Upshaw v. Pleasant, 04-90-00633-CV

• Decision Date: 29 May 1991
• Docket Number: No. 04-90-00633-CV,04-90-00633-CV
• Citation: 812 S.W.2d 353
• Parties: Amy UPSHAW and Greg Upshaw, Individually and as Independent Executors of the Estate of George Upshaw, Appellants, v. John D. PLEASANT, Brett Field, and the Trinity Companies, Appellees.
• Court: Texas Court of Appeals

Page 353

812 S.W.2d 353

Amy UPSHAW and Greg Upshaw, Individually and as Independent Executors of the Estate of George Upshaw, Appellants, v. John D. PLEASANT, Brett Field, and the Trinity Companies, Appellees.

No. 04-90-00633-CV.

Court of Appeals of Texas,

San Antonio.

May 29, 1991.

Rehearing Denied July 16, 1991.

Thomas C. Hall, Law Office of Tom Hall, P.C., San Antonio, for appellants.

Georgianne Pavlick, Law Offices of Stephen F. White, Charles W. King, Law Office of Charles W. King, San Antonio, for appellees.

Before REEVES, C.J., and CHAPA and CARR, JJ.

OPINION

CHAPA, Justice.

Appellants, Amy Upshaw and Greg Upshaw, individually and as independent executors of the estate of George Upshaw, appeal the trial court's denial of declaratory relief.

On June 25, 1989, George Upshaw's vehicle was struck by a vehicle driven by John David Pleasant and owned by Brett Field; Mr. George Upshaw died as a result. At the time of the accident in question, Mr. Pleasant had in force, a policy of liability insurance providing liability benefits in a total amount of $25,000.00 per occurrence. The decedent had in force a single multi-vehicle insurance policy issued by the appellee, The Trinity Companies, providing coverage for the date of the accident in question with uninsured/underinsured motorist protection in the amount of $20,000.00 per person and $40,000.00 per accident. Appellee tendered the amount of $20,000.00, as the maximum amount available for bodily injuries to one person in an accident, to appellants. However, appellants contended that they were entitled to $40,000.00 under the policy.

This cause of action was instituted against the defendant driver for negligence, the owner of the defendant driver's vehicle for negligent entrustment, and the appellee, the decedent's insurance carrier, pursuant to the underinsured motorist policy. A motion for declaratory relief was filed which sought a determination that the uninsured/underinsured motorist coverage could be intra-stacked ¹ to recover a maximum of $40,000.00 of available coverage under the decedent's policy, on the grounds that there were multiple vehicles insured under the single policy in question. The court denied the relief sought, and subsequently entered an order of severance, severing this determination from the case in chief. This appeal resulted.

The dispositive issue is whether intra-policy stacking of underinsured motorist coverage should be allowed for each vehicle listed under a single insurance policy to determine the maximum available underinsured motorist coverage for bodily injury to an individual claimant. Conceding that the issue is one of first impression, appellants assert the following as grounds for their position: 1) the policy is ambiguous; and, 2) public policy considerations necessitate the intra-stacking of the underinsured motorist coverage.

Appellants initially assert that they "should be permitted to 'stack' the coverage in question because the policy language is ambiguous." Appellants specifically assert that the language of the statute implies only one single limit in the "limit of liability" phrase found in the definition of "underinsured motor vehicle":

(b) The term "underinsured motor vehicle" means an insured motor vehicle on which there is valid and collectible liability insurance coverage with limits of liability for the owner or operator which were originally lower than, or have been reduced by payments of claims arising from the same accident to, an amount less than the limit of liability stated in the underinsured coverage of the insured's policy.

TEX.INS.CODE ANN. art. 5.06-1(2) (Vernon 1981) (emphasis added). The insurance policy, however, provides for two limits: a bodily injury limit of $20,000 for each person, and a total limit of $40,000 for each accident. This distinction, appellants insist, is sufficient to comply with their burden of establishing a fatal ambiguity. We are not persuaded by appellants' contentions, which are unsupported by authority.

It is uncontradicted that the relevant provisions of the policy in question follow the approved form of the Texas State Board of Insurance, and, as recognized by appellants, have not been rejected by any Texas Court. Further, the policy as a whole reveals no ambiguity as to the limits of underinsured motorist coverage for bodily injury sustained by a single individual. In fact, the policy clearly states that "the limit of liability for 'each person' for bodily injury liability is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto accident", which, in this case was $20,000.00, as recognized by appellants.

Moreover, the legislature clearly intended to provide for two limits, and, in fact, stated:

The forms promulgated under the authority of this section shall include provisions that, regardless of the number of persons insured, policies or bonds applicable, vehicles involved, or claims made, the total aggregate limit of liability to any one person who sustains bodily injury or property damage as the result of any one occurrence shall not exceed the limit of liability for these coverages as stated in the policy and the total aggregate limit of liability to all claimants, if more than one, shall not exceed the total limit of liability per occurrence as stated in the policy....

TEX.INS.CODE ANN. art. 5.06-1(2)(d) (Vernon 1981) (emphasis added). We hold that the policy was in compliance with the Texas Insurance Code and that appellants have failed to establish a fatal ambiguity as alleged. The first ground is rejected.

Appellants next argue that public policy considerations require intra-policy stacking of underinsured motorist coverage for each listed vehicle under a single policy. Appellants cite authorities from various jurisdictions, other than Texas, which do not set out the entire text of either the statute or the policy. Appellants further claim to find support in Stracener v. United Serv. Auto. Ass'n, 777 S.W.2d 378 (Tex.1989).

However, Stracener did not involve the intra-policy stacking issue, but rather the issue of whether a claimant was entitled to inter-policy stacking of the limits of underinsured motorist coverage under separate insurance policies for the purpose of determining whether the tortfeasor was underinsured. Because the First Court of Appeals, in Stracener, 749 S.W.2d 158 (Tex.App.--Houston [1st Dist.] 1988), rev'd, 777 S.W.2d 378 (Tex.1989), held that inter-policy stacking was improper under these circumstances, and the Fourth Court of Appeals, in United Serv. Auto. Ass'n v. Hestilow, 754 S.W.2d 754 (Tex.App.--San Antonio 1988), aff'd, 777 S.W.2d 378 (Tex.1989), held that inter-policy stacking was proper under the same circumstances, the Texas Supreme Court granted writ on both cases in order to resolve the issue. Strac...