Opinion issued October 29, 2015




                                     In The
                           Court of Appeals
                               For The
                        First District of Texas
                      ————————————
                         NO. 01-14-00677-CV
                      ———————————
              PETER TSAI AND BARBARA TSAI, Appellants

                                       V.

          LIBERTY MUTUAL INSURANCE COMPANY, Appellee


                   On Appeal from the 269th District Court
                            Harris County, Texas
                     Trial Court Case No. 2013-61457-A


                          MEMORADUM OPINION
      This appeal arises from an insurance-coverage dispute between Liberty

Mutual Insurance Company and its insureds, Peter Tsai and Barbara Tsai,

involving the applicability of a water-damage exclusion in an all-risk homeowner’s

policy. Each side filed a motion for summary judgment. The trial court denied the

Tsai’s motion, granted Liberty Mutual’s motion, and rendered final judgment in
Liberty Mutual’s favor. In five issues on appeal, the Tsais contend that the trial

court erred in denying them summary judgment and in granting summary judgment

to Liberty Mutual.

         We affirm.

                                     Background

         The facts underlying this case are undisputed. In 2006, the Tsais purchased

their home in a residential gated community. The house is a three-level, wood-

frame structure, constructed with a concrete slab-on-grade foundation.           The

exterior of the dwelling is a combination of conventional stucco cladding and stone

veneer. The perimeter of the home has a combination of pavers, planters, and

grass.

         In March of 2012, the Tsais noticed what they later described as “ridges” on

the wood floors in the living room of their home. By August 2012, the damage

had spread across the living room, and the wood flooring was separating.

         The Tsais made a claim with Liberty Mutual under their homeowners’

policy regarding the damage to their wood floors.         Liberty Mutual began an

investigation to determine the source and the cause of the damage. Liberty Mutual

first eliminated a plumbing leak as the cause of the damage. Liberty Mutual

retained HSA Engineers & Scientists (“HSA”) to evaluate the Tsais’s home and to




                                           2
uncover “the cause and extent of water ingress,” which had resulted in the flooring

damage.

      Following its evaluation of the Tsais’s home, HSA prepared a report of its

findings, signed by two professional engineers. Both Liberty Mutual and the Tsais

agree with the findings in the HSA report.

      HSA observed that the wood flooring in the Tsais’ living room “displayed

an uneven appearance where the edges on the top of the board were higher than the

top of the center of the boards, which is commonly referred to as a ‘cupped’

condition.” The report states,

      There was evidence that the cupped appearance of the boards was
      reasonably attributed to moisture migrating under the wood floor from
      the planter at the north edge/perimeter of the Tsai property . . ., which
      . . . did not feature detailing for drainage, was near the same elevation
      as the top of the first level wood floor, and was higher than the
      foundation slab of the Tsais’ residence.

      The report provides a description of the home’s wood floors, including the

following:

             The wood floor had been elevated above the foundation slab
      surface utilizing a screed system, and measurements indicated that the
      distance between the top of the wood floor boards and the foundation
      slab surface measured on the order of 2–1/2 inches. These
      measurements are consistent with a one-inch thick wood floor board
      installed over a 1–1/2 [inch] thick screen member. . . . There was no
      ready access below the first level wood floor.

      The report continues, “Mr. Tsai stated that the first one to two feet of land

north of the edge/perimeter of the Tsai foundation are part of the land parcel


                                         3
owned by the Tsai family. However, Mr. Tsai stated that adjacent landowners

commonly are allowed to use/modify this strip of land.” The Tsais informed HSA

that in 2007 their neighbors to the north “installed a swimming pool, concrete patio

areas, and gravel planters in areas of the north neighbors’ yard, and a planter with

shrubs were installed in the strip of land along the north edge/perimeter of the Tsai

residence.”

      The report also provides,

      Mr. Tsai stated that the previous north neighbor (original owner in
      2006 per HCAD) did not reportedly water the shrubs and the planter
      significantly. However, the more recent north neighbor (purchased
      the dwelling in February 2010 per HCAD) reportedly watered
      significantly . . . . The planter that lined the north edge/perimeter of
      the Tsai foundation featured a watering system, but it was not clear
      when this watering system was installed.

      The report further describes the planter located on the north side of the

house:

      The north edge/perimeter of the Tsai residence foundation had been
      lined with a planter that featured shrubs set in a mulch base. The
      planter was edged with metal that extended above the level of the
      mulch to separate the planter from the adjacent concrete patio.
      Relative elevations of the concrete patio revealed a general slope
      down from the northwest to the southeast, and there were consistently
      lower elevations at the south edge of the patio (near the Tsai
      residence) compared to the north edge of the patio (near the north
      neighbor dwelling). Elevations of the planter revealed that the top of
      the mulch was between 0.76 feet and 0.85 feet, which is similar or
      higher than the top of the finished wood floor at the interior of the
      Tsai residence adjacent to this area (about 0.79 feet to 0.81 feet along
      the north edge of the living room). The top of the continuous metal



                                         4
edging also measured between around 0.78 feet for the west half of
the planter and tapered down to about 0.66 feet. . . . .

The report explained HSA’s findings more specifically, as follows:

HSA’s investigation reasonably correlated the detailing along the
north edge/perimeter of the dwelling as a source of moisture migration
below the wood floor of the Tsai residence. Relative elevations and
visual observations revealed that the planter, which lined the north
edge/perimeter of the foundation . . ., was built up to a level near the
same height as the top of the finished wood floor at the interior of the
Tsai residence . . . . The top of the continuous metal edging that lined
the north edge of this planter also was at a similar elevation as the top
of the wood floor at the interior. Thus, the top of the foundation,
which is nominally 2-1/2 inches below this level, was below the top of
the planter that lined the north edge/perimeter of the foundation.
There were no alternative means of drainage observed in this planter
(surface drains, French drains, etc.), thus, water that drains into the
planter can travel the path of least resistance for drainage. The path of
least resistance, here, is for water to seep between the top of the
foundation and the sill plate and migrate to the lower interior area
below the wood floor of the Tsai residence. . . .


HSA understands that this condition has progressed recently to the
owners’ surprise. HSA understands that the north neighbor purchased
the dwelling in February 2010. Soon after that time[,] the greater
Houston, Texas area experienced an extended and extensive drought.
Thus, the supplemented moisture applied to the shrubs during
watering at this time was not sufficient to build to a sufficient level (as
a result of the lack of drainage in the planter) to overwhelm the
detailing and migrate below the first level wood floor. HSA also
understands that the previous owner did not water significantly and
that the pool/patio construction was not completed until 2007. Thus,
the return of rainfall to the Houston, Texas area in late 2011 and early
2012, the drainage of the north patio/planter, watering of shrubs in the
north planter, and the detailing of this area resulted in a combination
of factors sufficient to result in moisture migration/accumulation
below the first level wood floor of the Tsai residence.



                                    5
In sum, HSA concluded that the cupped appearance in the wood floors was caused

by water migration from the planter to underneath the flooring.

      Based on the HSA’s investigation, Liberty mutual denied the Tsais’

homeowners’ policy claim. Liberty Mutual’s denial letter stated, “Based on the

results of the [HSA] engineer’s report, we are unable to assist you with your

homeowner’s claim. Unfortunately, the policy does not cover damages resulting

from surface water entering the home at ground level.” Liberty Mutual referred

the Tsais to language in the insurance policy that excluded coverage for “water

damage,” including damage from “surface waters.”

      The Tsais disagreed with Liberty Mutual’s denial of coverage based on the

water-damage exclusion. The Tsais sued Liberty Mutual and the neighbor, who

had installed the planter. The Tsais asserted that Liberty Mutual had breached the

insurance contract and had engaged in deceptive trade practices.

      Liberty Mutual answered the suit and filed a traditional motion for summary

judgment. In the motion, Liberty Mutual argued that it had not breached the

insurance contract as a matter of law because the Tsais’ claim was not covered by

the policy. Liberty Mutual asserted that the claim fell within the policy’s water

damage exclusion.     Liberty Mutual also claimed it was entitled to summary

judgment regarding the Tsais’ extra-contractual claims. In support of its motion,

Liberty Mutual offered the homeowner’s policy and the HSA report.



                                         6
      The Tsais responded to Liberty Mutual’s motion for summary judgment and

also filed their own motion for partial summary judgment. The Tsais asserted that

their claim did not fall within the policy’s water-damage exclusion, as a matter of

law. Alternatively, the Tsais asserted that their reasonable interpretation of the

exclusionary language must be adopted because the exclusionary language is

ambiguous. The trial court signed two orders: one order denying the Tsais’ motion

for partial summary judgment and one order granting Liberty Mutual’s motion for

summary judgment. The trial court then severed the Tsais’ claims against their

neighbor, rendering a final judgment against the Tsais’ claims in favor of Liberty

Mutual.

      This appeal followed. The Tsais identify five intertwined issues. With

respect to their breach of contract claim, they aver that the trial court erred in

rendering summary judgment for Liberty Mutual and in denying their motion for

summary judgment.      The Tsais assert that their homeowner’s claim for the

damaged wood flooring did not fall within the policy’s water-damage exclusion, as

Liberty Mutual maintains.

                              Summary Judgment

A.    Standard of Review

      The well-settled principles governing the review of summary judgments

apply in insurance coverage cases. Hanson v. Republic Ins. Co., 5 S.W.3d 324,



                                        7
327 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). We review a grant of

summary judgment de novo. SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 641

(Tex. 2015) (citing State v. Ninety Thousand Two Hundred Thirty–Five Dollars &

No Cents in U.S. Currency ($90,235), 390 S.W.3d 289, 292 (Tex. 2013)). A party

moving for traditional summary judgment has the burden to prove that there is no

genuine issue of material fact and that it is entitled to judgment as a matter of law.

TEX. R. CIV. P. 166a(c); SeaBright Ins. Co., 465 S.W.3d at 641 (citing Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.

2009)).

      We review summary judgment evidence “in the light most favorable to the

party against whom the summary judgment was rendered, crediting evidence

favorable to that party if reasonable jurors could, and disregarding contrary

evidence unless reasonable jurors could not.” SeaBright Ins. Co., 465 S.W.3d at

641 (citing Mann Frankfort Stein & Lipp Advisors, Inc., 289 S.W.3d at 848).

When, as here, both sides move for summary judgment and the trial court grants

one motion and denies the other, we review the summary judgment evidence

presented by both sides, determine all questions presented, and render the

judgment the trial court should have rendered. Id. at 641–42 (citing Comm’rs

Court of Titus Cty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)). Each party filing a

motion for summary judgment must carry its burden; neither party may prevail



                                          8
because the other failed to discharge its own burden. Pratt v. Amrex, Inc., 354

S.W.3d 502, 505 (Tex. App.—San Antonio 2011, pet. denied).

B.     Analysis

       In the all-risk homeowner’s policy issued to the Tsais, the relevant

provisions are as follows:

       SECTION I – PERILS INSURED AGAINST
           A. Coverage A –Dwelling And Coverage B –Other Structures
           1.    We insure against risk of direct physical loss to property
           described in Coverages A and B.1
           2.    We do not insure, however, for loss:
                 a. Excluded under Section I –Exclusions;


....


       SECTION I –EXCLUSIONS
       A.     We do not insure for loss caused directly or indirectly by any of
       the following. Such loss is excluded regardless of any other cause or
       event contributing concurrently or in any sequence to the loss.

       ....

       3.     Water Damage
              Water Damage means:
              a.    Flood, surface water, waves, tidal water, overflow of a
              body of water, or spray from any of these, whether or not
              driven by wind;

       ....




1
       Here, the Tsais’s home was covered property as a dwelling under Coverage A.

                                          9
            c.     Water or water-borne material below the surface of the
            ground, including water which exerts pressure on or seeps or
            leaks through a building . . . .
      caused by or resulting from human or animal forces or any act of
      nature.


      The Tsais are quick to point out that this is an all-risk policy. All-risk

insurance covers any peril not specifically excluded in the policy. ECF N. Ridge

Assocs., L.P. v. ORIX Capital Mkts., L.L.C., 336 S.W.3d 400, 403 (Tex. App.—

Dallas 2011, pet. denied). Liberty Mutual asserts, however, that the peril in this

case was expressly excluded in the policy. Throughout the summary-judgment

proceedings and on appeal, Liberty Mutual has maintained that the Tsais’ loss was

caused by either “surface water” or by water “below the surface of the ground,” as

those terms are used in water-damage exclusion.

      The Tsais claim that Liberty Mutual’s denial of coverage constitutes breach

of contract; that is, a breach of the insurance policy. 2 As they did in the trial court,

the Tsais assert that their loss was not caused by surface water or water below the

surface of the ground; rather, it was caused by “generic water.” In other words, the

2
      To prevail on a breach of contract claim, a plaintiff must show (1) the existence of
      a valid contract; (2) performance or tendered performance by the plaintiff; (3)
      breach of the contract by the defendant; and (4) damages sustained as a result of
      the breach. B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.—
      Houston [1st Dist.] 2009, pet. denied) (citing Valero Mktg. & Supply Co. v.
      Kalama Int’l, 51 S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.] 2001, no
      pet.)). Here, the element at the center of the dispute is whether Liberty Mutual
      breached the insurance contract by improperly denying coverage.


                                           10
Tsais contend that the damage was not caused by a type of water identified within

the water-damage exclusion. For this reason, they assert that the damage to their

floors is a covered, non-excluded loss under the policy. The Tsais claim that, at a

minimum, the exclusionary language is latently ambiguous when viewed in the

context of the undisputed findings presented in the HSA report.

      To determine who is correct in this case, we interpret the Tsais’

homeowners’ policy according to the rules of contract construction. See Am. Mfrs.

Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003); Balandran v. Safeco

Ins. Co. of Am., 972 S.W.2d 738, 740–41 (Tex. 1998).              Our primary goal,

therefore, is to give effect to the written expression of the parties’ intent. State

Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex. 1995). To this end, we

construe the terms of the contract as a whole and consider all of its terms, not in

isolation, but within the context of the contract. Id.; Forbau v. Aetna Life Ins. Co.,

876 S.W.2d 132, 133–34 (Tex. 1994). In construing an insurance contract, its

terms are given their “ordinary and generally accepted meaning.” Sec. Mut. Cas.

Co. v. Johnson, 584 S.W.2d 703, 704 (Tex. 1979).

      If a policy provision has only one reasonable interpretation, it is

unambiguous and we must construe it as a matter of law. Fiess v. State Farm

Lloyds, 202 S.W.3d 744, 746 (Tex. 2006). If an exclusion has more than one

reasonable interpretation, we must construe it in favor of the insured as long as that



                                         11
construction is not unreasonable. Id. A policy provision is not ambiguous merely

because different parties or different courts have interpreted it differently. Id.

      An ambiguity in a contract generally will fall into one of two categories:

“patent” or “latent.” “A patent ambiguity is evident on the face of the contract.”

Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995).

“A latent ambiguity arises when a contract which is unambiguous on its face is

applied to the subject matter with which it deals and an ambiguity appears by

reason of some collateral matter.” Id.

      Because it is dispositive, we begin by discussing the language within the

water-damage exclusion that states losses caused by “surface water” are not

covered under the policy. The Tsais do not argue that the term “surface water” is

patently ambiguous.      Instead, the Tsais indicate that exclusionary language

becomes latently ambiguous when viewed in the context of HSA’s undisputed

determination that the loss was caused when water migrated from the neighbor’s

planter to underneath their hardwood floors. We do not agree with the Tsais that

“surface water” is latently ambiguous. As discussed below, there is only one

reasonable conclusion in this case: surface water caused the Tsais’ loss.

      In the insurance context, surface water has been “defined as water or natural

precipitation diffused over the surface of the ground until it either evaporates, is

absorbed by the land, or reaches channels where water naturally flows.” State



                                          12
Farm Lloyds v. Marchetti, 962 S.W.2d 58, 61 (Tex. App.—Houston [1st Dist.]

1997, pet. denied) (citing Transamerica Ins. Co. v. Raffkind, 521 S.W.2d 935, 939

(Tex. Civ. App.—Amarillo 1975, no writ); Emp’rs’ Fire Ins. Co. v. Howsley, 432

S.W.2d 578, 580 (Tex. Civ. App.—Amarillo 1968, no writ)); see also Valley Forge

Insurance Co. v. Hicks Thomas & Lilienstern, L.L.P.,174 S.W.3d 254, 258 (Tex.

App.—Houston [1st Dist.] 2004, pet. denied) (“Surface water is generally defined

as that which is derived from falling rain . . . and is diffused over the surface of the

ground. . . .”); Sun Underwriters Ins. Co. of N.Y. v. Bunkley, 233 S.W.2d 153, 155

(Tex. Civ. App.—Fort Worth 1950, writ ref’d) (explaining surface water generally

defined as derived from falling rain or melting snow and diffused over surface of

ground, following no defined course or channel, not gathered into natural body of

water, and lost by evaporation, percolation, or natural drainage).

      The water that migrated under the Tsais’ flooring derived from rain and

sprinkler water that had fallen onto the surface of the planter. After falling on the

planter’s surface, the water did not follow a defined path or channel. Instead, it

passed freely, moving through the upper two to three inches of mulch, a

manufactured product commonly placed over the soil of flower beds.                   As

referenced in the HSA report, it was not until the planter was “overwhelmed” with

water that it migrated under the floors, which were at or slightly below the

elevation of the mulch. That is, the water that entered the home was either water



                                          13
that had pooled and collected within the surface layer of the mulch before being

released, or it was newly introduced water that served as the tipping point to

release water from the saturated mulch. The water that reached the Tsais’ home

was not absorbed “by land.” Given these characteristics, the water that migrated

under the Tsais’ flooring was surface water, as defined by the cases cited supra.

      The Tsais cite three reasons why the water was not surface water: (1) the

water was not “natural precipitation”; (2) the water was not diffused over the

surface of the ground; and (3) alternatively, presuming it was surface water, it lost

its character as surface when “it was absorbed by the mulch in the flower bed and

drained into the Tsais’ house.”

      We begin by addressing the Tsais’ assertion that the water was not “surface

water” because it was not natural precipitation. Although acknowledging that

rainwater contributed to the water damage, the Tsais aver that the primary source

of the water that damaged their floors came from the sprinkler system and not from

natural precipitation. The Tsais’ argument, however, is not supported by the HSA

report or by the policy language.

      The HSA report indicates that the sprinkler water from the planter did not

migrate from the planter to underneath the flooring until the drought ended and

rainfall returned. This shows that natural-occurring rainwater was a causative

factor of the loss in this case. Importantly, the exclusion involved in this case



                                         14
contains the following lead-in clause: “We will not pay for loss or damage caused

directly or indirectly by any of the following. Such loss or damage is excluded

regardless of any other cause or event that contributed concurrently or in any

sequence to the loss.” This provision serves to preclude coverage under the policy

when a claimed loss is caused by a combination of covered and excluded perils.

Thus, the fact that sprinkler water “contributed concurrently or in any sequence to

the loss” along with the rainwater does not remove the Tsais’ claimed loss from the

exclusion.   Cf. Valley Forge, 174 S.W.3d at 259 (noting that surface-water

exclusion applied, even though surface water had flowed into underground man-

made tunnels, because exclusion contained lead-in clause).

      In addition, as Liberty Mutual points out, the exclusionary language does not

require surface water to be “natural precipitation.” To contrary, the exclusion

applies when the water damage is “caused by or resulting from human or animal

forces or any act of nature.” In other words, the exclusion is not limited to

naturally-occurring precipitation, as the Tsais claim.

      The Tsais also assert that the water was not surface water because it was not

“diffused and flowing over the surface of the ground when it infiltrated” their

home. In this regard, Crocker v. American National General Insurance Co. is

instructive. 211 S.W.3d 928, 936 (Tex. App.—Dallas 2007, no pet.). There, the

court determined whether the meaning of “surface water,” as used in an exclusion



                                          15
in a homeowner’s policy, reasonably included rain water that had collected on the

surface of a raised patio before flowing into the insured’s home. Id. The court

concluded that “an average reasonable person would not limit surface water to rain

falling only on dirt and not on any paved surfaces or other structures.” Id.

      In Valley Forge, we determined that water which flowed from the surface

through pedestrian tunnels and other manmade structures before flooding the

insured’s premises did not lose its character as surface water. See Valley Forge,

174 S.W.3d at 258. We explained, “Surface water is generally defined as that

which is derived from falling rain . . . and is diffused over the surface of the

ground. . . . Such waters are not divested of their character as surface waters by

reason of their flowing from the land on which they first make their appearance

onto lower land in obedience to the law of gravity.” Id. (citing Bunkley, 233

S.W.2d at 155). We held that the insured’s claim was excluded under a surface-

water exclusion, similar to the one in this case. Id. at 258–59.

      Applying the reasoning employed in Crocker and Valley Forge, the water

that flowed through the mulch—like water flowing over or through a manmade

structure—did not lose its character as surface water. The bare fact that the water

migrated from the planter to the Tsais’ home did not change its essential character

as surface water.




                                          16
      The Tsais alternatively assert that, even if the water was surface water, it lost

its character as such when it was “absorbed by the mulch in the flower bed and

drained into the Tsais’ house.” As noted, the exclusion has a lead-in clause stating

that water damage from surface water is excluded if the loss was caused directly or

indirectly by surface water. Thus, whether the loss was caused directly by surface

water once the mulch had reached its saturation point or whether it was caused by

water released by the mulch once other surface water drained into the planter, the

loss would be either directly or indirectly caused by surface water.

      We conclude that the Tsais’ loss was caused by surface water. Accordingly,

the loss was excluded under the terms of the policy. We hold that the trial court

properly granted Liberty Mutual’s motion for summary judgment and properly

denied that of the Tsais.

      We overrule the Tsais’ issues relevant to determining whether the water was

surface water and whether the trial court properly ruled on the motions for

summary judgment. 3




3
      Because the surface-water issues are dispositive, we do not reach the Tsais’ third
      issue, which discusses the exclusionary language precluding coverage for a loss
      caused by water below the ground.


                                          17
                                     Conclusion

      We affirm the judgment of the trial court.4




                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Jennings, Higley, and Brown.




4
      The Tsais did not specifically address on appeal the trial court’s grant of summary
      against them on their extra-contractual claims. However, when insurance
      coverage is resolved in the insurer’s favor, extra-contractual claims, including
      DTPA claims, do not survive. State Farm Lloyds v. Page, 315 S.W.3d 525, 532
      (Tex. 2010).

                                          18
