Manriquez v. Mid-Century Ins. Co. of Texas

• Decision Date: 11 October 1989
• Docket Number: No. 08-88-00346-CV,MID-CENTURY,08-88-00346-CV
• Citation: 779 S.W.2d 482
• Parties: Emigdia C. MANRIQUEZ, Individually and on Behalf of all Statutory Wrongful Death Beneficiaries of Jorge Ramon Manriquez, Deceased, Appellants, v.INSURANCE COMPANY OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 482

779 S.W.2d 482

Emigdia C. MANRIQUEZ, Individually and on Behalf of all Statutory Wrongful Death Beneficiaries of Jorge Ramon Manriquez, Deceased, Appellants, v. MID-CENTURY INSURANCE COMPANY OF TEXAS, Appellee.

No. 08-88-00346-CV.

Court of Appeals of Texas,

El Paso.

Oct. 11, 1989.

Rehearing Denied Nov. 8, 1989.

Enrique Moreno, Moreno & Fry, El Paso, for appellants.

J. Monty Stevens, Dudley, Dudley and Windle, El Paso, for appellee.

Before OSBORN, C.J., and FULLER and WOODARD, JJ.

OPINION

WOODARD, Justice.

This is an appeal from a summary judgment emanating from a wrongful death suit. We affirm.

Appellants are the widow and surviving parents of a pedestrian killed when struck by an automobile driven by an unlicensed minor, Gregory Daniel Alkofer. In addition to suing Gregory for negligent driving, his mother, Barbara, was sued for negligent entrustment; and both were charged with gross negligence.

Appellee, insurer of the Alkofer automobile, intervened and successfully moved for a declaratory summary judgment limiting its liability to $50,000.00.

Pertinent parts of the policy in question provided:

PART A--LIABILITY COVERAGE

Insuring Agreement

We will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident.

. . . . .

Limit of Liability

If separate limits of liability for bodily injury and property damage liability are shown in the Declarations for this coverage the limit of liability for "each person" for bodily injury liability is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto accident. Subject to this limit for "each person," the limit of liability shown in the Declarations for "each accident" for bodily injury liability is our maximum limit of liability for all damages for bodily injury resulting from any one auto accident. The limit of liability shown in the Declarations for "each accident" for property damage liability is our maximum limit of liability for all damages to all property resulting from any one auto accident.

If the limit of liability shown in the Declarations for this coverrage [sic] is for combined bodily injury and property damage liability, it is our maximum limit of liability for all damages resulting from any one auto accident.

This is the most we will pay regardless of the number of:

(1) Covered persons;

(2) Claims made;

(3) Vehicles or premiums shown in the Declarations; or

(4) Vehicles involved in the auto accident.

The Alkofer policy provided separate limits of liability for bodily injury and property damage liability in the following amounts: bodily injury--$50,000.00 for each person/$100,000.00 for each accident; property damage--$25,000.00.

Appellant firstly contends any $50,000.00 limitation would not include an award for exemplary damages. American Home Assurance Company v. Safway Steel Products Company, Inc., A Division of Figgie International, Inc., 743 S.W.2d 693 (Tex.App.--Austin 1987, writ denied); Home Indemnity Company v. Tyler, 522 S.W.2d 594 (Tex.App.--Houston [14th Dist.] 1975, writ ref'd n.r.e.) and Dairyland County Mutual Insurance Company v. Wallgren, 477 S.W.2d 341 (Tex.Civ.App.--Forth Worth 1972, writ ref'd n.r.e.) hold that where insuring agreements provide for the payment of ... all sums which the insured shall become legally obligated to pay as damages because of ... bodily injury will include payment of punitive damages for gross negligence. These cases emphasize the words "all sums" as being the important inclusive considerations. In determining whether these words include coverage for punitive damages, a majority of courts have used the following rationale: (1) the average insured, in the absence of an express policy exclusion from liability from punitive damages, would assume that the term "damages" would include punitive damages, since they would become by judgment a "sum" that the insured would be legally obligated to pay; (2) because the insurer drafted the policy and could have made clear its intention to exclude coverage for punitive damages, the rules of construction require it to bear the burden of ambiguity; and (3) punitive damages are covered because they always "arise" out of the underlying action for injury. American Home Assurance Company v. Safway Steel Products Company, Inc., A Division of Figgie International, Inc., 743 S.W.2d at 702.

In the case at hand, the insurer agrees to pay damages for bodily injury ... for which any covered person becomes legally responsible because of an auto accident. There is absence of the words "all sums." The agreement expressly excludes coverage for any person who intentionally causes bodily injury. Nonetheless, an average insured would assume the term damages would include all damages except those intentionally caused. The insurer drafted the policy and could have made it clear that no punitive damages would be covered. Punitive damages arise out of or are due to the legal responsibility created because of the auto accident.

Appellant pleaded for exemplary damages because of heedless and reckless conduct on the part of the insured. Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the...