## In The

**Court of Appeals**

**Seventh District of Texas at Amarillo**

No. 07

- 19

- 00 3 5 0

- CV

MICHELLE LATRAY AS RECEIVER OF THE ASSETS OF CLIFTON BOATRIGHT FOR

THE BEN EFIT OF JUDGMENT CR E DITORS W.L. ROBERTS, DANA ROBERTS, ERI N

LEIGH ROBERTS, AND KATELYN ROBERTS G O NZALES

, APPELLANT

V

.

COLONY INSURANCE COMPANY

D/B/A COLONY SPECIALTY INSURANCE CO.

, APPELLEE

O n Appeal from the 77 th District Court

Limestone County, Texas

Trial Court No. 31,528

- A ; Honorable Patrick Simmons , Presiding

January 1 1

, 202 1



### MEMORANDUM OPINION

Bef o r e PIRTLE

, PARKER

, a nd DOSS, JJ.

Appellant

, Michelle Latray , acting as a r eceive r on b ehalf of cert a in judgment

creditors

, appeal s the trial cou rt ’ s rendition of summary judgm ent in fav o r of Appellee

,

Colon y Insurance Company d/b/a Colony Spe c ialty In surance Company (hereinafter

“ Colony ” )

. Latray also appeal s the trial court ’ s denial of her motion for partial summary

judgment. Through her appeal, Latray argue s the tria l cou rt erred i n its rulings because

Colony had both the duty to defend and the duty to indemnify her judgment debtor, Clifton2 Boatright , and that non e of the policy exclusions asserted by Colony were applicable

. We

will affirm the judgment of the trial court

.

B ACK GRO U N D

This appeal arises from a n insurance coverage dispute stemming from Boatright ’ s

dumping of debris onto property owned by W

. L. Roberts and others . The City of Kosse

hired Boatright to dem olish the town ’ s old high school

. Th eir agre ement included

Boatr i gh t ’ s remo v a l and dispo sal of the debris resulting from the demolition. Their

agreement also req uired Boatright to obtain a policy of liability insuran ce prior to the

commencement of demolition . An agent for Colony issued a policy covering the planned

op e ratio ns

.

D avid Garret t , a friend of Boatright ’ s and a long

- time tenant 1 on the Roberts ’

property

, asked Boatright if he c ould take some of the debris to use for purposes of

ero sio n cont rol

. Accordi n g to Boatright, he mistakenly believed the property on w hi ch

Ga rre t t wish ed to place the debris belonged to Garret t when, in fact, the property

belonged to the Roberts es . Ne ither Garre t t nor Boatright sought the Roberts ’ perm iss ion

before placing th e debris on the pro perty.

Thereafter, Garret t and Boatright took deb r is 2 from t h e demolition site and pl aced

i t on the Roberts ’ property. At time s , Boatright borrowed his mother ’ s dum p truck to move

larger loa ds of the debris to the pr operty

. By the end of the project , Garret t a nd Boatright

1 Boatr i ght testified Gar ret t had li ved at that home wh ere the debris was deposited for “ near ly twenty

years. ”

2 T h e debr is included brick a nd metal rebar

.3 had placed forty ton s o f debri s o n the Robe rt s ’ pro perty. When W.L. R oberts discovered

the debris on his property, he filed suit against Boatright and others for illegal dumping

and damage to his l and. 3 Roberts subsequently obtained a judgme nt against Boatright

for $50 ,000 , plus $30 9 in court costs

. Af ter the judgm ent became fina l , the court also

issued a Tu rnover O rder pursuant to section 31.002 of the T e xas Civil Practice and

Remedi es Code , appointing Latray as a receiver, to take possession of non

- exempt

property for the purpose of liquida t ing th at p roperty for t he benefit of Boatr ight ’ s judgment

creditors

. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 31.002 (West 2020)

.

As required by his demolition contract, p rior to the commencement of demolition,

Boatright obtained a liability insu rance p o licy iss ue d by Colony . After the judgment

against Boatright w as returned and the Turnover Order was issued

, Latray sought relief

under the insurance poli cy issued to Boatright by Colony . When Colony denied that

coverage, Latray filed this suit aga in st C o lon y for b rea ch of contract

, vi olation of the

Decept ive Trade Practice s Act ( “DTPA ”), 4 violation of section 541 of t he Texas Insurance

Code, 5 and breach of the common law duty of good faith and fair dealing. Colony argue d

that because Boatright ’ s actions w ere int en t i onal, th e policy did not cover Boatright ’ s act s

and thu s , it had no duty to defend nor indemnify. Colony filed an am ended traditional

motion for summary judgment on that basis

. Latray also filed a motion for partial summary

judgment arguin g C olony ow ed Boatright a du ty to defend as a matter of l aw because

,

although the conduct was intentional, the alleged negligence was “ accidental ” because

3 W.L. Roberts alleged damages including property damage, cleanup costs, debris removal costs,

soil testing

, soil anal ysis, environmental studies, and atto rn ey ’ s fe e s.

4 T EX

. B US

. & C OM

. C ODE A NN

. § 17.46 ( West 2020 )

.

5 T EX

. I NS

. C ODE A NN

. §§ 541.051

- 541.061 ( West 2009)

.4 Boatright was operating under the misconception that he had authority to dump the debris

on the Robe rt s ’ propert y

. Th e trial co urt granted Colony ’ s motion for summary judgment

and denied Latray ’ s motion for partial summary judgment

.

O n appeal, La tray contend s the trial court erred in granting Colony ’ s motion for

summary j udgment and in d enying her motion for part ia l summary judgment beca use the

acts of Boatright and Garret t we re neglige nt in nature , not intentional, and thus the policy

provided coverage

. Latray argue s that the issue is whether B oatright’s intentional acts of

taki ng the debris to the Robe r ts ’ pro p er ty and leaving it whe re G arrett directed cons t it uted

an “ occu rrence ” un der th e insurance p oli cy. Colon y contends those acts do not and thus,

the re was no coverage under the policy and the trial court did not err in its rulings.

A NAL YSIS

S TAN D ARD OF R EV IE W

We review a trial cou rt ’ s ruling on a summary judgment motion un der a de novo

standard of review

. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005) ;

Provident Life & Accident Ins. C o. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003 )

. In

con d ucting our re view, we take as true al l ev idence favo rable to the nonmo vant, and we

indulge every reasonable inference and resolve any doubts in the nonmovant ’ s favor.

Valence Operating Co. , 164 S.W.3d at 661 ; Knott

, 128 S.W.3d at 215.

A party

- de f endant mov ing for traditional summary judgment bears the burd en o f

proving that no ge nuine iss ue of material fa ct exist s on at least one essential element of

the plaintiff ’ s cause of action and that it is entitled to judgment as a matter of law. Mejia

Ro s a v. John Moo re Servs.

, No. 01

- 17

- 00955

- CV, 2019 Tex. App. LEXIS 640 5, at *11

-5 13 (Tex. A pp.

— Houst on [ 1st Dist.] July 25, 2019 , no pet. ) (mem. op.) ( citing T EX

. R. C IV

.

P. 166a(c); Lightning Oil Co. v. Anadar ko E&P Onshore

, LLC

, 520 S.W.3d 39, 45 ( Tex.

201 7 ) ). In th at regard, a ma tter is conclusiv ely establishe d if reasonable people c ould not

differ as to th e conclus ions to be drawn from the eviden ce. Me ji

a

- Rosa

, 2019 Tex. App.

LEXIS 6405, at * 12 (citing City of Keller v. Wil son

, 168 S.W.3d 802, 8 16 (Tex. 2005 ) )

. I f

t he movant me ets its burden, the burden then shifts to the nonmovant to raise a fac t issue

p recluding summary judgment. Me ji

a

- Rosa

, 2019 Tex. App. LEXIS 6405, at * 12 (citing

Centeq Realty, Inc. v. Siegle r

, 899 S. W. 2d 195, 197 (Tex. 19 95 ) )

.

Wh e n, as here , p arties file cross

- motions for summary judgm ent, each party in

suppo rt o f its motion necessa rily take s the position that there is no genuine issue of fact

in the case and that it is entitled to judgment as a matter of law. S W Bell Tel. Co. v.

Com bs, 270 S.W. 3d 249, 259

- 60 (Tex. App.

—Amari llo Oct. 28, 2008, pet. deni ed) (c iting

City of Pflugervi lle v. Capital Metro

. Transp. Auth

. , 123 S.W.3d 106, 109 (Tex. App.

—

Austin 2003, pet. denied)). When both parties move for summary judgment on th e same

issue s and the trial court grants on e motion and denies the othe r, the reviewing cou rt

consid ers the summar y judgment evidence presented by both sides and determines all

questions presented. Combs, 270 S.W.3d at 260 (citing V alence Operating Co.

, 1 64

S. W .3d at 661 ; Comm ’ rs Court of Titu s County v. Aga n

, 94 0 S.W.2d 77, 81 (Tex. 1997)).

Further, when the summary judgment order does not specify the grounds on which

it was gran ted, as is the case here, the a ppealing party must de monstrate that none of

the pr o posed grou nds are sufficient t o su pport the judgment. Mejia

- Ros a

, 2019 Tex. App

.

LEXIS 6405, at *13 (citing Wes t v. SMG , 318 S.W.3d 430, 437 (Tex. App.

— Houston [1st

Dist.] 2010, no pet. ) ). Therefore , w e will affirm a summary j udgment rul ing if any of th e6 grounds a sserted in the motion are merito riou s. Mejia

- Rosa

, 201 9 Tex. Ap p. LEXIS 6405,

at *1 3 (citations omitted).

I SSUE O NE

— D UTY TO D EFEND

Through her first issue, Latray argue s the trial court e rred in not granti ng her partial

motion for summar y jud g ment conce rn ing Colony ’ s d uty to d efen d. Colony disag ree s

,

arguing that because there was no coverage , no duty to defend arose.

Whether an insuranc e carrier owes a dut y to defen d a claim being made a gainst

an insure d under a n insurance policy is a ques t ion of law that we review de novo

. St.

P aul In s. Co. v. Tex. Dep ’ t of Transp

. , 999 S.W.2d 881, 884 (Tex. App.

—Austin 1999,

pet. denied )

. Initially, t he insure d bears the burden of establishing coverage under the

term s of the insurance policy in question

. JAW T he Pointe, L.L.C. v. Lexington Ins. Co.

,

460 S.W. 3d 597, 603 (Tex. 2015); StarNet Ins. Co. v. RiceTec, Inc

. , 586 S.W.3d 434, 444

(Tex. App.

— Housto n [ 1st Dist.] 2019 , pet. denied ) (citing Ewing Constr. Co. v. Am erisure

Ins. Co

. , 420 S.W.3d 30, 33 (T e x. 2014 ) ; Gilbert Tex. Constr., L.P. v. Underwr iters at

Lloyd ’ s Londo n , 327 S.W.3d 118, 124 (Tex. 2010 ) ). To a void liability and a duty to defend

,

the insurer then has the burde n to plead and prove that the loss fall s within an exclusion

to the policy ’ s c overage. Gilbert Tex. Constr., L.P. , 327 S.W.2d at 124

. S e e T EX

. I NS

.

C ODE A NN . § 554.002 (providing that in a “suit to recover under an insurance . . . contract,

the insurer . . . has the burden of proof as to any avoidanc e or affirmative defense that

t he Texa s Rules of Civil Procedure require to be affirmatively pleaded ”)

.

Specifically , t he acts s ued up on must fall within the policy coverage be fore a duty

to defend arises. Curb v. Tex. Farmers Ins. Co.

, No. 11

- 03

- 00406

- CV, 2005 Tex. App.7 LE X IS 4480, a t *7

- 9 (Tex. App.

— Eastland June 9, 2005 , no pet. ) (mem. op.)

. An insurer

does not owe a duty to defend an insured unless the pe tition in the unde rlying lawsu it

contains allegations of fact wh ich fall within the scope of coverage provided for i n the

policy of in s urance. I d. (citing Nat ’ l Union Fire Ins

. Co

. of Pittsburg

, Pa. v. Merchants Fast

Moto r Lines, Inc.

, 939 S.W .2d 13 9, 141 (Tex. 1997 ) ).

T o d ete rmine the existence of a duty t o def end, we apply the “ eight corners rule

, ”

also kn o wn as the “ compla int al legati o n rule [.] ” Cu rb

, 2005 Tex. App. LEXIS 4480, at *7

( citation omitted) (c iting Trinity U niversal Ins. Co. v

. Cowan

, 945 S.W.2d 819, 82 1 (Tex.

1997); Nat ’ l Union Fire Ins. Co. of Pittsburg, Pa.

, 939 S.W.2d at 141). Our f ocus is on the

allegations in the petition tha t show th e origin of the damage s; the focus is no t on the

leg al theories alleged. Curb

, 2005 T ex. App. LEXIS 4480, at * 8 ( citing Cowan

, 945

S.W.2d at 821

- 22 )

. We consider the allegations in the pet i tion in li ght of the policy terms

witho ut considering ei ther the truth or falsity of th e alle gations or wh at the part ies know

or believe the true fac ts to be. Curb

, 2005 T ex. App. LEXIS 4480, at * 8 (cit ing Heyden

Newport Chem

. Corp

. v. Southern Gen. Ins. Co.

, 387 S .W.2d 22, 24 (Tex.1965 ) ). Th e

sam e is true even if ther e has already been a legal det ermination of the facts. Curb

, 2005

T ex. App. LEXIS 4480, at * 8 (ci tation om itted). W e do not look o utside the pleadings and

the policy of insurance in our as s essment of whether there is a dut y to defend

. Id.

( citation omi tted )

. If a petitio n does not allege facts that fall within the scope of coverage,

an insurer is not required to de f end a suit again st its insured. Id. (citing Am. Physicians

Ins. E xch. v. G arcia

, 876 S.W.2d 842

, 848 ( Tex. 1994) )

. However, a ny doubt a s to

w hether the insurer has a dut y to defen d should be resolved in favor of the insure d

.

Archon Invs. v. Great Am. Lloyds Ins. Co

. , 174 S.W.3d 334, 339 (Tex. App.

— Houston8 [ 1st D ist.] 2005 , pet

. denied ) ( citing King v. Dallas F ire I ns. Co

. , 85 S.W.3d 185, 186 (Tex.

2002 ) ; Collie r v. Allstate C nty

. Mut

. Ins

. Co. , 64 S.W.3d 54, 5 9 (Tex. App.

— Fort Wort h

2001, no pet.) ).

Generally, the insurer is obligated t o defend if there is, potentially, an acti o n

alle ged within the policy coverage, eve n if t he allegations do not cl early show there is

coverage. Archon Invs.

, 174 S.W.3d at 339 (citations omitted ). The alleged underlying

facts determine coverage, not the enumerated causes of action

. Id. (ci ta t io n s omitt ed)

. A

duty to defend any of th e cla ims r equ ires the insurer to d efend the entire suit. Id. (ci tations

omitted)

. However, an insurer ’ s duty to defend its insur ed is separate and distinct from

its duty to indemnify

, which is not based on the plead i n gs in the underlying lawsuit but

ins tead on the facts that establish liability according to the p rovisions of the insurance

contract

. Id. (citation omitted)

. Furthermore, i t arises only after the i ns ured has been

adjudicated legally responsible for da m ages in a lawsuit by judgmen t or settl ement. Id.

The “ duty to defend is thus broader than the duty to indemnify; if an insurer has no duty

to defend, it has no duty to indemnify; but an insurer may have a duty to defend without

being ultimately shown to h ave a duty to indemnif y

. ” I d. (ci tatio ns om itted).

We find the court ’ s dec i sion in Curb to be il lustrat ive in determining whether Colony

had a duty to defend Bo atright

. In Cur b

, a high school student and some o f his friends

stru ng fishing line around th e courtyard at sc hool with the intent o f luring their frie nds

there so that they would tr ip over the line. Curb

, 2005 Tex. App. LEXIS 4480, at * 3

- 4

.

Afte r the st udents strung th e fishing l ine, they went to look for their friends but got

distracted when t h ey found t hem and forg ot about the fis hing lin e. T h e next night , a

teacher left the bui lding and tripped over t he line. She was injured a n d su ed the s tudent9 and his f ather for compensation for those injuries

. T h e student sought to have his parent ’ s

hom e owner ’ s in surance co mpany provide a de fense. The insurance company argued

that bec ause the conduct in question was intentional

, there was no “ accident ” and

,

there fore

, no coverage ; and

, because there was no coverage , it had no duty to defend.

Th e tri al c o urt granted t he insurance company ’ s m otion for summary judgment. O n

appeal, the appellate court a greed

, finding liability did not arise as the result of an accident

because the teacher ’s pleadings allege d the st udent ’ s act s were exactly what he intended

t o do. Id. T h e court we nt on to say that “[t] o be acciden tal, an e ffect could not reasona b ly

h ave been anticipated fro m the conduct that produced it, and the insured ‘ canno t be

cha rged with the design of produc ing ’ ” t he effect. Curb

, 2005 T ex. App. LEX I S 4480, at

*1 1 (citing M id

- Century In s. Co. of T e xas v. Lindsey

, 99 7 S.W.2d 153, 155 (Tex.1999) ).

T h us, because t he injury caused b y the student was of the type that would “ ordi narily

follow ” from his conduct “ and the i njuries could b e ‘ r easona bly antici p ated from the use

of th e means, or an effect [,] ’ ” t he s u mmar y judgm ent evidence conc lusively establishe d

that the insurance co mp any ha d no duty to defend the student

. Curb

, 2005 Tex. App.

LEXIS 448 0, at *11. Simply stated, t h ere was no a ccident and

, the r efore, n o in sured

occurrence

. Id.

Th e same is t r ue here. T h e polic y in question d efines an “ occ urre nce ” as “ an

accident

, including continuous or rep eated exposure to substantially the s ame gene ral

harmful conditions. ” “Acc ident ” is not defined in the p o lic y. However, the Texas Supreme

Co urt has stated that an i njury is acci dental i f “ from the view point of the insure d

, [it is] not

the natural and probable consequence of the action or occurrenc e which produced the

injury; or in other words, if the injur y could not reasonably be anticipated by insure d

, or10 wou ld no t ordinar i ly follow fr om the action or occurrenc e which caused the injury. ” Lennar

Corp. v. Great Am. Ins. Co

. , 200 S.W.3d 651, 663 (T ex. App.

— Houston [1 4th Dist.] 2006

,

pet. denied ) (citin g Mid

- Century Ins. Co. v. Lindse y

, 997 S.W. 2d 153, 155 (Tex. 1999)

( quoting Repu blic Nat ’ l Life Ins. Co. v. Heywar d

, 536 S.W.2d 549, 557 (Tex.1976))

. Under

this rubric, t wo factors bear on the determi nation of whether an insure d ’ s action

constitutes an ac ciden t : (1) the insure d ’ s intent and (2) t he reasonably fore seeable ef fect

of the in su r ed ’ s c o nduc t

. Lennar Corp.

, 200 S. W.3d at 663 (citation omitted).

The pleadings sh ow Boatright clearly i ntende d to move the debris to the Roberts ’

property and leave it th e re

. Because the dam age to the proper ty was the very presence

of the debris on th e proper ty

, the damages were a reasonably foreseeable result of

Boatright ’ s intentional conduct. Furthermore, t he damag e s claimed w ere of a t y pe that

ordinar ily flowed from t he conduct

, not damage s of an acciden tal nature. T h e terms of

the policy establis h that it does not cover intentional acts of this nature. Furthermore

,

contrary to Latray ’ s contention, t he m ere asse rtion of negligence is n ot sufficient t o trigger

a d uty to defend as th at d uty is dependent o n the a llegations in the pleadings and the

po licy coverage, not the asserted le gal the ories

. Curb

, 2005 T ex. App. LEXIS 4480, at

* 8 ; Freedman v. Cign a In s . Co. of Tex.

, 976 S.W.2d 776, 7 7 9 (Tex. App.

— Ho uston [1st

Dist

. ] 1998, no pet.)

. Here

, the summary judgment evidence establishe d

, as a matter of

law, that the placement of the debris on the property was no accident and, therefore, no

“ occurrence ” und er the terms of the policy. Bec ause there was no oc currence, there was

no coverage

. And because there w as no c overage

, Colony wa s un der no dut y to d efend

Boatright i n the claims bro ught by Latray

. We re solve Latray ’ s first is sue against he r.11 I SSUE T WO

— D UTY TO I NDEMNIFY

Si m ilar to the position taken in her fi rst issu e

, by the s econd issue, Latray contend s

the trial court er red in granting Colony ’ s motion for summ ar y judgment because there is

a cont e sted fact issue co ncerning w hether Boatright ’ s act ions consti tute d an “ occurrence ”

under the policy

. Latray argue s Boatr i gh t ’ s actions were negligent in natur e rather than

i ntentional, and thus, the poli cy provided co v erage. Again, Colony conten ds the evide n ce

shows Boatri ght ’ s actions were intentional and there wa s no “ occurrence ” under the

policy, thus establishing the re was no coverage and no duty to indemn ify. W e agree with

Colony ’ s contenti on.

The issue of whether Colony had a du t y to indemnif y is a leg al issue t o be reviewe d

d e nov o

. Great Am. Lloyds Ins

. Co. v. Mittlestad t

, 109 S.W.3d 784, 786 (T ex. App.

— Fort

Wort h 2003 , no pet. ). Under the terms of the polic y here

, for there to be an “ occurren ce

, ”

there must have be en an “ accident

, ” ca using property damage. As the parties note

, two

lines of cases regarding “ occurrence ” have evolved in this area

.

The first line o f cases

, t he “ Ma upin lin e

, ” pertains t o coverage of claims against an

insured for d amage caused by the insured ’ s intentional torts

. See Argonaut S w. Ins. Co.

v. Maupin

, 5 00 S.W.2d 633 (Tex. 1973) ; KB Home v

. Emp s. Mut. Cas. C o

. , No. 2

- 06

- 383

-

CV, 2008 Tex. App. LEXIS 771, at *17

- 20 (Tex. App.

— Fort Wor th Jan. 31, 2008 , no pet. )

(mem. op.) (citin g Gehan Homes, Ltd. v. Emp s

. Mut

. C as

. Co.

, 146 S.W.3d 833 (Tex.

App.

— D a llas 2004, no pet. ) ; Federated Mut. Ins. Co. v. Grapevine Exc avation, Inc.

, 197

F.3d 720, 723 ( 5th Cir. 1999 ) )

. Colony argues that this line of cases applies here.12 In Maupin

, the plaint iffs alleged tha t the insured a cted intentionally, wr ongfully, and

willfully, when it took fill material from the plainti ff s ’ property without their conse n t. The

appellate court held that ther e was n o “ occurrence ” because the conduct wa s alleged to

be inten tional

. Maupin involved a contract b e t ween the State of Te xas and Mau pi n, part

of which entai led the acquisition of “ b orrow material ” for roadway fills

. Maupin

, 500

S.W.2d at 63 4. Maupin c o ntra cte d with a thi rd party for the purchase of that material. Id.

Maupin then removed about 5,74 4 cub i c feet of the mate ri al from the pr operty. Id. a t 635.

It was later determined that the person with whom Ma upin had contracted for removal of

the material di d not own the p roperty but rather, wa s a ten ant

- in

- possession. Id. While

Maupin argued there was no intent to injur e the land own ers and that the removal of the

material from the property was don e under the aut h ority of a contract, the court found that

in tent was irrele van t. Id. The court n oted that t he d amage comp lained of there was the

removal of t he large amount of m aterial fro m t he property without the owner ’ s consent

.

T h us

, M aupin “ did exactly what they i ntended to do. The fac t that they did not d eal

originally with the owners of the propert y was the mistake or error. The r e was no

insurance against liability for damages caused by mistake o r error. ” Id

. Further, the court

co ncluded Maupin ’ s act in tresp a ssing on the property d id not constitute an accident ;

Maupin did what they intende d to do by removing the material from th e property

. Id.

Furthermore

, t he fact that Maupin was unaware of the true o wner of the p roperty ha d “ no

bearin g upon whether the tr e spass was caused by accident. [ Maupin ’ s] act s were

voluntary and intentional, even though the resul t or injury may have been une xpected,

unforeseen and unintended

. ” Id. Conseq u ently, the court d e te rmined ther e was “ no

cov erage under the policy for damag e s caused by mistake or error as to the owner ship13 of the property in question. The damage was not an accident or occurrence withi n the

meaning of this policy

. ” Id. at 635.

The s econd line of case s comes from the Texas S up reme Court ’ s decision in

Mass

. B o nding & Ins. Co. v. Ork in Exterminating Co.

, 416 S.W .2d 396 (Tex. 1967). In

that case

, t he C ourt found that th e term “ accident

, ” as used in the insurance policy at

is sue

, included negligent acts c ausing damage s that w ere “ undesigned and unexpecte d. ”

Id. a t 400. Likewise

, subsequent cases have held th a t the terms “ accid en t ” and

“ occ urr ence ” in clude damages that are unexpected, unforeseen

, or undesigned as a

r esult of an insured ’ s intentional

, but negligent behavior. KB Home

, 2008 Tex. App.

LEX IS 771, at * 19 (citing Great Am. Ins. Co. v. Calli Homes

, Inc.

, 236 F. Supp. 2d 693, 699

(S.D. Te x. 2002 ) ). It is this line of cases Latray seeks to apply to the insurance policy in

question in this proceeding

, arguing that t he damages to the Roberts ’ property were

u nexpected and unforeseen based on Boatright ’ s mistaken belief that he had permissi on

to deposit the debris on the pro perty.

A s is pertinent to t he case now before us

, one such case interpreting this second

line of cases is the Dallas Court of Appeals ’ s dec i sion in Hallman v. Allstate Ins. Co.

, 114

S.W. 3d 656 (Tex. App.

— Dallas 2 003) rev ’ d on other grounds

, 159 S.W.3d 640 (Tex.

2005)

, wherein the court observed:

There is not an accident when the action is intentionall y taken and

per formed in such a manner tha t it is an intentiona l tort, regardless of

whet her th e ef fect was unintended or une xpected. However, there is an

accident when the action is intentio nally taken but is performed negligently

and the eff ect is not w hat would have b een intended or expected h a d the

deliberate acti o n been performed n on

- neg ligentl y.14 Id. at 660

- 61 (citations omitted)

. Similarly, in 2004

, in Gehan Homes, Ltd.

, 1 46 S.W.3d

at 842

, the Dallas Court of Appe als analyzed the situation before i t in light of the la nguage

in Hallm an and d etermined that the insurers did not establish as a matter of law that the

petition failed to allege an “ occurrence ” under the terms of th e policy where the “ intentional

act of performing t he con tract was allegedly performed negligently. Th e purported

d am a ge was an u nexpected and undesigned consequenc e of Gehan ’ s a lleged

negligence. ” Id

. at 843 (cita tions omitted).

W e do not agree the same is true here. The undisp ute d evidence in t he recor d

bef ore us shows Boatright intended to mov e the debris on to the Ro b erts ’ p ropert y and he

intended to leave it th ere. Furthermore, t here were no allegati ons that Boatright was

negli gent in the performance of those acts. The damage sustained wa s the consequence

of the simple presence of the debris on the Robe rt s ’ land. Th i s is simi lar to

, albeit the

reverse of

, the re moval of ma ter ial from the land in Maup in. There

, Maupin inten ded to

remove the material f rom the property and the damage to the land was the remova l of

that material

— under the mistaken belief they had permissi o n to do so

— r esulting in a

finding of no a ccident and no insurance coverage against l iability for damages caused by

that mista ke o r error

. 500 S.W.2d at 6 35

. N o thi ng in the recor d indicates Boa tright ’ s

intenti o nal act s wer e perfo rme d negl igently

, as in Orki n

. Rather

, the contra ct with the Ci ty

of Kosse requi red Boatright to demolish the old high school and remove the debris. In

the performance of that contract

, Bo atright intentio nally remove d the de bris and place d it

on the Robert s ’ p roperty

— under th e mistaken belief he had permission to do so

—

resulting in d amage to the pro pert y from the mere presence of the debris itself, not some

uni ntended consequence of Boatright ’s intentional act

.15 Additi onally, Boatright ’ s conduct is disting uishable from the cond u ct of the

exterminator in O rkin who inten tionally spray ed the rice mill but did so in a negligent

manne r

, resulting in unexpected damages to the rice. Orkin Exterminating Co.

, 416

S.W .2d at 400

- 01. Had that contract been perf ormed properly, the ric e wo u l d not have

been damaged at all. Converse ly

, i n this case, no matter how carefully Bo atri ght

performed the acts he did, the same damages would still have occurred. Because the

damages sustain ed in this cause were not proximately caused by an error or mis t ake and

not by an y negligent acts

, Boatri ght ’ s conduct and resultant liability are fa r more akin to

the contractor in Maupin than it is t he ext erm ina tor in Orkin

. As such, under the pleadings

an d facts of this case, we find the Maupin line of cases to be controll ing.

We have reviewed the summa r y judgmen t record and there is nothing in t h e record

which would show Boa tright ’ s actions wer e a nyth ing other than intentiona l

. Typically,

whether a n ins ured intended the injury to occ ur is a question of fact. Cu r b

, 2005 Tex.

App. LEXIS 4480, at *13

- 14 ( citation omitted). However

, there are insta nces where the

actions of an indiv idual are intentiona l as a m atter of law. Id. The origin of the injury in

t his case was Boatright ’ s deposi t of debri s on the Rober ts ’ l and. “ When a result is the

natural and p robable consequence of an ac t or course of a ction, it is not produced by

acciden tal means. The natur al resu lt of an ac t is the result that ordinarily foll o w s, ma ybe

reasonably anticipated , an d ought to be expect ed. ” Id. T h is is an objective standard. Id

.

Further, a “ person is held to intend the natural and probable results of his ac t s even if he

did n ot subje ctively intend or anticipate those consequen ces

. ” Id. (citing Wessinger v.

Fir e Ins. Exch.

, 94 9 S.W.2d 8 34 (Tex. App.

— Dallas 1997, no pet

. ) )

. Th us, Boatright

acted intentionally even if he did not intend the result, i.e

. , to injur e t he Rober ts es

.16 Acco rding to Boatright , he b elieved Garret t to be t he owner of the land and that G arre t t

was using the deb ris for er o s ion control. According to Garre t t, he b el ieved he was doing

the right thing by usin g the de bris for er osion contro l. But, none of th at is rel evant to

w hether Boatright ’ s actions were i n te n ti onal and thus no t covered by the te rms of the

policy.

Based on the record before us and rev iewing the ev idence in the requisite light,

we find there was no “ occurre nce ” und er the policy and conse qu ent ly, no coverage

.

Therefore, the trial co urt did not er r in granting summary judgmen t in f avor o f Colony

because th e re was no duty to indemnify under these fact s. We overrule Latray ’ s second

issue.

R EMAINING I SS UES

Latray ’ s claims of violat ion s of t he DTPA

, Texas Insurance Code

, and common l aw

d ut y of good faith and f air deal ing re quire a finding of coverage und e r the policy of

insurance in question

. As we h ave explained above, under the express terms of the policy

there was no coverage. Because no coverage exists, summar y j udgmen t w as pro per as

to these claims. KB Ho me

, 2008 Tex. App. LEXIS 771, at * 23

- 24 (ci t ing Emmert v.

Progressive C nty

. Mut. Ins. Co

. , 882 S .W.2d 32, 36 (Tex. App.

— Tyl er 199 4, writ denied );

Bartlett v. Am. Repub lic Ins. Co.

, 845 S.W.2d 342, 348

- 49 (Tex. App.

— Dallas 19 92, no

writ); Koral Indus., Inc. v. Sec

. - Conn. Life In s. Co.

, 7 88 S.W.2d 13 6

, 147 (Tex. A pp.

—

Dallas 1990, no wr it ) )

. We o verrule Latr ay ’ s r em aining issues.17 C O N CLUSION

Having overruled each of Latray ’ s appellate issues

, we affirm the ju dgment of the

trial court.

Patrick A. Pi rtle

Justice