                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-08-00280-CV


PAUL ROBERTSON                                                        APPELLANT

                                         V.

HOME STATE COUNTY MUTUAL                                                  APPELLEE
INSURANCE COMPANY


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         FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

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             OPINION ON EN BANC RECONSIDERATION
                                      ----------

       A majority of the court ordered en banc reconsideration of the court‘s

opinion on rehearing. See Tex. R. App. P. 49.7. We withdraw our opinion and

judgment of July 15, 2010, and substitute the following in their place.

                                 I. INTRODUCTION

       Appellant Paul Robertson obtained a judgment against his employer, Ray

Redi-Mix, Inc., for damages for personal injuries that he sustained while on the

job.   Appellee Home State County Mutual Insurance Company, Redi-Mix‘s
transportation insurer, denied coverage under several exclusions contained in

Redi-Mix‘s policy of insurance for Robertson‘s claims against Redi-Mix and

obtained a summary judgment against Robertson based on those exclusions.

Robertson argues that the trial court erred by granting Home State‘s motion for

summary judgment. We will affirm.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

      According to Robertson‘s first amended original petition, Redi-Mix

employed him as a truck driver. On November 3, 2005, Robertson informed

Redi-Mix that the truck that he had been assigned to drive had a defective tarp,

but Redi-Mix instructed him to make do with the tarp that he had. The next day,

the tarp malfunctioned, causing Robertson to sustain bodily injuries.

      Redi-Mix did not provide workers‘ compensation insurance coverage to its

employees. It did, however, have a commercial automobile liability insurance

policy issued by Home State (the Policy) that provided coverage for ―all sums an

insured legally must pay as damages because of bodily injury or property

damage to which [the] insurance applies, caused by an accident and resulting

from the ownership, maintenance or use of a covered auto.‖              The Policy

contained the following relevant exclusions to which coverage did not apply:

      3.    WORKERS COMPENSATION

            Any obligation for which the insured or the insured‘s insurer
            may be held liable under any workers compensation, disability
            benefits or unemployment compensation law or any similar
            law.



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      4.    EMPLOYEE            INDEMNIFICATION     AND     EMPLOYER’S
            LIABILITY

            Bodily injury to:

            a.      An employee of the insured arising out of and in the
                    course of employment by the insured; or

            b.      The spouse, child, parent, brother or sister of that
                    employee as a consequence of paragraph a. above.

            This exclusion applies:

                    (1)   Whether the insured may be liable as an
                          employer or in any other capacity; and

                    (2)   To any obligation to share damages with or repay
                          someone else who must pay damages because
                          of the injury.

            But this exclusion does not apply to bodily injury to domestic
            employees not entitled to workers compensation benefits or to
            liability assumed by the insured under an insured contract.
            [Emphasis added.]

      Robertson sued Redi-Mix for the injuries that he sustained on November 4,

2005, and he sought a declaratory judgment that Home State had a duty to

defend, to indemnify, or to both defend and indemnify Redi-Mix for his claims

against Redi-Mix.     Home State filed a counterclaim seeking a declaratory

judgment that it had neither a duty to defend nor a duty to indemnify Redi-Mix for

the claims made by Robertson against Redi-Mix because the workers‘

compensation and employee exclusions contained in the Policy applied to

exclude coverage under the Policy. Robertson obtained a final judgment against

Redi-Mix for, among other things, damages in the amount of $967,631.52, and



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the trial court severed Robertson‘s suit against Redi-Mix from his remaining claim

against Home State.

      Home State moved for summary judgment on the grounds (1) that

coverage under the Policy for Robertson‘s claims against Redi-Mix is excluded

under the workers‘ compensation exclusion, (2) that coverage under the Policy

for Robertson‘s claims against Redi-Mix is excluded under the employee

exclusion and did not fall within the ―domestic employees‖ exception, and (3) that

the truck to which Robertson was assigned when he sustained injuries is not a

listed vehicle under the Policy. The trial court granted Home State‘s motion for

summary judgment on two grounds: that Robertson‘s claims against Redi-Mix

are excluded under both the workers‘ compensation and employee exclusions.

Robertson appeals.

                             III. STANDARD OF REVIEW

      In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,

289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo.

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We take as

true all evidence favorable to the nonmovant, and 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); Provident Life & Accident Ins. Co. v.


                                         4
Knott, 128 S.W.3d 211, 215 (Tex. 2003). 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, 289 S.W.3d at

848. We must consider whether reasonable and fair-minded jurors could differ in

their conclusions in light of all of the evidence presented. See Wal-Mart Stores,

Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168

S.W.3d 802, 822–24 (Tex. 2005).

        IV. EMPLOYEE EXCLUSION AND DOMESTIC EMPLOYEES EXCEPTION

      In his second issue, Robertson argues that the trial court erred by granting

Home State‘s motion for summary judgment on the ground that coverage under

the Policy for Robertson‘s claims against Redi-Mix is excluded under the

employee exclusion.      Robertson contends that the ―domestic employees‖

exception to the employee exclusion applies to extend coverage to him under the

Policy because he was ―employed in the United States‖ and because he was not

entitled to workers‘ compensation benefits as an employee of Redi-Mix, a

nonsubscriber. Robertson thus advocates interpreting ―domestic employees‖ to

mean persons who work in the United States as opposed to persons who

perform certain duties at a personal residence. Alternatively, he argues that the

term ―domestic employees‖ is, at the very least, ambiguous and, therefore, that

we must adopt his interpretation of the provision.




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      In an insurance coverage case, the insured has the burden of establishing

coverage under the terms of the policy. Gilbert Tex. Constr., L.P. v. Underwriters

at Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010).           If the insured proves

coverage, then to avoid liability the insurer must prove that the loss is within an

exclusion. Id. If the insurer proves that an exclusion applies, the burden shifts

back to the insured to show that an exception to the exclusion brings the claim

back within coverage. Id. In this case, there is no dispute that Robertson was an

employee of Redi-Mix. Our analysis therefore focuses on the applicability of the

―domestic employees‖ exception to the employee exclusion.

      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). Enforcing the parties‘ expressed

intent is our primary concern. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132,

133 (Tex. 1994).     The policy‘s terms are given their ordinary and generally

accepted meaning unless the policy shows that the words were meant in a

technical or different sense. Gilbert Tex. Constr., L.P., 327 S.W.3d at 126. 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 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). 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.          Nat’l


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Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson Energy Co., Inc., 811 S.W.2d

552, 555 (Tex. 1991). 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).

      Generally, the term ―domestic‖ has several accepted meanings.           It is

defined as both ―relating to the household or the family‖ and ―relating and limited

to one‘s own country.‖ Webster‘s Third New Int‘l Dictionary 671 (3d ed. 2002).

In light of these two definitions, Robertson argues that a ―domestic employee‖—

as used in the Policy‘s employee exclusion—is a person who works in the United

States or, alternatively, that the term is ambiguous because there is more than

one accepted meaning.             However, Robertson‘s arguments disregard a

fundamental rule of contract construction: the requirement that we examine the

entire writing in an effort to harmonize and give effect to all provisions of the

contract so that none are rendered meaningless.        See Coker v. Coker, 650

S.W.2d 391, 393 (Tex. 1983). Indeed, ―‗[n]o one phrase, sentence, or section [of

the policy] should be isolated from its setting and considered apart from the other

provisions.‘‖ Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 23

(Tex. 2008). But this is exactly what Robertson does—he isolates ―domestic

employees‖ from the ―not entitled to workers compensation benefits‖ part of the

exception. As demonstrated below, the ―not entitled to workers compensation

benefits‖ language plays a pivotal role in determining who qualifies as a

―domestic employee‖ not because the language refers to employees of a


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nonsubscriber, as Robertson reads the provision, but because when read

together with ―domestic employees,‖ it becomes clear that the parties intended to

except from the employee exclusion a particular type of employee that is

specifically identified in the Texas Workers‘ Compensation Act (TWCA) and

referenced in the Texas Motor Vehicle Safety Responsibility Act (TMVSRA).

      The TWCA was adopted to provide prompt remuneration to employees

who sustain injuries in the course and scope of their employment. Hughes Wood

Prods., Inc. v. Wagner, 18 S.W.3d 202, 206 (Tex. 2000). An employer has the

option of providing workers‘ compensation insurance for employees and thereby

becoming a subscriber under the TWCA or not providing workers‘ compensation

insurance and thereby remaining a nonsubscriber. Lawrence v. CDB Servs.,

Inc., 16 S.W.3d 35, 41 (Tex. App.—Amarillo 2000), aff’d, 44 S.W.3d 544 (Tex.

2001); see Tex. Lab. Code Ann. § 406.002(a) (West 2006) (providing that except

for public employers and as otherwise provided by law, an employer may elect to

obtain workers‘ compensation insurance coverage).      If an employer provides

workers‘ compensation insurance to its employees, section 406.091(a)(1)

mandates that the TWCA is inapplicable to ―a person employed as a domestic

worker . . . engaged in employment incidental to a personal residence.‖ Tex.

Lab. Code Ann. § 406.091(a)(1) (West 2006). However, this exemption is not

without its own exception. Section 406.091(b) provides that ―[a]n employer may

elect to obtain workers‘ compensation insurance coverage for an employee or

classification of employees exempted from coverage under Subsection (a)(1) or


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(a)(3).‖   Id. § 406.091(b) (emphasis added).       Therefore, although domestic

employees engaged in employment incidental to a personal residence are

exempted from the TWCA, an employer may elect to obtain workers‘

compensation coverage for such employees.

       The TMVSRA provides in part that ―[a] person may not operate a motor

vehicle in this state unless financial responsibility is established for that vehicle

through,‖ among other things, ―a motor vehicle liability insurance policy that

complies with Subchapter D.‖       Tex. Transp. Code Ann. § 601.051(1) (West

2011). In subchapter D, section 601.075 provides in relevant part as follows:

             A motor vehicle liability insurance policy may not insure
       against liability:

             ....

             (2) for bodily injury to or death of an employee of the insured
       while engaged in the employment, other than domestic, of the
       insured, or in domestic employment if benefits for the injury are
       payable or required to be provided under a workers’ compensation
       law.

Id. § 601.075(2) (West 2011) (emphasis added).          Stated otherwise, a motor

vehicle liability insurance policy may not insure against liability for injury to an

employee of the insured while that employee is engaged (1) in the employment

of the insured or (2) in the domestic employment of the insured if benefits for the

injury are payable or required to be provided under workers‘ compensation

insurance, but a liability policy may insure against liability for injury to an

employee while that employee is engaged in domestic employment. Id.



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      When section 601.075(2) is considered in light of labor code section

406.091, the legislature‘s framework becomes readily apparent: motor vehicle

liability insurance may insure against liability for a domestic employee‘s injuries

only to fill the gap in insurance coverage created by the TWCA‘s exemption of

―domestic employees‖ engaged in employment incidental to a personal residence

who are not entitled to workers‘ compensation insurance via an election to

provide coverage by the employer.            Compare Tex. Lab. Code Ann.

§ 406.091(a)(1), (b), with Tex. Transp. Code Ann. § 601.075(2).         Thus, the

―domestic‖ employee contemplated by transportation code section 601.075(2) is

the ―domestic worker‖ identified by labor code section 406.091(a)(1)—a person

engaged in employment incidental to a personal residence. To the extent that an

employee is not a domestic employee, or that an employee is a domestic

employee and benefits for his injury are payable or required by workers‘

compensation insurance, as labor code section 406.091(b)               specifically

contemplates, a motor vehicle liability insurance policy may not insure against

liability for that employee‘s injuries that occur on the job.    The legislature‘s

decision in the TMVSRA to prohibit a motor vehicle liability insurance policy from

insuring against liability for injuries to employees, but not to domestic employees

not entitled to workers‘ compensation benefits, furthers the legislature‘s attempts




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in the TWCA to ―encourage employers to obtain workers‘ compensation

insurance.‖1 See Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000).

      The Policy in this case is a commercial automobile general liability

insurance policy. The language used in the employee exclusion and ―domestic

employees‖ exception unmistakably reveals an attempt by the drafters to

incorporate provisions into the Policy that are consistent with and adhere to the

requirements of both transportation code section 601.075(2) and labor code

section 406.091(a). Just as the transportation code prohibits a motor vehicle

liability insurance policy from insuring against liability for injuries to employees,

but not to domestic employees not entitled to workers‘ compensation benefits,

the Policy excludes coverage for bodily injury to employees occurring during

employment, but the exclusion ―does not apply to domestic employees not

entitled to workers compensation benefits.‖      [Emphasis added.]     Reading the

―domestic employees‖ exception in context, as we must, and considering the

statutory framework implemented by the legislature in the TWCA and the

TMVSRA—that the ―domestic‖ employee contemplated by transportation code

section 601.075(2) is the ―domestic worker‖ identified by labor code section

406.091(a)(1), a person engaged in employment incidental to a personal

      1
       For example, the TWCA penalizes nonsubscribers by prohibiting them
from asserting certain common law defenses in their employees‘ personal injury
actions. See Tex. Lab. Code Ann. § 406.033(a) (West 2006); see also Figueroa
v. Healthmark Partners, L.L.C., 125 F. Supp. 2d 209, 210 (S.D. Tex. 2000)
(―[E]mployers making the decision on whether to subscribe must face a Texas
statutory scheme that wields both a stick and a carrot.‖).


                                         11
residence—we cannot agree with Robertson‘s argument that the parties to the

Policy intended ―domestic employees‖ to mean persons who work in the United

States.

      Relying on Carroll v. Castillo, Robertson argues that the ―domestic

employee‖ exception is at least ambiguous. See No. 13-99-00006-CV, 2000 WL

34592617, at *5 (Tex. App.—Corpus Christi Apr. 6, 2000, no pet.) (not

designated for publication).    In Carroll, the court of appeals considered a

―domestic employees‖ exception to an employee exclusion contained in an

insurance policy. Id. Like the ―domestic employees‖ exception in this case, the

exception stated that the employee exclusion ―does not apply to bodily injury to

domestic employees not entitled to workers compensation benefits.‖            Id.

Interpreting the exception, the court concluded,

            By its terms, this exclusion does not apply to bodily injury to
      domestic employees not entitled to workers compensation
      benefits. . . . [T]he term ―domestic employee‖ is ambiguous and
      incapable of precise determination for summary judgment purposes.
      ―Domestic employee‖ could mean an employee of Carroll Water Well
      Service who works in a home, such as a cook, maid, or
      housekeeper; or it could mean an employee who works in the United
      States as contrasted with one who works abroad in a foreign
      country.

Id. We decline to follow Carroll because its analysis begins and ends with the

dictionary definition of ―domestic,‖ rendering meaningless the ―not entitled to

workers compensation benefits‖ portion of the exception and failing to consider

the clear relevance of the transportation and labor code provisions.




                                        12
      A federal district court recently considered whether a ―domestic

employment‖ exception to an employee exclusion contained in an insurance

policy meant employment within a home or domicile.       See Canal Ins. Co. v.

Flores, No. 3:06-CV-84-KC, 2009 WL 1033770, at *8–10 (W.D. Tex. Apr. 14,

2009). The court reasoned that ―[i]n the context of insurance contracts, courts

almost unanimously recognize the term ‗domestic employment‘ as meaning

employment within the home.‖      Id. at *8 (citing United Fire & Cas. Co. v.

Gravette, 182 F.3d 649, 655 (8th Cir. 1999) (―A ‗domestic employee‘ is commonly

understood to be a household servant.‖). The court declined to follow Carroll and

addressed the relevance of labor code section 406.091, reasoning that ―[t]he

comparison of a domestic employee to one who is employed in a personal

residence clearly indicates that the Texas Labor Code views a domestic

employee as one who works in the home and not generally within the United

States.‖   Id. at *8 n.14, *9.   The court ultimately held that ―the case law

interpreting ‗domestic employment‘ clearly favors a meaning of the term related

to home employment, particularly when the term is directly tied to workers‘

compensation laws in the Texas Labor Code.‖ Id. at *9.

      Even more recently, the Fifth Circuit considered a ―domestic employees‖

exception in an insurance policy, addressing whether the exception, which was

worded identically to the ―domestic employees‖ exception at issue in this case,

referred to ―butlers and chambermaids‖ or to employees who work in the United

States as opposed to those who work abroad.         See Amerisure Ins. Co. v.


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Navigators Ins. Co., 611 F.3d 299, 310–11 (5th Cir. 2010). Acknowledging that

no Texas court had resolved the issue in a published opinion, the court examined

cases from other jurisdictions and concluded that interpreting ―domestic

employees‖ to mean employees who work in the United States was

―unreasonable‖ and did ―not defeat the otherwise applicable exclusion.‖ Id. at

311.

       Although both federal courts       failed to recognize the framework

implemented by the legislature in both the TWCA and the TMVSRA and its

relevance to the domestic employee exceptions contained in the policies at issue

in their respective cases, the courts ultimately reached the same conclusion that

we do.

       Accordingly, we hold that as used in the Policy, Robertson‘s interpretation

of ―domestic employees‖ is unreasonable. In light of the labor code and the

transportation code, ―domestic employees‖ is not susceptible to more than one

reasonable interpretation and, therefore, is not ambiguous. Rather, ―domestic

employees‖ can be given a definite and certain legal meaning: persons engaged

in employment incidental to a personal residence.

       Lastly, Robertson argues ―assuming arguendo that the definition of

‗domestic employee‘ that is urged by Home State is correct, there is evidence

that Robertson actually performed the duties of a ‗domestic employee.‘‖         He

points out that his duties included ―cleaning the office, cleaning the vehicles and

the yard.‖ But this is not evidence that Robertson was a ―domestic employee‖


                                        14
because there is no evidence that these activities took place incidental to a

personal residence. See Tex. Lab. Code Ann. § 406.091(a)(1).

      We conclude and hold that the employee exclusion applied to exclude

coverage under the Policy for Robertson‘s claims against Redi-Mix. Therefore,

the trial court did not err by granting Home State‘s motion for summary judgment

on the basis of the employee exclusion. We overrule Robertson‘s second issue.

Having determined that summary judgment was proper on this ground, we need

not reach Robertson‘s first issue complaining that the trial court erred by granting

Home State‘s motion for summary judgment on the basis of the workers‘

compensation exclusion contained in the Policy. See Tex. R. App. P. 47.1.

                                 V. CONCLUSION

      Having overruled Robertson‘s second, dispositive issue, we affirm the trial

court‘s judgment.




                                                   BILL MEIER
                                                   JUSTICE

EN BANC

DAUPHINOT, J. concurs without opinion.

DELIVERED: June 2, 2011




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