Wallace Holyfield sued Members Mutual Insurance Company, seeking recovery of Personal Injury Protection (PIP) benefits for his son, who was injured in a collision between Holyfield’s motorcycle, which he was riding, and an automobile. Although two automobiles were listed as “insured vehicles” under the policy, the motorcycle was not listed. Separate PIP premiums were paid for the two automobiles, but no premium was paid regarding the motorcycle. The trial court rendered a take-nothing judgment for the insurance company, and Holyfield now appeals. We affirm.
The principal question on this appeal is whether an insured may recover PIP benefits for injuries sustained while operating an owned vehicle not listed as an insured vehicle under the policy, and for which no premium has been paid. The policy in this case expressly excludes coverage of injuries sustained while “occupying” a vehicle owned by the named insured which is not an “insured motor vehicle.” The policy defines “insured motor vehicle” to mean:
An automobile described in the policy to which bodily injury liability coverage applies and for which a specific premium charge indicates that personal injury protection is afforded. [Emphasis added]
Since the motorcycle was not described or listed on the policy, and no specific premium was charged to insure its operators, coverage is excluded under the policy. However, Holyfield argues that this exclusion is contrary to Article 5.06-3(a) of the Texas Insurance Code, which prohibits delivery of automobile insurance policies which do not include PIP coverage. He urges that the exclusion in his policy cannot be given effect, foreto do so would restrict the breadth of coverage mandated by the Code. At least one Texas court of civil appeals has agreed with this argument.
See Western Alliance Insurance Company v. Dennis,
In
Western Alliance,
the Texarkana court reasoned that since our supreme court had decided that an exclusion relating to
uninsured motorist protection
was an unlawful restriction of the coverage provided by statute,
1
a similar result should be reached regarding PIP coverage. The supreme court case was
Westchester Fire Ins. Co. v. Tucker,
As stated in our original opinion, we have concluded that the policy exclusion of injuries sustained by an insured while occupying an owned but unscheduled vehicle is ineffectual to the extent that it deprives a person of coverage required by Article 5.06-1 of the Insurance Code. [Emphasis added]
The problem with this statement is that, despite the court’s reference, no such conclusion was reached in the original opinion. In Westchester, the insured claimed benefits under the uninsured motorist insurance coverage for injuries sustained in an owned and scheduled vehicle. The court did not mention owned and unscheduled vehicles in its original opinion, and since the question was not presented, we disagree with the Texarkana court’s conclusion that West-chester is authoritative on this point.
Neither can we agree with the Texarkana court’s holding that providing coverage only for scheduled vehicles is a denial of coverage provided by Article 5.06-3(a) of the Insurance Code. While we agree that Article 5.06-3 dictates the
type
of coverage which must be provided, it does not, by its terms, dictate
which
vehicles the policy must cover or prevent the insurer and insured from agreeing that only certain vehicles will be covered. An insurer is entitled to accurately reflect in the policy the risks being insured and to charge premiums based upon those risks.
See Vaughn
v.
Atlantic Insurance Company,
Affirmed.
Notes
. Uninsured motorist protection is mandated by Article 5.06-1 of the Texas Insurance Code.