*1 malpractice in case would still have to MUTUAL FARM BUREAU TEXAS judge the trial would have
decide what COMPANY, hearing ever the case he INSURANCE decided without Petitioner, says plaintiff heard or the case should have heard. v. states that this “[i]f Petitioners’s brief expert inclined to hold that no Court were STURROCK, Respondent. Jeff A. in a testimony on causation is No. 02-0069. malpractice case like this ... then
trial this Court should hold that issue of Texas. Supreme Court properly in more causation such cases presents question a law for the court Argued April in sup- Petitioners cite one case decide.” contention,3 of this conditional port Aug. Decided They analogy against.4 one draw 5, 2004. Rehearing Denied Nov. cases, just arguing briefly criminal the issue of a criminal defendant whether denied effective assistance of counsel decide,5
is one for the court to so is the
issue of the outcome of a civil case whether probably lawyer’s affected the trial
negligence presenting it. While this
argument appeal, has some we have it
been told whether has been made else-
where or with what success. Absent thorough presentation legal
more jurisdictions,
malpractice caselaw other like
the issue whether causation a ease present one should be determined judge jury rather than a should be left day.
for another only jury decides that the
The Court could not determine causation
this case testimony; expert
without the Court does if had been
not decide that such evidence
adduced, properly the issue was one understanding, join I jury. With this opinion.
the Court’s
Wash.,
Barker,
466 U.S.
694—
439-440
5. See Strickland
3. Harline v.
912 P.2d
(Utah 1996).
(1984);
Sid S. Seale Stover & Morían, Jasper, respondent. opinion Justice O’NEILL delivered Court, in which Chief Justice JEFFERSON, PHILLIPS, Justice Justice joined. SCHNEIDER and Justice SMITH case, In this an insured was entangled with his when his foot became facing truck’s door raised must decide exiting the vehicle. We a “motor resulted from whether personal purposes vehicle accident” for Schaefer, 572 (PIP) Ins. Co. Unigard Ms Sec. coverage under injury protection (Tex.1978). Sturrock’s poli- automobile insurance Texas standard part: pertinent vehicle acci- provides, hold that a “motor cy. We (1) or more vehicles occurs when one dent” Injury Protec- Personal pay A. willWe *3 vehicle, an ob- involved with another are inju- bodily of because tion benefits (2) being the vehicle is ject, person, or a ry: used, entry, and as a motor including exit ac- a motor vehicle resulting from (3) a causal connection exists and cident; and injury- use and the the vehicle’s between person. by a covered 2. sustained conclude that the producing event. We added). from a “mo- Bureau injury here resulted Texas Farm insured’s (Emphasis policy’s a “cov- accident” within his is dispute tor vehicle not Sturrock does affirm the coverage. Accordingly, policy, PIP we but demes under the person” ered from a appeals’ judgment. court of resulted that Sturrock’s policy’s within the “motor vehicle accident” I coverage. PIP work, drove his truck to Jeff Sturrock Bureau for Texas Farm Sturrock sued engine. turned off the While parked, and of Article and violations breach of contract truck, foot entangled the his left exiting Both Texas Insurance Code. 21.21 of the portion raised of the truck’s door on the judg- summary filed motions for parties injured and facing. his neck Sturrock “greed filed an parties then ment. himself attempt prevent in his shoulder Facts, to Texas pursuant Statement falling from the vehicle. Sturrock 263,1 and asked of Civil Procedure Rule PIP under his filed a claim for benefits the law to these apply court ‘to the trial by Texas policy, insurance issued vehicle’s Stur- and determine whether agreed facts Farm Bureau. from ‘a motor vehi- injuries resulted rock’s meamng of the within the re cle accident’ The Texas Insurance Code that, as a court held The trial every policy.” insurance quires that automobile law, injuries resulted PIP matter of provide Texas policy issued within by accident” covered from a “motor veMcle rejected by the insured. coverage, unless the court 5.06-3(a). provisions, PIP policy’s the art. It is the See Tex. Ins.Code 763. We 65 S.W.3d appeals affirmed. provide of Texas to public policy Stur- to determine whether granted review of the insured bene occupants ve- from a “motor injuries resulted fits, statutory rock’s up to the maximum PIP cov- policy’s the within $2,500, fault or nonfault hicle accident” regard without 3(b),(c); erage.2 insured. See id. art. the 5.06— argues that Sturrock Farm Bureau entitled 2. Texas 1. Texas Rule of Civil Procedure Request response for Ad- Case,” bound "Agreed provides: in a 'motor "I was not involved missions that controversy may Parties submit matters accident,’ in an but I was involved upon agreed of facts to the court statement involving a motor vehicle.” Howev- accident clerk, judgment upon which with the filed er, Facts submitted Agreed Statement of cases; such as in other shall be rendered did mention Sturrock’s to the trial court signed rather, agreed admission; and certified stipulated statement parties judgment ren- the ulti- Agreed court to be correct and included "all Statement determination of the record of essential for dered thereon shall constitute mate facts relevant other facts are "[n]o claim" and that cause. (2000) (en banc) II 994 P.2d (concluding that “motor vehicle acci term policies We construe insurance ambiguous); dent” is not Jordan v. United according governing to the Texas rules Equitable contract construction. Am. Mut. Life Mfrs. (Mo.Ct.App.1972) (finding Schaefer, Ins. Co. v. S.W.3d words “automobile accident” are not am (Tex.2003); Tex. Farmers v. Mur Ins. Co. given ordinary and should their (Tex.1999). biguous be If phy, 996 S.W.2d meaning). Accordingly, we construe the policy language given can be a certain or “motor vehicle accident” as a matter term legal meaning interpretation, definite ambiguous then it is not construe it of law. we Schaefer,
as matter
law.
*4
Coker,
157;
at
Coker v.
650 S.W.2d
Ill
(Tex.1983).
a contract
am
393
Whether
Citing
Griffin,
our
Texas
decision
biguous
a question
is itself
of law. Schae
argues
Farm Bureau
that accidents like
157;
fer,
Kelley-Coppedge,
S.W.3d at
experienced
the one
do not fit
Sturrock
Highlands
Inc. v.
plain meaning
within
of “motor vehicle
the
(Tex.1998).
ambiguity
An
does not
term
some
requires
accident” because the
arise
the
simply
parties
because
offer con
involvement between the covered motor
flicting interpretations
of the
lan
vehicle, person,
vehicle and
or ob-
another
157;
Schaefer, 124
at
guage.
S.W.3d
Kel
ject. Griffin, 955
at 83. Because
S.W.2d
Rather,
ley-Coppedge,
Second, Farm Bureau notes that Texas “motor vehi- meaning contend that the Lindsey coverage, involved UWUIM from one insurance cle accident” varies PIP dispute involves whereas the current urges the Court provision to another and interpret But courts both coverage. UM/ PIP in this case. See to find provisions broad- insurance UIM Liberty Contrac- Mut. Co. Garrison term “auto ly, and our discussion of the (Tex.1998) Inc., tors, Lindsey applicable to accident” in remains Department of (recognizing that the Texas “motor vehicle analysis our of the term in the insurance “expertise Insurance’s *6 in this case. Stracener v. accident” See unquestionable”). trade is Ass’n, Auto. 777 S.W.2d United Servs. Third, insists that Texas Farm Bureau (Tex.1989) (holding that cov- UM/UIM from a injuries did not result liberally give to erage “is to be construed acci- accident” because the “motor vehicle led to public policy full effect to the which vehicle, ob- not involve “another dent did enactment”); Ins. Unigard Sec. its Lindsey ject, person,” as or (noting at it is the 572 S.W.2d Griffin Bu- Farm require. According to Texas policy of the State that automobile public reau, injured by his own an insured who is PIP without re- policies include benefits “motor vehicle is not involved a fault); v. State Farm Mut. gard to Ortiz brief, the Texas In its amicus accident.” Auto. denied) urges the Court Department of Insurance pet. Antonio (Tex.App.-San argument, reject Farm Bureau’s Texas interpret must (stating that courts interpre- asserting posits that it an absurd coverage provisions and PIP ÜM/UIM brief, of “motor "accident” within the definition Attorney filed 4. The General's amicus be- accident.” And it is the "accident” Department of Insurance’s on the Texas half, Lindsey to this analysis in that is material states: inapposite Lindsey rendered case. is not unsuccessfully at- Bureau] Farm [Texas not shoul- simply need [Sturrock] because Lindsey tempts] distinguish on the demonstrating der the additional burden grounds does not [Sturrock's] injuries "arise out of the use” of that his Lindsey, language policy in like the contain obviously they though did. Even injuries “arise out of” vehicle— Lindsey’s "motor vehicle definition of under ... This of a motor vehicle.” the “use accident,” Court, however, [Stur- exists for language PIP addressed that omitted). (Citation claim. concluding rock's] that there was an only after first and lead purpose its which, in that would contravene if result accepted, tation would Farm Bu- Texas results. Under than to absurd greater coverage passengers formulation, fell passenger a who premium-paying actual insureds. reau’s way in the truck same from Sturrock’s Admittedly, in both Lind- our statement covered, himself but Sturrock would be sey Griffin, that the term “auto acci- if covered not. would be would Sturrock one or dent” refers to instances “where of his car onto another had fallen out more vehicles are involved with another directly if fallen he had person, but vehicle, object, person,” grammatical- or if a He would be covered ground. onto the ly confusing. Lindsey, 997 at 155 S.W.2d and hit another vehicle dislodged tire added); Griffin, 955 (emphasis car, out and not if his own tire blew his but added). “an- (emphasis There can be to roll over. Sturrock caused his vehicle because the definition first other vehicle” by a if he were run over would be covered a or But there speaks of vehicle vehicles. brake, but faulty parking a vehicle with object” or “another cannot be “another him if ran over because not his own vehicle object person” unless there is first the policy’s defect. Neither of the same person. Because we did not reference a con- nor context indicates language its object person interpreting first when deny no-fault benefits struction that would term, only modify “another” can who suffer caused to insureds Thus, vehicle. the definition refers word their own covered vehicles. to accidents where one or more vehicles are involved with another an ob- however, that say, This is not to ject, person.5 That Sturrock vehicle, an involving another any accident injured by his own vehicle does not itself a “motor object, or a constitutes policy’s under preclude a collision vehicle accident.”6 While provisions. the vehicle required,7 near collision is not than the mere situs must be more agree Department We with the Texas See, event. injury-producing accident or Insurance Texas Farm Bureau’s Peck, 156; Lindsey, 997 S.W.2d at holding e.g., cramped interpretation of our *7 Rather, “the automobile Lindsey severely limit at 913. would Griffin manner, must, in the in in be involved an insured’s no-fault a manner some holding today, disap- origin language our we 5. The we used in inconsistent with Grif supports interpretation. lan this prove it. fin originated guage in Co. Farmers Insurance Grelis, 475, Washington Wash.App. v. 43 718 recognize that the definition 7.We Griffin 812, (1986), P.2d in which the court 813 Peck, 913, derived from 900 S.W.2d " that the 'words vehicle acci [motor stated require "in some did a vehicle’s involvement image evoke an of one or more vehicles dent] However, type or near collision.” of collision in contact with another vehicle or a forceful Lindsey firmly our decisions Griffin ” causing physical injury.' (empha requirement exists. that no such establish added) (quoting Manhattan & Bronx Sur sis Department of note that the Texas We further Gholson, Operating 98 Transit Auth. v. face Insurance, promul- agency entrusted 489, 657, (Spec. Misc.2d 414 N.Y.S.2d 490 enforcing and uniform gating standard 1004, 1979), aff'd, 420 71 A.D.2d Term recognizes policies, that the term insurance (N.Y.App.Div.1979)). N.Y.S.2d 298 to a vehicle accident” is not limited "motor policy. explicitly stated in the collision unless County Berry Dairyland 6. To the extent v. Mu- Bulletin, Texas, Dep’t of Ins. Commissioner's Tex. 428 Co. 534 S.W.2d tual Insurance 5, 2001). (Feb. 1976, writ), No. B-0004-01 (Tex.Civ.App.-Fort no Worth 130 use, might
accident.”8
arise out of a motor vehicle’s
contends,
only
Texas Farm Bureau
but
for
Texas Farm Bureau contends that Stur-
coverage in the event of a “motor vehicle
rock’s
contains more restrictive lan-
however,
Lindsey,
In
accident.”
we exam-
guage than the
policy language
broader
the “arising
language only
ined
out of use”
Lindsey,
found in
which merely required
construing
after first
the term “auto acci-
injuries
that the
“arise out of’ the “use of
dent.” Id. at 155-56. As discussed earli-
Lindsey,
motor vehicle.”
997 S.W.2d at
er,
ques-
we concluded that the incident in
Bureau,
According
Farm
to Texas
tion satisfied our construction of that term.
appeals’
the court of
conclusion that Stur-
Lindsey’s
Id. at 156.
discussion of the
injuries
rock’s
resulted from a “motor ve-
inap-
term “auto accident” is not rendered
erroneously incorporates
hicle accident”
posite
ad-
because we continued
discuss
“arising
concept
broader
out of use”
policy language.
ditional
appear
does not
the more restrictive
Moreover,
PIP language.
parties
here did not
“motor
the term
contract for coverage
might
accident that
accident”
connote a more restrictive
Peck,
(denying
determining
131 add- (emphasis art. phrase “arising than the out of Tex. Ins.Code 5.06-3 meaning ed). pay- accident” PIP that we “The for which motor vehicle’s use” does not mean statutorily refers ments are in the cannot consider manner which (a)’s liability “arising out of subsection injuries, caused vehicle ju- any motor Other ... use of vehicle.” nec- considering the vehicle’s involvement in speak no-fault statutes also risdictions’ Considering essarily expands coverage. aris- resulting from or terms of accidents injury- causative the vehicle’s role ing out of vehicle’s use.9 producing comports Leg- accident with the statutory Article 5.06-3 islature’s scheme. Therefore, appeals while the court of Insurance provides: of the Texas Code Lindsey’s sepa- of two conflated discussion terms, 766-67, 65 its at rate (a) liability automobile No insurance mandatory comports with the approach arising ... covering liability coverage. statutory provisions for ... motor out use of court’s consideration of the vehicle’s shall be issued delivered or did not involvement Sturrock’s accident delivery in per- for unless this state beyond lan- policy’s expand injury protection coverage is sonal and is consistent with Texas case guage provided supplemental therein or jurisdictions. law and decisions other thereto. supra cited See cases note 8. (b) “Personal consists protection” provisions of a lia- it across significant motor vehicle find that courts We bility found provide pay- the nation have no-fault Generally, ment to the insured in similar circumstances. named exist up slip- motor ... from a liability policy if a claimant sustains $2,500 entering to an amount for each such accident while into and-fall payment all reasonable from the alighting covered arising expenses holding from the accident are consistent there courts Similarly,
coverage.10 if a collision See, Hall, e.g., Trinity widespread guage likely Universal Ins. Co. results from the 227, (Colo. banc); 1984) (en P.2d 229 adoption language 690 of the from the Uniform 1151, v. Atlanta Cas. Reparations Blish 736 So.2d Act. See Motor Vehicle Accident (Fla.1999); State Reparations 1153 Farm Mut. Auto. Ins. Uniform Motor Vehicle Accident 546, 1, Canady, (1995); 143 Ga.App. Co. v. 239 S.E.2d § 41 Estate Act 14 U.L.A. see also 152, (1977); Ky. Gabel, 153 Mut. Ins. Farm Bureau (quoting N.W.2d at St. Paul 539 293 of Mercury Hall, 483, Andrews, (Ky.Ct.App. Co. v. 955 Ins. Co. 321 N.W.2d Putkamer, 686-87; 1991); 1982)) (" (N.D. 563 at N.W.2d in a one believes 487 'Unless Haagenson Prop. v. Nat'l Farmers Union & coincidence in choice of words miraculous (Minn.1979); 277 N.W.2d escape widespread plagiarism, Cos. it is difficult Group Gray, many Cas. Ohio Ins. Cos. v. Dakota and the conclusion North (Ct.App. N.J.Super. 732 A.2d jurisdictions parts have other enacted Auth., Div.1999); Act]....'”). Hill v. Bus Metro. Suburban [Uniform (App. 157 A.D.2d 555 N.Y.S.2d Inc., Div.1990); Convoy, No. Farm Co. v. Walker v. M & State Mut. Auto. Ins. 10. See G 88C-DE-191, Gabel, (N.D. WL at *1 539 N.W.2d CIV.A. Estate of Nov.2, Schweitzer, 736-37; 1989) 1995); (concluding (Del.Super.Ct. A.2d slipped Liability ice while Long, The Law of Insurance claimant who and fell on *9 28.05(1), ("The (1991) securing employer's trailer typical policy § at 26 cars on his car occupier of the and therefore requires that the the occu was an vehicle accident involve maintenance, Long operation, coverage); PIP Padron v. pancy, or use of entitled to Co., 1337, (Fla. 1339 to fall cov Ins. 356 So.2d vehicle in order within the Island (concluding injuries erage.”). uniformity Dist.Ct.App.1978) lan- that We note that the 132 ever,
another vehicle occurs while the claimant generally deny coverage courts injuries slip-and-fall sustained from acci- entering into or alighting from the cov- dents and occurring prior collisions to the vehicle, coverage.11 ered courts find How-
process
entering
or after
exiting.12
by
car);
leaning against
sustained motorist whose left foot slid as
sustained while
v.
Hunt
side,
Co.,
660,
stepped
causing
Mich.App.
out of car on driver’s
Ins.
183
455
Citizens
door,
384,
right leg
part
(1990)
to hit bottom
of car
(finding
there
N.W.2d
386
that PIP
by breaking leg,
bodily injury arising
coverage
was
out
existed for victim of hit-and-run ac
process
entering
use of motor vehicle for which motorist
cident since he was in the
benefits); Putkamer,
hit);
was entitled to PIP
563
the vehicle when
v.
Olsen Farm Bureau
Neb.,
329,
(concluding
injuries
N.W.2d at 688
that
sus
Ins. Co.
259 Neb.
609 N.W.2d
664,
(2000)
person slipped
(holding
tained
liability
when
on ice while en
671
that
insur
tering
by statutory
injuries
car were covered
scheme
ance covered the
sustained when
coverage); Haagenson,
by
for PIP
277 N.W.2d at
claimant exited car and was struck
a live
(upholding jury
pro
occupying
652
verdict that no-fault
wire since the claimant was still
vehicle);
injuries
visions covered claimant's
suffered
Travelers Indem. Co. v. Commer
Hill,
Cos.,
159,
vehicle);
entering
Pa.Super.
while
motor
555
cial Union Ins.
368
533
765,
(1987)
(concluding
injuries
N.Y.S.2d at
(holding
805-06
that
A.2d
767-68
UM
caught
provider
suffered when a
proper
claimant
her arm in
was the
source of loss bene
tripped
the bus door and
injuries
then
on a nail or tile
fits for
sustained when claimant’s car
by
on the floor were covered
no-fault
was struck while he was seated in his car with
scheme);
(con
Berry,
ground);
133
with
Thus,
policies
potential-
PIP
exiting
if
had finished
are covered
Sturroek
See, e.g.,
fell,
language.
Kordell
ly
and
or if he
fallen out
broader
truck
then
had
Co.,
505,
N.J.Super.
554
of the Allstate Ins.
230
of the car without
involvement
(Ct.A.D.1989)
1,
(finding
cover-
coverage.
no
But A.2d
2
no
there would be
here,
a
a caus-
insured died from heart attack
facing
age
the vehicle’s door
was
when
In
light).
citing
stopped
ative factor in
fall.
while
a red
Sturroek’s
suggest
mean to
cases we do not
above
justices
cases
dissenting
assert
that
injuries “arising out
policies covering
of’
lan-
interpreting
“arising
out
of
and
cover-
of the use”
the vehicle
those
guage
inapposite
interpreting
are
when
injuries resulting from “motor vehicle
ing
requires
policy language
we
provide
coverage;
identical
accidents”
result
from a “motor vehicle accident.”
that, nationwide,
it
simply find
notable
(Owen, J., dissenting).
its or considering apart from I sentence, provisions single phrase, other This case was submitted the trial section,” as Texas Farm Bureau would stipulated court on facts. Sturrock had have us do. State Farm Ins. Co. Life driving been stopped his truck. He Beaston, (Tex.1995); 907 S.W.2d vehicle, parked, ignition. and turned off the Forbau v. Aetna Life parties’ The agreed statement of facts (Tex.1994). policy’s language says, opened “Sturrock then turned and contemplates person entering that a door, vehicle, exiting and as he was exiting the covered vehicle ais “covered entangled, his left foot somehow became person” policy. Reading under the slipped and he almost and caught fell and policy’s terms exclude for acci- himself, and that is when he felt the burn- Sturrock’s, dents like where the vehicle ing in his neck and shoulder area. The itself injury, caused the would render the exiting the him caused to do [sic] person” definition of “covered meaningless, further, In describing that.” the incident contrary which is to basic rules of contract said, agreed statement of facts “[h]e interpretation. hung his foot on the raised portion rv truck,” facing door on his “Sturrock some- neck, shoulder, how his upper We hold that a “motor vehicle acci getting back as he was out of pick-up,” his (1) dent” occurs when one or more vehicles injury April and “Sturrock’s on 10 was not are with involved another an ob impact caused any portion between (2) ject, person, or a being the vehicle is body any portion pickup.” of his used, including entry, exit or as a motor (3) vehicle, and a causal connection exists (PIP) personal injury protection between the injury- vehicle’s use and the provisions policy say: of Sturrock’s Here, producing in event. Sturrock was Injury A. pay We will Personal Protec- jured entangled when his left foot became bodily tion in- benefits because [of] facing his car’s door while he was jury: exiting the vehicle. We conclude that resulting from motor vehicle ac- injury resulted from a “motor cident; and terms, policy’s vehicle accident” within the appeals’ judgment. and affirm the court of person. 2. sustained a covered opinion, which Justice Justice OWEN filed a dissenting HECHT, Justice [*] [*] [*] person” C. “Covered as used this WAINWRIGHT Justice BRISTER joined. Part means: damage bodily family property member:
1. You
*12
legally
any
person becomes
covered
occupying; or
a. while
”4
accident.’
responsible
of an auto
because
by;
struck
b. when
“ ‘you
any family
Coverage
or
extended
designed
vehicle
for use
a motor
maintenance,
ownership,
for
member
roads
mainly
public
on
or a trailer
”5
any
We held
or use of
auto or trailer.’
any type.
ambigu
is not
that the term “auto accident”
Any
person
occupying
other
2.
Farm Mutual
In
ous.6
State
Quoting
per-
auto with
your
your
covered
“
said,
Peck,7
‘The term
surance Co. v.
we
mission.
situations where
‘auto accident’ refers to
concluded that
The trial court
or more
are involved with
one
vehicles
injuries
covered. A
court of
were
divided
”8
vehicle, object,
person.’
another
We
appeals affirmed.1
held,
petition
alleging
“To read Griffin’s
dispute
no
that Sturrock is a
There is
strain that term
an ‘auto accident’ would
parties
stipu-
“covered
The
so
person.”
beyond any
meaning.”9 Grif
reasonable
dispute
lated.
no
There is
that Sturrock
from an auto acci
fin’s
were not
occupying
was
a motor vehicle at the time dent,
shooting,
drive-by
from a
even
but
of his
But
injury.
under the
though
using
a covered
shooter was
provisions
not attach simply
does
because
at the time of
transportation
“[wjhile
occupying”
was
insured
shooting.
injury”
“[Bjodily
covered motor vehicle.
decision,
Griffin,
Peck
cited in
must
from a motor
acci-
“result[ ]
dent.”
passenger
instructive.
was a
Salazar
insured,
Peck, the
was
Peck’s vehicle while
occasion
This Court had
in Farmers
to a
taking
groomer
her
from a
veteri-
dog
Texas County Mutual
Insurance
Co.
sitting
narian.
in the back
Salazar was
to construe the term “auto acci-
Griffin2
him,
dog bit
dog
seat with the
when the
insured,
Royal,
driving
dent.”
was
to his
inflicting severe lacerations
face.10
passengers
gun
vehicle when his two
fired
declaratory judgment
sought
The insurer
leg
shots and wounded Griffin
as he
obligation
that it had
to defend Peck in
no
alleged neg-
walked down a street. Griffin
against
Salazar’s suit
her.11
ligence
gross negligence.
The issue
“
pay dam-
provided that the insured ‘will
Royal’s
whether
insurer was
ages
bodily injury
property damage
indemnify
Royal’s poli-
him.3
defend or
“
le-
cy
damages
the insurer
‘will
for which
covered
becomes
pay
said that
We
the words
1. 65
8.
gaily responsible sitting because of an auto acci- was in a car parked next to Met- ”12 appeals dent.’ The court of held that zer’s truck nine-year-old when Metzer’s the term “auto unambigu- accident” was attempted son to climb the cab of the into ous, apply and that it must term’s through truck its sliding rear window and “ordinary generally accepted mean- gun gun caused a on a rack mounted over ing.” appeals The court of concluded discharge. Lindsey the rear window to ordinary “that the generally accepted gunshot. struck After the *13 meaning of the term ‘auto accident’ refers $20,000 of paid, limits Metzer’s were to situations where or one more vehicles Lindsey sued his insurer under the unin- type are involved in some of collision or provisions. motorist sured/underinsured vehicle, near object, collision with another policy provided: The said, person.”14 “[furthermore, or It then pay damages “We will which a covered we persuaded are the automobile legally entitled to recover from must, manner, in in some be involved accident,” operator the owner or of an uninsured mere fact that an “[t]he place accident takes in or near an automo- motor [or underinsured] vehicle because bile does not mean the accident was an bodily injury sustained a covered ”15 ‘auto accident.’ person, property damage, caused an accident. ordinary,
The
generally accepted mean-
ing of “motor vehicle accident” does not
The
operator’s liability
owner’s or
call to mind tripping over the threshold of
damages
these
must arise out of the
exiting,
a vehicle while
notwithstanding a
ownership, maintenance or
of the
use
decision from a court of appeals more than
uninsured
motor vehi-
[or underinsured]
thirty years ago,
injury
which held that
cle.”
had occurred in a motor vehicle accident
when an
in
phlebitis
leg
insured with
in Lindsey primari-
Court’s decision
“
favoring
“was
in
it as he twisted
order to ly
on
focused
the ‘arise out of the owner-
get
right
out of the car and as he did so his
ship, maintenance or use of the ... motor
”
caught
cartilage
knee
snapped.”16
language.20
vehicle’
We examined deci-
This
in Mid-Century
Court’s decision
In-
jurisdictions
sions from this21 and other22
surance
Lindsey17
Co. Texas v.
does not
that had
meaning
considered the
of “arose
hold otherwise.
of the use of a
out
motor vehicle.” We
looked,
then
particular, at situations
Lindsey
case construed another
gun
which a
was involved
whether and
section of the
policy,
Texas standard auto
discharge
under what circumstances the
pro-
motorist
uninsured/underinsured
Lindsey
vision.18
was the insured. He
a firearm
out
of a
“arose
use”
(Tex.1999).
12.
Id. at 911-12.
17.
14. Id. 19. Id. at 155 15. Id. 20. Id. at 156-64. Berry Dairyland County
16. Mut. Ins. Co. at Id. 156 n. 157 n. 18. Tex., (Tex.Civ.App.-Fort 1976, writ). Worth 157 n. 21. mean be “Lindsey’s that “accident” should read vehicle.23 We concluded argu- arose out of the addressing of the use Metzer In “auto accident.” pur- truck” because “Metzer’s son’s sole assumed, ment, deciding, that we without gain entry into the pose was truck in the unin- the term “accident” as used clothing.”24 play- retrieve his He was not policy provi- motorist sured/underinsured it, gun, ing trying with the to shoot or load limited to an “auto accident.” sion could be using or unload it.25 He was Griffin, quot- decision in We then cited our “ vehicle, simply than “qua rather acci- ing holding its term ‘auto ‘[t]he use property,”26 article of and his one dent’ refers to situations where injured the underinsured vehicle insured. another more vehicles are involved with ”29 ease, provision In the instant person.’ then object, or We at issue does not contain the broad “arise “[njothing language concluded that ownership, out of the maintenance use that an holding suggests of either case *14 language. ... motor of the The vehicle” requires a or ex- ‘auto accident’ collision says coverage policy applies instead that like in this cludes occurrences the one only “bodily injury: resulting if there is case.”30 a motor accident” from while the Lindsey suggests in that Nothing “occupying” covered is “struck in an place mere fact an accident took that by” injury a motor vehicle. Sturrock’s that it an “auto automobile means was alighting occurred when was his from contrary, Peck accident.” To the we cited But vehicle. that not the does answer that proposition with for the approval question of whether his one was the merely the situs of when accident,” “resulting from a motor vehicle injury, “auto We there is no accident.”31 provisions the PIP his require. Peck, affirming in approved the rationale Lindsey only briefly In we discussed “that a inflicted while the victim dog bite what constitutes an “auto accident.”27 in a not an was car was auto accident.”32 provision inju- that in Peck was used for being The vehicle from ry result “an accident.” There was occurred, transportation dog when the bite that in question shooting Lindsey no certainly an from the and it accident was “an accident.” explained that the We insured’s of view. But the vehicle point not boy shotgun “did intend to cause the merely the location an accident injured, discharge Lindsey to be nor anywhere, just as could have occurred reasonably was it foreseeable either us presently in the case before Sturrock consequence boy’s would result from the injured himself tripped could have trying to enter the pickup through than truck. many parked But insurer other argued rear window.”28 locales Id., Peck, (quoting at 157-61 25 & 26. Farm Mut. Ins. Co. v. 23. & nn. State (Tex.App.-Amarillo S.W.2d 24. Id. at 158. (words writ) from omitted Peck Griffin Griffin))). indicated in the text of 25. Id. 26. Id. at 156. 30. Id. at 156.
27. Id. at 155-56. 31. See id.
28. Id. at 155. 32. Id. County (quoting Tex. Id. Farmers Mut. (Tex.1997) Griffin, Co. contrast,
By
the accidental
shooting
conflicting
sometimes
from
decisions
other
Lindsey could only have occurred from use
jurisdictions.37
of the “vehicle qua vehicle.”33 The shot-
today
The Court
cites five cases from
gun
gun
was on a
rack mounted to the
jurisdictions
other
that find
when
vehicle,
boy
and the
came into contact with
injured entering
an insured is
exiting
it
attempting
when he was
to retrieve his
vehicle or is
near a
But
vehicle.38
clothing stored in the vehicle.
saidWe
language
each
these cases
“
discharge
‘[i]f the
or incident could
is different
PIP
Texas’s standard
regardless
have occurred
of the
provision.
policy provisions
Each of the
the courts seem to
holding
be consistent in
afforded broader
than Texas’s
”34
there is no coverage.’
Accordingly, we
provision,
importantly,
and most
none
boy
said that if the
handling
had been
policy provisions
in those cases re-
gun
the vehicle and it had acciden-
quired an auto or motor vehicle accident as
tally discharged,
there would have been no
a prerequisite
coverage.39
coverage.35
in Lindsey
recognized
We
question
convincingly
of whether
Court cannot
distin-
there was
even a use of a
the decisions that do deal
guish
motor vehicle was “a
poli-
close
case,”36
numerous,
as evidenced
require
cies that
auto motor vehicle
alighting
car door threshold as he was
there
*15
from.”);
Corp.
Putkamer v. Transamerica Ins.
Am.,
626,
683,
(alteration
34.
Mich.
563 N.W.2d
original) (quoting
Id. at 159
of
119:64,
(1997) (finding coverage
requir
§
Couch on
under statute
Insurance 3d
at 119-98
"
(1997)).
ing coverage
bodily injury
for
'accidental
arising
ownership, operation,
out of the
main
tenance
a
or use of motor vehicle as a motor
35. Id.
”
" '[ajccidental
vehicle'
and the statute said
bodily injury does not
out
the
arise
of
owner
maintenance,
ship, operation,
or use of a
parked vehicle as a motor vehicle
...
unless
25,
Id. at 157 n.
n.
159 n.
injury
by person
[T]he
was sustained
a
while
n.
162 nn. 27-30.
into,
occupying, entering
alighting
the
from
’ "
vehicle when the insured fell on ice as she
38. See
Subsequently, Supreme the Washington on depends use of a an to term that “the Court had occasion construe the ability and exit safely in a enter vehicle accident” when used insured’s “motor However, does fit policy. policy provided coverage it.” this definition (ripped, a nail or tile 46. Id. on on the staircase sidewalk). bus, footing, and lost her fell to the 47. Id. at 814. 475, (1986). Wash.App.
40.
44. Id. at 837. 51. Id.
140 reasonable, fair, case,
with “a
and sensible
inapposite
this
are
when faced with a
construction
given
as would be
requires
a “motor vehicle acci-
by
average person
contract
purchas-
dent” or “auto accident.”
ing insurance.” Nor would this con-
language
Even when the
is broader and
struction of the term “motor vehicle ac-
require
does not
an auto or motor vehicle
comport
cident”
plain, ordinary,
with the
accident, courts are divided on what is and
popular
meaning of that term.52
is not covered. Courts have found no cov
Washington
(or
Supreme Court cor-
erage
policy provisions
under
covering
rectly
cover)
discerned that
there
quite
by
are
directed
statute to
in
policies
number of insurance
into,
that use lan-
“occupying,
curred when
entering
guage much broader
“bodily injury
automobile,”53
than
alighting
using
from or
resulting
accident,”
from a motor vehicle
or from the “use of
...
the automobile
language
which is the
person-
the Texas
upon, entering
or
alighting
or
al
protection provisions.
automobile,”54
Cases con-
from
“arising
out of
struing policies with
in-
language,
operation,
broader
maintenance or use” of a vehic
cluding
le,55
upon by
those relied
“arising
Court
out of the maintenance or
(citations omitted);
52.Id.
charged
see also State Farm
as the insured reached into the vehi
Rains,
Mut. Auto. Ins. Co. v.
gun;
cle to retrieve a
rifle was not stored in a
(Ky.1986) (finding
rack,
that there was no "mo
gun
storage
but in a
area behind the
separate,
tor vehicle accident” in two
consoli
seat).
driver’s
when,
case,
dated cases
in the first
the in
by
sured was hit in the head
an assailant with
Co.,
N.J.Super.
53. Kordell v. Allstate Ins.
trying
a baseball bat while
to enter his vehi
(Ct.App.Div.1989) (finding
554 A.2d
cle,
case,
and in the second
when the insured
coverage
no
when PIP statute said "sustained
was in a vehicle that overturned when the
bodily injury as a result of an accident while
killed,
driver was shot and
and the insured
into,
occupying, entering
alighting from or
vehicle);
crawling
was shot while
out of the
using an automobile” and insured died of a
Equitable
Jordan v. United
Life
stopped
light).
heart attack while
at a red
(Mo.Ct.App.1972) (finding
no
under a
"ac
54. Ross v. Protective Indem.
135 Conn.
bodily injury”
"solely by
cidental
caused
rea
(1948) (finding
62 A.2d
son of an automobile ... accident” when the
required "bodily
under
insured taxicab driver was robbed and
shot
injury,
arising
caused
accident and
out of
passenger);
death
but see Ganiron v.
the use of the automobile ... while
Assoc.,
Haw. Ins. Guar.
69 Haw.
upon, entering
alighting
automo-
(1987) (finding coverage
P.2d
un
*17
passengers
bile” when
exited from vehicle
policy
required
der
that
a "motor vehicle ac
shoulder,
pulled
that had
onto the
went to the
by
cident” for insured who was struck
a bullet
urinate,
rear of the vehicle to
and were struck
gun
a
from
fired from another vehicle on the
by
conversing
another vehicle while
after uri-
freeway); Union Mut. Fire Ins.
v.Co. Com
nating).
Co.,
308,
mercial Union Ins.
521 A.2d
310
(Me. 1987) (finding coverage
policy
under
that
Co.,
Boykin
v.
Farm
State
Mut. Auto. Ins.
required
hunting
an "auto accident” when on
401,
470,
(1990)
Ga.App.
195
trip,
393 S.E.2d
471
shotgun accidentally
insured’s
dis
"
(finding
coverage
no
'ac
charged,
injuring
when statute said
passenger, when insured
”
"
bodily injury'
'bodily
gun,
cidental
includes
in
reached for the
which was in the back
seat);
jury
arising
operation,
...
Capital
out of the
mainte
State
Ins.
v.
Co. Nationwide
nance,
Co.,
534,
66,
use
a
[as
Mut. Ins.
318
or
of motor vehicle
a motor
N.C.
350 S.E.2d
”
(N.C.1986) (finding coverage
policy
which is accidental’ when insured
vehicle]
under
slipped
required "bodily injury
oily pavement
... for which
on wet
about two feet
legally
approaching
responsible
covered
becomes
from her car as she was
the
passenger
stopping
because of an auto accident" when
vehicle after
at a convenience store
Co.,
injured
accidentally
fueling);
was
when a rifle
dis
Cole v. N.H. Ins.
188 Ga.
cover)
(or
injury
to
vehicle,56
“arising
required by
out of
statute
simply
use” of a
or
ownership, maintenance
out of the
“arising
Conversely,
of
cover
the use”
a vehicle.57
vehicle,58
of
“arising
a
or
out
or use” °f
a
covers
age
policy
has been found when
vehicle,59
a
or
or use” of
maintenance
"
maintenance,
36, 37,
(find
(1988)
ownership,
'arising
of
App.
out
373 S.E.2d
"
”
ing
coverage
provided
was
'[a]c-
no
when statute
a
vehicle' when insured
or use of motor
bodily injury’
bodily
means
...
by
cidental
tire
attacked
several assailants after his
maintenance,
arising
operation,
or
it);
out
change
of
stopped to
Her
blew out and he
” " '[ojccupying’
Co.,
a
....
use of motor vehicle
Ins.
473 So.2d
v. Protective Cas.
nandez
upon
or
means to be in or
a motor vehicle
(Fla.1985)
coverage
(finding
1242-43
entering
engaged in
act
into
the immediate
of
inju
required
provision
under
"
alighting from the motor vehicle
or
'arising
ownership,
ry
out of the
mainte
"
”
maintenance,
'[ojperation,
use of a motor
or
in
vehicle’ when
nance or use
a motor
maintenance,
use
operation,
vehicle’ means
injuries in the course of his
sured suffered
a motor
as a vehicle'" and insured
vehicle
violation;
alleged
su
for an
traffic
arrest
walking
car
slipped and fell while
around her
occupying
preme court inferred insured
paid
gasoline,
pumped and
after she had
time); Barry
v.
the vehicle
Ill. Farmers
striking
knee
her arm on the fender and her
Co.,
(Minn.Ct.
386 N.W.2d
300-01
Ins.
pavement).
on the
1986)
coverage
App.
(finding
under
"
use of a
vehi
said
‘maintenance or
motor
Co.,
56. Marklund v. Farm Bureau Mut. Ins.
”
"
or use
a motor
cle’ means
'maintenance
(Minn.1987)
n.
400 N.W.2d
vehicle, including,
its
as a
incident to
vehicle
(finding
coverage
under
that said
statute
vehicle, occupying,
or use as a
maintenance
"injury arising
use
out of the maintenance or
”
into,
entering
alighting from
when
and
it’
slipped
of a motor vehicle” when
on
insured
got
garage,
of her
insured backed vehicle out
gasoline
ice and fell on a self-service
station's
garage door
out to close the
filling
apron
capping his
concrete
after
and
idling
slipped
on the
as she
and
and fell
ice
tank;
gas
car’s
insured did
come into
in);
get
to
lor-
approached
car door
back
physical
com-
contact with the vehicle after
gensen v.
Ins.
360 N.W.2d
Auto-Owners
pleting
refueling operation, although
1985) (finding
(Minn.Ct.App.
walking
passenger
toward the
seat with
"
'all
when statute said
loss suffered
getting
his wife
intention of
check
through injury arising out of the maintenance
pay
gas).
for the
”
"
use of a motor vehicle’
'mainte
”
Vodinelich,
Corp.
Classified
nance or use of an automobile' means
"
(Minn.1985) (finding
N.W.2d
no cov-
use of a motor vehicle as
'maintenance or
erage
"arising
out
under
vehicle, including,
to its
incident
maintenance
of the use”
a motor
children
vehicle when
into,
occupying, entering
use as
poisoning
when
died
carbon monoxide
alighting
use
from it. Maintenance or
running
their mother committed suicide
loading
unload
... does not include ...
garage
the insured vehicle in an enclosed
ing
occurs
unless
conduct
ajar).
leaving
while
the door
the house
occupying, entering
alighting
into
”; plaintiff was burned when he
from it’
Long
58. Padron
Island Ins.
356 So.2d
gasoline
caught
a can of
stored
fire after
(Fla.Dist.Ct.
1978)
App.
(finding
exploded
trunk
car
"
inside the
of his father’s
‘bodily inju
when PIP statute said
opening
some
he was
the trunk
retrieve
ry
arising
ownership,
...
out of the
mainte
cables;
jumper
plaintiff
”
was not
nance, or
of a motor vehicle'
and in
use
*18
rather,
explosion;
injured
initial
he was
the
exiting
slipped
the
sured’s foot
as he was
can,
gas
when he reached in to remove the
"causing
right leg
hit the bot
his
to
fearing
up
the
blow
or cause
that
car would
leg.
part
car door
tom
and break
was)
(where
ex
gas station
the car
the
car,
plaintiff
but
did not slide out of the
caught
gasoline
plode,
tipped
and he
injured
as
himself on the car door threshold
the insured
caus
can on
trunk of
therefrom”).
alighting
was
himself;
parties
ing gasoline
spill
on
1151,
ignited
stipulated that
defective trunk wire
a
59. Blish v.
Cas.
736 So.2d
Atlanta
fumes);
1153,
(Fla.1999)
coverage
gas
Spisak v. Nationwide Mut.
(finding
un
1155
891,
483,
Pa.Super.
478 A.2d
policy provision
required
der PIP
vehicle,60
occupying”
“while
or “while tual Insurance
Co. Texas which the
vehicle,61
alighting” a
simply “arising
appeals
court
phrase
concluded “the
out of use” of a vehicle.62
‘motor vehicle accident’ can be construed
having
meaning”
more than one
and
To bolster its conclusion that Sturrock’s
that it
“duty
was therefore the court’s
...
injuries come within the PIP provision, the
give
the phrase the construction that is
Court cites a number of decisions that hold
most favorable to the insured.”66 As dis-
coverage
there is
when a vehicle collides
above,
cussed
this Court has since held
entering
exiting
with someone
a covered
that the
unambigu-
term “auto accident” is
vehicle.63
questions
But no one
that there
ous,67
Berry’s holding
un-
is therefore
has been an auto or motor vehicle accident
sound.
pedestrian.
when vehicle strikes a
sup-
Court cites two Texas cases to
II
port
holding.
Surety
its
One is Southern
Sturrock
policy’s pro-
contends that the
Davidson,64
Co. v.
which the
did
requiring
vision
a “motor vehicle accident”
require
not
an auto or motor vehicle acci-
prerequisite
coverage
as a
contravenes
dent. The
an
was
even
automo-
“
the statute that
PIP
governs
provisions
liability policy.
bile
It covered
ef-
‘[t]he
Texas.68 I disagree. First enacted in
resulting
fects
exclusively of all other
1973,69
requires
that statute
automobile lia-
bodily injury
causes from
by
sustained
bility
policies
insurance
to offer
cover-
during
insured
policy solely
the life
this
age.70
says,
It
external,
through
violent and accidental
means.’”65
by
The other case cited
liability
No automobile
poli-
insurance
Berry Dairyland County
Court is
cy, including
Mu-
pursuant
insurance issued
(1984) (finding
Barth,
under
62. State Farm Mut. Auto. Ins. Co. v.
required
losses sustained
(Fla.Dist.Ct.App.1991)
'"as
result of
579 So.2d
(finding coverage
accident that arises out of the
policy provision
maintenance
under PIP
”
"
or use of a
required
motor vehicle as a motor vehicle’
loss sustained ... as a result
companion
when insured and a female
died
bodily injury
arising
...
out of ... use of a
”
poisoning
of carbon monoxide
in the backseat
motor vehicle’ when insured was attacked
car,
engaging
insured vehicle while
sitting
in sex
strug-
an assailant while
in her
another).
free,
door).
acts with one
gled
and fell out the driver’s
63.
without whether accident” the or fault or nonfault of named insured contemplates, or contemplate, does not causing in contributing recipient the or motor vehicle accident: automobile accident, regard to the and without (b)“Personal injury protection” con- medical, hospi- of any collateral source of provisions sists of a motor vehicle tal, An wage continuation benefits. liability pay- for provide to this paying pursuant insurer benefits ment the named insured the motor right subrogation Act shall have no of liability policy and members of any person or against other claim household, any the insured’s authorized benefits insurer to recover such passenger the named in- operator of fault of such other alleged of the reason guest including sured’s motor vehicle person causing contributing $2,500 occupant, up to an of for amount accident. of person payment each such all (d) pre- payments All benefits expenses arising the ac- reasonable made under this Act shall be scribed years cident and incurred within three therefor arise as the claims periodically necessary from the date thereof (30) thirty days after satisfac- and within medical, surgical, Xray and dental ser- proof is received tory thereof vices, devices, prosthetic including subject limita- following to the insurer ambulance, necessary hospital, profes- tions: services, nursing sional and funeral (1) Act coverage described this producer, pay- case an income not than may prescribe period less income as ment of benefits for loss of accident accident; months after date six and where the result original proof of loss within which in the accident was to claim for benefits must respect wage producer an income or accident, to the insurer.73 payments presented of bene- be time 5.06-3(b), (c), (d)(1) (emphasis add- 73.Id. art. ed). 5.06-3(b)-(h). Id. art. *20 The decision in Le v. “bodily injury resulting Farmers Texas tute ... from a County Mutual Insurance Co. considered motor vehicle accident.” I would reverse permitted whether this statute State render judgment insurer in Board promulgate of Insurance to this case. “motor vehicle accident”
and concluded that it did.74 That court likely
reasoned that “[i]t is that the state
wide for injuries cost which happen to
occur ain car is than higher the cost of injuries
paying which result from a
motor gave vehicle accident.”75 It defer Board,
ence concluding, to the do not “[w]e find the Board’s repugnant construction TIMES, NEW INC. Dallas Observ d/b/a the statute.”76 appeals The court of disa Observer, er, L.P., Farley, Dallas Rose greed Berry Dairyland County Lyons, Williams, Julie and Patrick decided, Mutual Insurance which had Petitioners, in resolving a plea, venue term “motor vehicle repugnant accident” was article 5.06-3.77 Bruce A. ISAACKS Darlene The reasoning in Le v. Farmers Texas Whitten, Respondents.
County Mutual Insurance Co. is sound. It certainly permissible reasonable and No. 03-0019. under article 5.06-3 for a providing personal injury protection to require the Supreme Court of Texas. occurrence a “motor vehicle accident” Argued Dec. 2003.
before coverage is cover- applicable. The 5.06-3(c) age afforded under article is in Sept. Decided 2004. addition to coverage, other insurance including medical An insurance.78 insurer Rehearing Denied Nov. 2004. paying personal protection right has no of subrogation for fault of causing contributing
another
to “the accident.”79 Article 5.06-3 does prohibit policies automobile issued requiring injuries
this state from that the
be sustained as a result a “motor vehicle
accident.”
We are constrained lan- policy’s
guage. did not consti-
74. (Tex.App.-Hous- (Tex.App.-Ft. 77. 534 S.W.2d Worth denied). writ). [1st Dist.] ton writ 5.06-3(c). § Id. at 324. 78. Tex. Ins. Code 79.Id.