Subject: IN THE SUPREME COURT OF TEXAS
From: <Saved by Windows Internet Explorer 7>
Date: Mon, 12 Mar 2007 20:13:41 -0500

IN THE SUPREME COURT OF TEXAS

════════════

No. 04-0692

════════════

GuideOne Elite Insurance
Company f/k/a Preferred Abstainers Insurance Company, Petitioner,

v.

Fielder Road Baptist Church,
Respondent

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Second District of
Texas

════════════════════════════════════════════════════

Argued October 20,
2005

Justice Medina delivered the opinion of
the Court, joined by Chief Justice
Jefferson, Justice
O’Neill, Justice Green, and Justice Johnson.

Justice Hecht filed a concurring
opinion, joined by Justice
Wainwright, Justice Brister,
and Justice Willett.

In this
declaratory judgment action, we are asked to create an exception to the
complaint-allegation or eight-corners rule. The eight-corners rule provides that
when an insured is sued by a third party, the liability insurer is to determine
its duty to defend solely from terms of the policy and the pleadings of the
third-party claimant. Resort to evidence outside the four corners of these two
documents is generally prohibited.

The trial
court, relying on evidence extrinsic to the policy and pleadings, declared that
the insurer had no duty to defend the underlying claim against its insured. The
court of appeals, however, reversed, concluding that because the circumstances
of the case presented no reason to create an exception to the eight-corners
rule, the trial court had erred in using extrinsic evidence to defeat the
insurer’s duty to defend. 139 S.W.3d 384. We agree and, accordingly, affirm the
court of appeals’ judgment.

I

GuideOne
Elite Insurance Company issued a commercial general liability insurance policy
to Fielder Road Baptist Church, effective March 31, 1993. The policy included
the following liability coverage for sexual misconduct:

We agree
to cover your legal liability for damages because of bodily injury, excluding
any sickness or disease, to any person arising out of sexual misconduct which
occurs during the policy period. We shall have the right and duty to investigate
any claim ... and to defend any suit brought against you seeking damages, even
if the allegations of the suit are groundless, false or fraudulent, and we may
make any settlement we deem expedient.

The policy
expired on March 31, 1994.

On June 6,
2001, Jane Doe filed a sexual misconduct lawsuit against the Church and Charles
Patrick Evans. In her pleadings, Jane Doe alleged that “[a]t all times material
herein from 1992 to 1994, Evans was employed as an associate youth minister and
was under Fielder Road’s direct supervision and control when he sexually
exploited and abused Plaintiff.” The Church demanded that GuideOne defend it in
the lawsuit and indemnify it for any judgment or settlement. GuideOne agreed to
defend, but questioned coverage under the policy and reserved its rights to
determine that issue at a later time.

A few months
later, GuideOne filed this declaratory judgment action seeking the policy’s
construction and a declaration that GuideOne had no duty to defend or indemnify
the Church in the underlying sexual misconduct lawsuit. In this action, GuideOne
sought discovery of Evans’ church employment history. The Church objected,
asserting that GuideOne’s duty to defend should be determined from the pleadings
and the insurance policy, without resort to extrinsic evidence. The trial court,
however, declined to block the discovery request, and the Church thereafter
advised GuideOne that Evans ceased working for it on December 15, 1992, before
the GuideOne policy took effect.

After both
parties filed motions for summary judgment, the trial court granted GuideOne’s
motion, denied the Church’s, and rendered judgment declaring that GuideOne had
no duty to defend the Church in the underlying sexual misconduct case. The court
of appeals, however, reversed the summary judgment, concluding that the trial
court had erred in considering extrinsic evidence to defeat GuideOne’s duty to
defend its insured. 139 S.W.3d 384. The court of appeals further concluded that
Jane Doe’s allegations were sufficient to invoke that duty, remanding the case
to the trial court for a hearing only on costs and attorney’s fees. Id.
at 390-91. GuideOne petitioned this Court for review.

II

GuideOne
argues that it had no duty to defend the Church against the underlying claim of
sexual misconduct because Evans left his job as a youth minister before the
policy’s effective date. Because Jane Doe’s allegations against the Church
involved Evans’ conduct while a youth minister, GuideOne suggests, that
extrinsic evidence of when that relationship ended establishes no coverage
existed for Evans’ acts during the policy period. Recognizing the eight-corners
rule as an impediment to its argument, however, GuideOne contends a number of
reasons support its proposition that extrinsic evidence regarding Evans’
employment status be considered as an exception to the rule.

First,
GuideOne argues that an exception should apply because the extrinsic evidence
here was primarily relevant to the issue of coverage, rather than the merits of
the plaintiff’s underlying claim. Alternatively, GuideOne argues that extrinsic
evidence is needed to supplement the plaintiff’s allegations because those
allegations alone are insufficient to determine coverage or the duty to defend.
Finally, GuideOne submits that should the Court conclude that the employment
evidence is relevant both to coverage and liability, an exception to the
eight-corners rule should nevertheless be recognized for this type of “mixed” or
“overlapping” extrinsic evidence.

Under the
eight-corners or complaint-allegation rule, an insurer’s duty to defend is
determined by the third-party plaintiff’s pleadings, considered in light of the
policy provisions, without regard to the truth or falsity of those allegations.
Argonaut Sw. Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex. 1973);
Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.
1965). The rule takes its name from the fact that only two documents are
ordinarily relevant to the determination of the duty to defend: the policy and
the pleadings of the third-party claimant. King v. Dallas Fire Ins. Co.,
85 S.W.3d 185, 187 (Tex. 2002). Facts outside the pleadings, even those easily
ascertained, are ordinarily not material to the determination and allegations
against the insured are liberally construed in favor of coverage. Nat’l Union
Fire Ins. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.
1997).

Although this
Court has never expressly recognized an exception to the eight-corners rule,
other courts have.[1] Generally, these courts have drawn a
very narrow exception, permitting the use of extrinsic evidence only when
relevant to an independent and discrete coverage issue, not touching on the
merits of the underlying third-party claim.[2] Recently, the Fifth Circuit observed
that if this Court were to recognize an exception to the eight-corners rule, it
would likely do so under similar circumstances, such as: “when it is initially
impossible to discern whether coverage is potentially implicated and when
the extrinsic evidence goes solely to a fundamental issue of coverage which does
not overlap with the merits of or engage the truth or falsity of any facts
alleged in the underlying case.” Northfield Ins. Co. v. Loving Home Care,
Inc., 363 F.3d 523, 531 (5th Cir. 2004) (emphasis in original).

GuideOne
relies on extrinsic evidence that is relevant both to coverage and the merits
and thus does not fit the above exception to the rule. Hence, GuideOne argues
that we should broaden the exception to include this type of “mixed” or
“overlapping” extrinsic evidence. But very little support exists for this
position, and the Fifth Circuit Court of Appeals has previously rejected a
similar use of overlapping facts for this purpose. In Gulf Chemical &
Metallurgical Corp. v. Associated Metals & Minerals Corp., one of the
plaintiffs in the underlying toxic-tort action alleged that one of the
defendants, Gulf, was strictly liable because it had sold or shipped molyoxide.
1 F.3d 365, 367 (5th Cir. 1993). The petition did not specifically state when
Gulf had shipped molyoxide, but the petition did allege that the plaintiffs had
suffered injures from exposure to the toxin between 1946 and 1990. Id. at
368. Extrinsic evidence would have established that Gulf had not shipped any
molyoxide until January 20, 1986, which was three days after the expiration of
the insurance policy in question. Id. at 368, 370. Although the fact at
issue concerned both the merits and coverage, the Fifth Circuit, applying Texas
law, rejected the use of extrinsic evidence under these circumstances.
Id. at 371. We likewise reject the use of overlapping evidence as an
exception to the eight-corners rule because it poses a significant risk of
undermining the insured’s ability to defend itself in the underlying litigation.
See Ellen S. Pryor, Mapping the Changing Boundaries of the Duty to
Defend in Texas, 31 Tex. Tech Law
Rev. 869, 891-95 (2000) (discussing risks associated with using
overlapping evidence as an exception to the eight-corners rule).[3]

Those courts
that have recognized an exception to the eight-corners rule have done so under
limited circumstances involving pure coverage questions. For example, in
International Services Insurance Co. v. Boll, 392 S.W.2d 160 (Tex. Civ.
App.–Houston 1965, writ ref’d n.r.e.), the insurer refused to defend its insured
in an auto-collision case because of a policy endorsement that excluded coverage
for “any claim arising from accidents which occur while any automobile is being
operated by Roy Hamilton Boll.” The plaintiff’s petition alleged that the
insured’s son was driving the insured’s car when the accident occurred, but did
not otherwise identify the driver. After resolving the third-party claim, the
insured sued his insurer to recover his defense costs. During this subsequent
litigation, the parties stipulated that the insured’s only son, Roy Hamilton
Boll, was driving the insured vehicle. The court of appeals concluded that the
stipulation established the accident had not been covered and that the insurer
had no duty to defend.

The extrinsic
evidence in Boll, however, went strictly to the coverage issue. It did
not contradict any allegation in the third-party claimant’s pleadings material
to the merits of that underlying claim. In contrast, the extrinsic evidence here
concerning Evans’ employment directly contradicts the plaintiff’s allegations
that the Church employed Evans during the relevant coverage period, an
allegation material, at least in part, to the merits of the third-party claim.
Under the eight-corners rule, the allegation’s truth was not a matter for debate
in a declaratory judgment action between insurer and insured.

Moreover,
were we to recognize the exception urged here, we would by necessity conflate
the insurer’s defense and indemnity duties without regard for the policy’s
express terms. Although these duties are created by contract, they are rarely
coextensive. See Utica Nat’l Ins. Co. of Texas v. Am. Indem. Co., 141
S.W.3d 198, 203 (Tex. 2004) (observing that duty to defend and duty to indemnify
are distinct and separate); Whatley v. City of Dallas, 758 S.W.2d 301,
304 (Tex. App.–Dallas 1988, writ denied) (duty to defend is defined by the terms
of the contract). The policy here obligated GuideOne to indemnify the Church in
the event of a meritorious claim for sexual misconduct, but with respect to the
duty to defend, the contract provided that GuideOne should “defend any suit
brought against [the insured] seeking damages, even if the allegations of the
suit are groundless, false or fraudulent . . . .”

The policy
thus defined the duty to defend more broadly than the duty to indemnify. This is
often the case in this type of liability policy and is, in fact, the
circumstances assumed to exist under the eight-corners rule. Because the
respective duties differ in scope, they are invoked under different
circumstances. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819,
821-22 (Tex. 1997). A plaintiff’s factual allegations that potentially support a
covered claim is all that is needed to invoke the insured’s duty to defend,
Heyden Newport Chemical Corp., 387 S.W.2d at 26; whereas, the facts
actually established in the underlying suit control the duty to indemnify.
Trinity Universal Ins. Co., 945 S.W.2d at 821.

Jane Doe
alleged that Evans sexually assaulted her during the policy period and was a
youth minister at the Church at the time. As the court of appeals observed, the
allegations were sufficient to trigger GuideOne’s duty to defend. 139 S.W.3d at
389.

GuideOne
contends that it should not have to defend because it knows that Evans
was not in fact an employee of the Church during this period, but the duty to
defend does not turn on the truth or falsity of the plaintiff’s allegations. One
amicus argues, however, that it should because ignoring the truth invites
fraudulent and even collusive pleadings. The amicus further suggests that we
should adopt a true-facts exception to the eight-corners rule to prevent the
rule’s recurring use as a tool for fraud. But the record before us does not
suggest collusion or the existence of a pervasive problem in Texas with
fraudulent allegations designed solely to create a duty to defend.

Under
the present policy, GuideOne agreed to defend the Church against allegations of
sexual misconduct potentially within coverage, even if the plaintiff’s
allegations were false or fraudulent. Therefore if GuideOne knows these
allegations to be untrue, its duty is to establish such facts in defense of its
insured, rather than as an adversary in a declaratory judgment action. Heyden
Newport Chemical Corp., 387 S.W.2d at 25 (observing that the duty to
defend coverage protects policyholders against the expense of suits seeking
damages). Application of the eight-corners rule here thus conforms with the
parties contract, and accordingly we agree with the court of appeals that the
circumstances of this case present no basis for an exception to that rule.

III

GuideOne also
argues that Doe’s pleadings failed to invoke its duty to defend because her
allegations did not sufficiently describe her bodily injury. The policy defined
“bodily injury” to mean “bodily injury, sickness or disease sustained by a
person, including death resulting from any of these at any time.”[4] GuideOne maintains it had no duty to
defend because Doe’s pleadings sought damages for emotional and psychological
injuries rather than “bodily injury.”

The court of
appeals disagreed, noting that Doe’s allegations of sexual assault, abuse,
molestation and violation were sufficient. 139 S.W.3d at 390. Because the policy
attributed no technical or special meaning to the term “bodily injury,” the
court applied its ordinary and generally accepted meaning, concluding that
bodily injury is commonly understood to be a consequence of sexual assault and
abuse. Id. We agree.

Finally,
GuideOne complains that the court of appeals erred in remanding the case to the
trial court for determination of costs and attorneys’ fees because Doe did not
herself file a declaratory judgment action and did not pray for attorneys’ fees
in the proceedings below. Contrary to GuideOne’s argument, however, the Church
asked in its second amended motion for summary judgment that the court not only
grant its motion, but also conduct a hearing and award it attorneys’ fees. The
Declaratory Judgments Act provides that in any proceeding under the Act “the
court may award costs and reasonable and necessary attorney’s fees as are
equitable and just.” Tex. Civ. Prac.
& Rem. Code § 37.009. The reasonable and necessary requirements are
questions of fact to be determined by the factfinder; the equitable and just
requirements are questions of law for the trial court to decide. Bocquet v.
Herring, 972 S.W.2d 19, 21 (Tex. 1998). The court of appeals therefore did
not err in remanding the issue of attorneys’ fees and costs to the trial
court.

*
* * * *

Finding no
error in the court of appeals’ judgment, we affirm.

____________________________________

David M.
Medina

Justice

Opinion
delivered:         June 30, 2006

[1] See generally, 1 Rowland H. Long, The Law of Liability
Insurance § 5.02[2][b][ii] at 5-27 (2006) (“When the extrinsic facts
relied on by the insurer are relevant to the issue of coverage, but do not
affect the third party’s right of recovery, courts have held that the insurer
may refuse to defend third-party actions even though the allegations in the
complaint indicate coverage.”); 1 Allan
D. Windt, Insurance Claims and Disputes § 4:4 Insurer’s refusal to
defend based on existence of extrinsic facts (4th ed. 2001) (citing cases
which recognize that insurer may use extrinsic evidence to explain or refute
factual allegations that are immaterial or extraneous to the merits of the
third-party’s claim but relate solely to the question of
coverage).

[2] See, e.g., W. Heritage Ins. Co. v. River Entm’t,
998 F.2d 311, 313 (5th Cir. 1993) ("However, when the petition does not
contain sufficient facts to enable the court to determine if coverage exists, it
is proper to look to extrinsic evidence in order to adequately address the
issue."); Westport Ins. Corp. v. Atchley, Russell, Waldrop & Hlavinka,
L.L.P., 267 F. Supp. 2d 601, 621-22 (E.D. Tex. 2003) (extrinsic evidence
admissible in deciding the duty to defend where fundamental policy coverage
questions can be resolved by readily determined facts that do not engage the
truth or falsity of the allegations in the underlying petition, or overlap with
the merits of the underlying suit); State Farm Fire & Cas. Co. v.
Wade, 827 S.W.2d 448, 452-53 (Tex. App.-Corpus Christi 1992, writ denied)
(concluding that extrinsic evidence could be admitted in deciding the duty to
defend when the facts alleged are insufficient to determine coverage and "when
doing so does not question the truth or falsity of any facts alleged in the
underlying petition"); Gonzales v. Am. States Ins. Co., 628 S.W.2d 184,
187 (Tex. App.-Corpus Christi 1982, no writ) (holding that facts extrinsic to
the petition relating only to coverage, not liability, may be considered to
determine a duty to defend, where such evidence does not contradict any
allegation in the petition); Cook v. Ohio Cas. Ins. Co., 418 S.W.2d 712,
715-16 (Tex. Civ. App.-Texarkana 1967, no writ) ("[T]he Supreme Court draws a
distinction between cases in which the merit of the claim is the issue and those
where the coverage of the insurance policy is in question. In the first instance
the allegation of the petition controls, and in the second the known or
ascertainable facts are to be allowed to prevail."); Int’l Serv. Ins. Co. v.
Boll, 392 S.W.2d 158, 161 (Tex. Civ. App.-Houston 1965, writ
ref’d n.r.e.) (considering extrinsic evidence of identity of driver of insured
vehicle by stipulation to conclude no duty to defend or indemnify arose).

[3] One amicus suggests that the Church here might have a
coverage-related incentive to prove that Evans was at least apparently employed
by the Church during GuideOne’s policy term in order to secure insurance
coverage. This proof, once obtained by the third-party claimant through
discovery, would undermine the insured’s defense to those claims. Similarly, the
insurer might have a coverage-related incentive to develop proof that the
third-party claim is based on criminal or intentional conduct to establish a
policy exclusion.

[4] Although not relevant here, the sexual misconduct
clause of the policy excluded sickness or disease from the definition, making
the definition of “bodily injury” in this context somewhat circular.