Opinion
No. 06-06-00024-CV
Submitted: February 7, 2007.
Decided: March 9, 2007.
On appeal from the 276th Judicial District Court, Titus County, Texas, Trial Court No. 30646.
Before MORRISS, C.J., CARTER AND MOSELEY, JJ.
MEMORANDUM OPINION
A significant problem faced Santos Lopez in his suit against Farmers Texas County Mutual Insurance Company and its agent, Ronnie Dunavant, asserting an underinsured-motorist (UIM) claim under Lopez's insurance policy issued by Company through Dunavant. Lopez had previously rejected the UIM coverage in connection with his automobile insurance policy issued by Company. Notwithstanding that handicap, Lopez pled causes of action against Company and Dunavant for a breach of contract, a bad-faith settlement practice under the Texas Insurance Code, and a deceptive trade practice under the Texas Business and Commerce Code.
See Tex. Ins. Code Ann. § 541.060(a)(2) (Vernon Supp. 2006) (formerly Tex. Ins. Code Ann. art. 21.21, § 4).
See Tex. Bus. Com. Code Ann. § 17.46 (Vernon Supp. 2006).
Company and Dunavant sought, and the trial court granted, summary judgment that Lopez take nothing. That judgment was based on two motions for summary judgment which, together, attacked Lopez's entire lawsuit using no-evidence grounds and conventional grounds. The trial court's grant of summary judgment did not specify the ground or grounds on which it was granting summary judgment other than stating that both motions were being granted. We affirm the trial court's judgment because, as a matter of law, waiver of UIM coverage was established.
Company and Dunavant also urge on appeal that the summary judgment should be affirmed on the independent ground that Lopez failed to provide summary judgment evidence of any judgment he might have obtained against his tortfeasor or of actual damages that would be covered by UIM coverage. Being contractual in nature, a UIM claim need not be paid until the liability of the allegedly underinsured motorist and the amount of the insured's resulting damages have been determined. Brainard v. Trinity Universal Ins. Co., No. 04-0537, 2006 Tex. LEXIS 1296 (Tex. Dec. 22, 2006); Henson v. S. Farm Bureau Cas. Ins. Co., 17 S.W.3d 652, 653-54 (Tex. 2000). But, because this point was not a ground for summary judgment advanced by either Company or Dunavant, we do not consider the issue in deciding this case.
When, in granting summary judgment, the trial court fails to specify which of the asserted summary judgment grounds form the basis of its grant of summary judgment, we are to affirm the summary judgment if any of the advanced theories support the judgment. Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005); Provident Life Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Coffey v. Singer Asset Fin. Co., No. 05-05-01240-CV, 2007 Tex. App. LEXIS 692, at *5-6 (Tex.App.-Dallas Jan. 31, 2007, no pet. h.).
When a motion for summary judgment under Rule 166a(i) of the Texas Rules of Civil Procedure — a "no evidence" motion — is filed, the burden shifts to the party opposing the motion to present evidence raising an issue of material fact as to the elements specified in the motion. Mack Trucks v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006). We are to review the presented evidence "in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." See id.
UIM coverage is required as part of each Texas automobile liability insurance policy unless
any insured named in the policy shall reject the coverage in writing; provided that unless the named insured thereafter requests such coverage in writing, such coverage need not be provided in or supplemental to a reinstated policy or renewal policy where the named insured has rejected the coverage in connection with that policy or a policy previously issued to him by the same insurer or by an affiliated insurer.
Tex. Ins. Code Ann. art. 5.06-1(1) (Vernon Supp. 2006) (emphasis added). The summary judgment evidence established that Lopez signed waivers of UIM coverage, clearly stated in English, on four occasions, January 20, 1998, February 27, 1998, February 29, 1998, and April 8, 1999.
Lopez attacks the waivers not due to any lack of clarity of the English language forms he signed, but due to his lack of understanding of the waivers — because he does not speak or understand the English language and because Company and Dunavant's representatives allegedly failed to explain the waivers to him. Lopez argues that a UIM coverage waiver requires the Company to demonstrate that the insured knew he or she was rejecting UIM coverage. That concept arises from a statutory interpretation made by the Texas Supreme Court in 1978:
We believe [the statutory language regarding waivers of Personal Injury Protection coverage under Article 5.06-3 of the Texas Insurance Code] calls for an express written rejection in language demonstrating that the insured has some knowledge of what he is rejecting. Because the provision of such mandated coverage is a matter of public policy, a claim of rejection thereof should not be determined simply by reference to the rules which courts otherwise apply to determine the intent and acts of contracting parties. Rejection of the coverage should not be on a "tantamount," "legal effect," or "consequence" basis. The manifest public policy requires that the " rejection in writing" of this particular statutory coverage be in clear and express language.
Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303, 308 (Tex. 1978) (emphasis added); see Ortiz v. State Farm Mut. Auto. Ins. Co., 955 S.W.2d 353, 358-59 (Tex.App.-San Antonio 1997, pet. denied).
While Schaefer recognized that Personal Injury Protection and UIM coverages are distinguishable, it stated that the same public policy was at work in the very similar waiver requirements for the two statutorily mandated coverages. Schaefer, 572 S.W.2d at 308.
Article 5.06-1(1), by its terms, requires only that the insured "reject [UIM] coverage in writing." Tex. Ins. Code Ann. art. 5.06-1(1). We do not understand Schaefer as engrafting onto that statutory language any required proof — beyond clear language made part of the waiver form itself — that the insured actually understood the effect of the waiver, by presenting evidence that the waiver form was translated into a language the insured would understand or that an otherwise explicit form was more fully explained to the insured before he or she signed it. Instead, we believe, Schaefer requires merely that the waiver be sufficiently explicit so it objectively communicates its effect as waiving or rejecting the coverage in question. That can be seen in the fact that Schaefer was focused on the "language" of the waiver. Schaefer, 572 S.W.2d at 308. Accord Ortiz, 955 S.W.2d at 359; Sims v. Standard Fire Ins. Co., 781 S.W.2d 328, 330-31 (Tex.App.-Houston [1st Dist.] 1989, writ denied).
While Ortiz noted that the insurance agent did explain the waiver form to the insured, see Ortiz, 955 S.W.2d at 359, we do not interpret that as establishing an explanation requirement.
Lopez argues for an extension of the statute beyond its explicit terms. We are not prepared to provide that extension. The trial court was correct in ruling that Lopez had no UIM coverage and therefore had no UIM claim.
And, while it is possible to have a bad-faith claim or a deceptive trade practice independent of an obligation to pay a claim, Lopez's collateral claims are based on nothing but the failure of Company to pay on his UIM claim. The trial court was correct in finding no evidence to support those collateral claims.
See Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex. 1995).
We affirm the judgment of the trial court.
Josh R. Morriss, III, Chief Justice.