OPINION
In this insurance-coverage dispute, Continental Casualty Company, as subrogee of Traffic Systems Construction, Inc., appeals the trial court’s summary judgment for American Safety Casualty Insurance Company. The case concerns Traffic’s status as an additional insured under a commercial-liability policy American Safety issued to Williams Underground. Williams was a subcontractor under Traffic in a road-construction project for the City of Houston. Jason Maxwell, an employee of Williams, *168 was injured by a vehicle driven by a third party while working on the project.
Maxwell sued Traffic, Williams, and the third-party driver for negligently causing his injuries. The insurance policy American Safety issued to Williams contains an additional-insured endorsement. For Maxwell’s claims against it, Traffic sought coverage from American Safety as an additional insured under this endorsement. American Safety refused coverage, asserting that Maxwell’s claims against Traffic were either not covered or excluded under the terms of the policy.
Continental was Traffic’s liability carrier and provided a defense to Traffic against Maxwell’s claims. The underlying lawsuit eventually went to trial. The jury found that Traffic was among those whose negligence caused Maxwell’s injuries. Continental ultimately paid Maxwell $250,000 to settle his claims against Traffic.
On May 27, 2009, Continental sued American Safety. Asserting claims of contractual and equitable subrogation, contribution, and breach of contract, Continental sought the recovery of Traffic’s defense costs ($133,715), the amount it paid on behalf of Traffic to settle the underlying lawsuit ($250,000), and for its attorney’s fees incurred in the suit against American Safety.
On April 9, 2010, American Safety moved for summary judgment asserting that, as a matter of law, the policy provides neither defense nor indemnity coverage to Traffic for Maxwell’s claims. Relying on numerous grounds to defeat Continental’s subrogation, contribution, and breach-of-contract causes of action, American Safety set forth three specific grounds for its motion: (1) Traffic is not an additional insured under the terms of the policy because the additional-insured endorsement limits coverage to claims arising out of the sole negligence of the named insured, which is neither what Maxwell alleged in the underlying lawsuit nor what the jury found; (2) Traffic is not an additional insured because Maxwell’s claims fall under the employer’s-liability exclusion; and (3) Texas law bars Continental’s claim for reimbursement of the settlement.
Continental filed a no-evidence motion for partial summary judgment on the exclusions American Safety asserted as defenses to coverage. Continental also amended its pleadings to allege that American Safety had violated the Texas Insurance Code. American Safety did not file an amended motion for summary judgment addressing these new claims. The trial court heard the summary-judgment motions on June 2, 2010, and granted American Safety’s motion fifteen days later. The summary-judgment disposed of all of Continental’s claims, including those asserting Insurance Code violations. The record contains no order on Continental’s no-evidence motion. This appeal followed.
Issues on Appeal
In five appellate issues Continental challenges: (1) the trial court’s granting of American Safety’s motion for summary judgment relating to both duty to defend and duty to indemnify on Continental’s subrogation and contribution claims; (2) the trial court’s denial of Continental’s no-evidence motion for partial summary judgment; and (3) the trial court’s granting of American Safety’s motion for summary judgment on Continental’s Insurance Code claims.
Continental’s Subrogation and Contribution Claims
In its first issue, Continental argues the trial court erred in granting summary judgment as to both duty to defend and *169 duty to indemnify based on the sole-negligence exclusion found in the additional-insured endorsement.
Duty to Defend
Whether an insurer owes its insured a duty to defend is a question of law, which an appellate court reviews
de novo. Huffhines v. State Farm Lloyds,
“The duty to defend is not affected by facts ascertained before suit, developed in the process of litigation, or by the ultimate outcome of the suit.”
Trinity Universal Ins. Co.,
Duty to Indemnify
The duty to defend and the duty to indemnify are distinct and separate duties under a liability-insurance policy.
D.R. Horton-Tex., Ltd. v. Market Int’l Ins. Co.,
Additionalr-Insured Coverage Endorsement
The additional-insured coverage endorsement in the policy provides:
A. The following shall be added to SECTION I, COVERAGE A., Par. 1, [of the Policy] as subparagraphs d. and e. of the policy:
d. Any person shown as an Additional Insured on a certifícate of insurance issued by us or our authorized representative, or by endorsement to the policy, provided such person is required to be named as an Additional Insured in a written contract with you, shall be entitled to coverage hereunder solely for “claims” or *170 “suits” for “bodily injury” or “property damage” arising solely out of your negligence.... No obligation for defense or indemnity under the policy is provided to any Additional Insured for “claims” or “suits” directly or indirectly “arising from” the status, actions or inaction, including (without limitation) for vicarious, derivative or strict liability of said Additional Insured, its agents, consultants, servants, contractors or subcontractors (other than the Named Insured), except for the actions or inactions of the Named Insured.
e. We will have no duty to defend any insured, other than the Named Insured, except when the sole allegation against that insured is vicarious liability for the sole negligence of the Named Insured.
As used in the policy, the terms “you” and “your” mean the named insured, Williams. Substituting the names of the parties in this case into the additional-insured endorsement quoted above in full, coverage is provided to Traffic as follows:
d. Traffic shall be entitled to coverage hereunder solely for “claims” or “suits” for “bodily injury” ... arising solely out of Williams’s negligence.... No obligation for defense or indemnity under the policy is provided to Traffic for “claims” or “suits” directly or indirectly “arising from” the status, actions or inaction, including (without limitation) for vicarious, derivative or strict liability of Traffic, its agents, consultants, servants, contractors or subcontractors (other than the Williams), except for the actions or inactions of Williams.
e. We will have no duty to defend any insured, other than Williams, except when the sole allegation against that insured is vicarious liability for the sole negligence of Williams.
Thus, the policy unambiguously provides defense coverage to Traffic only in the event that Traffic is alleged to be vicariously liable for Williams’s own sole negligence.
The Summary-Judgment Evidence
American Safety’s summary-judgment evidence shows that Maxwell, the plaintiff in the underlying lawsuit, asserted separate negligence claims against Traffic, Williams, and the third-party driver who actually hit Maxwell. Maxwell’s petition in the underlying lawsuit establishes that the claims asserted against Traffic were based on Traffic’s own negligence and not for vicarious liability for the sole negligence of Williams. We hold that American Safety conclusively proved that it had no duty to defend Traffic against the claims asserted in the underlying lawsuit.
Additional-insured coverage under the policy is unambiguously limited to bodily injury or property damage arising out of the sole negligence of the named insured, Williams. But the jury in the underlying case did not find that Maxwell’s injuries arose from the sole negligence of Williams. Instead, the jury determined that Williams shared the responsibility for Maxwell’s injuries with Traffic, the third-party driver, and Maxwell himself. Accordingly, we hold that American Safety had no duty to indemnify Continental.
Continental’s Coverage Arguments
In support of its contention that the trial court erred in granting American Safety’s summary judgment on duty to defend and indemnity, Continental makes two arguments. First, Continental asserts that in his pleadings in the underlying lawsuit, Maxwell alleged that Traffic was vicariously liable for the actions of Williams, which would bring the claims within the policy’s coverage. Second, Continental contends *171 that if we accept American Safety’s sole-negligence contention, coverage under the policy is illusory. We find neither argument persuasive.
In support of coverage, Continental argues that even if the additional-insured exclusion is enforced, Maxwell asserted a claim that Traffic was vicariously liable for the acts of its independent contractor, Williams. But Maxwell did not allege that Traffic was liable only because it exercised control over the work of Williams. Instead, the opposite is true: in the underlying lawsuit, Maxwell alleged that Traffic was negligent because it failed “to take all reasonable, necessary, and/or required actions to make the work site reasonably safe for workers.” Maxwell alleged these failures by Traffic constituted negligence and negligence per se. In addition, the jury was not asked and did not find that Traffic retained the right to control or actually exercised control over the work of Williams. Again, the opposite is true — the jury found that Traffic was jointly negligent along with three others, including Williams. Because the plaintiff in the underlying lawsuit did not allege vicarious liability, the additional-insured endorsement did not apply.
In contending that coverage is illusory, Continental relies on
ATOFINA Petrochemicals, Inc. v. Continental Casualty Co.,
1. THAT PERSON OR ORGANIZATION, IS ONLY AN ADDITIONAL INSURED FOR ITS LIABILITY ARISING OUT OF PREMISES ‘YOU” OWN, RENT, LEASE OR OCCUPY OR FOR ‘YOUR WORK” FOR OR ON BEHALF OF THE ADDITIONAL INSURED; AND
2. THE INSURANCE AFFORDED THE ADDITIONAL INSURED UNDER THIS ENDORSEMENT DOES NOT APPLY TO ... ANY LIABILITY ARISING OUT OF ANY ACT, ERROR OR OMISSION OF THE ADDITIONAL INSURED, OR ANY OF ITS EMPLOYEES....
Id. at 444.
An A & B employee was injured on the project and sued Fina and others.
Id.
at 442. Fina sought coverage and a defense of the lawsuit under A & B’s insurance policy with Continental Casualty.
Id.
The supreme court adopted Fina’s interpretation of paragraph 2 and determined that A & B’s policy excluded coverage for Fina only if Fina’s sole negligence caused the underlying incident.
Id.
at 444 (citing
Nat’l Union Fire Ins. Co. v. Hudson Energy Co.,
We conclude the outcome in
ATO-FINA
does not control the outcome in this case. Here, the insured’s construction of the exclusionary clause is not reasonable because the plain language of the policy excludes coverage except when bodily injury or property damage arises out of the
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sole negligence of the named insured. This conclusion is reinforced by the recent case of
Evanston Insurance Co. v. ATOFINA Petrochemicals, Inc.,
Having determined that American Safety had no duty to defend or indemnify Continental, we overrule Continental’s first issue on appeal. Because we conclude the sole-negligence exclusion applies and supports the trial court’s summary judgment, we need not reach Continental’s issues challenging the other grounds asserted by American Safety in its motion for summary judgment.
Continental’s No-Evidence Motion for Partial Summary Judgment
In its fourth issue, Continental complains of the trial court’s denial of its no-evidence motion for partial summary judgment. Although the trial court heard Continental’s motion on June 2, 2010, it never expressly ruled on it. Continental contends the court implicitly denied the motion when it granted American Safety’s motion.
The denial of a motion for summary judgment is generally not appeal-able.
United Parcel Serv., Inc. v. Cengis Tasdemiroglu,
The Insurance Code Claims
In its fifth issue, Continental contends that the trial court erred when it granted summary judgment on Continental’s Insurance Code claims because American Safety’s motion did not address these claims. We disagree.
*173
As a general rule, issues not expressly presented to the trial court by written motion for summary judgment cannot be considered as grounds to affirm or reverse the trial court’s judgment.
PAS, Inc. v. Engel,
Continental claims that American Safety violated Article 21.21 or Chapter 541 of the Texas Insurance Code. When the issue of insurance coverage is resolved in the insurer’s favor, extra-contractual claims do not survive.
State Farm Lloyds v. Page,
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We affirm the trial court’s summary judgment in favor of American Safety on Continental’s subrogation, contribution, and breach-of-contract causes of action, and we hold that the granting of summary judgment on Continental’s Texas Insurance Code claims was harmless error.