                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00130-CV


ILLINOIS UNION INSURANCE                                     APPELLANT
COMPANY

                                     V.

SABRE HOLDINGS                                               APPELLEES
CORPORATION, SITE 59.COM
LLC, TRAVELOCITY.COM LP,
TRAVELOCITY.COM LLC AND
SABRE INC.


                                  ----------

         FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
                   TRIAL COURT NO. 048-252770-11

                                  ----------

                       MEMORANDUM OPINION 1

                                  ----------

     The question in this appeal is whether an insured properly invoked

coverage for the reimbursement of defense costs under an excess insurance


     1
      See Tex. R. App. P. 47.4.
policy. After a partial summary judgment ruling that the insured did properly

invoke coverage under the excess policy, the trial court rendered a final judgment

in the insured’s favor. We affirm.

                                     Background

      Beginning in December 2004, appellees Sabre Holdings Corporation, Site

59.com LLC, Travelocity.com LP, Travelocity.com LLC, and Sabre Inc.

(collectively, Sabre) were sued by various governmental entities for allegedly

failing to fully remit hotel taxes collected from consumers. In March 2004, Sabre

had obtained a primary insurance policy from American International Specialty

Lines Insurance Company (“AISLIC”) and an excess policy from appellant Illinois

Union Insurance Company; the policy period for both policies began March 15,

2004 and ended March 15, 2005.

      Sabre’s insurance broker notified AISLIC in writing of the first three suits

on March 11, 2005. AISLIC acknowledged that its policy provided coverage for

the suits and provided periodic payments totaling $15 million, the primary policy’s

limit, for defense costs. On December 14, 2010, Sabre sent a letter to Illinois

Union’s policy representative, ACE USA. In the letter, Sabre’s associate general

counsel stated,

             As you know, Illinois Union and its authorized claims
      representative, ACE USA (“Ace”), were previously notified, pursuant
      to the Policy, that aggregate limits of the [AISLIC] Underlying Policy
      could be exhausted within a year. To date, Illinois Union and Ace
      have not stated whether coverage has been accepted or rejected
      and whether Illinois Union will comply with its obligation to step in as
      the primary carrier once the Underlying Policy has been exhausted.


                                         2
              . . . It is anticipated that once the AISLIC policy is exhausted,
      Illinois Union will continue the defense of Sabre and provide Sabre
      with insurance benefits until the aggregate limits of the [excess]
      Policy have been exhausted.

Illinois Union subsequently denied coverage under the excess policy, contending

that its policy is a “follow-form policy which means that it follows all of the terms

and conditions of the primary policy. As such, this claim would have to have

been reported to ACE during the same policy period as it was reported to”

AISLIC.

      On September 10, 2012, AISLIC notified Sabre that the limits of the

primary policy had been fully exhausted. Sabre sued Illinois Union seeking a

declaratory judgment that it was entitled to coverage for defense costs under the

Illinois Union policy; it also sought attorney’s fees.     Illinois Union answered,

raising numerous affirmative defenses to coverage, including that Sabre did not

timely report the claim.    During discovery, the parties stipulated that Illinois

Union’s only defense to Sabre’s allegation that Illinois Union has a duty to

defend 2 the ongoing tax-related suits against Sabre “is that Sabre did not report

AISLIC Claim No. 656-000351 to Illinois Union during the period of the Illinois

Union policy.”

      Sabre filed a traditional motion for summary judgment seeking to have the

policy construed as a matter of law.         Illinois Union filed its own motion for

      2
        During this litigation, Sabre’s claim changed from seeking a continuation
of its defense to a reimbursement for defense costs expended in defending the
suits.


                                         3
summary judgment but did not file any counterclaims. The trial court denied

Illinois Union’s motion and granted Sabre’s; in the same order, the trial court

overruled both Illinois Union’s and Sabre’s objections to the other’s summary

judgment evidence.

      After granting the summary judgment, the trial court allowed Sabre to

amend its petition to include claims for breach of contract and violation of the

Prompt Payment of Claims Act (PPA). Tex. Ins. Code Ann. §§ 542.051–.061

(West 2009 & Supp. 2014).        After granting the amendment, the trial court

rendered a final judgment incorporating the declaratory judgment relief it granted

in the summary judgment order and also awarding Sabre damages for breach of

contract and violation of the PPA. Illinois Union challenges only the underlying

summary judgment rulings upon which the final judgment is based.

                              Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).         A plaintiff is entitled to

summary judgment on a cause of action if it conclusively proves all essential


                                        4
elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710

S.W.2d 59, 60 (Tex. 1986).

      When both parties move for summary judgment and the trial court grants

one motion and denies the other, the reviewing court should review both parties’

summary judgment evidence and determine all questions presented.              Mann

Frankfort, 289 S.W.3d at 848; see Myrad Props., Inc. v. Lasalle Bank Nat’l Ass’n,

300 S.W.3d 746, 753 (Tex. 2009).         The reviewing court should render the

judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d

at 848.

                       Grounds for Summary Judgment

      On appeal, Illinois Union challenges the summary judgment rulings for

Sabre on which the remainder of the final judgment is based. Whether Sabre is

entitled to recover on its breach of contract and PPA claims depends on whether

it properly invoked coverage under Illinois Union’s policy.

      An appellant must attack every ground upon which summary judgment

could have been granted to obtain a reversal. Malooly Bros., Inc. v. Napier, 461

S.W.2d 119, 121 (Tex. 1970); Columbia Lloyds Ins. Co. v. Mao, No. 02-10-

00063-CV, 2011 WL 1103814, at *7 (Tex. App.––Fort Worth Mar. 24, 2011, pet.

denied) (mem. op.). Here, Sabre raised the following grounds in its summary

judgment motion: (1) by its plain language, the excess policy does not require

that notice be given until the primary policy’s limits are almost exhausted; it does

not require that notice be given at the same time as notice is required under the


                                         5
primary policy; or (2) alternatively, the primary policy is only a claims-made, not

claims-made-and-reported, policy and Illinois Union has not and cannot show

actual prejudice from the delay between the end of the policy period and the date

Sabre gave notice. As relief, Sabre requested that the trial court

      enter the requested declarations that: (1) notice was timely provided
      by Sabre to Illinois Union; and (2) Illinois Union is required to
      immediately assume the defense of AISLIC Claim No. 656-000351-
      001[,] . . . [and grant] summary judgment on Illinois Union’s
      affirmative defense of untimely notice because Illinois Union cannot,
      as a matter of law, prove it suffered prejudice as a result of any
      untimely notice.

      Illinois Union’s issues on appeal are (1) whether its policy provided

coverage on the same basis as the primary policy, which it contends is a claims-

made-and-reported policy and, if not, (2) whether any constructive notice from

Sabre excuses its late reporting, or (3) whether Sabre is required to show actual

prejudice from the late notice to defeat coverage.        Because all of Sabre’s

summary judgment grounds and requested relief involve the timeliness of its

notice of claim and because Illinois Union addresses all of Sabre’s arguments

regarding the timeliness of the claim in its issues on appeal, we conclude and

hold that Illinois Union has challenged all possible grounds upon which the trial

court could have granted Sabre’s motion for summary judgment. 3



      3
        Although Illinois Union did not directly challenge the damage awards for
breach of contract and violations of the PPA awarded in the final judgment, if we
determine that the trial court erred by denying Illinois Union’s summary judgment
motion and granting Sabre’s, we must reverse the entire judgment because the
trial court’s judgment on both of those claims is premised on the declaratory

                                         6
                     Notice Required Under Excess Policy

      In its first issue, Illinois Union contends that the trial court erred by ruling

for Sabre because its policy followed form to the primary policy, which is a

claims-made-and-reported policy; thus, Illinois Union argues that Sabre was

required to––but did not––notify both insurers no later than the end of the primary

policy’s policy period or extended reporting period in order to invoke coverage

under the excess policy.

Applicable Rules of Construction

      Generally, courts construe insurance policies according to the same rules

of construction that apply to contracts. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.

v. Crocker, 246 S.W.3d 603, 606 (Tex. 2008); Robertson v. Home State Cnty.

Mut. Ins. Co., 348 S.W.3d 273, 277 (Tex. App.––Fort Worth 2011, pet. denied)

(en banc op. on reh’g). Enforcing the parties’ expressed intent is our primary

concern. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994) (op. on

reh’g); Robertson, 348 S.W.3d at 277. The policy’s terms are given their ordinary

and generally accepted meanings unless the policy shows that the words were

meant in a technical or different sense. Gilbert Tex. Constr., L.P. v. Underwriters

at Lloyd’s London, 327 S.W.3d 118, 126 (Tex. 2010) (op. on reh’g); Robertson,

348 S.W.3d at 277. If terms in the contract can be given a definite or certain

legal meaning, they are not ambiguous, and the court will construe the contract

judgment relief sought by Sabre in its motion for summary judgment and
awarded by the trial court in its summary judgment order.


                                          7
as a matter of law. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc.,

907 S.W.2d 517, 520 (Tex. 1995) (op. on reh’g); Robertson, 348 S.W.3d at 277.

However, if a contract of insurance is susceptible to more than one reasonable

interpretation and is, thus, ambiguous, we must resolve the uncertainty by

adopting the construction that most favors the insured even if the construction

urged by the insurer appears to be more reasonable or a more accurate

reflection of the parties’ intent. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v.

Hudson Energy Co., 811 S.W.2d 552, 555 (Tex. 1991); Robertson, 348 S.W.3d

at 277. An ambiguity does not exist simply because the parties interpret a policy

differently. See Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.

2003); Robertson, 348 S.W.3d at 277.

      Texas courts follow the eight corners rule in determining an insurer’s duty

to defend. Ewing Const. Co. v. Amerisure Ins. Co., 420 S.W.3d 30, 33 (Tex.

2014). Under that rule, courts look to the facts alleged within the four corners of

the pleadings, measure them against the language within the four corners of the

insurance policy, and determine if the facts alleged present a matter that could

potentially be covered by the insurance policy. Id. We generally do not look

outside the pleadings and the policy.        However, with respect to documents

referred to in the policy to be construed, the supreme court has recently held,

      [W]hile our inquiry must begin with the language in an insurance
      policy, it does not necessarily end there. In other words, we
      determine the scope of coverage from the language employed in the
      insurance policy, and if the policy directs us elsewhere, we will refer
      to an incorporated document to the extent required by the policy.


                                         8
In re Deepwater Horizon, No. 13-0670, 2015 WL 674744, at *5 (Tex. Feb. 13,

2015).

       In interpreting the policy, we attempt to give a reasonable meaning to all

provisions rather than interpret it so that one part is inexplicable or creates

surplusage. Liberty Mut. Ins. Co. v. Am. Emp’rs Ins. Co., 556 S.W.2d 242, 245

(Tex. 1997); United States Fire Ins. Co. v. Gnade, No. 10-03-00289-CV, 2005

WL 552473, at *2 (Tex. App.––Waco Mar. 9, 2005, pet. denied) (mem. op.).

Excess Policy’s Terms

       Illinois Union argues (1) that its policy “follows form” to AISLIC’s primary

policy and (2) that because AISLIC’s policy required Sabre to provide written

notice of a claim before expiration of the policy period or extended reporting

period to invoke coverage, Sabre was required to do the same under the excess

policy to invoke coverage under that policy.

       Some of the relevant terms of Illinois Union’s policy are as follows:

   •   In the declarations page, “UNLESS OTHERWISE PROVIDED IN THE

       FOLLOWED POLICY, THIS POLICY IS A CLAIMS MADE POLICY

       WHICH     COVERS      ONLY     CLAIMS     FIRST    MADE     AGAINST     THE

       INSUREDS DURING THE POLICY PERIOD.” The Declarations page also

       defines the primary policy as the “Followed Policy”:               “American




                                          9
      International   Specialty   Lines   Insurance    Company   Policy   Number:

      00640972.” 4

  •   Under the title, “INSURING CLAUSE,” the following:

              In consideration of the payment of the premium and in reliance
      upon all statements made in the application including the information
      furnished in connection therewith, and subject to all terms,
      definitions, conditions, exclusions and limitations of this policy, the
      Insurer agrees to provide insurance coverage to the Insureds in
      accordance with the terms, definitions, conditions, exclusions and
      limitations of the Followed Policy, except as otherwise provided
      herein.

      This section was amended by a Non-Follow Form endorsement, as

      discussed in more detail below.

  •   In the Definitions section, “The terms ‘Claim’ and ‘Loss’ have the same

      meanings in this policy as are attributed to them in the Followed Policy.”

  •   In the section regarding any primary policies,

             This policy is subject to the . . . same terms, definitions,
      conditions, exclusions and limitations (except . . . as otherwise
      provided herein) as are contained in or as may be added to the
      Followed Policy . . . . In no event shall this policy grant broader
      coverage than would be provided by any of the Underlying Policies.

  •   In the same section, “As a condition precedent to coverage under this

      policy, the Insureds shall give to the Insurer as soon as practicable written



      4
      An endorsement issued after the fact defines the Followed Policy as
number 6409472 issued by American International Specialty Lines Insurance
Company. The number on the primary policy is listed as 640-94-72. Therefore,
the policy numbers in both the original Declarations page and endorsement
appear to be referring to the same AISLIC policy.


                                          10
    notice and the full particulars of . . . the exhaustion of the aggregate limit of

    liability of any Underlying Policy.”

•   Under the “GENERAL CONDITIONS” section, “Discovery Period Premium:

    If the Insureds elect a discovery period or extended reporting period

    (‘Discovery Period’) as set forth in the Followed Policy following the

    cancellation or non-renewal of this policy, the Insureds shall pay to the

    Insurer the additional premium set forth in Item 6 of the Declarations.”

•   In the same section, “Notice: All notices under this policy shall be given as

    provided in the Followed Policy and shall be properly addressed to the

    appropriate party at the respective address as shown in the Declarations.”

•   Also under the “GENERAL CONDITIONS” heading, “Claim Participation:

    The Insurer shall have the right, but not the duty, and shall be given the

    opportunity to effectively associate with the Insureds in the investigation,

    settlement or defense of any Claim even if the Underlying Limit has not

    been exhausted.”

•   And, finally, also under the same section, “Changes and Assignment:

    Notice to or knowledge possessed by any person shall not effect waiver or

    change in any part of this policy or estop the Insurer from asserting any

    right under the terms of this policy.”




                                           11
Primary Policy’s Terms

       Illinois Union argues that its policy, especially the notice section,

incorporates all of the notice provisions in the primary policy. The relevant terms

of that policy are set forth below:

   •   On the Declarations page, “THIS POLICY CONTAINS ONE OR MORE

       COVERAGE MODULES. CERTAIN LIABILITY COVERAGE PARTS OF

       THIS POLICY ARE LIMITED TO LIABILITY FOR CLAIMS THAT ARE

       FIRST MADE AGAINST THE INSUREDS DURING THE POLICY PERIOD

       AND REPORTED IN WRITING TO THE INSURER AS REQUIRED.”

   •   In the Introduction of the Insuring Agreements section,

              For Coverages A and B, and all other claims made and
       reported coverage in this policy, solely with respect to claims first
       made against an insured and reported to us during the policy period
       or any applicable extended reporting period, and subject to the other
       terms, conditions, exclusions and other limitations of this policy, this
       policy affords the following coverage[.]

       Coverage is then defined and explained in various coverage “modules.”

   •   In the Definitions section, “‘Claim’ means . . . (1) a written or oral demand

       for money, services, non-monetary relief or injunctive relief; or (2) a suit.”

   •   “‘Loss’ means the total sum of damages and claim expenses.”                 The

       definition of “Claim expenses” includes defense costs.

   •   Under the “NOTICE AND AUTHORITY” section, “Notice in connection with

       this policy shall be given in writing to us (i) in the case of claims, as

       provided in Paragraph 7(b) . . . .”



                                             12
•   In section 7(b)(1), “With respect to claims or circumstances, notice and all

    other information and documentation required to be provided under this

    policy should be directed to us c/o AIG Technical Services, Inc.,

    Professional Liability Division, at our address indicated In the Declarations.

    To be effective, such notice must reference this policy.”

•   In section 7(b)(2), as amended by endorsement #5,

          For any and all coverage under this policy afforded on a
    claims made and reported basis:

           (a) before coverage will apply, an insured must notify us in
    writing of a claim made against an insured as soon as practicable
    after notice of such claim is reported to any personnel in your office
    of the General Counsel, Office of the Chief Financial Officer or risk
    management department;

           (b) if an insured has notified us in writing of a claim pursuant
    to Subparagraph 7(b)(2)(a) above, then any claim which is
    subsequently made against an insured and reported to the insurer
    alleging, arising out of, based upon or attributable to the facts
    alleged in the claim for which such notice has been given, or alleging
    any wrongful act which is the same as or related to any wrongful act
    alleged in the claim of which such notice has been given, shall be
    considered related to the first claim and made at the time such
    notice was given; and

           (c) if during the policy period or during an applicable extended
    reporting period an insured shall become aware of any
    circumstances which may reasonably be expected to give rise to a
    claim being made against an insured for a wrongful act that occurs
    prior to the end of the policy period, and, during the policy period or
    any applicable extended reporting period, an insured gives written
    notice to us of (i) such circumstances, (ii) the wrongful acts
    allegations anticipated and (iii) the reasons for anticipating such a
    claim, with full particulars as to dates, persons and entities involved,
    then any claim that is subsequently made against an insured arising
    out of such wrongful act or the same wrongful act or series of
    continuous, repeated or related wrongful acts, shall be treated as a


                                      13
      claim made against such insured and reported to us at the time such
      notice of such circumstances was given.

Excess Policy Does Not Follow Form to Reporting Requirements of Primary

      Illinois Union argues that the section of its policy that states, “All notices

under this policy shall be given as provided in the Followed Policy and shall be

properly addressed to the appropriate party at the respective address as shown

in the Declarations,” means that Sabre was required to provide notice of the

underlying hotel-tax suits against it to Illinois Union in addition to AISLIC before

the expiration of the primary policy’s reporting period in order for the claim to be

covered by the excess policy.

      According to Illinois Union, the analysis is simple: the primary policy is a

claims-made-and-reported policy, and the excess policy follows form to the

primary policy; therefore, coverage under the excess policy is also on a claims-

made-and-reported basis, especially given the notice provision in section 7(a) of

the excess policy.     However, interpretation of the excess policy is more

problematic due to the Non-Follow Form endorsement that was added. That

endorsement amended the Insuring clause so that it states, in full, as follows:

      I.    INSURING CLAUSE

      In consideration of the payment of the premium and in reliance upon
      all statements made in the application including the information
      furnished in connection therewith, and subject to all terms,
      definitions, conditions, exclusions and limitations of this policy, the
      Insurer agrees to provide insurance coverage to the insureds in
      accordance with the terms, definitions, conditions, exclusions and
      limitations of the Followed Policy, except as otherwise provided
      herein. However, the Insurer shall not provide Insurance coverage


                                        14
      to the Insureds in accordance with the terms and conditions,
      including those pertaining to Guaranteed Renewal as set forth in the
      endorsement of the American International Specialty Lines
      Insurance Company, Policy Number 006409472, as that coverage is
      provided under the American International Specialty Lines Insurance
      Company’s Policy. [Bold and italics emphasis added.]

      We construe policies and their endorsements together unless they are so

much in conflict that they cannot be reconciled.       Plantation Pipe Line Co. v.

Highlands Ins. Co., 444 S.W.3d 307, 311 (Tex. App.––Eastland 2014, pet. filed);

Mesa Operating Co. v. Cal. Union Ins. Co., 986 S.W.2d 749, 754 (Tex. App.––

Dallas 1999, pet. denied).     The language added by the endorsement at first

glance appears to render the insuring clause ambiguous.                 It seemingly

contradicts itself, stating that the excess policy follows form to the primary policy,

yet does not follow form to the primary policy. Thus, we must look further to

determine if these two sentences can be reconciled so as not to create a nullity.

      The clause could be read as referring to two different policies: the excess

policy follows form to policy number 6409472 but not policy number 006409472.

However, the only difference in the numbers is the addition of the zeroes at the

beginning.   And item 8 on the Declarations page, “Schedule of Underlying

Policies,” which was not amended by endorsement, lists the primary policy as

“American International Specialty Lines Insurance Company 006409472.”

Accordingly, we do not believe this interpretation is reasonable. See also, supra,

note 4.




                                         15
      Upon close inspection of the two parts of the clause together, it can be

discerned that three key words are not included in the nonfollow form language

that are included in the follow form language:        definitions, exclusions, and

limitations. Thus, the insuring clause as amended by the endorsement could be

reasonably interpreted to mean that the excess policy follows form to the

definitions, exclusions, and limitations of the primary policy but not the terms and

conditions of the primary policy. 5 Because the reporting requirements in the

primary policy are more properly characterized as conditions rather than

definitions, exclusions, or limitations, the amended insuring clause can be read

as not incorporating the notice conditions of the primary policy. See Love of God

Holiness Temple Church v. Union Std. Ins. Co., 860 S.W.2d 179, 180 (Tex.

App.––Texarkana 1993, writ denied).

      Although this interpretation appears to conflict with other sections of the

policy, 6 it is the only reasonable way to resolve the apparent conflict in the two

      5
        This interpretation would still provide coverage under the excess policy,
which expressly incorporates the definitions of “Claim” and “Loss” in the primary
policy; those definitions, along with other definitions incorporated within them,
help define the scope of coverage in the primary policy.
      6
        For instance, in the “UNDERLYING INSURANCE” section, the excess
policy states that it is “subject to . . . the same terms, definitions, conditions,
exclusions and limitations (except as regards the premium, the limits of liability,
the policy period and except as otherwise provided herein) as are contained in or
may be added to the Following Policy . . . . In no event shall this policy grant
broader coverage than would be provided by any of the Underlying Policies.”
Additionally, the Discovery Reporting Period and claim participation sections
appear to contemplate that Illinois Union would be given notice of claims within
the primary policy’s reporting period.


                                        16
sentences of the clause. See Fiess v. State Farm Lloyds, 202 S.W.3d 744, 751

(Tex. 2006) (construing seemingly conflicting parts of same clause to effect

reasonable result). Accordingly, we conclude and hold that the excess policy,

regardless of any apparent intent between the parties, does not follow form to the

reporting requirements in the primary policy.        We must therefore look to the

notice provision in the excess policy itself, which Illinois Union also contends

incorporates the reporting requirements in the primary policy.

Excess Policy’s Notice Provision Does Not Incorporate Primary’s Reporting
Requirements

      The excess policy contains a stand-alone notice provision, which states,

“Notice: All notices under this policy shall be given as provided in the Followed

Policy and shall be properly addressed to the appropriate party at the respective

address as shown in the Declarations.” [Emphasis added.] Only two provisions

in the excess policy require the giving of notice:

   C. If during the Policy Period or any Discovery Period the terms,
      definitions, conditions, exclusions or limitations of the Followed
      Policy are changed in any manner, the Insureds shall as a condition
      precedent to coverage under this policy give to the Insurer written
      notice of the full particulars thereof as soon as practicable but in no
      event later than 30 days following the effective date of such change.
      This policy shall become subject to any such changes upon the
      effective date of the changes in the Followed Policy, provided that
      the Insureds shall pay any additional premium reasonably required
      by the Insurer for such changes.

      [the following paragraph is added, not substituted or replaced, by
      endorsement number 5]

      If the terms, definitions, conditions, exclusion or limitations of the
      Underlying Policies are changed in any manner during the Policy


                                         17
      Period of this policy, or differ in any respect from the binders for such
      Underlying Policies:

         1. It is a condition precedent to coverage under this policy
            that the Insureds give to the Insurer written notice as
            soon as practicable of the full particulars thereof. If
            such written notice is not provided, such changes shall
            not apply to this Policy. If such written notice is
            provided,
         2. Such changes shall apply to this policy upon the
            effective date of the changes to the Underlying
            Policy(ies) only if the Insureds pay any reasonable
            additional premium required by the Insurer.

   D. As a condition precedent to coverage under this policy, the Insureds
      shall give to the Insurer as soon as practicable written notice and the
      full particulars of (i) the exhaustion of the aggregate limit of liability of
      any Underlying Policy, (ii) any Underlying Policy not being
      maintained in full effect during the Policy Period, or (iii) an insurer of
      any Underlying Policy becoming subject to a receivership,
      liquidation, dissolution, rehabilitation or similar proceeding or being
      taken over by any regulatory authority.

      To construe both of these provisions as requiring concurrent notice of such

circumstances to AISLIC would not be reasonable because these specific

sections deal with circumstances of which the primary insurer would already be

aware:   changes to its policy, receivership, and exhaustion of the underlying

limits. Section C is not at issue here because there is no evidence that any

changes were made to the primary policy that required notice.               In addition,

subsections (ii) and (iii) of Section D were not triggered.            The only notice

requirement under section D triggered in this case is under subsection (i)

regarding exhaustion of the primary policy’s limits. There is no corresponding

notice provision in the primary policy.



                                           18
      Sabre argued in the trial court, and argues on appeal, that the notice

provisions in section C and D are fact-specific provisions which, according to the

rules of construction of insurance policies, control over more general provisions

like the one Illinois Union contends incorporates the claims-made-and-reported

notice provisions of the primary policy. We agree that Sabre’s interpretation is

reasonable. See El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d

802, 815 (Tex. 2012) (“[W]e have long treated specific provisions as exceptions

to general provisions.”); Tarrant Cnty. Ice Sports, Inc. v. Equitable Gen. Life Ins.

Co. of Okla., 662 S.W.2d 129, 132 (Tex. App.––Fort Worth 1983, writ ref’d,

n.r.e.). The general notice provision in the excess policy requiring that notices

under the excess policy be given as provided in the primary policy could not

apply to the specific provision regarding exhaustion of limits when there is no

corresponding provision in the primary policy. See Westchester Fire Ins. Co. v.

Stewart & Stevenson Servs., Inc., 31 S.W.3d 654, 658–59 (Tex. App.––Houston

[1st Dist.] 2000, pet. denied) (looking to entire excess policy in determining that

some parts followed form to primary policy and some did not).

      Therefore, we overrule Illinois Union’s first issue. Because the remainder

of its issues are contingent upon this court’s sustaining its first issue, we need not

address the remaining issues. See Tex. R. App. P. 47.1.




                                         19
                                   Conclusion

     Having overruled Illinois Union’s dispositive issue, we affirm the trial court’s

judgment.

                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DELIVERED: June 25, 2015




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