Appeal from the 35th District Court Brown County, Texas Trial
Court Cause No. CV1007222
consists of: Wright, C.J., Willson, J., and Bailey, J.
M. BAILEY JUSTICE
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).
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.
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.
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.
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.
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
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:
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