UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-11447
MICHAEL BLANKENSHIP, doing business as Environmental Pest
Control Systems Inc., Individually; ENVIRONMENTAL PEST
CONTROL SYSTEMS INC.; ELIZABETH M. T. O’NAN;
ELIZABETH MARGARET STUART IGLESIAS,
Plaintiffs-Appellants,
versus
SENTRY INSURANCE CO., Mutual Company,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(3:95-CV-0411-R)
September 15, 1997
Before DeMOSS and DENNIS, Circuit Judges, and ROSENTHAL*, District
Judge.
PER CURIAM:**
In this declaratory judgment action concerning liability
insurance coverage, Appellants Michael Blankenship, Environmental
*
District Judge for the Southern District of Texas, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Pest Control Systems, Inc., Elizabeth M. T. O’Nan and Elizabeth
Margaret Stuart Iglesias, argue that the district court erred when
it granted summary judgment in favor of Appellee Sentry Insurance
Co. on the basis that Appellants were not covered under the policy
during the relevant time period.
This case arises from an underlying state lawsuit in which
Elizabeth M.T. O’Nan (“O’Nan”) and Elizabeth Margaret Stuart
Iglesias (“Iglesias”) obtained a judgment of $2.2 million against
Environmental Pest Control Systems, Inc. (“EPC”) for alleged
misapplication of various pesticides by Michael Blankenship
(“Blankenship”) and EPC.
This case concerns two comprehensive general liability
insurance policies issued by Appellee Sentry Insurance Co.
(“Sentry”) to Blankenship and EPC, the named insured. The first
policy, No. 42-99561-02, provided coverage from March 31, 1984 to
March 31, 1985. The second policy, No. 42-99561-03, provided
coverage from March 31, 1985 to June 1, 1985.1
1
The applicable portion of the policy states:
The company will pay on behalf of the insured
all sums which the insured shall become legally
obligated to pay as damages because of
Coverage A. bodily injury or
Coverage B. property damage
to which this insurance applies, caused by an
occurrence, and the company shall have the right
and duty to defend any suit against the insured
seeking damages on account of such bodily injury or
property damage, even if the allegations of the
2
On April 9, 1985, Sentry sent EPC a letter stating that it
would not renew the policy when it expired on June 1, 1985.
On August 8, 1985, O’Nan and Iglesias purchased a home in
Kaufman County, Texas and moved into it a few days later. O’Nan
and Iglesias then hired EPC to treat the property for insect
infestation. It is undisputed that EPC made three separate
applications on the following dates: August 23, 1985, November 4,
1985, and February 18, 1986. The parties dispute whether the
property had received any treatment before August 8, 1985, the date
when O’Nan and Iglesias moved into the house.
Shortly after moving in, O’Nan and Iglesias began experiencing
severe health problems. They brought an action in state court
against EPC, Blankenship, Sentry, and various other defendants to
recover for alleged personal injury and property damage. Sentry
would not defend EPC because it asserted that the policy coverage
had expired by the time O’Nan and Iglesias had purchased the
property, the earliest date that any damage could have occurred.
On December 31, 1994, judgment was entered against EPC for
over $2.2 million. Sentry brought this declaratory judgment action
in federal court seeking a declaration that Sentry had neither a
duty to defend EPC and Blankenship in the underlying suit, nor a
duty to indemnify them now. The parties were re-aligned into their
current positions on October 25, 1995.
suit are groundless, false, or fraudulent.
3
On cross-motions for summary judgment, the district court
denied the motion of EPC and Blankenship and granted the motion of
Sentry. In its order, the district court held that Sentry had no
duty to defend because the policy had expired, by its own terms, on
June 1, 1995, and the damage could not have occurred until after
August 8, 1995 (the move-in date). Consequently, the district
court also held that Sentry had no duty to indemnify.
On appeal, Appellants assert that the district court erred in
granting summary judgment in favor of Sentry. Appellants argue
that, in spite of the plain language of the contract, there exists
a fact question as to whether EPC and Blankenship were still
covered under the Sentry policy.
We have carefully reviewed the briefs, the reply brief, the
record excerpts, and relevant portions of the record itself. We
are satisfied that the judgment of the district court should, in
all things, be AFFIRMED.
4