Davis v. Dairyland County Mut. Ins. Co. of Texas
| Decision Date | 22 May 1979 |
| Docket Number | No. 19932,19932 |
| Citation | 582 S.W.2d 591 |
| Parties | Loni Rowe DAVIS, Individually and next friend of Stephen Rowe and Lisa Rowe and Deppy DeWitt Jacquess, Appellants, v. DAIRYLAND COUNTY MUTUAL INSURANCE COMPANY OF TEXAS and Dairyland Insurance Company, Appellees. |
| Court | Texas Court of Appeals |
Roger D. Bush, Dallas, for appellants.
Jeffrey S. Lynch, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appellees.
Before AKIN, ROBERTSON and CARVER, JJ.
This is an appeal from a summary judgment in favor of appellees Dairyland County Mutual Insurance Company of Texas and Dairyland Insurance Company. The trial court held that a prior declaratory judgment barred the claims of appellant-intervenor, Deppy DeWitt Jacquess, and appellant Loni Rowe (Davis), individually and as next friend of her two minor children because of the doctrines of res judicata and collateral estoppel, respectively. On appeal, appellants challenge the validity of the declaratory judgment, arguing that no justiciable controversy existed at the time the judgment was granted. We hold that a justiciable controversy existed regarding the cancellation of an insurance policy and thus, the declaratory judgment is valid. Accordingly, we affirm.
Jacquess purchased a six-month automobile liability insurance policy from Dairyland through an agent, Ace Insurance Company, on May 13, 1970. He financed one-half of the premium through Time Installment Acceptance Company which paid Dairyland in full. This premium finance contract stated that Time had a security interest in the policy and the power of attorney to "sign and/or execute . . . any and all notices necessary to effect cancellation of said policy." Jacquess' payments to Time were due on the first of June, July and August; he made the first of these but defaulted on the July payment. On July 1, Time sent Jacquess a notice of cancellation and on July 10, Time telephoned Ace and requested cancellation on the policy. Ace sent Jacquess a cancellation notice setting July 21, 1970, as the cancellation date. Jacquess had moved, however, and did not receive this notice. Dairyland sent Ace a refund of the unearned premium to be returned to Jacquess.
On July 30, 1970, Jacquess had a car accident resulting in the death of one of his passengers, Stephen Rowe. On November 18, 1970, Ace contacted the Rowes and informed them that the policy was cancelled. The Rowes brought a wrongful death action against Jacquess in March of 1971. Dairyland defended Jacquess in this action only after executing a nonwaiver agreement which provided that any investigation or defense undertaken by Dairyland was without prejudice to Dairyland's right to deny coverage as well as to assert any policy defenses. The trial court granted a judgment for the Rowes in 1972. Being unable to collect that judgment, the Rowes brought this action. Although Jacquess assigned his cause of action against Dairyland to the Rowes on May 6, 1976, he has intervened in this lawsuit.
Dairyland filed a declaratory judgment action in Bell County on July 14, 1971, naming Jacquess and the Rowes as defendants. The Rowes filed an answer but were later non-suited. In its judgment rendered on September 29, 1971, the court held that the insurance policy was cancelled prior to the occurrence of the accident and that no duty to defend existed on the part of Dairyland.
The principal question on this appeal is whether the declaratory judgment is valid. It is well established that Tex.Rev.Civ.Stat.Ann. art. 2524-1 (Vernon 1965), The Uniform Declaratory Judgments Act does not give a court the power to render advisory opinions or determine...
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