     Case: 15-10302      Document: 00513171931         Page: 1    Date Filed: 08/27/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10302                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                          August 27, 2015
STATE FARM LLOYDS,                                                         Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

DONNA COWEY, as representative of the Estate of Staci Michelle
Montgomery, and on behalf of all those entitled to recover under the Texas
Wrongful Death and Survival Acts for the death of Staci Michelle
Montgomery,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CV-2994


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Scott Matthew Marshall pleaded guilty to murdering Staci Montgomery
and was sentenced to forty years in prison. He signed a judicial confession
stating that he “intentionally and knowingly” caused Montgomery’s death, and



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-10302
that he “intentionally and knowingly” committed aggravated assault with a
deadly weapon by threatening her with imminent bodily injury.
      Donna Cowey, Montgomery’s mother, then sued Marshall and others
under the Texas Wrongful Death and Survival Acts. State Farm Lloyds (“State
Farm”) agreed to defend Marshall under a renters’ insurance policy, subject to
a reservation of rights to deny indemnity for any judgment against him. Cowey
obtained a judgment of $700,633.44 against Marshall in February 2014. In
particular, the jury awarded $190,000 for past and future loss of
companionship and society, $150,000 for past and future mental anguish
suffered by Cowey, $250,000 for pain and mental anguish experienced by
Montgomery “before her death,” $19,587 in funeral and burial expenses, and
$75,000 in exemplary damages, awarded “as a penalty or by way of
punishment.” Meanwhile, State Farm sued Marshall and Cowey, seeking a
declaratory judgment that it had no duty to indemnify Marshall or pay a
judgment against him for damages arising out of Montgomery’s death. The
district court granted State Farm’s motion for summary judgment and entered
a declaratory judgment against Marshall and Cowey. Cowey filed a timely
notice of appeal.
      We review de novo a district court’s grant of summary judgment, viewing
“all facts and evidence in the light most favorable to the non-moving party.”
Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013).
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact
exists when the “evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396,
400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
(1986)).
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                                 No. 15-10302
      Texas law applies to this diversity lawsuit. Under Texas law, an
“insurer’s duty to indemnify depends on the facts proven and whether the
damages caused by the actions or omissions proven are covered by the terms
of the policy.” D.R. Horton-Tex., Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740,
744 (Tex. 2009). “In Texas, the insured carries the burden to establish the
insurer’s duty to indemnify by presenting facts sufficient to demonstrate
coverage.” Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Puget Plastics Corp.,
532 F.3d 398, 401 (5th Cir. 2008). Given that “[t]he underlying case often does
not resolve all the factual issues necessary to determine coverage,” “courts are
not precluded from making factual findings in coverage actions.” Id. at 404.
      In construing an insurance policy under Texas law, we apply general
principles of contract law. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s
London, 327 S.W.3d 118, 126 (Tex. 2010). To determine the parties’ intent, we
first look to the language of the policy, seeking to harmonize and give effect to
all provisions. Id. “Policy terms are given their ordinary and commonly
understood meaning unless the policy itself shows the parties intended a
different, technical meaning.” Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co.,
267 S.W.3d 20, 23 (Tex. 2008).
      The policy at issue indemnifies Marshall for a suit brought against him
“for damages because of bodily injury or property damage to which this
coverage applies, caused by an occurrence.” An “occurrence” is defined as “an
accident, including exposure to conditions, which results in: (a) bodily injury;
or (b) property damage.” “Bodily injury” is defined as “physical harm to a
person,” and does not include “emotional distress, mental anguish . . . or
similar injury unless it arises out of actual physical injury to some person.”
Although the term “accident” is not defined in the policy, the Texas Supreme
Court has defined an “accident” in the insurance context as “a fortuitous,
unexpected, and unintended event.” Lamar Homes, Inc. v. Mid-Continent Cas.
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Co., 242 S.W.3d 1, 8 (Tex. 2007). “In Texas, deliberate acts may constitute an
accident unless: (1) the resulting damage was ‘highly probable’ because it was
‘the natural and expected result of the insured’s actions,’ (2) ‘the insured
intended the injury,’ or (3) the insured’s acts constitute an intentional tort, in
which case, the insured is presumed to have intended the injury.” Nat’l Union
Fire Ins. Co. of Pittsburgh, Pa., 532 F.3d at 402 (quoting Lamar Homes, Inc.,
242 S.W.3d at 8).
      Cowey concedes that Montgomery’s murder was not an “occurrence” and
therefore was excluded from policy coverage. Instead, Cowey argues that the
policy covers damages resulting from Marshall’s actions before the murder.
However, under the policy, damages are recoverable only if they arise from
“bodily injury or property damage.” “Bodily injury” is defined as “physical
harm,” and Cowey does not identify any physical harm separate from the
injuries caused by the murder. While Cowey points to the award for mental
anguish suffered by Montgomery before she died, mental anguish is a “bodily
injury” only if it “arises out of actual physical injury.” In the civil lawsuit,
Marshall stipulated that after he shot Montgomery, she did not die
immediately, but rather attempted to leave the residence while bleeding
profusely. To the extent that the award was based on Montgomery’s mental
anguish during that time, the anguish was caused by her murder, which Cowey
concedes is not an accident. To the extent the award was based on
Montgomery’s mental anguish before the shooting, Cowey does not identify any
physical injury from which that anguish arose. In addition, the record compels
the conclusion that Marshall’s actions before the murder either were
intentional or had a high probability of causing damage. See id.
      No reasonable jury could find that State Farm had a duty to indemnify
Marshall or pay a judgment against him for damages. We therefore AFFIRM
the district court’s grant of summary judgment in favor of State Farm.
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