Eshtary v. Allstate Ins. Co., 2-88-065-CV

• Decision Date: 29 March 1989
• Docket Number: No. 2-88-065-CV,2-88-065-CV
• Citation: 767 S.W.2d 291
• Parties: Celia G. ESHTARY, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 291

767 S.W.2d 291

Celia G. ESHTARY, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.

No. 2-88-065-CV.

Court of Appeals of Texas Fort Worth.

March 29, 1989.

The Law Offices of Michael E. Robinson, and Michael E. Robinson, Dallas, for appellant.

Law Offices of Arlen D. "Spider" Bynum, and Arlen D. "Spider" Bynum, Dallas, for appellee.

Before WEAVER, C.J., and FARRIS and MEYERS, JJ.

OPINION

FARRIS, Justice.

This suit involves the construction of the liability limitation for uninsured motorist coverage under an auto insurance policy. Celia G. Eshtary has appealed the summary judgment rendered against her and in favor of Allstate Insurance Company. Mohammed Eshtary, the deceased, was killed in an automobile collision between his vehicle and that of Charles Alvarez, an uninsured motorist. Mrs. Eshtary was not involved in the accident. She was awarded $20,000 damages for her husband's injuries and death but denied her claim for another $20,000 for her personal mental pain and anguish caused by such death. Mrs. Eshtary's suit for her own mental pain and anguish was severed from the original action and such suit is the subject of this appeal.

We affirm. The mental anguish she suffered as a result of her husband's accident is not covered by the uninsured motorist protection because she was not injured in the accident.

Allstate issued a policy to Mrs. Eshtary with uninsured motorist coverage which provided:

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.

Covered person is defined as "you or any family member." The policy provided for $20,000 coverage per person injured in each accident and $40,000 total coverage for bodily injuries per accident.

In her first point of error, Mrs. Eshtary asserts that the trial court erred in granting summary judgment. It is Mrs. Eshtary's contention that her mental anguish was a bodily injury resulting from her husband's automobile accident and that the $40,000 maximum is the maximum for all bodily injury damages sustained by covered persons in any one accident.

The Texas Safety Responsibility Law, TEX.REV.CIV.STAT.ANN. art. 6701h, sec. 5(c)(6) (Vernon Supp.1989) required all motor vehicle liability policies to contain these minimum limits:

Twenty Thousand Dollars ($20,000) because of bodily injury to or death of one person in any one accident, and, subject to said limit for one person, to a limit of not less than Forty Thousand Dollars ($40,000) because of bodily injury to or death of two (2) or more persons in any one accident.

Id. (emphasis added). The supreme court has written on this very point:

The language of Article 6701h--"bodily injury to or death of one person in any one accident"--clearly refers to the person who is actually involved and physically or emotionally injured in the accident. The language of Article 6701h refers to liability limits due to bodily injury or death to any one or more persons in any one accident. It is undisputed that only Mr. McGovern was involved in the accident giving rise to his personal injuries. Thus, because only one person was involved in that accident, the limit of State Farm's liability is $10,000.

McGovern v. Williams, 741 S.W.2d 373, 374 (Tex.1987) (emphasis in original).

By lifting the name of "McGovern" out of the foregoing supreme court quote and replacing it with "Eshtary," we note that the word "in" is dispositive of the point raised here. In the instant case, as in McGovern, the conclusion is that only Mr. Eshtary was involved "in" the accident giving rise to his personal injuries. "Thus, because only one person was involved in that accident, the limit of [Allstate's] liability is" $20,000. McGovern, 741 S.W.2d at 374.

Notwithstanding the supreme court's holding in McGovern, Mrs. Eshtary contends the facts in that case are distinguishable because Mrs. McGovern alleged loss of consortium was a "bodily injury" under TEX.REV.CIV.STAT.ANN. art. 6701h, sec. 21 (Vernon Supp.1989), and the insurance contract, whereas Mrs. Eshtary contends "mental pain and anguish" is a "bodily injury" under this statute and the insurance contract. Mrs. Eshtary interprets language used by the supreme court in McGovern as indicating there would have been a...