United States Court of Appeals Fifth Circuit F I L E D REVISED JANUARY 24, 2007 January 5, 2007 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 05-51665

BEXAR COUNTY HOSPITAL DISTRICT d/b/a UNIVERSITY HEALTH SYSTEM

Plaintiff-Appellant,

versus

FACTORY MUTUAL INSURANCE COMPANY,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas --------------------

Before JONES, Chief Judge, WIENER and BARKSDALE, Circuit Judges.

WIENER, Circuit Judge,

Plaintiff-Appellant Bexar County Hospital District

(“University Health System” or “UHS”) sued Defendant-Appellee

Factory Mutual Insurance Company (“Factory Mutual” or “FM”) for

breach of contract, alleging that FM improperly calculated the

deductible applicable to a claim UHS made on its FM property

insurance policy. The district court eventually granted FM’s

motion for summary judgment, denied a like motion by UHS, and

dismissed UHS’s action. We affirm. I. FACTS & PROCEEDINGS

In May 2003, UHS discovered water in its Electrical Switchgear

Room and Central Plant. It determined that its chilled water

system was leaking badly. To keep the hospital functioning while

it located the source of the leak and made the necessary repairs,

UHS rented temporary cooling towers for its air conditioning

system. UHS eventually found that a 20-inch bypass line serving

one of its cooling towers in the energy plant had developed a

substantial leak. Over a period of some 90 days, UHS spent

$557,134 to repair the leak and the machinery it had damaged, plus

$1,001,093 to rent the temporary water chillers.

At the time the damage occurred, UHS had in place Factory

Mutual’s Global Advantage policy (“the Policy”), an “all risks”

property insurance policy covering both physical damage and “time

element” (business interruption) loss. UHS filed separate claims,

one for property damage (repairs of leak and machinery), and

another for time element loss (rental expense for cooling towers).

The Policy required UHS to take all reasonable steps to prevent or

minimize time element losses, so the cooling towers rental could

not be ascribed to the direct cost of repairing the leaks and the

damaged machinery.

FM paid UHS $532,134 for its property damage loss but only

$375,600 for its time element loss. The property damage payment

covered the full cost of repairing the leak and damaged equipment

2 ($557,134), less a $25,000 deductible. The time element payment

equaled the full costs to rent the temporary cooling towers

($1,001,093), less a separate deductible for a time element loss

resulting from Boiler & Machinery damage, which FM calculated as

$625,493, or the value of one day’s worth of UHS’s total projected

operating revenue.

UHS complained to FM that the appropriate “Time Element value”

to be used in calculating the particular deductible for that claim

should have been the value of its actual time element loss —— here

the rental costs of the temporary cooling towers, as there had been

no business interruption as such, thanks to the rented towers ——

and not UHS’s projected operating revenue. FM stuck to its

position, so in March 2004, UHS filed suit in Texas state court for

declaratory judgment and breach of contract. FM removed the case

to the district court, basing jurisdiction on diversity of

citizenship. After filing an Agreed Stipulation of Material Facts,

both FM and UHS moved for summary judgment, each arguing that its

proffered method for calculating the appropriate time element loss

deductible was the only reasonable interpretation of the pertinent

provisions of the Policy. The district court granted FM’s motion

and denied UHS’s, and dismissed the case. UHS timely filed a

notice of appeal.

II. ANALYSIS

A. Standard of Review

3 We review the district court’s grant of summary judgment and

its interpretation of the insurance policy involved de novo.1

B. Contract Interpretation

As this appeal involves a diversity action that turns on

contractual interpretation, Texas substantive law governs.2 In

Texas, insurance policies are subject to the same standards of

interpretation and construction as are applicable to contracts

generally.3 The Texas Supreme Court has specified the methodology

for courts to use when interpreting insurance contracts:

The primary concern of a court in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument. If a written contract is so worded that it can be given a definite or certain legal meaning, then it is not ambiguous. Parol evidence is not admissible for the purpose of creating an ambiguity. If, however, the language of a policy or contract is subject to two or more reasonable interpretations, it is ambiguous. Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered. Only where a contract is first determined to be ambiguous may the courts consider the parties' interpretation, and admit extraneous evidence to determine the true meaning of the instrument.4

1 Schneider Nat. Transp. v. Ford Motor Co.,

(5th Cir. 2002)(citations omitted). 2 Erie R.R. v. Tompkins,

(1938). 3 Kelley-Coppedge, Inc. v. Highlands Ins. Co.,

(Tex. 1998). 4

(citing Nat’l Union Fire Ins. Co. v. CBI Indus.,

(Tex. 1995).

4 Accordingly, we must first decide whether the policy at issue is

ambiguous.

An ambiguity does not arise merely because the parties advance

conflicting contractual interpretations.5 A contract is ambiguous

only when there is a “genuine uncertainty as to which one of two or

more meanings is proper.”6 In making that determination, courts

must take care not to isolate particular phrases or sentences from

their setting, and must consider the contract “as a whole,” giving

effect to all of its provisions so that none is rendered

meaningless.7 Words used in one sense in one part of the contract

should be deemed to have been used in the same sense elsewhere in

the contract unless there is a clear indication otherwise.8 If a

court determines that the policy is not ambiguous, it may construe

the policy provisions as a matter of law. If, however, the court

concludes that the policy is ambiguous on the point at issue, i.e.,

susceptible to more than one reasonable interpretation, it should

5

at 465 (citing Grain Dealers Mut. Ins. Co. v. McKee,

(Tex. 1997)). 6 Pioneer Chlor Alkali Co. v. Royal Indem. Co.,

(Tex. App. 1994)(quoting State Farm Lloyds v. Williams,

(Tex. App. 1990)). 7 Forbau v. Aetna Life Ins. Co.,

(Tex. 1994). 8 Gonzalez v. Mission Am. Ins. Co.,

(Tex. 1990).

5 adopt the interpretation that favors the insured.9 This rule

follows from the generally accepted principle that an ambiguous or

inconsistent provision of a contract should be construed strictly

against the party that drafted it.10

C. Relevant Policy Provisions

1. Deductibles

The deductible provisions are found in Section A-11 of the

Policy. The parties agree that the controlling provision is found

in the “Boiler and Machinery” exception to the $25,000 default

policy deductible. This exception specifies that the deductible

for a time element loss resulting from “Boiler and Machinery”

damage will be “1 Day Equivalent Time Element, subject to a minimum

of 25,000.” The Policy defines “Day Equivalent” as:

An amount equivalent to the number of days stated times the 100% daily Time Element value that would have been earned following the occurrence at the Location where the physical damage occurred . . . .11

The dispute here centers on the meaning of “Time Element value,”

which determines the calculation of “1 Day Equivalent.”

2. Value Reporting Provisions

Section A-9 of the Policy requires that “[t]he Insured will

provide the Company 100% values by location.” The “values”

9

. 10

11 Emphasis added.

6 required to be furnished are (1) property value, (2) stock and

supply value, and (3) time element value. The time element values

required are those “values anticipated for [the approximate term of

the policy, here one year] and the actual Time Element values for

the previous 12 month period.” Notably, this is the only other

place in the Policy in which the disputed phrase, “Time Element

value” appears.

When it negotiated the purchase of the Policy, UHS complied

with Section A-9 by submitting to FM a “profit and loss statement

by location” detailing its operating revenues. UHS contends that

(1) it was required to provide these operating revenue reports to

facilitate FM’s risk assessment function, and (2) risk assessment

was the sole purpose of the Value Reporting Provisions. UHS thus

denies that it provided any such information “as a basis for

computation of a time element deductible” in the event of such a

claim. None disputes, however, that UHS’s operating revenue data

was the only time element information FM ever sought or UHS ever

furnished.

D. Competing Interpretations

1. Factory Mutual

FM interpreted and computed the Policy’s deductible provisions

as follows: (1) The time element deductible for loss caused by

“Boiler and Machinery” damage is “1 Day Equivalent Time Element”;

(2) “Day Equivalent” is defined as:

7 An amount equivalent to the number of days stated times the 100% daily Time Element value that would have been earned following the occurrence at the Location where the physical damage occurred;

(3) “Time Element value” equals the maximum time element risk

covered under the Policy, here UHS’s total operating revenue for

the term of the policy, i.e., one year; and (4) The total operating

revenue “that would have been earned following the occurrence” is

UHS’s “projected revenue,” based on its reported revenue for the

three months nearest in time to the date of the damage-causing

occurrence.12 FM insists that its approach is the only reasonable

interpretation of the Policy’s deductible provisions, because it is

the only reading that is internally consistent and gives meaning to

each Policy provision.

2. UHS

Section C-2 of the Policy, “Time Element Coverages,” specifies

the kinds of time element loss covered under the Policy, viz., (1)

gross earnings, (2) extra expenses, (3) leasehold interests, (4)

rental insurance, and (5) commissions, profits, and royalties. UHS

contends that, as this section enumerates five different types of

time element losses covered, the Policy anticipates the possibility

of up to five different types of time element claims. UHS insists

12 UHS determined that the bypass line leak occurred sometime between March 26, 2003 and May 5, 2003. FM based its “projected revenue” figures on the revenue reported for April, May, and June 2003.

8 that the “Time Element value” to be used in calculating the

appropriate deductible for a time element claim depends on the type

or types of time element loss incurred. Under this reading, “Time

Element value” equals the total value of the actual time element

loss, and “1 Day Equivalent Time Element” equals the per diem

value of the specific type of time element loss incurred, i.e., the

total loss divided by the number of days for which that loss

continued. In this case, UHS asserts that, because it incurred

only an “Extra Expense” loss, its deductible should be only the

value of one day’s ratable share of its “extra expenses,” i.e.,

$1,001,093 divided by the number of days the cooling towers were

rented (91). UHS acknowledges that, as that amount is less than

$25,000, the minimum $25,000 deductible would apply.

E. Merits

1. Plain Language

According to FM, “[t]he plain language of the Policy supports

a single time element deductible regardless of the type of time

element loss sustained.” The district court agreed, noting that

“nothing in the Policy indicates that a different deductible

applies depending upon the type of Time Element loss.” FM contends

that, by employing the terms “value” and “earned” in its definition

of “Day Equivalent,” the Policy contemplates a deductible based on

9 revenues or gross earnings and not “Extra Expenses,” as UHS argues.

The district court, for its part, undertook an analysis of the

commonly understood meanings of the terms “value” and “earned” and

concluded that “[t]he use of the word ‘earned’ indicates that the

Time Element value refers to operating revenues, not expenses or

charges.”

UHS attempts to refute the district court’s reasoning by

identifying definitions of “value” and “earned” that would include

“expenses” and “incurred,” respectively. UHS also quotes from the

Policy itself, which states:

In determining the liability payable as the Actual Loss Sustained, the Company will consider the continuation of only those normal charges and expenses that would have been earned had no interruption . . . occurred.13

In the end, even though we believe that common usage supports

FM’s and the district court’s conclusion on this point, we view

UHS’s reading as at least plausible. UHS insured not only its

potential loss of revenue per se, but also any costs it would incur

in providing the services it was required by law to provide to the

public should its operation be interrupted. Its “Time Element

value,” then, could foreseeably include particular “expenses” not

necessarily includable as “earnings.”

UHS also points to subsection A-11, which states that, “if two

or more deductibles provided in this policy apply to a single

occurrence, the total to be deducted will not exceed the largest

13 Emphasis added.

10 deductible applicable, unless otherwise provided.” UHS contends

that this provision clearly indicates that the Policy contemplates

separate deductibles for each type of time element loss. For

example, if “Boiler and Machinery” damage resulted in gross

earnings losses, extra expenses, and lost rental income, FM should

calculate separately the “1 Day Equivalent Time Element value” for

each loss and apply the largest deductible.14

FM responds that the plural, “deductibles,” is used in the

foregoing provision to address a situation in which multiple peril-

specific deductibles could apply to covered losses resulting from

a single, multi-peril occurrence. FM reasons that, “[i]t is

relatively easy to envision a situation where a single loss could,

for example, result from both Flood and Wind,” in which case the

larger of the Wind or Flood deductibles would apply. FM’s argument

is bolstered by the fact that the language referencing more than

one possible deductible for a single occurrence is found in the

Policy’s “Deductibles” section, which mentions only peril-specific

deductibles and says nothing about multiple time element

deductibles. As the district court noted, “the statement cited by

UHS does not support its assertion that a different deductible

applies to each type of Time Element loss.” Nevertheless, nothing

in the “Deductibles” section absolutely precludes UHS’s

interpretation either. Accordingly, we do not hold that our

14 UHS does not challenge FM’s application of separate deductibles to its property damage and time element claims.

11 reading of the plain language of the Policy’s deductible provisions

absolutely forecloses the possibility that “Time Element value”

could ever mean “expenses incurred” (or actual loss sustained).

Instead, we rest our decision on our construction of the deductible

provisions in the context of the Policy as a whole.

2. Internal Consistency

FM insists that its interpretation of “Time Element value” is

the only possible reading that gives meaning to all of the Policy’s

provisions and preserves its internal consistency. The only other

provision that references “Time Element value” is section A-9,

which sets out the Policy’s “Value Reporting Provisions.” This

subsection states that “[t]he Insured will provide the Company 100%

values by location,” including “Time Element values anticipated for

the [approximate term of the policy] and the actual Time Element

values for the previous 12 month period.”15 In this case, UHS

reported its gross operating revenue, or the total amount of time

element loss it would suffer from a total interruption of its

operations.

UHS acknowledges that the Value Reporting Provisions relate to

the potential risks for coverage and the premiums to be charged for

such risks. UHS also concedes that it furnished its operating

revenue information to FM “as a basis for [determining FM’s]

insured risk and policy coverage.” UHS denies, however, that its

15 Emphasis added.

12 reported operating revenue equates to the “Time Element value”

specified in the Policy’s Value Reporting Provisions. Instead, it

asserts that “‘time element values’ relate to ‘time element

losses,’” and therefore, “[t]he only reporting required is for

anticipated loss.” UHS goes on to reason that “if UHS had

anticipated loss of any time element coverage . . . then such would

have been reported.” Essentially, UHS argues that the time element

risk assessment purpose of the Policy’s Value Reporting Provisions

is limited to “anticipated” losses.

FM counters that it would be unreasonable to define “Time

Element value” as anything other than the amounts reported in

compliance with the Value Reporting Provisions (here, UHS’s

operating revenue). To do so, it argues, would render those

provisions meaningless. For example, under UHS’s reading, “Time

Element value” means the amount of the actual loss suffered. Time

element losses are relatively rare, however, and most, if not all,

are unanticipated. It is likely, then, that many potential

insureds would report no “Time Element value” at all —— either

“anticipated” or “actual” —— thereby partially defeating the risk-

assessment purpose of the Policy’s Value Reporting Provisions.

We cannot credit UHS’s position on this issue as being

reasonable. As the Value Reporting Provisions are meant to

facilitate FM’s risk assessment, it would make no sense for FM to

require a potential insured to report only the quantum of

anticipated and actual time element losses (here, “Extra

13 Expenses”). We imagine that, were this the case, potential

insureds would routinely report nothing, and FM would have nothing

on which to base its assessment of the time element risks it

assumes under the Policy. UHS’s position is even less defensible

in light of the Value Reporting Provisions relating to “property”

and “stock and supplies.” There is no doubt that the “values”

required to be reported under those provisions provide the basis

for the coverage limits and premium rates for the property damage

component of the Policy. It would be at best inconsistent, then,

for the time element value reported to play little or no part in

FM’s assessing the risk of a time element loss; yet under UHS’s

reading, that would be the result. A time element value would only

be reported if the potential insured had actually suffered a time

element loss in the previous year or had reason to anticipate such

a loss in the coming year; and even then the values reported would

have little or no bearing on the true value of an interruption of

the potential insured’s operations and thus on its revenues. We

cannot accept such an interpretation of the Policy’s language as

reasonable; FM’s interpretation, however, is reasonable.

III. CONCLUSION

As FM’s interpretation is the only reasonable interpretation

available, the Policy is not ambiguous. FM’s reading of the

Policy’s deductible provisions (1) comports directly with the plain

meaning and common usage of policy terms, (2) preserves the

14 internal consistency of the Policy, and (3) gives meaning to all

Policy provisions. In contrast, UHS’s proffered interpretation

requires a strained reading of the Policy’s plain language, and

would render meaningless the time element portion of the Policy’s

Value Reporting Provisions. Accordingly, the district court’s

grant of summary judgment to Factory Mutual and denial of UHS’s

motion for summary judgment are, in all respects

AFFIRMED.

15