State Farm Mut. Ins. Co. v. Peck

• Decision Date: 30 May 1995
• Docket Number: No. 07-94-0085-CV,07-94-0085-CV
• Parties: STATE FARM MUTUAL INSURANCE COMPANY, Appellant, v. Emma S. PECK and American States Insurance Company, Appellees.
• Court: Texas Court of Appeals

Page 910

900 S.W.2d 910

STATE FARM MUTUAL INSURANCE COMPANY, Appellant, v. Emma S. PECK and American States Insurance Company, Appellees.

No. 07-94-0085-CV.

Court of Appeals of Texas,

Amarillo.

May 30, 1995.

Rehearing Denied June 21, 1995.

George L. Thompson, III, Thompson & Thomas, Ralph H. Brock, Lubbock, for appellant.

John Simpson, Splawn & Simpson, Jack O. Nelson, Jr., Nelson & Nelson, Lubbock, E. Thomas Bishop, Erik E. Ekvall, Alexander N. Beard, E. Thomas Bishop, Dallas, for appellees.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

DODSON, Justice.

The issue presented by this appeal is whether a dog bite occurring inside an automobile constitutes an "auto accident" under an auto liability insurance policy that does not define the term "auto accident." Answering in the negative, we affirm in part, and reverse and render in part.

The record shows that Emma S. Peck, the insured, used her vehicle on May 10, 1991, to take her dog to the dog groomers and the veterinarian. Isaiah Jacob Salazar was a passenger in Peck's vehicle and sat in the back seat with the dog. The dog bit Salazar on the way from the dog groomers to the veterinarian. Salazar, allegedly, sustained severe lacerations to his face as a result of the dog bite. Peck's vehicle did not collide with any other vehicle or object and sustained no physical damage as a result of the occurrence.

Norma Irene Lopez, individually, and as next friend for Salazar, filed suit against Peck for personal injury damages sustained as a result of the dog bite. Lopez alleged that Peck was negligent in failing to confine and restrain the dog in a secure place while Salazar was under her care and supervision.

Appellant, State Farm Mutual Insurance Company ("State Farm"), had issued an automobile liability insurance policy ("the auto policy") to Peck, which was in full force and effect on the date of the alleged injury. The vehicle used by Peck on the date of the incident was insured under the auto policy. The liability coverage section of the auto policy provides that State Farm "will pay damages for bodily injury or property damage State Farm filed this declaratory judgment action against Peck seeking a determination that it had no duty to defend Peck or pay any judgment that might be rendered against her in the personal injury suit filed by Lopez. State Farm joined American States Insurance Company ("American States"), who was Peck's homeowner's insurance carrier.

for which any covered person becomes legally responsible because of an auto accident." (Emphasis added). As a result, Peck looked to State Farm to defend her in the law suit filed by Lopez.

Peck filed a general denial to State Farm's declaratory judgment action and counterclaimed against State Farm for attorney's fees. Peck also filed a cross-action against American States for attorney's fees. Peck sought no other affirmative action against State Farm or American States.

American States responded to State Farm's declaratory judgment action and Peck's cross-action by a general denial and an affirmative assertion that Salazar's alleged injuries "arose out of the use of" Peck's vehicle and that such injuries were excluded from coverage under the homeowner's policy issued to Peck. Also by its pleadings, American States sought its attorney's fees.

After reviewing the stipulated facts, pleadings, and arguments of counsel, the trial court ruled that State Farm had a duty to defend Peck and that American States did not have such a duty. State Farm perfected this appeal from the trial court's judgment.

By its first point of error, State Farm contends the trial court erred in rendering judgment that American States had no duty to defend Peck under its homeowner's policy. In that regard, we point out that an appealing party may not complain of errors which do not injuriously affect it or which merely affect the rights of others. Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87, 92 (Tex.1973). Thus, because the judgment declaring that American States has no duty to defend Peck under the homeowner's policy does not affect the rights or obligations of State Farm, it cannot complain of that portion of the judgment. Likewise, American States has no standing to present arguments in support of the portion of the judgment declaring that State Farm has a duty to defend Peck in the underlying personal injury suit pursuant to the terms of the auto policy.

Any error in the trial court's judgment concerning American States' duty to defend Peck in the underlying personal injury suit was a matter for Peck to challenge on appeal since that portion of the judgment was adverse to her and involved only her rights and those of American States, a co-appellee. Id.; see also Sheldon L. Pollack Corp. v. Falcon Ind., Inc., 794 S.W.2d 380, 384-85 (Tex.App.--Corpus Christi 1990, writ denied); Southwestern Bell Tel. Co. v. Aston, 737 S.W.2d 130, 131 (Tex.App.--San Antonio 1987, no writ). Here, Peck did not raise any cross-points or perfect an appeal challenging the trial court's judgment as it pertained to her and American States. Hence, any error concerning that portion of the judgment is waived. Consequently, the primary question preserved for this Court's review is whether the trial court erred in declaring that State Farm has a duty to defend Peck under the auto policy. Point one is overruled.

By its second and third points of error, State Farm contends the trial court erred in rendering judgment that it had a duty to defend Peck under the auto policy. We agree.

In essence, Peck claims the term "auto accident" is ambiguous and asserts that "[i]f a contract of insurance is susceptible to more than one reasonable interpretation, we must resolve the uncertainty by adopting the construction that most favors the insured." We acknowledge that insurance policies are strictly construed in favor of the insured in order to avoid exclusion of coverage. Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984); Ramsay v. Maryland Am. General Ins. Co., 533 S.W.2d 344, 349 (Tex.1976). Nevertheless, this rule only applies when the language in the policy is ambiguous. Puckett, 678 S.W.2d at 938; Ranger Ins. Co. v. Bowie, 574 S.W.2d 540, 542 (Tex.1978); Transport Insurance Co. v. Standard Oil Co. of Texas, 161 Tex. 93, 337 S.W.2d 284, 288 (1960). Conversely, unambiguous terms Disagreement over the interpretation of an instrument does not automatically make the instrument ambiguous. Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726, 727 (Tex.1981). Whether an insurance policy is ambiguous is a question of law for the court to decide. Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983). A contract is ambiguous when its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning. Id. at 393. However, if the policy is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous. Id.

used in an insurance contract are given their ordinary and generally accepted meaning unless the policy shows the words were meant in a technical or different sense. Security Mut. Cas. Co. v. Johnson, 584 S.W.2d 703, 704 (Tex.1979). In this instance, neither party claims the term is used in a "technical or different sense."

Here, the liability coverage section of the auto policy provides that State Farm will assume the responsibility to pay for damages arising out of an "auto accident." The term "auto accident" is not defined in the policy. Although each party offers its own interpretation of the words "auto accident," we conclude that the term is plain and unambiguous as a matter of law. Thus, we must apply its ordinary and generally accepted meaning.

Because we have found no Texas cases defining the term "auto accident," we turn to cases from other jurisdictions for persuasive assistance. We are persuaded that the ordinary and generally accepted meaning of the term "auto...