SMI Realty Management Corporation v. Underwriters at Lloyd's London--Appeal from 281st District Court of Harris County

Opinion issued August 31, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-01340-CV

SMI REALTY MANAGEMENT CORP., Appellant

V.

UNDERWRITERS AT LLOYD S, LONDON, Appellee

On Appeal from the 281st District Court

Harris County, Texas

Trial Court Cause No. 2002 62333

DISSENTING OPINION

Because I believe that the policy unambiguously excludes coverage for all leakage, both sudden and gradually occurring, I respectfully dissent. In Crisswell v. European Crossroads Shopping Center, Ltd., 792 S.W.2d 945, 948 (Tex. 1990), the supreme court stated that use of semicolons in drafting an agreement indicates that each phrase set off by a semicolon is to be read as having independent significance. In this case, the items in the list of excluded perils are set apart by semi-colons. Therefore, I believe that each has independent significance, and one item cannot be used to modify another. As such, the policy provides that it excludes leakage and any other gradually occurring loss. I cannot read the policy to exclude only gradually occurring leakage, as the term leakage is not so modified in the policy. See County of Maverick v. Tex. Ass n of Counties Workers Comp. Self-Ins. Fund, 852 S.W.2d 700, 705 (Tex. App. San Antonio 1993, no writ) ( [If] one party s interpretation would require the insertion of a qualifying phrase, that interpretation must be rejected as violating the rule of giving language its ordinary meaning. ). Accordingly, I dissent. I would affirm the summary judgment granted in favor of Underwriters.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Hanks and Higley.