Privilege Underwriters Reciprocal Exchange, Appellant v. Michael MacDougall and William Heyer, Co-Independent Executor, Estate of George S. Heyer, Jr., Deceased, Appellees (2026)

OPINION

This is an insurance-coverage dispute between two homeowners, Michael MacDougall and William Heyer, Co-Independent Executor, Estate of George S. Heyer, Jr., Deceased (Appellees), and their insurer, Privilege Underwriters Reciprocal Exchange (PURE). Appellees are neighbors whose backyards partially extend down an 80-foot creek slope. In 2018 and 2019, the slope collapsed twice after heavy rains, leaving Appellees' homes on the edge of a cliff and unsafe to inhabit. Appellees filed claims under their all-risk high-value homeowners insurance policies (the Policies) issued by PURE. PURE denied coverage, asserting that the claimed losses were caused by “Landslides” as defined by and therefore excluded under the Policies' Earth Movement exclusion.

Appellees sued PURE for breach of contract and related claims, and the parties filed cross-motions for summary judgment. In their motions, the parties advanced conflicting constructions of the term “Landslides,” with Appellees arguing that the term should be construed narrowly as including only landslides caused solely by natural events and with PURE arguing that the term should be construed more broadly as including all landslides, however caused. The parties also offered conflicting evidence about whether the slope collapses were due solely to natural causes, as PURE argues, or were also caused, in part, by human activity, specifically, rainwater flowing from a storm drain that the City of Austin had installed, as Appellee's argue. PURE also argued that even if the Earth Movement exclusion did not apply, Appellees were not entitled to summary judgment on liability because they had failed to allocate their damages under the concurrent causation doctrine.

The district court granted Appellees' motions and denied PURE's, holding that the Earth Movement exclusion did not apply to the claimed losses, that the claimed losses were covered under the Policies as a matter of law, and that PURE breached the Policies by refusing to pay Appellees' claims. The district court then rendered final judgment, which awarded Appellees actual damages, pre-judgment interest, pre-judgment statutory interest, future statutory interest, costs, and fees.

On appeal, PURE raises three issues. First, PURE argues that the district court's summary-judgment rulings were erroneous because the term “Landslides” unambiguously includes landslides partially caused by human activity and the slope collapses undisputedly qualify as such landslides. And PURE argues, in the alternative, that even if human-caused landslides are not included, summary judgment was still improper because PURE produced evidence showing that—and therefore raised a fact issue as to whether—the landslides resulted from purely natural causes. PURE further argues that even if the Earth Movement exclusion does not apply, summary judgment on liability was improper because Appellees failed to meet their burden, under the concurrent causation doctrine, to allocate between the damage attributable to human causes (which is covered) and the damage attributable to natural causes (which is excluded). Second, PURE argues that the district court erred in rendering final judgment because Appellees failed to meet their burden to show an event triggering coverage. Third, PURE argues that the district court erred in awarding Appellees 18% statutory interest because the Insurance Code provides for a lower rate of statutory interest when, as here, damage to covered property is caused, wholly or partly, by forces of nature.

We overrule in part and sustain in part PURE's first issue, holding (1) that the term “Landslides” is ambiguous and must therefore be narrowly construed against PURE as including only landslides caused solely by natural events, (2) but that PURE raised a genuine issue of material fact as to whether the slope collapses were caused solely by natural events, and (3) that therefore, the district court erred in granting summary judgment on liability in favor of Appellees. We further hold that, in light of these initial holdings, we need not determine whether Appellees had a duty to allocate under the concurrent causation doctrine. We overrule PURE's second issue, holding that PURE has waived its argument for appellate review because PURE did not plead or otherwise dispute the occurrence of an event triggering coverage until after the district court had already granted summary judgment on liability. And we need not reach PURE's third issue, since our reversal of the district court's partial-summary-judgment order necessarily requires the reversal of its final judgment (which includes the challenged award of statutory interest). Accordingly, we reverse the district court's final judgment and remand the case for further proceedings consistent with our opinion.

BACKGROUND & PROCEDURAL HISTORY

Appellees both purchase an all-risk “High Value Homeowners Policy” from PURE

Appellees' homes are located in Windsor Road, a historic, affluent neighborhood in central Austin that is naturally bordered, on the east, by Shoal Creek. Appellees' homes are located along this border, and their backyards extend from the western plateau (where their homes are located) to about 50% and 80% of the slope down to Shoal Creek.

Given their homes' nature and value, each Appellee purchased a “High Value Homeowners Policy” from PURE. The Policies are enhanced versions of the standardized Homeowners Policy Comprehensive Form 5 (HO-5), the broadest standard homeowners insurance form published by the Insurance Services Office (ISO). PURE marketed the Policies by comparing them to the comprehensive HO-5 to show the Policies' still greater coverage.

The Policies are “all-risk,” 1 insuring “against all risks of direct physical loss or damage” to Appellees' “dwelling[s], content[s], and other structures.” 2 The Policies contain a number of exclusions, including, as most relevant here, an exclusion for Earth Movement:

6. Earth Movement

We do not cover any loss to your dwelling or other structures caused by earth movement. Earth movement means,

a. Earthquake, including land shock waves or tremors, before, during or after a volcanic eruption;

b. Landslides;

c. Mudflows;

d. Mudslides; and

e. the sinking, rising, or shifting of land.

The Shoal Creek slope collapses damage Appellees' homes

In May 2018 and then again in May 2019, the slope running down from Appellees' properties to Shoal Creek collapsed after heavy rains, causing the top of the slope to move further toward the structures on their properties and causing “observ[able] damage/distress to the structures” themselves. In other words, portions of the land comprising Appellees' backyards slid down into the creek, and their damaged homes now sit on the edge of an unstable cliff.

The City responded to the landslides by authorizing the negotiation of an “emergency design-build contract with Hayward Baker, Inc. for further design and construction of the Shoal Creek Emergency Landslide Repair project.” After that work, engineers retained by Appellees concluded that “the limited repairs performed by [Hayward Baker] did not increase the stability of the slope” and may have decreased the stability. They further concluded that the “risk of future movement of the western slope is very high and includes the potential of houses being damaged.” Hayward Baker, for its part, concluded that MacDougall's residence was no longer safe to inhabit and would remain unsafe to inhabit “until suitable stabilization measures [were] implemented.”

Appellees sue PURE for coverage

In the aftermath of the slope collapses, Appellees both made claims for coverage under the Policies, which PURE denied under the Earth Movement exclusion, asserting that the claimed losses were caused by landslides. Appellees then sued PURE for breach of contract, for a declaratory judgment that their losses were covered under the Policies, and for bad faith. In their petition, Appellees alleged events triggering coverage and PURE's failure to perform despite the occurrence of these events. They sought damages for payments owed; 18% interest under the Prompt Payment of Claims Act, see Tex. Ins. Code § 542.060(a); and attorney's fees. In its answer, PURE made a general denial and asserted the Earth Movement exclusion as an affirmative defense. PURE did not specifically deny Appellees' allegations of events triggering coverage.

The parties file cross-motions for summary judgment

Appellees moved for traditional summary judgment on liability. In their motion, Appellees again asserted an event triggering coverage. They argued that the Earth Movement exclusion would not apply “if man-made or human activities or forces contributed to the collapses” and could apply only if “natural earth movement” was “the sole cause of the collapse.” Appellees supported their motion with an expert report, which opined that man-made and human activities and forces contributed to the collapses.

PURE responded and cross-moved for summary judgment on its affirmative defense. Neither filing disputed that the slope collapses' effect on Appellees' properties triggered PURE's initial coverage obligation. Both focused on the Earth Movement exclusion. Specifically, PURE argued that the Earth Movement exclusion was not limited to natural events and that, in any event, the slope collapses “were based upon natural, and not man-made conditions.” PURE supported its response and cross-motion with its own expert reports, which opined that the slope collapses were caused by purely natural events. PURE further argued that even if the Earth Movement exclusion didn't apply, Appellees needed to allocate their damages between covered and non-covered perils.

The district court grants Appellees' motion, denies PURE's, and renders final judgment

The district court denied PURE's motion for summary judgment on its affirmative defense and granted Appellees' motion for partial summary judgment on liability. In light of these rulings and to avoid the expense of trial, the parties made joint stipulations regarding the amounts of plaintiffs' damages and the accrual dates of interest, conditioned on a final determination of coverage. Appellees then moved for entry of judgment and non-suited their bad-faith claims. In response to the motion for entry of judgment, PURE sought reconsideration of the district court's summary judgment. For the first time, PURE argued that Appellees failed to meet their initial burden to prove an event triggering coverage.

The district court rendered final judgment in Appellees' favor, awarding MacDougall more than $17.8 million and Heyer more than $7.5 million in damages, prejudgment and statutory interest, and attorney fees. PURE filed a motion for new trial, again asking for reconsideration on its newly raised grounds. PURE's motion was overruled by operation of law. PURE now appeals.

EARTH MOVEMENT EXCLUSION

In its first issue, PURE argues that the district court's summary judgment rulings were erroneous because the evidence established that Appellees' claimed losses fall within the Policies' exclusion specific to “Landslides.” In holding that the claimed losses do not fall within the exclusion as a matter of law, the district court made two implicit rulings. First, the district court ruled that the term “Landslides” can be reasonably construed as both including and excluding landslides caused, in whole or in part, by human activity; is therefore ambiguous; and, as a result, must be construed narrowly in Appellees' favor as encompassing only landslides caused solely by natural events. Second, the district court ruled that the summary-judgment evidence conclusively proved that the landslides at issue here were caused, at least in part, by human activity.

PURE argues that the district court's first ruling is erroneous because the term “Landslides” unambiguously bears its ordinary meaning (“the usually rapid downward movement of a mass of rock, earth or artificial fill on a slope”), which does not turn on what caused it and therefore includes landslides caused, in whole or in part, by human activity. PURE argues that the district court's second ruling is erroneous because PURE produced evidence showing that—and therefore raised a fact issue as to whether—the landslides at issue here resulted from solely natural causes. PURE further argues that even if the Earth Movement exclusion did not apply, summary judgment was still improper because Appellees failed to meet their burden, under the concurrent causation doctrine, to allocate between the damage attributable to human activity (which is covered) and the damage attributable to natural causes (which is excluded).

I. Standard of review

To be entitled to a traditional summary judgment, the movants must prove that no genuine issue of material fact exists and that they are entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). When, as here, both sides move for summary judgment, and the district court grants one motion and denies the other, we consider both sides' summary-judgment evidence, determine all questions presented, and render the judgment the district court should have rendered. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd's London, 327 S.W.3d 118, 124 (Tex. 2010).

II. Analysis

To resolve PURE's first issue, we must first construe the term “Landslides” in the Policies' Earth Movement exclusion to determine whether it is ambiguous and then determine its meaning. If we determine the term means “landslides caused solely by natural events” (as urged by Appellees), then we must determine whether PURE produced summary-judgment evidence raising a genuine issue of material fact as to whether the slope collapses resulted from solely natural causes. If we determine PURE failed to produce such evidence, then we must finally consider PURE's argument regarding Appellees' alleged failure to allocate under the concurrent causation doctrine.

A. The term “Landslides” is ambiguous and so must be construed in Appellees' favor to mean “landslides caused solely by natural events.”

We begin by construing the term “Landslides” in the Policies' Earth Movement exclusion. As the Texas Supreme Court has repeatedly explained, “[a]n insurance policy is a contract, generally governed by the same rules of construction as all other contracts.” RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 118 (Tex. 2015); see also Gilbert Tex. Constr., L.P., 327 S.W.3d at 126. Thus, when construing an insurance policy, “our primary concern is to ascertain the intentions of the parties as expressed in the document.” RSUI Indem. Co., 466 S.W.3d at 118.

We begin our analysis with the language of the policy itself “because it is the best representation of what the parties mutually intended.” Id. “Unless the policy dictates otherwise, we give words and phrases their ordinary and generally accepted meaning, reading them in context and in light of the rules of grammar and common usage.” Id. “We strive to give effect to all of the words and provisions so that none is rendered meaningless.” Id. “No one phrase, sentence, or section of [the policy] should be isolated from its setting and considered apart from the other provisions.” Id. (citation modified).

We also consider the policy's surrounding circumstances—“objective indications about what the parties to [the policy] meant by deploying” the words under examination. Van Dyke v. Navigator Grp., 668 S.W.3d 353, 363–64 (Tex. 2023); see URI, Inc. v. Kleberg County, 543 S.W.3d 755, 758 (Tex. 2018) (courts consider “objectively determinable facts and circumstances that contextualize the parties' transaction”). Such surrounding circumstances include trade custom, including the customary weight to be afforded changes to the standard form insurance contract. Houston Expl. Co. v. Wellington Underwriting Agencies, Ltd., 352 S.W.3d 462, 472 (Tex. 2011) (observing that “the law has long recognized that changes in a printed form must be accorded special weight in construing the instrument”). They also include trade usage, which “can illuminate the meaning of [policy] language because the meaning to which a certain term or phrase is most reasonably susceptible is the one which is so regularly observed in place, vocation, trade or industry so as to justify an expectation that it will be observed with respect to a particular agreement.” URI, Inc., 543 S.W.3d at 768 (citation modified).

Finally, when construing the policy, “we are mindful of other courts' interpretations of policy language that is identical or very similar to the policy language at issue.” RSUI Indem. Co., 466 S.W.3d at 118. We “usually strive for uniformity in construing insurance provisions, especially where the contract provisions at issue are identical across the jurisdictions.” Id. (citation modified). Even when the courts are split, we still “think it prudent to strive for uniformity as much as possible,” mindful “that insureds in Texas should not be deprived the coverage insureds have in [the majority of] other states” to have considered the issue. McGinnes Indus. Maint. Corp. v. Phoenix Ins. Co., 477 S.W.3d 786, 794 (Tex. 2015) (citation modified).

If, after applying these rules of interpretation to the face of the instrument, we conclude that only one party's construction is reasonable, then the policy is unambiguous and we will adopt that party's construction. RSUI Indem. Co., 466 S.W.3d at 118. But if we conclude that both constructions present reasonable interpretations of the policy's language and are genuinely uncertain which construction is proper, then the policy is ambiguous. Id. at 118–19. In that event, we must resolve the uncertainty by adopting the construction that most favors Appellees as the insureds, and because we are construing an exclusion on coverage, we must do so even if the construction urged by PURE appears to be more reasonable or a more accurate reflection of the parties' intent. Id. This widely followed rule is an outgrowth of the general principle that uncertain contractual language is construed against the party selecting that language and is justified by the special relationship between insurers and insureds arising from the parties' unequal bargaining power. Id. at 118–19. Thus, in this particular case, whether the term “Landslides” is ambiguous and what the term ultimately means are both questions of law, which we review de novo.

1. The ordinary meaning of “landslide” supports PURE's proposed construction.

We begin our analysis with the text of the exclusion. It provides:

6. Earth Movement

We do not cover any loss to your dwelling or other structures caused by earth movement. Earth movement means,

a. Earthquake, including land shock waves or tremors, before, during or after a volcanic eruption;

b. Landslides;

c. Mudflows;

d. Mudslides; and

e. the sinking, rising, or shifting of land.

Our focus is on the term “Landslides,” since PURE denied coverage under this specific exclusion. The Policies do not define “Landslides,” so PURE contends that the term bears its ordinary meaning. See Pharr-San Juan-Alamo Indep. Sch. Dist. v. Tex. Pol. Subdivision Prop./Cas. Joint Self Ins. Fund, 642 S.W.3d 466, 473–74 (Tex. 2022) (“[W]e determine the meaning of an undefined term as used in an insurance policy by applying its ordinary and generally accepted meaning, as construed in context and in light of the rules of grammar and common usage.” (citation modified)).

The ordinary meaning of a “landslide” is “the usually rapid downward movement of a mass of rock, earth or artificial fill on a slope.” Landslide, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/landslide (last visited Oct. 1, 2026); see also U.S. Geological Survey, What is a landslide and what causes one?, https://www.usgs.gov/faqs/what-a-landslide-and-whatcauses-one ((last visited Oct. 1, 2026) (“A landslide is defined as the movement of a mass of rock, debris, or earth down a slope.”).

On the face of this definition, the ordinary meaning of landslides does not depend on what caused the landslide. Instead, it refers to the downward movement of earth on a slope, without regard to the cause. As one court has observed, the ordinary dictionary definition of landslide “does not limit the term to downward movement resulting solely from natural causes.” Auto-Owners Ins. Co. v. Parks, 629 S.E.2d 118, 121 (Ga. App. 2006) (citing Landslide, Merriam–Webster's Collegiate Dictionary (11th ed. 2003)). Under its ordinary meaning, a landslide can have natural or human causes. See U.S. Geological Survey, Do human activities cause landslides?, https://www.usgs.gov/faqs/what-a-landslide-and-what-causes-one ((last visited Oct. 1, 2026) (“Yes, in some cases human activities can be a contributing factor in causing landslides․ They are commonly a result of building roads and structures without adequate grading of slopes, poorly planned alteration of drainage patterns, and disturbing old landslides.”). Thus, the ordinary meaning of the term “landslide” supports PURE's argument that the use of the term at issue here includes landslides caused by human activity.

2. Contextual considerations support Appellees' proposed construction.

Appellees do not dispute that, under its ordinary meaning, a landslide can have a human cause and that the slope collapses at issue here may qualify as “landslides” in a generic sense. Instead, Appellees contend that the term “Landslides” in the “Earth Movement” exclusion bears a narrower meaning—one that limits the term to downward movement resulting solely from natural causes. See RSUI Indem. Co., 466 S.W.3d at 118 (terms in insurance policy are given ordinary and generally accepted meaning unless policy dictates otherwise). Appellees contend that this narrower meaning follows, in part, from two contextual considerations: (1) the immediate context of the words making up the Earth Movement exclusion and (2) the Policies' other exclusions. See Point Energy Partners Permian v. MRC Permian, 669 S.W.3d 796, 808 (Tex. 2023) (“Words must be construed in the context in which they are used, and their meaning turns upon use, adaptation and context as they are employed to fit various and varying situations.” (emphasis added, citation modified)); accord Pioneer Tower Owners Ass'n v. State Farm Fire & Cas., 908 N.E.2d 875, 877–78 (N.Y. 2009) (rejecting insurer's “literal reading” of earth movement exclusion that ignored context).

a. The immediate context of the Earth Movement exclusion

In considering the immediate context of the words making up the Earth Movement exclusion, Appellees focus on the term “earth movement” itself, which, in common usage, denotes a colossal, natural event: “differential movement of the earth's crust: elevation or subsidence of land.” Earth movement, Webster's Third New Int'l Dictionary 715 (2002); see, e.g., Boston Co. Real Est. Counsel v. Home Ins., 887 F. Supp. 369, 374 (D. Mass. 1995) (“Most courts have confined the meaning of ‘earth movement’ to its commonplace usage—referring only to sudden, cataclysmic events (e.g., earthquakes).”); Vill. Inn Apartments v. State Farm Fire & Cas., 790 P.2d 581, 583 (Utah Ct. App. 1990) (agreeing that “earth movement ․ could be limited to natural or geological processes”). Thus, the term “earth movement” normally denotes a natural event of large scale that causes a major disaster. Rankin v. Generali-U.S. Branch, 986 S.W.2d 237, 239 (Tenn. Ct. App. 1998) (citation modified). This denotation is consistent with historical practice. “Earth movement exclusions in insurance policies generally refer to and have historically related to catastrophic and extraordinary calamities such as earthquakes and landslides.” Peters Twp. Sch. Dist. v. Hartford Accident & Indem. Co., 833 F.2d 32, 35 (3d Cir. 1987) (citation modified). “The exclusionary language was designed and intended to exclude from coverage damage from natural causes and natural phenomena; i.e., earthquake, landslides, mudflow and other similar occurrences ․” Id. at 35–36 (citation modified). Thus, the use of the term “earth movement” itself is immediate contextual evidence that tends to support Appellees' construction.

b. The Policies' other exclusions

Appellees contend that the Earth Movement exclusion must be construed together with the Policies' other exclusions and that these other exclusions provide contextual support for their proposed construction. We agree. Two of these other exclusions offer particularly useful comparisons.

First, there is the Nuclear Hazard exclusion, which, like the Earth Movement exclusion, defines the excluded cause using a list: “Nuclear hazard means any nuclear reaction, radiation, or radioactive contamination.” But unlike Earth Movement's list, Nuclear Hazard's list is followed by qualifying language, “however caused”:

14. Nuclear Hazard

We do not cover any loss caused directly or indirectly by nuclear hazard. Nuclear hazard means any nuclear reaction, radiation, or radioactive contamination, all whether controlled or uncontrolled or however caused, or any consequence of any of these. However, we do cover ensuing covered loss due to fire resulting from a nuclear hazard unless another exclusion applies.

(Emphasis added).

Second, there is the Pollution or Contamination exclusion, which takes the same approach, qualifying the list of excluded events with the language, “regardless of cause”:

15. Pollution or Contamination

We do not cover any loss caused directly or indirectly, regardless of cause or event, whether contributing concurrently or in any sequence to the loss, caused by the:

a. Discharge;

b. Dispersal;

c. Seepage;

d. Migration;

e. Release; or

f. Gradual escape

of pollutants.

These comparisons show that when PURE intended a listed event to exclude coverage regardless of the event's cause, it said so expressly. PURE “should not be presumed to intend the same meaning in two provisions when it uses different language in each.” Forbau v. Aetna Life Ins., 876 S.W.2d 132, 141 (Tex. 1994) (citation modified). A reasonable person “reading these exclusionary clauses would understand a universal causation is specified in some but not all of the exclusions, with language of universal causation being intentionally omitted from the earth movement exclusion.” Okla. Sch. Risk Mgmt. Tr. v. McAlester Pub. Sch., 457 P.3d 997, 1005 (Okla. 2019). So “when an insurer creates specificity in one clause of a policy and then omits it in a similar context, the omission is considered purposeful and should be given meaning.” Id.

Similarly, if silence as to the event's cause in the Earth Movement exclusion had the same result as “however caused” in the Nuclear Hazard exclusion and “regardless of cause” in the Pollution or Contamination exclusion, those latter terms would be superfluous. “Surplusage being strongly disfavored in the interpretation of contracts, this alone is strong evidence of coverage.” Houston Expl. v. Wellington Underwriting Agencies, 352 S.W.3d 462, 476 (Tex. 2011) (Jefferson, C.J., dissenting). Thus, the differences between the causation language used in the Earth Movement exclusion, on the one hand, and the Policies' other exclusions, on the other, provide contextual evidence that supports a narrower reading of the former.

3. The surrounding circumstances also support Appellees' proposed construction.

In addition to the contextual considerations just discussed, Appellees contend that two surrounding circumstances inform the meaning of the Earth Movement exclusion: (1) the standard ISO policy from which the Policies at issue here were drafted, and (2) caselaw from other jurisdictions construing similar earth movement exclusions. We consider each in turn.

a. ISO form contracts

Starting with the ISO form contracts. In the non-commercial market especially, there is a high degree of standardization of terms affecting coverage. See, e.g., Vincent Morgan & John K. DiMugno, Catastrophe Claims § 1:14 (2024 ed.) (“Insurance comes in many diverse species, though ․ much of each type is at least somewhat standardized.”). “As a consequence, the language of insurance policies is quite often much the same.” Id. § 1:5.

This standardization mostly flows through organizations that offer standard forms as a starting point for insurers. See Hartford Fire Ins. v. California, 509 U.S. 764, 772 (1993). One of them is ISO, which “develops standard policy forms and files or lodges them with each State's insurance regulators.” Id. As the company explains, “On your insurance policies, you may see notices showing ISO (Insurance Services Office, Inc.) as the copyright owner. That's because ISO develops and publishes policy language that many insurance companies use as the basis for their products.” Verisk, Frequently Asked Questions, https://www.verisk.com/resources/faqs/ (last visited Oct. 1, 2026).

The Policies here were drafted from ISO's standard comprehensive policy, which “provide[s] an industry standard, a benchmark for comparison” 1 New Appleman Insurance Law Practice Guide § 4.09[1], at 4-68 (2019 ed.). Thus, “it is helpful to compare the policy form at issue with standard ISO language to highlight ․ differences for your analysis.” Id. at 4-68–69. A comparison discloses two important differences.

The first comes from the ISO policy's exclusion lead-in clause, which expressly extends the exclusions to localized events:

SECTION I – EXCLUSIONS

A. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area.

(Emphasis added). No language with similar effect appears in the Policy.

The second is in the definition of “earth movement”—the ISO version is facially broader, defining “earth movement” as the listed events whether “caused by or resulting from human or animal forces or any act of nature”:

2. Earth Movement

Earth Movement means:

a. Earthquake, including land shock waves or tremors before, during or after a volcanic eruption;

b. Landslide, mudslide or mudflow;

c. Subsidence or sinkhole; or

d. Any other earth movement including earth sinking, rising or shifting; caused by or resulting from human or animal forces or any act of nature unless direct loss by fire or explosion ensues and then we will pay only for the ensuing loss.

(Emphasis added). The ISO phrase including human causes is conspicuously absent from the Policies in this case. This comparison is a further indication that the Policies' Earth Movement exclusion is limited to natural events and that the exclusion specific to “Landslides” includes only landslides caused solely by natural events.

b. Caselaw from other jurisdictions

Finally, we consider “other courts' interpretations” of similar earth movement exclusions in other insurance policies. RSUI Indem. Co., 466 S.W.3d at 118; see also Westlake Chem. Corp. v. Berkley Reg'l Ins., 699 S.W.3d 312, 314 (Tex. 2024) (Boyd, J., concurring in the denial of rehearing) (explaining that insurance policies must be interpreted in light of “court decisions”). What we find is a body of caselaw that is well-developed, nearly uniform, and supports construing the exclusion narrowly to exclude only landslides caused solely by natural causes. See, e.g., BrunoBuilt, Inc. v. Auto-Owners Ins. Co., 561 P.3d 888, 903 (Id. 2024) (holding that exclusion for landslides “only excluded damage resulting from naturally occurring landslides”); Broom v. Wilson Paving & Excavating, 356 P.3d 617, 630 (Okla. 2015) (holding that earth movement exclusions “exclude only naturally occurring earth movement”); Ins. Co. of State of Pa. v. ALT Affordable Hous. Servs., Inc., No. CIVA SA-98-CA-0644OG, 1999 WL 33290622, at *3 (W.D. Tex. June 17, 1999) (holding earth movement exclusion excluded losses “resulting from purely natural causes”); Peters Twp. Sch. Dist., 833 F.2d at 36 (concluding that earth movement exclusion “was meant to deny coverage for spontaneous, natural, catastrophic earth movement, and not movements brought about by other causes”); Henning Nelson Constr. Co. v. Fireman's Fund Am. Life Ins. Co., 383 N.W.2d 645, 652 (Minn. 1986) (holding that earth movement exclusion must be construed to apply to earth movements caused by natural disasters and not to those caused by human forces); United Nuclear v. Allendale Mut. Ins., 709 P.2d 649, 653 (N.M. 1985) (holding that term “earth movement” applied only to naturally occurring phenomenon).

As one court explains, “the overwhelming majority of courts interpreting earth movement exclusions that do not contain lead-in language precluding coverage for damage from earth movement ‘regardless’ of its cause have concluded that such exclusions apply only to earth movement that arises from natural events.” Fayad v. Clarendon Nat'l Ins., 899 So. 2d 1082, 1087 (Fla. 2005). In most of these cases, the courts hold that the exclusionary text is ambiguous and so must be construed against the insurer. See, e.g., BrunoBuilt, 561 P.3d at 903 (holding that exclusion for “landslides” was ambiguous, requiring that it be construed against insurer); Broom, 356 P.3d at 632 (holding that exclusion for “earth movement” was ambiguous, requiring that it be construed against insurer).

PURE contends that this near consensus is inapt because many of the cases considered only “the general, catch-all category ‘earth movement’ rather than the specifically excluded events such as ‘earthquakes’ or ‘landslides.’ ” We disagree.

The decisions interpreting a catch-all category of “earth movement” as limited to natural events deliver strong support for similarly limiting “landslides.” While each decision PURE cites interpreted “earth movement” generally, each also treated the inclusion of “landslide” under the “earth movement” umbrella as evidence that “earth movement” meant natural events: “These courts have construed earth movement exclusions as referring only to naturally occurring events because the examples included in the definitions of earth movement are only natural events.” Powell v. Liberty Mut. Fire Ins., 252 P.3d 668, 673 (Nev. 2011) (emphases added) (citation modified). The upshot is that a “landslide” is generally understood to refer to a natural event, so its presence suggests that more general terms must also be natural events. Thus, the decisions criticized by PURE actually confirm that the Policies “only exclude[s] coverage for naturally occurring landslides” and similar natural disasters—not the events that gave rise to MacDougall's insurance claims. BrunoBuilt, 561 P.3d at 903.

Moreover, at least one court has considered whether the term “landslide,” as used in an earth movement exclusion, is limited to naturally occurring landslides or encompasses both landslides that are naturally occurring and human caused. Id. And that court concluded that “the policy only excluded damage resulting from naturally occurring landslides” and “did not exclude coverage for human-caused landslides.” Id.

Thus, the caselaw setting forth other courts' interpretations of similar earth movement exclusions is a surrounding circumstance that strongly supports a narrower construction of the term “Landslides.”

4. Conclusion

Applying the pertinent rules of construction to the Policies, we hold that Appellees and PURE both present reasonable interpretations of the term “Landslides”—with the ordinary meaning of the term supporting PURE's interpretation and the context and surrounding circumstances supporting Appellees' interpretation—and that the term is therefore ambiguous. RSUI Indem. Co., 466 S.W.3d at 118–19. Therefore, we must resolve the ambiguity by adopting the construction that most favors Appellees as the insureds. Id. Accordingly, we hold that the “Landslides” exclusion applies only to landslides caused solely by natural events.

B. The summary-judgment evidence raises a fact issue as to the cause of the landslides at issue here.

We must now determine whether PURE produced summary-judgment evidence raising a genuine issue of material fact that the landslides at issue here resulted solely from natural causes. To raise a genuine issue of material fact, PURE had to produce “more than a scintilla of probative evidence” that the landslides were caused by natural events and not human activity. Wal-Mart Stores, Inc. v. Xerox State & Loc. Sols., Inc., 663 S.W.3d 569, 576 (Tex. 2023). In determining whether PURE met its burden, we take as true all evidence favorable to PURE, and we indulge every reasonable inference and resolve any doubts in PURE's favor. Id.

PURE contends that it met its summary-judgment burden by producing declarations from two experts: (1) geologist Dr. Andrew Davidoff and (2) engineer Terrance Zich. PURE contends that these declarations show that the landslides were not proximately caused by human activity and therefore raise a fact issue on causation precluding summary judgment. We consider each declaration in turn.

1. Declaration of PURE's expert geologist

In his declaration, the geologist Davidoff explained that the 2018 and 2019 events resulted from three natural factors: (1) the weakening of the Del Rio clay in the ground due to years of weathering, (2) the increased weight of the land above due to water saturation, and (3) increased water levels saturating the surface. Davidoff thus concluded that the landslides behind Appellees' properties “resulted from geologic conditions, natural weathering, and fluvial processes.” He further observed that “no data or analysis has been presented to indicate that these natural processes were affected by any actions taken by the City of Austin, HDR Engineering, or any other human activity.”

Davidoff also concluded that the landslides were not “in whole or part the result of man-made or human activities.” In reaching this conclusion, Davidoff acknowledged that runoff from the watering of lawns and a stormwater drain delivered water to the slope. But he also explained that this water did not contribute to cause the landslides because “any flood water delivered to the slope would flow downhill to Shoal Creek, with only a limited amount of water absorbed by the underlying Del Rio clays.” Any incremental increase of that runoff “is insignificant within a reasonable degree of scientific certainty.”

2. Declaration of PURE's expert engineer

Similarly, in his declaration, the engineer Zich concluded that the landslides “occurred due to the complexity of the geologic conditions of the area which was triggered by time and precipitation weathering events and not by man-made activity.” Zich detailed the reasons for his opinion that the causes of the landslides were natural and not “man-made activity.” Specifically, Zich explained why the landslides were caused by geological conditions, including a natural stream channel at the base of a steep slope, thin heavy rock on the Shoal Creek bank, and “precipitation events” that preceded both landslides. Zich further explained that he ruled out human activity as a cause because there was no evidence that any activity by “the City or any other entity increased the natural drainage area of the channel.”

Appellees contend that Zich's conclusion that human activity did not cause the landslides is inconsistent with Zich's earlier expert report, in which he stated that “there were likely manmade influences that were less measurable that might have influenced the ultimate timing of the landslide earth movement.” But Appellees' contention ignores the context in which Zich's statement was made, including the fact that, immediately after making the statement, Zich further stated: “However, it is the geologic and geographic conditions of the area that created the long-term instability of the slope in the area of the landslide.” Zich's opinion was that human activity might have influenced the timing of the landslides but was not a cause.

Appellees also draw attention to Zich's opinion that waterpipe leaks were a possible human cause of the landslides, since such leaks “would convey any discharges” into openings in the Buda limestone at the top of the slope. But Appellees fail to mention that no evidence of any such leaks actually exists. Nonetheless, this hypothetical possibility helps explain Zich's conclusions that human activity “might have influenced” the timing of the landslide, but not the cause.

3. Conclusion

As the preceding discussion demonstrates, to meet its summary-judgment burden, PURE produced expert declarations that provide detailed reasons for the experts' opinions that the slope collapses were caused by natural events and not human activity. 3 We therefore hold that these declarations raised a fact issue as to whether the slope collapses were caused solely by natural events.

* * *

In sum, we hold that the term “Landslides” is ambiguous and must therefore be narrowly construed against PURE and in favor of Appellees as including only landslides caused solely by natural events. However, we further hold that PURE raised a genuine issue of material fact as to the cause of the slope collapses at issue here and that the district court therefore erred in granting summary judgment on liability in Appellees' favor. Accordingly, we sustain PURE's issue on this point. In light of these holdings, we need not reach PURE's argument regarding Appellees' alleged duty to allocate under the concurrent causation doctrine, which can be reconsidered in the district court on remand.

EVENT TRIGGERING COVERAGE

In its second issue, PURE argues that the district court erred in rendering final judgment because Appellees failed to meet their burden to prove an event triggering coverage. Appellees respond that PURE has waived this argument because it did not raise it until after the district court granted summary judgment on liability and therefore resolved, albeit implicitly, any issue regarding this condition precedent to coverage. We agree with Appellees.

Under Rule 54 of the Rules of Civil Procedure, when a plaintiff pleads that “conditions precedent have been met,” they are “not required to prove those conditions have been met unless the defendant specifically denies them.” Hale v. Bank of Am., No. 03-12-00548-CV, 2014 WL 4364915, at *4 (Tex. App.—Austin 2014, no pet.) (mem. op.). An event triggering coverage is a condition precedent to coverage. Allstate Ins. v. Irwin, 627 S.W.3d 263, 267–70 (Tex. 2021). In their petition, Appellees pleaded that they suffered a covered loss, which is an event triggering coverage. But “neither” PURE's “live answer at the time of the motion for summary judgment hearing nor” its “response to the motion for summary judgment included a denial of the performance of this condition. Accordingly,” Appellees “had no burden to prove this condition was satisfied.” Sharifi v. Steen Auto., 370 S.W.3d 126, 145 (Tex. App.—Dallas 2012, no pet.).

PURE concedes that the first time it specifically challenged the existence of direct physical loss or damage was “in its response to a motion to enter judgment and in its motion for new trial.” That was too late. When, as here, a party fails to raise an argument to defeat summary judgment in its response to the summary-judgment motion, the party waives its right to raise that argument in a post-judgment motion. See Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”); Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797–98 (Tex. 2008) (per curiam) (argument first raised by non-movant in post-judgment filing did not preserve argument for appeal); Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 307 n.3 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (“New arguments to defeat summary judgment presented after the trial court has granted summary judgment do not warrant reversal.”).

Because PURE did not raise this liability argument until after the district court had already granted summary judgment on liability, we hold that PURE waived the argument for appellate review. Accordingly, we overrule PURE's second issue.

CONCLUSION

We sustain PURE's first issue, overrule PURE's second issue, and need not reach PURE's third issue. 4 Accordingly, we reverse the district court's judgment and remand the case for further proceedings consistent with our opinion.

Reversed and Remanded

FOOTNOTES

1.   Homeowner's insurance policies are either “all risk” or “named or covered peril,” depending on the conditions precedent that trigger coverage. “Named or covered peril” policies protect “only against the perils specifically cited in the coverage provisions, and any unnamed peril is not covered, while all-risk policies reverse this and cover all perils not specifically excluded.” 10A Couch on Insurance § 148:4 (3d. ed.).

2.   The “dwellings” are Appellees' houses, the “contents” are their personal belongings on the property, and the “other structures” are outdoor structures on the properties but away from the dwellings.

3.   Against this evidence, Appellees produced the declaration and report of engineer Dean Read, who concluded that the City's storm drain “would result in an increased moisture content” of the clays, which decreased the stability of the slope and was “a cause” of the slope failure. At summary judgment, the district court could not choose the opinion of Read over PURE's experts, especially when they gave detailed reasons to support their opinions and to demonstrate the flaws in Read's opinions. See Morrell v. Finke, 184 S.W.3d 257, 282 (Tex. App.—Fort Worth 2005, pet. denied) (“In a battle of competing experts, it is the sole obligation of the jury to determine the credibility of the witnesses and to weigh their testimony.”).

4.   Our resolution of PURE's first issue requires us to reverse the district court's judgment on liability, which, in turn, requires us to reverse the district court's award of statutory interest challenged by PURE's third issue.

Maggie Ellis, Justice