                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-463-CV


ROXANNE HUNTER,                                                 APPELLANT
INDIVIDUALLY AND AS
NEXT FRIEND OF H.H.,
A MINOR
                                       V.

STATE FARM COUNTY MUTUAL                                          APPELLEE
INSURANCE COMPANY OF
TEXAS A/K/A STATE FARM
INSURANCE COMPANY

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          FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

                               I. INTRODUCTION

     This is an appeal from the trial court’s grant of summary judgment

denying a claim for underinsured motorist coverage. Appellant Roxanne Hunter,


     1
         … See Tex. R. App. P. 47.4.
individually and as next friend of H.H., her minor daughter, filed suit against

Appellee State Farm County Mutual Insurance Company of Texas, a/k/a State

Farm Insurance Company.       Appellant raises three issues.     First, Appellant

argues that the trial court erred by ruling that the “family member” exception

of the family’s automobile insurance policy was applicable to exclude

underinsured motorist coverage because the exception violates public policy.

Second, Appellant argues that the underinsured motorist coverage did not apply

to H.H.’s injuries and damages. Third, Appellant argues that the trial court

improperly acted as a factfinder regarding H.H.’s actual damages. 2 We will

affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      This case involves an automobile accident that allegedly occurred on

November 13, 2003. Appellant alleges that H.H. was injured while riding as a

passenger in a vehicle driven by her sister, Heather. At the time of the alleged

accident, Appellant’s family maintained a personal automobile insurance policy

through State Farm, the vehicle Heather was driving was a described vehicle

under that policy, and Heather was a named insured driver. Heather collided


      2
       … Appellant concedes that her second and third issues are briefed “in an
abundance of caution” and that if the trial court was correct in deciding that the
family member exception applies to the facts of this case without contravening
public policy, both her second and third issues are superfluous.

                                        2
with a utility trailer that was attached to a truck owned by the city of Fort

Worth. Allegedly, the Fort Worth truck was illegally parked. Appellant alleged

that both Heather and the city of Fort Worth were guilty of negligence.

Appellant, however, settled with both potential tortfeasers. Appellant settled

with Heather for $20,000.00 and with the city of Fort Worth for $75,000.00.

After these settlements, Appellant filed her amended petition against State

Farm claiming underinsured motorist benefits. State Farm filed a motion for

summary judgment claiming that the policy’s explicit terms excluded

underinsured motorist benefits. The trial court granted State Farm’s summary

judgment. This appeal followed.

      The personal automobile insurance policy Appellant’s family maintained

through State Farm at the time of the accident contained the following

language:

      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 . . . caused by an accident.

      ....

      Covered person . . . means . . . any family member [or] [a]ny other person
      occupying [a] covered auto . . .

      ....

      Uninsured motor vehicle means a land motor vehicle or trailer . . . [w]hich
      is an underinsured motor vehicle. An underinsured motor vehicle is one

                                       3
      to which a liability bond or policy applies at the time of the accident but
      its limit of liability [is] either . . . not enough to pay the full amount the
      covered person is legally entitled to recover as damages . . . or . . . has
      been reduced by payment of claims to an amount which is not enough to
      pay the full amount the covered person is legally entitled to recover as
      damages.

      ....

      However, uninsured motor vehicle does not include any vehicle or
      equipment:

             1.     Owned by or furnished or available for the regular use of you
                    or any family member.
             ....

             3.     [or] [o]wned by any governmental body . . . . (Emphasis
                    original).

      Appellant concedes that she cannot recover underinsured coverage

benefits related to any alleged acts or omissions by the city of Fort Worth.

Appellant argues, however, that despite Heather—at the time of the

accident—being a family member as defined by the policy and driving a

described vehicle under the policy, application of the family member exception

to preclude underinsured coverage benefits related to Heather’s alleged acts or

omissions violates public policy.

                             III. S TANDARD OF R EVIEW

      We review a trial court’s granting of a traditional summary judgment de

novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.


                                         4
2003). A summary judgment under Rule of Civil Procedure 166a(c) is properly

granted only when a movant establishes that there are no genuine issues of

material fact and that the movant is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215

(Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 676

(Tex. 1979).    A defendant moving for summary judgment must either (1)

disprove at least one element of the plaintiff’s cause of action, or (2) plead and

conclusively establish each essential element of an affirmative defense to rebut

plaintiff’s cause.   See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v.

Mason, 143 S.W.3d 794, 798 (Tex. 2004); see also Cathey v. Booth, 900

S.W.2d 339, 341 (Tex. 1995). The movant must conclusively establish its

right to judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59,

60 (Tex. 1986). A matter is conclusively established if reasonable people could

not differ as to the conclusion to be drawn from the evidence. City of Keller v.

Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

                              IV. A PPLICABLE L AW

      We construe insurance contracts under the same construction rules that

govern ordinary contracts.     Gomez v. Allstate Texas Lloyds Ins. Co., 241

S.W.3d 196, 201 (Tex. App.—Fort Worth 2007, no pet.). In applying these

rules, our primary concern is to ascertain the parties’ intent as expressed in the

                                        5
policy’s language.    See Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980

S.W.2d 462, 464 (Tex. 1998).        When determining the parties’ intent, we

examine only the insurance policy’s language to see what is actually stated.

See   Esquivel   v.   Murray   Guard,   Inc.,   992   S.W.2d   536,    544   (Tex.

App.— Houston [14th Dist.] 1999, pet. denied). We must consider all of the

provisions with reference to the entire policy; no single provision will be

controlling. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).

      Stated generally, the version of Texas Insurance Code article 5.06

applicable to this case at the time of the alleged accident provided that no

automobile liability insurance covering liability arising out of the ownership,

maintenance, or use of any motor vehicle will be issued unless coverage is also

provided for uninsured and underinsured motor vehicles.3              Because the

insurance coverage at issue is statutorily mandated, we must interpret policy

provisions as written. See Mid-Century Ins. Co. v. Kidd, 997 S.W.2d 265,

271–72 (Tex. 1999) (stating that Texas courts “are bound to interpret the

statutes and [Texas Department of Insurance]-approved policy provisions as

written”).


      3
       … See Act of May 27, 1981, 67th Leg., R.S., ch. 380, § 1, 1981 Tex.
Gen. Laws 1002, 1002, repealed by Act of May 24, 2005, 79th Leg., R.S., ch.
727, § 18, 2005 Tex. Gen. Laws 1752, 2186–87 (effective April 1, 2007)
(current version at Tex. Ins. Code Ann. § 1952.101 (Vernon Supp. 2008)).

                                        6
      The legislature specifically authorized the Texas Department of Insurance

to exclude certain vehicles from the standard policy definition of an uninsured

or underinsured vehicle.4    If, however, a provision conflicts with express

statutory requirements or purposes, it is invalid. See Kidd, 997 S.W.2d at

271–72.

                         V. T HE F AMILY U SE E XCEPTION

      Texas law is well settled that the policy language at issue in this case

unambiguously excludes vehicles owned by or furnished for the regular use of

an insured or family member from the definition of uninsured motor vehicle and

that such a limitation of coverage does not contravene public policy.5 See

Scarborough v. Employers Cas. Co., 820 S.W.2d 32, 34 (Tex. App.—Fort

Worth, 1991, writ denied) (holding that automobile policy which excluded from

definition of uninsured vehicle any vehicle owned by or available for regular use

by insured or family member was valid and did not contravene public policy);

see also Bergenson v. Hartford Ins. Co. of the Midwest, 845 S.W.2d 374, 377



      4
      … See Act of June 2, 2003, 78th Leg., R.S., ch. 206, § 21.08, 2003
Tex. Gen. Laws 907, 950–51 (effective June 11, 2003), repealed by Act of
May 24, 2005, 79th Leg., R.S., ch. 727, § 18, 2005 Tex. Gen. Laws 1752,
2186–87 (current version at Tex. Ins. Code Ann. § 1952.102 (Vernon Supp.
2008)).
      5
      … Underinsured vehicle—as the cited              policy   language   above
conveys—also includes underinsured vehicles.

                                       7
(Tex. App.—Houston[1st Dist.] 1992, writ ref’d) (holding that policy’s exclusion

of family car from definition of “uninsured motor vehicle” did not contravene

purpose of Texas’ uninsured motorist statute); Charida v. Allstate Indemnity

Co., 259 S.W.3d 870, 874 (Tex. App.—Houston [1st Dist.] 2008, no pet.)

(holding that definition of “uninsured motor vehicle” excluded vehicle owned by

or furnished or available for use of named insured or any family member); State

Farm Mut. Ins. Co. v. Conn, 842 S.W.2d 350, 351 (Tex. App.—Tyler 1992,

writ denied) (holding that policy language excluding from definition of

“uninsured motor vehicle” any vehicle or equipment “owned by or furnished or

available for the regular use of you or any family member” consistent with

intent of Texas Legislature when it enacted statute requiring provision of

underinsured coverage). Hence, under the plain language of the policy, the

vehicle that Heather was driving at the time of the accident in question was not

an underinsured vehicle.

      Recognizing the volume of law against her position, in her brief and in oral

argument, Appellant asked this court to consider the case of Jankowiak v.

Allstate Property & Casualty Insurance Company for the proposition that the

particular family member exception applicable in this case contravenes public

policy. 201 S.W.3d 200, 210 (Tex. App.—Houston [14th Dist.] 2006, no pet.)

Appellant’s reliance on Jankowiak is misplaced. First, as Appellant’s counsel

                                        8
acknowledged during oral argument, Jankowiak did not involve the family

member exception applicable to this case.              Second, counsel further

acknowledged in oral argument that if the Supreme Court of Texas gave the

opinion in Bergenson v. Hartford Insurance Company of the Midwest the

notation of “writ refused,” we as a court are bound by that opinion to uphold

the trial court’s judgment applying the family member exception to the facts of

this case.6 845 S.W.2d at 377. We are, in fact, bound by Bergensen because

our supreme court gave it the notation of writ refused. See Id.

      In Bergensen, the appellant was injured while riding in a vehicle driven by

her husband. Id. at 375. The appellant settled her claim against her husband

for the limits under the liability provision of his insurance policy and then sought

to recover underinsured motorist benefits under the same policy. Id. The court

determined that the purpose of Article 5.06 of the Texas Insurance Code is to

protect the insured, the insured’s family, and guests from the “negligence of

others” and that “negligence of others” refers to negligence of strangers to the


      6
        … The notation “writ refused” indicates that the supreme court found
that “the court of appeals’ judgment is correct and that the legal principles
announced in the opinion are likewise correct.” Tex. R. App. P. 56.1(c). Thus,
“a decision . . . in which the Supreme Court refuses a writ of error is as binding
as a decision of the Supreme Court itself.” ‘21' Int’l Holdings v. Westinghouse
Elec. Corp., 856 S.W.2d 479, 483 (Tex. App.—San Antonio 1993, no writ)
(citing Ohler v. Trinity Portland Cement Co., 181 S.W.2d 120, 123 (Tex. Civ.
App.—Galveston 1944, no writ)).

                                         9
policy holder, not to members of the policy holder’s family. Id. at 376–77.

The supreme court refused writ without qualification. Such cases have equal

precedential value as the Supreme Court of Texas’s own opinions. See Tex. R.

App. P. 56.1(c).

      In this case, H.H. was injured while riding in a vehicle driven by her sister.

H.H. has settled her claim against her sister under the liability provisions of the

family’s insurance policy.     Appellant now seeks to recover underinsured

motorist benefits under the same policy. The policy’s family member exception,

however, applies in this case, and under Bergensen—and a volume of Texas

law—Appellant cannot recover underinsured motorist benefits. We hold that

the trial court did not err by granting summary judgment based on application

of the policy exception applicable to the facts of this case and overrule

Appellant’s first issue. Having overruled Appellant’s first issue, we need not

address her second and third issues.




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                              VI. C ONCLUSION

     For the foregoing reasons, we affirm the trial court’s judgment.




                                         DIXON W. HOLMAN
                                         JUSTICE

PANEL: HOLMAN, GARDNER, and WALKER, JJ.

WALKER, J. concurs without opinion.

DELIVERED: December 18, 2008




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