*1 AMERICAN INSURANCE ZURICH
COMPANY, Com Federal Insurance Fire Insur
pany, and National Union Petitioners, Company,
ance INCORPORATED,
NOKIA,
Respondent.
No. 06-1030. Texas. Court of
Supreme Feb. 2008.
Argued Aug.
Delivered 2008.
Rehearing Denied Dec. *2 Phillips,
Thomas R. Joseph Knight, R. Jennifer Cafferty, Lee Baker & Botts L.L.P., Austin, TX, Jeffrey Levinger, S. LLP, Levinger Hankinson Stephanie Doo- Nelson, ley Lynn Visosky, Rebecca Car- rington Blumenthal, Coleman Sloman & L.L.P., Allyson Ho, Newton Baker & Botts Huddleston, L.L.P. Michael W. J. Stephen Gibson, Gracey Miller, Shannon Ratliff & Dallas, TX, Phillip King, R. Eric D. Stu- benvoll, Durham, Darryl Jerome C. Stu- der, Meekler, Bulger Tilson, LLP, & Chi- IL, cago, Chamberlin, Kirk C. Chamberlin LLP, Encino, CA, Keaster & Brockman Andrea, Vu, Nicholas R. Lan Charleston Chamberlin, L.L.P., Revich & Ange- Los les, CA, Isbell, Coe, James N. Thompson, L.L.P., Cousins & Irons En- Kenneth G. gerrand, Sims, P.C., Brown Robin Howard Wexler, Houston, TX, H. Russell McMains, Law Offices of Russell H. McMains, Christi, TX, Corpuys for Peti- tioners. White,
Alexandra Giselle Brian D. Mel- ton, Mayer, LLP, Eric Godfrey J. Susman Houston, TX, Cosby, Ian B. Susman Go- LLP, WA, drey Respondent. Seattle Smith, Austin, TX, D. Todd Mary Olga Lovett, LLP, Houston, Greenberg Traurig TX, for Amici.
Chief Justice JEFFERSON delivered opinion Court, in which Justice O’NEILL, WAINWRIGHT, Justice MEDINA, GREEN, Justice Justice JOHNSON, Justice and Justice joined. WILLETT manufacturer, A telephone wireless sued in a putative alleg- number of class actions had no that Zurich phones declaration that radiation emitted ing and that Zurich indemnify Nokia injury, turned to its defend or biological caused for defense or indem- surers, responsible to defend claims was not agreed who had bodily injury. made National Union seeking damages nity payments *3 defense, contribution initially sought Zurich also providing After Federal. they against all defendants. sought subrogation a declaration that and surers later Because we con- and Federal cross-claimed duty had no to do so. Union National among other underlying asserting, suits against clude that most of the Nokia duty to defend or bodily injury, they of we had no things, seek and, modify appeals’ judgment indemnify the court of Nokia. modified, affirm. mo- the insurers’ granted The trial court After Nokia summary judgment. tion for
I in and amended tendered new actions, filed an underlying Zurich Background and Factual Procedural summary judgment. amended motion Nokia, Incorporated, corpora- a Texas in motions were At issue the various tion, of largest the world’s manufacturer cases”): (the cases “MDL following five and telephone wireless handsets. Nokia al., Nokia, Inc., al. v. et Pinney et 1. manufacturers telephone other wireless (D.Md.2002), 474 F.Supp.2d 216 in a class putative were sued number of in the Court originally filed Circuit action cases filed in various courts across City, Maryland; for Baltimore in country. consumer-plaintiffs Inc., al., Nokia, et 2. Farina v. alleged frequency cases that radio those (RFR) (D.Md.2002),original- phones F.Supp.2d from radiation wireless in of injury.” ly filed the Court Common “biological causes Pleas, County, Pennsyl- Philadelphia Nokia tendered the defense of one of vania; these cases to Zurich American Insurance Inc., al., Nokia, et al. v. et 3. Gilliam Company, purchased from which it had (D.Md.2002), F.Supp.2d 474 (CGL) general liability several commercial Supreme filed in the Court originally policies covering years insurance 1985- York; of New of the State agreed Zurich to de- 89 and 1995-2000. Inc., right its to later Nokia,
fend Nokia but reserved et Gimpelson et al. v. 4. obligation to defend indemni- contest its al., (D.Md.2002), orig- F.Supp.2d insurers, National Union fy. Nokia’s other of Ful- inally Superior in the Court filed In- Company1 Fire Insurance and Federal Georgia; County, ton State Company,2followed suit. surance al., Nokia, Inc., et al. v. et Naquin 5. (D.Md.2002),original issue, F.Supp.2d Seeking to resolve the Court, Par Nokia, Union, District ly filed in Civil Zurich sued National Louisiana;3 Orleans, sought a ish of State County Federal in Dallas covering policies, and six umbrella commercial 1. National Union issued several Nokia, 1995-2001. general liability policies to insurance 1989-1993, covering as well as three umbrel- Litiga- on Multidistrict 3.The Judicial Panel policies period la for the 1998-2001. cases to the District tion has transferred these Maryland or consolidated for coordinated general liability policies issued two Federal 1407; In re pretrial proceedings. 28 U.S.C. Nokia, covering period from 1999- Telephone Frequency Emis- Radio Wireless action, plus a sixth Dahlgren v. Audiovox determination that the a duty insurers had al., Commc’ns. Corp., cases, et Case No. 02- to defend the MDL the trial court’s 0007884, in Superior ruling duty Court the Dis- that there was no indemnify trict of Columbia. Nokia those premature. cases was Id. Thus, at 393. the court appeals re- granted The trial court Zurich’s amend- versed and portion remanded that ed summary motion for judgment and judgment.5 trial court’s Id. signed judgment declaring, pertinent Zurich, part, Union, petitioned National insurers this Court review, arguing Federal4 had no defend or indem- had no *4 nify cases, Nokia in defend the the MDL cases or in MDL as the Dahl- gren. The court did not state ordered that Nokia take claims for nothing bodily injury.6 on seek its counterclaims for because declarato- granted ry petitions We the regarding duty defend, relief the review.7 51 to (Nov. 2007). 30, Tex. contract, Sup.Ct. J. 126 breach of failure to make prompt payment, breach duty good of the faith II and fair dealing, and for violation of article 21.21 of the Texas Insurance Code. The Duty to Defend claims, trial adjudicated court severed the exchange premiums paid, In appealed. and Nokia typically promise CGL defend insurers to appeals The court of reversed as to the indemnify covered their insureds for cases, (1) that, MDL holding the duty risks. to defend is distinct “[T]he complaints alleged “bodily inju- claims for from, than, duty and broader the to indem ry” sought “damages nify.” 14 Lee R. Russ & Thomas F. Segal- (2) injury”; and (3d “business risk” exclu- § 200:1 ed. la, Couch on INSURANCE apply, 2007) (“Couch sions did not the insurers had a An insurer INSURANCE”). on duty 384, to defend Nokia. 202 S.W.3d must defend its insured if a fac 392. As to Dahlgren, plain- which the tual allegations potentially a cov support explicitly tiffs had personal claim, disclaimed ered actually while the facts estab juries sought only economic and relat- lished in the underlying suit determine relief, equitable ed the court of appeals indemnify whether must insurer its affirmed trial judgment court’s and insured. GuideOne Elite Ins. Co. v. Field Church, 305, held that duty Baptist insurers had no er Rd. 197 S.W.3d (Tex.2006). Finally, Thus, defend Nokia. Id. at 392-93. may an insurer that, appeals but, court of held in light duty eventually, of its have a to defend no Litig., F.Supp.2d petition sions Prods. Liab. 6. Nokia did not this Court for review (J.P.M.L.2001). part appeals’ judgment of that of the court of holding duty no to de- that the insurers had parties stipulated 4. The that the trial court's Tex.R.App. Dahlgren fend Nokia in the case. ruling on Zurich’s second motion for sum- Thus, P. 53.1. that issue is not before us. mary judgment would resolve the same issues Union, Federal, as to National and Nokia. Litigation Complex 7. The Insurance Claims day, panel That same a different of the same Association and CTIA—the Wireless Associa- America, Samsung court decided Electronics tion® curiae briefs. Tex. submitted amicus Inc. v. Federal Insurance P. 11. R.App. (Tex.App.-Dallas pet. granted) 383-84 Farina, (recognizing Pinney, Gilliam, Gimpelson, Dahlgren). but not litigation, suit, in the course of developed Tex. indemnify. Farmers obligation of the suit. by ultimate outcome Griffin, v. 955 or County Mut. Ins. Co. Cowan, (Tex.1997). Trinity Ins. Co. Universal S.W.2d (Tex.1997); see also defend, determining In (noting § 200:19 on INSURANCE Couch rule, eight-corners also we follow the unaffected “what duty to defend is complaint-allegation rule: known as alleged facts know or believe parties duty to defend is determined “an insurer’s case, or be, underlying of the the outcome plaintiffs pleadings, third-party claim”). complaint If a the merits of light policy provisions, considered claim, the includes a covered potentially regard falsity to the truth or without suit. 14 must defend the entire insurer GuideOne, 197 S.W.3d allegations.” those § (“Typically, 200:1 Couch on INSURANCE Thus, if the “[e]ven at 308. con- only if one claim in a even false, groundless, or fraudulent the insurer covered, could taining multiple claims be obligated to defend.” 14 Couch on In action the insurer must defend the entire all doubts 200:19. We resolve suRANce must demonstrate that all and the insurer *5 regarding to defend in favor of poli- suit fall outside the the claims of the Co., duty, v. Dallas Ins. 85 King Fire defending the cy’s coverage to avoid 185, (Tex.2002), and con S.W.3d 187 we sured.”). liberally, Nat’l pleadings strue the Union Lines, Fire Ins. Co. v. Merchs. Fast Motor Ill (Tex.1997). Inc., 139, 141 939 S.W.2d does not state facts “Where Pleadings The Policies and the clearly bring sufficient to the case within A coverage, general or without the rule is Bodily Injury if obligated that the insurer is mind, is, this in we turn to the potentially, there a case under the com With policies here. The policy language at issue plaint policy.” within the of the which shall be Heyden Newport Corp. [Nokia] covered “all sums Chem. S. Gen. (cit (Tex.1965) Co., obligated pay as legally 26 come Ins. by an Golick, Annotation, bodily injury” ... caused Liability ing George S. during policy period. A.L.R.2D occurrence Duty Defend, Insurer — bodily (1956)); policies Zurich define Design see also Gore Some do, injury, do not. Of those Completions, Ltd. v. Fire Ins. some Hartford Cir.2008) (not (5th “bodily injury, bodily injury is defined as F.3d person, or disease sustained ing very rule is favorable to sickness “[t]he any from of these including resulting death insureds because doubts are resolved favor”). But this circular defini any defend time.”8 the insured’s helpful answering ques- by facts ascertained before tion is not is not affected wording does not “bodily injury” agree that variation in tracks the definition 8. This analysis here. CGL affect our in Section V of the standard contained policy. 20 Eric Mills Apple- Holmes, Holmes’ 129.2(C)(1) (2d ed.2002) suggests defini- that no 9. One commentator man on Insurance necessary: axiomatic that Liability "It seems (citing Commercial General tion is ISO ‘bodily injury’ says intended Copyright, when one CG Insurance Form Office, Inc., explana- 1997). ‘bodily injury,’ then no further Some of the mean Services words, required. In other is needed or policies con- tion Federal and National Union definition, says says and means what it and the insurers tained a similar (hereinafter tion before us: have the MML cases10 the blood brain barrier col- alleged bodily injury? lectively described as the “health risk” effects”). “biological and/or complaints
None use the term Through a common and uniform course “bodily injury”; all phrased in terms of conduct, defendants, acting indi- “biological injury” or “biological effects.” vidually collectively, failed to ade- Thus, we biologi- must determine whether quately consuming public disclose to the injuries cal qualify or effects the fact that emit WHHPs RFR that injury. We purely have held that emotion- injuries biological injury al causes and a risk to the “bodily injuries,” are not Trini- Cowan, ty users’ purpose Universal Ins. Co. v. health. The of this ac- (Tex.1997), and the insur- tion is to hold accountable and to obtain urge ers this precludes rule relief maximum legal equitable relief from “ here. But we also concluded that ‘bodily corporations those and entities that are injury’ ... unambiguously requires an in- responsible producing placing jury physical to the structure of the human into the stream commerce WHHPs id., body,” and the MDL certainly cases which create a health risk to users allege that. causing biological injury. Each of original and amended MDL lengthy complaints assert contains that essen- exposed named were to RFR
tially mirror those set forth in the Gilliam subjected phones from their and thus were complaint: amended biological to “RFR’s effects and the risk to This class action *6 seeks and de- human then arising health therefrom” and claratory relief on plaintiff behalf of and linking discuss numerous studies RFR to a persons purchased class of who consequences, including adverse health leased telephones wireless handheld brain, headaches, changes in the heating (“WHHPs”).... Through a common and ear, sleep problems, pro- behind the and conduct, uniform course of the defen- high duction of pro- levels of “heat shock manufactured, dants have supplied, pro- addition, In Gimpelson teins.” the and moted, sold, provided leased and wire- Pinney original complaints assert that the less service for WHHPs when knew injuries,” plaintiffs biological “sustained or should have known that prod- their allege all and of the amended generate frequency ucts and emit radio plaintiffs repeated that the “sustained bio- (“RFR”) radiation that causes an ad- logical injuries harm” and “did and/or verse cellular reaction cellular and/or biological injury cur harm as a re- and/or dysfunction (“biological injury”) through of using sult Defendants WHHPs.” its adverse health effects on: calcium relying on dictio- appeals, The court of and ion distribution across the cell mem- brane; nary from definitions and similar cases production; neurologi- melatonin function; jurisdictions, injury other concluded that single cal DNA and double allege strand and at the cellular level sufficient to damage; breaks chromosome was activities; enzyme gene policies cell stress and under the at issue 389-90; transcription; permeability Samsung, the of here. 202 simple analysis what it means —which is a statement cases in section Our of the MDL Farina, Gilliam, plain meaning judicial Pinney, rule of construc- III is limited to Appleman Gimpelson. Naquin separately tion.” 20 Holmes’ on Insurance is discussed 129.2(C)(1) section IV. chemical cases, types as other as well at 379-80. The United States Circuit, Fourth also 15 Couch Appeals exposures.”); for the see Court Insur on construing Pinney complaint, (noting the reached that “the inhalation § 220:26 ance conclusion, as did the Ninth Cir the same tissue dam causes immediate of asbestos cuit, construing Gimpelson amended damage effects of that age, although the and others. Voicestream Wire themselves, immediately manifest do not Fed.Appx. Corp. v. Fed. Ins. less inju damage ‘bodily is a tissue such Cir.2004) (9th (noting 555-56 course, opinion no We, express ry”’). allege that it is sufficient to “logic dictates underlying claims. merits of the on the cells_The injury policy pro to human explicitly not exclude visions do B cells, injury to human Damages construe cellular harm as insuffi and to policies cover “dam to, effect, Because an addi cient would be read bodily injury,” we must ages because of N. policy”); tional exclusion into the Ins. Commc’ns., Inc., plaintiffs seek also examine whether v. Balt. Bus. 68 Fed. Co. (4th Cir.2003) that, assert (holding damages here. The insurers Appx. headsets, damages, alleging persons using phones plaintiffs “in cell seek coverage. removing without headsets suffer from the radiation their claims from phones, Complaint plaintiffs emitted such seek responds Nokia ” to, ‘bodily noting that alleges injury1 but not limited damages including, “Maryland uniformly headsets, courts have held that squarely are and those bodily injuries include those that occur at agree with policy. covered We level”). minute, cellular Like those Nokia. below, courts and the court we conclude complaint allegations again, Once biological injuries alleged by that the In each of the MDL dispositive. a claim plaintiffs potentially state for bodi cases, damages, not seek ly injuries policies, under the much like The amended com- merely headsets. *7 injuries alleged by plaintiffs the subclinical following allegations: the plaints include been exposed who have to asbestos. See monetary brought action is for “This Indus., Guar. Nat’l Ins. Co. v. Azrock (Pinney, Gimpelson) damages” (5th Cir.2000) Inc., 239, 245, 211 F.3d this action is ... to purpose “The (concluding that “the subclinical tissue legal equitable re- obtain maximum damage that results on inhalation of a Farina, Gilliam, Pin- (Gimpelson, lief” trig toxic such substance as asbestos” ) ney gered duty remanding to defend and for (Fari- damages” action seeks “This class pleadings al determination whether Gilliam) na and bodily injury, leged exposure caused “compensatory damages for Requests particular “even if the asbestos-related limited to amounts including but not diagnosed until sometime disease was not necessary purchase a head- to WHHP policy expired”); the 20 Holmes’ after Ap- Gilliam, (Pinney, Gimpelson); 129.2(C)(1) set” 2D PLEMAN ON INSURANCE consisting, damages (“Claimants “compensatory injured exposure from the to of head- things, other of the cost among sus generally asbestos are found to have (Farina Gilliam); “actual sets” inhalation of tained on each and the classes damages plaintiffs equally and “the rule is asbestos fibers” relief, to in an amount and for all other applicable exposure to silicosis and disease trial, proved including, be at injury. argument but not such This unper- to, limited the costs of purchasing First, head- prayers suasive. for in relief (Gilliam); sets for the WHHPs” “actual the underlying solely actions do not ask damages of the plaintiff and the Class headset, for the cost of a but rather relief, and for in all other an amount to compensatory damages including “For trial, proved including, be but not but not necessary limited amounts to, limited purchasing the costs of head- purchase a WHHP headset for each (Farina). sets for the WHHPs” added). (emphasis class member.” Gimpelson Complaint Amended also original complaints virtually contain legal equitable seeks “maximum re- requests. Additionally, identical each of alleged bodily injury, lief’ for the as well original complaints and amended seeks Second, punitive damages. poli- as punitive damages. cies do not define the term themselves While the note that headsets “damages.” seeking To the extent that RFR, would eliminate exposure users’ damages, part, in the form of a head- do damages not disclaim clearly policy set neither within a falls Circuit, favor of headsets. The Fourth provision, clearly nor is excluded construing Pinney original complaint, policy, policies ambig- text held stated a claim for “bodily injury,” uous. this am- As with damages: biguity against must be construed On the face of Complaint, the Pin- Defendant Insurers. ney plaintiffs are seeking unspecified compensatory damages flowing from Corp., Voicestream 112 Fed. Wireless ie., injuries, their harm suffered (footnote omitted). Appx. at 556-57 from radiation. Baltimore Business appeals The court of examined whether could therefore be potentially hable to qualified headsets under the the Pinney plaintiffs and all that, policies and because the concluded compensatory damages recoverable un- policy expressly definition did not include Maryland law, der including damages or exclude the costs of a headset as “dam- already existing bodily injuries. ages bodily injury,” and be- N. Fed.Appx. Ins. at 420. sought cause the headsets were “on ac- Circuit,
The Ninth
considering the Gim-
“by
plaintiffs’
count of’ or
of’ the
reason
(and
pelson
unspeci-
amended
RFR,
exposure headsets were included
others)
fied
also concluded that the com- within the category
“because
*8
plaints sought damages:
bodily injury.”
The argue Defendant Insurers further need not whether head- underlying complaints although that even if the qualify damages, sets present “bodily injury,” allege pray- compensation each of the seeks headsets, they er for relief of the cost of a headset does for the cost of also assert “damages injured a request constitute have been bodily injury” damages physical because a seek on their ex- based Thus, inadequate we with posure agree headset would be relief for to radiation.11 reason, disagree by headphones only 11. For this we with the measured the cost of that al- recognize duty legedly allegedly dangerous case that has refused to a to would block the and, appellate phones, defend in these cases. A New York cell while radiation emitted court, harm, opinion, alleging physical specifically ain three-sentence held that the risk of anything only damages seeking recovery the "actions seek economic but the disclaim Farmers, 955 defendant].” conclusion: havior appeals’ [the the court of ultimate S.W.2d 83. damages. MDL cases seek support allegations But factual here inten allege both duty. pleadings a The C (Nokia of RFR’s knew tional conduct and nonetheless intention harmful effects “Because of’ consumers) and to ally products sold its that, if The insurers also contend even (Nokia known of should have negligence damages, those dam the MDL cases seek effects). ar The insurers RFR’s harmful bodily injury. ages are not “because of’ allegations intentional tort gue that varied, complaint allegations but Standing in duty to defend. defeat the theory under each includes at least one Homes, isolation, they might. Lamar may damages tort be recovered. which (“We further said that an at 8 have S.W.3d product liability, Every complaint alleges thus tort is not an accident and intentional implied warranty, and fraudulent breach of regardless of whether not an occurrence claims. Two of the four concealment unexpect unintended or the effect was Pinney) negli assert (Gimpelson ed.”). Ins. King v. Dallas Fire But see counts, conspiracy civil gence and (Tex.2002) Co., 185, 189, 193 85 S.W.3d Gilliam) Farina, and al (Pinney, three battery exclusions (noting assault lege Maryland, Pennsylva violations if were not unnecessary would be such acts nia, protection “occurrences”); and New York consumer v. Mid-Century Ins. Co. (Tex. acts, respectively. The amended com 155-56 Lindsey, 997 S.W.2d 1999). cannot, however, ignore the We plaints battery add claims. have “[W]e when determin plaintiffs’ allegations other said that the label attached to the cause of Appleman ing duty. See tort, contract, it Holmes’ action—whether be InsuRange 136.2(D) that, (noting § 2D duty on warranty not determine the to —does there are covered and non-covered “when Homes, defend.” Lamar Inc. v. Mid-Con lawsuit, insurer is claims in the same (Tex. tinent Cas. a defense to the entire obligated provide 2007); County Farmers Tex. Mut. Ins. Co. suit, until it can limit the suit at least (Tex.1997); Griffin, cover policy claims outside of the those see also 14 Couch on INSURANCE 200:19 age”). (“It the factual instead of the legal alleged theories which determine the include putative class members defend.”). Thus, duty of a existence groups (depending on which two or three plaintiff sought recovery case which involved), one of which con complaint is theories, there was negligence on we held and the insur purchasers,12 sists of future because, despite the no negates contend that this ers claims, negligence labels attached to the defend, impossible pur for future as it is indicating plaintiff “alleged had facts due to to have suffered chasers origin of his was inten the na bodily injury. that the This misconstrues *9 duty, duty to tional and “made no factual con ture of the however. behavior” negated by the inclusion negligent be defend is not tention that could constitute purchasers or two WHHP headphones.” Ins. Co. 12. The other are cost of the Zurich-Am. 194, purchasers or les- and those WHHP lessees Corp., 294 A.D.2d 741 v. Audiovox purchased WHHPs for use or leased sees who (2002). N.Y.S.2d 692 by primarily their minor children. 496 covered; rather,
claims that are not it is putative class has abandoned all claims for triggered by the inclusion of claims that damages bodily injuries. Al- 136.4(B) might (noting covered. Id. be though we have that a action held “class defend, that duty excuse the to the “[t]o rarely appropriate will be an device for unambiguously must exclude claim, resolving” personal injury a Sw. Re- policy”) the (emphasis under add- Co., Bernal, 22 fining Inc. ed). past purchasers alleged Because are (Tex.2000), appropriateness 436 to have suffered and because class certification is not at issue here and they damages injuries seek for those al- duty is not relevant to the to defend. See incurred, ready fall suits within the Beaver, Accident & Indem. Co. v. Hartford policy language if the case also in- —even (11th Cir.2006) 466 F.3d 1295-96 yet volves claims those who have not (finding duty putative a class purchased telephones. wireless Over-in- noting action under Florida law and negate duty clusive do not duty in spite to defend arises “[i]f defend; duty if a applies there is uncertainty impracticality of de- possibility any might of the claims be claims, fending wholly meritless individual covered. equally duty we think it clear that the uncertainty defend is not defeated some D as to the merits of a class certification” Allegations Class plaintiff likelihood that a will “[t]he (Gimpel- Two of the MDL cases prevail in its covered claims or that a class Pinney) son and assert that “no individual will not into the be certified does enter exist, injury predomi issues of let alone calculus”). The question is whether case, membership nate in this because in complaints MDL seek premised only upon each purchase class bodily injury, and we conclude that headset,” or lease of WHHP without a do. and the insurers contend this statement in None of the MDL cases was filed Al injury. disclaims Texas, in and none will be tried Texas. leging that there no individual issues Mary- complaints allege violations of however, injury, is not the same as land, York, Pennsylvania, New Geor- in stating no individuals have been law, gia respectively. a class will Whether fact,
jured.
In
each of the
ultimately
certified is
for the
question
be
quite clearly alleges
opposite,
as out
court,
Every
MDL
court that
us.13
dispositive
lined above. Nor is it
that the
analyzed
any
has
detail the
proposed
only
pur
class includes
those
very
defend the identical claims
these
diagnosed
chasers who have not been
circuit
including the two federal
“with a brain related tumor or cancer of
cases—
the issue—has
eye.” Excluding
in
courts that have reached
certain classes of
jured
held that such a
exists.14 We have
purchasers does not mean
Nokia,
Commc’ns., Inc.,
According
Pinney, Gimpelson,
N. Ins. Co. v. Balt. Bus.
Cir.2003);
(4th
Gilliam,
voluntarily
Fed.Appx.
have been
n.
Naquin
Er-
(without
icsson,
prejudice) by
plaintiffs,
dismissed
Marine Ins.
Inc. v. St. Paul Fire and
(N.D.Tex.2006);
being
with no class
certified and without
F.Supp.2d
Mo-
being paid.
torola,
settlement monies
Corp.,
Indem.
Inc. v. Associated
denied,
(La.Ct.App.2004), writ
So.2d
(La.2004);
denied 14. See Voicestream Wireless
499 redhibition, of only in breach bodily injury, the still had a claims sound insurers the case. Magnuson-Moss under warranty, and Act. complaint, second howev- amended er, changed many that. of the alle- While of recognize “damages that We same, plaintiffs remained the gations to a broad bodily injury” susceptible is paragraph amended VI to read: appeals At least court of definition. one allegations original All plaintiffs of of ambigu- that phrase concluded is has Complaint Petition and make Amended interpretation suggests that the ous: “One redhibition, solely in of claim and breach any damages insured is entitled recover warranty Magnuson- and under anoth- bodily injury; that arise because of Act; Warranty 15 Improvement Moss only enti- that the is suggests er insured seq. U.S.C. 35 et All which recover that are derived tled to warnings or identify set forth lack of bodily injury.” Farm Mut. State from wrongs factual con- and other describe 146, Shaffer, Auto. Ins. Co. v. 888 S.W.2d not set Plain- duct but do forth claims. (Tex.App.-Houston Dist.] 148-49 [1st liability do not make products tiffs a denied). pre- that recently writ We held legal claim. The claims in the First interest under judgment was recoverable Supplemental Amending Complaint policy requiring an insurance the insurer redhibition, solely upon those based legally pay all sums insured was warranty Magnuson- breach of and the inju- bodily of entitled to recover “because Moss Act. ry property damage.” Brainard or We must decide whether this disclaimer Co., 216 S.W.3d Trinity Universal Ins. a precludes By defend here. de- (Tex.2006). the in- rejected 814 We leting product liability claims and as- argument that inter- prejudgment surer’s serting only Magnuson-Moss claims mon- compensation est for lost use of was redhibition Louisiana and breach war- ey, bodily injury, from ranty claims—none of recov- permit which “rigid reading ... would noted such ery personal-injury damages16—-and splitting among purely hairs entail even clarifying that remaining allegations damages, as those for compensatory such summarize the facts but do not set forth anguish society.” mental Id. loss claims, the second un- complaint amended Instead, merely phrase we noted that the ambiguously excludes under the the fact that the insurance underscored Appleman policies. Holmes’ InsuR- on compensatory, and we concluded was 136.4(B). § ance 2d While it true that interest prejudgment “while precision (e.g., is not a model of it asserts time lost use of accrues over claims for fraud concealment and civil say that it disclaimer), money, equally it is accurate to despite conspiracy this initial clearly have their dam- alleged compensatory constitutes additional Act, Liability Magnuson-Moss Warranty Act ex La. L.Rev. 16. The siana Products Ass’n, (1989); injuries, pressly personal excludes v. Lead Indus. claims for Jefferson Inc., (E.D.La.1997) exceptions F.Supp. subject here. to three not relevant 2311(b)(2). warranty (noting implied "breach U.S.C. The Louisiana Prod Liability provides theory of Act exclusive is not ucts redhibition available as claims, although recovery injury recovery personal injury, a red- means of against law action is still the manu while common and breach hibition viable redhibition 'd, loss”), warranty pecuniary claims remain available for econom facturer to recover aff (5th 1997). Kennedy, Loui Cir. ic loss. John A Primer on the F.3d 1245 ages for the insured’s and Mut. Cas. 694-95 property damage.” Id. (Tex.App.-Houston 1989, writ [14th Dist.] *13 denied) (“The purpose comprehensive assuming But even that the Na- liability insurance coverage provide is to redhibition, quin plaintiffs’ Magnuson- protection personal inju to the insured for Moss, and warranty claims seek damages ry property or for damage caused the “because bodily injury,” policies ex completed product but not for replace clude for coverage these claims because ment and repair product.”), of that La only damages sought are economic Shelby Marche v. Mut. Ins. 390 So.2d relating ones to the allegedly defective (Fla.1980) 325, 326 (noting that ma “[t]he product. policies’ business risk exclus jority purpose view holds that the of this ions,17 inapplicable personal inju while to comprehensive liability insurance claims, ry preclude coverage for economic provide protection personal is to injury for product loss claims based on defects: property damage or for caused Coverage general under a commercial completed product, replace but not for the liability policy insurance is for tort liabil- repair ment and of that product”); W. Cas. ity physical damages to others and Brochu, & Sur. Co. v. 105 Ill.2d not for liability contractual (1985) Ill.Dec. 475 N.E.2d sured for economic loss because the “ (noting policy question ‘the in does product or work is not that for which the faulty not cover an accident of workman damaged person bargained. Pursuant ship faulty workmanship but rather which to this understanding, certain exclusions ”) causes an accident’ (quoting Weedo v. have been included within the standard Stone-E-Brick, Inc., 81 N.J. 405 A.2d general liability commercial policy for (1979)). Here, the disclaimer express purpose excluding cover- only injury makes clear that com age relating for risks to repair or replacement plained warranty-based faulty the insured’s work of is a economic products, or or defects in the insured’s loss asserted under Louisiana federal product work or law, itself. These “business and those claims are excluded from exclusions, risk” commonly coverage. Thus, duty to defend Na- called, are to provide coverage intended quin ended when the filed the liability, for tort not for the contractual complaint.18 second amended Holmes’ liability of the insured for loss which ApPLEMAN 136.2(D) § ON INSURANCE takes place due to the fact that (“[W]hen there are covered and non-cov product completed or work was not that lawsuit, in ered claims the same the insur for which the party bargained. other had er obligated provide defense to the 129:16; suit, 9A Couch on entire at least until it can limit the see also Insurance T.C. Bateson Constr. policy Co. Lumbermens suit to those claims outside of the preclude coverage urge 17. The relevant exclusions 18. The insurers us to consider extrinsic " 'property damage’ 'your product’ aris- determining evidence in to defend. it,” ing any part "property out of it or Specifically, they assert that made statements damage products to the named insured’s aris- by attorneys Naquin plaintiffs re- for the ing products any part out of such or of such sponse to a motion to dismiss should be con- products,” "property damage arising ... determining sidered in whether there is a defect, deficiency, inadequacy out of ... [a] duty to defend. For the reasons set forth in dangerous ‘your product' or condition in or III, section we decline to do so. ” 'your work.' than damage, rather property toed coverage.”).19 only prod- fourth involved injury, and the V recalled, unlike the ucts that had been Inc., Motorola, issue); Exclusions at phones wireless (concluding that “these at So.2d not, however, do Those exclusions only to loss of use relate exclusions remaining preclude including the cell apply to damage property, cases. The relevant exclusions “prop damage your product,” “property no rele- issue, thus have phones *14 defect, arising ... out of erty damage at is- ‘bodily injury’ claims the vance to dangerous condi deficiency, inadequacy or sue”). ” damages relat ‘your product,’ tion in agree recall. with product
ed to a We VI that these appeals, of which held court duty excuse the to de exclusions did not Conclusion did not underlying actions fend: “[t]he damage to property contain concluded, the Fourth Circuit As the property’ phones ‘impaired or to the cell designed seeking remedies “plaintiffs are (defined other than ‘tangible property, as bodily inju already existing to eliminate work’) your your product or merit, may lack claims ries. their While 202 phones.” for the recall of the cell certainty that unable to state with we are in accord holding 392. Our is of bodi ‘damages because they do not seek that have discussed the with other cases ” Co., at Fed.Appx. ly injury.’ N. Ins. Voicestream, at Fed.Appx. issue. modify the can we. We 421-22. Neither damage exclusions (holding property provide appeals’ judgment court of underlying apply did not “because the Naquin upon ended allege complaints liberally construed — — complaint the second amended filing of underlying bodily injury, not Tex.R.App. modified, P. and, affirm. as not for their plaintiffs’ phones cell do work 60.2(b). (i.e., receiv purpose making intended Co., calls)”); N. 68 Fed. ing phone Ins. dissenting delivered Justice HECHT exclu (noting at 422 n. 11 that three
Appx.
joined.
BRISTER
opinion, in which Justice
they
relat-
inapplicable
sions were
was limited
Circuit’s decision
appears to be the first
the Fourth
19. We note too that this
Naquin
Pinney complaint,
amended
Ninth Circuit
case to consider the
second
and the
complaint.
copy of that
While the record
Gimpelson
unspecified other
considered
undated,
complaint
appears
it
to have been
is
allegations, which
complaints with the same
appeals
held
filed after the Louisiana court
that,
Naquin
amended
suggests that
second
law,
was a
under Louisiana
there
among them.
complaint may not have been
Motorola,
Naquin.
Inc. v. Associated
defend
(“All
Voicestream,
Fed.Appx. at 555 n. 1
(La.Ct.
Corp., 878 So.2d
830 n. 5
Indent.
however,
complaints,
are
underlying
(citing only
allegations of the
App.2004)
same,
parties
not
substantially
and the
do
complaints and
original and first amended
Co.,
otherwise.”);
68 Fed.
N. Ins.
contend
“allegations
noting
are characteristic
that the
Ericsson, Inc. v. St.
Appx.
But see
at 416.
such
or 'mixed’ causes of action
of delictual
F.Supp.2d
Ins.
Fire and Marine
Paul
actions,"
liability
claims that
products
(N.D.Tex.2006) (noting parentheti
dropped
amended com
were
from second
been amend
cally
Naquin
had
denied,
(La.2004);
plaint),
Decided 2008. right obligation reserved its to contest its Trinity indemnify. to defend or then Rehearing Denied Dec. no sought a declaration that it had the cases. cross motions for defend On *18 summary judgment, the trial court held Trinity had to defend Cellular Farina, Gilliam, Pinney.1 and In One Jr., Sidney H. Davis Ber- Touchstone opinion, court of ap a memorandum nays Smith, LLP, Johnston Beall & Dallas affirmed, Trinity’s that all of peals noting TX, for Petitioner. had been in that issues resolved court’s Kurth, Perry, Samsung Charles L. Andrews & and Nokia decisions. L.L.P., TX, Dallas and 268 506. Respondent. S.W.3d 487 Gilliam, Farina, Pinney. party Trinity’s summary judgment stat- Neither motion Gimpelson Trinity complains ed was a in five class of the omission of defendant Gilliam, Farina, (Pinney, Naquin, underly- we do those Gim- not address action lawsuits pelson, Naquin) ing All of are described and asserted that there cases. the cases more fully was defend For Zurich American Insurance Co. No- no of them. kia, WL apparent are not the rec- de- reasons that from ord, judgment today. the trial court's was limited to cided