Opinion issued June 12, 2014.




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00165-CV
                           ———————————
CERTAIN UNDERWRITERS AT LLOYD’S OF LONDON SUBSCRIBING
        TO POLICY NUMBER: FINFR0901509, Appellants
                                        V.
                       CARDTRONICS, INC., Appellee


                   On Appeal from the 334th District Court
                            Harris County, Texas
                      Trial Court Case No. 2011-68592

                         OPINION ON REHEARING 1

     This is a permissive interlocutory appeal of a partial summary judgment. See

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (West Supp. 2013). Certain


1
     Underwriters have moved for reconsideration of our March 11, 2014 opinion. The
     panel denies rehearing, withdraws its prior opinion and judgment, and issues this
     opinion and judgment in their place.
Underwriters at Lloyd’s of London Subscribing to Policy Number FINFR0901509

appeal the trial court’s determination that Underwriters’ insured, Cardtronics, Inc.,

suffered a covered loss under the policy that had to be paid without Cardtronics

first exhausting its claims against responsible third parties. We affirm.

                                    Background

      This commercial insurance coverage dispute arises out of a theft of over $16

million from Cardtronics, which owns and operates automated teller machines

(ATMs). The theft was committed by the former president of Mount Vernon

Money Center (Mount Vernon), an armored car company. Under an “Armored

Carrier Agreement,” Cardtronics leased currency from Bank of America, N.A.

(BOA), and made the currency available to Mount Vernon. Pursuant to an “ATM

Management Service Agreement” between Mount Vernon and Cardtronics, Mount

Vernon provided cash replenishment services to Cardtronics’s ATMs. Mount

Vernon was charged with picking up the currency from BOA, storing it in its

vaults, and transporting it as needed to ATMs owned and operated by Cardtronics.

      An insurance policy styled as “Automated Teller Machine and Contingent

Cash in Transit” insurance provided that Underwriters “will pay for loss of

‘money’ and ‘securities’ outside the ‘premises’ in the care and custody of a

‘messenger’ or an armored motor vehicle company resulting directly from ‘theft,’

disappearance or destruction.” The policy also covers additional risks, such as the



                                          2
risks of employee theft, forgery or alteration of checks and other instruments, theft

of money from Cardtronics’s premises, safe robberies, computer fraud, funds

transfer fraud, fraudulent money orders, and counterfeit paper currency. The policy

does not expressly require Cardtronics to carry any other insurance policies. The

policy is appended to a “Cover Note” sent to Cardtronics and signed by Lockton

Companies International Limited, stating that coverage had been effected with

Underwriters.

      Unlike the other risks covered by the policy, subparagraph E.4.A, captioned

“Armored Motor Vehicle Companies,” provides that Underwriters would only pay

for the amount of loss for contingent cash in transit that Cardtronics “cannot

recover” under its agreement with an armored motor vehicle company or under any

insurance carried either by that company or on behalf of its customers.

      In early 2010, Mount Vernon’s president was arrested for conspiracy to

commit bank fraud; he was later charged with bank fraud and conspiracy to

commit bank and wire fraud. Upon discovery of the theft, Cardtronics quickly

notified Underwriters of its loss. Within days, the Federal Bureau of Investigation

seized over $19 million from two Mount Vernon locations, and a receiver was

appointed to oversee Mount Vernon’s operations. The receiver filed a report

showing that almost $50 million belonging to Mount Vernon’s customers was

missing from either Mount Vernon’s vaults or its customers’ ATMs. In May,



                                         3
Mount Vernon commenced Chapter 11 bankruptcy proceedings in the United

States Bankruptcy Court for the Southern District of New York.

      In June, Cardtronics timely tendered proof of loss to Underwriters for over

$16 million and requested payment. The policy required Underwriters to accept or

reject Cardtronics’s claim within 15 days after receiving proof of loss. If

Underwriters were unable to accept or reject the claim within that period, the

policy permitted Underwriters to notify Cardtronics within that same period that

Underwriters needed additional time to reach a decision. In such event,

Underwriters would then be obligated to accept or to reject the claim within 45

days of that notice and, if the claim were accepted, make any payment of the claim

within 5 business days after acceptance.

      Underwriters did not accept or reject the claim; it instead repeatedly

extended the deadline for submitting a proof of loss. Nearly one year after

Cardtronics’s first request for payment, Underwriters notified Cardtronics in

writing that it would not pay the claim until the completion of proceedings against

Mount Vernon and its insurance carriers so that “any shortfall in recovery” could

be “conclusively determined.” A few months later, Underwriters denied coverage.

      While Cardtronics pursued recovery from Underwriters, it also sought

recovery of the funds seized by the FBI and from Mount Vernon. Cardtronics filed

a proof of claim in Mount Vernon’s bankruptcy case. The bankruptcy trustee sued



                                           4
Mount Vernon’s carrier to recover the losses sustained by Mount Vernon’s

defrauded clients, but the carriers denied coverage; that claim is currently pending.

More than two years after it discovered its loss, Cardtronics recovered almost $3

million from the funds seized by the FBI. In the interim, Cardtronics was forced to

take out a loan to repay the leased money it owed to BOA.

      A few months before the date it was contractually required to file suit,

Cardtronics sued Underwriters under its insurance policy for breach of the policy,

breach of the Texas Insurance Code, breach of the Prompt Payment Act, and

breach of the duty of good faith and fair dealing. The parties filed cross-motions

for summary judgment on the breach of contract claims. Cardtronics argued that it

could not recover its loss from Mount Vernon or its carriers before the deadline for

submitting its proof of loss or before the two-year deadline for filing suit and,

therefore, it would be irreconcilable with these time limits to interpret the policy as

requiring Cardtronics to exhaust its remedies against third parties before filing a

claim. Underwriters argued that the applicable policy provision was contingent in

nature and contractually obligated Cardtronics to seek reimbursement from and

exhaust all remedies against potentially responsible third parties before

Underwriters would become obligated to pay for the covered loss.

      The trial court granted Cardtronics’s motion, ruling that Cardtronics suffered

a covered loss under the policy and that the policy did not require Cardtronics to



                                          5
exhaust all of its remedies. Subsequently the trial court determined that its

summary judgment order involved controlling questions of law as to which there

was a substantial ground for difference of opinion and that an immediate appeal of

the order may materially advance the ultimate termination of the litigation. The

trial court therefore granted permission to file a request for a permissive

interlocutory appeal pursuant to Texas Rule of Civil Procedure 168 and section

51.014(d) of the Texas Civil Practice and Remedies Code.

      After the trial court’s ruling, Underwriters paid Cardtronics $13,348,826.69,

representing the $16,177,510 in cash stolen by the armored car company less the

$5000 deductible and the $2,823,683.31 distribution received by Cardtronics from

the FBI–seized cash. However, Cardtronics states that this payment does not

account for its accrued pre-judgment interest, other items claimed in its proof of

loss, or additional damages, including lost borrowing costs. Pursuant to

Underwriters’ subrogation rights under the policy, Underwriters requested that

Cardtronics transfer to them “all [of its] rights of recovery against any person or

organization for any loss [it] sustained and for which [Underwriters] have paid or

settled.” Cardtronics complied.

      On appeal, Underwriters present three issues: (1) whether any payment is

currently due from Underwriters to Cardtronics, (2) whether “the time limitations

for proof of loss and suit in the Cardtronics policy override the express provisions



                                         6
requiring Cardtronics to exhaust its remedies against specified third parties,” and

(3) whether “there [is] inherent inconsistency between the provision granting

Underwriters subrogation rights and the provision requiring Cardtronics to exhaust

its remedies against specified third parties.”

                                     Jurisdiction

      As permitted by the trial court’s Rule 168 order, Underwriters filed a

petition for permissive interlocutory appeal pursuant to Section 51.014(f) of the

Texas Civil Practice and Remedies Code. We granted the petition because the

proper interpretation of the policy is a controlling issue of law as to which there is

a substantial ground for difference of opinion, and the remaining issues in the case

after the partial summary judgment depend upon the ultimate resolution of this

issue. For example, Cardtronics’s claims for extra-contractual and penalty damages

based on insurance bad faith and untimely payment are tied to the interpretation of

the policy.

                                Standard of Review

      Our review of a summary judgment is de novo. Tex. Mun. Power Agency v.

Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2008); City of Galveston v.

Tex. Gen. Land Office, 196 S.W.3d 218, 221 (Tex. App.—Houston [1st Dist.]

2006, pet. denied). Under the traditional summary judgment standard, the movant

must show that no genuine issue of material fact exists and that judgment should



                                           7
be rendered as a matter of law. TEX. R. CIV. P. 166a(c); City of Galveston, 196

S.W.3d at 221. Summary judgment for Cardtronics, as the plaintiff, was proper if

Cardtronics conclusively established each element of its cause of action. “We view

all evidence in a light most favorable to the nonmovant and indulge every

reasonable inference in the nonmovant’s favor.” City of Galveston, 196 S.W.3d at

221.

       Because the trial court’s judgment and order do not specify the grounds on

which it granted summary judgment on Cardtronics’s breach of policy claim,

Underwriters must demonstrate that none of the proposed grounds are sufficient to

support the judgment. See Rogers v. Ricane Enters., 772 S.W.2d 76, 79 (Tex.

1989); West v. SMG, 318 S.W.3d 430, 437 (Tex. App.—Houston [1st Dist.] 2010,

no pet.). Conversely, we will affirm the judgment if any of the theories advanced in

the summary judgment motion is meritorious. Joe v. Two Thirty Nine Joint

Venture, 145 S.W.3d 150, 157 (Tex. 2004); West, 318 S.W.3d at 437.

                     The policy does not require exhaustion

A.     The legal issue

       The legal issue in this case is whether the terms of the insurance policy

require the insured or the insurer to bear the loss caused by inevitable delays that

occur when a potentially liable third party does not accept responsibility for a loss

suffered by the insured and covered by its policy, as well as the costs and risks of



                                         8
pursuing such claims. Cardtronics contends that Underwriters must bear that loss

because Cardtronics could not recover from any potentially responsible third

parties before the contractually-imposed deadline for submitting its sworn proof of

loss to Underwriters. Underwriters contend that they may unilaterally extend the

deadline for submitting the proof of loss and thereby extend their time for

accepting or denying coverage, until the disputes with all such third parties are

“concluded.”2

      Underwriters denied coverage based on subparagraph E.4.A of the policy,

which provides that Underwriters will only pay “the amount of loss [Cardtronics]

cannot recover” from Mount Vernon or its insurers. Underwriters contend that this

provision “clearly” requires Cardtronics to exhaust its remedies against those

specified third parties before Underwriters are required to pay any covered loss.

The parties agree that the Texas appellate courts have not addressed the “cannot

recover” language in the policy.



2
      Underwriters do not challenge the trial court’s determination that Cardtronics
      suffered a loss as provided in Underwriters’ policy. Nor do they challenge the
      following undisputed facts implicit in this determination: Cardtronics learned of its
      loss during the policy coverage period; Cardtronics gave Underwriters timely
      notice and proof of loss; Underwriters ultimately denied Cardtronics’s claim;
      Cardtronics filed suit against Underwriters within two years of discovering its
      loss; although Cardtronics demanded that MVMC and its insurers pay the loss,
      Cardtronics did not recover its loss from them, or any other third party, before the
      deadline for submitting its proof of loss or before the two-year deadline for filing
      suit; and Cardtronics did not recover the approximately $3 million from the FBI
      until after the two-year litigation deadline had expired.

                                            9
      Cardtronics responds that the policy “contains no express requirement that

the policyholder exhaust every effort to recover from these third parties. Implying

such a requirement contradicts other policy terms and violates basic rules of

contract construction.” Cardtronics also relies on policy terms that impose certain

time limits for various actions the policyholder must take. First, the policyholder

must file a claim with a detailed sworn proof of loss within 120 days after the

insured learns of the loss; Underwriters must accept or deny that claim within 15

days thereafter (or an additional 45 days if requested). Second, the policyholder is

required to file suit within two years of the discovery of its loss, here by February

2012. Cardtronics also relies on the policy provision granting Underwriters

subrogation rights against “any person or organization for any loss you sustained

and for which we have paid or settled” if the insurer has to pay a loss. This

provision requires Cardtronics to transfer to Underwriters all such rights of

recovery.

      Both parties thus contend that the policy language is unambiguous and

supports their respective positions, or alternatively that the policy is ambiguous

and nonetheless must be construed in support of their respective positions.3


3
      Underwriters argue in their motion for rehearing that the procedural posture of the
      case prevents us from determining that relevant portions of the policy are
      unambiguous. Specifically, they argue that in order to grant their petition to pursue
      this interlocutory appeal, we determined that there is “substantial ground for
      difference of opinion” and that this determination is incompatible with a holding

                                           10
B.    The plain language rule governs insurance policies

      Texas courts interpret insurance policies according to the rules of contract

interpretation. See State Farm Lloyds v. Page, 315 S.W.3d 525, 527 (Tex. 2010);

Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998). A

court’s primary goal is to determine the contracting parties’ intent as expressed by

the policy’s written language interpreted through the application of established

rules of contract interpretation. See Page, 315 S.W.3d at 527; SA-OMAX 2007,

L.P. v. Certain Underwriters at Lloyd’s, London, 374 S.W.3d 594, 598 (Tex.

App.—Dallas 2012, no pet.) (“If the insurance contract can be given an exact or




      that only one reasonable interpretation of the disputed portions of the policy exists.
      See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d)(1) (interlocutory appeal
      permitted when “the order to be appealed involves a controlling question of law as
      to which there is a substantial ground for difference of opinion”). We disagree.

      Both parties argued in their opening briefs—and Underwriters argued in their
      petition for interlocutory review—that the policy was unambiguous, despite the
      parties’ disagreement as to how to interpret it in the absence of controlling law.
      Indeed, there may be ground for disagreement as to what effect the law gives to a
      document, despite internal clarity as to what the document actually says. Thus,
      Texas courts considering such interlocutory appeals have nonetheless been able to
      hold that the contracts in question are unambiguous. E.g., Houston Exploration
      Co. v. Wellington Underwriting Agencies, Ltd., 352 S.W.3d 462, 468, 472–73
      (Tex. 2011) (affirming decision in which court of appeals granted permissive
      interlocutory appeal and in which both Supreme Court and court of appeals held
      that contract was unambiguous); see also Lyle v. Jane Guinn Revocable Trust, 365
      S.W.3d 341, 345, 349–53 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)
      (holding contract unambiguous on interlocutory appeal); Truck Ins. Exch. v.
      Chalfant, 192 S.W.3d 813, 814, 816–18 (Tex. App.—Houston [1st Dist.] 2006, no
      pet.) (analyzing contract for ambiguity on interlocutory appeal). The procedural
      posture of the case does not mandate that we hold that the contract is ambiguous.

                                            11
certain legal interpretation, then it is not ambiguous, and we must interpret the

insurance policy’s meaning and intent from its four corners.”).

      Whether a particular provision or the interaction between provisions creates

an ambiguity is a question of law. Page, 315 S.W.3d at 527. The court decides

whether an ambiguity exists by looking at the contract as a whole in light of the

circumstances present when the contract was entered into and by applying proper

canons of construction. See id.; Kelley-Coppedge, 980 S.W.2d at 464–65.

“[C]ourts must be particularly wary of isolating from its surroundings or

considering apart from other provisions a single phrase, sentence, or section of a

contract.” State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex. 1995).

By examining all parts of the policy together, courts strive to give meaning to the

entire policy without rendering any provision meaningless surplusage. See SA-

OMAX, 374 S.W.3d at 598. Courts “construe contracts ‘from a utilitarian

standpoint bearing in mind the particular business activity sought to be served’ and

‘will avoid when possible and proper a construction which is unreasonable,

inequitable, and oppressive.’” Frost Nat’l Bank v. L&F Distribs., Ltd., 165 S.W.3d

310, 312 (Tex. 2005) (per curiam) (quoting Reilly v. Rangers Mgmt., Inc., 727

S.W.2d 527, 530 (Tex. 1987)).

      Only if the policy is subject to two or more reasonable interpretations after

application of these canons of construction is it considered ambiguous. Page, 315



                                         12
S.W.3d at 527; Beaston, 907 S.W.2d at 433. If there is only one reasonable

interpretation, the policy language is not ambiguous and the court is obligated to

interpret the contract as a matter of law. DeWitt Cnty. Elec. Coop., Inc. v. Parks, 1

S.W.3d 96, 100 (Tex. 1999). If the policy is unambiguous, parol evidence is

inadmissible to vary the terms of the contract. “The parties’ intent is governed by

what they said in the insurance contract, not by what one side or the other alleges

they intended to say but did not.” Gilbert Tex. Constr., L.P. v. Underwriters at

Lloyd’s London, 327 S.W.3d 118, 127 (Tex. 2010) (citing Fortis Benefits v. Cantu,

234 S.W.3d 642, 647, 649 (Tex. 2007)).

      When a policy is ambiguous, however, Texas courts generally apply the

canon of interpretation that courts should “construe [the policy’s] language against

the insurer in a manner that favors coverage.” Beaston, 907 S.W.2d at 433; see

also TIG Ins. Co. v. N. Am. Van Lines, Inc., 170 S.W.3d 264, 268 (Tex. App.—

Dallas 2005, no pet.); see generally Fiess v. State Farm Lloyds, 202 S.W.3d 744,

746 (Tex. 2006) (applying rule to exclusion). This rule is applied as a tiebreaker

when none of the other canons supply the policy’s meaning. See 11 Richard A.

Lord, Williston on Contracts § 32.12 (4th ed. 2011) (“The rule of contra

proferentem is generally said to be a rule of last resort and is applied only where

other secondary rules of interpretation have failed to elucidate the contract’s

meaning.”); 2 Steven Plitt, Daniel Maldonado, Joshua D. Rogers, & Jordan R. Plitt,



                                         13
Couch on Ins. § 22.16 (3d ed. 2011) (noting that rule of construction of ambiguous

policy against insurer is one of last resort). On the other hand, the normal canons of

interpretation—which apply to the interpretation of insurance policies—also

provide that an ambiguous contract is generally construed against its drafter.

Temple-Eastex, Inc. v. Addison Bank, 672 S.W.2d 793, 798 (Tex. 1984); see also

Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 741 n.1 (Tex. 1998)

(explaining contra proferentem as outgrowth of general rule of construction

against document’s drafter).

      1.     The policy term relied upon by Underwriters

      Underwriters rely on Paragraph E.4 of the policy, entitled “Conditions

Applicable to Insuring Agreements A.4. and A.5.”, Subparagraph E.4.A, entitled

“Armored Motor Vehicle Companies,” provides in relevant part as follows:

      Under Insuring Agreement A.5., we will only pay for the amount of
      loss you cannot recover:
             (1) Under your contract with the armored motor vehicle
             company; and
             (2) From any Insurance or indemnity carried by, or for the
             benefit of customers of, the armored motor vehicle company.

      Cardtronics observes that the policy does not expressly require it, as the

policyholder, to exhaust its remedies against third parties and contends that the

policy as a whole negates such an obligation. Under Cardtronics’s construction,

Underwriters are obligated to “only pay for the amount of the loss [Cardtronics]

cannot recover” by the policy-imposed deadline for filing claims. It is undisputed


                                         14
that Cardtronics was unable to recover any funds from any third party before filing

its claim with Underwriters.

      Underwriters argue that construing the policy to require payment before

exhaustion ignores the plain meaning of “cannot recover,” rendering subparagraph

E.4.A meaningless and reducing the incentives for Cardtronics to pursue its

remedies. Underwriters contend that “cannot recover” must refer to the ultimate

amount of loss suffered by Cardtronics after all efforts to recover against third

parties have been exhausted. By this reasoning, Underwriters have the unilateral—

although not expressly stated—right to extend the policy time limits until such

efforts are exhausted, and thus there are no contradictions in the policy’s terms.

      The contract policy does not actually contain the word “exhaust” or any

derivative thereof, although the parties agree that it could have been drafted to

contain such an explicit requirement. 4 Moreover, the policy’s claim and response

deadlines run from the time of loss, which Underwriters concede means the time of

the theft, not from the time claims against the motor carrier and its insurers are

“conclusively determined.”




4
      Underwriters concede that the following language would have been clearer:
      “Notwithstanding any other provision of this insurance policy, [Cardtronics] must
      exhaust [its] remedies against any armored vehicle company and its insurers
      before we [Underwriters] will pay a claim.” Such drafting could have
      unambiguously given the policy the meaning urged by Underwriters.

                                          15
      2.     The cases cited by Underwriters are distinguishable

      Because no Texas appellate court has addressed the policy language at issue,

Underwriters rely upon two federal decisions. Underwrites contend that these cases

stand for the proposition that when an insurance policy provides coverage that is

contingent on the insured not being able to recover from other parties, it is

insufficient for the insured to show that the other parties have refused to pay, and

the insured must instead exhaust judicial remedies against those parties. Because

the claims against Mount Vernon and its insurers are ongoing, how much

Cardtronics “cannot recover” from these sources is unresolved. And in the absence

of proof of how much Cardtronics “cannot recover,” Underwriters contend that

Cardtronics cannot establish that it has suffered a quantifiable, payable loss;

therefore, its claims against Underwriters are premature. First, Underwriters rely

on Sherwin-Williams Co. v. Insurance Co. of Pennsylvania, 105 F.3d 258 (6th Cir.

1997). Second, Underwriters cite to Manpower, Inc. v. Insurance Co. of

Pennsylvania, 807 F. Supp. 2d 806 (E.D. Wis. 2011). These cases are

distinguishable.

      a.     Sherwin-Williams

      In Sherwin-Williams, the United States Court of Appeals for the Sixth

Circuit considered a “difference in conditions” (DIC) policy issued by the

Insurance Company of the State of Pennsylvania. 105 F.3d at 259. That policy



                                        16
explicitly contemplated that the insured would maintain separate primary coverage.

Id. The policy “provide[d] coverage only to the extent that a loss [was] not covered

by or exceed[ed] the limits of the primary insurance,” and it provided that the

insurer “shall be liable for loss or damage only to the extent of that amount in

excess of the amount recoverable from such other insurance.” Id. at 259 & n.2

(emphasis added). Thus, the policy generally applied only as excess coverage, and

only applied “as primary insurance when a peril [therein] is not insured under a

specific primary policy.” Id. at 261.

      The Sherwin-Williams court was required to determine the meaning of the

policy’s “not insured” language under Ohio law. Id. at 261–62. The court

explained the differences between primary insurance, which is generally available

immediately upon the insured’s experience of loss, and excess coverage, which is

only available after the insured has exhausted primary coverage. Id. at 262.

Applying this principle, the Sixth Circuit found nothing in the policy language

“which purports to protect the insured against variations in the insurance coverage

available from other insurance carriers . . . .” Id. at 263 (internal quotation marks

omitted). The court also found that, even if Sherwin-Williams had brought suit

prematurely, it had already preserved its rights under the policy in question by

filing proofs of claim and suing primary carriers for relief. Id. Considering all of

these factors, the court held that Sherwin-Williams was required to exhaust its



                                         17
primary coverage before recovering under its excess policy with ISOP. Id. at 264.

The court made clear, however, that Sherwin-Williams would be permitted to show

on remand that it already had exhausted its primary coverage. Id.

      b.    Manpower

      In Manpower, the Eastern District of Wisconsin considered another

“difference in conditions” policy containing essentially the same “not insured”

term as the policy construed in Sherwin-Williams. 807 F. Supp. 2d at 806–07. As

in Sherwin-Williams, the insured sought coverage up to the policy’s limits. Id. at

807. The insurer responded, citing Sherwin-Williams, that the insured could not

establish a right to payment until it had exhausted coverage under a French primary

policy and the scope of the primary policy had been determined by a French court.

Id. at 807–08. Manpower countered that it had established a difference in

conditions as soon as the primary insurer closed its file and the difference-in-

conditions insurer began making payments. Id. at 808.

      The district court determined that neither party’s position was supported by

the contract. Id. The court held that “nothing in the DIC policy states that

Manpower must exhaust coverage under the local policy by taking legal action,”

but “[a]ll that Manpower must do is show that the DIC policy is broader” than the

local policy, which could be accomplished either through litigation in France or by




                                        18
presenting both policies to the district court. Id. The district court distinguished

Sherwin-Williams—the only case discussed in the opinion—as follows:

      But Sherwin–Williams does not hold that a policyholder must bring
      legal proceedings against a primary insurer before seeking coverage
      under a DIC policy. It holds only that the policyholder must establish
      that the amount of coverage available under the primary policy is less
      than the amount available under the DIC policy, and that a “mere
      denial of coverage” by the primary insurer does not automatically
      establish that coverage under the primary policy is unavailable.

Id. at 808 n.5 (emphasis added and citation omitted).

      c.    Sherwin-Williams and Manpower are distinguishable

      These cases do not apply to the dispute between Cardtronics and

Underwriters. Most importantly, both Sherwin-Williams and Manpower construed

excess policies, not primary policies. Both Sherwin-Williams and Manpower

address the extent to which an insured must pursue a recovery from a primary

insurer or demonstrate that no primary coverage is available before seeking

recovery from an excess insurer. Sherwin-Williams, 105 F.3d at 259; Manpower,

807 F. Supp. 2d at 806.

      Underwriters insist that the policies in those cases were not excess policies,

but merely “difference in conditions” policies. Under such a policy, coverage may

“drop down” to cover the entire loss if no primary coverage applies to the loss.

Underwriters argue that such policies are analogous to the policy issued to

Cardtronics. According to Underwriters, these cases therefore stand for the



                                        19
principle that exhaustion should be required whenever coverage under an insurance

policy is conditioned on the insured’s inability to recover from specifically named

or described third parties. Contrary to Underwriters’ interpretation, both Sherwin-

Williams and Manpower analyze the policies in question as being excess policies

in essence, if not in name. Underwriters make no effort to demonstrate that the

principles requiring exhaustion of primary insurance before recovering from an

excess carrier are applicable to recovery from non-insurer third parties before

recovery from a primary carrier.

      The policy held by Cardtronics is not an excess or “difference in conditions”

policy, but is the primary insurance held by Cardtronics for the covered types of

losses. It does not require Cardtronics to carry any additional coverage for losses

incurred in connection with an armored car company. Nor does it require

Cardtronics to mandate that its motor carriers are insured. The relationship

between a primary insurer and its insured is fundamentally different from other

types of relationships potentially involving a recovery for loss, such as between

Cardtronics and Mount Vernon or the Mount Vernon Trust. Underwriters argue

that the Cardtronics policy is explicitly “contingent” on inability to recover from

certain other sources. But the policy does not contain such an express requirement.

Further, all insurance is contingent, explicitly or implicitly, on the insured’s

experience of an actual loss that cannot be recovered immediately. If Cardtronics



                                        20
had recovered the stolen money and incurred no other losses before filing a proof

of claim, then Cardtronics would not be entitled to a recovery from Underwriters.

But those are not the facts before us, and there is nothing in the policy language

that requires Cardtronics to exhaust every possibility of recovery to establish that it

“cannot recover” under its contract with Mount Vernon or through any insurance

policies purchased by Mount Vernon.

      Further, both Sherwin-Williams and Manpower are based on policy

conditions providing that coverage was available only for amounts “not insured”

by other policies. Sherwin-Williams, 105 F.3d at 261; Manpower, 807 F. Supp. 2d

at 807. The policy before us, on the other hand, states merely that Underwriters

“will only pay for the amount of loss [Cardtronics] cannot recover” from certain

third parties. These are different conditions, and there is no reason to treat them as

imposing essentially the same burdens on the insured parties.

      Thus, Sherwin-Williams and Manpower are not persuasive authority, given

that they each construed a different type of policy with different language.

      3.     The policy required Cardtronics to pursue its claims against
             Underwriters

      The policy does not explicitly require Cardtronics to exhaust its remedies

against third parties before bringing suit against Underwriters. On the contrary, it

requires Cardtronics to bring only one suit: suit against Underwriters must be

“brought within 2 years from the date [Cardtronics] discover[ed] the loss.”


                                          21
Although the policy does not define “loss,” it defines “discovery of loss” as

occurring “when [Cardtronics] first become[s] aware of facts which would cause a

reasonable person to assume that a loss covered by this policy has been or will be

incurred, even though the exact amount or details of loss may not then be known.”

(emphasis added). The indictment and arrest of Mount Vernon’s former president

for theft of client funds, including funds entrusted to Mount Vernon by

Cardtronics, constituted a discovery of loss because any reasonable person would

believe that a loss covered by the policy had been or would be incurred. By the

policy’s plain terms, Cardtronics was required to submit a proof of loss within 120

days of learning of the facts underlying that arrest. The policy then required

Underwriters to accept or reject the claim within 45 days and pay it within five

days of that decision. When Underwriters failed to do so, Cardtronics was

obligated to bring suit within two years of learning of the facts leading to the

arrest, if it was unable to recover its loss before that time. It is undisputed that

Cardtronics was obligated to take reasonable steps to secure Underwriters’ rights

of recovery from third parties before filing a proof of claim. It is also undisputed

that Cardtronics did so, yet was unable to recover its loss before submitting its

claim or bringing suit.

      Underwriters’ alternative interpretation, that the policy’s coverage will not

be triggered until the amount of the loss is conclusively determined, is not



                                        22
reasonable. Such an interpretation would require us to “isolat[e] from its

surroundings or consider[] apart from other provisions a single phrase, sentence, or

section of a contract,” namely subparagraph E.4.A. Beaston, 907 S.W.2d at 433. In

other words, because the policy is silent as to a deadline for when Cardtronics must

demonstrate what it “cannot recover” before payment from Underwriters is

triggered, the “conclusive determination” language urged by Underwriters’

interpretation is unduly restrictive and too stringent a test. In any event, an explicit

statement of such a requirement is wholly absent from the policy. The policy could

easily have imposed such a condition explicitly. Indeed, certain types of losses not

relevant here are only recoverable under the policy after “final adjudication” of

certain claims. There is no reason to add to the plain language of the policy the

restrictions which Underwriters seek to place on the “cannot recover” language.

   a. The policy’s use of the word “contingent”

      Underwriters argue that the policy’s use of the word “contingent” mandates

the interpretation that Underwriters’ liability under the policy is contingent on the

ultimate inability of Cardtronics to recover some amount of its loss. As support,

Underwriters point to the cover note’s description of the policy as “Automated

Teller Machine and Contingent Cash in Transit insurance.” (emphasis added,

capitalization original). According to Underwriters, “contingent” in this context

modifies “insurance,” that is, the nature of the policy itself. Underwriters argue that



                                          23
Cardtronics therefore has not suffered a compensable loss “until it can be

conclusively determined how much Cardtronics cannot recover from [Mount

Vernon] or the [Mount Vernon] Insurers.” We reject this interpretation for four

reasons.

      First, Underwriters’ interpretation ignores the fact that the cover note itself

identifies a “Sum Insured” for “Contingent Cash in Transit,” namely “USD

25,000,000 any one accident or occurrence.” It also refers to “Lockton

International ATM & Contingent Cash in Transit wording (USA).” The word

“insurance” does not appear in either of these contexts. These uses indicate that

“contingent” modifies “cash in transit” in the phrase “Automated Teller Machine

and Contingent Cash in Transit insurance,” and not “insurance.”5

      Second, the phrase “contingent cash in transit” appears only in the first two

pages of declarations; it does not appear in the “insuring agreements” in Section A

of the policy, in the limitations or exclusions, or anywhere else. The policy does

not define “contingent,” “contingent cash,” “contingent cash in transit,” or

“Contingent Cash in Transit insurance.” These facts counsel against reading the

cover note’s identification of the policy’s type as “Automated Teller Machine and


5
      In their motion for rehearing, Underwriters suggest that we have taken judicial
      notice of sources outside the four corners of the policy in concluding that
      “contingent” can modify “cash in transit.” However, we base our analysis entirely
      on the document’s own terms.


                                         24
Contingent Cash in Transit insurance” as creating a substantive obligation on

Cardtronics to exhaust its remedies before bringing a claim. 6

      Third, as we have already observed, all insurance is contingent on the

occurrence of some event. It would render the word “contingent” effectively

meaningless to read it as merely standing for the fact that coverage is contingent on

the occurrence of a covered event and satisfaction of the policy’s terms. We must

prefer interpretations that give all provisions of the contract meaning. See SA-

OMAX, 374 S.W.3d at 598. We therefore will not construe “contingent” as having

no meaning, nor will we attribute to this lone word such a sweeping meaning as to

impose a substantive obligation on Cardtronics to exhaust its remedies.

      Fourth, the “last antecedent” doctrine, while it “is neither controlling nor

inflexible,” compels us to read “contingent” as modifying “cash in transit” here.

E.g., Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580–81 (Tex. 2000)

(explaining “last antecedent” doctrine as applied to statutory texts and

6
      On rehearing, Underwriters argue that our holding will have sweeping effects on
      other types of insurance not before us. For example, Underwriters point to Custom
      Companies, Inc. v. North Rivers Insurance Co., No. 11 C 8367, 2013 WL 441170
      (N.D. Ill. Feb. 5, 2013) (mem. op.). In Custom Companies, a federal district court
      construed an insurance policy containing a “Contingent Cargo Liability
      Endorsement” and held that the insurer’s liability was subject to an offset for
      amounts recovered from third parties. 2013 WL 441170, at *2, *7. The nature of
      the policy was not disputed. Id. Custom Companies is thus distinguishable. First, it
      involved a contract not before this court. Second, the “Contingent Cargo Liability
      Endorsement” in that case explicitly provided only excess coverage. Id. Finally, no
      party appears to have suggested in that case that the use of the word “contingent”
      in a caption was controlling and created substantive rights or obligations; thus, the
      court did not consider the same type of argument raised by Underwriters.

                                           25
constitutions); Samano v. Sun Oil Co., 621 S.W.2d 580, 581–82 (Tex. 1981)

(holding that “the correct rule” in interpreting contracts is that “modifiers are

intended to refer to the words closest to them in the sentence”); Montanye v.

Transamerica Ins. Co., 638 S.W.2d 518, 521 (Tex. App.—Houston [1st Dist.]

1982, no writ) (applying doctrine to Texas Insurance Code). Under the “last

antecedent” doctrine, a canon of contract and statutory construction, “relative and

qualifying words, phrases and clauses are to be applied to the words or phrases

immediately preceding, and are not to be construed as extending to or including

others more remote.” Montanye, 638 S.W.2d at 521. Further, “modifiers are

intended to refer to the words closest to them in [a] sentence.” Samano, 621

S.W.2d at 581–82. If we can do so without “impairing the meaning” of the policy’s

language, we should interpret “contingent” as modifying “cash in transit,” rather

than “insurance.” Spradlin, 34 S.W.3d at 580. This interpretation is reasonable

because Cardtronics leased the “cash in transit” from Bank of America and placed

it in transit only to refill automatic teller machines on an as-needed basis, with

unneeded cash returned to Mount Vernon’s vaults. The amount and status of the

cash as “in transit” are both contingent on the replenishment needs of Cardtronics’s

automated teller machines. Further, as we have already noted, the cover note uses

the term “Contingent Cash in Transit” both with and without reference to




                                        26
“insurance,” implying that “insurance” cannot be the modified term in all uses of

this phrase.

      b.       Additional policy provisions

      Three other policy provisions also support construction of the policy as not

requiring exhaustion. First, the only duties expressly imposed on the policyholder

in the event of a loss are those set forth in subparagraph E.1.G of the policy,

entitled “Duties In The Event Of Loss.” Nowhere in the policy—not even in this

section setting forth the insured’s duties in the event of a loss—does it state that

Underwriters need not pay the loss unless there has been a final adjudication

concerning the responsibility of specified third parties to pay for the insured’s loss.

Nor does the policy require the policyholder to institute suit or make a claim

against a potentially responsible third party, nor does it contain any terms

governing the recovery of expenses relating to seeking payment from a third party.

It only requires that the policyholder notify Underwriters of the loss; submit to an

examination under oath if requested; provide a detailed, sworn proof of loss within

120 days of learning of the loss; and cooperate with Underwriters in the

investigation and settlement of any claim.

      Second, the policy-imposed deadline for making a claim against

Underwriters and the absence of any provision extending the deadline in order for

the policyholder to exhaust claims against third parties support this construction.



                                          27
Subparagraph E.1.M provides that Cardtronics could bring legal action against

Underwriters only if it has complied with all terms of the policy and if at least

ninety days have elapsed from the filing of a proof of loss, and then only “within 2

years from the date [Cardtronics] discover[ed] the loss.” Under the policy,

“Discovery of loss occurs when [Cardtronics] first become[s] aware of facts which

would cause a reasonable person to assume that a loss covered by this policy has

been or will be incurred, even though the exact amount or details of loss may not

then be known.” (emphasis added). Thus, the policy required Cardtronics to pursue

its claim even though there is uncertainty regarding its amount—uncertainty that

could be created because of potential claims against third parties or unresolved

existing claims against third parties.

      Third, subparagraph E.1.X—the provision of the policy entitled “Transfer

Of Your Rights Of Recovery Against Others To Us”—also supports this

construction. That subparagraph provides for subrogation in the event that

Underwriters pay a loss. It states:

      You must transfer to us all your rights of recovery against any person
      or organization for any loss you sustained and for which we have paid
      or settled. You must also do everything necessary to secure those
      rights and do nothing after loss to impair them.

      We agree with Cardtronics that these various terms can be harmonized by

construing “cannot recover” to mean that Underwriters must pay only the amounts

that Cardtronics did not recover despite taking reasonable steps to secure


                                         28
Underwriters’ claims against Mount Vernon and its insurers by the time that

Cardtronics submitted its proof of loss. Thus, the policy does not require

Cardtronics to exhaust its remedies against third parties such as Mount Vernon

before filing suit against Underwriters or obtaining a recovery in such a suit. In the

event that Underwriters must pay a claim before any third party claims are

resolved, Underwriters retain their subrogation rights and would be entitled to

pursue such claims, subject to the distribution scheme set forth in the policy for

any recovery.

      Under our construction, Underwriters will not have to pay for more than the

ultimate loss suffered by Cardtronics. The issue is not the amount that

Underwriters will ultimately pay but the timing of Underwriters’ payment. 7 And

our construction grants Underwriters more control over determining the amount of

the loss as well as the timing of the litigation because it will be able to control the

litigation against the third parties. Finally, our construction does not reduce

Cardtronics’s incentives to recover from third parties before the contractually

imposed deadlines; if Cardtronics believes it can recover more quickly from the


7
      To illustrate, if the loss is $3 million, Underwriters are required to pay timely that
      amount. If a third party is subsequently determined to have responsibility for $1
      million of the loss and pays this amount, then Underwriters will, after that
      recovery, sustain a net loss of $2 million. Its net payment is the same if the policy
      is interpreted to require the policyholder to pursue the third party claim (assuming
      it is resolved in the same manner). The difference is the timing of the payment and
      the risks and costs associated with pursuing the third party claim.

                                            29
third parties than it can from Underwriters, it certainly has incentive to pursue such

claims. Moreover, Underwriters could contend—although they did not do so

here—that the policyholder did not take reasonable steps to secure Underwriters’

claims against third parties before the contract deadlines.

      In conclusion, we hold that “cannot recover” applies at the time of the proof

of loss, which gives meaning to all provisions of the policy and therefore is not

unreasonable. Contracts should be interpreted to avoid rendering a provision

meaningless, such as the deadlines imposed by the policy. It is therefore reasonable

to interpret subparagraph E.4.A’s “cannot recover” to mean “cannot recover at the

time the insured submits its proof of loss within 120 days of when the insured

learns of the loss.”

      Because we hold that Cardtronics was not required to exhaust its remedies

against third parties, we hold that Cardtronics is entitled to payment of its claim in

full, with a credit for the amount already paid by Underwriters. We therefore

overrule Underwriters’ first issue. Underwriters’ second and third issues are

premised on the assumption that Cardtronics was required to exhaust its remedies

against third parties; those issues are therefore likewise overruled.

                                     Conclusion

      Because the time limits contained in the policy cannot be reconciled with a

policy construction requiring Cardtronics to determine conclusively what it



                                          30
“cannot recover” from Mount Vernon and its insurers, the trial court did not err in

concluding that Cardtronics had no duty to exhaust its remedies. Because coverage

was triggered immediately and Underwriters do not dispute that Cardtronics

suffered a covered loss, Cardtronics’s claim is immediately payable. We affirm the

grant of partial summary judgment to Cardtronics and remand to the trial court for

further proceedings.




                                             Harvey Brown
                                             Justice

Panel consists of Justices Jennings, Sharp, and Brown.




                                        31
