Robbie Dean Anderson, Sr. v. Texas Farm Bureau Mutual Insurance Company

Opinion filed July 24, 2014
In The
Eleventh Court of Appeals
__________
No. 11-13-00004-CV
__________
ROBBIE DEAN ANDERSON, SR., Appellant
V.
TEXAS FARM BUREAU MUTUAL
INSURANCE COMPANY, Appellee
On Appeal from the 39th District Court
Throckmorton County, Texas
Trial Court Cause No. 3332-1
MEMORANDUM OPINION
Robbie Dean Anderson, Sr. appeals the trial court’s judgment that granted
Texas Farm Bureau Mutual Insurance Company’s motion for summary judgment.
The trial court ruled that Anderson take nothing on his uninsured motorist (UM)
claim against his own insurer, Texas Farm Bureau. Texas Farm Bureau moved for
summary judgment because the pickup that injured Anderson was not a scheduled
vehicle on Anderson’s policy and was owned by Anderson’s adult son, Dean, who
was staying in Anderson’s home at the time of the accident. Anderson claimed he
was covered under his UM coverage because a thief took the pickup, which
Anderson did not own, and, as the thief fled, the thief drove the pickup into
Anderson and injured Anderson. We affirm.
I. Summary Judgment Evidence
Anderson lived at 610 Texas Street in Throckmorton, Texas. On January 23,
2010, Cameron Morris and another man were in a vehicle and drove to Anderson’s
home. The man exited the vehicle and got into a pickup parked in front of
Anderson’s home. The man started to drive the pickup off Anderson’s property.
When Anderson tried to stop the man, the man drove the pickup into Anderson and
injured Anderson.
In his deposition, Dean testified that the man who drove the pickup was
named Mark and that Mark worked for Dean’s employer, Michael E. McGuffin.
Anderson testified that he had met Mark and that Mark was the person who drove
the pickup into him. Dean testified that he did not give Mark authorization to drive
the pickup.
Dean testified that he and McGuffin co-owned the pickup and that McGuffin
had insurance on the pickup, but no evidence was adduced that Mark had
authorization from McGuffin to drive the pickup. Anderson did not own the
pickup. The certificate of title to the pickup was not part of the summary judgment
evidence. In addition, the only insurance policy adduced as summary judgment
evidence was Anderson’s policy.
Dean further testified that he had possession of the pickup and that
McGuffin had not had possession or use of the pickup in the last six months.
Dean lived with Anderson at 610 Texas Street in Throckmorton, which is where he
kept the pickup. Dean said that, at the time of the accident, he lived at his father’s
home and that the pickup was kept there.
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Texas Farm Bureau moved for summary judgment and argued that Anderson
could not recover under his UM coverage because, at the time of the accident,
Dean possessed or owned the pickup, which was not a scheduled vehicle on
Anderson’s policy, and because Dean resided with Anderson and was a family
member under Anderson’s policy. Consequently, Texas Farm Bureau argued that,
under Part C Exclusion A.1 of the policy, Anderson was not covered for a UM
claim. The trial court agreed and granted summary judgment in favor of Texas
Farm Bureau. Anderson appealed.
II. Issue Presented
Anderson presents a single issue on appeal. Anderson contends that Texas
Farm Bureau’s UM exclusion regarding a family member’s vehicle does not apply
because the pickup was stolen and the thief used the pickup to injure Anderson.
Texas Farm Bureau counters that Anderson is precluded from any recovery under
the UM provision of his policy because the pickup, which Dean possessed or
owned, was not a scheduled vehicle on Anderson’s policy.
III. Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). The movant for traditional summary judgment
must show that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A defendant
who moves for traditional summary judgment must either negate at least one
essential element of the nonmovant’s cause of action or prove all essential
elements of an affirmative defense. See Randall’s Food Mkts., Inc. v. Johnson,
891 S.W.2d 640, 644 (Tex. 1995). When summary judgment is granted on
traditional grounds, we take the evidence adduced in favor of the nonmovant as
“true” and draw every reasonable inference and resolve all doubts in favor of the
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nonmovant. Id. at 644 (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex.
1987)).
The standard of review for summary judgment is well settled. Nixon v.
Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985); City of Houston v. Clear Creek
Basin Auth., 589 S.W.2d 671 (Tex. 1979). If the trial court’s order on summary
judgment does not specify the grounds on which it is based, the appellant must
negate all grounds on appeal. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471,
473 (Tex. 1995).
IV. Analysis
We construe insurance policies according to the same rules of construction
that apply to contracts. Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267
S.W.3d 20, 23 (Tex. 2008); Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819,
823 (Tex. 1997). In applying these rules, our primary concern is to ascertain the
parties’ intent as expressed in the policy’s language. See Kelley-Coppedge, Inc. v.
Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998). We give policy terms their
ordinary and commonly understood meaning unless the policy itself shows the
parties intended a different, technical meaning. Don’s Bldg. Supply, 267 S.W.3d at
23 (citing Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex. 1990)).
No one phrase, sentence, or section of the policy should be isolated from its setting
and considered apart from the other provisions. Id. In addition, we must give the
policy’s words their plain meaning, without inserting additional provisions into the
contract. Id. (citing Nat’l Union Fire Ins. Co. v. Crocker, 246 S.W.3d 603, 606
(Tex. 2008)).
If an insurance contract uses unambiguous language, we must enforce it as
written. Progressive Cnty. Mut. Ins. Co. v. Kelley, 284 S.W.3d 805, 806–08 (Tex.
2009); Don’s Bldg. Supply, 267 S.W.3d at 23. If we can give the policy provision
a definite or certain legal meaning or interpretation, then it is unambiguous and is
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construed as a matter of law. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154,
157 (Tex. 2003); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). But if a
contract is susceptible to more than one reasonable interpretation, or if its meaning
is uncertain or doubtful, then it is ambiguous, and we must resolve the ambiguity
in favor of coverage. Verhoev v. Progressive Cnty. Mut. Ins. Co., 300 S.W.3d 803,
816 (Tex. App.—Fort Worth 2009, no pet.) (citing Kelley, 284 S.W.3d at 806–08;
Don’s Bldg. Supply, 267 S.W.3d at 23).
A. UM/UIM Coverage
Uninsured and underinsured motorist coverage has two purposes. The main
purpose of UM/UIM motorist coverage is to protect the insured, his family
members, and guests from the “negligence of others,” meaning strangers to the
policyholder, and not to protect against the negligence of the insured’s own family
members. Verhoev, 300 S.W.3d at 814 (citing Charida v. Allstate Indem. Co., 259
S.W.3d 870, 875 (Tex. App.—Houston [1st Dist.] 2008, no pet.)). A second
rationale is that UM/UIM motorist coverage is not meant to protect others from the
insured; therefore, allowing an occupant to recover under both the liability and the
UM/UIM portion of the same policy on the family car would effectively convert
the UM/UIM coverage into a second layer of liability coverage. Id. at 814.
Texas Farm Bureau argues that there are three classes of vehicles that are set
out in Exclusion A.1 to the UM coverage provision of its policy: (1) unowned
vehicles; (2) owned vehicles that are insured under the policy because the insured
has paid a UM/UIM premium on those vehicles for UM/UIM coverage; and
(3) owned vehicles that are not scheduled vehicles under the policy and on which
the insured has not paid a UM/UIM premium. Texas Farm Bureau argues that the
pickup involved in the accident was in the third category.
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B. Policy Exclusion
The Texas Farm Bureau policy UM/UIM provision provides that it will pay
damages that a covered person is legally entitled to recover from the owner or
operator of an uninsured motor vehicle because of bodily injury sustained by a
covered person caused by an accident. But the UM/UIM provision also provides1
in Exclusion A.1:
A. We do not provide Uninsured/Underinsured Motorists Coverage
for any person:
1. For bodily injury sustained while occupying, or when
struck by, any motor vehicle or trailer of any type
owned by you or any family member which is not
insured for this coverage under this policy. (emphasis
added)
The key terms are you, family member, motor vehicle owned by you, and
uninsured motor vehicle.
C. Definitions of “You,” “Family Member,” and “Owner”
The Texas Farm Bureau policy “Definitions” section defines “you” as the
“named insured shown in the Declarations” and the “spouse if a resident of the
same household.” The Texas Farm Bureau policy “Definitions” section defines
“family member” as follows:
Family member means a person who is a resident of your household
and related to you by blood, marriage or adoption. This definition
includes a ward or foster child who is a resident of your household,
and also includes your spouse even when not a resident of your
household during a period of separation in contemplation of divorce.
Household is not defined in the policy. Black’s Law Dictionary defines
“household” as “[a] family living together” or “[a] group of people who dwell
1
We note that some of the terms of the policy appear in bold in the policy; however, for purposes
of this opinion, we have not bolded those terms.
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under the same roof.” BLACK’S LAW DICTIONARY 857 (10th ed. 2014). Resident is
not defined in the policy. Black’s Law Dictionary defines “resident” as “[s]ome-
one who lives in a particular place.” Id. at 1502. Under the plain meaning of the
policy, Dean is a family member of Anderson because he is related by blood and
lives or dwells in Anderson’s home.
Likewise, ownership is not explicitly defined in the policy. Black’s Law
Dictionary defines “own” as “to have legal title to” or the right to “have or possess
as property.” Id. at 1280. “Owner” is defined as someone who has the right “to
possess, use, and convey something.” Id. In the policy, there are some provisions
that reference vehicle ownership. The policy defines “covered auto” as including
“[a]ny vehicle shown in the Declarations” and various types of vehicles on the date
“you” become “the owner” if the vehicle is acquired during the policy period and
Texas Farm Bureau is notified within thirty days. The policy also provides that a
vehicle that replaces a vehicle shown on the Declarations is covered if Texas Farm
Bureau is notified within thirty days of the insured’s desire to cover the
replacement vehicle.
A summary judgment may be based on uncontroverted testimony of an
interested witness “if the evidence is clear, positive and direct, otherwise credible
and free from contradictions and inconsistencies, and could have been readily
controverted.” TEX. R. CIV. P. 166a(c); Dean v. Lowery, 952 S.W.2d 637, 640
(Tex. App.—Beaumont 1997, pet. denied). The question is not whether the
summary judgment proof raises fact issues with reference to elements of a claim or
defense but whether the summary judgment proof establishes or disproves the
elements of a claim or defense as a matter of law. Gibbs v. Gen. Motors Corp.,
450 S.W.2d 827, 828 (Tex. 1970). In this case, we must accept uncontroverted
summary judgment evidence on ownership of the pickup as true; Dean testified
that he and McGuffin were co-owners of the pickup. Therefore, under the policy,
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Dean is an owner of the pickup and a family member of Anderson, but McGuffin
also is an owner.
D. Uninsured Motor Vehicle
Having determined that Dean is a family member and at least a partial owner
of the pickup, we now look to see if the pickup is an uninsured motor vehicle. In
the policy, “[u]ninsured motor vehicle” is defined, in part, as “a land motor vehicle
or trailer of any type . . . [t]o which no liability bond or policy applies at the time
of the accident.” In addition, the policy explicitly excludes from the definition of
uninsured motor vehicle any vehicle that is “[o]wned by or furnished or available
for the regular use of you or any family member.” The uninsured motorist
provision of the policy has been found to be valid and enforceable. Scarborough v.
Emp’rs Cas. Co., 820 S.W.2d 32 (Tex. App.—Fort Worth 1991, writ denied).
Texas Farm Bureau had the burden of proof to show that the pickup was an
uninsured vehicle. TEX. INS. CODE ANN. § 1952.109 (West 2009); see also
Wiley v. State Farm Mut. Auto. Ins. Co., No. 03-98-00115-CV, 1999 WL 176046
(Tex. App.—Austin Apr. 1, 1999, no pet.) (not designated for publication).
Again, taking the uncontroverted summary judgment evidence as true, Dean
testified that he did not insure the pickup but that he had possession, use, and
partial ownership of the pickup. See Lowery, 952 S.W.2d at 640. Dean also said
that he lived at his father’s house and kept the pickup there. Anderson testified
that the pickup was not a scheduled vehicle on his policy; that policy was adduced
as evidence. Dean claimed that the pickup was covered by McGuffin. But no such
policy of insurance was submitted as evidence. We will assume, in taking all
inferences in favor of the nonmovant, that no policy of insurance covered the
pickup.
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E. Application of Exclusion
The next step is to determine how to apply the A.1 Exclusion. Under the
plain language of that provision, the pickup, even without a policy of insurance
covering it, is not an uninsured vehicle if Dean owned it or had it available for his
regular use. What remains to discern is whether the exclusion applies where
McGuffin also owned the pickup.
Texas Farm Bureau argues that Anderson cannot recover under his UM
coverage because Anderson was injured by a family member’s vehicle that
Anderson did not schedule on his own policy. Texas Farm Bureau cites several
cases in support of its position. Holyfield v. Members Mut. Ins. Co., 572 S.W.2d
672 (Tex. 1978) (owner precluded from PIP coverage from injury incurred while
riding owner’s unscheduled motorcycle); Armendariz v. Progressive Cnty. Mut.
Ins. Co., 112 S.W.3d 736, 739 (Tex. App.—Houston [14th District] 2003, no pet.)
(elderly parents lived with adult child; parents’ van dropped as a scheduled vehicle,
and later parent killed in accident involving van; no UM coverage because
unscheduled vehicle); Conlin v. State Farm Mut. Auto. Ins. Co., 828 S.W.2d 332,
334–37 (Tex. App.—Austin 1992, writ denied) (eighteen-year-old daughter buying
American Motors Concord from mother, but Concord not scheduled on mother’s
policy; no UM/UIM coverage when daughter killed riding as a passenger in
Concord, which was being permissibly driven by underinsured third party); Tex.
Farmers Ins. Co. v. McKinnon, 823 S.W.2d 345, 347 (Tex. App.—Beaumont
1991, writ denied) (owner injured in her Mercury Grand Marquis when struck by
underinsured driver; no UM/UIM coverage where Grand Marquis not scheduled
vehicle); Berry v. Tex. Farm Bureau Mut. Ins. Co., 782 S.W.2d 246, 246–47 (Tex.
App.—Waco 1989, writ denied) (owners injured by uninsured driver while they
were in their Monte Carlo, which was only listed as scheduled vehicle on one of
two insurance policies; no UM coverage on policy where vehicle unscheduled);
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Beaupre v. Standard Fire Ins. Co., 736 S.W.2d 237, 237–39 (Tex. App.—Corpus
Christi 1987, writ denied) (minor child injured while riding in mother’s Bronco
when Bronco struck by underinsured motorist, but UIM denied because Bronco not
scheduled vehicle); Equitable Gen. Ins. Co. v. Williams, 620 S.W.2d 608, 608–11
(Tex. App.—Dallas 1981, writ ref’d n.r.e.) (owner riding his motorcycle injured by
uninsured driver, but UM coverage denied because owner’s motorcycle was not
scheduled vehicle).
Two of the cases cited by Texas Farm Bureau, Conlin and Armendariz, are
family member cases where the unscheduled vehicle was possessed or owned by
the family member. Conlin, 828 S.W.2d at 334–37; Armendariz, 112 S.W.3d at
739. In Conlin, the vehicle in question was actually owned by the mother, but
possessed and driven by the teenage daughter, who was killed in an accident
involving the unscheduled vehicle being permissively driven by an underinsured
driver. Conlin, 828 S.W.2d at 334–37. In Armendariz, the van involved in the
accident that killed one of the elderly parents, who resided with their adult child,
had been a scheduled vehicle, but coverage was dropped when the van was offered
for sale; the accident occurred shortly thereafter. Armendariz, 112 S.W.3d at 739.
But Conlin and Armendariz, as well as all of the other cases cited by Texas Farm
Bureau, did not involve a thief taking a vehicle and did not involve the situation
where the unscheduled vehicle was owned by a stranger as well as a family
member of the insured.
Anderson relies on two cases to support his position that he can recover
under his UM coverage and argues that we have to follow a case-by-case public
policy analysis on the exclusion in his coverage, as was done in Briones and
Fontanez. Briones v. State Farm Mut. Auto. Ins. Co., 790 S.W.2d 70, 73–74 (Tex.
App.—San Antonio 1990, writ denied); Fontanez v. Tex. Farm Bureau Ins. Cos.,
840 S.W.2d 647, 649–50 (Tex. App.—Tyler 1992, no writ). Briones and Fontanez
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outline two situations where recovery under UM provisions was allowed. In
Briones, Briones, the insured, was asleep in a tractor-trailer that was owned by his
employer, but the trailer was not insured by the employer or Briones, and the truck
was being driven by another employee, who was not insured. Briones, 790 S.W.2d
at 73–74. Briones was injured when the tractor-trailer was involved in an accident.
Id. Briones sought coverage under his UM policy, but coverage was denied
because the tractor-trailer was furnished for his use, by his employer, to drive
hauling loads. Id. After the trial court agreed with Briones’s insurer, Briones
appealed. Id. The appellate court held that, although the tractor-trailer fell within
the exclusion, the unique facts of the case operated to frustrate the purpose of the
uninsured motorists coverage, which was to protect Briones from uninsured
owners and operators like his irresponsible employer and its driver. Id.
In Fontanez, the insured was killed when she was struck by the door of her
own car when a thief attempted to steal it. Fontanez, 840 S.W.2d at 647–50. The
insured’s estate sought to recover under her UM benefits, which the trial court
denied because the insured’s vehicle was covered under the policy and, therefore,
was not an uninsured vehicle. Id. Again, the court of appeals recognized that the
exclusion applied, but inquired, citing Briones, as to whether the exclusion
contravened the legislative intent of UM coverage. Id. The court of appeals in
Fontanez held that the insured’s estate was allowed to recover under her UM
benefits because, like Briones, she probably would not have recognized or
appreciated that the exclusion barred her recovery when she was injured by her
own vehicle after a thief stole it. Id.
We note that Fontanez relied on the reasoning in Briones and that several
courts have declined to follow the public policy analysis on exclusions for UM
coverage because such exclusions are valid and enforceable. Armendariz, 112
S.W.3d at 739; Conlin, 828 S.W.2d at 334–37; see, e.g., Holyfield, 572 S.W.2d at
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673; McKinnon, 823 S.W.2d at 347; Moore v. State Farm Mut. Auto. Ins. Co., 792
S.W.2d 818, 820–21 (Tex. App.—Houston [1st Dist.] 1990, no writ) (injured
family member not allowed to recover on parent’s policy because he owned
vehicle involved in accident, which was unscheduled on parent’s policy); Berry,
782 S.W.2d at 247; Beaupre, 736 S.W.2d at 239; see also Doughten v. State Farm
Mut. Auto Ins. Co., 31 F. App’x 839 (5th Cir. 2002) (insured not allowed to
recover for injuries sustained while riding in family member’s unscheduled
vehicle); Am. Econ. Ins. Co. v. Tomlinson, 12 F.3d 505, 509 (5th Cir. 1994)
(exclusion for owned by unscheduled car valid) (citing Conlin, 828 S.W.2d 332);
Layton v. Mid-Century Ins. Co. of Tex., 18 S.W.3d 308, 309 (Tex. App.—
Beaumont 2000, no pet.) (owned but unscheduled vehicle exclusion valid for
medical payments coverage); Frazer v. Wallis, 979 S.W.2d 782, 784 (Tex. App.—
Houston [14th Dist.] 1998, no pet.) (exclusion barred recovery under UIM
coverage for injury in owned but unscheduled vehicle); Reyes v. Tex. All Risk Gen.
Agency, Inc., 855 S.W.2d 191, 192 (Tex. App.—Corpus Christi 1993, no writ)
(injured child cannot recover under UIM for injury that occurred in family
member’s owned but unscheduled vehicle). But see Verhoev, 300 S.W.3d at 817
(UIM coverage for insured, who was injured while riding in her ex-husband’s
vehicle, was allowed).
Briones and Fontanez are distinguishable from the facts in Anderson’s case.
We recognize that Anderson’s situation is similar to Briones in that McGuffin and
Mark are like the uninsured employer and employee in Briones. But unlike
Anderson, Briones was a fleet truck driver and could not have been expected to list
every vehicle that his employer had in its fleet. Likewise, we note the similarity of
Anderson’s situation to Fontanez in which a thief stole a car and struck and killed
the insured in the process of the theft. But unlike Fontanez, Anderson was struck
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by a vehicle that was excluded from coverage and was not covered under his
policy, whereas the car in Fontanez was a covered vehicle of the deceased insured.
Although Anderson was injured by an employee of McGuffin, who drove
the pickup without Dean’s authorization, the pickup also was owned by Dean, a
family member, and was not a covered vehicle under Anderson’s policy. These
two facts, Dean’s ownership of the pickup and the pickup’s status as an
unscheduled vehicle under Anderson’s policy, distinguish Anderson’s case from
Briones and Fontanez. Anderson’s case is similar to Armendariz and Conlin where
UM/UIM coverage was denied because the vehicles were unscheduled and owned
by family members. Armendariz, 112 S.W.3d at 739; Conlin, 828 S.W.2d at 334–
37. In both of those cases, ownership of the vehicle and its failure to be listed on
the policy precluded coverage. Moreover, even if Dean had not owned the vehicle,
the uncontroverted evidence was that the vehicle was available for his regular use,
which also would have precluded coverage.
Because Anderson did not list the pickup on his policy and because Dean, a
family member, owned or had use of the pickup, Exclusion A.1 applies. As a
result, Anderson is precluded from recovery under the UM provision of his policy.
We overrule Anderson’s sole issue on appeal.
V. This Court’s Ruling
We affirm the judgment of the trial court.
July 24, 2014 MIKE WILLSON
Panel consists of: Wright, C.J., JUSTICE
Willson, J., and McCall.2
Bailey, J., not participating.
2
Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by
assignment.
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