*1 305 judgment and affirm acted without reference trial court APP. P. 59.1. TEX. R. trial court. any guiding principles.” rules or (citations (Tex.1996) 148, 151 omitted) E.I. de Nem (quoting du Pont Robinson, 549, 923 & v.
ours Co. (Tex.1995)). There, we held its discretion
trial court did not abuse of a expert testimony physi
excluding to treat a qualified not shown to be
cian ELITE INSURANCE GUIDEONE injury plaintiffs’ head like the one Preferred Abstainers COMPANY f/k/a at 154. daughter had suffered. 924 S.W.2d Petitioner, Company, Insurance case did not act The trial court It was guiding reference to rules. without by statute to consider whether required BAPTIST FIELDER ROAD CHURCH, Respondent. “actively medicine in practicing Bell was care services relevant to rendering medical No. 04-0692. arose, At the claim the claim.”3 the time of Texas. Supreme Court years at least eleven since Bell had been issue, and performed surgery at 20, 2005. Argued Oct. that Bell had ever there was no evidence 30, June Decided trial court was taught procedure. determining well within its discretion 25, Rehearing Aug. Denied surgi- that Bell was too far removed practice teaching.
cal and even from We expert qualifications
said Broders that drawn, narrowly too we
should not be
also said that increasingly specialized and
given the medicine, is no
technical nature of there was,
validity, if there ever to the notion every doctor licensed medical automatically qualified
should be to tes-
tify expert every ques- on medical as ignore the mod-
tion. Such a rule would specialization.
ern realities of medical at 152.
Accordingly, grant Larson’s and, hearing argu- oral
for review without
ment, of the court of judgment reverse the R.S., 2, 2003, R.S., 5, 1995, Leg., ch. 78th May Leg., ch. of June
3. Act of 74th 847, 878, 10.09, (TEX. Laws § 2003 Tex. Gen. § 1995 Tex. Gen. Laws 4590i, (current & at CIV. PRAC. REM. version TEX. art. REV.CIV.STAT.ANN. 74.401(c)(2)). 14.01(c)(2)), § repealed § Act CODE and recodified *2 Liser, Liser, Sandra Cockran Grant Jen- Willingham, petitioner. nifer L. for Lobert, Jerry Hoodenpyle, E. R. James Petter, Roach, David Graham Robert M. Jr., B Cunningham, Robert Du- Robert J. bose, respondent. Pruessner, Cros-
David M. Wade Caven noe, for curiae. amicus opinion Justice MEDINA delivered Court, joined by Chief Justice JEFFERSON, O’NEILL, Justice Justice GREEN, and JOHNSON. Justice declaratory judgment ac In this tion, asked to create an we are times mate- all “[a]t Doe eight-cor- Jane complaint-allegation rial from 1992 provides rule herein eight-comers ners rule. youth minister an associate employed sued a third as
that when an insured is direct su- Fielder Road’s liability insurer is to determine and was under party, the *3 he of the control when solely pervision from terms and duty its to defend The third-party Plaintiff.” and abused policy exploited and outside the that GuideOne defend Resort to evidence demanded claimant. Church any indemnify it for two documents and four corners of these in the lawsuit GuideOne settlement. generally prohibited. judgment defend, questioned agreed to court, on ex- relying trial evidence The to rights reserved its policy and under de- policy pleadings, and trinsic to the later time. that issue at a determine duty had no to clared that the insurer underlying against claim later, defend the filed this A months GuideOne few however, appeals, insured. The court of seeking the declaratory judgment action reversed, the cir- concluding that because and a declaration policy’s construction presented of the case no rea- cumstances in- duty to defend or had no GuideOne eight- son to create an underlying sex- demnify the Church rule, action, the trial court had erred corners In this ual misconduct lawsuit. in- to defeat the using extrinsic evidence discovery of Evans’ sought GuideOne to duty surer’s defend. The history. Church church and, accordingly, affirm the agree duty We objected, asserting that GuideOne’s judgment. appeals’ court of from the should be determined policy, insurance with- pleadings and the The trial out resort to extrinsic evidence. is- Company Elite Insurance GuideOne however, court, to block the dis- declined liability general sued a insur- commercial thereafter covery request, and the Church Baptist to Fielder Road ance ceased that Evans advised GuideOne Church, March 1993. The effective be- working for it on December following liability cov- policy included the policy took effect. fore the GuideOne for misconduct: erage sexual filed motions for sum- parties After both your legal liability to agree We cover granted the trial court mary judgment, bodily injury, ex- damages because Church’s, motion, denied the GuideOne’s disease, any cluding any sickness or declaring that Gui- judgment and rendered person arising out of sexual misconduct the Church had no deOne period. which occurs misconduct case. underlying sexual right have the We shall however, reversed appeals, The court of investigate any claim ... and to defend concluding that summary judgment, seeking any brought against you suit considering had erred the trial court allegations if damages, even to defeat GuideOne’s extrinsic evidence fraudulent, groundless, suit are false or duty to defend its insured. may make settlement we conclud- further 384. The court expedient. deem were suffi- that Jane Doe’s ed 31,1994. on March policy expired duty, remanding to invoke that cient hearing only on for a 6, 2001, to the trial court Doe filed a sexual case On June Jane at 390-91. attorney’s fees. Id. costs and against lawsuit misconduct for review. this Court petitioned pleadings, In her GuideOne Charles Patrick Evans. II “overlapping” “mixed” or extrinsic evi- dence. GuideOne it had no to defend the Church or com Under rule, plaint-allegation claim of sexual misconduct be an insurer’s third-party defend is determined job youth
cause Evans left his as a minis plaintiffs pleadings, light considered in policy’s ter before the effective date. Be policy provisions, regard without allegations against cause Jane allegations.' Argo truth or of those involved Evans’ conduct while a Maupin, naut Ins. Co. v. Sw. minister, suggests, (Tex.1973); Heyden Newport extrinsic of when that relation evidence *4 Corp. v. Ins. 387 Chem. S. Gen. ship coverage ended establishes no existed (Tex.1965). 22, 24 S.W.2d The rule takes policy period. for Evans’ acts the only its name from the fact that two docu the an Recognizing eight-corners rule as ordinarily ments are relevant to the deter however, impediment argument, to its Gui- policy mination of the to defend: the sup deOne contends a number of reasons third-party and the claim port proposition that extrinsic evidence v. King ant. Dallas Fire Ins. 85 regarding employment Evans’ status' be (Tex.2002). 185, 187 Facts outside exception as an to the rule. considered pleadings, easily even those ascer First, tained, excep- ordinarily an not material to the GuideOne allegations against determination and apply should because the extrinsic tion liberally insured are construed in of favor here was relevant primarily evidence Fire coverage. Nat’l Union Ins. Co. v. coverage, issue of rather than the mer- Lines, Inc., Merchants Fast Motor 939 Al- plaintiffs underlying its of the claim. (Tex.1997). 139, 141 argues that ternatively, GuideOne extrinsic supplement evidence is needed to Although expressly this has never Court plaintiffs allegations allega- because those recognized exception eight-cor- an to the insufficient to determine tions alone rule, are. Generally, ners other courts have.1 Finally, to defend. coverage or very these courts narrow have drawn GuideOne submits that should the Court use of extrinsic exception, permitting the conclude that the evidence is indepen- evidence when to an relevant coverage liability, issue, an relevant both to not coverage dent and discrete eight-corners exception touching to the rule should on the merits of the Recently, Fifth type third-party of claim.2 recognized nevertheless be . LONG, generally, 1 H. THE rial or extraneous to the merits of the third- 1. See ROWLAND solely question parly’s LAW OF LIABILITY INSURANCE claim but relate (2006) ("When § ex- coverage). at 5-27 5.02[2][b][ii] of relied on the insurer are rele- trinsic facts See, Entm’t, e.g., Heritage 2. W. Ins. Co. v. River coverage, do not affect vant to the issue of 311, (5th Cir.1993) ("However, F.2d 313 998 party’s right recovery, the third of courts have petition when the does not contain sufficient may held that the insurer refuse court to determine if cover- facts to enable the though, allega- third-party actions even exists, proper age it is to extrinsic to look complaint coverage.’’); indicate 1 tions adequately evidence in order to address WINDT, ALLAN D. INSURANCE CLAIMS issue.”); Corp. Atchley, Westport Ins. Rus- § 4:4 to de- AND DISPUTES Insurer’s refusal sell, Hlavinka, L.L.P., (4th Waldrop 267 & based on existence extrinsic facts fend (ex- (E.D.Tex.2003) F.Supp.2d ed.2001) 621-22 recognize (citing cases which deciding trinsic evidence admissible may explain insurer use extrinsic evidence cov- allegations that are immate- to defend where fundamental or refute factual sold or strictly liable because to was that if this Court were observed Circuit (5th molyoxide. F.3d shipped recognize Cir.1993). not rule, petition specifically under similar did likely do so would circumstances, initially molyoxide, shipped it is such as: “when Gulf had state when coverage is plain to discern whether impossible allege did but the the extrin implicated and when potentially injures exposure tiffs had suffered solely to a fundamental goes sic evidence Id. at 1946 and 1990. the toxin between overlap which does issue have estab evidence would Extrinsic the truth or engage of or with the merits any moly- shipped had not lished that Gulf underly facts 20, 1986, which was January until oxide Loving Ins. Co. v. ing case.” in expiration days three after Northfield (5th Inc., Care, 363 F.3d Home Id. at question. surance Cir.2004) original). (emphasis at issue concerned both Although the fact Circuit, coverage, the Fifth the merits and on extrinsic evidence GuideOne relies law, rejected the use of Texas applying coverage and the both to is relevant under these circum evidence extrinsic not fit the above merits and thus does reject at 371. likewise stances. Id. We Hence, exception to the rule. *5 an ex overlapping evidence as the use of excep should broaden the eight-corners rule because ception to the “mixed” or type to include this of tion the undermining of significant a risk poses But extrinsic evidence. “overlapping” itself in the ability to defend insured’s very support position, little exists for this Pryor, Ellen S. underlying litigation. See has Appeals the Fifth Circuit of Court the Changing Boundaries Mapping the of over previously rejected a similar use of Texas, TEX. TECH Duty to 31 purpose. facts for this In lapping Defend Gulf (2000) 869, (discussing 891-95 Metallurgical Corp. v. Associ LAW REV. Chemical & ev using overlapping with one of the risks associated Corp., ated Metals & Minerals eight-corners exception an to the underlying toxic-tort action idence as plaintiffs rule).3 defendants, Gulf, alleged that one of the merit of readily cases in which the erage questions by tinction between can be resolved where the engage is the issue and those determined facts that do not the truth the claim ques allegations underlying coverage policy is in falsity in the of the insurance of the allegation overlap instance the
petition, or with the merits tion. In the first suit); controls, Co. petition State Fire & Cas. and in the second Farm 448, Wade, (Tex.App.- 452-53 are to be al v. 827 S.W.2d facts known or ascertainable Boll, 1992, denied) (concluding Corpus prevail.”); writ Serv.Ins. Co. v. Christi to Int’l lowed 158, (Tex.Civ.App.-Houston evidence could be admitted that extrinsic 392 S.W.2d 161 1965, n.r.e.) (considering deciding duty when the facts extrinsic writ refd coverage identity vehi alleged insufficient to determine of driver of insured are evidence of duty doing question stipulation no to de by "when so does not to conclude cle arose). any alleged indemnify in the facts truth or fend or underlying petition”); v. Am. States Gonzales 184, Co., suggests that the Church here (Tex.App.-Cor amicus 3. One Ins. 628 S.W.2d 187 1982, writ) coverage-related incentive to might (holding facts have pus no Christi apparently em- was at least relating only prove that Evans to cover extrinsic poli- by GuideOne's ployed liability, may to deter age, be considered defend, cover- cy to secure insurance term in order duty such evidence mine a to where by proof, the third- peti age. once obtained any allegation This does not contradict discovery, Co., through would un- tion); party claimant Cook v. Ohio Cas. Ins. 1967, to those claims. 712, the insured’s defense dermine (Tex.Civ.App.-Texarkana 715-16 coverage- might have a writ) ("[T]he Similarly, the insurer Supreme Court draws dis no 310 recognized ty
Those courts that have regard policy’s duties without for the rule have express Although terms. these duties are done so under limited circumstances in contract, by rarely created coex volving pure coverage questions. For ex tensive. Nat'l See Utica Ins. Co. Texas ample, in International Service Insurance 198, 141 v. Am. Indem. 203 S.W.3d Boll, (Tex.Civ. Co. v. (Tex.2004) (observing duty n.r.e.), App. writ ref d — Houston indemnify to are distinct and insurer refused to its insured in an defend Dallas, separate); Whatley City policy auto-collision case because of a en (Tex.App.-Dallas “any dorsement that excluded denied) (duty by writ to defend is defined arising claim which occur accidents contract). the terms of the The any being while operated automobile obligated indemnify here GuideOne to Roy plaintiffs petition Hamilton Boll.” The of a claim event meritorious driving that the son was insured’s misconduct, for sexual respect but with the insured’s car when the accident oc defend, contract provided curred, identify but did not otherwise that GuideOne should “defend suit driver. resolving third-party After brought against seeking dam [the insured] claim, the insured sued insurer to his re ages, if even the of the suit are During cover his defense costs. this sub ” .... groundless, false or fraudulent sequent litigation, parties stipulated son, Roy Hamilton insured’s defined the thus Boll, driving the insured vehicle. The broadly defend more than the to in court of stipula concluded that the demnify. is often the in this This case tion established the accident had not been *6 is, fact, in type liability policy and the duty covered and that the insurer had no to under the circumstances assumed exist to defend. eight-corners respective rule. Because the Boll, however, The extrinsic evidence in scope, duties differ in are invoked strictly went issue. It did Trinity under different circumstances. not contradict allegation third- Cowan, Universal Ins. Co. v. 945 S.W.2d party pleadings claimant’s material to the (Tex.1997). plaintiffs 821-22 A factu that In underlying merits of claim. con- support a allegations potentially al that trast, the extrinsic evidence concern- here in covered claim is all that is needed to ing directly Evans’ contra- defend, Heyden voke the to insurer’s plaintiffs allegations dicts the at Newport Corp., Chemical employed during Church the rele- 26; whereas, actually facts established coverage period, allegation materi- vant in to suit control al, in part, at least to the merits of the indemnify. Trinity Ins. Universal third-party claim. eight-cor- Under the at rule, allegation’s ners truth was not a declaratory judg- matter for debate a Doe that Evans Jane ment action between insurer and insured. period and during assaulted her at the Moreover, was a minister at the Church recognize were we to the ex- observed, here, time. As the court of by necessity appeals ception urged we would trigger allegations conflate the insurer’s defense and indemni- were sufficient proof exclu- develop related incentive to tentional conduct to establish third-parly claim is based on criminal or in- sion.
3H
injury. The
bodily
her
ciently describe
at
duty to defend. 139 S.W.3d
GuideOne’s
mean
injury” to
“bodily
policy defined
disease sus-
injury,
or
“bodily
sickness
not
contends that
should
GuideOne
result-
including death
by person,
tained
Ev-
it knows that
have to defend because
any time.” Gui-
any of these at
ing from
employee
not in fact an
ans was
no
maintains
deOne
duty to
period,
but the
damages
sought
because
turn on the truth or
defend does not
injuries
psychological
for emotional
amicus
One
plaintiffs allegations.
injury.”
“bodily
rather than
however, that
it should because
argues,
truth invites fraudulent
ignoring the
noting
disagreed,
appeals
The court of
The amicus fur-
pleadings.
even collusive
assault,
of sexual
allegations
that Doe’s
adopt
a true-
suggests
ther
we should
abuse,
violation were suffi-
molestation and
rule to
facts
Because
at 390.
cient. 139 S.W.3d
a tool
recurring
rule’s
use as
prevent the
special
no technical
policy attributed
us does
for fraud. But the record before
injury,” the
“bodily
term
meaning to the
of a
collusion or the existence
suggest
not
ordinary
generally
its
applied
court
fraudu-
pervasive problem Texas with
bodily
concluding that
meaning,
accepted
solely
create a
allegations designed
lent
to be a
injury
commonly
understood
duty to defend.
and abuse.
consequence of sexual assault
present policy,
GuideOne
Under
agree.
Id. We
alle-
agreed
to defend the Church
Finally,
complains
gations
potentially
of sexual misconduct
remanding
erred
court of
coverage,
plaintiffs
even if the
alle-
within
trial court for determination
case to the
gations
false or fraudulent. There-
were
Doe did
attorneys’ fees because
costs and
if
knows these
fore GuideOne
ac-
declaratory judgment
not
file a
herself
untrue,
such
to be
its
is to establish
attorneys’ fees
pray
for
tion and did
insured,
rather than
facts in defense
Contrary
Gui-
proceedings
below.
adversary
declaratory judgment
in a
as an
however, the Church
argument,
deOne’s
Corp.,
Heyden Newport
action.
Chemical
amended motion
asked in its second
*7
(observing
n n : n n n n in Arlington, During Church Texas. Finding appeals’ no error in the court of period Fielder Road knew should judgment, affirm. engaged have known that Evans for- bidden sexual conduct which both was concurring Justice HECHT filed a actually potentially damaging WAINWRIGHT, joined opinion, by Justice persons including other Plaintiff.... BRISTER, Justice and Justice knowledge Fielder Road had that Evans WILLETT. inappropriate made sexual advances young girls to other the church. De- HECHT, joined by Justice Justice spite reports, these Fielder Road contin- WAINWRIGHT, Justice BRISTER and place position ued to Evans in a as a WILLETT, concurring Justice youth authority minister with access and judgment. young over girls. Baptist Fielder Road and its Church approximately From 1992 to Ev- insurer, GuideOne Elite Insurance sexually ans molested Jane Doe at stipulation have reached a about the na- sponsored church functions and church ture and duration of the Church’s relation- trips, as well as at her own home. worker, ship youth with former Charles ‡ n n n n Hi Evans, alleged Patrick to have argues abused Jane Doe. GuideOne inci- Despite allegations previous stipulation dents, should be considered in de- par- Fielder Road failed to warn termining youth whether has ents of the children the church lawsuit, Doe’s and the ministry of the sexual tendencies of De- rejects argument. Court fendant Evans. stipulation that even if the were n n n n ‡ % considered, pleadings would in- still from 1992 At all times material herein duty
voke GuideOne’s defend. Because employed as an asso- correct, the Church is the Court’s discus- ciate minister and was under rule”, “eight-corners sions of the so-called supervision Fielder Road’s direct excep- and whether there should ever be sexually exploited control when he it, unnecessary. tions to would not Plaintiff. Defendant Evans *8 abused address these difficult issues in a case in gained access came to know Plaintiff Ac- which cannot affect the result. youth a to her because of his status as cordingly, join only judg- the Court’s engaged minister. Defendant Evans ment. in the wrongful conduct while Evans, alleg- Doe sued the employment of with scope course and his ing following: her Therefore, De- Fielder Road. Defendant herein, is liable for the
At all times material Charles fendant Fielder Road youth wrongful Patrick an associate Defendant Evans. Evans was conduct of herein, Respondeat pleads minister. At all times material Plaintiff therefore agency and Superior, agency, apparent the re- Charles Evans remained under peti- stipulated that has and deriv- The Church by estoppel, vicarious agency “Evans was an associ- that allegation tion’s liability. ative at the Church youth minister” ate negligently Road Defendant Fielder to 1994” is false. early 1992 “approximately selected, the em- hired continued and/or stipulated: has Specifically, the Church in a posi- Evans of Defendant ployment trust, authority as tion of confidence part- a Evans Patrick became Charles with youth minister in direct contact a department of in the time intern should have when it knew or minors on November Defendant FRBC propensi- dangerous of his sexual known 1, 1992, Pat- January Charles 1991. On ties. part-time a hired as rick Evans was Plaintiff Road failed to warn Fielder of youth department associate sexu- family dangerous her of Evans’ Patrick Ev- Charles Defendant FRBC. al propensities. Defendant with ans left reason- provide
Fielder Road failed to on or about December FRBC served, of Evans. supervision able nor never Patrick Evans Charles act, to so as an he ever authorized was Road, religious organiza- Fielder as FRBC. director of Defendant officer or tion, privileges and granted special serve, not Patrick Evans did Charles by society special and is in a immunities act, authorized to as nor he ever fiduciary relationship with Plaintiff. De- of Defendant employee, or volunteer highest Plaintiff the fendant owed any time after December FRBC at required of trust and confidence and is officially re- Patrick Evans was Charles Defen- to act in Plaintiffs best interest. FRBC of Defendant moved as member relationship. knowingly dant violated the February of 1993. Plain- knowingly Defendant breached failed to tiffs trust when Fielder Road 31, 1993, to March From March highest degree act of trust and with insured the Church Plaintiff from its protect confidence to liability damages because against “legal This sexually predatory minister. arising injury any person ... bodily of fiduciary duty proxi- breach of knowing occurs dur- misconduct which out of sexual mately injury to Plaintiff. caused agreed to “de- period” and ing Church] brought [the
fend suit by fraud damages, Fielder Road also committed even if the seeking proximately that fraudu- misrepresentation groundless, false or the suit Fielder damages. caused Plaintiffs that because lent”. GuideOne repre- or authorize employ Road committed fraud when Church did safe, period, sented Evans was to act on its behalf him or should have known not covered when knew accusations are tendencies. pedophilic simply his That is incorrect. policy. sexually molest- alleges
Doe that Evans’ alleges Plaintiff the actions 1992 to approximately ed her “[f]rom emotion- these Defendants have inflicted Doe fur- policy period. 1994”—within *9 upon al distress Plaintiff. bodily injury that she suffered alleges ther misconduct, for Evans’ sexual negligence of because of alleges Plaintiff If is liable. the Church injury to the Church bodily Road which Fielder resulted employ it did not is correct Plaintiff. policy period, within the then Doe’s claim liability the Church for vicarious clearly
would fail. But that is not Doe’s
only claim. She claims that the Church
knew or should have known of Evans’ sex-
ual misconduct “approximately early
1992 to 1994” and should have warned her family.
and her She also claims that Ev- was the apparent agent,
ans Church’s fiduciary
the Church breached its
her, misrepre- and that the Church made
sentations to her. and oth- Whether those merit, factually,
er claims have legally or liability against assert may depend period on the
Evans’ association with the Church and
thus invoke the to defend. GuideOne
concedes that if it has a claims, has a
them all.1 “eight-comers” applies rule whether stipulation
the Church’s is considered or Thus,
not. we have no need to consider have, exceptions might
what the rule issue,
given importance of this difficult express opinion
I would no on it.
Accordingly, judg- concur
ment. HOUSTON, Petitioner,
THE CITY OF CLARK, Respondent.
Donald
No. 04-0930.
Supreme Court of Texas.
Argued 2005. Nov.
Decided June Moritz, ref’d). Maryland. Cas. Co. v. (Tex.Civ.App. writ — Austin