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Court of Appeals of Texas, Fifth District, Dallas
May 10, 2000, Opinion Filed
Opinion By Justice O'Neill
We overrule the Fitzpatricks' motion for rehearing. We withdraw our opinion dated March 24, 2000, and substitute the following in its place.
John Michael Fitzpatrick and Deborah Fitzpatrick appeal the summary judgment granted to Fire Insurance Exchange in a suit stemming from a homeowner's claim for vandalism damage. The Fitzpatricks allege the court erred in applying the vacancy clause of the insurance policy and in granting summary judgment when fact issues exist on whether Fire Insurance Exchange should be estopped from relying on the vacancy clause. We affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Fitzpatricks own a home in Plano, Texas, that was insured by Fire Insurance Exchange. The roof was damaged by hail, and the Fitzpatricks made claims under their insurance policy for hail [*2] and foundation damage, which Fire Insurance Exchange paid. At the time, the Fitzpatricks were renting the property to tenants, but the damage was significant and made the house uninhabitable. The Fitzpatricks hired a contractor to repair the roof and to add on an additional room, and Fire Insurance Exchange paid the Fitzpatricks for their loss of rental income while the house was being repaired. While the home was vacant, the Fitzpatricks sustained vandalism damage. They made a claim on the insurance policy, and the claim was denied.
The Fitzpaticks sued Fire Insurance Exchange for breach of contract and later amended their petition to include claims for breach of the duty of good faith and fair dealing under common law, the Texas Insurance Code, and the Deceptive Trade Practices Act. 1 Fire Insurance Exchange filed a motion for summary judgment claiming the policy excluded coverage for vandalism because the property was not being used principally for dwelling purposes and was vacant at the time of the loss. The Fitzpatricks filed a response and a counter motion for summary judgment. They claimed the dwelling and vacancy clauses amount to a forfeiture of coverage, and they requested [*3] a determination that Fire Insurance Exchange is estopped from claiming these contractual defenses because they continued coverage of the property after they knew the house was vacant.
Fire Insurance Exchange responded to the Fitzpatrick's motion by arguing that, as a matter of law, the Fitzpatricks could not rely on estoppel because they failed to plead it as an affirmative defense as required by Texas Rule of Civil Procedure 94. The trial court denied the Fitzpatricks' motion for summary judgment and granted Fire Insurance Exhange's motion, finding vandalism was excluded from coverage because the vacancy clause of the [*4] insurance policy applied.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
2000 Tex. App. LEXIS 3020 *
JOHN MICHAEL FITZPATRICK AND DEBORAH FITZPATRICK, Appellants v. FIRE INSURANCE EXCHANGE, Appellee
Notice: [*1] PURSUANT TO THE TEXAS RULES OF APPELLATE PROCEDURE, UNPUBLISHED OPINIONS SHALL NOT BE CITED AS AUTHORITY BY COUNSEL OR BY A COURT.
Subsequent History: Petition for Review Denied November 2, 2000.
Prior History: On Appeal from the 380th Judicial District Court. Collin County, Texas. Trial Court Cause No. 380-157-96.
coverage, insurer, vacancy, estoppel, forfeiture, summary judgment motion, summary judgment, insurance policy, affirmative defense, vandalism, trial court, writ denied, estopped, vacant
Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Appeals, Standards of Review, Burdens of Proof, Summary Judgment Review, Defenses, Demurrers & Objections, Affirmative Defenses, Estoppel, Supporting Materials, Judgments, Opposing Materials, Insurance Law, Claim, Contract & Practice Issues, Policy Cancellation, Denial & Nonrenewal, Estoppel & Waiver, Policy Coverage Issues, Appraisals, Responses, Waiver & Preservation of Defenses, Late Premiums & Nonpayment, Reservation of Rights, Reservation of Rights, Types of Insurance, Property Insurance, Estoppel & Waiver, Contract Formation, Policy Interpretation, Contracts Law, Defenses, Ambiguities & Mistakes, Ambiguous Terms, Construction Against Insurers