McKay v. State Farm Mut. Auto. Ins. Co.

Decision Date25 October 1995
Docket NumberCivil Action No. H-95-4001.
Citation933 F. Supp. 635
PartiesGillian M. McKAY, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
CourtU.S. District Court — Southern District of Texas

Daniel L. McKay, Krell & Torigian, Houston, TX, for plaintiff.

Katherine Dudas Mackillop, Fulbright & Jaworski, Houston, TX, for defendant.

MEMORANDUM AND ORDER GRANTING SUMMARY JUDGMENT

HARMON, District Judge.

Pending before the Court in the above referenced action seeking a declaratory judgment that Defendant State Farm Mutual Automobile Insurance Company breached an automobile insurance policy issued to Plaintiff Gillian M. McKay is Defendant's motion for summary judgment (instrument # 12).

Plaintiff's policy provides in relevant part, PART D — COVERAGE FOR DAMAGE TO YOUR AUTO INSURING AGREEMENT
A. We will pay for direct and accidental loss to your covered auto, including its equipment, less any applicable deductible shown in the declarations. However, we will pay for loss covered by collision only if the Declarations indicate that Collision Coverage (Coverage D2) is provided.
B. Collision means the upset, or collision with another object of your covered auto. However, loss caused by the following are not considered collision and are covered only if the Declarations indicate that Coverage D1 is provided:
1. Missiles or falling objects;
2. Fire;
3. Theft or larceny;
4. Explosion or earthquake;
5. Windstorm;
6. Hail, water, or flood;
7. Malicious mischief or vandalism;
8. Riot or civil commotion;
9. Contact with bird or animal;
10. Breakage of glass.
If breakage of glass is caused by a collision or if loss is caused by contact with a bird or animal, you may elect to have it considered a loss caused by collision.

Plaintiff asserts claims for breach of contract, misrepresentation, fraud failure to investigate and evaluate the claim in good faith, breach of good faith and fair dealing, brief of fiduciary duty, mental anguish, violations of articles 21.21 §§ 4(2), 4(4), and 16 of the Texas Insurance Code1 and sections 17.45(5), 17.46, and 17.50 of the Texas Deceptive Trade Practices Act.

Plaintiff Gillian McKay purchased an automobile insurance policy containing comprehensive property damage coverage, but no collision coverage, for her Blazer. On March 24, 1995, when Plaintiff's son was driving the vehicle on a freeway at night in Houston, Texas, a man darted onto the freeway, and, although the driver swerved to attempt to avoid hitting the man, the Blazer and the man collided. The man, who was subsequently run over by two other vehicles and died at Ben Taub Hospital, was determined to have had a blood alcohol level of 0.148 around the time. Defendant states that it denied Plaintiff's subsequent property damage claim because Plaintiff did not have collision coverage and because it was not covered under the comprehensive coverage that she had purchased.

Plaintiff's original petition alleges that because the man who ran into the side of the Blazer is not an "object," there was no "collision" under the definition of the policy, which therefore unambiguously provides for coverage of "direct and accidental loss" to the damaged Blazer. Defendant moves for summary judgment on Plaintiff's multiple causes of action. First Defendant maintains that under the terms of the policy and the law in Texas, Plaintiff did not have collision coverage, the accident was a collision, and therefore Defendant is entitled to summary judgment as a matter of law. The policy defines "collision" as "the upset, or collision with another object of your covered auto." According to the Texas Supreme Court, in reviewing a policy with very similar language and adopting the definition of the Century Dictionary Cyclopedia, a collision is "the meeting and mutual striking or clashing of two moving bodies, or of a moving body with a stationary one." Providence Washington Insurance Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379, 382 (1951) (holding that the force of floodwaters against an automobile was a collision within the terms of the policy). See also Great American Insurance Co. v. Lane, 398 S.W.2d 592, 593 (Tex.Civ.App. — Dallas 1965, writ ref'd n.r.e.).

Plaintiff's complaint alternatively alleges that coverage exists under the policy for malicious mischief, vandalism, and contact with bird or animal, and that the intoxicated man's conduct constituted such. Plaintiff contends that to show that a defendant was motivated by malice, a plaintiff need not prove that the defendant acted with personal spite but only that the defendant committed negligent acts in reckless disregard of another's rights and with indifference to injury to that party. Missouri Pacific R. Co. v. Lemon, 861 S.W.2d 501 (Tex.App. — Houston 14th Dist. 1993, no writ). Plaintiff argues that the man who ran into the freeway and damaged the Blazer acted in a negligent manner and with reckless disregard for the welfare of the drivers on the freeway.

Defendant maintains that there is no coverage here under the exception for "contact with a bird or animal" because "in the language of the law, the word `animal' is used to mean all animal life other than man and signifies an inferior or irrational sentient being, general, but not necessarily possessed of the power of self motivation." 4 Am.Jur.2d § 1 (1995). See also Black's Law Dictionary at 80 (1979); Bernardine v. City of New York, 182 Misc. 609, 44 N.Y.S.2d 881, 883 (S.Ct.N.Y.1943), rev'd on other grounds, 268 A.D. 444, 51 N.Y.S.2d 888 (1944), aff'd, 294 N.Y. 361, 62 N.E.2d 604 (1945); Tate v. Ogg, 170 Va. 95, 195 S.E. 496, 499 (1938) ("Viewed in its broadest sense, the word `animal' in the language of the law is used in contra-distinction to a human being and signifies an inferior living creature, generally having the power of self-motion."); Tillery v. Crook, 297 S.W.2d 9, 13 (Ct.App.Mo.1957), Defendant further contends that because the policy couples animal with bird, the language means animal other than man.

Regarding Plaintiff's insistence that the pedestrian caused the damage to the Blazer by "malicious mischief" or vandalism, Defendant argues that vandalism or malicious mischief are intentional acts and there is no evidence that the pedestrian intended to damage McKay's car by running across the freeway late at night. Indeed the pedestrian's action does not constitute vandalism or malicious mischief, which has been defined as a "wanton, intentional act committed with the fixed purpose to damage or destroy property." Imperial Casualty and Indemnity Company v. Terry, 451 S.W.2d 303, 305 (Tex. Civ.App. — Tyler 1970, no writ); Hunter v. National County Mutual Fire Ins. Co., 687 S.W.2d 110, 113 (Tex.App. — Dallas 1985, no writ).

Defendant also insists that it did not commit bad faith under common law or statute because it had a reasonable basis for denying the claim. Aranda v. Insurance Co. of North America, 748 S.W.2d 210, 213 (Tex. 1988); Walker v. Federal Kemper Life Assurance Co., 828 S.W.2d 442, 445 (Tex.App. — San Antonio 1992, writ denied); Love of God Holiness Temple Church v. Union Standard Insurance Co., 860 S.W.2d 179, 182 (Tex. App. — Texarkana 1993, writ denied); Progressive County Mutual Ins. Co. v. Boman, 780 S.W.2d 436, 440-41 (Tex.App. — Texarkana 1989, no writ); Beaumont Rice Mill, Inc. v. Mid-American Indemnity Ins. Co., 948 F.2d 950, 952 (5th Cir.1991). The denial of a claim is not unreasonable if there is "a legitimate question of policy construction." National Union Fire Ins. Co. of Pittsburgh, Pennsylvania v. Hudson Energy Co., 780 S.W.2d 417, 426 (Tex.App. — Texarkana 1989), aff'd, 811 S.W.2d 552 (Tex.1991).

Defendant also declares that there is no evidence that it made misleading, untrue or deceptive advertisements or is attempting to cause unreasonable restrains or monopolies in the insurance business in violation of Article 21.21 §§ 4(2) and (4) of the Texas Insurance Code. Nor does Plaintiff have a private cause of action under Article 21.21-2 of the Texas Insurance Code and Texas Administrative Code 21.3. Allstate Ins. Co. v. Watson, 876 S.W.2d 145, 148 (Tex.1994); Lone Star Life Ins. Co. v. Griffin, 574 S.W.2d 576, 580 (Tex.Civ.App. — Beaumont 1978, writ ref'd n.r.e.); Hi-Line Electric Co. v. Travelers Ins. Co., 587 S.W.2d 488, 489 (Tex.Civ. App. — Dallas 1979, writ ref'd n.r.e.).

No Texas court has recognized Plaintiff's claim that there is a fiduciary duty owed by an insurer to an insured as a matter of law. Caserotti v. State Farm, 791 S.W.2d 561, 564 (Tex.App. — Dallas 1990, writ denied).

Moreover, because all Plaintiff's claims of misrepresentation and fraud stem from Defendant's acts after Plaintiff purchased her policy, there was no inducement or reliance.

Finally Defendant maintains that it is not estopped from denying coverage because its denial letter did not include a statement that there was also no coverage under the malicious mischief or vandalism provision. Estoppel cannot be used "to create insurance coverage when none exists by the terms of the policy." Texas Farmers Ins. Co. v. McGuire, 744 S.W.2d 601, 602-03 (Tex.1988).

Plaintiff responds that Defendant is attempting to exclude coverage under the policy by claiming that she should have purchased another policy for collision insurance. The comprehensive policy states, "We will pay for direct and accidental loss...." Defendant has the burden of proving that coverage in this instance should be excluded. Tex. Ins.Code Ann. art. 21.57 (Vernon 1981). To do so, Defendant must show, but has failed to do so, that a human being is an "object" but not an "animal" under the definition of "collision" in the policy and that Plaintiff's definition of "collision" in the policy and that Plaintiff's property damage was not the result of "contact" with an "animal." Neither "object" nor "animal" is defined in the policy. When a term in an insurance policy is not defined, the term will be given the meaning that an "ordinary...

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