Dodd Animal Hospital, Inc. and Donald Vestal, DVM v. Hartford Fire Insurance Company and Hartford Casualty Insurance Company--Appeal from 150th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00311-CV
DODD ANIMAL HOSPITAL, INC. and Donald Vestal, D.V.M.,
Appellants
v.
HARTFORD FIRE INSURANCE CO. and Hartford Casualty Insurance Company,
Appellees
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-CI-17426
Honorable Janet P. Littlejohn, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: August 6, 2003

AFFIRMED

Dodd Animal Hospital, Inc. and Donald Vestal, D.V.M. ("Dodd") sued Hartford Insurance Co. for breach of an insurance contract after Hartford denied coverage for cracks in the walls and an un-level foundation in "the Vestal property" - damage that Dodd claimed was a covered loss because it was caused by plumbing leaks. The trial court rendered a take-nothing judgment. We affirm.

In his sole issue, Dodd argues the trial court erred in rendering a take-nothing judgment based on the jury's finding in response to Question 3 that the alleged damages did not commence during the policy period, because this finding is immaterial (1) and, in any event, conflicts with the jury's finding in response to Question 2 that Hartford "failed to comply with the terms of the insurance policy by failing to pay for damages, if any, caused solely by plumbing leaks to the Vestal property." We disagree.

"A [jury] question is immaterial when it should not have been submitted, it calls for a finding beyond the province of the jury, e.g., a question of law, or when it was properly submitted but has been rendered immaterial by other findings." Great Am. Prods. v. Permabond Int'l, 94 S.W.3d 675, 682 (Tex. App.-Austin 2002, pet. denied). Therefore, our first inquiry is whether the trial court erred in submitting Question 3 inquiring "[w]hen the damages to the Vestal property commenced."

The trial court must submit a jury question if it encompasses a controlling question raised by the evidence. See Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex. 1988). Here, the date Dodd's damages commenced was made controlling by the insurance contract, which states that Hartford would "cover loss or damage commencing: [d]uring the policy period"; and whether Dodd's damages commenced during the policy period was raised by Hartford's evidence that the landlord and the doctor using the building had observed cracks in the walls and the un-level foundation before the policy period commenced. Because the date Dodd's damages commenced was raised by the evidence and requested by Hartford, the trial court acted properly in submitting the question to the jury. Thus, the jury's answer to Question 3 is not "immaterial."

Dodd also appears to argue Question 3 was in improper form. However, Dodd waived this complaint by failing to either request a substantially correct question on commencement of damages or object. See Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex. 1987); Tex. R. Civ. P. 274. (2) Dodd also argues the jury's answer to Question 3 (that Dodd's damages commenced April 3, 1995) presents an apparent conflict with the jury's answer to Question 2 (that Hartford "fail[ed] to comply with the terms of the insurance policy by failing to pay for damages, if any, caused solely by plumbing leaks to the Vestal property"). Dodd argues we should reconcile this conflict by construing the commencement question, which is not limited to any particular type of damage, to mean damage caused by occurrences other than the plumbing leaks. We again disagree. Indeed, it is the jury's answer to Question 2 that is immaterial, because it does not establish damages that commenced within the policy period. See LaGloria Oil and Gas Co. v. Carboline Co. 84 S.W.3d 228, 241 (Tex. App.-Tyler 2001, pet. denied) (holding "[t]he failure to include, over objection, the essential elements of a claim in a jury question renders that question immaterial" and citing Torrington Co. v. Stutzman, 46 S.W.3d 829, 839-40 (Tex.2000)).

The trial court's judgment is affirmed.

Sarah B. Duncan, Justice

1. It is not clear from the judgment whether the trial court granted Hartford's request for a judgment non obstante veredicto or its alternative request to disregard all of the jury's findings except its answer to question three.

2. Dodd's attorneys understood this risk at the charge conference: "If the jury were to come back with an answer prior to 1996, then it is a no-brainer."