Opinion
No. 05-04-00155-CV
Opinion Filed January 19, 2005.
On Appeal from the 14th District Court, Dallas County, Texas, Trial Court Cause No. 03-6673.
Affirmed.
Before Justices BRIDGES, RICHTER, and LANG.
MEMORANDUM OPINION
David Burling, appellant, appeals the trial court's granting of final summary judgment in favor of Employers Mutual Casualty Company, appellee, and denial of his motion for partial summary judgment.
Burling made a claim on his employer's commercial auto insurance policy. Employers Mutual denied Burling's claim because he was not listed as a designated person on the Uninsured/Underinsured Motorists Insurance (UM/UIM) policy.
On appeal, Burling argues that the UM/UIM policy is ambiguous because a corporation cannot be injured in an auto accident and, therefore, the policy is also an illusory contract. Employers Mutual responds that the Texas Supreme Court previously rejected Burling's argument that the policy is ambiguous and that the UM/UIM coverage is not illusory because coverage is provided under various circumstances.
We conclude that the trial court did not err by granting Employers Mutual's motion for final summary judgment and denying Burling's motion for partial summary judgment. The trial court's judgment is affirmed. See Tex.R.App.P. 43.2(a). Because the issues in this appeal are settled, we issue this memorandum opinion. See Tex.R.App.P. 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
Burling is an employee of Turnkey Construction Company, Inc. While working, Burling traveled to a Turnkey construction site and, immediately after exiting the corporate vehicle, he was run over by another vehicle in the parking lot. Burling suffered sever injuries and experienced multiple debridements, surgery, and skin grafting. He made a claim on Turnkey's UM/UIM policy. Employers Mutual denied Burling's claim because he was not listed as a designated person on the UM/UIM policy. Burling sued Employers Mutual, and both parties moved for summary judgment. The trial court granted Employers Mutual's motion for final summary judgment and denied Burling's motion for partial summary judgment.
II. UNINSURED/UNDERINSURED MOTORISTS POLICY IS NOT AMBIGUOUS
In his sole issue on appeal, Burling argues the UM/UIM policy is ambiguous as to who it covers because Turnkey is the only named insured and a corporation cannot be injured in an automobile accident. He also argues that because the UM/UIM policy is ambiguous, it is an illusory contract. Employers Mutual responds that the policy is not ambiguous as a matter of law and the policy is not illusory because it furnishes coverage under a variety of circumstances.
A. Standard of Review
When both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both parties and determine all questions presented. Id.
B. Applicable Law
The ambiguity of an insurance policy is a question of law that must be decided by examining the policy as a whole in light of the circumstances present when the policy was entered into. See Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex. 1997). An insurance policy is not ambiguous as a matter of law if it can be given a definite or certain legal meaning. See id. Conversely, if an insurance policy is subject to more than one reasonable interpretation, the policy is ambiguous and the interpretation that most favors coverage for the insured is adopted. See id. However, ambiguity does not arise simply because the parties advance conflicting interpretations of the insurance policy. See id. A corporation's failure to name a designated person renders the policy's language regarding a "designated person" and the person's "family" inapplicable, but it does not nullify the endorsements or create ambiguity. See id. at 458-59.
C. Application of the Law to the Facts
The declarations page of the commercial auto insurance policy issued by Employers Mutual to Turnkey provides that Turnkey is the "named insured." In the UM/UIM policy under the section heading "Who is an Insured" there is the following list of qualifying categories:
1. You and any designated person and any family member of either.
2. Any other person occupying a covered auto.
3. Any person or organization for damages that person or organization is entitled to recover because of bodily injury sustained by a person described in 1. or 2. above.
[emphasis in original]. The UM/UIM defines a "designated person" as "an individual named in the schedule. By such designation, that person has the same coverage as you." Turnkey did not name a "designated person" in the space provided in the UM/UIM endorsement. Burling's name does not appear anywhere in the policy endorsements.
The Texas Supreme Court held that language identical to the language in the UM/UIM policy at issue in this appeal was not ambiguous. See Grain Dealers, 943 S.W.2d at 455. In Grain Dealers, the daughter of the president and sole shareholder of the insured corporation was injured in an automobile accident while in a vehicle that was not covered by the policy. Id. The Texas Supreme Court in Grain Dealers determined that the child of the corporation's president could not be a family member of the corporation and she was not a designated person under the underinsured motorist coverage. Id.
Burling argues that this Court should consider the following opinions from other states because the facts of those cases are similar to the facts of this appeal: Hager v. American West Insurance Co., 732 F. Supp. 1072 (D. Mont. 1989); Holloway v. Nationwide Mutual Insurance Co., 376 So.2d 690 (Ala. 1979); Ceci v. National Indemnity Co., 622 A.2d 545 (Conn. 1993); Decker v. CNA Insurance Co., 585 N.E.2d 884 (Ohio Ct. App. 1990). However, the Texas Supreme Court stated in Grain Dealers," We reject [the] position that the policy provisions are ambiguous and susceptible to more than one reasonable interpretation merely because other jurisdictions have reached differing conclusions about similar policy provisions. Opinions from other states about insurance policy interpretation can be persuasive, but ambiguity is for this Court to decide." Grain Dealers, 943 S.W.2d at 459.
The facts of this appeal are somewhat distinct from Grain Dealers because Burling was an employee of Turnkey and he was acting within the scope of his employment when he was injured. However, we cannot distinguish the Texas Supreme Court's legal holding in Grain Dealers from this appeal because, as in Grain Dealers, Turnkey could have named Burling as a designated person in the UM/UIM policy, which would have created coverage for Burling. See id. at 458. Turnkey's failure to designate Burling rendered the policy language regarding a designated person inapplicable, but it does not create an ambiguity. See id. at 458-59.
We conclude that the UM/UIM policy is not ambiguous and the trial court did not err by granting Employers Mutual's motion for final summary judgment and denying Burling's motion for partial summary judgment. Based on our determination that the UM/UIM policy is not ambiguous, we need not address Burling's argument that because the UM/UIM policy is ambiguous it is an illusory contract. See Tex.R.App.P. 47.1.
Burling's sole issue on appeal is decided against him.
III. CONCLUSION
We conclude that the trial court did not err by granting Employers Mutual's motion for final summary judgment and denying Burling's motion for partial summary judgment. The trial court's judgment is affirmed. See Tex.R.App.P. 43.2(a).