Supreme Court of Texas.
TRINITY UNIVERSAL INSURANCE COMPANY and Trinity Lloyd’s Insurance Company, Petitioners,
Nicole COWAN, individually and as assignee of Gregory D. Gage, Respondent.
May 16, 1997.
Attorneys & Firms
*820 Jack McKinley, Houston, for Petitioners.
Ray Chester, David Denis Griner, Austin, for Respondent.
CORNYN, Justice, delivered the opinion for a unanimous Court.
We decide in this case the meaning of two terms commonly used in insurance policies. First, we decide whether mental anguish alone is a “bodily injury” under a standard homeowners’ insurance policy defining “bodily injury” as “bodily harm, sickness or disease.” We conclude that, absent an allegation of physical manifestation of mental anguish, a claim of mental anguish is not a “bodily injury” as defined in the policy for purposes of invoking the duty to defend. Second, we decide whether an insured’s intentional tort that results in unintended injuries is an “accident,” and thus an “occurrence” under the same policy. We conclude that it is not, and thus there is no coverage under the policy.
Gregory Gage was working at an H.E.B. Photo Place as a photo lab clerk when a roll of film containing somewhat revealing pictures of Nicole Cowan was delivered for developing. Gage made extra prints of four of the pictures and took them home. He later showed them to some friends and left the pictures with one friend with instructions to throw them away. That friend, however, showed the pictures to someone else, who *821 was a friend of Cowan and who told her of Gage’s actions. Cowan then sued Gage and H.E.B., alleging, among other things, negligence and gross negligence. Cowan alleged that she had suffered “severe mental pain, a loss of privacy, humiliation, embarrassment, fear, frustration, mental anguish, and [would] continue to do so in the future.” Gage, who was about twenty years old and living with his parents at the time, notified his parents’ homeowners’ insurance carrier, Trinity Lloyd’s Insurance Company, a subsidiary of Trinity Universal Insurance Company (collectively “Trinity”), of the suit.
Trinity initially defended Gage under a reservation of rights, but later denied coverage and withdrew its defense. Cowan settled with H.E.B., and then Gage agreed to assign to Cowan any claims he might have against Trinity in exchange for her promise not to execute against any of his assets except any coverage afforded by the Trinity policy. During the ensuing nonjury trial against Gage, at which he did not appear or otherwise defend, Cowan and her mother testified that Nicole suffered mental anguish, along with headaches, stomachaches, and sleeplessness as a result of Gage’s actions. The trial court found Gage negligent and grossly negligent, and awarded Cowan $250,000.
Cowan then filed this lawsuit against Trinity, bringing a claim as Gage’s judgment creditor, and also bad faith claims as Gage’s assignee. Both parties moved for summary judgment, Cowan on the question of insurance coverage and Trinity on both coverage and bad faith. The trial court granted Cowan’s motion and denied Trinity’s, leaving the issue of damages, the bad faith claims, and attorney’s fees for trial.
Cowan and Trinity settled most of their dispute on the eve of trial. Trinity agreed to pay the $250,000 underlying judgment, postjudgment interest, and $100,000 in attorney’s fees, and Cowan agreed to waive any claim for extracontractual damages above that amount. Trinity expressly reserved the right to appeal the trial court’s partial summary judgment on coverage and whether Trinity was bound by the amount of the underlying judgment. The trial court signed a final judgment incorporating the parties’ agreement. Trinity appealed, and the court of appeals affirmed. 906 S.W.2d 124.
Because our decision on the coverage issue is dispositive of this entire controversy, we do not reach Trinity’s challenge to the amount of damages, see TEX.R.APP. P. 81(c), except to note that it is controlled by our recent decision in Id. at 714.
On the coverage issue, Trinity complains of the court of appeals’ holding that Cowan’s alleged “severe mental pain, ... loss of privacy, humiliation, embarrassment, fear, frustration, [and] mental anguish” were “bodily injur [ies]” resulting from a covered “occurrence” under the policy. 906 S.W.2d at 130–31, 133 n. 4.
Preliminarily, we note that under the “complaint allegation rule,” factual allegations in the pleadings and the policy language determine an insurer’s duty to defend. American Alliance Ins. Co. v. Frito–Lay, Inc., 788 S.W.2d 152, 153 (Tex.App.—Dallas 1990, writ dism’d).
I. Bodily Injury
A. Pure Mental Anguish Is Not Bodily Injury
Trinity’s standard homeowners’ policy provides, in relevant part:
Coverage C (Personal Liability)
If a claim is made or suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies,
1. pay up to our limit for the damages for which the insured is legally liable.
2. provide a defense at [Trinity’s] expense by counsel of [Trinity’s] choice even if the suit is groundless, false or fraudulent. [Trinity] may investigate and settle any claim or suit that [Trinity] decide[s] is appropriate.
“Bodily injury” is defined as “bodily harm, sickness or disease. This includes required care, loss of services and death that results.”
Cowan contends that two Texas cases, 693 S.W.2d at 33.
741 S.W.2d. at 374. One might, we concede, infer from language in that opinion that mental anguish is a bodily injury:
Loss of consortium, therefore, does not involve any allegation of physical harm, nor does it include an element of mental anguish. Mental anguish is a cause of action separate and distinct from loss of consortium. Moore v. Lillebo, 722 S.W.2d 683, 687–88 (Tex.1986).1 In the present case, Mrs. McGovern neither alleged physical harm nor mental anguish. Her claim for loss of consortium, therefore, cannot constitute a claim of “bodily injury.”
Id. at 374–75.
But on closer scrutiny, Rosenzweig v. Dallas Area Rapid Transit, 841 S.W.2d 897, 898 (Tex.App.—Dallas 1992, writ denied) (loss of companionship and consortium, mental anguish, and loss of household services were derivative claims, and thus not separate “bodily injury” under the Texas Tort Claims Act.)
Still, at least one of these cases does appear to presume that the person actually involved in an auto accident could recover for purely emotional injuries. See McGovern to the extent that it might suggest that coverage exists for “bodily injuries” that are purely emotional in nature.
That Texas tort law allows for recovery of mental anguish damages unaccompanied by physical manifestations in some circumstances, see SL Indus., 607 A.2d at 1275.
Nor do we find cases construing the term “bodily injury,” “injury,” or “personal injury” as those terms are used in the Texas Tort Claims Act and Texas Workers’ Compensation Act helpful. Just as the insurance policy in this case is controlled by the definitions contained within it, see Ramsay, 533 S.W.2d at 346, those statutes are to be construed according to the definitions supplied by the statutes themselves.
We hold that “bodily injury,” as defined in the Trinity policy, does not include purely emotional injuries, such as those alleged by Cowan, and unambiguously requires an injury to the physical structure of the human body. Our decision comports with the commonly understood meaning of “bodily,” which implies a physical, and not purely mental, emotional, or spiritual harm. See Knapp v. Eagle Property Management Corp., 54 F.3d 1272, 1284 (7th Cir.1995) (natural reading of “bodily injury, sickness, or disease” indicates that “bodily” modifies all three terms thereby covering only injuries with some physical component). WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 245 (1966) also defines “bodily” as “having a body or a material form: physical, corporeal.” Likewise, BLACK’S LAW DICTIONARY 175 (6th ed.1990) defines “bodily” as “[p]ertaining to or concerning the body; of or belonging to the body or the physical constitution; not mental, but corporeal.”
Many other courts have previously considered the scope of policy language identical or very similar to that used in the Trinity policy. Under such circumstances, when identical insurance provisions will necessarily be interpreted in various jurisdictions, we think it prudent to strive for uniformity as much as possible. National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 522 (Tex.1995).
A substantial majority of those courts considering the question that now confronts us have held that purely mental injuries, such as those pleaded by Nicole Cowan, do not constitute “bodily injury.”2 A minority of *825 courts disagree, holding that a purely emotional injury constitutes “bodily injury.”3
B. Physical Manifestations Are Not Implicit in a Claim for Mental Anguish
At trial, Cowan testified that she had experienced headaches, stomachaches, and sleeplessness. But it is undisputed that she never alleged these or any physical manifestations of her alleged mental injuries. The court of appeals held “that an allegation of mental anguish implicitly raises a claim for the resulting physical manifestations” such that evidence and damages for physical manifestations accompanying mental anguish and emotional distress will be allowed. National Union Fire Ins. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139 (Tex.1997). Accordingly, even assuming that physical manifestations are inseparable from mental anguish in some cases, in the context of determining an insurer’s duty to defend we will not presume a claim for physical manifestations when none is pleaded.4
In concluding otherwise, the court of appeals relied primarily upon Id. The court continued:
The character of the injury pled was such that certain physical conditions and pain could result therefrom. Since physical manifestations of mental anguish or distress were closely interrelated and, in fact, inseparable from mental anguish, they cannot be construed to constitute a new or *826 different cause of action or a departure from the pleadings.
Cowan also refers us to Id. at 489 (emphasis added). While we do not dispute that mental injuries may manifest themselves physically we cannot thereby conclude that a claim for mental injuries necessarily implies a claim for physical manifestations.
We disagree with Boyles v. Kerr, 855 S.W.2d 593, 595–98 (Tex.1993).
Our conclusion that a claim for physical manifestations of mental anguish is not implicitly raised by a pleading of mental anguish is also in accord with several other jurisdictions that have addressed this specific issue. See, e.g., Knapp v. Eagle Property Management Corp., 54 F.3d 1272, 1285 (7th Cir.1995) (refusing to take judicial notice that depression is often manifested physically, applying Wisconsin law).
Thus, because Cowan did not plead any physical manifestations of her alleged mental injuries, she did not plead a “bodily injury” such that Trinity’s duty to defend was triggered.5 Even if Cowan had amended her pleadings to allege “bodily injury,” Trinity contends that coverage would nevertheless be precluded because there was no “occurrence,” as that term is used in its policy. We now turn to that issue.
Trinity’s policy defines “occurrence” as “an accident, including exposure to conditions, which results in bodily injury or property damage during the policy period.” There was no “occurrence” under the facts of this case, Trinity argues, because there was no “accident.” The term “accident” is undefined in the policy.
It is undisputed that Gage intentionally made the copies of Cowan’s photographs and showed them to his friends, although Gage testified that he did not intend for Cowan to learn of his actions. Relying on Id. We disagree.
Id. at 553.
More significant for this case, however, Heyward compels the conclusion that Gage’s actions were not accidental.
This holding is also consistent with Id. In rejecting Maupin’s argument that the removal of the dirt from the property was an “accident,” the Court stated:
The plaintiff’s act in trespassing upon the Meyers’ property did not constitute an accident. They did what they intended to do by removing the [dirt] from the property. The fact that they were unaware of the true owner of the property has no bearing upon whether the trespass was caused by an accident. The respondent’s acts were voluntary and intentional, even though the result or injury may have been unexpected, unforeseen and unintended. We conclude there was no coverage under the policy for damages caused by mistake or error as to the ownership of the property in question. The damage was not an accident or occurrence within the meaning of this policy.
McDaniel Bros. v. Wilson, 70 S.W.2d 618, 621 (Tex.Civ.App.—Beaumont 1934, writ ref’d) (holding that “every unauthorized entry upon land of another is a trespass” even if no damage is done and “the intent or motive prompting the trespass is immaterial”).
As in Thomason v. United States Fidelity & Guar. Co., 248 F.2d 417, 419 (5th Cir.1957)). Nor did Gage negligently invade Cowan’s privacy; he intentionally made the copies of her photographs and showed them to his friends. We conclude, therefore, that there was no coverage under the policy for damages caused as a result of Gage’s invasion of Cowan’s privacy.
Our recent decision in Connecticut Gen. Life Ins. Co. v. Shelton, 611 S.W.2d 928, 930–31 (Tex.Civ.App.—Fort Worth 1981, writ ref’d n.r.e.).
We also reject Trinity’s argument, however, that if an actor intended to engage in the conduct that gave rise to the injury, there can be no “accident.” First, this construction of the term “accident” would render surplusage the intentional injury exclusion of many insurance policies. See Orkin Exterminating Co., 416 S.W.2d at 400.
While older insurance policies defined “occurrence” as “an accident ... which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured,” see, e.g., Columbia Mut. Ins. Co. v. Fiesta Mart, Inc., 987 F.2d 1124, 1128 (5th Cir.1993) (fraudulent acts not an “occurrence”).
III. No Duty to Investigate Coverage
Finally, Cowan argues that, because Trinity did not investigate whether there was a reasonable basis for denying coverage after Gage sought coverage, it cannot complain about the subsequent developments in the Cowan v. Gage suit. To the contrary, under the “complaint allegation rule” an insurer is entitled to rely solely on the factual allegations contained in the petition in conjunction with the terms of the policy to determine whether it has a duty to defend. “The duty to defend is not affected by facts ascertained before suit, developed in the process of litigation, or by the ultimate outcome of the suit.” American Alliance Ins. Co. v. Frito–Lay, Inc., 788 S.W.2d 152, 154 (Tex.App.—Dallas 1990, writ dism’d). Thus, there was no duty to investigate coverage under these facts.
Because we hold that Cowan’s alleged injuries were not “bodily injuries” resulting from a covered “occurrence,” as those terms are defined in Trinity’s insurance policy, we reverse the judgment of the court of appeals and render judgment that Cowan take nothing.
We have since held that mental anguish is only an element of recoverable damages when some otherwise cognizable legal duty is breached. See 722 S.W.2d at 688 (emphasis added).
See, e.g., United States Fidelity & Guar. Co. v. Shrigley, 26 F.Supp. 625, 627–28 (W.D.Ark.1939).
See Board of County Supervisors v. Scottish & York Ins. Servs., Inc., 763 F.2d 176, 177 n. 1 (4th Cir.1985).
This holding does not affect a party’s right to introduce evidence of physical manifestations of mental anguish against a tortfeasor under the “fair notice” rule. See, e.g., TEX.R. CIV.P. 45(c) relieves pleader of the burden of pleading evidentiary matters with meticulous particularity). Our holding extends only to the duty to defend under the complaint allegation rule.
Because we resolve this case on other grounds, we do not decide whether Cowan’s headaches, stomachaches, and sleeplessness, as proved at trial, would be a bodily injury sufficient to invoke Trinity’s duty to indemnify.
The Gages’ policy excludes coverage for bodily injury or property damage “caused intentionally by or at the direction of the insured.” Because we decide Gage’s conduct is not an “accident,” we do not reach the question of whether the intentional injury exclusion also applies to Gage’s conduct.