Greenwood Insurance Group, Inc. v. United States Liability Insurance Co.

TERRY JENNINGS, Justice,

concurring.

I write separately to emphasize that this declaratory judgment action over insurance coverage boils down to the construction of an unambiguous contract.

Appellant, Greenwood Insurance Group, Inc. (Greenwood), challenges the trial court’s rendition of summary judgment in favor of appellee, United States Liability *452Insurance Company (USLIC), which declared that USLIC is under no duty to “defend ... or indemnify” or “defend and/or indemnify” Greenwood, under an insurance agents’ and brokers’ professional liability insurance policy, in two lawsuits brought against Greenwood by All-Tex Roofing, Inc. (All-Tex).1 In three issues, Greenwood contends that the trial court erred in declaring that USLIC owed no duty of defense and no duty of indemnification to Greenwood for all claims asserted against Greenwood by All-Tex and in granting summary judgment with respect to Greenwood’s affirmative defenses of waiver and estoppel.

Background

Greenwood, an insurance agent and broker, purchased an insurance agents’ and brokers’ professional liability policy from USLIC that provided Greenwood with coverage for its alleged negligent acts or omissions arising from the services it rendered for others as an insurance agent or broker. The policy contained the following exclusion of coverage:

This policy does not apply to, and [USL-IC] will not defend or pay Loss for, any Claim arising out of, directly or indirectly resulting from, based upon or in any way involving any actual or alleged:
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L. Placement of a risk or an insurance or reinsurance contract, policy or other risk transfer mechanism, device or funding vehicle with any insurance company, reinsurer, self-insured trust, group insurance trust, risk retention group, joint underwriting association or other risk assuming entity that is not rated B + or higher by A.M. Best Company at the time of placement and
1. becomes insolvent or bankrupt
2. is undergoing receivership, rehabilitation, or liquidation proceedings; or
3. fails to meet all or part of any legal or financial obligation.
Such claim is not covered by this Policy regardless of whether the placement is alleged to have occurred alone, in combination with, or in a sequence with any Wrongful Act or legal obligation which is covered by this Policy.

(Emphasis added.)

Greenwood subsequently obtained a $1,000,000 primary layer of comprehensive general liability insurance for All-Tex, one of its clients, from Resure, Inc. (Resure), a surplus lines carrier with a “B” rating, which was a member of the Illinois Insurance Exchange. During the Resure policy period, Braulio Guillen sued All-Tex and obtained a judgment for $1,500,000.2 However, while Guillen’s lawsuit was pending, an Illinois court declared that Resure was insolvent and placed it in liquidation.

All-Tex then sued Greenwood, who turned to USLIC to provide a defense and to indemnify it against All-Tex’s claims. USLIC, subject to a reservation of its rights based in part on the above exclusion, assigned counsel to defend Greenwood against All-Tex’s claims. While this first All-Tex suit was on appeal to this *453Court,3 All-Tex filed a second lawsuit against Greenwood, alleging a cause of action for breach of contract. After defending Greenwood for almost two years, USLIC filed the instant case seeking a declaration that it did not owe Greenwood a duty to defend or indemnify it against All-Tex’s claims.

Analysis

In its first two issues, Greenwood argues that the trial court erred in declaring that USLIC owed no duty to defend and no duty to indemnify Greenwood because All-Tex “has asserted claims against Greenwood which are not dependent upon or related to the insolvency of Resure, Inc.” (Emphasis added.) Greenwood contends that, because “such claims asserted against Greenwood have nothing to do with the insolvency of Resure, Inc., the ‘insolvency exclusion’ does not apply to bar USLIC’s defense and indemnity obligations to Greenwood.”

Specifically, Greenwood argues that All-Tex has not been damaged by Greenwood’s conduct because the judgment in Guillen’s lawsuit was never covered under the Resure policy. Greenwood asserts that the Resure policy contained an exclusion for bodily injury claims asserted by any employee of All-Tex and that there is a fact issue as to whether Guillen was an employee of All-Tex. Greenwood thus concludes that “the insolvency and financial condition of Resure, Inc. is absolutely irrelevant and unrelated to any conduct of Greenwood since there would be no coverage under the Resure, Inc. policy in any event.” Greenwood contends, moreover, that the “professional negligence claims” asserted by All-Tex are “clearly covered by the USLIC policy and are unrelated to the insolvency or financial condition of Re-sure, Inc.”

Insurance contracts are subject to the same rules of construction as ordinary contracts. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 823 (Tex.1997); Hanson v. Republic Ins. Co., 5 S.W.3d 324, 328 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). Accordingly, when a contract permits only one interpretation, we construe it as a matter of law and enforce it as written. Upshaw v. Trinity Cos., 842 S.W.2d 631, 633 (Tex.1992); Hanson, 5 S.W.3d at 328. We must strive to effectuate the contract as the written expression of the parties’ intent, and we must attempt to give effect to all contract provisions, so that none will be rendered meaningless. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998); State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995).

The insurance agents’ and brokers’ professional liability policy in question expressly provided that it did not apply to, and USLIC would not defend or pay loss for, “any Claim arising out of, directly or indirectly resulting from, based upon or in any way involving any actual or alleged” placement of an insurance policy “with any insurance company ... that is not rated B + or higher by A.M. Best Company at the time of placement and ... becomes insolvent or bankrupt.” The bottom fine is that USLIC did not want and did not assume the risk of defending and indemnifying Greenwood for professional liability claims made against it “involving ... any insurance company ... that is not rated B + or higher ... and ... becomes insolvent.” By obtaining insurance for All-Tex from Resure, a “B” rated company, Green*454wood assumed the risk that Resure would become insolvent and that Greenwood would not be covered for any claims brought against it “in any way involving” Resure.

Here, it is undisputed that Resure had a “B” rating at the time of placement and that it, in fact, became insolvent. Greenwood’s arguments that All-Tex’s claims “are not dependent upon or related to the insolvency of Resure” matter not. All of the claims asserted by All-Tex against Greenwood, at the very least, involved, Re-sure, an insurance company that was not rated “B + ” or higher and that became insolvent. Thus, I agree that USLIC had no duty to defend or indemnify Greenwood against the claims made by All-Tex, and I would overrule Greenwood’s first two issues.

Moreover, I would overrule Greenwood’s third issue, i.e., that the trial court erred in rendering summary judgment with respect to Greenwood’s affirmative defenses of waiver and estoppel, because it is premised on the inapplicability of the above exclusion, upon which USLIC based, in part, its reservation of rights.

Conclusion

For these reasons, I would affirm the judgment of the trial court. Accordingly, I concur in the judgment of this Court.

. All-Tex Roofing Inc. v. Greenwood Ins. Group, Inc., M.V. Jensvold & Co., Inc., and Exch. Broker Servs., Cause No. 99-28656, 152nd District Court Harris County, Texas; All—Tex Roofing Inc. v. Greenwood Ins. Group, Inc. and M.V. Jensvold & Co., Inc., Cause No. 2002-05736, 129th District Court, Harris County, Texas.

. Braulio Guillen v. All-Tex. Roofing Inc. et al., Cause No. 97-09452, 61st District Court Harris County, Texas.

. See All-Tex Roofing v. Greenwood Ins. Group, Inc., 73 S.W.3d 412, 414 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).