Evanston Insurance Co. v. ATOFINA Petrochemicals, Inc.

COMPANY, EVANSTON INSURANCE

Petitioner, PETROCHEMICALS,

INC., Respondent.

No. 03-0647.

Supreme Court of Texas.

Argued April

June

Opinion in Part and Concurring

Dissenting in Part Feb. Nobles, Platts, T. Mar- Jeffery

Henry S. Brown, Rothman, Frank Brit T. cy Lynn Anthony Monago, Maynard Beirne Code, & Par- Payment Insurance the “Prompt sons, L.L.P., John P. Abbey, Spagnoletti & statute, Claims” imposition authorized the Associates, Houston, TX, for Petitioner. penalties of attorney’s and fees for the insurer’s failure pay timely. the claim Bays, Carnegie,

David M. Jack G. Tom We conclude that the policy pro- umbrella Bayko, Day, Houston, Wyatt Jones D. Sni- der, Byrd, L.L.P., arising Snider vides Stephen & John liabilities Morgan, Lindsay Morgan, & PLLC Beau- the additional negligence, insured’s sole mont, Allyson Ho, Newton Baker Botts that agreement the settlement binds the L.L.P., TX, Dallas for Respondent. therein, insurer to the amount recited and that the additional insured is not entitled

R. Goleman, Kinnon Virginia K. penalties Hoelscher, for untimely payment of McCarroll, L.L.P., Brown George Christian, S. judgment claims. We affirm the Texas Civil Justice League, Austin, Jr., Robert M. Roach court of appeals to the that extent it re- Roach, L.L.P., Houston, Cook & Thomas solves the coverage dispute in favor of the Caudle, P.C., Waxahachie, TX, D. for Ami- insured, and to the extent cus Curiae. binds the insurer to the amount recited agreement, the settlement but we reverse Justice GREEN delivered the opinion of appeals’ judgment regarding Court, in which Chief Justice damages attorney’s and fees article JEFFERSON, O’NEILL, Justice Justice 21.55 because the additional insured is not WAINWRIGHT, BRISTER, Justice recovery damages entitled of such and MEDINA, Justice and Justice WILLETT fees. joined, and in which Justice HECHT and joined Justice I, JOHNSON as to Parts I II.D, and II.F. II.A— Petrochemicals, Inc.1 con- Rehearing granted. We withdraw the tracted with Triple Corpo- S Industrial opinion and previously issued ration to perform maintenance and this case and following substitute the opin- construction work at ATOFINA’s Port ion. refinery. Arthur The service contract ease, In this interplay we examine the indemnity provision contained an and a indemnity between contractual provision requirement Triple carry S certain requirement and service contract’s liability minimum levels of insurance name an particu- additional insured. More coverage. Triple agreed S to indemni- larly, we must decide whether a commer- fy personal injuries ATOFINA from all cial umbrella insurance that was property and during losses sustained purchased to secure the insured’s indemni- contract, performance of “ex- ty obligation in a service contract awith cept to the extent such loss party provides liability third also direct is attributable to the concurrent or addition, for the third party. negligence, misconduct, li- sole or strict we must decide whether the insurer ability of Triple S also [ATOFINA].” bound pay the amount of underlying $500,000 agreed carry least settlement between the additional insured a plaintiff. primary comprehensive general and Finally, liability we must deter- (CGL) insurance, mine whether article 21.55 the Texas “[i]ncluding coverage company ATOFINA is the purposes successor tor S. For opinion, Company, FINA Oil and Chemical which we shall refer to FINA and ATO- FINA, distinction, originally independent executed contrac- without as ATOFINA. trial NA, to the remanded the case insuring the in- for contractual (or statutory penal- and an excess demnity agreement,” court for determination “umbrella”) “following liability policy attorney’s fees.2 ties policy]” of at least form for CGL [the II re-

$500,000. contract Finally, to furnish certificates quired Triple S should not have argues evidencing to ATOFINA insurance indemnify for its contribution coverages required insurance rea settlement several the Jones in- showing ATOFINA as First, says agreed it ATOFINA sons. policies. Triple S com- sured Triple S that contract with its service by obligations plied with its contract for indemnification losses would not seek million policy a purchasing CGL $1 negligence. Evans- resulting from its own Company and from Admiral Insurance similarly policy says language ton of its policy umbrella a million commercial $9 caused coverage for such losses excludes Company, Insurance from Evanston The umbrella negligence. by ATOFINA’s required certifi- by furnishing policy as “following a form” policy was cates of insurance. contract, meaning by the service required Jones, Triple employ- a Matthew Todd S no broader than that its facility pur- at the working ee ATOFINA identified ATOFI- underlying policy, which contract with ATO- employer’s suant to his “only insured as an additional NA FINA, through after he fell drowned [Triple out of respect liability arising storage roof of a tank filled with corroded performed for ongoing operations S’s] Triple S fuel oil. survivors sued Jones’s [ATOFINA], event for [ATOFI- but in no wrongful and ATOFINA for death. Admi- Second, Evanston negligence.” NA’s] sole policy its limits. ral tendered million $1 decision in Fireman’s says this court’s coverage from ATOFINA then demanded Commercial Stan Insurance Co. v. Fund as an additional insured Evanston precludes Co.3 dard Insurance denied the policy. the umbrella Evanston for insurance obtaining judgment from claim, brought and ATOFINA Evanston arising from proceeds on losses based third-party into the case as defendant says Finally, Evanston negligence.4 own of coverage. declaration unrea amount was the Jones settlement its suit then severed Evanston We thus unenforceable. and is sonable litigation. from the remainder of the Jones arguments turn. address these Both ATOFINA and Evanston moved summary in the severed partial A pending, motions were action. While the mil- its service contract with case was settled for In $6.75 Jones any right of in S, ATOFINA seeks to recover lion. ATOFINA disclaimed million not covered demnity $5.75 [its] “attributable for losses Admiral. Under the negligence.” concurrent sole contract, ATOFINA is terms service summary judg- granted trial court by Triple be indemnified S not entitled to The court of in favor of Evanston. ment way any occasioned if the loss was Jones holding judgment, appeals reversed the negligence. But ATOFI- by ATOFINA’s ATOFI- that the Evanston covered (Tex.App.-Beau- 3. 490 S.W.2d 2. 104 S.W.3d 251-52 curiam). 2003) (per mont id. 4. See

NA indemnity S; does not seek from Triple the kind of insurance that was intended to it claims instead that is entitled obligation, secure that and because the demnification from Evanston virtue of “respect[ed] operations performed loss ... its status as an additional insured on the [Triple S].” umbrella to Triple Evanston issued But Evanston counters that ATOFINA of looking, S.5 Instead as the qualify fails to as an additional insured did, appeals indemnity agreement in under section III.B.6 because the language the service contract to scope determine the does cover an additional insured for its coverage, we base our decision on negligence. own Although finding fact the terms of the umbrella insurance regarding respon- has been made who was itself. death, sible for Jones’s Evanston contends because Jones’s support status, death caused its insured ATOFI- solely by negligence, points part NA III of the Evanston death “respect operations did not policy, per- which defines who is an insured. by [Triple formed S].” Section III.B.6 states that an in- insured cludes: The appeals courts of have confronted

A or person organization for you whom provisions these additional insured on sev agreed provide have to insurance is occasions, eral producing divergent results. policy; afforded person but that policy, Like S’s the contrac insured organization or only is an insured v. Granite Construction Co. tor’s respect operations performed to by you Bituminous Insurance Cos.6 provided for your behalf, or on or facilities or owned “only additional with respect insurance to by you. used liability arising operations per out of insured.”7 Granite fully ATOFINA claims is an formed for such covered as paragraph adopted interpretation insured virtue of this be- fault-based cause it is “person organization “arising operations,” recognizing for out of [Triple agreed provide whom S coverage only has] if an wrongful insured’s act insurance,” because the Evanston policy during operation injury.8 the caused the 5. We have held indemnity respect that an operations.” term "with See will Co., not be construed to cover an indemnitee’s McCarthy Lloyds Bros. Co. v. Cont'l 7 Ins. negligence express language sole absent 725, 1999, (Tex.App.-Austin 730 n. 8 urges that effect. Id. at 822. Evanston to us pet.); Superior Shipyard v. no Miller & Fabri apply take this rule and in to additional cation, Inc., 2001-2907, p. (La.App. 5-6 1 Cir. However, provisions sured as well. we have 8/20/03); 159, 162-64; Acceptance 859 So.2d also noted that where an additional insured Enters., 321, Syufy Cal.App.4th Ins. v. 69 separate provision is and additional 557, (1999); Cal.Rptr.2d 561-62 Lim v. provision, indemnity scope the the in Co., 304, Atlas-Gem Erectors 225 A.D.2d requirement surance is not limited the 946, (N.Y.App.Div.1996); N.Y.S.2d 946-48 indemnity Getty clause. See Oil Co. v. Ins. Co. Light Fla. & Power Co. v. Penn Am. Ins. Am., (Tex. 1992). N. (Fla.Dist.Ct.App.1995). 654 So.2d fact, specifically In declined to extend the because, addressing We cite cases both terms provi rule in Fund Fireman’s to contractual difference, if even there is a quali whatever indemnity agreements. sions other than Id. "arising operations” fies as quali out of also at 806. respect operations,” fies under "with (Tex.App.-Amarillo 6. 832 S.W.2d broader term. 1992, writ). no 8.Granite, 832 S.W.2d at 430. recognize 7. Id. Several courts material dif- "arising between ference the common term operations" out of and the Evanston the insured out of’ job “arose site the claim did held that The Granite pur- even operation, performed subcontractor’s operations out of “ariste] claim negligence only poses the additional because by” the insured owner.12 premises insured company responsible additional insured injury.9 and reasoning of Admiral prefer We for two reasons. McCarthy Granite Appeals and Third Courts

The First underlying ser- First, relied Granite a more results under reached different in- additional that made the vice contract theory of additional liberal causation specific responsible for the cases, company sured In those the addi- provisions. sured However, our deci- injury-causing act.13 created provisions tional insured “the clear that make arising out sions since Granite liability respect “with insurer is determine operations, the named insured’s of’ from terms of the alleged solely claimants defend cases the both claimant,” negli- third-party pleadings acted companies insured and, outside accordingly, Insurance Co. that “evidence Admiral gently.10 NGL, Inc., the court concluded: of these two documents four corners Trident Even if we exam- prohibited.”14 [Bjecause generally oc- in this case the accident here, easily we can contract ine service employee while [insured’s] curred to a[n] this case from Granite. distinguish premises for employee was on the Triple S contract between preventive service purpose performing responsibility compressor assign that ex- does not maintenance on the storage the tank that maintaining the for em- the ploded, alleged for Rather, injuries of the con- ployee’s injury. [the “arose out Jones’s caused and, therefore, operations,” “power the gives Triple sured’s] S exclusive tract by pro- means, the “additional insured” covered method the authority select vision.11 operation, the performing” and manner of have Triple S “shall provides that v. McCarthy The court in Brothers Co. the responsible for control of and be Lloyds applied Insurance Co. Continental shifting any re- Far from WORK SITE.” theory a similar to find that worker’s ATOFINA, specific sponsibility at slip-and-fall injury retrieving while tools omitted); denied) 1999, (emphasis pet. Dist.] According to the court: 9. Id. (emphasis McCarthy, & 4 at 727 n. 7 S.W.3d contract, the Granite-Brown Under omitted). obligation operation of loading was the sole Granite, responsible was not and Brown Measuring policy cov- operation. S.W.2d at 455. 11. 988 erage by allegations in provided Granite petition, at obvious that Valchar’s it is once 7 at 730-31. S.W.3d liability arose Valchar’s claim of Granite's operations performed loading out of the 832 S.W.2d at 430. Granite; "arising was not a claim out operations performed for or on [Granite] Bap Rd. Elite Ins. Co. v. Fielder 14. GuideOne [Brown]," operations behalf of 305, (Tex. Church, 307-08 197 S.W.3d tist which Granite was insured. Co., 2006) King Fire Ins. 85 (citing v. Dallas Id.; v. N. Co. N.Y. Austin see also Ins. 185, (Tex.2002), Union and Nat’l 187 S.W.3d 436, Commercial, Inc., F.Supp. 437 908 Pittsburgh, Pa. v. Merchants Ins. Co. Fire (N.D.Tex.1994) slip-and- (applying Granite to 139, Lines, Inc., 141 939 S.W.2d Motor Fast cases). fall case, trig (Tex. 1997)). principles In this apply NGL, Inc., to defend gering insurer's 988 v. Trident 10. Admiral Ins. Co. indemnify. 451, equally to the insurer’s (Tex.App.-Houston [1st 453-54 S.W.2d 666

terms of the service contract make injury, injury respects sonal opera- responsible S operations. for all if tion the operation brings person premises for purposes opera- of that Second, regardless of the under particular tion.17 The attribution of fault lying terms, agreement’s service we do not between insured and additional insured follow Granite because the fault-based in change does not the outcome.18 terpretation this kind in results, interpretation sured Our longer prevails.15 part, endorsement Instead, we interpret respect ordinary and natural op meaning “with theory phrase erations” under a respect broader of causa “with to.”19 It also results Generally, that, tion. recognition an event “respects” oper from our parties had the ations if there exists “a causal connection intended to insure ATOFINA for vicarious or relation” between the liability only, event and the “language clearly embodying operations; not require proximate we do intention was available.”20 The ma- cause or legal causation.16 In jority cases in facing of other courts the issue have premises which the condition a per- caused reached similar result.21 Admiral, 454-56; 15. See 988 S.W.2d at 19. See The Random House Dictionary 9; McCarthy, 7 S.W.3d at 729-31 & n. (Stuart Mid- English Language Berg 1640 Flexner Co., Energy Continent v. Cas. Co. ed., 206 1987) (With respect Swift 2d ed. unabr. to: 487, (5th Cir.2000). F.3d 496-500 respect referring concerning”); "with to: to: 2 English Compact Edition of the Oxford Mid-Century Lindsey, Co. Tex. Ins. v. (1971) (With respect: "with Dictionary 153, (Tex.1999) S.W.2d (determining 155-56 regard something.”). reference or "injuries whether were caused an accident arising truck”); out of the use of [a] accord Co., 20. McIntosh v. Scottsdale Ins. 992 F.2d Admiral, 454-56; McCarthy, at S.W.2d (10th Cir.1993) (quoting Philadel 729-31; see also Utica Nat. Ins. Co. Co., phia Elec. Co. Nationwide Mut. Ins. Tex. v. Am. Indem. of 201-03 (Tex.2004) (E.D.Pa.1989)); F.Supp. (contrasting "arising accord out “ to,’ of” requires ‘due [which] a more Pipe Mid-Continent Cas. v. Chevron Line type Co., direct 222, of (5th causation could tie the Cir.2000) 205 F.3d 228-29 insured’s the manner in which the (“[The easily insurer] could have limited cov performed.”). services were erage by including in the endorsement terms liability’ 'negligence such as 'vicarious or of Admiral, ("[I]t 988 S.W.2d at 454-56 ”). the named insured.’ the employee sufficient that named insured's injured present while at the scene in Mid-Continent, 21. See 206 F.3d at 497-99 performing connection with the named in- (observing McCarthy that “Admiral and business, inju- sured’s even if the cause of the majority are consistent with the view in other ry negligence was the of additional in- al., jurisdictions”); Caley, Steven D. et The sured.”); 729-31; McCarthy, 7 S.W.3d at Scope Coverage Additional Insured State Highland Shopping Trinity Park Vill. v. Uni- of —A 916, Survey, in Insurance Understanding Law 2006: versal (Tex.App.- Ins. ABC’S, (PLI pet). Litig. at analysis Dallas & Our causation Admin. Practice, is limited to these facts. premis- Because the Course Handbook Series No. case, 2006) es injury cases); itself caused the in this (collecting do Douglas R. Rich causation, mond, decide what level of but-for or The Additional Problems Additional otherwise, required would be in a case Insureds, where 33 Tort Ins. L.J. 956-65 & premises merely additional insured's (1998) (collecting finding cases and that the injury. the situs of the interpretation "liberal in becoming sured endorsement is fast the ma Admiral, 454-56; McCarthy, 988 S.W.2d at rule”). jority 729-31; Park, Highland S.W.3d at 917-18. of Insur- Limit except policy’s for this Evanston Under section III.B.6 “respect[ed][ op- injury ] the Jones ance. policy, by [Triple because performed S]” erations appears This is a catch-all section Jones, per- Triple S who was employed policy cover- bring within the intended to operation at the time and forming the that are insured age any “other” entities injury. Although plead- place of the in- are not underlying policy but ings underlying suit do not indicate who-is-an-in- preceding within the cluded performing or not

whether Jones III.B of the paragraph sured sections operation precise S at the time of Triple cannot be an policy. Because accident, present at ATOFI- Jones was III. through III.B.l insured under sections facility Triple S’s purposes NA’s B.4, case as applies III.B.5 section occurred. operations when accident insured under long as ATOFINA was result, negligence As a even if ATOFINA’s policy. Admiral injury, section III.B.6 alone caused Jones’s argues section III.B.5 es Evanston provides direct policy of the Evanston identity a “follow policy’s tablishes coverage surance to ATOFINA.22 speci of the kind that was ing policy form” contract, that the fied the service

B precludes coverage.23 policy nature of the and ATOFINA both look III.B.5, ex coverage cannot section Under policy support III.B.5 of the section underlying Admiral beyond tend what the regarding the respective positions their Looking underly to the provides. poli the Evanston scope cov excludes ing policy, specifically which cy. III.B.5 ATOFINA claims that section negligence, we erage for sole ATOFINA’s provides independent basis cover III.B.5 is coverage under section conclude argues age, while Evanston that section losses caused limited and excludes apply. III.B.5 III.B.5 does Section negligence.24 On the rec sole ATOFINA’s says an insured can be: us, to determine we are unable ord before Any person organization other who is law the Jones as a matter of whether “underlying insured under product accident was such insurance.” The afforded family origi negligence. sole Jones insureds under this will be no S, ATOFINA and nally sued both “underlying broader than the insurance” court, required Evanston was not Pittsburgh, in the trial 22. See Nat. Union Fire Ins. Co. of Pa., (“[T]he appeals, of general before the court rule is to raise this issue 939 S.W.2d at 141 require normally party defend as we obligated if there do that the insurer is to defend is, every alternative theo complaint ing a raise potentially, a case under the ry its which the trial court could base policy.”). coverage within the Khalaf, Williams v. action. See (Tex. 1990). any Evanston waived ATOFINA contends "following regarding impact argument of poli- 20 to the Admiral CGL 24.Endorsement language purchasing in the insurance form” date as the cy, the same effective which has failing point in this its to raise itself, interpreta- policy supports this Admiral summary judgment. While cross-motion for tion. It states: argument in Evanston did not articulate II) (Section IS AN INSURED precisely as it is enunciated WHO the same form fact, here, did, [ATOFI- include as an Insured ar amended to in we note that Evanston liability arising respect scope NA] but gue court that the of before the trial per- ongoing operations [Triple sole-negligence S’s] by the out of was bounded [ATOFINA], in no event for poli but CGL formed for in the Admiral exclusion contained Furthermore, negligence. sole party prevailed [ATOFINA’s] as the that cy. alleging parties both negligent. were There biguous Therefore, language.”26 we must allegations were in pleadings ATOFINA’s adopt ATOFINA’s interpretation broad of contributorily Jones himself neg- coverage unless there “clear and unam- ligent. nonsuited, eventually S was biguous” policy language requiring the lim- and the against Jones’s claim coverage itations on in section III.B.5 to liability settled with no admission of coverage also restrict when available Thus, party. either without a determi- section III.B.6 or other who-is-an-in- liability, nation impossible say of it is independently sured clause provides cover- whether responsibility for the age. accident, if any, excluded it from coverage Reading whole, III.B paragraph as a under section of III.B.5 the Evanston poli- conclude each who-is-an-insured cy. operates grant coverage clause indepen- dently. in Nothing paragraph sug- III.B

C gests that the limitations of one section Evanston and ATOFINA disagree granting coverage should be read into an- about scope of coverage in available separate granting other section coverage.27 the event qualifies that ATOFINA as an fact, III.B.5, apart from section other insured under both sections III.B.5 and paragraph III.B disparate sections contain III.B.6 policy. of the Evanston limiting language in their definitions of favors a scope coverage broader under “insured,” suggesting that III.B.6, it, grant each section relying on the fact that coverage III.B.5, paragraph unlike III.B can expressly section be does read coverage limit the independently afforded an insured as a grant self-contained provided by to that underlying policy. coverage. For example, section III.B.1 employees covers as “an insured” but ex- interpreting When an insurance cludes for certain bodily injury. contract, adopt we “must the construction For the same reason we would not exclusionary urged by clause read the section bodily injury III.B.1 limi- insured long as that construction is not tation into broad of section unreasonable, even if the construction III.B. we refuse to read section III.B.5’s urged by appears the insurer to be more coverage beyond scope exclusion reasonable a more accurate reflection of Admiral into section III.B.6. Be- parties’ “Exceptions intent.”25 or limi cause ATOFINA is to coverage entitled strictly tations on are construed more than one who-is-an-insured insurer and in favor of the insured,” III.B, intent clause paragraph “[a]n to exclude cover it is not unrea- age must expressed be clear and unam- sonable to conclude that the should Pittsburgh, 25. Nat’l Union Fire Ins. Co. policy illusory by always Pa. the Evanston lim v. Energy Hudson 811 S.W.2d 555 coverage iting scope to of the Admiral (Tex. 1991). policy. adopt We cannot a construction that portion any meaningless, policy renders of a 26. Id. useless, inexplicable. or ATOFINA Petro chemicals, Co., Inc. v. Cont’l Cas. 185 S.W.3d- argues 27. Evanston that section III.B.5's use ” (Tex.2005) curiam) (per (rejecting of "under this rather than "under " policy construction that would render cover provision expressly coverage this limits re age illusory); Kelley-Coppedge, High gardless Inc. v. scope coverage may that Co., (Tex.1998); apply lands Ins. provision para under another within Am., graph disagree. reading III.B. We Such andran Ins. Co. Bal Safeco (Tex. 1998). provided any would render broader clearly the contract negligence unless broader measure of own provide read to be unequivo obligation expresses such applicable coverage available under indemnity agree cal terms.”34 Wallace’s that Ev- therefore hold clauses. We do that and thus failed to ment with GM scope the broader provides anston insurance car Wallace’s concluded that we liabilities that does not exclude indemnify to GM.35 required not rier was negligence. out of ATOFINA’s sole arising so, noted that “all of doing In D of the contract should provisions relevant its intent arriving at considered when be that next contends GM, with meaning.”36 In its contract 1972 decision in Fireman’s Fund Court’s intent provisions evinced Wallace’s several is dis- v. Commercial Standard Ins. Co.28 only respect to loss indemnify GM because, holding, that positive applying negligence, its own occasioned es pro cannot recover insurance in one example, For negligence.37 GM’s own arising on losses from its ceeds based liability “for assumed provision, Wallace Fund, In Fireman’s we ad negligence. by his injuries damages or occasioned any relationship indemni dressed the between premises of on the agents employees ty agreements requirement and the of lia another, In under section the Owner.”38 bility insurance service contracts.29 Responsibility,” “Contractor’s entitled case, Corporation that General Motors from its re excluded specifically Wallace with Sam P. Wallace Inc. contracted “negligence [the] Owner sponsibility the assembly on perform Arlington work its [GM].”39 contract, plant.30 agreed In the Wallace

indemnify arising GM for losses out of Fund, obligation In Fireman’s Wallace’s liability its work and obtain insurance was to secure purchase insurance satisfy performing obligation.31 that While for Wal- indemnify GM contract, em two Wallace’s that We held GM negligence.40 lace’s own ployees injured, they sued GM were because indemnification entitled settled, a negligence.32 After the case specify did not the contract declaratory judgment neg- action was filed extended GM’s demnity agreement However, resolve a the involved insurance carriers to never contend- ligence41 dispute over whether Wallace was re was an in Fireman’s Fund GM ed quired by indemnify GM for its contract to insured under Wallace’s to cover- negligence.33 gen entitled GM’s We followed and was therefore basis, distinguishes fact that holding age rule in that “a contract of eral This case from this case. indemnity protection will not afford to the Fireman’s Fund only in that Fund of his is similar to Fireman’s consequences indemnitee 35. Id. at 823. 28. 490 S.W.2d at 822-23. Id. Id. 822-23. 37. Id. at 821. 30. Id. at 820. Id.

31. Id. 39. Id.

32. Id. 40. Id. at 823.

33. Id. 41. Id. at

34.Id. 822. Triple required S was purchase liability status to ATOFINA for negligence its own insurance to indemnity agree- secure its requirement because the insurance and ment. But required S was also certificates of expand insurance cannot poli- add an insured on its coverage beyond language poli- of the cies, which a requirement was not of the cy.48 agree that an While we insurance contract in Fireman’s Fund. merely certificate evinces the holder’s sta- tus as an insured and does not create This case is analogous more to our 1992 coverage,49 it is unmistakable that Getty decision in Oil v. Insurance Co. agreement in this case to extend direct case, Getty North America.42 In that insured status ATOFINA as an addi- entered into a to purchase contract chemi- tional insured is and separate independent cals from NL Industries.43 The contract from ATOFINA’s indemnity forego included an provision and a indemnity negli- broad contractual for its own requirement pro- insurance which gence. disapprove vided that We that “[a]ll insurance carried view protect” [NL] shall extend to and kind of additional requirement insured Getty “whether or not required [by other separate indepen- fails establish a provisions of the contract].”44 After obligation insuring liability.50 dent We involving product accident NL’s killed one conclude that our Fund deci- Fireman’s contractors, Getty’s jury and a found sion does bar ATOFINA obtain- Getty percent that responsible, was 100 ing proceeds resulting insurance for losses NL’s Getty insurer refused negligence. from its own because the Anti-Indemnity Texas Oilfield E prohibited

Statute45 indemnification for negligence.46 one’s own But we that held Next we examine Evanston’s obli the insurance requirement of the contract gation pay of the $5.75 million $6.75 separate independent from the million argues settlement. Evanston and, indemnity provision consequently, the ATOFINA failed to meet its burden of prohibition Anti-Indemnity Statute showing reasonable, that the amount was did not apply.47 argues instead that proves its evidence the amount was unreasonable as matter

Although the service contract in this law, entitling summary Evanston to case does include an require- insurance judgment. oppo ATOFINA asserts the quite ment Getty, as clear as the one in site, summary contending judg enough is clear requires that ATOFI- —it proves NA “shall be ment evidence the settlement named as additional insured [Triple policies.” each of amount was reasonable as a matter of law. S’s] argues reaching question, that this “brief statement” in the Before must contract insufficient extend insured address contention agreement, 42. 845 S.W.2d 794 separate but obli- rather gation.”). 43. Id. at 796. 48. See Granite Const. Co. v. Bituminous Ins. Cos., 44. Id. at 804. (Tex.App.-Amarillo 832 S.W.2d 1992, writ). no §§ 45. Tex. & 127.001-.007. Civ. Prac. Rem.Code 49. See id. Oil, Getty Emery Corp. Transp. Freight 50. See v. Gen. Air ("[T]he Inc., provision Sys., (Tex.App.- Id. additional insured 1996, writ). support indemnity the contract does not Houston [14th Dist.] an- Block’s coverage?57 relating tations coverage bars it denial of that Evanston’s clear: the swer was the reasonableness of challenging from ap- agree with the settlement. While was insurer] that [the conclusion peals’ this issue last address Our occasion the attacking collaterally barred from Block,51in Casualty Co. v. Employers rea- the by litigating agreed wrongfully that if an insurer we held which recited damages sonableness of en insured then coverage and its denies therein, agree its conclu- we do not agreed judgment, an the insurer ters into agreed in the sion that the recitation challenging reasonable from barred damage from judgment that the resulted Although of the settlement amount.52 ness August on 1980 bind- an occurrence facts, presents some different this case against [the insurer] ing and conclusive nonetheless. apply rule should Block’s present in the suit.58 Block, before the basic issue “[t]he case, the sued ATOFI- plaintiffs In this of the trial court the reasonableness coverage from NA, requested agreed judgment” in the damages recited Evanston, wrongfully denied and Evanston company roofing defendant between the terms. ATOFI- coverage, citing The Block plaintiff and the homeowners.53 as a into the case brought Evanston NA appeals court of “concluded that once for a declaration third-party defendant wrong- insurer] that [the was determined deny coverage, and Evanston continued insured, fully failed to defend its [the then pleadings. in its collaterally from attack- surer] was barred underlying plaintiffs and settled with agreed judgment.”54 Block ing the final remaining coverage litigated the issues concerning questions two addressed dif- Though this case against Evanston. agreed judgment between the effect respects, none from Block several fers roofing compa- plaintiffs and defendant departing from justify differences First, ny.55 agreed judgment did the bar Block. contesting the insurer the reason- Second, First, settlement and damages?56 did the the forms of ableness insurer violated the agreed judgment the insurer from con- claims differ. Block’s bar defend,59 duty while no policy’s duty to testing agreed judgment’s factual reci- defend, 1988). (Tex. may not con- 51. 744 S.W.2d 940 breaches was lia- a determination its insured test 52. Id. at 943. (or underlying settlement or verdict ble either).”); Corp. Enserch the amount of at 942. Id. Co.,& F.2d 1495- Morahan Shand (“Texas (5th Cir.1992) 54. Id. denies law insurers settlement a collateral attack like these 55. Id. opinions Court Recent of both this itself.... Supreme con- Court have and the Texas 56. Id. that, allocation, request firmed unlike dispute Ev- between ATOFINAand 57. Id. of a attempt contest the reasonableness an anston concerns the reasonableness into between the judgment entered consent amount, factual the settlement injured party is third unavail- insured assertions within settlement wrongfully insurer who has able to an text. defend.”). breached (citations omitted); added) (emphasis Id. at 942. 59.744 S.W.2d Alliance Ins. Co. v. N. Ins. see also W. Cir.1999) N.Y., (5th (citing 176 F.3d Block, 943) ("If insurer 744 S.W.2d at 672 case, implicated fense,

to defend is in this Evans- not what we have here —an insur- ton of 'wrongfully coverage denied all er’s invocation the common law reason- under However, requirement. ableness the policy.60 addition, plaintiff the Block’s principles of notice to insurer an the and defendant entered into an agreed intentional choice to forego participation judgment,61 while ATOFINA and the in settlement operate discussions the wrongful plaintiffs death used a contractu- same no matter how the insurer chooses al settlement and nonsuit. But is, to attack the settlement. That the neither the difference in policy claims nor particular source of the insurer’s later- the a judgment absence of memorializing raised attack on the settlement amount— parties’ the disrupts settlement the Block it a policy provision be or a common law principles here because Block’s rule is not rule —does not control our inquiry. One derived from the nature of the violated that, case cited Block noted “[h]ad [the formality term or of agreed the defense, accepted insurer] the would judgments. The cases barring insurers’ had, course, have opportunity the challenges on principles estoppel rest conduct the defense in the manner most waiver; important what is most in this likely plaintiffs’ to have the defeated claim context is notice to the insurer and or at least to have reduced the amount of opportunity in participate the settle- damages.”63 the Had Evanston not un- ment discussions.62 conditionally coverage, denied it too would Some cases in area bar an this insurer’s have been able influence the amount of policy provisions reasons, invocation of as a de- the settlement.64 For these Co., side.”); suggests Benjamin 60. The dissent that Evanston never v. Amica Mut. Ins. - 29, ¶37, 1210, 1216; any duty breached owed to ATOFINA. 2006 UT 140 P.3d Liber multiple Co., S.W.3d at -. Yet on occasions ty Trucking Wheelwright Mut. Ins. Co. v. settlement, explicitly 466, (Ala.2002); Evanston re 851 So.2d 476-78 D.E.M. v. before jected coverage Allickson, ATOFINA's 596, (N.D. claim for 555 N.W.2d 599-601 policy. 1996); Lawlor, Evanston first denied ATOFINA's Red Giant Oil Co. v. 528 letter, request coverage by 524, and then con (Iowa 1995); N.W.2d 531-32 Fireman’s sistently pleadings asserted the same its Hartford, Fund Ins. Co. v. Ins. 72 Sec. Co. of throughout 63, suit. Even if this 864, (1976); N.J. 367 A.2d 867-73 Theo conduct anticipatory does not amount to an Co., dore v. Zurich & Gen. Accident Liab. Ins. contract, very breach of the which it well 51, (Alaska 1961); 364 P.2d 55 Albert v. Me. Constr., Inc., might, Murray see v. Crest 900 Co., 20, 27, Bonding & Cas. 144 Me. 64 A.2d 342, (Tex. 1995); Hig S.W.2d 344 Johnson & (1949). We 29-30 cite these additional cases Tex., Inc., gins Energy, Inc. v. 962 Kenneco equitable use for their waiver and es- 507, (Tex. 1998), S.W.2d 515 this kind of ex toppel generally, decision frameworks but not plicit, unqualified rejection surely opinions equitable for their of how the bal operates trigger equitable principles ance should be struck. Block. 162, Ranger Rogers, Ins. Co. v. 530 S.W.2d 61. 744 at S.W.2d 1975, (Tex.Civ.App.-Austin writ ref'd n.r.e.). Prods., Inc., 62. See Co. Ins. v. Parker Gulf 676, (Tex.1973); All Womack v. Co., 467, 233, state $1 Ins. 156 Tex. 296 S.W.2d 64. Admiral tendered its million before (1956); settlement, invoking see also St. Louis Dressed & Evanston’s duties as an Beef 173, Provision Co. v. Md. Cas. policy gave 201 U.S. excess insurer. The Ev- (1906) right 26 S.Ct. 50 L.Ed. 712 anston the with the insured "associate [insurer], ("Moreover, [to refusal defense and control of 'claim' defend], very may policy.” cut root of the mutual 'suit' that we think involve Keck, obligation, put right end to its Mahin & Cate v. Nat. Union Fire Ins. Cf. Pa., compliance sup Pittsburgh, demand further (Tex.2000) posed (supporting term on the contract other an excess insurer's disrupt application not ab- does Gandy in claims and difference case for two reasons. not Block to this judgment per- a do formal sence First, fall within Gan- to abandon Block here.65 this case does not suade us explicit dy’s holding. Gandy’s holding was addition, posture is differ In this case’s narrow, specific set a applying Block, underlying In ent than Block’s. attributes.68 assignments special judgment a as plaintiff sued insurer terms, Gandy’s By invalidation its own creditor, leading disapproval from to some present its five only to cases that applies Casualty this Court in State Farm Fire & Here, Gandy’s key fac- unique elements.69 Gandy, said: Gandy66 v. In the Court made missing: is predicate tual event, however, In is a no Evans- against of its claim assignment defendant, against rendered plaintiff ton; directly.70 sued Evanston trial, binding fully without a adversarial from the formal removes this case That insurer or admissible defendant’s Second, ratio- Gandy’s Gandy. bounds of damages against in an action evidence of Block require disapproving nale does not by plaintiff as defen defendant’s insurer Gandy’s reason for invali- setting. assignee. disapprove the con dant’s We simple: assignments Those as- dating Employers trary suggestion dicta a evaluating the merits of Block, signments made Casualty v. Company by prolonging dis- plaintiffs claim difficult (Tex.1988), and United States litigation mo- Underwriters, distorting trial putes and Olympia Inc. Aviation (5th implicate Gan- Inc., not all cases Cir. tives.71 But Wings, 896 F.2d 1990).67 not invalidate dy’s concerns. “We should "interject right negoti- 925 S.W.2d 696 itself into settlement 66. insurer”). primary ations before tender 67. Mat714. Un 65.The dissent cites United States Aviation derwriters, Inc., Wings, Olympia Inc. v. assignment of We hold that a defendant’s (5th 1990), proposition F.2d 949 Cir. for the plaintiff a is against his insurer to his claims that "an insurer that does have a (1) adjudica- estopped prior defend is not to contest the reason it is invalid if made of a S.W.3d at 677. ableness settlement.” 256 a plaintiff's defendant in tion of claim hold, Though Fifth Circuit did so trial, (2) fully defendant's insurer adversarial misapplies Evans- dissent that case. Unlike (a) defense, (3) a either has tendered ton, supply the insurer in that case offered accepted coverage, or has defendant’s insurer case, (in benefit (b) good a faith insurer has made defendant’s defend) rights. reservation of U.S. under a prior to adjudicate issues effort to Underwriters, F.2d at 952. More Aviation plaintiff's claim. adjudication of ATOFINA, importantly, unlike the insured in rejected Id. As a that case the insurer's assign- do address whether an Id. ‘“We offer. facts, Circuit result of those two the Fifth the rule invalid when element of ment is explicitly distinguished its case Block lacking, when an insurer has not such as is a is neither and other cases where defense insured.” Id. a defense tendered rejected. For nor Id. at 954-55. tendered situations, Circuit con latter the Fifth those (“In present case we have 69. Id. at 715 law an insurer cluded that "under Texas validity assignment.”). on the focused obliged to defend its insured but which contest the flatly refuses do so ... cannot addition, Evanston never tendered judgment agreed reasonableness of consent defense, rely Gandy purported upon. a fact injured par the insured and the between id. at 714. See Thus, ty.” Id. at 955. United States Aviation holding today, supports Underwriters our 71. Id. at 707-19. opposite. a settlement that is free from this difficul- F ty fairly evaluating plaintiffs [of claims] Finally, argues that the simply because it is like structured one appeals erroneously awarded not.”72 per ATOFINA 18% annum of the claim attorney’s amount and fees for Evanston’s Barring challenge Evanston’s here failure promptly claims pay under arti implicate Gandy’s does not concerns. Pre cle of 21.55 the Texas Insurance Code.75 venting litigating insurers from the rea 21.55, article may impose Under a court of sonableness a settlement does not ex damages all cases “[i]n where claim is by definition, disputes; tend it shortens pursuant made to a policy of insurance and them. is Nor there a risk distorting the insurer liable therefore is in com litigation or settlement motives here. pliance with this article.”76 “Claim” is knowing settled without wheth party defined as “a first claim that er or not it would be policy, covered be paid by must the insurer directly leaving in place its motive to minimize the beneficiary.”77 insured or Evanston relies settlement amount in case it solely became on the definition of arguing “claim” in responsible payment.73 for accomplish To the statute apply does not to claims for Gandy’s goal of “fairly determin[ing]” the reimbursement of settlement in costs claims, of plaintiffs’ value apply we a liability context of insurer’s denial of circumstance, Block rule this which will indemnity third-party for a claim encourage early intervention the insur its insured. ers positioned who are best to evaluate the worth of during claims Though settlement discus the statute does not define first- Thus, claims, sions. without factual dif party relevant we distinguish first-party and ferences or Gandy concerns to dissuade third-party us claims based on the claimant’s Block, following relationship we hold that Evans- to the first-party loss.78 “[A] ton’s denial of coverage barred it from claim is ‘an stated when insured seeks challenging the recovery reasonableness ATOFI- for loss,’ the insured’s own is, therefore, NA’s settlement.74 Evanston whereas a claim third-party is stated when bound to pay million that re ‘an injuries $5.75 insured seeks for to a ”79 mains the settlement. A party.’ third incurred in loss satis- defend, assign- 72. Id. at party 714. Even when addressed seeking breaches its ments, Gandy present did not indemnity prove absolute still bears the burden to cov- every it.”); Block, involving rule: "Not settlement erage as- if the insurer contests 744 signment rights exchange covenant S.W.2d at 943-44. assignor's liability prob- to limit the has the lems have described.” Id. "Prompt Payment 75. of Claims” statute has been recodified without substantial 73. Guillen ex rel. Guillen v. Potomac Ins. Cf. change. §§ See Tex. Ins.Code ; 542.051—.061 141, Ill., 350, 203 Ill.2d 271 Ill.Dec. Homes, Co., Lamar Inc. Mid-Continent Cas. 1, ("[T]he (2003) 785 N.E.2d risk of collu purposes 242 S.W.3d For ..., sion fraud can be lessened if not opinion, we refer to article 21.55. altogether, by placing requirement avoided upon plaintiff prove that the settlement § 76. Tex. Ins.Code art. 21.55 6. it reached with the insured was reasonable any binding before that settlement can have § Id. 77. 1. insurer.”). upon effect Homes, Lamar S.W.3d at 74. The denial does not bar Evanston from challenging coverage. Utica See Nat'l Ins. Giles, (quoting Co. Tex.v. Am. Indem. 141 S.W.3d Id. Ins. Co. v. Universe Life (Tex.2004) ("Even 1997)). (Tex. liability aif insurer n. 2 HECHT, joined Justice the third belongs to Justice faction of a settlement JOHNSON, concurring part directly by and is not suffered party dissenting part. This case in which insured.80 aby injuries sustained seeks that Evanston’s agree I with the Court presents third-party a classic party third umbrella cov- commercial Legislature Because the intended claim. claim, and that Evanston ered the Jones personal apply 21.55 claims article settlement ATOFINA the must reimburse insured,81 entitled I ATOFINA not reasonable. do if was amount Evanston, attorney’s damages agree 21.55 which had to the article ATOFINA, chal- estopped of defend portion fees. therefore reverse We of the settlement lenge the reasonableness judgment pertaining appeals’ the court of coverage and re- it denied simply because attorney’s damages article 21.55 and to negotiations in participate to fused fees. I remand the rea- would the claimants. Ill court to re- to the trial sonableness issue dispute. Accord- parties’ factual solve holding of appeals’ affirm the court We respectfully I dissent. ingly, that ATOFINA is an insured under policy thus enti- Evanston insurance and is duty to that breaches An insurer litigation for the tled to Jones heard to claim cannot later be defend a settlement, paid and affirm the court the amount the insured complain unreasonable, in absent ev- holding bound to settlement was appeals’ that Evanston is This is what we held idence of collusion. pay the million settlement amount. $5.75 Block,1 Casualty Employers in Co. v. appeals’ judgment reverse the court of We tell, uniformly rule as far I it is as can to permitting ATOFINA recover attor- country.2 hardly throughout This is ney’s damages article 21.55 fees and wrongly re- An insurer surprising. of the Texas Insurance Code because claim, leaving its insured to defend a fuses damages to such ATOFINA is entitled no himself, hardly allowed to to can be defend to trial or fees. We remand case job. a better that would have done argue proceedings for ATOFI- further on duty to defend But had no Evanston fees, attorney’s NA’s other claims for ATOFINA, admits.3 ATOFINA itself interest, prejudgment its claim and for for policy gave Evanston The umbrella with this rendition of consistent but no a covered claim right to defend opinion. claim not covered duty unless the opinion an Justice HECHT filed limits policy’s or that underlying exhausted, concurring part dissenting part, in neither of which occurred were why estoppel joined. here.4 Then does Block’s in which Justice JOHNSON 4.The stated: 80. Id. ‘ right defend We will have the to "A. seeking damages “bodi- at 20. or "suit” for 81. Id. "claim” damage”, "personal in- ly injury”, "property “advertising injury” to which this jury”, or 1. 744 S.W.2d applies, but: insurance n. 62. 2. See ante at 670-71 & or "offense” is "2. When an "occurrence” ("To also covered Response at 31 be covered this Brief in sure, by any appli- “underlying other duty insurance” or did owe ATOFINAa insurance, (“no duty defend.”); defend. we have ante at cable see also 671-72 case”). right with the have the to associate implicated We shall duty to defend is in this Because, apply? rule says, perform the Court Ev- acts or if services”. Even participate anston refused settlement Evanston had admitted coverage, still negotiations between ATOFINA and the participate had no in settlement plaintiffs. Jones impor- is most “[W]hat negotiations. The Court holds that when context,” tant in explains, the Court entirely excess carrier acts within its “is notice to the opportuni- insurer and an requires rights, equity that it be estopped ty participate in the settlement discus- question the reasonableness of a settle- But sions.”5 Evanston had no “property ment which it took no dam- discussions, participate in settlement and age”, “personal injury”, or “advertising in- surely ATOFINA’s invitation could not jury” if even such “claim” or “suit” is create one. The Court also faults Evans- false, fraudulent; groundless, part. It ton refusing acknowledge coverage, equity is a different that punishes sort suggesting Evanston’s denial cover- someone, even company, an insurance age may have anticipatory been an breach acting legally. was, of the policy.6 But if it even a party’s days ago, A few the Court refused to anticipatory breach of contract al- allow an insurer seek restitution for party lows the other damages to sue for payment of a non-covered claim because immediately; it does not alter the breach- policy provide the did not such ing party’s obligations.7 contractual remedy.9 equitable Sounding what has says “explicit, Court that Evanston’s un- refrain, come to abe familiar the Court qualified rejection of coverage surely oper- “proclaimed judicially ‘loathe to itself to re- trigger equitable principles ates parties’ by write the duty engrafting Block.”8 But contract Evanston had no to coverage; duty admit its extra-contractual If policy under its standards’”.10 restitution, a pay was to on a surer had to judgment right covered claim wanted the or said, a settlement to it it agreed. which Nei- the Court should have said inso rule, ther occurred. policy provided policy. Evanston’s Applying might this one it had other if obligation “[n]o to think that ATOFINA wanted the had any negotiate, insured in the and Investigate, any defense control "b. and settle may "claim” or "suit” that we think involve expedi- or "claims” "suits” we deem policy. this ent. .. "offense”, or “3. When "occurrence” policy, covered this would been cov- have 5. Ante at 672. by "underlying ered insurance” but for the applicable exhaustion limit of such 672 6. Ante at n. 60. "underlying “occurence(s)” any as a insurance” result "offense(s)” or to which this McCain, Am. See Continental Ins. v. applied, Life would have we will have a 796, (Tex.1967) curiam); (per 416 S.W.2d 797 duty any to defend "claims” or "suits” to 169, policy applies. which this Sanders v. Aetna Ins. 146 Tex. Life “offense”, "4. (1947). When an "occurrence" policy, covered is covered "un- any derlying applicable insurance” or other at 672 8. Ante n. 60. insurance, we will have the to defend any “claims” or to "suits” which this Lloyd’s, 9. Excess Underwriters v. London applies. Tools, Inc., Casing Frank’s Crew & Rental we have to “5. When defend as S.W.3d above, described in 3. and 4. we will: any “a. Defend "claim” or “suit” Cantu, (quoting 10. Id. seeking Fortis damages on ac- the insured Benefits (Tex.2007)). "bodily injury”, count of to a settlement Having agree refused to acknowledge require rights to not cov- the claim was was due and it believed payment before because in set- any participate ered, having now had accept invitation favor, negotiations, it should have includ- Ev- tlement in ATOFINA’s issue resolved policy. Either the Court ed them the if pay is the settlement required anston duties imposing thinks that nothing in Evans- But it reasonable. rewriting an insurer does not entail it to an unrea- obligates pay ton’s find that effort policy, or else does not settlement, parties still sonable loathesome. quite as ATOFINA’s settlement disagree whether moved cited, was reasonable. has not Court found, summary kind that its settlement authority has holding reasonable, that an excess of its support the Court’s on the affidavits based rea- estopped challenge insurer is mediator lawyer and the in these cir- settlement sonableness certainly supports This evidence case. This, too, hardly surpris- cumstances. argument its position, as does possible could there be ing. What basis paid million not have $5.75 that would has not breached a estop an insurer who (in addition pocket $1 out of own At case duty to its insured? least one paid) to settle primary insurer million its wrong. holding that the suggests Court’s the amount thought claim if it had Circuit has held in United States The Fifth But ATOFINA’s view unreasonable. Underwriters, Olympia Inc. v. Aviation aOnly over time. changed reasonableness rejects Wings, Inc. that an insured who settled, ATO- before the case few months tendered under a reservation defense in a letter lawyer suggested FINA’s insurer, rights require the once cannot a adjuster that Evanston’s $5 established, pay been a coverage has estimate, This possible. million was proving of the claim without settlement accompanied by caveats about the though If insurer that that was reasonable.11 based, was assumptions on which was duty has not breached its to defend is not three-fourths settlement about estopped contesting the reasonable- eventually agreed. to which ATOFINA settlement, surely an insurer ness of argues developments that after duty to defend at all should not be with no the case in a cast letter was written sup- estopped. Amazingly, the Court finds offered the letter poorer light. Evanston “under in the conclusion that port Circuit’s adjuster affidavits from obliged insurer which Texas law an lawyer response insurance defense flatly to do its insured but refuses defend so opined that motion. Both cannot contest reasonableness more than ATOFINA’s settlement judgment agreed between consent reasonable; one have been what would injured party.”12 and the the insured that a reasonable settlement estimated here, completely right. But Circuit million and been between $2 would have $1 In the Evanston had to defend. do not certainly million. These affidavits view, since an insurer breach- Court’s unrea- the settlement was establish estopped, an insurer es defend sonable, they do raise a fact issue but estopped. duty to is also with no defend would remand be resolved. I must hard Any hiding in this view is logic purpose. trial for that case find. added). 955) (5th Cir.1990). (emphasis 896 F.2d F.2d 11. 896 (quoting Olympia Wings, n. Ante at 673 so, Because the Court does not do I re-

spectfully dissent. TEXAS, INC.,

LIVING CENTERS OF

Cyndi Brown, LNFA, Kimberly

Bordovsky, DON, Petitioners,

Augustine PEÑALVER, Individually Independent

and as Executor Peñalver,

Estate of Maria Belia De

ceased, Peñalver, Respon and Ramon

dents.

No. 06-0929.

Supreme Court of Texas.

Jan.

Case Details

Case Name: Evanston Insurance Co. v. ATOFINA Petrochemicals, Inc.

Court Name: Texas Supreme Court

Date Published: Jun 13, 2008

Citation: 256 S.W.3d 660

Docket Number: 03-0647

Court Abbreviation: Tex.