State Farm Mut. Auto. Ins. Co. v. Francis, 01-83-0644-CV

• Decision Date: 12 April 1984
• Docket Number: No. 01-83-0644-CV,01-83-0644-CV
• Citation: 669 S.W.2d 424
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Gary FRANCIS, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 424

669 S.W.2d 424

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Gary FRANCIS, Appellee.

No. 01-83-0644-CV.

Court of Appeals of Texas Houston (1st Dist.).

April 12, 1984.

Rehearing Denied May 10, 1984.

Arthur M. Glover, Hicks, Hirsch, Glover, Robinson & Sheiness, Paul E. Anderson, Jr., Hicks, Hirsch, Glover, Robinson & Sheiness, Ben Ramsey, Ramsey & Murray, Houston, for appellant.

Dale Friend, Kronzer, Abraham, Watkins, Nichols, Ballard & Friend, John R. Leach, III, Kronzer, Abraham, Watkins, Nichols, Ballard & Friend, Houston, for appellee.

Before BASS, COHEN and WARREN, JJ.

OPINION

WARREN, Justice.

This is a suit to establish insurance coverage and to collect from the appellant insurance carrier the damages recovered by the appellee in a trial against an alleged non-named insured.

Appellee filed this suit alleging that the non-insured became an insured under the policy because he was a "user" of the automobile with the permission of the owner who was the named insured. Both sides filed a motion for summary judgment, and after a hearing, the court granted the appellee's motion and denied that of the appellant. We affirm.

On December 9, 1975, Joseph Chevalier, Earl Ellis, and two other men embarked on a hunting trip to Galveston County. Before the trip, a trailer holding a boat and motor, all owned by Earl Ellis, was hooked to a pick-up owned by Joseph Chevalier and insured by the appellant. While Chevalier, as driver, and Ellis, as passenger, were traveling on Highway 45 toward Galveston County, the boat and motor fell from the trailer and struck an automobile being driven by the appellee.

The appellee sued Chevalier and Ellis for personal injuries he received in the collision. The jury found Ellis negligent in failing to properly secure the boat and motor to the trailer, and that the failure to secure was a proximate cause of the accident, but it absolved Chevalier of any negligence. After the appellant declined to pay the judgment on behalf of Ellis, the appellee sued to collect the judgment claiming that Ellis was an insured under Chevalier's insurance policy because he was a permissive "user" as defined in the policy.

The relevant portions of the insurance policy follows:

I. Coverage A-Bodily Injury Liability;

Coverage B-Property Damage Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called "bodily injury," sustained by any person;

B. injury to or destruction of property, including loss of use thereof, hereinafter called "property damage";

arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy...

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Persons Insured. The following are insureds under Part I:

(a) with respect to the owned automobile,

(1) the named insured and any resident of the same household,

(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and

(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a)(1) or (2) above;

(b) with respect to a non-owned automobile,

(1) the named insured,

(2) any relative, but only with respect to a private passenger automobile or trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission or reasonably believed to be with the permission, of the owner and is within the scope of such permission, and

(3) any other person or organization not owning or hiring the automobile, but only with respect to his or its liability because of acts or omissions of an insured under (b)(1) or (2) above.

Definitions. Under Part I:

"named insured" means the individual named as named insured in the declarations and also includes his spouse, if a resident of the same household;

"insured" means a person or organization described under "Persons Insured";

"relative" means a relative of the named insured who is a resident of the same household;

"owned automobile" means

(a) a private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coverage is afforded,

(b) a trailer owned by the named insured....

"non-owned automobile" means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile;

"use" of an automobile includes the loading and unloading thereof;

The main question presented for our determination is whether at the time of the collision Ellis was a "user" as defined in the policy.

The Part I, Coverage B, Persons Insured (a)(2) portion of the policy provides that any person using the insured automobile with the permission of the named insured becomes an insured under the policy if the use is within the scope of the permission granted by the named insured.

Under Definitions, Part I, the policy provides that "use" of an automobile includes the loading and unloading thereof.

Neither side disputes the fact that the trailer,...