Texas Farm Bureau Underwriters v. Terry Graham, Jr.

ACCEPTED
06-13-00132-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/15/2015 11:29:32 AM
DEBBIE AUTREY
CLERK

No. 06-13-00132-CV
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
In the 1/15/2015 11:29:32 AM
DEBBIE AUTREY
Clerk
Sixth Court of Appeals

Texas Farm Bureau Underwriters,
Appellant/Defendant

vs.

Terry Graham
Appellee/Plaintiff

Appellee’s Motion for Rehearing

Marisa M. Schouten
Bar I. D. No. 24039163
Reid Wm. Martin
Bar I.D. No. 13098986
Martin Walker, P.C.
121 N. Spring Avenue
Tyler, Texas 75702
(903) 526-1600 Telephone
(903) 595-0796 Telefax

Attorneys for Appellee/Plaintiff, Terry Graham, Jr.
 TABLE OF CONTENTS

List of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

I. Points Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. When this court interpreted “no way of knowing why” as a motive
question and not a clear expression by the plaintiffs that they do not know
how this incident occurred, this court impermissibly made inferences in
favor of the insurance company and not the insured. . . . . . . . . . . . . . . . . . . 2

B. When this court assumed Graham “pointed a shotgun at a person’s head,”
a fact that is not in the petition, this Court went outside the 8 corners, and
made inferences that were not in the petition, and the analysis was
subsequently flawed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. This Court erred in applying Griffin to this case because Griffin is an
opinion about auto policies, a type of policy that contemplates car wrecks,
not general negligence on a premises such as gun accidents. . . . . . . . . . . 4

D. This Court also erred in applying Griffin to the case at hand because
Griffin’s “origin of damages” logic focused on the presence of extreme
conduct and was fact specific about why that act was intentional and could
never be construed as an accident. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

III. Conclusion and Prayer for Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

IV. Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

APPENDIX

1. This Court’s Opinion, Cause No. 06-13-00132-CV, Texas Farm Bureau
Underwriters v. Graham, dated December 5, 2014.

i
 AUTHORITIES

Cases:

D.R. Horton-Texas Ltd. v. Markel Int’l Ins. Co., Ltd.,
300 S.W.3d 740 (Tex. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Farmers Texas County Mut. Ins. Co. v. Griffin,
955 S.W.2d 81 (Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

GuideOne Elite Ins. Co. v. Fielder Road Baptist Church,
197 S.W.3d 305 (Tex. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ii
 I. POINTS PRESENTED FOR REVIEW

1. When this court interpreted “no way of knowing why” as a motive question and
not a clear expression by the plaintiffs that they do not know how this incident
occurred, this court impermissibly made inferences in favor of the insurance
company and not the insured.

2. When this court assumed Graham “pointed a shotgun at a person’s head”, a fact
that is not in the petition, this Court went outside the 8 corners, and made
inferences that were not in the petition, and the analysis was subsequently flawed.

3. When this court assumed the act of firing was intentional, this court
impermissibly made inferences in favor of the insurance company and not the
insured.

4. Griffin is an opinion about auto policies, a type of policy that never
contemplates gun accidents. When this court relied upon Griffin to set precedent
for a homeowner’s policy, in which gun accidents are contemplated, this court
erred.

1
 II. Argument

A. When this court interpreted “no way of knowing why” as a motive
question and not a clear expression by the plaintiffs that they do not know
how this incident occurred, this court impermissibly made inferences in favor
of the insurance company and not the insured.

The petition has a crucial sentence that makes two factual allegations and

establishes that the plaintiffs don’t know how this incident occurred: (1) “no way

of knowing why” this happened, (2) “because the only living persons who

participated in the events leading up to [Chambers’s] untimely and tragic death”

are Graham and Osborne. The second factual allegation cannot be ignored. The

plaintiff was not there and doesn’t know how this happened.

Equally consistent with the set of facts alleged in the petition is that

Osborne fumbled the gun to Graham, and in an attempt to keep the gun from

falling to the ground, the gun went off.

When the Court construed “no way of knowing why” as only a statement

about motive, and disregarded the rest of the sentence, the Court impermissibly

gave the inference to the insurance company, and not the insured.1 In other

locations in the opinion, it is likewise clear that the Court gave the inference to the

insurance company, and not the insured.

1
From this Court’s opinion, “While they may not have been aware of Graham’s motive
for shooting Chambers, the Chambers family knew how the shooting occurred.” Tab 1, p.13.

2
 For example, the petition:

(1) never alleges Graham “pointing the gun at Chambers and pulling the
trigger”2

(2) never alleges how Graham actually used the shot gun “to bring about the
death” of Chambers,

(3) never alleges why Chambers was on Graham’s property, or what activity
was occurring at the time the shotgun blast went off.

Because this Court did not correctly apply the standard of review to the set

of facts at hand, this Court should grant rehearing.

B. When this court assumed Graham “pointed a shotgun at a person’s head”,
a fact that is not in the petition, this Court went outside the 8 corners, and
made inferences that were not in the petition, and the analysis was
subsequently flawed.

Finally, the Court assumes that the act of firing the weapon was intentional.3

In this Court’s opinion, the Court stated “Because Chamber’s death was the type

of injury that ordinarily follows from pointing a shotgun at a person’s head and

shooting him or her ‘at very close range,’ we conclude that the injury was a natural

and probable result of Graham’s act.”4

2
Tab 1, p.11, 15.
3
“Here, the act of firing the weapon was intentional, and, as explained below, the result
was forseeable.” Tab 1, p.14 n.12.
4
Tab 1, p.15.

3
 The Court assumed Graham (1) pointed a shotgun at a person’s head and (2)

pulled the trigger. Those facts are not in the petition–the Court went outside the 8

corners.

Because this Court did not correctly apply the standard of review to the set

of facts at hand, this Court should grant rehearing.

C. This Court erred in applying Griffin to this case because Griffin is an
opinion about auto policies, a type of policy that contemplates car wrecks, not
general negligence on a premises such as gun accidents.

This Court erred in relying on an auto policy case and improperly

extrapolating from an auto policy case to a farm and ranch policy case. It is

beneficial to review the differences in policy language as well as the general

intention of what is to be covered in order to understand why Griffin’s rule does

not apply here. Farmers Texas County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 82

(Tex. 1997).

4
 Auto Policy (Griffin) Farm & Ranch Owner Policy (Graham)

Coverage Insurance “will pay damages for “If a claim is made or a suit is brought
bodily injury or property against an insured for damages because of
damage for which any covered bodily injury or property damage caused by
person becomes legally an occurrence” we will “provide a defense…
responsible because of an even if the suit is groundless, false or
auto accident” fraudulent.”

“Covered person” means “you “Occurrence” means “an accident, including
or any family member for the exposure to conditions which results in
ownership, maintenance, or use bodily injury or property damage during the
of any auto or trailer.” policy period.”

Exclusion “who intentionally causes bodily “bodily injury or property damage which is
injury or property damage” caused intentionally by or at the direction of
an insured.”

The intent of the policies is reflected in the coverage language. An auto policy

protects other drivers and their property in the event the insured is found at

fault for causing a car wreck. Whereas, a farm and ranch owner’s policy

protects the insured against expenses resulting from someone getting hurt in

the insured’s home or on the insured’s property. This is the general industry

understanding and interpretation of the way the coverage works.

Accordingly, when a ‘gun incident’ occurs and an auto policy is at issue, the

analysis is completely different than when a ‘gun incident’ occurs and a farm

and ranch owner’s policy is at issue. In the Supreme Court’s own words, no

5
“facts can be developed... that can transform a drive-by shooting into an

auto accident.” D.R. Horton-Texas Ltd. v. Markel Int’l Ins. Co., Ltd., 300

S.W.3d 740, 744-45 (Tex. 2009) (recognizing the limitations of Griffin).

However, insurance companies are routinely called upon, and accept coverage

for, gun incidents on premises through home owners or farm and ranch owners

policies.

D. This Court also erred in applying Griffin to the case at hand because
Griffin’s “origin of damages” logic focused on the presence of extreme
conduct and was fact specific about why that act was intentional and could
never be construed as an accident.

In Griffin, the petition “alleged facts indicating that the origin of his

damages was intentional behavior”, and no facts could be developed that would

transform a drive-by into an auto accident:

 “suddenly and without warning, a vehicle driven by [Royal] approached Mr.
Griffin. Several rounds of gunfire were discharged from the vehicle in the
direction of the Plaintiff.”

 “This drive-by shooting was a random act of violence which has
permanently injured and scarred the plaintiff”

 “He made no factual contention that could constitute negligent behavior
by Royal.”

Since the Griffin case, the Supreme Court has said that Griffin is “fact-

specific” and can’t be construed broadly:

6
 In Griffin, the issue was whether facts developed in the underlying tort
suit for injuries caused by a drive-by shooting could form the basis for
coverage under an automobile insurance policy. We explained in that
case that no “facts can be developed in the underlying tort suit that
can transform a drive-by shooting into an auto accident.”

This conclusion was grounded on the impossibility that the drive-by
shooting in that case could be transformed by proof of any
conceivable set of facts into an auto accident covered by the
insurance policy.

D.R. Horton, 300 S.W.3d at 744-45.

In contrast, here, sufficient facts are alleged that give rise to a conceivable

set of facts for negligence, where a farm and ranch owner’s policy is at issue,

and it’s not “impossible” or even a stretch:

 “On or about February 18, 2007...Chambers, was shot and killed by
Defendant...on property owned by [Graham]”

 “Plaintiff has no way of knowing why [Chambers] was killed by Terry
Graham, Jr. because the only living persons who participated in the events
leading up to his untimely and tragic death are the two Defendants...”

 “Chambers was shot with a 410 shotgun at very close range and that the
entry wound was behind his left ear.”

 “Plaintiff further alleges that Mr. Graham was negligent and grossly
negligent in causing the death of Mr. Chambers.”

CR 211-214. As explained by the Supreme Court in GuideOne, the burden is

easy to meet–a plaintiff’s factual allegations that even “potentially” support a

covered claim is “all that is needed” to invoke the insured’s duty to defend.

7
GuideOne Elite Ins. Co. v. Fielder Road Baptist Church, 197 S.W.3d 305, 310

(Tex. 2006).

That burden is met. To determine otherwise impermissibly gives inferences

in favor of the insurer.

8
 III. CONCLUSION AND PRAYER

For these reasons, this Court should grant the motion for rehearing, affirm the

trial court’s judgment and tax costs against Farm Bureau.

Respectfully submitted,

121 N. Spring Street
Tyler, Texas 75702
(903) 526-1600 Telephone
(903) 595-0796 Telefax

By: ___/s/ Marisa Schouten___________
Marisa M. Schouten
Bar I.D. No. 24039163

Reid Wm Martin
Bar I.D. No. 13098986

ATTORNEYS FOR APPELLEE

9
 Certificate of Service

On the 15th day of January, 2015, I forwarded, via email, regular U.S. mail,
certified mail, return receipt requested, hand delivery or fax transmission, a copy
of this brief as follows:

All counsel of record

____/s/ Marisa Schouten_________________
Marisa Schouten

Certificate of Compliance

I hereby certify that, using the word processing functions of this computer, this
document has 1,998 words.

______/s/ Marisa Schouten_______________
Marisa Schouten

10
APPENDIX 1
 In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-13-00132-CV

TEXAS FARM BUREAU UNDERWRITERS, Appellant

V.

TERRY GRAHAM, JR., Appellee

On Appeal from the 241st District Court
Smith County, Texas
Trial Court No. 10-2640C

Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss
 OPINION
Terry Graham, Jr., shot and killed would-be burglar, Hiram Joshua Chambers, at

Graham’s ranch house in Smith County, Texas. 1 In successfully defending the resulting

wrongful death lawsuit by Chambers’ family members, 2 Graham incurred $130,841.43 in

defense costs, which Graham seeks to recover from Texas Farm Bureau Underwriters

(Underwriters), the issuer of Graham’s Texas Farm and Ranch Owner’s Insurance Policy. 3 From

competing motions for summary judgment, contesting the question of whether Underwriters had

the duty to defend Graham in the Chambers lawsuit, the trial court awarded Graham judgment.

Underwriters appeals. Because, under the terms of the policy, there was no duty to defend the

Chambers lawsuit, we reverse the trial court’s judgment and render a take-nothing judgment in

favor of Underwriters.

1
Originally appealed to the Twelfth Court of Appeals in Tyler, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We
follow the precedent of the Twelfth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
After Graham shot Chambers, Chambers’ ex-wife, Amanda Chambers, as next friend of Austin Blaine Chambers
and Elizabeth Atlee Chambers (collectively referred to as the Chambers family), sued Graham and his ranch
manager, Guy Lee Osborn, for wrongful death in the County Court at Law No. 2 of Smith County, Texas, cause
number 54,726-A (the Chambers lawsuit). After conducting some discovery, the Chambers family filed a second
amended petition detailing the events of the shooting. They later dismissed Osborn from the lawsuit.
3
Once served with the Chambers lawsuit, Graham turned to the provisions of his insurance policy, which required
Underwriters, under certain circumstances, to provide a defense in lawsuits arising out of bodily injury occurring on
Graham’s property. Underwriters denied that it had any duty to defend Graham on the ground that the shooting was
not a covered occurrence under the policy. Graham paid for his own defense costs as the Chambers lawsuit
proceeded to trial. The trial court’s charge in the Chambers lawsuit instructed the jury that Chambers was
burglarizing Graham’s residence when he was shot. The jury found (1) that Graham did not “intentionally,
knowingly, or recklessly cause bodily injury to [Chambers],” (2) that Graham did not “intentionally or knowingly
threaten [Chambers] with imminent bodily injury,” (3) that Graham did not “intentionally or knowingly cause
physical contact with [Chambers] when he knew or should [have] reasonably believe[d] that [Chambers would]
regard the contact as offensive,” (4) that Graham was not negligent, (5) that Graham’s use of deadly force was
justified, and (6) that Chambers caused his own death.

2
 We review de novo a trial court’s grant of summary judgment. Thompson v. Weaver, 429

S.W.3d 897, 901 (Tex. App.—Tyler 2014, no pet.) (citing Frost Nat’l Bank v. Fernandez, 315

S.W.3d 494, 508 (Tex. 2010)); see Transp. Int’l Pool, Inc. v. Cont’l Ins. Co., 166 S.W.3d 781,

784 (Tex. App.—Fort Worth 2005, no pet.) (“Because the question of an insurance carrier’s

contractual duty to defend is one of law, we must conduct a de novo review.”). In a traditional

summary judgment motion, the movant has the burden to demonstrate no fact issue exists.

Thompson, 429 S.W.3d at 901 (citing TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co.,

690 S.W.2d 546, 548 (Tex. 1985)). “Once the movant has established a right to summary

judgment, the burden of proof shifts to the nonmovant to respond to the motion and present to

the trial court any issues that would preclude summary judgment.” Id. (citing City of Houston v.

Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979)). We examine the entire record

in the light most favorable to the nonmovant, indulging every reasonable inference and resolving

any doubts against the movant. Id. (citing Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006);

KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999)).

When there are cross-motions for summary judgment, each movant claims that there is no

fact issue. Id. at 902 (citing Lambrecht & Assocs., Inc. v. State Farm Lloyds, 119 S.W.3d 16, 20

(Tex. App.—Tyler 2003, no pet.)). Thus, “[i]f one motion is granted and the other denied, we

must review the summary judgment evidence presented by both sides and determine all

questions presented.” Id. If we find that the grant of one summary judgment was improper, we

may reverse and render the judgment the trial court should have rendered. Id.

3
 It is uncontested (1) that Graham was an insured under the policy, (2) that he had paid all

premiums required under the policy, (3) that he had personal liability coverage for bodily injury

occurring on the resident premises as of the date of the incident, (4) that the incident occurred on

the resident premises, and (5) that Underwriters received timely notice of Graham’s request for

defense. Seeking reimbursement of the money he paid to his defense attorneys, Graham sued

Underwriters for breach of contract, breach of the duty of good faith and fair dealing under

Chapter 542 of the Texas Insurance Code (the Prompt Payment of Claims Act), and attorney fees

in bringing this lawsuit. 4

Underwriters filed a legal denial based on the governing “eight corners rule,” which

provides that an insurer is entitled to rely solely on the factual allegations contained in the four

corners of the complaint in conjunction with the four corners of the liability policy to determine

whether it has a duty to defend. See Nat’l Union Fire Ins. Co. of Pittsburg, Pa. v. Merchs. Fast

Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997). In its answer, Underwriters argued that the

eight corners rule precluded recovery because (1) the Chambers family’s petition established that

the incident was not a covered occurrence and (2) the policy expressly excluded coverage for

bodily injury caused by an intentional act of the insured. Underwriters filed a traditional motion

for summary judgment on its legal defense. In response, Graham filed a cross-motion for

summary judgment, arguing (1) that Underwriters’ duty to defend was established by the jury’s

4
Graham also brought extra-contractual claims against Underwriters. The trial court severed Graham’s contractual
claims from his extra-contractual claims pursuant to a conditional grant of Underwriters’ petition for writ of
mandamus issued by the Tyler Court of Appeals. In its final judgment, the trial court stayed the extra-contractual
claims pending the conclusion of the appeal from the contractual claims at issue here.
4
finding of no wrongdoing on Graham’s part and (2) that the policy’s exclusion for intentional

acts did not apply to the Chambers family’s allegations of negligence and gross negligence.

After reviewing the summary judgment evidence, the trial court denied Underwriters’

motion and granted Graham’s cross-motion, ruling that Underwriters should have defended

Graham in the Chambers lawsuit. In its final judgment for Graham on his breach of contract

claim, the trial court recited, “[T]he parties hereto had stipulated to the amount of damages

following the Court’s ruling on the liability issue” and awarded $225,286.92 in damages to

Graham in accordance with the stipulation. Relying on the eight corners rule, Underwriters

appeals.

Underwriters is correct in its assertion that this case is governed by the eight corners rule.

“‘[A]n insurer is entitled to rely solely on the factual allegations contained in the petition in

conjunction with the terms of the policy to determine whether it has a duty to defend.’” Pine

Oak Builders, Inc. v. Great Am. Lloyds Ins. Co., 279 S.W.3d 650, 654 (Tex. 2009) (quoting

Merchs. Fast Motor Lines, Inc., 939 S.W.2d at 142; Trinity Universal Ins. Co. v. Cowan, 945

S.W.2d 819, 829 (Tex. 1997)). “If a petition does not allege facts within the scope of coverage,

an insurer is not legally required to defend a suit against its insured.” Id. at 654.

When applying the eight corners rule, “we construe the allegations in the pleadings

liberally.” GEICO Gen. Ins. Co. v. Austin Power Inc., 357 S.W.3d 821, 824 (Tex. App.—

Houston [14th Dist.] 2012, pet. denied) (citing Merchs. Fast Motor Lines, Inc., 939 S.W.2d at

141; King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187 (Tex. 2002)). “The factual allegations are

considered without regard to their truth or falsity[,] and all doubts regarding the duty to defend

5
are resolved in the insured’s favor.” Ewing Const. Co., Inc. v. Amerisure Ins. Co., 420 S.W.3d

30, 33 (Tex. 2014). Thus, “[i]n reviewing the pleadings and making the determination under the

eight corners rule regarding an insurer’s duty to defend, courts look to the factual allegations

showing the origin of the damages claimed, not the legal theories or conclusions alleged.” Id.;

see Evanston Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d 377, 380 (Tex. 2012).

An insurer is obligated to defend the insured if the facts alleged in the petition “present a

matter that could potentially be covered by the insurance policy.” Id.; GuideOne Elite Ins. Co. v.

Fielder Rd. Baptist Church, 197 S.W.3d 305, 308 (Tex. 2006); see Austin Power Inc., 357

S.W.3d at 824 (citing Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex.

1965)). In case of ambiguity in the underlying petition, “[w]e will not read facts into the

pleadings . . . . Nor will we look outside the pleadings, or imagine factual scenarios which might

trigger coverage.” Pine Oak Builders, Inc., 279 S.W.3d at 655; see Austin Power Inc., 357

S.W.3d at 824.

“The insured has the initial burden to establish coverage under the policy.” Ewing, 420

S.W.3d at 33. “If it does so, then to avoid liability the insurer must prove one of the policy’s

exclusions applies.” Id. “If the insurer proves that an exclusion applies, the burden shifts back

to the insured to establish that an exception to the exclusion restores coverage.” Id.

“Interpretation of insurance contracts in Texas is governed by the same rules as

interpretation of other contracts. When construing a contract, the court’s primary concern is to

give effect to the written expression of the parties’ intent.” Forbau v. Aetna Life Ins. Co., 876

S.W.2d 132, 133 (Tex. 1994).

6
 The initial four corners to consider are the four corners of the insurance policy. The

terms of Graham’s personal liability coverage provide,

COVERAGE C (Personal Liability). If a claim is made or a suit is brought
against an insured for damages because of bodily injury 5 or property damage
caused by an occurrence to which this coverage applies, we will:

1. pay up to our limit 6 of liability for the damages for which the insured is
legally liable.

2. provide a defense at our expense by counsel of our choice even if the suit
is groundless, false or fraudulent . . . . 7

The policy defines the term “occurrence” as “an accident, including exposure to conditions

which results in bodily injury or property damage during the policy period.” It also contains the

following exclusion: “Coverage C (Personal Liability) . . . do[es] not apply to: . . . bodily

injury or property damage which is caused intentionally by or at the direction of an insured.”

The other four corners to consider are those set out in the Chambers family’s petition.

We first look to the live pleading in the Chambers lawsuit. The second amended petition in the

Chambers lawsuit omitted the fact that Chambers was committing burglary of a habitation when

he was shot. Instead, the petition stated that the Chambers family “had no way of knowing why

. . . Chambers was killed . . . because the only two people who participated in the events leading

up to his untimely and tragic death” were Graham and Osborn. The Chambers family alleged

5
The policy defined “bodily injury” as “bodily harm, sickness or disease.” The policy continued, “This [coverage]
includes required care, loss of services and death that results.”
6
The personal liability policy limit was $1,000,000.00 per occurrence.
7
The policy stated, “We pay . . . expenses we incur and costs taxed against an insured in any suit we defend” and
“interest on the entire judgment which occurred after entry of the judgment and before we pay or tender or deposit in
court that part of the judgment which does not exceed the limit of liability that applies.”
7
both that Graham committed “a violent assault and battery” on Chambers and, in the alternative,

that Graham was “negligent and grossly negligent” in causing Chambers’ death. The petition

contained the following allegations:

Plaintiff alleges that just before Terry Graham, Jr.’s vicious assault on
[Chambers], he had directed [Osborn] to bring to him a loaded 410 shotgun.
Before the death of [Chambers], [Graham] had instructed [Osborn] to shoot
[Chambers], but [Osborn] refused to do so. Instead, [Osborn] carelessly,
negligently, and very foolishly handed the shotgun to [Graham], who then used it
to carry out his intent and purpose of bringing about the death of [Chambers].

Even though the eight corners rule prohibits us from looking beyond the Chambers

family petition and the terms of the insurance policy, Graham asks this Court to consider

extrinsic evidence in our analysis. To demonstrate that Underwriters had a duty to defend,

Graham relies (1) on a fact that was not included in the underlying petition—that Chambers was

burglarizing the property when he was shot, (2) on the jury’s verdict absolving Graham of

liability for Chambers’ death, and (3) on the following excerpt from the deposition of

Underwriters’ corporate representative, John Adtkins:

Q. If you took out the alternative theory of an intentional tort out of
this case; so, you took out the we say he had intent; although, we all know she had
no idea because she wasn’t there and she says it in there that she wasn’t. But if
you take that out and the negligence, he’s on the property, there’s a gun involved,
the gun goes off, it shoots him and he’s negligent and there’s no intentional tort
pled and there’s no allegation that he intended to do it, you’d defend that case,
wouldn’t you?

[By Underwriters counsel]: Objection, form.

A. I would have to read it; but, yes, I mean, if the intent was not in
there, that changes our evaluation.

Q. [Graham’s counsel] Right. Because you’re not going to say, well,
there’s not enough facts in there to prove that you were negligent, we’re not
8
 defending this case, just go on out there on your own, Mr. Insured, they didn’t say
it right. You’d never do that, would you?

[By Underwriters counsel]: Objection, form.

Q. [Graham’s counsel] You’d hire him a lawyer, wouldn’t you, sir?

A. If the facts did not have intent and purpose, you’re right, then, yes,
we would. I mean, I can’t imagine what the rest of the petition would say. But if
it was specifically remove those words, then yes.

Q. Yeah. If it said specifically what the second amended petition says
absent the intent sentence and the intentional tort claim, those facts, that cause of
action gets him a lawyer paid for by his insurance company, doesn’t it?

[By Underwriters counsel]: Objection, form.

A. Without those words, yes.

Reliance on this kind of extrinsic evidence violates the eight corners rule. See GuideOne

Elite Ins. Co., 197 S.W.3d at 309. Consequently, Graham asks this Court to recognize a rule

exception referenced in a Texas Supreme Court opinion. In Pine Oak Builders, Inc., the Texas

Supreme Court noted that some courts have recognized an exception “permitting the use of

extrinsic evidence only when relevant to an independent and discrete coverage issue, not

touching on the merits of the underlying third-party claim.” Pine Oak Builders, Inc., 279 S.W.3d

at 654. Without expressly recognizing or approving the exception, Pine Oak Builders, Inc.

warned that “any such exception would not extend to evidence that was relevant to both

insurance coverage and the factual merits of the case as alleged by the third-party plaintiff.” Id.;

see GuideOne Elite Ins. Co., 197 S.W.3d at 310. 8 To date, neither the Texas Supreme Court nor

8
Certainly, the jury’s verdict in the Chambers lawsuit speaks directly to the merits. Thus, its consideration would be
disallowed, even if we were to recognize an exception to the eight corners rule, which we do not.
9
the Tyler Court of Appeals has officially embraced any exception to the eight corners rule, and

our sister courts have declined to apply the exception referenced in Pine Oak Builders, Inc. See

Burlington N. & Santa Fe Ry. Co. v. Nat’l Union Fire Ins. Co., 394 S.W.3d 228, 235 (Tex.

App.—El Paso 2012, pet. denied) (declining to recognize any exception to eight corners rule);

AccuFleet, Inc. v. Hartford Fire Ins. Co., 322 S.W.3d 264, 273 (Tex. App.—Houston [1st Dist.]

2009, no pet.) (same). Because the Tyler Court of Appeals has not spoken on this issue, we

refuse to determine that it would recognize an exception to the eight corners rule. Thus, we

focus only on the policy terms and the underlying petition in determining whether Underwriters

had a duty to defend.

We must determine whether the Chambers family’s petition alleged that Graham

committed a negligent act in addition to an intentional one. Graham claims that the Chambers

family “pled . . . two distinct positions with regard to state of mind.” In support of his argument

that the petition alleged a negligent state of mind, Graham looks to (1) the language stating that

the Chambers family has “no way of knowing why [Chambers] was killed . . . because the only

living persons who participated in the events leading up to his untimely and tragic death are the

two Defendants,” 9 and (2) the language “alleg[ing] that Mr. Graham was negligent and grossly

negligent in causing the death of Mr. Chambers.” Urging our liberal interpretation of the

pleadings, Graham argues that because the petition set forth causes of action for negligence and

gross negligence, in addition to the cause of action for an intentional tort, it “present[ed] a matter

9
Underwriters responds that the “no way of knowing” language is an irrelevant statement about Graham’s possible
motive for shooting Chambers—not a statement suggesting that Graham pulled the trigger negligently instead of
intentionally.
10
that could potentially be covered by the insurance policy,” requiring Underwriters to defend him

in the Chambers lawsuit. See Ewing, 420 S.W.3d at 33. Because it is uncontested that

Underwriters failed to defend him, Graham argues that the trial court’s summary judgment on his

claims arising from the failure to provide a defense was proper.

“An accident is generally understood to be a fortuitous, unexpected, and unintended

event.” Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 8 (Tex. 2007).

Underwriters argues that the factual allegations in the petition (1) stating that a gun was used “to

carry out [Graham’s] intent and purpose of bringing about the death of [Chambers]” and,

(2) describing the incident as a “vicious assault” and “violent assault and battery,” alleged only

intentional conduct. Thus, Underwriters claims that it has no duty to defend because (1) the

underlying petition alleges one injury-causing act, pointing the gun at Chambers and pulling the

trigger, (2) there are no facts in the petition alleging that the shooting was anything other than

intentional, and (3) the shooting was not a covered occurrence (a) since it was not an accident

and (b) because the policy excluded coverage for intentional acts. Underwriters argues that the

trial court thus erred in granting Graham’s cross-motion for summary judgment, but should have

granted Underwriters’ traditional motion for summary judgment.

“Our precedent favors insureds when examining both the complaint and the policy. As to

the complaint, if it includes even one covered claim, the insurer must defend the entire suit . . . .

However, we only defer to a complaint’s characterization of factual allegations, not legal

theories or conclusions.” Evanston Ins. Co., 370 S.W.3d at 380. Thus, in reviewing the

Chambers family’s pleadings in light of the policy provisions, we must focus on the facts alleged

11
instead of the legal theories. See Merchs. Fast Motor Lines, Inc., 939 S.W.2d at 141 (“It is not

the cause of action alleged that determines coverage, but the facts giving rise to the alleged

actionable conduct.”).

This principle is well illustrated by Farmers Texas County Mutual Insurance Company v.

Griffin, 955 S.W.2d 81 (Tex. 1997). There, the Texas Supreme Court held that Farmers had no

duty to indemnify its insured, James Royal, III, in a lawsuit brought by Robert Griffin. Id. at 81–

82. Griffin’s petition alleged, “Suddenly and without warning, a vehicle driven by [Royal]

approached Mr. Griffin. Several rounds of gunfire were discharged from the vehicle in the

direction of the Plaintiff . . . . This drive-by shooting was a random act of violence which has

permanently injured and scarred the plaintiff.” Id. at 82. The petition further alleged that Royal

was negligent in transporting armed persons and was negligent in failing to operate a motor

vehicle in a safe manner, control his passengers, stop and render aid, or take evasive action to

avoid injury to Griffin. Id. at 82 n.1. The Farmers automobile insurance policy excluded

coverage for any person “[w]ho intentionally causes bodily injury.” Id. at 82. The court wrote,

“although Griffin seeks relief on legal theories of negligence and gross negligence, he alleged

facts indicating that the origin of his damages was intentional behavior. He made no factual

contention that could constitute negligent behavior by Royal.” Id. at 83. Because the shooting

was the result of intentional conduct, the court found that Griffin’s complaint was within the

policy’s exclusion of intentional acts. Id.

Griffin established that a mere allegation of negligence does not control the duty to

defend. Id.; see Branham v. State Farm Lloyds, No. 04-12-00190-CV, 2012 WL 3985925, at

12
*3–4 (Tex. App.—San Antonio Sept. 12, 2012, pet. denied) (mem. op.) (citing Freedman v.

Cigna Ins. Co. of Tex., 976 S.W.2d 776, 779 (Tex. App.—Houston [1st Dist.] 1998, no pet.));

Huffines v. State Farm Lloyds, 167 S.W.3d 493, 501 (Tex. App.—Houston [14th Dist.] 2005, no

pet.) (same). Thus, the underlying petition’s causes of action for negligence and gross

negligence, on their own, were insufficient to require Underwriters to defend Graham in the

Chambers lawsuit.

Yet, Graham claims that the petition’s recitation that the Chambers family had “no way

of knowing why” Graham pulled the trigger is a factual allegation supporting the possibility of

negligent conduct. We disagree. While they may not have been aware of Graham’s motive for

shooting Chambers, the Chambers family knew how the shooting occurred. The petition stated

that Graham (1) asked Osborn to fetch a loaded weapon, (2) instructed Osborn to shoot

Chambers, (3) took the weapon from Osborn when he refused, and (4) shot Chambers at close

range. Just as Griffin found that the underlying petition alleged only intentional conduct even

though it described the incident as a “random act of violence” and included a cause of action for

negligence, we conclude that the factual allegations contained in the Chambers family’s petition

establish that the origin of the damage was Graham’s intentional act of firing the weapon. 10

Although we find that the act causing the damage was intentional, we recognize that an

intentional act can still be considered an accident because “whether an event is accidental is

determined by its effect.” Cowan, 945 S.W.2d at 827 (quoting Republic Nat’l Life Ins. Co. v.
10
Nothing suggests that Graham’s act in shooting Chambers was anything other than intentional because (1) there is
no suggestion that Graham slipped, fell, or otherwise mistakenly pulled the trigger, and (2) other language used in
the petition described the shooting as intentional. See Wessinger v. Fire Ins. Exch., 949 S.W.2d 834, 838 (Tex.
App.—Dallas 1997, no writ).

13
Heyward, 536 S.W.2d 549, 555 (Tex. 1976)). Cowan rejected the argument that an incident can

never be an accident if an actor intended to engage in the conduct that gave rise to an injury. Id.

at 828. The court explained,

Trinity’s approach would render insurance coverage illusory for many of the
things for which insureds commonly purchase insurance. For example, consider
the hunter who deliberately fires a gun at what he believes to be a deer but is
actually a person. Though firing the gun was intentional, the harm can reasonably
be characterized as an “accident.” Yet Trinity’s proposed construction would
provide no coverage. We think such a construction would also conflict with our
holding that an “accident” includes the “negligent acts of the insured causing
damage which is undesigned and unexpected.”

Id. 11 In other words, “a deliberate act, performed negligently, is an accident if the effect is not

the intended or expected result; that is, the result would have been different had the deliberate act

been performed correctly.” Lamar Homes, Inc., 242 S.W.3d at 8. 12 This is not the situation

before us.

[A] claim does not involve an accident or occurrence when either direct
allegations purport that the insured intended the injury (which is presumed in
cases of intentional tort) or circumstances confirm that the resulting damage was
the natural and expected result of the insured’s actions, that is, was highly
probable whether the insured was negligent or not.

Id. at 9. “The natural result of an act is the result that ordinarily follows, may be reasonably

anticipated, and ought to be expected. This standard is objective. A person is held to intend the
11
Although the act of firing a gun was “deliberate” and “intentional,” a close reading of the hunter analogy in Cowan
demonstrates that the court characterized the act of firing in the direction of what the hunter thought was a deer a
“negligent act” due to the mistake and found that the result was unintended. Cowan, 945 S.W.2d at 828.
12
Lamar Homes, Inc., clarified that foreseeability alone is not the boundary between accidental and intentional
conduct. Lamar Homes, Inc., 242 S.W.3d at 4, 8. Graham cites to Lamar Homes, Inc., and argues that his conduct
could be an accident even if the result is foreseen. Lamar Homes, Inc., found that allegations of unintended
construction defects arising from faulty workmanship constituted an accident despite the fact that the resulting
damage was foreseeable. Id. at 4. In Lamar Homes, Inc., the act was unintentional, although the injury was
foreseeable. Here, the act of firing the weapon was intentional, and, as explained below, the result was foreseeable.

14
natural and probable results of his acts even if he did not subjectively intend or anticipate those

consequences.” Wessinger, 949 S.W.2d at 837.

Here, the four corners of the petition demonstrate that Graham’s use of a “loaded 410

shotgun . . . to carry out his intent and purpose of bringing about” Chambers’ death was

intentional. Because Chambers’ death was the type of injury that ordinarily follows from

pointing a shotgun at a person’s head and shooting him or her “at very close range,” we conclude

that the injury was a natural and probable result of Graham’s act. “Where acts are voluntary and

intentional and the injury is the natural result of the act, the result was not caused by accident.”

Id.; see Cowan, 945 S.W.2d at 827.

Under the terms of the policy, coverage applied only to accidents causing bodily injury

and was expressly excluded for acts “caused intentionally by . . . an insured.” Because the

incident was not an accident, Underwriters had no duty to defend. Therefore, the trial court erred

in granting Graham’s cross-motion for summary judgment and in denying Underwriters’

summary judgment.

We sustain Underwriters’ point of error. We reverse the trial court’s judgment and

render a take-nothing judgment in favor of Underwriters.

Josh R. Morriss, III
Chief Justice

Date Submitted: September 24, 2014
Date Decided: December 5, 2014

15