Opinion issued January 23, 2020




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-18-01107-CV
                             ———————————
   ZURICH AMERICAN INSURANCE COMPANY, AS SUBROGEE OF
   TENARIS GLOBAL SERVICES (U.S.A.) CORPORATION, Appellant
                                          V.
                COASTAL CARGO OF TEXAS, INC., Appellee


                    On Appeal from the 151st District Court
                             Harris County, Texas
                       Trial Court Case No. 2015-48186


                                 O P I N I O N

      Zurich American Insurance Company, as subrogee of Tenaris Global Services

(U.S.A.) Corporation, appeals from a take-nothing judgment. Zurich contends that

the trial court erred in instructing the jury as to what it had to find to hold Coastal

Cargo of Texas, Inc. liable under a contractual risk-of-loss provision.
      We reverse the trial court’s judgment and remand for a new trial.

                                 BACKGROUND

      Tenaris sold a large quantity of steel piping to Anadarko Petroleum Company

for use in Louisiana. The piping was made in northern Italy and then shipped about

500 miles overland to an Italian port, where it was then loaded onto a vessel for

transport to the Port of Houston. Tenaris contracted with Coastal to unload the piping

from this vessel at the Port of Houston and transfer the piping to a barge for delivery

in Louisiana. When the piping arrived in Louisiana, Anadarko rejected almost 40

percent of it due to damage sustained in transit. Tenaris repaired the damaged piping

and Zurich paid Tenaris about $393,000 under a cargo insurance policy. Zurich then

sued Coastal. Zurich alleged that the piping was damaged when it was in Coastal’s

custody and that the risk-of-loss provision in the contract between Tenaris and

Coastal made Coastal liable for the damaged piping and Zurich’s payment.

      The contract’s risk-of-loss provision provided as follows:

      Section 7.2 Risk of Loss

      Contractor shall bear the risk of loss, destruction or damage to the Goods:
      (i) from the moment when such Goods are received by Contractor at the
      Yard or at any other place, from any member of Tenaris Group and/or
      from a transport company and/or from Customer and/or from any Third
      Party; (ii) during the time that Goods are under Contractor’s custody or
      control at the Yard or at any other place; and (iii) until such Goods leave
      Contractor’s physical custody. Contractor shall take such steps
      reasonably necessary to be sure that Goods can at all times be identified
      as belonging to Tenaris. The remainder of this section notwithstanding,
      Contractor shall not bear the risk of loss, destruction or damage to Goods

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      that result from causes that are outside the control of Contractor,
      including but not limited to, force majeure events.

      The parties disputed the scope of the risk-of-loss provision. Zurich contended

that the provision made Coastal responsible for any damage to the piping while it

was in Coastal’s custody so long as the cause of damage was not outside of Coastal’s

control. Coastal contended that proof that the piping was damaged in its custody was

necessary but not sufficient. Coastal argued that it could not be held liable unless

Zurich also proved that Coastal had breached one of several other contractual

provisions. In support, Coastal relied on the following four provisions:

      Section 3.1 Performance of Services

      Contractor shall carry out all of its obligations under the Agreement and
      shall perform the Services using qualified and competent personnel in a
      lawful, proficient, timely and efficient manner.

                                        ***

      Section 3.3. Provision of Necessary Resources for Performance of
                   Services

      Contractor shall provide all management, supervision, personnel,
      materials, equipment, plant, consumables, facilities, supplies and all
      other items and resources, whether of a temporary or permanent nature,
      so far as the necessity for providing the same is specified in or is
      reasonably to be expected from the Agreement. Materials, equipment or
      parts thereof and any other items provided by Contractor for the
      provision of Services, for which there is no detailed specification
      included in the Agreement shall be of good quality and workmanship
      and consistent with applicable standards.

                                        ***


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      Section 6.1 Scope of Warranty

      Contractor Group warrants that Services shall: (i) be performed in full
      compliance with this Agreement; (ii) be free from defects and
      deficiencies; and (iii) be correct and appropriate for purposes
      contemplated in this Agreement.

                                           ***

      Section 9.2 Compliance with Operative Practices

      In performance of the work under this agreement Contractor shall
      comply with normal, reasonable and safe practices.

      Based on these four provisions, Coastal argued that Zurich had to prove that

Coastal had failed to employ competent personnel, use equipment that met industry

standards, transfer cargo properly, or comply with customary practices in

transferring cargo in addition to proving that the cargo was damaged while in

Coastal’s custody to establish liability for damages under the contract.

      The trial court agreed with Coastal. In the breach-of-contract question that it

submitted to the jury, the trial court instructed that:

      Coastal failed to comply with the agreement if you find that the damage
      to the pipe was sustained:

         (a) while the pipe was in Coastal’s custody and from causes within
             Coastal’s control, and

         (b) that Coastal failed to use qualified and competent personnel; or
             that Coastal failed to use equipment of good quality and
             workmanship and consistent with applicable industry standards;
             or that Coastal failed to perform its stevedoring correctly and
             appropriately for the purposes contemplated; or that Coastal failed


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             to comply with normal, reasonable and safe operative practices to
             cause damage to the pipe.

      The jury unanimously found that Coastal did not breach the contract, and the

trial court entered a take-nothing judgment from which Zurich appeals.

                                   DISCUSSION

                            Waiver and Motion to Strike

      Coastal contends that Zurich waived any error by failing to specify error in

the jury charge as an appellate issue and by failing to adequately brief charge error.

Coastal also has moved to strike Zurich’s reply in part on the ground that Zurich did

not address the issue of harm in its opening brief and thus cannot do so in reply.

      Zurich’s brief is not a model of precision, but it leaves no doubt that Zurich’s

complaint concerns the trial court’s jury instruction as to what it had to prove to

show a breach of the risk-of-loss provision. Zurich’s brief also makes its position as

to harmful error clear enough; Zurich contends that it lost at trial because the charge

required Zurich to prove something the risk-of-loss provision does not require.

      We therefore reject Coastal’s waiver arguments and deny its motion to strike.

                              Contract Interpretation

      Zurich contends that the trial court misinterpreted the contract and erred by

including this erroneous interpretation in the jury charge. Zurich maintains that the

risk-of-loss provision requires it to prove that the cargo was damaged in Coastal’s

custody from causes within Coastal’s control and nothing more. Coastal responds

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that the trial court properly interpreted the contract as a whole, rather than looking

exclusively to its risk-of-loss provision, to determine Coastal’s potential liability.

                                 Standard of Review

      Zurich and Coastal agree that the contract is unambiguous. The interpretation

of an unambiguous contract is a question of law, which we review de novo. Kachina

Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015). The parties’ intent, as

expressed in the contract’s language, is controlling. Plains Expl. & Prod. Co. v.

Torch Energy Advisors, 473 S.W.3d 296, 305 (Tex. 2015). Absent ambiguity,

extrinsic evidence is inadmissible to show a meaning different from the contract’s

plain language. Anglo–Dutch Petrol. Int’l v. Greenberg Peden, P.C., 352 S.W.3d

445, 451 (Tex. 2011). We consider the contract’s language as a whole, trying to give

effect to all of its terms so that none are made meaningless. Seagull Energy E & P

v. Eland Energy, 207 S.W.3d 342, 345 (Tex. 2006). Thus, we do not read contractual

provisions in isolation from one another. In re Ford Motor Co., 211 S.W.3d 295,

298 (Tex. 2006) (per curiam). Nor do we consider terms that favor one party’s

interpretation of the contract and disregard the rest. City of Keller v. Wilson, 168

S.W.3d 802, 811 (Tex. 2005). Unless the contract shows that it uses a term in some

other sense, we accord the term its plain, ordinary, and generally accepted meaning.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005).




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                                       Analysis

      The trial court erred in interpreting the contract to require that Zurich prove

both that the cargo was damaged while in Coastal’s custody by causes within its

control and that Coastal breached a requirement imposed by one of several other

contractual provisions. The risk-of-loss provision provides that Coastal bears the risk

of loss, destruction, or damage to cargo in its custody unless the loss, destruction, or

damage results from causes outside of Coastal’s control. The risk-of-loss provision

does not refer to any other contractual provision or limit its application to any

particular circumstances addressed by the other provisions of the contract. Under

this provision, Zurich had to prove that the cargo was in Coastal’s custody and that

whatever caused the damage was within Coastal’s control and no more.

      Coastal contends that this interpretation disregards four other provisions that

address the employment of competent personnel, use of equipment that meets

industry standards, proper transfer of cargo, and compliance with customary

practices. We disagree. These provisions identify matters that are within Coastal’s

control, but they are not exhaustive. The risk-of-loss provision imposes liability for

damage caused by anything within Coastal’s control, not just breaches of these four

provisions. Coastal could perform under each of these four provisions, but

nonetheless remain liable if cargo was damaged in its custody by some other cause




                                           7
within its control. The trial court’s interpretation therefore limited Coastal’s

potential liability inconsistent with the contract’s plain language.

                                 Jury Charge Error

      Relying on Crown Life Insurance Company v. Casteel, 22 S.W.3d 378 (Tex.

2000), and its progeny, Zurich contends that the trial court’s jury instruction prevents

it from properly presenting its appeal. Zurich reasons that under the trial court’s

charge, the jury could have rendered a defense verdict on two distinct bases: it could

have found under subpart (a) of the breach instruction that the piping was not

damaged while in Coastal’s custody by causes under its control or the jury could

have found that Coastal did not commit any of the separate and distinct contractual

breaches identified in subpart (b) of the breach instruction. Because there is no way

to tell which basis the jury accepted and subpart (b) is erroneous, Zurich argues that

reversal and remand for a new trial is required. See id. at 388–90.

                                 Standard of Review

      Under Casteel and its progeny, when a trial court submits a single broad-form

liability question incorporating multiple theories of liability, some of which are

invalid and therefore cannot support a finding of liability, it errs. Benge v. Williams,

548 S.W.3d 466, 475 (Tex. 2018). The error is harmful and requires a new trial if

the appellate court cannot determine whether the jury based its verdict on an invalid

theory. Id. Though Casteel concerned the broad-form submission of multiple


                                           8
theories of liability, its harmful-error rule likewise applies when the trial court

submits a broad-form question as to a single theory that allows a finding of liability

based on evidence that cannot support recovery as a matter of law. Id. at 475–76; see

also Brannan Paving GP v. Pavement Markings, Inc., 446 S.W.3d 14, 23–25 (Tex.

App.—Corpus Christi 2013, pet. denied) (broad-form submission that includes

invalid affirmative defense within the liability question subject to Casteel rule).

                                         Analysis

       The rules of procedure require broad-form submission when feasible. TEX. R.

CIV. P. 277. But this directive must be read in light of Casteel and its progeny, which

call for more granular submission of the issues when there are multiple theories of

liability, distinct bases for liability asserted under a single theory of liability, or more

than one affirmative defense that could defeat liability. See Benge, 548 S.W.3d at

475–76; Casteel, 22 S.W.3d at 389–90; Brannan, 446 S.W.3d at 23–25. The

question then is whether broad-form submission was feasible in this case.

       The trial court submitted a broad-form liability question that allowed the jury

to find for Zurich if and only if the jury determined that (1) the piping was damaged

while in Coastal’s custody by causes within its control; and (2) Coastal did not use

competent personnel, use equipment that met industry standards, perform its

stevedoring correctly, or comply with normal, reasonable, and safe practices. The

second prerequisite to liability under this question is invalid because the contract


                                             9
does not limit Coastal’s risk-of-loss liability in this manner. A jury finding in

Coastal’s favor on this basis therefore would be improper as a matter of law.

      The jury found for Coastal on Zurich’s risk-of-loss claim. But there is no way

to determine whether the jury did so on a contractually valid basis—because it

decided that Zurich did not prove that the piping was damaged for reasons within

Coastal’s control—or a contractually invalid basis—because Zurich did not prove

that Coastal failed to fulfill its obligations with respect to personnel, equipment,

stevedoring, or reasonable practices. While Casteel issues typically arise when an

appellate court cannot determine whether the jury found liability on an improper

basis, they are equally applicable when, as here, broad-form submission prevents us

from ascertaining whether the jury rendered a defense verdict on an improper basis.

See Brannan, 446 S.W.3d at 23–25; cf. Bed, Bath & Beyond v. Urista, 211 S.W.3d

753, 756–57 (Tex. 2006) (submission of erroneous inferential rebuttal issue

instruction doesn’t require reversal and new trial because this type of error doesn’t

prevent appellate court from determining if jury’s verdict rests on invalid basis).

      The Supreme Court has interpreted Rule 277’s directive to submit broad-form

questions when feasible as requiring broad-form submission in every instance that it

is capable of being done. Thota v. Young, 366 S.W.3d 678, 689 (Tex. 2012). Rule

277, however, was last amended in 1988, twelve years before Casteel. We do not

doubt that the charge in this case resulted from the trial court’s and parties’ good-


                                          10
faith efforts to comply with the Court’s direction on broad-form submission. But

broad-form submission was not feasible in this case, given the parties’ disagreement

as to whether the contract required Zurich to prove more than one distinct element

to establish Coastal’s liability for the loss. On this record, we have no choice but to

reverse and remand for retrial with a jury charge correctly interpreting the contract.

                                  CONCLUSION

      We reverse the trial court’s judgment and remand for a new trial.




                                               Gordon Goodman
                                               Justice

Panel consists of Justices Lloyd, Goodman, and Landau.




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