Charles Cook v. Admiral Insurance Company
Charles Cook v. Admiral Insurance Company
Concurring Opinion
concurring.
I respectfully concur in the judgment only. The panel majority’s decision is based on arguments that neither Admiral Insurance Company nor Cook advanced in the district court, nor were these arguments raised in this court until supplemental briefing was requested by our court. Respectfully, our jurisprudence does not allow us to affirm a summary judgment on any grounds, but rather only on the basis of any arguments advanced below. Admiral is entitled to summary judgment, however, since the events giving rise to the underlying suit against Cook fall outside the scope of Cook’s insurance policy. Admiral did advance this basis for summary judgment, both in the district court and in our court.
I
Cook acquired a general commercial liability insurance policy from Admiral. Cook contracted with M.J. Brogdin to deliver and oversee the running of casing for an oil well. In the course of that job, Cook made an error, and Brogdin sued. Brog
The district court granted summary judgment in favor of Admiral. Among Admiral’s arguments for summary judgment, though not the basis of the district court’s decision, was the limited scope of the coverage set forth in the “classifications” section of the insurance policy. Admiral did not advance an argument on the basis of the “property damage” exclusions relied upon by the panel majority.
II
The panel majority resolves this case on the basis of two “property damage” exclusions in the policy.
Our court, however, has recognized limits on the reach of that general proposition. For instance, in Johnson v. Sawyer, we stated, “Although we can affirm a summary judgment on grounds not relied on by the district court, those grounds must at least have been proposed or asserted in that court by the movant.”
In LeMaire v. Louisiana Department of Transportation & Development, we recognized that the limits placed upon our summary judgment affirmance rule are intertwined with the general limits we place upon the scope of our consideration on appeal: “we may only affirm an order granting summary judgment on a basis that was presented to the district court. This is in keeping with our precedent that arguments not raised before the district court are waived and cannot be raised for the first time on appeal.”
Ill
There is, however, an alternative ground on which summary judgment may be affirmed that the parties did raise, both below and in their briefing to this court. Admiral contends that the claims asserted by Brogdin’s suit against Cook fall outside the scope of Cook’s policy. To determine the scope of Admiral’s duty to defend under Texas’s “eight corners” rule, we compare the facts alleged in Brogdin’s petition to the language of the policy.
The underlying state-court petition states that Cook “removed more casing from the well site than [he] should, necessitating an expensive rework of the well.” On appeal, Cook explains that this was an “oversight” and cites to a description of this oversight as arising “when Cook’s employees miss counted [sic] casing joints.” However, the insurance policy contains an endorsement that “[t]his insurance applies to ... ‘property damage’ ... arising only out of those operations which are described by the classification shown on the Commercial General Liability Coverage Declarations, its endorsements!,] and supplements.” The “Commercial General Liability Coverage Part” includes the following “Classification[s]”:
OIL OR GAS LEASE WORK BY CONTRACTORS—OILFIELD LEASE ROAD AND DITCH MAINTENANCE, EXCAVATION AND BEAUTIFICATION OF OILFIELD LEASE SITE— NOT LEASE OPERATIONS—OILFIELD WATER STEAM CLEANING OF TANKS AND SMALL TANKS WITH PRESSURE WASHER WITH PSI OF 2500 OR LESS—NOT LEASE OPERATIONS OCCASIONAL SHOP WELDING—EXCLUDING ANY WORK ON EXISTING LINES[.]
OIL OR GAS CONTRACTOR’S EQUIPMENT RENTED TO OTHER^] (EXCLUDING ANY SELF-PROPELLED VEHICLES OR AUTOS) WITHOUT OPERATORS—NO IN-HOLE EQUIPMENT (PRODUCTS/COMPLETED OPERATIONS ARE INCLUDED IN THE GENERAL AGGREGATE LIMIT)[.]
SUB-CONTRACTED WORK ONLY TO OTHER INSURED INDEPENDENT CONTRACTORS, OIL OR GAS WORK IN THE FIELD[.]10
The events for which Cook seeks coverage fall outside of the scope of the text. We must be mindful of the directive under Texas law that “courts must strive to give effect to the written expression of the parties’ intent” in interpreting an insurance policy.
Nevertheless, Cook argues that the erroneous removal of the casing falls under the phrase “oil or gas lease work by contractors” in the classification. But that phrase is followed by a dash and references to lease road and ditch maintenance and the excavation and beautification of the oilfield lease site. Cook’s “removfal of] more casing from the well site than [he] should” bears no resemblance to the policy’s statements of coverage. Cook’s allegedly erroneous acts are wholly unconnected to maintaining lease roads or ditches. Similarly, one cannot say that Cook’s erroneous removal of the pipe was done to beautify or excavate the site: as Cook concedes, the casing was improperly removed owing to an “oversight,” a function of a counting error. Moreover, if “lease work by contractors” were to extend coverage to all activities undertaken by Cook in the course of his business—as Cook appears to contend—there would be no need for the examples following the dash. Indeed, the Supreme Court of Texas has held that “courts must be particularly wary of isolating from its surroundings or considering apart from other provisions a single phrase, sentence, or section” of an insurance policy.
Alternatively, Cook argues that this section of the insurance contract is unclear and should be construed against Admiral. He relies upon National Union Fire Insurance Co. of Pittsburgh, Pennsylvania v. Hudson Energy Co.
Because the only reasonable interpretation of the classifications of Cook’s policy would not extend coverage to the events at
IY
Cook contends that Admiral waived its argument relying upon the classifications limiting the scope of the policy by waiting to raise this issue until Admiral’s motion for summary judgment below. Cook theorizes that this delay constitutes waiver, since he construes this language as constituting an affirmative defense. Even assuming this were an affirmative defense, there is no waiver. We have previously held that “a defendant does not waive an affirmative defense if it is raised at a pragmatically sufficient time, and the plaintiff was not prejudiced in its ability to respond.”
I respectfully concur in the judgment only.
. Ante, at 11.
. Id.
. Id. at 9-10 (citing Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009); LLEH, Inc. v. Wichita Cnty., Tex., 289 F.3d 358, 364 (5th Cir. 2002)).
. 120 F.3d 1307, 1316 (5th Cir. 1997) (citing Mo. Pac. R.R. v. Harbison-Fischer Mfg. Co., 26 F.3d 531, 538 (5th Cir. 1994), F.D.I.C. v. Laguarta, 939 F.2d 1231, 1240 (5th Cir. 1991), and Frank C. Bailey Enter., Inc. v. Cargill, Inc., 582 F.2d 333, 334 (5th Cir. 1978)).
. 480 F.3d 383, 387 (5th Cir. 2007) (internal citation omitted).
. United States v. Brace, 145 F.3d 247, 255 (5th Cir. 1998) (en banc).
. Id. at 256.
. Id.
. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Merchs. Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997) (per curiam).
. The original appears to use en-dashes instead of em-dashes or hyphens. This has been corrected without brackets for clarity.
. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex. 1995) (citation omitted).
. Merchs. Fast Motor Lines, Inc., 939 S.W.2d at 141 (internal quotation marks and citation omitted).
. State Farm Life Ins. Co., 907 S.W.2d at 433 (citation omitted).
. E.g., Merchs. Fast Motor Lines, Inc., 939 S.W.2d at 141 (holding that the negligent discharge of a firearm while in a truck did not fall within the scope of an insurance policy covering injury " 'resulting from the ownership ... of a covered auto' ").
. 811 S.W.2d 552 (Tex. 1991).
. Id. at 555 (citations omitted).
. Id. (citation omitted).
. Id. (citation omitted).
. Farmers Tex. Cnty. Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 84 (Tex. 1997) (per curiam).
. Rogers v. McDorman, 521 F.3d 381, 386 (5th Cir. 2008) (internal quotation marks, brackets, and citation omitted).
. Lucas v. United States, 807 F.2d 414, 418 (5th Cir. 1986).
. Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel LLC, 620 F.3d 558, 562 (5th Cir. 2010).
Opinion of the Court
MJ Brogdin Consulting Co. (“Brogdin”) retained the services of Plaintiff-Appellant Charles D. Cook to deliver casing
I. FACTS & PROCEEDINGS
A. Facts
Cook purchased a CGL insurance policy from Admiral. During the term of that policy, Brogdin retained Cook to deliver casing to the well and to oversee its installation in the well bore. In preparation for casing and completing the oil well, Cook was required to haul any excess casing away from the drill site. Cook made a counting error, however, and hauled away too much casing from the drill site. This resulted in an insufficient string of casing being installed in the well bore, causing the well to be completed ineffectively at a depth that was shallower than that of the zone intended for completion and production. This required Brogdin to have the well reworked before it could be completed at the correct depth, costing Brogdin $336,745.63. Brogdin sued Cook in state court, claiming only that cost of reworking the well.
B. Proceedings
Before he was sued by Brogdin, Cook notified Admiral of Brogdin’s pre-suit claim. Admiral responded that, although the CGL policy provided $1 million in coverage, Cook could not recover more than $100,000 in damages because of an endorsement relating to underground work. This prompted Cook to sue Admiral in state court, seeking a declaratory judgment that the policy’s full $1 million coverage was applicable to Brogdin’s anticipated claim because Cook’s work did not involve an underground equipment hazard. When, thereafter, Brogdin sued Cook, Admiral accepted Cook’s defense under a reservation of the right to claim that it had no duty to defend or indemnify Cook against Brogdin’s suit.
Admiral removed Cook’s action to federal court and Brogdin intervened. Admiral then countersued Cook and Brogdin, seeking a declaratory judgment that its duty to indemnify Cook was limited to $100,000. Cook filed a motion for partial summary judgment on Admiral’s counterclaim. Admiral then filed a motion for summary judgment, asserting that it had no duty to defend Cook in Brogdin’s state court suit because Brogdin’s claims against Cook were not within the scope of coverage of the CGL policy.
The district court granted summary judgment in favor of Admiral. It held that Admiral did not have a duty to defend Cook against Brogdin’s lawsuit because Cook’s actions did not result in a “loss of use of tangible property that is not physically injured,” and that there thus was no “property damage” under the CGL policy.
II. ANALYSIS
A. Standard of Review
We review a district court’s summary judgment de novo, applying the same legal
B. Admiral Does Not Have a Duty to Defend Cook
Under Texas law, an insurer’s duty to defend “is governed by the ‘eight-corners’ rule, whereby a court considers only the allegations in the underlying complaint and the terms of the insurance policy. If the petition filed against the insured, liberally construed, alleges facts within the scope of coverage, the insurer must defend.”
Here, Brogdin asserts in its complaint that it had contracted with Cook to “deliver and oversee the running of casing on a well” but that Cook had “removed more casing from the well site than it [sic] should, thereby resulting in a failure to complete the well to the desired depth, necessitating an expensive rework of the well, proximately causing damage to plaintiff.” Based on these alleged facts, Brogdin makes two distinct legal claims—one based on a theory of breach of contract and the other based on a theory of negligence—contending that under each theory Cook “must reimburse [Brogdin] for the funds paid by [Brogdin] to mitigate damages caused by [Cook], to the damage of [Brogdin].” We now must determine in our de novo review whether Brogdin has made allegations against Cook that fall within the scope of coverage of Admiral’s CGL policy.
1. “Loss of Use of Tangible Property That Is Not Physically Injured”
The CGL policy requires Admiral to defend Cook against any suit seeking “damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.”
Here, Cook’s “remov[al][of] more casing from the well site than [he] should” (because someone made a mistake in counting) was an “occurrence” under the terms of the CGL policy, as construed by the Texas Supreme Court.
That CGL policy defines “property damage” disjunctively as:
(a) Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
(b) Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the “occurrence” that caused it.
In the district court, Cook assumed that Brogdin’s alleged facts fit into the CGL policy under subsection (b) alone, i.e., the “loss of use” definition of “property damage.” The district court determined, however, that for there to be “loss of use of tangible property,” the tangible property—here, the well—must have been in use prior to the damage.
2. “Property Damage” Exclusions
Although the CGL policy does generally require Admiral to defend against any suit seeking damages from Cook for “property damage,” section j of the policy expressly excludes coverage of:
“Property damage” to:
*318 (5) That particular part of real property on which you ... are performing operations if the “property damage” arises out of those operations; or
(6) That particular part of any property that must be restored, repaired or replaced because ‘your work’ was incorrectly performed on it.
Here, the “property damage,” i.e., the completion of the well at an incorrect depth, undeniably arose out of Cook’s operations; and it was precisely that well which had to be reworked because Cook’s negligence in retrieving too much casing from the site left an insufficient quantity of casing to reach the proper depth for completion. Moreover, Cook then oversaw the running of that insufficient casing. Relying on Mid-Continent Casualty Co. v. JHP Development, Inc.,
Cook likewise asserts that exclusion j(6) is inapplicable because “the defective work was the removal of casing, [and] the loss of use was to the well, a separate property.” But, this analysis too strays from the plain text of the exclusion. In Mid-Continent, we explained that “[t]he plain meaning of the exclusion ... is that property damage only to parts of the property that were themselves the subjects of the defective work is excluded.”
Although the district court did not grant summary judgment in favor of Admiral on the basis of exclusions j(5) and j(6), we have recognized that we may affirm a district court’s judgment for reasons—supported by the record—other than those relied on by the district court.
Here, the parties’ dispute turned primarily on whether Cook’s negligence, as alleged by Brogdin, caused “property damage” under the policy’s “loss of use” definition. The district court determined that it did not, thereby denying that Admiral had a duty to defend, and the court stopped its analysis at that point. Because the court thus determined that there was no policy coverage in the first place, it had no reason to question whether any of the policy’s exclusions might apply. As
In sum, the property damage alleged by Brogdin in its complaint falls squarely within these two “property damage” exclusions—j(5) and j(6)—of the CGL policy. This, in turn, relieves Admiral of any duty to defend Cook in the action brought against him by Brogdin.
C. Admiral Does Not Have a Duty to Indemnify Cook
Under Texas law, an insurer’s duty to indemnify “is justiciable before the insured’s liability is determined in the liability lawsuit when the insurer has no duty to defend and the same reasons that negate the duty to defend likewise negate any possibility the insurer will ever have a duty to indemnify.”
III. CONCLUSION
For the foregoing reasons, the district court’s summary judgment relieving Admiral of any duty to defend or indemnify Cook is, in all respects, AFFIRMED.
Pursuant to 5th Cm. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cm. R. 47.5.4.
. Casing is tubing or hollow pipe that comes in lengths or "joints” and is used to line the hole or “bore” of an oil well and to permit production when the drilling is finished and the well is "completed,” to permit production of minerals from the well’s productive zone. To avoid unnecessary delay, a maximum number of joints of casing are delivered to the drill site, and, after the depth for completion is determined, excess joints are removed from the site and returned to the supplier.
. Cook v. Admiral Ins. Co., No. 2:09-CV-0109-J, 2010 WL 2605256, at *2-4 (N.D.Tex. June 29, 2010).
. United States v. Caremark, Inc., 634 F.3d 808, 814 (5th Cir. 2011) (citation omitted).
. Fed.R.Civ.P. 56(a).
. Caremark, 634 F.3d at 814 (citations omitted).
. Lincoln Gen. Ins. Co. v. Aisha’s Learning Center, 468 F.3d 857, 858 (5th Cir. 2006) (citing Nat’l Union Fire Ins. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997)).
. Liberty Mut. Ins. Co. v. Graham, 473 F.3d 596, 599-600 (5th Cir. 2006) (citing GuideOne Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 308 (Tex. 2006)).
. The parties do not dispute that Brogdin does not allege "bodily injury” in this case.
. Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 16 (Tex. 2007) (quoting Federated Mut. Ins. Co. v. Grapevine Excavation Inc., 197 F.3d 720, 725 (5th Cir. 1999)).
. Id. at 9 ("The CGL policy, however, does not define an ‘occurrence’ in terms of the ownership or character of the property damaged by the act or event. Rather, the policy asks whether the injury was intended or fortuitous, that is, whether the injury was an accident.”).
. Id. at 8 (quotation marks and citations omitted).
. See id.
. Cook, 2010 WL 2605256, at *3.
. Id.
. Id.
. Id. (emphasis added).
. 557 F.3d 207 (5th Cir. 2009).
. Id. at 213.
. Id. at 215.
. This is simply not a situation in which the insured’s work was to be performed on a discrete independent component of a whole piece of property, and its defective work on that one component caused damage to other components of the whole property. See Gore Design Completions, Ltd. v. Hartford Fire Ins. Co., 538 F.3d 365, 371-72 (5th Cir. 2008) (holding that when the insured was hired for "engineering of an in-flight enlertainment/cabin management system," exclusion
. See, e.g., Underwriters at Lloyd’s London v. OSCA, Inc., Nos. 03-20398, 03-20817, 03-21021, -Fed.Appx.-, 2006 WL 941794, at *18-19 (5th Cir. 2006) (per curiam) (unpublished).
. Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009) (citing United States v. Dunigan, 555 F.3d 501, 508 n. 12 (5th Cir. 2009)), cert. denied, - U.S. -, 130 S.Ct. 1055, 175 L.Ed.2d 883 (2010); LLEH, Inc. v. Wichita County, Tex., 289 F.3d 358, 364 (5th Cir.), cert. denied, 537 U.S. 1045, 123 S.Ct. 621, 154 L.Ed.2d 517 (2002).
. Tex. Ins.Code § 554.002 ("Language of exclusion in the contract or an exception to coverage claimed by the insurer or health maintenance organization constitutes an avoidance or an affirmative defense.”).
. Rogers v. McDonnan, 521 F.3d 381, 385 (5th Cir. 2008).
. Id. at 385-86 (quoting Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 610 (5th Cir. 2007)) (alteration in original).
. Standard Waste Sys. Ltd. v. Mid-Continent Cas. Co., 612 F.3d 394, 398 (5th Cir. 2010).
. Federal Rule of Civil Procedure 56 does not limit district courts or courts of appeals to granting summary judgment based on grounds asserted by the parties.
. Farmers Tex. Cnty. Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 84 (Tex. 1997) (emphasis in original).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.