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Mescalero Energy, Inc. v. Underwriters Indemnity General Agency, Inc.

An expert's assertion that a "formation" should be interpreted as he defines it in his affidavit, supported by his unimpeached qualifications, is sufficient to defeat summary judgment and establish a reasonable definition of a "formation.

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OPINION ON REHEARING

We deny the Motion for Rehearing filed by appellees Phoenix Assurance PLC, The Ocean Marine Insurance Company, LTD., and Compagnie D’Assurances Maritime, Aerine Et Terrestres. However, we withdraw our opinion dated May 10, 2001, and we issue this opinion in its stead.

Appellant, Mescalero Energy, Inc. (Mescalero), appeals a summary judgment in favor of appellees, its insurers and underwriters, following an underground oil well blowout during drilling operations. Appellees denied coverage, contending that the explosion occurred within a single “formation,” an excludable event under the policy’s conditions of coverage. Because of the conflicting evidence presented, we find that the trial court erred in determining that the term “formation” was unambiguous and in granting summary judgment on that basis. We reverse and remand to the trial court.

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