Sung Wan Jun v. Lloyds & Other Various Insurers

37 S.W.3d 59, 2000 Tex. App. LEXIS 7560, 2000 WL 1675683
CourtCourt of Appeals of Texas
DecidedNovember 9, 2000
Docket03-00-00110-CV
StatusPublished
Cited by17 cases

This text of 37 S.W.3d 59 (Sung Wan Jun v. Lloyds & Other Various Insurers) 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
Sung Wan Jun v. Lloyds & Other Various Insurers, 37 S.W.3d 59, 2000 Tex. App. LEXIS 7560, 2000 WL 1675683 (Tex. Ct. App. 2000).

Opinion

MACK KIDD, Justice.

Sung Wan Jun and Jung Soon Jun (collectively, “appellants”) obtained a $1.72 million judgment against Risto Miikkulainen (“Miikkulainen”) and sought to satisfy it in a direct action against, Lloyds. They appeal from a judgment of the district court denying their motion for summary judgment and granting Lloyds’ motion for summary judgment. Because we conclude that Miikkulainen is not an insured under the aviation liability policy issued by Lloyds, we will affirm the district court’s judgment.

BACKGROUND

The City of Austin (“City”) entered into a lease agreement (“Lease # 1”), allowing Austin Aero, Ltd. (“Aero”) to become a fixed base operator (“FBO”) at Robert Mueller Airport. Lease # 1 required that Aero carry a minimum amount of liability insurance for the protection of the City. Lloyds provided such insurance, through its agent Sedgwick, to PLM International and PLM Financial Services (collectively, “PLM”), to cover them and their subsidiaries. As a PLM subsidiary, Aero was covered under the policy. Lloyds presented a certificate of insurance (“certificate”) to the City, indicating that Lloyds was providing Aero’s aviation liability insurance, subject to the terms of policy number V4K690B.

As permitted by the terms of Lease # 1, Aero entered into a commercial contract (“Lease # 2”) whereby Bell Flight Training, Inc. (“Bell Flight”) could conduct aircraft rental and flight instruction at the airport, and use facilities within Aero’s FBO. Bell Flight was not a subsidiary of PLM or Aero, and thus was not a named insured or additional insured under the Lloyds policy. Aero and Bell Flight did not share employees or flight equipment. The only relationship between Aero and Bell Flight was the contractual one of lessee/sublessor and sublessee. Bell Flight *62 did not contract directly with either the City or Lloyds.-

On January 24, 1995, Miikkulainen rented a Cessna 152 Aerobat airplane from Bell Flight. Ji Hae Jun (“decedent”) was Miikkulainen’s passenger on the flight to Sugar Land Municipal Airport. In preparation for the return flight, Miikkulainen instructed decedent to exit the airplane and remove the chock from in front of the wheels. In doing so, decedent was struck by the airplane propeller and died as a result of her injuries. Shortly thereafter, as sole heirs of decedent’s estate, appellants filed suit against Miikkulainen. No other defendants were joined in that suit; After an actual, contested trial, appellants obtained a judgment in their favor for more than $1.72 million.

In March 1999, appellants filed suit against Lloyds in an attempt to collect on the judgment obtained against Miikkulainen. 1 In the district court, appellants contended that Lloyds was liable for payment of the judgment because Miikkulainen was an omnibus insured 2 under the policy issued to cover Aero.

In September, Lloyds filed its motion for summary judgment on the grounds that appellants lacked standing, or alternatively, were barred from bringing a direct action against Lloyds. Appellants then filed their own motion for summary judgment requesting that the court find, as a matter of law, that Lloyds breached its contractual duty to indemnify Miikkulainen and must indemnify him for the amount of the judgment entered in favor of appellants. In November, the district court entered an order granting Lloyds’ motion and an order denying appellants’ motion. Appellants seek a reversal of the judgment in favor of Lloyds and rendition of a judgment in their favor, or alternatively, a remand to the trial court for resolution of any material fact issues.

STANDARD OF REVIEW

When both parties move for summary judgment, each party must carry its own burden as the movant. City of Houston v. McDonald, 946 S.W.2d 419, 420 (Tex.App. — Houston [14th Dist.] 1997, writ denied). When both motions are before the court, the court may consider all the summary judgment proof in deciding whether to grant either motion. Id. The court can rely on one party’s proof to supply missing proof in the other party’s motion. Seaman v. Seaman, 686 S.W.2d 206, 210 (Tex.App. — Houston [1st Dist.] 1984, writ refd n.r.e.). The court may affirm the summary judgment, reverse and render a judgment for the other party, or reverse and remand if neither party has met its burden. Calhoun v. Killian, 888 S.W.2d 51, 54 (Tex.App. — Tyler 1994, writ denied). The function of summary judgment is not to deprive litigants of the right to trial by jury, but to eliminate “patently unmeritorious claims or untenable defenses.” Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972) (citation omitted). On appeal, all reasonable inferences will be indulged, and all doubts will be resolved in favor of the losing party. University of Tex. Health Sci. Ctr. v. Big Train Carpet, Inc., 739 S.W.2d 792, 792 (Tex.1987). The propriety of summary judgment is a question of law; therefore, we review the trial court’s decision de novo. Texas Dep’t of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex.App. — Austin 1999, no pet.). “When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories *63 advanced are meritorious.” Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

DISCUSSION

Appellants contend that the trial court erred when it determined that their judgment against Miikkulainen was not enforceable in a direct action against Lloyds, granted Lloyds’ motion for summary judgment, and denied their own. Under Texas law, a plaintiff generally may not bring a direct action against an insurer. Burton v. State Farm Mut. Auto. Ins. Co., 869 F.Supp. 480, 486 (SD.Tex.1994), aff'd, 66 F.3d 319 (5th Cir.1995). A limited exception allows a third party to sue an insurer if the liability of ah insured has been established by judgment or written agreement with the insurer. Id. Appellants’ judgment in the contested negligence trial is solely against Miikkulainen. They argue that they have standing to sue Lloyds to recover this judgment because Miikku-lainen is an omnibus insured under the policy issued by Lloyds for Aero.

Appellants concede that neither Bell Flight nor Miikkulainen were named insureds in the policy; nor were they additional insureds, as was the City. Appellants propose several theories to demonstrate how Miikkulainen became an omnibus insured under a policy to which he was a stranger. We will examine each in turn.

A.

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37 S.W.3d 59, 2000 Tex. App. LEXIS 7560, 2000 WL 1675683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sung-wan-jun-v-lloyds-other-various-insurers-texapp-2000.