Pharr-San Juan-Alamo Independent School District v. Texas Political Subdivisions property/casualty Joint Self Insurance Fund

Supreme Court of Texas
══════════
No. 20-0033
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Pharr–San Juan–Alamo Independent School District,
Petitioner,
v.
Texas Political Subdivisions Property/Casualty Joint Self
Insurance Fund,
Respondent
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Thirteenth District of Texas
═══════════════════════════════════════
Argued September 14, 2021
JUSTICE BOYD delivered the opinion of the Court.
The parties in this case dispute whether an automobile-liability
insurance policy requires the insurer to defend and indemnify the
insured against claims for damages arising from an accident involving
the use of a “golf cart.” We hold the insurer had no duty to defend the
insured because the term “golf cart” does not refer to a vehicle “designed
for travel on public roads” and thus does not refer to a “covered auto.”
And because the evidence confirms that the accident in this case did not
result from the use of a vehicle designed for travel on public roads, we
hold the insurer has no duty to indemnify the insured. Although we
disagree with the court of appeals’ reasoning, we affirm its judgment
reversing the trial court’s judgment and remanding the case to that
court.
I.
Background
The Pharr-San Juan-Alamo Independent School District obtained
automobile-liability insurance from the Texas Political Subdivisions
Property/Casualty Joint Self Insurance Fund. The policy requires the
Insurance Fund to indemnify the School District by paying “all sums”
the School District “legally must pay as damages because of bodily injury
or property damage to which this self-insurance applies,” if those
damages are “caused by an accident and result[] from the ownership,
maintenance or use of a covered auto.” [Emphasis added.] According to
the policy’s definitions, the term “auto” means “a land motor vehicle . . .
designed for travel on public roads but does not include mobile
equipment.” [Emphasis added.] The term “mobile equipment” means
certain types of “land vehicles,” including “[b]ulldozers, farm machinery,
forklifts and other vehicles designed for use principally off public roads.”
[Emphasis added.] In addition to the duty to indemnify, the policy
imposes on the Insurance Fund the “duty to defend any suit asking for
these damages.”
This dispute arose when Lorena Flores, acting as next friend of
her minor daughter Alexis, sued the School District and its employee,
Cristoval DeLaGarza, Jr. Flores alleged in her petition that Alexis “was
severely injured after being thrown from a golf cart.” More specifically,
2
Flores alleged that DeLaGarza, while acting within the course and scope
of his employment with the School District, “recklessly and negligently
operated” the “golf cart” when “he suddenly, and without warning,
turned the golf cart abruptly, thereby throwing Alexis Flores from the
vehicle.” The petition did not provide any additional details about the
accident or about the “golf cart.”
The School District requested that the Insurance Fund provide a
defense against Flores’s claims and indemnify the School District
against any resulting liability. The Insurance Fund refused, asserting
that the policy did not provide coverage because a “golf cart” is not
designed for travel on public roads and thus is not an “auto”—and
instead is “mobile equipment”—as the policy defines those terms. When
the parties failed to resolve this definitional dilemma, the Insurance
Fund filed this suit seeking a declaratory judgment that it had no duty
to defend the School District. The School District filed a counter-claim
for declaratory judgment that the policy required the Insurance Fund to
defend and indemnify the School District.1
1 After the Insurance Fund denied a defense, the School District
demanded a defense from the Texas Association of Public Schools Property and
Liability Fund, from which the School District had obtained a general-liability
(as opposed to automobile-liability) insurance policy. The TAPS Fund initially
agreed to provide a defense and filed a plea to the jurisdiction on the School
District’s behalf, asserting that governmental immunity barred Flores’s claim
and the Texas Tort Claims Act did not waive that immunity because the “golf
cart” was not a “motor vehicle.” See TEX. CIV. PRAC. & REM. CODE
§§ 101.021(1)(a), .051 (waiving governmental immunity against claims arising
from the use of a “motor vehicle” or “motor-driven vehicle”). When the trial
court denied the plea, the TAPS Fund withdrew its defense, asserting that the
order “determined that this golf cart was a motor vehicle” and its general-
liability policy did not cover claims arising from motor-vehicle accidents. The
3
Discovery in this suit and in Flores’s suit against the School
District produced additional information about the accident. DeLaGarza
worked for the School District as a certified athletic trainer, and Alexis
was a high-school student who assisted DeLaGarza as part of her
school’s sports-medicine student-trainer program. On the day of the
accident, Alexis and another student trainer were helping DeLaGarza
transport equipment from the school’s field house to a football field.
With DeLaGarza driving the “golf cart” and the students as passengers,
they made several round trips, driving on sidewalks, the parking area,
an on-campus road, the bus-loading area, and the running track. Alexis
testified that DeLaGarza drove the cart “as fast as it could go” and at
one point “jerk[ed] the [steering] wheel to the left,” throwing Alexis from
the vehicle onto the track. DeLaGarza denied that he was driving fast
or that he turned recklessly. In any event, Alexis tore an anterior
cruciate ligament, underwent surgery, and developed an infection that
required her to be hospitalized for several weeks.
School District then re-urged its demand for a defense and indemnity from the
Insurance Fund, but the Insurance Fund again denied the demand and filed
this suit.
The School District later asserted third-party claims against the TAPS
Fund in this suit, but ultimately dismissed those claims after those parties
reached a settlement. When the Insurance Fund learned that the TAPS Fund
had paid to settle the School District’s claims, the Insurance Fund obtained
leave to amend its pleadings to assert the “one-satisfaction rule,” arguing that
it was “entitled to a credit and offset for the full amount” the TAPS Fund had
paid to the School District. The Insurance Fund argues that the trial court
erred by failing to grant that credit, but we need not reach that issue in light
of our holding that the Insurance Fund’s policy does not provide coverage for
Flores’s claims. The TAPS Fund is not a party to this appeal.
4
Discovery also produced additional details about the “golf cart”
DeLaGarza was driving. It was “an older model, electric type commonly
seen on golf courses,” except that it was modified by adding a “wooden
bed” or “platform” to the rear, to hold coolers and other equipment and
supplies. It was a “normal golf cart you would see at a golf course,” was
“not street legal,” and was “used only on campus property, mainly from
the field house to the athletic fields. It travel[ed] mainly on sidewalks,
short internal streets, parking lots and athletic fields and tracks.” “Any
other use of the golf cart was incidental.”
While this case was pending, the court hearing Flores’s suit
against the School District conducted a bench trial, found the School
District liable for Alexis’s injuries, and entered a final judgment
ordering the School District to pay Flores $100,000, the maximum
amount allowed under the Texas Tort Claims Act. See TEX. CIV. PRAC. &
REM. CODE § 101.023(b). Meanwhile, in this case, the Insurance Fund
and the School District filed competing summary-judgment motions
addressing both the duty to defend and the duty to indemnify. 2 Both
2 The procedural background is actually more complicated and involved
several different summary-judgment motions. The Insurance Fund initially
filed a motion seeking summary judgment that it owed no duty to defend or
indemnify the School District. The trial court entered a “final order” denying
that motion and dismissing the Insurance Fund’s claims. The Insurance Fund
appealed, but the court of appeals dismissed the appeal for want of jurisdiction,
holding that the “final judgment” was not final because it did not dispose of the
parties’ claims for attorney’s fees. On remand, the Insurance Fund filed a
second summary-judgment motion, again addressing both the duty to defend
and the duty to indemnify. The School District then filed its counter-claim for
declaratory relief and its own summary-judgment motion addressing only the
duty to defend. After the trial court denied the Insurance Fund’s second
summary-judgment motion, the School District filed a combined traditional
5
parties relied on the insurance policy and on Flores’s petition in the
underlying suit. The School District also filed and relied on additional
documents, including (1) deposition excerpts regarding the “golf cart”
from which Alexis was thrown, (2) print-outs of portions of the website
of E-Z-Go, a golf-cart manufacturer, and (3) a Wall Street Journal article
entitled “Invasion of the Golf Carts; As Electric Vehicles Migrate Onto
Public Streets, Should we be Worried?”
The trial court determined as a matter of law that the policy
requires the Insurance Fund to defend and indemnify the School
District. In a series of orders, it denied the Insurance Fund’s summary-
judgment motions, granted the School District’s motions, and entered a
final judgment requiring the Insurance Fund to pay the School District
the costs it incurred in defending Flores’s suit and the $100,000 it paid
to satisfy the judgment in that suit, plus post-judgment interest. The
Insurance Fund appealed, and the court of appeals reversed, holding
that neither party was entitled to summary judgment on either the duty
to defend or the duty to indemnify. 628 S.W.3d 486, 496 (Tex. App.—
Corpus Christi–Edinburg 2019).
On the duty to defend, the appellate court first held that it could
consider extrinsic evidence (including the testimony regarding the golf
cart involved in Alexis’s accident, the E-Z-Go website, and the Wall
Street Journal article) because the evidence was relevant only to the
insurance-coverage dispute (that is, whether a “golf cart” may qualify as
and no-evidence motion for summary judgment addressing both the duty to
defend and the duty to indemnify. The Insurance Fund then filed a motion for
reconsideration of its second summary-judgment motion or, alternatively, a
third motion for summary judgment.
6
an “auto”) and not relevant to the merits of Flores’s claims against the
School District. Id. at 494. Based on this holding, the court concluded
the trial court correctly denied the Insurance Fund’s summary-
judgment motion because the evidence established that “the term ‘golf
cart’ has an expanded meaning in today’s lexicon,” such that it may
include vehicles that are designed for travel on public roads. Id. at 495.
But the court nevertheless concluded that the trial court erred by
granting the School District’s summary-judgment motion because the
extrinsic evidence “clearly raised a material fact question about the
design of the golf cart” from which Alexis was thrown. Id. at 496. And
finally, because the Insurance Fund had not relied on extrinsic evidence
to support its summary-judgment motion, the court declined to “decide
whether the extrinsic evidence in this case conclusively precludes
coverage.” Id. (emphasis added).
On the duty to indemnify, the court of appeals held that the
School District could not obtain a no-evidence summary judgment
because it bore the burden of proving that the “golf cart” Alexis was
thrown from was an “auto,” rather than “mobile equipment,” and the
evidence created a genuine issue on that fact. Id. at 493–94.
Concluding that neither party carried its summary-judgment
burden on either the duty to defend or the duty to indemnify, the court
of appeals reversed the trial court’s judgment and remanded the case to
that court. The School District petitioned this Court for review, but the
Insurance Fund did not.
7
II.
Duties to Defend and Indemnify
The School District raises two issues in this Court, one addressing
the Insurance Fund’s duty to defend and one addressing its duty to
indemnify. The duty to defend, which “is a creature of contract,”
generally requires a liability insurer “to defend its insured against
claims or suits seeking damages covered by the policy.” Loya Ins. Co. v.
Avalos, 610 S.W.3d 878, 880–81 (Tex. 2020). The duty to indemnify,
which also arises from the contract’s terms, requires the insurer “to pay
all covered claims and judgments against [the] insured.” D.R. Horton-
Tex., Ltd. v. Markel Intern. Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009).
“Whether a claim triggers an insurer’s duty to defend and whether a
claim eventually is covered or excluded for purposes of indemnity are
different questions.” Gilbert Tex. Const., L.P. v. Underwriters at Lloyd’s
London, 327 S.W.3d 118, 133 (Tex. 2010). The “distinct and separate
duties,” Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 822 (Tex.
1997), are not interdependent, see King v. Dall. Fire Ins. Co., 85 S.W.3d
185, 187 (Tex. 2002), and “are rarely coextensive,” GuideOne Elite Ins.
Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 310 (Tex. 2006).
Because the two duties “differ in scope, they are invoked under different
circumstances.” Id.We have held that a “plaintiff’s factual allegations that
potentially support a covered claim [are] all that is needed to invoke the
insurer’s duty to defend[]; whereas, the facts actually established in the
underlying suit control the duty to indemnify.” Id. So depending on the
factual allegations and the actual facts, “an insurer may have a duty to
defend but, eventually, no duty to indemnify.” Farmers Tex. Cnty. Mut.
8
Ins. Co. v. Griffin, 955 S.W.2d 81, 82 (Tex. 1997). Conversely, “an insurer
may have a duty to indemnify its insured even if the duty to defend
never arises.” D.R. Horton-Tex., 300 S.W.3d at 741. We thus address the
duties separately here, beginning with the duty to defend.
III.
The Duty to Defend
We held long ago that the duty to defend depends not “on what
the facts are or what might finally be determined to be the facts,” but
“only on what the facts are alleged to be.” Heyden Newport Chem. Corp.
v. S. Gen. Ins. Co., 387 S.W.2d 22, 25 (Tex. 1965). To determine whether
the duty existed, we considered only the allegations made within the
petition in the underlying lawsuit and the terms of the insurance policy,
“without reference to the truth or falsity of such allegations and without
reference to what the parties know or believe the true facts to be, or
without reference to a legal determination thereof.” Id. at 24; see also
Argonaut Sw. Ins. Co. v. Maupin, 500 S.W.2d 633, 635–36 (Tex. 1973).
Under this “eight-corners” or “complaint-allegation” rule, 3 the
insurer has a duty to defend if the underlying petition alleges facts that
fall within the scope of the insurance policy’s coverage. King, 85 S.W.3d
at 187. We have applied this rule somewhat liberally in favor of the
insured by resolving “all doubts regarding the duty to defend in favor of
3 The “eight-corners” label derives from the fact that the “four corners”
of “only two documents are ordinarily relevant to the determination of the duty
to defend: the policy and the pleadings of the third-party claimant.” GuideOne,
197 S.W.3d at 308. The “complaint-allegation” label derives from the
requirement that courts determine the duty to defend by looking only to the
allegations in the plaintiff’s complaint or petition, as opposed to evidence
regarding the actual facts. Trinity Universal, 945 S.W.2d at 821.
9
the duty,” id., and by recognizing the duty if the petition alleges facts
that “potentially support a covered claim,” GuideOne, 197 S.W.3d at 310
(emphasis added).
We recently recognized a narrow exception to the eight-corners
rule, allowing courts to consider evidence that the insured colluded with
the plaintiff in the underlying suit to fraudulently create coverage that
otherwise would not exist. Loya, 610 S.W.3d at 881–82. Meanwhile,
other courts have addressed a broader exception, which the United
States Court of Appeals for the Fifth Circuit described as allowing courts
to consider extrinsic evidence “when it is initially impossible to discern”
from the eight corners of the policy and the underlying petition “whether
coverage is potentially implicated and when the extrinsic evidence goes
solely to a fundamental issue of coverage which does not overlap with
the merits of or engage the truth or falsity of any facts alleged in the
underlying case.” Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d
523, 531 (5th Cir. 2004); see also Richards v. State Farm Lloyds, 597
S.W.3d 492, 497 (Tex. 2020) (acknowledging the Northfield exception’s
“widespread use”).
In a separate case we also decide today, we approve something
like this broader exception, holding for the first time that “Texas law
permits consideration of evidence under a standard similar to that
articulated in Northfield.” See Monroe v. BITCO, — S.W.3d —, 2022 WL
—, at *— (Tex. Feb. 11, 2022). We explain in Monroe that the eight-
corners rule “remains the initial inquiry to be used to determine whether
a duty to defend exists.” Id. at ___. But we conclude in Monroe that
10
courts may consider extrinsic evidence, in addition to the policy and the
underlying petition,
if the underlying petition states a claim that
could trigger the duty to defend, and the
application of the eight-corners rule, due to a
gap in the plaintiff’s pleading, is not
determinative of whether coverage exists, . . .
provided the evidence (1) goes solely to an
issue of coverage and does not overlap with
the merits of liability, (2) does not contradict
facts alleged in the pleading, and (3)
conclusively establishes the coverage fact to
be proved.
Id. at ___.4
The court of appeals relied on the Northfield exception in this
case, considering extrinsic evidence regarding the “golf cart” from which
Alexis was thrown as well as “golf carts” in general, and concluded that
some “golf carts” are designed for use on public roads but a fact issue
exists as to whether this accident involved such a “golf cart.” 628 S.W.3d
at 495. The School District argues the court of appeals erred by
considering extrinsic evidence. According to the School District, because
Flores’s petition referred only to a “golf cart” without providing any
additional details, and because the term “golf cart” could “potentially”
4 We explained in Monroe that this exception differs from the exception
as the Fifth Circuit described it in Northfield in that (1) the exception applies
only if the underlying petition does not “contain the facts necessary to resolve
the question of whether the claim is covered,” rather than “if it is initially
impossible to discern from the pleadings and policy ‘whether coverage is
potentially implicated,’” (2) the exception does not require that the extrinsic
evidence relate to a “fundamental” coverage issue, and (3) the extrinsic
evidence must conclusively establish the coverage fact at issue. Monroe, —
S.W.3d at ___ (quoting Northfield, 363 F.3d at 531).
11
refer to vehicles that are designed for travel on public roads, the
Insurance Fund had a duty to defend regardless of what any extrinsic
evidence might reveal about the golf cart actually involved in the
accident. The Insurance Fund, in turn, urges us to adopt the Northfield
exception and approve the court of appeals’ consideration of extrinsic
evidence.5
Applying the eight-corners rule, we conclude that Flores’s petition
did not allege a claim for which the policy provided coverage. And we
further conclude that the Monroe exception to the eight-corners rule
does not apply in this case.
5 Initially, the Insurance Fund argues that the School District waived
any complaint about the court of appeals’ consideration of extrinsic evidence
because the School District filed such evidence in support of its summary-
judgment motion and thereby “opened the door to the introduction of
controverting evidence.” In fact, the Insurance Fund contends that this Court
lacks jurisdiction over the School District’s appeal because “a party may not
complain on appeal of the improper admission of evidence if the complaining
party introduced the same evidence or evidence of a similar character.” Serv.
Corp. Int’l v. Guerra, 348 S.W.3d 221, 238 (Tex. 2011). We disagree that any
such waiver would affect our jurisdiction, which extends to any “appealable
order or judgment of the trial courts if the court determines that the appeal
presents a question of law that is important to the jurisprudence of the state.”
TEX. GOV’T CODE § 22.001(a). The School District presented to this Court a
question of law important to the state’s jurisprudence, and thus established
this Court’s jurisdiction over the appeal. Whether procedural hurdles prevent
us from addressing the question does not affect our jurisdiction. See Hughes v.
Tom Green County, 573 S.W.3d 212, 216 (Tex. 2019); see also TEX. R. APP. P.
25.1(b) (“The filing of a notice of appeal by any party invokes the appellate
court’s jurisdiction over all parties to the trial court’s judgment or order
appealed from. Any party’s failure to take any other step required by these
rules, including the failure of another party to perfect an appeal . . . , does not
deprive the appellate court of jurisdiction but is ground only for the appellate
court to act appropriately, including dismissing the appeal.”).
12
A. The eight-corners rule
Consistent with today’s decision in Monroe, our “initial inquiry”
is whether Flores’s petition states a claim that could trigger the duty to
defend under the eight-corners rule. Monroe, — S.W.3d at ___. We
conclude it did not.
Flores’s petition alleged that Alexis’s injuries resulted from the
negligent use of a “golf cart.” The term “golf cart” does not appear within
the insurance policy. As with any other contract, see Kelley–Coppedge,
Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998) (“[W]e
interpret insurance policies in Texas according to the rules of contract
construction.”), we determine the meaning of an undefined term as used
in an insurance policy by applying its “ordinary and generally accepted
meaning,” as construed “in context and in light of the rules of grammar
and common usage,” RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113,
118 (Tex. 2015). Here, however, the question involves the meaning of a
term used in a pleading (Flores’s petition), not a term used in the
insurance policy. Nevertheless, because our objective in both instances
is to construe the meaning of an undefined term as used within a legal
context, we will discern and apply the common, ordinary meaning of the
term “golf cart,” in light of the context of its use within Flores’s petition.
To determine the common, ordinary meaning of undefined terms
used in contracts, statutes, and other legal documents, “we typically look
first to their dictionary definitions and then consider the term’s usage
in other statutes, court decisions, and similar authorities.” Tex. State
Bd. of Examiners of Marriage & Fam. Therapists v. Tex. Med. Ass’n, 511
13
S.W.3d 28, 35 (Tex. 2017). Considering these sources here, we conclude
the term “golf cart” does not refer to vehicles designed for travel on
public roads.
Dictionaries consistently define the term “golf cart” to refer to a
motorized cart designed to transport golfers around a golf course. See
Golf cart, DICTIONARY.COM, https://www.dictionary.com/browse/golf-cart
(last visited Feb. 2, 2022) (defining “golf cart” to mean “a small, battery-
powered, three- or four-wheel vehicle used for transporting one or two
golfers and their equipment around a golf course”); Golf cart, WEBSTER’S
9TH NEW COLLEGIATE DICTIONARY 538 (2003) (defining “golf cart” to
mean “a motorized cart for carrying a golfer and his equipment over a
golf course - called also golf car”); Golf cart, MERRIAM-WEBSTER.COM,
https://www.merriam-webster.com/dictionary/golf%20cart (last visited
Feb. 2, 2022) (defining “golf cart” to mean “a motorized cart for carrying
golfers and their equipment over a golf course”); Golf cart,
COLLINSDICTIONARY.COM,
https://www.collinsdictionary.com/dictionary/english/golf-cart (last
visited Feb. 2, 2022) (defining “golf cart” to mean “a small, electric,
carlike vehicle designed to carry two golfers and their golf clubs around
a golf course”).
In the same way, Texas statutes define the term “golf cart” to
mean “a motor vehicle designed by the manufacturer primarily for use
on a golf course.” TEX. TRANSP. CODE § 551.401. By this definition, our
statutes carefully distinguish the term “golf cart” from terms describing
other types of vehicles and devices, including an “electric personal
14
assistive mobility device,”6 a “neighborhood electric vehicle,”7 a “motor-
assisted scooter,”8 a “plug-in hybrid motor vehicle,”9 an “all-terrain
6 See TEX. TRANSP. CODE § 551.201 (defining “electric personal assistive
mobility device” to mean “a two non-tandem wheeled device designed for
transporting one person that is: (1) self-balancing; and (2) propelled by an
electric propulsion system with an average power of 750 watts or one
horsepower”).
7 See id. § 551.301 (defining “neighborhood electric vehicle” to mean “a
vehicle that can attain a maximum speed of 35 miles per hour on a paved level
surface and otherwise complies with Federal Motor Vehicle Safety Standard
500 (49 C.F.R. Section 571.500)”); see also TEX. GOV’T CODE § 2158.001(5)
(defining “neighborhood electric vehicle” to mean “a motor vehicle that: (A) is
originally manufactured to meet, and does meet, the equipment requirements
and safety standards established for ‘low-speed vehicles’ in Federal Motor
Vehicle Safety Standard 500 (49 C.F.R. Section 571.500); (B) is a slow-moving
vehicle, as defined by Section 547.001, Transportation Code, that is able to
attain a speed of more than 20 miles per hour but not more than 25 miles per
hour in one mile on a paved, level surface; (C) is a four-wheeled motor vehicle;
(D) is powered by electricity or alternative power sources; (E) has a gross
vehicle weight rating of less than 3,000 pounds; and (F) is not a golf cart”)
(emphasis added); TEX. HEALTH & SAFETY CODE § 392.001(8) (same).
8 See TEX. TRANSP. CODE § 551.351(1) (defining “motor-assisted scooter”
to mean “a self-propelled device with: (i) at least two wheels in contact with the
ground during operation; (ii) a braking system capable of stopping the device
under typical operating conditions; (iii) a gas or electric motor not exceeding
40 cubic centimeters; (iv) a deck designed to allow a person to stand or sit while
operating the device; and (v) the ability to be propelled by human power alone,”
but not including “a pocket bike or a minimotorbike”).
9 See TEX. GOV’T CODE § 2158.001(6) (defining “[p]lug-in hybrid motor
vehicle” to mean “a vehicle that: (A) draws motive power from a battery with a
capacity of at least four kilowatt-hours; (B) can be recharged from an external
source of electricity for motive power; and (C) is a light-duty motor vehicle
capable of operating at highway speeds, excluding golf carts and neighborhood
electric vehicles” (emphasis added)).
15
vehicle,”10 a “sand rail,”11 a “recreational off-highway vehicle,”12 a
“utility vehicle,”13 and other types of “off-highway vehicles.”14 Unlike
these types of vehicles, and consistent with the dictionary definitions,
our statutes use the term “golf cart” to refer to a vehicle designed
“primarily for use on a golf course.” Id.
10 See TEX. TRANSP. CODE § 551A.001(1) (defining “[a]ll-terrain vehicle”
to mean “a motor vehicle that is: (A) equipped with a seat or seats for the use
of: (i) the rider; and (ii) a passenger, if the motor vehicle is designed by the
manufacturer to transport a passenger; (B) designed to propel itself with three
or more tires in contact with the ground; (C) designed by the manufacturer for
off-highway use; (D) not designed by the manufacturer primarily for farming
or lawn care; and (E) not more than 50 inches wide”).
11 See id. § 551A.001(3) (defining “[s]and rail” to mean “a vehicle, as
defined by Section 502.001, that: (A) is designed or built primarily for off-
highway use in sandy terrains, including for use on sand dunes; (B) has a
tubular frame, an integrated roll cage, and an engine that is rear-mounted or
placed midway between the front and rear axles of the vehicle; and (C) has a
gross vehicle weight, as defined by Section 541.401, of: (i) not less than 700
pounds; and (ii) not more than 2,000 pounds”).
12 See id. § 551A.001(5) (defining “[r]ecreational off-highway vehicle” to
mean “a motor vehicle that is: (A) equipped with a seat or seats for the use of:
(i) the rider; and (ii) a passenger or passengers, if the vehicle is designed by the
manufacturer to transport a passenger or passengers; (B) designed to propel
itself with four or more tires in contact with the ground; (C) designed by the
manufacturer for off-highway use by the operator only; and (D) not designed
by the manufacturer primarily for farming or lawn care”).
13 See id. § 551A.001(6) (defining “[u]tility vehicle” to mean “a motor
vehicle that is not a golf cart, as defined by Section 551.401, or lawn mower
and is: (A) equipped with side-by-side seating for the use of the operator and a
passenger; (B) designed to propel itself with at least four tires in contact with
the ground; (C) designed by the manufacturer for off-highway use only; and (D)
designed by the manufacturer primarily for utility work and not for
recreational purposes” (emphasis added)).
14 See id. § 551A.001(1-d) (defining “[o]ff-highway vehicle” to mean “(A)
an all-terrain vehicle or recreational off-highway vehicle; (B) a sand rail; or (C)
a utility vehicle”).
16
The School District notes, however, that although our statutes
narrowly define the term “golf cart” and generally prohibit registering a
“golf cart for operation on a highway,” TEX. TRANSP. CODE § 551.402(a),
they do permit “golf carts” to be operated in certain master-planned
communities and for limited distances on certain low-speed highways
“for transportation to and from a golf course,” id. § 551.403(a)(1) & (3),
(b).15 And they also permit certain municipalities and counties to allow
“golf carts” to be operated on low-speed highways for any purpose, so
long as they are equipped with headlamps, taillamps, reflectors, a
parking brake, and mirrors. Id. §§ 551.404, .4041. And several other
statutes recognize that “golf carts” may be operated on highways under
certain other circumstances and for other specified purposes. 16
15See also id. §§ 551.4031 (authorizing counties, municipalities, and the
Texas Department of Transportation to prohibit such operation of a golf cart
on a highway based on a determination “that the prohibition is necessary in
the interest of safety”), 601.052(a)(2-a) (providing that the statutory
requirement of liability insurance does not apply to “a golf cart that is operated
only as authorized by Section 551.403”).
16 See, e.g., id. §§ 547.703(d) (requiring a golf cart “operated at a speed
of not more than 25 miles per hour” to “display a slow-moving-vehicle emblem
when it is operated on a highway”), 551.452(a) (permitting the Texas
Department of Motor Vehicles to “issue distinguishing license plates” for a golf
cart “operated by a motor carrier for the purpose of picking up and delivering
mail, parcels, and packages,” if the golf cart is “equipped with headlamps,
taillamps, reflectors, a parking brake, and mirrors, in addition to any other
equipment required by law”), .453 (permitting motor carriers to operate golf
carts bearing such distinguishing license plates “on a public highway that is
not an interstate or a limited-access or controlled-access highway and that has
a speed limit of not more than 35 miles per hour”); .455 (permitting
municipalities and counties to allow motor carriers to operate golf carts
bearing such distinguishing license plates for such purpose “on all or part of a
public highway that: (1) is in the corporate boundaries of the municipality; and
(2) has a speed limit of not more than 35 miles per hour”).
17
According to the School District, these statutes demonstrate that
the term “golf cart” refers to a vehicle that may be “designed for travel
on public roads,” and thus may constitute an “auto” as the insurance
policy defines that term. We disagree. Although these statutes allow a
“golf cart” to be operated on a public road under certain circumstances,
they do not demonstrate that the term “golf cart” includes vehicles that
are designed to be operated on such roads. To the contrary, the extensive
legislation permitting “golf carts” to be operated on public roads under
limited circumstances delineates the exception, not the rule; the
divergence, not the definition. It merely permits a “golf cart”—which it
describes as a vehicle designed “primarily for use on a golf course,”
consistent with the dictionary definitions—to be used on a public road
under limited circumstances.
In addition to the term’s dictionary and statutory definitions, we
find guidance in the way courts from other jurisdictions have
consistently used and construed the term “golf cart,” specifically, to refer
to a vehicle designed for use on a golf course, and not to a vehicle
designed for travel on public roads.17 We agree: the common, ordinary
17 See Progressive Mountain Ins. Co. v. Graybeal, No. 2:11-CV-00176-
WCO, 2012 WL 13018492, at *7 (N.D. Ga. Sept. 20, 2012) (holding that a “golf
cart” was “simply” not a “vehicle ‘designed for operation principally on public
roads’ within the plain meaning of the Policy language”); State Farm Mut.
Auto. Ins. Co. v. Baldassini, 909 F. Supp. 2d 1363, 1367, 1369 (S.D. Fla. 2012),
aff’d, 545 Fed. Appx. 842 (11th Cir. 2013) (holding that insurance policy’s
definition of “car” as “a land motor vehicle with four or more wheels, which is
designed for use mainly on public roads” “unambiguous[ly]” did not include golf
carts, noting that evidence that golf carts may be used on public roads “on a
limited basis” demonstrates that they were not designed for that main purpose,
and stating that city regulations permitting golf carts on roads “shed[] no light”
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meaning of the term “golf cart” necessarily refers to a cart designed for
use on a golf course, not for travel on public roads.
Applying the eight-corners rule, we conclude that the Insurance
Fund had no duty to defend the School District against Flores’s claims
because Flores’s allegation that Alexis was “thrown from a golf cart” did
on the manufacturer’s “intentions when it designed the [golf cart]”); Bailey v.
Netherlands Ins. Co., 615 F. Supp. 2d 1332, 1338 (M.D. Fla. 2009) (“The Court
finds that the golf cart is not an ‘auto’ under the Subject Policy [containing an
identical definition of ‘auto’ as in this case] because it is not designed to be
operated on public roads.”); Dowdle v. Miss. Farm Bureau Mut. Ins. Co., 697
So. 2d 788, 791 (Miss. 1997) (upholding summary judgment on grounds that
“golf carts are recreational vehicles ‘designed for use principally off public
roads’ and are thus excluded under the terms of the [uninsured motorist]
policy” at issue); Truck Ins. Co. v. Corraro, No. NNHCV186082179S, 2019 WL
4898705, at *5 (Conn. Super. Ct. Sept. 6, 2019) (“Clearly, golf carts, which are
designed to be used on golf courses in connection with the recreational sport of
golf, are designed for use off public roads.”); Andrade v. Tradition Golf Club of
Wallingford, LLC, No. NNHCV136039774S, 2014 WL 486818, at *5 (Conn.
Super. Ct. Jan. 9, 2014) (holding that golf cart was not “motor vehicle” under
insurance policy defining “motor vehicle” to exclude “any vehicle or equipment
. . . [d]esigned mainly for use off public roads while not on public roads”);
Herring v. Horace Mann Ins. Co., 795 So. 2d 209, 211 (Fla. Dist. Ct. App. 2001)
(rejecting insurer’s argument that “golf carts are motor vehicles because they
may be used on public roads and because, if properly equipped, golf carts are
capable of being licensed for use on the public highways” because “[a] golf cart,
patently, is designed for operation at low speed on a golf course or for similar
sporting or recreational purposes, or for transportation on private property”);
East v. Labbe, 735 A.2d 371, 373 (Conn. Super. Ct. 1998) (“[T]his golf cart
would not be a motor vehicle for the purposes of General Statutes § 14–293a,
as the vehicle is not suitable for operation on the highway because it is not
designed for such use.”), aff’d, 735 A.2d 370 (Conn. App. Ct. 1999) and 746 A.2d
751 (Conn. 2000); Progressive Cas. Ins. Co. v. Dunn, 665 A.2d 322, 326 (Md.
App. 1995) (“Any engine-driven wheeled vehicle—even an airplane or a
massive earth-mover—can be driven on streets and roads. The test is not
ultimate possibility, however, but whether the vehicle is intended for that
mode of travel. A golf cart, of the kind described in this case, is certainly not
intended for such travel.”).
19
not include an allegation that she was thrown from a “vehicle designed
for travel on public roads.”
B. Extrinsic evidence under Monroe
Under today’s decision in Monroe, we must apply the eight-
corners rule to determine whether the Insurance Fund had a duty to
defend the School District against Flores’s claim, and may not consider
extrinsic evidence unless: (1) Flores’s petition alleged “a claim that could
trigger the duty to defend,” (2) a “gap” in her petition leaves us unable
to determine whether coverage exists by applying the eight-corners rule,
(3) the facts the extrinsic evidence would relate to solely concern the
coverage issue and do not overlap with the liability merits, (4) those facts
would not contradict facts alleged in Flores’s petition, and (5) the
extrinsic evidence “conclusively establishes the coverage fact to be
proved.” Monroe, — S.W.3d at ___.
The “fact” at issue here is whether the vehicle from which Alexis
was thrown was “designed for travel on public roads.” We agree with the
court of appeals that this fact relates solely to the coverage issue and
does not overlap with the merits of Flores’s claims: the School District
was liable if DeLaGarza negligently operated the “golf cart” regardless
of whether the “golf cart” was designed for travel on public roads.
But the other Monroe factors do not support the consideration of
extrinsic evidence in this case. This is because a “golf cart,” as we have
explained, is designed for travel on a golf course and not on public roads.
By alleging that Alexis was thrown from a “golf cart,” Flores’s petition
left no “gap” that would prevent us from determining whether the duty
exists. Mere disagreements about the common, ordinary meaning of an
20
undefined term do not create the type of “gap” Monroe requires. And in
the absence of such a gap, any extrinsic evidence that Alexis was
actually thrown from something other than a “golf cart” would
contradict the facts alleged in Flores’s petition. Id. at ___. If Flores had
alleged only that Alexis was thrown from a “vehicle,” without any
indication of the type of vehicle or whether it was designed for travel on
public roads, a gap would exist that prevents us from determining the
duty to defend based solely on the petition’s allegations and the policy’s
provisions, and extrinsic evidence proving that the vehicle was or was
not designed for use on public roads would not contradict the general
allegation that the accident involved a “vehicle.” But by pleading that
the vehicle was a “golf cart,” the petition provided all the information
necessary to determine the duty to defend. As a result, the Monroe
exception does not apply, and the eight-corners rule governs the duty to
defend in this case.
C. “Sources” other than “extrinsic evidence”
The School District contends that the exhibits it filed in this
case—particularly the print-outs from the E-Z-Go website and the Wall
Street Journal article—do not constitute “extrinsic evidence” but
instead, like dictionaries, statutes, and court opinions, are permissible
even under the eight-corners rule as mere “source[s] that would aid the
Court in understanding the meanings and usages of words.” We need
not decide whether these “sources” constitute the kind of “extrinsic
evidence” the eight-corners rule bars, however. Even if we do consider
these sources, they do not support the School District’s contentions
regarding the common, ordinary meaning of the term “golf cart.”
21
The E-Z-Go website print-outs depict and describe vehicles that
look very much like “golf carts” but are designed for travel on public
roads. But the website nowhere uses the term “golf cart” to refer to these
vehicles. To the contrary, the website provides four separate main
links—labeled “Personal,” “Golf,” “Parts & Accessories,” and “About E-
Z-Go”—and the pages provided by the School District depicting vehicles
designed for travel on public roads appear under the “Personal” link, not
under the “Golf” link. Consistent with the manufacturer’s categorization
of these “personal” vehicles, the website never refers to them as “golf
carts,” but instead refers to them only by their model names (“Freedom
RXV,” “Express S6,” and “2Five”) or as a “low speed vehicle.” Nothing in
the website print-outs indicates that the manufacturer uses the term
“golf cart” to refer to vehicles it designs for use on public roads.
Nor does the Wall Street Journal article establish that the term
“golf cart” includes vehicles designed for travel on public roads.
Although the article’s headline refers to the “Invasion of the Golf Carts,”
the article itself never refers to vehicles designed for travel on public
roads as “golf carts.” It refers to “golf-cart-like vehicles,” “souped-up golf
carts,” “electric cars,” “errand cars,” “city cars,” “low speed vehicles,” and
“neighborhood electric vehicles.” As previously mentioned, the
Transportation Code defines a “neighborhood electric vehicle”
separately from a “golf cart.” Compare TEX. TRANSP. CODE § 551.301
with id. §551.401. The only discussion of “golf carts” in the article notes
that people often operate golf carts “on low-speed roads within
communities that are built around golf courses” and occasionally—and
“sometimes illegal[ly]”—on “short errands” on public roads. The article’s
22
distinction between the vehicles it discusses and “golf carts” is consistent
with the common, ordinary meaning provided in dictionaries and the
Texas statute.
Applying the eight-corners rule, we conclude the Insurance Fund
had no duty to defend the School District because Flores’s petition did
not allege a claim that could fall within the policy’s coverage for
liabilities resulting from the use of a vehicle designed for travel on public
roads. Although we disagree with the court of appeals’ reasoning, it
correctly reversed the summary judgment in favor of the School District
on the Insurance Fund’s duty to defend.
IV.
The Duty to Indemnify
Unlike the duty to defend, which depends on pleaded allegations,
“the facts actually established in the underlying suit control the duty to
indemnify.” GuideOne, 197 S.W.3d at 310). So to determine whether the
Insurance Fund had a duty to indemnify the School District against
Flores’s claims, we must consider not whether the term “golf cart” could
potentially include a vehicle designed for travel on public roads, but
whether the vehicle from which Alexis was actually thrown was
designed for travel on public roads.
The trial court held it was, granting summary judgment requiring
the Insurance Fund to indemnify the School District. The court of
appeals reversed, but mostly on a procedural technicality. Specifically,
the court of appeals determined that, on the duty to indemnify, the
School District had filed only a no-evidence summary-judgment motion,
thus placing the burden on the Insurance Fund to submit evidence
proving that the vehicle from which Alexis was thrown was not a
23
“covered auto.” Because the insured bears the initial burden of proving
coverage under an insurance policy, see Gilbert, 327 S.W.3d at 124, the
court concluded that the School District could not rely on a no-evidence
motion to obtain summary judgment on that issue. 628 S.W.3d at 493–
94.
The School District argues that the court of appeals erred in this
holding because the coverage dispute in this case ultimately involves an
exclusion to the policy’s coverage, and the insurer—not the insured—
bears the burden of proving that an exclusion applies. See JAW The
Pointe, L.L.C. v. Lexington Ins. Co., 460 S.W.3d 597, 603 (Tex. 2015) (“To
avoid liability, the insurer then has the burden to plead and prove that
the loss falls within an exclusion to the policy’s coverage.”). The School
District notes that the policy defines “auto” to mean a vehicle “designed
for travel on public roads but does not include mobile equipment,” and
then defines “mobile equipment” to mean certain types of “land
vehicles,” including “[b]ulldozers, farm machinery, forklifts and other
vehicles designed for use principally off public roads.” [Emphases
added.] Characterizing the reference to “mobile equipment” as an
exclusion to the coverage the policy otherwise provides, the School
District argues that, to avoid summary judgment, the Insurance Fund
bore the burden to prove that the vehicle from which Alexis was thrown
was “mobile equipment” “designed for use principally off public roads.”
The court of appeals disagreed, holding that the policy’s reference
to “mobile equipment” constitutes part of the definition of the term
“auto” and thus part of the description of the policy’s coverage, rather
than an exclusion to that coverage. 628 S.W.3d at 493. We need not
24
resolve that issue here, however, because we conclude that the
summary-judgment evidence conclusively established that the vehicle
from which Alexis was thrown was not “designed for travel on public
roads.” As explained, the policy defines “auto” to mean a vehicle
“designed for travel on public roads but does not include mobile
equipment.” Under this definition, a vehicle may be “designed for travel
on public roads” and yet not be an “auto” because it is also “designed for
use principally off public roads” (or it constitutes “mobile equipment” for
some other reason). But if it is not “designed for travel on public roads,”
it is not an “auto” regardless of whether it constitutes “mobile
equipment.”
Here, the evidence conclusively established that the vehicle from
which Alexis was thrown was not “designed for travel on public roads.”
The undisputed evidence established that it was “an older model,
electric type [golf cart] commonly seen on golf courses,” was a “normal
golf cart you would see at a golf course,” and was “not street legal.” The
School District asserts that some evidence establishes that the vehicle
was “actually used and routinely driven on public roads, including on
the day of this accident,” apparently referring to the route DeLaGarza
took from the field house to the football field where the accident
happened. But even assuming that route included “public roads” and
that the vehicle was “actually used and routinely driven” on them, that
does not establish that the vehicle was “designed for travel on public
roads.” Nothing in the record indicates or even suggests that the vehicle
was anything other than a “golf cart”—that is, “a motor vehicle designed
by the manufacturer primarily for use on a golf course.” T EX. TRANSP.
25
CODE § 551.401. Because the School District failed to establish that the
vehicle from which Alexis was thrown was “designed for travel on a
public road,” and thus an “auto,” we conclude, albeit for different
reasons, that the court of appeals correctly reversed the summary
judgment in favor of the School District on the Insurance Fund’s duty to
indemnify.
V.
Conclusion and Disposition
On the duty to defend, we hold the trial court erred by granting
summary judgment for the School District because the allegation in
Flores’s pleading that Alexis was injured when she was thrown from a
“golf cart” did not assert a claim for damages “resulting from the
ownership, maintenance or use of a covered auto.” And on the duty to
indemnify, we hold that the trial court erred by granting summary
judgment for the School District because the summary-judgment
evidence did not conclusively establish that the vehicle from which
Alexis was thrown was a “covered auto.” We thus affirm the court of
appeals’ judgment reversing the trial court’s judgment, but for different
reasons.
Under our reasoning, the Insurance Fund would be entitled to a
summary judgment on both the duty to defend and the duty to
indemnify. The Insurance Fund filed motions for summary judgment on
both duties in the trial court and appealed the trial court’s denial of
those motions, but the court of appeals affirmed. 628 S.W.3d at 495. The
Insurance Fund requests in its brief that this Court reverse the court of
appeals’ judgment and render judgment in favor of the Insurance Fund,
but we cannot grant that relief because the Insurance Fund did not file
26
a petition for review in this Court. See TEX. R. APP. P. 53.1 (“A party who
seeks to alter the court of appeals’ judgment must file a petition for
review.”) We must therefore remand the case to the trial court in
accordance with the court of appeals’ judgment, which we hereby affirm.
Jeffrey S. Boyd
Justice
OPINION DELIVERED: February 11, 2022
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