Appellant, Pamela Rust, brought suit seeking medical-payment benefits from Texas Farmers Insurance Company (Farmers) under two homeowner liability policies that it had issued to Frank Kuro-sky, her father. Rust now raises three issues on appeal wherein she complains that the trial court erred when it denied, in its entirety, her hybrid motion for summary judgment and instead, granted Farmers’ competing summary-judgment motion. We affirm.
BACKGROUND
Kurosky owned two adjacent lots in Hal-tom City insured by Farmers under separate homeowner liability policies. Kuro-sky resided at the first property, located at 4325 Fossil (25-Fossil property), and was the sole named insured for that property. Kurosky rented the property next door, located at 4333 Fossil (33-Fossil rental property), to his daughter, and both Kuro-sky and Rust were named insureds on that policy.
According to Rust’s affidavit, while she was operating a riding lawnmower at the 33-Fossil rental property, the lawnmower overturned on a steep, unfenced incline at the back of the property, causing her life-threatening injuries and resulting in medical bills in excess of $100,000. Rust’s affidavit alleged that Kurosky never properly instructed her on the safe operation of the lawnmower, and stated that she submitted more than $100,000 of medical bills to Farmers seeking a $5,000 payment under Kurosky’s homeowner’s policy. Rust commenced this suit after Farmers refused to pay Rust’s claim.
Procedure
Rust’s Petitions
In her original petition against Farmers, in addition to seeking to recover damages and other relief, Rust sought: (1) a declaratory judgment regarding the policies’ medical-payment benefits and Farmers’ alleged anticipatory breach of contract; and (2) to demonstrate Farmers’ alleged Texas Insurance Code violations. Rust thereafter filed four amended petitions. Her first amended petition additionally asserted that she should not have been a named insured for the 33-Fossil rental property and sought reformation of the policy to exclude her as a named insured. In her second amended petition, Rust named Ku-rosky as a co-defendant, and sought damages for negligent entrustment of the riding lawnmower without proper instruction and for negligently failing to fence the back portion of the property where Rust fell. In her third amended petition, Rust added a breach-of-contract cause of action for Farmers’ alleged failure or refusal to pay medical benefits as required by the policy provisions, and in her fourth amended petition, which was filed after Farmers had filed its motion for summary judgment, Rust added a cause of action by which she sought to have the trial court determine Farmers’ duty to defend and indemnify Kurosky.
Rust’s Hybrid Motion for PaHial Summary Judgment
After filing her second amended petition, Rust filed a hybrid motion for partial summary judgment. In the no-evidence component of the motion, Rust alleged that Farmers failed to present evidence of any facts that would exclude her claim from coverage “under the subject policy.”
1
In the traditional summary-judgment component of her motion, Rust contended that
Farmers' Motion for Summary Judgment
Farmers filed its own summary-judgment motion and a response to Rust’s summary-judgment motions. In its own summary-judgment motion, Farmers contended that the policies at issue did not cover an insured person’s own injuries, nor a resident’s injuries but rather, only provided coverage for “someone else’s injuries when an insured person is liable.” In sum, Farmers claimed that the policies at issue insured those persons who were named insureds on the policies against premises liability but did not serve to provide coverage for a named insured who suffered bodily injury upon the property identified in the policy’s declarations.
33-Fossil Policy
Regarding the 33-Fossil rental property and the policy relating thereto, Farmers argued that while the policies provided property and liability coverage, they did not cover medical expenses incurred by a named insured or resident at the insured location nor did they cover medical expenses unless the insured person was liable for the bodily injury occurring at the insured location. Therefore, Farmers argued that Rust could not recover medical-payment benefits under the 33-Fossil policy because she was both a named insured and a resident of that insured property.
Reformation of 33-Fossil Policy
Regarding Rust’s request to have the 33-Fossil policy reformed to remove her as a named insured on that policy, Farmers argued that doing so would not entitle Rust to the payment of medical expenses because she admitted she was residing at the 33-Fossil rental property at the time of the accident and the policy for that location expressly excluded bodily-injury coverage for any resident of the residence premises. Farmers also alleged that Rust was not entitled to reformation because she failed, as required, to plead and prove that Farmers originally agreed to issue a policy without her name on it and that a mutual mistake occurred in adding her name to the policy.
25-Fossil Policy
Farmers asserted that although Rust could seek to recover as a third-party claimant under the 25-Fossil policy for which she was not a named insured nor was a resident at the insured location, she could not sue Farmers directly until she established Kurosky’s liability and legal obligation to pay damages to her, a requirement that she had not yet satisfied. Moreover, Farmers contended that Rust was unable to satisfy the requirement because: (1) her injury had occurred at the 33-Fossil rental property rather than at the 25-Fossil property covered by the 25-Fossil policy; and (2) she had not yet pleaded any cause of action involving the adjacent 33-Fossil property under the 25-Fossil policy. Farmers argued that even upon pleading a cause of action against Kurosky based upon his ownership of the 33-Fossil rental, Rust would be unable to sue Farmers directly until she established Kurosky’s liability.
Breach of Contract and Insurance Code Violations
In response to Rust’s anticipatory breach-of-contract allegation, Farmers argued that Rust had failed to claim that it had repudiated its policy before the time for performance as required for such a claim but rather, had claimed that Farmers had delayed performance after she made her claim for medical-payment benefits. Because Farmers only insured Rust against property damage and third-party
Farmers’ Response to Rust’s Summary-Judgment Motion
In its response to Rust’s hybrid summary-judgment motion, Farmers contended that a no-evidenee partial summary judgment was improper because Rust, not Farmers, had the burden of proving that she was entitled to coverage under one of the policies and to accomplish this, Rust was required to first establish that Kuro-sky was liable for her injuries. Farmers also noted that a plaintiff cannot move for a no-evidence summary judgment on its own claim for which it has the burden of proof because to allow her to do so would allow her to prevail without ever proving the elements of her claim.
With regard to Rust’s traditional summary-judgment contention, Farmers repeated its argument that Rust could not succeed under the 33-Fossil policy because she was an insured and a resident, and therefore, the policy coverage was inapplicable to Rust. Farmers likewise repeated its contention that Rust could not bring a direct action against it under the 25-Fossil policy because the Farmers’ liability policies first required “a judgment that Mr. Kurosky [was] liable.” To meet this requirement, Farmers argued that Rust carried the burden of proving causation of her injuries by showing that some condition at the 25-Fossil property caused her injuries next door at the 33-Fossil rental property or that Kurosky caused her injuries. Farmers noted that Rust admitted that the cause of her injuries was a steep incline at the back of the 33-Fossil property but presented no evidence that: (1) some condition on the 25-Fossil property caused her any injury; or (2) Kurosky’s lack of instruction caused her injuries.
Farmers countered Rust’s negligent en-trustment claim by arguing that Rust failed to prove that Kurosky was liable as an alleged entrustor because she failed to show that Kurosky’s alleged negligence was the proximate cause of her accident. In other words, by failing to show that Kurosky was reasonably able to anticipate that Rust’s injury would result as a natural and probable consequence of the entrustment, Farmers alleged that Rust failed to prove causation. Moreover, Farmers objected to Rust’s causation statements, characterizing them as conclusory because they failed to provide underlying facts to support her conclusions. Farmers specifically complained that Rust did not state that Kurosky’s entrustment of the lawnmower was negligent or that it caused the accident, and asserted that any inference of the elements of negligent entrustment was both unproven and conclusory. Farmers also challenged Rust’s assertion that the policy provisions pertaining to “that part of the insured location which is rented or available for rent” was applicable to her under the 25-Fossil property because Rust did not rent the 25-Fossil property but rented the 33-Fossil rental property
Trial Court’s Ruling
The trial court denied Rust’s hybrid motion in its entirety, granted Farmers’ summary-judgment motion, and noted in a letter to the parties that it believed Farmers’ motion was sufficiently broad to encompass Rust’s fourth amended petition in which she additionally sought a determination of Farmers’ duty to defend and indemnify Kurosky.
DISCUSSION
Issues
Rust raises three issues arising from the trial court’s summary-judgment rulings. In Issue One, Rust generally complains that the trial court erred in ruling for Farmers on the competing summary-judgment motions and specifically complains that the trial court: (1) erred in denying her no-evidence motion for summary judgment by impliedly holding that there were facts which would exclude coverage for her loss; (2) “failed to liberally construe the pleadings and resolve all doubt in favor of coverage by impliedly finding that Farmers met its burden of proof as to any avoidance or affirmative defense;” (3) improperly applied the rules of contract construction when interpreting “the policy;” and (4) erred in denying her traditional summary judgment motion and impliedly holding that there was no coverage under “the homeowner’s policy.” 3 Rust also asks whether the Farmers policy requires that the insured’s negligence be shown. In Issue Two, Rust contends that the trial court erred in granting Farmers’ summary-judgment motion regarding Farmers’ duty to indemnify Kurosky, a contention which Rust pleaded in her fourth amended petition after Farmers had already filed its summary-judgment and which Farmers did not otherwise directly address before the trial court entered its summary-judgment. In Issue Three, Rust alleges that the trial court erred in granting Farmers’ motion for summary judgment because it impliedly held that there was no coverage for Kurosky’s negligence.
Law
Thirdr-Party Claimant Claims
“A liability policy obligates an insurer to indemnify the insured against a covered loss arising from the insured’s own legal liability.”
Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co.,
A party who is injured by an insured is considered a third-party beneficiary of a liability insurance policy.
State Farm County Mut. Ins. Co. of Texas v. Ollis,
Burden of Proof Regarding Policy Coverage and Exclusions
In general, an insured bears the initial burden of showing that there is coverage under an insurance policy, and the insurer bears the burden of proving the applicability of an exclusion that permits it to deny coverage.
Venture Encoding Service, Inc. v. Atlantic Mut. Ins. Co.,
The Policies
Coverage
The two policies at issue are very similar and each utilized the following terms. “Insured location” means, in part, the “residence premises,” which, in turn, means the dwelling and grounds at the address shown on the policy’s declarations or i’e-newal notice, and any part of a premises occasionally rented to an insured for other than business use. Consequently, the policies covered the dwelling and grounds at their respective locations. Moreover, “insured” means both the named insured and residents of the named insured’s household who are his relatives. Under Section II (Liability Coverage), “occurrence” means an accident which occurs during the policy period and which results in bodily injury during the policy period.
Each policy contains a section setting forth liability coverage and liability exclusions. Provisions for personal liability and medical payments to others are included within the liability coverage of the policies. Under the personal-liability provisions of the policies, Farmers states that it will pay those damages which an insured becomes legally obligated to pay because of bodily injury resulting from an occurrence or for personal injury to which the coverage applies. The personal-liability limits for the two policies differ in that the 25-Fossil policy provides up to $300,000 personal liability coverage per occurrence, whereas the 33-Fossil policy provides up to $500,000 personal liability coverage per occurrence. The medical-payments-to-others provision of the policies specifies that Farmers will pay reasonable medical expenses for necessary medical services furnished to a person to whom the coverage applies, and specifies that coverage thereunder applies, in part, to:
Persons on an insured location with permission of an insured; or
Persons off an insured location if the bodily injury is:
a. the result of a condition on the insured location or the ways immediately adjoining;
b. caused by the activities of the insured; or
c. caused by a residence employee in the course and scope of employment by an insured.
For those persons, the policies provide that Farmers will pay reasonable medical expenses for necessary medical services furnished for an occurrence causing bodily injury. The medical coverage policy limits are $1,000 per person under the 25-Fossil policy and $5,000 under the 33-Fossil policy-
Exclusions
There are three exclusions to coverage which are addressed by the parties. Both policies exclude from coverage bodily injury or personal injury to any insured or any resident of the residence premises. They also exclude coverage for an insured’s bodily injury and personal injury arising from, during the course of, or in connection with the rental of any property or any part of any premises by an insured. An exception within the policies provides in relevant part that this rental-property exclusion is not applicable to the rental of that part of an insured location which is rented either on an occasional basis for sole use as a residence or to no more than two roomers at the same time for sole use as a residence. Also included is an other-property exclusion for bodily or personal injury arising from, during the course of, or in connection with a location other than an insured location which is owned by an insured, rented to an insured, or rented to others by an insured.
Standard of Review
We review a trial court’s summary judgment
de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
Hybrid Summary-Judgment Motion
When a‘party files a hybrid summary judgment motion on both no-evidence and traditional grounds, we first review the trial court’s judgment under the no-evidence standard of review.
Ford Motor Co. v. Ridgway,
A no-evidence motion for summary judgment under Rule 166a(i) is essentially a motion for a pretrial directed verdict. Tex.R. Civ. P. 166a(i);
Timpte Industries, Inc. v. Gish,
In conducting our no-evidence summary-judgment review, we will “review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.”
Timpte Industries, Inc.,
Traditional Summary-Judgment Motion
The party moving for traditional summary judgment bears the burden of showing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). To determine if the non-movant raises a fact issue, we review the evidence in the light most favorable to the non-movant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not.
See Fielding,
Application
We consider Rust’s first and third issues together. In Issue One, Rust asserts that the trial court erred by denying her hybrid summary judgment motion and granting Farmers’ competing summary judgment motion. In Issue Three, Rust asserts that by granting Farmers’ motion for summary judgment, the trial court impliedly found that there was no coverage for Kurosky’s negligence.
In the no-evidence component of her hybrid summary-judgment motion, Rust merely alleges, “that there is no evidence of any facts that would exclude
In its summary-judgment motion, Farmers showed that each of its policies expressly provided that medical-payments-to-others coverage did not apply to any insured or any regular resident of the insured location. Likewise, Farmers demonstrated that under the express exclusions of both policies, coverage for personal liability and medical payments to others did not apply to any insured or any resident of the resident premises. Thus, Farmers showed that Rust could not recover under the bodily injury provisions of the 33-Fossil policy because she was an insured, and could not recover under the medical-payments provisions of the 33-Fossil policy as she was both a named insured and a resident of the property.
Because Rust was neither a named insured nor a resident at the 25-Fossil property, the foregoing provisions did not bar her from attempting to recover under the 25-Fossil policy as a third-party claimant. However, the policy expressly and unambiguously stated that Farmers “will pay those damages which an insured becomes legally obligated to pay because of bodily injury or property damage resulting from an occurrence” to which that coverage applies.
Having reviewed the entirety of the record on appeal, we note that at the time the trial court considered the competing motions for summary judgment, Kurosky was not legally obligated to pay Rust for injuries resulting from “an occurrence” to which the policy applied because Rust had not obtained a judgment against Kurosky nor had Kurosky entered into an agreement establishing his legal obligation to pay damages to Rust.
In re Allstate County Mut. Ins. Co.,
In her second issue, Rust notes that the trial court granted Farmers’ summary judgment motion before Farmers responded to her amended pleading in which she, as a third-party claimant, sought a determination of Farmers’ duty to defend and indemnify Kurosky, Farmers’ insured, for any judgment entered. Rust admits that issues regarding indemnification of Kurosky were not ripe when the summary-judgment motions were before the court but asserts that this Court must now reverse and remand the indemnification issue as a result of the final agreed judgment that she and Kurosky subsequently executed. She contends that because Farmers’ motion for summary judgment did not address Kurosky’s indemnification, which she contends encompassed the issue of whether Farmers was barred from denying coverage under the policy, the trial court’s order granting Fanners’ summary-judgment motion is moot and she should be permitted to litigate Farmers’ responsibility to pay Kurosky.
In its letter to the parties, issued on the same date as its orders on the competing summary-judgment motions, the trial court expressly stated that it believed Farmers’ motion was “sufficiently broad to encompass the additional grounds asserted in [Rust’s] Fourth Amended Petition.” We agree with the trial court. A party who fails to amend or supplement his motion for summary judgnent to address claims asserted in a plaintiffs amended pleading is generally not entitled to a summary judgment on the plaintiffs entire case, because the entry of such judgment would grant more relief than requested.
See Lehmann v. Har-Con Corp.,
Rust’s fourth amended petition does not raise a new theory of liability but rather, seeks to have the trial court determine the insurer’s duty to defend and indemnify the insured, against whom no judgment or agreement establishing the insured’s legal obligation to the injured third-party, Rust, existed. Consequently, we find Farmers’ motion broad enough to encompass Rust’s newly-pleaded defense and indemnification issue.
See Harris,
CONCLUSION
The trial court’s judgments are affirmed.
Notes
. Rust fails to specifically identify which of the two policies she was referring to.
. Rust's additional causes of action for breach of contract and seeking a determination of Farmers’ duty to defend and indemnify Kuro-sky were filed subsequent to Farmers' own summary-judgment motion. Therefore, Farmers’ summary-judgment motion does not specifically address those additional issues as raised in Rust’s third and fourth amended petitions.
. Rust does not specify to which of the two policies she is referring.
. As this case was transferred from our sister court in Fort Worth, we decide it in accordance with the precedent of that court. Tex. R.App. P. 41.3.
. Rust and Kurosky entered into an agreed final judgment after the trial court ruled on Rust’s and Farmers’ competing summary judgment motions.