Old Amer. County Mut. Fire Ins. v. Sanchez

• Decision Date: 27 June 2002
• Docket Number: No. 03-01-00150-CV.,03-01-00150-CV.
• Parties: OLD AMERICAN COUNTY MUTUAL FIRE INSURANCE COMPANY/Zeferino Sanchez, Appellants, v. Zeferino SANCHEZ/Old American County Mutual Fire Insurance Company, Appellees.
• Court: Texas Court of Appeals

81 S.W.3d 452

OLD AMERICAN COUNTY MUTUAL FIRE INSURANCE COMPANY/Zeferino Sanchez, Appellants, v. Zeferino SANCHEZ/Old American County Mutual Fire Insurance Company, Appellees.

No. 03-01-00150-CV.

Court of Appeals of Texas, Austin.

June 27, 2002.

COPYRIGHT MATERIAL OMITTED

Christopher H. Taylor, James J. Scheske, Shannon H. Ratliff, Akin, Gump,

Strauss, Hauer & Feld, L.L.P., Austin, for appellant.

Glynn C. Turquand, Walters & Turquand, Austin, for appellee.

Before Chief Justice ABOUSSIE, Justices B.A. SMITH and PURYEAR.

ON MOTION FOR REHEARING

DAVID PURYEAR, Justice.

Pursuant to Zeferino Sanchez's motion for rehearing, we grant the motion, withdraw our opinion and judgment rendered November 15, 2001, and substitute the following opinion.

Old American County Mutual Fire Insurance Company ("Old American") sought a declaratory judgment against Zeferino Sanchez that it was not obligated to pay for injuries Sanchez received in an accident. Sanchez filed a counterclaim to receive payment from Old American. Old American moved for summary judgment, which the trial court granted on the ground that Sanchez was "occupying" an owned, but unscheduled vehicle under his insurance policy. Sanchez appeals the grant of summary judgment. We will reverse the trial court's summary judgment in favor of Old American and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On April 11, 1999, Sanchez was injured when an uninsured motorist hit a truck owned by Sanchez but not scheduled as a covered vehicle on his automobile insurance policy. At the time of the accident, Sanchez was underneath the truck working on the gas tank hose. The truck collapsed on Sanchez, severing his spinal cord.

Sanchez sought to recover uninsured motorist coverage ("UM") and personal injury protection coverage ("PIP") from Old American. Sanchez's insurance policy with Old American listed two other vehicles but did not list the truck Sanchez was working under when he was injured. Sanchez's wife purchased the policy, but it listed Sanchez as the only "named insured." On the application, she rejected coverage for PIP and UM and premiums were never assessed for these coverages. Both the PIP and UM provisions of Sanchez's policy exclude coverage for injuries sustained while "occupying" or when "struck by" any vehicle owned by the insured that is not insured under the policy (the "owned-vehicle exclusion"). Old American sought summary judgment on several grounds including that Sanchez was "occupying" his truck at the time of the accident. The trial court granted summary judgment on this ground.

Old American also sought summary judgment on the ground that Sanchez rejected PIP and UM benefits because his wife, an insured under the policy, rejected PIP and UM in writing on the insurance application for Sanchez. Sanchez claims that the rejection was not effective because his wife had purchased and signed the policy instead of him, and his wife was not the "named insured." The trial court denied this ground. Finally, Old American sought summary judgment on the ground that Sanchez was struck by his unscheduled vehicle, thus precluding recovery due to the owned-vehicle exclusion in his policy. Sanchez claims that he was not "struck by" his vehicle for purposes of the owned-vehicle exclusion in his policy because his vehicle was not the striking force responsible for the accident. The trial court did not rule on this ground.

Sanchez now appeals the trial court's grant of summary judgment, and Old American cross-appeals that it was also entitled to summary judgment on the grounds that Sanchez rejected UM and PIP coverage and that Sanchez was "struck by" an owned, but unscheduled vehicle. The case was heard on stipulated facts, thus we are only presented with questions of law.

STANDARD OF REVIEW

The standards for review of a summary judgment are well-established: (1) the movant must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true; and (3) the court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). We review the trial court's decision to grant summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994).

When a trial court grants summary judgment on a specific ground, an appellate court should consider all summary judgment grounds the trial court rules on, that are preserved for review, and that are necessary for a final disposition of the appeal. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625-26 (Tex. 1996). The appellate rules give us authority to consider alternate grounds presented by the movant on which summary judgment could have been granted. TEX. R.APP. P. 43.3; Cincinnati Life, 927 S.W.2d. at 626. Thus, we may review all grounds that the movant presented to the trial court in its motion for summary judgment if they are preserved for appeal. Cincinnati Life, 927 S.W.2d at 626.

DISCUSSION

The Meaning of "Occupying" in PIP and UM Clauses

In his only issue, Sanchez claims that the trial court erred in its determination that Sanchez was "occupying" the unscheduled truck at the time of the accident. According to Sanchez, the term "occupying" as it is defined in the policy does not encompass lying underneath a vehicle while in contact with its gas hose. Old American takes the opposite view.

If Sanchez was occupying his truck at the time of the accident, his claim would be barred because of the owned-vehicle exclusion in his insurance policy.¹ Texas courts have held that the owned-vehicle exclusion is valid for both PIP and UM coverage. See Holyfield v. Members Mut. Ins. Co., 572 S.W.2d 672, 673 (Tex.1978) (PIP); Conlin v. State Farm Mut. Auto. Ins. Co., 828 S.W.2d 332, 336-37 (Tex.App. — Austin 1992, writ denied) (UM).²

The general rules of contract construction govern the interpretation of insurance policies. See Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex.1997). Construing contractual language is a question of law for the courts. State Farm Fire & Cas. Co. v. Vaughan, 968 S.W.2d 931, 933 (Tex.1998). A contract is unambiguous if it can be given a definite or certain legal meaning. Grain Dealers, 943 S.W.2d at 458. Terms in contracts are to be given their plain, ordinary meaning unless the contract shows that particular definitions are used to replace ordinary meaning. See Western Reserve Life Ins. v. Meadows, 152 Tex. 559, 261 S.W.2d 554, 557 (1953).

Under the terms of Sanchez's insurance policy, occupying is defined as "in, upon, getting in, on, out or off." Because Sanchez was neither entering nor exiting the truck, and was not inside or on the truck, he will only be barred from recovery under his policy's exemption if he is found to be "upon" the vehicle. "Upon" is not defined in the policy.

Applying the plain and ordinary meaning of "upon" supports Sanchez's claim that he was not occupying the vehicle. The Second Court of Appeals construed the meaning of "upon" in Hart v. Traders & General Insurance Co., holding that the insured party was occupying the car while resting on the car's fender. 487 S.W.2d at 418-19. The court in Hart assumed that the policy was unambiguous and interpreted "upon" based on its definition in the dictionary. Id. at 418. "Upon" is defined as "on" or "on the surface." Webster's Third New International Dictionary 2517-18 (1986). "On" is defined as being in "position over or in contact with that which supports from beneath," or to indicate "contiguity and dependence with," such as a "fly on the wall." Id. at 1574. "On" is also defined as "in or into the position of being in contact with the upper surface of something or of being supported from beneath by the upper surface," as in "plates on a table." Id. at 1575. These definitions suggest that one needs to be supported by an object to be deemed "on" the object. In contrast, Sanchez was lying on his back holding onto a hose attached to his truck; he was not supported by or dependent on the truck. Sanchez was on the ground, not on the truck.

Old American emphasizes Hart's statement that being in contact with the vehicle is enough to establish occupancy and Hart's statement that a fly on the wall is "upon" the wall. Hart, 487 S.W.2d at 418. However, the court in Hart used the fly on the wall example in the same manner as Webster's Dictionary's definition of "on." Webster's emphasizes that the fly is "contiguous and dependent" with the wall, not merely in contact with the wall. Webster's Dictionary at 1575 (emphasis added). Sanchez was dependent on the ground, not dependent on the truck. Furthermore, the "fly on the wall" phrase in Hart is dictum as the majority of the plaintiff's weight was being supported by the car. Hart, 487 S.W.2d at 416-17. The court so noted:

Here it is not even necessary for us to hold that mere contact with the insured car is sufficient in order to sustain a recovery for a person being "upon" such car within the meaning of the policy. In this case there was far more than mere physical contact between plaintiff and the insured car. At the time he was hurt practically the entire weight of the plaintiff's body was being supported from beneath by the insured car ...

Id. at 420.

In contrast, the entire weight of Sanchez's body was being supported from beneath by the ground, not by his truck. In addition, we note that the Hart court defined occupying so as to provide coverage for the injured party, not to deny coverage. At the end of Hart, the court distinguishes its opinion from Pennsylvania National Mutual Casualty Insurance Co. v. Bristow, 207 Va. 381, 150 S.E.2d 125 (1966), where it was held that a man leaning over the engine while touching the...