Affirmed in Part, Reversed and Rendered in Part, and Opinion filed February 16,
2012.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-10-00995-CV


 FARMERS INSURANCE EXCHANGE AND ALLSTATE COUNTY MUTUAL
               INSURANCE COMPANY, Appellants

                                          V.

                           JUAN RODRIGUEZ, Appellee


                      On Appeal from the 125th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2008-33641


                                 OPINION

      Appellee Juan Rodriguez was injured while helping his neighbor Michael
Woodling remove a deer stand from Woodling‘s trailer. Rodriguez sued Woodling for
negligence and, in the same case, Rodriguez‘s automobile insurer, appellant Allstate
County Mutual Insurance Company, seeking coverage under an uninsured/underinsured
motorist (UIM) policy. Rodriguez later amended his petition to add Woodling‘s insurer,
appellant Farmers Insurance Exchange, seeking liability coverage for Woodling under his
homeowner‘s policy. In a pre-trial partial summary judgment, the court declared the
claims were covered by both insurance policies. At trial, the jury found no negligence on
the part of Rodriguez, found that Woodling was negligent, and found that Woodling‘s
negligence caused Rodriguez‘s damages. The primary issues on appeal pertain to the
trial court‘s subject matter jurisdiction over the claims against Farmers and interpretation
of standard form language in the Allstate automobile policy.

       Farmers appeals the trial court‘s grant of summary judgment against Farmers in
favor of Rodriguez, denial of Farmers‘ plea to the jurisdiction, and entry of declaratory
judgment finding coverage under the Farmers insurance policy. In three issues, Farmers
contends the trial court lacked subject matter jurisdiction over Rodriguez‘s claim against
Farmers, the homeowner‘s policy issued by Farmers does not provide liability coverage
for Woodling, and Rodriguez filed an impermissible direct action against Farmers
without satisfying conditions precedent in Woodling‘s insurance policy. We hold the
trial court erred by granting summary and declaratory judgments against Farmers and
denying Farmers‘ plea to the jurisdiction because Rodriguez‘s claim against Farmers was
not ripe when the court made its rulings. We therefore reverse and render judgment
dismissing Rodriguez‘s claims against Farmers for lack of subject matter jurisdiction.

       Allstate appeals the trial court‘s summary judgment in favor of Rodriguez against
Allstate and declaratory judgment finding coverage under the UIM policy. In four issues,
Allstate contends its policy does not cover Rodriguez‘s injury but the Farmers policy
does. We hold the UIM provisions in Rodriguez‘s automobile policy provide coverage
for his injury. We therefore affirm the trial court‘s summary judgment and declaratory
judgment against Allstate.

                                     Undisputed Factual Background
       The following facts are undisputed. Using a trailer hitched to his pickup truck,
Woodling1 transported a deer stand from his deer lease to his residence. He pulled into
his driveway and attempted to remove the deer stand from the trailer. He pushed the deer
       1
           Woodling is not a party to this appeal.

                                                     2
stand out of the trailer until the legs on the stand touched the driveway. He left the stand
resting at a 30-degree angle against the trailer. He then attached a come-along2 to a fence
post and to the stand and attempted to raise the stand upright. Realizing he could not
accomplish the task alone, he requested assistance from his neighbor, Rodriguez.

       Rodriguez and Woodling decided to lift the stand manually by walking forward
out of the trailer and onto the driveway. They began in the trailer, each using both hands
to push the stand upward. Then they stepped onto the driveway and took ―one or two‖
more steps. When the stand was no longer touching the trailer, Woodling realized it was
too heavy and yelled, ―Juan, I can‘t hold it. Jump.‖ Woodling then jumped away,
leaving Rodriguez alone to hold the stand, which weighed approximately 350 pounds.
The stand fell, and Rodriguez was injured.

       The liability provisions of the Farmers homeowners policy contain the following
exclusion for bodily injury claims: ―arising out of the ownership, maintenance, operation,
use, loading or unloading of . . . trailers [or] semi-trailers‖ except for ―trailers or semi-
trailers while not being towed by or carried on a motor vehicle.‖

       Rodriguez‘s Allstate automobile policy included UIM coverage for damages
Rodriguez was ―legally entitled to recover from the owner . . . of an uninsured [or
underinsured] motor vehicle [including any type of trailer] because of bodily injury
sustained by [Rodriguez and] caused by an accident.‖ Under the Allstate policy, the
uninsured or underinsured owner‘s liability must ―arise out of the ownership,
maintenance or use of the uninsured motor vehicle.‖ (Emphasis added.)

                                       Procedural History

       Rodriguez filed suit against Woodling and Allstate on June 2, 2008, asserting a
negligence claim against Woodling and a claim against Allstate for UIM coverage.
Rodriguez amended his petition on September 16, 2008, adding Farmers as a defendant
and seeking declarations that the exclusion from liability coverage in the Farmers policy

       2
         A come-along is a tool used for moving heavy loads or for tightening wire.   COLLINS ENGLISH
DICTIONARY (2003 ed.).

                                                  3
did not apply or, alternatively, that Rodriguez‘s damages arose from the use of a trailer
covered by the Allstate policy.

       Farmers filed a motion to sever, contending Rodriguez‘s joinder of Farmers was
improper.3 Rodriguez moved for partial summary judgment against Farmers, seeking a
declaration that Farmers had a contractual obligation to indemnify Woodling. Farmers
moved for summary judgment based on improper joinder, lack of ripeness, and
applicability of its ―trailers or semi-trailers‖ exclusion. Allstate moved for summary
judgment, asserting that the accident did not arise out of the use of an uninsured motor
vehicle so that the Allstate policy did not apply. The trial court granted Rodriguez‘s
motion and denied motions filed by Allstate and Farmers. In a combined plea to the
jurisdiction and motion to vacate the court‘s order granting partial summary judgment,
Farmers reasserted its jurisdictional arguments before trial of the underlying personal
injury claim. The court denied the combined motion.

       Before trial, Allstate, while contesting coverage under its policy, stipulated to be
bound by the jury‘s findings on negligence and damages. The jury found Woodling
100% negligent and awarded damages to Rodriguez totaling $233,123.71. Rodriguez
subsequently filed a motion for summary judgment against Allstate, seeking a declaration
that his injuries were covered under the Allstate policy, which the trial court granted.
After reducing the jury award based on the amount of Rodriguez‘s incurred medical
expenses, the trial court entered judgment awarding Rodriguez $211,618.42, plus interest
and costs, and declaring that Rodriguez‘s injuries were covered under both the Farmers
and Allstate policies.

                                             Standards of Review

       Traditional Summary Judgment.

       To prevail on a traditional Rule 166a(c) summary-judgment motion, a movant
must prove that there is no genuine issue regarding any material fact and that it is entitled

       3
           The record does not show whether the trial court ruled on that motion.

                                                          4
to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Little v. Tex. Dep’t of
Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A plaintiff moving for a traditional
summary judgment must conclusively prove all essential elements of its claim. See
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).

      A defendant may prevail by traditional summary judgment if it conclusively
negates at least one essential element of a plaintiff‘s cause of action. See IHS Cedars
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). A
movant seeking traditional summary judgment on an affirmative defense has the initial
burden of establishing entitlement to judgment as a matter of law by conclusively
establishing each element of his affirmative defense. See Chau v. Riddle, 254 S.W.3d
453, 455 (Tex. 2008); see also Tex. R. Civ. P. 166a(b)–(c). A matter is conclusively
established if reasonable people could not differ as to the conclusion to be drawn from
the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

      If the movant meets its burden, the burden then shifts to the nonmovant to raise a
genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their conclusions in light of all of the
summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754,
755 (Tex. 2007).

      On appeal, we review de novo a trial court‘s summary judgment ruling. See Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In
our review, we consider all the evidence in the light most favorable to the nonmovant,
crediting evidence favorable to the nonmovant if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not. See Mack Trucks, Inc.
v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). When, as here, the parties file competing
motions for summary judgment and the trial court grants one motion and denies the other,
this court should review both parties‘ summary-judgment evidence and determine all
questions presented. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.

                                            5
2005); English v. B.G.P. Int’l, Inc., 174 S.W.3d 366, 370 (Tex. App.—Houston [14th
Dist.] 2005, no pet.).

         Subject-matter jurisdiction.

         The absence of subject-matter jurisdiction may be raised by a plea to the
jurisdiction or another procedural vehicle such as a motion for summary judgment.
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).4 When a plea to the
jurisdiction challenges jurisdictional facts, as here, we consider the evidence submitted
by the parties. Stinson v. Ins. Co. of Penn., 286 S.W.3d 77, 83 (Tex. App.—Houston
[14th Dist.] 2009, pet. denied). The standard of review for a jurisdictional plea based on
evidence generally mirrors that of a traditional motion for summary judgment. Id.

         Declaratory judgment.

         In reviewing a declaratory judgment, we refer to the procedure for resolution of
the issue at trial to determine the applicable standard of review on appeal. Tex. Civ. Prac.
& Rem. Code § 37.010; English, 174 S.W.3d at 370; see also Gen. Agents Ins. Co. of Am.
v. El Naggar, 340 S.W.3d 552, 557 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).
Here, because the trial court implicitly resolved the declaratory judgment issues by ruling
on motions for summary judgment, we review the propriety of the trial court‘s grant of
the declaratory judgments under the same standards applicable for review of summary
judgments. English, 174 S.W.3d at 370. Therefore, we must determine whether the trial
court properly granted Rodriguez‘s declaratory judgment requests and, if not, enter the
judgment which should have been entered by the trial court. Id.




         4
          Thus, it was appropriate for Farmers to assert in its summary-judgment motion that the trial court lacked
subject-matter jurisdiction. See Blue, 34 S.W.3d at 554. Farmers subsequently filed a plea to the jurisdiction on the
same jurisdictional grounds.


                                                         6
                              Jurisdiction over Claim against Farmers

        In its third issue, Farmers contends Rodriguez lacked standing to sue Farmers and
Rodriguez‘s claim against Farmers was not ripe, depriving the trial court of subject-
matter jurisdiction. We agree with Farmers that Rodriguez‘s claim was not ripe.5

        Ripeness is a threshold issue that implicates subject-matter jurisdiction. Robinson
v. Parker, 353 S.W.3d 753, 755 (Tex. 2011). In evaluating ripeness, courts consider
―whether, at the time a lawsuit is filed, the facts are sufficiently developed ‗so that an
injury has occurred or is likely to occur, rather than being contingent or remote.‘‖ Id.
(emphasis in orig.) (citation omitted). Although a claim is not required to be ripe at the
time of filing, if a party cannot demonstrate a reasonable likelihood that the claim will
soon ripen, the case must be dismissed. Id. A case is not ripe when resolution depends
on contingent or hypothetical facts, or upon events that have not yet come to pass. Id. at
756 (citing Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex. 2000)). ―[T]he
essence of the ripeness doctrine is to avoid premature adjudication . . . [and] to hold
otherwise would be the essence of an advisory opinion, advising what the law would be
on a hypothetical set of facts.‖ Id. (citing Patterson v. Planned Parenthood of Houston
and Se. Tex., 971 S.W.2d 439, 444 (Tex. 1998)) (second alteration in original).

        A tort claimant has no direct claim against the tortfeasor‘s liability insurer until the
insured tortfeasor is adjudged liable to the tort claimant.6 Angus Chem. Co. v. IMC
Fertilizer, Inc., 939 S.W.2d 138, 138 (Tex. 1997) (per curiam); State Farm Cnty. Mut.
Ins. Co. of Tex. v. Ollis, 768 S.W.2d 722, 723 (Tex. 1989) (per curiam); Great Am. Ins.
Co. v. Murray, 437 S.W.2d 264, 265 (Tex. 1969). A party injured by the insured is a
third-party beneficiary of a liability insurance policy, but he cannot enforce the policy
        5
            Accordingly, we do not reach the other issues presented by Farmers regarding whether Rodriguez‘s injury
was covered by the Farmers policy, whether Rodriguez filed an impermissible direct action against Farmers without
first satisfying conditions precedent in the policy, or whether Rodriguez had standing to bring his claim against
Farmers. We likewise do not reach two of Allstate‘s issues asserting that Rodriguez‘s injuries are covered under the
Farmers policy (issues three and four).
        6
         This principle applies where the insurance policy contains a so-called ―no action‖ provision. See Struna
v. Concord Ins. Servs., Inc., 11 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2000, no pet.). Section I, ¶ 11 of
the Farmers policy is a ―no action‖ provision.

                                                         7
directly against the insurer until it has been established, by final judgment or agreement,
that the insured has a legal obligation to pay damages to the injured party. Ollis, 768
S.W.2d at 723. It is undisputed that when the trial court granted Rodriguez summary
judgment against Farmers, Woodling‘s obligation to pay damages to Rodriguez had not
been established by final judgment or by agreement.                     Therefore, Rodriguez‘s claim
against Farmer‘s was not ripe when the trial court granted summary judgment. See
Certain Underwriters at Lloyds, London v. Four J’s Cmty. Living Ctr., Inc., No. H-11-
0713, 2011 WL 6026689, at *1–2 (S.D. Tex. Dec. 2, 2011) (holding that, under Texas
law, tort plaintiff did not yet have claim under tort defendant‘s insurance policy because
final judgment had not yet been rendered upon jury verdict in plaintiff‘s favor);
Robinson, 353 S.W.3d at 755–56 (holding that declaratory-judgment claims were not yet
ripe because there was no showing that claimants had suffered a concrete injury); Gibson,
22 S.W.3d at 853 (noting that to allow premature adjudication of contingent situations
would ―eschew the ripeness doctrine‖ and ―create an impermissible advisory opinion.‖).

        Though a claim is not required to be ripe at the time of filing, if a party cannot
demonstrate a reasonable likelihood that the claim will soon ripen, the case must be
dismissed. See Robinson, 353 S.W.3d at 755. The record does not reflect any agreement
establishing Woodling‘s obligation to pay Rodriguez damages.7 Therefore, Rodriguez
cannot demonstrate a reasonable likelihood that his claims against Farmers will soon
ripen in the case under review, and these claims must be dismissed for lack of subject-
matter jurisdiction. See id.

        In Firemen’s Insurance Co. v. Burch, the Supreme Court of Texas held that there
can be no justiciable controversy regarding the insurer‘s duty to indemnify before a
judgment has been rendered against an insured. 442 S.W.2d 331, 332–34 (Tex. 1968).
The supreme court has recognized a limited exception to this rule that applies ―when the
insurer has no duty to defend and the same reasons that negate the duty to defend

        7
          Rodriguez cannot obtain a final judgment against Woodling until Rodriguez‘s claim against Farmers is
adjudicated because Farmers and Woodling are both parties. But Rodriguez‘s claim is not ripe and cannot be
adjudicated until after Rodriguez obtains a final judgment against Woodling.

                                                      8
likewise negate any possibility the insurer will ever have a duty to indemnify.‖ Farmers
Tex. Cnty. Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 84 (Tex. 1997) (emphasis in original);
see also D.R. Horton-Tex., Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 744 (Tex.
2009).

         Rodriguez sued Farmers seeking payment based on Farmers‘ purported duty to
indemnify Woodling. While generally acknowledging that a third party may not sue an
insurance company for payment under its policy without a judgment against the insured,
Rodriguez argues the exception recognized in Griffin should be applied here because
―undisputed facts pertaining to the duty to indemnify . . . were included in the summary
judgment record [and] are consistent with the factual record at trial and the fact-finder‘s
disposition of the personal injury lawsuit.‖ We find no merit in this argument.

         The holding in Griffin pertained to an underlying tort suit for injuries sustained in
a drive-by shooting. D.R. Horton-Tex., Ltd., 300 S.W.3d at 744–45 (citing Griffin, 955
S.W.2d at 84). The policy in that case excluded coverage for intentional torts. Griffin,
955 S.W.2d at 83. The Griffin court thus concluded no ―conceivable set of facts‖ could
be developed in the underlying case that would transform the intentional shooting into an
auto accident covered by the policy. D.R. Horton-Tex., Ltd., 300 S.W.3d at 745. The
court held that the duty to indemnify may be adjudicated before judgment is entered on
the claim against the insured, when the facts negate both the duty to defend and the duty
to indemnify.8 Griffin, 955 S.W.2d at 84. Here, the duty to defend is not at issue.9 More
importantly, even though the parties do not dispute the underlying accident facts, the jury
was required to decide and apportion liability before judgment could be entered. Thus,
when the lawsuit was filed, coverage of Rodriguez‘s injury under the Farmers policy was
contingent on the jury‘s future liability finding, if any, including apportionment between
Woodling and Rodriguez. The Griffin exception is inapplicable. See D.R. Horton-Tex.,

         8
           The duty to indemnify requires payment of all covered claims and judgments against an insured, whereas
the duty to defend requires tender of a defense in any lawsuit brought against the insured that seeks damages for an
event potentially covered by the policy. D.R. Horton-Tex., Ltd., 300 S.W.3d at 743. An insurer‘s duty to defend is
justiciable before the entry of judgment on a claim against the insured. See English, 174 S.W.3d at 371.
         9
             Rodriguez‘s injury, moreover, did not arise from an intentional tort.

                                                             9
Ltd., 300 S.W.3d at 743–45 (distinguishing Griffin); Burlington Northern and Santa Fe
Ry. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 334 S.W.3d 217, 219–20 (Tex.
2011) (same). We hold that Rodriguez‘s claims against Farmers were not ripe and that
the trial court lacked jurisdiction to grant summary judgment against Farmers declaring
coverage under the Farmers policy. The trial court erred in denying Farmers‘ plea to the
jurisdiction, and the proper remedy is to reverse the trial court‘s judgment as to
Rodriguez‘s claims against Farmers and render judgment dismissing these claims for lack
of subject matter jurisdiction.

          We sustain Farmers‘ third issue.

                          Coverage of Rodriguez’s Injury by the Allstate Policy

          In two issues, Allstate argues the trial court erred by denying its summary
judgment motion against Rodriguez, granting summary judgment in favor of Rodriguez,
and declaring that UIM language in his automobile policy provide coverage for his
injury.         In reference to the ―use‖ exclusion, Allstate contends that ―loading and
unloading‖ a trailer is not use as contemplated under the Allstate policy, and even if it
were, there is no coverage because Rodriguez‘s injury did not ―arise out of‖ the use of the
trailer. We are not persuaded by these arguments.

          The Allstate policy specifies that liability of the owner of an uninsured or
underinsured vehicle ―must arise out of the ownership, maintenance, or use of the
uninsured motor vehicle.‖10 (Emphasis added.) The term ―use‖ is not defined in the
policy. Allstate urges us to hold that ―loading and unloading‖ is excluded because the
―use‖ clause omits these activities as a matter of law. We decline to do so.

          Automobile insurers in Texas are required to provide UIM coverage in all policies.
The quoted language from the Allstate policy mirrors statutory requirements. See Tex.
Ins. Code § 1952.101(a). The purpose of UIM coverage is to protect conscientious
drivers from financial loss caused by irresponsible parties, and courts liberally construe

          10
               The policy defines ―uninsured motor vehicle‖ to include underinsured motor vehicles.


                                                           10
the UIM statutes. Tex. Farm Bureau Mut. Ins. Co. v. Sturrock, 146 S.W.3d 123, 128
(Tex. 2004); Stracener v. United Servs. Auto. Ass’n, 777 S.W.2d 378, 382 (Tex. 1989).
Texas state and federal courts applying Texas law have concluded that automobile
liability policies may cover loading and unloading of a vehicle even when those terms are
not specifically included in the policy. See, e.g., Emasco Ins. Co. v. Am. Int’l Specialty
Lines Ins. Co., 438 F.3d 519, 525 (5th Cir. 2006); Panhandle Steel Prods. Co. v. Fidelity
Union Cas. Co., 23 S.W.2d 799, 801 (Tex. Civ. App.—Fort Worth 1929, no writ)
(holding injury of passerby that occurred after iron beam was unloaded from truck and
was being carried across sidewalk was result of use of truck). The parties have not cited,
and research has not revealed, any Texas cases construing UIM policies that have held
the term ―use‖ without a ―loading and unloading‖ clause excludes coverage for loading
and unloading.

         Allstate cites Liberty Mutual Insurance Co. v. American Employers Insurance Co.,
556 S.W.2d 242 (Tex. 1977) for the proposition that the inclusion of a ―loading and
unloading‖ endorsement in an insurance policy expands coverage from the coverage
afforded by the phrase ―ownership, maintenance, or use.‖ Id. at 244. But the court in
Liberty Mutual did not construe UIM coverage or the ―ownership, maintenance, or use‖
clause.11 It analyzed whether injured workers were ―borrowers‖ of the automobile to
determine if they were insured persons under the policy.12 Id. Liberty Mutual does not
hold that the ―use‖ of a vehicle may never include ―loading and unloading‖ merely
because the policy does not include those terms. See id. Moreover, the intent to exclude
         11
              The commercial policy in Liberty Mutual included ―loading and unloading.‖
         12
             Liberty Mutual involved competing automobile and general liability policies. Id. at 243. The automobile
policy excluded nonemployees of the insured unless they were ―borrowers‖ of vehicles owned by the insured. Id. A
―borrower‖ was defined by the court as ―someone who has, with permission of the owner, temporary possession and
use of the property of another for his own purposes.‖ Id. at 244. Before the addition of the loading and unloading
endorsement to the standard automobile liability policy, neither the automobile policy nor the standard liability
policy defined which insurer had liability coverage for injuries sustained upon the premises of one who was insured
under a general liability policy during the loading and unloading of a vehicle not owned or hired by the general
liability insured. Id. The court concluded the policy exclusion for persons who were unloaders but not ―borrowers‖
of the vehicle was intended to limit the insurer‘s liability for injuries of nonemployees who were not borrowers of
the vehicle. Id. at 245. By contrast, the Allstate policy covers injuries to Rodriguez caused by the owner or operator
of an uninsured or underinsured motor vehicle, including ―trailer[s] of any type.‖ It does not expressly limit
Allstate‘s liability based on whether an injured party is a ―borrower‖ of a vehicle.

                                                         11
coverage must be expressed in clear and unambiguous language. Nat’l Union Fire Ins.
Co. of Pittsburgh, Pa. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex. 1991). If
Allstate intended to exclude loading and unloading from the scope of coverage, then it
was incumbent upon it to expressly and clearly state the exclusion in the policy. See
Nat’l Auto. & Cas. Ins. Co. v. Glens Falls Ins. Co., 493 S.W.2d 909, 911–12 (Tex. Civ.
App.—Tyler 1973, no writ) (holding clause expressly excluding ―loading and unloading‖
of vehicle was effective). Having failed to do so, Allstate may not now complain.13 See
Nat’l Union Fire Ins. Co., 811 S.W.2d at 555.
         Allstate further argues that Rodriguez‘s injuries did not ―arise out of‖ any use of
the trailer. We disagree. Texas courts broadly define ―use‖ of a motor vehicle in the
context of insurance policies. Mid-Continent Cas. Co. v. Global Enercom Mgmt., Inc.,
323 S.W.3d 151, 156 (Tex. 2010). It is a ―general catchall . . . , designed and construed
to include all proper uses of the vehicle.‖ Lyons v. State Farm Lloyds & Nat’l Cas. Co.,
41 S.W.3d 201, 205 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (citing State
Farm Mut. Auto. Ins. Co. v. Pan Am. Ins. Co., 437 S.W.2d 542, 545 (Tex. 1969)). ―Use‖
means ―to put into action or service; to employ for or apply to a given purpose.‖ Id.
(citing LeLeaux v. Hamshire–Fannett I.S.D., 835 S.W.2d 49, 51 (Tex. 1992)). In Mid–
Century Ins. Co. of Tex. v. Lindsey, 997 S.W.2d 153 (Tex. 1999), the court employed the
following factors suggested in two insurance treatises14 to help determine when a motor
vehicle has been in ―use‖ under a similar UIM insuring provision:

         For an injury to fall within the ―use‖ coverage of an automobile policy
         (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

         13
           Allstate also cites an unreported federal district court‘s opinion that held a ―use‖ clause (without ―loading
and unloading‖ language) would not cover injuries sustained by a patient who travelled in an ambulance to the
hospital. See St. Paul Fire & Marine Ins. Co. v. Am. Int'l Surplus Lines Ins. Co., No. 3:95-CV-0790-D, 1997 WL
160192, at *3–4 (N.D. Tex. Mar. 31, 1997). The court held that ―the acts of providing emergency medical care and
of carrying a person from some location to an ambulance are . . . a necessary incident to the operation of an
ambulance service, but are not fairly described as the use of an ambulance.‖ Id. at *3. The inclusion of a loading
and unloading clause would not alter the court‘s reasoning or result.
         14
         See 6B JOHN A. APPLEMAN, INSURANCE LAW AND PRACTICE § 4317, at 367–69 (Buckley ed. 1979); 8A
COUCH ON INSURANCE 3d § 119:37, at 119–56 (2005).


                                                          12
         territorial limits of an automobile, and the actual use must not have
         terminated; (3) the automobile must not merely contribute to cause the
         condition which produces the injury, but must itself produce the injury.[15]
Id. at 157.16

         Using the factors elucidated in Lindsey as a framework, and taking into
consideration the broad definition of ―use‖ recognized in Texas jurisprudence, we
conclude that Rodriguez‘s injury resulted from use of the trailer as a matter of law.

         Inherent nature. It is in the inherent nature of a trailer that it will be used to haul
and tow materials. Cf. Mid-Continent Cas. Co., 323 S.W.3d at 155 (―[I]t is in the
inherent nature of a 2000 Ford F–250 Super Duty pickup truck on a cell tower job site
that it will be used to haul and tow materials.‖); Panhandle Steel Prods. Co., 23 S.W.2d
at 801 (holding, when delivery of material was main purpose of haul, ―loading and
unloading were as necessary to accomplish that purpose as was the driving of the truck
from plaintiff‘s place of business to the point of delivery‖). That process includes not
only the immediate action of loading and unloading materials from the trailer but also
moving them from their starting point to their destination.17 See Liberty Mut. Ins. Co.,
556 S.W.2d at 244; Travelers Ins. Co. v. Emp’r’s Cas. Co., 380 S.W.2d 610, 612 (Tex.
1964); Panhandle Steel Prods. Co., 23 S.W.2d at 801. Using a trailer in this manner is
―not an unexpected or unnatural use of the vehicle.‖ See Mid-Continent Cas. Co., 323
S.W.3d at 155 (citing Lindsey, 997 S.W.2d at 158); Commercial Standard Ins. Co., 455
S.W.2d at 717.

         Natural territorial limits. The accident was within the ―natural territorial limits‖ of
the trailer, even though Woodling and Rodriguez had taken a few steps out of the trailer.
In Mid-Continent Casualty Company and Lindsey, this factor was satisfied even though

         15
          The Lindsey court noted this is not an ―absolute test,‖ but the factors are helpful in focusing the analysis.
997 S.W.2d at 157–58; see also Mid-Continent Cas. Co., 323 S.W.3d at 155 n.4. The test is only a conceptual
framework to analyze the inclusion or exclusion at issue. Mid-Continent Cas. Co., 323 S.W.3d at 155 n.4
         16
           The court acknowledged that the third factor may be difficult to define because it is not always clear how
the vehicle, as opposed to other things, contributed to an accident. Lindsey, 997 S.W.2d at 157; see also Mid-
Continent Cas. Co..323 S.W.3d at 156.
         17
              Here, the parties do not dispute that the deer stand did not reach its final destination.

                                                              13
both accidents occurred outside the insured vehicles. See Mid-Continent Cas. Co., 323
S.W.3d at 155 (holding injuries sustained when rope that was anchored on one end to the
truck broke arose from use of truck); Lindsey, 997 S.W.2d at 160 (holding injury arose
out of use of truck when child entered through sliding rear window and accidentally
discharged loaded shotgun mounted over rear window, injuring person in nearby vehicle,
because child did not stray from purpose of entering truck by playing with gun or trying
to shoot it).

        The Supreme Court has adopted the complete operation doctrine, which defines
the terms ―loading and unloading‖ in the context of an insurance policy. ―‗[L]oading and
unloading‘ embraces not only the immediate transference of the goods to or from the
vehicle, but also the complete operation of transporting the goods between the vehicle
and the place from or to which they are being delivered.‖ Liberty Mut. Ins. Co., 556
S.W.2d at 244; Travelers Ins. Co., 380 S.W.2d at 612.18 Any activities involved in
moving the goods to their final physical destination are themselves included in the term
―unloading‖ and thus qualify as a use of the vehicle for insurance purposes.                                    See
Travelers Ins. Co., 380 S.W.2d at 613–14. The court noted, ―[w]hen a vehicle is being
unloaded it is being used to the same extent as if it were being driven, and the person
doing the unloading is entitled to the same protection as the owner or operator.‖ Id. at
614; see also Commercial Standard Ins. Co. v. Am. Gen. Ins. Co., 455 S.W.2d 714, 716–
17 (Tex. 1970) (quoting Travelers Ins. Co.). We conclude under these circumstances that
Woodling and Rodriguez were using the trailer when the accident occurred.

        Cause. The third factor is whether the vehicle produced the injury. Lindsey, 997
S.W.2d at 157. The Supreme Court of Texas has stated that the causation inquiry in this

        18
             The cited cases that apply the complete operation doctrine involved third party claims arising from
liability provisions of standard automobile insurance policies, whereas this case involves a liability claim arising
under a UIM provision. Liberty Mutual and Travelers Insurance Company, however, both construe language in
standard automobile policies that is identical to the language in the Allstate UIM provision providing coverage for
injuries ―aris[ing] out of the ownership, maintenance, or use‖ of the insured vehicle. See Liberty Mut. Ins. Co., 556
S.W.2d at 243 n.1; Travelers Ins. Co., 380 S.W.2d at 612. The UIM policy, moreover, expressly covers as an
―[u]ninsured motor vehicle‖ ―a land motor vehicle or trailer of any type.‖ (Emphasis added.) Thus, the same
principles apply here.

                                                        14
context involves ―but for‖ causation. Mid-Continent Cas. Co., 323 S.W.3d at 156. A but
for cause is ―one without which the event would not have occurred.‖ Transcon. Ins. Co.
v. Crump, 330 S.W.3d 211, 223 (Tex. 2010).

           Rodriguez‘s accident would not have occurred if Rodriguez had not been assisting
Woodling in unloading the deer stand from the trailer. See Mid-Continent Cas. Co., 323
S.W.3d at 156 (holding rope would not have broken causing injuries if truck had not been
used to hoist headache ball). The accident did not merely happen near the trailer:
Woodling and Rodriguez could not have accomplished the same result without the
presence of the trailer, and, as we have noted, the use of a trailer includes unloading
materials. See id.; Panhandle Steel Prods. Co., 23 S.W.2d at 802.19 The trial court
properly found the ―use‖ clause in Allstate‘s policy covered Rodriguez‘s injury.

           This case is not controlled by the cases cited by Allstate in support of its argument
that the accident was not caused by the use of a trailer as such. The cases cited by
Allstate regarding UIM policies involved intentional shootings from one vehicle into
another that were held to be incidental to the use of the vehicles. See, e.g., State Farm
Mut. Auto. Ins. Co. v. Whitehead, 988 S.W.2d 744, 745 (Tex. 1999); Collier v. Emp’rs
Nat’l Ins. Co., 861 S.W.2d 286, 289 (Tex. App.—Houston [14th Dist.] 1993, writ
denied). Here, as we have held, Rodriguez was injured while he was unloading the
trailer—which was a proper use—so his injury was not merely incidental to the use of the
trailer.

           National Union Fire Insurance Co. v. Merchants Fast Motor Lines, Inc., 939
S.W.2d 139 (Tex. 1997) involved a duty to defend. An insurer‘s duty to defend is
determined from the four corners of the pleadings and the language of the insurance
policy. Id. at 141. In such cases, if the petition does not allege facts within the scope of
           19
              [S]ince the act of unloading was one of the natural and necessary steps to the undertaking to
           deliver the [truck‘s contents], and followed in natural sequence the use of the truck to that end,
           which use was specifically contemplated and covered by the policy, we believe that the conclusion
           is unavoidable that the use of the truck was the primary and efficient cause of the injury, even
           though it should not be held to be the proximate cause.
Panhandle Steel Prods. Co., 23 S.W.2d at 802.

                                                          15
coverage, the insurer is not required to defend a suit against its insured. Id. The petition
in National Union alleged only that a driver was operating the insured‘s truck when he
negligently discharged a firearm injuring the plaintiff. Id. at 142. The insurance policy
only covered claims where the injury was caused by an accident resulting from the use of
a covered auto. Id. Accordingly, the allegations did not give rise to a duty to defend by
the insurer. Id.; see also Mid-Continent Cas. Co., 323 S.W.3d at 156. Here, we are not
dealing with the duty to defend; thus, the same pleading standard does not apply.20

         The other two cases cited by Allstate were not insurance coverage cases, but
instead involved claims under the Texas Torts Claims Act (TTCA). The TTCA waives
governmental immunity for ―property damage, personal injury, or death aris[ing] from
the operation or use of a motor driven vehicle.‖21 LeLeaux, 835 S.W.2d at 51 (citing Tex.
Civ. Prac. & Rem. Code § 101.021(1)(A)). The required ―operation or use‖ under the
TTCA is by the governmental employee. Id. LeLeaux involved a school bus that was not
in operation when a student jumped up from where she had been sitting in the open rear
doorway of the empty school bus and hit her head on the door frame. 835 S.W.2d at 51.
The court held that the injury did not arise from the use of the bus because the driver was
not aboard when the injury occurred—in other words, the injury did not arise from the
school district‘s or its driver‘s operation or use of the bus—and immunity was not
waived. Id. at 52. Brown v. Houston Independent School District, 123 S.W.3d 618 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied), involved an officer who pulled over a
woman in his patrol car and sexually assaulted her in her own vehicle. Id. at 619. Thus,
the assault did not occur in the patrol car, but in a vehicle which was not operated by the
officer. Id. at 622; see also Mid-Continent Cas. Co., 323 S.W.3d at 156. Here, by
contrast, the use of the vehicle covered by the Allstate policy was not similarly limited to
a particular user. Moreover, Rodriguez‘s injury arose from using the trailer as a trailer
         20
            Lindsey, by contrast to National Union, was not a duty-to-defend case, but involved an action to recover
UIM benefits, as in this case. See 997 S.W.2d at 154. Thus, the allegations in the petition were not at issue. The
plaintiff proved the vehicle was in use at the time of the accident because the child‘s ―sole purpose was to gain entry
into the truck‖ through the back window and he did not stray from that purpose. Lindsey, 997 S.W.2d at 158. He
did not play with the gun or try to shoot it. Id.; see also Mid-Continent Cas. Co., 323 S.W.3d at 154–55.
         21
              Waivers of sovereign immunity must be construed narrowly. LeLeaux, 835 S.W.2d at 51.

                                                         16
while he was unloading it. See Mid-Continent Cas. Co., 323 S.W.3d at 155; Lindsey, 997
S.W.2d at 160.

       We hold that the trial court did not err by rendering summary judgment against
Allstate in favor of Rodriguez and by declaring that Woodling‘s liability arose from the
use of the trailer. We overrule Allstate‘s first and second issues.

                                         Conclusion

       We hold that Rodriguez‘s claims against Farmers were not ripe and thus the trial
court did not have jurisdiction to enter a judgment against Farmers. Therefore, as to the
claims against Farmers, we reverse the trial court‘s judgment and render judgment that
these claims be dismissed for lack of subject-matter jurisdiction.

       We further hold that the trial court did not err by entering summary judgment and
declaratory judgment in favor of Rodriguez against Allstate. We affirm that portion of
the declaratory judgment finding Woodling‘s liability arose from ―use‖ of the trailer and
finding coverage over Rodriguez‘s injury under the Allstate policy.


                                   /s/            Martha Hill Jamison
                                                  Justice



Panel consists of Justices Frost, Seymore, and Jamison.




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