Opinion issued=20
August 31, 2006
In =
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-04-01168-CV
LOUIS =
GOUDEAU and=20
TASHA GOUDEAU, Appellants
V.
UNITED =
STATES=20
FIDELITY & GUARANTY COMPANY, =
Appellee
On =
Appeal from the=20
280th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2002-08501
&=
nbsp; =
O P I N I O N
&=
nbsp;This case involves coverage under an =
automobile=20
policy=E2=80=99s uninsured underinsured motorist =
(=E2=80=9CUM/UIM=E2=80=9D) clause. Appellants,=20
Louis Goudeau (=E2=80=9CLouis=E2=80=9D) and Tasha Goudeau =
(=E2=80=9CTasha=E2=80=9D), appeal from a summary=20
judgment rendered in favor of appellee, United States Fidelity =
&=20
Guaranty Company (USF&G=E2=80=93Defendant). ![3DFootnote](3D"")
We determine whether Tasha has =
specifically=20
challenged every possible ground for the rendition of the trial =
court=E2=80=99s=20
summary-judgment ruling =
against her.=20
We also determine whether the trial=20
court erred in its summary-judgment ruling against Louis because=20
(1) the UM/UIM endorsement =
in the=20
automobile policy was ambiguous and (2) Louis was =E2=80=9Coccupying=E2=80=9D a =
covered=20
vehicle. We affirm =
the summary judgment on Tasha=E2=80=99s =
claim for UM/UIM=20
coverage against=20
USF&G=E2=80=93Defendant, reverse the=20
judgment on Louis=E2=80=99s claim for UM/UIM coverage against =
USF&G=E2=80=93Defendant, and remand the cause.Factual=20
Background
<=
/SPAN>On=20
the date of the accident on which this suit is based, Louis was an =
employee of Advantage Motors, Inc. d/b/a Advantage =
BMW=E2=80=93Clearlake or=20
Advantage BMW (=E2=80=9CAdvantage=E2=80=9D) and was operating a =
vehicle owned by Advantage=20
(=E2=80=9Cthe covered vehicle=E2=80=9D). Advantage=20
had a worker=E2=80=99s compensation policy (=E2=80=9Cthe =
workers=E2=80=99 compensation policy=E2=80=9D)=20
and a business automobile policy (=E2=80=9Cthe automobile =
policy=E2=80=9D) with =E2=80=9CUnited=20
States Fidelity & Guaranty Company.=E2=80=9D The automobile policy listed as named =
insureds=20
=E2=80=9CMomentum Motorcars, LTD=E2=80=9D=20
and certain of its affiliated business entities, including=20
Advantage; and two individuals, Pete Delongchamps and Ricardo =
Weitz.=20
The automobile policy also =
contained=20
an endorsement for UM/UIM coverage, which described =
=E2=80=9Ccovered autos=E2=80=9D as=20
=E2=80=9Cany auto to which are attached dealer=E2=80=99s license =
plates issued to=20
[Advantage].=E2=80=9D The UM/UIM endorsement=20
stated, =E2=80=9CThis [UM/UIM] coverage shall=20
not apply directly to benefit any insurer or self-insurer under =
any=20
workers=E2=80=99 compensation, disability benefits or similar =
law.=E2=80=9D The UM/UIM=20
endorsement defined an insured as =E2=80=9C1.You and any =
designated person and any=20
family member of either; 2. Any other person occupying a covered =
auto; 3.=20
Any person or organization for damages that person or organization =
is=20
entitled to recover because of bodily injury sustained by a person =
described in 1. or 2. above.=E2=80=9D
&=
nbsp;On May 31, 2001, Louis, who was driving =
in the=20
covered vehicle, pulled onto the right shoulder of the freeway to =
offer=20
assistance to a motorist who had been driving a Pontiac Trans Am =
that=20
collided into the retaining wall. As=20
Louis began to walk between the covered vehicle, the Pontiac Trans =
Am, and=20
the retaining wall, Alex Rodriguez=E2=80=99s automobile collided =
with the=20
driver-side door of the covered vehicle, which caused =
Rodriguez=E2=80=99s=20
automobile to spin and to collide with the Pontiac Trans =
Am. Louis was=20
pinned between the covered vehicle, the Pontiac Trans =
Am, and the retaining wall.
&=
nbsp;Louis sued Rodriguez for negligence and=20
USF&G=E2=80=93Defendant for UM/UIM coverage under the =
automobile policy.=20
Tasha, who was married to Louis at the time of the accident, sued=20
USF&G=E2=80=93Defendant =
for loss of=20
consortium. Tasha was not involved in the accident and was not =
driving,=20
occupying, or otherwise using the covered vehicle at the time.=20
<=
/SPAN>On=20
June 25, 2003, USF&G, as intervenor =
(=E2=80=9CUSF&G=E2=80=93Intervenor=E2=80=9D), filed=20
its plea in intervention, alleging that it was =E2=80=9Cinterested =
in the subject=20
matter of this suit because it carried workers=E2=80=99 =
compensation insurance=20
with [Louis=E2=80=99s] employer, [Advantage].=E2=80=9D =
USF&G=E2=80=93Intervenor pleaded that=20
it was subrogated to the rights of Louis and Tasha to the extent =
of the=20
amount that it had and would pay out under the workers=E2=80=99 =
compensation=20
policy.
<=
/SPAN>On May 4, 2004, =
USF&G=E2=80=93Defendant moved for=20
166a(c) partial summary judgment on the grounds that (1) Louis was not an insured as a =
matter of=20
law because he was excluded under the workers=E2=80=99 =
compensation exclusion in=20
the UM/UIM endorsement, (2) Louis and Tasha were not insureds as a =
matter=20
of law because they were not occupying a covered automobile at the =
time of=20
the accident, (3) Tasha could not recover for loss of consortium =
as a=20
matter of law because the UM/UIM endorsement covered only damage =
for=20
bodily injury or property damage, and (4) Tasha could not recover =
as a=20
derivative of Louis=E2=80=99s claim because he was not an insured =
as a matter of=20
law. USF&G=E2=80=93Defendant attached the following =
summary-judgment evidence=20
as exhibits: (1) =E2=80=9CPlaintiffs=E2=80=99 Second Amended =
Petition,=E2=80=9D (2) the automobile=20
policy, (3) =E2=80=9CIntervenor=E2=80=99s First Amended Petition =
in Intervention,=E2=80=9D and (4)=20
the police report of the accident. Louis and Tasha objected to =
USF&G=E2=80=93Defendant=E2=80=99s=20
summary-judgment evidence, alleging that the evidence was improper =
because=20
it was unauthenticated. =
Louis and=20
Tasha also responded to USF&G=E2=80=93Defendant=E2=80=99s =
partial-summary-judgment=20
motion, alleging that USF&G=E2=80=93Defendant had not met its =
summary-judgment=20
burden, that there was a fact issue, and that the automobile =
policy=20
language was ambiguous. On =
May 25,=20
2004, the trial court, in writing, overruled Louis and =
Tasha=E2=80=99s objections=20
to USF&G=E2=80=93Defendant=E2=80=99s summary-judgment =
evidence; denied=20
USF&G=E2=80=93Defendant=E2=80=99s summary-judgment motion on =
the ground that Louis was=20
not an insured because he was excluded under the workers=E2=80=99 =
compensation=20
exclusion in the UM/UIM endorsement; and granted the =
summary-judgment=20
motion =E2=80=9Cbased on the premise that [Louis] was not =
=E2=80=98occupying=E2=80=99 a covered=20
vehicle and the premise that [Tasha] is excluded from =
coverage.=E2=80=9D=20
<=
/SPAN>On=20
August 6, 2004, Louis =
settled with=20
Rodriguez for the full policy liability limits of =
$20,000. On October 29, 2004, Louis and Tasha =
filed their=20
notice of appeal. On November 17, 2004, =
USF&G=E2=80=93Intervenor filed its=20
notice of appeal. On May 13, 2005, USF&G=E2=80=93Intervenor =
requested that=20
this Court dismiss its appeal, which this court did by order dated =
June=20
23, 2005.
Summary=20
Judgment
<=
/SPAN>In two points of error, Louis and Tasha =
argue that=20
the trial court erred by rendering summary judgment in favor of=20
USF&G=E2=80=93Defendant.
A. Standard=20
of Review and Burden of Proof
<=
/SPAN>The propriety of summary judgment is a =
question of=20
law, and we thus review the trial court=E2=80=99s ruling de novo. =
Provident=20
Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 =
(Tex.=20
2003). In reviewing a =
summary=20
judgment, evidence favorable to the non-movant is taken as true, =
and all=20
reasonable inferences are indulged in the non-movant=E2=80=99s =
favor. Johnson=20
County Sheriff=E2=80=99s Posse Inc. v. Endsley, 926 S.W.2d =
284, 285 (Tex.=20
1996).
&=
nbsp;Traditional =
summary judgment=20
under rule 166a(c) is proper only when a movant establishes that =
there is=20
no genuine issue of material fact and that he is entitled to =
judgment as a=20
matter of law. Randall=E2=80=99s Food Mkts., Inc. v. =
Johnson, 891 S.W.2d=20
640, 644 (Tex. 1995). A defendant is entitled to a traditional =
summary=20
judgment if the evidence disproves as a matter of law at least one =
element=20
of each of the plaintiff=E2=80=99s causes of action or if the =
evidence=20
conclusively establishes all elements of an affirmative defense.=20
Id. We indulge every =
reasonable=20
inference in favor of the non-movant, resolve any doubts in its =
favor, and=20
take as true all evidence favorable to it. Id.
<=
/SPAN>When=20
the movant does not meet its burden of proof, the burden does not =
shift to=20
the non-movant. M.D. Anderson Hosp. & Tumor Inst. v. =
Willrich,=20
28 S.W.3d 22, 23 (Tex. =
2000). The=20
burden shifts to the non-movant only after the movant has =
established it=20
is entitled to summary judgment as a matter of law. Casso v. =
Brand,=20
776 S.W.2d 551, 556 (Tex. 1989).
B. Tasha=E2=80=99s =
Cause of Action
<=
/SPAN>On=20
appeal, Tasha does not challenge the summary judgment for=20
USF&G=E2=80=93Defendant on her loss-of-consortium cause of =
action on the=20
grounds that (1) Tasha was not an insured because she was not =
occupying a=20
covered automobile at the time of the accident and (2) Tasha could =
not=20
recover for loss of consortium because the UM/UIM endorsement =
covered only=20
damage for bodily injury or property damage.
<=
/SPAN>
<=
/SPAN>When=20
more than one ground is asserted in a motion for summary judgment =
and the=20
trial court does not specify the ground or grounds upon which it =
was=20
rendered, the party aggrieved by the motion must challenge each =
ground=20
asserted in the motion, or the summary judgment will be upheld on =
the=20
unchallenged ground or grounds. Malooly Bros., Inc. v. =
Napier, 461=20
S.W.2d 119, 121 (Tex. 1970); Ellis=20
v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2002, no pet.) (holding that, when summary judgment rests =
on more=20
than one ground, appealing party must assign error to each ground, =
or=20
judgment will be affirmed on ground about which no complaint is=20
made). Unless an appellant has specifically =
challenged=20
every possible ground for the rendition of summary judgment, the =
appellate=20
court need not review the merits of the challenged ground and may =
affirm=20
on an unchallenged ground. See id.; Reese v. Beaumont =
Bank,=20
N.A., 790 S.W.2d 801, 804=E2=80=9305 (Tex. =
App.=E2=80=94Beaumont 1990, no writ). Here, the trial court stated,=20
=E2=80=9C[USF&G=E2=80=93Defendant=E2=80=99s] motion for =
summary judgment is GRANTED as to the=20
grounds based on the premise that [Louis] was not =
=E2=80=9Coccupying=E2=80=9D a covered=20
vehicle and the premise that [Tasha] is excluded from coverage. . =
. .=E2=80=9D=20
Accordingly, the trial court did not specify on which grounds it =
was=20
ruling that Tasha was excluded from coverage. See Dow =
Chem. Co.=20
v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (holding that if judgment does not =
specify ground=20
relied upon for granting summary judgment, judgment must be =
affirmed if=20
any of grounds in motion has merit). The summary-judgment motion =
alleged=20
three grounds against Tasha=E2=80=99s cause of action.
<=
/SPAN>Because=20
Tasha did not challenge the above-mentioned grounds on appeal, the =
judgment must be affirmed with regard to her cause of action. =
See=20
Ellis, 68 S.W.3d at=20
898; Lewis v. Adams, 979 S.W.2d 831, =
833 (Tex.=20
App.=E2=80=94Houston [14th Dist.] 1998, no pet.).
C. Louis=E2=80=99s =
Claim
<=
/SPAN>Louis=20
argues that the trial court erred in its summary-judgment=20
ruling because=20
USF&G=E2=80=93Defendant=E2=80=99s=20
summary-judgment evidence was improper, =
USF&G=E2=80=93Defendant failed to establish =
conclusively that Louis was not an insured because =
the UM/UIM=20
endorsement in the automobile policy was ambiguous, Louis was =E2=80=9Coccupying=E2=80=9D a =
covered vehicle, and=20
USF&G=E2=80=93Intervenor judicially admitted that Louis was an =
insured.
<=
/SPAN>1. Burdens=20
of Proof Applicable to Insurance Coverage =
Disputes
<=
/SPAN>In an insurance coverage dispute, the =
claimant has=20
the initial burden to establish that his claim comes within the =
scope of=20
coverage provided by the policy. Comsys Info. Tech. Servs., =
Inc. v.=20
Twin City Fire Ins. Co., 130 S.W.3d 181, 188 (Tex. =
App.=E2=80=94Houston [14th=20
Dist.] 2003, pet. =
denied);=20
Evergreen Nat=E2=80=99l Indem. Co. v. Tan It All, Inc., 111 =
S.W.3d 669, 675=20
(Tex. App.=E2=80=94Austin 2003, no pet.). In contrast, the insurer =
has the burden=20
to prove that a claim comes within a policy exclusion or =
limitation of=20
coverage. Tan It All, =
Inc.,=20
111 S.W.3d at 675;=20
see Act of May 27, 1991, 72nd Leg., R.S., ch. 242, =C2=A7 =
11.03, 1991 Tex.=20
Gen. Laws 939, 1046 (repealed and recodified 2003) (current =
version at=20
Tex. Ins. Code Ann. =
=C2=A7=20
554.002 (Vernon Supp. 2005)). Whether Louis was an insured under the =
UM/UIM=20
endorsement is a question of the existence of coverage, rather =
than of an=20
exclusion, limitation, or exception to coverage; accordingly, =
Louis had=20
the burden of proof.
See Comsys Info. Tech. =
Servs., 130=20
S.W.3d at 188; Tan It All, Inc., 111 S.W.3d at 675.
<=
/SPAN>2. Ambiguity =
of Automobile Policy Language
<=
/SPAN>Louis=20
argues that the automobile policy was ambiguous because=20
=E2=80=9C[USF&G=E2=80=93Defendant] interprets its Policy to =
mean that [Louis] is not a=20
covered insured=E2=80=94whereas [USF&G=E2=80=93Intervenor] =
construes the same Policy=20
provisions to mean he is a covered insured.=E2=80=9D
<=
/SPAN>We construe insurance policies in Texas =
according=20
to the rules governing contract construction. Am. Mfrs. Mut. =
Ins. Co.=20
v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003). If policy =
language has a=20
certain or definite legal meaning or interpretation, then it is =
not=20
ambiguous, and we construe it as a matter of law. Id. =
Whether a=20
contract is ambiguous is a question of law. Id. An =
ambiguity does=20
not arise merely because the parties offer conflicting =
interpretations of=20
the policy language. Id. Rather, an ambiguity exists only =
if the=20
contract is susceptible of two or more reasonable interpretations. =
Id.=20
If language in an insurance contract is ambiguous or =
inconsistent, and=20
susceptible to more than one reasonable interpretation, a court =
resolves=20
the uncertainty by adopting a construction that favors the =
insured.=20
Nat=E2=80=99l Union Fire Ins. Co. v. Hudson Energy Co., 811 =
S.W.2d 552, 555=20
(Tex. 1991). We thus construe an ambiguous insurance policy =
strictly=20
against the insurer and in favor of coverage. Barnett v. Aetna =
Life=20
Ins., 723 S.W.2d 663, 666 (Tex. 1987).
<=
/SPAN>The=20
UM/UIM endorsement expressly defined an insured as =E2=80=9C1.You =
and any=20
designated person and any family member of either; 2. Any other =
person=20
occupying a covered auto; 3. Any person or organization for =
damages that=20
person or organization is entitled to recover because of bodily =
injury=20
sustained by a person described in 1. or 2. above.=E2=80=9D It also defined =
=E2=80=9Coccupying=E2=80=9D as =E2=80=9Cin,=20
upon, getting in, on, out or off.=E2=80=9D Contract language that can be given a =
certain or=20
definite meaning is not ambiguous and should be interpreted as a =
matter of=20
law. See DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d =
96, 100=20
(Tex. 1999). The term =E2=80=9Coccupying=E2=80=9D can be given a =
certain or definite=20
meaning. See McKiddy v.=20
Trinity Lloyd=E2=80=99s Ins. Co., 155=20
S.W.3d 307, 309 (Tex. App.=E2=80=94Dallas 2004, pet. denied) =
(holding that contract term =
=E2=80=9Coccupying=E2=80=9D is not=20
ambiguous as matter of law because Texas courts have applied the =
meaning=20
of =E2=80=9Cgetting in, on, out or off=E2=80=9D to =
=E2=80=9Coccupying=E2=80=9D). We hold that the automobile policy is =
not=20
ambiguous merely because USF&G, in its different capacities =
below,=20
advanced allegedly conflicting contract interpretations of the =
term.=20
See Schaefer, 124 S.W.3d at 157. Accordingly, we need not resort to the rules of =
construction.=20
<=
/SPAN>3. USF&G=E2=
=80=93Defendant=E2=80=99s=20
Summary-Judgment Burden
<=
/SPAN>Louis=20
argues that =E2=80=9C[USF&G=E2=80=93Defendant] has also =
clearly failed to meet its=20
=E2=80=98particularly heavy burden=E2=80=99 [citation omitted] to =
=E2=80=98prove conclusively all=20
elements of (its) affirmative defense(s) as a matter of law. . . =
.=E2=80=9D=20
However, whether Louis was an insured under the UM/UIM endorsement =
is a=20
question of the existence of coverage, rather than of an =
exclusion,=20
limitation, or exception to coverage; accordingly, Louis had the =
initial=20
burden of proof to establish coverage under the terms of the =
automobile=20
policy. See Comsys Info. =
Tech.=20
Servs., Inc., 130 S.W.3d at 188.
We=20
construe Louis=E2=80=99s argument to be that =
USF&G=E2=80=93Defendant failed to=20
establish that no genuine issue of material fact existed =
concerning one or=20
more essential elements of Louis=E2=80=99s claim and that it was =
entitled to=20
summary judgment as a matter of law. See Tex. R. Civ. P. 166a(c). =
<=
/SPAN>The=20
automobile policy contained the standard Texas UM/UIM endorsement =
that=20
defined =E2=80=9Cinsured=E2=80=9D to include, in=20
addition to the named insured, designated beneficiaries, family =
members,=20
and =E2=80=9Cany other person occupying a covered auto.=E2=80=9D =
The parties do not=20
dispute that the vehicle that Louis was driving was a =
=E2=80=9Ccovered auto.=E2=80=9D=20
Furthermore, they do not =
contend that=20
Louis was a named insured, a family member, or a =
=E2=80=9Cdesignated person=E2=80=9D under=20
the automobile policy. Rather, Louis=E2=80=99s position has =
consistently been that=20
he qualifies as =E2=80=9C[a]ny other person occupying a covered =
auto.=E2=80=9D The policy=20
defined =E2=80=9Coccupying=E2=80=9D as =E2=80=9Cin, upon, getting =
in, on, out or off.=E2=80=9D
<=
/SPAN>USF&G=E2=80=93Defendant=20
argues that it was entitled to summary judgment because Louis, who =
was not=20
inside the covered vehicle and was walking on the shoulder of the =
freeway,=20
was not =E2=80=9Coccupying=E2=80=9D a covered vehicle when he was =
struck. When an injury has occurred outside of a =
covered=20
vehicle, Texas courts look at whether there is a causal connection =
between=20
the incident that caused the injury and the covered vehicle. =
See=20
McDonald v. S. County Mut. Ins. Co., 176 S.W.3d 464, 471=20
(Tex. App.=E2=80=94Houston =
[1st Dist.] 2004,=20
no pet.). In assessing the existence of a causal=20
relationship between the vehicle and the injury, Texas courts have =
considered such indicia as (1) the physical proximity between the =
injured=20
person and the vehicle; (2) the amount of time during which the =
injured=20
person was outside the vehicle; (3) the purpose for his being =
outside the=20
vehicle, i.e. whether it was related to the use of the =
covered=20
vehicle; and (4) whether an impact with the covered vehicle caused =
the=20
injuries. See Ferguson v. Aetna Cas. & Sur. Co., 369 =
S.W.2d=20
844, 845 (Tex. Civ. App.=E2=80=94Waco 1963, writ =
ref=E2=80=99d) (holding that trial court did not err =
by granting=20
defendant=E2=80=99s traditional summary-judgment motion because =
plaintiff was injured when she was =
walking toward=20
covered vehicle and grabbed handle of different car for =
support);=20
McDonald, 176 S.W.3d at 471 (holding that trial =
court did=20
not err by finding that plaintiffs were not occupying covered =
vehicle when=20
they walked approximately 50 feet away from covered vehicle, which =
was=20
parked on shoulder of freeway, to opposite side of feeder road and =
were=20
struck by another vehicle);=20
McKiddy, 155 S.W.3d =
at 309=E2=80=9310=20
(holding that trial court did not err by granting =
defendant=E2=80=99s no-evidence=20
motion for summary judgment on ground that plaintiff was not =
occupying=20
covered vehicle because evidence=20
showed that plaintiff had exited covered vehicle and was =
approximately 10=20
feet away from it when he was struck by another =
vehicle); Schulz=20
v. State Farm Mut. Auto. Ins. Co., 930 S.W.2d 872, =
875=E2=80=9376 (Tex.=20
App.=E2=80=94Houston [1st =
Dist.] 1996, no=20
pet.) (holding that trial court did not err by granting =
defendant=E2=80=99s=20
traditional summary-judgment motion on ground that plaintiff was =
not=20
occupying covered vehicle because=20
plaintiff was shot outside of covered vehicle); Ins. Co. of the State of Penn. v. =
Pearson,=20
No. 07-03-0340-CV, 2004 WL 2053285 at *1 (Tex. =
App.=E2=80=94Amarillo Sept. 7,=20
2004, no pet.) (mem. op.) (holding that trial court erred by =
denying=20
defendant=E2=80=99s traditional summary-judgment motion on ground =
that plaintiff=20
was not occupying covered vehicle because evidence showed that he =
was=20
struck by another vehicle while performing his employment =
duties=20
outside of covered vehicle); Fulton v. Tex. Farm Bureau Ins.=20
Co., 773 S.W.2d 391, =
393 (Tex.=20
App.=E2=80=94Dallas 1989, writ denied)=20
(holding that trial court did not err by granting =
defendant=E2=80=99s no-evidence=20
motion for summary judgment on ground that plaintiff was not =
occupying=20
covered vehicle because plaintiff was=20
struck by another =
car after he=20
had walked about freely through parking lot); cf. Tex. Farm =
Bureau Mut. Ins. Co. v. =
Sturrock,=20
146 S.W.3d 123, 134 (Tex. 2004) (examining meaning of =
=E2=80=9Cmotor vehicle=20
accident=E2=80=9D and recognizing nexus test, stating that =
=E2=80=9Cthe automobile must,=20
in some manner, be involved in the accident,=E2=80=9D and =
concluding that=20
plaintiff was =E2=80=9Coccupying=E2=80=9D covered vehicle for =
purposes of personal injury=20
protection coverage because =
to read=20
policy=E2=80=99s terms to exclude accidents in which covered =
vehicle itself=20
caused injury would render definition of =E2=80=9Ccovered =
person=E2=80=9D=20
meaningless).
<=
/SPAN>Here,=20
USF&G=E2=80=93Defendant introduced the police report as =
summary-judgment=20
evidence to show that Louis =
had=20
stopped on the right shoulder of the freeway to aid a motorist, =
who was=20
driving a Pontiac Trans Am. As he began to walk between the =
covered=20
vehicle,
the Pontiac Trans Am,
and the retaining wall, =
Rodriguez=E2=80=99s=20
automobile
collided with the driver-side =
door of the=20
covered vehicle, which caused Rodriguez=E2=80=99s automobile to =
spin and to=20
collide with the Pontiac Trans Am.=20
Louis was pinned between the covered vehicle, the Pontiac Trans=20
Am, and the retaining wall. =
Again, =
USF&G=E2=80=93Defendant, as the=20
movant, had the burden in its traditional motion for summary =
judgment to=20
establish conclusively that =
Louis was=20
not occupying the covered vehicle, i.e., that there was not =
=E2=80=9Ca=20
causal connection=E2=80=9D between Louis=E2=80=99s injuries and =
the covered=20
vehicle.
<=
/SPAN>When=20
viewed in the proper light, the evidence summarized above shows =
that an=20
impact with the covered vehicle was a cause of Louis=E2=80=99s =
injuries:=20
Rodriguez hit the covered vehicle=E2=80=99s door, and Louis =
was described=20
in the police report to have been =E2=80=9Ccaught between=E2=80=9D =
the covered vehicle,=20
the Pontiac Trans Am, and =
the=20
retaining wall; thus, the police report, when viewed in the =
required=20
light, indicated that the covered vehicle itself was =
involved in=20
the accident and was a cause of Louis=E2=80=99s injuries. =
<=
/SPAN>In=20
its brief on appeal, USF&G=E2=80=93Defendant contends that =
Louis was =E2=80=9Cnot even=20
touching the covered vehicle=E2=80=9D; however, there is no =
summary-judgment=20
evidence that conclusively supports this allegation. In fact, the=20
evidence, when viewed in the required light, suggests that Louis =
was=20
pinned by the covered vehicle because the police report describes =
Louis as=20
being =E2=80=9Ccaught between,=E2=80=9D i.e., touching, the =
covered vehicle, the=20
Pontiac Trans Am, and the =
retaining=20
wall. The evidence also =
suggests,=20
when viewed in the required light, that Louis had been outside the covered vehicle for =
only=20
a short amount of time =
because the=20
police report stated that Louis =E2=80=9Cbegan walking=E2=80=9D =
between the covered=20
vehicle, the other vehicle, and the retaining wall when he was=20
injured.
USF&G=E2=80=93Defendant does not =
direct this Court to=20
any summary-judgment evidence =E2=80=9Cexpressly=E2=80=9D or =
=E2=80=9Cconclusively=E2=80=9D showing the=20
physical proximity between Louis and the covered vehicle or the =
amount of=20
time during which Louis was outside the vehicle. The evidence also shows that =
Louis=E2=80=99s purpose for=20
being outside of the covered vehicle was =E2=80=9Cto check on a =
vehicle that had=20
just collided into [the] outside retaining wall.=E2=80=9D Although =
Louis=E2=80=99s purpose=20
for being outside the was not related to the use of the covered =
vehicle,=20
that evidence supports that Louis intended to return to the =
vehicle=20
immediately, rather than later. Cf. McDonald, 176 S.W.3d at =
466,=20
471 (stating that crossing road and proceeding away from vehicle =
to walk=20
to place where plaintiffs could seek assistance for repairing flat =
tire=20
evidenced intent to return to vehicle later rather than =
immediately,=20
even though plaintiffs had =
left=20
personal belongings, such as clothing, briefcase, and log book, in =
vehicle). Viewing the evidence in the light most =
favorable to=20
Louis, USF&G=E2=80=93Defendant did not establish conclusively =
that Louis was=20
not occupying a covered vehicle. Cf. McKiddy, 155 S.W.3d at =
309=E2=80=9310=20
(holding that trial court did not err by granting =
defendant=E2=80=99s no-evidence=20
motion for summary judgment on ground that plaintiff was not =
occupying=20
covered vehicle because plaintiff=20
produced no evidence showing how long he had been out of covered =
vehicle=20
before being struck or that his injuries were related to impact =
with=20
covered vehicle).
<=
/SPAN>Given our holding, we need not address =
Louis=E2=80=99s=20
argument that he produced summary-judgment evidence to raise a =
fact issue=20
on whether Louis was an insured under the UM/UIM endorsement =
because=20
USF&G=E2=80=93Intervenor admitted that Louis was an insured =
for purposes of=20
coverage under the automobile policy.=20
Neither do we need =
to reach=20
his challenge to the trial court=E2=80=99s overruling his =
objection to=20
USF&G=E2=80=93Defendant=E2=80=99s=20
summary-judgment evidence.
<=
/SPAN>Accordingly,=20
we hold that the trial =
court erred by=20
granting USF&G=E2=80=93Defendant=E2=80=99s motion for partial =
summary judgment against=20
Louis.
<=
/SPAN>We=20
sustain points of error one and two to the extent that they apply =
to=20
Louis, and overrule them as they apply to Tasha.
Conclusion
<=
/SPAN>We affirm the=20
summary judgment on Tasha=E2=80=99s claim for loss of consortium =
against=20
USF&G=E2=80=93Defendant, reverse the=20
judgment on Louis=E2=80=99s claim against=20
USF&G=E2=80=93Defendant, and remand the cause. &=
nbsp; &n=
bsp; &nb=
sp;
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
;
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Tim=20
Taft
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of =
Chief=20
Justice Radack and Justices Taft and Nuchia. |