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Kiely v. Texas Farm Bureau Casualty Insurance Co.

Court of Appeals of Texas, Sixth District, Texarkana

July 22, 2019

ALAN KIELY, Appellant

          Date Submitted: June 5, 2019

          On Appeal from the County Court at Law No. 2 Hays County, Texas Trial Court No. 18-0050-C

          Before Morriss, C.J., Burgess and Stevens, JJ.


          Scott E. Stevens Justice.

         Alan 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 judgment.

         Kiely 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 judgment.

         I. Background

         Kiely 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.[1]

         In May 2016, a hailstorm damaged the roof of Kiely's Wimberly, Texas, residence.[2] 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.

         In 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.

         Reeves 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.

         The 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.

         Kiely timely applied to Farm Bureau, requesting PIP benefits for the medical expenses he had incurred.[3] 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.[4]

         Kiely 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.

         II. Standard of Review

         Under 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. Id.

         The 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 Bureau.

         III. Discussion

         Kiely's insurance policy provided,

A. We will pay Personal Injury Protection benefits because of ...

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