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Elwess v. Texas Farm Bureau Mutual Insurance Co.

Court of Appeals of Texas, Eleventh District

December 21, 2017

ALFRED ELWESS, Appellant
v.
TEXAS FARM BUREAU MUTUAL INSURANCE COMPANY AND FARM BUREAU COUNTY MUTUAL INSURANCECOMPANY OF TEXAS, Appellees

          On Appeal from the 35th District Court Brown County, Texas Trial Court Cause No. CV1007222

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

          OPINION

          JOHN M. BAILEY JUSTICE

         This appeal concerns the enforcement of the "other insurance" provision in the uninsured/underinsured motorist coverage of two identical automobile insurance policies. Appellant, Alfred Elwess, contends that this policy provision has been invalidated by the Texas Supreme Court. He also contends that it conflicts with the applicable statute in the Texas Insurance Code pertaining to underinsured motorist coverage. See Tex. Ins. Code Ann. § 1952.106 (West 2009).

          The parties submitted their dispute to the trial court on an agreed set of facts after we reversed and remanded a summary judgment entered in favor of Appellees, Farm Bureau County Mutual Insurance Company of Texas and Texas Farm Bureau Mutual Insurance Company. See Elwess v. Farm Bureau Cty. Mut. Ins. Co. of Tex., No. 11-12-00339-CV, 2014 WL 6755662 (Tex. App.-Eastland Nov. 26, 2014, no pet.) (mem. op.). The trial court disagreed with Appellant's position by entering judgment for the insurance companies. Appellant challenges the trial court's judgment in a single issue. We affirm.

         Background Facts

         Appellant was employed by Glendell P. "Pete" Gipson. Appellant was driving a truck owned by Gipson in the course and scope of his employment when he was broadsided by a vehicle driven by Carlos Molina. The collision caused the truck to overturn, and it landed on its side. Appellant hung from his seatbelt until he was able to free himself. He suffered a torn rotator cuff as a result of the accident.

         Molina personally did not have an automobile insurance policy. However, the vehicle that he was driving was owned by Khoun Rattana, and Rattana had an insurance policy with Affirmative Insurance Company (AIC). Appellant settled with AIC for the liability policy limit of $25, 000. The truck that Appellant was driving was insured by Northland Insurance Company. Appellant obtained a settlement of $70, 000 from Northland under the underinsured motorist coverage provided by that policy. Appellant also received $2, 505 in personal injury protection benefits under the Northland policy.

         Appellant had two insurance policies with Appellees, each of which provided uninsured/underinsured motorist coverage with $50, 000 policy limits per person for bodily injury. Appellant filed the underlying suit against Appellees seeking to recover under the underinsured motorist coverage provided by the Farm Bureau policies. Appellees asserted that Appellant was not entitled to collect any additional sums under either of the Farm Bureau policies based upon the "other insurance" provision in the policies and the recoveries he obtained under the AIC and Northland policies.

         After we reversed and remanded the summary judgment initially obtained by Appellees, the parties entered into a mediated partial settlement agreement. Under the terms of the partial settlement agreement, the parties stipulated that Molina was negligent and that his negligence was a proximate cause of Appellant's injuries and damages. The parties additionally stipulated that Appellant's total damages as a result of the accident were $77, 505. The sole issue remaining to be determined was whether Appellant could recover under the Farm Bureau policies' underinsured motorist coverage after he received the settlements from AIC and Northland. The trial court ruled in favor of Appellees by entering judgment that Appellant was not entitled to any additional recoveries under either of the Farm Bureau policies.

         Analysis

         Appellant sued Appellees for breach of the underinsured motorist coverage provided by Appellees' insurance policies. Ordinarily, we interpret insurance policies according to the rules of contractual construction. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003). The underinsured motorist coverage of the policies issued by Appellees contained a provision that states as follows:

         OTHER INSURANCE

A. If there is other applicable similar insurance we will pay only our share of the loss. Our share is the proportion that our Limit of Liability bears to the total of all applicable limits. However, any insurance we provide with a respect to a vehicle you ...

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