Francis v. International Service Insurance Co.

546 S.W.2d 57, 20 Tex. Sup. Ct. J. 115, 1976 Tex. LEXIS 270
CourtTexas Supreme Court
DecidedDecember 22, 1976
DocketB-5884
StatusPublished
Cited by33 cases

This text of 546 S.W.2d 57 (Francis v. International Service Insurance Co.) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Francis v. International Service Insurance Co., 546 S.W.2d 57, 20 Tex. Sup. Ct. J. 115, 1976 Tex. LEXIS 270 (Tex. 1976).

Opinions

GREENHILL, Chief Justice.

This case concerns the Texas Uninsured Motorist Act,1 and the definition of “uninsured automobile” as it appears in an insurance policy issued pursuant to the Act.

The plaintiff, Ila Mae Francis, filed this action in the District Court of Lamar County against the respondent, International Service Insurance Company and another insurance company. The cause of action against the other company was severed, and so the respondent will be here referred to as the insurance company.

The plaintiff alleged that on September 13,1968, she was a passenger in an automobile that was struck at an intersection in the City of Grand Prairie by a fire truck owned by that City and operated by a city fireman. She sought recovery against the insurance company under the uninsured motorist provisions in an automobile liability insurance policy issued by the company to the driver of the car in which she was a passenger. In its answer, the insurance company alleged that at the time of the collision, the driver of the fire truck was acting in the course and scope of his employment as a fireman for the City of Grand Prairie Fire Department, and that at that time, the fire truck was en route to a fire at the city dump.

The insurance company filed a motion for summary judgment. The parties stipulated that the automobile insurance policy upon which suit was brought included a provision that “. . . the term ‘uninsured automobile’ shall not include: ... an automobile or trailer owned by the United States of America, Canada, a state, a political subdivision of any such government or an agency of any of the foregoing.”2 The parties also stipulated that neither the City [59]*59of Grand Prairie nor the fireman had in effect at the time of the collision a policy of liability insurance, or a bodily injury liability bond applicable to the fire truck. They further stipulated that for the purposes of the motion for summary judgment, no material issues of fact existed, and that only one legal question was in dispute, namely:

Whether the exclusion from the definition of an “uninsured automobile” in the aforementioned policy of “an automobile or trailer owned by the United States of America, Canada, a state, a political subdivision of any such government or any agency of the foregoing” is invalid.

The trial court held that the above provision was valid and entered judgment that the plaintiff take nothing. The plaintiff thereupon appealed to the court of civil appeals. Her sole point of error was that the trial court had erred in holding valid the policy provision which excluded certain governmentally owned automobiles from the definition of “uninsured automobile.” The court of civil appeals affirmed the trial court’s judgment. 533 S.W.2d 408. We affirm.

The sole question on this appeal is the validity of the above provision in the insurance policy, whereby “an automobile or trailer owned by the United States of America, Canada, a state, a political subdivision of any such government or an agency of any of the foregoing” is excluded from the definition of an “uninsured automobile.” It is undisputed that this exclusion is in a form approved by the Texas State Board of Insurance [the Board]. The insurance company relies on the Texas Uninsured Motorist Act [the Act], Tex.Ins.Code Ann. art. 5.06-1, to support its contention that the exclusion in question is valid. The relevant portion of the Act follows:

(2) For the purpose of this coverage, the term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency. The State Board of Insurance is hereby authorized to promulgate the forms of the uninsured motorist coverage. The Board may also, in such forms define “uninsured motor vehicle" to excluded certain motor vehicles whose operators are in fact uninsured. [emphasis added].

To support her argument that the exclusion at issue in this case is invalid, the plaintiff cites decisions from several other jurisdictions that have declared invalid exclusions of governmentally owned vehicles from the scope of the states’ uninsured motorist acts. See Vaught v. State Farm Fire & Casualty Co., 413 F.2d 539 (8th Cir. 1969); Higgins v. Nationwide Mutual Insurance Co., 291 Ala. 462, 282 So.2d 301 (1973); State Farm Mutual Automobile Insurance Co. v. Carlson, 130 Ga.App. 27, 202 S.E.2d 213 (1973); Franey v. State Farm Mutual Automobile Insurance Co., 5 Ill.App.3d 1040, 285 N.E.2d 151 (1972); and Powell v. Allstate Insurance Co., 233 So.2d 38 (Ct.App.La.1970). These opinions are not persuasive on the issue in this case. In none of the above cases did the state’s Uninsured Motorist Act contain language that expressly authorized the exclusion of vehicles whose operators were, in fact, uninsured. The Texas Act, on the other hand, does contain express language to that effect. See Article 5.06-1(2), supra. Moreover, in the only decision cited to us in which the exclusion of governmentally owned automobiles from the policy coverage was upheld, the uninsured motorist chapter was by statute expressly made not applicable to vehicles owned by government units. Jones v. Southern Farm Bureau Casualty Co., 251 S.C. 446, 163 S.E.2d 306 (1968). The Jones case is thus persuasive authority for the proposition that express statutory language excluding uninsured automobiles from the statute’s coverage shall be given effect. Although the language of the Texas Act does not expressly exempt governmentally owned vehicles, as did that of the South Carolina statute, we do not believe that difference to be significant.

[60]*60The Texas cases cited by the plaintiff in support of her position do not control the resolution of the question in this case. See American Liberty Insurance Co. v. Ranzau, 481 S.W.2d 793 (Tex.1972); Hamaker v. American States Insurance Co., 493 S.W.2d 893 (Tex.Civ.App.1973, writ ref’d n. r. e.); Northwestern Mutual Insurance Co. v. Lawson, 476 S.W.2d 931 (Tex.Civ.App., no writ); and Fidelity & Casualty Co. v. Gatlin, 470 S.W.2d 924 (Tex.Civ.App.1971, no writ).

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Bluebook (online)
546 S.W.2d 57, 20 Tex. Sup. Ct. J. 115, 1976 Tex. LEXIS 270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/francis-v-international-service-insurance-co-tex-1976.