Affirmed and Memorandum Opinion filed April 29, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00417-CV

            ACGS MARINE INSURANCE COMPANY, Appellant
                                        V.

                      SPRING CENTER, INC., Appellee

                    On Appeal from the 11th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2011-09454

                 MEMORANDUM OPINION

      Appellant ACGS Marine Insurance Company asserts that the trial court
erroneously granted a partial summary judgment in favor of appellee Spring
Center, Inc.   Specifically, the trial court found a policy condition excluding
coverage in a limited commercial property insurance policy is ambiguous and,
thus, construed the condition in favor of coverage. We affirm.
                                    BACKGROUND

      Spring Center owns a business park in the Houston area consisting of eleven
buildings, all surrounded by a single fence. It leases space within its eleven
buildings to various businesses, including those providing light manufacturing,
storage, and light machine repair, among others.       Spring Center also has a
management office located on the property that is staffed during normal business
hours. It purchased a limited commercial property insurance policy from ACGS
providing coverage to the property from January 1, 2010 to January 1, 2011 (the
Policy).

      On August 13, 2012, a vacant building in the business park was broken into
and “completely stripped of electrical wiring.” Major damage was done to the
offices and exterior doors were broken. Spring Center timely notified ACGS of
the damage and requested coverage under the Policy. During its investigation,
ACGS learned from Spring Center’s representative that the building had been
vacant for about four months prior to the loss. ACGS informed Spring Center in
writing that it would not cover the damage based on the following Policy
condition:

      Vacancy – Unoccupancy – “We” do not pay for loss caused by
      attempted “theft”; breakage of building glass; sprinkler leakage
      (unless “you” have protected the system against freezing); “theft”;
      vandalism; or water damage occurring while the building or structure
      has been:
      a.     vacant for more than 60 consecutive days; or
      b.     unoccupied for more than:
             1)    60 consecutive days; or
             2)    the usual or incidental unoccupancy of a “covered
                   location”;
             whichever is longer.

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                                        ...
      Unoccupied means that the customary activities or operations at a
      “covered location” are suspended, but business personal property has
      not been removed. The building or structure will be considered
      vacant and not unoccupied when the occupants have moved, leaving
      the building or structure empty or containing only limited business
      personal property. Buildings or structures under construction are not
      considered vacant or unoccupied.

      Following ACGS’s denial of coverage, Spring Center sued ACGS, asserting
contractual and extra-contractual claims. ACGS moved for summary judgment on,
as is relevant here, whether it properly denied coverage for Spring Center’s loss
under this Policy condition. The trial court denied ACGS’s motion, stating: “The
Court believes that a ‘covered location’ for purposes of the insurance policy in
question included all eleven buildings contained within the fenced area. These
eleven buildings were collectively insured as one property by one policy with one
vacancy clause that applied to the property as a whole.”

      Spring Center filed a partial summary judgment motion on liability,
centering on “an interpretation of the Policy’s vacancy exclusion.” ACGS filed a
response, asserting similar arguments as it had in its summary judgment motion
and arguing that its previously denied summary judgment motion should be
reconsidered and granted. The trial court granted partial summary judgment in
favor of Spring Center on the following grounds:

      The court finds an ambiguity exists in the insurance policy regarding
      whether the vacancy clause applies to each of the 11 buildings at the
      covered location separately as ACGS contends, or to all 11 buildings
      collectively as Spring Center contends. The vacancy/unoccupancy
      condition uses both the phrases “the building or structure’’ and
      “covered location” in defining what must be not vacant/occupied in
      order for coverage to exist. Notably this condition does not use the
      phrase “each building or structure.” It is undisputed that the “covered
      location” is 22820 Interstate 45 North, Spring, TX 77373, which is a

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      fenced business park with 11 separate buildings. The Schedule of
      Coverage references the property contained on the Location Schedule
      with regard to what property was covered. The Location Schedule
      describes the “Covered Property” as a “Building” with a single limit
      of $10,350,000.
             The coinsurance provisions state: “If there is more than one
      ‘limit’ indicated on the ‘schedule of coverage,’ this procedure applies
      separately to each covered property for which a ‘limit’ applies. If
      there is one ‘limit’ indicated on the ‘schedule of coverage,’ this
      applies to the total of all covered property to which the ‘limit’
      applies.” This language eliminates any ambiguity regarding whether
      the coinsurance clause is to be applied to each building separately or
      to the property as a whole.
            The Windstorm or Hail Deductible provisions state: “The
      windstorm or hail percentage deductible applies separately to: a. each
      building or structure . . . .” This language also eliminates any
      ambiguity regarding how the windstorm or hail deductible is to be
      applied.
            No      similar     language      is   used     regarding    the
      vacancy/unoccupancy condition, making the condition ambiguous.
      ACGS Marine does not dispute that ambiguities in insurance policies
      are construed in favor of the insured. The court therefore construes
      the vacancy/unoccupancy condition as applying only if the entire
      business park at the covered location was vacant or unoccupied.
      Since it is undisputed that the entire covered location was not vacant
      at the time of the loss, there is coverage for Plaintiff’s damages
      pursuant to the terms of the policy.

      The parties subsequently settled the extra-contractual claims and entered a
confidential agreement regarding the amount of damages. The trial court signed a
final, appealable judgment on April 11, 2013. This appeal timely followed.

                                    ANALYSIS

      When both parties move for summary judgment and the trial court grants
one motion and denies the other, the reviewing court should review all the
summary judgment evidence, determine all questions presented, and render the

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judgment the trial court should have rendered. Mid–Continent Cas. Co. v. Global
Enercom Mgmt., Inc., 323 S.W.3d 151, 153–54 (Tex. 2010). We analyze disputes
over the interpretation of insurance contracts using the well-established principles
of contract construction, attempting to determine the parties’ intent through the
language of the policy. Id. at 154. That the parties may disagree about the policy’s
meaning does not create an ambiguity; only if the policy is subject to two or more
reasonable interpretations is it ambiguous. State Farm Lloyds v. Page, 315 S.W.3d
525, 527 (Tex. 2010). When an ambiguity involves an exclusionary provision of
an insurance policy, we adopt the construction urged by the insured so long as that
construction is not unreasonable, even if the construction urged by the insurer
appears to be more reasonable or to more accurately reflect the parties’ intent.
Gilbert Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 132
(Tex. 2010) (quoting Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 741
(Tex. 1998)).

      As noted above, the parties disagree about the interpretation of the
“Vacancy – Unoccupancy” condition.        In its summary judgment motion and
response to Spring Center’s motion, ACGS asserted that the phrase “the building
or structure” used in this condition must refer to a single building or structure.
ACGS contended that the plain language of the condition applies to a singular
“building or structure,” not to the vacancy of a “covered location.” ACGS’s
construction finds the following support within the policy language:

      • “We” cover direct physical loss to covered property at a “covered
        location” caused by a covered peril.
      • Covered Building Property – Covered Building Property means
        buildings and structures . . . .
      • “Covered Location” means any location or premises where “you”
        have buildings, structures, or business personal property covered
        under this coverage. However, if the Scheduled Locations
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            Endorsement is added to this policy, “covered location” means a
            location that is described on the Location Schedule.
      • The windstorm or hail percentage deductible applies separately
        to . . . each building or structure, including business personal
        property within each building or structure.
      • Collapse of a building or structure, any part of a building or
        structure, or personal property inside a building or structure . . . .
      Based on this policy language, ACGS argued the Policy indicates that
multiple buildings and structures can be present at one “covered location.” It
contended that “where several buildings in a warehouse complex are insured under
a blanket policy, it is proper to evaluate the loss to individual buildings, rather than
to determine the loss to the complex as a whole.”1 ACGS asserted that the use of
the singular term “building or structure” in the Policy is crucial because it indicated
a difference in application. Finally, ACGS urged that Spring Center’s
interpretation of the policy is unreasonable because it “would require the Court to
ignore the plain language indicating losses to ‘a building or structure,’ and the
same is true of other Policy terms.”

      Spring Center, on the other hand, asserted in its summary judgment motion
that the Policy, when read as a whole, identifies and insures only one “covered
location,” not the separate buildings at that location. Spring Center’s construction
also finds support with the policy language:

            • The “covered location” definition, excerpted above.
            • The Policy’s Schedule of Coverages, which is stated as a catastrophe
              limit applied to the property as a whole and refers to the Location
              Schedule for the limits and coinsurance penalty.
            • The Location Schedule, indicating a single covered location at 22820
              Interstate 45 North, Spring, TX 77373, identified as a “Building.”


      1
          See 12 Steven Plitt et al., Couch on Insurance § 177:72 (3rd ed. 1995).

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Spring Center contended that ACGS’s asserted interpretation “ignores that the
Policy insures one property location only and not separately the individual
buildings at that location.”

      The “Vacancy – Unoccupied” condition refers to both a “building or
structure” and a “covered location.” The term “covered location” is defined by the
Policy: if the Policy contains a Scheduled Locations Endorsement, the “covered
location” means a location described on the Location Schedule.           The Policy
contains a Scheduled Locations Endorsement. Thus, the term “covered location”
in the Policy means a location described on the Location Schedule. As indicated
above, the Location Schedule only contains a single location, 22820 Interstate 45
North, Spring, TX 77373, identified as a “Building.” Although it is undisputed
that the specific “building” at issue was vacant for more than 60 days before the
theft occurred, it is likewise undisputed that the “Building” insured under the
policy was not vacant for more than 60 consecutive days before the theft occurred.

      Based on the plain language of the policy as a whole, it is not unreasonable
to interpret the vacancy portion of the “Vacancy – Unoccupied” condition to
require that the entirety of the “Building” located at 22820 Interstate 45 North—
the only “building” specifically identified in the Policy—be vacant for more than
60 consecutive days before this condition excluded coverage in the event of a theft.
See Mid–Continent Cas. Co., 323 S.W.3d at 154 (providing reviewing courts
attempt to discern the parties’ intent by looking at the language of the policy). And
even if the construction urged by ACGS appears to be more reasonable or to more
accurately reflect the parties’ intent, we adopt the construction of Spring Center
because it is not unreasonable. See Gilbert Constr., L.P., 327 S.W.3d at 132.




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      For the foregoing reasons, we conclude that the trial court did not err in
granting Spring Center partial summary judgment on liability.      We therefore
overrule ACGS’s sole appellate issue.

      The judgment of the trial court is affirmed.



                                        /s/       Sharon McCally
                                                  Justice

Panel consists of Justices McCally, Busby, and Donovan.




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