FRITO-LAY, INC., Appellant v. TRINITY UNIVERSAL INSURANCE COMPANY, TRINITY UNIVERSAL INSURANCE COMPANIES, TRINITY LLOYD'S INSURANCE COMPANY, AND UNITRIN PROPERTY AND CASUALTY INSURANCE GROUP, Appellees

AFFIRM; Opinion Filed November 22, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01263-CV
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FRITO-LAY, INC., Appellant
V.
TRINITY UNIVERSAL INSURANCE COMPANY, TRINITY UNIVERSAL INSURANCE COMPANIES, TRINITY LLOYD'S INSURANCE COMPANY, AND UNITRIN PROPERTY AND CASUALTY INSURANCE GROUP, Appellees
 
.............................................................
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 07-01289-B
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MEMORANDUM OPINION
Before Justices O'Neill, Moseley, and Myers
Opinion By Justice O'Neill
        In this insurance coverage case, appellant Frito-Lay, Inc. appeals a summary judgment granted in favor of appellees Trinity Universal Insurance Company (Universal), Trinity Universal Insurance Companies (TUIC), Trinity Lloyd's Insurance Company (Lloyds), and Unitrin Property and Casualty Insurance Group (Unitrin). In five issues, Frito-Lay asserts the trial court erred in granting appellees' motions for summary judgment because appellees failed to show any of the policy exclusions for coverage were applicable. For the following reasons, we affirm the trial court's judgment.
        Adampac, a food packaging company, obtained a commercial general liability (CGL) policy from Lloyds and a commercial excess policy from Universal. During the policy periods, Frito-Lay hired Adampac to repackage a Frito-Lay food product to be used in consumer testing. During the repackaging process, the Frito Lay product became contaminated or adulterated with a foreign substance from another product Adampac was packaging for another customer. The foreign substance was a wintergreen flavoring used in a non-tobacco product similar to snuff. Because of the contamination, the Frito-Lay product could not be used for consumer testing.
        Frito-Lay filed a lawsuit against Adampac for negligence and breach of contract. In that proceeding, Frito-Lay and Adampac filed a “Joint Pre-Trial Order, Joint Stipulation and Agreements, and Pre-Trial Conference Statements and Admissions” which was the primary basis for the underlying judgment. The motion contained stipulations with respect to Adampac's liability for breach of contract and negligence. Adampac and Frito-Lay stipulated that: (1) Frito-Lay engaged Adampac to repackage finished food products to be used in a consumer testing program, (2) Adampac agreed to ship and deliver to Frito-Lay non-adulterated and non-contaminated food product, (3) Adampac agreed to maintain sanitary conditions at Adampac's plant at all times, (4) Frito-Lay's food product became adulterated and contaminated with a substance from another customer's product while the Frito-Lay product was being opened and repackaged, (5) Adampac guaranteed its services would meet the standard of care in the performance of services for Frito-Lay including only shipping to Frito-Lay non-adulterated and non-contaminated food, and (6) Adampac had the duty to deliver Frito-Lay's finished food products in a good and merchantable condition and fit for the purpose for which they were intended - a consumer food taste survey. The parties stipulated Frito-Lay suffered $393,500.00 in damages because of the adulteration and contamination of its food product.
        The only stated contested issue at the trial in the underlying proceedings with respect to Frito-Lay's negligence claim was whether its damages were foreseeable. Following a hearing, the trial court entered a judgment in favor of Frito-Lay for negligence and breach of contract. In its judgment, the trial court found Frito-Lay's food product became adulterated and contaminated during the repackaging process while in Adampac's “sole and exclusive” possession. The trial court found Adampac breached the standard of care required of a person engaged in the repackaging of food products and that Adampac's acts and conduct proximately caused Frito-Lay's damages. It entered a judgment on Frito-Lay's negligence claim for $393,500.
        Frito-Lay attempted to collect on the judgment from Adampac's primary insurer, Lloyds, Adampac's excess carrier, Universal, and two other entities, TUIC, and Unitrin. The trial court granted traditional motions for summary judgment in favor of each defendant without specifying the grounds. The trial court also granted no-evidence motions for summary judgment in favor of TUIC and Unitrin. This appeal followed.
        The standard for reviewing a traditional summary judgment is well established. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Defendants who move for summary judgment must conclusively establish the plaintiffs have no cause of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982). After the movants have established a right to summary judgment, the burden shifts to the nonmovants to present evidence creating a fact issue. Denson v. Dallas County Credit Union, 262 S.W.3d 846, 849 (Tex.App.-Dallas 2008, no pet.). When multiple grounds for summary judgment are raised and the trial court does not specify the ground or grounds relied upon for its ruling, the appellate court will affirm the summary judgment if any of the grounds advanced in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Red Roof Inns, Inc. v. Murat Holdings, L.L.C., 223 S.W.3d 676, 684 (Tex.App.-Dallas 2007, pet. denied). If an appellant does not challenge each possible ground on which summary judgment could have been granted, we must uphold the summary judgment on the unchallenged ground. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex.App.-Dallas 2009, pet. denied).
        Universal filed a motion for summary judgment asserting, among other things, it was not liable because Adampac's policy was a commercial excess policy and the judgment did not exceed the limits of the underlying coverage. Frito-Lay does not challenge this ground for granting Universal's motion for summary judgment. Therefore, we must affirm the summary judgment granted in favor of Universal. See Jarvis, 298 S.W.3d at 313. TUIC and Unitrin moved for summary judgment asserting they were not liable because they did not issue any insurance policies to Adampac. Again, Frito-Lay does not attack this summary judgment. Therefore, we also affirm the summary judgment in favor of TUIC and Unitrin. See id.
        We now turn to the summary judgment granted in favor of Lloyds who issued the CGL policy to Adampac. Lloyds filed a motion for summary judgment asserting Adampac's loss was not covered because of several policy exclusions. It relied upon a “pollution” exclusion, a “care, custody, or control” exclusion, an exclusion for losses caused by “work incorrectly performed,” an exclusion for “damage to your product,” and an exclusion for recall expenses. Because we conclude the trial court properly granted summary judgment based upon both the exclusion for damages to property in the “care, custody, or control” of the insured and for “work incorrectly performed” by the insured, we affirm the trial court's judgment.
        To obtain summary judgment, Lloyds had to conclusively establish that the loss suffered was excluded under the policy. Ulico Cas. Co. v. Allied Pilots Ass'n, 262 S.W.3d 773, 782 (Tex. 2008) The interpretation of an insurance contract is generally subject to the same rules of construction as other contracts. Chrysler Ins. Co. v. Greenspoint Dodge of Houston, Inc., 297 S.W.3d 248, 252 (Tex. 2009). Contract language that can be given a certain or definite meaning is not ambiguous and is construed as a matter of law. Id; DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999). If, however, a contract is susceptible to more than one reasonable interpretation, we will resolve any ambiguity in favor of coverage. Don's Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 23 (Tex. 2008).
        In its motion for summary judgment, Lloyds relied on an exclusion that provided the CGL policy did not apply to damages to “[p]ersonal property in the care, custody, or control of the insured.” In the underlying case, the parties stipulated that the damage to Frito-Lay's food product occurred while the product was within Adampac's “sole and exclusive possession and control.” The trial court's judgment likewise states the damage occurred during the time Frito-Lay's products “were in the sole and exclusive possession and control” of Adampac.
        Frito-Lay nevertheless asserts this exclusion does not apply because the negligence that caused the damages did not relate to work performed on Frito-Lay's product, but rather concerned work performed on the snuff product. Even if we could agree with this premise, which as explained below we do not, we could not agree that the exclusion does not apply.
        To support its assertion that the exclusion only applies if work is being done on the damaged property, Frito-Lay relies on several cases in which the courts were required to interpret the meaning of the phrase “care, custody, or control” when the insured was repairing or installing an item on another's premises. See, e.g., Goswick v. Employers' Cas. Co. 440 S.W.2d 287, 289-90 (oil well servicing on well operated by others) (Tex. 1969); Nat'l Standard Ins. Co. v. Wilson Indust., Inc., 556 S.W.2d 838, 839 (Tex. Civ. App.-Houston [14th Dist.] 1997, writ ref'd n.r.e.) (work performed by insured on oil well platform from a vessel controlled by others). In such cases, if the property damaged is “merely incidental” to the property on which the work is being performed by the insured, the property that is not being worked on is not considered in the “care, custody, or control” of the insured. See Goswick, 440 S.W.2d at 289-90.
        Such cases might have some application here if the property damage occurred while Adampac was working on Frito-Lay's product at Frito-Lay's facility or a facility under another's control. However, such cases have no application when all the property at issue was in the sole and exclusive actual physical possession of the insured at all relevant times. While insurance policies should be construed in favor of the insured, that rule does not apply when the term to be construed is unambiguous and susceptible of only one construction. Archon Investments, Inc. v. Great Am. Lloyds Ins. Co., 174 S.W.3d 334, 339 (Tex. App.-Houston [1st Dist.] 2005, pet. denied). In such a case, we must give words in the policy their plain meaning. Id.
        Here, the policy states plainly that it does not apply to damage to personal property in the “care, custody, or control of the insured.” It is undisputed that the property damage to Frito-Lay's product occurred while the product was in Adampac's possession while at Adampac's facilities. Adampac was in exclusive actual physical control of both the facility where the product was damaged and the product that was damaged. In such cases, the phrase “care, custody, and control” allows no further interpretation. We conclude Lloyd's conclusively established Adampac's liability was for damage to personal property in Adampac's care, custody, and control. Therefore, the exclusion applies.
        We also conclude Frito-Lay has not shown the trial court erred in granting summary judgment on another exclusion raised by Lloyds in its motion for summary judgment. The policy provided that the “insurance does not apply to . . . [t]hat particular part of any property that must be restored, repaired or replaced because your work was incorrectly performed on it.” Lloyd's moved for summary judgment asserting the claimed damages were for property damages for work incorrectly performed by Adamac. Frito-Lay asserts the trial court erred in granting summary judgment on this ground because Adampac did not perform work incorrectly on the Frito-Lay product, but rather the snuff product, which only incidently caused damages to the Frito-Lay product. We disagree.
        Adampac is in the business of packaging and repackaging food and other products. Frito- Lay hired Admpac to repackage a snack food. It then sued Adampac because it did not properly perform this job. Specifically, in the stipulations in the underlying case, the parties agreed that “an entity that is involved in the packaging or repackaging of food products must exercise ordinary care to prohibit the food product from being adulterated or contaminated with foreign substances while the food product is within the company's control.” They further agreed “it is the duty of the packager or repackager of food products to exercise control over the packaging environment to ensure that the food product is not adulterated or contaminated with foreign substances or flavors not intended.” Thus, the standard of care Adampac violated was related to the Frito-Lay food product, not the snuff product. In particular, Adampac failed to prevent the Frito-Lay product from being adulterated or contaminated in accordance with the applicable standard of care. Finally, the trial court specifically found Adampac “breached the standard of care required of persons who are engaged in the repackaging of food products.” None of the underlying findings or stipulations concern mishandling of the snuff product. We conclude Lloyd's showed conclusively that the loss suffered was for work incorrectly performed on Frito-Lay's product by Adampac.
        Finally, Frito-Lay asserts the trial court erred in granting summary judgment because the insurance policy contains a definition that shows the loss was covered. Frito-Lay directs us to a definition of “stock” found in the Texas Standard Policy Terms and Conditions. It states “[i]nsurance on stock shall include all stocks of merchandise . . . including packaging materials, and, provided the insured is legally liable therefore, property sold but not delivered, held in trust, or on consignment, or for storage, or for repairs . . . .” Frito-Lay directs us to no relevant policy provisions that covers “stock.” We fail to see how a definition in the Texas Standard Policy Terms and Conditions that is not referred to in either the coverage portion of the policy or the exclusions outlined above alters our analysis. We conclude Frito-Lay has failed to show the trial court erred in granting Lloyd's motion for summary judgment. We affirm the trial court's judgment.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
 
081263F.P05