Folsom Investments8/31/2000
This is a declaratory judgment action. Five insurance companies, American Motorists Insurance Company, Kemper Lloyds Insurance Company, Houston General Lloyds, Ranger Insurance Company, and Commercial Underwriters Insurance Company, sought a declaration that they had no duty to defend or indemnify their insureds, Folsom Investments, Inc., Folsom Properties, Inc., Folsom Companies Operating, Inc. d/b/a Folsom Companies, Inc., Sabre Realty Management, Inc., Robert Folsom, R. Stephen Folsom, Robert Kennedy, and Dennis Holman (collectively "Folsom"), in a suit arising out of alleged acts of sexual misconduct by one of Folsom's employees. The trial court granted summary judgment for the insurance companies. In two points of error, Folsom contends that, for various reasons, the insurance companies were not entitled to summary judgment. Because we conclude the facts alleged in the underlying petition do not constitute an occurrence under the policies at issue, we affirm the trial court's judgment.
Background
In 1997, Lisa Mizell, her husband Michael Mizell, and Rebekah Ingersoll (collectively "the underlying plaintiffs") sued Folsom and one of its employees, Steve O'Mealey, in Dallas County district court. Lisa Mizell and Ingersoll were former Folsom employees. The underlying plaintiffs alleged that while Lisa Mizell and Ingersoll were employed by Folsom, they experienced gender- based discrimination and harassment and, because of the hostile work environment, they were constructively discharged. All of the underlying plaintiffs' allegations stem from the conduct of fellow Folsom employee O'Mealey. The underlying plaintiffs alleged that while Lisa Mizell and Ingersoll worked for Folsom, O'Mealey made unwelcome sexual advances toward them, requested sexual favors, used sexually abusive and vulgar language, and engaged in other verbal and physical conduct. Further, the underlying plaintiffs alleged Folsom knowingly allowed O'Mealey's actions to continue. In their original petition, the underlying plaintiffs asserted claims for intentional infliction of emotional distress; negligent and grossly negligent hiring, training, supervision, and retention of O'Mealey; and assault and battery.
Folsom tendered the defense of the underlying suit to the insurance companies, which had issued general liability insurance policies to Folsom for various policy periods during the years 1991 to 1997. The insurance companies denied a defense and indemnity to Folsom and, thereafter, filed this declaratory judgment action, seeking a declaration that they had no duty to defend or indemnify Folsom. While this action was pending, the parties to the underlying lawsuit settled. The insurance companies filed separate motions for summary judgment asserting they were not required to defend or indemnify Folsom for various reasons. One of the grounds for summary judgment asserted by each of the insurance companies was that the underlying lawsuit did not allege an "occurrence" as required by the policies in question. The trial court granted summary judgment for the insurance companies without specifying the grounds on which its judgment was based. This appeal followed.
Summary Judgment
The standards for reviewing a summary judgment under rule of civil procedure 166a(c) are well established. See Tex. R. Civ. P. 166a; Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1995). The insurance companies, as movants for summary judgment, had the burden of showing there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. See Nixon, 690 S.W.2d at 548-49. When, as here, a trial court's order granting summary judgment does not specify t
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