Whitehead v. State Farm Mut. Auto. Ins. Co.
| Decision Date | 16 September 1997 |
| Docket Number | No. 06-97-00009-CV,06-97-00009-CV |
| Citation | 952 S.W.2d 79 |
| Parties | Gerald WHITEHEAD, Rose Whitehead, Starlette Whitehead, and Lesa Taylor-Shivers, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
James A. Holmes, Wellborn, Houston, Adkison, Henderson, for appellant.
Scott Patrick Stolley, Thompson & Knight, P.C., Dallas, Paul H. Gilliam, Ramey & Flock, Tyler, for appellee.
Before CORNELIUS, C.J., and GRANT and CHADICK, * JJ.
Gerald, Rose, and Starlette Whitehead and Lesa Taylor-Shivers appeal from the trial court's refusal to award attorney's fees in an insurance dispute tried to the court. State Farm Insurance Company cross-appeals, contending that the court erred by awarding benefits under the uninsured/underinsured motorist provision of the insurance contract.
State Farm contends that the evidence does not support any finding of liability based on the uninsured motorist provision of the automobile insurance and that the trial court erred by refusing to find the Whiteheads and Taylor-Shivers collaterally estopped from claiming that the acts of the Hawkinses triggered coverage.
Kevin Hawkins left a nightclub after closing time, when he was picked up by his brother, Howard Hawkins, Jr., who was driving their father's van. Kevin Hawkins saw an individual with whom he believed he had previously had a quarrel riding as a passenger in a pickup truck. He instructed his brother to chase the truck because he needed to "get" someone in the truck, and then said he was going to shoot him. Hawkins took a pistol belonging to an uncle out from under the seat of the van, and as the van pulled alongside the truck, he fired eight shots toward the truck. In the process, he killed the driver, Brent Taylor. The truck went out of control and hit a bridge stanchion. Starlette Whitehead, a passenger in the pickup truck, was severely injured in the crash. Both vehicles were insured by State Farm, with the policies being issued to the van driver's father (as well as the shooter's father) and to the deceased driver.
The present lawsuit was filed by Taylor's mother, Whitehead, and Whitehead's parents against the owner of the van, Howard Hawkins, Sr., the driver of the van, Howard Hawkins, Jr., the shooter, Kevin Hawkins, a passenger in the van, Damon Wright, and State Farm as the insurer both of Hawkins and of the victim, Taylor. After various severances, the present case against State Farm went to trial before the court, based largely on stipulated evidence.
Findings of fact and conclusions of law from the previous trial on liability of the parties were introduced into evidence without objection. We must emphasize that these findings of fact and conclusions of law are to be considered only as evidence and not as findings and conclusions made by the trial court in the present case. In the present case, findings of fact and conclusions of law were timely requested, and although a reminder was filed by State Farm, no findings of fact and conclusions of law were filed. Because the trial court's duty to file findings of fact and conclusions of law is mandatory, the failure to respond when all requests have been properly made is presumed harmful, unless the record before the appellate court affirmatively shows the complaining party has suffered no injury. 1 However, in the present case, no complaint about this failure was made on appeal. Therefore, we shall not review this matter with the presumption of harm, but rather treat the record before us as one filed without findings of fact and conclusions of law. In their absence, the judgment implies all necessary findings of fact necessary to support it, providing that the proposition is one raised by the pleadings and supported by the evidence, and that the judge's decision can be sustained on any theory that is consistent with the evidence and applicable law, considering only the evidence favorable to the decision. 2
We now quote from the findings of fact and conclusions of law from the previous trial for evidentiary consideration. Because we are going to focus first upon evidence concerning the driver of the uninsured vehicle, we quote an excerpt from the findings of fact concerning Howard Hawkins, Jr.:
(1) Defendant HOWARD HAWKINS, JR. operated the HAWKINS vehicle on the evening of July 10, 1994.
(2) Defendant HOWARD HAWKINS, JR. knew, or in the exercise of ordinary care should have known, that a firearm was kept under the seat of the HAWKINS vehicle on the evening of July 10, 1994.
(3) Defendant HOWARD HAWKINS, JR. used the HAWKINS vehicle to pursue and overtake the TAYLOR vehicle on the evening of July 10, 1994.
(4) Defendant HOWARD HAWKINS, JR. placed the HAWKINS vehicle in close proximity to the TAYLOR vehicle when he knew of the intent of KEVIN HAWKINS to discharge the firearm into the TAYLOR vehicle.
(5) Defendant HOWARD HAWKINS, JR. knew or, in the exercise of ordinary care should have known, that his pursuit and overtaking of the TAYLOR vehicle would result in personal injuries to some or all of the TAYLOR vehicle's occupants.
(6) Defendant HOWARD HAWKINS, JR. failed to use ordinary care in taking evasive action in the operation of the HAWKINS vehicle when he knew or, in the exercise of ordinary care, should have known that Defendant KEVIN HAWKINS intended to discharge the firearm into the TAYLOR vehicle.
(7) Defendant HOWARD HAWKINS, JR. did not intentionally cause bodily injury to Plaintiffs, Intervenor, or BRENT TAYLOR on July 10, 1994.
The only challenges made by State Farm's points of error are that the trial court erred in concluding that liability arose out of the ownership, maintenance, or use of the Hawkins' vehicle and that the Whiteheads and Taylor-Shivers were collaterally estopped from claims that the actions of Hawkins, Sr. and Hawkins, Jr. were the causal factors that triggered the uninsured motorist coverage.
There was a stipulation of facts that included the following:
(1) On July 10, 1994, in Longview, Texas, Brent Taylor was operating a 1993 Nissan pick-up truck ("the Taylor vehicle"), in which Starlette Whitehead was a passenger, when Kevin B. Hawkins, occupying a 1986 Ford Aerostar van ("the Hawkins vehicle"), intentionally fired one or more gunshots at the Taylor vehicle. Brent Taylor was hit by a single gunshot and died. After being shot, Brent Taylor lost control of the Taylor vehicle causing it to collide with a concrete structure and resulting in bodily injuries to Starlette Whitehead. Starlette Whitehead was not hit by gunfire. During the course of this incident, there was no physical contact between the Taylor vehicle and the Hawkins vehicle.
(2) The shooting of Brent Taylor by Kevin B. Hawkins was not provoked by, nor could it have reasonably been foreseen by, Brent Taylor or Starlette Whitehead.
....
(7) Intervenor Lesa Taylor-Shivers is the natural mother of Brent Taylor and the Administratrix of his estate. As a result of the shooting of Brent Taylor, as described in paragraph (1) above, Brent Taylor and Lesa Taylor-Shivers sustained combined damages exceeding $40,000. Such damages were proximately caused by the conduct, as set out in this Stipulation of Facts, of one or more of the following persons: Howard Hawkins, Jr., Kevin B. Hawkins, and Howard Hawkins, Sr. There were no other proximate causes of such damages. The conduct of Howard Hawkins, Jr. and Howard Hawkins, Sr. was not intended to cause the injuries to Brent Taylor or Starlette Whitehead.
The overarching issue in this case is whether this negligent conduct was covered under the uninsured motorist insurance policy. The policy provision at issue reads as follows:
PART C UNINSURED/UNDERINSURED MOTORISTS COVERAGE.
A. We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person, or property damage, caused by an accident.
The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.
Any judgment for damages arising out of a suit brought without our consent is not binding on us. If we and you do not agree as to whether or not a vehicle is actually uninsured, the burden of proof as to that issue shall be on us.
State Farm first contends that the $20,000 award made to the Whiteheads and the $20,000 award made to Taylor-Shivers are improper because this situation is not covered by the uninsured motorist provision of the insurance policy between it and Taylor, the owner of the pickup truck. State Farm argues that injuries resulting from the shooting were not covered because the policy only covers "use" of the vehicle as a vehicle and not when used for other purposes, such as a gun platform.
There are a number of concepts that merge together in our review of this case. The starting point is the rule that insurance policies must be interpreted as contracts, with the courts striving to give effect to the written expression of the parties' intent. 3 If the policy is found to be ambiguous, the court must construe its language in favor of providing coverage for the insured. 4
The insurance contract defines a covered event as "bodily injury ... caused by an accident [arising out of the] use of the uninsured motor vehicle." In National Union Fire Insurance Co. v. Merchants Fast Motor Lines, 5 the plaintiff alleged that a driver for the company accidentally fired a pistol, killing a passenger in another vehicle. The insurer refused to defend. The court's holding was procedural in nature based upon the insufficiency of the pleading. The court said that the allegations did not suggest that the injury was caused by an accident resulting from the use of a covered automobile. In ...
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