Ruiz v. Gov't Emp. Ins. Co., 08-98-00311-CV

• Decision Date: 16 September 1999
• Docket Number: No. 08-98-00311-CV,08-98-00311-CV
• Citation: 4 S.W.3d 838
• Parties: (Tex.App.-El Paso 1999) RAUL RUIZ and HERMILINDA QUESADA DE RUIZ, Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 838

4 S.W.3d 838 (Tex.App.-El Paso 1999)

RAUL RUIZ and HERMILINDA QUESADA DE RUIZ, Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee.

No. 08-98-00311-CV.

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS.

September 16, 1999.

Appeal from County Court at Law No. 5 of El Paso County, Texas (TC# 97-652) Before Panel No. 4 Barajas, C.J., Larsen, and McClure, JJ.

O P I N I O N

ANN CRAWFORD McCLURE, Justice

Raul Ruiz and Hermilinda Quesada de Ruiz (the Ruizes) appeal from the entry of a summary judgment in favor of Government Employees Insurance Company (GEICO). Finding no error, we affirm.

STANDARD OF REVIEW

Effective September 1, 1997, the Texas Supreme Court adopted Texas Rule of Civil Procedure 166a(i). Rule 166a(i) provides:

After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

The new rule shifts the burden from the movant, who previously had to establish its right to summary judgment as a matter of law, to the respondent, who now must present sufficient summary judgment evidence to create a fact issue. Two recent opinions issued by the San Antonio Court of Appeals state the applicable standard of review for no-evidence summary judgments: "`A no-evidence summary judgment is essentially a pretrial directed verdict,' and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict." Taylor-Made Hose, Inc. v. Wilkerson, No. 04-97-01025-CV, 1999 WL 90021, at *2 (Tex.App.--San Antonio February 24, 1999, no pet. h.), opinion on reh'g, quoting Moore v. K Mart Corporation, 981 S.W.2d 266, 269 (Tex.App.--San Antonio 1998, writ denied); see also Judge David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous.L.Rev. 1303, 1356 (1998)(no evidence summary judgment is essentially pretrial directed verdict).

A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. See TEX.R.CIV.P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, U.S. , 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a meresurmise or suspicion" of fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983); Taylor-Made, 1999 WL 90021, at *2.

Traditionally, summary judgment is proper if the record demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See TEX.R.CIV.P. 166a(c). The purpose of summary judgment is the elimination of patently unmeritorious claims or untenable defenses; it is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact. Collins v. County of El Paso, 954 S.W.2d 137, 145 (Tex.App.--El Paso 1997, pet. denied); Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). Unlike other final judgments reviewed on appeal, we do not review the summary judgment evidence in the light most favorable to the judgment of the trial court. Collins, 954 S.W.2d at 145; Continental Savings Association v. Collins, 814 S.W.2d 829, 831-32 (Tex.App.--Houston [14th Dist.] 1991, no writ). As explained in Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985), the movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law. In deciding whether there is a disputed material fact issue precluding summary judgment, all admissible evidence favorable to the non-movant will be taken as true; every reasonable inference must be indulged in favor of the non-movant, and all doubts resolved in the non-movant's favor. Collins, 954 S.W.2d at 145.

FACTUAL SUMMARY

Reviewing the facts in the light most favorable to the nonmovant, on or about January 13, 1996, Hermilinda Quesada de Ruiz was driving her 1996 Nissan Maxima in Ciudad Juarez, Chihuahua, Mexico, when she was involved in an automobile accident. The accident occurred within ten miles of the United States/Mexico border. As a result of the accident, Mrs. Ruiz incurred medical expenses arising from her injuries. The Ruizes contacted GEICO to advise of the accident and inquire as to coverage. GEICO responded that in accordance with the Ruizes' policy, there was no coverage for the accident because it occurred in Mexico. In May 1996, the Ruizes received a letter from GEICO denying any and all liability. The Ruizes filed suit on February 25, 1997, claiming that GEICO committed fraud because it negligently failed to disclose any limits of their coverage as it pertained to location. GEICO filed its motion for summary judgment which was granted by the trial court on July 9, 1998.

THE POLICY

The insurance policy purchased by the Ruizes contains the following provision regarding the policy period and territory:

POLICY PERIOD AND TERRITORY

A. This policy applies only to accidents and losses which occur:

1. During the policy period as shown in the Declarations; and

2. Within the policy territory.

B. The policy territory is:

1. The United States of America, its territories or possessions;

2. Puerto Rico; or

3. Canada.

This policy also applies to loss to, or accidents involving, your covered auto while being transported between their ports. [Emphasis in original.]

The Ruizes maintain that the trial court erred in granting GEICO summary judgment because the contract is ambiguous and a question of fact exists as to whether or not the policy precluded coverage for the damages they suffered.

NEGLIGENT MISREPRESENTATION/FRAUD

Initially, the Ruizes claim that GEICO committed fraud and negligent misrepresentation by failing to disclose the limits of the policy. The Ruizes maintain that "[i]ts inconceivable that GEICO can market, promote, sell and collect premiums from drivers in the United States/Mexico border area and then, upon the occurrence of an accident on the Mexican side of the border, inform them that they are not covered in Mexico."

An insurance policy is a contract entered into between the parties whereby each party becomes bound by the terms of the agreement. McCalla v. State Farm Mut. Auto. Ins. Co., 704 S.W.2d 518, 520 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). In McCalla, the insured was involved in an automobile accident in Jamaica and filed suit to recover insurance benefits from his insurance company. The Court granted summary judgment to the insurance company because the policy only covered accidents occurring in the United States and its territories and possessions, Puerto Rico and Canada. The Ruizes argue that McCalla is distinguishable because the accident in McCalla occurred in Jamaica and does not address the issue of whether or not individuals are entitled to coverage when they operate their vehicles in an area that could easily be foreseen by the insurer as the area in which the vehicle would be operated. We disagree. Texas courts have previously declined to impose on an insurance agent a duty to explain policy terms to an insured. Garrison Contractors, Inc. v. Liberty Mut. Ins. Co., 927 S.W.2d 296, 300 (Tex.App.--El Paso 1996), aff'd, 966 S.W.2d 482 (Tex. 1998). An insured has a duty to read the policy and, failing to do so, is charged with knowledge of the policy terms and conditions. Id. The insurance policy purchased by the Ruizes clearly does not cover losses incurred in Mexico. When the Ruizes purchased their insurance, they knew or should have known that it did not cover accidents which occurred outside the jurisdictional limits stated in the policy; specifically, that it did not cover accidents in Mexico. See McCalla, 704 S.W.2d at 519. If the Ruizes wanted a policy that included coverage in Mexico, they could have negotiated with an insurer for this extended coverage and paid the requisite premium. See McCalla, 704 S.W.2d at 519-20. Having failed to do so, they are bound by the terms of the agreement.

POLICY AMBIGUITY

The Ruizes also argue that the language in the policy is ambiguous and could easily be interpreted by the insured as providing coverage while the vehicle was being transported "between ports of entry", of which there are five in the El Paso area. Whether a contract, like an insurance policy, is ambiguous is a legal question decided by examining the entire contract in light of the circumstances present when the parties entered into the contract. State Farm Fire and Cas. Co. v. Vaughan, 968 S.W.2d 931, 933 (Tex. 1998). A policy is unambiguous as a matter of law if the court can give it a definite legal meaning. Id. On the other hand, if a policy is subject to more than one reasonable interpretation, we must adopt the construction most favorable to the insured when we resolve the uncertainty. Id. Not every difference in interpretation of a contract or an insurance policy amounts to an ambiguity. Id. Here, we must decide whether more than one reasonable interpretation exists about the term "ports." The Ruizes argue that the term could...