United Fire Lloyds v. Hope Tippin O/B/O LaCambria Tippin, a Minor , 2013 Tex. App. LEXIS 2433 ( 2013 )

Vacated and Dismissed and Opinion filed March 12, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00313-CV
UNITED FIRE LLOYDS, Appellant
V.
HOPE TIPPIN O/B/O LACAMBRIA TIPPIN, A MINOR, Appellee
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 920228-101
OPINION
In this appeal from a final summary judgment in favor of appellee Hope
Tippin o/b/o LaCambria Tippin, a minor, (collectively, “Tippin”) appellant United
Fire Lloyds (“UFL”) asserts that the trial court erred in granting Tippin’s
summary-judgment motion and denying UFL’s cross-motion for summary
judgment. Because we conclude that Tippin’s claim against UFL was not ripe for
review, we vacate the trial court’s judgment and dismiss this case.
BACKGROUND
On December 12, 2007, Hope Tippin’s daughter, LaCambria, a minor, was
allegedly injured on the premises of a Golden Corral Restaurant in Baytown, Texas
(“Golden Corral”).1 On June 11, 2008, Hope, on behalf of LaCambria, sued
Golden Corral under a theory of negligence for LaCambria’s alleged slip and fall
injury. She sought costs of past and future medical care; damages for past and
future physical pain and mental anguish; and damages for past and future physical
impairment or disfigurement. Golden Corral forwarded the suit to its insurer, UFL,
which received it sometime in July 2008. Golden Corral answered on July 25,
asserting a general denial and the affirmative defense that “the acts or omissions of
[Tippin] were the sole proximate cause or a proximate cause of the damages in
question, if any.”
On October 29, 2008, Tippin filed medical records and bills in response to
requests for disclosure from Golden Corral. These medical records and bills
established that Tippin had incurred medical expenses in the amount of $4,327.98
by that date, all allegedly related to LaCambria’s fall at Golden Corral on
December 7, 2007. Proceedings and discovery continued in the lawsuit.
On June 17, 2010, Tippin’s counsel sent a letter to UFL, including copies of
the medical bills described above. On July 21, 2010, Tippin’s counsel sent another
letter to UFL in which he made a demand for payment under the “Medical
Payments” portion of the UFL insurance policy issued to Golden Corral. UFL’s
litigation supervisor, Tom Miller, responded on July 22, denying the claim:
The policy requires that a claim for expenses under the Medical
Payments portion of the policy be “reported to us within one year of
1
The legal name of the entity Tippin sued is “Baytown Corral LLC d/b/a Golden Corral
Restaurant.” For ease of reference, we will continue to refer to this entity as Golden Corral.
2
the date of the accident”. Our first report of any [M]edical Payments
claim regarding this incident was your letter dated July 21, 2010.
Therefore we must decline payment under that portion of the policy.
After receiving this denial, Tippin amended her petition to join UFL as a party to
her suit against Golden Corral. She added a claim against UFL for breach of
contract for UFL’s failure to pay “Med Pay Damages.”
UFL answered, asserting a general denial; a verified denial that Tippin was
not entitled to recover in the capacity in which she sued, a defect of parties, and a
lack of notice; and the affirmative defenses of lack of standing and limitations,
failure to meet conditions precedent, and failure of consideration. UFL sought to
sever the breach-of-contract claim against it from the negligence claim against
Golden Corral and also moved to dismiss the claim against it for lack of subject-
matter jurisdiction. The trial court denied the motions and ordered the parties to
mediation. Mediation was either unsuccessful or did not occur. UFL filed a
second motion to dismiss and a no-evidence summary-judgment motion, in which
it asserted that Tippin had improperly joined UFC in her suit against its insured,
Golden Corral. Both of these motions were denied by the trial court.
Tippin filed a traditional motion for summary judgment on April 16, 2011.
In this motion, she asserted she had standing to sue UFL as a third-party
beneficiary under the no-fault medical payments provision of Golden Corral’s
insurance policy. She argued that UFL had received multiple written notices
within one year of the accident of her claim for medical bills, pointing to the initial
letters she had sent to Golden Corral, the filing of the lawsuit against Golden
Corral, several discovery responses provided to Golden Corral, and the deposition
of UFL’s litigation supervisor. Tippin argued that she was entitled to attorney’s
fees for prosecution of her breach-of-contract claim and attached an affidavit from
her counsel establishing her reasonable and necessary attorney’s fees.
3
UFL filed a response to Tippin’s summary-judgment motion, combined with
a cross-motion for summary judgment and a motion to reconsider the trial court’s
denial of its no-evidence summary-judgment motion. In this motion, UFL asserted
that Tippin lacked standing to bring her breach-of-contract claim, she was not a
third-party beneficiary to its insurance agreement with Golden Corral, and her
claims were barred by (a) her impermissible joinder of UFL into her tort suit
against Golden Corral under Texas Rule of Civil Procedure 38(c),2 and (b) her
election of remedies, i.e., her decision to sue Golden Corral for negligence for the
same incident.
On December 29, 2011, the trial court granted Tippin’s summary-judgment
motion in this severed case, awarding her $4,327.98 in damages and $8,750.00 in
attorney’s fees.3 The judgment provides, “This judgment finally disposes of all
claims . . . against Defendant, UFL and is a Final Judgment as to defendant United
Fire Lloyds (UFL).” UFL filed a motion to modify, correct, or reform the
judgment, reiterating the arguments it raised in its cross-motion for summary
judgment. It also sought modification of the trial court’s judgment to clarify that
its cross-motion had been denied. On April 2, 2012, the trial court signed a
modified final judgment, reflecting denial of UFL’s cross-motion. From this
judgment, UFL timely appealed.
ANALYSIS
Here, we first must consider the trial court’s jurisdiction, as well as our own.
Subject matter jurisdiction is never presumed and cannot be waived. Tex. Ass’n of
2
This rule provides that a plaintiff may not join a liability insurance company in a tort
case, “unless such company is by statute or contract liable to the person injured or damaged.”
Tex. R. Civ. P. 38(c).
3
That same day, the trial court granted Tippin’s previously filed motion to sever,
ordering UFL severed from the original cause of action between Tippin and Golden Corral.
4
Bus. v. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). As part of its first
issue, UFL asserts that the trial court erred in granting Tippin’s summary-judgment
motion because she lacked standing to sue for breach of contract. However, we
view this issue more precisely as one of ripeness.
Much like standing, ripeness implicates subject-matter jurisdiction and
emphasizes the need for a concrete injury for a justiciable claim to be presented.
Patterson v. Planned Parenthood of Houston, 971 S.W.2d 439, 442 (Tex. 1998).
Standing focuses on who may bring an action, while ripeness examines when that
action may be brought. See id. In evaluating ripeness, we consider whether, when
the lawsuit was filed, the facts were sufficiently developed so that an injury has
occurred or is likely to occur, rather than being contingent or remote. Robinson v.
Parker, 363 S.W.3d 753, 755 (Tex. 2011). “A case is not ripe when its resolution
depends on contingent or hypothetical facts, or upon events that have not yet come
to pass.” Patterson, 971 S.W.2d at 443. (emphasis added). A claim need not be
ripe at the time of filing, as long as the party demonstrates a reasonable likelihood
that the claim will soon ripen. See Robinson, 363 S.W.3d at 755. When a case is
not ripe at the time it is filed or demonstrably likely to soon ripen, it must be
dismissed. See id.; Patterson, 971 S.W.2d at 442–43.
In Texas, an injured party generally cannot sue the tortfeasor’s insurer
directly until the tortfeasor’s liability has been finally determined by agreement or
judgment.4 Angus Chem. Co. v. IMC Fertilizer, Inc., 939 S.W.2d 138, 138 (Tex.
4
Tippin asserts that despite this general bar on direct action against insurance companies,
she may directly sue UFL under the no-fault Medical Payments provision of the commercial
general liability (“CGL”) insurance policy between Golden Corral and UFL. Tippin contends
that this policy provision is intended to directly benefit persons who are injured on the premises
of the insured and seek reimbursement of medical expenses. She argues that this provision
permits her to sue UFL directly for breach of contract when it failed to reimburse her for
LaCambria’s medical expenses. But section IV of the policy, “Commercial General Liability
Conditions,” states, in pertinent part, “No person or organization has a right under this Coverage
5
1997) (per curiam); Farmers Ins. Exch. v. Rodriguez, 366 S.W.3d 216, 223 (Tex.
App.—Houston [14th Dist.] 2012, pet. filed). Here, there is no dispute that, at the
time the trial court granted Tippin summary judgment against UFL, Golden Corral
had not had its liability finally determined by agreement or judgment. Indeed,
Tippin acknowledges in her brief, “Tippin may never have a tort judgment or
recovery against Golden Corral.” See Robinson, 353 S.W.3d at 755 (requiring a
party to demonstrate a “reasonable likelihood” that a claim will soon ripen to avoid
dismissal). Accordingly, we conclude that Tippin’s claim against UFL is not ripe
because it depends upon an event that has not yet come to pass, i.e., a final
determination of Golden Corral’s liability by agreement or judgment. See
Patterson, 971 S.W.2d at 443; Rodriguez, 366 S.W.3d at 223–24.
We therefore vacate the trial court’s judgment and dismiss this case.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
Part . . . [t]o join [UFL] as a party or otherwise bring us into a ‘suit’ asking for damages from an
insured. . . .” This language incorporates the general prohibition on joining an insurance
company into a tort suit. See Tex. R. Civ. P. 38(c). As discussed above, Tippin amended her tort
suit against Golden Corral, in which she was seeking damages from UFL’s insured, to join UFL
as a party. Thus, even if Tippin could sue UFL directly under the no-fault Medical Payments
coverage of this policy, an issue we do not determine, the plain language of the insurance policy
prevents her from doing so in the manner in which she has proceeded. Accordingly, the Medical
Payments provision of the CGL policy provides Tippin no basis for overcoming the
jurisdictional bar to this suit.
6