United States Court of Appeals 

for the Fifth Circuit 

No. 20-20389 

Landmark American Insurance Company, 

Plaintiff—Appellant, 

versus

SCD Memorial Place II, L.L.C., 

Defendant—Appellee. 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:19-CV-00838 

Before Elrod, Willett, and Engelhardt, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:

This case is about whether an insurance policy covered flood-related 

damage sustained by a building during Hurricane Harvey. The district court 

determined that the policy provided coverage and granted summary 

judgment in favor of the insured. Because we conclude that the text of the 

insurance policy does not support this result, we REVERSE and RENDER 

judgment in favor of the insurer. 

United States Court of Appeals 

Fifth Circuit 

FILED 

February 3, 2022 

Lyle W. Cayce 

Clerk 

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I. 

In 2016, Landmark American Insurance Company (“Landmark”) 

issued an insurance policy to SCD Memorial Place II, L.L.C. (“SCD”) that 

covered several SCD properties and was effective from August 31, 2016 to 

September 7, 2017.

The Landmark policy was a “deductible buy back policy,” a type of 

insurance policy that an insured may choose to purchase when the insured’s 

primary insurance policy has a high deductible. If the insured makes a claim 

on the primary insurance policy, the deductible buy back policy may cover all 

or a portion of the deductible required by the primary policy, reducing the 

insured’s out-of-pocket costs. 

In this case, SCD’s primary insurance policy was a policy issued by 

the Lexington Insurance Company. The Lexington policy was a “all risks” 

policy that covered “all risks of direct physical loss or damage including 

flood, earth movement, and equipment breakdown.” The Lexington policy 

had a high deductible and thus, the insured purchased the separate Landmark 

policy to help cover the cost of that deductible. 

The “Insuring Clause” of the Landmark policy outlines the type of 

damage for which it would cover the deductible of the primary insurance 

policy. Specifically, Landmark agreed to indemnify the insured for damage 

“caused by any of such perils as are set forth in item 3 of the schedule, and 

which are also covered by . . . the ‘Primary Insurer(s).’” 

Item 3, in turn, states: “Perils Covered: Windstorm or Hail 

associated with a Named Storm.” Beneath this, it states that it is 

“[e]xcluding Terrorism.” Finally, it specifies that “Named Storm” is 

“[f]ollowing Named Storm definition in Lexington Insurance Company’s 

policy.” The “Named Storm” definition from the Lexington policy that is 

expressly incorporated into Item 3 is “a storm that has been declared by the 

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3 

National Weather Service to be a Hurricane, Typhoon, Tropical Cyclone, 

Tropical Storm or Tropical Depression.” 

In August 2017, Hurricane Harvey made landfall. The parties agree 

that Hurricane Harvey was a “Named Storm,” as defined under the 

Lexington and Landmark policies and also that it caused tremendous damage 

to one of SCD’s insured properties. 

The damage occurred when Buffalo Bayou overflowed its banks and 

water flowed onto SCD’s property.1

 An independent adjuster retained by 

Lexington confirmed to the in-house claims handler at Landmark that there 

was no reported wind damage to the property. Likewise, there is no evidence 

that the property suffered damage from hail. 

SCD submitted a claim under the Lexington policy, which paid out 

millions of dollars for physical loss or damage in excess of the “Windstorm 

deductible” in that policy. SCD also submitted a claim to Landmark to cover 

its deductible under the Lexington policy. 

Shortly after receiving a letter from SCD stating a claim for the 

deductible, Landmark filed this lawsuit against SCD, seeking a declaration 

that the policy it issued to SCD did not apply to the loss sustained. 

The parties filed cross-motions for summary judgment. The motions 

were referred to a magistrate judge, whose memorandum and 

recommendation recommended granting SCD’s motion for summary 

1

 SCD contends that the water damage to the property was due not to natural 

overflow but rather to the decision of the Army Corps of Engineers to purposefully release 

water from the Addicks and Barker reservoirs into the bayou to prevent those reservoirs 

from overflowing. But SCD does not suggest that the true cause was wind- or hail-related; 

as such, whether the water damage is due to a “flood” or a “controlled release” is not 

material to the issues on appeal. 

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judgment and denying Landmark’s. The district court adopted the 

memorandum and recommendation in full. Landmark timely appealed. 

II. 

We review a grant of summary judgment “de novo, applying the same 

standard on appeal that is applied by the district court.” See Tiblier v. Dlabal, 

743 F.3d 1004, 1007 (5th Cir. 2014) (quoting Coliseum Square Ass’n, Inc. v. 

Jackson, 465 F.3d 215, 244 (5th Cir. 2006)). Under Rule 56, “[t]he court 

shall grant summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). 

“Because Texas law governs this claim, we employ the principles of 

Texas contract construction” in interpreting the policy here. Am. Int’l 

Specialty Lines Ins. Co. v. Rentech Steel LLC, 620 F.3d 558, 562 (5th Cir. 

2010). Under Texas law, “insurance policies are construed according to 

common principles governing the construction of contracts, and the 

interpretation of an insurance policy is a question of law for a court to 

determine.” Id. We interpret insurance policies to “effectuate the intent of 

the parties at the time the contracts were formed.” Amerisure Ins. Co. v. 

Navigators Ins. Co., 611 F.3d 299, 309 (5th Cir. 2010) (quoting Mid-Continent 

Cas. Co. v. JHP Dev., Inc., 557 F.3d 207, 212 (5th Cir. 2009)). 

If an insurance policy “is worded so that it can be given only one 

reasonable construction, it will be enforced as written.” John M. O’Quinn, 

P.C. v. Lexington Ins. Co., 906 F.3d 363, 367 (5th Cir. 2018) (quoting Nat’l 

Union Fire Ins. Co. of Pittsburgh v. Hudson Energy Co., 811 S.W.2d 552, 555 

(Tex. 1991)). When an insurance contract is ambiguous—meaning that it is 

susceptible to more than one reasonable interpretation—we adopt the 

interpretation that affords coverage. See Amerisure Ins. Co., 611 F.3d at 309. 

But a policy is not ambiguous “merely because different parties—or 

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judges—offer conflicting interpretations.” Pan Am Equities, Inc. v. Lexington 

Ins. Co., 959 F.3d 671, 674 (5th Cir. 2020). If the policy’s wording “can be 

given a definite or certain legal meaning, [then] it is not ambiguous.” Tesoro 

Ref. & Mktg. Co., L.L.C. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 833 F.3d 

470, 474 (5th Cir. 2016) (alterations in original) (quoting American Mfrs. Mut. 

Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003)). Furthermore, 

ambiguity “cannot be fashioned via parol evidence.” Pan Am Equities, 959 

F.3d at 674. 

III. 

Both parties agree that the Landmark policy is unambiguous. Namely, 

they contend that the phrase “Perils Covered: Windstorm or Hail associated 

with a Named Storm” has only one reasonable interpretation. Naturally, 

both parties contend that the only reasonable interpretation cuts their way. 

Landmark argues that the policy covers the specified perils of 

“Windstorm or Hail” that are “associated with a Named Storm [here, 

Hurricane Harvey]” but not all perils associated with a Named Storm. In 

other words, it is a “named perils” rather than “all risks” policy—it covers 

only the perils specified in the policy and does not need to use additional 

exclusionary language. 

SCD cites Pan Am Equities, Inc. v. Lexington Insurance Company for the 

proposition that, under Fifth Circuit law, Hurricane Harvey was a 

“Windstorm” and therefore the policy covers all perils associated it. 959 

F.3d at 677. Under SCD’s interpretation, Landmark is on the hook to cover 

all damage from “[f]lood, wind, wind gusts, storm surges, tornados, 

cyclones, hail or rain”2

 that are associated with Named Storms; the only time 

2

 SCD imports this understanding from its primary insurance policy (the Lexington 

policy’s) “Windstorm” deductible. Because the Windstorm deductible from the 

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6 

the policy would not apply to a hurricane would be if it did not rise to the level 

of becoming a Named Storm.

We agree with Landmark because its interpretation aligns with the 

plain meaning of the text of the policy.3

 Landmark’s interpretation, unlike 

SCD’s, makes sense of the framing phrase “Perils Covered.” This framing 

sets up “Windstorm” and “Hail” as specific perils that may be associated 

with a number of weather events rather than as weather events that may 

encompass any number of perils. If SCD’s interpretation of the policy were 

correct, then the Landmark policy simply could have stated that all damage 

from a Named Storm is covered (regardless of the peril that caused the 

damage). But the Landmark policy does not state this. Instead, the policy 

frames its coverage as applying to specific “[c]overed perils.” 

Furthermore, the listing of “Windstorm” and “Hail” separately 

supports Landmark’s interpretation that the policy covers specific perils but 

not others. If “Windstorm” includes all that SCD says it does (again, 

“[f]lood, wind, wind gusts, storm surges, tornados, cyclones, hail or rain”), 

there would be no need to list “Hail” separately. Texas law requires that we 

“give effect to all contract provisions so that none will be rendered 

meaningless.” Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 

464 (Tex. 1998). Landmark’s interpretation is the only one that 

accomplishes this. 

Lexington policy includes perils such as “[f]lood, wind, wind gusts, storm surges, tornados, 

cyclones, hail or rain,” SCD argues that the Landmark policy “expressly covers the perils 

of flood and rain associated with Windstorms.” 

3

 We do not consider the affidavit from one of Landmark’s underwriters attesting 

that there was no intent to cover flood damage. The policy is unambiguous, and an extrinsic 

affidavit need not be considered. 

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We do not accept SCD’s argument that Landmark needed to 

expressly exclude flood-related damage from its policy in order not to cover 

it. By its text, the policy is a “named perils” policy. The Insuring Clause 

covers only those perils “set forth in item 3,” and Item 3 states “Perils 

Covered: Windstorm or Hail associated with a Named Storm.” This policy 

defines carefully which perils it covers; all others can be understood to be 

excluded. As such, it insures “against all the risks named in the perils clause 

(and, by implication, risks not named [are] not covered).” Ingersoll-Rand Fin. 

Corp. v. Emp’rs Ins. Of Wausau, 771 F.2d 910, 912 (5th Cir. 1985).4

 

Furthermore, contrary to SCD’s contention, Pan Am Equities does not 

stand for the proposition that, as a matter of law, the peril of “Windstorm” 

includes the peril of flood. Instead, Pan Am Equities further supports 

Landmark’s interpretation. 

Pan Am Equities also dealt with an insurance dispute following 

Hurricane Harvey. In that case, the dispute concerned which deductible the 

insured needed to pay. 959 F.3d at 672. There were two competing 

deductibles: a generic “flood” deductible favored by the insured and a 

steeper “Windstorm” deductible favored by the insurer. Id. A clause in the 

policy specified that when multiple deductibles applied, the largest one 

would trump. Id. 

The “Windstorm” deductible in the Pan Am Equities policy applied 

to all “loss due to Windstorm.” Id. at 675. The Windstorm deductible 

included a sub-provision that expressly included “the loss or damage arising 

4

 The other exclusions in the Landmark policy that SCD points to (i.e., those 

relating to Terrorism, electronic data, and fungus) do not transform the Landmark policy 

into an “all risks” policy subject to only those exclusions. Rather, those exclusions refine 

what types of damage Landmark will cover when that damage is caused by covered perils. 

They do not implicitly expand the number of covered perils. 

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out of a Named Storm.” Id. at 673. The so-called “Named Storm provision” 

in that policy was thus very different from the term “Named Storm” as it is 

used in this case. In Pan Am Equities, the Named Storm provision enlarged 

what qualified as a loss under the “Windstorm deductible,” id. at 675, 

whereas here the term “Named Storm” is the overarching occurrence, and 

the policy expressly describes which perils associated with that occurrence 

are covered. 

Furthermore, Pan Am Equities differentiated between the perils of 

windstorm and flood, and included flood damage within the “Windstorm 

deductible” only because the “[p]olicy’s ‘Named Storm’ provision sweeps 

in a slew of associated perils explicitly untethered from wind, specifically 

‘Flood.’” Id. at 676 (emphasis added). In other words, only because of 

express language in the policy at issue in Pan Am Equities was “Windstorm” 

enlarged to include flood-related damage.5

Although “Windstorm” in another policy could include flood and hail 

damage, in the specific context of the instant policy, it is a specific peril 

“associated with a Named Storm.” See Fireman’s Ins. Co. of Newark v. 

Weatherman, 193 S.W.2d 247, 248 (Tex. Civ. App.—Eastland 1946, writ 

5

 SCD also argues that the “Windstorm deductible” in the Pan Am Equities 

decision is relevant to the Landmark policy. It is true that the policy in Pan Am Equities was 

also issued by Lexington Insurance Company, the primary insurer in this case. But the 

Landmark policy is not the Lexington policy, and the Landmark policy specifies the extent 

to which it incorporates any definitions from the Lexington policy. It does not incorporate 

the “Windstorm” deductible. SCD points to the “Maintenance of Primary Insurance” 

section as incorporating the Windstorm deductible, but that section in no way expands the 

perils insured by the Landmark policy. That section, in relevant part, states: “In respect of 

the perils hereby insured against, this Policy is subject to the same warranties, terms, and 

conditions . . . as are contained in [the Lexington policy].” (emphasis added). 

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ref’d n.r.e.) (interpreting “windstorm” to refer to damage caused by “a 

wind of unusual violence” that “must assume aspects of a storm” (internal 

quotation marks omitted)). “Windstorm” did not expand the Landmark 

policy to include all the perils wrought by Hurricane Harvey. 

Under its plain language, the Landmark policy does not apply to the 

type of damage that the SCD property sustained in connection with 

Hurricane Harvey. Therefore, we REVERSE the district court’s grant of 

summary judgment in favor of SCD and RENDER judgment for Landmark. 

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