*2 petition response a to the motion for and MIRABAL, Before HEDGES and summary judgment, asserting the release ANDELL, JJ. or, alternatively, was void because of fraud parties mutually that were re- the mistaken OPINION garding coverage the amount of available for supported summary his claims. Plaintiff his MIRABAL, Justice. judgment response pleadings, with the an- accident, Following plaintiff an automobile interrogatories, requests swers to and Ferol Decker against settled his claims de- file, as admissions on as well with affidavits (the fendant Emilio Urrutia driver of the attorneys repre- himself and two who had truck) vehicle, a rented and defendant him sented after the accident. (the Leasing Penske Truck Co. truck rental leasing company reply plain- filed a to settlement, company). plaintiff After response, requested summary tiff’s and in it negligence, alleging sued the defendants for judgment for the defendant driver as well as the settlement was void due to fraud or granted summary itself. The trial court a mutual appeals mistake. Plaintiff a take- judgment ordering plaintiff nothing that take nothing summary judgment in favor of both against on his claims both defendants. defendants. We reverse and remand. error, points In his first and second of 5, 1995, On June the driver of the rental plaintiff asserts the trial court erred in truck crossed the road center line and struck granting summary judgment for defendants. head-on, plaintiff’s causing plaintiff car to Specifically, plaintiff argues that the sum- $100,000 incur in expenses. over medical mary judgment fact evidence raises issues alleged days Plaintiff that several after he about his of fraud mutual claims mistake. hospital, was from released an insurance adjuster calling on behalf of the truck driver Summary judgment proper only is $20,000 plaintiff only told there was of insur- that is when a movant establishes there coverage pay personal injury ance to his genuine issue of material fact and that representation claim. The same was made to judgment a matter movant is entitled as plaintiff’s attorneys by adjuster repre- an Mkts., of law. Randall’s Food Inc. v. John senting company. the interests of the rental son, (Tex.1995); 644 Ban personal Plaintiff injury settled his claim for Medicine, gert Baylor College 881 of settlement, part As amount. of his (Tex.App 566 [1st S.W.2d . —Houston release, plaintiff signed releasing a both de- denied). reviewing In writ Dist.] any liability arising fendants from from summary judgment, all we will take evidence 5,1995 June accident. true, indulg to the nonmovant as favorable in

According plaintiff’s summaiy judgment ing every reasonable inference favor of affidavit, resolving any later a doubt in its he learned from Penske the nonmovant Johnson, 644; agent leasing company Truck rental that the favor. 891 S.W.2d at Ban mu actually coverage. gert, one million at 565-66. Fraud and had dollars S.W.2d attorney Plaintiff a tual are affirmative defenses hired new and sued mistake avoidance, prescribed a form the State Board and for a nature of confession and Insurance, nor is it written into the main in a sum nonmovant/plaintiff to use them Further, plaintiff argues insurance a mov- mary judgment proceeding to defeat above) itself is a release, (quoted the endorsement establishment of anVdefendant’s nullity Republic Insurance Com- fact because Old raising has plaintiff the burden *3 pany required not use the endorsement did respect to them. issue with Williams (Tex.1990); following provi- the Glash, form. Plaintiff relies on 789 S.W.2d 263-64 Co., of the Insurance Code: sions Mortgage Ltd. v. North Am. Deer Creek (Tex.App. Policy Art. 5.06. Forms and Endorse- — Dallas writ). no ments (1) on parties agree that this case turns adopt policy Both form The Board shall whether, fact,' of available type in the amount for each of motor and endorsements $20,000.00. If coverage subject subchap- was such insurance vehicle insurance to this case, misrepresentation was the there was ter— no mistake.

and (3) (2) by Except provided as subsections (4)3 article, may only an insurer and of this policy providing cover The insurance by under adopted a form the Board use Republic by in this case issued Old age was insur- writing this section in motor vehicle Life Company Insurance to the defendant delivered, delivery, for or re- ance issued provides leasing company. policy The truck agree- in A contract or newed this State. liability coverage in for one million dollars application and not into the ment written accident, “in per as covered and includes and in viola- policy is void and of no effect truck driv people sureds” like the defendant subchapter, provisions of this tion of the leasing truck from the er who leased the for revocation of and is sufficient cause dispute in this ease centers company. The to write automobile license of such insurer of an to the around the effect endorsement insurance within this State. policy, amends the section insurance which (Vernon defining as follows: “insureds” Supp. Ann. art. 5.06 Tex. Ins.Code 1998). AN INSURED WHO IS summary judg- to his Plaintiff attached A. 1 of Business agreed It is Section II. that been response forms have ment relevant (12-93) is Coverage

Auto Form CA0001 Board, including by prescribed the Insurance following: to include the amended form used to reduce an endorsement to be rentees of covered C. Both lessees and liability insurance limits of automobile insureds, only to the extent autos as but Attached as an coverage for leased vehicles. liability agreed to and for the limits of approved en- appendix opinion to this is the agreement contractual with under Plaintiff purpose. for such form dorsement named insured. position as follows: summarized his by put there fly in the ointment was agree- rental It is uneontested that policy in Although it used a Republic. and the Old between the defendant driver ment promul- that compliance with company provides substantial leasing truck defendant Board, to use the by it failed coverage1 up gated re- liability to the for insurance designed to limit specifically respon- applicable financial endorsement quirements of the Instead, chose to ease, it law, i.e., only up coverage to lessees. present sibility in the policy to the $20,000 injury arising from an attach an endorsement bodily authority to delegate However, attempted to plaintiff’s position which it it is accident.2 company] to. determine leasing in truck provision [the the rental the insurance liability1of cover- ‘limits of the ‘extent’ and because it is not written agreement is void liability Transportation Code Annotated purchase the auto 2. Texas elected to 1.The driver (Vernon Pamph.1998). § 601.072 compa- through leasing coverage insurance ny. (3) (4) are not relevant. and 3. Subsections prescribed not or Rental involved in this case was age provided to the lessees of Insurance. approved by the State Board Agreement. Agreement The Rental was separate agreement portion of the rental approved by not the Board. liability limits of that stated the extent and Accordingly, plaintiff argued the insurance agreement into coverage was an “not written provisions agreement in the rental are void therefore, policy,” as application they pre- law, coverage because are not written on forms limitations on a matter of said Insurance, were “void and of no effect.” Tex. Ins.Code scribed the State Board of nor 5.06(2).4 Ann. art. they agree. are written into the

Accordingly, the amount of insurance cov- required Insurers are law to use personal in- erage pay plaintiff’s available to $20,000.00. jury At prescribed by the endorsement forms claim was not limited *4 minimum, summary judgment evidence Springfield State Board Insurance. plaintiff’s regard raises a fact issue with Co., Aetna Cas. & Sur. Ins. of mutual mistake. affirmative defense (Tex.1981). governs policy Article 5.06 558 Therefore, plaintiff’s points we sustain of er- endorsements, declaring forms and void and ror one and two. any agreement of no effect not written into application the insurance Di summary judgment We reverse the Co., to the trial court for further remand the case Francesco v. Houston Gen. Ins. 858 proceedings. (Tex.App S.W.2d . —Texarkana 5.06(2) (Vernon writ); Supp.1998). art. It

is uncontested that form endorsement

APPENDIX utory provisions similar to the Texas statute 4. We note that defendants have cited authorities posi- jurisdictions support from other of their controls here. tion, but none of defendants’ cases involved stat- FOR REHEARING ON MOTION rehearing overrule the motions by Penske. In

filed defendants Urrutia and so,

doing Schlumberger we note that distinguish-

case1 relied on defendants is present

able from the ease. argue

Defendants that under Schlum- signed by plaintiff bars

berger the release very pur

recovery. Schlumberger, In dispute

pose was to end the release and, joint project,

about the value of

therefore, plaintiffs were bound representations re

disclaimer of reliance present

garding value. Id. at 180.2 In the

case, that there was never a there is evidence of avail

dispute about the maximum limits rather, coverage; there is evi

able insurance parties

dence that both were mistaken about *5 coverage.

the limits of available applies pres in the general rule contract, any case: a release is a and like

ent contract, subject is to avoidance on

grounds such as mutual mistake. Williams (Tex.1990). Glash, 261, 264

v. DICKERSON, Appellant,

Nikalai

v. Texas, Appellee. STATE

No. 01-95-00946-CR. Texas, Appeals of

Court of Dist.). (1st

Houston

Feb. 1998. 3, 1998.

Rehearing Overruled March Henry L. Chagnard,

Belinda Johnson Houston, Burkholder, III, Appellant. claim, Swanson, specifically always and it Technology Corp. will not bar” Schlumberger 1. (1997). it. Id. at holding 959 S.W.2d 171 the facts before limited its 181. Schlumberger specifically supreme 2. The court in ... emphasized that “a disclaimer of reliance