Cell phone radiation and health risks

Texas Case Law

TRINITY UNIV v. CELLULAR ONE, 05-04-01641-CV (Tex.App. [5th
Dist.] 1-9-2007) TRINITY UNIVERSAL INSURANCE COMPANY,
Appellant v. CELLULAR ONE GROUP, Appellee. No.
05-04-01641-CV. Court of Appeals of Texas, Fifth District,
Dallas. Opinion Filed January 9, 2007.

Appeal from the 68th District Court, Dallas County, Texas,
Trial Court Cause No. 02-05001-C.

Before Justices WRIGHT, BRIDGES, and MAZZANT.

Opinion By Justice MAZZANT

MEMORANDUM OPINION

AMOS L. MAZZANT, JUSTICE.

Trinity Universal Insurance Company appeals the trial
court’s denial of its suit for declaratory judgment seeking
a declaration that it had no duty to defend Cellular One
Group in three class-action lawsuits pending in federal
court against Cellular One Group. Trinity asserts in its
sole issue that the trial court erred in denying Trinity’s
motion for summary judgment and granting Cellular One’s
cross-motion for summary judgment. We affirm the trial
court’s judgment. All the issues Trinity presents were
resolved in two other opinions from this Court concerning
insurers’ duty to defend and indemnify other defendants in
the same class-action lawsuits.[fn1] See Samsung Elecs. Am.,
Inc. v. Fed. Ins. Co., 202 S.W.3d 372 (Tex.App.-Dallas
2006, no pet. h.); Nokia, Inc. v. Zurich Am. Ins. Co., 202
S.W.3d 384 (Tex.App.-Dallas 2006, no pet. h.). Because all
issues are settled, we issue this memorandum opinion. See
Tex. R. App. P. 47.4.

BACKGROUND

Cellular One is one of many defendants in a series of class
actions brought against manufacturers of wireless handheld
telephones (cell phones) and promoters, providers, and
sellers of services in connection with cell phones.[fn2]
The class plaintiffs allege the defendants, including
Cellular One, knew or should have known that cell phones
emit radio frequency radiation that causes “the health
risk” and “the biological effects,” which are “an adverse
cellular reaction and/or cellular dysfunction . . . through
its [the radio frequency radiation’s] adverse health effect
on: calcium and ion distribution across the cell membrane,
melatonin production, neurological function, DNA (single
and double strand breaks and chromosome damage), enzyme
activities, cell stress and gene transcription, and the
permeability of the blood brain barrier. . . .” The class
plaintiffs are residents of certain states who purchased or
leased or will purchase or lease cell phones and who have
not been diagnosed with a brain-related tumor or cancer of
the eye. The class actions seek compensatory damages of the
cost to purchase a cell phone headset, an order to provide
each class member with a cell phone headset with
instructions on how and why to use the headset, punitive
damages, injunctive relief preventing the future sale of
cell phones without headsets, and attorney’s fees and
costs.

Cellular One forwarded the lawsuits to its commercial
liability insurer, Trinity, and demanded a defense and
indemnity. Trinity agreed to provide a defense under a
reservation of rights and sought a declaratory judgment
that it had no duty to defend or indemnify Cellular One in
the class-action lawsuits. Trinity moved for summary
judgment on its claim. Cellular One filed a cross-motion
for summary judgment requesting that the trial court
declare that Trinity has a duty to defend. The trial court
granted Cellular One’s motion for summary judgment and
denied Trinity’s motion, and the court declared Trinity has
a duty to defend Cellular One “in the three putative class
actions.”

STANDARD OF REVIEW

In its sole issue, Trinity asserts the trial court erred in
granting Cellular One’s motion for summary judgment and
denying Trinity’s motion for summary judgment. The standard
for reviewing a summary judgment under rule of civil
procedure 166a(c) is well established. See Nixon v. Mr.
Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A party
moving for summary judgment has the burden of showing no
genuine issue of material fact exists and it is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c);
Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). After the
movant has established a right to summary judgment, the
burden shifts to the nonmovant to present evidence creating
a fact issue. Kang v. Hyundai Corp., 992 S.W.2d 499, 501
(Tex.App.-Dallas 1999, no pet.). When both sides move for
summary judgment and the trial court grants one motion and
denies the other, the reviewing court reviews both sides’
summary judgment evidence and determines all questions
presented. The reviewing court then renders the judgment
that the trial court should have rendered. FM Props.
Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.
2000).

The insurer’s duty to defend arises when a third party sues
the insured on allegations that, if taken as true,
potentially state a cause of action within the terms of the
policy. Houston Petroleum Co. v. Highlands Ins. Co., 830
S.W.2d 153, 155 (Tex.App.-Houston [1st Dist.] 1990, writ
denied). Whether an insurer owes its insured a duty to
defend is determined solely by the pleadings and the
insurance policy. GuideOne Elite Ins. Co. v. Fielder Road
Baptist Church, 197 S.W.3d 305, 308 (Tex. 2006) (the “eight
corners” rule). Pursuant to the eight-corners rule, we
examine the factual allegations in the underlying petition
and the terms of the insurance policy to determine if any
portion of the suit states a cause of action potentially
covered by the policy. Gehan Homes, Ltd. v. Employers Mut.
Cas. Co., 146 S.W.3d 833, 838(Tex.App.-Dallas 2004, pet.
filed). If coverage is found for any portion of a suit, the
insurer must defend the entire suit. Utica Nat’l Ins. Co.
v. Am. Indem. Co., 141 S.W.3d 198, 201 (Tex. 2004). If a
petition against an insured alleges only facts not covered
or excluded by the policy, the insurer has no duty to
defend. King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187
(Tex. 2002). We view the factual allegations in the
petition liberally, resolving any doubt in favor of the
insured. McCarthy Bros. Co. v. Cont’l Lloyds Ins. Co., 7
S.W.3d 725, 728 (Tex.App.-Austin 1999, no pet.).

BODILY INJURY

Trinity argues its policies do not apply to the class
plaintiffs’ allegations because they do not allege damages
from “bodily injury.” Trinity’s policies state Trinity
“will pay those sums that the insured becomes legally
obligated to pay as damages because of bodily injury or
property damage to which this insurance applies.” The
policies define “bodily injury” as “bodily injury, sickness
or disease sustained by a person, including death resulting
from any of these at any time.” Trinity argues the class
plaintiffs failed to allege either bodily injury or
property damage but alleged only the potential for bodily
injury. We disagree. The class plaintiffs alleged their
exposure to radio frequency radiation caused “an adverse
cellular reaction and/or cellular dysfunction.” They also
alleged they were exposed to radiation and its biological
effects each time they used their cell phones without a
headset. In Samsung and Nokia, this Court concluded these
allegations were sufficient to allege bodily injury under
policies containing substantially similar definitions of
“bodily injury.” Samsung, 202 S.W.3d at 381; Nokia, 202
S.W.3d at 391. Likewise, in this case, we conclude the
allegations are sufficient to allege bodily injury.

Trinity also argues the class plaintiffs did not allege
bodily injury because to do so would destroy the
commonality requirement for bringing a class action.
Whether the class plaintiffs have a viable class action in
their lawsuits pending in federal court is not before this
Court. The issue is whether the pleading alleges a cause of
action covered by Trinity’s policies. The fact that
allegations of bodily injury may defeat the named
plaintiffs’ ability to proceed as a class is not relevant
to our determination under the eight-corners rule.

DAMAGES BECAUSE OF BODILY INJURY

Trinity argues the class plaintiffs’ claims do not allege
“damages because of bodily injury” and therefore are not
covered by Trinity’s policies. In Samsung, we turned to the
dictionary definition of “because of” as meaning “by reason
of: on account of.” Samsung, 202 S.W.3d at 381; see Nokia,
202 S.W.3d at 391. We then determined whether the damages
alleged were “damages because of bodily injury”:

The damages sought by the complaints-a cell phone headset
for each class member who had purchased or leased a cell
phone without one-are sought “on account of” or “by reason
of” the plaintiffs’ exposure to radiation from the cell
phones. And the cost of a headset is not clearly within
or excluded by the definition of “damages” in [the
insurer’s] policies. Accordingly, we conclude the damages
sought potentially state a claim for “damages because of
bodily injury” triggering [the insurer’s] duty to defend
the [class action] complaints.

Samsung, 202 S.W.3d at 382-83; see Nokia, 202 S.W.3d at 391.
That same reasoning applies in this case. Although
Trinity’s policies do not contain a definition of
“damages,” that does not affect our analysis of this issue.
See Nokia, 202 S.W.3d at 391 n. 4. We conclude the class
plaintiffs’ claims sufficiently allege damages because of
bodily injury to fall within Trinity’s policies.

OCCURRENCE & POLICY EXCLUSIONS

Trinity also argues the claims do not fall within coverage
because they do not allege an “occurrence” as defined in
the policies, and Trinity argues coverage is excluded under
the policies’ business risk exclusions. Trinity did not
assert the lack of an occurrence or the applicability of
the business risk exclusions in its motion for summary
judgment or in its response to Cellular One’s motion for
summary judgment.

Summary judgment may not be granted on a ground not
included in the motion for summary judgment. Stiles v.
Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993); A &
W Props., Inc. v. Kan. City S. Ry. Co., 200 S.W.3d 342, 351
(Tex.App.-Dallas 2006, pet. denied). Likewise, the
respondent to a motion for summary judgment “must . . .
present to the trial court those issues that would defeat
the movant’s right to a summary judgment and failing to do
so, may not later assign them as error on appeal.” City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679
(Tex. 1979). Because Trinity did not assert the lack of an
occurrence or the applicability of the business exclusions
in its motion for summary judgment or response to Cellular
One’s motion for summary judgment, Trinity may not assert
them on appeal to show the trial court erred in denying its
motion for summary judgment or in granting Cellular One’s
motion for summary judgment.

CONCLUSION

Applying the eight-corners test, we conclude the trial
court did not err in denying Trinity’s motion for summary
judgment, granting Cellular One’s motion for summary
judgment, and declaring Trinity has a duty to defend
Cellular One in the three putative class action lawsuits.
We overrule Trinity’s issue on appeal. We affirm the trial
court’s judgment.

[fn1] At oral argument, Trinity conceded that the Samsung
and Nokia opinions address all the issues it presents in
this appeal. Trinity requests that we overrule the
decisions in Samsung and Nokia. We decline Trinity’s
request to do so.

[fn2] The class actions have been consolidated into a
multi-district litigation proceeding in the United States
District Court for the District of Maryland, styled In re
Wireless Telephone Radio Frequency Emissions Products
Liability Litigation, Civil No. 01-MD-1421.