TRINITY UNIVERSAL INSURANCE COMPANY, Appellant v. CELLULAR ONE GROUP, Appellee

AFFIRMED; Opinion issued January 9, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-04-01641-CV
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TRINITY UNIVERSAL INSURANCE COMPANY, Appellant
V.
CELLULAR ONE GROUP, Appellee
.............................................................
On Appeal from the 68th District Court
Dallas County, Texas
Trial Court Cause No. 02-05001-C
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MEMORANDUM OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Mazzant
        Trinity Universal Insurance Company appeals the trial court's denial of its suit for declaratory judgment seeking a declaration that it had no duty to defend Cellular One Group in three class-action lawsuits pending in federal court against Cellular One Group. Trinity asserts in its sole issue that the trial court erred in denying Trinity's motion for summary judgment and granting Cellular One's cross-motion for summary judgment. We affirm the trial court's judgment. All the issues Trinity presents were resolved in two other opinions from this Court concerning insurers' duty to defend and indemnify other defendants in the same class-action lawsuits.   See Footnote 1  See Samsung Elecs. Am., Inc. v. Fed. Ins. Co., 202 S.W.3d 372 (Tex. App.-Dallas 2006, no pet. h.); Nokia, Inc. v. Zurich Am. Ins. Co., 202 S.W.3d 384 (Tex. App.-Dallas 2006, no pet. h.). Because all issues are settled, we issue this memorandum opinion. See Tex. R. App. P. 47.4.
BACKGROUND
        Cellular One is one of many defendants in a series of class actions brought against manufacturers of wireless handheld telephones (cell phones) and promoters, providers, and sellers of services in connection with cell phones.   See Footnote 2  The class plaintiffs allege the defendants, including Cellular One, knew or should have known that cell phones emit radio frequency radiation that causes “the health risk” and “the biological effects,” which are “an adverse cellular reaction and/or cellular dysfunction . . . through its [the radio frequency radiation's] adverse health effect on: calcium and ion distribution across the cell membrane, melatonin production, neurological function, DNA (single and double strand breaks and chromosome damage), enzyme activities, cell stress and gene transcription, and the permeability of the blood brain barrier . . . .” The class plaintiffs are residents of certain states who purchased or leased or will purchase or lease cell phones and who have not been diagnosed with a brain-related tumor or cancer of the eye. The class actions seek compensatory damages of the cost to purchase a cell phone headset, an order to provide each class member with a cell phone headset with instructions on how and why to use the headset, punitive damages, injunctive relief preventing the future sale of cell phones without headsets, and attorney's fees and costs.
        Cellular One forwarded the lawsuits to its commercial liability insurer, Trinity, and demanded a defense and indemnity. Trinity agreed to provide a defense under a reservation of rights and sought a declaratory judgment that it had no duty to defend or indemnify Cellular One in the class-action lawsuits. Trinity moved for summary judgment on its claim. Cellular One filed a cross- motion for summary judgment requesting that the trial court declare that Trinity has a duty to defend. The trial court granted Cellular One's motion for summary judgment and denied Trinity's motion, and the court declared Trinity has a duty to defend Cellular One “in the three putative class actions.”
STANDARD OF REVIEW
        In its sole issue, Trinity asserts the trial court erred in granting Cellular One's motion for summary judgment and denying Trinity's motion for summary judgment. The standard for reviewing a summary judgment under rule of civil procedure 166a(c) is well established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A party moving for summary judgment has the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). After the movant has established a right to summary judgment, the burden shifts to the nonmovant to present evidence creating a fact issue. Kang v. Hyundai Corp., 992 S.W.2d 499, 501 (Tex. App.-Dallas 1999, no pet.). When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court reviews both sides' summary judgment evidence and determines all questions presented. The reviewing court then renders the judgment that the trial court should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
        The insurer's duty to defend arises when a third party sues the insured on allegations that, if taken as true, potentially state a cause of action within the terms of the policy. Houston Petroleum Co. v. Highlands Ins. Co., 830 S.W.2d 153, 155 (Tex. App.-Houston [1st Dist.] 1990, writ denied). Whether an insurer owes its insured a duty to defend is determined solely by the pleadings and the insurance policy. GuideOne Elite Ins. Co. v. Fielder Road Baptist Church, 197 S.W.3d 305, 308 (Tex. 2006) (the “eight corners” rule). Pursuant to the eight-corners rule, we examine the factual allegations in the underlying petition and the terms of the insurance policy to determine if any portion of the suit states a cause of action potentially covered by the policy. Gehan Homes, Ltd. v. Employers Mut. Cas. Co., 146 S.W.3d 833, 838(Tex. App.-Dallas 2004, pet. filed). If coverage is found for any portion of a suit, the insurer must defend the entire suit. Utica Nat'l Ins. Co. v. Am. Indem. Co., 141 S.W.3d 198, 201 (Tex. 2004). If a petition against an insured alleges only facts not covered or excluded by the policy, the insurer has no duty to defend. King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187 (Tex. 2002). We view the factual allegations in the petition liberally, resolving any doubt in favor of the insured. McCarthy Bros. Co. v. Cont'l Lloyds Ins. Co., 7 S.W.3d 725, 728 (Tex. App.-Austin 1999, no pet.).
BODILY INJURY
        Trinity argues its policies do not apply to the class plaintiffs' allegations because they do not allege damages from “bodily injury.” Trinity's policies state Trinity “will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies.” The policies define “bodily injury” as “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.” Trinity argues the class plaintiffs failed to allege either bodily injury or property damage but alleged only the potential for bodily injury. We disagree. The class plaintiffs alleged their exposure to radio frequency radiation caused “an adverse cellular reaction and/or cellular dysfunction.” They also alleged they were exposed to radiation and its biological effects each time they used their cell phones without a headset. In Samsung and Nokia, this Court concluded these allegations were sufficient to allege bodily injury under policies containing substantially similar definitions of “bodily injury.” Samsung, 202 S.W.3d at 381; Nokia, 202 S.W.3d at 391. Likewise, in this case, we conclude the allegations are sufficient to allege bodily injury.
        Trinity also argues the class plaintiffs did not allege bodily injury because to do so would destroy the commonality requirement for bringing a class action. Whether the class plaintiffs have a viable class action in their lawsuits pending in federal court is not before this Court. The issue is whether the pleading alleges a cause of action covered by Trinity's policies. The fact that allegations of bodily injury may defeat the named plaintiffs' ability to proceed as a class is not relevant to our determination under the eight-corners rule.
DAMAGES BECAUSE OF BODILY INJURY
        Trinity argues the class plaintiffs' claims do not allege “damages because of bodily injury” and therefore are not covered by Trinity's policies. In Samsung, we turned to the dictionary definition of “because of” as meaning “by reason of: on account of.” Samsung, 202 S.W.3d at 381; see Nokia, 202 S.W.3d at 391. We then determined whether the damages alleged were “damages because of bodily injury”:
 
The damages sought by the complaints-a cell phone headset for each class member who had purchased or leased a cell phone without one-are sought “on account of” or “by reason of” the plaintiffs' exposure to radiation from the cell phones. And the cost of a headset is not clearly within or excluded by the definition of “damages” in [the insurer's] policies. Accordingly, we conclude the damages sought potentially state a claim for “damages because of bodily injury” triggering [the insurer's] duty to defend the [class action] complaints.
 
Samsung, 202 S.W.3d at 382-83; see Nokia, 202 S.W.3d at 391. That same reasoning applies in this case. Although Trinity's policies do not contain a definition of “damages,” that does not affect our analysis of this issue. See Nokia, 202 S.W.3d at 391 n.4. We conclude the class plaintiffs' claims sufficiently allege damages because of bodily injury to fall within Trinity's policies.
OCCURRENCE & POLICY EXCLUSIONS
        Trinity also argues the claims do not fall within coverage because they do not allege an “occurrence” as defined in the policies, and Trinity argues coverage is excluded under the policies' business risk exclusions. Trinity did not assert the lack of an occurrence or the applicability of the business risk exclusions in its motion for summary judgment or in its response to Cellular One's motion for summary judgment.
        Summary judgment may not be granted on a ground not included in the motion for summary judgment. Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993); A & W Props., Inc. v. Kan. City S. Ry. Co., 200 S.W.3d 342, 351 (Tex. App.-Dallas 2006, pet. denied). Likewise, the respondent to a motion for summary judgment “must . . . present to the trial court those issues that would defeat the movant's right to a summary judgment and failing to do so, may not later assign them as error on appeal.” City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979). Because Trinity did not assert the lack of an occurrence or the applicability of the business exclusions in its motion for summary judgment or response to Cellular One's motion for summary judgment, Trinity may not assert them on appeal to show the trial court erred in denying its motion for summary judgment or in granting Cellular One's motion for summary judgment.
CONCLUSION
        Applying the eight-corners test, we conclude the trial court did not err in denying Trinity's motion for summary judgment, granting Cellular One's motion for summary judgment, and declaring Trinity has a duty to defend Cellular One in the three putative class action lawsuits. We overrule Trinity's issue on appeal.         We affirm the trial court's judgment.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
041641F.P05
 
Footnote 1 At oral argument, Trinity conceded that the Samsung and Nokia opinions address all the issues it presents in this appeal. Trinity requests that we overrule the decisions in Samsung and Nokia. We decline Trinity's request to do so.
Footnote 2 The class actions have been consolidated into a multi-district litigation proceeding in the United States District Court for the District of Maryland, styled In re Wireless Telephone Radio Frequency Emissions Products Liability Litigation, Civil No. 01-MD-1421.