Court of Appeals of Texas, Fifth District, Dallas
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
PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY AND CHUBB LLOYDS/INSURANCE COMPANY OF TEXAS, Appellees
Appeal from the County Court at Law No. 3 Dallas County,
Texas Trial Court Cause No. CC-09-06753-C
Justices Lang, Brown, and Whitehill
an insurance coverage dispute. Appellants sued appellees for
uninsured motorist benefits after appellant Brian
Loncar was injured in a traffic accident
with a City of Dallas fire truck. The trial court granted
summary judgment for appellees.
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.
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.
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.
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.
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
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.
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.
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.
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.
Issues Presented and Standard of Review
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
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).
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.
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?
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
(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.
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.
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. 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.").
What does "legally entitled to recover" mean in