concurring in part and dissenting in part.
I agree with the majority that the trial court erred in concluding that Zurich breached its duty of good faith and fair dealing by refusing to defend First South. Otherwise, I would affirm the trial court in all respects, and I must therefore respectfully dissent.
My departure from the majority begins with the order of consideration of the two remaining issues. The majority first concludes that Snug Harbor’s claim against First South was not covered by the policy, and then easily concludes that Zurich had no duty to defend First South. In other words, because the majority now concludes, after the fact, that Snug Harbor’s claim was not covered, it also concludes that Zurich’s refusal to defend was reasonable, given the information available to Zurich at the time it made this decision.
This approach begs the question. Obviously, at the time Zurich decided not to defend First South, Zurich did not have the benefit of this decision. Moreover, as the issue of whether the mishandling of a legal document constitutes “property damage” under a CGL policy is one of first impression, there was little if any case law available to guide Zurich’s decision.1
Under Texas law, an insurer’s duty to defend its insured is much broader than its duty to indemnify. While the insurer is bound to pay only those claims that are in fact covered by the policy, it must defend its insured against all claims that are potentially covered. Enserch Corp. v. Shand Morahan & Co., 952 F.2d 1485, 1492-93 (5th Cir.1992). Moreover, an insurer will not be held liable for denying coverage if its denial was based on a reasonable and legitimate, although erroneous, construction of the policy,2 but it will be held liable for the breach of its duty to defend unless it can demonstrate that, after resolving all doubts in favor of the insured, a reasonable person could have concluded that there was a reasonable basis to refuse to defend the claim. Enserch Corp., 952 F.2d at 1492. Applying these standards to the facts of the instant case, I conclude that Snug Harbor’s claim was at least potentially covered by the Zurich policy.
*548More than forty years after the invention of the computer, the notion that information alone may constitute property is no longer a novel one. Indeed, at oral argument, Zurich agreed that the loss of a computer disc could constitute property damage for purposes of a CGL policy. Zurich’s counsel asserted, however, that the loss of a computer disc or a document would only constitute property damage if the information contained therein has some uniform market value that is the same for all individuals — such as a trade secret. The majority apparently agrees stating that
[t]he Campbell petition and citation had no intrinsic value or use beyond notifying Snug Harbor that legal action had commenced against it. The substantive loss resulting from the alleged mishandling of this documentation is loss of that notice, which resulted in a default judgment. We find that, as a matter of law, such a loss does not constitute a “property loss” for CGL policy purposes.
While there is much to be said for this argument, I am not entirely persuaded. In my view an argument can be made that, in a particular case, the loss of a document may constitute property damage if the information contained in that document had some identifiable value to the document’s owner or intended recipient, even though the information contained in the document has no market value.
Arguably there is little difference between a person who is deprived of a document containing a trade secret or the like and a person who is deprived of a document containing information which is valuable to him given his particular circumstances, although it may be of little value to others. For example, the purchaser of a machine may receive a document that explains how to start and operate the machine. This information may be of little interest to those who do not own such machines and may not have a market value — the information may be available in library books and the manufacturer may be willing to provide a duplicate copy at no charge if the original is lost. If the machine’s owner is deprived of the document while out on a job site far from libraries and FAX machines, however,, he will certainly suffer a loss, and, to my mind at least, it is difficult to distinguish this loss from the loss suffered' by one who loses a document containing a trade secret or the like. Certainly a market exists for trade secrets, while one does not for the document in the hypothetical; but this is not, to my mind, a meaningful distinction. In both instances, the owner has been deprived of valuable information. The fact that no market exists for the information lost by the machine owner in no way lessens or diminishes his loss. Nor does the existence of a market for trade secrets somehow transmogrify the document containing the trade secret into property: while no market exists for the machine owner’s document, he would probably be willing to pay a great deal for its return in the circumstances hypothesized above.
Similarly there is arguably little difference between the petition and citation in this case and those types of documents the loss of which everyone agrees would constitute property damage under a CGL policy. Although information contained in a petition and citation may be of little value to one who is not a party to the lawsuit, it is normally quite valuable to the party that has been sued. If the party filing a lawsuit were not required by law to notify the party being sued, surely those entities that are sued repeatedly would be willing to pay some private firm to gather and disseminate this information.
All this is not to say that the majority’s conclusion that Snug Harbor’s loss was not covered by the policy is not correct. However, the question is whether, at the time Zurich declined to defend First South, First South’s claim was potentially covered by the policy. In my view, the arguments the majority uses to support its conclusions that Zurich had no duty of coverage only serve to highlight the fact that First South’s claim was at least potentially covered by the policy.
Similarly, although I find the majority’s arguments persuasive, I must also respectfully dissent from the majority’s conclusion *549that Snug Harbor’s loss was not covered by the Zurich policy. Although this issue is governed by Texas law, the question has never been addressed by any Texas court. Moreover, there is no suggestion that any improper evidence was received or that Plaintiff-Appellee’s counsel engaged in improper jury argument or other untoward conduct. Under such circumstances, I do not think an appellate court should be so willing to set aside the hard work of this seasoned and thoughtful trial court on the ground that no reasonable jury could have reached the conclusion that a jury did, in fact, reach. This is especially true where, as here, the appellate decision does not settle or clarify a broad issue of law. In my view, today’s decision is a narrow one: unless and until the Texas Supreme Court says otherwise, the loss of a document such as a petition and citation will not constitute property damage under a CGL policy. Beyond this, I do not think that this decision settles or clarifies any significant aspect of insurance law. Rather, I think that this decision will only serve to encourage insurers not only to deny coverage but also to refuse to defend their insureds even in the face of potential liability and an absolute dearth of legal authority supporting such refusals.
In my view, with the exception of the submission of the bad faith issue to the jury,3 the trial judge and jury did an excellent job under difficult and trying circumstances. Despite an absence of authority for such a result, the majority chooses to disregard the work of a remarkably conscientious trial court and to substitute its own judgment. Therefore, save and except for the bad faith issue, I would affirm the trial court in all respects, and I must therefore respectfully dissent.
. The cases relied on by the majority concern instances where an insurer refused to defend a claim that was clearly not covered given the express terms of the policy. See, e.g., Fidelity & Guar. Ins. Underwriters v. McManus, 633 S.W.2d 787 (Tex.1982); Thornhill v. Houston Gen. Lloyds, 802 S.W.2d 127 (Tex.App.-Fort Worth 1991, no writ). Such is not the case here.
. See, e.g., Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 213 (Tex.1988).
. This was only a minor error. While a finding of bad faith may not be based solely on the breach of a duty to defend, a jury may find that an insurer breached its duty of good faith and fair dealing by refusing to provide coverage or by failing to determine whether it was reasonable to deny coverage. State Farm Mutual Auto. Ins. Co. v. Zubiate, 808 S.W.2d 590, 597 (Tex.App.-Beaumont 1991, writ denied). Thus, instead of asking the jury whether Zurich’s failure to defend was a breach of its duty of good faith and fair dealing, the trial court should have asked whether Zurich’s failure to provide coverage was a breach of its duty.