Opinion
No. 01-00-00936-CV.
Opinion issued March 20, 2003.
Appeal from the 151st District Court of, Harris County, Texas, Trial Court Cause No. 1999-32101.
Panel consists of Justices HEDGES, JENNINGS, and MIRABAL.
MEMORANDUM OPINION
This case involves a commercial general liability insurance policy. The trial court granted the insurance company's amended motion for summary judgment against its insured on the grounds the insurance company had no duty to defend and no duty to indemnify. The insured appeals, arguing the trial court erred (1) in granting summary judgment for the insurance company, and (2) in failing to grant the insured's motion for partial summary judgment on the duty to defend issue. We reverse and render in part, and reverse and remand in part.
Background
The insured is a residential facility for troubled youth. One of the juvenile residents died as a result of injuries he received when employees of the insured restrained him during a search of his sleeping area. The youth's parents sued the insured for wrongful death, alleging the insured was negligent in:
(1) failing to properly train their staff members in the manner in which to restrain and search resident youths at Progressive,
(2) failing to prevent excessive force from being used against residents at Progressive,
(3) failing to safely supervise the work being performed at Progressive,
(4) failing to warn of unreasonably dangerous activities on the premises,
(5) failing to take proper precautions in avoiding this incident, and
(6) failing to do what a prudent owner would do under the same or similar circumstances.
The insurance company at first provided a defense for the insured, but then withdrew its defense. The trial court awarded the youth's parents approximately $2.3 million in damages against the insured. The insured then sued the insurance company for breach of contract, DTPA violations, and Stowers doctrine violations.
Duty to Defend
The following recent Texas Supreme Court opinion controls the duty to defend issue: King v. Dallas Fire Ins. Co., 85 S.W.3d 185 (Tex. 2002). Based on King, we hold that the youth's parent's petition alleged an "occurrence" with respect to the insured, and consequently the insurance company had a duty to defend the insured as a matter of law.
Duty to Indemnify
In addition to arguing lack of an "occurrence" under the policy, the insurance company takes the position that the insured's employees were providing "professional services" when they restrained the juvenile in his bedroom during a search, and therefore the "Professional Services Exclusion" under the policy eliminates any coverage for the incident. In this traditional summary judgment case, the insurance company had the burden to prove, as a matter of law, that the actions of the insured constituted "professional services" within the meaning of the exclusion. Tex.R.Civ.P. 166a(c). There is no evidence in the record the employees involved in the incident were "professionals" in any sense of that word. Further, the insurance company's motion for summary judgment does not assert that the alleged acts of negligence of the insured (failure to properly train and supervise staff, etc.) constituted "professional services" within the meaning of the "Professional Services Exclusion" clause, and therefore that issue is not before us for review.
Based on this record, the insurance company did not establish its entitlement to summary judgment as a matter of law on the duty to indemnify issue.
We sustain the insured's third issue.
Conclusion
We reverse the summary judgment for the insurance company; we render judgment that the insurance company had a duty to defend the insured; and we remand the remainder of the case to the trial court.