# State Farm Fire & Casualty Co. v. S.S. > Texas Supreme Court · September 10, 1993 · 858 S.W.2d 374 URL: https://www.frixlaw.com/law-library/cases/9676695 ## Case - **Full name:** STATE FARM FIRE & CASUALTY COMPANY, Petitioner, v. S.S. & G.W., Respondents - **Court:** Texas Supreme Court - **Decided:** September 10, 1993 - **Citations:** 858 S.W.2d 374; 1993 WL 233452 - **Precedential status:** Published - **Opinion:** Dissent by Hecht - **Judges:** Cornyn, Enoch, Gonzalez, Hecht, Hightower, Opinions, Phillips - **Cited by:** 1,017 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9676695 ## How later opinions describe it (automated extraction) - holding in a summary judgment context that when the order granting the summary judgment explicitly states the grounds relied upon in granting the summary judgment and the underlying motion contains other independent grounds for the same relief, the summary judgment can be affi… - stating that in Maupin the court "held that when the insured’s acts were voluntary and intentional and the injury is the natural result of the act, the damage was not an accident within the meaning of the policy even though the injury may have been unexpected, unforeseen and u… - stating that when there are multiple grounds for summary - 11 - 04-10-00617-CV judgment and the order does not specify the ground on which the summary judgment was granted, appealing party must negate all grounds on appeal - explaining that when the district court’s order granting summary judgment does not specify the ground relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious - stating that when there are multiple grounds for summary judgment and the order does not specify the ground on which the summary judgment was granted, the appealing party must negate all grounds on appeal ## Opinion text HECHT, Justice, dissenting. I would hold that as a matter of law S.S.’ claim against G.W. is for injuries which he intentionally caused and which are thus excluded from coverage under his homeowner’s policy. Accordingly, I dissent. I When G.W. had sexual intercourse with S.S., he knew he had genital herpes, but he did not tell S.S. G.W. was a doctor of optometry, and he had read medical books on the disease. He recognized its symptoms and knew that he had suffered them for years. He knew that herpes is highly contagious and that it is transmitted by sexual contact. He knew he had experienced an outbreak of symptoms — open sores on his genitals — three to four weeks before the night of his thirtieth birthday when he met S.S. at a nightclub and took her to his house. He knew all of this, but he did not tell S.S. before he had sexual intercourse with her. He did not use a condom. The next morning, when he felt the symptoms of his disease coming on again, he told her. She was, in her words, “real upset”. The next day G.W. told S.S. he wanted to continue to see her and “be her lover”. When she declined, he said, “Well, you have to date me because I may have given you herpes.” A week later she began experiencing the symptoms of herpes. 1 Had S.S. known G.W. had herpes, she would not have had intercourse with him. G.W. did not forget to tell her about his condition before they had intercourse; he intentionally did not tell her. His reason, he says, was that he believed he could not transmit the disease unless he was experiencing its symptoms, which did not begin to occur until the morning after their encounter. Assuming that this truthfully ex *387 plains his motivation, it does not alter the fact that all G.W.’s actions were intentional. I agree with the Court that a person is considered to have intended those consequences which are substantially certain to follow from his actions. The Court focuses on whether G.W. was substantially certain that his liaison with S.S. would cause her to contract herpes. This is not, in my view, the relevant inquiry. The question, rather, is whether G.W. was substantially certain that having sexual intercourse with S.S. without first disclosing his condition to her would injure her, even if she did not contract herpes. It was no surprise to G.W., nor could it have been, that S.S. was extremely upset at having been exposed to herpes without her knowledge. The exposure, and whatever injuries resulted, were caused intentionally. The Court refers to encounters like this one as “the voluntary sexual acts of consenting adults”. Ante at 379. This is a serious mischaracterization of S.S.’ behavior. S.S. did not consent to exposure to herpes. She was unaware of G.W.’s condition, and had she known, she would have avoided it. She volunteered and consented to their encounter in the sense that she was not coerced against her will. But she did not consent in any legally significant way. Restatement (Second) of ToRts § 892B (1979). To conclude as the Court does that G.W.’s conduct may not have been intentional, in my view, defies common sense. He may have been mistaken about the nature of herpes, but he was very deliberate in his conduct toward S.S. I would hold that this conduct is not covered by G.W.’s homeowner’s policy. II State Farm also contends that it owes G.W. and S.S. nothing because G.W. did not cooperate in the defense of S.S.’ claim. When S.S. sued G.W., he did not defend against her claim but agreed to the rendition of a judgment against him for $1,000,-000, provided that S.S. would make no efforts to collect any part of it from him. He then assigned S.S. all actions he might have against his homeowner’s insurance carrier, State Farm Fire and Casualty Company, keeping for himself the right to two-thirds of any damages S.S. recovered against State Farm for bad faith or statutory violations. State Farm argues that G.W.’s actions demonstrate a lack of cooperation as a matter of law. The trial court did not grant summary judgment on this ground, and the Court therefore holds that it cannot be considered on appeal. I disagree, for the reasons set forth by Justice Gonzalez in his dissenting opinion. Rule 81(c), Tex.R.App.P., requires the court of appeals, when reversing a judgment of the trial court, to render the judgment that should have been rendered, unless a remand is necessary. This rule alone authorizes the appeals court to render judgment on a ground urged for summary judgment but not ruled on by the trial court. The rule encourages trial courts to be specific in their rulings without risking remands, rather than simply granting summary judgment motions in their entirety in order to maximize the chances of affirmance. However, I would not go so far as to hold that an appellate court should always address grounds for summary judgment raised by motion in the trial court but not expressly adjudicated. If it appears that a ground was abandoned in the trial court, or was not fully addressed, or has not been fully argued on appeal, it may be inappropriate to render judgment upon it. In this case, as egregious as G.W.’s conduct appears to have been, I cannot determine from the record before us that State Farm has established its noncooperation defense as a matter of law. At one point State Farm denied coverage of S.S.’ claim, and it is not clear whether G.W. previously breached his duty to cooperate, or whether any subsequent breach was excused. I intimate no view on whether State Farm’s motion should be granted on this ground on remand. * * * * * * I believe the summary judgment that the trial court did grant was proper. Accord *388 ingly, I would reverse the judgment of the court of appeals and affirm the judgment of the trial court. I therefore dissent. . The Court objects to any reliance on S.S.' testimony when it conflicts with G.W.'s. There is no significant contradiction between their respective accounts of the circumstances. Even if there were, the Court’s objection overlooks the fact that S.S. is the claimant here. Her claim can certainly be no stronger than her own testimony. It is entirely appropriate not only to cite it but to hold her to it. The Court also objects to any overstatement of G.W.'s medical credentials. While I do not suggest that G.W. was a medical doctor or an expert on herpes, he is an optometrist and does claim to have read medical literature on the subject of herpes. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9676695. Public record. Not legal advice.