disfigurement, =
impairment,=20
lost wages, and lost earning capacity.
<=
/SPAN>Lloyd=E2=80=99s filed this action =
seeking a declaration=20
that it did not owe a duty to defend or a duty to indemnify PPS in =
the=20
underlying lawsuit because the Policy did not provide coverage for =
an=20
=E2=80=9Cexpected or intended injury.=E2=80=9D Subsequently, =
Lloyd=E2=80=99s filed its summary=20
judgment motion, asserting that (1) there was not an =
=E2=80=9Caccident,=E2=80=9D and=20
therefore not an =E2=80=9Coccurrence,=E2=80=9D within the coverage =
of the Policy=20
because PPS=E2=80=99s =
installation of the=20
lavatory was intentional and voluntary and because =
Pangarakis=E2=80=99s injuries=20
were a natural result of PPS=E2=80=99s intentional and voluntary =
conduct, (2) the=20
Policy did not provide coverage because Pangarakis=E2=80=99s =
injuries were=20
=E2=80=9Cexpected or intended,=E2=80=9D and (3) the Policy did not =
provide coverage=20
because PPS=E2=80=99s installation of the wall-hung lavatory =
constituted a=20
=E2=80=9Cconstruction defect.=E2=80=9D Lloyd=E2=80=99s further =
asserted that it did not owe a duty=20
to indemnify PPS in the underlying lawsuit because there was no =
coverage=20
for Pangarakis=E2=80=99s claims.
<=
/SPAN>In=20
its response, PPS asserted that the claims in the underlying =
lawsuit were=20
based in negligence, that Pangarakis did not allege intentional =
conduct,=20
and that whether Pangarakis=E2=80=99s injuries were =
=E2=80=9Cexpected or intended=E2=80=9D or=20
caused by a =E2=80=9Cconstruction defect=E2=80=9D were questions =
for the trier of fact.=20
The trial court granted Lloyd=E2=80=99s summary judgment =
motion.
Standard of=20
Review
<=
/SPAN>The=20
well-settled standard of review for summary judgments applies to =
insurance=20
coverage disputes. State Farm Fire & Cas. Co. v. =
Vaughan, 968=20
S.W.2d 931, 933 (Tex. 1998). To prevail on a =
summary judgment motion, a movant =
has the=20
burden of proving that it is entitled to judgment as a matter of =
law and=20
that there is no genuine issue of material fact. Tex. R. Civ. P. 166a(c); =
Black v.=20
Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 =
(Tex.=20
1990); Farah=20
v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, =
670 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 1996, no writ). We may affirm a =
summary judgment only when the =
record shows=20
that a movant has disproved at least one element of each of the=20
plaintiff=E2=80=99s claims or has established all of the elements =
of an=20
affirmative defense as to each claim. Farah, 927 S.W.2d at=20
670.=20
When a summary judgment does not specify =
the=20
grounds on which the trial court granted it, the reviewing court =
will=20
affirm the judgment if any theory included in the motion is =
meritorious.=20
Harwell v.=20
State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, =
173 (Tex.=20
1995);=20
Summers v.=20
Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 25 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 1995, writ denied). =
Duty =
to=20
Defend
<=
/SPAN>In construing the terms of an insurance =
contract,=20
we apply the same rules of construction that we apply in =
interpreting any=20
contract. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d =
819, 823=20
(Tex. 1997); Grain Dealers Mut. Ins. Co. v. McKee, 943 =
S.W.2d 455,=20
458 (Tex. 1997). We must =
strive to=20
give effect to the written expression of the parties=E2=80=99 =
intent. State=20
Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex. =
1995). When=20
the terms of a policy to be construed are unambiguous, it is a =
court=E2=80=99s=20
duty to enforce the policy according to its plain meaning. See =
Grain=20
Dealers Mut. Ins. Co., 943 S.W.2d at 458; Puckett v. U.S. Fire Ins. Co., =
678 S.W.2d=20
936, 938 (Tex. 1984); Devoe v. Great Am. Ins., 50 S.W.3d =
567, 571=20
(Tex. App.=E2=80=94Austin 2001, no pet.). The=20
fact that the parties disagree as to the extent of coverage =
afforded under=20
a policy does not create an ambiguity, McKee, 943 S.W.2d at =
458,=20
and extrinsic evidence may =
not be=20
considered for the purpose of creating an ambiguity. =
Nat=E2=80=99l Union Fire=20
Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). =
<=
/SPAN>If=20
a petition does not allege facts within the scope of coverage of =
an=20
insurance policy, an insurer is not obligated to defend a suit =
against its=20
insured. Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d =
842,=20
847=E2=80=9348 (Tex. 1994). Generally, the insurer owes a duty to =
defend if there=20
are allegations in the petition that potentially state a =
cause of=20
action within the coverage of the policy. Nat=E2=80=99l Union =
Fire Ins. Co. v.=20
Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.=20
1997). In determining whether an insurer has a =
duty to=20
defend its insured, Texas =
courts=20
apply the =E2=80=9Ceight corners rule,=E2=80=9D which compares the =
allegations in the=20
petition to the terms of the insurance policy. Nat=E2=80=99l =
Union, 939=20
S.W.2d at 141. We interpret =
the=20
allegations liberally in favor of the insured, and any doubt as to =
whether=20
the insurer has a duty to defend is resolved in favor of the =
insured.=20
Id.; King v. Dallas Fire Ins. Co., 85 S.W.3d 185, =
187 (Tex.=20
2002). =E2=80=9CWhen an=20
alleged contract ambiguity involves an exclusionary provision of =
an=20
insurance policy, then we =E2=80=98must adopt the =
construction=20
. . . urged by=20
the insured as long as that construction is not unreasonable, even =
if the=20
construction urged by the insurer appears to be more reasonable or =
a more=20
accurate reflection of the parties=E2=80=99 intent.=E2=80=99=E2=80=9D=20
Balandran v. =
Safeco Ins. Co.=20
of Am., 972 S.W.2d 738, =
741=20
(Tex.1998) (quoting=20
Nat'l Union Fire =
Ins. Co. of=20
Pittsburgh, Pa. v. Hudson Energy Co., 811 S.W.2d 552, =
555=20
(Tex.1991)).
=
A court =
should focus=20
on the underlying facts alleged rather than the legal theories=20
asserted. Nat=E2=80=99l Union, 939 S.W.2d at 141. =
Furthermore, the=20
allegations should be considered without reference to their truth =
or=20
falsity, to what the parties know or believe to be true, or to a =
legal=20
determination of those facts. See Argonaut Southwest Ins. Co. =
v.=20
Maupin, 500 S.W.2d 633, 635 (Tex. 1973); Heyden Newport =
Chem. Corp.=20
v. S. Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex. 1965). A court =
may not=20
consider evidence extrinsic to the allegations when deciding =
whether the=20
insurer owes a duty to defend. Houston Petroleum Co. v. =
Highlands Ins.=20
Co., 830 S.W.2d 153, 155 (Tex. App.=E2=80=94Houston [1st =
Dist.] 1990, writ=20
denied). Neither facts ascertained before suit or in the process =
of=20
litigation nor the ultimate outcome of the suit affects the duty =
to=20
defend. Butler & Binion v. Hartford Lloyd=E2=80=99s Ins. =
Co., 957=20
S.W.2d 566, 568 (Tex. App.=E2=80=94Houston [14th Dist.] 1995, writ =
denied). Finally, a court =
may not=20
read facts into the pleadings, look outside the pleadings, or =
imagine=20
factual scenarios that might trigger coverage. Gehan Homes, =
Ltd. v.=20
Employers Mut. Cas. Co., 146 S.W.3d 833, 838 (Tex. =
App.=E2=80=94Dallas 2004,=20
pet. filed) (citing Nat=E2=80=99l Union, 939 S.W.2d at =
142)).
<=
/SPAN>In=20
its third issue, PPS contends that the trial court erred in =
granting=20
Lloyd=E2=80=99s summary judgment motion on the grounds that =
Pangarakis=E2=80=99s petition=20
alleged a loss or damage involving a construction =
defect. =
PPS argues=20
that the construction defect exclusion did not apply because =
Pangarakis=E2=80=99s=20
claims are for bodily injury and not for a construction defect, =
=E2=80=9Cthe=20
pleadings do not claim that the improper installation is a =
construction=20
defect,=E2=80=9D and =E2=80=9Can installation has nothing to do =
with a construction.=E2=80=9D PPS=20
further asserts that characterizing the installation of a plumbing =
fixture=20
as a construction defect would render the Policy illusory because =
it would=20
negate coverage =E2=80=9Cfor most of the work done by =
[PPS].=E2=80=9D PPS also asserts=20
that the construction defect exclusion applies only to contract =
claims and=20
that applying the exclusion to the underlying claims would render =
the=20
other exclusions in the Policy that apply to bodily injury or =
property=20
damage surplusage. ![3DFootnote](3D"")
&nbs=
p;First,=20
we note that PPS=E2=80=99s and Lloyd=E2=80=99s disagreement as to =
the meaning of the=20
construction defect exclusion does not in itself create an =
ambiguity.=20
Mckee, 943 S.W.2d at 958. Rather,=20
we look to the terms of the Policy as the written expression of =
the=20
parties=E2=80=99 intent. =
Beaston, 907=20
S.W.2d at 433. The Policy provides that coverage is excluded for=20
=E2=80=9Cany claim =
for loss or damage,=20
including defense cost, involving construction defect(s) =
caused or=20
contributed by the insured, employees of the insured or =
subcontractors of=20
the named insured.=E2=80=9D (Emphasis added.)
<=
/SPAN>Pangarakis=20
alleged that she was injured as a result of PPS=E2=80=99s =
negligence in=20
installing a lavatory. The=20
construction defect exclusion contains no language limiting its=20
application to certain types of claims, i.e. contract =
claims, or=20
certain types of damages, i.e. property damage. Rather, the =
exclusion broadly applies to =E2=80=9Cany claim for loss or =
damage.=E2=80=9D Thus,=20
Pangarakis=E2=80=99s claim seeking recovery for bodily injury =
allegedly caused by=20
PPS=E2=80=99s negligent installation is a claim for =
=E2=80=9Cdamage=E2=80=9D to which the=20
exclusion applies. PPS=E2=80=99s argument that the exclusion does =
not apply=20
because =E2=80=9Cinstallation has nothing to do with =
construction=E2=80=9D necessarily=20
fails. The Policy provides =
no=20
definition for the term =E2=80=9Cconstruction =
defect,=E2=80=9D
and we must=20
give the term its plain meaning. Tumlinson v. St. Paul Ins. =
Co.,=20
786 S.W.2d 406, 408 (Tex. App.=E2=80=94Houston [1st Dist.] 1990, =
writ=20
denied).
=E2=80=9CConstruction=E2=80=9D is =
defined as =E2=80=9Cthe act of=20
constructing.=E2=80=9D The [Compact] Oxford=20
English Dictionary 322 (2d ed. 1993). =E2=80=9CConstruct=E2=80=9D is defined =
as =E2=80=9Cmake by fitting parts=20
together; build, erect.=E2=80=9D Id. While =
Pangarakis=E2=80=99s petition alleges=20
negligence in regard to PPS=E2=80=99s installation =
of =
the=20
lavatory, =
Pangarakis=E2=80=99s use of the=20
word =E2=80=9Cinstallation=E2=80=9D is not so restrictive as to =
except her claims from the=20
application of the construction defect exclusion. Regardless of =
the=20
specific word used by Pangarakis, the factual allegations in her =
petition=20
establish that she is essentially alleging that PPS negligently=20
constructed, built, or assembled the lavatory in question. =
By including within the Policy a =
construction=20
defect exclusion, which by its terms applies to any claim =
for loss=20
or damage involving a construction defect caused by the=20
insured, the insured=E2=80=99s employees, or the =
insured=E2=80=99s=20
subcontractors, the parties intended to exclude from coverage any =
claims=20
for loss or damage arising out of PPS=E2=80=99s construction, =
assembly, or=20
installation of plumbing fixtures. There is nothing in the construction =
defect=20
exclusion suggesting that the exclusion does not apply to a claim=20
for bodily injury as a =
result of=20
PPS=E2=80=99s negligent or substandard =
=E2=80=9Cinstallation=E2=80=9D of a lavatory.
While we recognize =
that we=20
must =
adopt the=20
construction urged by the =
insured as long=20
as that construction is not unreasonable, we conclude that the the =
construction proffered by PPS is =
unreasonable.
&nbs=
p;We hold, =
as a matter=20
of law, that Pangarakis=E2=80=99s alleged injuries constitute a =
loss or damage=20
involving a construction defect caused or contributed by PPS =
or its employees and that, consequently, the =
construction defect=20
exclusion unambiguously applies to the underlying claims. =
Accordingly, we=20
further hold that the trial court did not err in granting =
Lloyd=E2=80=99s summary=20
judgment motion on the grounds that Lloyd=E2=80=99s did not owe =
PPS a duty to=20
defend. See Clemons v. =
State Farm=20
Fire & Cas. Co., =
879 S.W.2d=20
385, 391 (Tex. App.=E2=80=94Houston [14th Dist.] 1994, no writ) =
(=E2=80=9Cif the petition only =
alleges=20
facts excluded by the policy, then the insurer is not required to=20
defend=E2=80=9D).
<=
/SPAN>We=20
overrule PPS=E2=80=99s third issue.
Duty to =
Indemnify
<=
/SPAN>In=20
its fourth and fifth issues, PPS argues that the trial court erred =
in=20
granting Lloyd=E2=80=99s summary judgment motion on the grounds =
that it did not=20
owe a duty to indemnify PPS because the trial court=E2=80=99s ruling that =
there was no duty to=20
indemnify was premature and that genuine issues of material fact =
existed=20
as to Lloyd=E2=80=99s duty to indemnify.
<=
/SPAN> A=20
duty to indemnify is separate and distinct from a duty to =
defend. Archon Invs., Inc. v. Great =
Am. Lloyds=20
Ins. Co., No. =
01-03-01299-CV, 2005 WL 2037177, at *4 (Tex. App.=E2=80=94Houston =
[1st Dist.] Aug.=20
25, 2005, no pet.)=20
(citing Great Am. =
Ins. Co.=20
v. Calli Homes, 236 F. Supp. 2d 693, 697 (S.D. Tex. 2002)). =
The duty=20
to indemnify is not based on the pleadings, but on the facts that=20
establish liability. Id. The duty arises only after the =
insured has=20
been adjudicated legally responsible for damages in a lawsuit by =
judgment=20
or settlement. Id.; see also Hartrick v. Great =
Am. Lloyds=20
Ins. Co., 62 S.W.3d 270, 275 (Tex. App.=E2=80=94Houston [1st =
Dist.] 2001, no=20
pet.) (noting that duty to indemnify arises from proven, =
adjudicated=20
facts). When a court determines that there is a duty to defend, a =
ruling=20
on the duty to indemnify is premature. Gehan Homes, Ltd., =
146=20
S.W.3d at 846. However, the =
duty to=20
indemnify is justiciable before the insured=E2=80=99s liability is =
determined when=20
the insurer has no duty to defend and the same reasons that negate =
the=20
duty to defend likewise negate any possibility the insurer will =
ever have=20
a duty to indemnify. Farmers Tex. County Mut. Ins. Co. v. =
Griffin,=20
955 S.W.2d 81, 84 (Tex. 1997). If a court determines an insurer =
has no=20
duty to defend, then the insurer has no duty to indemnify. =
Archon=20
Invs., Inc., 2005 WL 2037177, at *4.
<=
/SPAN>Having=20
held that Lloyd=E2=80=99s did not owe PPS a duty to defend PPS in =
the underlying=20
lawsuit, and because the same reasons that negate Lloyd=E2=80=99s =
duty to defend=20
likewise negate any possibility that Lloyd=E2=80=99s will ever =
have a duty to=20
indemnify PPS for the =
underlying=20
claims, we further hold that the trial court did not err in =
granting=20
Lloyd=E2=80=99s summary judgment motion on the grounds that it did =
not owe PPS a=20
duty to indemnify.
<=
/SPAN>We=20
overrule PPS=E2=80=99s =
fourth and fifth=20
issues.
Conclusion
<=
/SPAN>Having=20
held that the trial court did not err in granting Lloyd=E2=80=99s =
summary judgment=20
motion on the grounds that it did not owe a duty to =
defend or a duty to indemnify PPS from the =
underlying=20
claims because the construction=20
defect exclusion unambiguously applies to the underlying claims, =
we need=20
not address PPS=E2=80=99s first and second issues. =
<=
/SPAN>We affirm the judgment of the trial=20
court.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Terry=20
Jennings
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Justice
Panel consists of Justices Nuchia, =
Jennings, and=20
=
Higley.