Coreslab Structures (Texas), Inc. v. Scottsdale Insurance Company , 496 S.W.3d 884 ( 2016 )

Affirmed and Opinion filed July 28, 2016.
In The
Fourteenth Court of Appeals
____________
NO. 14-14-00865-CV
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CORESLAB STRUCTURES (TEXAS), INC., Appellant
V.
SCOTTSDALE INSURANCE COMPANY, Appellee
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 2010-55665A
OPINION
This appeal arises from a summary judgment dismissing claims for breach of
contract, bad faith under Chapter 541 of the Insurance Code, and violations of the
Prompt Payment of Claims Act, brought by an alleged additional insured against the
insurer under a commercial general liability policy. On appeal, the main issue is
whether the trial court erred in concluding as a matter of law that the plaintiff was
not entitled to recover damages based on attorney’s fees and expenses the plaintiff
incurred in the underlying suits. We conclude that the trial court did not err in
granting summary judgment on this ground and that the plaintiff did not challenge
all of the independent summary-judgment grounds asserted against the Prompt
Payment of Claims Act claim. Because Coreslab has not shown that the trial court
erred in granting summary judgment, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Memorial Hermann Tower, at Interstate 10 and Gessner in Houston,
sustained water damage during two separate rain events, spawning two lawsuits in
the trial court involving claims for damages in excess of $38 million (hereinafter
collectively the “Underlying Lawsuits”). Memorial Hermann Hospital System
asserted claims against various parties, including appellant/plaintiff Coreslab
Structures (Texas), Inc. and its subcontractor CN Construction, Inc. The trial court
consolidated the Underlying Lawsuits.
Scottsdale’s Denial of Demand for Defense as an Additional Insured
Coreslab tendered the defense of the Underlying Lawsuits to CN Construction
and demanded a defense as an additional insured under CN Construction’s insurance
policy, asking CN Construction to tender the demand to the insurer under the
applicable policy. Appellee/defendant Scottsdale Insurance Company, the insurer
under the applicable Commercial General Liability policy issued to CN
Construction, responded to Coreslab, notifying Coreslab that Scottsdale had
determined there was no additional-insured coverage available to Coreslab.
Other Insurer’s Payment of Insured’s Defense Costs
After Scottsdale refused to pay Coreslab’s defense costs in the Underlying
Lawsuits, Lexington Insurance Company, the insurer under one of Coreslab’s
insurance policies, paid $825,642.32 to Coreslab’s defense counsel for attorney’s
2
fees and expenses in Coreslab’s defense in the Underlying Lawsuits. Lexington is
not a party in this lawsuit.
Insured’s Suit Against Scottsdale for Coverage as Additional Insured and
Defense in the Underlying Suits
Coreslab filed a third-party petition in the Underlying Lawsuits against
Scottsdale alleging that the Scottsdale policy provided coverage for Coreslab as an
additional insured. Scottsdale asserted that the policy provided no coverage to
Coreslab. In its third-party petition, Coreslab sought a declaratory judgment that
Scottsdale had a duty to pay Coreslab’s defense costs in the Underlying Lawsuits.
Coreslab asserted (1) a breach-of-contract claim against Scottsdale for failing to pay,
(2) statutory bad-faith claims under Chapter 541 of the Insurance Code, and (3) a
claim for violations of the Prompt Payment of Claims Act under Chapter 542 of the
Insurance Code.
Partial Summary Judgment in Favor of Insured on Duty to Defend
The main claims in the Underlying Lawsuits settled, and the trial court severed
Coreslab’s claims into a separate lawsuit containing only the claims between
Coreslab and Scottsdale. The trial court granted partial summary judgment in favor
of Coreslab, ruling that Scottsdale had a duty to defend Coreslab in the Underlying
Lawsuits. Coreslab agrees that, after the trial court’s ruling, Scottsdale paid a total
of at least $409,509.53 toward Coreslab’s defense costs in the Underlying Lawsuits.
Insured’s Claimed Defense Costs
In its lawsuit against Scottsdale, Coreslab sought to recover attorney’s fees
and expenses that Coreslab incurred for the defense of the Underlying Lawsuits.
Coreslab’s defense counsel billed Coreslab for these fees and expenses. There is no
3
evidence that Coreslab paid any of these fees or expenses. Coreslab also sought to
recover eighteen-percent interest as damages under Insurance Code section 542.060,
attorney’s fees for bringing its claims against Scottsdale, and prejudgment interest.
Scottsdale’s Motion for Summary Judgment
Scottsdale filed a traditional summary-judgment motion asserting the
following grounds:
(1) As a matter of law, Coreslab is not entitled to recover any damages
in connection with attorney’s fees or costs in the Underlying
Lawsuits or Coreslab’s lawsuit against Scottsdale because the total
amount paid by Lexington and Scottsdale exceeds the sum of
Coreslab’s defense costs in the Underlying Lawsuits and Coreslab’s
attorney’s fees and costs in this suit against Scottsdale.
(2) Coreslab is not entitled to recover eighteen-percent interest as
damages under Insurance Code section 542.060 for the following
reasons: (a) Scottsdale always paid its share of the defense costs
within sixty days of its receipt of each attorney’s fees invoice; and
(b) because Coreslab never paid any attorney’s fees bill for the
defense costs in the Underlying Lawsuits, Scottsdale owes no
eighteen-percent interest as damages under Insurance Code section
542.060.
(3) Coreslab is not entitled to recover interest under Finance Code
section 302.002 because (a) Coreslab is not entitled to recover
against Scottsdale and (b) this statute does not apply to an award of
attorney’s fees against an insurer.1
1
Scottsdale did not seek summary judgment based on the alleged applicability of any “other
insurance” provisions in either the Scottsdale policy or the Lexington policy. Therefore, any such
provisions are not at issue in this appeal.
4
Insured’s Response and Cross-Motion for Summary Judgment
Coreslab filed a response in opposition to Scottsdale’s summary-judgment
motion. Coreslab also asserted a cross-motion for traditional summary judgment in
which Coreslab sought a partial summary judgment granting it a judgment as a
matter of law on its breach-of-contract and Insurance Code section 542.060 claims.
Trial Court’s Ruling
The trial court signed an order granting Scottsdale’s summary-judgment
motion and ruling that Coreslab take nothing on its claims.2
II. ISSUES PRESENTED
In its appellate brief, Coreslab presents the following two issues:
1. Whether the trial court erred in holding that Coreslab was only
entitled to a partial defense from Scottsdale since it is well
established under Texas law that (a) an insurer has the duty to
provide a full defense to its insured, not merely a pro rata defense,
and (b) where the Texas Supreme Court has reiterated that an
insured, such as Coreslab, is in the best position to identify the
policy or policies that would maximize coverage, and (c) where it is
uncontroverted that Coreslab made it clear to Scottsdale that
Coreslab chose Scottsdale to provide it a full defense in order to
avoid a negative impact on its loss history in the face of lawsuits
which sought in excess of $38,000,000?
2. Whether the trial court erred by failing to award [Coreslab] the
attorney’s fees and expenses, which Scottsdale did not object to or
otherwise contest, and . . . fail[ing] to apply the prompt payment
provisions of Chapter 542 of the Texas Insurance Code, and the
penalty provisions which are automatic, in the face of Scottsdale’s
2
On abatement, the trial court signed an order confirming that this summary-judgment order was
a final judgment.
5
initial improper denial of coverage?
(quotations and citations omitted).
III. ANALYSIS
In a traditional motion for summary judgment, if the movant’s motion and
summary-judgment evidence facially establish its right to judgment as a matter of
law, the burden shifts to the nonmovant to raise a genuine, material fact issue
sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of the trial court’s
granting of Scottsdale’s motion for traditional summary judgment, we consider all
the evidence in the light most favorable to Coreslab, crediting evidence favorable to
Coreslab if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
2006). The evidence raises a genuine issue of fact if reasonable and fair-minded
jurors could differ in their conclusions in light of all of the summary-judgment
evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
When, as in this case, the order granting summary judgment does not specify the
grounds upon which the trial court relied, we must affirm the summary judgment if
any of the independent summary-judgment grounds is meritorious. FM Props.
Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
A. Did the trial court err in granting summary judgment on the ground that
all of the defense costs the insured sought to recover had been paid by one
of the two insurers?
In its first issue, Coreslab challenges the first ground that Scottsdale asserted
in its summary-judgment motion. In this ground, Scottsdale asserted that, as a matter
of law, Coreslab is not entitled to recover any damages in connection with attorney’s
fees or costs incurred in the Underlying Lawsuits or Coreslab’s lawsuit against
Scottsdale because the total amount Lexington and Scottsdale paid exceeds the sum
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of Coreslab’s defense costs in the Underlying Lawsuits and Coreslab’s attorney’s
fees and costs in this suit against Scottsdale.
Amount of Defense Costs in in the Underlying Lawsuits Paid by Each Insurer
In its motion, Scottsdale relied upon Coreslab’s expert testimony that, from
the time Coreslab first sought a defense from Scottsdale through the settlement of
the Underlying Lawsuits, Coreslab incurred a total of $882,909.92 in reasonable and
necessary attorney’s fees and expenses for Coreslab’s defense in the Underlying
Lawsuits. Coreslab agrees with this amount. In its motion, Scottsdale submitted
summary-judgment evidence proving that Lexington paid a total of $825,642.32 to
Coreslab’s defense counsel for attorney’s fees and expenses in Coreslab’s defense
in the Underlying Lawsuits. Coreslab did not controvert this evidence and it has not
disputed that Lexington paid this total amount. In its motion, Scottsdale asserted
that it had paid a total of $443,394.20 toward the attorney’s fees and expenses for
Coreslab’s defense in the Underlying Lawsuits. Coreslab disputed this amount but
agreed that Scottsdale had paid $409,509.53 toward Coreslab’s defense costs in the
Underlying Lawsuits. The summary-judgment evidence conclusively proves that
Scottsdale paid at least $409,509.53 to either Coreslab’s defense counsel in the
Underlying Lawsuits or to Lexington. Coreslab and Scottsdale entered into a Rule
11 agreement in which they agreed that endorsing or negotiating any checks issued
by Scottsdale to Coreslab or its insurers pertaining to the Memorial Hermann claim
does not constitute a waiver of Coreslab’s claims against Scottsdale in the trial court,
but that Scottsdale “shall receive a credit against actual damages for any amounts so
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paid.”3
Amount the Insured Seeks To Recover Against Scottsdale
The summary-judgment evidence conclusively proves that from the time
Coreslab first sought a defense from Scottsdale through the settlement of the
Underlying Lawsuits, Coreslab incurred a total of $882,909.92 in reasonable and
necessary attorney’s fees and expenses for Coreslab’s defense in the Underlying
Lawsuits and that the payments Lexington and Scottsdale have made exceed this
sum. Coreslab does not dispute these facts, and Coreslab has agreed that Scottsdale
is entitled to a credit against Coreslab’s actual damages for the amounts Scottsdale
paid to Lexington or to Coreslab’s defense counsel. Nonetheless, Coreslab contends
that Scottsdale was required to pay a total of $882,909.92 in defense costs under the
Scottsdale policy and that, to date, Scottsdale has paid only $409,509.53. Excluding
eighteen-percent interest under Insurance Code section 542.060, attorney’s fees for
bringing its claims against Scottsdale, and prejudgment interest, Coreslab seeks
$882,909.92 in damages against Scottsdale with a $409,509.53 credit for payments
Scottsdale already has made. Coreslab essentially asserts that it is entitled to recover
$473,400.39 against Scottsdale based on defense costs that Scottsdale failed to pay
under the Scottsdale policy, even though Coreslab has not paid any of the attorney’s
fees or expenses at issue and even though Lexington has paid $825,642.32 to
Coreslab’s defense counsel in the Underlying Lawsuits.
The Mid-Continent Rule
In the context of the duty to indemnify, the Supreme Court of Texas has
3
This Rule 11 agreement was in writing, signed by counsel for Coreslab and Scottsdale, and filed
in the trial court below. See Tex. R. Civ. P. 11. This agreement is included in the summary-
judgment evidence.
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followed California law and agreed that “[W]here there are several policies of
insurance on the same risk and the insured has recovered the full amount of its loss
from one or more, but not all, of the insurance carriers, the insured has no further
rights against the insurers who have not contributed to its recovery” and that “the
liability of the remaining insurers to the insured ceases, even if they have done
nothing to indemnify or defend the insured.” Mid-Continent Ins. Co. v. Liberty Mut.
Ins. Co., 236 S.W.3d 765, 775 (Tex. 2007) (quoting Fireman’s Fund Ins. Co. v. Md.,
Cas. Co., 77 Cal. Rptr. 2d 296, 305 (Cal. Ct. App. 1998)). Thus, under Texas law,
after an insured has recovered the full amount of its loss as a result of payments from
two insurers under two different policies, the insured may not recover from one
insurer under its policy based on the insurer’s alleged failure to pay its appropriate
share of the loss.4 See Mid-Continent Ins. Co., 236 S.W.3d at 775. Even presuming
that Scottsdale should have paid more and that Lexington should have paid less, once
the full amount of defense costs have been paid, Coreslab has no right to recover
against Scottsdale based on Scottsdale’s failure to pay more. See id. Though there
might be a basis for Lexington to seek recovery against Scottsdale under these
circumstances, Lexington is not a party in this case.
The Mid-Continent case involved an examination of an insured’s contractual
rights against an insurer in the context of an insurer’s assertion of the insured’s rights
as subrogee in an indemnity context rather than in the context of payment of defense
costs. See id. at 771–76. Nonetheless, the principles of Texas law the high court
articulated in Mid-Continent support the trial court’s granting of summary judgment.
See id. The parties have not cited and research has not revealed any Texas case that
4
The collateral-source rule does not apply in this contractual context. See Mid-Century Ins. Co.
of Tex. v. Kidd, 997 S.W.2d 265, 274 (Tex. 1999).
9
is completely on point. But, courts in other states have concluded that, after all of
the insured’s defense costs have been paid, an insured may not recover any amount
from an insurer based on failure to pay defense costs covered under the insurer’s
policy. See Emerald Bay Cmty. Ass’n v. Golden Eagle Ins. Corp., 130 Cal. App. 4th
1078, 1088–89 (Cal. Ct. App. 2005); Concord Hosp. v. New Hampshire Medical
Malpractice Joint Underwriting Ass’n, 694 A.2d 996, 998–99 (N.H. 1997);
McDonald v. Nat’l Grange Mut. Ins. Co., 342 N.Y.S.2d 478, 479 (N.Y. App. Div.
1973); Sloan Constr. Co. v. Cent. Nat’l Ins. Co. of Omaha, 236 S.E.2d 818, 819–21
(S.C. 1977); Underwriters at Lloyds v. Denali Seafood, Inc., 729 F. Supp. 721, 725
(W.D. Wash. 1989), aff’d 927 F.2d 459, 464 (9th Cir. 1991).
Coreslab argues that it may recover from Scottsdale because, under Texas law,
Coreslab was entitled to a “complete defense” from Scottsdale rather than a “pro
rata” defense. Coreslab cites cases in which Texas courts of appeals state that an
insurer has the duty to provide a full defense to its insured rather than a pro rata
defense. See Maryland Cas. Co. v. South Texas Medical Clinics, P.A., No. 13-06-
089-CV, 2008 WL 98375, at *7–8 (Tex. App.—Corpus Christi Jan. 10, 2008, pet.
denied) (mem. op.); Texas Prop. & Cas. Ins. Guar. Ass’n/Southwest Aggregates,
Inc. v. Southwest Aggregates, Inc., 982 S.W.2d 600, 616 (Tex. App.—Austin 1998,
no pet.). Coreslab also points to a number of eight-corners-rule cases, in which
courts state, as part of the eight-corners rule, that if a petition in which a third party
asserts claims against an insured potentially includes a covered claim, the insurer
must defend the entire suit. See, e.g., St. Paul Ins. Co. v. Texas Dept. of Transp.,
999 S.W.2d 881, 884 (Tex. App.—Austin 1999, pet. denied) (stating that “[o]nce
coverage has been found for any portion of a suit, an insurer must defend the entire
suit”). Coreslab also cites cases in which the Supreme Court of Texas states that the
insured is in the best position to identify the policy or policies that would maximize
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coverage. See Lennar Corp. v. Markel American Ins. Co., 413 S.W.3d 750, 758
(Tex. 2013); Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 855 (Tex. 1994).
None of these cases are on point, and none of these courts hold that an insured may
recover against an insurer for failure to pay defense costs after one or more of the
insurers whose policies provide coverage pay all the defense costs. See Lennar
Corp., 413 S.W.3d at 758; Am. Physicians Ins. Exch., 876 S.W.2d at 855; Maryland
Cas. Co., 2008 WL 98375, at *7–8; Texas Prop. & Cas. Ins. Guar. Ass’n/Southwest
Aggregates, Inc., 982 S.W.2d at 616.
Coreslab asserts that it made it clear to Scottsdale that Coreslab chose
Scottsdale to provide a full defense to avoid a negative impact on Coreslab’s “loss
history,” which, Coreslab asserts, impacts its insurance premiums. Coreslab did not
submit any summary-judgment evidence about its “loss history.” Nor did Coreslab
proffer any summary-judgment evidence on the issue of whether Lexington’s
payment of some or all of Coreslab’s defense costs under the Lexington policy
would result in higher future insurance premiums than if Scottsdale had paid all of
Coreslab’s defense costs under the Scottsdale policy. Coreslab has not cited any
cases in which a court has held that an insured’s choice to seek a full defense on only
one of two available policies allows the insured to recover defense costs against the
chosen insurer after the other insurer pays some or all of the defense costs.
No Recovery By Insured Against Insurer for Failure to Pay Defense Costs in
the Underlying Lawsuits When Those Costs Were Paid By Another Insurer
Coreslab suggests that, if it recovers a money judgment against Scottsdale in
this case based on Scottsdale’s failure to pay the entire amount of Coreslab’s defense
costs, Coreslab will forward the amounts recovered to Lexington “to protect
Coreslab’s loss history.” A normal money judgment in favor of Coreslab and against
Scottsdale would not require Coreslab to forward any such amounts to Lexington.
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Even presuming that the trial court could craft a judgment that would make sure that
Coreslab forwarded the amounts collected under the judgment to Lexington, we
conclude that, under the circumstances of this case, Coreslab may not recover
judgment against Scottsdale based on Scottsdale’s failure to pay the full amount of
Coreslab’s defense costs in the Underlying Lawsuits. See Mid-Continent Ins. Co.,
236 S.W.3d at 775; Emerald Bay Cmty. Ass’n, 130 Cal. App. 4th at 1088–89;
Concord Hosp., 694 A.2d at 998–99; McDonald, 342 N.Y.S.2d at 479; Sloan Constr.
Co., 236 S.E.2d at 819–21; Underwriters at Lloyds, 729 F. Supp. at 725.
As a matter of law, Coreslab is not entitled to recover any damages based on
Coreslab’s defense costs in the Underlying Lawsuits because the total amount paid
by Lexington and Scottsdale exceeds the sum of Coreslab’s defense costs in the
Underlying Lawsuits. See Mid-Continent Ins. Co., 236 S.W.3d at 775; Emerald Bay
Cmty. Ass’n, 130 Cal. App. 4th at 1088–89; Concord Hosp., 694 A.2d at 998–99;
McDonald, 342 N.Y.S.2d at 479; Sloan Constr. Co., 236 S.E.2d at 819–21;
Underwriters at Lloyds, 729 F. Supp. at 725. Therefore, we overrule Coreslab’s first
issue.
B. May this court review the trial court’s denial of the insured’s cross-
motion?
Under its second issue, Coreslab seeks rendition of judgment in its favor based
on the trial court’s alleged error in denying Coreslab’s cross-motion for summary
judgment, in which Coreslab sought judgment as a matter of law on its breach-of-
contract and Insurance Code section 542.060 claims. In the cross-motion Coreslab
did not seek a final judgment. See Frontier Logistics, L.P. v. Nat’l Prop. Holdings,
L.P., 417 S.W.3d 656, 664 (Tex. App.—Houston [14th Dist.] 2013, pet. denied)
(noting that courts may review the denial of a cross-motion for summary judgment
and render judgment on that motion only in certain circumstances, including when
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the movant in the cross-motion sought a final judgment). For example, Coreslab did
not request judgment as a matter of law on its statutory bad-faith claims under
Chapter 541 of the Insurance Code. In addition, Coreslab did not seek summary
judgment as to any declaratory-judgment claim. See id. (noting that courts may
review the denial of a cross-motion for summary judgment and render judgment on
that motion under an exception involving claims for declaratory relief). Scottsdale
sought summary judgment as to all of Coreslab’s claims, based on the three grounds
stated above; but, in its cross-motion, Coreslab sought a money judgment based on
evidence that Coreslab contends conclusively establishes its entitlement to judgment
as a matter of law on its breach-of-contract and Insurance Code section 542.060
claim. Thus, in the cross-motion Coreslab did not seek summary judgment on the
same issue Scottsdale addressed in its motion. See id. (concluding that courts may
review the denial of a cross-motion for summary judgment and render judgment on
that motion when the movant in the cross-motion sought summary judgment on the
same issue that was addressed in the other motion). This case does not involve any
of the circumstances under which this court may review the denial of Coreslab’s
cross-motion. See id. To the extent Coreslab argues under the second issue that the
trial court erred in denying its cross-motion on an issue Scottsdale addressed in its
motion, we overrule Coreslab’s second issue.
C. Has the insured challenged all of the insurer’s summary-judgment
grounds as to the insured’s claim under Insurance Code section 542.060?
The trial court granted summary judgment without specifying the grounds
upon which it relied, so, on appeal, Coreslab must show that each independent
summary-judgment ground asserted against its claims does not provide a basis for
affirming the trial court’s summary judgment. See Ramco Oil & Gas Ltd. v. Anglo-
Dutch (Tenge) L.L.C., 207 S.W.3d 801, 826 (Tex. App.—Houston [14th Dist.] 2006,
pet. denied). In the second ground of its summary-judgment motion, Scottsdale
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asserted that, as a matter of law, Coreslab was not entitled to eighteen-percent
interest as damages under Insurance Code section 542.060 because (1) Scottsdale
always paid its share of the defense costs within sixty days of its receipt of each
attorney’s-fees invoice; and (2) Coreslab never paid any attorney’s fees bill for the
defense costs in the Underlying Lawsuits. We presume for the sake of argument that
Scottsdale’s entitlement to judgment under its first summary-judgment ground does
not preclude Coreslab from asserting its claim under Insurance Code section 542.060
for eighteen-percent interest as damages based on the allegedly late payment of
defense costs by Scottsdale. We therefore consider whether summary judgment on
that claim was proper under Scottsdale’s second ground.
On appeal, Coreslab asserts that it was entitled to judgment as a matter of law
on its claim under Insurance Code section 542.060 and that the trial court erred in
granting summary judgment. In its appellant’s brief, Coreslab does not expressly
challenge both parts of the second summary-judgment ground asserted against its
section 542.060 claim or present argument as to why the trial court erred in granting
summary judgment on these grounds. Even construing Coreslab’s brief liberally,
we cannot conclude that Coreslab briefed any argument attacking the independent
part of this summary-judgment ground regarding Coreslab’s failure to pay any
attorney’s-fees bill for the defense costs in the Underlying Lawsuits. Because
Coreslab has not challenged this ground, it has not challenged all independent
summary-judgment grounds upon which the trial court granted summary judgment
as to its claim under Insurance Code section 542.060. See Navarro v. Grant
Thornton, LLP, 316 S.W.3d 715, 719–20 (Tex. App.—Houston [14th Dist.] 2010,
no pet.). Therefore, we affirm the trial court’s summary judgment on this claim.5
5
On appeal, Coreslab has not briefed any argument under which it would be entitled to recover its
attorney’s fees or costs incurred in this suit against Scottsdale without recovering against
Scottsdale either actual damages or eighteen-percent interest as damages under Insurance Code
14
See id. To the extent Coreslab argues under the second issue that the trial court erred
in granting summary judgment in favor of Scottsdale, we overrule Coreslab’s second
issue.6
IV. CONCLUSION
As a matter of law, Coreslab is not entitled to recover any damages based on
Coreslab’s defense costs in the Underlying Lawsuits because the total amount paid
by Lexington and Scottsdale exceeds the sum of Coreslab’s defense costs in the
Underlying Lawsuits. This court may not review the trial court’s denial of
Coreslab’s cross-motion for summary judgment. Coreslab has not challenged all
independent grounds upon which the trial court granted summary judgment as to
Coreslab’s claim under Insurance Code section 542.060. Because Coreslab has not
shown that the trial court erred in granting summary judgment in favor of Scottsdale,
we affirm the trial court’s judgment.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Jamison and Busby.
section 542.060. Because we have concluded that Coreslab has not shown error in the trial court’s
take-nothing judgment as to Scottsdale’s claims for damages, there is no basis upon which we may
reverse the trial court’s take-nothing judgment as to Coreslab’s requests for attorney’s fees and
costs.
6
We need not and do not address Scottsdale’s argument that the trial court erred in rendering
summary judgment in favor of Coreslab and ruling as a matter of law that Scottsdale had a duty to
defend Coreslab in the Underlying Lawsuits.
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