Home State County Mutual Insurance v. Acceptance Insurance Co.

958 S.W.2d 263, 1997 Tex. App. LEXIS 5937, 1997 WL 706531
CourtCourt of Appeals of Texas
DecidedNovember 13, 1997
DocketNo. 07-97-0084-CV
StatusPublished
Cited by6 cases

This text of 958 S.W.2d 263 (Home State County Mutual Insurance v. Acceptance Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Home State County Mutual Insurance v. Acceptance Insurance Co., 958 S.W.2d 263, 1997 Tex. App. LEXIS 5937, 1997 WL 706531 (Tex. Ct. App. 1997).

Opinion

REAVIS, Justice.

By six points of error, appellant Home State County Mutual Insurance Company (Home State) appeals from a summary judgment rendered upon the motion of Acceptance Insurance Company (Acceptance) in an action for declaratory judgment presenting coverage questions under two insurance policies issued to J.P. Esquivel Trucking, Inc. (Esquivel), the insured. The coverage questions arose when Aubrey Prichard collided with road base material delivered to a construction site by Esquivel. Based on the rationale expressed, we reverse and render.

Esquivel was engaged to deliver rock and sand, called “base,” for a road construction project in Hall County. Home State issued a commercial auto liability policy and Acceptance issued a commercial general liability policy to Esquivel. Both policies were in effect at the time of the underlying accident. Jordan Paving Company, another subcontractor, had the responsibility to level and spread the base after it was delivered to the job site by Esquivel.

Early in the morning of July 28, 1994, a driver for Esquivel dumped a truckload of base at the job site. After that load was delivered, the Esquivel driver left the site to pick up another load of base. Before the Esquivel truck returned, Aubrey Prichard, an employee of Jordan Paving, collided with the load of base which had previously been unloaded at the site. At the time of the accident, no Esquivel trucks, equipment or employees or any other persons were at the scene of the accident.

Prichard sued Esquivel for injuries he sustained in the collision. Esquivel filed a third party action against Acceptance under the Declaratory Judgments Act, Tex. Civ. Prac. & Rem.Code Ann. §§ 37.001 et. seq., (Vernon 1997), seeking a declaration that the general liability policy issued by Acceptance afforded coverage. Acceptance also sought a declaratory judgment contending that the auto liability policy issued by Home State provided coverage. Both Home State and Esquivel contended that the general liability policy issued by Acceptance afforded coverage.

Prichard’s lawsuit was dismissed pursuant to a settlement agreement dated October 1, 1996, whereby Home State paid $15,000.00, and Acceptance paid $25,000.00, to Prichard. The settlement agreement also provided that both Home State and Acceptance would submit motions for summary judgment to determine the coverage question and that the company found to have coverage would reimburse the other for the amount contributed to the settlement. Home State’s motion for summary judgment stated that its commercial auto liability policy did not afford coverage because (1) Prichard’s injuries did not [265]*265result from the ownership, maintenance or use of a covered auto; (2) the policy excluded coverage for bodily injury or property damage resulting from the handling of property after it has been moved from the covered auto to the place where it is finally delivered by the insured; and (3) the policy excluded coverage for bodily injury or property damage arising out of the insured’s work after that work had been completed or abandoned.1

Acceptance also filed a motion for summary judgment on the ground that no genuine issues of material fact existed regarding coverage and that as a matter of law its general liability insurance policy afforded no coverage to Esquivel for Prichard’s injuries because the unloading of the base had not been completed.2 The trial court granted the summary judgment motion filed by Acceptance and ordered that Acceptance recover $25,000.00 from Home State and that Home State take nothing against Acceptance in accordance with the settlement agreement.

Standard of Review

For a party to prevail on a motion for summary judgment he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). When both parties move for summary judgment, each party “bears the burden of establishing that it is entitled to judgment as a matter of law.” Guynes v. Galveston County, 861 S.W.2d 861, 862 (Tex.1993). If the trial court grants one summary judgment and denies the other, the appellate court may render the judgment the trial court should have rendered. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988).

Home State Auto Liability Policy

The ultimate question for decision is whether the Home State policy or the Acceptance policy afforded coverage for Prichard’s injuries. By points of error one, three, and five, Home State contends the trial court erred in granting summary judgment for Acceptance and in rendering judgment that Acceptance recover $25,000.00 from Home State because as a matter of law the Home State policy did not extend coverage for Prichard’s injuries. We agree.

Home State argues that its policy provided coverage for accidents resulting from the “ownership, maintenance or use of a covered auto.” Because Prichard collided with a truckload of base, which had been completely unloaded, Home State asserts that the accident did not result from the ownership, maintenance or use of a covered auto.

The proper application to be given a “loading and unloading” clause contained in the “use” provision of a standard automobile liability policy was first decided in Tex[266]*266as in American Employers’ Ins. Co. v. Brock, 215 S.W.2d 370 (Tex.Civ.App.—Dallas 1948, writ ref d n.r.e.). Relying on decisions from other jurisdictions, the court alluded to the two rules applied in construing the clause which are the “coming to rest” rule and the “complete operation” rule. A more detailed explanation of these two rules was later discussed in Travelers Insurance Co. v. Employers Casualty Co., 380 S.W.2d 610, 612 (Tex.1964). Under the “coming to rest” rule, which is the minority view, loading begins when the transported object has been brought into the immediate vicinity of and is being physically carried or lifted into the vehicle, and unloading ends when the cargo reaches a place of rest, and is no longer being carried or lifted off the vehicle. Id.

The majority view, which was adopted in Travelers, embraces the “complete operation” rule which holds that loading and unloading not only includes the immediate transport of goods to or from the vehicle, but the complete operation of transporting the cargo between the vehicle and the place to or from which the cargo is being delivered. Travelers, 380 S.W.2d at 612. The majority view equates unloading with delivery. When transportation is contemplated, one expects the goods to be picked up from their present location and moved to a new location. When delivery is contemplated, one expects the goods to be placed at a location desired by the recipient. Unloading is not complete until the goods reach the final destination contemplated when the transportation began. Thomas L. Healey, Automobile Insurance— Texas Supreme Court Adopts Complete-Operation Definition of Unloading, 43 Texas L.Rev. 102 (1964).

In Travelers, the Court determined at what stage ready-mix concrete was unloaded from a truck.

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Bluebook (online)
958 S.W.2d 263, 1997 Tex. App. LEXIS 5937, 1997 WL 706531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/home-state-county-mutual-insurance-v-acceptance-insurance-co-texapp-1997.