Collecting Uninsured Motorist Coverage

Springtown insurance lawyers need to understand how to help a client recover uninsured motorist benefits (UM). In doing so, they would need to be aware of a 2015, Houston Court of Appeals [1st Dist.] opinion. The style of the case is, Oliver Vans, Jr. Mickey Dinh, Santos Reyna, and Lo Dinh v. Infinity County Mutual Insurance Company and Sandra Hightower.
Vans, Reyna, and Dinh (appellants) were traveling in a 1996 Camry, owned by Dinh, when it struck another vehicle. All three were injured. Vans took photos of the other vehicles license plant which was id’ed as a 1999 Olds owned by Orozco.
Appellants sued Orozco. Orozco filed a handwritten answer stating that she was neither the driver or owner of the Olds and that she had sold the vehicle to Zamora. She also sent a copy of the Bill of Sale that was signed by her and Zamora. She also sent a letter stating she did not have insurance on the vehicle and that Orozco did not have insurance either. Thus, appellants made a UM claim against Infinity.
Infinity denied the claim, stating there was no proof that the vehicle was uninsured. Infinity also filed a motion for summary judgment on this issue which the Judge granted.
In reviewing the evidence the court pointed out the following:
The notarized bill of sale signed by Orozco states, in relevant part:
This letter is to certify that I, Sonia Orozco, am giving my vehicle:
1999 Oldsmobile Alero with VIN – 1G3NL12E3XC343390 to Mrs. Eva Maria Lopez-Zamora since November of 2008 for the amount of $2,800.00. I gave her the title since November of 2008 when she paid of the vehicle, since then she has been responsible for the vehicle. I, Sonia Orozco, will no longer be responsible for the vehicle.

Infinite objected to the bill of sale as irrelevant, not properly authenticated, and hearsay. The trial court sustained their objections.
Appellants argued that Orozco’s statement that she did not own the car at the time of the accident is relevant to whether it was insured at the time. Relevant evidence according to Texas Rule of Evidence 401, is defined as any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable. Although the bill of sale purportedly shows that Orozco sold the vehicle to Lopez-Zamora in November 2008 and therefore did not own the vehicle at that time, it says nothing about who owned the vehicle on the date of the accident or whether the vehicle was insured at that time. Because the bill of sale is not relevant, the trial court properly excluded it under Texas Rule of Evidence 402.
The notarized letter signed by Lopez-Zamora states, in pertinent part:
Please note that at the time of the accident happen I did not have insurance and Mrs. Sonia Orozco previous owner of the vehicle also didn’t have insurance because she was not the owner of the vehicle that was involved in the accident on February 24, 2009.
Infinity objected to the letter as not properly authenticated and hearsay. The trial court sustained their objections.
Appellants asserted that Lopez-Zamora’s letter is admissible because it meets the requirements of an affidavit under Rule 166a(f). Rule 166a(f) requires that an affidavit “be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Thus, for a summary judgment affidavit to have probative value, the affiant must swear to the existence of pertinent facts and that the facts in the affidavit reflect his personal knowledge. The mere recitation that the affidavit is based on personal knowledge is inadequate if the affidavit does not positively show a basis for the knowledge. The affidavit must explain how the affiant has personal knowledge.
Appellants argue that Zamora’s personal knowledge of the facts can be inferred from her description of her own actions. Here, Zamora’s letter does not affirm that her statements reflect her personal knowledge or otherwise show that she was speaking from personal knowledge. Moreover, it is noted that although Zamora states that she did not have insurance, she does not state that she owned the car on the date of the accident. Because the letter neither shows a basis for Zamora’s knowledge nor who owned the vehicle at the time of the accident, the trial court properly excluded it.
Appellants failed to produce evidence raising a fact issue regarding whether they were legally entitled to recover uninsured motorist benefits. Consequently, the trial court properly granted Infinitys’ no-evidence motion for summary judgment.