OPINION
In this case arising from denial of an insurance claim based on the insured’s non-cooperation, we address an issue of first impression: whether clauses in an insurance contract requiring the insured to cooperate in the investigation of a claim and to submit to an examination under oath (EUO) permit the insurance company to require separate, segregated examinations of the insureds. We conclude that when, under the terms of an insurance policy a person may be required to submit to an EUO, it is reasonable to infer that the insurer may require such examination to be separate and segregated from the examination of any other person. Accordingly, we affirm that part of the trial court’s judgment declaring that the Standard Texas Personal Auto Policy at issue in this case permits Progressive to require separate, segregated examinations under oath from Lidawi and Mohamad. Nevertheless, because this is a matter of first impression in Texas, in the interest of justice we reverse that part of the trial court’s judgment dismissing appellants’ *728 lawsuit for failure to comply with a condition precedent. We remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants Mohammad Lidawi and Zei-na Mohamad, who are husband and wife, represent they are victims of an accident in which someone failed to stop at a stop sign, striking the left side of appellants’ automobile as appellants passed through the intersection. According to appellants, the driver then drove away without providing any identifying information. Appellants filed a claim with their insurer, Progressive County Mutual Insurance Company, the appellee. Appellants’ policy provides in part: “A person seeking any coverage must ... [c]ooperate with us in the investigation ... of any claim.” The policy also provides, “A person seeking any coverage must ... [w]hen required by us ... submit to examination under oath.”
On or after February 9, 2001, Progressive Claims Inspector David Tews took a recorded statement from Lidawi regarding the accident. Progressive also inspected appellants’ automobile. This inspection revealed damage from multiple impacts involving several incidents. Additionally, the impacts left paint transfer marks that did not match Lidawi’s description of the vehicle causing the accident. Based on the discrepancies between the physical damage and Lidawi’s statement, Tews hired an engineer to investigate the damage. The engineer also concluded the damage was not consistent with Lidawi’s statement.
On March 14, 2001, Tews sent letters to appellants and their attorney, Michael En-gelhart, requesting appellants submit to an EUO. The letter did not refer to separate examinations. On April 11, 2001, Engel-hart, appellants, and an interpreter met Tews and another Progressive representative at Engelhart’s office. When Progressive insisted the EUOs be conducted separately, Engelhart insisted each appellant be permitted to be in the room when the other was examined because “they are husband and wife, and are both claimants and insured under the policy.” Progressive refused, and Tews left without taking the examination.
On April 16, 2001, Tews sent Engelhart a letter formally requesting that appellants submit to individual and separate EUOs. Engelhart responded, indicating there was nothing in the insurance policy that required individual and separate examinations. Engelhart reiterated appellants’ willingness to be examined so long as they could be in the same room while being questioned. On April 25, Tews wrote En-gelhart and appellants stating Progressive was denying appellants’ claim because of appellants’ non-cooperation in the request for the EUO.
Appellants then sued Progressive for breach of contract and also sought a declaratory judgment regarding their rights and duties under the policy, specifically the duty of cooperation, the requirement of separate examinations, and the insurer’s waiver of examination. Progressive counterclaimed for a declaratory judgment (1) that its request for separate examinations was consistent with the cooperation obligations of the contract, appellant’s failure to cooperate constituted a breach of the policy, and Progressive therefore properly denied the claim; and (2) by failing to cooperate and refusing separate examinations, appellants failed to meet all conditions precedent to recovery on their suit.
Both parties moved for summary judgment. Appellants moved for traditional summary judgment on their claims and a partial no-evidence summary judgment on Progressive’s request for declaratory judgment that appellants failed to satisfy a *729 condition precedent to the lawsuit. Progressive moved for traditional summary judgment. The trial court rendered judgment, ordering:
1. The Standard Texas Personal Auto Policy permits Progressive to require separate examinations under oath from Lidawi and Mohamad;
2. Since Lidawi and Mohamad failed to comply with Progressive’s proper request for separate examinations, they have failed to comply with a condition precedent to recovery under their insurance policy with Progressive;
3. As a result, summary and declaratory judgment is hereby entered in favor of Progressive;
4. Plaintiffs’ suit is hereby dismissed; and
5. Costs and attorney’s fees are taxed against the incurring party.
DISCUSSION
Introduction and Standard of Review
Appellants raise two points of error. In point of error one, they contend they are entitled to summary judgment on their affirmative claims for breach of contract and declaratory judgment because, as a matter of law, the insurance policy does not entitle Progressive to separate, segregated EUOs. In point of error two, they contend they are entitled to summary judgment on their affirmative claim that Progressive waived its right to EUOs because they appeared, were ready, willing and able to proceed with the examination, and Progressive refused to proceed. For the same reasons, they argue they are “entitled to summary judgment and a no-evidence summary judgment” on Progressive’s “defense” that all conditions precedent have not been met. 1
When, as in this case, the parties file competing motions for summary judgment, and the trial court grants one motion and denies the other, this court may consider the propriety of the denial as well as the grant.
Gmmercy Ins. Co. v. MRD Invs., Inc.,
The movant for summary judgment has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law.
Nixon v. Mr. Prop. Mgmt. Co.,
A defendant moving for traditional summary judgment assumes the burden of showing as a matter of law the plaintiff has no cause of action against him.
Levesque v. Wilkens,
Additionally, after sufficient time for discovery has passed, a party may file a “no evidence” motion for summary judgment if there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.
See
Tex.R. Civ. P. 166a(i). As with the traditional summary judgment, in reviewing a “no evidence” summary judgment, we review the evidence in the light most favorable to the nonmovant and disregard all evidence and inferences to the contrary.
Coastal Conduit & Ditching, Inc. v. Noram Energy Corp.,
We review declaratory judgments under the same standards as other judgments and decrees.
See
Tex. Civ. PRAC.
&
Rem. Code Ann. § 37.010 (Vernon 1997);
City of Galveston v. Giles,
Analysis of Points of Error
Point of error one: Are appellants entitled to summary judgment on their affirmative claims for breach of contract and declaratory judgment because the insurance policy does not entitle Progressive to separate, segregated EUOs?
In point of error one, appellants argue the insurance policy does not
*731
entitle Progressive to conduct separate, segregated EUOs of the insureds. Insurance policies are controlled by rules of interpretation applicable to contracts generally.
Nat’l Union Fire Ins. Co. v. CBI Indus., Inc.,
If, however, the language of a policy is subject to two or more reasonable interpretations, the language is ambiguous.
Id.
“Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract.”
Id.
A court may consider the parties’ interpretations only when the court first determines the policy is ambiguous.
Id.
Only if a court decides a policy is ambiguous may the court construe its language in favor of providing coverage for the insured. See
State Farm Life Ins. Co. v. Beaston,
Ambiguity in contract language, however, is not to be confused with silence. Ambiguity results when the intention of the parties is expressed in language susceptible of more than one meaning.
Med. Towers, Ltd. v. St. Luke’s Episcopal Hosp.,
Neither party seriously argues the policy is ambiguous. Appellants contend the policy is clear in not requiring separate examinations. They contend the policy is not silent because it contains a clause pertaining to examinations under oath. The policy provides; “A person seeking any coverage must ... [c]ooperate with us in the investigation ... of any claim.” The policy also provides, “A person seeking any coverage must ... [w]hen required by us ... submit to examination under oath.” (Emphasis added.) Use of the singular strongly suggests any examination of “a person” may proceed separately from that of any other person. Nevertheless, we conclude the policy is silent regarding the manner in which the EUO is to be conducted.
When a contract is silent on an issue, Texas courts will infer reasonable terms.
See Med. Towers,
[T]he court must tread carefully when ascribing implicit obligations on the contracting parties. The court should not venture beyond construing the contract to effectuate the manifest intentions of the parties. The court must determine what the parties bargained for when they agreed to the terms of the cooperation clause.
The [insureds] bargained for the right to make an honest claim under the policy and to receive compensation with a minimum of inconvenience. In return, [the insurer] bargained for a reasonable means to ascertain the truth surrounding a claim. The cooperation clause embodies [the insurer’s] right to uneover the probability of truth from the [insureds].
The court must bear these interests in mind when construing the cooperation clause. Where the precise details of an agreement have not been defined by the parties, the court should assume the parties implicitly intended the agreement to operate in a reasonable manner. For example, courts routinely deem contracts to require performance within a reasonable time where the parties did not explicitly set any deadlines. The cooperation clause, therefore, should be deemed to allow [the insurer] to take reasonable steps to ascertain the truth of the claims.
State Farm Fire & Cas. Co. v. Tan,
Like the
Spence
court, we conclude “more accurate factual statements could likely be taken in any set of circumstances where multiple parties are involved, if such statements were taken separately.”
Spence,
Appellants, however, cite this court to three cases in which courts from other jurisdictions have declined to infer such a provision:
United States Fid. & Guar. Co. v. Welch,
Ahmadi
shares many similarities with the present case. As in the present case, the insurance policy in question contained both a cooperation clause and a clause indicating the company “may also require any person making a claim to submit to questioning under oath and sign the transcript.”
Ahmadi,
The insurer refused, the examinations were not conducted, and the insurer denied the claims because the claimants had refused to submit to the EUOs and had not cooperated in the investigation. Id. at 578. The claimants filed suit seeking an award of benefits under the policy and a declaration (1) the insurer was without legal justification in requiring separate examinations and (2) denial of their claims was unreasonable. Id. Both parties filed motions for summary judgment, and the trial court granted the insurer’s motion and dismissed the action. Id. The appellate court reversed, reasoning in part, “In the absence of any ambiguity, we must give effect to the plain meaning of the policy terms. Further, we are not at liberty to rewrite the policy.” Id. (citations omitted).
The rationale behind the claimants’ objection to segregated EUOs, however, differed from that in the present case, in which counsel simply stated the claimants were husband and wife. In contrast, the claimants’ counsel in Ahmadi stated he did not speak the claimants’ native language and therefore needed their assistance even though the insurer had arranged for an interpreter. Id. Moreover, the Ahmadi court made no reference to a court’s ability to infer reasonable terms when the policy is silent regarding a particular matter.
Finally, in
Hill,
a divided comí of appeals observed the insurer was not asking the court to construe any provision, but was asking the court to write additional terms into the policy.
Hill,
We conclude the better rationale is to be found in Spence and Tan. In the face of silence regarding the manner in which an insurer is to conduct an EUO, we infer a reasonable term allowing the insurer to require separate, segregated examinations.
We overrule appellant’s point of error one. We affirm that part of the trial court’s judgment declaring, “The Standard Texas Personal Auto Policy permits Progressive to require separate examinations under oath from Lidawi and Mohamad.” Point of error two: (i) Are appellants entitled to summary judgment on their affirmative claim that Progressive waived its right to EUOs because they appeared, were ready, willing and able to proceed with the examination, and Progressive refused to proceed; and (ii) Are appellants entitled to summary judgment and a no-evidence summary judgment on Progressive’s defense that all conditions precedent have not been met?
In point of error two, appellants argue (1) Progressive waived its right to take
any
EUOs, and (2) the condition precedent of their submitting to an EUO has been met because they appeared ready, willing, and able to submit to an EUO, thereby substantially complying with the policy provisions regarding proof of loss. Appellants implicitly concede submission to an EUO was a condition precedent to recovery under the policy. Performance of any condition precedent is an essential element of a plaintiffs breach of contract case.
See Grimm v. Grimm,
Appellants’ point of error two rests in part on their belief they “have fully complied with the proof of loss requirements.” As we held under point of error one, Progressive can require separate, segregated EUOs. Appellants presented no evidence they complied with this requirement.
Nevertheless, appellants also contend, “Even without deciding the contract interpretation issue, Appellants’ conduct in appearing for their examination under oath and in being ready willing and able to go forward is dispositive in this case.” In short, they contend they have “substantially complied” with the policy provisions regarding proof of loss.
Even without meeting all of the conditions of an EUO, an insured may substantially comply with the requirement, and the insurer may waive further eompli- *735 anee. See Century Ins. Co. v. Hogan, 185 5.W.2d 224, 228 (Tex.Civ.App.-Austin 1939, no writ). Appellants rely on Hogan to support their claims of waiver and substantial compliance. In Hogan, the insured had submitted to an EUO and had answered every question. Id. The insured’s only noncompliance was his refusal to sign the notary’s transcription, a refusal the appellate court found warranted because the notary had not recorded all the insured had testified to. Id. The appellate court also observed the unsigned transcription served every purpose it could have served if it had been signed. Id. Finally, in relation to the insurer’s waiver of the signature, the appellate court observed, “The evidence obtained by [the insurer] on this examination was manifestly all it desired from [the insured], otherwise it would have directed attention to [the insured’s] failure to sign the transcription in the reply of January 5, 1938, to the offer of December 16, 1937, by appellee’s attorneys.” Id.
In the present case, however, the insureds have not been examined under oath at all. Appellants point to no document in the present case equivalent to the notary’s transcription in Hogan. Furthermore, Progressive made a formal request for such an examination even after appellants refused. In short, they “directed attention” to their need for the EUO. To conclude Progressive waived any EUO by insisting on a procedure to which we have held it was entitled would mean Progressive would have had no means of protecting what it correctly believed were its rights under the policy.
We overrule appellants’ point of error two to the extent appellants argue they are entitled to summary judgment on their affirmative claim Progressive waived its right to any examinations under oath.
Nevertheless, we also decline to conclude Progressive is presently entitled to summary judgment in its favor and dismissal of appellants’ lawsuit.
6
Depending on how the policy is written, an insurer’s proper remedy to enforce a condition precedent is abatement rather than barring the claim.
See State Farm Gen. Ins. Co. v. Lawlis,
In addition, because we are today deciding an issue of first impression, the case has not been fully developed consistent with that law.
See Bayway Servs., Inc. v. Ameri-Build Constr., L.C.,
CONCLUSION
We affirm that part of the trial court’s judgment declaring, “The Standard Texas Personal Auto Policy permits Progressive to require separate examinations under oath from Lidawi and Mohamad.” We reverse that part of the judgment granting final summary judgment in favor of Progressive and dismissing appellants’ lawsuit. Finally, we remand this cause to the trial court to afford appellants the opportunity to comply with the requirement of separate, segregated EUOs as a condition precedent to their lawsuit.
Notes
. Failure to meet conditions precedent is not an "affirmative defense" on which Progressive bore the burden of proof. As the Dallas court explained regarding the burdens of pleading and proof:
A condition precedent to the right to maintain an action must be performed and "the fact of performance or excuse of nonperformance must be alleged and proved in order to warrant a recovery.” Southwestern Associated Telephone Co. v. City of Dalhart,254 S.W.2d 819 , 825 (Tex.Civ.App.-Amarillo 1952, writ ref’d n.r.e.). When a plaintiff avers generally that all conditions precedent have been performed, he is required to prove the performance of only those conditions precedent specifically denied by the defendant. The effect of this rule is to shift the burden of pleading to the defendant, but not the burden of proof, when the plaintiff has made a general allegation that all conditions precedent have been performed.
Trevino v. Allstate Ins. Co.,
.
See also Thompson v. CPN Partners, L.P.,
. Regarding trial testimony, the Texas Supreme Court has observed, "Sequestration minimizes witnesses' tailoring their testimony in response to that of other witnesses and prevents collusion among witnesses testifying for the same side. The expediency of sequestration as a mechanism for preventing and detecting fabrication has been recognized for centuries.”
Drilex Sys., Inc. v. Flores,
. The authoring judge opined:
The only way this court could reach the result requested by [the insurer] would be to rewrite the policy and to add provisions which are not now there nor which are contended to be contained by a reasonable construction of the language employed. [The insurer] would have this court undertake a complete rewriting of the provisions providing for the examination under oath. That is beyond the power of the courts in this state. United States Fid. & Guar. Co. v. Hill,722 S.W.2d 609 , 611 (Mo.Ct.App.1986) (emphasis added).
. Insurance policy provisions requiring the insured’s submission to an EUO as a condition precedent to sustaining a suit on the policy are valid.
State Farm Gen. Ins. Co. v. Lawlis,
. In the caption for their point of error one, appellants argue the trial court should not have granted summary judgment in favor of Progressive.