 Appeal Reverse and Remand; Opinion Filed l)ecenaber 14, 2012




                                        In The
                                 Qtourt of Zppca[
                        Jfiftb itrIct of Zexa at atta
                                 No. 05-1 2-00246-CV

  hOME STATE COUNTY MUTUAL INSURANCE COMPANY AND SAFECO,
                         Appellants

                                          V.

             DALBERT BINNING AND ARLENE SMALL, Appellees

                  On Appeal from the 101st Judicial District Court
                               Dallas County, Texas
                      Trial Court Cause No. DC-09- 14677-F

                                     OPINION

                      Before Justices Bridges. Richter, and Lang
                              Opinion by Justice Richter

      Home State County Mutual Insurance Company (“Home State”) brings this

interlocutory appeal from the trial court’s denial of a motion for partial summary

judgment. Home State raises a single issue in this Court, contending an uninsured

motorist policy provision does not cover damages sustained by the insured when a


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passenger from another vehicle assaulted the insured after a minor rear-end collision. We

agree with Home State. Accordingly, we reverse the trial court’s order and remand this

case to the trial court


                                                        I.


         Dalbert Benning       rBenning”’       and Arlene Small C’Smalf’) are husband and wife.

Benning and Small were traveling together in Dallas. Texas on December 22, 2007 in a

vehicle owned by Small. Benning was driving and waiting to pull into a parking space in

a convenience store parking lot when Small’s vehicle was struck in the rear by another

vehicle. After Benning pulled into the parking space. he was attacked by an occupant of

the vehicle that had hit them while he was trying to exit Small’s vehicle. Benning was

struck on the head with a pistol which caused him toslp against the steering wheel and

ultimately fall out of the vehicle and onto the ground. As Benning fell to the ground. he

kicked the door closed and told Small to lock the doors. Small complied, took the keys

out of the ignition. and called 911. The attacker tried to open the driver’s side door

several times but was unsuccessful. When the attacker heard the sirens. he returned to the

vehicle in which he arrived, and fled the scene. Though the police gave chase, they were

unable to apprehend Benning’s attacker. It was later detennined by the police that the



Dalbert Benning was Incorrectly named In Plalntlfrs Original Petition and subsequent pleadings as Dalbert
1
Binning.

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same vehicle was used in a robbery at a convenience store three days after l3enniiig’s

assault.


       henning and Small brought suit against Home State County Mutual Insurance

Company (‘ilonie State” and Safeco General Agency, Inc. (“Safeco”) for failure to pay

their claim for uninsuredJunderinsured motorist (“UM/UIM”) benefits under their

automobile policy issued by Home State and allegedly underwritten by Safeco. Home

State and Safeco filed a Motion for Partial Summary Judgment on all claims relating to

any injuries or damages that arose omit of the assault and other events which transpired

after the collision, The trial court denied the motion without giving a reasoned opinion.

And now, all parties have filed an Agreed Motion for Interlocutory Appeal.


                                            IL


       In a single point of error, Home State contends that pursuant to Texas law, the

UMIUIM provision in Home State’s policy does not provide coverage for the injuries and

damages suffered by Benning as a result of the assault committed against him after being

involved in a rear-end collision.


           The standard of reviewing a traditional motion for summary judgment is well

established. See Thx. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

548-49 (Tex. 1985). Summary judgment is properly granted when the movant established

there are no genuine issues of material fact and it is entitled to judgment as a matter of
                                            3
law. Nixon. 69() SW2d at. 548. When deciding if a disputed material fact issue

precluding summary judgment exists, evidence favorable t the nonmovant will be taken

as true, Id. at )$8—39. All reasonable doubts must be resolved in tavor of the    Hon—movant


and all reasonable inferences must be indulged in its favor. Id. at 549. We review the

summary judgment de novo to determine whether Home State’s right to prevail is

established as a matter of law. See Valence Operatinç Co.      i’.   DorNet!, 164 S.W.3d 656.

661 (Tex. 2005); Jewelry Mfrc. Exch.      i’.   Taflva. 374 S.W.3d 639. 641 (T’ex. App.—

Dallas 2012. pet. denied).


       The Home State policy states in pertinent part:

           A. We will pay damages which an insured is legally entitled to recover
              from the owner or operator of an uninsured motor vehicle because
              of:
                   1. l3odily injury sustained by an insured and caused by an
                      accident: or
                  2. Property damage caused by an accident.
              The owner’s or operators liability for these damages must arise out
              of the ownership. maintenance or use of the uninsured motor vehicle.
              (emphasis added)



The parties’ sole dispute concerning the applicability of this provision is over whether

Benning’s injuries were caused by an accident arising out of the use of the uninsured

vehicle.


       For liability to ‘arise out of” the use of a vehicle, a causal connection or relation

must exist between the accident or injury and the use of the motor vehicle. Mid-Ceizturv
                                                4
Ins. Co. of Ta v. Lindsey, 997 S.W.2d 153. 156 (Tex. 1999). When determining whether

damages arise out of the use of an uninsured motor vehicle, we consider the following

three factors: (1) The accident must have arisen out of the inherent nature of the

automobile, as such: (2) The accident must have arisen within the natural territorial limits

of the automobile. and the actual use. loading, or unloading must not have terminated:

and (3) The automobile must not merely contribute to cause the condition which

produces the injury, but must itself produce the injury. Lancer Ins. Ca v. Garcia Holiday

Tours, 345 S.W.3d 50, 56 (Ta. 2011). While these factors are not an absolute test, they
   b%pftj in focusing
                      the analysis” of the coverage questions. Id. at 55.


       Benning contends his injuries arose out of the use of a motor vehicle by a putative

cnjacker. It is undisputed the unknown assailant rear-ended the vehicle driven by

Benning. It is also undisputed Benning was assaulted when attempting to exit the vehicle

he was driving. Benning claims that “but for” the initial collision, he would have stayed

in his car and not have been exiting his vehicle to exchange information with the driver

which put him in the position to be assaulted by the assailant We disagree. It is

undisputed that Benning was waiting to pull into a parking space at a convenience store

when the collision occurred, thus, he would have been in the same position when exiting

his vehicle to enter the store. In this situation. the assault involved the vehicle only

incidentally. The assailant could have been standing in the convenience store parking lot

and accomplished the same result See State Fann Mw. Auta Ins. Ca v. Whitehead, 988

                                            5
 S.W.2d 744, 745 (1999) (finding “[tihe shooting was an independent and intentional act

not intended to be covered by the policy.”): Lindsey. 997 S.W.2d at 158 CA drive-by

shooting involves a vehicle only incidentally” when the shooter could be standing still

and accomplish the same result). Benning’s physical injuries were not caused by the

vehicle itself; they were caused by the assailant assaulting Benning with a pistol. See I.e

v. Farmer’s Ta County Mut. hit Co.. 936 S.W.2d 317. 321 (Tex. App.—Houston [1st

Distj 1996, pet. denied) (“The gun was the instnimentality that caused Than Is’s

injuries, not the car.”).


         Benning claims the “facts clearly establish” the animus of the assault was to obtain

possession of Benning’s vehicle as opposed to a personal assault. Since the assailant left

the scene and was not caught, the animus of the assault may only be inferred. Beaning

contends other states have found injuries arising out of the use of a vehicle when

carjacking was the motive for an assault. However, the facts in this case do not resemble

the facts of the caijacking cases. See Pohiod v. New Jersey Mfrs. Ins. Ca. No. A-0616-

05T3. 2007 WL 92821. *1 (NJ. Super. App. Div. Jan. 11. 2007) (after assault assailant

fled the scene with the vehicle); Carrigan v. State Farm Mm’. Auto. Ins. Ca, 949 P.2d

705,707 (Or. 1997) (assailant sought ride with victim and when victim refused, assailant

shot victim then drove away in victim’s vehicle); State Farm Mitt. Auto. Ins. Ca   i   Barth.
579 So. 2d 154. 155 (Ha. Dist. Ct. App. 1991) (attacker entered victim’s vehicle and told

her to   ‘ttjve   bitch.” when victim failed to comply, she was beaten and left behind);

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                                                                                     ___
                                                                                           _




        r.          ‘   itiiiv   Ins.   ( ‘..43 N .W.2d (8. 6X) ( M inn. Ct. App. I 4) ( alter

h ott n the ict i m, iohher tied in the vehicle). While this may he the law
                                                                            in these other
slaes. Henning tails to provide us with any [exas law in suppor
                                                                t ot his argument.
 :j
             Bennini.’s (acts tb        not show the assailant asked [or the vehicle, asked to he

driven iii the vehicle, or took the vehicle. It is clear that the automobile
                                                                             in question never
produced the injury itself. Rather, it was the assault that produced
                                                                     the injury to Henning

and iheretore not covered by the policy of insurance.


                                                    Ill,


       Accordingly. we reverse the trial court’s denial of Home State’s motion
                                                                               for partial
summary judgment against L3enning and this case is remanded to the
                                                                   trial court for further

proceedings consistent with this opinion.




                                                            /


                                                           MATIN RICHTER
                                                           JUSTICE
120246 F. P05




                                                    7
                                     (outt of Lppcat
                          fifth   flitrict of !rtxa at ita(ta

                                        JUDGMENT

I IOME STAI’E COUNTY MUTUAL                        Appeal from the 101st Judicial District
INSURANCE (‘OMPANY AND                             Court ot Dallas County, Texas
S\FECO, í\jc1Iitts                                 (Trial Court No. DC O9— I 3(77E).
                                                   Opinion delivered by Justice Richter,
No, (15 I 200246CV         V.                      Justices Bridges and Lang participating.

DALI3ERT BINNING AND ARLENE
SMALL, Appellees

       In accordance with this Court’s opinion of this date, the judgment of the trial court
                                                                                             is
REVERSEI) and this cause is REMANI)EI) to the trial court for new trial. It is ORDE
                                                                                         RED
that appellants HOME STATE COUNTY MUTUAL INSURANCE COMPANY AND
SAFECO recover their costs of this appeal from appellees DALBERT BINNING AND
ARLENE SMALL.

Judgment entered December 14, 2012.


                                                          MARTIN RICHTE
                                                          JUSTICE
