Affirmed and Majority and Concurring Opinions filed May 14, 2019.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00341-CV

                        CHARLES FRANKS, Appellant
                                          V.

    LIBERTY COUNTY MUTUAL INSURANCE COMPANY, Appellee

                    On Appeal from the 151st District Court
                            Harris County, Texas
                      Trial Court Cause No. 2017-49231

                             MAJORITY OPINION

      Appellant Charles Franks brings this appeal from the trial court’s order
granting appellee Liberty County Mutual Insurance Company’s motion for summary
judgment, signed March 26, 2018. For the reasons stated below, we affirm.

                                  BACKGROUND

      Franks filed suit against Liberty in July 2017 seeking benefits under his car
insurance policy. The petition alleged:
      [A] collision that occurred on August 21, 2016, in Prairie View, Waller
      County, Texas. At the time of the collision, [Franks] was traveling west
      on U.S. Highway 290 Business in Prairie View, Waller County, Texas,
      in a safe, reasonable, and lawful manner. Suddenly, an unknown white
      vehicle traveling at a high rate of speed proceeded to pass [Franks]
      forcing [Franks] into the right lane and causing [Franks] vehicle to
      collide with a vehicle driven by [another]. [Franks] suffered injuries as
      a result of the actions of the unknown vehicle.
      At the time of the collision, [Franks] vehicle and person were covered
      by an automobile insurance policy issued by [Liberty], which was in
      full force and effect. The insurance policy included
      uninsured/underinsured motorist coverage as defined within the policy
      and/or by statute.

      Franks sought to obtain a Declaratory Judgment establishing the negligence
and uninsured status of the unknown driver, thereby entitling Franks to recover
damages from Liberty under the uninsured motorist provision (“UIM”) in Franks’
Liberty Mutual policy. See Tex. Ins. Code art. 5.06-1(5). Further, Franks brought
claims for (1) breach of insurance contract; (2) breach of the duty of good faith and
fair dealing; (3) deceptive trade practices; and (4) violations of the Texas Insurance
Code. Franks also requested a declaratory judgment determining:

         • The driver of the white vehicle was negligent and was an
           uninsured/underinsured motorist;
         • The amount of damages Franks suffered and is legally entitled to
           recover from the driver of the white vehicle;
         • Franks’ damages are covered by his insurance policy and he is entitled
           to recover those damages from Liberty; and
         • The amount of damages, attorneys’ fees, interest and court costs that
           Liberty is obligated to pay.
      In December 2017, Liberty filed a motion to sever and abate Franks’ UIM
claim, which was granted. Liberty filed a motion for summary judgment on February
5, 2018, on the basis that there is no UIM coverage applicable to Frank’s claim. On

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February 6, 2018, the trial court severed and abated Franks’ contractual and extra-
contractual claims into trial court Cause No. 2017-49231-A. The UIM claim
remained in trial court Cause No. 2017-49231. In March 2018, the trial court granted
summary judgment in trial court Cause No. 2017-49231. From that judgment, Franks
brings this appeal.

                      WHAT CLAIMS ARE BEFORE THIS COURT?

       The first issue we must address is what claims were disposed of by the trial
court’s judgment. Franks contends the trial court erred in entering summary
judgment on his contractual and extra-contractual claims when those claims had
been severed and abated. Liberty responds that because the UIM claim was a
necessary predicate to the severed claims, the trial court did not err.

       Both parties mistake the effect of the severance order and the judgment
entered. The trial court severed from trial court Cause No. 2017-49231 the
contractual and extra-contractual causes of action against Liberty and transferred
those claims into trial court Cause No. 2017-49231-A. In trial court Cause No. 2017-
49231, the trial court then entered judgment dismissing the claims remaining in that
suit. The only appeal before this court is from that judgment. Thus, the trial court’s
judgment did not, and could not have, disposed of Franks’ contractual or extra-
contractual claims. Accordingly, before this court is only Franks’ suit to determine
contractual liability.

       We therefore overrule Franks’ claim that the judgment in trial court Cause No.
2017-49231 is void because it dismissed his contractual or extra-contractual claims.
Issue one is overruled.




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      Franks’ second issue asserts the judgment was improper because it disposed
of claims not challenged in Liberty’s motion, which only raised the question of
coverage. As stated above, the trial court could not grant summary judgment on
Franks’ contractual or extra-contractual claims as they were no longer pending in
trial court Cause No. 2017-49231. Issue two is overruled.

                               IS THERE COVERAGE?

      The policy at issue in this case defines an uninsured motor vehicle as a land
motor vehicle of any type:

      1. To which no bodily injury liability bond or policy applies at the time
      of the accident.
      2. To which a bodily injury liability bond or policy applies at the time
      of the accident. In this case its limit for bodily injury liability must be
      less than the minimum limit for bodily injury liability specified by the
      financial responsibility law of the state in which “your covered auto” is
      principally garaged.
      3. Which is a hit-and-run vehicle whose operator or owner cannot be
      identified and which hits:
      a. You or any “family member”;
      b. A vehicle which you or any “family member” are “occupying”; or
      c. “Your covered auto”.
      4. To which a bodily injury liability bond or policy applies at the time
      of the accident but the bonding or insuring company:
      a. Denies coverage; or
      b. Is or becomes insolvent.

      Relying upon subsection three, Liberty contends the UIM provision only
provides coverage for accidents involving unidentified tortfeasors if there is actual,
physical contact between the tortfeasor’s vehicle and the insured’s vehicle. Franks
does not dispute there was no physical contact. Rather, Franks contends subsection

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one provides coverage in this case because it also applies to “hit-and-run” vehicles.
The question before us, therefore, is whether subsection one applies to unknown
vehicles as well as known vehicles.

      The Supreme Court of Texas has expressly held there must be actual physical
contact between the insured’s vehicle and the unidentified tortfeasor, as required by
statute, to trigger the UIM coverage. Nationwide Ins. Co. v. Elchehimi, 249 S.W.3d
430, 432 (Tex. 2008). The statute in question is Tex. Ins. Code § 1952.104(3), which
requires “for the insured to recover under the uninsured motorist coverage if the
owner or operator of any motor vehicle that causes bodily injury or property damage
to the insured is unknown, actual physical contact must have occurred between the
motor vehicle owned or operated by the unknown person and the person or property
of the insured.” “The term ‘actual physical contact’ was added to the Insurance Code
in 1977 to prevent fraudulent insurance claims against ‘phantom cars’ in single-car
accidents.” Smith v. Nationwide Mut. Ins. Co., No. 04-02-00646-CV, 2003 WL
21391534, at *2 (Tex. App.—San Antonio June 18, 2003, pet. denied) (citing
Deville, 988 S.W.2d at 333–34). In this case, the relevant policy language requiring
that the vehicle “whose operator or owner cannot be identified . . . hit” the insured’s
vehicle is consistent with the statute.

      Franks’ argument that subsection one applies to unknown vehicles “whose
operator or owner cannot be identified,”, has previously been rejected by the First
Court of Appeals in Tex. Farmers Ins. Co. v. Deville, 988 S.W.2d 331, 333–34 (Tex.
App.—Houston [1st Dist.] 1999, no pet.). In Deville, the court held the specific
coverage requirements for unknown vehicles in the statute and the policy controlled
over the same definition of an uninsured motor vehicle that is at issue here — one
“[t]o which no bodily injury liability bond or policy applies at the time of the
accident.” The unambiguous language of the policy provides coverage for a vehicle

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that is uninsured. It then more specifically limits coverage for an unknown vehicle
to actual physical contact between the insured’s vehicle and the unidentified
tortfeasor. See Elchehimi, 249 S.W.3d at 432; Deville, 988 S.W.2d at 333–34. For
these reasons, issues three and four are overruled.

                                   CONCLUSION

      Having overruled all of Franks’ issues, we affirm the trial court’s judgment.




                                       /s/       Margaret “Meg” Poissant
                                                 Justice



Panel consists of Justices Christopher, Hassan, and Poissant. (Poissant, J.,
concurring).




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