     Case: 11-20402      Document: 00511722972        Page: 1     Date Filed: 01/12/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         January 12, 2012

                                     No. 11-20402                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



KRISTIN WILKINSON,

                                                  Plaintiff–Appellant
v.

STATE FARM LLOYDS,

                                                  Defendant–Appellee



                     Appeal from the United States District Court
                          for the Southern District of Texas
                               USDC No. 4:10-CV-1200


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        In this case, Plaintiff–Appellant Kristin Wilkinson seeks to collect from
Defendant–Appellee State Farm Lloyds (“State Farm”) based on State Farm’s
duty to indemnify its insured, Wallie Reid Williamson. Wilkinson was the
attorney for the Madison family in a Texas state court suit, in which the jury
found Williamson negligent for having molested Megan Madison.1 The jury


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
           Both the Madison family name and the given name Megan are litigation pseudonyms.
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                                    No. 11-20402

awarded the Madisons approximately $4.75 million. Wilkinson, as assignee of
the right, title, and interest of Williamson and of judgment creditors of
Williamson, then sued State Farm for its alleged failure to indemnify
Williamson, seeking to use the negligence judgment as offensive collateral
estoppel against State Farm.
         The relevant portions of Williamson’s State Farm policy (“the Policy”)
state:

         If a claim is made or a suit is brought against an insured
         [Williamson] for damages because of bodily injury or property
         damage caused by an occurrence to which this coverage applies, we
         [State Farm] will:
         1. Pay up to our limit of liability for the damages for which the
         insured is legally liable. Damages include pre-judgment interest
         awarded against the insured; and
         2. Provide a defense at our expense by counsel of our choice even if
         the suit is groundless, false or fraudulent. We may investigate and
         settle any claim or suit that we decide is appropriate.

The Policy defines “bodily injury” as meaning “bodily harm, sickness or disease.
This includes required care, loss of services and death that results.” It defines
“occurrence” as “an accident, including exposure to conditions, which results in
bodily injury or property damage during the policy period.” The “Exclusions”
section of the Policy states: “Coverage C (Personal Liability) and Coverage D
(Medical Payments to Others) do not apply to . . . [b]odily injury or property
damage which is caused intentionally by or at the direction of the insured.”
         The district court granted summary judgment for State Farm. It held that
molestation could not be covered under the Policy as it is an intentional act. The
second basis that Wilkinson argued that justified indemnity was Williamson’s
“street driving.” As a part of Williamson’s nolo contendere plea in his associated
criminal case, Williamson was not allowed to drive on Megan’s street, but he did
so often in order to get to his former house on the same street. The district court


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                                  No. 11-20402

held that “street driving” was also not covered by the Policy because it was (1)
intentional and (2) did not cause “bodily injury,” only psychoemotional injury.
On appeal, Wilkinson is only arguing that the decision with respect to the “street
driving” was erroneous.
      We review a district court’s grant of summary judgment de novo, taking
the facts in the light most favorable to the non-movant. Hernandez v. Yellow
Transp., Inc., 641 F.3d 118, 124 (5th Cir. 2011). We can affirm a district court’s
grant of summary judgment on any basis established by the record. Id. at 130.
Under Texas law, “the duty to indemnify is determined from the actual
underlying facts which result in liability of the insured.” J.E.M. v. Fidelity &
Cas. Co. of N.Y., 928 S.W.2d 668, 673 (Tex. App.—Houston [1st Dist.] 1996, no
writ); see also D.R. Horton-Tex., Ltd. v. Market Int’l Ins. Co., Ltd., 300 S.W. 740,
743 (Tex. 2009). In interpreting insurance policies, Texas courts give the terms
used “their plain, ordinary meaning unless the policy itself shows that the
parties intended the terms to have a different, technical meaning.” Am. Nat’l
Gen. Ins. Co. v. Ryan, 274 F.3d 319, 323 (5th Cir. 2001) (citing Puckett v. U.S.
Fire Ins. Co., 678 S.W.2d 936, 938 (Tex. 1984)). When a term is defined in the
policy, that definition controls. Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 219 (Tex. 2003).
      The Policy states that it only covers damages caused by “an occurrence,”
which it defines as “an accident.” The plain meaning of the term “accident” does
not encompass Williamson’s conduct here. Texas caselaw confirms this. “An
accident is generally understood to be a fortuitous, unexpected and unintended
event,” occurring “as the culmination of forces working without design,
coordination, or plan.” Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242
S.W.3d 1, 8 (Tex. 2007) (citations and internal quotation marks omitted). The
record reveals that Williamson deliberately chose to drive down the street past
Megan’s house. A deliberate act can be an accident if the effect is unexpected.

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Id. at 8. Harm to a molester’s victim when he deliberately chooses to be present
in a place where he has agreed, by the terms of his plea, not to be is “the natural
and expected result . . . that is, [harm to Megan] was highly probable whether
the insured was negligent or not.” Id. at 9. This was not “an accident” and
therefore, was not “an occurrence.” Thus, Williamson was not covered, and
Wilkinson cannot collect. Summary judgment was appropriately granted.
      AFFIRMED.




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