*1 CONSTRUCTORS, INC., SEWER Corporation, Appellant, a COMPANY,
EMPLOYERS CASUALTY Corporation, Appellee.
No. 14489.
Court of Civil of Texas.
Houston.
Feb. 1965.
Rehearing Denied Feb. Rehearing 18, 1965.
Second Denied March *2 appellant’s coun- In
in favor of Clark. fact suit. successfully the Clark defended sel as undisputed case this Under the us, appellee would by the record before made damages any judgment for for not be liable conceded, fact, it seems subsequent injuries to Clark did arise appellant. How- completion of work appellee’s ever, we are of the view is not determined obligation to defend suit in fact the case by whether such is whether assured, fairly reason- against an when construed, cover- ably state a cause of action policy. ed ap- Clark sued the of Houston and personal injuries re- damages for for petition of August The ceived here, alleges as Clark, insofar material as follows: Kirchheimer, Joseph Kirchheimer & K. VI. Kirchheimer, Houston, appellant. for Honor- would further show this “Plaintiff Fulbright, Crooker, Freeman, & Bates Defendant, Con- Court Sewer able Jaworski, Houston, Boston, Charles D. structors, Inc., and at the time heretofore Tex., appellee. for committing lines sewer engaged BELL, private homes on Chief main Justice. Defendant, and that Appellant against appellee, filed suit seek- Constructors, dug excavat- Inc., Sewer ing to recover the it had incurred permitted dug and ed excavated defending against appellant a suit filed deep public street ditches in and across by George sought Clark in which Clark * * *; thus Defendant was while personal Ap- recover damages injuries. said excavating engaged digging and pellee, who was insurer certain it became and ditch or trench in a liability risks policy of insurance is- reasonable use the Defendant sued refused to the suit ordinary safety gen- care injuries because it contended the did not public travelling eral the said street grow policy. a risk covered by the as for of this Plaintiff. safety as well by appellant In this suit his ex- recover appellee’s penses, granted trial court mo- VII. judgment rendered summary Constructors, Defendant, “The Sewer judgment nothing. take Inc., duty, use due regarding did not not its court also denied motion for Plaintiff proper safety for the care summary judgment seeking judgment as to negligent- engaged wrongfully and while so appellee’s seeking ly permitted to be cover- the ditch or trench being recovery, to the amount of latter packing proper ed over with without dirt question of fact. topping ditch trench to causing the ruts, Appellant’s large holes leaving suit was to re cave in and sink not one depressions remain leaving cover for same to judgment rendered open, exposed guards, lights and without styled you case. We advised other protection, or 17,1959 letter, notice to travellers. November that was our
thinking that accident was not your policy.” under VIII. *3 Appellant then appellee would, told it aforesaid, your on the date “That Plain- appellee refusing defend, since was to em-
tiff
travelling
upon
was
an automobile
ploy its own
appellee
counsel but would hold
along
easterly
Weaver
in an
Street
di-
responsible
for
attorneys
all
rection,
Plaintiff,
while
both before and
fees incurred in defending suit.
injuries,
at
time of his
the
was in the exer-
cise of ordinary
safety,
his
care for
own
be agreed,
appel-
It seems to
or at least
solely
the
by
negligence
of
carelessness
lant
dispute,
does not
as a
of
matter
aforesaid,
the Defendants as
Plaintiff’s
the
fact
work or
had been com-
automobile then and
ran and sank and
pleted
accident,
at the time of Clark’s
ac-
fell
hole,
depression
into said
where-
rut
cording
petition.
to the date
set
by Plaintiff
his car and
lost control of
ran The policy
coverage
excludes
the
where
upon
into a
him
throwing
ditch and culvert
premises
accident occurs off of assured’s
against
portions
the
the car.”
various
of
if the
or
of which the
work out
injuries grow
completed
has been
or aban-
appears
accident,
It
the
that after
doned,
is,
obligation
it excludes an
to
filed,
attorneys
before suit was
any damages
injuries.
It is not
pay
for the
appellant
wrote
a
asserting
claim
dam-
ap-
policy
contended that the
entitle
would
ages.
Steele, appellant’s president,
Mr.
on
appellee
by
indemnified
September
1959,
25,
forwarded
corres-
the
paid
any
appellant
way
by
amount
of dam-
pondence
appellee.
attorneys
from Clark’s
to
ages
injuries resulting
from the acci-
In this letter he
as follows:
stated
of
an
dent.
contention
is that
claim,
“In -connection with
it is
this
re-
insurer’s
defend is determined
obligation to
motely possible
might
have some
by
not
a
whether
fact the
resolution of
operations
liability.
we had
policy
covered the accident
whether
accident,
on
street
this
time
at
petition
plaintiff’s
under the
of a
7,
August
1959.
against an
cov-
assured shows an accident
by
policy.
ered
did, however,
sanitary
“We
install
*!i!
*
lines on
proj
Appellee apparently contends the trial
ect
24,
on March
correctly
court
sustained
for sum-
its motion
accepted
formally
by
of Houston
mary judgment
be-
for two reasons. First,
April 7,
on
1959.
cause
fact the accident
not covered
by
and, second,
petition
policy,
opinion
damages
“It
our
af-
allege
Clark did not
oper-
probably
claimed
are
due
pol-
firmatively
by
an
accident
ations of someone other than ourselves.
icy.
you
investigate
will
trust
“We
you
promptly
advise
if
need further
us
specifically only
need
notice
assistance
the matter.”
provision
policy creating
obligation
suit is
assured where
defend
September
Suit was filed
Clark
filed
him. It reads as follows:
Immediately
citation was
.1960.
after
copy
served, ’appellant
a
delivered
respect
af-
insurance as is
“With
such
Appellee
petition
appellee.
returned
company
policy,
forded
shall:
citation,
making
return
and the
letter
“(a)
against the
attach-
suit
insured
language:
are
confained this
“We
alleging [emphasis ours unless
otherwise
your letter,
the Citation
ing
along with
;Cir.)
Shantz,
F.2d
sickness,
disease or
injury,
such
stated]
seeking
on account 50 A.L.R.2d
damages
destruction and
thereof,
groundless,
even
suit is
”
above,
ap
As we stated
fraudulent;
false
a
as matter
parently
that since
contends
It seems
that under a
well settled
happened after the
fact the accident
quoted,
provision using
by the letter
shown
creating
insurer
de-
obligation
of an
appellant, and
Steele,
president
Mr.
suits,
duty of
insurer to de-
fend
here,
appellee
disputed
as not
al-
given
fend a
suit
determined
written
obligated
The letter was
to defend.
petition
by a claimant
legations of the
It stated there
before suit was filed.
al-
possibility
the assured.
If such
on the
remote
*4
appellant.
of
this statement
leges
showing an
On what
facts
occurrence that
policy, based
It also
the
coverage
the
do not know.
stated
comes within the
of
we
If,
been
work
had
then the insurer must defend.
to the
of
the sewer lines
accepted by
contrary,
petition
March,
1959 and
facts
alleges
the
7,
Ap
April
coverage,
the
City
the occurrence without the
of Houston on
that
is
pellee pled
last
duty
coverage
is no
state-
no
because the
to defend.
view
should, perhaps,
be
to the ex-
are of the
qualified
ment
We
however,
suit,
saying
though
obligation
tent of
even
there be
that the
defend
stated,
allegations
the
based,
inconsistent theories
one of
is
above
alleged,
which
specifical
coverage
petition.
no cover- of
mention this
shows
one shows
the
of au
age,
obligated
despite
still
to defend.
and citation
ly
the insurer is
our discussion
think,
two
applicable,
wheth-
there were
These rules are
thorities above because
Appeals
not. The
cases
in Texas
alleged
er
are true or
Courts of
from
Civil
inconsistency
reason is
The insurer’s
in case
between
the contract itself.
held
of
petition
de
undertaking
allegations
defend is
defend those
of
and the
not to
obliga
coverage,
suits that in fact come
the insurer had no
within
termined facts
Uni
alleging
Trinity
but to
refer to
those suits
to defend. We
defend
Bethancourt,
policy
versal
331
coverage.
within the
In the
here
Insurance Co. v.
hist.,
by
Amarillo
provided
involved it is
that:
“With re-
writ
S.W.2d
no
spect
Appeals,
insurance
afforded
Massachusetts
by
such
as is
this Court
Civil
policy,
company
Roessler, 112 S.W.
(a)
Bonding
shall:
defend
and Ins.
v.Co.
dis
275, application
insured
of error
alleging
injury
suit
2d
for writ
groundless,
missed,
suit
Civil
by
even such
is
Court of
Worth
Ft.
false
if
Maryland Casualty
Appeals.
express
Com
Court had
Amarillo
fraudulent.'’
Moritz,
pany
(Tex.
ly
138
1095
the Ft. Worth
v.
S.W.2d
followed the decision
ref.;
of Traveler’s
Civ.App.),
F. and Court.
in the case
writ
United States
Newsom, supra,
Baldwin,
(Tex.
writ
v.
34
815
v.
G. Co.
S.W.2d
Insurance Co.
refused,
Com.App.);
Corp.
error, major
v.
error
no
General Insurance
reversible
Harris,
ity
justices
Amarillo Court
(Tex.Civ.App.),
651
of the
327 S.W.2d
hist.;
v.
Co. New
refused
follow
writ
Travelers Insurance
Civil
pre
ref., previous
som,
(Tex.Civ.App.),
352
888
decision and followed
S.W.2d
e.;
authority
which is that the
Liberty
vailing weight
r.
Co. of Texas
n.
Mutual Ins.
Rawls,
allegations
(Tex.Civ.App.),
is measured
Knorpp, (Tex.Civ.App.), The Newsom S.W.2d 898 370 assured. cases ref., discussion e.; Maryland v. haustive citation and n. r. Co. repeat Cir.) ; us to them (5th unnecessary 37 Mitchell, 322 F.2d Boutwell Employers say Liability Corp., here. It suffices that we we hold Assur. pro- policy contains Cir.); where the insurance F.2d 597 Hardware Mutual quoted vision regard with chants Mut. Co., Cas. 195 Misc. obligation defend, insurer’s the obliga- Court). (N.Y.City N.Y.S.2d 469 tion to allega- is measured petition
tions the claimant’s though even We do not know what the contract those are inconsistent with between of Houston and known or ascertainable provided facts. except under
laying sewer
service lines
a main
sewer line on
to the in
analyze
We must now
para
dividual
language
houses. The
petition
against appellant
to ascertain
graph
VI of Clark’s
states in
where it states a
cause
action within the
part
“at
time
of com
coverage. We should here note that the
mitting
policy
coverage
excludes
if the accident
engaged in laying sewer lines from the main
occurs away from
premises
the insured’s
private
sewer to
homes.” This
has been
or aban
can
certainly
understood to
reason be
doned and
provided
it is specifically
that the
at the
wrongful
mean
time the
acts were
“operations shall not be deemed incom
continuing.
committed the
plete
improperly
per
because
defectively
a,
Immediately
following
and as
formed or
operations
may
further
of the same
sentence it
stated
de
required pursuant
agreement.”
to an
*5
deep
fendant dug and excavated
ditches
petition alleged
showing
facts
it
digging
across the street and that while thus
away
appellant’s
occurred
premises.
from
it
duty
provide
such was
It did
express allegation
not contain an
the safety
public.
paragraph
Then
appellant
that
work of
continuing.
was
alleges
VII
regarding
Appellee says it “indicates” the
had
Clark,
engaged
toward
“while so
completed.
been
do
permitted
We
not think it is
wrongfully
negligently
es
and
sential
expressly allege
con
work was
ditch or trench to be covered over with dirt
tinuing or
proper
causing
had
packing
not been
or aban without
topping
and
though
doned
in some of the
cases
decided
the ditch or trench to
in and sink leav
cave
there
ing
ruts,
depressions
was some such language
large
We
and
used.
holes and
think if
allegations
leaving
open
there are
same
which
with
remain
”
**
guards
reasonable reader
lights
would conclude that a
lan
continuing
operation
guage
unabandoned
allege
does not
being
operation
asserted
as
there is an affirmative
had
laying lines
the street
on
coverage.
sertion of a claim within the
To
by words “while
otherwise,
state it
if the
so
allegations
engaged”
would
can
to the
only refer back
description
admit of
appellant’s operation
the introduction of
evidence
stat
operation
would
ed in
continuing
preceding paragraph
appellant
show
an
allegation
affirmative
In
coverage.
“at
time of committing
case of
pleading
laying
doubt
is to be con
engaged
was
sewer
”*
^ *
strongly against
strued most
lines
insurer.
This can in reason be read
have
precisely
operation
continuing.
found no '""exas
in to mean the
case
was
point
per
following
appellant
language saying
we
There is
authorities
think
support
principles:
the above
mitted the ditch or
be covered over
Boutwell v.
trench to
Employers Liability
Corp.,
causing
Assur.
F.2d
in and leave
175
the trench to cave
holes,
Cir.);
depressions
might
597
v. Aetna
&
ruts. This
Lee
Surety Co.,
Cir.);
(2nd
particular
can be understood to mean a. open,
ditch was left but from the engaged “was get impression
lines” one would open
left continuing while the work was experience light one would opera- conclude it filledbefore the vir, Appellants, M. CLAY et Mordecal *6 alleged tion was Then hole, Clark’s automobile ran said rut into Independent Kelly SIERCOVICH, Ruth depression and Clark lost control and Executrix, al., Appellees. et culvert, ran causing it into a ditch and his No. 4355. injury. Court of Civil of Texas. Considering petition, hold whole Waco. allegations showing contains an uncom- Feb. pleted operation. and unabandoned The was, trial therefore, court in error in sus- appellee’s summary
taining judg- motion for
ment overruling motion for
judgment establishing liability. judgment of the trial court appel grant
is reversed with directions ap judgment motion and
lant’s render entitled such reason to recover expenses, attorney’s fees as including
able defending
were incurred in Clark’s suit. ques are is a
What the reasonable
tion of fact. appellant also for an
We note sued at-
torney’s bringing of this suit. fee did not summary judgment,
The motion for