Chief Justice                                                  ^>>^*^rf^                                               Clerk
JamesT.Worthen                                                   %mi<^                                                 Cathy S.Lusk
                                      Twelfth Court of Appeals
Justices                                                                                                               Chief Staff Attorney
Sam Griffith                                                                                                           Margaret Hussey
Diane DeVasto




           Friday, September 30, 2005


           Mr. Richard L. Ray                                              Mr. Erik E. Ekvall
           Ray & Elliott, PC                                               Ekvall & Byrne, LLP
           300 S. Trade Days Blvd.                                         12377 Merit Drive
           (300S.Hwyl9)                                                    Suite 700
           Canton, TX 75103                                                Dallas, TX 75251

           RE:       Case Number:                       12-04-00141-CV
                     Trial Court Case Number:           02-00163


           Style: Jimmie Don Miller
                     v.

                     Progressive County Mutual Insurance Company

           Enclosed is a copy of the Memorandum Opinion issued this date in the above styled and
           numbered cause. Also enclosed is a copy of the court's judgment.

           Very truly yours,

           CATHY S. LUSK, CLERK


           By:     KtijUJlA, Mt
                 Katrina McClenny, ChiefDeputy Clerk

           CC:            Hon. John Ovard
                          Hon. Teresa Drum
                          Ms. Karen Wilson




                 1517West Front Street • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax: 903-593-2193
  Serving Anderson, Angelina, Cherokee, Gregg, Henderson, Houston, Nacogdoches, Rains, Rusk, Sabine, San Augustine, Shelby, Smith, Trinity,
                                                    Upshur, Van Zandt and Wood Counties
                                                        www.12thcoa.courts.state.tx.us
                             NO. 12-04-00141-CV


                    IN THE COURT OF APPEALS


       TWELFTH COURT OF APPEALS DISTRICT


                                TYLER, TEXAS


JIMMIE DON MILLER,                           §      APPEAL FROM THE 294TH
APPELLANT




V                                            §      JUDICIAL DISTRICT COURT

PROGRESSIVE COUNTY MUTUAL
INSURANCE COMPANY,
APPELLEE                                     §       VANZANDT COUNTY, TEXAS


                              MEMORANDUM OPINION

       This is an insurance coverage case. Jimmie Don Miller appeals a summary judgment
in favor of Progressive County Mutual Insurance Company and the denial of his own motion
for summaryjudgment. In one issue, Miller contends that the doctrines ofwaiver and estoppel
precluded Progressive from denying coverage. We affirm.


                                  Background Facts

       Jimmie Don Miller filed suit against Bobbie Smith for damages arising out of an
automobile accident. Smith did not notify her insurance carrier, Progressive County Mutual
Insurance Company, that sh e w as being sued and did not forward the lawsuit papers to
Progressive. On August 7, 2001, the trial court rendered a default judgment against Smith in
the amount of $175,000.

       On August 14, 2001, Progressive requested information from Miller's attorney
regarding the status of Miller's treatment for injuries related to the accident. On September
6, 2001, Progressive sent a letter to Smith informing her of a possible lawsuit by Miller. The
letter asked Smith to notify Progressive if Miller filed suit.
        On September 11, 2001, in response to Progressive's August 14 inquiry, Miller's
attorney sent a letter to Progressive stating that Miller had obtained a default judgment against
Smith. This letter was dated four days after the default judgment became final. Thereafter,
Progressive denied coverage, and Miller sued Progressive to enforce the default judgment.
Progressive filed a motion for summary judgment asserting noncoverage because it did not
receive notice ofthe underlying lawsuit. Miller filed a motion for summaryjudgment seeking
to establish coverage. The trial court granted Progressive's motion for summary judgment
denying coverage and denied Miller's motion for summary judgment seeking to establish
coverage. This appeal followed.


                                      Standard of Review

        Summary judgment is appropriate if the movant establishes that it is entitled to
judgment as a matter of law on the issues set out in the motion. Tex. R. Civ. P. 166a(c). In
reviewing a traditional summaryjudgment, we apply the following well-established standard:


                1.      The movant for summary judgment has the burden of
                        showing there is no genuine issue ofmaterial fact and that
                        it is entitled to judgment as a matter of law;

                2.      In deciding whether there is a disputed material fact issue
                        precluding summary judgment, evidence favorable to the
                        non-movant will be taken as true; and

                3.      Every reasonable inference must be indulged in favor of
                        the non-movant and any doubts resolved in its favor.



Nixon v.Mr. Prop. Mgmt. Co., 690 S.W.2d 546,548-49 (Tex. 1985). When parties file cross-
motions for summary judgment, each party in support of its own motion necessarily takes the
position that there is no genuine issue of fact in the case and that it is entitled to judgment as
a matter of law. Ackermann v. Vordenbaum, 403 S.W.2d 362, 364 (Tex. 1966).
        Each party has the burden of clearly proving its right to judgment as a matter of law,
and neither may prevail simply because the other failed to discharge its burden. James v.
HitchcockIndep. Sch. Dist, 742 S.W.2d 701,703 (Tex. App.-Houston [lstDist] 1987, writ
denied). Where the trial court grants one motion for summary judgment and denies the other,
we must review the summary judgment evidence presented by both sides and determine all
questions presented. Jones v. Strauss, 745 SW.2d 898,900 (Tex. 1988). In so doing, we first
review the order granting summary judgment, and if we determine the order was erroneous,
we review the trial court's action in overruling the denied motion. See Tobin v Garcia, 159
Tex. 58,64,316 S.W.2d 396,400 (1958). We may then either affirm the judgment or reverse
and render the judgment the trial court should have rendered, including one that denies both
motions.    Gramercy Ins. Co. v. MRD Investments, Inc., 47 SW.3d 721, 724 (Tex.
App.-Houston [14th Dist.] 2001, pet. denied) (citing Jones, 745 SW.2dat900). We may also
render judgment for the other movant, provided that both parties sought final judgment relief
in their cross motions for summary judgment. See CU Lloyd's of Texas v. Feldman, 977
S.W.2d 568, 569 (Tex. 1998); Jones, 745 S.W.2d at 900.
        Where, as here, the court's order does not specify the grounds upon which summary
judgment was granted, we will affirm the judgment on any meritorious theory advanced in the
motion. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Carr v.
Brasher, 116 S.W.2d 567, 569 (Tex. 1989).


                                   Estoppel and Waiver

        In his sole issue, Miller contends that Progressive waived its right to rely on the notice
provision of the policy and cooperation clause of the policy. Consequently, Miller argues,
Progressive was estopped to deny coverage and, therefore, was not entitled to summary
judgment. Miller concedes that, as a general rule, where an insurance policy "has the
appropriate wording" requiring its insured to provide notice ofsuit, the insurance company is
prejudiced as a matter of law ifits insured fails to provide the required notice before a default
   judgment becomes final and unappealable.1 See Harwell v. State Farm Mut. Auto. Ins. Co.,
    896 S.W.2d 170,174 (Tex. 1995); Liberty Mut. Ins. Co. v. Cruz, 883 SW.2d 164,165 (Tex.
    1993). Miller does not contend that Progressive had notice of the default judgment prior to
   the date the judgment became final. Instead, Miller contends that the "prejudice as a matter
   oflaw" rule is inapplicable here because Progressive paid his property damage claims. Miller
   further asserts that Progressive's payment of the claims is an acknowledgment of liability.
   Consequently, he concludes, Progressive waived its noncoverage defense and was estopped
   to deny coverage.
              Progressive maintains that Miller failed to plead waiver and estoppel and, therefore,
   may not avail himself ofthese doctrines. Alternatively, Progressive contends that waiver and
   estoppel are inapplicable in this case. Based upon our review of Miller's summary judgment
   motion, we conclude that he has raised both waiver and estoppel. Therefore, we will address
   his issue.

   Applicable Law
              Waiver has been frequently defined as an intentional relinquishment of a known right.
   or intentional conduct inconsistent with claiming it. Ford v. State Farm Mut. Auto. Ins. Co.,
   550 SW.2d 663, 666 (Tex. 1977). Waiver is essentially unilateral in character.                          United
   States Fidelity & Guaranty v. Bimco, 464 S.W.2d 353, 358 (Tex. 1971). It results as a legal
   consequence from some act or conduct ofthe party against whom it operates, and no act ofthe



          The policy in the case at bar, in Part E - Duties After Accident or Loss - General Duties, includes the
following notice requirement:

         A.       We must be notified promptly of how, when and where the accident or loss happened. Notice
                  should also include the names and addresses of any injured person and of any witnesses. If we
                  show that your failure to provide notice prejudices our defense, there is no liability coverage under
                  the policy.

         B.       A person seeking any coverage must:

                  1.       Cooperate with us in the investigation, settlement or defense of any claim or suit.

                  2.       Promptly send us copies of any notices or legal papers received in connection with the
                           accident or loss.
party in whose favor it is made is necessary to complete it. Id. Waiver need not be based on
estoppel. Id. Estoppel arises where by fault of one, another has been induced to change his
position for the worse. Massachusetts Bonding & Ins. Co. v. Orkin Exterminating Co., 416
S.W.2d 396, 401 (Tex. 1967). Thus, estoppel requires a showing that the insured was
prejudiced by the conduct of the insurer. American Eagle Ins. Co. v. Nettleton, 932 S.W.2d
169, 174-75 (Tex. App.-El Paso 1996, writ denied).
         As a general rule, waiver and estoppel cannot enlarge the risks covered by a policy and
cannot be used to create a new and different contract with respect to the risk covered and the
insurance extended. Minnesota Mut. Life Ins. Co. v. Morse, 487 S.W.2d 317, 320 (Tex.
1972).
In a proper case, however, waiver or estoppel can prevent an insurer from asserting policy
defenses, including the defense of noncoverage. See Tull v. Chubb Group ofIns. Cos., 146
S.W.3d 689, 694-95 (Tex. App.-Amarillo 2004, no pet.).
         In reviewing the record, we note that Progressive paid Miller for the property damage
on May 25,2000, which was approximately one year before Smith was served with the lawsuit
on May 8, 2001. Therefore, at the time it paid Miller's property damage claims, Progressive
had no knowledge of its right to deny liability coverage under the policy. Absent such
knowledge, Progressive's payment of Miller's property damage claims does not constitute a
waiver of Progressive's right to rely on the notice provision and cooperation clause of the
policy. See Tull, 146 S.W.3d at 695 (citing Washington Nat'llns. Co. v. Craddock, 130 Tex.
251, 253, 109 S.W.2d 165, 166 (Tex. Comm'n App. 1937) (holding that under Texas law,

payment of some policy benefits does not necessarily estop an insurer from asserting its
noncoverage defense)). Miller also points out that on June 28,2001, Progressive paid a "lien
for ETMC for IGP Korosec." This payment was also made before Progressive received notice
of Miller's suit against Smith and likewise does not effect a waiver. Moreover, neither the

payment ofMiller's property damage claims or payment of the ETMC lien prejudiced Smith,
its insured. Therefore, estoppel is inapplicable. See American Eagle Ins. Co., 932 SW.2d
at 174-75.
          In summary, neither payment of the property damage claims or the ETMC lien
precluded summary judgment against Miller. The summary judgment record contains no
evidence that the actions of Progressive operated to harm Smith or prejudice her position in
Miller's lawsuit against her.            Therefore, waiver and estoppel are not applicable here.
Accordingly, the trial court properly granted Progressive's motion for summary judgment.
Consequently, we do not address the denial of Miller's motion.             Miller's sole issue is
overruled.



                                                 Conclusion

         Having overruled Miller's sole issue, the judgment of the trial court is affirmed.




                                                                     DIANE DEVASTO
                                                                            Justice




Opinion delivered September 30, 2005.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.




                                                  (PUBLISH)
                                COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT


                                        SEPTEMBER 30, 2005



                                       NO. 12-04-00141-CV


                                      JIMMIE DON MILLER,
                                                 Appellant
                                                     V.

                              PROGRESSIVE COUNTY MUTUAL

                                     INSURANCE COMPANY,
                                                 Appellee



                           Appeal from the 294th Judicial District Court
                        of Van Zandt County, Texas. (Tr.Ct.No. 02-00163)


                       THIS CAUSE came to be heard on the appellate record and briefs filed herein,

and the same being inspected, it is the opinion of this court that there was no error in the judgment.

                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged

against the appellant, JIMMIE DON MILLER, for which execution may issue, and that this

decision be certified to the court below for observance.


                       Diane DeVasto, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
