* Pursuant to 5th Cir. R. 47.5, the Court has determ ined th at this opinio n s h ould not be published and is not precedent except under the limit ed circumstances set fo rth in 5th Cir. R. 47.5.4. 1 United States Court of Appeals Fifth Circuit 

## FILED March 5, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
No. 06-10541 Summary Calendar

ROBERT L SHIPP; JOYCE SHIPP, Pl aint iffs-Appellants,

versus STATE FARM FIRE CASUALTY CO; STATE FARM LLOYDS, Defendants-Appellees.
Appeal from the United States District Court fo r the Northern District of Texas (No. 4:05-CV-778)
Before DeMOSS, STEWART, and PRADO, Circuit Judges. PER CURIAM: * This appeal arises from the district court’s grant of summary judgment in favor of State Farm Fire & Casualty Com

pany and State Farm Llo yds (collectively, “State Farm”). Robert L. Shipp and J oyce Shipp (the “Shipps”) allege th at State Farm owed a duty to defend and indemnify them in a2

lawsuit, Steven J. Meyers and Orly Meyers v. Robert L. Shipp and Joyce R. Shipp , Cause No. 141- 211550-05 (the “underlying suit”). We affirm the district court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND State Farm covered the Shipps under two insurance pol icies: a homeowner pol

icy issued by State Farm Llo yds and a personal liabilit y umbrella pol icy (“PLUP”) issued by State Farm Fire & Casualty Company. The homeowner policy provides in pertinent part that If a claim is made or a suit is brought against an insured for damages because of bodily injury or propert y damage to which this coverage applies, caused by an occurrence, we will: 1. pay up to our limit of liabilit y fo r the damages fo r which the insured is legally liable; and 2. provide a defense at our expense by counsel of our choice.
The homeowner pol

icy defines the fo llo wing relevant terms: “property damage” means physical damage to or destruction of tangible property , including lo ss of use of the property ; and “o ccurrence”
means an accident, including exp osure to conditions, which results in bodily injury or property damage during the policy period. The PLUP provides in pertinent part that If yo u are legally obligated to pay damages fo r a lo ss, we will indemnify yo u fo r yo ur net loss minus the retained limit. The PLUP defines “lo ss” as an accident th at results in personal injury or property damage during the pol icy period. Personal injury includes bodily injury, sickness, disease, shock, mental anguish, or ment al injury. Property damage entails physical injury to or destruction of tangible property. During the summer of 2004, the Shipps sold their house to Steven J. and Orl y Meyers (the “Meyerses”). As part of the transaction, the Shipps executed a Seller’s Disclosure Notice representing th at no damage from an active infest ation of term it es or other wood-destroying insects3

required repairs in the house and there had been no previous repairs made fo r such damage. In May 2005, the Meyerses filed suit against the Shipps in the 141st District Court of Tarrant County , Texas, aft er discovering term

it e damage in thei

r hom e. The Meyeres alleged violations under the Texas Deceptive Trade Practices Act (the “DTPA”), statutory fraud under § 27.01 of the Texas Business and Commerce Code, common law fraud, and negligent misrepresentation. Pursu ant to their insurance policies, the Shipps requested that State Farm provide their defense in the underlying suit, but State Farm refused to com ply wit h this request fo r representation. In November 2005, the Shipps sued State Farm fo r breach of contract. State Farm removed the case to federal court. Both parties sought a declaratory judgment on whether State Farm has a duty to defend and indemnify under the homeowner policy or PLUP. State Farm argued that the Meyeres did not plead an occurrence, property damage, or bodily injury, which are prerequisites fo r coverage of the underlying suit. On April 18, 2006, upon cross-motions, the district court ent ered a final judgment granting State Farm’s motion for summary judgment. The Shipps filed a timely appeal. The issue on appeal is whether State Farm owed a duty to defend and indemnify the Shipps in the underlying lawsuit. II. STANDARD OF REVIEW We review de novo a di strict court’s grant of summary judgment, applying the same legal standards as the district court. Allstate Ins. Co. v. Disability Servs. of the Sw
. Inc. , 400 F.3d 260, 262-63 (5th Cir. 2005). The court m ust determ

ine whether the submissions show that there is no genuine issue as to any mat erial fact and th at the mo ving party is entitled to judgment as a mat ter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v . Catrett , 477 U.S. 317, 322 (1986). This court also4

reviews de novo a district court’s int erpretation of an insurance pol icy. P erformance Autoplex II, Ltd. v. Mid-Continent Cas. Co. , 322 F.3d 847, 853 (5th Cir. 2003). III. DISCUSSION An insurer’s duty to defend depends upon an examinat io n of the pleadings in the underlying suit and the pol

icy provisions. A rgonaut Sw
. Inc. Co. v. Maupin , 500 S.W.2d 633, 635 (Tex. 1973); State Farm Lloyds v. Kessler , 932 S.W.2d 732, 737 (Tex.App. 1996) (setting fo rth the eight corners rule, which only considers the pled allegations and policy language to determine an insurer’s duty to defend). If the pleadings allege facts or encompass evidence within coverage, then the insurer must defend the case. H

eyden New

port Chem. Corp. v. S. Gen. Ins. Co. , 387 S.W.2d 22, 26 (Tex. 1965); Terra Int’l, Inc. v. Commonwealth Lloyd’s Ins. Co. , 829 S.W.2d 270, 272 (Tex.App. 1992). The insured bears the burden to prove th at the pol icy’s grant of coverage includes the alleged claim. N ew York Life Ins. Co. v. Travelers Ins. Co. , 92 F.3d 336, 338 (5th Cir. 1996). In a case involving the duty to defend and duty to indemnify, even th ough separate inquiries, if “t he same reasons th at negate the duty to defend also negate the duty to indemnify, t he Court may declare that the insurance
com pany has neit her duty .” F armers Tex. County Mut. Ins. Co. v. Griffin , 955 S.W.2d 81, 84 (Tex. 1997). The conventional rules of contract int erpretation govern the int erpretation of an insurance pol icy. Forbau v. Aetn a Life Ins. Co. , 876 S.W.2d 132, 133 (Tex. 1994). Unless the policy language contains ambiguous language, the court assigns the ordinary meaning to words used in the pol icy. Sec. Mut. Cas. Co. v. Johnson , 584 S.W.2d 703, 704 (Tex. 1979); Yancey v. Floyd West & Co. , 755 S.W.2d 914, 918 (Tex. App. 1988).5

In this case, the homeowner pol icy permits coverage fo r claims caused by an occurrence. The PLUP permits coverage and indemnit y o f fo r damages resul ting from a loss. The two policies similarly define occurrence and loss as an accident resulting from personal injury, bodily injury, or property damage during the pol icy period. Therefore, the coverage question requires a determination of whether the Meyeres allege in their pleadings th at the damage to their hom e was caused by an accident. Alt hough not defined in either policy, under Texas law, an accident has been described in the following terms: [A]n injury is accidental if from the viewpoint of the insured, it is not the natural and probable consequence of the action or occurrence which produce d th e injury; or in oth er words, if t he injury could not reasonably be anticipated by insured [sic], o r would not ordinarily fo llo w from the action or occurrence which caused the injury.

. . . [B]oth the actor’s int ent and the reasonably foreseeable effect of his conduct bear on the determination of whether an occurrence is accidental. Mid-Century Ins. Co. of Tex. v. Lindsey , 997 S.W.2d 153, 155 (Tex. 1999) (citations omitted); Trinity Universal Ins. Co. v. Cow an , 945 S.W.2d 819, 827-28 (Tex. 1997). The Meyeres pleaded th at the Shipps knowingly and int entionally misrepresented th at their house
was unaffected at any point in the past, present, or future by termit es or wood-destroying insects. The Meyeres also pleaded th at the representations regarding the condition of the Shipps’ home were “false, misleading and deceptive” for the following reasons: (a) the Shipps failed to disclose th at there was active termit e infestation and that damage had been concealed; (b) the Shipps concealed term it e damage by int entionally patching, covering up and painting over damaged areas; (c) the Shipps misrepresented the seller’s disclosure regarding term it e or wood-destroying insect damage, past and present; and (d) the Shipps misrepresented the seller’s disclosure regarding term it e or wood-destroying insect damage that had been repaired. These factual allegations do not meet the definit io n of an accident. Any reasonable person could conclude th at damage to the home naturally occurs from term it e infest ation. In the pleadings, the6

Meyeres assert th at the Shipps com mit ted an int entional tort, not an ac c idental oversight, which caused reasonably fo reseeable damage to the house. Since the homeowner policy and PLUP only
cover damages flo wing from an accident, the facts pled in the Meyerses’ com plaint do not fall wit hin the Shipps’ insurance coverage. Accordingly, State Farm was under no duty to defend or indemnify the Shipps in the underlying lawsuit. IV. CONCLUSION Based on the foregoing reasons, we affirm the district court’s grant of summary judgment.