Affirmed and Memorandum Opinion filed August 25 , 2022

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00736

- CV

THE HANOVER CASUALTY COMPANY , Appellant
V.
SEVEN ACRES JEWISH C ARE SERVICES, INC. , Appellee

On App eal fr o m the 127th District Court

Harris Coun ty, Texas Trial Court Cause No. 2019

- 88919

O P I N I O N In this dispute over insuranc e coverage, a ppellant The Han over Ca sualty Company brings a permissive appeal from the tri al court ’ s interl oc utory order rendering partial summary j udgm ent in fav o r o f app e llee Seve n Acres Jewish Care Services, Inc. and asks this court to resolve the following controlling question of law : Does Han over p olicy ’ s flood endorsement and flood limit control the amount of coverag e available for Seven Acres ’ claimed busine s s inc ome a nd / or extra expense losses resulting from Hurrican e Harvey fl ooding?2

We conclude the flood endorsement did not control the amount of coverag e available for Seven Acres ’ claimed business income a nd / or extra expense losses resulting from Hurrican e Harve y fl ooding and affirm the interlocutory order of the trial court.

I. B ACKG ROUND
Seven Acres is a not

- for

- profit licensed nursing facility and licensed assisted

- living facility in Houston, Texas

. As a res ult of Hurri cane Harvey, the facility sust ained e xt ensiv e physical damage and loss after its first floor was flooded. Seven Acres had t o suspend operations following Hurrican e Harvey and then resumed reduce d o perations for several months until the faci l ity was repaired and relicensed with the stat e

. Th e pa rties d o not dispute that Seven Acres was covered at the time of this loss by a commercial property policy issued by Hanover

. The policy declarations describe tw o subtypes of commercial property covera g e : (1) building and contents and (2 ) busi ness

- inco m e c overa ge, including e xtra expense

. The policy also contained a special endorsement providing a limit of $4.5 million in coverage for the peril o f flood. 1

Seven Acres made a claim on the polic y for losses due to building dam age as well as business

- inc ome l o s ses

. Hano ver paid Seve n Acres the entire $ 4.5 million limit applicable to the flood endors ement in the pol icy but refused to make
any pay ments beyond the flood limit explaining that all claims arising from the flood

— whether claims f or property damage or bu sines s

- income losses and extra

e xpe nse

— we re sub

ject to the flood limit. Seven Acres disagree d on the ba sis that its bus iness

- income losses claim was subject to a separate policy limit.

1 The flood endorsement at issue in th is app eal is not alleged to be part of the National Flood Insurance Program.3

In January 2020, Seven Acres filed s uit against Hano v er seeking payme nt for its business

- income and extra

- expens e claim pu rsuant to t he policy

. 2 Seven Acres filed a partial traditional summary

- judgme nt motion seeking judgment as a matter of law that the policy ’ s flood limit does not co n trol the amount of coverage available fo r its business income losses , and the tri al cour t g ranted the motion in October 2020

. Hanover subsequently received permission fro m the trial cou rt to appeal this interlo cutory o rder of the trial court

. See Tex. Civ. Prac. & Rem. Code Ann. § 51 .014(d ) ; T ex . R. Civ. P. 168

. 3 , 4

II. A NALYSIS
We re view a tri al court’s granting of a summary judgment de novo. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). The movant on a traditional motion for summa ry judgment has the burden of showing that no
ge nuine issue of material fact e xists and that i t is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Mann Frankfor t Stein & Lipp Advisors, Inc. v.

2 Seven Acre s ’ petition also included a cl aim for hail dama g e , whic h los s o ccu rred be f or e Hur rican e Harvey. However, in its petition for permissive appeal, Hanover clari fied the hail cl aim was not part of the permissive appeal and that it would seek severance o f the claim.

3 The rule states : On a party ’ s motion or o n it s own init i ative, a t ri al co urt may permit an appe al from an interlocutory order that is not otherwise appealable, as pr ovided by statute. Permission must be stated in the order to be appealed. An order previously issued may be amend ed to i nclude such perm issio n. Th e permissi o n must identify the controlli ng question of law as to which there is a substantial ground for diffe rence of opinion, a nd must state why an immediate appeal may materially advance the ultimate termination of the l itigati on

. Tex. R. Civ . P. 168. H anover rec e iv ed pe rmission from the trial court to appeal the interlocutory ruling in the order appealed. This court granted Han over ’ s petition for permissive interlocutory appeal on April 6, 2021.

4 Th is permissive appeal is gove rn ed by the rules for a cce lerated appea l s

. T ex. R. App. P. 28.3 (k) (permissive appeals) ; see a lso Tex. R. App. P. 28.1(a) (acce lerated appeal s )

. As such , this court may hear an accelerated appeal on sworn and uncontroverted copies of the relevant d ocument s in lieu o f a clerk ’ s rec ord , as the p artie s did here

. Tex. R. App. P. 28.1(e).4

Fielding , 289 S.W.3d 844, 848 (Tex. 2009) . I f the movant satisfies this initial burden on the issues expressly presente d in t he motion, then the burden shifts to the nonmovant to presen t to the trial court any issues or evi d ence that would preclude a summary judgment. See City of Hous ton v. Clear Cree k Basin Auth ., 589 S.W.2d 671, 678

– 79 (T ex. 1979 ).

An insured has the ini tial b urden of e stablishing coverag e under the terms of the policy

. JAW The Pointe, L.L.C. v. Lexington I ns. Co

. , 460 S.W.3d 597, 603 (Tex. 2015)

. To avoid liability, the insurer then has the burden to plead and prove that the loss falls within an exclusio n to t he policy ’ s cove rage. Id .; Tex. R. Civ. P. 94 (“Where the su it is on an insurance contract which i n sures against certain general hazards, but contains other provisions limi ting such general liability, the party suing on such contract shall never be r equire d to alleg e that the loss was not due to a risk or cause com ing w ithin any of the exceptions speci f ied in the contract, nor shall the insurer be allowed to raise such issue unless it shall specifically allege that the lo ss wa s due to a risk or cause coming within a particular exception to the general liability [.] ”) . “If the insurer proves that an exclu s ion applies, the burden shifts back to the insured to show that an except ion to th e exclusion brings the claim back wi thi n cov erage.” JAW The Pointe , 4 60 S.W .3d at 603

. Seven Acres gen erally established coverage unde r the terms of the policy.
We must now d ecide whether Hanover established the disputed loss falls within an exclu sion or limitation to the policy ’ s coverage.
A. P ri ncipl es of construction

Texas courts construe insurance policies “using ordinary rules of contract interpretation.” Nassar v. Liberty M ut. Fire Ins. Co

. , 508 S.W.3d 254, 257 (Tex. 2017)

. When doing so, courts must “determin[e] the parties ’ intent as ref lec ted i n the terms of the policy itsel f.” Tanne r v. Nation wide Mut. Fire Ins. Co ., 2895

S.W.3d 828, 831 (Tex. 2009). Courts must “examine the entire agreement and seek to harmo nize and give effect to all provisi ons so th at none will be meaningless.” Gilber t T ex. C onstr., L.P. v. Underwrit ers at Lloyd ’ s L o ndon , 327 S.W.3d 118, 126 (Tex. 2010). “[N]o one phrase, sentence, or section [of a co n tract] should be isolated from its sett ing and considered apart from the o ther prov isions.” Forbau v. Aetna Life Ins. C o ., 876 S.W.2d 132, 134 (Tex. 199 4) (qu oting Gua r dian Trust Co.
v. Bauereisen , 121 S.W.2d 579, 583 ( Tex. 1938)). “Unless the policy dict a tes otherwise, [courts] give w ords and phrases their ordinary and generall y accepted meaning, reading them in context a nd in li ght of the rules of gramm ar and common

us a ge.” RSUI Indem. Co. v. The Lynd Co ., 466 S.W.3d 113, 118 (Tex. 2015) (citing Gilbert , 327 S.W.3d at 126). If we dete rmine that only one party ’ s interpretation o f the insurance policy is reasonable, then th e p olicy is unambiguous and the r easona

ble interp r etation should be adopted. Nassa r , 508 S.W.3d at 258

. Alternatively, if we determine t h at both interpret ations are re asonable, then the policy is ambiguous. Id

. In that event, “we must resolve the uncertain ty by ad opting the construction t hat mo st favors t he insured,” and because we are construing a limitation on coverage, we must do so “ev e n if the construction urged by the insurer appears to be more reasonable o r a more accurate reflection of the parties ’ int ent.” RSUI Indem. Co. , 466 S.W .3d at 119 (quot i ng Nat ’ l Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson Energy Co ., 811 S.W.2d 552, 555 (Tex. 1991)).

B. T he p olicy

Th e Bui lding and Personal Property Cove rage Fo rm insure d direct physical loss and damage to th e pro perty : “ We will pay for direct physical loss of or damag e to Covered P r operty at the premis es described in the Declaratio ns caused by or resulting from any Co v ered Cause of Loss. ” The policy defines Cov ered6

Cause of L oss to “ m ean [] direct physical lo s s un less the loss i s excluded or limited in this policy. ”

W ithout a flood endorsement, the poli c y did not c o ver “ loss or damage

cau se d directly or in directly ” by flood or other water damage. However, Seven
A cres ’ policy included an option al flood endor s em e nt w hic h modi fied the policy and incl uded flood a s a Covered Cause of Loss.

T he Bus iness I nco me (and Extr a E xpense) Coverage Form insured against the loss of business due to the nec e ssary s uspension of ope r ations caused by a direct physical loss or dam age to p roperty :
1. Business Income

. . . . We will pay for the actual loss of Busi ness I ncome you susta in due to the necessary “suspension ” of your “oper ations ” during the “period of
res t o ra tion

. ” The “ suspensio n” m ust be c aused by di rect physical loss of or da m age to property at premises which are descri b ed in the Declarations and for which a Business Incom e Limit o f Insurance is shown in the Declarations . The loss or damage must be caus e d by or result from a Co vered Cause o f Loss

.

. . . . 2. Extra Expense a. E xtr a Exp ense Coverage is provided at the premises described in the Declarations only i f the Decl aratio ns show that Business Income Coverage applies at that premises. b. Extra Expense m e ans necessary expenses y ou incur duri ng the “per iod of restoration” tha t y o u wo uld not have incurred if there h ad been no direct physical loss or damag e to p roperty ca used b y or resulting from a Covered Cause of Loss.
The f lood endors e ment only addresses the business

- income cove rage to clarify that the definition for th e “ pe rio d of restoration ” for purposes of a business

- income or ex tra

- ex pens e clai m “ applies to each Flood e ven t. ”7

The flood endorsement contains a s eparate limit of insurance with the following explanation of the limits of the insurance :
E. Limits of Insurance 1. Per “Occur rence” Limit Of Insurance The most we wi ll pay for loss or damage caused by Flood in any one “occurrence” is the a pplicable per “occurrence” Li m it Of Insurance shown i n the Flood Declarations re gardless of the number of locations involved.

. . . . 3

. Maxi mum Per “Occurrence” Limit Of Insurance R egardl ess of the number of per “occurrence” Limits shown in the Flood Decl arations, the Maximum per “Oc c urrence” Limit Of Insur ance shown in the Flood Dec larations is the Most we will pay in any one “Oc cu r r enc e ”.
C. Analysis

1. Hanover ’ s i nterpretation

Ha nover argues that the flood endors em ent plainly and unequi vocally st ates the parties ’ intent t o modify the terms of the Policy, i ncludin g the Business Inco m e (and Extra Expense) Covera g e form. Han over also rel ies on t he language and definitions in the fl ood endorsement which state the poli cy will only cover $4.5
mil lion fo r all loss and dam age caused by flood

. 5 Because t he flood endorsement provides a benef

i t to Seven Acres not o therw is e afforded by the policy , Ha n ove r maintains that Seven Acres is bound by the terms and the limit of the flood endorsemen t

. F o r these re asons , Hanover asserts the only reasonable interpretation of the policy language is that if an insured ’s business

- income claim is triggered by and ar i ses out of a peril that pr ovi des a specific limitation

— as the Flood

5 I n contrast, t he general Bu ildin g and Persona l Pro pert y Coverage F o rm states with respect to the limits o f insurance : “The most we will pay for loss or damage in any one occ urrence is t he applic able Limit of Insu rance shown in the Declarations. ”8

Endors ement does in th is cas e

— the busi ness

- income coverage aris ing from that peril is subject to that same limitation

. 2. Seven Acres ’ interpretation Seven Acres respon ds that the languag e o f the p oli cy is unambiguous that the flood l imit does not also cap busin ess

- interruptio n and extra

- e xpense c laims arisi ng out of a flood event

. Seven Acres addre sses the structure of the p o licy noting th at the propert y

- coverage f orm covers “ direct physi c al loss ” to real and personal property. The Bu siness Income Coverage Form covers business loss es flo wing from a suspension of business operations due to a covered direct physical loss. The b usiness

- income cove rage has a separate premium and limit from the
pr o pert y coverage

. Given that the flood endors ement added flood as a cover ed cause of los s und er the policy , S even Acres argues that the flood endorsement and its limit applied only to “ direct physical loss. ” Seven Acres also a rgues that if Hanover wanted to mak e b usiness

- income and extra

- expense c laims subject to the flood limi t , then Hanover could have expressly add ed language to that end as Hanover did with other provision s in the policy

. 3. Policy construction

a. The f

lood e ndorsement modifi ed business

- incom e c o vera ge
H a nover argues that the flood endorsement expressl y modified the i nsura nce pr ovided un der the Business Income Coverage Form . While the flood e ndorsem e nt does clearly state that it modified that form , as well as several other f orms, Hanover make s t o o mu c h of this statement. The preamble to the flood endors em ent
states tha t th e Busin ess Incom e Coverage Form is modified but does not speci fically explain h o w it is modified. Not only does the flood endorsement specific ally modify a definition applica b le to t he Business Income Coverage9

Form , 6 the flood en dorsement never states that any coverage under the Busines s Income Coverage Form would be subject to the flood limit of insurance.

b. The flood endorsement do es not subject Business Income or Extra Expe ns e s c lai ms r esult ing fr om the aftermath of a floo d event to the flood limit
Ha nover relies on lang uage in the policy tha t the “ most we will pay for loss or damage caused by Flood in any o ne ‘ occurrence ’ is the applicab le per

‘ occurrence ’ Limit Of Insuranc e s h ow n i n the Flood Declarati on s regardless of t he

nu mber o f locatio ns involved. ” Ha nover further cites language in th e flood endorsement which states “ Occurrence ” means all loss or damag e that is attributable to an ac t, event , cause , or series of similar , r e la ted acts, events , or

c ause s involving one or more person s or not involving any person s. 7

Fl ood , w hich the policy defin es a s a “ general and temporary condition of partial or complete inundation of normally dry land areas , ” causes direct p hysical damag e o r l oss to property. The flood endorsement adds fl ood as a C overed Cause of Loss and theref

ore provid es insurance coverage fo r “direct physical loss ” caused by flood. In contrast, the Business Income Coverage Form provides coverage for

actu al loss of bus i ne s i nco me sustained due to the necessary suspensio n of bus iness operations

. The trigg ering event for business

- income coverag e is the suspension of bus iness c aused by a Covered Cause of Loss. Here, Seve n Acres alleged that it sustained actual losses in bu s in e ss in come because it was necessary to tempor aril y suspend its bus i ness operati ons. It was not the f lood itself that caused the

6 The flood endorsement states : “ The ‘ period of resto r ation ’ definition stated in the Coverage Form . . . applies to each Fl ood event. ”

7 It is not e wor thy that the l a nguage rep eatedly used by Ha n over in its ap pellate brief ing i s that the flood limit “ shall apply to all covered damages/losses resulting from a covered fl ood event. ” However, the po licy does n ot use th e phrase “ resulting from. ” The policy itself states that the “mos t we wi ll pay for l oss or damage caused by Flo od in any one occurrence is the applicable per ‘ occurrence ’ limit. ”10

business

- income losses, but rather the temporar y suspension of business operations. Therefore , we disagree with Hanover that t he pa rti es ’ clear intent was th at the flood limit s hall apply to busi ness

- inco me lo sses “ resul tin g from ” a covered flood event and declin e to rea d additional langua ge into the policy that restricts cov erage

. Although the business

- income form is part of an d rela ted to the other parts of the policy, e ach part of the p olicy covers different types of loss, and differen t for ms or endorsements con tain differ ent limi ts that apply to that t y pe of loss. These limits do not apply to o ther losses not covered by t ha t p art

. T he purpose of purchasing business

- i ncome coverage is for an i nsured to protect it s elf against monetary lo sses when t he insured was r equir ed to temporar il y suspend its bus ines s operations. Such a claim is intended to coexist with a claim for da ma ge , or
p hy sical loss, to a b uilding or other covered property. Because we have no explicit language subjecting business

- income claims to the flood limit in this policy, we must give effect to the policy language as written and not effectively read into t he f l ood e nd orsement a broade r exclusion than intended.

If H anover had intended to restrict business

- income claims resulting from a flood event, Hanover should have included language in t he flood endorsement to that effect as it has in other endorsements in th e poli cy

. For instance, in th e Data
B reach Coverag e For m , the policy speci fically states “[t]he Additional Expense Cove rages Aggregat e Sub li mi t of Insura n ce is part of, and not in addition t o, the
Data Breach Cov erage Aggr egate Limit of Insurance

. ”

F urt her confi rm ing Seven Acres ’ interpreta tion, the langu age in the fl ood endo rsement discussing ensuing loss clearly explains that the floo d limit does not subject all other policy c laims for ensuing loss to the flood limit :11

5. Ens uing Loss

In the event o f co ver e d ins ur ing loss for exa mple, lo ss caused by Fire, Explosion or Sprinkler Leak age which resul t s from the Flood, the
mo st we will pay, for the total of al l loss o r damage caused by Flo o d, Fire, Explosion, and Sprinkler Leak age is the Limit of Insuran ce a ppl i cable t o Fire. We will n ot pay the sum of th e Fire and Flood Limits of Insurance.

. . . . Example #1 The damage due t o Flood is $500,000. The dama ge due to Fire is $500 ,000. Payment f

or Flood damage is $ 4 00,00 0 ($500,000 damage minus $5 ,000 Flood d edu c tib l e = $ 49 5,000; Limit is $400,000). Payment f

or Fire damage is $400 ,000 ($500,00 0 damage cap ped at the diffe rence betwee n the Basic Limit and th e Flo od Lim it). Tot al Loss Payment is $80 0 , 000

. In the example of ensuing loss described in the policy , a fire ca u sed b y a flood result ed in additional losses

. Th e fire damage in the example co uld be described a s a loss resulting fr om a flood event. Despite the fact t hat the fire was a result or c ons equence of the flood, the policy example makes clear there co uld be

c o vera ge for the fire loss above and beyond the fl ood limit. The language of the flood endorsement does not support Han over ’s interpretation to str ictly subor d inate a ll flood

- related los s es a nd cl aims to the flood lim it , and we conclude Hanover ’ s interpr etation is not reasonable.

c. Seven Acres benefit s from the flood end orsement

Hanover also argues that Seven Acres cannot benefit from the flood endorsement while at th e same tim e escaping i ts limit s . How ever, thi s argument requires accept ance of Hanover ’ s interpretati on th at th e limit in the flood endorsement limit ed all claims resulting from a flood event. Because we disagree12

with Hanover ’ s interpretation, this argument is also unpersuasive. 8

4. Case l aw The par ties extensively brief case law in which insureds make clai m s for busines

- in come losses after floo d or w ater events . All the cases cite d are mere l y pers uasive aut hority for t h is cour t, which we may follow or disagree with in our dis cretion

. See Penrod Drilling Corp. v. Williams , 868 S.W.2d 294, 296 (Tex. 1993) ( “ W h ile T exas courts may certainly draw upon the precedents of the Fifth Circui t, or any o ther federal or state court, in determining the appropriate federal

r ule of decision, they are obligated to follow only higher Texas courts and the United State s Supreme Court

. ”)

. T he common threa d between all the cases reflects , unsurprisingly , that the b readth of the la nguage i n th e flood endorsement determines whether business

- income coverage is subject to a limit

. S even Acres relies o n a recent case from the Southern D istri ct of T exas involving a similar contest over business

- income cove rage a rising o ut of flooding from H u rrican e Harvey. See Alley Theatre v. Hanover Ins. Co

. , 436 F. Supp. 3d 938 (S.D. Tex. 2020) ( Rosenthal, J .). Seven Acres argues Alley Theatr e is part i cular ly persu asive because it involved the s ame insurance company , t he same law firm representing Hanov e r , and the exact coverage issues in dispute here

. Id . at 940

– 41. In Al ley Theatre , t he federal district court fou nd that Alley Theat re ’ s busin ess

- l oss c laims were not sub ject to the flood lim it

. Id . at 946 ( “ Hanove r ’ s i nterpr eta tion applies the Flood E n do rsement Limit to more categories of damage than the Flood Endorsemen t covers and fails to give effect to the ov erall Policy structure and langu age. ”)

.

8 Similarly, Hanover ’ s argument that the floo d

- endorsement l imit appl ies w hen “ th e Bu siness Income Form is interrelated to other provisions in t he Pol icy ” requi r es acceptance of the same i nterp retation

.13

A n other case relied on by Seven Acres is Baylor C oll ege of Me d ic ine v

. Am er ica n Guarantee & Liab ility I ns u rance Co

. , No. CV H

- 02

- 1711, 2002 WL 35644976 (S.D. Tex. Oct. 30, 2002) (Rosenthal , J.) . In Baylor , t he parties disagree d over whe ther a flood

- endorsem e nt li mit applied to lost

- business income caused by flood. I

d

. a t *1

. T he court found that the two coverage parts “reflect the d istinc tion, recognized in the ca s es, between direct physical loss or damage to covered property from a covered c ause of loss, on the o ne hand, and, on th e other hand, reduction in business income resulting from the suspension of operations durin g the cover ed pro perty ’ s restoration.” I d

. a t * 6 (collecting cases distinguishing between two types of coverage). The d istrict cou rt ruled t hat t he fl ood endors ement limit applied “to all flood loss or damage covered by the Flood Endorsement, which is al l ‘direc t phy sical loss or damage to Cover ed P rop erty’ due to flood.” Id

. a t * 7

. Though the insurance p olicies discussed in Alley Theat re an d B aylor a r e n ot i dentical to Seven Acre s ’ policy , the policies cont ain similar de fin itions and

structu re such that the opinion s are persuasive. Ha nover argues i n response that Alley Theatre and Baylo r involved the interpretation and analysis of policies s i lent

or a m biguo us as to wh eth er the full limits applied, w h i ch they arg ue is not applicable in this case. We disagree. While the flood endorsement here states t hat it modifies the business

- income coverage , the flood endorsement is silent as t o the effect o f the flo o d end orsement on th e l imit for the business

- i n come coverage.
Ha nover relies on cases from a variety of jurisdictions to suppor t i ts position , altho ugh these cases primarily involve different or br oade r flood

- endorsement policy language. In Altru Health Sy s tem v

. Amer ican Prot ec tion Ins urance Co

. , t h e Eight Circ u it C ourt of Appeals concluded there was no business

- income coverage for an insur ed hospital which was forced to close because flood waters damaged14

the local water system. 238 F.3d 961, 964 (8th Cir. 2001) . T hou gh th e h osp ital was not physi cal l y damaged by floo d , it made a claim for its business

- income losses and expenses. Id . at 962. In contra s t to Sev e n Acres ’ policy , the flood endorsem ent in Altru unambiguously subjected all losses ca used b y a f lood, inclu ding busine ss

- income and e xtra

- expense losses, to the flood limit. Id . at 965 ; compare with Mark Andy, Inc. v. Hartford Fire Ins. Co. , 233 F.3d 1090 , 1 092 (8th Cir. 2000) (policy was silent as to whether business

- income and e xtra

- e xpe ns es los ses woul d be sub

j ect to flood li mit)

. 9 The only Texas state

- court case cited is For Kid s Only Ch ild D evelop men t C enter, Inc. v . Phila delphia Indem ni ty In surance . Co

. , 260 S.W.3d 652 (Tex. App.

— Dallas 2008 , pet . denied ) , which is distinguishabl e

. In tha t case, a day care

ce nter was flooded with sewage from floor drains in the building; the overflow was

e xclude d from coverage lo s s or damage cause d directly or indirectly by water that backs up or overflows from a sewer, drain , or sump. Id

. at 653

. Becaus e t h e day care cent er procured a n add itio nal s pecial endorsement cover ing the loss, t he insurer paid the day ca re ce nter t he limits under t h e special endorsement

. Id

. at 653

– 54

. The parties disputed whether the special

- endorsement limit precluded the d aycare fr o m recovering i ts business

- i ncome losses under the policy above and beyond th e special

- endorsement l i mit

. Thoug h our sister c o urt concluded t he day care center ’ s cov erage was subject to the limit in the spe cial endorsement, its

9 See also El

-

AD 250 W., LL C v. Zur ich Am. Ins. Co

. , 130 A.D.3d 459 (N.Y. Ap p. Div. 2015) (“ El

- AD II ”); El

-

AD 250 W., LLC v. Zurich Am. Ins. Co. , 44 Misc. 3d 633, 638

– 39 ( N.Y. Sup. Ct. 2014 ) (“ El

- AD I ”) ( policy c on t ain e d broader de finiti on o f flood l oss ) ; New Sea Crest Healthcare Ctr., LLC v . Lex ington Ins. Co

. , No. 12 C V 6414, 2014 WL 287983 9, at *1

– 2 (E.D. N.Y. Jun. 24, 2014) ( policy c ontained no referenc e to phy sical damage when defining flood damage); Gilbert/

Ro bins on, Inc. v. Sequoia Ins. Co

. , 65 5 S.W .2d 581, 583 (Mo. Ct. App. 1983) ( pol icy m ade no reference to floo d damage as physi cal lo ss)

. Because these cases involve varying policy lang uage, they do not prov ide any persua si ve rationale affecting our interpr et atio n of the policy.15

holding was pre mised on the c o nclusion that no la nguage i n the endorsement change d a sewer backup into a “ covered cause of loss ” Id . at 657. In Seven Ac res ’ policy, the flood endor semen t spec ifically add s f l ood as a Co vered Cause of Loss. Therefore , the reasonin g of F or Kid s Only is n o t applicable o r persuasive to th e facts before us.

We overrule Hanover ’ s sole issue on appe al.

III. C ONCLUSION
Hav ing overruled Hanover ’ s sole issue on a ppea l , w e a ffirm the inte r locutory order of the trial court. 10

/s/ Cha r les A. Spain Justice

P a nel c o nsi sts of Justic es Wise , Bourli ot, and Spain

.

10 Because this is a permissive appeal of the trial

- court ’s interlocutory summary

- judgment order , only that order is before this court

— not th e ent ire tr ial

- court case. We do not remand the case to the trial court becau s e the case is not bef ore us. Chappell H ill Sausage C o. v. Durrenberger , No. 14

- 19

- 00897

- CV, 2021 WL 2656585, at *5 n.6 (Tex. App.

— Hou ston [14th Dist.] June 29, 2021, no pet.) (me m. op .).