White v. Davenport

Decision Date28 March 2013
Docket NumberNo. 09–11–00282–CV.,09–11–00282–CV.
Citation398 S.W.3d 802
PartiesElexis WHITE, Appellant v. Audrey Nelda DAVENPORT, Appellee.
CourtTexas Court of Appeals


Richard R. Burroughs, Jennifer L. Bergman, Cleveland, for appellant.

Steven A. Sinkin, Karen L. Marvel, Andrew Ross, Law Offices of Sinkin & Marvel, San Antonio, for appellee.

Kaye M. Alderman, Lufkin, for appellee in No. 09–11–00282–CV.




Roy White died as the result of injuries suffered in a car accident. His will was probated in the County Court at Law No. 2 of Montgomery County. That court appointed Roy's widow, Elexis White, the independent executor of his Estate.

Elexis appeals from a district court's judgment in an interpleader action. She contests a child support claim by Roy's ex-wife, Audrey Davenport, to insurance proceeds in the registry of the district court. The district court in effect allowed Audrey and her attorneys to represent Roy's Estate. After a settlement between other parties fell apart, the court decided disputed claims without re-setting the cause for trial or following summary judgment procedure. The record therefore does not support the district court's adjudication of the rival claims. We reverse the court's judgment and remand the case for further proceedings.

The Insurance Coverage, The Parties, And The Claims

The underinsured motorist coverage on the vehicle driven by Roy White was provided by Colony Insurance Company. Colony filed an interpleader petition in the 9th District Court of Montgomery County, and deposited $75,000 into the registry of the court. The other driver in the accident, Loyd McCord, was insured by Farmers Texas County Mutual Insurance Company. Farmers intervened with its own petition and deposited $25,000 into the registry of the court.

A claim by an insured to recover the proceeds of an underinsured motorist policy is a contract claim. Franco v. Allstate Ins. Co., 505 S.W.2d 789, 790, 793 (Tex.1974); see also In re Koehn, 86 S.W.3d 363, 368 (Tex.App.-Texarkana 2002, orig. proceeding) (The insured need not sue the other motorist directly.). A personal injury claim may be one type of insured loss under an underinsured motorist policy, but there may be others, including a property damage claim by the insured owner of the vehicle. SeeTex. Ins.Code Ann. § 1952.106 (West 2009).

Third-party claimants generally do not have a direct claim against the liability insurer of the other driver. See Angus Chem. Co. v. IMC Fertilizer, Inc., 939 S.W.2d 138, 138 (Tex.1997). The tender by Farmers in this case was based on claims against its insured. Liability claims against the driver may include claims for wrongful death, personal injury, and property damage. See, e.g., Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 829 (Tex.2009) (personal injury); Sanchez v. Schindler, 651 S.W.2d 249, 250 (Tex.1983) (wrongful death); Greene v. Anders, 473 S.W.2d 622, 623–24, 626–27 (Tex.Civ.App.-Waco 1971, writ ref'd n.r.e.) (property damage).

Loyd McCord was not named as a party to the suit. Elexis White has not been named as a party to the case in her capacity as the independent executor of the Estate of Roy White. In her answer to the interpleader, Elexis in her individual capacity asserted her entitlement to the funds to the exclusion of Roy White's five adult children. Audrey Davenport, the ex-wife of Roy White, filed an intervention contending that Roy's Estate was subject to a child support obligation that remained unpaid. On appeal, Elexis asserts that “there was no mention of the Estate of Roy White in any pleadings filed by any party and no affirmative pleadings were filed by the Estate of Roy White by the independent executrix or anyone with authority to do so.”

This dispute concerns in part the nature of the insurance coverage, and who may pursue claims against the insurance proceeds. The insurance policies are not in the record for review. Elexis argues, in effect, that any claim on behalf of the Estate to the Colony proceeds or the Farmers proceeds can only be brought by the authorized representative of the Estate, and also that the liability coverage for a wrongful death claim against McCord under the Farmers policy does not benefit Roy's Estate. She contends the claims she and the other statutory beneficiaries assert are only under the wrongful death statute.

Under the Texas wrongful death act, the statutory beneficiaries are the decedent's surviving spouse, children, and parents. SeeTex. Civ. Prac. & Rem.Code Ann. § 71.004(a) (West 2008). The damages recoverable are those suffered by the wrongful death beneficiaries, not the decedent. SeeTex. Civ. Prac. & Rem.Code Ann. §§ 71.004(a), 71.010 (West 2008); see also THI of Tex. at Lubbock I, LLC v. Perea, 329 S.W.3d 548, 566–69 (Tex.App.-Amarillo 2010, pet. denied).

Under the Texas survival statute, a decedent's cause of action for personal injuries suffered before death survives death, provided that the personal injury action was not barred by limitations at the time of death; the statute does not create a new cause of action. SeeTex. Civ. Prac. & Rem.Code Ann. § 71.021 (West 2008); Russell v. Ingersoll–Rand Co., 841 S.W.2d 343, 345–46 (Tex.1992); THI, 329 S.W.3d at 568. The representative of the estate or an heir is permitted to pursue the decedent's personal injury claim. SeeTex. Civ. Prac. & Rem.Code Ann. § 71.021. Survival action damages may be subject to the decedent's debts, unlike damages awarded a statutory beneficiary in a wrongful death action. SeeTex. Civ. Prac. & Rem.Code Ann. §§ 71.011, 71.021 (West 2008); Harris Cty. v. White, 823 S.W.2d 385, 388 (Tex.App.-Texarkana 1992, no writ); see also generally Elliott v. Hollingshead, 327 S.W.3d 824, 833 (Tex.App.-Eastland 2010, no pet.) (damages recoverable).

The Proceedings

At the first of three hearings, after the insurers had been dismissed from the case, Elexis's attorney announced that Elexis had reached an agreement with Ron White's five adult children concerning the distribution of the interpleaded funds. Audrey disagreed with the settlement. The trial judge granted Elexis's motion to strike Audrey's intervention.1 The court instructed Elexis's attorney to draw up the agreement, and to obtain a date for an entry-of-judgment hearing. Roy White's two sons subsequently filed documents withdrawing their consent.

Two days after the hearing, Audrey filed a notice of an application for judicial writ of withholding against Roy's Estate in the district court in Angelina County where the divorce was granted. See White v. White, No. 12–11–00107–CV, 2012 WL 1744977, at *1 (Tex.App.-Tyler May 16, 2012, no pet.). Audrey sought payment of overdue child support. Id. She also filed a notice of a child support lien with the Montgomery County District Clerk. SeeTex. Fam.Code Ann. § 157.314 (West 2008), § 157.317 (West Supp.2012).

The district court in Montgomery County held a second hearing in the interpleader action. Audrey's attorney informed the trial court that Audrey had “filed a child support lien in this matter[,] and had requested a “determination of the child support arrearages” in Angelina County “where the divorce was granted.” Audrey's attorney stated Audrey was not objecting to the attorney fees of Elexis's attorney, and that she was not pursuing a claim against the $25,000 Farmers policy proceeds. Audrey's claim focused on the $75,000 Colony policy proceeds. The trial court took the matter under advisement.

A few months later, the court in Angelina County granted an “Order on Arrears” for child support in the amount of $131,414.48 and signed an order for turnover relief. Elexis appealed from those orders. The Tyler Court of Appeals dismissed Elexis's appeal for want of jurisdiction, because she did not perfect the appeal in her representative capacity as independent executor of Roy's Estate. See White, 2012 WL 1744977 at *3.

One day after the granting of the order of arrears and the turnover order, Audrey's attorneys and Audrey sought to intervene in the interpleader action as Roy's Estate: “The Estate,” “by and through Sinkin & Marvel [Audrey's attorneys].” Attached as exhibits to the intervention petition were the order on arrears and the order for turnover relief. The intervenors alleged that McCord's negligence caused Roy's injuries and death, and further stated that Audrey “has a previous statutory child support lien on all non-exempt property of [the] Estate of Roy A. White.”

After a third hearing, the district judge in this case signed a final order referencing the order on arrears and the turnover order. The court ordered that $87,500, plus accrued interest, be paid to the Estate out of the funds in the registry of the court, that the Estate pay the hospital lien and funeral expenses out of the Farmers policy proceeds, and that the five adult children be paid $2,500 each. The check for $87,500 plus accrued interest was ordered to be issued by the district clerk to “Sinkin and Marvel Trust Account.”

Elexis received nothing under the final order. Elexis contends that the trial court erred in the apportionment of the insurance proceeds, and that “neither cause of action ..., either pursuant to § 71.004(a) [wrongful death action] or § 71.021 [survival action] ..., allows or provides for the recovery scheme and award of damages granted by the trial court.” SeeTex. Civ. Prac. & Rem.Code Ann. §§ 71.004(a), 71.021 (West 2008).


Rule 43 is a joinder-of-parties rule. See Clayton v. Mony Life Ins. Co. of Am., 284 S.W.3d 398, 401 (Tex.App.-Beaumont 2009, no pet.); see alsoTex.R. Civ. P. 43. Presented with conflicting claims to money it holds, a stakeholder may apply to a court for protection, because the stakeholder does not know which claimant to pay and fears exposure to multiple liabilities for the single stake. See Clayton, 284 S.W.3d at 401;see...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT