Court of Appeals of Texas,

Dallas.

CHICKASHA COTTON OIL CO., Appellant,

v.

HOUSTON GENERAL INSURANCE COMPANY, Houston General Lloyds, and Geico General Insurance Company, Appellees.

No. 05–00–01789–CV.

|

May 2, 2002.

Before Justices LAGARDE, MORRIS, and O’NEILL.

OPINION

Opinion By Justice O’NEILL.

*1 Chickasha Cotton Oil Co. appeals the take-nothing summary judgment in its lawsuit against Houston General Insurance Company, Houston General Lloyds, and GEICO General Insurance Company. Chickasha brings five issues asserting the trial court erred in granting appellees’ motions for summary judgment, denying Chickasha’s motion for summary judgment, and denying Chickasha’s objections to appellees’ summary judgment evidence. We affirm in part, and reverse and remand in part the trial court’s judgment.

BACKGROUND

Chickasha sued the appellee insurance companies after they refused coverage for Chickasha in the underlying actions. In those underlying actions, Chickasha has been sued by hundreds of claimants for pollution of the air, ground, and water in Commerce, Texas. The suits were brought in district courts in Dallas, Harris, Jefferson, Fannin, and Hunt Counties.

From at least 1956 to 1962, Chickasha was owned by a corporate predecessor of appellees. From 1962 to 1969, Chickasha owned and operated the Electric Gin, a cotton gin in Commerce, Texas. The Electric Gin was located next to the Hi Yield Chemical Company, which was a manufacturer and distributor of various pesticides and other chemical compounds containing arsenic. The claimants alleged that the cotton in the fields was treated with arsenic acid as a defoliant before the cotton was harvested. At the Electric Gin, the cotton was separated from leaves and stalks and other unusable portions of the cotton plant (also called “burr”), which were incinerated in “burr burners” allegedly releasing arsenic into the atmosphere. The claimants also alleged that the Electric Gin improperly stored arsenic and manufactured arsenic products, which resulted in further arsenic pollution. The claimants seek compensation for the investigation and cleanup of the Electric Gin and the Hi Yield sites as well as damages for personal injuries and property damage.

Chickasha had contracted with appellees and their predecessors for primary comprehensive general liability insurance from 1946 to 1986. Chickasha also purchased certain “umbrella policies” between 1972 and 1986. After being sued in 1995 in the underlying litigation, Chickasha contacted appellees for defense and coverage in the suits under the liability insurance policies issued by appellees or their predecessors. Neither Chickasha nor appellees could find any policies before 1972. After 1972, the parties found primary general liability policies for July 1, 1980 through July 1, 1981, July 1, 1982 through July 1, 1984, July 1, 1985 through July 1, 1986, and umbrella policies covering July 1, 1972 through July 1, 1981 and July 1, 1982 through July 1, 1986. Appellees denied coverage.

Chickasha then brought suit seeking declaratory judgment that the insurance policies covered the claims against Chickasha in the underlying lawsuits. Chickasha also brought causes of action for breach of contract, civil conspiracy to breach contract, reformation of contract, “quasi-estoppel,” negligent design and provision of loss control inspection and loss control services, bad faith and breach of the implied covenant of good faith and fair dealing under Arizona law, violation of the Arizona Consumer Fraud Act, and violation of Texas Insurance Code article 21.21. As of October 1, 1999, Chickasha had spent more than seven million dollars in defense and settlement of the underlying litigation.

*2 Chickasha moved for partial summary judgment asserting appellees had a duty to defend Chickasha in the underlying litigation under policies for 1980–1983. The trial court denied the motion. In their original and supplemental motions for summary judgment, appellees moved for a no-evidence summary judgment under rule 166a(i) on the ground that Chickasha could not produce evidence of the pre 1972 policies. Appellees also moved for summary judgment under rule 166a(c) on the ground that the post 1972 policies excluded coverage for pollution damages except when the pollution was “sudden and unexpected.” Appellees also argued that the trial court’s denial of Chickasha’s motion for summary judgment on the duty to defend was a finding as a matter of law that appellees had no duty to defend. The trial court granted appellees’ “First Supplemental Motion for Summary Judgment” and dismissed with prejudice all of Chickasha’s claims against appellees.

STANDARD OF REVIEW

The function of a summary judgment is not to deprive a litigant of its right to a full hearing on the merits of any real issue of fact but is to eliminate patently unmeritorious claims and untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). The standards for reviewing a motion for summary judgment are:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310–11 (Tex.1984); Wilcox v. St. Mary’s Univ., 531 S.W.2d 589, 592–93 (Tex.1975). The purpose of the summary judgment rule is not to provide either a trial by deposition or a trial by affidavit but to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and no genuine issue of material fact remains. Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962). A motion for summary judgment must “stand or fall on the grounds expressly presented in the motion.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993).

When the defendant is the movant, summary judgment is proper only if the plaintiff cannot, as a matter of law, succeed upon any theory pleaded. Peirce v. Sheldon Petroleum Co., 589 S.W.2d 849, 852 (Tex.Civ.App.-Amarillo 1979, no writ). Thus, the defendant can prevail by conclusively establishing against the plaintiff at least one factual element of each theory pleaded by the plaintiff, Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex.1970), or by conclusively establishing every factual element of an affirmative defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). Conversely, the plaintiff can bar summary judgment by presenting evidence that creates a fact question on those elements of the plaintiff’s case under attack by the defendant or on at least one element of each affirmative defense advanced by the defendant. Torres v. W. Cas. & Sur. Co., 457 S.W.2d 50, 52 (Tex.1970); see also Puga v. Donna Fruit Co., 634 S.W.2d 677, 680–81 (Tex.1982). Alternatively, the plaintiff can defeat the motion by conceding that the material facts are undisputed, but convincing the court that the defendant’s legal position is unsound. Estate of Devitt, 758 S.W.2d 601, 602 (Tex.App.-Amarillo 1988, writ denied).

*3 A nonmovant need not answer or respond to a motion for summary judgment to contend on appeal that the grounds expressly presented by the movant’s motion are insufficient as a matter of law to support summary judgment. However, the nonmovant may not raise any other issues as grounds for reversal. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

Except to attack the legal sufficiency of the movant’s grounds for summary judgment, the nonmovant must expressly present to the trial court any reason for avoiding the movant’s entitlement to summary judgment. The nonmovant must present summary judgment proof when necessary to show a fact issue. The nonmovant must expressly present to the trial court in a written answer or response to the motion those issues that would defeat the movant’s right to summary judgment and failing to do so, may not assign them on appeal as error. Tex.R. Civ. P. 166a(c); Clear Creek Basin Auth., 589 S.W.2d at 678–79.

Texas Rule of Civil Procedure 166a(i), known as the no-evidence summary judgment rule, provides that, after adequate time for discovery, a party may move for summary judgment as to all or part of a lawsuit on the grounds that there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial. Tex.R. Civ. P. 166a(i). A no-evidence motion for summary judgment places the burden on the nonmovant to present enough evidence to go to trial. Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432 (Tex.App.-Houston [14th Dist.] 1999, no pet.). The nonmovant “is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.” Tex.R. Civ. P. 166a (comment to 1997 change). If the nonmovant cannot produce evidence on one or more essential elements of his claim, the court must grant the summary judgment. Tex.R. Civ. P. 166a(i).

PRE–1972 POLICIES

In its issue 1(a), Chickasha asserts the trial court erred in granting appellees’ motion for summary judgment on the pre–1972 insurance policies. Appellees moved for summary judgment on the ground that Chickasha had failed to produce any evidence of coverage for the underlying litigation under the pre–1972 policies.

Chickasha submitted the affidavit of Bernard Byrne, who worked for Chickasha from 1937 to 1984 and whose duties from 1958 included “involvement in the purchasing of general liability and workers’ compensation insurance of Chickasha and maintaining Chickasha’s insurance policy files.” Byrne stated in his affidavit that “beginning as early as the 1940s,” and from at least 1944, appellees and their predecessors provided general liability insurance for Chickasha. This affidavit constitutes some evidence that appellees and their predecessors provided general liability insurance coverage to Chickasha from at least 1944 through (as relevant to this issue) 1972.

*4 Appellees also asserted Chickasha could not produce any evidence of the terms of any insurance policies before 1972. As with any other contract, the insured, as the party seeking to recover under the terms of the policy, has the burden to prove the terms of the insurance policy. Dairyland County Mut. Ins. Co. v. Martinez, 484 S.W.2d 785, 788 (Tex.Civ.App.-El Paso 1972, writ ref’d n.r.e.). When insurance policies are unavailable, the terms of the policies may be proven through secondary evidence. Bituminous Cas. Corp. v. Vacuum Tanks, Inc., 975 F.2d 1130, 1132 (5th Cir.1992). One way to prove the terms of missing insurance policies is to provide evidence of the mandatory insurance forms from the Texas Department of Insurance and specimen policies from the insurer. Bituminous Cas. Corp. v. Vacuum Tanks, Inc., 75 F.3d 1048, 1051 (5th Cir.1996) (applying Texas law). Chickasha provided evidence of both. The policies included a duty by the insurers to defend Chickasha against all claims brought against it covered by the policies and to pay any judgments rendered against Chickasha on claims covered by the policies. We conclude these documents constitute some evidence of the terms of the policies.

Appellees also assert Chickasha had to present evidence of insurance coverage for the Electric Gin. The claims in the underlying litigation are against Chickasha, not the Electric Gin. The evidence of the terms of the policies showed they covered claims for damages against the “insured.” Byrne’s affidavit states appellees and their predecessors provided general liability insurance for Chickasha. Thus, the record contains some evidence that the pre–1972 policies apply to the claims asserted against Chickasha in the underlying litigation.

Appellees also assert Chickasha failed to present evidence of policy numbers. Appellees did not provide the trial court, and have failed to provide this Court, with any explanation of why policy numbers are relevant to proving the terms of lost policies. Their argument lacks merit.

Appellees also assert Chickasha has not shown it paid any premium for the policies. Chickasha submitted evidence of its journals and ledgers showing amounts paid for “WC” and “PL” insurance. We conclude this is some evidence that Chickasha paid premiums for liability insurance before 1972.¹

Appellees also assert Chickasha had to present evidence of the policy limits. In this case, Chickasha presented evidence that appellees and their predecessors paid claims under the policies and wrote letters stating that another claim was within the policy’s limits.² This evidence is not evidence of the policies’ limit of coverage. Although proof of policy limits is relevant to appellees’ duty to indemnify Chickasha for its liability from a covered event under the policies, evidence of the policy limits is irrelevant to appellees’ duty to defend Chickasha.

We conclude Chickasha has presented some evidence showing the terms of the pre–1972 policies imposed a duty on appellees to defend Chickasha from any claims covered by the terms of the policies. However, we conclude Chickasha has failed to present any evidence showing its liability is within the coverage limits of the policies.

*5 We hold the trial court erred in granting the no-evidence portion of appellees’ motion for summary judgment concerning appellees’ duty under the pre–1972 policies to defend Chickasha in the underlying litigation. However, we also hold the trial court did not err in granting the no-evidence motion for summary judgment concerning appellees’ duty under the pre–1972 policies to indemnify Chickasha in the underlying litigation. We resolve Chickasha’s issue 1(a) in its favor in part and against it in part.

POST–1972 POLICIES

Umbrella Policies

In issue 1(c), Chickasha questions “[w]hether Appellees proved that there was no possibility of coverage under certain missing post 1972 umbrella policies, even though they failed to show that the terms and conditions of those policies barred coverage.” (Emphasis added.) The record shows appellees attached copies of the umbrella policies for 1972 through 1981 and 1982 through 1990 to the affidavit of Kathleen Fikes, its Assistant Vice President, Environmental and Umbrella Claims. Byrne’s affidavit states Chickasha did not purchase liability coverage from appellees during 1981 to 1982. Chickasha does not point out what umbrella policies are missing. Because appellees presented evidence of the umbrella policies, none of the umbrella policies is missing.

Appellees moved for summary judgment on the umbrella policies on the ground that coverage was excluded by the pollution-exclusion clause in the policies. Chickasha argues the trial court erred in granting appellees’ motion for summary judgment on the umbrella policies because the pollution-exclusion clause in those umbrella policies does not exclude coverage in this case.

In the insuring clause in the umbrella policies, appellees promised to indemnify Chickasha for all sums Chickasha would become legally obligated to pay as damages and expenses because of:

(i) personal injury caused by, or

(ii) property damage caused by, or

(iii) advertising liability arising out of an occurrence which takes place during the policy period anywhere in the world.

The umbrella policies defined “occurrence”³ as follows:

“Occurrence” means an accident which takes place during the policy period, or that portion within the policy period of a continuous or repeated exposure to conditions, which causes personal injury, property damage or advertising liability neither expected nor intended by the insured.

With respect to personal injury and property damage, all such exposure to substantially the same general conditions existing at or emanating from one location or source shall be deemed one occurrence.

The umbrella policies defined “personal” injury as meaning:

(1) bodily injury, sickness, disease, disability or shock, including death arising therefrom, or, if arising out of the foregoing, mental anguish and mental injury;

(2) false arrest, false imprisonment, wrongful eviction, wrongful detention, or malicious prosecution; or

*6 (3) libel, slander, defamation of character, humiliation, or invasion of the rights of privacy.

The umbrella policies also contained the following pollution-exclusion clause:

It is agreed that this policy does not apply to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.

(Emphasis added.)

According to the language in the umbrella policies, they insured against “personal injury,” which includes “bodily injury” as well as: “sickness, disease, disability or shock, including death arising therefrom, or, if arising out of the foregoing, mental anguish and mental injury”; false arrest or imprisonment, wrongful eviction or detention and malicious prosecution; and defamation. The pollution-exclusion clause, however, excludes from coverage only those claims involving “bodily injury or property damage.” Contrary to appellees’ assertions, the pollution-exclusion clause does not purport to exclude from coverage all the other types of “personal injury” covered by the insuring clause of the umbrella policies.⁴ The claimants in the underlying litigation listed injuries including severe emotional distress and fear of adverse health consequences, mental anguish, skin irritations, cancer, tumors, birth defects, autoimmune disorders, physical impairment, scarring, and disfigurement. Clearly, these damages fall within the definition of personal injury as “sickness, disease, disability or shock,” which are not subject to the pollution-exclusion clause.

Because the pollution-exclusion clause in the umbrella policies does not exclude all coverage under those policies, we conclude appellees failed to prove as a matter of law there was no coverage for the underlying litigation. We hold the trial court erred in granting appellees’ motion for summary judgment on Chickasha’s claim for coverage under the umbrella policies. We resolve Chickasha’s issue 1(c) in its favor.

Primary Policies

In its issue 1(b), Chickasha questions “[w]hether Appellees proved that there was no possibility of coverage under certain missing post–1972 primary policies, even though they did not attach the policies to the motion, did not admit that they sold the policies, did not establish the terms and conditions of the policies, and did not prove that those terms and conditions barred coverage.” Appellees asserted in their motion for summary judgment that a pollution-exclusion clause in those policies excluded coverage in the underlying litigation. Appellees attached a copy of the primary liability insurance policy for July 1, 1985 to July 1, 1986 to Fikes’ affidavit.⁵ The record does not contain copies of policies for primary general liability coverage for 1972 through June 30, 1980 or July 2, 1984 through June 30, 1985. However, Fikes stated in her supplemental affidavit that the primary liability policies between July 1, 1972 and July 1, 1985 “would have included the insuring clause and the sudden and accidental pollution exclusion found in the 1982–83 Umbrella Policy.”⁶

*7 According to Fikes’ affidavit, the same insuring and pollution-exclusion clauses in the umbrella policy were contained in the 1972 through 1985 primary liability policies. Therefore, appellees’ argument that the pollution-exclusion clause barred all coverage under these policies contains the same flaws as their argument that the pollution-exclusion clause in the umbrella policies barred coverage under those policies. Because appellees’ motion for summary judgment does not establish their entitlement to summary judgment as a matter of law on this issue, we hold the trial court erred in granting the motion for summary judgment. We resolve Chickasha’s issue 1(b) in its favor.

Having resolved this issue in Chickasha’s favor, we need not reach Chickasha’s second issue questioning whether the trial court erred in overruling Chickasha’s objections to Fikes’ affidavit. See Tex.R.App. P. 47.

In its fifth issue, Chickasha asserts the trial court erred in denying its cross-motion for partial summary judgment on appellees’ duty to defend under the policies. Appellees assert this Court lacks jurisdiction to review a cross-motion for partial summary judgment. This Court has so held. See Pac. Mut. Life Ins. Co. v. Ernst & Young & Co., 10 S.W.3d 798, 810 (Tex.App.-Dallas 2000), rev’d on other grounds, 51 S.W.3d 573 (Tex.2001); see also Krohn v. Marcus Cable Assocs., L.P., 43 S.W.3d 577, 583 (Tex.App.-Waco 2001, pet. granted). Accordingly, we dismiss Chickasha’s fifth issue.

CHICKASHA’S BAD FAITH CLAIMS

In its third issue, Chickasha questions whether the trial court erred in granting summary judgment on its bad-faith claims. Chickasha asserts the trial court erred in ruling that: (a) Arizona law did not apply to Chickasha’s bad-faith claims even though Chickasha was located in Arizona; (b) Chickasha failed to state a bad-faith claim under Texas law; and (c) Chickasha failed to state a bad-faith claim under Arizona law.

Bad–Faith Claim Under Texas Law

In issue 3(b), Chickasha asserts the trial court erred in determining Chickasha did not state a bad-faith claim under Texas law. Chickasha’s petition contains one bad-faith claim: count seven, which styles the claim as one for “BAD FAITH/BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING UNDER ARIZONA LAW AGAINST DEFENDANTS HOUSTON GENERAL, HOUSTON GENERAL LLOYDS, GEICO, AND TOKIO MARINE.” Nothing in the allegations suggests Chickasha intended to assert a bad-faith claim under Texas law. We conclude Chickasha did not file a bad-faith claim under Texas law; accordingly, its argument lacks merit. We resolve Chickasha’s issue 3(b) against it.

Applicability of Arizona Law

In issue 3(a), Chickasha asserts the trial court erred in determining that Arizona law did not apply to Chickasha’s bad-faith claim. Appellees asserted in their motion for summary judgment that Arizona law did not apply to Chickasha’s claims. Which state’s law governs an issue is a question of law decided by the court. Torrington v. Stutzman, 46 S.W.3d 829, 848 (Tex.2000). In Texas, choice-of-law issues in tort cases are decided using the Restatement’s most-significant-relationship test. Id.; Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex.1979); see Hull & Co. v. Chandler, 889 S.W.2d 513, 517 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (bad-faith case); see also Restatement (Second) of Conflict of Laws §§ 6, 145 (1971). Relevant contacts in tort cases include:

*8 (a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil[e], residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Restatement (Second) of Conflict of Laws § 145(2) (1971); see Torrington, 46 S.W.3d at 848 (quoting the Restatement). “In a choice of law analysis, the number of contacts with a state is not determinative.” Torrington, 46 S.W.3d at 848.

Chickasha’s principal place of business is in Arizona. Therefore, any injury to it occurred in Arizona. The alleged bad-faith conduct injuring Chickasha was appellees’ denying knowledge of Chickasha’s insurance they sold Chickasha at the time they owned Chickasha; failing to explain “the nature of their corporate relationships to Chickasha”; tricking Chickasha into believing they were attempting in good faith to investigate and resolve the coverage claims when they were preparing to sue Chickasha; failing to timely provide a reasonable explanation for the denial of coverage; and asserting the pollution-exclusion clause for its denial of coverage when many of the policies did not include such a clause. The statements to Chickasha indicating the claims might be covered and the letter denying coverage issued from Houston General Insurance Company’s office in Fort Worth, Texas. Likewise, the alleged failures to act also occurred in Fort Worth, Texas.⁷

As for the parties’ place of incorporation and place of business, the record shows Chickasha is a Delaware corporation with its principal place of business in Arizona. Houston General Insurance Company and Houston General Lloyds are Texas corporations with their principal place of business in Texas. GEICO General Insurance Company is an Iowa corporation with its principal place of business in the District of Columbia. Liberty Mutual Insurance Company is a Massachusetts corporation with its principal place of business in Massachusetts. “[T]he place where the relationship, if any, between the parties is centered,” is in Texas at either Houston General Insurance Company’s office or in the Texas courts where the underlying cases are being litigated.

Chickasha argues Arizona law applies to the bad-faith claims, citing SnyderGeneral Corp. v. Great American Insurance Co., 928 F.Supp. 674 (N.D.Tex.1996), aff’d, 133 F.3d 373 (5th Cir.1998). That case involved a claim for liability insurance coverage from lawsuits pending in California for environmental damage from a factory owned by SnyderGeneral. Id. at 676. In that case, the insurer was based in Minnesota, and the company that originally owned the factory and bought the insurance was also incorporated and based in Minnesota. Id. at 677–78. The company was purchased by SnyderGeneral, based in Texas. The California lawsuits were brought after SnyderGeneral purchased the company. SnyderGeneral requested coverage and a defense from the insurer, which the insurer declined, citing the pollution-exclusion clause. The court concluded Texas law applied because the damages from the bad-faith claims occurred where SnyderGeneral was located; the insurer, although based in Minnesota, was authorized to do business in Texas; and “Texas has a significant interest in matters related to violations of its insurance laws.” Id. at 678. Chickasha argues SnyderGeneral holds Texas choice-of-law rules apply “the laws of the state where the policyholder was affected by the alleged bad-faith acts.” We disagree. Although that was the result in SnyderGeneral, the court in that case did not state that the policyholder’s location controlled the choice-of-law determination. The choice-of-law rules are clear that the policyholder’s location is one of several factors in determining the applicable law.

*9 In this case, the Arizona contacts include the facts that it is Chickasha’s place of business and is where any injury from the alleged bad-faith actions occurred. The Texas contacts include the facts that it is Houston General Insurance Company’s and Houston General Lloyds’ state of incorporation and their place of business, the place where the alleged bad-faith actions occurred, the place where the incidents leading to the claims occurred, and Texas is where the underlying litigation leading to Chickasha’s claims under the policies is proceeding. Both Texas and Arizona “ha[ve] a significant interest in matters related to violations of their insurance laws.” Id. at 678. After considering all the factors, we conclude the trial court did not err in determining Texas has the most significant relationship to Chickasha’s bad-faith claims. We resolve Chickasha’s issue 3(a) against it.

Because Texas law, not Arizona law, applies in this case, we need not consider Chickasha’s issue 3(c) asserting it stated a cause of action under the bad-faith laws of Arizona.

REMAINING CLAIMS

In its fourth issue, Chickasha questions whether the trial court erred in granting summary judgment on Chickasha’s claims for regulatory estoppel, negligent provision of loss control services, or a tort “that transcended mere breach of contract.” The only argument in Chickasha’s brief in support of this issue is the following statement in footnote 41:

The trial court further erred in rejecting Chickasha’s regulatory estoppel count. The majority of courts that have considered the drafting history of the polluter’s exclusion found that such evidence is relevant. The trial court also erred to the extent it rejected Chickasha’s count for negligent provision of loss control services, and Chickasha’s count for tortious conduct outside of the insurance contract at issue.

This conclusory argument fails to explain why the trial court erred, and it fails to cite any authority in its support. The argument is clearly insufficient to demonstrate error. Because Chickasha has not provided the necessary argument and authorities to make its complaint viable, any error is waived on appeal. See Tex.R.App. P. 38.1(h); Wilkinson v. Dallas/Fort Worth Int’l Airport Bd., 54 S.W.3d 1, 18 (Tex.App.-Dallas 2001, pet. denied), cert. denied, 534 U.S. 1128, 122 S.Ct. 1065, 151 L.Ed.2d 968 (2002); Barnum v. Munson, Munson, Pierce & Cardwell, P.C., 998 S.W.2d 284, 287 (Tex.App.-Dallas 1999, pet. denied). We resolve Chickasha’s fourth issue against it.

APPELLEES’ APPEAL

After submission of this cause, the Court discovered the trial court’s judgment was not final because it did not dispose of appellees’ claim for attorney’s fees. The trial court subsequently entered an order denying appellees’ claim for attorney’s fees. Appellees filed a notice of appeal from this order and supplemented the appellate record to include the trial court’s ruling and their notice of appeal. However, appellees have not filed a cross-appellants’ brief. Accordingly, we dismiss their cross-appeal for want of prosecution. See Tex.R.App. P. 38.8(a).

CONCLUSION

*10 We reverse the trial court’s judgment dismissing with prejudice Chickasha’s causes of action for declaratory judgment and breach of contract except as they relate to the duty to indemnify under the pre 1972 insurance policies, and we remand those causes of action to the trial court for further proceedings. In all other respects, we affirm the trial court’s judgment.

	Footnotes
1		Appellees did not assert below and do not assert in this Court that this evidence does not show the premiums paid for liability insurance before 1972.
2		The letters did not state the policy’s limits.
3		In Houston General Insurance Company’s May 27, 1998 “notice of cross-motion for summary judgment,” Houston General Insurance Company asserted the underlying litigation did not allege an “occurrence” as defined in the policies. The record does not show the trial court ruled on this motion. Appellees did not present this ground in their first supplemental motion for summary judgment, which was the motion granted by the trial court. Accordingly, we do not address the merits of that ground.
4		Appellees only response to this argument in their brief is to state, “Abundant Texas case law, however, provides that ‘personal injury’ claims do not trump the pollution exclusion. Several Texas state and federal cases address this issue head on. None sides with Chickasha.” None side with appellees on this point either because none of the cases appellees cite address it. Northbrook Indem. Ins. Co. v. Water Dist. Mgmt. Co., 892 F.Supp. 170, 172–73 (S.D.Tex.1995), and Mid Continent Cas. v. U.S. Fire Ins. Co., 1 S.W.3d 251, 252 (Tex.App.-Corpus Christi 1999, no pet.), concern a different pollution-exclusion clause, namely, the clause found in the 1985–1986 primary liability policy attached to Fikes’ affidavit, not the pollution-exclusion clause in the umbrella policies. Further although the exclusion in those cases is for “bodily injury and property damage,” the cases do not state whether the insuring clause of the policies covers claims beyond “bodily injury and property damage.” The third case cited by appellees, Decorative Ctr. v. Employers Cas. Co., 833 S.W.2d 257 (Tex.App.-Corpus Christi 1992, writ denied), did not concern a pollution-exclusion clause or the distinction in the definition within an insurance policy of “personal injury” and “bodily injury.”
5		Because Chickasha’s issue concerns only missing policies, it appears that Chickasha does not challenge summary judgment as to this policy.
6		Although Chickasha had filed copies of the primary liability policies for 1980–1981, 1982–1983, and 1983 to 1984 attached to its motion for partial summary judgment before appellees filed their motion for summary judgment, appellees did not attach copies of these policies to their motion for summary judgment. As Chickasha points out in its briefs, review of these policies shows, contrary to Fikes’ affidavit, that the insuring clause in the primary liability policies for these years is not the same as the insuring clause in the 1982 to 1983 umbrella policy. However, Chickasha failed to point out this factual issue in its response to appellees’ motion for summary judgment or in its objections to Fikes’ supplemental affidavit. Accordingly, it was not before the trial court and cannot be considered by this Court. See Clear Creek Basin Auth., 589 S.W.2d 678–79.
7		Although Chickasha’s petition complained of bad-faith actions and inactions by all appellees, the summary judgment evidence on both sides concerns only the actions and inactions of Houston General Insurance Company, incorporated and based in Texas.