Kimble v. Aetna Cas. and Sur. Co.

• Decision Date: 02 March 1989
• Docket Number: No. 07-88-0100-CV,07-88-0100-CV
• Citation: 767 S.W.2d 846
• Parties: Walter KIMBLE, et al., Appellants, v. AETNA CASUALTY AND SURETY COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 846

767 S.W.2d 846

Walter KIMBLE, et al., Appellants, v. AETNA CASUALTY AND SURETY COMPANY, Appellee.

No. 07-88-0100-CV.

Court of Appeals of Texas,

Amarillo.

March 2, 1989.

Rehearing Denied April 24, 1989.

Gene Gaines, Dallas, for appellants.

Jones, Flygare, Galey, Moody & Brown, Jeffrey B. Jones, Lubbock, for appellee.

Before REYNOLDS, C.J., and BOYD and POFF, JJ.

BOYD, Justice.

Appellants Walter Kimble, Lewis A. Wiltz and James Plaisance, being defendants and cross-plaintiffs in the below suit, complain of the summary judgment granted to appellee Aetna Casualty and Surety Company, plaintiff and cross-defendant below. In two points, appellants argue (1) there was no evidence to controvert their motion for summary judgment and it should, therefore, have been granted, and (2) appellee's evidence in support of its motion for summary judgment was legally insufficient as a matter of law. We affirm the trial court's judgment granting summary judgment to appellee.

Although denial of a motion for summary judgment is usually not appealable, Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex.1966), appellate review of such denial is available where, as here, both parties have moved for summary judgment and the trial court has granted one motion and denied the other. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958); Garcia v. City of Lubbock, 634 S.W.2d 776, 780 (Tex.App.--Amarillo 1982, writ ref'd n.r.e.).

When both appellants' and appellee's motions for summary judgment are properly before the trial court, all evidence accompanying both motions is considered in deciding them. DeBord v. Muller, 446 S.W.2d 299, 301 (Tex.1969). In examining the evidence, this Court must utilize the same standard that the trial court used to determine whether the summary judgment proof establishes as a matter of law that no genuine issue of fact exists as to one or more of the essential elements of appellee's cause of action. Sorsby v. State, 624 S.W.2d 227, 230 (Tex.Civ.App.--Houston [1st Dist.] 1981, no writ).

Appellants carry the burden of demonstrating that the trial court's decision was erroneous because the appellee failed to establish as a matter of law the absence of an issue of material fact. That is true because appellants must point out any fact questions which allegedly existed on material issues, inasmuch as this Court is not required to search the record for a possible fact issue. Id. at 230-31. However, in making our assessment of the validity of the instant judgment, this Court will indulge every reasonable intendment under the summary judgment proof in favor of the persons against whom the judgment was granted. Crystal City Independent School Dist. v. Crawford, 612 S.W.2d 73, 74 (Tex.Civ.App.--San Antonio 1980, writ ref'd n.r.e.).

On or about June 10th, 1977, Gilbert J. Pinson d/b/a Gil's Service Center had in full force and effect a comprehensive automobile liability insurance policy, which policy was issued by appellee Aetna. Under said policy, Gilbert J. Pinson d/b/a Gil's Service Center was the named insured and Ricky D. Majors was also an insured, while in the course and scope of his employment with Gil's Service Center. The policy provided that, as a condition precedent to coverage under the policy, the insured should immediately forward to the insurance company every demand, notice, summons or other process received by him or his representative in case of a claim being made or a suit being brought against the insured.

On or about June 10th, 1977, Ricky D. Majors was involved in an automobile accident while allegedly engaged in the course and scope of his employment with Gilbert J. Pinson d/b/a Gil's Service Center. Appellants Walter Kimble, Lewis A. Wiltz, and James Plaisance filed a lawsuit against Gilbert J. Pinson d/b/a Gil's Service Center and against Ricky D. Majors, alleging that Majors was negligent in the operation of his vehicle and that his negligence was the proximate cause of the injuries they sustained. That lawsuit is styled Walter Kimble, et al. vs. McMillian Trucking Co., Inc., et al., and is Cause No. 93,168 in the 99th District Court of Lubbock County, Texas. Gilbert J. Pinson and Ricky D. Majors were served with process in the lawsuit, but failed to answer said lawsuit. Appellants Walter Kimble, Lewis A. Wiltz, and James Plaisance took a default judgment against Gilbert J. Pinson d/b/a Gil's Service Center and Ricky D. Majors and made demands on appellee Aetna that it pay the judgment under the aforementioned policy of insurance.

Appellee Aetna then filed its original petition for declaratory judgment, seeking a construction of the liability insurance policy with Gilbert J. Pinson d/b/a Gil's Service Center and Ricky D. Majors and a declaration that appellee Aetna had no duty to defend the insured in the suit pending against the insured nor liability for any judgment rendered against the insured thereby, based on appellee Aetna's allegation that Pinson had failed to notify it of the pending lawsuit until after default judgment was rendered. Appellants generally denied. On December 10, 1981, appellee Aetna took a default judgment against Gilbert J. Pinson and Ricky D. Majors.

On January 22, 1985, appellants filed their First Amended Original Answer and Counter Claim alleging that they were third-party beneficiaries of the liability insurance policy and, as such, were entitled to recovery from appellee Aetna. Both appellee and appellants filed motions for summary judgment. The trial court granted appellee Aetna's motion for summary judgment and denied appellants' motion, resulting in the present appeal.

Appellant's initial argument is that there was insufficient evidence to support the summary judgment regarding whether Pinson forwarded or failed to forward suit papers to his insurance company. Appellants argue that the only testimony comes from interested parties and that such testimony is not sufficient to support a motion for summary judgment.

Texas Rule of Civil Procedure 166a(c) provides that "[a] summary judgment may be based on uncontroverted testimonial evidence of an interested witness ... if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted."

In response to appellants' motion for summary judgment, appellee Aetna filed a transcript of Alton Black's testimony at the hearing on appellee Aetna's petition for declaratory judgment. As superintendent of the Claims Department for appellee Aetna, Black testified that he first became aware of the lawsuit against Gilbert Pinson "right after the Default Judgment was entered ... in July of '79." He stated that Pinson had not given him notice that Pinson had been named in that lawsuit and that Pinson had not forwarded the service or citation that had been served upon him. Black said Pinson's liability policy was conditioned "that on receipt of any summons, or citation, or any suit papers of any type, they be forwarded to us immediately." The purpose of the clause was to make the insurer aware of any lawsuits pending against the insured so that the insurer can provide a proper defense. The transcripted testimony was also attached to appellee Aetna's motion for summary judgment.

Robert Cokerham, agent for appellee Aetna, testified by deposition that the first time he was notified of any action against Pinson was when Pinson "received the default judgment." Cokerham stated that Pinson told him "at the time of the default judgment that he [Pinson] remembered getting that [a copy of the original petition in the lawsuit against him], and he stuck [it] somewhere in a cubbyhole at his home, but he never told me about a suit until the default judgment." Cokerham then notified the insurance company that Pinson had contacted him regarding the default judgment.

Cokerham acknowledged that Pinson notified him promptly that the accident had occurred, and that Cokerham went to the scene of the accident within an hour of the accident to conduct an investigation to send to Aetna. However, he testified that he received no notice from Pinson that suit had been filed against Pinson regarding the accident until a default judgment had been rendered.

Notice of service and return of citation and the default judgment taken in the lawsuit against Pinson were then entered of record. The Court found that appellee Aetna had not received notice of the suit against Pinson until after entry of the default judgment and was prejudiced by that failure. Appellee Aetna's motion for declaratory judgment was granted, except payment of the court costs were ordered paid by appellee Aetna.

Appellants point this Court to no evidence contrary to that of the two employees of Aetna which would controvert their testimony that Pinson had failed to forward to Aetna notice of any litigation pending against him. Our review of the summary judgment evidence finds the testimony of the "interested witnesses" to be "clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and [such as] could have been readily controverted." See Tex.R.Civ.P. 166a(c). Cf. Martin v. Traders & General Ins. Co., 258 S.W.2d 142, 144 (Tex.Civ.App.--Galveston 1953, writ ref'd n.r.e.).

Moreover, upon submission, and in oral argument, appellants conceded that appellee Aetna did not receive notice prior to entry of the default judgment. Rather, they focused their argument upon the question as to whether or not appellee Aetna was sufficiently prejudiced by its lack of notice to entitle it to deny policy coverage. In particular, appellants argued, since appellee admittedly received notice of that default judgment prior to the time it became final, appellee could have taken some action to have it set aside. Since appellee took no such action, they posited, the requisite prejudice to appellee was not shown.

In our discussion of this argument by appellant,...