Home State County Mutual Insurance Company and Safeco v. Dalbert Binning and Arlene Small , 2012 Tex. App. LEXIS 10380 ( 2012 )

Appeal Reverse and Remand; Opinion Filed l)ecenaber 14, 2012
In The
Qtourt of Zppca[
Jfiftb itrIct of Zexa at atta
No. 05-1 2-00246-CV
hOME STATE COUNTY MUTUAL INSURANCE COMPANY AND SAFECO,
Appellants
V.
DALBERT BINNING AND ARLENE SMALL, Appellees
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-09- 14677-F
OPINION
Before Justices Bridges. Richter, and Lang
Opinion by Justice Richter
Home State County Mutual Insurance Company (“Home State”) brings this
interlocutory appeal from the trial court’s denial of a motion for partial summary
judgment. Home State raises a single issue in this Court, contending an uninsured
motorist policy provision does not cover damages sustained by the insured when a
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passenger from another vehicle assaulted the insured after a minor rear-end collision. We
agree with Home State. Accordingly, we reverse the trial court’s order and remand this
case to the trial court
I.
Dalbert Benning rBenning”’ and Arlene Small C’Smalf’) are husband and wife.
Benning and Small were traveling together in Dallas. Texas on December 22, 2007 in a
vehicle owned by Small. Benning was driving and waiting to pull into a parking space in
a convenience store parking lot when Small’s vehicle was struck in the rear by another
vehicle. After Benning pulled into the parking space. he was attacked by an occupant of
the vehicle that had hit them while he was trying to exit Small’s vehicle. Benning was
struck on the head with a pistol which caused him toslp against the steering wheel and
ultimately fall out of the vehicle and onto the ground. As Benning fell to the ground. he
kicked the door closed and told Small to lock the doors. Small complied, took the keys
out of the ignition. and called 911. The attacker tried to open the driver’s side door
several times but was unsuccessful. When the attacker heard the sirens. he returned to the
vehicle in which he arrived, and fled the scene. Though the police gave chase, they were
unable to apprehend Benning’s attacker. It was later detennined by the police that the
Dalbert Benning was Incorrectly named In Plalntlfrs Original Petition and subsequent pleadings as Dalbert
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Binning.
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same vehicle was used in a robbery at a convenience store three days after l3enniiig’s
assault.
henning and Small brought suit against Home State County Mutual Insurance
Company (‘ilonie State” and Safeco General Agency, Inc. (“Safeco”) for failure to pay
their claim for uninsuredJunderinsured motorist (“UM/UIM”) benefits under their
automobile policy issued by Home State and allegedly underwritten by Safeco. Home
State and Safeco filed a Motion for Partial Summary Judgment on all claims relating to
any injuries or damages that arose omit of the assault and other events which transpired
after the collision, The trial court denied the motion without giving a reasoned opinion.
And now, all parties have filed an Agreed Motion for Interlocutory Appeal.
IL
In a single point of error, Home State contends that pursuant to Texas law, the
UMIUIM provision in Home State’s policy does not provide coverage for the injuries and
damages suffered by Benning as a result of the assault committed against him after being
involved in a rear-end collision.
The standard of reviewing a traditional motion for summary judgment is well
established. See Thx. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,
548-49 (Tex. 1985). Summary judgment is properly granted when the movant established
there are no genuine issues of material fact and it is entitled to judgment as a matter of
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law. Nixon. 69() SW2d at. 548. When deciding if a disputed material fact issue
precluding summary judgment exists, evidence favorable t the nonmovant will be taken
as true, Id. at )$8—39. All reasonable doubts must be resolved in tavor of the Hon—movant
and all reasonable inferences must be indulged in its favor. Id. at 549. We review the
summary judgment de novo to determine whether Home State’s right to prevail is
established as a matter of law. See Valence Operatinç Co. i’. DorNet!, 164 S.W.3d 656.
661 (Tex. 2005); Jewelry Mfrc. Exch. i’. Taflva. 374 S.W.3d 639. 641 (T’ex. App.—
Dallas 2012. pet. denied).
The Home State policy states in pertinent part:
A. We will pay damages which an insured is legally entitled to recover
from the owner or operator of an uninsured motor vehicle because
of:
1. l3odily injury sustained by an insured and caused by an
accident: or
2. Property damage caused by an accident.
The owner’s or operators liability for these damages must arise out
of the ownership. maintenance or use of the uninsured motor vehicle.
(emphasis added)
The parties’ sole dispute concerning the applicability of this provision is over whether
Benning’s injuries were caused by an accident arising out of the use of the uninsured
vehicle.
For liability to ‘arise out of” the use of a vehicle, a causal connection or relation
must exist between the accident or injury and the use of the motor vehicle. Mid-Ceizturv
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Ins. Co. of Ta v. Lindsey, 997 S.W.2d 153. 156 (Tex. 1999). When determining whether
damages arise out of the use of an uninsured motor vehicle, we consider the following
three factors: (1) The accident must have arisen out of the inherent nature of the
automobile, as such: (2) The accident must have arisen within the natural territorial limits
of the automobile. and the actual use. loading, or unloading must not have terminated:
and (3) The automobile must not merely contribute to cause the condition which
produces the injury, but must itself produce the injury. Lancer Ins. Ca v. Garcia Holiday
Tours, 345 S.W.3d 50, 56 (Ta. 2011). While these factors are not an absolute test, they
b%pftj in focusing
the analysis” of the coverage questions. Id. at 55.
Benning contends his injuries arose out of the use of a motor vehicle by a putative
cnjacker. It is undisputed the unknown assailant rear-ended the vehicle driven by
Benning. It is also undisputed Benning was assaulted when attempting to exit the vehicle
he was driving. Benning claims that “but for” the initial collision, he would have stayed
in his car and not have been exiting his vehicle to exchange information with the driver
which put him in the position to be assaulted by the assailant We disagree. It is
undisputed that Benning was waiting to pull into a parking space at a convenience store
when the collision occurred, thus, he would have been in the same position when exiting
his vehicle to enter the store. In this situation. the assault involved the vehicle only
incidentally. The assailant could have been standing in the convenience store parking lot
and accomplished the same result See State Fann Mw. Auta Ins. Ca v. Whitehead, 988
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S.W.2d 744, 745 (1999) (finding “[tihe shooting was an independent and intentional act
not intended to be covered by the policy.”): Lindsey. 997 S.W.2d at 158 CA drive-by
shooting involves a vehicle only incidentally” when the shooter could be standing still
and accomplish the same result). Benning’s physical injuries were not caused by the
vehicle itself; they were caused by the assailant assaulting Benning with a pistol. See I.e
v. Farmer’s Ta County Mut. hit Co.. 936 S.W.2d 317. 321 (Tex. App.—Houston [1st
Distj 1996, pet. denied) (“The gun was the instnimentality that caused Than Is’s
injuries, not the car.”).
Benning claims the “facts clearly establish” the animus of the assault was to obtain
possession of Benning’s vehicle as opposed to a personal assault. Since the assailant left
the scene and was not caught, the animus of the assault may only be inferred. Beaning
contends other states have found injuries arising out of the use of a vehicle when
carjacking was the motive for an assault. However, the facts in this case do not resemble
the facts of the caijacking cases. See Pohiod v. New Jersey Mfrs. Ins. Ca. No. A-0616-
05T3. 2007 WL 92821. *1 (NJ. Super. App. Div. Jan. 11. 2007) (after assault assailant
fled the scene with the vehicle); Carrigan v. State Farm Mm’. Auto. Ins. Ca, 949 P.2d
705,707 (Or. 1997) (assailant sought ride with victim and when victim refused, assailant
shot victim then drove away in victim’s vehicle); State Farm Mitt. Auto. Ins. Ca i Barth.
579 So. 2d 154. 155 (Ha. Dist. Ct. App. 1991) (attacker entered victim’s vehicle and told
her to ‘ttjve bitch.” when victim failed to comply, she was beaten and left behind);
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___
_
r. ‘ itiiiv Ins. ( ‘..43 N .W.2d (8. 6X) ( M inn. Ct. App. I 4) ( alter
h ott n the ict i m, iohher tied in the vehicle). While this may he the law
in these other
slaes. Henning tails to provide us with any [exas law in suppor
t ot his argument.
:j
Bennini.’s (acts tb not show the assailant asked [or the vehicle, asked to he
driven iii the vehicle, or took the vehicle. It is clear that the automobile
in question never
produced the injury itself. Rather, it was the assault that produced
the injury to Henning
and iheretore not covered by the policy of insurance.
Ill,
Accordingly. we reverse the trial court’s denial of Home State’s motion
for partial
summary judgment against L3enning and this case is remanded to the
trial court for further
proceedings consistent with this opinion.
/
MATIN RICHTER
JUSTICE
120246 F. P05
7
(outt of Lppcat
fifth flitrict of !rtxa at ita(ta
JUDGMENT
I IOME STAI’E COUNTY MUTUAL Appeal from the 101st Judicial District
INSURANCE (‘OMPANY AND Court ot Dallas County, Texas
S\FECO, í\jc1Iitts (Trial Court No. DC O9— I 3(77E).
Opinion delivered by Justice Richter,
No, (15 I 200246CV V. Justices Bridges and Lang participating.
DALI3ERT BINNING AND ARLENE
SMALL, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court
is
REVERSEI) and this cause is REMANI)EI) to the trial court for new trial. It is ORDE
RED
that appellants HOME STATE COUNTY MUTUAL INSURANCE COMPANY AND
SAFECO recover their costs of this appeal from appellees DALBERT BINNING AND
ARLENE SMALL.
Judgment entered December 14, 2012.
MARTIN RICHTE
JUSTICE