Holyfield v. Members Mut. Ins. Co.
| Decision Date | 04 April 1978 |
| Docket Number | No. 19494,19494 |
| Parties | Wallace HOLYFIELD, Appellant, v. MEMBERS MUTUAL INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
James E. Brown, Briggs & Brown, Dallas, for appellant.
Tom J. Stollenwerck, Moore & Peterson, Dallas, for appellee.
Richard S. Geiger, David B. Irons, Thompson, Coe, Cousins & Irons, Dallas, amicus curiae brief for Texas Auto. Ins. Service Office.
Wallace Holyfield sued Members Mutual Insurance Company, seeking recovery of Personal Injury Protection (PIP) benefits for his son, who was injured in a collision between Holyfield's motorcycle, which he was riding, and an automobile. Although two automobiles were listed as "insured vehicles" under the policy, the motorcycle was not listed. Separate PIP premiums were paid for the two automobiles, but no premium was paid regarding the motorcycle. The trial court rendered a take-nothing judgment for the insurance company, and Holyfield now appeals. We affirm.
The principal question on this appeal is whether an insured may recover PIP benefits for injuries sustained while operating an owned vehicle not listed as an insured vehicle under the policy, and for which no premium has been paid. The policy in this case expressly excludes coverage of injuries sustained while "occupying" a vehicle owned by the named insured which is not an "insured motor vehicle." The policy defines "insured motor vehicle" to mean:
An automobile described in the policy to which bodily injury liability coverage applies and for which a specific premium charge indicates that personal injury protection is afforded. (Emphasis added)
Since the motorcycle was not described or listed on the policy, and no specific premium was charged to insure its operators, coverage is excluded under the policy. However, Holyfield argues that this exclusion is contrary to Article 5.06-3(a) of the Texas Insurance Code, which prohibits delivery of automobile insurance policies which do not include PIP coverage. He urges that the exclusion in his policy cannot be given effect, for to do so would restrict the breadth of coverage mandated by the Code. At least one Texas court of civil appeals has agreed with this argument. See Western Alliance Insurance Company v. Dennis, 529 S.W.2d 838, 840 (Tex.Civ.App. Texarkana 1975, no writ).
In Western Alliance, the Texarkana court reasoned that since our supreme court had decided that an exclusion relating to uninsured motorist protection was an unlawful restriction of the coverage provided by statute, 1 a similar result should be reached regarding PIP coverage. The supreme court case was Westchester Fire Ins. Co. v. Tucker, 512 S.W.2d 679, 686 (Tex.1974), in which the court, on rehearing, said:
As stated in our original opinion, we have concluded that the policy exclusion of injuries sustained by an insured while occupying an owned but unscheduled vehicle is ineffectual to the extent that it deprives a person of coverage required by Article 5.06-1 of the Insurance Code. (Emphasis added)
The problem with this statement is that, despite the court's reference, no such conclusion was reached in the...
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