V.L. PROPERTIES, INC., Plaintiff-Appellant, v. ALLEGHANY UNDERWRITING RISK SERVICES LTD./LLOYD'S OF LONDON, Defendant-Appellee, 130 F. App'x 675

PER CURIAM: This diversity suit under Texas law concerns which deductible is applicable to an insurance claim. Lloyd’s issued the policy to V.L. Properties.

Summary judgment was rendered for Lloyd’s. We reverse. The insured owns a yacht basin on the Gulf Coast. In 2001 strong winds caused property damage to the facility estimated at $64,410.22. While the parties agree that the damage giving rise to the insurance claim was caused by wind, the record is limited regarding the weather conditions accompanying the winds or the extent or magnitude of the winds. The original petition contains a paragraph, admitted in Lloyd’s answer, stating only that there were no witnesses to the “bad weather,” that according to a newspaper, “a spokesperson for the U.S.

Weather Service said that the wreckage could have been caused by a tornado or straight-line winds,” that there was no damage to neighboring properties, and that the damage to the yacht basin “was restricted to a small portion of the overall property.” The policy consists of a Certificate of Insurance comprising the first three pages, followed by a printed set of Marina Property Insurance Clauses. The Clauses begin with a set of

Definitions. The certificate provides only for insurance of “Piers & Floating Docks Etc” under “Section 3.” There are no sections 1 or 2. The dispute concerns the amount of the deductible.

Section 3 of the Certificate includes the following language: Deductible each accident 1. In respect of Catastrophe which will include wind, wave action, earthquake and flood USD 50,000 2. Any other loss USD 5,000 Although the term “Catastrophe” is capitalized, it is not defined in the

definitions

section or elsewhere. In granting

summary judgment, the district court held as a matter of law that the $50,000 deductible applied because the damage was caused by wind. The court accepted Lloyds’s position that the policy unambiguously provides that any damage to the insured property caused by wind was a “catastrophe” under the policy and subject to the higher deductible. Under Texas law, insurance policies are interpreted in accordance with the rules of construction that apply to contracts generally. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995).

If an insurance policy is expressed in unambiguous language, its terms will be given their plain meaning and it will be enforced as written. Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984). If, however, a contract is susceptible to more than one reasonable

interpretation, a court will resolve any ambiguity in favor of coverage. Id. “[W]hen the language chosen is susceptible of more than one construction, such policies should be construed strictly against the insurer and liberally in favor of the insured.” Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 666 (Tex.1987). Whether the contract is ambiguous is a question of law for the court to decide. Nat’l Union, 907 S.W.2d at 520. The mere fact that the parties disagree as to coverage does not create an ambiguity, Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex.1994).

Extrinsic evidence cannot be admitted for the purpose of creating an ambiguity. Nat’l Union, 907 S.W.2d at 520. If the provisions of the insurance contract can be given a “definite or certain legal meaning,” then the insurance policy is not ambiguous. Id. We think it is unreasonable to construe the language to make any wind damage a catastrophe. The terms used in the policy should be given their plain, ordinary meaning unless the policy itself shows that the parties intended terms to have a different, technical meaning. Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex. 1990).

The word “catastrophe” has a plain and ordinary meaning: a momentous tragic event or an utter failure. See Merriam-Webster’s Collegiate Dictionary 179 (10th ed.2002). It is not given a contrary meaning in the

definitions

section of the policy. Further, if Lloyds as the drafter intended the higher deductible to apply to any event resulting in damages caused by wind, and not otherwise excluded from coverage, it could have used the term “any Insured Event caused by” instead of “Catastrophe which will include.” Insured Event is a term included in the

definitions section, and means “[a]n event which causes loss or damage which is recoverable under this insurance.” Or Lloyds could have substituted “loss” for catastrophe, which in context would more clearly indicate that losses caused by wind and the other stated causes are subject to the higher deductible of subpart 1 of the deductible provision, regardless of the amount of loss, while “[a]ny other loss” is subject to the lower deductible of subpart 2. We will not decide on this

summary judgment record whether this particular event could be held to be a catastrophe to the insured’s facility, and we leave that to further development in the district court. REVERSED and REMANDED. Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.