Opinion
NO. 14-20-00562-CV
07-26-2022
Cortney HILL Individually and as Next Friend of D.M., Appellant v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Appellee
Ronald J. Restrepo, Michael D. Robbins, Jordan Howes, Houston, for Appellee. Deanne Hodge, Beverly Anne Barr, Houston, for Appellant.
Ronald J. Restrepo, Michael D. Robbins, Jordan Howes, Houston, for Appellee.
Deanne Hodge, Beverly Anne Barr, Houston, for Appellant.
Panel consists of Justices Jewell, Bourliot, and Poissant.
Margaret "Meg" Poissant, Justice
Appellant Cortney Hill ("Cortney"), individually and as next friend of her son D.M., filed suit against appellee Allstate Fire and Casualty Insurance Company ("Allstate") for its failure to pay claims under an automobile insurance policy. Allstate filed a traditional and no evidence motion for summary judgment, which the trial court granted. In a single issue on appeal, Cortney argues that the trial court erred in granting summary judgment because she raised a genuine issue of material fact regarding whether she and D.M. were covered individuals under the policy. We reverse and remand.
I. BACKGROUND
The Allstate Policy
In May 2016, Catherine Hill ("Catherine")—Cortney's mother—renewed her auto insurance policy with Allstate. Regarding uninsured/underinsured motorists coverage, the policy protects "covered person[s]" while occupying the covered auto:
A. We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person , or property damage , caused by an accident.
B. "Covered person " as used in this Part means:
1. You or any family member ;
2. Any other person occupying our covered auto ;
....
With regard to personal injury protection, the following provisions apply:
A. We will pay Personal Injury Protection benefits because of bodily injury:
1. resulting from a motor vehicle accident; and
2. sustained by a covered person .
Our payment will only be for losses or expenses incurred within three years from the date of the accident.
...
C. "Covered person " as used in this Part means:
...
2. Any other person while occupying your covered auto with your permission.
"Occupying" is defined in the policy as "in, upon, getting in, on, out, or off."
Background Facts
On October 15, 2016, Cortney borrowed her mother Catherine's car to run errands. After receiving Catherine's approval, Cortney drove out, taking D.M. and J.B.—her fifteen-year old "future stepdaughter"—with her. On the way home, the car ran out of gas on U.S. Highway 59. Cortney pulled the car over on the right shoulder, and then called her future mother-in-law—Evelyn Brown ("Evelyn")—for help.
Evelyn filled a gas can and parked behind Cortney on the shoulder. Evelyn stood between the two vehicles to hand the gas can to Cortney. Because the gas tank access was toward the back of the driver's side on the side of oncoming traffic, Cortney was afraid she would get hit by a car while she was filling the gas tank, and "pressed [her] body on the car so [she] would be as close as possible to avoid the passing cars." Cortney further claimed her "body was touching the car while [she] was holding the gas can." D.M. was standing between the front door of the passenger's side and the concrete barrier. He was holding the door handle to the door when Cortney spotted a rapidly-approaching vehicle driving on the shoulder towards them. Cortney yelled for everyone to move. The last thing she saw before being knocked unconscious was the approaching car run over her foot as it crashed into the back of Evelyn's car.
When Cortney woke up, she found D.M. standing in almost the same position as before the crash. He had laid on the ground when Cortney yelled "move, move, move," and received no injuries as a result of the crash. J.B. was lying on the roadway near where she had been standing before, and Evelyn was lying on top of her. They were all transported to the hospital, but Evelyn died in the ambulance.
The Lawsuit
On July 23, 2018, Cortney filed suit against Allstate for breach of contract and breach of duty of good faith and fair dealing, alleging that Allstate denied or delayed payment of the claims under Catherine's auto insurance policy related to the accident. The trial court severed and abated the bad faith and extra contractual claims, leaving only the breach of contract claim.
Allstate filed its first traditional and no evidence motion for summary judgment, arguing that Cortney and D.M. were not "covered persons" because they were not occupying the vehicle at the time of the accident. On May 5, 2020, the trial court held a hearing on the motion as to Cortney's claims only. On May 14, 2020, the trial court granted a final motion for summary judgment as to all parties, dismissing all causes of action with prejudice, without specifying the grounds for the ruling. Cortney filed a motion for new trial, which was overruled by operation of law. Cortney then filed a timely appeal.
In the motion for summary judgment on file at the time the trial granted the motion for summary judgment, Allstate argued that Cortney and D.M. were not "covered persons" under the policy because they were not family members and they were not "occupying" the vehicle. On May 14, 2020, after the issuance of the trial court's order granting the motion for summary judgment, Allstate filed a second motion for summary judgment. In this second motion for summary judgment, Allstate argued that D.M. was not a covered person under the policy because he did not sustain any physical injuries.
II. ANALYSIS
In a single issue, Cortney argues that the trial court erred by granting the motion for summary judgment.
A. STANDARD OF REVIEW
When a party moves for summary judgment on both traditional and no-evidence grounds, we address the no-evidence grounds first. See Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 2004) ; see also Carnegie Homes & Constr. LLC v. Turk , No. 14-16-00260-CV, 2017 WL 3927290, at *3 (Tex. App.—Houston [14th Dist.] Sept. 7, 2017, no pet.) (mem. op.). On appeal of an order of summary judgment that does not state the grounds on which it is granted, we will uphold the judgment on any valid ground in the motions that is properly supported by the record. See Golden v. McNeal , 78 S.W.3d 488, 491 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).
In a no-evidence motion for summary judgment, the movant represents that there is no evidence of one or more essential elements of the claims for which the nonmovant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i). The burden then shifts to the nonmovant to present evidence raising a genuine issue of material fact as to the elements specified in the motion. Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006). Thus, in reviewing a no-evidence summary judgment, we ascertain whether the nonmovant offered summary-judgment evidence raising a genuine fact issue as to the essential elements challenged in the no-evidence motion. Johnson v. Brewer & Pritchard, P.C. , 73 S.W.3d 193, 206–08 (Tex. 2002).
In our de novo review of a trial court's summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Tamez , 206 S.W.3d at 582. The evidence raises a genuine fact issue if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).
The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c) ; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009) ; see also Carnegie Homes & Constr. , 2017 WL 3927290, at *3. When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious. See FM Props. Operating Co. v. City of Austin , 22 S.W.3d 868, 872 (Tex. 2000) ; Schultz on Behalf of Schultz v. Lone Star Rd. Constr., Ltd. , 593 S.W.3d 750, 754–55 (Tex. App.—Houston [14th Dist.] 2019, pet. denied).
B. APPLICATION
The only question before us is whether Cortney and D.M. were "covered persons" under the policy with Allstate. Cortney admits that she and D.M. were not the actual policy holders and they were not considered "family members" under the policy. The parties’ dispute centers on whether Cortney and D.M. were "occupying" the covered vehicle within the Allstate policy definition of that term. Thus, in our review, we look to see if there is a genuine fact issue regarding whether Cortney and D.M. were "occupying" the vehicle during the accident.
Both parties cite to and rely heavily on United States Fid. & Guar. Co. v. Goudeau , 272 S.W.3d 603, 606 (Tex. 2008). In Goudeau , the plaintiff parked on the shoulder of the tollway, exited his vehicle, and began walking around the front towards the retaining wall to assist a stranded motorist. Another vehicle crashed into both of the stationary cars, pinning Goudeau against the retaining wall and crushing his pelvis. See id. at 605. The applicable auto insurance policy defined "occupying" exactly as it is defined in the present case: "in, upon, getting in, on, out or off." Id. at 606. Goudeau argued that he was "occupying" his vehicle because he was "upon it" when he was injured. Id. The Texas Supreme Court disagreed, concluding that, in construing insurance policies according to their plain language, using "the ordinary, everyday meaning of the words to the general public", Goudeau was not "upon" the vehicle at the time of the accident:
But a driver who has exited the car, closed the door, walked around the front, and then has the vehicle smashed into him cannot be said to be "occupying" the vehicle at the time of the collision, even if afterwards he ends up partly "upon" it. We cannot ignore the context by focusing solely on "upon" and ignoring "occupying." Construing "upon" to include the situation here would "ascrib[e] to one word a meaning so broad that it is inconsistent with its accompanying words."
Id. at 606 (internal citations omitted).
Applying Goudeau , Allstate asserts that Cortney's "incidental contact" with the vehicle does not equate to her being "on" or "upon" the vehicle. However, we find Goudeau to be distinguishable. Goudeau was not in contact with the vehicle at all until after the crash; accordingly, the Texas Supreme Court concluded that "the plain meaning of ‘occupying’ as defined in this policy cannot be stretched to include Goudeau." Id. at 608. Here, the facts are inapposite; Allstate does not deny that Cortney had her body pressed against—and was in direct, physical contact with—the vehicle at the time of the accident. To determine if this level of contact constitutes being "upon" the vehicle, we consider the everyday meaning of the words in the policy. See id.
The Merriam-Webster Dictionary defines "upon" as "on." See Upon , MERRIAM–WEBSTER, http//www.merriam-webster.com/dictionary/upon (last visited May 13, 2022). In its first three definitions, "on" is defined as "a function word to indicate position in contact with and supported by the top surface of," "a function word to indicate position in or in contact with an outer surface," or "as a function word to indicate position in close proximity with." See On , MERRIAM–WEBSTER, http//www.merriam-webster.com/dictionary/on (last visited May 13, 2022). Because one of the common and ordinary meanings of the word "upon" is that of "contact with," it is reasonable to conclude the parties contemplated a construction of the word that would include actual physical contact with the vehicle, as occurred here. Further, the policy does not limit or restrict the meaning of the word "upon" in defining occupying. Hart v. Traders & General Ins. , 487 S.W. 2d 415, 419 (Tex. App.—Fort Worth, 1972, writ ref'd n.r.e.). Using the ordinary and everyday meaning of the words in the policy, and viewing the evidence in the light most favorable to Cortney, the nonmovant, fair-minded jurors could differ in their conclusions regarding whether Cortney was "occupying" the vehicle at the time of the accident. See Tex. R. Civ. P. 166a(c) ; Mayes , 236 S.W.3d at 755 ; see also Maldonado v. Travelers Cas. Ins. Co. of Am. , No. 2:20-CV-00242-JRG, 2021 WL 977895, at *3 (E.D. Tex. Mar. 16, 2021) (concluding that individuals were "occupying" a vehicle when they were in a continuous course of action of getting on and getting off a covered vehicle to pick up debris off the road even though the individuals took evasive action and were not physically touching the vehicle at the time of the accident).
We conclude that Cortney raised a genuine issue of material fact regarding whether she was occupying the vehicle at the time of the accident. See Mayes , 236 S.W.3d at 755. Accordingly, the trial court erred in granting summary judgment on Cortney's claim.
We next address whether D.M. was "occupying" the vehicle. The evidence indicates that he was holding the handle to the car door when he took evasive maneuvers to protect himself by laying on the roadway in close proximity to the car. We note once again that the policy does not limit the phrase "getting in" or the word "upon" in defining occupying. Hart , 487 S.W. 2d at 419. It is reasonable to conclude that the parties contemplated a construction of the word "occupying" that would encompass the facts here. In other words, using the ordinary and everyday meaning of the words in the policy, and viewing the evidence in the light most favorable to the non-movant, fair-minded jurors could differ in their conclusions regarding whether D.M. was in a single course of action that falls within the ordinary, everyday meaning of "occupying," i.e., "getting in, on, out or off," the vehicle, even considering that D.M. took evasive actions and was not physically touching the vehicle immediately prior to the accident. See Mayes , 236 S.W.3d at 755 ; Maldonado , 2021 WL 977895, at *3. There is a genuine issue of material fact concerning whether D.M. was "occupying" the vehicle. Accordingly, the trial court erred in granting summary judgment in relation to D.M.
Allstate additionally argues that we can affirm the judgment as to D.M. for an alternative reason. At the summary judgment hearing, Hill objected to the trial court's consideration of the ground that D.M. was not injured based on her contention that Allstate failed to provide adequate notice of that ground before the hearing. In response, Allstate agreed to postpone consideration of that ground for at least another twenty-one days. The trial court then said that "we'll have to redo the D.M. non-bodily injury at another time." Allstate's counsel agreed. Given those events, it would be improper for us to affirm summary judgment on an alternative ground, the consideration of which Allstate, as the movant, agreed to postpone. The issue of D.M.’s injury or non-injury was not before the trial court when it ruled.
We sustain Cortney's sole issue.
The dissent addresses Allstate's sham affidavit argument that Allstate raised in its reply to Hill's response to Allstate's motion for summary judgment. However, addressing this argument is unnecessary because Allstate does not raise the sham affidavit issue on appeal. See Burton v. Prince , 577 S.W.3d 280, 291 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (noting that appellate courts will not address issues not raised on appeal by the appellant). Furthermore, Allstate's argument below that Hill's affidavit constitutes a sham affidavit because it contradicts her earlier deposition testimony is "an objection complaining of a defect in form of [her] affidavit." Hogan v. J. Higgins Trucking, Inc. , 197 S.W.3d 879, 883 (Tex. App.—Dallas 2006, no pet.). Thus, even if Allstate wanted to raise the issue on appeal, the issue is not preserved because Allstate failed to secure a ruling on its sham affidavit objection. See id.
III. CONCLUSION
We reverse the trial court's order granting summary judgment as to both Cortney and D.M., and remand to the trial court for further proceedings.
( Jewell, J., dissenting).
DISSENTING OPINION
Kevin Jewell, Justice
I regret I am unable to join the court's opinion and judgment in this case. I would hold that Hill and D.M. were not "occupying" the vehicle at the time of the incident and therefore did not qualify as covered persons under the uninsured/underinsured or personal injury protection coverages at issue. I would affirm the trial court's summary judgment dismissing Hill's claims.
A. Hill's claims
The policy defines "occupying" as "in, upon, getting in, on, out or off." As narrowed by Hill here, the determinative question before us is whether Hill was "upon" the vehicle when the accident occurred.
Examining an identical policy definition in the context of a similar UM/UIM claim, the Supreme Court of Texas considered whether a claimant "occupied" a vehicle by being "upon" it. U.S. Fidelity & Guar. Co. v. Goudeau , 272 S.W.3d 603 (2008). There, a "Good Samaritan" stopped his car on a freeway to help a stranded motorist. He exited his car, closed the door, and had walked around to the front when a third driver ran into both cars and pinned the claimant between them and a retaining wall. Id. at 604. The issue in Goudeau was whether the claimant was "upon" the vehicle when he was injured. The court held he was not and, therefore, he was not "occupying" the vehicle at the time of the accident. Id. at 606.
The case on which Hill appears to rely most heavily is Hart v. Traders & General Insurance Co. , 487 S.W.2d 415 (Tex. App.—Fort Worth 1972, writ ref'd n.r.e.). Hart had come to his brother's assistance in a disabled car on the side of the highway and was working on the engine under the hood when another driver struck the car. Like here, the issue was whether Hart was "occupying" the vehicle by being "upon" it. The policy defined "occupying" to mean, "in or upon or entering into or alighting from." Id. at 417. After studying dictionary meanings of "upon," the court held that, under the usual and ordinary meaning of the word, Hart was "upon" the fender at the time of his injury. Key to the court's holding was evidence that "almost all, if not all, of his entire body weight rested upon" the car's front fender at the time of the injury. Id. at 418. Hart was in fact leaning so far over the fender and under the hood that he could not recall whether his feet even remained touching the ground. Id. at 417.
I note a decision cited by neither the parties nor the majority, Ferguson v. Aetna Casualty & Surety Co. , 369 S.W.2d 844, 845 (Tex. App.—Waco 1963, writ ref'd). The Waco Court of Appeals construed the term "occupying" in the context of a medical payments provision. Like Hart , the policy defined the term "occupying" to be "in or upon or entering into or alighting from an automobile"—again, a definition different from the provision in this case but one nonetheless containing the key term "upon." In Ferguson , a woman left a beauty shop and walked on a board leading into the parking area, toward her car. Id. She slipped, grabbed the handle of a different car for support, fell off the board, and broke both legs. Id. She argued that she was "occupying" the car because she was "upon" it by grabbing the door handle, but the Waco court disagreed:
We think the language employed in the coverage of the insurance policies reasonably plain and unambiguous; and to say that plaintiff was "in or upon" the automobile she had her hand on would be placing a distorted meaning, and unreasonably strained construction upon the described coverage. If plaintiff had been entering or alighting from the car she had her hand upon, at the time of her injury, a different situation would be presented. We cannot say she was "in or upon" the car simply because she put her hand upon it to steady her walk around it on the way to her own car from the beauty parlor. Moreover, we reject plaintiff's contention that ‘physical contact’ alone is the test as to whether an insured is ‘in or upon’ an automobile.
Id. at 845-46 (emphasis added).
In the present case, Hill argues that she was "upon" the car because she was in physical contact with it after she inserted the gas can nozzle into the tank and "pressed her body on the car" to be as close to the car as possible. Her body was "touching the car" as she was filling the tank. At that moment, she saw the other driver's car coming toward them and screamed to everyone to move away.
I am constrained to conclude that Hill's argument is foreclosed by Ferguson , where the court held the claimant was not "upon" the car as necessary to occupy it when holding the car's door handle for support. Ferguson is "writ refused" and thus carries the imprimatur of supreme court precedent. See The Greenbook: Tex. Rules of Form , app. E (Tex. Law Review Ass'n, 13th ed. 2015) (in cases after 1927, "writ refused" denotes that the judgment of the court of appeals is correct, with "[s]uch cases hav[ing] equal precedential value with the Texas Supreme Court's own opinions"). Hart is distinguishable because the claimant's entire body weight was on top of the car as he worked under the hood. We are bound by Ferguson and Goudeau , as regrettable as that outcome may be on these facts.
Hill also argues that she was "on" the car. Under a proper reading of the policy's definition, however, the reference to "on" means "getting on." The gerund "getting" in the phrase "getting in, on, out or off" modifies all the subsequent terms in the list. See Goudeau , 272 S.W.3d at 606 ; McDonald v. S. Cty. Mut. Ins. Co. , 176 S.W.3d 464, 472 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Hill presented no summary judgment evidence that she was "getting on" the car at the time of the accident. For these reasons, the court errs in reversing the judgment as to Hill's claims.
B. D.M.’s claims
Hill also argues that a genuine and material fact question exists whether D.M. was "upon" or "getting in" the car because, according to Hill, D.M. was in the process of moving back into her car. Hill says this is shown because D.M. stated in his declaration that he was holding the door handle when Hill shouted at him to move away.
Here again, I must reject Hill's contention that D.M. was "upon" and thus occupying the vehicle by "holding the door handle" when Hill shouted for him to move away. See Ferguson , 369 S.W.2d at 845-46. I have no quarrel with dictionary definitions of "upon," but dictionaries do not control over supreme court jurisprudence.
In my view, Hill's alternative argument that D.M. was "getting in" the vehicle when the accident occurred is insufficient to preclude summary judgment on this record. Hill again relies on the fact that D.M.’s hand was on the door handle before being told to move away. Hill also appears to rely on statements in her affidavit to the effect that D.M. was "in the process of transferring back into my car" and, when Hill screamed, D.M. was "about to enter the car."
I disagree that this evidence gives rise to a genuine and material fact issue for two reasons. First, the two statements in Hill's affidavit suggesting that D.M. was "transferring" to her car or "about to enter the car" conflict with Hill's prior sworn testimony. In her deposition six months earlier, Hill testified that her car doors were not open at the moment she screamed, and that she did not know whether D.M. was "getting ready to get in the car" or "just walking to the car." Allstate alerted the trial court to this inconsistency in its summary-judgment reply, invoking the so-called "sham affidavit rule." "Under Rule 166a(c), a trial court may conclude that a party does not raise a genuine fact issue by submitting sworn testimony that materially conflicts with the same witness's prior sworn testimony, unless there is a sufficient explanation for the conflict." Lujan v. Navistar, Inc. , 555 S.W.3d 79, 87 (Tex. 2018). The statements contained in paragraphs 10 and 18 of Hill's affidavit conflict materially with her prior deposition testimony, and she offered no explanation for the inconsistency. Thus, the trial court could have disregarded those statements as not presenting a genuine fact issue on whether D.M. was "getting in" the car. Id. Though the trial court did not state that it was disregarding the conflicting portions of Hill's affidavit, it validly could have done so under Lujan . We should indulge the presumption that the trial court disregarded the conflicting testimony as failing to create a genuine fact issue when, as here, the movant challenged the conflicting evidence based on the rule, the summary judgment order is general in nature and does not state otherwise, and the appellant has not challenged rule's application on appeal.
In any event, crediting all the statements in both Hill's and D.M.’s affidavits, the evidence viewed in the light most favorable to the non-movants does not give rise to a genuine issue of material fact that D.M. was "getting in" the car at the relevant time. Reading Hill's affidavit and deposition together, she told D.M. to move away from the car before he entered it, and the car doors undisputedly were not open when Hill told him to move away. Standing next to the car—even touching the door handle—without taking action to open the door and enter the car's interior does not constitute "occupying" the car under Texas law. This is so regardless whether D.M. had just walked toward the car, and even assuming he intended to enter it. In its brief, Allstate asserts a separate reason why we should affirm the summary judgment as to D.M. The justices in the majority reject this alternative argument, and I agree. Allstate moved for summary judgment on D.M.’s claims on the additional ground that D.M. suffered no bodily injury as a result of the accident. Allstate attached the portion of Hill's deposition in which she testified that D.M. suffered no physical injuries. Under the policy terms, for D.M. to be eligible for UM/UIM or PIP coverages, he must have sustained a "bodily injury" as a result of the accident. The Supreme Court of Texas has held that "bodily injury" means "an injury to the physical structure of the body" and not "purely mental, emotional, or spiritual harm." Trinity Universal Ins. Co. v. Cowan , 945 S.W.2d 819, 823 (Tex. 1997) ; see also Ginn v. Tex. Farmers Ins. Co. , No. 03-96-00264-CV, 1998 WL 717120, at *6 (Tex. App.—Austin Oct. 15, 1998, no pet.) (not designated for publication) (concluding that the trial court properly granted the directed verdicts when there was no physical injury as a result of the accident).
Hill neither responded to this ground nor offered controverting evidence in her summary-judgment response raising a fact question whether D.M. suffered bodily injury as a result of the accident. The trial court's order did not specify the grounds on which the court rendered judgment, and Hill does not contest D.M.’s lack of injury on appeal. Because Allstate agreed to postpone consideration of this argument, however, I agree with the justices in the majority that we cannot affirm the judgment as to D.M. on the ground that he was not injured based on the record presented to us.