McDonald v. Southern County Mut. Ins. Co.

• Decision Date: 24 November 2004
• Docket Number: No. 01-03-00646-CV.,01-03-00646-CV.
• Citation: 176 S.W.3d 464
• Parties: Edward Lee McDONALD and Bobby J. Robinson, Appellants, v. SOUTHERN COUNTY MUTUAL INSURANCE COMPANY, Appellee.
• Court: Texas Supreme Court

176 S.W.3d 464

Edward Lee McDONALD and Bobby J. Robinson, Appellants, v. SOUTHERN COUNTY MUTUAL INSURANCE COMPANY, Appellee.

No. 01-03-00646-CV.

Court of Appeals of Texas, Houston (1st District.).

November 24, 2004.

Charles L. Levy, Waco, Craig Muessig, Law Office of Craig Muessig, Baytown, Marc G. Rosenthal, Austin, for Appellant.

Jack McKinley, Robert L. Ramey, Ramey, Chandler, McKinney & Zito, P.C., Houston, for Appellee.

Panel consists of Justices TAFT, JENNINGS, and BLAND.

OPINION

JANE BLAND, Justice.

In an insurance coverage bench trial arising from an auto-pedestrian accident, the trial court rendered a judgment in favor of appellee, Southern County Mutual Insurance Co. (Southern County), denying coverage. We hold that (1) appellants, Edward Lee McDonald and Bobby J. Robinson, were not "occupying" a motor vehicle at the time of their injuries and therefore did not qualify as insureds under the insurance policy at issue; and (2) the accident did not arise out of the maintenance or use of a motor vehicle. We therefore affirm.

The Facts

In August 2001, at about 9:30 p.m., McDonald drove a tractor, owned by Robert Cooper. The tractor pulled a trailer, owned by All Points Holdings ("All Points"), a trucking company. McDonald drove the tractor-trailer rig under All Points's authority. Robinson accompanied McDonald as a driver's helper. While traveling westbound on Interstate 10, approaching Katy, Texas, the tractor's right front tire blew out. McDonald pulled over and parked the rig in the grass on the side of I-10, between I-10 and the service road. McDonald and Robinson tried to telephone for help, but their cellular telephone did not work.

The two men walked away from the rig, and planned to walk until they reached a place where they could seek assistance for repairing the flat tire. The men crossed the I-10 westbound service road and proceeded westward along the north side of the service road, in the direction of, and with their backs to, the traffic. Intending to return to the vehicle later that evening, they left their personal belongings in the tractor, including clothing, a briefcase, a log book, and a notebook.

About five minutes after beginning their journey along the feeder road, driver Francisco Rangel struck the two men from behind. The impact caused injuries to both men, although the record does not contain the details of their injuries. Both men were unsure of the precise distance they had traveled before the impact. Robinson testified they had walked "a few minutes," but did not know how much distance they had covered. McDonald testified they had walked "about five minutes or less," for "maybe 50 feet or better."

Rangel carried the minimum limits of liability insurance coverage on his car—$20,000 per person and $40,000 per accident. Southern County had issued a Texas Truckers Policy to All Points that includes uninsured/underinsured motorist ("UIM") coverage for the tractor. McDonald and Robinson filed a claim for underinsured motorist coverage against the Southern County policy, alleging that Rangel negligently caused their injuries, and that they had exhausted the minimum limits under Rangel's liability policy.

Southern County's UIM policy extends coverage to:

damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by an insured, or property damage caused by an accident.

Part C of the policy defines an "insured" to include, in addition to the named insured, designated beneficiaries, family members, and "any other person occupying a covered auto." The parties agree that neither McDonald nor Robinson is a named insured, a family member, or a "designated person" under the policy. They further agree that the tractor and trailer are "covered autos." McDonald and Robinson claim that they both qualify as "[a]ny other person occupying a covered auto." The policy defines "occupying" as "in, upon, getting in, on, out or off."

The Procedural History

Southern County sued for a declaratory judgment denying coverage for McDonald's and Robinson's claims. McDonald and Robinson counterclaimed against Southern County for uninsured motorist coverage for their injuries. The trial court realigned the parties for trial. The parties agreed to try the insurance coverage portion of the suit to the court in a bench trial first, and later try the bodily injury claims to a jury, if necessary.

After hearing the evidence, the trial court rendered a judgment that denied insurance coverage and ordered that McDonald and Robinson take nothing on their UIM claims. In a separate instrument, the trial court entered findings of fact and conclusions of law. Pertinent to our analysis here, the trial court found:

4. While westbound on Interstate 10 approaching Katy, Texas, the right front tire of the tractor blew out.

5. McDonald then stopped the tractor-trailer rig and parked it on the side of Interstate 10, between the freeway and the service road.

6. McDonald and Robinson did not attempt to repair or replace the blown-out tire themselves, but tried to call All Points for assistance using a cell phone, which did not operate.

7. McDonald and Robinson then crossed the Interstate 10 westbound service road and began to walk along the north side of the Interstate 10 service road (in the direction of traffic, on the side of the service road opposite the freeway) in search of a location where they could obtain or call for assistance to replace or repair the flat tire.

8. While walking alongside the service road, in the direction of and with their backs to traffic, McDonald and Robinson were struck from behind by a vehicle driven by Francisco Javier Rangel, and were injured.

* * *

14. For McDonald or Robinson to be an "insured" within the scope of UIM coverage, he had to be "occupying" the tractor or trailer at the time he suffered a "bodily injury," according to the definition of "insured" in part C. ("Who Is An Insured") of the TE 04 09D endorsement:

You and any designated person and any family member of either.

Any other person occupying a covered auto.

15. Neither McDonald nor Robinson is a "designated person" in the policy that Southern County issued to All Points.

16. The TE 04 09D endorsement defines "occupying," stating that it "means in, upon, getting in, on, out or off."

17. McDonald and Robinson were not occupying the tractor or trailer at the time they were struck by the underinsured motorist on the side of the freeway service road.

18. McDonald's and Robinson's injuries did not arise out of use of the tractor or trailer. Their driving "use" had ceased. The blowout of the tractor tire and resulting need for maintenance was a condition precedent to them being hit by Rangel's car while walking to obtain help, but their walk was not itself "maintenance" of the vehicle and their ensuing auto-pedestrian accident was not a consequence of maintenance.

Pertinent to this appeal, the trial court concluded:

1. McDonald and Robinson were not occupying the tractor or trailer at the time they were struck by the underinsured motorist on the side of the freeway service road.

2. Because neither McDonald nor Robinson was occupying the tractor or trailer at the time he suffered "bodily injury," neither qualifies as an "insured" as defined in the UM/UIM endorsement, and neither has UIM insurance under Southern County's policy.

3. McDonald's and Robinson's injuries did not arise out of the use of the tractor or trailer.

4. McDonald's and Robinson's driving "use" of the tractor had ceased at the time of the auto-pedestrian accident that injured them.

5. The blowout of the tractor tire and resulting need for maintenance was a condition precedent to McDonald and Robinson being hit by Rangel's car while walking to obtain help, but their walk was not itself "maintenance" of the vehicle.

6. McDonald's and Robinson's auto-pedestrian accident, while en route to a location where they could obtain assistance in repairing or replacing the tractor tire, does not have the causal relationship to maintenance of the tractor required by the phrase "arising out of."

7. Supposing McDonald's and Robinson's injuries arose out of maintenance of the tractor, that would not create UIM coverage for them because the policy's "arising out of" requirement is part of the policy's grant of liability coverage—not UIM coverage.

8. Even if the "arising out of" requirement in the policy's grant of liability coverage were also part of the UIM grant of coverage, McDonald and Robinson would still have to qualify as "insureds" under the UIM endorsement's definition before that standard applied to them, and they cannot do so because they were not "occupying" an insured auto when they suffered "bodily injury."

On appeal, McDonald and Robinson contend that (1) Robinson and McDonald were covered under the Southern County policy at the time of the accident as they were "occupying" the tractor when the underinsured motorist hit them; or (2) alternatively, Robinson and McDonald are insureds under state law, as they were within a reasonable geographic proximity to the tractor, and engaged in an activity necessarily related to the use or maintenance of the tractor.

The Standard of Review

In an appeal from a bench trial, a trial court's findings of fact have the same weight as a jury's verdict. Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex.App.-Houston [1st Dist.] 1996, writ denied). We review the legal and factual sufficiency of the evidence by the same standards applied in reviewing evidence supporting a jury's answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). If a party attacks the legal sufficiency of an adverse finding on an issue as to which he bears the burden of proof, then he must demonstrate on appeal that the evidence conclusively established all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex....