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Loncar v. Progressive County Mutual Insurance Co.

Court of Appeals of Texas, Fifth District, Dallas

May 24, 2018

BRIAN LONCAR AND SUE LONCAR, INDIVIDUALLY AND AS NEXT FRIENDS OF H.L., A MINOR, A.L., A MINOR, AND G.L., A MINOR, Appellants
v.
PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY AND CHUBB LLOYDS/INSURANCE COMPANY OF TEXAS, Appellees

          On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-09-06753-C

          Before Justices Lang, Brown, and Whitehill

          OPINION

          BILL WHITEHILL JUSTICE

         This is an insurance coverage dispute. Appellants sued appellees for uninsured motorist benefits after appellant Brian Loncar[1] was injured in a traffic accident with a City of Dallas fire truck. The trial court granted summary judgment for appellees.

         The uninsured motorist provision here covers "damages which an 'insured' is legally entitled to recover from the owner or operator of an 'uninsured motor vehicle.'" It has been established as a matter of law that the fire truck operator's official immunity bars the Loncars from recovering against him or the City of Dallas. The pivotal question therefore is whether that result defeats coverage under this policy language. We conclude that it does because the policy's unambiguous terms do not provide coverage when the insured is injured in an accident and the other driver is legally protected by immunity. We therefore affirm the summary judgment.

         I. Background

         We described the traffic accident giving rise to this case in City of Dallas v. Loncar, No. 05-12-00705-CV, 2014 WL 198408 (Tex. App.-Dallas Jan. 16, 2014, pet. denied) (mem. op.). It suffices here to say that in May 2008 a car driven by Brian Loncar collided with a City of Dallas fire truck in the middle of an intersection. The fire truck driven by Paul Ferguson was responding to a fire alarm call and had its emergency lights and siren activated.

         Loncar sued the City of Dallas for personal injuries. Appellant Sue Loncar later joined the suit as a plaintiff, and she and Loncar added claims on behalf of their minor children.

         The City filed a plea to the jurisdiction based on immunity, which the trial court granted in part and denied in part. The City took an interlocutory appeal from that order.

         Meanwhile, the Loncars amended their petition to join appellees as defendants. They alleged that appellees issued to Loncar insurance policies covering his damages from the accident. Summary judgment evidence later showed that appellee Progressive had issued Brian Loncar & Associates, PC a commercial auto insurance policy and appellee Chubb had issued Brian and Sue Loncar an excess insurance policy that included excess uninsured/underinsured motorist coverages. The Loncars alleged that appellees refused to pay on the policies and sued appellees for (i) breach of contract, (ii) Texas Insurance Code violations, and (iii) declaratory judgment.

         In January 2014, we issued our opinion holding that the City conclusively established that Ferguson was acting in good faith at the time of the accident and thus enjoyed official immunity. Id. at *6. Accordingly, we rendered judgment dismissing all remaining claims against the City of Dallas for lack of jurisdiction due to governmental immunity. Id. at *7. We denied rehearing, and the Texas Supreme Court denied the Loncars' petition for review.

         In October 2015, each appellee separately moved for summary judgment on multiple grounds. The Loncars responded. The trial court held a hearing, granted appellees' motions, and signed a take-nothing judgment.

         Chubb later moved to vacate and re-enter the judgment to make sure it had preserved every ground that Progressive had raised in its motion. Chubb then filed an amended summary judgment motion. The Loncars responded to Chubb's amended motion.

         The trial judge signed a new order granting Progressive's summary judgment motion, a separate order granting Chubb's amended summary judgment motion, and a new take-nothing final judgment. The Loncars timely appealed.

         II. Issues Presented and Standard of Review

         The Loncars present six issues. The first three are coverage arguments regarding uninsured motorist coverage under the Progressive policy. Their fourth issue argues that their suit against appellees is not premature. Their fifth issue concerns their statutory bad faith claims. Their sixth issue argues that Chubb owes them coverage even if Progressive does not.

         We review an order granting summary judgment de novo. Durham v. Children's Med. Ctr. of Dallas, 488 S.W.3d 485, 489 (Tex. App.-Dallas 2016, pet. denied).

         When we review a traditional summary judgment for a defendant, we determine whether the defendant conclusively disproved an element of the plaintiff's claim or conclusively proved every element of an affirmative defense. We take evidence favorable to the nonmovant as true, and we indulge every reasonable inference and resolve every doubt in the nonmovant's favor. A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Id.

         III. Analysis

         A. Issue One: Did appellees conclusively prove that the Progressive policy provides no uninsured motorist coverage because the Loncars are not "legally entitled to recover" from Ferguson or the City of Dallas?

         The Loncars' first issue concerns this clause in the uninsured/underinsured motorist coverage endorsement in Progressive's insurance policy:

We will pay damages which an "insured" is legally entitled to recover from the owner or operator of an "uninsured motor vehicle" because of "bodily injury" sustained by an "insured[.]"

(Emphasis added.) The question is whether appellees conclusively proved that the Loncars are not "legally entitled to recover" from Ferguson or the City of Dallas. We conclude that under the unambiguous policy terms the answer is yes because our prior opinion conclusively established that the Loncars are not legally entitled to recover from the fire truck's owner or operator due to their governmental and official immunity.

         1. Applicable Law

         We construe insurance policies using ordinary contract interpretation rules. Nassar v. Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 257 (Tex. 2017) (per curiam). Unless the policy provides otherwise, we give words and phrases their ordinary and generally accepted meanings, reading them in context and in light of grammar and common usage rules. Id. at 258.

         If only one interpretation is reasonable, the policy is unambiguous, and we adopt that interpretation. Id. A policy is ambiguous if it is genuinely subject to more than one meaning after we apply the pertinent contract interpretation rules. Id. But, if the policy is ambiguous, we adopt the interpretation that favors the insured, even if the insurer's interpretation is equally or more reasonable. Id. However, we may not rewrite insurance policies under the rubric of interpretation.[2] See Great Am. Ins. Co. v. Primo, 512 S.W.3d 890, 893 (Tex. 2017) ("We also refuse to insert language or provisions the parties did not use or to otherwise rewrite private agreements.").

         2. What does "legally entitled to recover" mean in ...


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