Articles Posted in Uninsured/Underinsured Coverage

Sometimes figuring out what is an “accident” for uninsured motorist (UM) coverage is tricky.

In the 1999, Texas Supreme Court opinion styled, Mid-Century Insurance Company of Texas v. Lindsey, found coverage for the plaintiff, who was seated in the driver’s seat of a parked vehicle.  In a truck next to Linsey’s parked vehicle, a child tried to enter the cab by climbing through the back window.  In doing so, the child accidentally contacted a loaded shotgun, causing it to discharge and strike Lindsey in the head.  Lindsey’s carrier denied coverage on the grounds the injury did not “arise out of the use” of the vehicle and because the event was not an “accident.”  The court opined that an accident need not be an auto accident or collision; rather, it looked to the child’s intent and the reasonably foreseeable effect of his conduct to determine whether an accident had occurred.  Because the child did not intend to discharge the gun or injure Lindsey, and because neither result was reasonably foreseeable, the court determined Lindsey’s injury was caused by an accident.  Further, the court determined that Lindsey’s injury “arose out of the use” of the vehicle due to the fact that the accident was caused by the child’s attempt to enter the vehicle.  In reaching its decision, the court relied more on the fact that the child’s acts were unexpected and unintentional than on the role of the vehicle in the accident.

In a 2000, El Paso Court of Appeals opinion styled, State & County Mutual Fire Insurance Co. v. Trinity Universal Insurance Cos., a woman had been hit by a car as she tried to escape from the insured’s van after the driver had attempted to sexually assault her.  The court identified the following three-prong test under Lindsey for construing the “use” requirement of UM coverage: 1) did the accident arise out of the inherent nature of the automobile; 2) did the accident arise within the natural territorial limits of the automobile; and 3) did the automobile itself produce the injury (rather than merely contributing to the cause of the condition that produced the injury).  Applying these factors, the court found that the accident arose out of the use of the vehicle as a vehicle because “but for the vehicle and its position on the highway,” the woman would dnot have died from being struck by traffic.  Furthermore, she died on a roadway, which was “within the natural territory of the vehicle.”  But under the third factor, the use of the van was merely incidental in producing the victim;s death; it did not itself produce the injury.  The court noted that the victim was not struck by or pushed from the van; she did not fall from it; ans she was not injured by it.  Therefore, the Lindsey test was not satisfied.

A Parker County or Palo Pinto County insurance lawyer handling uninsured motorist (UM) claims need to understand how the terms “accidents” and “arise out of use” are looked at by Texas courts.

Texas decisions suggest that if an incident is intentional or criminal in nature, there may not be an “accident” for UM purposes.  If the incident is unexpected or unintended, Texas courts are more willing to find coverage.  The somewhat varying interpretations of “accident” and “use” require close scrutiny of the facts of each claim to determine if UM coverage is triggered.

Here is an example from the Texas Supreme Court in 1999.  The opinion is styled, State Farm Mutual Automobile Insurance Co. v. Whitehead.  In this case, the court ruled a drive-by shooting does not trigger UM coverage.  A passenger in a truck was injured when the truck in which she was riding hit a bridge stanchion after the driver lost control of the vehicle.  The driver lost control after being shot by the passenger of another vehicle.  The court determined the injury was purely incidental to the “use” of the vehicle because the shooting resulted from an independent and intentional act.  The fact that the automobile is the situs of the accident is not sufficient to establish the necessary nexus between the use of the vehicle and the accident.  As such, the court held the policy did not provide overage for the passenger’s injury.

Uninsured and Underinsured motorist coverage is required to be provided in automobile insurance policies according to the Texas Insurance Code, Section 1952.101(b).  However, this coverage can be rejected as long as the rejection is in writing, according to 1952.101(c).  This coverage is designed to compensate injured persons who are legally entitled to recover damages from persons who cause motor vehicle accidents who do not have coverage or do not have adequate coverage.

The auto policy insuring agreement provides that the carrier 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.”  This coverage applies if the person causing the accident is either uninsured or underinsured.  Thus, legal liability or negligence must exist on the part of the uninsured or underinsured motorist in order to trigger this coverage.  The auto policy goes on to say that the owner’s or operator’s liability for these damages must arise out of the “ownership, maintenance or use” of the uninsured motor vehicle.

The 2004, Texas Supreme Court opinion, Old American County Mutual Fire Insurance Company v. Sanchez, says uninsured motorist coverage essentially enables a victim of a motor vehicle accident to recover from his or her insurer the amount, up to policy limits, the victim would have been able to collect from the person who caused the accident had that person been insured.”

Here a question for your insurance law attorney … If a car swerves into my lane and I drive off the road and wreck my car to avoid the accident, does my uninsured motorist (UM) policy cover the damages?  Answer … NO!

An auto policy includes within the definition of UM vehicle a hit and run vehicle whose operator or owner cannot be identified.  This definition incorporates the Insurance Code’s requirement in Section 1952.104(3) that there be physical contact when the owner or operator of the reported UM vehicle is unknown or unidentified.  This is further illustrated in the 1986, Texarkana Court of Appeals opinion, Goen v. Trinity Universal Insurance Company.

Likewise, a drive-by shooting in which there is no collision does not meet the UM physical contact requirement.

The Claims Journal published an article January 18, 2018.  It is titled, Insured Must Obtain Settlement Consent Where Policies Require It.  The article discusses a case from the 9th Circuit Court and looks at California law.  However, Texas law has the same laws as it relates to coverage.

The article tells us that where insurance policies require written consent from the insurer to enter into any settlement agreement, it is important to ask, for permission from the insurer before entering into a settlement agreement.  Failure to do so may void coverage.

That is what occurred recently in One West Bank, FSB v. Houston Casualty Co.  In the case, Houston Casualty issued a professional liability policy which had a restrictive condition requiring the insured to seek prior written consent prior to entering into any type of settlement agreement regarding a covered claim.

Here’s one for Grand Prairie insurance lawyers handling uninsured motorist (UM) cases.  It is from the Corpus Christi Court of Appeals and is styled, In Re Farmers Texas County Mutual Insurance Company.

This case arose from a wreck with an UM driver.  The real party in interest, Luzminda Llasos brought suit against her auto insurance carrier, Farmers, for UM benefits.  Llasos sued Farmers for breach of contract, violations of the Prompt Pay Act, and violations of the Texas Insurance Code, Section 541.060.  Her original lawsuit papers incorporated written discovery consisting of fifteen interrogatories, twenty-six requests for production, and thirty requests for admission.

Farmers filed a motion to sever and abate Llasos’s extra-contractual claims form the underling UM claim.

Insurance lawyers will see situations where there is a question whether or not the “uninsured motorist” (UM) provisions of a policy apply to provide coverage.  An interesting case was heard in the Amarillo Court of Appeals dealing with this issue.  It is styled, Jesse Salinas v. Progressive County Mutual Insurance Co.

Jesse appeals a summary judgment in favor or Progressive.

Jesse was a passenger in a one vehicle accident that was stolen.  No one had permission to drive, occupy, or otherwise use the vehicle.

Lawyers in the Dallas and Fort worth areas who handle underinsured motorist (UIM) cases need to read this 2017 opinion from the Texas Supreme Court.  It is styled, Okelberry v. Farmers Texas County Mutual Insurance Co.

Steven Okelberry and his wife, Patricia, had an auto policy with Farmers that provided $500,000.00 in UIM coverage.

Steven and his two sons were injured in an 18-wheeler accident insured by Home State.  Steven suffered a neck injury requiring surgery and the possibility of additional surgeries.

Lawyers handling insurance disputes involving uninsured motorist (UM) coverage should already know the law discussed in a recent case from the Southern District, Houston Division.  The case is, Eleazar Cantu, Jr. v. State Farm Mutual Automobile Insurance Company.

Cantu was injured when he fell off a truck driven by an uninsured motorist.  Cantu sued the driver, two other UM individuals, and State Farm and took a default judgment in the amount of $65,095.12.  Cantu demanded State Farm pay $30,000, the policy limit, and when State Farm declined to pay, Cantu sued State Farm.

State Farm moved for partial summary judgment, arguing that it is not responsible for paying the default judgment in the uninsured-motorist lawsuit because it did not consent to be bound by that judgment.  Mr. Cantu responded and cross-moved for partial summary judgment, arguing that State Farm’s knowledge of and participation in that lawsuit indicated its consent to be bound by the default judgment.

Insurance lawyers in Fort Worth and elsewhere need to read this case regarding settlement credits and under-insured (UIM) coverage.  It is from the Houston Court of Appeals [14th Dist.].  It is styled, Farmers Texas County Mutual Insurance Company v. Okelberry, et al.

Steven Okelberry and his wife, Patricia has UIM coverage with Farmers.  Steven and his two sons were injured in an accident caused by an 18 wheeler insured by Home State.  Steven suffered a neck injury requiring surgery and possibly future surgeries.

Home State settled Steven’s property damage claim for $20,066.12 out of a total policy limits of $750,000.  Steven and his two sons sued the 18 wheeler company and its driver for their personal injuries.