Mid-Continent Casulty Company v. Global Enercom Management, Inc ( 2009 )

Affirmed and Majority and Concurring and Dissenting Opinions filed July 21, 2009

Affirmed and Majority and Concurring and Dissenting Opinions filed July 21, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-01006-CV

____________

MID-CONTINENT CASUALTY COMPANY, Appellant

V.

GLOBAL ENERCOM MANAGEMENT, INC., Appellee

On Appeal from the 215th District Court

Harris County, Texas

Trial Court Cause No. 2002-65400

C O N C U R RI N G  A N D   D I S S E N T I N G    O P I N I O N

Allstates Construction Company (AAllstates@) was the named insured on a Comprehensive General Liability policy(ACGL@) and a Commercial Auto Policy (ACAP@) issued by Mid-Continent Casualty Company.  Allstates entered into a contract with Global Enercom Management, Inc. (AGEM@) to replace guy wires on a cellular phone tower. Allstates employees rigged a pulley and rope system in preparation to ascend a tower, knowing that the source of power would be a pick-up truck operated by another employee.  Another Allstates employee attached the rope to eye-hooks on the truck=s front bumper, and after receiving hand signals from fellow employees, knowingly and intentionally used the truck to lift the three Allstates employees high inside the tower.  The following designed and engineered features of the truck were employed to lift Allstates employees high inside the tower: (1) bumper or frame with eye-hooks (2) steering wheel (3) engine (4) gears (5) wheels (6) brakes. The tension in the rope created by power from the truck engine, the weight of three employees, and other factors, caused the rope to break.

The majority opines that Exclusion g does not preclude coverage because Athe workers= deaths did not arise out of the use of a motor vehicle.@  Referring to the causation requirement of the arise-out-of-use test outlined in Mid-Century Ins. Co v. Lindsey, 997 S.W.2d 153, 157 (Tex. 1999), the majority concludes that Athe pick-up truck simply provided the power for the pulley system@ and that it was Athe defective rope@ that caused the workers= deaths.  I respectfully dissent because I disagree with the majority=s causation analysis and disposition of Mid-Continent=s first issue.

This court=s determination of whether liability coverage is excluded under the CGL turns our interpretation of all the language in  Exclusion g, found in Section I, Part 2 of the policy.      

   This insurance does not apply to:

    Exclusion g:

ABodily injury@ or Aproperty damage@ arising out of the ownership, maintenance, use or entrustment to others of any aircraft, Aauto@ or watercraft owned or operated by or rented or loaned to any insured.  Use includes operation and Aloading or unloading@.

First, the majority fails to incorporate all of the Exclusion g in its interpretation of the policy.  To Aarise out of@ simply means that a causal connection or relation exists between the accident or injury and the use of the motor vehicle.  Mid-Century Ins. Co., 997 S. W. 2d at 156 (Tex. 1999).  In other words, whether an injury arises out of the use of a motor vehicle is determined by a Abut for@ test, not direct or proximate cause. Utica Nat. Ins. Co. v. American Indemnity Co., 141 S.W.3d 198, 202 (Tex. 2004); McCarthy Bros. Co. v. Cont=l Lloyds Ins. Co., 7 S.W.3d 725, 730 (Tex. App.BAustin 1999, no pet.); see also Admiral Ins. Co. v. Trident NGL, Inc., 988 S.W.2d 451, 454 (Tex. App.BHouston [1^st Dist.] 1999, pet denied). By stating that Athe pick-up truck simply provided the power for the pulley system@ and that it was the Adefective rope@ that caused the injury, the majority ignores the above authority and disposes of this insurance coverage issue with a bare conclusion that the broken rope implicitly eliminates operation or use of the pick-up truck as a producing cause of the occurrence.

In interpreting the insurance policy, relative to the third requirement in Lindsey, I would employ traditional tort law doctrines that pertain to causation. Proximate cause means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.  There may be more than one proximate cause of an event.  See Texas Pattern Jury Charge; General Negligence PJC 2.4 (2003) (emphasis added).  Producing cause in the context of compensation for employee injuries means: Athat cause which, in a natural and continuous sequence, produces the death, and without which death would not have occurred.@  Jones v. Traders & General Ins. Co., 169 S.W.2d 160, 162 (Tex. 1943).  Producing cause in the context of products liability means Aan efficient, exciting, or contributing cause, which in a natural sequence, produced injuries or damages complained of, if any.  There can be one or more than one producing cause.@  Rourke v. Garza 530 S.W.2d 794, 801(Tex. 1975).  See also Texas Pattern Jury Charge; DTPA/Insurance Code PJC 102.1, 102.7, 102.8 (2003).   Considering this traditional definition of Aproducing cause@ which denotes or implicates multiple causes, the phrase Amust itself produce the injury@ is difficult to interpret and apply.  However, as explained below, the majority=s implicit conclusion that the pick-up did not Aitself produce@ the injuries and deaths is not supported by the supreme court=s analysis and disposition of the coverage issue in Lindsey. 

The majority fails to explain the difference between  Acontributing to the condition which causes the injury,@ as compared to Amust itself produce the injury.@ Here, the underlying summary judgment evidence militates the following conclusion: but for negligent operation or use of the truck, negligence of the deceased employees, and defects in the rope, if any, the accident would not have occurred.  Accordingly, I would hold that the injuries and deaths arose-out-of Ause@ of the pick-up truck.^[1]

Second, I disagree with the majority=s application of case precedent.  The majority suggests the result in this case is controlled by Brown v. H.I.S.D., 123 S.W.3d 618 (Tex. App.CHouston [14th Dist.] 2003, pet. denied), the line of drive-by shooting cases distinguished by the Supreme Court in Lindsey, and National Union Fire Ins. Co. of Pittsburgh, Pa. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139 (Tex. 1997). In Brown, the victim was raped inside her own vehicle, not the offending officer=s patrol car.  Officer Nicholas used his patrol car to stop the victim, then instructed her to drive onto the parking lot where he committed the assault.  From these facts, the court concluded that the Apatrol car was not being >used= when Nicholas assaulted appellant.@  Brown, 123 S.W.3d at 622. The court further concluded that the Apatrol car did not itself produce the injury, but only assisted the officer in accomplishing his unlawful purpose.@  Id. at 622-623.   The vehicle was involved in the assault, but its use did not cause the injury.  See id.  Here, unlike the patrol car in Brown, it is judicially admitted that the pick-up truck was in Ause@ when the accident occurred.  Additionally, use of the pick-up truck was beyond Amere involvement.@ The operator or driver of the pick-up truck played a direct role in the chain of events that led to the workers= deaths.  Thus, Brown does not determine the result in this case.

In Lindsey, the court distinguished the intentional tort drive-by shooting cases from other cases in which there is a nexus between the injury and the use or operation of an automobile, concluding that such shootings do not arise out of the use of the vehicle.  Lindsey,  997 S.W. 2d at 157-164.  As the majority notes, a vehicle=s use during a drive-by shooting is only incidental to the cause of the injury because Athe shooter could be standing still and accomplish the same result.@  Id. at 158.  The third requirement of the arising-out-of-use test could not be satisfied because the Avehicle is the mere situs@ of a shooting that Ahas nothing to do with the use of the vehicle.@  Id.   Here, the majority fails to acknowledge that the pick-up truck was operated in such a manner as to create the chain of causation. Without the pick-up truck, the workers would not have been pulled high into the tower, and there would not have been tension on the rope.  The pick-up truck could not have been Astanding still and accomplished the same result.@  Id.  Consequently, I disagree with the majority=s assertion that the supreme court=s reasoning relative to the drive-by shooting cases determines the result in this case.

In Merchants, the driver of a truck negligently fired a gun while driving, killing the passenger of a car traveling next to him.  The court held that Aa causal relationship between the injury and the use of the auto is essential to recovery.@  Merchants, 939 S.W.2d at 142.  The truck in Merchants was Athe mere situs@ of an accident which did not result from the use of the truck.  Id.  The majority attempts to conform the facts of this case to the facts of Merchant by stating that the accident was the result of the rope breaking and not the use of the truck.  However, nothing in Merchant showed that the use of the truck had anything to do with the driver=s negligent firing of the gun.  In this case, it is clear that the truck was operated or used in a manner calculated to cause tension in the rope. There is an obvious Anexus between the use and the accident to warrant the conclusion that the accident resulted from such use.@ See id.

I respectfully submit that this court should not reject the supreme court=s analysis and application of law to fact in Lindsey.  Metzger, a young lad,  attempted to enter a locked truck by climbing through the back window.  While crawling into the truck, he dislodged a gun from a rack and caused it to discharge.  Applying the third Lindsey factor, the court concluded: AAwe think on balance the Metzer truck Aproduced@-to use the factor=s word-the injury.@@  The court then stated very clearly, A[s]urely if the movement of the truck had caused the shotgun to discharge, there would be little question that the vehicle produced the injury.@  Lindsey, 997 S.W.2d at 158.  Similarly, in this case, it was movement or operation of the truck that created tension on the rope, resulting in the accident.  The rope that tragically broke was directly connected to and affected by movement of the pick-up truck Here, the chain of causation that flows directly from Ause@ of the Allstates pick-up far surpasses Metzger=s attenuated Ause.@ The Metzger boy was simply attempting to enter a locked truck. The supreme court concluded that he was using the truck, as contemplated by the same language in Exclusion g. A fortiori, the causal relationship between operation of the Allstates truck and the deaths, satisfies the Ause@requirement of Exclusion g.

Third, the majority concludes that the CGL policy provides coverage for the incident if operation of the pick-up merely Acontributed to@ rather that Aitself produce@ the injuries and deaths.  Under the majority=s holdings, there is coverage under the CGL and the CAP for same occurrence. This result is inconsistent with other authority involving concurrent causation. In cases involving concurrent causation, the excluded and covered events combine to cause the plaintiff=s injuries.  If the two causes cannot be separated, the exclusion is triggered. Utica, 141 S. W. 3d at 204.  Considering the undisputed summary judgment evidence and GEM=s judicial admissions, an inseparable chain of causation which included operation or use of the Allstates pick-up truck combined to cause the injuries and deaths.  Accordingly, applying the plain language in Exclusion g, and the supreme court=s analysis in Lindsey, there is no coverage under the CGL for the occurrence in question.

In conclusion, I would reverse the trial court=s summary judgment that Mid-Continent=s CGL policy provides liability coverage for the underlying claims, and hold that coverage is precluded under the plain language in Exclusion g.  Accordingly, I respectfully dissent to that portion of the majority opinion dealing with Mid-Continent=s first issue.  I concur in the result only with respect to the majority=s disposition of Mid-Continent=s second issue pertaining to the execution requirement for Ainsured contracts@ in both policies.                     

/s/        Charles W. Seymore

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.  (Anderson, J., majority). (Seymore J. Dissenting, in part and Concurring, in part).

---

^[1]  Any fact issue relative to use or operation of the pick-up truck was eliminated by GEM=s

replies to Mid-Continent=s requests for admissions numbered 12 and 13.  GEM judicially admitted that a motor vehicle was Abeing used@ or Ain operation@ at the time of the accident. See Tex. R. Civ. Pro. 198.