in the Interest of F.C., C.C., T.C., Minor Children

• Court: Court of Appeals of Texas
• Decided: January 23, 2002
• Docket: 10-01-00088-CV
• Status: Published

Opinion

In the Interest of FC, CC and TC, Minor Children

IN THE

TENTH COURT OF APPEALS

No. 10-01-088-CV

IN THE INTEREST OF

F.C., C.C., AND T.C., MINOR CHILDREN

From the 82nd District Court

Falls County, Texas

Trial Court # 33,276

                                                                                                                                                                                                                          

O P I N I O N

                                                                                                                

      Mary Cummins’s parental rights were terminated by the trial court in October 2000. She raises four issues on appeal. She argues that: 1) the trial court failed to notify the Indian tribe of their right of intervention as required by the Indian Child Welfare Act; 2) the trial court failed to correctly apply the Indian Child Welfare Act standard for termination of parental rights of an Indian child; 3) the trial court erred in finding that Cummins engaged in conduct that endangered the physical or emotional well-being of the children; and 4) the trial court erred in finding that Cummins failed to comply with a court ordered “plan of service.”

Indian Child Welfare Act

      In her first point, Cummins argues that the trial court erred in terminating her parental rights without notifying the tribe of their right of intervention. In her second point, she asserts that the court applied the improper standard of review for termination of an Indian child under the Indian Child Welfare Act (“ICWA”).

      The provisions of the ICWA must be followed in any proceedings involving termination of the parental rights over Indian children. See Indian Child Welfare Act, 25 U.S.C.A. § 1912 (1983); Doty-Jabbaar v. Dallas County Child Protective Services, 19 S.W.3d 870, 874 (Tex. App.—Dallas 2000, pet. denied). The ICWA provides in any involuntary proceeding in State court, where the court knows or has reason to know that an Indian child is involved, the party seeking termination shall notify the parent, Indian custodian, and the Indian child’s tribe. 25 U.S.C.A. at § 1912. Under the ICWA, an Indian child is defined as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” Id. at § 1903 (4).

      Cummins argues that the trial court terminated her parental rights without first notifying the Indian tribe, and without applying the proper standard of review under the Act. However, Cummins presents no evidence to support her contention that the children qualify as “Indian children” under the ICWA. The sole evidence of Cummins’ alleged Indian heritage was a statement in Dr. Shinder’s report stating she was a “Caucasian/Native American (Cherokee descent) woman.”

      In order to ensure jurisdiction, this Court requested an affidavit containing the facts supporting Cummins’s position that the children are “Indian children” as defined by the ICWA. See Tex. Gov’t Code Ann. § 22.220(c) (Vernon 1988); Tex. R. App. P. 10.2(a); Mellon Service Co. v. Touche Ross & Co., 946 S.W.2d 862, 864 (Tex. App.—Houston [14th Dist.] 1997, no pet.). In her affidavit, Cummins stated: “I am not an enrolled member of any tribe. To the best of my knowledge, neither of my parents were members of a tribe. I have never taken the steps necessary to enroll my children in any tribe.” Because her children are neither a) members of an Indian tribe, or b) eligible for tribe membership and the biological child of a member of an Indian tribe, the ICWA does not apply. See 25 U.S.C.A. § 1903 (4). Accordingly, we find notice to an Indian tribe as specified in the ICWA is not required, and the court was not required to apply the standard of review for termination as set forth in the ICWA. Accordingly, points one and two are overruled.

Clear and Convincing Evidence

      In point three, Cummins argues that the trial court erred in finding that she engaged in conduct that endangered the physical or emotional well-being of the children. On appeal, an involuntary termination of parental rights must be strictly scrutinized because termination proceedings involve the fundamental constitutional rights surrounding the parent-child relationship. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.L.N., 958 S.W.2d 934, 936 (Tex. App.—Waco 1997, pet. denied). A termination of parental rights is an irrevocable act severing the parent-child relationship for all purposes, except for the right of inheritance. Id.; Tex. Fam. Code Ann. § 161.206(b) (Vernon 1996). Because a termination involves rights of "constitutional dimension," the grounds for termination must be proved by clear and convincing evidence at trial. See id. at § 161.001 (Vernon Supp. 2001); § 161.206(a); D.L.N., 958 S.W.2d at 936 (citing Richardson v. Green, 677 S.W.2d 497, 500 (Tex. 1984)). Termination of parental rights is a two prong test. The trial court must find by clear and convincing evidence that the parent 1) engaged in one of the predicate acts listed in the Family Code, and 2) that termination was in the children's best interest. See §§ 161.001(1) & 161.001(2); In re A.P., 42 S.W.3d 248, 257 (Tex. App.—Waco 2001, no pet.). Thus, the court may order termination if the court finds by clear and convincing evidence that the parent has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child and termination was in the child’s best interest. Id. at §§ 161.001(1)(E) & 161.001(2).

      Cummins argues that an abuse of discretion standard should apply to the court’s termination of her parental rights. We disagree. The trial court's findings of fact after a bench trial are reviewed for legal and factual sufficiency by the same standards applied in reviewing the evidence supporting a jury's answer. See Cason v. Taylor, 51 S.W.3d 397, 403 (Tex. App.—Waco 2001, no pet.); Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex. App.—Waco 1997, writ denied). No findings of fact or conclusions of law were filed in this case, but a reporter’s record was filed. When, as here, no findings of fact or conclusions of law are requested or filed, we imply all necessary findings in support of the trial court's judgment. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Casino Magic Corp. v. King, 43 S.W.3d 14, 19 (Tex. App.—Dallas 2001, pet. denied). When a reporter's record is included in the record on appeal, the implied findings may be challenged for legal and factual sufficiency. See Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989) (per curiam); King, 43 S.W.3d at 19. We review implied findings by the same standards we use in reviewing the sufficiency of the evidence to support a jury's answers or a trial court's fact findings. Id. Cummins fails to state in her brief whether she is challenging the legal or factual sufficiency of the evidence. Despite Cummins’s failure to articulate her specific sufficiency challenge, we will review the evidence for both legal and factual sufficiency in the interest of justice.Legal Sufficiency

      To determine whether the evidence is legally sufficient to support the court’s finding, we consider only the evidence supporting the verdict "in the light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in that party's favor." We will find the evidence legally insufficient if: (1) there is a complete absence of evidence for the finding, (2) there is evidence to support the finding, but rules of law or evidence bar the court from giving any weight to the evidence, (3) there is no more than a mere scintilla of evidence to support the finding, or (4) the evidence conclusively establishes the opposite of the finding. Merrell Dow Pharms, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)). "More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, 'rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). The "no evidence" standard is the same for findings made under the "clear and convincing standard" as for a preponderance standard. See Spangler v. Texas Dept. of Regulatory Services, 962 S.W.2d 253, 257 (Tex. App.—Waco 1998, no pet.).

Factual Sufficiency

      To determine whether the evidence is factually sufficient to support a jury finding made under the "clear and convincing" standard, we consider all the evidence in the record both for and against it, and we will find the evidence factually insufficient "if the trier of fact could not reasonably find the existence of the fact to be established by clear and convincing evidence." Id. This could occur if: "(1) the evidence is factually insufficient to support a finding by clear and convincing evidence; or (2) a finding is so contrary to the weight of contradicting evidence that no trier of fact could reasonably find the evidence to be clear and convincing." Id. This intermediate standard of review is necessary to preserve the constitutionally protected interests involved in a termination of parental rights. Id.

Evidence

      Cummins’s three children are F.C., T.C., and C.C. The evidence demonstrates the following:

      1) Cummins struck F.C. at the grocery store on one occasion;

      2) Cummins left T.C. in the Wal-Mart parking lot and drove off without her;

      3) C.C. had bruises and marks on his body and neck;

 

4) C.C. had a cigarette burn on his chest while Cummins placed him under the care of her aunt;

5) With all the children riding along as passengers, Cummins wrecked her car while she was intoxicated and speeding;

6) Cummins admitted that her alcohol problems may have contributed to her past mistakes with the children’s care;

7) F.C. and T.C. reported incidents of sexual abuse by their brother C.C.;

8) F.C. reported that Terry Washington, Cummins’s boyfriend, touched her inappropriately;

9) Child Protective Services (“CPS”) reported that the Cummins home where the children lived was filthy, smelled foul, and was infested with roaches and spiders; and

10) The CPS visits to the Cummins home indicated that the children appeared hungry, dirty, and there was no running water.

      Despite abandoning her service plan and stating that she wanted the children to live with her aunt, Cummins decided to fight the termination of her parental rights. She said she still loves her children and admitted making “mistakes” in the past. She testified that she was unaware of any sexual abuse of the children. She further testified that she no longer abuses alcohol and has obtained steady employment.

Endangerment

      The evidence strongly supports the court’s finding by clear and convincing evidence that Cummins caused the children to be endangered. Although “endanger means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family life, it is not necessary that the conduct be directed at the child or that the child actually suffers injury.” In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (quoting Dep't of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The term simply means “to expose to loss or injury; to jeopardize.” Id. For example, allowing children to live in unsanitary conditions, and neglecting their physical condition, can be endangerment. See id. at 270. Here, CPS reports demonstrated that Cummins allowed the children to live in unsanitary conditions and neglected their physical condition.

      Furthermore, the courts have found that a "course of conduct" by a parent that jeopardizes a child's physical or emotional well-being is evidence of endangerment as defined by Boyd. See Boyd, 727 S.W.2d at 533; D.L.N., 958 S.W.2d at 938. In the D.L.N. case, we could not point to one specific act that justified termination of parental rights. We did, however, find that the pattern established by the parent's bad temper, neglect of the child's physical and emotional well-being, inability to deal with the child's emotional needs, limited interaction with the child, and treatment of the child's siblings was legally sufficient to support an involuntary termination under section 161.001(1)(E). Id. at 938-39. Such a course of conduct applies in this case. Cummins’s pattern of substance abuse and neglect, coupled with the evidence of sexual and physical abuse of the children while under her care, shows a course of conduct that endangered the physical and emotional needs of the children.

      Viewing the evidence in a light that supports the trial court’s finding, we conclude that there was more than a scintilla of evidence that Cummins engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of each child. We find the evidence legally sufficient to support the court’s finding of endangerment.

      Viewing all the record evidence we cannot say that the court’s finding of endangerment was against the great weight and preponderance of the evidence. Accordingly, we find the evidence factually sufficient to support the court’s finding of endangerment. We now examine the best interest evidence for legal and factual sufficiency.

Best Interest

      The evidence in the present case must also support the court’s finding by clear and convincing evidence that termination was in the children's best interest. The Texas Supreme Court identified some of the factors which might justify such a finding. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); see also In re J.O.C., 47 S.W.3d 108, 114-15 (Tex. App.—Waco 2001, no pet.). The list is not exhaustive, nor must there be evidence of all of the factors. See J.O.C., 47 S.W.3d at 115. The factors pertinent to this case are: (1) the emotional and physical needs of the child now and in the future; (2) the emotional and physical danger to the child now and in the future; (3) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; (4) parental abilities; and (5) any excuse for the acts or omissions of the parent.

      The evidence is strong that termination was in the best interest of these children. The record shows that Cummins consistently failed to meet the physical and emotional needs of the children. CPS visits found the children hungry and dirty on more than one occasion, and the home was reported filthy and without running water. Cummins, while intoxicated, placed the children in physical danger and an automobile accident resulted. She also abandoned her youngest child in a store parking lot. Further, Cummins exposed the children to physical and sexual abuse while under her care. Accordingly, we find the record legally and factually sufficient to support involuntary termination of Cummins’ parental rights. Point three is overruled.

      Cummins argues in point four that the trial court erred in finding that she failed to comply with a court ordered “plan of service.” Having already found that the court’s termination was supported by sufficient evidence, we need not address this issue. Point four is overruled.

      

                                                                               REX D. DAVIS

                                                                               Chief Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed January 23, 2002

Do not publish

[CV06]

led to its enactment.”  Stracener, 777 S.W.2d at 382.  A policy provision frustrates the statute’s intended purpose by “limit[ing] the possibility that an injured insured can recover actual damages” or reducing protection “below the minimum [statutory] limits.”  Id. at 383; Kidd, 997 S.W.2d at 270, 276.

            Progressive’s policies state that it “will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle.”  A vehicle is underinsured where “its limit of liability” is insufficient to “pay the full amount the covered person is legally entitled to recover as damages” or “has been reduced by payment of claims to an amount which is not enough to pay the full amount the covered person is legally entitled to recover as damages.”  The policies also contain a “Two or More Auto Policies” provision:

If this policy and any other auto insurance policy issued to you by us apply to the same accident, the maximum limit of our liability under all the policies shall not exceed the highest applicable limit of liability under one policy.

Citing Fidelity & Casualty Co. v. Gatlin, American Liberty Insurance Co. v. Ranzau, Stracener, and Briggs, Kelley argues that this clause is an “other insurance” provision that “contravenes the purpose and intent of the UM Statute and is contrary to public policy.”[5]

            In Gatlin, Margaret Gatlin was killed when the vehicle in which she was riding, owned by Mrs. James W. Talley, was struck by an uninsured motorist.  See 470 S.W.2d 924, 925 (Tex. Civ. App.—Dallas 1971, no writ).  Talley carried insurance with Republic Insurance Company, and Margaret’s husband carried insurance with Fidelity & Casualty Company.  Id.  Fidelity argued that Gatlin could not recover under its policy “because of the ‘pro rata clause of the Republic policy’ and the ‘excess insurance’ clause” in Fidelity’s policy.  Id. at 926.  The Dallas Court disagreed and held:

(1) that our uninsured motorist statute sets a minimum amount of coverage but it does not place a limit upon the total amount of recovery so long as that amount does not exceed the amount of actual loss; (2) that where the loss exceeds the limits of one policy, the insured may proceed under other available policies; (3) and that where uninsured motorist coverage has been provided, we cannot permit an insurer to avoid its statutorily imposed liability by its insertion into the policy of a liability limiting clause which restricts the insured from receiving the benefit of that coverage.

Id. at 928.

            In Ranzau, Paula Ranzau suffered injuries when the vehicle in which she was riding, owned by Victor Raphael, was struck by an uninsured motorist.  See 481 S.W.2d 793, 794-95 (Tex. 1972).  Raphael carried insurance with USAA, and Paula’s father carried insurance with American Liberty.  Id at 795.  USAA paid the policy limits to Paula, but American Liberty refused payment based on an “other insurance” provision in its policy.  Id.  The Supreme Court held that a provision may not “‘limit the recovery of actual damages caused by an uninsured motorist:”

The statute does not expressly or by any reasonable inference limit the recovery of actual damages to the statutory limits of required coverage for one policy in circumstances where the conditions to liability are present with respect to two policies with different insurers and insureds. This is the effect, however, of “other insurance” clauses, whether in the form of “pro-rata,” “excess insurance,” “excess-escape” or like clauses; one or the other insurer escapes liability, or both reduce their liability.

Id. at 797.  The Court further held that “to permit one policy, or the other, to be reduced or rendered ineffective by a liability limiting clause would be to frustrate the insurance benefits which the statute sought to guarantee and which were purchased by the respective insureds.”  Id.

                In Briggs, Thomas and JoJean Briggs suffered injuries while riding in a vehicle belonging to their employer.  See 514 S.W.2d at 234.  The employer carried insurance with International Insurance Company and the Briggs carried insurance with American Motorists Insurance Company.  Id.  Both policies contained “other insurance” provisions.  Id.  The Briggs settled with International and won a judgment against American.  Id.  The Supreme Court held:

[W]henever coverage exists under the uninsured motorist endorsement, the person covered has a cause of action on the policy for his actual damages to the extent of the policy limits without regard to the existence of other insurance. If coverage exists under two or more policies, liability on the policies is joint and several to the extent of plaintiff’s actual damages, subject to the qualification that no insurer may be required to pay in excess of its policy limits.

Id. at 236. 

In Stracener, the Supreme Court considered two cases involving the stacking of underinsured benefits.  See 777 S.W.2d at 379-81.  In the first case, LaDonna Stracener was killed when the car in which she was riding was struck by a vehicle driven by Robert Lampe.  Id. at 380.  Stracener was covered by four insurance policies issued by different insurers.  Id.  All the insurers settled, except USAA.  Id.  The First Court held that the Straceners could not “combine or ‘stack’ the limits of underinsured motorist coverage under four separate insurance policies.”  Id. at 379.  In the second case, Scott Hestilow was injured when the car he was driving was struck by a vehicle driven by Alvino Casarez.  Id. at 380.  A settlement was reached with Casarez’s insurance carrier.  Id.  Scott’s parents each carried a policy with USAA.  Id.  The Fourth Court held that “coverage may be stacked,” but the “total coverage available to the beneficiary should be reduced by the limit of the tortfeasor’s liability coverage.”  Id. at 379.  Both Stracener and Hestilow involved clauses stating that the “limit of liability shall be reduced by the amount recovered or recoverable from, or on behalf of the owner or operator of an underinsured motor vehicle.”  Id. at 380.  The Supreme Court reversed Stracener and affirmed Hestilow, holding that “clauses in insurance policies which are not consistent with and do not further the purpose of article 5.06-1 [the uninsured/underinsured motorist statute] are invalid.”  Id. at 384.

            Progressive attempts to distinguish Stracener, Briggs, Ranzau, and Gatlin, arguing that they do not address “two policies from the same insurer issued to the same named insured with injuries based on one accident.”  Progressive points to language in Ranzau stating that the uninsured/underinsured statute does not limit the recovery for actual damages “where the conditions to liability are present with respect to two policies with different insurers and insureds” and that “other insurance” clauses allow “one or the other insurer” to escape or “reduce their liability.”  481 S.W.2d at 797 (emphasis added).

            We are not persuaded that this distinction affects our analysis.  In United Services Automobile Ass’n. v. Hestilow, one of the cases addressed in Stracener, the San Antonio Court addressed a similar issue, holding that the fact that the “insurance carrier is the same for the two separate policies” is irrelevant because:

This is no different than had one of the policies been issued by a different insurance carrier. By allowing USAA to offset against each of its policies the amount paid by the underinsured motorist’s carrier, USAA would be receiving a double setoff, or a windfall. The insurance company collected premiums on statutorily required insurance coverage. To permit it to deny recovery under one of its policies would mean it profited under the statute to the insured’s detriment. Such cannot possibly have been the intention of the Legislature.

754 S.W.2d 754, 758-59 (Tex. App.—San Antonio 1988), aff'd, 777 S.W.2d 378 (Tex. 1989) (internal citations omitted).  In Travelers Indemnity Co. v. Lucas, the Lucases suffered injuries when the ambulance in which they were riding was struck by an uninsured motorist.  See 678 S.W.2d 732, 733 (Tex. App.—Texarkana 1984, no writ).  The Lucases sought personal injury protection and uninsured motorist coverage under their two policies with Travelers.  Id.  Travelers paid the P.I.P. benefits under one policy, but refused to pay under the other policy.  Id. at 733-34.  The Texarkana Court held:

An insurance company may not reduce its U.M. liability to an amount less than the policy limit by crediting to itself an amount paid under another policy. The Lucases are entitled to recover the U.M. coverage limits to the extent it does not exceed their actual damages.

Id. at 735 (internal citations omitted).

            Neither are we convinced that it matters whether injuries arise out of “one accident.”  “Texas has traditionally permitted stacking of uninsured motorist coverage when different policies apply to the same accident.”  Hestilow, 754 S.W.2d at 757 (emphasis added).  Furthermore, the statute expressly defines an “underinsured motor vehicle” in the context of a single accident:

The term “underinsured motor vehicle” means an insured motor vehicle on which there is valid and collectible liability insurance coverage with limits of liability for the owner or operator which were originally lower than, or have been reduced by payment of claims arising from the same accident to, an amount less than the limit of liability stated in the underinsured coverage of the insured’s policy. 

Act of May 6, 1977, 65th Leg., R.S., ch. 182, 1977 Tex. Gen. Laws 370, repealed by Act of May 24, 2005, 79th Leg., R.S., ch. 727, § 18, 2005 Tex. Gen. Laws 1752, 2186-87 (current version at Tex. Ins. Code Ann. § 1952.103 (Vernon 2007)) (emphasis added).  In light of these authorities, we conclude that multiple policies may be stacked even though issued by the same insurer to the same insured for damages arising out of the same accident.  See Hestilow, 754 S.W.2d at 757-59; see also Lucas, 678 S.W.2d at 735.

            Progressive next argues that the “Two or More Auto Policies” provision does not: (1) “limit an insured’s ability to recover an amount in excess of the policy limits” required by the statute; (2) “restrict the [statute’s] effect;” (3) “render Progressive an excess insurer (as in “other insurance” clauses) wherein the benefits paid to the insured are dependent upon the benefits received by the insured from a separate insurer;” or (4) give rise to the “uncertainties” of “other insurance” clauses as identified in Stracener.[6]  See 777 S.W.2d 378 at 383 (“uncertainties” include the limits of underinsured motorist coverage, “the limits of the tortfeasor’s liability insurance, the extent of damages suffered by any other persons who may have been involved in the same accident and the amount of any settlements made with the liability insurance carrier”).  According to Progressive, this clause is an anti-stacking provision that allows an insured to recover “actual damages in an amount for which the insured contracted with full disclosure of all terms of the applicable policy.”  Thus, Progressive argues that the underinsured limits available to Kelley “in the event of a single accident were disclosed at the time Mr. Kelley purchased the policies.”

            However, the proper inquiry is whether a provision limits the insured’s ability to recover the extent of her actual damages incurred, not whether a provision limits an insured’s “actual damages in an amount for which the insured contracted.”  See Stracener, 777 S.W.2d at 383; see also Briggs, 514 S.W.2d at 236; Ranzau, 481 S.W.2d at 797.  Regardless of whether it qualifies as an “other insurance” clause, an anti-stacking clause, or some other type of clause, the “Two or More Auto Policies” provision may not be used to frustrate the intended purpose of the statute.  See Stracener, 777 S.W.2d at 384 (“clauses in insurance policies which are not consistent with and do not further the purpose of article 5.06-1 are invalid”).

            Although Texas law allows an insured to stack two or more policies to the extent of the insured’s actual damages, Progressive’s “Two or More Auto Policies” provision effectively prohibits the stacking of multiple policies.  See id. at 382-83; see also Briggs, 514 S.W.2d at 236.  In doing so, this clause improperly inhibits the injured insured’s ability to recover actual damages.  See Ranzau, 481 S.W.2d at 797.  This frustrates the very purpose of the statute.  See Stracener, 777 S.W.2d at 383-84; see also Jankowiak, 201 S.W.3d at 212 (finding “limiting provisions” invalid to the extent they “provide less than the statutory minimum amount of coverage” or “limit a covered person’s recovery of actual damages”).  Accordingly, we conclude that the “Two or More Auto Policies” clause is inconsistent with the uninsured/underinsured motorist statute and is invalid.  See Stracener, 777 S.W.2d at 384; see also Jankowiak, 201 S.W.3d at 212.  Kelley’s second issue is sustained.

Conclusion

            Because Kelley has established as a matter of law that Progressive issued two separate policies of insurance and that Progressive’s “Two or More Auto Policies” provision violates public policy, we reverse the trial court’s judgment and render judgment that Kelley is entitled to recover under the second policy to the extent of her
actual damages.  We remand this cause to the trial court for further proceedings consistent with this opinion.

FELIPE REYNA

Justice

Before Chief Justice Gray,      

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissents without a separate opinion)

Reversed and rendered in part,

Reversed and remanded in part

Opinion delivered and filed December 12, 2007

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[1]               Kelley alleges that she has suffered over $1,000,000 in damages.

[2]               The First Court accepted this contention for the sake of argument, but noted that the separate declaration sheets appeared to be a single document.  See Monroe v. Gov’t Employees Ins. Co., 845 S.W.2d 394, 398 n.6 (Tex. App.—Houston [1st Dist.] 1992, writ denied).   

[3]               Progressive attached an excerpt from its “Product & Underwriting Guide” to its response to Kelley’s motion for summary judgment.

[4]               The uninsured motorist statute was enacted in 1967 to provide uninsured protection and amended in 1977 to provide both uninsured and underinsured protection.  See Act of May 3, 1967, 60th Leg., R.S., ch. 202, § 1, 1967 Tex. Gen. Laws 448, amended by Act of May 6, 1977, 65th Leg., R.S., ch. 182, § 1, 1977 Tex Gen. Laws 370, repealed by Act of May 24, 2005, 79th Leg., R.S., ch. 727, § 18, 2005 Tex. Gen. Laws 1752, 2186-87 (current version at Tex. Ins. Code Ann. §§ 1952.101-1952.110 (Vernon 2007)).  These provisions were repealed effective April 1, 2007.  See Act of May 24, 2005, 79th Leg., R.S., ch. 727, § 18, 2005 Tex. Gen. Laws 1752, 2186-87.  Because this case was filed in 2005, we apply the law in effect at that time.

[5]               Kelley also relies on a Montana case.  See Hardy v. Progressive Specialty Ins. Co., 67 P.3d 892 (Mont. 2003).  Because Hardy addresses a Montana statute and Montana public policy, we do consider it.

[6]               Progressive points out that the “Two or More Auto Policies” provision is separate from the “other insurance” clause in the policy.  An “other insurance” clause is contained elsewhere in the policy:

If there is other applicable liability insurance, we will pay only our share of the loss.  Our share is the proportion that our limit of liability bears to the total of all applicable limits.

We accept that these two clauses are not one and the same.