Michelle Latray as Receiver of the Assets of Clifton Boatright for the Benefit of Judgment Creditors W.L. Roberts, Dana Roberts, Erin Leigh Roberts, and Katelyn Robert Gonzales v. Colony Insurance Company D/B/A Colony Specialty Insurance Co.

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-19-00350-CV

MICHELLE LATRAY AS RECEIVER OF THE ASSETS OF CLIFTON BOATRIGHT FOR
THE BENEFIT OF JUDGMENT CREDITORS W.L. ROBERTS, DANA ROBERTS, ERIN
LEIGH ROBERTS, AND KATELYN ROBERTS GONZALES, APPELLANT

V.

COLONY INSURANCE COMPANY
D/B/A COLONY SPECIALTY INSURANCE CO., APPELLEE

On Appeal from the 77th District Court
Limestone County, Texas
Trial Court No. 31,528-A; Honorable Patrick Simmons, Presiding

November 4, 2021

MEMORANDUM OPINION ON MOTION FOR REHEARING
Before PIRTLE and PARKER and DOSS, JJ.

By her appeal, Appellant, Michelle Latray, acting as a receiver on behalf of

certain judgment creditors, argued the trial court erred in its summary judgment rulings

because Appellee, Colony Insurance Company, had both the duty to defend and the

duty to indemnify her judgment debtor, Clifton Boatright, and that none of the policy
exclusions asserted by Colony were applicable. By opinion dated January 11, 2021,

this court affirmed the judgment of the trial court. 1

Pending before this court is Appellant’s Motion for Rehearing by which Latray

brings three issues. First, she argues that both this court’s and the trial court’s

interpretation of the facts deprived her of the right to a jury trial regarding the conduct of

Clifton Boatright. She asserts also that this court “ignored other acts other than

dumping.” Second, Latray contends this court should rehear this matter to allow her to

assert reasons for remand to the trial court for a jury determination as to whether

Boatright’s actions were intentional or negligent. Third, Latray complains that this court

failed to follow precedent regarding determination of the duty to defend relying on facts

of the case rather than pleading allegations. While we will deny Appellant’s Motion for

Rehearing, we will withdraw our opinion and judgment dated January 11, 2021, and in

lieu thereof, substitute the following opinion and judgment. 2

BACKGROUND

This appeal arose from an insurance coverage dispute stemming from

Boatright’s dumping of debris onto property owned by W.L. Roberts and others

(hereafter “the Roberts”). The City of Kosse hired Boatright to demolish the town’s old

high school. Their agreement included Boatright’s removal and disposal of the debris

resulting from the demolition. Their agreement also required Boatright to obtain a policy

1 Latray v. Colony Ins. Co., No. 07-19-00350-CV, 2021 Tex. App. LEXIS 168 (Tex. App.—
Amarillo Jan. 11, 2021, no pet. h.) (mem. op.).

2 Originally appealed to the Tenth Court of Appeals, sitting in Waco, this appeal was transferred

to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE
ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Tenth Court of Appeals and
this court on any relevant issue, this appeal will be decided in accordance with the precedent of the
transferor court. TEX. R. APP. P. 41.3.

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of liability insurance prior to the commencement of demolition. An agent for Colony

issued a policy covering the planned operations.

David Garrett, a friend of Boatright’s and a long-time tenant 3 on the Roberts’

property, asked Boatright if he could take some of the debris to use for purposes of

erosion control. According to Boatright, he mistakenly believed the property on which

Garrett wished to place the debris belonged to Garrett when, in fact, the property

belonged to the Roberts. Boatright did not inquire of Garrett whether he owned that

property. Neither Garrett nor Boatright sought the Roberts’ permission before placing

the debris on the property. Further, neither sought a permit to dump the debris nor did

either man consult an expert regarding erosion control.

Thereafter, Garrett and Boatright took debris 4 from the demolition site and placed

it on the Roberts’ property. At times, Boatright borrowed his mother’s dump truck to

move larger loads of the debris to the property. By the end of the project, Garrett and

Boatright had placed forty tons of debris on the Roberts’ property. The two also

damaged fencing as they entered and exited the property, causing over $8,000 in

property damages. When W.L. Roberts discovered the debris on his property, he filed

suit against Boatright and others for illegal dumping and damage to his land. 5 Roberts

subsequently obtained a judgment against Boatright for $50,000, plus $309 in court

costs. After the judgment became final, the court also issued a Turnover Order

Boatright testified Garrett had lived at that home where the debris was deposited for “nearly
3

twenty years.”

4 The debris included brick and metal rebar.

5 W.L. Roberts alleged damages including property damage, cleanup costs, debris removal costs,
soil testing, soil analysis, environmental studies, and attorney’s fees.

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pursuant to section 31.002 of the Texas Civil Practice and Remedies Code, appointing

Latray as a receiver, to take possession of non-exempt property for the purpose of

liquidating that property for the benefit of Boatright’s judgment creditors. See TEX. CIV.

PRAC. & REM. CODE ANN. § 31.002 (West 2020).

As required by his demolition contract, prior to the commencement of demolition,

Boatright obtained a liability insurance policy issued by Colony. After the judgment

against Boatright was returned and the Turnover Order was issued, Latray sought relief

under the insurance policy issued to Boatright by Colony. When Colony denied that

coverage, Latray filed this suit against Colony for breach of contract, violation of the

Deceptive Trade Practices Act (“DTPA”), 6 violation of section 541 of the Texas

Insurance Code, 7 and breach of the common law duty of good faith and fair dealing.

Colony argued that because Boatright’s actions were intentional, the policy did not

cover Boatright’s acts and thus, it had no duty to defend nor indemnify. Colony filed an

amended traditional motion for summary judgment on that basis. Latray also filed a

motion for partial summary judgment arguing Colony owed Boatright a duty to defend as

a matter of law because, although the conduct was intentional, the alleged negligence

was “accidental” because Boatright was operating under the misconception that he had

authority to dump the debris on the Roberts’ property. She asserted that other acts

committed by Boatright were negligent acts and as such, Colony had both a duty to

defend and indemnify. The trial court granted Colony’s motion for summary judgment

and denied Latray’s motion for partial summary judgment.

6 TEX. BUS. & COM. CODE ANN. § 17.46 (West 2020).

7 TEX. INS. CODE ANN. §§ 541.051-541.061 (West 2009).

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 ANALYSIS

STANDARD OF REVIEW

We review a trial court’s ruling on a summary judgment motion under a de novo

standard of review. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.

2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In

conducting our review, we take as true all evidence favorable to the nonmovant, and we

indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.

Valence Operating Co., 164 S.W.3d at 661; Knott, 128 S.W.3d at 215.

A party-defendant moving for traditional summary judgment bears the burden of

proving that no genuine issue of material fact exists on at least one essential element of

the plaintiff’s cause of action and that it is entitled to judgment as a matter of law. Mejia-

Rosa v. John Moore Servs., No. 01-17-00955-CV, 2019 Tex. App. LEXIS 6405, at *11-

13 (Tex. App.—Houston [1st Dist.] July 25, 2019, no pet.) (mem. op.) (citing TEX. R. CIV.

P. 166a(c); Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex.

2017)). In that regard, a matter is conclusively established if reasonable people could

not differ as to the conclusions to be drawn from the evidence. Mejia-Rosa, 2019 Tex.

App. LEXIS 6405, at *12 (citing City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.

2005)). If the movant meets its burden, the burden then shifts to the nonmovant to raise

a fact issue precluding summary judgment. Mejia-Rosa, 2019 Tex. App. LEXIS 6405, at

*12 (citing Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)).

When, as here, parties file cross-motions for summary judgment, each party in

support of its motion necessarily takes the position that there is no genuine issue of fact

in the case and that it is entitled to judgment as a matter of law. SW Bell Tel. Co. v.

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Combs, 270 S.W.3d 249, 259-60 (Tex. App.—Amarillo Oct. 28, 2008, pet. denied)

(citing City of Pflugerville v. Capital Metro. Transp. Auth., 123 S.W.3d 106, 109 (Tex.

App.—Austin 2003, pet. denied)). When both parties move for summary judgment on

the same issues and the trial court grants one motion and denies the other, the

reviewing court considers the summary judgment evidence presented by both sides and

determines all questions presented. Combs, 270 S.W.3d at 260 (citing Valence

Operating Co., 164 S.W.3d at 661; Comm’rs Court of Titus County v. Agan, 940 S.W.2d

77, 81 (Tex. 1997)).

Further, when the summary judgment order does not specify the grounds on

which it was granted, as is the case here, the appealing party must demonstrate that

none of the proposed grounds are sufficient to support the judgment. Mejia-Rosa, 2019

Tex. App. LEXIS 6405, at *13 (citing West v. SMG, 318 S.W.3d 430, 437 (Tex. App.—

Houston [1st Dist.] 2010, no pet.)). Therefore, we will affirm a summary judgment ruling

if any of the grounds asserted in the motion are meritorious. Mejia-Rosa, 2019 Tex.

App. LEXIS 6405, at *13 (citations omitted).

ISSUE ONE—DUTY TO DEFEND

Through her first issue on appeal, Latray argued the trial court erred in not

granting her partial motion for summary judgment concerning Colony’s duty to defend.

Colony disagreed, arguing that because there was no coverage, no duty to defend

arose. In the Motion for Rehearing, Latray argues she is entitled to have the trial court’s

ruling on the issue of the duty to defend reheard or reconsidered as a matter of law

because this court is to look only to the pleadings and the policy under the eight corners

rule to determine the duty to defend. Latray contends that in the original petition

6
through her third amended petition, she alleged negligent acts. She says those acts are

“very relevant” under Colony’s duty to defend because the “very fact negligence is

alleged” triggers the duty to defend as a matter of law. While Colony asserts the

underlying insured’s actions were intentional, Latray argues that even if true, the

underlying facts are irrelevant as to a duty to defend.

Whether an insurance carrier owes a duty to defend a claim being made against

an insured under an insurance policy is a question of law that we review de novo. St.

Paul Ins. Co. v. Tex. Dep’t of Transp., 999 S.W.2d 881, 884 (Tex. App.—Austin 1999,

pet. denied). Initially, the insured bears the burden of establishing coverage under the

terms of the insurance policy in question. JAW The Pointe, L.L.C. v. Lexington Ins. Co.,

460 S.W.3d 597, 603 (Tex. 2015); StarNet Ins. Co. v. RiceTec, Inc., 586 S.W.3d 434,

444 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (citing Ewing Constr. Co. v.

Amerisure Ins. Co., 420 S.W.3d 30, 33 (Tex. 2014); Gilbert Tex. Constr., L.P. v.

Underwriters at Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010)). To avoid liability

and a duty to defend, the insurer then has the burden to plead and prove that the loss

falls within an exclusion to the policy’s coverage. Gilbert Tex. Constr., L.P., 327 S.W.2d

at 124. See TEX. INS. CODE ANN. § 554.002 (providing that in a “suit to recover under an

insurance . . . contract, the insurer . . . has the burden of proof as to any avoidance or

affirmative defense that the Texas Rules of Civil Procedure require to be affirmatively

pleaded”).

Specifically, the acts sued on must fall within the policy coverage before a duty to

defend arises. Curb v. Tex. Farmers Ins. Co., No. 11-03-00406-CV, 2005 Tex. App.

LEXIS 4480, at *7-9 (Tex. App.—Eastland June 9, 2005, no pet.) (mem. op.). An

7
insurer does not owe a duty to defend an insured unless the petition in the underlying

lawsuit contains allegations of fact which fall within the scope of coverage provided for

in the policy of insurance. Id. (citing Nat’l Union Fire Ins. Co. of Pittsburg, Pa. v.

Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997)).

To determine the existence of a duty to defend, we apply the “eight corners rule,”

also known as the “complaint allegation rule[.]” Curb, 2005 Tex. App. LEXIS 4480, at *7

(citation omitted) (citing Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821 (Tex.

1997); Nat’l Union Fire Ins. Co. of Pittsburg, Pa., 939 S.W.2d at 141). Our focus is on

the allegations in the petition that show the origin of the damages; the focus is not on

the legal theories alleged. Curb, 2005 Tex. App. LEXIS 4480, at *8 (citing Cowan, 945

S.W.2d at 821-22). We consider the allegations in the petition in light of the policy

terms without considering either the truth or falsity of the allegations or what the parties

know or believe the true facts to be. Curb, 2005 Tex. App. LEXIS 4480, at *8 (citing

Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 24

(Tex.1965)). The same is true even if there has already been a legal determination of

the facts. Curb, 2005 Tex. App. LEXIS 4480, at *8 (citation omitted). We do not look

outside the pleadings and the policy of insurance in our assessment of whether there is

a duty to defend. Id. (citation omitted). If a petition does not allege facts that fall within

the scope of coverage, an insurer is not required to defend a suit against its insured. Id.

(citing Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 848 (Tex.1994)).

However, any doubt as to whether the insurer has a duty to defend should be resolved

in favor of the insured. Archon Invs. v. Great Am. Lloyds Ins. Co., 174 S.W.3d 334, 339

(Tex. App.—Houston [1st Dist.] 2005, pet. denied) (citing King v. Dallas Fire Ins. Co., 85

8
S.W.3d 185, 186 (Tex. 2002); Collier v. Allstate Cnty. Mut. Ins. Co., 64 S.W.3d 54, 59

(Tex. App.—Fort Worth 2001, no pet.)).

Generally, the insurer is obligated to defend if there is, potentially, an action

alleged within the policy coverage, even if the allegations do not clearly show there is

coverage. Archon Invs., 174 S.W.3d at 339 (citations omitted). The alleged underlying

facts determine coverage, not the enumerated causes of action. Id. (citations omitted).

A duty to defend any of the claims requires the insurer to defend the entire suit. Id.

(citations omitted). However, an insurer’s duty to defend its insured is separate and

distinct from its duty to indemnify, which is not based on the pleadings in the underlying

lawsuit but instead on the facts that establish liability according to the provisions of the

insurance contract. Id. (citation omitted). Furthermore, it arises only after the insured

has been adjudicated legally responsible for damages in a lawsuit by judgment or

settlement. Id. The “duty to defend is thus broader than the duty to indemnify; if an

insurer has no duty to defend, it has no duty to indemnify; but an insurer may have a

duty to defend without being ultimately shown to have a duty to indemnify.” Id. (citations

omitted).

We find the court’s decision in Curb to be illustrative in determining whether

Colony had a duty to defend Boatright as it pertains to the dumping of debris on the

Roberts’ property. In Curb, a high school student and some of his friends strung fishing

line around the courtyard at school with the intent of luring their friends there so that

they would trip over the line. Curb, 2005 Tex. App. LEXIS 4480, at *3-4. After the

students strung the fishing line, they went to look for their friends but got distracted

when they found them and forgot about the fishing line. The next night, a teacher left

9
the building and tripped over the line. She was injured and sued the student and his

father for compensation for those injuries. The student sought to have his parent’s

homeowner’s insurance company provide a defense. The insurance company argued

that because the conduct in question was intentional, there was no “accident” and,

therefore, no coverage, and because there was no coverage, it had no duty to defend.

The trial court granted the insurance company’s motion for summary judgment. On

appeal, the appellate court agreed, finding liability did not arise as the result of an

accident because the teacher’s pleadings alleged the student’s acts were exactly what

he intended to do. Id. The court went on to say that “[t]o be accidental, an effect could

not reasonably have been anticipated from the conduct that produced it, and the insured

‘cannot be charged with the design of producing’” the effect. Curb, 2005 Tex. App.

LEXIS 4480, at *11 (citing Mid-Century Ins. Co. of Texas v. Lindsey, 997 S.W.2d 153,

155 (Tex.1999)). Thus, because the injury caused by the student was of the type that

would “ordinarily follow” from his conduct “and the injuries could be ‘reasonably

anticipated from the use of the means, or an effect[,]’” the summary judgment evidence

conclusively established that the insurance company had no duty to defend the student.

Curb, 2005 Tex. App. LEXIS 4480, at *11. Simply stated, there was no accident and,

therefore, no insured occurrence. Id.

We reach the same conclusion here as it pertains to Boatright’s dumping of

debris on the property. The policy in question defines an “occurrence” as “an accident,

including continuous or repeated exposure to substantially the same general harmful

conditions.” “Accident” is not defined in the policy. However, the Texas Supreme Court

has stated that an injury is accidental if “from the viewpoint of the insured, [it is] not the

10
natural and probable consequence of the action or occurrence which produced the

injury; or in other words, if the injury could not reasonably be anticipated by insured, or

would not ordinarily follow from the action or occurrence which caused the injury.”

Lennar Corp. v. Great Am. Ins. Co., 200 S.W.3d 651, 663 (Tex. App.—Houston [14th

Dist.] 2006, pet. denied) (citing Lindsey, 997 S.W.2d at 155) (quoting Republic Nat’l Life

Ins. Co. v. Heyward, 536 S.W.2d 549, 557 (Tex.1976)). Under this rubric, two factors

bear on the determination of whether an insured’s action constitutes an accident: (1) the

insured’s intent and (2) the reasonably foreseeable effect of the insured’s conduct.

Lennar Corp., 200 S.W.3d at 663 (citation omitted).

The pleadings show Boatright clearly intended to move the debris to the Roberts’

property and leave it there. Because the damage to the property was the very presence

of the debris on the property, the damages were a reasonably foreseeable result of

Boatright’s intentional conduct. Furthermore, the damages claimed were of a type that

ordinarily flowed from the conduct, not damages of an accidental nature. The terms of

the policy establish that it does not cover intentional acts of this nature. Here, the

summary judgment evidence established, as a matter of law, that the placement of the

debris on the property was no accident and, therefore, no “occurrence” under the terms

of the policy. Because there was no occurrence, there was no coverage concerning the

dumping of debris.

However, the same is not true with regard to the claims brought by Latray

concerning other negligent acts of Boatright, particularly the damage to the fencing that

occurred as Boatright and Garrett entered and exited the Roberts’ property. Latray

alleged that Garrett, as agent for Boatright, was negligent in operating a commercial

11
vehicle (a dump truck) without authorization of the owner, and among other acts,

knocked down fencing as he drove onto and off the property, causing over $8,000 in

damage. She also notes some of the damage was caused by Garrett’s truck and trailer.

Garrett and Boatright intended to use the dump truck and truck and trailer to move the

debris onto the property. However, they did not intend to damage the fencing on the

property as they did so. As such, Latray contends, the result of damaged fencing was

not a reasonably foreseeable effect of using the vehicles to move debris from the school

to the Roberts’ property.

Nevertheless, the insurance policy here included an auto exclusion. That

provision reads as follows:

Aircraft, Auto or Watercraft

“Bodily injury” or “property damage” arising out of the ownership,
maintenance, use or entrustment to others of any aircraft, “auto” or
watercraft owned or operated by or rented or loaned to any insured. Use
includes operation and “loading or unloading.”

This exclusion applies even if the claims against any insured allege
negligence or other wrongdoing in the supervision, hiring, employment,
training or monitoring of others by that insured, if the “occurrence” which
caused the “bodily injury” or “property damage” involved the ownership,
maintenance, use or entrustment to others of any aircraft, “auto” or
watercraft that is owned or operated by or rented or loaned to any insured.

This exclusion does not apply to:

(1) A watercraft while ashore on premises you own or rent;

(2) A watercraft you do not own that is:

(a) Less than 26 feet long; and

(b) Not being used to carry persons or property
for a charge;

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 (3) Parking an “auto” on, or on the ways next to, premises
you own or rent, provided the “auto” is not owned by or
rented or loaned to you or the insured;

(4) Liability assumed under any “insured contract” for the
ownership, maintenance or use of aircraft or watercraft;
or

(5) “Bodily injury” or “property damage” arising out of:

(a) The operation of machinery or equipment
that is attached to, or part of, a land vehicle
that would qualify under the definition of
“mobile equipment” if it were not subject to
a compulsory or financial responsibility law
or other motor vehicle insurance law in the
sate where it is licensed or principally
garaged; or

(b) The operation of any of the machinery or
equipment listed in Paragraph f.(2) or f.(3)
of the definition of “mobile equipment.”

Latray argues the auto exclusion does not apply “to the completed operations

covered under the policy because the damage was caused by negligent actions and

decision making . . . the dump truck itself didn’t cause the accidental property damages,

but flawed, negligent disposal operations, and negligent decision making. The very fact

[Boatright] operated a commercial dump truck without permission, or a CDL, was failure

to use ordinary care and to act as a reasonably prudent person in attempting to

complete his operations.” Latray also applies this reasoning to the “unloading and

loading” exclusion and says the policy language is ambiguous. We disagree with each

of Latray’s assertions.

Colony argues the auto exclusion quoted above “extinguishes [its] duty to defend

and duty to indemnify Boatright.” We agree. As support for its argument, Colony notes

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the exclusion applies to the “use of an auto” and points us to the Texas Supreme

Court’s opinion in Lindsey, 997 S.W.2d at 157. There, the Court stated as follows:

[f]or an injury to fall within the “use” coverage of an automobile policy (1)
the accident must have arisen out of the inherent nature of the automobile,
as such, (2) the accident must have arisen within the natural territorial
limits of an automobile, and the actual use must not have terminated, (3)
the automobile must not merely contribute to cause the condition which
produces the injury, but must itself produce the injury.

Lindsey, 997 S.W.2d at 157 (citations omitted). See also Lyons v. State Farm Lloyds &

Nat’l Cas. Co., 41 S.W.3d 201, 205 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

A fourth factor is also to be examined: “whether a person is using a vehicle as a vehicle

depends not only on his or her conduct, but on his or her intent.” Tucker v. Allstate Tex.

Lloyds Ins. Co., 180 S.W.3d 880, 887 (Tex. App.—Texarkana 2005, no pet.).

As noted by Colony, the damages in this matter arose from the use of an “auto,”

i.e., the dump truck, that Boatright admitted he borrowed from his mother and that he

admitted he operated to dump the debris onto the Roberts’ property. He said he took

approximately fifteen dump truck loads of about two and a half tons each from the site

to the Roberts’ property. Thus, Boatright’s intent was to use the dump truck as a dump

truck. The damages to the land and to the fencing were a direct result of Boatright’s

use of the dump truck, an “auto” as set forth in the auto exclusion provision of the policy.

Thus, each of the requisites of the test set forth in Lindsey are satisfied here.

Latray also makes a secondary argument that some of the damages were

caused by Garrett’s truck and trailer and that the trailer would be a covered exclusion,

although she argues his negligent actions would be covered as a volunteer worker. We

14
first note that the policy defines “auto” to mean “a land motor vehicle, trailer or

semitrailer designed for travel on public roads, including any attached machinery or

equipment.” Therefore, the exclusion would apply to Garrett’s truck and trailer. Colony

responds to Latray’s additional arguments, stating (1) that Garrett is not a volunteer

worker as defined in the policy, (2) the portion of the policy Latray references related to

medical coverage payments, not the provision at issue here, and (3) that there is no

judgment against Garrett and thus, Colony has no duty to him in any event. Based on

our review of the pleadings and the policy, we agree with each of Colony’s responses.

Additionally, while Latray argues the auto exclusion did not apply because

Boatright did not own the dump truck and was not authorized to use it, neither of those

facts negate the application of the exclusion. Indeed, the exclusion applies to “autos”

that are “operated by or rented or loaned to any insured.” Likewise, the exclusion does

not require that the operator of the “auto” be authorized to use it and even if it did,

Boatright testified his mother permitted him to use the dump truck. Latray does not

make any similar arguments regarding Garrett’s truck and trailer.

Latray’s other arguments supporting her assertion that the exclusion did not

apply also fail. She argues the exclusion did not apply because the damages of which

she complained were not caused “solely” by the use of the dump truck but also through

the use of Garrett’s truck and trailer. The exclusion requires only that the property

damage is of the sort “arising out of” the use of the “auto.” The Texas Supreme Court

has defined the phrase “arising out of” to mean “originating from, having its origin in,

growing out of or flowing from.” Lancer Ins. Co. v. Garcia Holiday Tours, 345 S.W.3d

50, 54 (Tex. 2011). It has also said that “‘arise out of’ means that there is simply a

15
‘causal connection or relation,’ Mid-Century Insurance Co., 997 S.W.2d at 156 (Tex.

1999), which is interpreted to mean that there is but-for causation, though not

necessarily direct or proximate causation.” Utica Nat’l Ins. Co. v. Am. Indem. Co., 141

S.W.3d 198, 203 (Tex. 2004) (citations omitted). A review of the pleadings and the

policy before us certainly show the complained-of damages satisfy these definitions of

“arising out of.”

Latray further argues that the auto exclusion does not apply because the

damages were caused by Boatright’s negligence, including his negligence in failing to

obtain a permit, his negligence in failing to obtain a commercial driver’s license, or his

negligence through failing to supervise Garrett. Even assuming all acts causing the

damages were negligent, the auto exclusion explicitly states, “[t]his exclusion applies

even if the claims against any insured allege negligence or other wrongdoing in the

supervision, hiring, employment, training or monitoring of others by that insured, if the

‘occurrence’ which caused the ‘bodily injury’ or ‘property damage’ involved the

ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or

watercraft that is owned or operated by or rented or loaned to any insured.” Therefore,

we cannot agree with Latray’s contention.

Lastly, Latray argues “[t]he damage was not excluded under this section and is

ambiguous at best, see policy language[.]” While she identifies the page number of the

record on which the policy language may be found, she does not identify which

provision is ambiguous nor does she explain how any provision is ambiguous. Further,

she does not assert an alternative interpretation of the exclusion. As such, Latray has

waived this aspect of her argument and we will not address it. TEX. R. APP. P. 38.9

16
(requiring a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record). We overrule Latray’s first issue.

ISSUE TWO—DUTY TO INDEMNIFY

Similar to the position taken in her first issue, by the second issue, Latray

contended the trial court erred in granting Colony’s motion for summary judgment

because there was a contested fact issue concerning whether Boatright’s actions

constituted an “occurrence” under the policy. Latray argued Boatright’s actions were

negligent in nature rather than intentional, and thus, the policy provided coverage and

the company owed a duty to indemnify. Colony contended the evidence showed

Boatright’s actions were intentional and there was no “occurrence” under the policy,

thus establishing there was no coverage and no duty to indemnify.

The issue of whether Colony had a duty to indemnify is a legal issue to be

reviewed de novo. Great Am. Lloyds Ins. Co. v. Mittlestadt, 109 S.W.3d 784, 786 (Tex.

App.—Fort Worth 2003, no pet.). Under the terms of the policy here, for there to be an

“occurrence,” there must have been an “accident,” causing property damage. As the

parties note, two lines of cases regarding “occurrence” have evolved in this area.

The first line of cases, the “Maupin line,” pertains to coverage of claims against

an insured for damage caused by the insured’s intentional torts. See Argonaut Sw. Ins.

Co. v. Maupin, 500 S.W.2d 633 (Tex. 1973); KB Home v. Emps. Mut. Cas. Co., No. 2-

06-383-CV, 2008 Tex. App. LEXIS 771, at *17-20 (Tex. App.—Fort Worth Jan. 31,

2008, no pet.) (mem. op.) (citing Gehan Homes, Ltd. v. Emps. Mut. Cas. Co., 146

S.W.3d 833 (Tex. App.—Dallas 2004, no pet.); Federated Mut. Ins. Co. v. Grapevine

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Excavation, Inc., 197 F.3d 720, 723 (5th Cir. 1999)). Colony argues that this line of

cases applies here.

In Maupin, the plaintiffs alleged that the insured acted intentionally, wrongfully,

and willfully, when it took fill material from the plaintiffs’ property without their consent.

The appellate court held that there was no “occurrence” because the conduct was

alleged to be intentional. Maupin involved a contract between the State of Texas and

Maupin, part of which entailed the acquisition of “borrow material” for roadway fills.

Maupin, 500 S.W.2d at 634. Maupin contracted with a third party for the purchase of

that material. Id. Maupin then removed about 5,744 cubic feet of the material from the

property. Id. at 635. It was later determined that the person with whom Maupin had

contracted for removal of the material did not own the property but rather, was a tenant-

in-possession. Id. While Maupin argued there was no intent to injure the landowners

and that the removal of the material from the property was done under the authority of a

contract, the court found that intent was irrelevant. Id. The court noted that the damage

complained of there was the removal of the large amount of material from the property

without the owner’s consent. Thus, Maupin “did exactly what they intended to do. The

fact that they did not deal originally with the owners of the property was the mistake or

error. There was no insurance against liability for damages caused by mistake or error.”

Id. Further, the court concluded Maupin’s act in trespassing on the property did not

constitute an accident; Maupin did what they intended to do by removing the material

from the property. Id. Furthermore, the fact that Maupin was unaware of the true owner

of the property had “no bearing upon whether the trespass was caused by accident.

[Maupin’s] acts were voluntary and intentional, even though the result or injury may

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have been unexpected, unforeseen and unintended.” Id. Consequently, the Court

determined there was “no coverage under the policy for damages caused by mistake or

error as to the ownership of the property in question. The damage was not an accident

or occurrence within the meaning of this policy.” Id. at 635.

The second line of cases comes from the Texas Supreme Court’s decision in

Mass. Bonding & Ins. Co. v. Orkin Exterminating Co., 416 S.W.2d 396 (Tex. 1967). In

that case, the Court found that the term “accident,” as used in the insurance policy at

issue, included negligent acts causing damages that were “undesigned and

unexpected.” Id. at 400. Likewise, subsequent cases have held that the terms

“accident” and “occurrence” include damages that are unexpected, unforeseen, or

undesigned as a result of an insured’s intentional, but negligent behavior. KB Home,

2008 Tex. App. LEXIS 771, at *19 (citing Great Am. Ins. Co. v. Calli Homes, Inc., 236

F.Supp.2d 693, 699 (S.D. Tex. 2002)). It is this line of cases Latray seeks to apply to

the insurance policy in question in this proceeding, arguing that the damages to the

Roberts’ property were unexpected and unforeseen based on Boatright’s mistaken

belief that he had permission to deposit the debris on the property.

As is pertinent to the case now before us, one such case interpreting this second

line of cases is the decision by the Dallas Court of Appeals in Hallman v. Allstate Ins.

Co., 114 S.W.3d 656 (Tex. App.—Dallas 2003), rev’d on other grounds, 159 S.W.3d

640 (Tex. 2005), wherein the court observed:

There is not an accident when the action is intentionally taken and
performed in such a manner that it is an intentional tort, regardless of
whether the effect was unintended or unexpected. However, there is an
accident when the action is intentionally taken but is performed negligently

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 and the effect is not what would have been intended or expected had the
deliberate action been performed non-negligently.

Id. at 660-61 (citations omitted). Similarly, in 2004, in Gehan Homes, Ltd., 146 S.W.3d

at 842, the Dallas Court of Appeals analyzed the situation before it in light of the

language in Hallman and determined that the insurers did not establish as a matter of

law that the petition failed to allege an “occurrence” under the terms of the policy where

the “intentional act of performing the contract was allegedly performed negligently. The

purported damage was an unexpected and undesigned consequence of Gehan’s

alleged negligence.” Id. at 843 (citations omitted).

We do not agree the same is true here regarding the dumping of debris. The

undisputed evidence in the record before us shows Boatright intended to move the

debris onto the Roberts’ property and he intended to leave it there. Furthermore, there

were no allegations that Boatright was negligent in the performance of those acts. The

damage sustained was the consequence of the simple presence of the debris on the

Roberts’ land. This is similar to, albeit the reverse of, the removal of material from the

land in Maupin. There, Maupin intended to remove the material from the property and

the damage to the land was the removal of that material—under the mistaken belief

they had permission to do so—resulting in a finding of no accident and no insurance

coverage against liability for damages caused by that mistake or error. Maupin, 500

S.W.2d at 635. Nothing in the record indicates Boatright’s intentional acts were

performed negligently, as in Orkin. Rather, the contract with the City of Kosse required

Boatright to demolish the old high school and remove the debris. In the performance of

that contract, Boatright intentionally removed the debris and placed it on the Roberts’

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property—under the mistaken belief he had permission to do so—resulting in damage to

the property from the mere presence of the debris itself, not some unintended

consequence of Boatright’s intentional act.

Additionally, Boatright’s conduct is distinguishable from the conduct of the

exterminator in Orkin who intentionally sprayed the rice mill but did so in a negligent

manner, resulting in unexpected damages to the rice. Orkin Exterminating Co., 416

S.W.2d at 400-01. Had that contract been performed properly, the rice would not have

been damaged at all. Conversely, in this case, no matter how carefully Boatright

performed the acts he did, the same damages would still have occurred. Because the

damages sustained in this cause were not proximately caused by an error or mistake

and not by any negligent acts, Boatright’s conduct and resultant liability are far more

akin to the contractor in Maupin than it is the exterminator in Orkin. As such, under the

pleadings and facts of this case, we find the Maupin line of cases to be controlling.

We have reviewed the summary judgment record and there is nothing in the

record which would show Boatright’s actions were anything other than intentional.

Typically, whether an insured intended the injury to occur is a question of fact. Curb,

2005 Tex. App. LEXIS 4480, at *13-14 (citation omitted). However, there are instances

where the actions of an individual are intentional as a matter of law. Id. The origin of

the injury in this case was Boatright’s deposit of debris on the Roberts’ land. “When a

result is the natural and probable consequence of an act or course of action, it is not

produced by accidental means. The natural result of an act is the result that ordinarily

follows, maybe reasonably anticipated, and ought to be expected.” Id. This is an

objective standard. Id. Further, a “person is held to intend the natural and probable

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results of his acts even if he did not subjectively intend or anticipate those

consequences.” Id. (citing Wessinger v. Fire Ins. Exch., 949 S.W.2d 834 (Tex. App.—

Dallas 1997, no pet.)). Thus, Boatright acted intentionally even if he did not intend the

result, i.e., to injure the Roberts. According to Boatright, he believed Garrett to be the

owner of the land and that Garrett was using the debris for erosion control. According

to Garrett, he believed he was doing the right thing by using the debris for erosion

control. But, none of that is relevant to whether Boatright’s actions were intentional and

thus not covered by the terms of the policy. Based on the record before us and

reviewing the evidence in the requisite light, we find there was no “occurrence” under

the policy and consequently, no coverage as it pertains to the dumping of the debris on

the Roberts’ property.

That said, as with the duty to defend, the same is not true with regard to Latray’s

claims of negligence with regard to other negligent acts like the damages to the fencing.

As we have discussed in our analysis herein, the conduct of moving and dumping the

debris was an intentional act. But, as Latray alleged in her pleadings, the damage to

the fencing on the Roberts’ property occurred through the negligent use of the dump

truck and Garrett’s truck and trailer during ingress and egress to the property and during

dumping of the debris. Garrett and Boatright caused damage to the fencing by their use

of the vehicles but the damage to the fence was “unexpected, unforeseen, or

undesigned” as a result of their intentional but negligent use of the vehicles. This is akin

to the negligent spraying that occurred in Orkin. See Orkin Exterminating Co., 416

S.W.2d at 400-01. In that case, if the spraying had been performed properly, there

would have been no damage to the rice. Here, if Garrett and Boatright had properly

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used the vehicles to enter and exit the property and while dumping the debris, the

fencing would not have been damaged. However, as we discussed at length in our

analysis of Colony’s duty to defend, the auto exclusion included in the policy applies

here and therefore, there was no coverage and Colony has no duty to indemnify

Boatright. See Collier v. Allstate County Mut. Ins. Co., 64 S.W.3d 54, 62 (Tex. App.—

Fort Worth 2001, no pet.) (finding no duty to indemnify for same reasons there was no

duty to defend). See also Yorkshire Ins. Co. v. Diatom Drilling Co., 280 S.W.3d 278,

283 (Tex. App.—Amarillo 2007, pet. denied) (rendering take-nothing judgment against

alleged insured due to policy exclusion). We overrule Latray’s second issue.

REMAINING ISSUES

Latray also brought claims of violations of the DTPA, Texas Insurance Code, and

common law duty of good faith and fair dealing. However, in her motion for rehearing,

she does not identify any specific error in this court’s opinion with regard to those

claims. We thus will not further address those remaining issues.

CONCLUSION

We deny Appellant’s Motion for Rehearing for the reasons stated herein and

affirm the judgment of the trial court.

Patrick A. Pirtle
Justice

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