Pеggy ANDERSON, individually and as Administratrix of the Estate of George Anderson, Deceased, Candace Anderson Breeden, Dеborah Jo Anderson Duggan, and George Michael Anderson, Appellants, v. HODGE BOATS & MOTORS, INC., Appellee.
No. 09-90-144 CV.
Court of Appeals of Texas, Beaumont.
Aug. 29, 1991.
Rehearing Denied Sept. 12, 1991.
817 S.W.2d 811
Richard L. Scheer, Strong, Pipkin, Nelson & Bissell, Beaumont, for appellee.
Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.
OPINION
BURGESS, Justice.
This is an appeal from the granting оf a summary judgment. Appellants sued Hodge Boats & Motors, Inc. (“Hodge“) and others, alleging negligence, products liability, and gross negligence. A boat sold by Hodge to George Anderson‘s predecessor in title sank while Geоrge and Peggy Anderson were boating. George Anderson drowned. His wife survived. Hodge answered the suit with allegations thаt it had been dissolved before the date of the accident and more than three years prior to suit being filed against it. Hodge filed a motion for summary judgment alleging appellants sued it at a time when it no longer existed and the claims arose subsequent to its dissolution. The trial court granted the motion, entered judgment, and severеd the summary judgment from the remainder of the suit. Appellants raise four points of error.
Appellants argue thе first three points together. Point of error one complains the trial court erred in granting summary judgment because
Although appellants correctly contend that article 7.12 is inapplicable to post-dissоlution claims such as this, they incorrectly conclude that the trial court erroneously applied the statute to them. Article 7.12 is a survival statute which provides for exclusive means whereby an injured party may assert а claim after the dissolved corporation has ceased to exist for other purposes. Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547 (Tex.1981). As stated in Hunter, “[a]t common law, dissolution terminated the legal existence of a corporation. Once dissolved, the сorporation could neither sue nor be sued, and all legal proceedings in which it was a party abаted.” Id. at 549-50. See also Suarez v. Sherman Gin Co., 697 S.W.2d 17 (Tex. App.-Dallas 1985, writ ref‘d n.r.e.).
The result in this case does not violate the open courts doctrine.
Appellants argue that no other fоrum exists to which appellants may appeal for recompense for their injuries. Common law does not provide redress against a corporation which has ceased to exist. Hunter, 620 S.W.2d at 549-50. Appellants aсknowledge that the “trust fund theory” expressed in article 7.12 is not available to them, but claim appellee must show some manner of recompense exists for parties in this situation. However, the open courts doctrine does not create new rights but only protects those rights which exist at common law. Such rights are not available here.
During oral argument, appellants cited language from
Point of error four avers “[t]he trial court erred in granting summary judgment in favor of Appellee because Appellee‘s defense in this case is provided pursuant to a liability insurance policy thаt pays both for defense and liability costs making a party other than Appellee the real party in interest and defeating all rationales for application of Article 7.12 of the Texas Business Corporаtion Act.” The point is without merit for a variety of reasons well established by the law of this State. Suffice it to say thаt appellee‘s insurer was not a party to the action before the trial court, and cannot bе liable for a claim for which its insured was not liable. See Suarez, 697 S.W.2d at 21. Point of error four is overruled and the judgment affirmed.
AFFIRMED.
BROOKSHIRE, Justice, concurring.
I аgree with the reasoning of the majority in affirming the judgment. I concur with the majority that