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Hartless v. Allstate Texas Lloyds Insurance Co.12/6/2005
ana 1994, writ dism'd by agr.). Each party must clearly prove its right to judgment as a matter of law, and neither party may prevail simply because the other party failed to make such proof. Bd. of Adjustment of City of Dallas v. Patel, 887 S.W.2d 90 (Tex. App.---Texarkana 1994, writ denied); James v. Hitchcock Indep. Sch. Dist., 742 S.W.2d 701 (Tex. App.---Houston [1st Dist.] 1987, writ denied).
Here, the facts are not in dispute. The sole question is whether the exclusion in the policy contains language which allows Allstate---based on the allegations of those facts---to avoid defending its insured. We have already pointed out that the determination on indemnity is not to be determined until there is a final judgment in the tort action. We have further concluded that the allegations and evidence presented in this case show that the act does not lie within the bounds of the exclusion. In this context, where the policy otherwise would provide coverage, because an exclusion does not apply, the duty to defend is necessarily invoked. Thus, we reverse the trial court's denial of Tucker's motion for summary judgment and render judgment that Allstate had a duty to defend under these allegations.
Conclusion
We reverse the summary judgment rendered in favor of Allstate. We reverse, in part, the denial of the summary judgment rendered against Tucker and Hartless, and render judgment that Allstate had a duty to defend its insured. We remand the cause to the trial court for further proceedings consistent with this opinion.
Jack Carter Justice
Date Submitted: November 23, 2005
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