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Everitt v. Transportation Insurance Company3/22/2000
interest in PCI, the manual, and the seminars.
Lusk and Williams asserted causes of action against "Everitt, Murphy, and PMA for specific performance, or, in the alternative, breach of contract, declaratory judgment on the oral contract, and unjust enrichment, based upon Defendants Everitt, Murphy, and PMA failure and refusal to perform their agreements to transfer fully all rights and assets of PMA to PCI, to provide all of the rights and benefits deriving from 40% of the ownership by Lusk and Williams of the new company, and to carry out those agreed obligations arising from this business relationship." Lusk and Williams further claimed Everitt, Murphy, and PMA committed fraud or negligent misrepresentation by falsely representing their intent to transfer PMA's assets to PCI and give Lusk and Williams a 40% interest in PCI. Lusk and Williams also sued Everitt, Murphy, and PMA for conversion, arguing they "wrongfully exercised dominion and control over" the investments made by Lusk, the internal audit compliance manual, and proceeds of the manual. Lusk and Williams claimed Everitt and Murphy were also liable for mismanaging PCI and for breaching their fiduciary duties as officers and majority shareholders of PCI by converting funds belonging to PCI and selling the rights of the manual. Lusk and Williams also sued all of the defendants for civil conspiracy, alleging the defendants acted in concert with one another to misappropriate or plagiarize the subject manual. Finally, Lusk and Williams sought temporary and permanent injunctions to restrain "the Defendants, their agents, servants, and employees" from selling or otherwise injuring their rights to the manual, performing the seminars, and spending money collected from the sale of the manual.
After being served in Lusk and Williams' suit, the appellants tendered the defense of the suit to TIC. TIC refused to assume the defense, and the appellants filed suit against TIC, seeking, among other things, a declaratory judgment that TIC was obligated to defend them in Lusk and Williams' suit. Appellants and TIC filed cross-motions for partial summary judgment on the issue of whether the appellants were entitled to declaratory relief. The trial court granted TIC's motion and denied the appellants'. The appellants appeal, arguing the trial court erred in granting TIC's motion and denying their motion because the underlying cause of action alleged advertising injuries, which were covered by their insurance policy.
Standard of Review
We review a summary judgment de novo, see Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex. App.-San Antonio 1997, writ denied), to determine whether the summary judgment movant has established there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). When both sides move for summary and the trial court grants one motion and denies the other, we determine all of the questions presented. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988). Moreover, when, as here, the cross-motions for summary judgment deal solely with interpreting the terms of an unambiguous contract, we construe the contract as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).
Discussion
An insurer's duty to defend an insured is determined under the "eight corners" rule. See National Union Fire Ins. Co. of Pittsburgh v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997). That is, an insurer's duty to defend is determined by looking at the factual allegations in the underlying pleading and the language of the insurance po
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