Estate of Vasquez-Ortiz v. Zurich Compania De Suguros, S.A.
| Decision Date | 08 January 2013 |
| Docket Number | CIVIL ACTION NO. H-11-2413 |
| Parties | THE ESTATE OF JOSE FRANCISCO VASQUEZ-ORTIZ, Plaintiff, v. ZURICH COMPANIA DE SUGUROS, S.A., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court is Defendant Zurich Compania De Seguros, S.A.'s ("Zurich") Motion for Summary Judgment (Doc. No. 35) and Motion for Determination of Law Pursuant to Rule 44.1 (Doc. No. 36). After considering the motions, all responses thereto, and the applicable law, the Court finds that Defendant's Motion for Summary Judgment should be GRANTED and Defendant's Motion for Determination of Law should be TERMINATED AS MOOT.
This lawsuit arises from an airplane crash in Hidalgo, Texas on May 2, 2007. (Doc. No. 44-4, June 14, 2007 letter, at 1.) The Estate of Jose Francisco Vasquez-Ortiz ("the Estate") now brings this suit, seeking, among other things, a declaratory judgment that an insurance policy issued by Zurich provides liability coverage for the death of passengers and crewmembers. (Doc. No. 7, Am. Compl. ¶ 20.)
Zurich had previously issued two insurance policies to Cite Aviation LLC ("Cite Aviation"), the registered owner of the Lancair aircraft that crashed on May 2, 2007. (Mot. forSumm. J., at 3.)1 Cite Aviation is a Delaware limited liability company set up and owned entirely by Byron Hoffman. (Doc. No. 45-3, Hoffman Dep., at 15:18-16:15.) Hoffman, a longtime friend of the Vasquez-Ortiz family, works as a broker helping clients buy and sell aircrafts. (Id. at 8:12-13, 11:18-13:24.) He worked with Vasquez-Ortiz on numerous occasions to acquire and sell airplanes. (Id. at 14:21-15:6, 23:11-12, 28:14-29:20.) Hoffman explained that, because Vasquez-Ortiz was not a United States citizen, he could not register a United States aircraft. (Id. at 19:3-9.) Because of the advantages of a United States registered aircraft, Hoffman determined that it was "prudent" to establish a separate United States entity for the airplanes acquired by Vasquez-Ortiz. (Id. at 18:24-19:9.)2 According to Hoffman, foreign nationals like Vasquez-Ortiz commonly set up a United States entity to own their aircrafts in order to register their planes with the United States. (Id. 19:3-9.)3
During the course of Hoffman's relationship with Vasquez-Ortiz, Cite Aviation became the registered owner of several airplanes. (Id. at 37:15-18.) However, neither Hoffman nor Cite Aviation paid any money to acquire these airplanes; purchase prices were agreed to and paid by Vasquez-Ortiz. (Id. at 19:24-20:3, 23:1-12, 55:17-56:6.) Vasquez-Ortiz took care of various expenses associated with owning these airplanes, and appeared to control the use of the airplanes. (Id. at 27:2-8, 38:16-23, 39:8-10.) Hoffman was similarly uninvolved in obtaining insurance for the Lancair that ultimately crashed in May 2007. (See id. at 68:15-69:16 (explaining that Hoffman's level of involvement in insuring the aircraft amounted only toreferring Vasquez-Ortiz to the company and broker that insured the other airplanes owned by Cite Aviation).)
In October 2006, Cite Aviation submitted an Insurance Application to Zurich. (Mot. for Summ. J., at 4; Doc. No. 43-1, English Translation of Insurance Application.)4 The application requested $1,000,000 worth of coverage for "Legal Tort Liability," which the application form defined as "injury to third parties' property and/or body (combined single limit) not to include passengers, crew and damages caused by the product in case of exterminations," for the period of October 12, 2006 through October 12, 2007. (Doc. No. 43-1, English Translation of Insurance Application.) No amount was listed next to "Voluntary Payments" or "Medical Expenses" for either crew or passengers. (Id.) On October 9, 2006, Zurich sent a premium quote to Cite Aviation for $1,000,000 worth of coverage for "Tort Liability," defined in parentheses as "injury to third parties' property and/or body, not to include passengers, crew." (Doc. No. 43-2, English Translation of Quote.)
On October 13, 2006, Zurich issued Policy Number 510616 (hereinafter "Liability Policy") to Cite Aviation valid from October 12, 2006 through October 12, 2007. (Doc. No. 43-3, English Translation of Insurance Policy, at 1.)5 The beginning of the Liability Policy provided general details, including the identity of the insured party, details about the insured property, premium amounts, and an overview of the policy conditions. (Id. at 1-3.) Under a section titled "Conditions," the Liability Policy provided certain coverage specifications. (Id. at 2.) Specifically, the Liability Policy indicated that it provided coverage for "Legal Civil Responsibility," defined as "[d]amage to third parties in its property and/or parties L.U.C.[e]xcluding passengers and crew," in the amount of $1,000,000. (Id.) Further on in the Liability Policy, in a section labeled "General Conditions," the following description of covered risks is included:
(Id. at 7-8.)
On May 2, 2007, the Lancair covered by the Liability Policy crashed in Hidalgo, Texas. (Doc. No. 44-4, June 14, 2007 letter, at 1.) Vasquez-Ortiz, the pilot, and Georgina Grimaldo Azuara, the passenger, died in the crash. Id.
On May 1, 2009, the family and the Estate of Azuara brought suit against Cite Aviation and the Estate of Vasquez-Ortiz, among others, in Hidalgo County, Texas. (Doc. No. 35-3, April 6, 2010 letter, at 1; Doc. No. 35-3, Azuara's Second Amended Petition, at 1.) Hoffman delivered the Original Petition in the Azuara lawsuit to Zurich on July 8, 2009, requesting information as to how to proceed. (Doc. No. 35-3, April 6, 2010 letter, at 1.) Zurich responded the following day, indicating that there was no coverage for the Azuara lawsuit under the Liability Policy because the policy did not cover injuries to passengers. (Id.) Subsequently, on August 31, 2010, Zurich issued a more through explanation of its reasons for denying coverage. (Doc. No. 35-3, August 31, 2010 letter.)
On May 3, 2011, the Estate of Vasquez-Ortiz brought the instant lawsuit. (Doc. No. 1, Compl.) The Estate argues that Zurich violated the Liability Policy by failing to provide coverage for the Azuara lawsuit. Specifically, it charges Zurich with breach of contract, breach of duty of good faith and fair dealing, negligence, and a number of violations of the Texas Deceptive Trade Practices Act ("DTPA") and the Texas Insurance Code. (Am. Compl. ¶¶ 8-19.) It also seeks a declaratory judgment that the Liability Policy, specifically the "Voluntary Payments" portion, applies to the Azuara lawsuit. (Id. ¶ 20.)6
Zurich now moves for summary judgment, arguing that: (1) Plaintiff lacks standing to raise these claims; (2) the Liability Policy does not cover injuries to passengers and crew; (3) any claims for coverage are barred by the statute of limitations; (4) the Liability Policy includes a forum selection clause that mandates this dispute be litigated in Mexico; and (5) a Mexican tribunal already entered judgment in favor of Zurich on the issue of whether the Liability Policy covers injuries to passengers and crew.
A motion for summary judgment requires the Court to determine whether the moving party is entitled to judgment as a matter of law based on the evidence thus far presented. Fed. R. Civ. P. 56(a). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001) (quotations omitted). "A fact is material if its resolution in favor of one party might affect the outcome of the lawsuit undergoverning law." Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326 (5th Cir. 2009) (quotations and footnote omitted).
"Facts and inferences reasonably drawn from those facts should be taken in the light most favorable to the non-moving party." Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 188 (5th Cir. 2007). The Court may not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). "The court should give credence to the evidence favoring the nonmovant as well as that 'evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'" Id. at 151. Hearsay, conclusory allegations, unsubstantiated assertions, and unsupported speculation are not competent summary judgment evidence. Fed. R. Civ. P. 56(e)(1); see, e.g., McIntosh v. Partridge, 540 F.3d 315, 322 (5th Cir. 2008); Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) () (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
A. Standing
Defendant first argues that Plaintiff has no standing to bring an action based on the insurance...
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