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Click here for the full text of this decision FACTS:Ronald J. Hettler and William David Brenholtz began doing business together as Hettler-Brenholtz Insurance Agency on June 1, 1994, per an informal oral agreement. Hettler was president, Brenholtz was vice-president and Robin Hettler was an officer of the corporation. The agency obtained insurance coverage for three years under a Commercial General Liability Policy issued by Travelers. On February 13, 1997, Ronald delivered to Brenholtz his last paycheck along with a handwritten letter terminating his services as of Friday, the 14th, stating “this isn’t working.” Brenholtz promptly filed suit against the Hettlers and the corporation seeking temporary relief. Then, Brenholtz sought an accounting and damages and alleged claims for breach of contract, fraud, conversion and interference with business relations. After Travelers declined to defend the Brenholtz suit, the Hettlers proceeded with their defense and filed an action against Travelers seeking damages for failure to defend and asserting claims under Articles 21.21 and 21.55 of the Insurance Code, breach of duty of good faith and fair dealing and attorney’s fees. Appellants Ronald and Robin Hettler and Cornwall Insurance Agency Inc. d/b/a Hettler-Brenholtz Insurance (collectively, the Hettlers) claimed on appeal that the trial court erred in rendering summary judgment that appellee, The Travelers Lloyds Insurance Company (Travelers), did not have the duty to provide the Hettlers a defense in the suit brought by Brenholtz, nor a duty to indemnify them for damages awarded. The judgment also denied them any relief on their claims. HOLDING:Affirmed. The court states that the duty to defend arises if the factual allegations against the insured, when fairly and reasonably construed, state a cause of action potentially covered by the policy. In determining the applicability of provisions of the policy, the court focuses on the facts alleged in Brenholtz’s petition that show the origin of the damages, not the legal theories asserted for recovery and indulge a liberal interpretation of the meaning of those allegations. The Hettlers contend the trial court erred in determining that Travelers had no duty to defend Brenholtz’s wrongful eviction complaint. The court disagrees and notes that although they alleged in the trial court that Travelers had the duty to defend based on claims of fraud, conversion and interference with business relationships, they contend only that the duty to defend existed under the wrongful eviction coverage of the policy. The court finds that there are no allegations in Brenholtz’s petition asserting any rights in any “room, dwelling, or premises,” co-tenancy, joint leasehold or otherwise. The court concludes that the facts relied on by the Hettlers to trigger this coverage do not suggest that Brenholtz claimed a superior right of occupancy, an interest in the premises, or his denial of access to the premises. Therefore, the court overrules the first point of error. By their second point, the Hettlers contend the trial court erred in determining that Travelers had no duty to defend Brenholtz’s claims of libel and slander. The court disagrees and finds that Brenholtz did not allege any facts nor describe the alleged statements which the Hettlers suggest are reasonably capable of a defamatory meaning. Disregarding the conclusions of defamation, slander, libel and invasion of privacy, the court finds that Brenholtz’s allegation that the Hettlers contacted his customers at a time when he was unable to obtain access did not contain the text of any statements made, defamatory or otherwise. By their final point, the Hettlers assert error by the trial court in holding that Travelers had no duty to indemnify them. The court again disagrees and finds that, by its counterclaim, Travelers also sought a determination that it did not have the duty to indemnify the Hettlers for any damages awarded. Relying on the jury’s findings supporting a judgment in favor of Brenholtz against the Hettlers, Travelers sought summary judgment that it had no duty to indemnify the Hettlers. However, the Hettlers did not file any objection or response to the ground asserting no duty to indemnify. The court concluded that issues not expressly presented to the trial court by written response or otherwise, may not be considered on appeal as grounds for reversal. OPINION:Reavis, J.; Quinn, C.J., and Reavis, J., and Boyd, S.J.

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