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United States Court of Appeals,
Fifth Circuit.
No. 93-2508.
The TRAVELERS INDEMNITY CO. OF RHODE ISLAND, Plaintiff-Appellee,
v.
Wanda HOLLOWAY, et al., Defendants,
Verna Rae Heath and Jack Heath, Individually and as Next Friend
of Amber Heath, Aaron Heath, Shawn Heath, and Blake Heath,
Defendants-Appellants.
March 28, 1994.
Appeal from the United States District Court for the Southern
District of Texas.
Before WOOD,* SMITH, and DUHÉ, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The district court held that Travelers Indemnity Company of
Rhode Island ("Travelers") had no duty to defend its insured, Wanda
Holloway, against a lawsuit for intentional infliction of emotional
distress and that such lawsuit was not covered by Holloway's
insurance policy. We affirm.
I.
Holloway and Verna Rae Heath are the mothers of two girls who
were competing for the same cheerleading position at the
Channelview Junior High School. According to the complaint filed
in Texas state court by the Heath family, Holloway plotted to kill
Verna Rae Heath in order to cause enough distress that Heath's
*Circuit Judge of the Seventh Circuit, sitting by
designation.
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daughter would lose the cheerleading competition.1 Such conduct,
alleged the complaint, was "Outrageous Conduct Causing Severe
Emotional Distress," a cause of action usually referred to as
intentional infliction of emotional distress.
II.
Travelers brought an action in federal district court seeking
a declaratory judgment that it has no duty to defend and that the
lawsuit was not covered under Holloway's insurance policy. The
district court granted Travelers's motion for summary judgment and
denied the Heaths' motion for summary judgment. In the district
court's view, the insurance policy did not cover the Heaths' state
court lawsuit for three reasons. First, Holloway's conduct did not
constitute an "occurrence" under the policy. Second, Holloway's
conduct fell within the policy exclusion for intentional conduct.
Third, Holloway's conduct was not alleged to have caused "bodily
injury" as defined in the policy.
III.
We affirm based upon the "bodily injury" rationale, finding
it unnecessary to reach the two other rationales. Because all
relevant questions are matters of law, we review the judgment de
novo. Enserch Corp. v. Shand Morahan & Co., 952 F.2d 1485, 1492
(5th Cir.1992).
The insurance policy limits coverage to suits that result in
bodily injury. The relevant provisions of the policy are follows:
Subject to the provisions and conditions of the policy, and of
1This matter has become known as the "Pom Pom Mom" case.
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this form and endorsements attached, the Company agrees with
the insured named on Page I as follows:
COVERAGE D--PERSONAL LIABILITY
To pay on behalf of the insured all sums which the insured
shall become legally obligated to pay as damages because of
bodily injury or property damage, and the Company shall defend
any suit against the insured alleging such bodily injury or
property damage and seeking damages which are payable under
the terms of this policy, even if any of the allegations of
the suit are groundless, false or fraudulent: but the Company
may make such investigation and settlement of any claim or
suit as it deems expedient.
. . . . .
BODILY INJURY
The term "bodily injury" means bodily injury, sickness or
disease, including death resulting therefrom, sustained by any
person.
In order to determine whether Travelers has a duty to defend,
we examine the facts in the complaint to see whether they fall
within the language of the insurance policy. Cluett v. Medical
Protective Co., 829 S.W.2d 822, 827-28 (Tex.App.--Dallas 1992, writ
denied) (reasoning that under the "eight-corners test," a court
looks only to the pleadings and the insurance policy to determine
whether the insurer has a duty to defend). A review of the Heaths'
second amended complaint, which is the version of the complaint
operable before the state court, reveals no allegation of bodily
injury.
The complaint says that Holloway caused the Heaths "extreme
pain, suffering, emotional anguish, and emotional trauma," that
Holloway "infringed" on their "rights," and that the Heaths
suffered "severe emotional distress." The Heaths complain of the
"trauma" caused by public scrutiny of their lives, which they claim
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to have been forever changed. Their "common pleasures" have been
"destroyed." The Heath children have been deprived of a "sense of
security and well being" and have had to endure "the public
spectacle of their family life being invaded and subjected to
ridicule." In short, the injuries alleged are typical of those in
a claim for intentional infliction of emotional distress.
To determine whether the policy covers the Heaths' lawsuit,
we look to the facts of the underlying claim. Cluett, 829 S.W.2d
at 828. There are no facts in the record evincing any injury other
than emotional distress.
Texas law has not yet decided the issue of whether "bodily
injury" refers to emotional injury in this situation. In the
absence of Texas state court precedent, we conclude that, at least
in the context of the policy at issue and the facts alleged here,
the phrase "bodily injury" unambiguously excludes the types of
nonphysical injuries asserted by the Heaths. Our holding comports
with the overwhelming weight of authority from other states. See
National Casualty Co. v. Great Southwest Fire Ins. Co., 833 P.2d
741, 746 (Colo.1992) ("The majority of courts that have interpreted
bodily injury as it is used in the Hartford policy have determined
that it covers physical injury and does not include claims for
purely nonphysical or emotional harm.") (citation omitted).
The judgment is AFFIRMED.

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