Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Blevins v. State Farm Mutual Automobile Insurance Co.

Court of Appeals of Texas, Second District, Fort Worth

August 1, 2019

William Blevins, Appellant
v.
State Farm Mutual Automobile Insurance Company, Appellee

          On Appeal from the 96th District Court Tarrant County, Texas Trial Court No. 096-259556-12

          DISSENTING OPINION ON DENIAL OF EN BANC RECONSIDERATION [1]

          WADE BIRDWELL JUSTICE

         When a jury renders a zero-damages verdict in the face of uncontroverted, objective evidence of injury, there is reason to question the deliberative process resulting in that verdict. See Southern Pine Lumber Co. v. Andrade, 124 S.W.2d 334, 335 (Tex. 1939) ("The action of a jury in answering an issue directly contrary to the undisputed evidence may be cause for suspicion that the answer was induced by prejudice or by improper influence."). When the evidence strongly contradicts the finding challenged, there is reason to conclude that the jury was "laboring under some misapprehension" in arriving at its verdict. See McKinney v. Air Venture Corp., 578 S.W.2d 849, 863 (Tex. App.-Fort Worth 1979, writ ref'd n.r.e.) (quoting Gulf, Colo. & Santa Fé Ry. v. Wilson, 59 S.W. 589, 591 (Tex. App.-Galveston 1900, writ dism'd)); Alvey v. Goforth, 263 S.W.2d 313, 320 (Tex. App.-Fort Worth 1953), rev'd on other grounds, 271 S.W.2d 404 (Tex. 1954); Wilson, 59 S.W. at 591. And when the record includes jury notes containing questions for the trial court clearly confusing coverage questions with those of liability, the verdict reached through such a flawed deliberative process should not survive appellate review. See Royal Ins. of Am. v. Szuma, 731 S.W.2d 953, 955-60 (Tex. App.-Fort Worth 1987, writ ref'd n.r.e.) (Keltner, J., dissenting) (reasoning jury note evidencing confusion concerning nature of justiciable controversy between plaintiff workers' compensation carrier and defendant employee called into question jury's verdict and justified new trial). Because the jury's manifest confusion concerning the nature of the dispute between Blevins and State Farm likely explains its erroneous zero-damages verdict, I dissent from the denial of rehearing en banc for the reasons set forth herein in addition to those set forth in my original dissent. See Blevins v. State Farm Mut. Auto Ins., No. 02-17-00176-CV, 2018 WL 5993445, at *16 (Tex. App.-Fort Worth, Nov. 15, 2018, no pet. h.) (mem. op.) (Birdwell, J., dissenting).[2] Because the jury's confusion likely arose due to an unfortunate historical anomaly in Texas UM/UIM jurisprudence, I write additionally to urge the supreme court to reconsider its ruling in Brainard v. Trinity Universal Ins., 216 S.W.3d 809 (Tex. 2006). Specifically, I urge the court to clarify the nature of the cause of action to be adjudicated when trying a UM/UIM coverage dispute, including the manner in which that cause of action accrues (or otherwise becomes ripe for subject matter jurisdiction) and the manner of instructing the jury to obtain a true verdict resolving what is clearly a coverage dispute.[3]

         Zero-damages verdict likely found no contractual "UM/UIM damages"

         Contrary to the factual sufficiency analysis of the majority, a comprehensive review of the record does not reveal that the jury's verdict simply reflected its rejection of the traumatic neuropsychological injury urged by Blevins, but reflects obvious confusion concerning whether the noneconomic damages made the subject of its deliberations arose from a denial of coverage.[4] As observed by Blevins in seeking reconsideration en banc, during its deliberations, the jury presented a note containing two questions to the trial court. The note evidenced understandable confusion as to whether the jury's answers to the damages questions should reflect the contract damages Blevins sustained due to State Farm's alleged wrongful denial of coverage-as the case was actually tried-or the tort damages actually sustained by Blevins as a result of the negligence of the individual settling defendants-as the case was actually submitted:

[Have] there been any payments under the UM/UIM part of the State Farm policy?

         Are the Non-Economic damages part of the UM/UIM coverage? Both questions reveal that State Farm's contractual obligations under its policy were the subject of the jury's deliberations, asking (1) whether State Farm had already made payments to Blevins under its UM/UIM policy and (2) whether the noneconomic damages that were the subject of Question No. 3-the noneconomic tort damages question-were within State Farm's UM/UIM coverage. Quite literally, the jury asked whether tort damages for past physical pain and mental anguish were within State Farm's UM/UIM contractual coverage and whether State Farm had already paid such damages. Given the nature of the coverage dispute between Blevins and State Farm, as well as the manner in which they tried this case, the jury's confusion is not surprising.

         To begin with, having seated and sworn the jury, the trial court expressly instructed the jurors to "not guess or consider whether any party is covered by insurance unless [the court] tell[s] you to do so." See Tex. R. Civ. P. 226a (Jury Instructions Prescribed By Order, Section, II.9. ("Do not consider or guess whether any party is covered by insurance unless I tell you to.")). At that point in the trial, however, every member of the jury had participated in a selection process identifying Blevins as the plaintiff insured; State Farm as the defendant insurer; State Farm's policy as insuring Blevins for bodily injuries caused by the negligence of an underinsured motorist; and the lawsuit as involving a coverage dispute concerning State Farm's contractual liability to Blevins for the payment of UIM benefits.

         Moreover, outside the presence of the jury, Blevins and State Farm stipulated that the coverage dispute was the justiciable controversy to be tried, confirming that (1)Blevins had settled with the two individual tort defendants for amounts approved by State Farm and paid by their respective and independent liability policies and (2)"Blevins was insured by a UIM/UM policy providing $100, 000 per person in coverage, and that policy was in effect on October 2[], 2011." And in the presence of the jury, neither Blevins nor State Farm characterized the dispute between them to be anything other than contractual in nature.

         Additionally, although we do not have a transcript of voir dire in the record, certain undisputed references to its substance make it clear that the case was tried as a coverage dispute. For example, concerned that the jury might misapprehend the nature of the dispute, Blevins urged the trial court, outside the jury's presence before opening statement, to reconsider its previous ruling quashing a subpoena issued for a corporate representative to explain the contractual coverage issue in relation to the tort damages questions that would be the subject of the court's charge. Blevins observed, without contradiction from State Farm, that during voir dire "there was confusion to the point of almost chaos about what a UIM policy covers." Blevins further observed,

The jury's going to understand that State Farm is the defendant in this case, not the person who caused the damages. And that's what the genesis of the confusion of the jury was about: "Well, what does this cover? I don't understand. I need to see the policy," that type of thing. Those are the things that having an insurance company representative could clarify for the jury. It would be a short, quick, easy line of questioning that would clarify the issues. We don't want the jury to be making decisions and entering a verdict based on confusion. I think the voir dire process, which happened after the Court's initial ruling, illustrated the reasons why I think we really should have somebody here from the insurance company.
Declining to reconsider its previous ruling, the trial court nevertheless confirmed that the coverage dispute was a prominent feature of voir dire, stating, "It's my view that the voir dire process was a good indication of why none of that ought to be injected in the case. It isn't relevant in a case where they're just going to be ask[ed] to determine damages."

         Thereafter, and throughout the course of the trial, Blevins argued that State Farm wrongfully denied payment of benefits under his UM/UIM policy. In response, State Farm contested that theory of liability by confirming through his wife (1) State Farm's payment for the property damage to their vehicle, and (2) payment of other medical and hospital bills through the Blevins's health insurance, as well as (3) the absence of any outstanding medical bills still to be paid.[5] Moreover, when Mrs. Blevins said that State Farm's refusal of UM/UIM coverage upset her, State Farm challenged her to tell the jury when State Farm had so refused, clearly suggesting that no refusal had ever occurred.

         By way of this particular cross-examination, State Farm informed the jury that it had already paid property damages--and suggested that it had also paid medical and hospital expenses--thus inviting the jurors to infer that the policy had already paid any and all damages that could form the basis of Blevins's UIM claim.[6] Thereafter, during the charge conference, despite Blevins's stated concern that the jury would be confused by the distinction between coverage and tort damages, [7] State Farm successfully objected to the inclusion of an instruction that would have simply informed the jury that the tort damages addressed by Question No. 3 were damages covered by the UM/UIM policy.[8]

         Having previously instructed the jury to consider insurance coverage only if instructed to do so, the trial court then submitted a charge that instructed the jury to consider that "State Farm issued a policy to William Blevins providing coverage for UM/UIM damages and that such policy was in effect on October 2, 2011, the date of the collision at issue." Having heard evidence and argument concerning a contractual dispute between Blevins and State Farm over UM/UIM coverage, then having been instructed by the court to consider that coverage in answering the liability and damages questions, the jury quite understandably sought guidance during its deliberations concerning how to reconcile the terms "UM/UIM damages" in the coverage instruction and the noneconomic personal injury "damages" to be awarded in Question No. 3.[9] Without apparent objection from either party, the trial court declined to provide any clarification, other than to refer the jury back to the evidence and the charge itself. There being no confirmation that any of the noneconomic damages to be awarded in Question No. 3 were "UM/UIM damages" covered by the State Farm policy and having heard Mrs. Blevins confirm that there were no outstanding medical expenses (possibly due, in part, to State Farm policy payments), the jury returned its zero-damages verdict. Viewing the uncontroverted objective evidence of significant head trauma in light of the court's preliminary and charge instructions to the jury, and the jury's manifest confusion concerning the "damages" in question given the coverage dispute and payments made, the refusal of the jury to award any damages for past physical pain and mental anguish-in effect, its refusal to find that Blevins sustained any injury whatsoever-is so against the great weight and preponderance of the evidence as to require reversal and remand for a new trial.

         Why B rainard needs reconsideration

         The jury's confusion in deliberating damages likely finds its origin in a historical anomaly in Texas UM/UIM jurisprudence whereby the supreme court invalidated sub silentio the contractual arbitration provisions of the Texas Family Automobile Policy mandated by former article 5.06-1 of the Texas Insurance Code by prescribing a direct judicial remedy for resolving uninsured motorist coverage disputes between insured and insurer. See State Farm Mut. Auto. Ins. v. Matlock, 462 S.W.2d 277, 278 (Tex. 1970) (op. on reh'g). By characterizing this remedy as a "direct action"[10] by the insured against the insurer without explaining the nature of the cause of action to be adjudicated, the Matlock court implied the cause of action is the insured's tort cause of action against the uninsured motorist, thereby treating the insured's uninsured motorist coverage as liability insurance for the uninsured motorist. See id. By implication, therefore, the insured became a third party to his own first-party coverage, thereby explaining why third-party beneficiary analysis-and its requirement of a final adjudication of liability and damages-eventually came to govern the legal determination analysis of Brainard. 216 S.W.3d at 817-19 ("Because the contract did not require Trinity to pay UIM benefits before Premier's negligence and underinsured status were determined, Brainard did not present a contract claim before the trial court rendered its judgment, and the court of appeals correctly concluded that Brainard is not entitled to recover attorney's fees under Chapter 38."), approving Sikes v. Zuloaga, 830 S.W.2d 752, 753 (Tex. App.-Austin 1992, no writ) ("Interpreting the clause in question [i.e., "legally entitled to recover"] to place a condition precedent upon recovery is also consistent with the law governing third-party recovery under a liability-insurance contract. A victim of an auto accident cannot make a claim against the liability insurance company of an insured driver until the victim establishes, by judgment or agreement, that the insured driver is legally obligated to pay damages. We find this reasoning applicable to Sikes's claim. We agree with Allstate that uninsured motorist coverage is designed to place the injured party in the same position as if the other motorist had been insured." (citations omitted)).[11] Because the history of uninsured motorist coverage in Texas demonstrates conclusively that the phrase "legally entitled to recover" never contemplated the determination of legal entitlement by adversarial adjudication as required by Brainard, and thereby the confusing juxtaposition of the insured and the uninsured/underinsured motorist in the eyes of the jury, a detailed review of former article 5.06-1 of the Texas Insurance Code and the early decisions of the supreme court interpreting it are in order.

         Adjustment[12] by arbitration intended to avoid conflict of interest, irreconcilable jury verdicts, and an unenforceable agreement to agree

         "In 1967, the Legislature enacted Insurance Code article 5.06-1 to mandate that all automobile insurance policies provide uninsured motorist protection." Mid-Century Ins. of Tex. v. Kidd, 997 S.W.2d 265, 268 (Tex. 1999). Section 1 of article 5.06-1 expressly provided:

No automobile liability insurance . . . covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state unless coverage is provided therein or supplemental thereto, in the limits described in the Texas Motor Vehicle Safety-Responsibility Act, under provisions prescribed by the Board, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.

See Act effective Oct. 1, 1967, 60th Leg., R.S., ch. 202, § 1, 1967 Tex. Gen. Laws 448, 448 (emphasis added). As can be seen from the italicized language, the "coverage provided" was expressly "provided . . . under provisions prescribed by the [State] Board [of Insurance]." See id.

         Indeed, in Old American County Mutual Fire Insurance v. Sanchez, 149 S.W.3d 111 (Tex. 2004), the supreme court confirmed that, when enacted in 1967, article 5.06-1 "incorporated" the uninsured motorist coverage provisions of the then-existing Texas Family Automobile Policy promulgated by the Board:

The standard automobile insurance policy form in use when the Legislature enacted articles 5.06-1 and 5.06-3 was the Texas Family Automobile Policy ("TFAP"). Because the Legislature incorporated "the policy" in articles 5.06-1(1) and 5.06-3(a) by using the phrase "any insured named in the policy," we can safely assume that it considered the TFAP while drafting and enacting these statutes.

Id. at 118 (footnote omitted); see also Berry v. State Farm Mut. Auto. Ins., 9 S.W.3d 884, 892 (Tex. App.-Austin 2000, no pet.) (observing that the legislature is presumed to enact any statute modifying standard automobile coverage with complete knowledge of the terms and conditions of the promulgated policy). And to further emphasize the legislature's intent to incorporate the existing TFAP, section 2 of article 5.06-1 "specifically authorize[d] the State Board of Insurance to promulgate the policy forms for uninsured motorist coverage." See Kemp v. Fid. & Cas. Co. of N.Y., 512 S.W.2d 688, 690 (Tex. 1974) (op. on reh'g).

         At the time of article 5.06-1's enactment, therefore, the legislature was not writing on a blank slate when it mandated the inclusion of uninsured motorist coverage in every standard automobile policy. Article 5.06-1 neither created nor mandated a then unknown form of coverage, and the legislature's use of the phrase "legally entitled to recover" in section 1 was not original, but, as demonstrated below, was a term of art deliberately incorporated, per section 1 and Sanchez, from the then-existing TFAP promulgated by the Board. As a result, the statutory phrase "legally entitled to recover" had the exact same meaning prescribed by the Board for the existing TFAP; a meaning that categorically excluded the adjustment-by-adjudication interpretation eventually adopted by Brainard.[13] See Pierre R. Loiseaux, Innocent Victims 1959, 38 Tex. L. Rev. 154, 163-64 (1959) (observing uninsured motorist coverage first approved by Insurance Commission in 1957, with the "[d]etermination of legal entitlement to damages against the uninsured . . . to be arrived at by agreement between the insured and the company or by arbitration").

         To confirm the historical accuracy of this contention, it is necessary, as did Sanchez, to reference the terms of the then-existing TFAP incorporated by former article 5.06-1. Although the issues presented in State Farm Mutual Automobile Insurance v. Pan American Insurance, 437 S.W.2d 542 (Tex. 1969), did not include uninsured motorist coverage, the State Farm TFAP in the appellate record of that case appears to be the earliest copy of a UM policy promulgated by the Board that is included as an entry in the supreme court's online docket.[14] As the State Farm TFAP in that case demonstrates, the Board had approved the availability and promulgated the form for uninsured motorist coverage as early as 1963, four years before the legislature mandated such coverage through the enactment of former article 5.06-1. See United States Ins. of Waco v. Boyer, 269 S.W.2d 340, 341 (Tex. 1954) ("It is unlawful to issue a policy in words other than those expressly approved by the Insurance Commission, and every insurance company selling [standard automobile liability] insurance is required to word its policies precisely alike."); Glen Falls Ins. v. McCown, 236 S.W.2d 108, 109 (Tex. 1951) (observing that Insurance Commission "authorized and directed to prescribe a uniform standard automobile insurance policy so that all parties at interest may know what their respective rights and obligations are under it").

         Reviewing the terms of the State Farm TFAP, Part IV-Protection Against Uninsured Motorists, Coverage U, prescribed the following:

To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called "bodily injury," sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.

See State Farm TFAP, supra note 14, at 495 (emphasis added); see also State Farm Mut. Auto. Ins. v. White, 461 S.W.2d 476, 478 (Tex. App.-Tyler 1970, no writ) (quoting same language). As made clear by the italicized proviso, the "determination" of legal entitlement to recover prescribed either an extracontractual agreement or, barring such agreement, arbitration as the only condition precedent to the insurer's performance under the coverage through payment of the insured's uninsured motorist claim. See Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976) ("While no particular words are necessary for the existence of a condition, such terms as 'if', 'provided that', 'on condition that[, ]' or some such other phrase that conditions performance, usually connote an intent for a condition rather than a promise.").

         Critically, the exact proviso is found in the State Farm TFAP in issue in Matlock, a policy originally issued and renewed before the enactment of article 5.06-1, but invoked by the Matlocks to cover an accident that occurred on October 14, 1967, 13 days after article 5.06-1's effective date:

Coverage U-Damages for Bodily Injury Cause by Uninsured Automobiles. To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
. . . No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.[15]

See, supra, note 13; State Farm Mut. Auto. Ins. v. Matlock, 446 S.W.2d 81, 81, 84-85 (Tex. App.-Texarkana 1969) (emphasis added) (quoting this language and observing accident occurred "on or about the 14th day of October, 1967"), aff'd in part, rev'd in part on reh'g , 462 S.W.2d at 479-80; see also Pioneer Cas. Co. v. Johnson, 450 S.W.2d 64, 65 n.1 (Tex. 1970) (quoting the same proviso and "no judgment" language from another insurer's TFAP approved by the Board before enactment of article 5.06-1).

         In the State Farm TFAP, if the parties could not reach an extracontractual agreement as to the insured's legal entitlement, they agreed to submit the dispute to binding arbitration, the process for which was expressly set forth in the State Farm TFAP:

Arbitration. If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree to the amount of payment which may be owing under this Part, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this Part.

See State Farm TFAP, supra note 14, at 495 (emphasis added).

         Similarly, in the Matlock TFAP, if the parties could not reach an extracontractual agreement as to the insured's legal entitlement, they expressly agreed to submit the dispute to binding arbitration-although through a different process mirroring the one employed for property damage appraisals:

15. Arbitration. If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount payable hereunder, then each party shall, upon written demand of either, select a competent and disinterested arbitrator. The two arbitrators so named shall select a third arbitrator, or if unable to agree thereon within 30 days, then upon the request of the insured or the company[, ] such third arbitrator shall be selected by a judge of a court of record in the county and state in which such arbitration is pending. The arbitrators shall then hear and determine the question or questions so in dispute, and the decision in writing of any two arbitrators shall be binding upon the insured and the company, each of whom shall pay his or its chosen arbitrator and shall bear equally the expense of the third arbitrator and all other expenses of the arbitration. Unless the parties otherwise agree, the arbitration shall be conducted in the county and state in which the insured resides and in accordance with the usual rules governing procedure and admission of evidence in courts of law.

See Matlock TFAP, supra note 15, at 136 (emphasis added).

         Additionally, the only adjudication contemplated by both the State Farm and Matlock TFAPs was cooperative, not adversarial-a judgment of liability and damages against the uninsured motorist, obtained by the insured on behalf of the insurer for the sole purpose of satisfying the insurer's right of subrogation for a payment of uninsured motorist benefits already made to the insured:

16. Trust Agreement. In the event of payment to any person under this coverage
(a) the company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury because of which such payment is made[;]
(b) such person shall hold in trust for the benefit of the company all rights of recovery which he shall have against such other person or organization because of the damages which are the subject of claim made under this coverage;
(c) such person shall do whatever is proper to secure and shall do nothing after loss to prejudice such rights[;]
(d) if requested in writing by the company, such person shall take, through any representative designated by the company, such action as may be necessary or appropriate to recover such payment as damages from such other person or organization, such action to be taken in the name of such person[;] in the event of a recovery, the company shall be reimbursed out of such recovery for expenses, costs and attorneys' fees incurred by it in connection therewith; (e) such person shall execute and deliver to the company such instruments and papers as may be appropriate to secure the rights and obligations of such person and the company established by this provision.

Compare id. at 136 (emphasis added), with State Farm TFAP, supra note 14, at 495.

         Indeed, as the italicized language makes clear, this Trust Agreement contemplated that the insurer would pay the claim, then provide legal representation to the insured to prosecute the insured's tort cause of action to a judgment against the uninsured motorist, all to the end of obtaining reimbursement for the amount already paid in UM benefits by the insurer. Compare Matlock TFAP, supra note 15, at 136, with State Farm TFAP, supra note 14, at 495. And to guarantee the cooperation of the insured in prosecuting the tort cause of action against the uninsured motorist, the policy (1) expressly excluded coverage in the event the insured settled with the uninsured motorist without the written consent of the insurer and (2) expressly rejected the binding effect of any judgment the insured obtained against the uninsured motorist, again, without the written consent of the insurer. Compare Matlock TFAP, supra note 15, at 136-37, with State Farm TFAP, supra note 14, at 495. The policy also expressly prohibited the insured from prosecuting any action against the insurer directly unless and until the insured complied with all terms of the coverage. Compare Matlock TFAP, supra note 15, at 133, with State Farm TFAP, supra note 14, at 496.

         Finally, the proof of claim and payment provisions of the State Farm and Matlock TFAPs make no mention whatsoever of any triggering of State Farm's duty to pay through the filing of a lawsuit by the insured against the insurer:

11. Proof of Claim; Medical Reports. As soon as practicable, the insured or other person making claim shall give to the company written proof of claim, under oath if required, including full particulars of the nature and extent of the injuries, treatment, and other details entering into the determination of the amount payable [hereunder]. The insured and every other person making claim [hereunder] shall submit to examinations under oath by any person named by the company and subscribe the same, as often as may reasonably be required. Proof of claim shall be made upon forms furnished by the company unless the company shall have failed to furnish such forms within 15 days after receiving notice of claim.
The injured person shall submit to physical examinations by physicians selected by the company when and as often as the company may reasonably require and he, or in the event of his incapacity his legal representative, or in the event of his death his legal representative or the person or persons entitled to sue therefor, shall upon each request from the company execute authorization to enable the company to obtain medical reports and copies of records.
. . . .
17. Payment of Loss by the Company. Any amount due hereunder is payable (a) to the insured, or (b) if the insured be a minor to his parent or guardian, or (c) if the insured be deceased to his surviving spouse, otherwise (d) to a person authorized by law to receive such payment or to a person legally entitled to recover the damages which the payment represents[;] provided, the company may at its option pay any amount due hereunder in accordance with [provision] (d) hereof.

Compare Matlock TFAP, supra note 15, at 136, with State Farm TFAP, supra note 14, at 496. The insured's uninsured motorist claim was to be adjusted before the initiation of any litigation against the insurer, with company forms, examinations under oath, and medical record authorizations, not original petitions, interrogatories, requests for production, or depositions duces tecum. Compare Matlock TFAP, supra note 15, at 136, with State Farm TFAP, supra note 14, at 496.

         Reading the entirety of the agreement, therefore, the phrase "legally entitled to recover" did not even remotely contemplate a "direct action" between the insured and the insurer to trigger the insurer's duty to pay a claim for uninsured motorist benefits. See Don's Bldg. Supply, Inc. v. OneBeacon Ins., 267 S.W.3d 20, 23 (Tex. 2008) (stating that no phrase of the policy should be isolated from its setting and considered apart from the other provisions). The only adversarial litigation contemplated by the policy was a suit by the insured to enforce an arbitration award in the event the parties could not agree to the extent, if any, of uninsured motorist coverage. See Carpenter v. N. River Ins., 436 S.W.2d 549, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.