Opinion filed January 29, 2015



### In The 

# Eleventh Court of Appeals

__________
No. 11

- 1 2

- 00 357

- C V

__________ KELLY SPURLOCK, AS LEGAL REPRESENTATIVE FOR THE ESTATE OF J.O. SPURLOCK , Appellant

V.

BEACON LLOYDS INSURANCE COMPANY AND GRANTHAM

- ADKINS INSURANCE AGENCY , Appellee s

On Appeal from the 29th District Court
Palo Pinto C ounty, Texas Trial Court Cause No. C43924

O P I N I O N This appeal involves the interpretation of a homeowner’s insurance policy

. Specifically, we must construe the policy to determine if coverage exists for a personal property loss alleged to have occurred after the death of the name d2 insured. Appellant, Kelly Spurlock (Spurlock) , as legal r epresentative for t he Estate of J.O. Spurlock, brought suit against Beacon Ll oyds Insurance Company (Beacon) to recover proceeds under a homeowner ’s insurance policy for the loss of personal property that was allegedly stolen from a residence. Spurlock also named
Grantham

- A dkins Insurance Agency (Grantham

- Adkins) as a defendant. Spurlock

a sserted that, if the homeowner’s insurance policy that was issued by Beacon did not provide coverage for the loss of personal property, Grantham

- Adkins was negligent in failing to procure coverage for the loss. Beacon and Grantham

- Adkins filed motions for summary judgment on Spurlock’s claims. The trial court granted the motions in separate orders. Spurlock appeals the trial court’s orders. We
affirm. Background F a cts J.O. Spurlock owned and lived in a house in Mineral Wells, Texas , that he
insured with Beacon

. The policy that Beacon issued to J.O. Spurlock was a Texas Homeowners Policy Form HO

- A No. 42 TLO 7009742. J.O. Spurlock was the only named insured under the p olicy. The policy was effective from May 31,
2008 , to May 31, 2009. The “ RESIDENCE PREMISES/DWELLING ” listed in the declarations page of the policy was identified by the legal description of J.O. Spurlock’s house. The street address of the house was 704 Cedar in Mineral
Wells. The policy provided dwelling coverage and personal property coverage. J.O. Spurlock died in January 2009. Spurlock was appointed as the representative of J.O. Spurlock’s estate. In April 2009, Spurlock discovered that
items of personal property had been removed from J.O. Spurlock’s house at 704
Cedar in Mineral Wells

. Spurlock contended that the missing personal property
items had been stolen and that the policy issued by Beacon provided coverage for the stolen personal property. Accordingly, Spurlock filed a claim with Beacon in which he sought to recover for the loss that resulted from the theft. Beacon3 concluded that the policy did not provide coverage for the stolen property. Therefore, Beacon denied Spurlock’s claim. Spurlock filed suit against Beacon and Grantham

- Adkins, the insurance agent that procured the Beacon policy for J.O. Spurlock. Spurlock alleged claims against Beacon for breach of cont ract, breach of the duty of good faith and fair dealing, common

- law fraud, fraud by nondisclosure, violations of the Unfair Settlement Practices Act, violations of the Deceptive Trade Practices Act, and violations of the Prompt Payment of Claims Act. Spur lock alleged claims against
Grantham

- Adkins for common

- law fraud, fraud by nondisclosure, violations of the
Unfair Settlement Practice s Act, violations of the Deceptive Trade Practices Act, violations of the Prompt Payment of Claims Act, negligent procurem ent, and negligent misrepresentation. Spurlock sought to recover actual damages, a statutory penalty, additional damages under the Deceptive Trade Practice s Act, exemplar y damages, and attorney’s fees.
Beacon filed a combined traditional and no

- evidence motion for summary judgment. Beacon moved for summary judgment on all of Spurlock’s claims against it. Spurlock filed a response to the motion

. T he trial court entered an order granting Beacon summary judgment on Spurl ock’s breach of contract claim.
Gr antham

- Adkins filed a traditional motion for summary judgment on all of Spurlock’s claims against it. Spurlock filed a response to the motion. On the same day, Spurlock filed an amended petition in which he alleged only claims for breach
of contract and violations of the Prompt Payment of Claims Act against Beacon and a claim for negligent procurement of insurance coverage against Grantham

Adkins. Thus, in his amended petition, Spurlock abandoned the other claims that
he had alleged in his earlier petiti on. See Wheeler v. Methodist Hosp. , 95 S.W.3d 628, 634 n. 2 (Tex. App.

— Houston [1st Dist.] 2002, no pet.).4 T he trial court entered an order granting summary judgment to Beacon on Spurlock’s remaining claim against it for its alleged violations of the Prompt Payment of Claims Act. The trial court entered a separate order granting summary judgment to Grantham

- Adkins on Spurlock’s claim against it for negligent procurement. Collectively, the trial court’s summary judgment order s disposed of
all of Spurlock’s claims against Beacon and Grantham

- Adkins. Issues on Appeal Spurlock presents two issues for review. In his first issue, he contends that
the Beacon policy provided coverage for his claim for loss of per sonal property and that, therefore, the trial court erred by granting summary judgment to Beacon

. In his second issue, he contends that, if the policy did not provide coverage for his claim, Grantham

- Adkins was negligent in failing to procure insurance to cover such a claim and that, therefore, the trial court erred by granting summary judgment to Grantham

- Adkins. Standard of Review Beacon moved for traditional summary judgment on Spurlock’s claims for breach of contract and for violations of the Prompt P ayment of Claims Act.
Grantham

- Adkins moved for traditional summary judgment on Spurlock’s claim for negligent procurement of insurance coverage. We review a summary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010). The movant for traditional summary judgment
must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. T EX

. R. C IV

. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844 , 848 (Tex. 2009). In reviewing a summary judgment, we must consider all of the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the movant. Goodyear Ti re &5 Rubber Co. v. Mayes , 236 S.W.3d 754, 756 (Tex. 2007). We must consider
whether reasonable and fair

- minded jurors could differ in their conclusions in light of all of the summary judgment evidence presented, and we may not ignore undisputed summary ju dgment evidence that cannot be disregarded. Id. at 755,
757. Interpretation of Insurance Policy We construe insurance policies according to the same rule s o f c on struction that app ly to contrac ts

. Don’s B ld g

. Supply, Inc. v. One Beacon Ins. Co. , 267 S.W.3d 20, 23 (Tex. 2008); Nat’l Union Fire Ins. Co. v. Crocker , 246 S.W.3d 603, 606 (Tex. 2008). In applying these rules, our primary concern is to ascertain the parties’ intent as expressed in the policy’s language. Tanner v. Nationwide Mut.
Fire Ins. Co. , 289 S.W.3d 828, 831 (Tex. 2009); Kelley

- Coppedge, Inc. Highlands
Ins. Co. , 980 S.W.2d 462, 464 (Tex. 1998). We give policy terms their ordinary and commonly understood meaning unless the policy itself shows the parties intended a different, technical meaning. Tanner , 289 S.W.3d at 831; Don’s Bldg. Supply , 267 S.W.3d at 23. No one phrase, sentence , or section of a policy should be isolated from its setting and considered apart from other provisions. Forbau v. Aetna Life Ins. Co. , 876 S.W.2 d 132, 134 ( Te x. 1994) . In addition, we must give the policy’s words their plain meaning, without inserting additional provisions into
the contract. Crocker , 246 S.W.3d at 606.
If an insurance policy uses unambiguous language, we must enforce it as
writ ten. Don’s Bldg. Supply , 267 S.W.3d at 23. If policy language is worded so that it can be given a definite or certain legal meaning or interpretation, then it is unambiguous and is construed as a matter of law. Am. Mfrs. Mut. Ins. Co. v. Schaefer , 124 S .W.3d 154, 157 (Tex. 2003); Coker v. Coker , 650 S.W.2d 391, 393 (Tex. 1983). If, however, the policy is susceptible to more than one reasonable6 interpretation, then it is ambiguous, and we will resolve the ambiguity in favor of
coverage. Don’s Bldg. Supply , 267 S.W.3d at 23.
The Homeowner’s Policy
The only named insured under the policy was J.O. Spurlock. The policy provided dwelling coverage (Coverage A) and personal property coverage (Coverage B)

. The dwelling coverage provided that Beacon covere d “the dwelling
on the residence premises shown on the declarations page including structures attached to the dwelling.” The personal property coverage provided that Beacon covered “personal property owned, worn or used by an insured while on the
residenc e premises .” The coverage for a loss of personal property occurring on the residence premises had a limit of liability of $52,400. Under the policy, Beacon also covered “personal property owned, worn or used by an insured anywhere in the world.” The coverage for a loss of personal property occurring off the residence premises had a limit of liability of $5,240. The underlined terms in the policy were defined in the policy. The policy
defined “ residence premises ” as “the residence premises shown on the declarations page.” The “ residence premises ” included “the one or two family dwelling, including other structures, and grounds, where an insured resides or intends to reside within 60 days after the effective date of this policy.” The residence premi ses/dwelling shown on the declarat ions page was identified as
Lot 9

- 10, Block 2, Westwood Hills, which was the legal description of J.O. Spurlock’s house and property at 704 Cedar in Mineral Wells. As defined in the policy, the term “ insured ” meant J.O. S purlock and “ residents of [ his ] household
who [ were his] relatives; or other persons under the age of 21 and in the care of any person named above.” The policy provided that “[B eacon ] insure [ d ] against physical loss to the property described in Coverage A (Dwelling) and Coverage B (Personal Property)7 caused by a peril listed below, unless the loss is excluded in Section I Exclusions.” One of the listed perils was “[t] heft, including attempted theft and loss of property from a known place when it is like ly that the property has been stolen.” The policy contained various conditions to coverage for the dwelling and personal property. One of the conditions provided as follows: 9. Death. If the named insured dies, we insure:

a. the named insured’s spouse, if a resident of the same household at the time of death.

b. the legal representative of the deceased. However, if this legal representative was not an insured at the time of death of the named insured, this policy will apply to such legal representative only with respect to the premises of the original named insured.

c. any person who is an insured at the time of such death, while a resident of said premises.

Th e term “premises,” which was used in Sections 9.b. and 9.c. , was not a defined term in the policy. Analysis of Coverage Issue As stated above, the personal property coverage provided that Beacon covered “personal property owned, worn or used by an insured while on the residence premises .” Section 9.b. of the conditions provided that, upon the death of the named insured, Beacon w ould insure the legal representative of the deceased. However, Section 9.b. also provided that, if the legal representative was not an insured under the policy at the time of the named insured’s death, the policy would apply to the legal representative “o nly with respect to the premises of the original named insured.” Unlike the residency req uirements set forth in
Sections 9.a. and 9.c. for the named insured’s spouse and other persons who were8 insureds at the time of the named insured’s death, Section 9.b . did not contain a requirement that the legal representative reside at the premises to obtain coverage under the policy. Spurlock was not an insured under the policy when J.O. Spurlock died. Therefore, under Section 9.b., the policy applied to Spurlock “only with respect to the premises of the original named insured .” The word “premises” is not defined in the policy. Under Spurlock’s interpretation of the provision, he conten ds that, following J.O. Spurlock’s death, the policy provided coverage for los ses of personal property that occurred on the subject premises at 704 Cedar in Mineral
Wells but that the policy did not provide coverage for losses of pers onal property
that occurred off the premises. For the reasons stated below, we conclude that,
follo wing J.O. Spurlock’s death, the policy did not provide coverage for any loss of personal property. Therefore, w e disagree with Spurlock’s contention that the policy provided coverage for losses of personal property that occurred on the subject premises. Because “premises” is not defined in the policy, we must give the term its ordinary and commonly understood meaning. Tanner , 289 S.W.3d at 831; Don’s Bldg. Supply , 267 S.W.3d at 23. The definition of “ p remises , ” in relevant part in
the Merriam Webster’ s Collegiate Dictionary , is “a tract of land with the buildings thereon” or “a building or part of a building usu [ ally ] with its appurtenances (as grounds).” M ERRIAM

- W EBSTER ’ S C OLLEGIATE D ICTIONARY 980 (11th ed. 2004)

. Similarly, “premises” is defined in relevant part by Black’s Law Dictionary as “[a] house or building, along with its grounds.” B LACK ’ S L AW D ICTIONARY 1371 (10th
ed. 2014 ). The San Antonio Court of Appeals has stated that, “[u]nder the dictionary definitions of the word ‘premises’ a tract of land may be intended, as when used in a conveyance , or a building located upon land, as is generally the

case in a fire insurance policy.” Assoc iated Indem. Corp. v. Nat’l Sur. Corp. , 2879 S.W.2 d 714, 716 (Tex. Ci v. App.

— San Antonio 1956, no writ .). The Beacon policy defines the term “residence premises” in a similar manner. Under the policy, the definition of “residence premises” includes “the one or two family dwelling, including other struct ures, and grounds where an insured resides. ” The above dictionary definitions establish that the ordinary meaning of “premises” is a house or building and the grounds upon which the house or building is located. None of the above definitions includes “pe rsonal property” in the definition of “premises.” Accordingly, we conclude that the plain meaning of “premises” as used in the Beacon policy is unambiguous and does not include personal property. Based on its plain meaning, the undefined term “premises” in the Beacon policy includes J.O. Spurlock’s house and the grounds upon which it
was located. The Beacon policy insured the legal representative of the named insured only with respect to the “premises” of the original named insu red. Given the ordinary meaning of “premises,” we conclude that, upon J.O. Spurlock’s death, the policy provided dwelling coverage to Spurlock but did not provide personal property coverage to him , whether the loss of persona l property occurred on or off the premises. We find it significant that Section 9.b. of the Beacon policy did not specifically refer to “personal property” of the original named insured. In Hundley , the policy provided that, upon the death of the named insured, the insurance company would insure “the legal representative of the deceased but only with respect to the premises and property of the deceased covered under the policy
at the time of death.” Mun

. Mut. Ins. Co. of W

. V a. v. Hundley , 723 S.E

. 2d 398 , 400 (W. Va. 2011). In Long , the policy provided that, in the event of the death of the named insured, “the Named I nsured shall mean

. . . the legal representative but only with respect to the premises and property of the deceased covered under this policy at the time of such death .” Long v. Fed erated Mut. Ins. Co. , 431 F.10 Supp. 473 , 474 (W.D. Tenn. 1976). In this case, the parties could have included similar language in Section 9.b. had they intended for the policy to provide coverage for a loss of personal property after the death of J.O. Spurlock. For example, Section 9.b. could have provided that the policy would apply to the legal representative “only with respect to the premises and pers onal property of the original named insured. ” The absence of such language supports our conclusion that the policy did not provide coverage to Spurlock for a loss of personal property occurring after J.O. Spurlock died. The language in Section 9.c. of the Beacon policy also supports the conclusion that the undefined term “premises” does not include personal property. Section 9.c. provides that, if the named insured dies, Beacon will insure “any person who is an insured at the time of such death, while a resident of said premises.” If the parties intended the undefined term “premises” to include the house and personal property , the use of the word “premises” in Section 9.c. would require the insured to be a resident of J.O. Spurlock’s house and his pers onal property, which would not be possible. We conclude that the language in the Beacon policy unambiguously provided that, upon J.O. Spurlock’s death, the policy did not provide personal property coverage to Spurlock. Therefore, the trial court did not err in granting
Beacon a traditional summary judgment on Spurlock’s claim that Beacon breach ed
the insurance contract. Spurlock also alleged a claim against Beacon for violations of the Prompt Payment of Claims Act. See T EX

. I NS

. C ODE A NN

. §§ 542.051

– .061 (West 2009 & Supp. 2014). To recover on such a claim, an insured must show that the insurer “is liable for a claim under an insurance policy.” Id. § 542.060(a). There can be no liability under the Act if the insured’ s claim is not covered by the policy. Progressive Cnty. Mut. Ins. Co. v. Boyd , 177 S.W.3d 919, 922 (Tex. 2005).11 Because Spurlock’s claim for loss of personal property was not covered by the Beacon policy, Spurlock cannot succeed on his claim that Beacon violated the Act.
See i d. Accordingly, the trial court did not err in granting Beacon a traditional summary judgment on Spurlock’s claim that Beacon violated the provisions of the Prompt Payment of Claims Act. The trial court properly granted summary judgment to Beacon on Spurlock’s claims against it. Sp urlock’s first issue is overruled. Analysis of Negligent Procurement Issue In his second issue, Spurlock contends that, if the Beacon policy did not
cover his claim for the theft of personal property that occurred after J.O. Spurlock’s death, then Grantham

- Adkins was negligent in failing to procure
insurance that would have covered the claim. The elements of a negligence claim are (1) a legal duty owed by one person to another, (2) a breach of that du ty, and (3) damages proximately caused by the breach. D. Houston, Inc. v. Love , 92 S.W.3d 450, 454 (Tex. 2002). In Texas, an insurance agent, such as Grantham

Adkins, owes the following common

- law duties to a client for whom it undertakes to procure insurance : (1) to use reasonable diligence in attempting to place the requested insurance and (2) to inform the client promptly if unable to do so. May v. United Servs. Ass’n of Am. , 844 S.W.2d 666, 669 (Tex. 1992); Sonic Sys. Int’l, Inc. v. Croix , 278 S. W.3d 377, 389 (Tex. App.

— Houston [14 th Dist.] 2008, pet. denied). A client’s request to an insurance agent for a specific type of insurance gives rise to these duties on the part of the agent

. See Moore v. Whitney

Vaky, Ins. Agency , 966 S.W.2d 690, 692 ( Tex. App.

— San Antonio 1998, no pet.). J.O. Spurlock died on January 26, 2009. Spurlock alleged in his petition that, prior to J.O. Spurlock’s death, J.O. Spurlock requested coverage for contents
from Grantham

- Adkins in connection with his purchase of i nsurance. Spurlock also alleged that he or his representative notified Grantham

- Adkins of J.O.12 Spurlock’s death, that he or his representative requested Grantham

- Adkins to continue to provide the coverage provided by the Beacon policy, and that
Grantham

- A dkins never informed J.O. Spurlock or him that the Beacon policy did not provide coverage for contents upon J.O. Spurlock’s death. Spurlock further alleged that, on or about March 12, 2009, he made a claim under the Beacon policy for the damage or loss du e to theft or vandalism of personal property that occurred
at 704 Cedar in Mineral Wells. We note that the allegations in Spurlock’s petition are not competent summary judgment evidence. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer , 904 S.W.2d 656, 660 (Tex. 1995). Grantham

- Adkins presented summary judgment evidence in support of its mo tion for summary judgment. The evidence included Spurlock’s deposition testimony. The evidence showed that Stephanie
Lou Cordell was J.O. Spurlock’s caretaker and lived with J.O. Spurlock before he
died. Cordell claimed that she was J.O. Spurlock’s common

- law wife and that she owned J.O. Spurlock’s house. In April 2009, Spurlock obtained an order from a justice of the peace evicting Cordell from the premises. Spurlock testified that he did not obtain access to J.O. Spurlock’s house until after Cordell was evicted.
After the eviction , Spurlock entered the house and discovered that contents had
been removed from the house. Spurlock believed that Cordell had st olen the property. Spurlock testified that he and his friend, John Backer, contacted Grantham

A dkins after J.O. Spurlock died. Spurlock believed that he and Backer made two telephone calls to Grantham

- Adkins. However, Spurlock did not know when
either o f the calls occurred

. Spurlock said that, during the first call, he and Backer
informed Grantham

- Adkins that J.O. Spurlock had died and that Spurlock was in the process of being appointed as the administrator of J.O. Spurlock’s estate. Spurlock also said that he and Backer req uested Grantham

- Adkins to renew the13 Beacon policy and to change the mailing address on the policy. Spurlock testified that, during the second call, he and Backer informed Grantham

- Adkins about the theft of personal property from J.O. Spurlock’s residence.
Backer stated in correspondence to Spurlock’s attorney that “Kelly Spurlock
informed the Grantham

- Adkins Agency about J.O.’s death and the theft in April 2009.” When asked about this statement in his deposition, Spurlock acknowledged
that his first cont act with Grantham

- Adkins following J.O. Spurlock’s death may have occurred in April 2009, after Spurlock entered J.O. Spurlock’s house and
discovered the theft.
Backer’s statement constituted summary judgment evidence that Spurlock
did not contact Granth am

- Adkins until after the loss occurred

. During his deposition , Spurlock could only speculate as to when he contacted Grantham

Adkins. Spurlock filed an affidavit in response to Grantham

- Adkins’s motion for summary judgment. In the affidavit, Spurlock d id not provide any additional
information as to his contact with Grantham

- Adkins. Spurlock did not present summary judgment evidence that he requested any type of insurance coverage
from Grantham

- Adkins before the loss occurred . Specifically, there was n o summary judgment evidence that Spurlock requested Grantham

- Adkins to procure
insurance to cover a theft of contents from J.O. Spurlock’s home

. Spurlock neither alleged in his petition nor present ed summary judgment evidence that J.O. Spurlock requested coverage from Grantham

- Adkins that would have covered a
thef t of personal property from his residence after his death. The summary judgment evidence did not raise a fact issue on whether Spurlock requested insurance coverage from Grantham

- Adkins before th e theft

. In the absence of such a request, Grantham

- Adkins did not owe a duty to Spurlock to use reasonable diligence to obtain insurance. See Moore , 966 S.W.2d at 692.
Grantham

- Adkins established that there was no genuine issue of material fact on14 Spur lock’s negligent procurement claim and that it was entitled to judgment as a
matter of law. Therefore, we conclude that the trial court did not err by granting summary judgment to Grantham

- Adkins. Spurlock’s second issue is overruled. This Court’s Ruling
We affirm the orders of the trial court in which it granted the summary judgments

.

JOHN M. BAILEY
JUSTICE

January 29, 2015
Panel consists of: Wright, C.J., Willson , J., and Bailey , J.