EX PARTE ANTHONY TRENT BARBOUR (Other)

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State: Texas

Court: Criminal Court of Appeals

Docket No: AP-76,120

Case Date: 03/25/2009

Plaintiff: JEREMY FABIAN FUENTES

Defendant: THE STATE OF TEXAS--Appeal from 404th District Court of Cameron County

Preview:Texas Association of Political Subdivisions - Law
Enforcement v. Gilbert Bernal--Appeal from 79th
Judicial District Court of Jim Wells County
MEMORANDUM OPINION
No. 04-04-00425-CV
TEXAS ASSOCIATION OF POLITICAL SUBDIVISIONS - LAW ENFORCEMENT,
Appellant
v.
Gilbert BERNAL,
Appellee
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 03-02-41093-CV
Honorable Mike Westergren, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Alma L. L pez, Chief Justice
Catherine Stone, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: April 27, 2005
REVERSED AND RENDERED
The Texas Association of Political Subdivisions-Law Enforcement ( TAPS ) appeals the trial court s judgment
declaring that TAPS has a duty to defend Gilbert Bernal against claims filed by Jesus Munoz, III. TAPS contends that
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the liability coverage agreement under which Bernal claims TAPS has a duty to defend him expressly excludes
coverage for the claims alleged against Bernal. Because we hold that coverage for the claims was excluded as a matter
of law, we reverse the trial court s judgment and render judgment that TAPS has no duty to defend Bernal.
Duty to Defend
If a petition does not allege facts within the scope of coverage, an insurer is not legally required to defend a suit
against its insured. King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187 (Tex. 2002); National Union Fire Ins. Co. v.
Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997). An insurer s duty to defend is determined by the
allegations in the pleadings and the language of the insurance policy which is commonly referred to as the eight
corners rule. King, 85 S.W.3d at 187; National Union Fire Ins. Co., 939 S.W.2d at 141. In reviewing the underlying
pleadings, the court must focus on the factual allegations that show the origin of the damages rather than on the legal
theories alleged. National Union Fire Ins. Co., 939 S.W.2d at 141; Burlington Ins. Co. v. Mexican American Unity
Council, Inc., 905 S.W.2d 359, 260 (Tex. App. San Antonio 1995, no writ). All doubts regarding the duty to defend are
resolved in favor of the duty, and the insured s construction of an exclusionary clause must be adopted as long as the
construction is not unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more
accurate reflection of the parties intent. Utica Nat l Ins. Co. v. American Indem. Co., 141 S.W.3d 198, 202 (Tex.
2004); King, 85 S.W.3d at 187.
Munoz s Factual Allegations
In his original petition, Munoz alleged that he was in his jail cell when a deputy entered his cell and started hitting him
with excessive force. Munoz alleged that at no time did he offer violence to the deputy.
In his first amended original petition, Munoz alleged that he fell asleep after being arrested and detained. When he
awoke, Bernal and an unidentified and unknown jailer were standing outside the now opened cell door and told
Munoz to get out of the cell. Munoz complied and stood outside the detox cell facing Bernal with the other jailer to his
left side. Munoz experienced what is described as a flash followed by darkness rendering him unconscious. When
Munoz regained consciousness, he found himself on his hands and knees with blood streaming from his nose and
mouth.
In his second amended original petition, Munoz alleged that he pressed the call button in his cell and repeatedly asked
the dispatcher to let him call his lawyer. The dispatcher contacted Bernal. A jailer opened the cell door, permitting
Bernal to enter the cell without permission from his direct supervisor. Munoz did not offer violence to the deputy.
Nevertheless, [Munoz] was struck by [Bernal] causing him to lose consciousness.
In his third amended petition, Munoz s factual allegations were not substantially changed; however, Munoz added that
Bernal confronted him and caused him injury by striking him with undue force in the face. In his fourth amended
petition, Munoz added that he was unnecessarily confronted and assaulted by Bernal, that Bernal struck and caused
him injury by striking him with unreasonable force in the face, and that Munoz did not provoke violence or make
gestures endangering the jailers. Munoz further added that he was struck without provocation by Bernal, causing
severe lacerations, a broken nose and a concussion.
Agreement
In this case, the law enforcement liability coverage agreement provides, We will pay those sums that the covered party
becomes legally obligated to pay as damages resulting from a wrongful act to which this coverage applies that is
committed during the course and scope of law enforcement activities .... Wrongful Act is defined as any act, error or
omission flowing from or originating out of a law enforcement activity .
With regard to the duty to defend, the coverage agreement provides, We will have the right and duty to defend the
covered party against any suit seeking those damages. However, we will have no duty to defend the covered party
against any suit seeking damages for a wrongful act to which this coverage does not apply. Coverage is expressly
excluded for [a]ny act, error or omission which is dishonest, fraudulent or criminal.
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Discussion
Turning to the factual allegations contained in Munoz s pleadings, the origin of his damages is clearly an assault by
Bernal. // Munoz made no factual contention that could constitute negligent behavior by [Bernal]. Farmers Texas
County Mutual Ins. Co. v. Griffin, 955 S.W.2d 81, 83 (Tex. 1997); see also Burlington Ins. Co., 905 S.W.2d at 362.
Bernal counters that TAPS s argument based on Griffin was not presented to the trial court; however, the record
demonstrates that TAPS raised this argument in its memorandum of law in opposition to the declaratory judgment,
citing Griffin as support. Bernal also counters that while the actions he is alleged to have taken might be considered
wrongful they could not be considered criminal because jailers are justified in using force necessary to maintain the
security of the penal institution, the safety or security of other persons in custody or employees of the penal institution,
or his own safety or security. Tex. Pen. Code Ann. 9.53 (Vernon 2003). This contention ignores Munoz s allegations
that the actions were unprovoked and that the force used was excessive, undue, and unreasonable. Finally, Bernal
alludes to a collateral estoppel argument relying on the fact that TAPS is providing a defense to other defendants in the
lawsuit. Under the applicable law, however, determining whether coverage is triggered is determined from the
standpoint of each separate insured. King, 85 S.W.3d at 191. As a result, an insurer may have the duty to defend an
employer for actions taken by an employee even if the insurer does not have the duty to defend the employee. King, 85
S.W.3d at 193; see also Roman Catholic Diocese of Dallas v. Interstate Fire & Cas. Co., 133 S.W.3d 887, 890-96 (Tex.
App. Dallas 2004, pet. denied) (applying King).
Conclusion
Applying the eight corners rule, we hold that Munoz s claims against Bernal are within the policy s exclusion for
criminal acts. As a result, TAPS has no duty to defend Bernal. The trial court s judgment is reversed, and judgment is
rendered that TAPS has no duty to defend Bernal. Because TAPS has no duty to defend Bernal, TAPS is not liable for
attorney s fees.
Phylis J. Speedlin, Justice
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