Sparks v. Aetna Life & Cas. Co.

• Decision Date: 16 June 1977
• Docket Number: No. 19154,19154
• Citation: 554 S.W.2d 228
• Parties: Lura M. SPARKS, Appellant, v. AETNA LIFE AND CASUALTY COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 228

554 S.W.2d 228

Lura M. SPARKS, Appellant, v.AETNA LIFE AND CASUALTY COMPANY et al., Appellees.

No. 19154.

Court of Civil Appeals of Texas, Dallas.

June 16, 1977.

Tom O'Connell, Plano, for appellant.

Richard E. Harrison, Nall, Kyle, Harrison & Nall, Sherman, for appellees.

ON MOTION FOR REHEARING OUR FORMER OPINION IS WITHDRAWN AND

THE FOLLOWING OPINION SUBSTITUTED

AKIN, Justice.

This is an appeal from a summary judgment granted Aetna Life and Casualty Company and from a judgment rendered on stipulated facts pursuant to Tex.R.Civ.P. 263 in favor of Southern County Mutual Insurance Company.Plaintiff Sparks sued the insurance companies on a judgment which she had previously obtained against Rodney Pinset, who was an omnibus insured under a policy issued by Southern County.When this suit was instituted, Aetna alone was named as a defendant; however, plaintiff then amended her petition, deleting all reference to Aetna and naming Southern County as the sole defendant.Since the summary judgment in favor of Aetna was rendered after plaintiff had amended her petition dropping Aetna as a defendant, we hold that the trial court was without jurisdiction to render summary judgment for Aetna.Accordingly, we vacate the summary judgment and dismiss as to Aetna.With respect to the judgment rendered for Southern County, we hold that waiver by the insurer as to one insured does not waive its policy defenses to another insured.Accordingly, we affirm the judgment rendered in favor of Southern County.

I.The Summary Judgment for Aetna

Plaintiff filed her original petition on September 24, 1974, and filed her first amended original petition on May 8, 1975.The amended petition was substantially identical to the original petition except that it named Southern County as defendant in place of Aetna.Aetna's motion for summary judgment was heard on April 4, 1975 and granted on July 7.Thus, the trial court did not rule on Aetna's motion until after plaintiff filed her amended petition which deleted Aetna as a defendant.The amended petition had the effect of dismissing Aetna from the cause, without prejudice, and the trial court was, therefore, without jurisdiction to pass on the merits of the controversy between Sparks and Aetna.Tex.R.Civ.P. 65;Valdez v. Gill, 537 S.W.2d 477, 480(Tex.Civ.App. San Antonio1976, writ ref'd n. r. e.).Accordingly, we vacate the summary judgment rendered in favor of Aetna and dismiss Aetna as a party to this litigation.

II.The Judgment for Southern County

This suit is predicated on an automobile accident which occurred on January 31, 1973, and involving cars driven by plaintiff and Pinset.Pinset was driving a car owned by John Brown with Brown's permission.The car was covered by a liability policy issued to Brown by Southern County, which covered any person operating the insured automobile with the owner's permission.Pinset was, therefore, an omnibus insured under the policy.Sparks sued Brown and Pinset on March 22, 1974.A default judgment for $10,000 was taken against Pinset, and Sparks dismissed the action against Brown.Sparks is now seeking to recover against Southern County on the basis of the judgment rendered against the omnibus insured.

Southern County asserts that it is not liable to to Sparks because Pinset did not comply with a condition precedent to the company's liability which required Pinset to furnish the insurer with written notice of any accident as soon as practicable.Since Sparks cannot assert any greater rights against Southern County than could Pinset, the insurer may now assert any defense which it has against its insured.Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95, 96(1955).

Appellant Sparks argues that because Brown, the named insured, gave oral notice to Southern County and because Southern County investigated the accident, this notice inured to the benefit of the omnibus insured, Pinset, and that since sufficient notice was given, Southern County had a duty to defend Pinset.Since Southern County failed to do so, Sparks contends that the insurer is now liable on the judgment.In support of her contention, Sparks cites Employers Casualty Co. v. Glens Falls Ins. Co., 484 S.W.2d 570, 576(Tex.1972), which held that timely written notice by the named insured satisfied the purpose of the insurance contract's written notice clause and that additional notice was not required from the omnibus insured....