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Click here for the full text of this decision FACTS:Cynthia English and her companies, English Land Service and American States Insurance Co., (referred to as English) contracted with BGP International Inc. to provide seismic exploration services on land in Hidalgo County. BGP was required to get the permission of all of the approximately 15,000 landholders before beginning its operations. The contract between BGP and English stated that BGP would, protect, defend, indemnify and hold harmless English against loss or damage arising out of any claim or suit, including trespass, resulting from operations if BGP began operations without getting permission from 100 percent of the affected property owners. BGP began its operations before getting everyone’s permission. Consequently, 43 of the owners filed suit against BGP and English for trespass and various negligence actions. English demanded that BGP defend it. When BGP refused, English sued for a declaration that BGP was required to defend and indemnify English against the property owners’ suit. On cross motions for summary judgment, the trial court granted BGP’s motion and denied English’s motion. The trial court agreed with BGP that English’s request for indemnification was premature until after the property owners’ suit was completed. On appeal, English argues that BGP’s duty to defend exists separately from its duty to indemnify. HOLDING:Reversed and rendered. The court rejects BGP’s argument that English’s suit is nonjusticiable. The court points out that the Texas Supreme Court in Farmer’s Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81 (Tex. 1997), made it clear that a party’s duty to defend may arise even when it is later determined that the party has no duty to indemnify. Because the duty to defend may be decided in an action for declaratory judgment, the court says, the trial court incorrectly determined that English’s claim was premature. The court then considers whether BGP had a duty to defend, and therefore, whether English’s request for a declaratory judgment should have been granted. Noting that the duty to defend is determined by the language of the contract and the allegations of the pleadings, the court observes that the contract between English and BGP explicitly stated that BGP would defend and indemnify English in suits arising from BGP’s operations undertaken without the permission of 100 of the landowners. Consequently, BGP had a duty to defend English, separate and apart from its duty to indemnify English, for suits falling within the terms of the contract. The court further observes that the property owners’ suit asserts one trespass claim and six negligence claims. The court finds, however, that all of the negligence causes of actions primarily stem from the fact that BGP was exploring the land without all of the property owners’ permission. Therefore, just because the property owners used the words “negligence” and “negligence per se” does not mean that the causes of action were not covered by the duty to defend. Even if the negligence actions were considered separate from the trespass action, the court still finds BGP has a duty to defend. “When some theories of liability fail to give rise to the duty to defend but other theories do, the party should be required to provide a defense,” the court writes. “We see no reason to segregate the claims and require BGP to defend the trespass actions while separately requiring English to defend the remaining causes. Requiring such a separation would do little to promote judicial economy and would likely cause additional, unnecessary expense to the 43 plaintiffs by forcing them to litigate their related claims in separate proceedings.” BGP also argues that the contract does not satisfy the express negligence doctrine because it does not expressly indemnify English from its own negligence. The court finds that the contract clearly does not indemnify English from its own negligent acts. Furthermore, the express negligence doctrine does not apply to non-negligent actions. OPINION:Hudson, J.; Yates, Anderson and Hudson, JJ.

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