Western Insurance Companies v. Andrus

694 S.W.2d 657, 1985 Tex. App. LEXIS 11997
CourtCourt of Appeals of Texas
DecidedAugust 14, 1985
DocketNo. 2-84-279-CV
StatusPublished
Cited by1 cases

This text of 694 S.W.2d 657 (Western Insurance Companies v. Andrus) 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
Western Insurance Companies v. Andrus, 694 S.W.2d 657, 1985 Tex. App. LEXIS 11997 (Tex. Ct. App. 1985).

Opinion

OPINION

HILL, Justice.

The Western Insurance Companies appeal from a judgment in favor of Vaughn Andrus in a suit brought by him seeking recovery under his homeowner’s policy for the theft of three three-wheeled motor bikes. Western contends that the trial court erred in not granting its motion for judgment non obstante veredicto since the motor bikes are excluded from coverage under the policy as motor vehicles. Western also complains of the trial court’s failure to submit its definition of motor vehicle to the jury.

We affirm.

In point of error number one, Western contends that the trial court erred when it failed to grant Western’s motion for judgment non obstante veredicto because the bikes are motor vehicles as a matter of law. We construe this as a contention that there is no evidence to support the jury’s finding that the motor bikes were not motor vehicles. See Southwestern Bell Tel. Co. v. Sims, 615 S.W.2d 858, 861 (Tex.Civ.App.— Houston [1st Dist.] 1981, no writ).

In determining a “no evidence” point, we are to consider only the evidence and inferences which tend to support the finding of the jury and disregard all evidence and inferences to the contrary. See International Armament Corp. v. King, 686 S.W.2d 595, 597 (Tex.1985); Stodghill v. Texas Employers Insurance Association, 582 S.W.2d 102, 103 (Tex.1979); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If there is any evidence of probative force to support the finding of the jury, the point must be overruled and the finding upheld. In re King’s Estate, 244 S.W.2d at 661-62.

A “no evidence” point of error must and may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) [659]*659the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; (4)the evidence establishes conclusively the opposite of a vital fact. Royal Indemnity Co. v. Little Joe’s Catfish Inn, Inc., 636 S.W.2d 530, 531 (Tex.App. — San Antonio 1982, no writ); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960).

If a “no evidence” point is sustained the finding under attack may be disregarded entirely and judgment rendered for the appellant unless the interests of justice require another trial. See National Life & Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.1969); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

The facts are not in dispute. Andrus was insured under Western Casualty and Surety Company’s policy number TH 42 65 60, issued on August 7, 1982. The policy states, in part:

COVERAGE B — UNSCHEDULED PERSONAL PROPERTY owned, worn or used by the Insured, including members of his family of the same household and, at the option of the Insured, property of others (except roomers or tenants) while on the premises of the described dwelling.
Window or wall air-conditioning units shall be considered personal property. EXCLUSIONS — Coverage B does not cover:
a. Animals and birds; aircraft; motor vehicles, except power mowers, golf buggies and farm equipment not designed for use principally on public roads; trailers and semi-trailers, except such vehicles (other than house trailers) designed for use principally off public roads and except boat trailers while on the premises of the described dwelling; ...

On April 9, 1983, two three-wheeled motor bikes were stolen from Andrus’s home, and on May 6, 1983, a third was stolen. The bikes, one Yamaha 125 and two Honda 70s, were designed and used as off-the-road recreational vehicles by Andrus’s three oldest sons, ages eight, nine and eleven. The motor bikes were self-propelled and did not operate on stationary rails or tracks. An-drus filed a claim under the policy, which was denied by Western on July 13, 1983. Andrus then filed this suit for recovery.

The plain language of an insurance policy will be given effect when the parties’ intent may be discerned from that language. Glover v. National Ins. Underwriters, 545 S.W.2d 755, 761 (Tex.1977). But when the language of an insurance contract is ambiguous, that is, is subject to two or more reasonable interpretations, then that construction which affords coverage will be the one adopted. Id.

The term “motor vehicle” is not defined in the policy. Terms used in an insurance contract are given their ordinary and generally accepted meaning unless the policy shows the words were meant in a technical or different sense. Security Mut. Cas. Co. v. Johnson, 584 S.W.2d 703, 704 (Tex.1979); Paramount Nat. Life Ins. Co. v. Raupe, 678 S.W.2d 752, 753 (Tex.App.— Fort Worth 1984, writ ref’d n.r.e.). No one has suggested here that the policy shows the words were meant in a technical or different sense.

There are two different common definitions of the term “motor vehicle” which have been recognized by the courts. One is the broad definition that a “motor vehicle” is a generic term for all classes of self-propelled vehicles not operating on stationary rails or tracks. Nicholson v. First Preferred Ins. Co., 618 S.W.2d 560, 563 (Tex.Civ.App. — Amarillo 1981, no writ). Accord White v. South Carolina Dept. of Parks, Etc., 271 S.C. 91, 245 S.E.2d 125, 127 (1978); Jernigan v. Hanover Fire Ins. Co. of New York, 235 N.C. 334, 69 S.E.2d 847, 848 (1952); Taulelle v. Allstate Insurance Company, 296 Minn. 247, 207 N.W.2d 736, 739 (1973). The other common definition of “motor vehicle” is a more narrow one which defines “motor vehicle” as a [660]*660self-propelled vehicle designed for, intended to be used for, or actually used to transport persons and property over roads or highways. International Ins. Co. in N. Y. v. Hensley Steel Co., Inc., 497 S.W.2d 64, 66 (Tex.Civ.App. — Waco 1973, no writ); Travelers Insurance Company v. Elkins,

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Bluebook (online)
694 S.W.2d 657, 1985 Tex. App. LEXIS 11997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/western-insurance-companies-v-andrus-texapp-1985.