Texas Farmers Insurance Co. v. Deville

988 S.W.2d 331, 1999 Tex. App. LEXIS 1213, 1999 WL 93189

• Court: Court of Appeals of Texas
• Decided: February 18, 1999
• Docket: 01-96-01399-CV
• Status: Published

Opinions

OPINION

DAVIE L. WILSON, Justice.

The issue in this appeal is the proper construction of the “actual physical contact” rule in an uninsured motorist insurance policy provision. Appellant Texas Farmers Insurance Company appeals a summary judgment rendered against it. We reverse and render a take-nothing judgment.

Facts

The parties stipulated to the following in the trial court: (1) On May 21, 1993, Roxana Deville and Christopher A. Schwerdtfeger, II, were passengers in a car driven and owned by decedent, Christopher A. Schwerdtfeger; (2) the decedent had a personal auto insurance policy through Farmers; (3) the decedent was driving behind a red truck when a water pump fell from the bed of the truck, bounced on the roadway, struck the decedent in the head, and continued out through the rear window of the decedent’s car; (4) only the water pump struck the decedent’s vehicle; (5) the decedent suffered severe head injuries and died as a result of the accident; (6) Deville and Christopher Schwerdtfeger, II, suffered injuries and damages of at least $20,000 each; (7) the negligence of the unidentified driver of the red truck proximately caused the injuries and damages sustained by the decedent, Deville, and Christopher Schwerdtfeger, II; (8) the driver and owner of the red truck was never identified; and (9) the Farmers’ insurance policy provides coverage for Deville and Christopher Schwerdtfeger, II’s damages if the red truck qualifies as an “uninsured motor vehicle” under the policy or by law.

Deville filed an uninsured motorist insurance claim with Farmers on the decedent’s policy. Farmers denied coverage based on the uninsured motorist provisions of the policy because there was no physical contact between the decedent’s car and the red truck. Deville, both individually and as next friend of Christopher Schwerdtfeger, II, sued Farmers for (1) violations of the Deceptive Trade Practices-Consumer Protection Act, Insurance Code article 21.21, and Texas Department of Insurance regulations, (2) breach of contract, (3) negligence, (4) gross negligence, and (5) bad faith. See Tex. Bus. & Com.Code Ann. §§ 17.41-.63 (Vernon 1987 & Supp.1999); Tex. Ins.Code Ann. art. 21.21 (Vernon 1981 & Supp.1999); 28 Tex. Admin. Code §§ 21.1-205 (1998).

Both parties moved for summary judgment. In its motion, Farmers contended it was entitled to judgment as a matter of law because the policy’s uninsured motorist provisions only covered accidents in which there is actual physical contact between the cars. In her motion, Deville contended (1) Farmers stipulated that it was unable to meet its contractually assigned burden of proof that the red car was not an uninsured motor vehicle and (2) contact with the water pump was sufficient to invoke coverage. The trial court granted Deville’s motion, denied Farmers’ motion, and rendered summary judgment in favor of Deville. Farmers brings two points of error.

Standard of Review

When both parties move for summary judgment, the trial court considers all of the evidence accompanying both motions. Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997). When the trial court grants one motion and denies the other, we can review the propriety of both orders. Holmes v. Morales, 924 S.W.2d 920, 922 (Tex.1996). In such a review, we will determine all questions presented and may reverse the trial court’s judgment and render such judgment as the trial court should have rendered. Agan, 940 S.W.2d at 81.

On appeal, we cannot consider any ground for reversal that was not expressly presented to the trial court by written motion, answer, or other response to the motion for summary judgment. Tex.R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 675-77 (Tex.1979). We will affirm the summary judgment if the motion for summary judgment includes any valid grounds for rendering summary judgment and the movant preserved those grounds for appellate review. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996).

Uninsured Motor Vehicle Coverage

In point of error one, Farmers complains the trial court erred in denying its motion for summary judgment and in granting Deville’s motion for summary judgment due to the actual-physical-contact rule. The relevant provision of the Farmers’ personal auto insurance policy are:

“Uninsured Motor Vehicle” means a land motor vehicle or trailer of any type,

1. To which no bodily injury liability bond or policy applies at the time of the accident, [or]¹

2. Which is a hit and run vehicle whose operator or owner cannot be identified and which hits:

a. you or any family member;

b. a vehicle which you or any family member are occupying; or

c. your covered auto.

3. To which a liability bond or policy applies at the time of the accident but the bonding or insuring company:

a. denies coverage; or

b. is or becomes insolvent.

4. Which is an underinsured motor vehicle. An underinsured motor vehicle is one to which a liability bond or policy applies but its limit of liability:

a. is less than the limit of liability for this coverage; or

b. has been reduced by payment of claims to an amount less than the limit of liability for this coverage.

(Emphasis original).

Deville contends the summary judgment was correct based on the first definition of “uninsured motor vehicle” because: (1) the policy provided that if the parties disagreed “as to whether or not a vehicle is actually uninsured, the burden of proof as to that issue shall be on [Farmers]” (accord Tex. INS.Code AnN. art. 5.06 — 1(7) (Vernon 1981));

(2) Farmers stipulated it could not prove the unknown vehicle was insured; (3) thus, there is coverage because without proof to the contrary by Farmers, the unknown vehicle must be presumed to be “actually uninsured.”

We believe definition one does not apply to cases involving unknown vehicles. Both the policy and the statute provide specific coverage requirements for unknown vehicles. That occurs only in the second definition, which defines an uninsured vehicle as “a hit and run vehicle whose operator or owner cannot be identified and which hits” the insured. (Emphasis added). This policy language is meant to comply with the following statutory requirement:

The portion of the policy form adopted under Article 5.06 of this code to provide coverage under this article shall require that in order for the insured to recover under the uninsured motorist coverages where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured.

Tex. INS.Code Ann. art. 5.06 — l(2)(d) (Vernon Supp.1999). Because the statute and the second policy definition both provide specific coverage requirements for unknown vehicles, we conclude that only the second definition applies to unknown vehicles. Thus, the summary judgment cannot be upheld based on the first definition.

Was There “Actual Physical Contact” with the Unknown Vehicle?

Farmers contends there was no actual physical contact between the decedent’s vehicle and the red truck. We reluctantly agree.

This Court has consistently held that both the language of the personal auto policy and the Insurance Code require actual physical contact before a party can recover under the uninsured motorist provision. See Tuan Van Le v. Farmers Tex. County Mut. Ins. Co., 936 S.W.2d 317, 321-22 (Tex.App.—Houston [1st Dist.] 1996, writ denied); Mayer v. State Farm Mut. Auto. Ins. Co., 870 S.W.2d 623, 625 (Tex.App.—Houston [1st Dist.] 1994, no writ). In 1972, we held an indirect contact can satisfy the physical-contact requirement of a uninsured motorist policy only if it meets the requirements set out in Latham v. Mountain States Mutual Casualty Co., 482 S.W.2d 655, 657 (Tex.Civ.App.—Houston [1st Dist.] 1972, writ ref'd n.r.e.). Tuan Van Le, 936 S.W.2d at 322; Mayer, 870 S.W.2d at 625. In Latham, a hit-and-run driver in car A hit car B, causing it to hit car C, which contained the insured. 482 S.W.2d at 656. We held such an indirect contact met the physical-contact requirement of the uninsured motorist policy. Id. at 657 (policy stated, “ ‘hit and automobile’ means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident.” (emphasis added)).²

Other courts of appeals have held the indirect-contact rule does not apply when the unidentified vehicle does not hit any car. See Republic Ins. Co. v. Stoker, 867 S.W.2d 74, 77-78 (Tex.App.—El Paso 1993), rev’d on other grounds, 903 S.W.2d 338 (Tex.1995); Guzman v. Allstate Ins. Co., 802 S.W.2d 877, 880 (Tex.App.—Eastland 1991, no writ); Goen v. Trinity Universal Ins. Co., 715 S.W.2d 124, 125-26 (Tex.App.—Texarkana 1986, no writ).

In Williams v. Allstate Insurance Co., the Beaumont Court of Appeals was faced with a similar fact pattern. 849 S.W.2d 859 (Tex. App.—Beaumont 1993, no writ). In Williams, several pieces of iron fell from the back of an unidentified truck. The plaintiffs car struck the ñon, and the plaintiff lost control of the car and was injured. Id. at 860. The Beaumont Court reluctantly affirmed the trial court’s take-nothing judgment:

[W]e can hypothetically create many scenarios where Article 5.06-l(2)(d), as presently applied, may result in unfairness to the conscientious insured who pays the price for protection against those who fail or refuse to pay such price. We are compelled however, to assume that our State Legislature recognized the potential unfairness which may result from the adoption or enactment of Article 5.06-l(2)(d), especially in those cases similar to that presently before us, where injury or damage resulted from the possible per se negligence of an uninsured motorist who failed to properly secure a load.

Id. at 861.

We sustain point of error one. Because of our disposition of this point, we do not reach Farmers’ second point of error, which attacks the trial court’s award of prejudgment interest.

Conclusion

We reverse the judgment of the trial court and render judgment that Deville take nothing.

Justice COHEN concurring, joined by Justice WILSON.

1 . This word is not in the policy, but all parties agree that the four definitions are alternative ways of defining an "uninsured motor vehicle.” Farmers’ reply brief inserts the word “or” here. Accord. Milton v. Preferred Risk Ins. Co., 511 S.W.2d 83, 85 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref'd n.r.e.).

2 . We decided Latham five years before the legislature amended the Insurance Code to require actual physical contact. Act of May 6, 1977, 65th Leg., R.S., ch. 182, § 1, art. 5.06 — l(2)(d), 1977 Tex. Gen. Laws 370, 371 (Tex. Ins.Code Ann. art. 5.06 — l(2)(d), since amended).