Dallas Fort Worth Insurance Lawyer Blog

People with insurance policies in Grand Prairie, Fort Worth, Dallas, Saginaw, Keller, Grapevine, Mesquite, or anywhere else in Texas would be surprised to learn that there are situations where family members are excluded from insurance claims. Here is one example of that.
The case is styled Rumley v. Allstate Indemnity Company. The opinion was issued by the Beaumont Court of Appeals in 1996. Here are some facts:
Joyce Rumley ("Wife") sustained personal injuries in a one car vehicle accident in which her husband, Wilburn Rumley, was the driver. Mrs. Rumley filed a claim for benefits under their insurer, Allstate. Allstate paid Personal Injury Protection (PIP) benefits but refused to pay liability because the policy contained a family member exclusion. At the time, the Texas Supreme Court had granted writ of error but had not yet issued an opinion in National County Mutual Insurance Company v. Johnson. In that decision, the Texas Supreme Court invalidated the family member exclusion. Wife sued Allstate and Ted Pate, a senior staff claims representative for Allstate, for breach of duty of good faith and fair dealing, violations of the Texas Insurance Code and violations of the Texas DTPA.
Allstate filed a Motion for Summary Judgment on the grounds that Wife's claim was a third-party claim for which Defendants owed no duty of good faith and fair dealing; there was a reasonable basis for denying the claim in that the family member exclusion was an unsettled issue of law; and there was no special or contractual privity between Pate and Rumley. The trial court granted summary judgment. Wife appealed.
In upholding the grant of summary of summary judgment in favor of the claim representative the court explained -
A third-party claimant cannot pursue an action against an insurer for unfair claims settlement practices under the Insurance Code.
Although Wife was a named insured on the policy and premiums were paid from community funds thereby establishing Wife's contractual relationship with Allstate, when Wife asserted a liability claim against her spouse, she assumed a posture of a third-party claimant.
In the context of her claim based upon her husband's negligence, Wife was antagonistic to both insurer and spouse. She did not rely upon Allstate's good faith any more than any other injured party would.
As a third-party claimant, Wife had no standing to assert extra-contractual and statutory claims against Allstate or the claims representative for denial or delay in the payment of her claim.
This case is yet another example of a case that should be confusing to most people. And it serves as yet another example why an experienced Insurance Law Attorney needs to be involved in these cases.

People with auto insurance policies in Grand Prairie, Arlington, Fort Worth, Dallas, Hurst, Euless, Bedford, and other places through out the DFW metroplex usually do not have a very good understanding of how their auto insurance policies work. All they know is that if they get into a wreck the insurance is suppose to help them.
There are many things an auto insurance policy can provide. The vast majority of people get the bare minimum that is required by state law. But there are many things that can be purchased. The minimum is liability coverage. Beyond liability coverage, a person can purchase coverage for damages to their vehicle, towing, auto rental, life insurance, medical payments, personal injury protection, uninsured and underinsured coverage, and a few other types of coverage.
All of these coverages work a little different from each other. Personal Injury Protection (PIP), and Uninsured / Underinsured (UM) coverage is required coverage on any auto policy sold in the State of Texas, unless these coverages are rejected in writing.
The requirement for PIP coverage is found in the Texas Insurance Code, Section 1952.152. The requirement for UM coverage is found in the Texas Insurance Code, Section 1952.101.
One aspect of these coverages was discussed in a 2004, Texas Supreme Court case styled, Old American County Mutual Fire Insurance Company v. Zeferino Sanchez. The question in this case was whether the insured spouse of the person listed as the "named insured" in the declarations page of a policy may reject those coverages. The case got to the Supreme Court as the result of a summary judgment ruling. This Supreme Court ruled that the spouse falls within the class of persons statutorily entitled to reject UM and PIP coverages under the policy.
Here is the factual background:
This case was presented on stipulated facts. On January 8, 1998, Margarita Sanchez, wife of Zeferino Sanchez, applied for and purchased an insurance policy from Old American for two of the couple's vehicles. Ms. Sanchez rejected UM and PIP coverages on the insurance application, and Old American never assessed premiums for the coverages. In applying for the policy, Ms. Sanchez affirmed that the rejections of UM and PIP coverages would apply to the 1998 policy and to all future renewals of that policy. The Sanchezes renewed their existing policy in 1999. Neither Mr. or Mrs. Sanchez requested PIP or UM coverages at that time.
Although Ms. Sanchez's name appeared on the 1998 policy application, she was not listed as a "named insured" on the declarations page. The policy, however, defined "you" and "your" to include the "named insured" as well as "the spouse if a resident of the same household." Mr. Sanchez fell within the policy definitions of "you" and "your" because she and Mr. Sanchez lived in the same house at all pertinent times. To that end, the parties stipulated that both Mr. and Mrs. Sanchez were insured under the policy. The parties disagreed, however, about the extent of the policy's coverage. Specifically, the parties disputed whether Mr. Sanchez was entitled to UM and PIP benefits to cover damages arising from a 1999 accident.
On April 11, 1999, Mr. Sanchez's pickup was parked on the shoulder of the road. A vehicle driven by an uninsured motorist struck Mr. Sanchez's truck as he was lying beneath it repairing a broken fuel hose. The impact caused the pickup to collapse on Mr. Sanchez and sever his spinal cord. The policy's UM and PIP provisions excluded coverage for injuries sustained while "occupying" or when "struck by" any vehicle owned by an insured that was not insured under the policy.
After the accident, Mr. Sanchez filed a claim with Old American for UM and PIP benefits under the policy. Old American filed suit seeking a declaratory judgment absolving it of any obligation to pay those benefits.
This court got into a multi page discussion about the purpose of the UM and PIP statutes and the wording of those statutes and then compared that discussion to the wording of the Old American policy.
The Texas Supreme Court ultimately held that the phrase "insured named in the policy" was synonymous with "named insured" in the UM and PIP statutes. In so holding it was ruled that Ms. Sanchez's signed reject of UM and PIP coverages, also excluded those coverages for Mr. Sanchez.

There are times for someone in Grand Prairie, Arlington, Fort Worth, Dallas, De Soto, Duncanville, Cedar Hill, Crowley, Mansfield, and other places in Texas to get with an Insurance Law Attorney to understand how certain aspects of insurance claims are to be handled.
In 1999, the Court of Appeals, Fourteenth District, Houston, had a case of "first impression," meaning they were presented with an argument for the first time. The case dealt with an argument for offset and settlement credit against uninsured motorist coverage by a negligent third party. The dispute arose out of a multi-car accident.
The style of the case is, "Ann M. Bartley a/k/a Anne Marie Tadlock v. Martell Rae Guillot." Here are some facts:
Guillot originally sued Ward, Bustos (uninsured), and Bartley (insured). Before trial, Guillot settled with Allstate, her uninsured motorist carrier, for $20,000 for the injuries she sustained in the accident caused by Bustos. The settlement agreement limited Allstate's subrogation rights to any damages recovered from Bustos or any other uninsured motorist. Bustos was dismissed and Ward was nonsuited. Thus, Guillot proceeded against Bartley only and recovered $30,000. Bartley moved the court for a set-off in the amount of $20,000, the amount Guillot received from Allstate. This request was made pursuant to Texas Civil Practices & Remedy Code, Section 33.012. The trial court refused, and Bartley perfected this appeal.
The issue before the court was whether a negligent driver is entitled to receive credit from an independent insurance policy procured by the injured party. This is what made this a case of "first impression" in Texas. An insurance company who pays under contract for a loss or injury for the wrong of another is subrogated to the rights of the creditor or injured person against the wrongdoer. The insurer's right to subrogation derives from the rights of the insured.
Here, Allstate paid Guillot, the insured, pursuant to Guillot's uninsured motorist policy for the multi-car collision. This entitled Allstate to stand in the shoes of Guillot and assert any claims that Guilot was entitled to assert. However, Allstate decided not to exercise its subrogation rights. Thus, Allstate allowed Guillot to receive more money than the damages awarded by the jury because it did not attempt to collect from Bustos. (A total of $50,000).
In discussing this case, the court pointed out that what Bartley really seeks is reimbursement or contribution from Bustos via Allstate's payment to Guillot under her uninsured motorist policy. However, Allstate stands in the shoes of Guillot not the shoe's of the joint tortfeasor. Bustos, the uninsured alleged joint tortfeasor, was not a party to the suit. To prevent what has occurred, Bartley could have joined Bustos in a cross action as a third party defendant creating an opportunity for the jury to adjudicate Bustos's liability, if any. This would have allowed Bartley to seek contribution or reimbursement from Bustos for any damages attributable to Bustos. To offset the $30,000 Bartley owed as damages by Allstate's $20,000 settlement, would allow Bartley to receive contribution from the plaintiff and not a codefendant. Allstate's liability arose from the fault, if any, of the uninsured motorist Bustos, not that of the insured driver, Bartley.
As stated, this was a case of first impression for the court and as such is not the type of situation that is going to happen very often.

Anyone in Grand Prairie, Arlington, Mansfield, Cedar Hill, Duncanville, De Soto, Irving, Fort Worth, or anywhere else in Texas would naturally wonder when a claim they submit is suppose to be paid. The lawyerly answer is: It depends. One answer in one situation is shown here.
In 2002, the San Antonio Court of Appeals issued an opinion in a case that dealt with when a claim for underinsured motorist (UIM) benefits should be paid. The style of the case is Lawrence F. Wellisch, III and Maria L Wellisch v. United Services Automobile Association. The case came to the appeals court on an appeal on a motion for summary judgement in favor of United Services Automobile Association (USAA).
Here is some background.
Judith Salinas was driving her car at about 88 miles per hour when she lost control of the vehicle. It rolled over, killing Salinas and her son and severely injuring other passengers, including 15 year old Jessica Wellisch. Jessica was in a coma for five days before dying. The Wellisch's sued Salinas estate, and, with USAA's permission, settled. The Wellisches then sought to recover under their USAA UIM coverage. On November 25, 1998, USAA denied the claim, and the Wellischs sued on the insurance contract and for extra-contractual claims.
A trial was held wherein the Wellishes prevailed on their contract claim. On May 2, 2000, the judgment was entered and on the same day, USAA paid the Wellisches their policy limits of $300,000.
The Wellischs then proceeded on their extra-contractual claims against USAA. The part of this that is relevant to this writing is the claim for delay in paying the claim from November 25, 1998, to May 2, 2000. USAA filed a motion for summary judgement asking the court to rule that there was no liability and the court granted that motion. This appeal ensued.
The Wellisches asserted that USAA's denial of their claim on November 25, 1998, was a violation of the Texas Insurance Code, Prompt Payment of Claims Act, and thus they were entitled to Section 542.060 penalties. USAA countered, arguing that the money was not due until judgment was rendered on May 2, 2000, and since they paid on that same day, they had no liability under Section 542.060.
The USAA policy provided that USAA would "pay all damages which a covered person is legally entitled to recover ...."
In discussing this case the court looked at how other courts have ruled and stated, "Various courts have construed the phrase 'legally entitled to recover' in similar UIM policies to mean that the insured must establish the uninsured motorist's fault and the extent of the resulting damages before becoming entitled to recover UIM benefits." They went on to say that those other courts make clear that an insurer is not obligated to pay UIM benefits until the insured becomes legally entitled to those benefits. Thus, an insurer has the right to withhold payment of UIM benefits until the insured's legal entitlement is established.
In looking at the statute, they said that the plain objective of the statute is to obtain prompt payment of claims, and as a court, they must liberally construe the statute to promote its underlying purposes. Failure to comply with the statute is what would result in penalties for failure to comply with the statute.
However, as the court stated, "Nothing in (the prompt payment of claims act) suggests that an insurance company cannot dispute and deny a claim. In fact, the statute is premised on the presumption that carriers have the right to dispute claims. It merely requires that they do so promptly. Further, nothing in (the act) precludes an insurer from awaiting a judicial determination of an insured's 'legal entitlement' to UIM benefits. It merely requires that the insurer notify the insured of its reasons for delaying the acceptance or rejection of a claim."
An experienced Insurance Law Attorney can read Section 542.055, 542.056, and 542.057 and advise a client how best to proceed. These situations can be very fact specific. When dealing with UIM cases, too many times a person has to wait until there has been a judicial determination of fault and damages. Most other cases do not require this wait.

Most people in Grand Prairie, Arlington, Irving, Fort Worth, Colleyville, Dallas, Mesquite, Garland, and other places in the Dallas/Fort Worth metroplex do not really understand what a "loss of consortium" claim is.
A 1981, Texas Supreme Court case described a loss of consortium claim as "companionship, emotional support, love, felicity, and sexual relations," and recognized that loss of consortium involves harm to "the intangible and sentimental elements" of a marriage.
How a loss of consortium claim works as it relates to an insurance policy claim was discussed in a 1987, Texas Supreme Court case styled, Ella Jo McGovern v. Linda Kay Williams et al. This case concerned the liability of an insurance company under an auto liability policy. Here is some background.
Robert McGovern and wife, Ella Jo, sued Linda Williams for damages arising out of an auto accident. State Farm, the insurer for Ms. Williams, intervened and tendered $10,000 as full payment of its policy limits. The trial court determined that $10,000 was the applicable policy limit and discharged State Farm from any further liability. This court upheld the trial court ruling.
Robert McGovern, a City of Dallas employee, sustained personal injuries in an auto accident. The City, as subrogee, initiated suit against Linda Williams for Mr. McGovern's personal injuries. Mr. and Mrs. McGovern later brought a separate suit against Ms. Williams and others for Mr. McGovern's personal injuries and for Mrs. McGovern's loss of consortium. Ms. Williams' policy with State Farm insured Williams to the extent of $10,000 per person and $20,000 per occurrence for bodily injury claims. State Farm tendered the $10,000 pursuant to the "per person" policy limit. Mrs. McGovern disputed the amount of the tender, contending that she and Mr. McGovern were each entitled to $10,000 in insurance proceeds and that State Farm's obligation was $20,000.
At issue in this case was whether loss of consortium is a separate "bodily injury" to a spouse for purposes of applying the minimum insurance policy limits contained in Williams' policy and required by the Texas Safety Responsibility Law (TSRL). Mrs. McGovern contends that her claim for loss of consortium constitutes a "bodily injury" as that term is used in the TSRL and that she is entitled to independently recover from State Farm under the $10,000 "per person" liability limit.
Mrs. McGovern argued the TSRL was intended to encompass loss of consortium as a separate "bodily injury" because the legislature's general intent in enacting the statute was to protect persons from loss caused by negligent motorists. She contended that bodily injury is not limited to actual physical contact but is to be construed liberally to include mental anguish and emotional trauma. For support, she relied on the 1981 case mentioned above.
In discussing this case, the court said the TSRL refers to liability limits due to bodily injury or death to any one or more persons in any one accident. It is undisputed that only Mr. McGovern was involved in the accident giving rise to his personal injuries. Thus, because only one person was involved in that accident, the limit of State Farm's liability is $10,000.
In further discussion, the court stated that the term "bodily injury" cannot be reasonably construed to incorporate loss of consortium. While it is true that loss of consortium is a separate and independent cause of action, that action is a derivative claim that arises only as a consequence of injuries to one's spouse. The fact that Mrs. McGovern has a separate cause of action for loss of consortium does not mean, as Mrs. McGovern asserts, that loss of consortium constitutes a "bodily injury."

If someone in Grand Prairie, Fort Worth, Saginaw, Roanoke, North Richland Hills, Lake Worth, Colleyville, or anywhere else in Tarrant County uses someone else's car when their own car is unavailable, does the insurance on that other car protect them?
This issue was discussed in a 2003, Texas Supreme Court case styled, Progressive County Mutual Insurance Company v. Paul Sink. The case concerned coverage for a "temporary substitute" vehicle under the standard Texas Personal Auto Policy.
The issue was whether the policy provided liability coverage when the insured, whose own vehicle was disabled, takes and drives an automobile owned by someone who is not a family member without permission or the reasonable belief that he has permission and is involved in an auto accident with a third party. The trial court ruled as a matter of law that there was no coverage. The appeals court reversed the trial court. This Supreme Court reversed the appeals courts. Here is some background.
Joshua McCauley's pickup truck became disabled. He was at that time employed by Alamo Rent-A-Car, and while on the job, he took one of its rental cars to drive to a location that was not disclosed in the court's record to get his tools so that he could attempt to repair his truck. It was uncontested that McCauley did not obtain permission from Alamo to use any of its vehicles and did not believe that he had permission to use the car in question. While returning to work in Alamo's car, McCauley was involved in an accident with Paul Sink.
Sink sued McCauley and obtained a favorable judgment that was subsequently discharged in bankruptcy. Sink then commenced this action against McCauley's auto insurance carrier, Progressive County Mutual Insurance Company, under its policy insuring McCauley's truck. Sink claimed that he was a third-party beneficiary of McCauley's policy and sought benefits under that policy's liability coverage.
When the trial began, the Judge determined that the vehicle owned by McCauley's employer was not covered by the insurance policy issued for McCauley's truck. That is when this appeal began.
The only issue for the Supreme Court was the proper interpretation of the policy.
The liability coverage section of the policy provided that Progressive "will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident." The policy contained a broad exclusion that precluded coverage for any person who uses a vehicle without a reasonable belief that he or she is entitled to do so, but the policy also stated that the exclusion does not apply to an insured or an insured's family member who uses "your covered auto":
EXCLUSIONS
A. We do not provide Liability Coverage for any person:
8. Using a vehicle without a reasonable belief that that person is entitled to do so. This exclusion (8) does not apply to you or any family member while using your covered auto.
The policy's definition of "your covered auto" contains, among other things, the reference to a "temporary substitute" vehicle:
G. "Your covered auto" means:
4. Any auto or trailer you do not own while used as a temporary substitute for any other vehicle described in this definition [e.g., a vehicle identified in the policy Declarations or a vehicle acquired by the insured during the policy period] which is out of normal use because of its:
a. breakdown;
b. repair;
c. servicing;
d. loss; or
e. destruction.
Progressive argued in the court of appeals and maintained before the Supreme Court that although there is no definition of its policy of what constitutes a "temporary substitute" vehicle, courts should look to the definition of "temporary substitute automobile" used in the Texas standard policy form that preceded the current one. Alternatively, Progressive contended that the term "temporary substitute" should be given its commonly understood meaning, which, it argued, is that a substitute vehicle must be used with the permission of its owner or at least a reasonable belief that the owner consented.
In justifying its ruling the court said that because the term "temporary substitute" is not defined in the policy, they considered the ordinary, everyday meaning of the words used. It is common to rent a car, use a loaner car, or borrow a car from a friend or family member while one's primary vehicle is undergoing service or repair. The generally accepted meaning of "temporary substitute" vehicle does not, include taking a vehicle without at least a reasonable belief of entitlement to its use.
Paragraph 8 says that a person using a vehicle without a reasonable belief that he or she is entitled to do so is not covered. "The general public understands that if a vehicle driven by a teenager and expressly covered by the policy breaks down and the teenager steals a neighbors car, the stolen vehicle would not be regarded as a 'temporary substitute' vehicle. Nothing in the use of the term 'temporary substitute' vehicle suggests otherwise. The analysis would not change if the teenager 'borrowed' the neighbor's car without the neighbor's knowledge or permission. The same can be said of an adult insured who 'borrows' his or her employer's car without permission. The ordinary connotation of a 'temporary substitute' vehicle is that it is a vehicle used with the owner's permission, or at least a reasonable belief that the owner consented."

Here is a situation for someone in Grand Prairie, Arlington, Fort Worth, Dallas, Irving, or anywhere else in the DFW area to think about. If a car has insurance and it gets sold, is the insurance on the car still valid?
This case was decided by the Houston Court of Appeals, First District, in 1986. The style of the case is Douglas W. Black v. BLC Insurance Company.
Black was appealing from a summary judgment that BLC had no duty to defend against his claim because BLC had no liability to him under its insurance policy.
On May 6, 1983, BLC issued an auto policy to Thomas Webster covering his 1972 Dodge. Webster sold the car to Robert Linville on September 9, 1983. A week later, Linville sold the car to Warren Sanchez. Sanchez took possession on September 17, 1983, paying $270 and promising to pay the balance by September 30, 1983. Linville gave Sanchez a bill of sale to evidence the transaction. On October 23, 1983, Sanchez, while driving the 1972 Dodge, was killed in a collision with a car driven by Black. Black, who was injured, sued Sanchez' estate for damages.
BLC sought a declaratory judgment that it had no duty to defend or indemnify Sanchez' estate under its insurance policy issued to Webster, because Webster had sold the insured auto before the accident. The court ruled in favor of BLC.
Black contended that the court erred because Webster's policy was not cancelled and still covered the 1972 Dodge on October 23, the date of the accident.
The pertinent portions of the policy provide:
DEFINITIONS
Throughout this policy, "you" and "your" refer to:
1. The "named insured" shown in the Declarations, and
2. The spouse if a resident of the same household.
***
"Your covered auto" means:
1. Any vehicle shown in the Declarations;
2. Any of the following types of vehicles on the date you became the owner:
a. a private passenger auto; or
b. a pickup, panel truck or van, not customarily used in any business or occupation other than farming or ranching.
This provision applies only if you:
a. acquire the vehicle during the policy period; and
b. notify us within 30 days after you become the owner.
If the vehicle you acquire replaces one shown in the Declarations, it will have the same coverage as the vehicle it replaced. You must notify us of a replacement vehicle within 30 days only if you wish to add or continue Coverage for Damage to Your Auto.
If the vehicle you acquire is in addition to any shown in the Declarations, it will have the broadest coverage we now provide for any vehicle shown in the Declarations.
***
PART A -- LIABILITY COVERAGE
INSURING AGREEMENT
We will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident.
"Covered person" as used in this Part means:
1. You or any family member for the ownership, maintenance or use of any auto or trailer.
2. Any person using your covered auto.
3. For your covered auto, any person or organization but only with respect to legal responsibility for acts or omissions of a person for whom coverage is afforded under this Part.
4. For any auto or trailer, other than your covered auto, any person or organization but only with respect to legal responsibility for acts or omissions of you or any family member for whom coverage is afforded under this Part. This provision applies only if the person or organization does not own or hire the auto or trailer.
Black contended that "your covered auto" in the policy means "any vehicle shown in the Declaration," and the declaration named the 1972 Dodge; therefore, the car remained insured under Webster's policy, despite the two changes of ownership. Black charges that the trial court's judgment has improperly added to the policy a requirement that the named insured, Webster, own the "covered auto."
In explaining its ruling, this court said that Webster's ownership of the car was a prerequisite to coverage under this policy. The policy language is clear. A "covered person" is any person using "your covered auto." "Your covered auto" is defined in the policy as "any vehicle shown in the declarations. The word "your" is defined as referring to:
the "named insured" shown in the declarations ....
The use of the word "your" in this policy means that Webster had to own, possess, or at least control the use of the car in order for coverage to exist.
Other courts have reached the same result even though, as in the present case, the named insured remained the record owner on the certificate of title and despite laws providing that unrecorded sales are void.
In a concluding paragraph the court said:
"A finding of coverage under these facts would deprive an insurance company of the right to choose its customers and delegate that power to the insured when choosing a buyer. It would expose the insurer to a greater risk than it assumed by covering permissive users. This is because the insured will generally loan his car cautiously, in order to get it back whole. The insured will not be so careful, however, when selling. Then he will likely sell to the highest bidder, no matter how unskilled or uninsurable the person may be. That is a risk that neither party bargained for, and it is not one plainly included within the policy's language. The trial judge's decision was supported both by the policy language and by sound public policy.

Insureds in Weatherford, Mineral Wells, Aledo, Azle, Hudson Oaks, Willow Park, Brock, Millsap, Cool, Springtown, and other places in Parker County and Texas do not always understand what is covered by their policy and what is not. Here is a case that helps understand a little bit about coverage as it relates to auto policies.
In 2003, the Houston Court of Appeals, 14th Dist. issued an opinion in the case, Alejandro Armendariz and Alma Armendairz v. Progressive County Mutual Insurance Company. This case is an appeal from a Declaratory Judgment lawsuit where in Progressive won after filing a motion for Summary Judgment. Here is some background.
The Progressive automobile insurance policy in the case covered two cars, one owed by Alejandro and the other owned by his sister, Alma. Alejandro was the named insured on the policy. Additionally, Alejandro's parents, who lived with him, and Alma were named as "listed drivers" on the policy. When Alejandro first purchased insurance from Progressive, the policy covered his parents' van. However, Alejandro deleted the van from the policy because his parents wanted to sell it. Four months later, while driving her parents' then uninsured van, Alma, by accident, backed over and killed her father. Alma's mother then sued Alma for the father's wrongful death.
Contending that the van was not a covered auto and Alma was not an insured, Progressive denied the claim and filed this lawsuit. The language in the policy that Progressive relied upon said: "We do not provide liability coverage for the ownership, maintenance, or use of any vehicle other than your covered auto which is owned by a family member or furnished or available for the regular use of any family member."
The Armendarizes contended that the exclusion at issue violated public policy and the Texas Motor Vehicle Safety Responsibility Act. There were two pertinent portions of the Progressive policy in the case. The first was the exclusion:
"B. We do not provide Liability Coverage for the ownership, maintenance or use of:
...
3. I. Any vehicle, other than your covered auto, which is:
a. owned by any family member, or
b. furnished or available for the regular use of any family member.
II. However, this exclusion (B.3) does not apply to [the insured's] maintenance or use of any vehicle which is:
a. owned by a family member ...."
The second pertinent portion of the policy was the definition of "family member": "a person who is a resident of [the insured's] household and related to [the insured] by blood, marriage, or adoption." In this case, Alejandro's parents, who lived with him, owned the van. Further, the van was no longer a covered auto under the policy. Lastly, Alma was not an insured under the Progressive policy, but merely a listed driver for the two covered autos. Because Alma caused the accident while driving her father's uninsured van, the exclusion, if valid, precluded liability coverage.
The Armendarizes argued that the exclusion in the case was akin to the invalid "family member exclusion." The family member exclusion, also called Endorsement 575, reads, "We do not provide Liability Coverage for you or any family member for bodily injury to you or any family member."
In its analysis of this case the court looked at the above and stated, "However, there was no liability coverage here because the family member's vehicle was uninsured, not because a family member was the injured claimant. Even if an unrelated third party had been struck by the van, the exclusion would still apply because the van was owned by a family member but was not insured."
The decision in this case was consistent with the interpretation of owned-but-uninsured exclusionary language in other states. As this court noted, without the exclusion, an insurance company would be "required to insure against risks of which it is unaware, unable to underwrite and for which it is unable to charge a premium.
These cases are tough. An experienced Insurance Law Attorney needs to be involved early in these claims to establish facts that might be helpful to a recovery.

Policy purchasers in Grand Prairie, Arlington, Irving, Fort Worth, Crowley, Hurst, Euless, Bedford, Mansfield, Dallas, and other places in Texas would like to think they know who is covered under a policy they purchase. What is surprising is the difference between what the policy purchaser thinks and what the insurance company thinks.
A 1972, Texas Supreme Court case styled, Robert Snyder, et al. v. Allstate Insurance Company, is an interesting case. Here is a little bit about it.
The controversy is between Allstate, which issued an auto policy to J.B. Rhodes about whether or not they should pay damages arising out of a claim in the possession of and used by Darla Rhodes (minor daughter of J.B.) while being driven by Robert Snyder with Darla Rhodes as a passenger.
Allstate brought this declaratory judgment action seeking an affirmative determination that it had no obligation under its policy.
On June 1, 1968, J.B. purchased a 1962 Mercury auto and delivered it to his daughter Darla, a minor, who did not live in the same household with her father. Both the legal and equitable title to the car are disputed by the parties, but it is undisputed that J.B. purchased an automobile liability policy from Allstate and that the Mercury was specifically described in the policy and a premium was paid for that car. On January 18, 1969, Darla and Snyder were involved in a collision while Snyder was driving the Auto at Darla's request. Both suffered personal injuries, as did occupants of the other car.
Snyder and his father, John Snyder, and Darla and her father J.B., had requested Allstate to defend Snyder up to the limits of the Allstate policy.
At a trial in this matter, the trial court withdrew the case from the jury and entered a judgment that Allstate had an obligation to defend Snyder in all actions and to pay all claims up to its policy limits arising out of the collision.
Allstate appealed claiming that by its policy of liability insurance, Allstate contracted with J.B., the named insured, to pay all sums he should become legally obligated to pay as damages because of bodily injury or property damage "arising out of the ownership, maintenance or use of the owned automobile." The policy defines "insured," with respect to the owned automobile, as:
"(1) the named insured and any resident of the same household."
"(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and"
"(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a)(1) or (2) above,"
"Owned automobile" is defined in the policy as:
"(a) a private passenger, a farm or utility automobile described in this policy for which a specific premium charge indicated that coverage is afforded, ..."
It was undisputed that a specific premium charge was paid on the specific automobile in question; therefore, the automobile was an "owned automobile." Allstate argued that in addition to the definition of "owned automobile" the policy required that actual ownership of the automobile be in the insureds' name. As the court pointed out, the policy did not so provide, and the court refused to compel such a requirement.
J.B. testified that he gave Darla the car for her general use and "left it up to her for her own judgment" as to how she used the car, warning not to let "every Tom, Dick, and Harry" to use it. Darla testified that she asked Robert to drive her from Stratford to Fritch because she did not have a jack in her car and did not want to drive alone in the dark. Allstate did not dispute these facts but relied on them in this appeal in making its argument that J.B. had no authority to give his permission as the named insured because he did not own the auto.
This appeals court recognized two fact questions; (1) authority for the permittee (Darla) to allow a third person (Robert) to drive or use the car, and (2) the original permittee's consent to such use by a third person. As indicated above, these facts were undisputed and thus the court ruled against Allstate.
The cases are often times difficult. Each depends on the facts of exactly what happened and the language in the policy at issue. This is why an experienced Insurance Law Attorney needs to be sought out early in a case where the insurance company denies coverage.

Insured's in Weatherford, Mineral Wells, Aledo, Willow Park, Hudson Oaks, Azle, Brock, Millsap, Springtown, Cool, Peaster, and other places in Parker County would be confused when trying to figure out some aspects of coverage as it relates to auto insurance policy's. The meaning of "Family Member" in a policy might sound pretty easy at first glance, but looking at individual situations makes it not so easy. What about when people just filed for divorce, are separated, not married but living together, away at college or trade school? Are they a "Family Member?" Here is a different look:
The Houston Court of Appeals, First District, issued an opinion in 1996, that is interesting. The style of the case is, State Farm Mutual Automobile Ins. Co. v. Ms. Hanh Thi Dinh Nguyen, and Dr. Bay Van Nguyen, Individually and as Next Friend of His Deceased Infant Daughter.
This appeal is from a summary judgment hearing wherein the court had to decide whether the child in the case, whose entire six-day life was spent in a hospital, was a "resident" of the insured's household.
State Farm had issued an auto liability policy to the Nguyen's with policy limits of $100,000. In 1992, Mrs. Nguyen, who was pregnant, was in a car accident. She sustained injuries that resulted in an emergency cesarean section. A daughter was born. She lived for six days but then died from her injuries in the accident. It is undisputed that the child spent her life in the hospital and never went home to her parents' house.
Dr. Nguyen sued his wife for the child's wrongful death caused by her negligent driving. State Farm defended the lawsuit. The trial court rendered a $100,000 judgment against Mrs. Nguyen. Dr. Nguyen, as third party beneficiary, and Mrs. Nguyen, as insured, sought insurance coverage from State Farm for the amount of judgment. State Farm denied coverage under the family member exclusion in the policy and filed a declaratory judgment action.
At a resulting summary judgment hearing, the Nguyens asserted that the family member exclusion in the policy did not apply to the facts of this case because their child never resided in Mrs. Nguyen's household. There were other legal issues asserted.
State Farm contended that, to the extent it is valid, the family member exclusion applies and precludes coverage because the infant was a resident of Mrs. Nguyen's household.
The policy excluded liability coverage "for [the insured] or any family member for bodily injury to [the insured] or any family member." "Family member" is defined as:
[A] person related to you [the insured] by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child who is a resident of your household, and also includes your spouse even when not a resident of your household during a period of separation in contemplation of divorce.
The court said there were three possibilities here: 1) the child was a resident of the Nguyens' household; 2) the child was a resident of the hospital; or 3) the child established no residence before she died.
The controlling test of whether persons are residents of the same household at a particular time, within the meaning of the policy in question, is not solely whether they are then residing together under one roof. The real test is whether the absence of the party of interest from the household of the alleged insured is intended to be permanent or only temporary -- i.e., whether there is physical absence coupled with an intent not to return.
The case then discussed other cases and other cases from other states.
The court then said they agreed with a ruling which stated, "'resident' is an elastic and amorphous word having different shades of meaning depending upon the context in which it is employed." Moreover, the court considered two factors to be especially significant to the present case, the age and self-sufficiency of the injured person and the absence of another lodging. Both favor a finding that the child was a resident of Mrs. Nguyen's household.
"If we were to hold that the child was not a resident of the Nguyens' household, we would have to conclude that she had no residence. Clearly, she was not a resident of the hospital. While she was there for all six days of her short life, there was no intention that she remain there upon recovery; the intention was that she would reside with the Nguyens. Here, the child could have but one residence, that of her parents, the insureds, for the purpose of determining the application of the family member exclusion."
In this case, the court ruled that the family member exclusion applied. As a result, the Nguyen's were not able to recover the full $100,000 under the policy. Instead, they were limited to the state minimum at that time, of $20,000. To understand this part of the ruling, someone would need to consult with an experienced Insurance Law Attorney.

Insured's in Grand Prairie, Irving, Garland, Mesquite, Dallas, Carrolton, Richardson, Duncanville, De Soto, and other places in Dallas County might have a hard time believing some of the reasons an insurance company will use for denying a claim. Here is one they tried but it did not work regarding the child of divorced parents.
The case was decided by the Texarkana Court of Appeals in 1978. The style of the case is, Hartford Casualty Insurance Company v. Barbara Smith Phillips, Individually and as Personal Representative of the Estate of Jerry Glenn Phillips.
This case involves the question of coverage under the uninsured motorist provisions of a policy of automobile liability insurance. Barbara Phillips was the named insured and sought recovery of damages for bodily injuries sustained by her son, Jerry Glenn Phillips, as a result of an accident caused by an uninsured motorist. At trial, the jury found that Jerry was a "resident of the same household" as Barbara. Hartford contended that Jerry was not such a resident as a matter of law; that there is no evidence to support the jury finding; that there was insufficient evidence to support such finding; and that such finding was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.
It should be noted that at the time of his death, Jerry Glenn Phillips was only fourteen years old.
Barbara was Jerry's mother. His father was Jerry Leon Phillips. The parents had divorced in 1964 and custody was placed with Barbara. However, in 1965, without a change in the custody order, Jerry Glenn, through an agreement by his parents, went to live with his father. It appears that Barbara had only a one bedroom apartment and the father had a two story home with ample space for a separate bedroom for Jerry Glenn, such home being located within twelve blocks of the school that Jerry Glenn attended. Barbara's apartment was not within the school district and the home address of Jerry Glenn for school purposes was that of his father. He had his meals and kept his clothes at his father's house except when visiting his mother. He also kept extra clothes at his mother's apartment. The father claimed Jerry Glenn as a dependent on his income tax returns. The school directory listed his address as that of his father. The medical, hospital, physician records and police report reflected that he resided with his father. His mother bought all of his clothing and provided his food when he was at her apartment. His father testified that he stayed with both him and his mother. The jury found as a fact that Jerry Glenn was a resident of his mother's household and the court entered a judgment reflecting that finding.
From a legal stand point, it should be noted that Barbara was the legal custodian of the child, that the child was only fourteen years of age and that a person, particularly a child, can have more than one "residence" as distinguished from a "domicile." A person may, and many do, have more than one residence. This is particularly true of a minor child of divorced or estranged parents.
In ruling for Barbara the court stated:
"It is quite evident that a finding by the court or jury that Jerry Glenn was a "resident" of his father's household would be adequately supported by the evidence. However, such a finding would not necessarily foreclose and prevent a finding that he was also a "resident" of his mother's household. The mother remained his legal custodian, contributed to his support, he regularly spent time with her in her apartment and kept some clothes there. Barbara as his legal custodian, had she so desired, could legally have required him to remain under her roof full time. The fact that for what apparently she and his father jointly felt would be for his best interest, would not within itself as a matter of law prevent him from being a "resident" of her household."

Insureds in Grand Prairie, Arlington, Fort Worth, North Richland Hills, Hurst, Euless, Bedford, Dalworthington Gardens, Lake Worth, Crowley, or anywhere else in Tarrant County may wonder when a person is determined to be a member of the household for insurance purposes under an insurance policy. Guidance to an answer of that question was provided in a case in 1977.
The style of the case is, Southern Farm Bureau Casualty Insurance Company v. Kenneth C. Kimball et al. The opinion was issued by the Waco Court of Appeals.
Kenneth Kimball was the named insured under a policy issued by Southern Farm Bureau Casualty Insurance Company. Kenneth's wife, Connie was killed in an automobile accident with an uninsured motorist when the policy was in force. At the time of her death, she and Kenneth were separated, living in separate residences, and a divorce action by her was pending. Farm bureau filed a declaratory judgment as to its responsibilities under the policy for uninsured motorist protection benefits, personal injury benefits, and death indemnity benefits. On the trial, under stipulated facts, the only issue raised by the parties was whether Connie and Kenneth were "residents of the same household," as that term is used in the policy, at the time of Connie's death.
The jury answered "yes" to that question and rendered judgment accordingly.
Farm Bureau argued that Connie and Kenneth must also "dwell together under the same roof" in order to be residents of the same household.
This appeals court upheld the jury decision. In doing so they looked at the following evidence and ruled that it was sufficient to satisfy the "residents of the same household" requirement of the insurance policy.
Here are those facts:
Kenneth and Connie, a couple in their 20's, were married in May, 1972. Their only child, a daughter, was born in September, 1973. Connie was killed on December 21, 1975. Before their separation, they resided in their mobile home in the City of Waco. Early in their marriage, they suffered substantial financial losses in the construction business. Thereafter, during the last two years of their marriage, Kenneth was a "long haul" truck driver, based in Waco. He would be on the road three or four weeks at a time, with no longer than three days home between trips. Sometimes he would get in at night and leave the next morning. On the trips, he virtually lived in his truck. It was arranged with his employer that Connie could draw on his earnings and pick up his paychecks. She cashed the checks, bought the family needs, and paid the bills, including payments on the mobile home and several department store accounts she maintained. Connie also held a job. During the day, she left their child with her mother who lives in the City of Lacy-Lakeview, near Waco. After work when Kenneth was gone, Connie would go home, clean up, carry her work clothes for the next day to her mother's house, and she and the child would spend the night there. Connie filed suit for divorce on November 5, 1975. Later, she separated from Kenneth and moved into her mother's house, taking all of her work clothes. After the separation, Connie still kept most of her things in the trailer home. One week before her death, Connie rented an apartment in the City of Bellmead, near Waco, and moved all of her belongings into it. She left a set of dishes in the mobile home for Kenneth. The divorce suit and the separation were precipitated by emotional stress suffered by Connie which was caused by Kenneth's long absences from home and by the dunning of creditors of their defunct construction business. During the separation, Connie would either meet Kenneth at the truck depot in Waco when he returned from a trip, or she would have their car there for his use and he would go to her. They would go out together for supper when he was home, and would visit into the evening with each other and other trucker-couples at local night spots. Neither was romantically interested in another person. They continued with the arrangement for Connie drawing on his pay, cashing checks, using the money as she saw fit, including her needs and those of the child, and paying the bills. He talked with her several times about reconciliation, but she had not agreed to it at the time of her death. On December 5, 1975, Kenneth returned home to attend his father's funeral. That night, he and Connie slept together in a room in his mother's house. Their child was with them. On December 20th, the night before Connie died, she fixed supper for Kenneth in her apartment. Their daughter was with them. They discussed plans for the child's Christmas. Kenneth had arranged his schedule to be home on Christmas.
An experienced Insurance Law Attorney needs to be consulted early in these situations. As can be seen from the above case, the facts of the case and the way they are presented are vital to the outcome of a case.

An insured in Weatherford, Mineral Wells, Aledo, Hudson Oaks, Willow Park, Peaster, Azle, Springtown, Millsap, Brock, Cool, Poolville, or anywhere else in Parker County would expect any claim they make to be paid in a timely manner. So what happens if it is not paid in time?
A 1995, Amarillo Court of Appeals case styled, Doris Rusk, Roger Lusk, and Russell D. Daves v. Honorable Cecil G. Puryear, addressed this issue.
Keep in mind that first, an experienced Insurance Law Attorney should be consulted to help in these situations. Next, here is what happened in this case.
This case is a writ of mandamus, seeking to compel Judge Puryear, to vacate his order of severance and abatement. This severance and abatement caused the contract claim for benefits to be separated from the extra-contractual claim due to late payment. The writ was filed by the insurance company in this case, Mid-Century Insurance Company of Texas.
Factually, the Lusks were insured under a policy of insurance issued by Mid-Century, a provision of which contained personal injury protection (PIP) in the amount of $2,500 per person. Doris sustained injuries in an automobile accident and, resultingly, incurred medical expenses through assorted health care providers. Thereafter, she made a claim for PIP benefits, and assigned her right to receive the benefits to health care providers who had treated her. Mid-Century received notice of Doris intention to revoke the assignments. To prevent being subject to adverse and conflicting claims, Mid-Century interpleaded the PIP money into the registry of the court.
The Lusk's and Daves (their attorney) sued Mid-Century for breach of contract and for violations of the Prompt Payment of Claims Act of the Texas Insurance Code.
In reviewing this case, this appeals court cited Texas Rule of Civil Procedure, Rule 41, which grants a trial court broad discretion to order or not order separate trials when judicial convenience is served and prejudice avoided. But as stated by the Texas Supreme Court, the rule does not contemplate the severance of one cause of action into two or more parts. The Texas Supreme Court said, "A claim is properly severable if (1) the controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues." But when all the facts and circumstances of the case unquestionably require claims to be tried together, there is no fact or circumstance supporting or tending to support a contrary conclusion, and the legal rights of the parties will not be prejudiced thereby, there is no room for the exercise of discretion and the trial court has a duty to deny a motion to sever.
This court reversed the trial court and ordered that the contractual claim and the extra-contractual claim be tried together.
In justifying its ruling this court pointed out that the Lusks claim was for breach of contract for not paying their claim within 30 days of its being presented. This failure to pay within 30 days was a breach of their insurance contract and a violation of the Prompt Payment of Claims Act thereby entitling her to "the additional sum of 12% of the amount due" and reasonable attorney's fees.
Mid-Century argued that until they were found to have violated the insurance contract, that it was not proper, in the same proceeding, to be claiming the penalties because the penalties are the result of statute, not the insurance contract.
In making its ruling the court stated, "Although the damages and attorney's fees provided by the [Prompt Payment of Claims Act] do not arise from the insurance contract, they are recoverable for the insurer's failure to timely pay any loss for which it may be liable under the contract. Thus, when ... Lusk alleged Mid-Century failed to timely pay her claim and pleaded for damages and attorney's fees provided by [Prompt Payment of Claims Act], the entire liability of Mid-Century, both on the insurance policy and under [Prompt Payment of Claims Act], was put in issue as one cause of action."
This can be a bit confusing, especially considering other court rulings in these types of cases. What is relevant is realizing that there are various ways of enforcing a person's rights under a policy of insurance.

A 1989 case decided by the Court of Appeals, El Paso, would be of interest to those in Grand Prairie, Fort Worth, Arlington, Mansfield, Crowley, Grapevine, Duncanville, Lake Worth, and other places in Texas who have a claim for exemplary damages.
The style of the case is, Emigdia C. Manriquez, Individually and on Behalf of all Statutory Wrongful Death Beneficiaries of Jorge Ramon Manriquez, Deceased v. Mid-Century Insurance Company of Texas. Here is some background.
Manriquez and her group, are the widow and surviving parents of a pedestrian killed when struck by an unlicensed minor, Gregory Daniel Alkofer. A lawsuit resulted from this event.
Mid-Century the insurance company for Alkofer, intervened in the lawsuit and successfully moved for a declaratory judgment limiting its liability to $50,000.
The relevant parts of the insurance policy provide:
PART A -- LIABILITY COVERAGE
Insuring Agreement
We will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident.
....
Limit of Liability
If separate limits of liability for bodily injury and property damage liability are shown in the Declarations for this coverage the limit of liability for "each person" for bodily injury liability is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto accident. Subject to this limit for "each person," the limit of liability shown in the Declarations for "each accident" for bodily injury liability is our maximum limit of liability for all damages for bodily injury resulting from any one auto accident. The limit of liability shown in the Declarations for "each accident" for property damage liability is our maximum limit of liability for all damages to all property resulting from any one auto accident.
If the limit of liability shown in the Declarations for this coverage is for combined bodily injury and property damage liability, it is our maximum limit of liability for all damages resulting from any one auto accident.
This is the most we will pay regardless of the number of:
(1) Covered persons;
(2) Claims made;
(3) Vehicles or premiums shown in the Declarations; or
(4) Vehicles involved in the auto accident.
In this case the policy provided for separate limits of $50,000 for each person / $100,000 for each accident.
Attorneys for Manriquez contend any $50,000 limitation would not include an award for exemplary damages. In support of this position, they cited other Texas cases that essentially said, where insuring agreements provide for the payment of ... all sums which the insured shall become legally obligated to pay as damages because of ... bodily injury will include payment for punitive damages for gross negligence. These cases emphasize the words "all sums" as being the important inclusive language. In determining whether these words include coverage for punitive damages, most courts have used the following rationale: (1) the average insured, in the absence of an express policy exclusion from liability from punitive damages, would assume that the term "damages" would include punitive damages, since they would become by judgment a "sum" that the insured would be legally obligated to pay: (2) because the insurer drafted the policy and could have made clear its intention to exclude coverage for punitive damages, the rules of construction require it to bear the burden of ambiguity; and (3) punitive damages are covered because they always "arise" out of the underlying action for injury.
In this case, there is an absence of the words "all sums." The insurance agreement expressly excludes coverage for any person who intentionally causes bodily injury. Nonetheless, an average insured would assume the term damages would include all damages except those intentionally caused. The insurer drafted the policy and could have made it clear that no punitive damages would be covered. Punitive damages arise out of or are due to the legal responsibility created because of the auto accident.
Manriquez sued for exemplary damages because of heedless and reckless conduct on the part of the insured. Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.
The court stated that the term "accident" as used in the insurance policy was construed to include negligent acts of the insured causing damage which is undesigned and unexpected. It could be argued that one who acts with conscious indifference and causes an accident, dos so with some expectation. "We reject this, however, and conclude that punitive damages, excepting those for any intentional conduct, were within the coverage and the coverage limitation.
In cases where exemplary damages or punitive damages are being sought it is vital that an experienced Insurance Law Attorney be consulted. This attorney would know the proper way of drafting a lawsuit to maximize a recovery for his client without jeopardizing coverage.

Insureds in Grand Prairie, Arlington, Grapevine, Keller, Flower Mound, Rhome, Ponder, Justin, Haslet, Saginaw, Farmers Branch, and other places in Texas might think they know the meaning of household resident. They would be surprised that often times an insurance company is going to fight over what it means when someone makes a claim. Here is an example.
The Texas Court of Appeals, Waco, determined a case in 1977, which is still good law. The case is styled, Southern Farm Bureau Casualty Insurance Company v. Kenneth C. Kimball et al. Here are some facts of the case.
Kenneth Kimball was the named insured in a family automobile policy issued by Southern Farm Bureau. Kenneth's wife, Connie, was killed in an automobile accident with an uninsured motorist when the policy was in force. At the time of her death, she and Kenneth were separated, living in separate residences, and a divorce action filed by her was pending. Farm Bureau filed a declaratory judgment asking the court to declare that they did not owe any benefits under the policy. The case was heard on stipulated facts. The only issue raised was whether Connie and Kenneth were "residents of the same household," as that term is used in the policy, at the time of Connie's death.
At trial, the jury found in favor of Kenneth and Farm Bureau appealed. This Waco appeals court confirmed the jury's verdict.
In discussing this case, the court stated, "The controlling test of whether persons are residents of the same household at a particular time, within the meaning of the policy in question, is not solely whether they are then residing together under one roof. The real test is whether the absence of the party of interest from the household of the alleged insured is intended to be permanent or only temporary i.e., whether there is physical absence coupled with an intent not to return." The court then pointed out that under proper facts, it has been held that separations from the common roof by college students, by members of the military services, and by spouses did not, per se, destroy their household membership with their families and spouses.
Cases cited by Farm Bureau in support of their contention that Connie was not a resident of the household at the time of her death, were cases that showed evidence to support that contention. In this opinion the court discussed in detail three of those cases in an effort to distinguish them from the present case.
As pointed out by the court, the facts and evidence in this case showed that Kenneth and Connie were a couple in their 20's who were married in May, 1972. Their only child, a daughter, was born in September, 1973. Connie was killed on December 21, 1975. Before their their separation, they resided in their mobile home in the City of Waco. Early after their marriage, they suffered substantial financial losses in the construction business. Thereafter, during the last two years of their marriage, Kenneth was a "long haul" truck driver, based in Waco. He would be on the road three and four weeks at a time, with no longer than three days at home between trips. Sometimes he would get in at night and leave the next morning. On the trips, he virtually lived in his truck. It was arranged with employer that Connie could draw on his earnings and pick up his paychecks. She cashed the checks, bought the family needs, and paid the bills, including payments on the mobile home and several department store accounts she maintained. Connie also held a job. During the day, she left their child with her mother who lives near Waco. After work when Kenneth was gone, Connie would go home, clean up, carry her work clothes for the next day to her mother's house, and she and the child would spend the night there. Connie filed suit for divorce on November 5, 1975. Later, she separated from Kenneth and moved into her mother's house, taking all of her work clothes. After the separation, Connie kept most of her things in the trailer home. One week before her death, Connie rented an apartment near Waco and moved all of her belongings into it. She left a set of dishes in the mobile home for Kenneth. The divorce suit and the separation were precipitated by emotional stress suffered by Connie which was caused by Kenneth's long absences from home and by the dunning of creditors of their defunct construction business. During the separation, Connie would either meet Kenneth at the truck depot in Waco when he returned from a trip, or she would have their car there for his use and he would go to her. They would go out together for supper when he was home, and would visit into the evening with each other and other trucker couples at local night spots. Neither were romantically interested in another person. They continued with the arrangement for Connie drawing on his pay, cashing his checks, using the money as she saw fit, including her needs and those of the child, and paying the bills. He talked with her several times about a reconciliation, but she had not agreed to it at the time of her death. On December 5, 1975, Kenneth returned home to attend his father's funeral. That night, he and Connie slept together in a room in his mother's house. Their child was with them. On December 20th, the night before Connie died, she fixed supper for Kenneth in her apartment. Their daughter was with them. They discussed plans for the child's Christmas. Kenneth had arranged his schedule to be home on Christmas.
These facts allowed the court to rule in Kenneth's favor. There are many cases where the question of whether or not someone is a resident of the household arises. It is vital that the advice of an experienced Insurance Law Attorney be sought when this happens.