Cortney Hill, Individually and as Next Friend of D.M. v. Allstate Fire and Casualty Insurance Company ( 2022 )

Reversed and Remanded and Majority and Dissenting Opinions filed July 26,
2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00562-CV
CORTNEY HILL INDIVIDUALLY AND AS NEXT FRIEND OF D.M.,
Appellant
V.
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Appellee
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2018-48768
OPINION
Appellant Cortney Hill (“Cortney”), individually and as next friend of her
son D.M., filed suit against appellee Allstate Fire and Casualty Insurance Company
(“Allstate”) for its failure to pay claims under an automobile insurance policy.
Allstate filed a traditional and no evidence motion for summary judgment, which
the trial court granted. In a single issue on appeal, Cortney argues that the trial
court erred in granting summary judgment because she raised a genuine issue of
material fact regarding whether she and D.M. were covered individuals under the
policy. We reverse and remand.
I. BACKGROUND
The Allstate Policy
In May 2016, Catherine Hill (“Catherine”)—Cortney’s mother—renewed
her auto insurance policy with Allstate. Regarding uninsured/underinsured
motorists coverage, the policy protects “covered person[s]” while occupying the
covered auto:
A. We will pay damages which a covered person is legally
entitled to recover from the owner or operator of an uninsured
motor vehicle because of bodily injury sustained by a covered
person, or property damage, caused by an accident.
B. “Covered person” as used in this Part means:
1. You or any family member;
2. Any other person occupying our covered auto;
....
With regard to personal injury protection, the following provisions apply:
A. We will pay Personal Injury Protection benefits because of
bodily injury:
1. resulting from a motor vehicle accident; and
2. sustained by a covered person.
Our payment will only be for losses or expenses incurred
within three years from the date of the accident.
...
C. “Covered person” as used in this Part means:
...
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2. Any other person while occupying your
covered auto with your permission.
“Occupying” is defined in the policy as “in, upon, getting in, on, out, or off.”
Background Facts
On October 15, 2016, Cortney borrowed her mother Catherine’s car to run
errands. After receiving Catherine’s approval, Cortney drove out, taking D.M. and
J.B.—her fifteen-year old “future stepdaughter”—with her. On the way home, the
car ran out of gas on U.S. Highway 59. Cortney pulled the car over on the right
shoulder, and then called her future mother-in-law—Evelyn Brown (“Evelyn”)—
for help.
Evelyn filled a gas can and parked behind Cortney on the shoulder. Evelyn
stood between the two vehicles to hand the gas can to Cortney. Because the gas
tank access was toward the back of the driver’s side on the side of oncoming
traffic, Cortney was afraid she would get hit by a car while she was filling the gas
tank, and “pressed [her] body on the car so [she] would be as close as possible to
avoid the passing cars.” Cortney further claimed her “body was touching the car
while [she] was holding the gas can.” D.M. was standing between the front door of
the passenger’s side and the concrete barrier. He was holding the door handle to
the door when Cortney spotted a rapidly-approaching vehicle driving on the
shoulder towards them. Cortney yelled for everyone to move. The last thing she
saw before being knocked unconscious was the approaching car run over her foot
as it crashed into the back of Evelyn’s car.
When Cortney woke up, she found D.M. standing in almost the same
position as before the crash. He had laid on the ground when Cortney yelled
“move, move, move,” and received no injuries as a result of the crash. J.B. was
lying on the roadway near where she had been standing before, and Evelyn was
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lying on top of her. They were all transported to the hospital, but Evelyn died in
the ambulance.
The Lawsuit
On July 23, 2018, Cortney filed suit against Allstate for breach of contract
and breach of duty of good faith and fair dealing, alleging that Allstate denied or
delayed payment of the claims under Catherine’s auto insurance policy related to
the accident. The trial court severed and abated the bad faith and extra contractual
claims, leaving only the breach of contract claim.
Allstate filed its first traditional and no evidence motion for summary
judgment, arguing that Cortney and D.M. were not “covered persons” because they
were not occupying the vehicle at the time of the accident. On May 5, 2020, the
trial court held a hearing on the motion as to Cortney’s claims only. On May 14,
2020, the trial court granted a final motion for summary judgment as to all parties,
dismissing all causes of action with prejudice, without specifying the grounds for
the ruling.1 Cortney filed a motion for new trial, which was overruled by operation
of law. Cortney then filed a timely appeal.
II. ANALYSIS
In a single issue, Cortney argues that the trial court erred by granting the
motion for summary judgment.
1
In the motion for summary judgment on file at the time the trial granted the motion for
summary judgment, Allstate argued that Cortney and D.M. were not “covered persons” under the
policy because they were not family members and they were not “occupying” the vehicle. On
May 14, 2020, after the issuance of the trial court’s order granting the motion for summary
judgment, Allstate filed a second motion for summary judgment. In this second motion for
summary judgment, Allstate argued that D.M. was not a covered person under the policy because
he did not sustain any physical injuries.
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A. STANDARD OF REVIEW
When a party moves for summary judgment on both traditional and no-
evidence grounds, we address the no-evidence grounds first. See Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see also Carnegie Homes & Constr.
LLC v. Turk, No. 14-16-00260-CV, 2017 WL 3927290, at *3 (Tex. App.—
Houston [14th Dist.] Sept. 7, 2017, no pet.) (mem. op.). On appeal of an order of
summary judgment that does not state the grounds on which it is granted, we will
uphold the judgment on any valid ground in the motions that is properly supported
by the record. See Golden v. McNeal, 78 S.W.3d 488, 491 (Tex. App.—Houston
[14th Dist.] 2002, pet. denied).
In a no-evidence motion for summary judgment, the movant represents that
there is no evidence of one or more essential elements of the claims for which the
nonmovant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i). The burden
then shifts to the nonmovant to present evidence raising a genuine issue of material
fact as to the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 582 (Tex. 2006). Thus, in reviewing a no-evidence summary
judgment, we ascertain whether the nonmovant offered summary-judgment
evidence raising a genuine fact issue as to the essential elements challenged in the
no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206–08
(Tex. 2002).
In our de novo review of a trial court’s summary judgment, we consider all
the evidence in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. Tamez, 206 S.W.3d at 582. The
evidence raises a genuine fact issue if reasonable and fair-minded jurors could
differ in their conclusions in light of all of the summary-judgment evidence.
5
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per
curiam).
The movant for traditional summary judgment has the burden of showing
that there is no genuine issue of material fact and that she is entitled to judgment as
a matter of law. See Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); see also Carnegie
Homes & Constr., 2017 WL 3927290, at *3. When, as in this case, the order
granting summary judgment does not specify the grounds upon which the trial
court relied, we must affirm the summary judgment if any of the independent
summary-judgment grounds is meritorious. See FM Props. Operating Co. v. City
of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Schultz on Behalf of Schultz v. Lone
Star Rd. Constr., Ltd., 593 S.W.3d 750, 754–55 (Tex. App.—Houston [14th Dist.]
2019, pet. denied).
B. APPLICATION
The only question before us is whether Cortney and D.M. were “covered
persons” under the policy with Allstate. Cortney admits that she and D.M. were not
the actual policy holders and they were not considered “family members” under
the policy. The parties’ dispute centers on whether Cortney and D.M. were
“occupying” the covered vehicle within the Allstate policy definition of that term.
Thus, in our review, we look to see if there is a genuine fact issue regarding
whether Cortney and D.M. were “occupying” the vehicle during the accident.
Both parties cite to and rely heavily on United States Fid. & Guar. Co. v.
Goudeau, 272 S.W.3d 603, 606 (Tex. 2008). In Goudeau, the plaintiff parked on
the shoulder of the tollway, exited his vehicle, and began walking around the front
towards the retaining wall to assist a stranded motorist. Another vehicle crashed
into both of the stationary cars, pinning Goudeau against the retaining wall and
crushing his pelvis. See id. at 605. The applicable auto insurance policy defined
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“occupying” exactly as it is defined in the present case: “in, upon, getting in, on,
out or off.” Id. at 606. Goudeau argued that he was “occupying” his vehicle
because he was “upon it” when he was injured. Id. The Texas Supreme Court
disagreed, concluding that, in construing insurance policies according to their plain
language, using “the ordinary, everyday meaning of the words to the general
public”, Goudeau was not “upon” the vehicle at the time of the accident:
But a driver who has exited the car, closed the door, walked around
the front, and then has the vehicle smashed into him cannot be said to
be “occupying” the vehicle at the time of the collision, even if
afterwards he ends up partly “upon” it. We cannot ignore the context
by focusing solely on “upon” and ignoring “occupying.” Construing
“upon” to include the situation here would “ascrib[e] to one word a
meaning so broad that it is inconsistent with its accompanying
words.”
Id. at 606 (internal citations omitted).
Applying Goudeau, Allstate asserts that Cortney’s “incidental contact” with
the vehicle does not equate to her being “on” or “upon” the vehicle. However, we
find Goudeau to be distinguishable. Goudeau was not in contact with the vehicle at
all until after the crash; accordingly, the Texas Supreme Court concluded that “the
plain meaning of ‘occupying’ as defined in this policy cannot be stretched to
include Goudeau.” Id. at 608. Here, the facts are inapposite; Allstate does not deny
that Cortney had her body pressed against—and was in direct, physical contact
with—the vehicle at the time of the accident. To determine if this level of contact
constitutes being “upon” the vehicle, we consider the everyday meaning of the
words in the policy. See id.The Merriam-Webster Dictionary defines “upon” as “on.” See Upon,
MERRIAM–WEBSTER, http//www.merriam-webster.com/dictionary/upon (last
visited May 13, 2022). In its first three definitions, “on” is defined as “a function
word to indicate position in contact with and supported by the top surface of,” “a
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function word to indicate position in or in contact with an outer surface,” or “as a
function word to indicate position in close proximity with.” See On, MERRIAM–
WEBSTER, http//www.merriam-webster.com/dictionary/on (last visited May 13,
2022). Because one of the common and ordinary meanings of the word “upon” is
that of “contact with,” it is reasonable to conclude the parties contemplated a
construction of the word that would include actual physical contact with the
vehicle, as occurred here. Further, the policy does not limit or restrict the meaning
of the word “upon” in defining occupying. Hart v. Traders & General Ins., 487
S.W. 2d 415, 419 (Tex. App.—Fort Worth, 1972, writ ref’d n.r.e.). Using the
ordinary and everyday meaning of the words in the policy, and viewing the
evidence in the light most favorable to Cortney, the nonmovant, fair-minded jurors
could differ in their conclusions regarding whether Cortney was “occupying” the
vehicle at the time of the accident. See Tex. R. Civ. P. 166a(c); Mayes, 236 S.W.3d
at 755; see also Maldonado v. Travelers Cas. Ins. Co. of Am., No. 2:20-CV-00242-
JRG, 2021 WL 977895, at *3 (E.D. Tex. Mar. 16, 2021) (concluding that
individuals were “occupying” a vehicle when they were in a continuous course of
action of getting on and getting off a covered vehicle to pick up debris off the road
even though the individuals took evasive action and were not physically touching
the vehicle at the time of the accident).
We conclude that Cortney raised a genuine issue of material fact regarding
whether she was occupying the vehicle at the time of the accident. See Mayes, 236
S.W.3d at 755. Accordingly, the trial court erred in granting summary judgment on
Cortney’s claim.
We next address whether D.M. was “occupying” the vehicle. The evidence
indicates that he was holding the handle to the car door when he took evasive
maneuvers to protect himself by laying on the roadway in close proximity to the
car. We note once again that the policy does not limit the phrase “getting in” or the
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word “upon” in defining occupying. Hart, 487 S.W. 2d at 419. It is reasonable to
conclude that the parties contemplated a construction of the word “occupying” that
would encompass the facts here. In other words, using the ordinary and everyday
meaning of the words in the policy, and viewing the evidence in the light most
favorable to the non-movant, fair-minded jurors could differ in their conclusions
regarding whether D.M. was in a single course of action that falls within the
ordinary, everyday meaning of “occupying,” i.e., “getting in, on, out or off,” the
vehicle, even considering that D.M. took evasive actions and was not physically
touching the vehicle immediately prior to the accident. See Mayes, 236 S.W.3d at
755; Maldonado, 2021 WL 977895, at *3. There is a genuine issue of material fact
concerning whether D.M. was “occupying” the vehicle. Accordingly, the trial court
erred in granting summary judgment in relation to D.M.
Allstate additionally argues that we can affirm the judgment as to D.M. for
an alternative reason. At the summary judgment hearing, Hill objected to the trial
court’s consideration of the ground that D.M. was not injured based on her
contention that Allstate failed to provide adequate notice of that ground before the
hearing. In response, Allstate agreed to postpone consideration of that ground for
at least another twenty-one days. The trial court then said that “we’ll have to redo
the D.M. non-bodily injury at another time.” Allstate’s counsel agreed. Given those
events, it would be improper for us to affirm summary judgment on an alternative
ground, the consideration of which Allstate, as the movant, agreed to postpone.
The issue of D.M.’s injury or non-injury was not before the trial court when it
ruled.
We sustain Cortney’s sole issue.2
2
The dissent addresses Allstate’s sham affidavit argument that Allstate raised in its reply
to Hill’s response to Allstate’s motion for summary judgment. However, addressing this
argument is unnecessary because Allstate does not raise the sham affidavit issue on appeal. See
9
III. CONCLUSION
We reverse the trial court’s order granting summary judgment as to both
Cortney and D.M., and remand to the trial court for further proceedings.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Jewell, Bourliot, and Poissant. (Jewell, J., dissenting).
Burton v. Prince, 577 S.W.3d 280, 291 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (noting
that appellate courts will not address issues not raised on appeal by the appellant). Furthermore,
Allstate’s argument below that Hill’s affidavit constitutes a sham affidavit because it contradicts
her earlier deposition testimony is “an objection complaining of a defect in form of [her]
affidavit.” Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.—Dallas 2006,
no pet.). Thus, even if Allstate wanted to raise the issue on appeal, the issue is not preserved
because Allstate failed to secure a ruling on its sham affidavit objection. See id.10