Opinion
NO. 09-14-00445-CV
02-04-2016
NINA RAE BISHOP AND ALICIA SUE BISHOP, Appellants v. USAA TEXAS LLOYD'S COMPANY, Appellee
On Appeal from the 359th District Court Montgomery County, Texas
Trial Cause No. 11-12-13268 CV
MEMORANDUM OPINION
Nina Rae Bishop and Alicia Sue Bishop (the "Bishops") sued USAA Texas Lloyd's Company ("USAA") for breach of contract. According to the Bishops, they were assaulted by Timothy Gates in his home, and Gates had an insurance policy with USAA that included coverage for individuals injured on Gates's premises. The Bishops alleged that USAA breached the policy terms by failing to honor the Bishops' claims. After a bench trial, the trial court rendered judgment in favor of USAA. In five appellate issues, the Bishops challenge the factual sufficiency of the evidence. We affirm the trial court's judgment.
Background
In August 2008, Terri Bishop, mother of Alicia and Nina Bishop, married Gates. The Bishops lived in Gates's home with Gates and Terri. Nina testified that in September 2008, Gates fondled her breasts and genitals. Alicia testified that on the same night, an unclothed Gates entered her bedroom and rubbed her leg. The Bishops subsequently obtained a protective order against Gates.
In October 2008, Gates filed a petition for divorce and in November, Terri filed a counter-petition for annulment. In February 2010, the Bishops sued Gates for negligence, intentional tort/offensive touching, and intentional infliction of mental anguish. They alleged that a reasonably prudent person knew or should have known that taking Ambien and alcohol in combination would cause him to act in a manner that subjected others to harm. USAA informed Gates that his insurance policy did not cover defense or indemnity for the Bishops' lawsuit. USAA explained that the Bishops were insureds at the time of the assault and that intentional conduct was not covered by the policy.
In October 2010, a district court entered a decree annulling the marriage between Terri and Gates. The Bishops later obtained a default judgment against Gates. In their petition against USAA, the Bishops alleged that Gates "did not intend to touch either Nina Rae Bishop or Alicia Sue Bishop in an offensive manner because on the night of the assault, he was impaired from having taken a combination of alcohol and Ambien[.]"
At trial, Keith Wildenstein, USAA's claims service manager, testified that Gates's insurance policy included acts that occurred during the policy's coverage period. According to Wildenstein, USAA reviews the policy and allegations against the insured when deciding whether to defend an insured. He testified that Gates was the named insured and there were no other named insureds, including Terri Bishop. He explained that Nina and Alicia were considered insureds because they resided in the home with Terri who was married to Gates at the time of the assault. He did not dispute that an offensive touching occurred. However, Wildenstein testified that consuming Ambien and alcohol is an intentional act. He explained that although the policy covers negligence claims, intentional acts are not covered; thus, USAA declined to defend Gates's intentional actions.
Alicia testified that in the hours preceding the assault, she did not see Gates consume any alcohol or medication. She did not smell alcohol on his breath, and she testified that Gates did not show signs of impairment. Nina testified that after the assault, she got out of bed and went to another room, but Gates approached her and was acting "weird." She admitted that she did not smell alcohol on his breath or see him act impaired. Alicia and Nina did not believe that Gates directly told them that he was impaired by alcohol and Ambien.
Factual Sufficiency
The Bishops' five issues address the factual sufficiency of the evidence to support the trial court's judgment. Under factual sufficiency review, we consider and weigh all the evidence, and will set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In a bench trial, the trial court acts as factfinder and is the sole judge of the credibility of the witnesses and the weight to give the testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); see also HTS Servs. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.). We cannot substitute our judgment for that of the factfinder, as long as the evidence falls within the zone of reasonable disagreement. Wilson, 168 S.W.3d at 822.
In issue one, the Bishops argue that a covered occurrence took place on the night of the assault because "intentional conduct can be 'an accident' under a homeowner's insurance policy if the injury was not intended." In issue four, the Bishops contend that the evidence fails to demonstrate that Gates's conduct was intentional and should have been excluded from coverage. When determining an insurance policy's coverage, "courts look to the factual allegations showing the origin of the damages claimed, not to the legal theories or conclusions alleged." Ewing Constr. Co. v. Amerisure Ins. Co., 420 S.W.3d 30, 33 (Tex. 2014). Only if an insurance policy is ambiguous will a court construe the policy against the insurer in a manner that favors coverage. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex. 1995).
Gates's insurance policy covered claims against an insured for damages because of bodily injury caused by a covered occurrence. The policy defined "occurrence" as an accident during the policy period that resulted in bodily injury or property damage. The policy excluded coverage for bodily injury "caused by the intentional or purposeful acts of any insured, including conduct that would reasonably be expected to result in bodily injury to any person. . . ." Thus, the exclusion in USAA's policy uses the word "intentional" in a way that looks at the effect of the insured's action. See Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 831 (Tex. 2009) (Language that is effect-focused rather than cause-focused voids coverage when the "resulting injury was intentional, not merely when the insured's conduct was intentional.").
"An accident is generally understood to be a fortuitous, unexpected, and unintended event." Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 8 (Tex. 2007). "[A] deliberate act, performed negligently, is an accident if the effect is not the intended or expected result; that is, the result would have been different had the deliberate act been performed correctly." Id. An intentional tort, on the other hand, "is not an accident and thus not an occurrence regardless of whether the effect was unintended or unexpected." Id. "[A] claim does not involve an accident or occurrence when either direct allegations purport that the insured intended the injury (which is presumed in cases of intentional tort) or circumstances confirm that the resulting damage was the natural and expected result of the insured's actions, that is, was highly probable whether the insured was negligent or not." Id. at 9.
In this case, the trial court heard testimony suggesting that Gates was not intoxicated on the night of the assaults, which indicates that Gates intentionally assaulted the Bishops. The Bishops also presented the trial court with allegations that at some point during the proceedings against him, Gates claimed he intended no harm and had ingested Ambien and alcohol before the assaults. Nevertheless, "a criminal assault is an intentional act[]" and "voluntary intoxication does not negate the intent or knowledge elements of criminal conduct." Phan Son Van v. Pena, 990 S.W.2d 751, 755 (Tex. 1999); Malkowsky v. Tex. Dep't of Pub. Safety, 53 S.W.3d 873, 875 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). Accordingly, as sole judge of the weight and credibility of the evidence, the trial court could reasonably conclude that Gates committed the intentional act of sexual assault and that his intent was not negated by any voluntary consumption of alcohol and Ambien. See Wilson, 168 S.W.3d at 819, 822; see also HTS Servs., 190 S.W.3d at 111; Wessinger v. Fire Ins. Exch., 949 S.W.2d 834, 841 (Tex. App.—Dallas 1997, no writ.) (Wessinger's voluntary intoxication did "not change the fact that punching or striking Morrison was a voluntary and intentional act and thus not accidental."). Thus, the evidence supports a finding that Gates's intentional conduct was not an accident and, consequently, not an occurrence under the policy, regardless of whether he intended or expected to cause harm. See Lamar Homes, Inc., 242 S.W.3d at 8-9.
Reviewing all the evidence, we conclude that the trial court's judgment is not so weak or so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Francis, 46 S.W.3d at 242. We overrule issues one and four. Because the evidence is factually sufficient to support the trial court's conclusion that an occurrence did not occur under the policy, we need not address the Bishops' remaining issues.See Tex. R. App. P. 47.1. We affirm the trial court's judgment.
In their other issues, the Bishops contend that (1) they suffered bodily injury as the result of a covered occurrence; (2) they were not excluded from coverage by virtue of being insureds under the contract; and (3) collateral estoppel does not bar their claim against USAA for damages based on a covered occurrence. --------
AFFIRMED.
/s/_________
STEVE McKEITHEN
Chief Justice Submitted on November 19, 2015
Opinion Delivered February 4, 2016 Before McKeithen, C.J., Kreger and Horton, JJ.