Hartford Fire Insurance v. Rainbow Drilling Co.

J. CURTISS BROWN, Justice,

dissenting.

Hartford Fire Insurance Co. [Hartford] appeals from a bench trial. Rainbow Drilling Company, Inc. [Rainbow] is the appel-lee. Union City Transfer Company [Union City] is the named insured. Rainbow sought a declaratory judgment that Hartford’s automobile liability policy obligated it to defend and cover any loss established against Rainbow as an “insured” under the policy. After a bench trial on the merits the court rendered judgment declaring a duty to defend. The court below did not pass on the ultimate question of loss because a decision on loss would be advisory.

As trier of fact, the judge made findings of fact and conclusions of law fully supporting his judgment. The appellant attacks the legal and factual sufficiency of these findings of fact. The policy excludes obligations for which the insurer is liable under workers compensation law. The appellant contends this exclusion applies. These attacks are wholly without merit. The judgment of the trial court, sitting without a jury, should surely be affirmed.

The trial court’s findings of fact and conclusions of law clearly indicate that the court properly applied the law to the facts. Findings of fact number fourteen and number sixteen state:

14. The pleadings of the Plaintiff in the case of Moore v. Rainbow Drilling Co., Inc., Cause No. 18,183, allege that an employee of Rainbow Drilling Co. acting within the course and scope of his employment by Rainbow, was directing a Union City Transfer, Inc. employee who was operating a Union City Transfer, Inc. vehicle which was Union City’s twelve ton gin pole truck model DC 93643, at the time of Randy Moore’s accident, and that such “directing” was the cause of Randy Moore’s injuries and damages. Such “directing” constituted a “using” of the vehicle sufficient to in*268voke the provisions of the insurance policy in question.
16. Rainbow Drilling Company, Inc., pursuant to the terms and definitions of New York Underwriter’s Insurance Company Policy No. 61 PNC 164546, and by virtue of the allegations contained in the pleadings of the plaintiff, Randy Moore in cause no. 18,183, qualifies as an “insured” under such policy of insurance.

Conclusion of law number four states “[t]hat it is the sole obligation of New York Underwriters Insurance Company to provide the defense for Rainbow Drilling Company in the Randy Moore law suit, cause no. 18,183 by governing legal principles.”

In this area of law the following propositions seem to be established:

(1) In Texas the duty to defend is determined solely from the face of the pleadings and without reference to facts outside the pleadings. In determining the duty of the liability insurance company to defend a lawsuit brought against the insured, Texas courts should consider allegations of the complaint in light of the policy provisions without reference to truth or falsity, the parties’ knowledge or beliefs, or a legal determination of actual facts. Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973); Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1955).
(2) The insurer is obligated to defend if there is potentially a case under the complaint within the coverage of the policy. Heyden, 387 S.W.2d at 26 (quoting 50 L.2d 458, 504).
(3) In applying the “pleadings only” rule the court should indulge the most liberal interpretation of the allegations of which they are susceptible and doubts as to the import of the allegation should be resolved in favor of the insured. See Heyden, 387 S.W.2d at 26; Mary Kay Cosmetics, Inc. v. North River Ins. Co., 739 S.W.2d 608, 612 (Tex.App.—Dallas 1987); Norvell Wilder Supply Co. v. Employers Cas. Co., 640 S.W.2d 338, 340 (Tex.App.—Beaumont 1982, writ dism’d).
(4) If the petition alleges at least one cause of action within the policy coverage the insurer must defend. Rhodes v. Chicago Ins. Co., 719 F.2d 116, 119 (5th Cir.1983).
(5) Courts must generally construe insurance contracts strictly against the insurer and in favor of the insured. Ramsay v. Maryland Am. Gen. Ins. Co., 533 S.W.2d 344, 349 (Tex.1976); United Am. Ins. Co. v. Selby, 161 Tex. 162, 338 S.W.2d 160, 164 (1960). Where two or more constructions are possible, one of which would provide coverage and one which would not, the construction which provides coverage is favored. Blaylock v. American Guar. Bank Liab. Ins. Co., 632 S.W.2d 719, 721 (Tex.1982). The objective of an insurance policy is to insure; courts should not construe the policy otherwise unless the language clearly requires it. Goswick v. Employers’ Cas. Co., 440 S.W.2d 287, 289 (Tex.1969). If the petition does not state facts sufficient to clearly indicate or negate coverage, the insurer must defend if there is potentially a case under the complaint within the coverage of the policy. Fort Worth Lloyds v. Garza, 527 S.W.2d 195, 199 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.); St. Paul Ins. Co. v. Rahn, 641 S.W.2d 276, 279 (Tex.App.—Corpus Christi 1982, no writ).

Hartford concedes the plaintiff’s allegations “generally” determine the duty to defend. The majority opinion recites entirely irrelevant outside “facts” unsupported by any evidence introduced at trial. Sound insurance law demands we decide the duty to defend solely on the basis of the petition and the insurance policy. Deferring the duty to defend until a court determines the truth or falsity of the allegations would significantly damage both insureds and insurers.

The allegations at issue here are:

*269That on August 11, 1981, Plaintiff was an employee of Union City Transfer, Inc. (hereafter called Union City) of Beaumont, Texas. That defendant Rainbow was the owner of a certain oil well drilling rig # 4, and Union City contracted to move said rig from a drill site near Mont Belvieu, Texas, to a drill site approximately 7 miles west of the City of Lyons, Burleson County, Texas, by use of various trucks and employees of Union City.
That on such date, Defendant Rainbow’s employees were engaged in assembling the substructure of such rig over the site for the oil well to be drilled in Burleson County, Texas; and in an attempt to properly align the substructure in the process of its assembly, Defendant Rainbow’s employee directed a Union City employee operating a Union City gin pole truck to lift the rig substructure with the gin pole truck winch cable.
That the rig substructure was too heavy a load for the gin pole truck to lift and the truck was placed under such a strain that its front wheels lifted completely off the ground as its winch tugged upon the rig substructure.
That notwithstanding the obvious dangerous strain and punishment that Union City gin pole truck was being subjected to, Defendant Rainbow’s said employee continued to direct Union City’s gin pole truck driver to pull with the winch in a vain attempt to move the substructure into proper position.
That as the gin pole continued in its fruitless efforts to lift the substructure and with its front wheels lifted off of the ground, the cable used to hold the truck’s gin poles in position broke under the strain; whereupon, the gin poles fell and struck Plaintiff in the neck thus causing him the devastating injuries hereinafter described.1

The applicable policy provision states “persons insured” includes the named insured (Union City) and:

any other person while using an owned automobile or a hired automobile with the permission of the named insured, providing his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person shall be an insured only if he is:
(1) a lessee or borrower of the automobile, or
(2) an employee of the named insured or of such lessee or borrower... .2

Norman Bookout, a duly qualified expert, testified on behalf of the appellee. Bookout quoted language from the policy that:

[t]he company [appellee] will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damages to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, and including loading and unloading, of any automobile, and the company shall have the right and duty to defend any suit against the insured seeking damage on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limits of the companies liability has been exhausted by payment of judgments or settlements.

He then testified that the term “persons insured” includes (c), “any other person while using an owned automobile or a hired automobile with the permission of the named insured, providing his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission.” The following also appears: “but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person *270shall be insured only if he is a lessee or a borrower of the automobile or an employee of the named insured or of such lessee or borrower.” With reference to the Randy Moore lawsuit Bookout testified the loading and unloading provision does not apply to deny coverage. Bookout explained that the word “thereof,” properly construed, meant the exception applied to deny coverage for accidents in unloading the particular automobile (the gin pole truck) and not accidents in the general operation of the automobile. Under the allegations of the petition in the Randy Moore lawsuit, the truck involved was not being loaded or unloaded. It was being used to align a substructure.

No allegation in the Moore petition states the gin pole truck (the insured vehicle) had ever been loaded with anything. Any inference would be to the contrary since such a vehicle would be for “work” rather than “transport.” While not necessary to an affirmance of this case, the allegations of Moore’s petition are consistent with Rainbow being a “lessee” or “borrower.” Clearly, the workers compensation exclusion is an affirmative defense not plead or involved in the “duty to defend” question presented.

In light of the policy provisions, the allegations of the Moore petition, and the findings of fact and conclusions of law, the judgment of the trial court was right and should be affirmed.

. Emphasis added.

. Emphasis in original.