Choi Leng Wong v. Monticello Insurance Company--Appeal from 57th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00142-CV
Choi Leng WONG,
Appellant
v.
MONTICELLO INSURANCE COMPANY,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-01097
Honorable Patrick J. Boone, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: March 26, 2003

AFFIRMED

Choi Leng Wong appeals the trial court's summary judgment against her in her suit to recover insurance proceeds under a commercial lines policy issued by Monticello Insurance Company. We affirm.

1. Wong first argues the trial court erred in granting Monticello's motion for summary judgment because the Moke Building in which her restaurant was located was ordered demolished because of covered perils - an explosion in the adjacent Elmendorf Building and high winds - and thus not by the excluded perils in the following exclusions urged by Monticello:

B. EXCLUSIONS

1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded, regardless of any other cause or event that contributes concurrently or in any sequence to the loss.

a. Ordinance or law

The enforcement of any ordinance or law:

(1) regulating the construction, use or repair of any property; or

(2) requiring the tearing down of any property, including the cost of removing its debris.

....

c. Governmental Action

Seizure or destruction of property by order of governmental authority.

We disagree. As written, the italicized sentence in the exclusions unambiguously rejects the "efficient cause of loss" doctrine urged by Wong and adopted by the out-of-state cases she cites. In so doing, the exclusions mirror well-established Texas law. See Travelers Indem. Co. v. McKillip, 469 S.W.2d 160, 162 (Tex. 1971) (rejecting "efficient cause of loss" doctrine and holding that, when a loss is caused by concurrent perils, one of which is covered and one of which is excluded, the burden is on the insured to identify the portion of her loss attributable to the covered peril). Accordingly, even if we were to assume the summary judgment record established that the covered perils of explosion and high winds were among the reasons the City of San Antonio ordered the demolition of the Moke Building, the dispositive fact remains that the Moke Building was demolished and all of Wong's losses were sustained when the City enforced section 6-175 of the City Code. Because covered and non-covered perils combined to create the demolition of the Moke Building and, consequently, the loss of Wong's property, Wong's loss is excluded from coverage by the express terms of the exclusions.

2. In reliance on paragraph A.3.b of the policy, Wong next argues the trial court erred in granting summary judgment on her claim for lost income. We again disagree. The summary judgment evidence conclusively establishes that Wong was denied access to her restaurant not because of "action of civil authority that prohibit[ed] access to [her restaurant] due to direct physical loss of or damage to property, other than at [her restaurant], caused by or resulting from any Covered Cause of Loss" but because of damage to the Moke Building in which Wong's restaurant was located. According to its express terms, paragraph A.3.b does not apply.

The judgment is affirmed.

Sarah B. Duncan, Justice

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