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TIG Insurance Co. v. San Antonio YMCA7/13/2005
Sitting: Catherine Stone, Justice, Sandee Bryan Marion, Justice & Phylis J. Speedlin, Justice
AFFIRMED
This is an appeal from the denial of a motion for summary judgment filed by appellant, TIG Insurance Company, and the granting of a motion for summary judgment filed by appellee, San Antonio YMCA d/b/a YMCA of San Antonio. The below suit is a declaratory judgment action filed by TIG and involves the construction of an insurance contract issued by TIG to the YMCA.
BACKGROUND
The YMCA operates a youth camp in Hunt, Texas known as YMCA Camp Flaming Arrow. In the summer of 1999, Kenneth Trimble, a YMCA counselor, allegedly sexually and physically assaulted six children attending the camp. The parents or guardians of the children sued the YMCA for negligent hiring practices. Three of the lawsuits were collectively settled for $6 million, with TIG contributing $1 million towards the settlement.
To resolve the issue of whether the YMCA had coverage under the TIG insurance policy for the remaining three lawsuits, TIG filed a petition for declaratory judgment, asserting the $1 million payment towards the settled lawsuits exhausted the policy limits and it had no duty to defend the YMCA in the remaining lawsuits. TIG subsequently moved for summary judgment on the grounds that the policy's coverage for acts of sexual abuse was limited to a single occurrence, the incidents of sexual abuse alleged by all six children and the negligent hiring allegations against the YMCA were a single occurrence under the policy, the policy limits of $1 million for each occurrence were exhausted by the settlement payment, and, as a result, TIG had no duty to defend the YMCA in the remaining lawsuits.
The YMCA filed a cross-motion for summary judgment on the grounds that a separate new "occurrence" was triggered for each victim of Trimble's alleged abuse; therefore, the policy limits have not been exhausted. The YMCA also argued TIG had a duty to defend against allegations of physical abuse that did not involve sexual abuse.
The trial court denied TIG's motion, granted the YMCA's motion, and declared TIG had a continuing duty to defend the YMCA in the remaining lawsuits and the YMCA was entitled to indemnity in each of the lawsuits, "subject only to the exhaustion of the policy's aggregate limit." This appeal by TIG ensued.
STANDARD OF REVIEW
Summary judgment movants have the burden of showing there are no genuine issues of material fact, and that they are entitled to summary judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether there is a disputed issue of material fact, evidence favorable to the non-movant must be taken as true, every reasonable inference must be indulged in favor of the non-movant, and all doubts must be resolved in his or her favor. Id. at 548-49.
When both parties file motions for summary judgment, each must carry its burden and neither may prevail because of the failure of the other to discharge its burden. Villarreal v. Laredo Nat'l Bank, 677 S.W.2d 600, 605 (Tex. App.---San Antonio 1984, writ ref'd n.r.e.). Where there are competing motions for summary judgment, and one is granted and the other denied, the appellate court determines all questions presented to the trial court. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988). The reviewing court may affirm the judgment or reverse the judgment and render the judgment the trial court should have rendered, including rendering judgment for the other movant. Id.
THE TIG POLICY
TIG issued an insurance policy to the YMCA that contains a General
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