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Hartless v. Allstate Texas Lloyds Insurance Co.12/6/2005
the burden to show that a policy exclusion applies, and courts adopt the insured's construction of an exclusion whenever it is reasonable, even where the construction urged by the insurer appears to be more reasonable. Utica Nat'l Ins. Co., 141 S.W.3d at 202; Altivia Corp. v. Greenwich Ins. Co., 161 S.W.3d 52, 54 (Tex. App.---Houston [14th Dist.] 2004, no pet.).
Even though this is a summary judgment, because of the nature of the declaratory relief sought, a different standard of review is involved than in the normal summary judgment appeal. See Utica Lloyd's of Tex. v. Sitech Eng'g Corp., 38 S.W.3d 260, 263 (Tex. App.---Texarkana 2001, no pet.). Whether an insurer in a liability policy is obligated to defend the insured is a question of law to be decided by the court. State Farm Lloyds v. Kessler, 932 S.W.2d 732, 735 (Tex. App.---Fort Worth 1996, writ denied). In determining whether the insurer is obligated to defend the insured, we are to use the eight corners rule. Nat'l Union Fire Ins. Co., 939 S.W.2d at 141. The eight corners rule compares the provisions within the four corners of the policy with the factual allegations contained within the four corners of the plaintiff's pleadings (in the underlying lawsuit) to determine whether any claim alleged in the pleadings is within the coverage of the policy. Id.
In this case, Hartless's petition is attached as an exhibit to Allstate's motion for summary judgment. It contains no specifics about the nature of the claimed injury, the location of the injury, the way the injury occurred, or any other matter. The petition alleges Hartless suffered injuries November 23, 2002, as a result of Tucker's negligence. Allstate acknowledges these allegations trigger the homeowner's policy and suggests the focus of the case is on the policy exclusions.
We have previously acknowledged that, where the terms of the policy are ambiguous, or where the petition in the underlying suit does not contain factual allegations sufficient to enable the court to determine whether the claims are within the policy coverage, the court may consider extrinsic evidence to assist it in making the determination. Utica Lloyd's of Tex., 38 S.W.3d at 263; Kessler, 932 S.W.2d at 736; State Farm Fire & Cas. Co. v. Wade, 827 S.W.2d 448, 450 (Tex. App.---Corpus Christi 1992, writ denied). Some courts have recognized that extrinsic evidence is allowed in very limited circumstances, including: (1) whether a person has been excluded from coverage, (2) whether the property in the suit has been excluded from any coverage, and (3) whether the policy exists. See Fielder Road Baptist Church v. Guideone Elite Ins. Co., 139 S.W.3d 384, 388 (Tex. App.---Fort Worth 2004, pet. granted).
Here, both parties have urged that we consider the evidence presented to the trial court. Thus, in this instance, we will review the evidence that was before the trial court at the time that it made its determination and apply that information to our review of the policy to determine whether the court correctly determined Allstate had no duty to defend.
When interpreting the terms of an insurance contract, we follow the general rules of contract construction. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex. 1995). Our primary concern is to ascertain the true intent of the parties as expressed in the written contract. Nat'l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995); Vincent v. Bank of Am., N.A., 109 S.W.3d 856, 866 (Tex. App.---Dallas 2003, pet. denied).
Exclusionary clauses acting as limitations on liability are strictly construed against the insurer and in favor of the insured. CBI Indus., Inc., 907 S.W.2d at 520; Vincen
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