 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Reser v. State Farm Fire & Casualty Co.6/24/1998
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 95-CI-16572
Honorable David H. Peeples, Judge Presiding
AFFIRMED
Appellant, Don Reser, was sued on numerous grounds by a former business client, Central Park Mall Joint Venture [CPMJV]. The suit initially included defamation allegations, which were potentially within the coverage of Reser's insurance policy with State Farm, as well as numerous other claims not within the coverage of Reser's policy. CMPJV subsequently amended its claim and eliminated the defamation allegations. State Farm withdrew its defense of Reser and refused to indemnify him once he settled with CPMJV. In this appeal we must decide whether an insurer's duty to indemnify its insured can exist, even if there is no corresponding duty to defend the insured. Under the facts of this case, we hold that the duty to indemnify does not exist in the absence of a duty to defend. Accordingly, we affirm the summary judgment granted in favor of State Farm.
Factual Background
Reser's Policy with State Farm
At all times relevant to this litigation, Reser was a named insured in a homeowner's insurance policy and a personal liability umbrella policy issued by State Farm. The umbrella policy provided coverage for personal injury , defined in part as "libel, slander, defamation of character or invasion of rights of privacy." Excluded from coverage were losses caused by "providing or failing to provide any professional service," and losses "caused by your business operations . . . ." The parties agree that the policy provided State Farm with a discretionary right to defend rather than mandatory duty to defend.
The Underlying Suit
CPMJV and State Realty Company, a real estate broker, entered into an agreement with attorneys Don Reser and John McCracken to assist in the sale of Central Park Mall. Reser and McCracken were to assist in finding a buyer for the mall and would be compensated for doing so. A dispute arose about whether Reser fulfilled his obligation under the agreement, and he subsequently sued CPMJV to recover a finder's fee. In that suit, CPMJV filed a counterclaim against Reser alleging defamation and harm to reputation, breach of contract, breach of fiduciary duty, fraud, tortious interference, legal malpractice, and violations of the Texas Deceptive Trade Practices Act.
Reser's insurer, State Farm, assumed Reser's defense of the CPMJV counterclaim under a reservation of rights. By written notice State Farm reserved its right to withdraw from the defense depending on whether the suit stemmed from Reser's business pursuits, which would not be covered under the policy. State Farm also indicated in its reservation of rights letter that " here is a question as to whether or not the loss involves personal injury . . . as defined by the policy."
CPMJV later filed an amended counterclaim in which it deleted all reference to the defamation and harm to reputation allegations. Approximately six months later, State Farm withdrew its defense of Reser because State Farm determined that the remaining causes of action in the counterclaim were not covered under the policy. Soon thereafter, Reser settled the lawsuit with CPMJV. The settlement agreement entitled Reser to receive $1,351,360.50 from CPMJV, offset by $475,000 in consideration of CPMJV's counterclaim. The Instant Lawsuit
Following the settlement with CPMJV, Reser brought the suit now on appeal against State Farm alleging breach of contract and numerous extracontractual and statutory claims. The trial court severed out the breach of contract claim, which included allegat
Page 1 2 3 4 5 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|