Court of Appeals of Texas, Sixth District, Texarkana
Submitted: June 5, 2019
Appeal from the County Court at Law No. 2 Hays County, Texas
Trial Court No. 18-0050-C
Morriss, C.J., Burgess and Stevens, JJ.
E. Stevens Justice.
Kiely sued Texas Farm Bureau Casualty Insurance Company (Farm
Bureau) to recover personal injury protection (PIP) benefits
for injuries he sustained when a lumber company employee was
unloading metal roofing sheets at his home. Arguing that
Kiely's injuries did not result from a motor vehicle
accident and that he was not a "covered person"
under the insurance policy, Farm Bureau filed, and the trial
court granted, its motion for summary judgment. The trial
court also denied Kiely's motion for partial summary
appeals, maintaining that the trial court erred in granting
Farm Bureau's summary judgment motion and in denying his
motion for partial summary judgment because (1) his injuries
stemmed from a motor vehicle accident, (2) he was a
"covered person" as defined by the insurance
policy, and (3) he was entitled to extra-contractual damages.
For the reasons below, we affirm the trial court's
judgment granting Farm Bureau's motion for summary
judgment and denying Kiely's motion for partial summary
and his wife, Sharon, procured a Texas personal automobile
policy (Policy) from Farm Bureau. The Policy included, among
other things, PIP coverage with a limit of $10,000.00 per
person for each accident.
2016, a hailstorm damaged the roof of Kiely's Wimberly,
Texas, residence. As a result,
Kiely ordered metal roofing sheets from Cragg's Do It
Best Lumber and Home Center, Inc. (Cragg's), to repair
the roof. On June 10, 2016, a flatbed delivery truck from
Cragg's, driven by its employee, Brian David Reeves,
arrived at the Kiely's residence with the metal roofing
sheets in the bed of the truck. The metal sheets were bound
in three separate bundles in accordance with their length.
preparation for the delivery of the metal sheets, Kiely had
placed wooden pallets in front of his home so that Reeves
could place the metal sheets on the pallets. Kiely, who was
using a cane because of a previous knee surgery, was outside
when Reeves arrived. After learning that Reeves did not have
a forklift, Kiely asked him to position the truck so its lift
"could be used to tilt the [truck's] bed and unload
the metal sheets onto the pallets." Reeves complied with
Kiely's suggestion, but misaligned the truck with the
pallets. Disregarding Kiely's suggested method of
unloading the metal sheets, Reeves began moving the first
bundle of metal sheets by hand, trying to unload them by
himself. As Reeves was pulling the first bundle of metal
sheets, it slid off the truck bed, pinning Reeves between the
ground and the metal sheets.
screamed for Kiely to help him, but Kiely told Reeves that he
could not lift the metal sheets off him because of his knee
problems. After Reeves continued "scream[ing] in
pain" and asking for help, Kiely wedged his walking cane
under the metal sheets to get some leverage, but was
unsuccessful. Kiely then bent over, grabbed a corner of the
bundle of metal sheets, and tried to lift it. As he did so,
Kiely heard a "pop" and immediately felt a sharp
pain in his lower back. Still in need of assistance, Reeves
continued to ask Kiely for help. In response, Kiely located a
2x4 plank, pushed it under the corner of the bundle, and
lifted it high enough to free Reeves. As a result of his
actions, Kiely fractured two vertebrae in his lower back and
had to have several surgeries.
parties stipulated that Kiely did not come in contact with
the inside or the outside of the truck before or during the
incident, nor did he touch the lift on the truck. "At no
time was Kiely ever occupying or struck by the truck."
Kiely did, however, come into contact with the truck
after the incident, when he retrieved a piece of
paper to write a statement for Reeves to sign. Also, Kiely
did not come in contact with the metal sheets, except in his
attempt to lift them off of Reeves with his cane and the
wooden plank. Reeves' body never contacted Kiely.
timely applied to Farm Bureau, requesting PIP benefits for
the medical expenses he had incurred. Farm Bureau determined that under the
circumstances, Kiely had no right to those benefits. Kiely
then filed this lawsuit, alleging that he was entitled to the
recovery of PIP insurance benefits.
filed a motion for partial summary judgment on liability,
asking the trial court to enter an order declaring that Farm
Bureau had wrongly denied his PIP insurance benefits and that
the Policy covered the injuries Kiely received because of the
accident. Farm Bureau filed a motion for summary judgment,
maintaining that Kiely had no right to PIP benefits under the
Policy. The trial court denied Kiely's motion for partial
summary judgment and granted Farm Bureau's motion for
summary judgment. Kiely appeals.
Standard of Review
Rule 166a(c) of the Texas Rules of Civil Procedure, summary
judgment is appropriate when the movant has established that
there is no genuine issue of material fact and that it is
entitled to summary judgment as a matter of law. Nixon v.
Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A
summary judgment that disposes of the entire case is
appropriate only if it conclusively disproves at least one of
the elements of each of the plaintiff's causes of action.
grant of summary judgment is reviewed de novo by appellate
courts. Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 215 (Tex. 2003). "In our
review, we deem as true all evidence which is favorable to
the nonmovant, we indulge every reasonable inference to be
drawn from the evidence, and we resolve any doubts in the
nonmovant's favor." Bush Constr., Inc. v. Tex.
Mut. Ins. Co., 557 S.W.3d 817, 821 (Tex. App.-Texarkana
2018, no pet.) (citing Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). "When
the trial court does not specify the basis for its ruling, we
must affirm a summary judgment if any of the grounds on which
judgment is sought are meritorious." Id.
(citing Merriman v. XTO Energy, Inc., 407 S.W.3d
244, 248 (Tex. 2013)). Here, the trial court did not specify
the grounds on which it granted summary judgment for Farm
insurance policy provided,
A. We will pay Personal Injury Protection benefits because of