dissenting.
I respectfully dissent to my brethren’s opinion and would defer to the jury’s verdict on the issue that was properly submitted to it. The following sentence from the majority’s opinion contains the heart of its holding: “We hold that these undisputed facts establish as a matter of law that the liability of Performance in the underlying lawsuit was solely based upon its performance of professional services, management consulting, not on the sale of a product.” I agree that there are facts to support this conclusion; however I disagree that those facts are “undisputed.” If the jury had reached a different conclusion, I would affirm; however, I submit that the term “management consultant” as contained in the professional services exclusion was ambiguous, and that there were disputed *139facts with respect to whether the services undertaken by Performance were professional management consulting services. I read the testimony as containing each parties’ good faith assertions regarding their understanding of the policy and its coverage. However, I believe the policy leaves room for confusion and misunderstanding regarding its coverage because of the ambiguity of the term “management consultant.”
The policy clearly excludes any liability arising out of “management consultant” work undertaken by Performance to the extent that work constitutes a “professional service.” However, “management consultant” is never defined in the policy. State Farm Lloyds argues that “management consultant” should be accorded the “plain, ordinary meaning of ‘management consultant.’ ” I do not believe there is a “plain, ordinary meaning.” Listing “management consultant” as an excluded professional service in the policy does not clarify as a matter of law what is being excluded, and the facts presented at trial with respect to its meaning are clearly not “undisputed.” Johnston, the president of Performance, gave a description to the insurance company of some of the things Performance did. What Johnston said though was not made a part of the policy. Furthermore, it was State Farm Lloyds belief that Johnston was describing services that met the definition of “professional services” so as to be excluded from coverage. Certainly, Johnston did not request that State Farm Lloyds construe his services to be professional services so that they would be excluded from coverage.
Johnston’s description of the services Performance provided is evidence of his understanding of “management consultant” services, but Johnston testified that he did not believe that the service provided in this case was included in the definition of the term “management consultant.” State Farm Lloyds believes that it is. Both sides presented testimony to support them view of the language used.
Of course, the parties’ varying interpretation of the contract does not make the contract ambiguous. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995). If so, every time there was a dispute over a contract there would be an ambiguity. However, in this case, the lack of definition of the duties included in the term “management consultant” leads to a circular interpretation of what is covered and what is excluded. Consider the following testimony of Sue Noll, the claims superintendent for State Farm Lloyds:
Q. And can we fairly understand, Ms. Noll, that the first thing that this policy does, it excludes professional services.
A. Yes, sir.
Q. Can you testify before this jury that if the services that are the subject of the exclusion are not professional, that they are not excluded by this exclusion?
A. Services Mr. Johnston would perform? Is that what you’re asking me? I’m not sure. Could you say it again? I’m sorry.
Q. Well, you have in your mind an idea of what the definition of professional services is; correct?
A. Yes, sir.
Q. And so if the services that are the subject of a dispute are not professional services, would you agree they are not excluded under this exclusion?
A. Yes, sir, I gave you some examples. If Mr. Johnston dropped a VCR or if he knocked over an easel or if the carpet was possibly torn or buckled, those are operations that — -that are part of his operations that would have been covered.
Q. And would you further agree with me that not all professional services are excluded from this policy? Only professional services that involve management consultant are excluded?
A. That’s the description, yes, sir; management consultant. And we felt he was advising management at Sumar.
Q. I understand your position in that regard. But will you agree that there are — in order to fit under this exclusion, the services had to be profession*140al and they had to be management consultant both?
A. Management consultant was his professional services. Yes, sir.
Q. So you’re saying there’s one test. I’m asking you, will you agree that there are two?
A. I don’t see two. I don’t understand what you’re saying two.
Q. Okay. But you’re in agreement to say that the only thing that’s excluded is professional services of a management consultant.
A. Yes, sir, that’s correct.
If the duties of a management consultant can be given a certain legal meaning and it can be determined that such services constitute professional services as a matter of law, then the jury’s services were not needed. However,- in order to reach those decisions as a matter of law in this ease, we are required to hold that “management consultant” has a clear legal meaning despite the disputed facts that presented two interpretations regarding its meaning. Furthermore, we would be required to hold that a pre-employment test is not only a service performed by a “management consultant” but that such a service is a “professional service,” which the trial court defined as follows:
“[Pjrofessional services” means services involving labor, skill, education and special knowledge. The labor and skill involved are predominantly mental or intellectual rather than physical or manual. It is the essence of professional services that the compensation or profit is dependent mainly upon the personal qualifications of the person by whom it is carried on.
I cannot reach such a holding from the record presented.
If the professional service was “aircraft pilot,” I would agree that the professional duties included in that service are unambiguous. Aircraft pilots use their labor, education and special knowledge to fly airplanes. Likewise, I would agree that the professional duties included in professional “medical services” are unambiguous and would include the treatment of injured and diseased people which requires labor, skill, education and special knowledge. But a “management consultant” is a much softer term, and it means different things to different people. Furthermore, reasonable minds could differ as to which duties performed by a management consultant are professional services, requiring labor, skill, education and special knowledge. In my opinion, it is this later disagreement that was the basis for the Beaumont court’s holding in Aetna Fire Underwriters Ins. Co. v. Southwestern Engineering Co., 626 S.W.2d 99, 101 (Tex.App.—Beaumont 1981, writ ref'd n.r.e.). The Beaumont court was unable to agree that the service at issue required “engineering education, training and experience in the application of special knowledge of the mathematical, physical, or engineering sciences, so as to constitute the practice of professional engineering.” Id. Therefore, the court’s inability to find a “professional” component to the service at issue was the basis for its opinion. See id.
I recognize State Farm Lloyds position that if you couple certain statements of Johnston with the words used in the policy, there is no ambiguity because Johnston has defined the duties of a management consultant with his statements. However, the policy does not contain Johnston’s statements, and if we need to consider his statements to understand what the policy excludes, then by definition, there is an ambiguity. And this ambiguity encompasses both the question of what duties are performed by a management consultant and the question of which of those duties are professional services.
The jury was asked the following:
Do you find that damages were assessed against Performance in the underlying lawsuit due to the rendering or failure to render any professional service with respect to management consulting.
The jury was provided a definition of “professional services.” The jury, having been correctly charged and instructed, found that Performance’s damages were not due to the “render[ing][ofj any professional service with respect to management consulting.” Because the evidence was disputed as to whether the service at issue in this case was included in the definition of management consultant and, if so, whether the service *141was a professional service, I would follow the jury’s verdict, hold the exclusion did not apply, and affirm the trial court’s judgment.