Dissenting Opinion issued July 30, 2013




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00545-CV
                           ———————————
                    LAWRENCE S. OLEKSY, Appellant
                                       V.
              FARMERS INSURANCE EXCHANGE, Appellee



                   On Appeal from the 400th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 08-DCV-165626



                           DISSENTING OPINION

      I respectfully dissent. The majority reverses the trial court’s judgment on

cross-motions for summary judgment. However, it does not decide the dispositive

issue raised by the parties in their cross-motions for summary judgment and on
appeal and render the judgment the trial court should have rendered. Specifically,

it does not interpret the law and decide the dispositive issues of (1) whether

appellant Lawrence S. Oleksy’s homeowner’s insurance policy, issued by appellee

Farmers Insurance Exchange (“Farmers”), potentially covers the type of claims for

personal injury made against Oleksy by third-party defendants Paul and Deborah

Pochron based on a snowmobile accident that occurred in New York in 2007 and

(2) whether, under a correct interpretation of the policy’s terms, Oleksy is therefore

entitled to a defense to the claims by Farmers and potentially to indemnification.

The majority concludes only that it is not necessary for it to decide whether the

motor vehicle registration laws under which the snowmobile was required to be

registered were those of New York or Texas. This is an issue applicable to the

determination whether an exception to the motor vehicle exclusion from coverage

applies in this case, an issue which is in turn material to whether the Pochrons’

claims are covered under the policy’s terms, which is the dispositive issue and a

question of law.

      The majority holds that the New York and Texas motor vehicle registration

laws are materially the same and that a snowmobile is not required to be registered

as a motor vehicle under either, so it need not determine which statute applies

when construing Oleksy’s policy. It then refuses to construe and apply either

statute or to determine whether the exception applies and thus whether the policy

                                          2
covers the Pochrons’ claims and whether Farmers is required by the terms of

Oleksy’s policy to provide a defense to the Pochrons’ claims. And it refuses to

enter judgment in favor of Oleksy, even though it declares the law to be such that

Oleksy must necessarily be the beneficiary of its reading.        Having made its

decision not to decide the legal issues in the case, the majority remands the case to

the trial court to interpret the law and apply it to the undisputed facts in further

proceedings in accordance with its opinion.

      The majority justifies these departures from established law with the

erroneous statement that the issue on which summary judgment was granted was

not considered by the trial court. By this claim, it means that it has concluded that

Oleksy has made a new (and incorrect) argument on appeal for why the law should

be construed in his favor. Therefore, it refuses to construe and declare the law

itself and to determine Oleksy’s right to coverage and to a defense under a proper

construction of the applicable laws on the incorrect ground that the issue was not

raised below. In sum, the majority confuses an argument and an issue. It thus fails

to “hand down a written opinion that is as brief as practicable but that addresses

every issue raised and necessary to final disposition of the appeal,” as mandated by

Texas Rule of Appellate Procedure 47.1; and it fails to declare the law and render

the judgment the trial court should have rendered on cross-motions for summary

judgment, as required by summary judgment law. Instead, it reverses the summary

                                         3
judgment in favor of Farmers on the law, refuses to enter summary judgment in

Oleksy’s favor on the same law, and sends the case back for wasteful and

duplicative proceedings in which it invites the trial court to err in interpreting the

law for itself before another appeal can be taken.

      I would construe and declare the law at issue and apply it to the undisputed

facts supported by the summary judgment evidence, as requested by the parties. I

would reverse the summary judgment in favor of Farmers declaring that Oleksy’s

homeowner’s insurance policy does not entitle him to coverage or to a defense

provided by Farmers on the Pochrons’ claims. Finally, I would render judgment in

favor of Oleksy, declaring that the Pochrons’ claims against Oleksy are covered by

the terms of his Farmers homeowner’s insurance policy and that Oleksy is entitled

to a defense against the Pochrons’ claims under the policy.

                                    Background

      In February 2007, Oleksy was snowmobiling in New York with his friend

Paul Pochron and several other people when his snowmobile collided with

Pochron’s. Pochron was seriously injured, and he and his wife later filed suit

against Oleksy in Fort Bend County, Texas. That suit is pending. Pochron seeks

damages for his injuries, and his wife and co-plaintiff, Jean Pochron, seeks

damages for loss of consortium and loss of household services. In their first

amended original petition, the Pochrons alleged that Oleksy was a resident of

                                          4
Richmond, Texas in Fort Bend County and that the snowmobile accident occurred

in the town of East Otto, New York. The Pochrons’ first amended original petition

did not clearly identify the owner of the snowmobile that Oleksy used that day.

      Farmers refused to provide Oleksy with a defense to the Pochrons’ claims

under Oleksy’s homeowner’s insurance policy, and Oleksy filed the instant

declaratory judgment action against Farmers seeking a declaration that Farmers has

a duty to defend and to indemnify him in the lawsuit filed by the Pochrons. Oleksy

based his claim for coverage on an exception to the motor-vehicle exclusion in his

homeowner’s insurance policy. Farmers filed an answer to Oleksy’s petition,

along with a counterclaim and a third-party petition for declaratory relief. It

named the Pochrons as third-party defendants and sought a declaratory judgment

that Oleksy is not entitled to a defense provided by Farmers in the Pochron lawsuit

because the motor-vehicle exclusion applies and excludes from coverage damages

for personal injury arising out of the snowmobile accident.

                                Policy Provisions

      It is undisputed that the relevant policy provisions require Farmers to

provide a defense to its insured for claims for damages for bodily injury or

property damage covered by the policy but that the policy excludes from coverage

claims arising out of the operation or use of a motor vehicle. However, the motor

vehicle exclusion does not apply to motor vehicles (1) “which are not subject to

                                         5
motor vehicle registration,” (2) are “designed and used for recreational purposes,”

and (3) are not owned by an insured. These three criteria establish an exception to

the exclusion, and a claim under the policy against Farmers’ insured for bodily

injury or property damages that meets these criteria is not excluded from coverage.

      The policy states:

      Section II—Liability Coverage
      Coverage C (Personal Liability)

      If a claim is made or a suit is brought against an insured for damages
      because of bodily injury or property damage caused by an
      occurrence to which this coverage applies, we will:

      1.     Pay up to our limit of liability for the damages for which the
             insured is legally liable. Damages include prejudgment interest
             awarded against the insured; and

      2.     Provide a defense at our expense by counsel of our choice even
             if the suit is groundless, false or fraudulent. We may
             investigate and settle any claim or suit that we decide is
             appropriate.

      ....

      Section II—Exclusions

      1.  Coverage C (Personal Liability) and Coverage D (Medical
      Payments to Others) do not apply to:

      ....

      f.     bodily injury or property damage arising out of the
             ownership, maintenance, operation, use, loading or unloading
             of:



                                         6
             (1)   motor or engine propelled vehicles or machines designed
                   for movement on land, including attached machinery or
                   equipment;
             (2)   trailers, semi-trailers or mobile homes;

      Which are owned or operated by or rented or loaned to an insured.

      However, this exclusion does not apply to:

      (1)    motor vehicles which are not subject to motor vehicle
             registration and are:
      ....

             (d)   designed and used for recreational purposes; and are:

                   (i)   not owned by an insured; or

                   (ii) owned by an insured while on the residence
                   premises.

(Italics added.)

                              Procedural History

      After the issues in this case were joined, Farmers moved for summary

judgment on its counterclaim and third-party petition. Farmers argued that, under

its plain language, Oleksy’s policy does not include coverage of the Pochrons’

claims for personal injuries arising out of the snowmobile accident and Oleksy is

not entitled to a defense against the Pochrons’ claims because the snowmobile was

registered under New York’s motor vehicle law and Oleksy was a co-owner of the

snowmobile; thus, since two of the three criteria for coverage under the exception

to the motor vehicle exclusion were not satisfied, the motor vehicle exclusion

                                        7
applies and the Pochrons’ claims against Oleksy are not covered by the policy. As

summary-judgment evidence, Farmers attached Oleksy’s insurance policy; the

Pochrons’ First Amended Original Petition (which argued that the snowmobile was

a recreational vehicle and that Oleksy did not own the snowmobile); a copy of the

New York statute requiring registration of snowmobiles; excerpts from Paul

Pochron’s deposition; and Oleksy’s recorded statement.

      Oleksy filed a cross-motion for summary judgment and response to Farmers’

motion for summary judgment.         With respect to the issue of whether the

snowmobile was required to be registered as a motor vehicle, Oleksy argued that

there is a conflict between Texas law and New York law that should be resolved by

reference to Texas Insurance Code article 21.42. Construing the policy under his

interpretation of the requirements of Article 42.21, Oleksy argued that the policy

requires that a recreational vehicle such as the snowmobile must be subject to

motor vehicle registration under Texas’s motor vehicle registration law in order for

the motor vehicle exclusion to apply and that the snowmobile was not subject to

motor vehicle registration in Texas. He also argued that Pochron owned the

snowmobile, based on undisputed evidence that Pochron obtained title to the

snowmobile in his name, maintained possession of it, paid insurance premiums for

it, and had an insurance policy that named him as its owner. Thus, he argued, all

three requirements for the application of the exception to the motor vehicle

                                         8
exclusion were satisfied—i.e., the snowmobile was (1) not subject to registration

under the motor vehicle laws of Texas because (2) it was a recreational vehicle

and, moreover, (3) he did not own it. Therefore, he is entitled to coverage under

the policy and a defense from Farmers against the Pochrons’ claims. As summary-

judgment evidence, Oleksy attached his Farmers homeowner’s insurance policy;

the Pochrons’ first amended petition; an email from the Texas Department of

Motor Vehicles stating that it does not title or register snowmobiles; an affidavit

from Pochron, in which he averred that he owned the snowmobile in question; and

Oleksy’s own answers to interrogatories, in which he denied ownership of the

snowmobile.

      Farmers responded to Oleksy’s motion for summary judgment, arguing that

Article 21.42 does not require the application of Texas’s motor vehicle registration

law in determining the applicability of the recreational-vehicle exception to the

motor-vehicle exclusion, as Oleksy had urged.           Farmers argued that the

snowmobile was required to be registered, and was registered, in New York under

New York’s motor vehicle registration laws, and therefore the exception to the

exclusion for motor vehicles did not apply. Farmers also again argued that Oleksy

owned the snowmobile and, for that reason too, the exception to the motor vehicle

exclusion did not apply and the Pochrons’ claims were not covered by Oleksy’s

policy.

                                         9
      The trial court granted Farmers’ motion for summary judgment, denied

Oleksy’s motion, and issued a final summary declaratory judgment, which

declared that the insurance policy provided no coverage for the snowmobile

accident and that Farmers had no duty to defend or indemnify Oleksy in

connection with the Pochron lawsuit.

      Approximately one week after the trial court’s final judgment, the Pochrons

filed a third amended original petition, specifically alleging that Pochron, not

Oleksy, owned the snowmobile. Oleksy filed a motion for new trial, arguing that

an insurer’s duty to defend is determined by the third-party plaintiff’s pleadings

considered in light of the policy provisions, without consideration of facts outside

of the pleadings. In response, Farmers argued that the Pochrons’ amended petition

should not change the result of the declaratory-judgment action because the

petition alleged facts which, if true, still invoked the motor-vehicle exclusion and

negated the recreational-vehicle exception to it. The trial court overruled Oleksy’s

motion for new trial, and Oleksy appealed.

      On appeal, Farmers concedes that Pochron owned the snowmobile that

Oleksy was driving at the time of the accident. Therefore, the only issue pending

before this Court with respect to satisfaction of the exception to the motor vehicle

exclusion is whether the trial court correctly ruled that the exception does not apply

because the snowmobile was required to be registered as a motor vehicle. The trial

                                         10
court’s award of summary judgment to Farmers and its denial of Oleksy’s motion

for summary judgment necessarily imply its conclusion that the motor vehicle

exclusion applied and not the exception. Therefore, it ruled that the Pochrons’

claims were not covered by the policy and Farmers was not required to provide a

defense to Oleksy for those claims. This issue was squarely placed before the trial

court by both Farmers and Oleksy, and the trial court’s interpretation of the terms

of the policy was the basis for its declaratory judgment denying Oleksy’s claim of

coverage and a right to a defense from Farmers. It is likewise squarely before this

Court on Oleksy’s appeal from the judgment against him.

           Standard of Review of Cross-Motions for Summary Judgment

      When both sides move for summary judgment, and the trial court grants one

motion and denies the other, reviewing courts consider both sides’ summary-

judgment evidence, determine all questions presented, and “render the judgment

the trial court should have rendered.” Gilbert Tex. Constr., L.P. v. Underwriters at

Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010); Mid–Continent Cas. Co. v.

Global Enercom Mgmt., Inc., 323 S.W.3d 151, 153–54 (Tex. 2010); FM Props.

Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). Each party must

carry its own burden to establish entitlement to summary judgment by conclusively

proving all the elements of the claim or defense as a matter of law. See TEX. R.

CIV. P. 166a(c); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010);

                                        11
Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 208 (Tex. App.—Houston [1st

Dist.] 2004, pet. denied).

      In a case involving the proper interpretation of an insurance policy, the

insured has the burden to establish coverage under the terms of the policy. Gilbert

Tex. Constr., 327 S.W.3d at 124. To avoid liability the insurer must then prove

that the loss is subject to an exclusion. Id. “If the insurer proves that an exclusion

applies, the burden shifts back to the insured to show that an exception to the

exclusion brings the claim back within coverage.” Id.

                             Construction of Insurance Contracts

      The appellate courts review a trial court’s interpretation of a contract de

novo. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003); MCI

Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650 (Tex. 1999). “The

construction of an insurance policy is a legal issue for the court.” Evergreen Nat.

Indem. v. Tan It All, Inc., 111 S.W.3d 669, 675 (Tex. App.—Austin 2003, no pet.).

Interpretation of an insurance policy is governed by well-established principles of

contract construction. Global Enercom Mgmt., 323 S.W.3d at 154. The primary

objective is to give effect to the intent of the parties as reflected in the terms of the

policy. See id.; State Farm Lloyds v. Page, 315 S.W.3d 525, 527 (Tex. 2010). “As

with any other contract, the parties’ intent is governed by what they said, not by

what they intended to say but did not.” Fiess v. State Farm Lloyds, 202 S.W.3d

                                           12
744, 746 (Tex. 2006). “Moreover,” the supreme court stated, “in cases like this

involving a standard form policy mandated by a state regulatory agency, we have

held for more than 100 years that the actual intent of the parties is not what counts

(as they did not write it), but the ordinary, everyday meaning of the words to the

general public.” Id.

      In reviewing an insurance contract, the reviewing court reads all parts of the

policy together, “giving effect to every word, clause, and sentence,” and avoiding

making any part inoperative. Page, 315 S.W.3d at 527. Our analysis is confined

within the four corners of the policy. Id. We must give the words used in the

contract “their plain, ordinary and generally accepted meaning” unless the policy

indicates they were used in a technical or different sense. Evergreen, 111 S.W.3d

at 677. If a party’s interpretation requires the insertion of a qualifying phrase, that

interpretation must be rejected as violating the rule that the language of a policy

must be given its ordinary meaning. Id. We must honor the parties’ agreement

and not remake their contract by reading additional provisions into it. Gilbert Tex.

Constr., 327 S.W.3d at 126.

      Terms in an insurance policy that are subject to more than one reasonable

construction are interpreted in favor of coverage. Id. at 133. But the parties’

disagreement about the policy’s meaning does not create an ambiguity. Id. If an

insurance policy has a clear and definite meaning, it is not ambiguous as a matter

                                          13
of law, even if the parties interpret it differently. Id.; Global Enercom Mgmt., 323

S.W.3d at 154.

      Whether a claim triggers an insurer’s duty to defend and whether a claim is

eventually covered or excluded for purposes of indemnification are two different

questions. Gilbert Tex. Constr., 327 S.W.3d at 132. “An insurer is required to

defend only those cases within the policy coverage.”           Fid. & Guar. Ins.

Underwriters, Inc. v. McManus, 633 S.W.2d 787, 788 (Tex. 1982). We determine

whether an insurer has a duty to defend under the “eight-corners doctrine,” while

the duty to indemnify is determined by the facts as established in the underlying

suit. Gilbert Tex. Constr., 327 S.W.3d at 132–33. “A plaintiff’s factual allegations

that potentially support a covered claim are all that is needed to invoke the

insurer’s duty to defend.” GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church,

197 S.W.3d 305, 310 (Tex. 2006). By contrast, “a claim based on a contract that

provides indemnification from liability does not accrue until the indemnitee’s

liability becomes fixed and certain.” Gilbert Tex. Constr., 327 S.W.3d at 134.

             Construction of the Policy’s Motor Vehicle Exclusion

      Oleksy argues that Texas law governs the construction of all the terms of the

policy, including which motor vehicle registration statute applies. Specifically, he

argues that Texas’s law regarding motor vehicle registration, rather than New

York’s, should be applied to determine if the recreational-vehicle exception to the

                                        14
motor-vehicle exclusion applies. Oleksy points to Insurance Code article 21.42,

which provides:

      Any contract of insurance payable to any citizen or inhabitant of this
      State by any insurance company or corporation doing business within
      this State shall be held to be a contract made and entered into under
      and by virtue of the laws of this State relating to insurance, and
      governed thereby, notwithstanding such policy or contract of
      insurance may provide that the contract was executed and the
      premiums and policy (in case it becomes a demand) should be payable
      without this State, or at the home office of the company or corporation
      issuing the same.

TEX. INS. CODE ANN. art. 21.42 (West 2012). He argues that, when the terms of

the policy are construed as required by Article 21.42, the exclusion does not apply

to “motor vehicles which are not subject to motor vehicle registration and

are . . . designed and used for recreational purposes.”

      Oleksy points out that the snowmobile was not subject to registration under

Texas’s motor vehicle registration law. Indeed, Texas law specifically excludes

off-highway recreational vehicles from the requirements of motor-vehicle

registration. Compare TEX. TRANSP. CODE ANN. § 502.040 (West 2012) (requiring

registration of motor vehicle that “is used or to be used on a public highway”) with

id. § 502.140 (stating that “a person may not register an all-terrain vehicle or a

recreational off-highway vehicle, with or without design alterations for operation

on a public highway”).




                                          15
      Farmers does not disagree with Oleksy’s contention that the construction of

an insurance policy issued to a Texas resident in Texas is governed by Insurance

Code article 21.42. But Farmers contends that Oleksy’s construction of his policy

requires inserting into the terms of the policy the requirement that the vehicle must

be subject to registration in Texas, which, it argues, violates the rules that the

language of a policy must be given its ordinary meaning and that the parties may

not remake their contract by reading additional provisions into it. It points out that

the policy says only that “the exclusion does not apply to . . . motor vehicles which

are not subject to motor vehicle registration and are . . . designed and used for

recreational purposes” and does not add “in Texas.” Farmers argues that the

applicable law for determining whether the snowmobile was required to be

registered is the law of New York. Farmers contends that the snowmobile was

required to be registered under New York’s motor vehicle registration laws and

that, therefore, claims arising from the snowmobile accident are excluded from

coverage under the plain language of the policy.

      Farmers refers us to the New York Vehicle and Traffic Law. This law,

however, contrary to Farmers’ construction of it, expressly defines a motor vehicle

as “[e]very vehicle operated or driven upon a public highway which is propelled by

any power other than muscular power except . . . snowmobiles . . . and . . . all-

terrain vehicles . . . .” N.Y. VEH. & TRAF. LAW § 125 (McKinney 2005) (emphasis

                                         16
added). Laws pertaining to the registration of motor vehicles and snowmobiles are

both part of the New York Vehicle and Traffic Law, but they are not synonymous.

Compare id. §§ 400–499-d (Title IV—Registration of Vehicles) with §§ 2220–

2413 (Title XI—Registration of Snowmobiles, Motorboats and Limited Use

Vehicles)).   Indeed, the New York Vehicle and Traffic Law specifically

distinguishes a snowmobile from a motor vehicle, stating, “Notwithstanding its

limited use on highways, a snowmobile shall not be determined a motor vehicle

within the meaning of section one hundred twenty-five of this chapter or any other

successor statutes.” Id. § 2229 (“Snowmobile, not a motor vehicle”) (emphasis

added). Both the motor-vehicle registration and the snowmobile registration laws

appear in Chapter 71 of the Consolidated Laws, i.e., in the same chapter as section

125. See id. §§ 125 (definition of motor vehicle), 401–404-oo (Registration of

Motor Vehicles), 2220–2231 (Registration of Snowmobiles). This language can

only be reasonably read as stating that snowmobiles are not motor vehicles for

purposes of New York’s motor vehicle registration law.

      I agree with Farmers that to read the policy as Oleksy does—and thus to

interpret the exclusion as providing that the vehicle must be not subject to motor

vehicle registration in Texas in order for the exception to the exclusion to be

satisfied—is to ignore the ordinary, everyday meaning of the words to the general

public and to insert into the language of the policy a restriction of registration to

                                         17
Texas, which the parties did not include. See Gilbert Tex. Constr., 327 S.W.3d at

126; Evergreen, 111 S.W.3d at 677. Under the rules of statutory construction and

the facts of the case, the snowmobile must not have been subject to motor vehicle

registration where it ordinarily would be registered—which, in this case, is New

York. However, to read the policy as Farmers does flies in the face of the plain

language of the New York motor vehicle registration law it would apply, under

which the snowmobile is not subject to registration as a motor vehicle, but as a

recreational vehicle, just as in Texas.

      Under an ordinary, everyday, plain language reading, Oleksy’s policy

provides coverage for personal injuries and property damage caused by “motor

vehicles which are not subject to motor vehicle registration” in the place where

they are or would be required to be registered and which are “designed and used

for recreational purposes,” so long as the other criteria for application of the

exception to the motor vehicle exclusion from coverage are satisfied, namely, the

correct characterization of the vehicle as a recreational vehicle and the ownership

of the vehicle by someone other than the insured. The snowmobile is indisputably

a recreational vehicle; the parties agree on appeal that Oleksy is not the

snowmobile’s owner; and the snowmobile clearly is not subject to registration as a

motor vehicle under New York law (or, for that matter, under Texas law).




                                          18
       Thus both Farmers’ and Oleksy’s readings of the policy must be rejected.

This Court should construe the terms of the policy de novo and provide the only

reasonable interpretation sustainable by the plain language of the policy. See In re

Dillard Dept. Stores, Inc., 186 S.W.3d 514, 515 (Tex. 2006); Gilbert Tex. Constr.,

327 S.W.3d at 133.

       Applying the rules of contract construction, I would hold, on the basis of the

plain language of the insurance policy and of the New York motor vehicle

registration laws, that the snowmobile was not required to be registered by the

applicable motor vehicle law—that of New York. It is plainly a recreational

vehicle, as both parties concede. And it is no longer disputed that Oleksy was not

the owner of the snowmobile. Therefore, I would hold that, under the plain

language of the policy and the undisputed facts of the case, as shown by the

summary judgment evidence, the exception to the motor vehicle exclusion applies.

Thus, the Pochrons’ claims are covered by Oleksy’s homeowner’s insurance policy

and Oleksy is entitled to a defense from Farmers for those claims. See Gilbert Tex.

Constr., 327 S.W.3d at 132; Fid. & Guar. Ins. Underwriters, Inc., 633 S.W.2d at

788.

       The majority, however, refuses to address the parties’ sole issue, construe

and declare the law, and determine coverage. Instead, it stops short of deciding the

legal issues presented by this appeal and confines itself to declaring only that “the

                                         19
Texas Transportation Code and the New York Vehicle and Traffic Law . . . are

materially the same for purposes of resolving this appeal: neither law subjects a

snowmobile to ‘motor vehicle registration.’” Slip Op. at 10. Thus, it hands down

an advisory opinion that refuses even to decide which state’s registration law

governs for purposes of construing the application of the exception to the motor

vehicle exclusion in the policy in accordance with Article 21.42, the necessary first

step in declaring the law and deciding the coverage issue.

      The majority does not construe the law or interpret the statutes at issue and

their applicability in this case even though, as it specifically points out, “the

interpretation of a statute is a question of law that this court determines de novo,

[and] we are not bound to accept the parties’ agreed but mistaken interpretation of

law.” Slip Op. at 8–9 (citing First American Title Ins. Co. v. Combs, 258 S.W.3d

627, 631 (Tex. 2008)); see also Global Enercom Mgmt., 323 S.W.3d at 154. And

it does this on the basis that Oleksy did not make the correct legal argument below

regarding the interpretation of the motor vehicle registration statutes. However,

Texas appellate courts have not traditionally relied upon the parties to construe the

law correctly—that is the role of this Court, which is charged with interpreting the

applicable statute de novo under the rules of statutory construction. See Fiess, 202

S.W.3d at 746 (“[I]n cases like this involving a standard form policy mandated by

a state regulatory agency, [the Texas Supreme Court has] held for more than 100

                                         20
years that the actual intent of the parties is not what counts (as they did not write

it), but the ordinary, everyday meaning of the words to the general public.”). The

parties are required only to present the dispositive legal issues for our review, as

Oleksy and Farmers did here in seeking a review of the trial court’s legal

interpretation of the policy.

      Because the majority does not construe, declare, and apply the law to

determine whether the Pochrons’ claims are covered by Oleksy’s insurance policy,

and, thus, whether Farmers must provide Oleksy with a defense to those claims, I

cannot agree that the opinion handed down by the majority satisfies the

requirements of Rule of Appellate Procedure 47.1, which requires that the

appellate court hand down an opinion “that addresses every issue raised and

necessary to final disposition of the appeal.” TEX. R. APP. P. 47.1. Nor can I agree

with the majority’s refusal to consider both sides’ summary judgment evidence,

determine all questions presented, and “render the judgment the trial court should

have rendered” when deciding the parties’ cross motions for summary judgment.

Gilbert Tex. Constr., 327 S.W.3d at 124. In my view, the majority opinion is

erroneous in both respects.




                                         21
                                    Conclusion

      I would decide the issues presented in this appeal from the trial court’s entry

of judgment in favor of Farmers on the parties’ cross-motions for summary

judgment. I would hold that the trial court erred in granting Farmers’ motion for

summary judgment and in failing to grant summary judgment in favor of Oleksy. I

would, therefore, reverse the judgment of the trial court and would render

judgment in favor of Oleksy, declaring that the exception to the motor vehicle

exclusion in his Farmers homeowner’s insurance policy applies, that the Pochrons’

claims are covered by his policy, and that he is entitled to a defense against the

Pochrons’ claims and potential indemnification from Farmers.




                                                    Evelyn V. Keyes
                                                    Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Keyes, J., dissenting.




                                         22
