Johnson v. State Farm Mutual Automobile Insurance Co.
Johnson v. State Farm Mutual Automobile Insurance Co.
Opinion of the Court
OPINION
This appeal arises from a suit brought by Jerry C. Johnson seeking declarations construing the terms of two insurance policies following an automobile accident in which Jerry’s son, Jacob, a minor at the time, was injured while Jerry was driving.
FACTUAL AND PROCEDURAL BACKGROUND
In 2008, Jerry, Stephanie, and Jacob were, traveling on Interstate 70 in Colorado in a rented car driven by Jerry. Jerry became confused about which exit to take and turned into the path of a semi-truck, resulting in a collision. Jacob, who was eleven years old at the time and asleep in the back seat, suffered serious bodily injuries, including severe traumatic brain injury. Jacob lived with his parents at the time of the accident and remained in the home until May 29, 2015, when he permanently moved out of the residence. At the time of the accident, Jerry was insured by a Texas Personal Auto Policy (the auto policy) and a Personal Liability Umbrella Policy (the umbrella policy), both issued by State Farm. The auto policy contains a provision, the “family member exclusion,” that ex-
Jacob also made a claim for payment under the auto policy’s underinsured motorist (UIM) coverage.
Jerry filed suit seeking declarations that the family member exclusions in the policies are unconstitutional and/or contrary to public policy and invalid. In the alternative, he sought a declaration that to the extent the family exclusions are valid, they apply only so long a Jacob is a member of Jerry’s household. State Farm filed a counterclaim seeking declarations that the family member exclusions are valid and enforceable to exclude coverage under the auto and umbrella policies for any amount
All parties filed motions for summary judgment. The trial court granted, in part and denied in part the motions of Jerry and State Farm and denied Jacob’s motion. The trial court entered a final judgment ordering that the family member exclusion in the auto policy is valid and enforceable, that the application of the family member exclusion in the auto policy occurs at the time of the accident, that coverage for Jacob’s bodily injuries under the auto policy is limited to the statutory minimum, and that Jacob is not covered under the auto policy’s UIM coverage. The court further ordered that the umbrella policy is valid and enforceable, that the application of the definition of “insured” in the umbrella policy occurs at. the time a liability claim is made, that at the time the claim was made Jacob’s primary residence was not in Jerry’s household, that Jacob was not an “insured” under the umbrella policy at the time the claim was made, and that the umbrella policy does not exclude coverage for liability arising from Jacob’s injuries.
State Farm filed a motion for new trial, arguing that the trial court erred in determining that the application of the definition of “insured” in the umbrella policy occurs at the time a liability claim is made rather than at the time of the accident. In the alternative, State Farm argued that, even if the definition of “insured” is applied at the time the claim is made, Jacob was still a resident of Jerry’s household when the claim was made.
The court modified its determinations concerning the umbrella policy, ordering that the application of the definition of “insured” occurs at the time the insured becomes “legally liable” for damages that exceed the “retained policy limit,” that Jerry is legally liable for Jacob’s damages that exceed $25,000,
STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). To prevail on a traditional summary judgment motion, the movant must demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). When the movant satisfies this initial summary judgment burden, the burden shifts to the nonmovant to produce evidence raising an issue of fact. See Tex. R. Civ. P. 166a(c); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 517 (Tex. 2014). When all parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000); Abbott v. Dallas Area Rapid Transit, 410 S.W.3d 876, 879 (Tex. App.-Austin 2013, no pet.). When the parties move for summary judgment on the same issues and the trial court grants one motion and denies the other, we consider the summary judgment evidence presented by all sides, determine all questions presented, and if we determine that the trial court erred, render the judgment the trial court should have rendered. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000)).
The parties’ issues require us to interpret Jerry’s insurance policies. ‘When interpreting an insurance contract we consider all its parts, read all of them together, and give effect to all of them.” Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 766 (Tex. 2014). Ordinarily we seek to ascertain the intent of the parties as expressed in the language of a contract, but where, as here, the policy is a standard form prescribed by the Board of Insurance, “the intent of the parties is not what counts because they did not write the contract.” Id. Instead, we interpret the policy language according to the ordinary, everyday meaning of its words. Id.; see Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 8 (Tex. 2007) (“Terms that are not defined in a policy are given their generally accepted or commonly understood meaning.”). When a policy permits only one interpretation, we will construe it as a matter of law and enforce it as written. Charida v. Allstate Indem. Co., 259 S.W.3d 870, 873 (Tex. App.-Houston [1st Dist.] 2008, no pet.). We construe the policy against the insurer and in favor of the insured only when policy terms are ambiguous. Id.
DISCUSSION
In his appeal, Jerry challenges the trial court’s determinations that the family exclusion in the auto policy is valid and enforceable and that its application occurs at the time of the accident. Jacob, in his
Jerry’s Appeal—Family Member Exclusion Under the Auto Policy
In issues one through five and seven, Jerry challenges the family member exclusion in the auto policy as against public policy, unconstitutional, unconscionable, and void. In his sixth issue, Jerry challenges the trial court’s determination that the family exclusion applies at the time of the accident. We address these issues in turn.
Public Policy
[I] In his first issue, Jerry argues that the family exclusion violates public policy in two ways—by acting as a barrier to Texans’ freedom to contract and by discouraging family unity. His arguments are premised on statutory provisions governing insurance policy forms. Section 5.06 of the Insurance Code provides that the Board of Insurance shall adopt a policy form and endorsements for each type of motor vehicle insurance. See Tex. Ins. Code § 5.06(1). The standard auto policy adopted by the Board of Insurance contains the family member exclusion at issue that excludes from liability coverage bodily injury to “any family member,” except to the extent of the statutory minimum limits. Section 5.06 further provides that the Board may approve the use of other policy forms if they (1) are “adopted by a national organization of insurance companies, or similar organization” and (2) provide “coverage equivalent to the coverage provided by the form adopted by the Board.” Id. § 5.06(3). Jerry contends that requirement that a non-form policy be “equivalent” means it must contain a comparable family member exclusion, that no national organization of insurance companies or similar organization has promulgated a policy without a family member exclusion, and that no insurance company licensed in the State of Texas offers an auto policy without a family member exclusion.
While we appreciate Jerry’s arguments, we are bound by case law suggesting otherwise. In National County Mutual Fire Insurance Company v. Johnson, 879 S.W.2d 1 (Tex. 1993), the Texas Supreme Court, in a plurality opinion, upheld the family member exclusion in auto policies so long as the insurer provides the minimum statutory limits required by state law. Id. at 5-6 (Cornyn, J. concurring and dissenting). Four members of the court concluded that a family member exclusion that did not provide the minimum statutory limits was not “consistent with the legislative purpose of ensuring that every motor vehicle is covered by an automobile liability policy that will protect all claimants against losses which arise out of the operation of the vehicle.” Id. at 2. In his concurring and dissenting opinion, Justice Cornyn agreed that the family member exclusion conflicted with state law, but only to the extent that it failed to provide coverage in the minimum amount of insurance required by the Texas Motor Vehicle Safety Responsibility Act. Id. at 6 (Cornyn, J., concurring and dissenting). Less than a year after the Johnson decision, the Supreme Court unanimously held that “the family member exclusion is invalid only to the extent it conflicts with the Texas [Motor Vehicle] Safety Responsibility Act ... that is, to the statutorily-imposed minimum limit of automobile liability insurance imposed by the Act.” See Liberty Mut. Fire Ins. Co. v. Sanford, 879 S.W.2d 9, 10 (Tex. 1994) (per curiam) (adopting reasoning of plurality opinion in Johnson). As this Court has observed,
The plurality of the Johnson Court held that [family member] exclusions contravene the Texas Motor Vehicle Safety-Responsibility Act and are thus void for public policy reasons, as well as violations of statutory requirement of minimum liability insurance. See Johnson, 879 S.W.2d at 2. However, Justice Cornyn’s concurring and dissenting opinion, which formed the plurality, stated that such exclusions are void only because they conflict with Texas’ compulsory liability insurance statute. Therefore, Justice Cornyn stated that such exclusions should be invalid only up to the minimum amount of mandated liability insurance. See id. at 6 (Cornyn, J., concurring and dissenting), (emphasis added). The Supreme Court adopted Justice Cornyn’s position as that of the Court in the per curiam opinion in Liberty Mutual Fire Insurance Company v. Sanford, 879 S.W.2d 9, 10 (Tex. 1994).
Texas Farmers Ins. Co. v. Miller, No. 03-97-00233-CV, 1997 WL 746027, at *1 n.2, 1997 Tex. App. LEXIS 6210, at *4 n.2 (Tex. App.-Austin Dec. 4, 1997, pet. denied) (not designated for publication).
Since Sanford, Texas courts of appeals have recognized family member exclusions
The Texas Supreme Court has determined that Texas public policy as reflected in the Texas Motor Vehicle Safety Responsibility Act does not require more than the statutory minimum limits of liability regardless of whether the negligent driver injures a stranger or a family member. See Sanford, 879 S.W.2d at 10 (adopting Justice Cornyn’s concurring and dissenting opinion, which formed the plurality in Johnson); Johnson, 879 S.W.2d at 6 (Cornyn, J., concurring and dissenting) (“The legislature has not said that family members should receive greater coverage than other members of the public .... It is not for this court to evaluate the public policy implications of mandatory insurance coverage; the legislature has already done that.”). Jerry’s complaints concerning the unavailability of policies that do not contain the family member exclusion lie with the legislature and the Texas Board of Insurance, not with State Farm.
Constitutionality
In his second, third, and fourth issues, Jerry challenges the family member exclusion on constitutional grounds. In his second issue, he complains that the exclusion violates article I, section 3 of the
In his fourth issue, Jerry contends that the family member exclusion violates article XII, section 2 of the Texas Constitution. See Tex. Const. art. XII, § 2. Article XII, section 2 provides: “General laws shall be enacted providing for the creation of private corporations, and shall therein provide fully for the adequate protection of the public and of the individual stockholders.” Id. Jerry argues that any law that even allows—much less requires—the family member exclusion fails to comply with this constitutional mandate. Construing his arguments liberally, we assume that Jerry is challenging the authority of the Board of Insurance, in adopting form policies pursuant to section 5.06 of the Insurance Code, to adopt a form policy that contains such an exclusion. See Tex. Ins. Code § 5.06 (requiring Board of Insurance to adopt policy forms for motor vehicle insurance). However, article XII, entitled “Private Corporation,” applies to the creation of private corporations. See Tex. Const, art. XII. Section one, entitled “Creation by General Laws,” states that “[n]o private corporation shall be created except by general laws,” Id. art. XII, § 1. Read in context, then, section 2 requires that private corporations be created by general laws that protect the public and the shareholders of the private corporation. See id. § 2. Thus, article XII applies to laws creating private corporations, not to laws regulating insurance policy forms. See Miller v. Davis, 136 Tex. 299, 150 S.W.2d 973, 976, 978 (1941) (distinguishing between public corporations, which are “ ‘connected with
Further, even if article XII, section 2 somehow applied to section 5.06, the proper defendants in a declaratory judgment action seeking a declaration that a statute is unconstitutional are the responsible governmental agencies. See Tex. Civ. Prac. & Rem. Code § 37.006(b) (waiving governmental immunity for claim that statute is invalid by requiring that governmental entities be made parties and requiring that attorney general be served with copy and provided opportunity to be heard); Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 622 n.3 (Tex. 2011) (per curiam) (stating that in proceeding involving validity of statute, governmental entities must be joined and attorney general notified). Thus, as with his other constitutional claims, Jerry’s claim under article XII, section 2 does not lie against State Farm. See Texas Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 634 (Tex. 2010) (stating that governmental agencies that may be bound by court’s declaration on statutes must be joined in suits to construe legislative pronouncements) (citing Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994)). We overrule Jerry’s fourth issue.
Unconscionability
In his fifth issue, Jerry argues that the family member exclusion is unconscionable. He recites “the basic test for unconscionability”— “whether, given the parties’ general commercial background and the commercial needs of the particular trade or case, the clause involved is so one-sided that it is unconscionable under the circumstances existing when the parties made the contract.” See In re First-Merit Bank, N.A., 52 S.W.3d 749, 757 (Tex. 2001) (orig. proceeding). Applying this test to the facts of this case, Jerry contends that (1) Jerry is a typical consumer while State Farm is the largest insurance producer in Texas, (2) motorists must be able to buy insurance sufficient to protect them, and the Texas insurance industry has no need to sell, exclusively, policies that leave insureds exposed, and (3) the insurance contract is completely one-sided because Texas law requires Jerry to have auto insurance with a family member exclusion. We do not find these arguments persuasive.
In Fortis Benefits v. Cantu, 234 S.W.3d 642, 650 n.53 (Tex. 2007), the Texas Supreme Court addressed an insured’s similar arguments concerning a subrogation clause. Cantu argued that the equitable “made whole” doctrine—the rule that an insurer is not entitled to subrogation of medical benefits paid to the insured unless the insured has been “made whole”—precluded enforcement of the subrogation clause. Id. at 644. The court disagreed and held that the made whole doctrine had to “yield to Fortis’s right to contractual sub-rogation under the plain terms of the insurance policy.” Id. Cantu attempted to avoid the policy’s express language by arguing that contractual abrogation of the
We likewise conclude here that it is not per se unconscionable for an insurer to “reduce its risk and boost its solvency” by including a family member exclusion that is promulgated in a state-approved form and complies with the Texas Motor Vehicle Safety Responsibility Act and that the record contains no evidence that establishes unconscionability.
Time of Application
In his sixth issue, Jerry argues that the trial court erred in applying the family member exclusion at the time of the accident -rather that at the time the claim was made. The auto policy family member exclusion excludes from liability coverage bodily injury to “any family member, except to the extent of the minimum limits of Liability Coverage required by Texas [Revised] Civil Statutes, Article 6701h, entitled ‘Texas Motor Vehicle Safety-Responsibility Act.’ ” “Family member” is defined as “a person who is a resident of your household and related to you by blood, marriage, or adoption.” Jerry argues that the use of the verb “is” in the definition of family member means that the determination of whether an injured party is a family member—or “resident” of the policyholder’s household—is determined at the time the claim is made, not at the time of the accident.
State Farm argues that Texas courts uniformly determine “residency” of a family member as of the time of the accident and that the trial court did not err in doing the same. We agree. In applying various auto policy provisions, our sister courts have determined residency at the time of the accident. See Anderson v. Texas Farm Bureau Mut. Ins. Co., No. 11-13-00004-CV, 2014 WL 3698313, at *1, *1-2, *3-4, 2014 Tex. App. LEXIS 8020, at *1, *2-3, *9 (Tex. App.-Eastland July 24, 2014, no pet.) (mem. op.) (applying UM provision); Brown v. Tucker, 652 S.W.2d 492, 494 (Tex. App.-Houston [1st Dist.] 1983, writ ref'd n.r.e.) (same); Southern Farm Bureau Cas. Ins. Co. v. Kimball, 552 S.W.2d 207, 207-08, 210 (Tex. Civ. App.-Waco 1977, writ ref'd n.r.e.) (construing UM, personal injury protection, and death indemnity benefits provisions); Boon v. Premier Ins. Co., 519 S.W.2d 703, 703-05 (Tex. Civ. App.-Texarkana 1975, no writ) (interpreting provision for medical payments); Garcia v. Southern Farm Bureau Cas. Ins. Co., 490 S.W.2d 616, 617 (Tex. Civ. App.-El Paso 1973, no writ), disapproved of on other grounds by Westchester Fire Ins. Co. v. Tucker, 512 S.W.2d 679, 685 (Tex. 1974) (applying UM coverage); Travelers Indem. Co. v. Mattox, 345 S.W.2d 290, 291-92 (Tex. Civ. App.-Texarkana 1961, writ ref’d n.r.e.) (determining insurer’s duty to indemnify policyholder’s son against claim by stranger to policy under liability provision); Travelers Indem. Co. v. American Indem. Co., 315 S.W.2d 677, 678-79, 681 (Tex. Civ. App.Fort Worth 1958, no writ) (same in suit between insurers); Arellano v. Maryland Cas. Co., 312 S.W.2d 701, 702 (Tex. Civ. App.-El Paso 1958, no writ) (applying medical payments provision); see also Bednarz v. Continental Ins. Co., 453 F.2d 372, 373 (5th Cir. 1972) (per curiam) (applying Texas law and holding that daughter was not resident of insured father’s household for purposes of liability coverage “on August 22, 1968,” date of accident); Rust v. Texas Farmers Ins. Co., 341 S.W.3d 541, 545, 551 (Tex. App.-El Paso 2011, pet. denied) (upholding trial court’s judgment against plaintiff where homeowner’s policy excluded bodily injury coverage for resident of premises and plaintiff was resident of premises at time of accident).
Further, we agree with State Farm that Jerry’s interpretation of the family member exclusion is unreasonable. Under Jerry’s construction, a policyholder could defeat application of the exclusion and create coverage simply by moving the family member out of the home after an accident but prior to filing a claim, rendering the family exclusion meaningless. See Plains Expl. & Prod. Co. v. Torch Energy Advisors Inc., 473 S.W.3d 296, 305 (Tex. 2015) (“[W]e consider the entire writing, harmonizing and giving effect to all the contract provisions so that none will be rendered meaningless.”); Charida, 259 S.W.3d at 872-73 (“We construe insurance contracts under the same rules of construction that govern ordinary contracts.”). Based bn the plain language of the family member exclusion and guided by the Texas Supreme Court’s decisions in Johnson and Sanford, we conclude that Jerry’s interpretation is unreasonable. See Greene, 446 S.W.3d at 766. Additionally, we observe that the record reflects and Jerry has acknowledged that the claims were asserted while Jacob lived in Jerry’s home. Consequently, even if we were to adopt Jerry’s interpretation, there would be no coverage under the plain language of the
Voidness
In his seventh and final issue, Jerry argues that the family member exclusion is void because the policy fails to clearly describe its effect. He contends that the average consumer would not understand the exclusion, would not know the amount of the “minimum limits of Liability Coverage,” would have trouble locating the Texas Motor Vehicle Safety Responsibility Act, and would have no idea from reading the policy whether the minimum limits are more or less than the amount of coverage set forth on the declarations page. Jerry thus argues that because the exclusion does not state that it covers claims by family members only to the extent of $25,000,-the exclusion is unclear, ambiguous, void, and cannot be enforced.
State Farm contends that Jerry asserts this argument for the first time on appeal and has therefore waived it. Jerry does not dispute that he raises this issue for the first time on appeal but responds that he did not receive the endorsement that revised the exclusion and therefore asserted a different argument based on the language of the original policy exclusion and that only when the trial court found in the Amended Final Judgment that Endorsement 593E applies was the issue of the effect of the endorsement raised. However, the record reflects that in its motion for summary judgment, State Farm referred to “Texas Personal Auto Policy Amendatory Endorsement,” quoted its language, and attached a copy as an exhibit.
Jacob’s Appeal—UIM Coverage under the Auto Policy
In a single issue; Jacob, argues that the trial court erred in finding that the auto policy does not afford UIM benefits to Jacob.
The Texas Supreme Court has stated, that “[b]y purchasing [UM/UIM] coverage along with basic liability coverage, the insured has expressed an intent not only to protect others from his or her own negligence but also to protect that person’s own family and guests from the negligence of others.” Stracener v. United Servs. Auto. Ass’n, 777 S.W.2d 378, 384 (Tex. 1989). Since then, Texas courts have held that “the purpose of [UIM coverage] is to protect the insured, his family, and his guests from the 'negligence of others’” who are “strangers to the policy holder,” not from the negligence of the policyholder or his family members. See Chanda, 259 S.W.3d at 875-76; accord Griffin, 868 S.W.2d at 869; (“It is not the function of UIM coverage to operate as liability insurance and protect family members from their own negligence in owning and operating an underinsured automobile.”); Bergensen v. Hartford Ins. Co. of the Midwest, 845 S.W.2d 374, 377 (Tex. App.-Houston [1st Dist.] 1992, writ refd) (concluding that underinsured provision was intended to protect policyholder from negligence of “other motorists who failed to maintain adequate coverage on their vehicles” and that “negligence of others” refers to negligence of persons not members of policyholder’s. family); Rosales v. State Farm Mut. Auto. Ins. Co., 835 S.W.2d 804, 806 (Tex. App.-Austin 1992, writ denied) (stating that insured purchased UIM coverage to protect passengers “from the negligence of other uninsured and underinsured drivers,” not for purpose of increasing her policy limits or protecting passengers from her own negligence).
UIM coverage is not available for damages sustained by a passenger who is entitled to the full amount of liability under the same policy for injuries caused by the same insured driver. Rosales, 835 S.W.2d at 806 .(concluding that “UIM coverage is not available for damages sustained by a passenger who has already recovered the full amount of liability limits under that same policy” and holding that injured passengers could not recover both liability and UIM benefits under driver’s policy for damages caused by driver’s negligence). To allow a passenger—whether a guest or
Jacob argues that these cases are irrelevant to this case because they do not involve the “regular use” exclusion. Jacob refers to what is commonly referred to as the “definitional exclusion” or “family use exception,” which excludes from the definition of “uninsured motor vehicle” any vehicle “[o]wned by or furnished or available for the regular use of you or any family member.” See Hunter v. State Farm Cty. Mut. Ins. Co., No. 02-07-00463-CV, 2008 WL 5265189, 2008 Tex. App. LEXIS 9481 (Tex. App.-Fort Worth Dec. 18, 2008, no pet.) (mem. op.) (referring to “family use exception”); Griffin, 868 S.W.2d 861 (referring to “definitional exclusion); Rosales, 835 S.W.2d 804 (same). Jacob argues that he is entitled to UIM coverage because Jerry did not own the rental vehicle he was driving at the time of the accident and it was not “available for the regular use” of Jerry and his family.
It appears that no Texas court has addressed the meaning of “regular use” as it relates to a rental car in the context of UM/UIM coverage.
We find more applicable Parekh v. Mittadar, in which the Louisiana First Circuit Court of Appeals addressed a case with facts similar to this case that involved UM coverage. See 2011-1201 (La. App. 1 Cir. 6/20/12), 97 So.3d 433. In Parekh, the insured was driving in Louisiana in a car rented in Texas when he lost control of the vehicle and veered off of the highway, causing the vehicle to flip over and injuring his passengers. Id. at 435. No other vehicle was involved in the accident. Id. The passengers filed a claim for liability coverage under the rental liability policy and received policy limits. Id. at 435-46. The passengers also sought UM/UIM coverage under the same policy. Id. at 436. Construing an exclusion essentially identical to the one at issue here, the court concluded that under Louisiana law, the rental vehicle was “accessible, obtainable, and ready for [the insured’s] immediate use,” i.e., “available for the insured’s regular use,” during the term of the rental agreement and therefore did not qualify as an “uninsured motor vehicle” under the terms of the policy. Id. at 438-39. Accordingly, the court held that the passengers were not entitled to UM coverage. The court also observed:
We note that this result would be the same under Texas law as well. In interpreting the exclusion above, Texas courts have determined that this exclusion operated to prevent the injured occupants of a vehicle from collecting the liability benefits and UM benefits under a single policy. In these cases, the Texas courts relied, in part, on language from the Texas Supreme Court in Stracener v. United Services Auto. Ass’n, 777 S.W.2d 378, 384 (1989), in which the court stated that “[b]y purchasing [UM] coverage along with basic liability coverage, the insured has expressed an intent not only to protect others from his or her own negligence but also to protect that person’s own family and guests from the negligence of others.” The Texas courts have interpreted the phrase “negligence of others” to refer to the negligence of those in other automobiles, which is clearly not applicable to this matter, as this was a single vehicle accident involving only the negligence of Mr. Mittadar. Specifically, the Texas courts noted that the insured had purchased UM coverage to protect himself and his guests from negligent, financially irresponsible drivers in other automobiles.*109 Allowing a guest passenger to recover both liability and UM benefits from the same insured’s policy converts the UM coverage into a second layer of liability insurance, which was not contemplated in the policy costs. Accordingly, under Texas law, no UM coverage would be available under the policy at issue.
Id, at 439-40 (internal citations omitted).
Jacob seeks benefits under Jerry’s UIM coverage, which is intended to protect Jerry and other “covered persons” from the negligence of others, not from their own negligence. See Stracener, 111 S.W.2d at 384; Charida, 259 S.W.3d at 875-76; Griffin, 868 S.W.2d at 869; Bergensen, 845 S.W.2d at 377; Rosales, 835 S.W.2d at 806. Given the different purposes of liability and UIM coverages, informed by the Supreme Court’s statement in Straeener concerning the intent of UM/ UIM coverage, and persuaded by the reasoning of this Court and of our sister courts of appeals in prior cases construing UM/UIM coverage provisions, we agree with the Louisiana First Circuit Court of Appeals that under Texas law, a passenger may not recover under both the liability and UIM provisions of the same policy for damages caused by the same insured driver. Accordingly, we conclude that given the purpose and plain language of the UIM provision, the rental car Jerry was driving at the time of the accident is excluded from the definition of “underinsured motor vehicle.” See Greene, 446 S.W.3d at 766; Stracener, 111 S.W.2d at 384; Charida, 259 S.W.3d at 875-76; Bergensen, 845 S.W.2d at 377; Parekh, 97 So.3d at 439-40.
Jacob argues that this reasoning is inconsistent with Jankowiak v. Allstate Property & Casualty Insurance Company, 201 S.W.3d 200 (Tex. App.-Houston [14th Dist.] 2006, no pet.) which he contends is “[t]he case most similar” to this case. In Jankowiak, Laci Jankowiak was a passenger in Daniel Dellasala’s vehicle when it was involved in a collision with Alejandra Salas, an uninsured motorist. Id. at 203. Jankowiak sued Dellasala and Salas, alleging that both drivers were at fault, and her own insurer. Id. Jankowiak settled with Dellasala for his maximum liability coverage and with her own insurer for her maximum UM coverage. Id. She then sought to recover from Dellasala’s insurer his policy limits of UM coverage. Id. The trial court granted the insurer’s motion for summary judgment, and Jankowiak appealed. Id. On appeal, in concluding that Dellasala’s insurer was obligated to pay Jankowiak UM benefits, the court explained that, as a guest occupant of Della-sala’s vehicle, she was a “covered person” under his policy and was—to the extent her damages exceeded the liability coverage—entitled to UM coverage to the extent of Salas’s fault. Id. at 209, 211. The court observed that to hold otherwise would allow Jankowiak to recover only for Dellasala’s negligence and not for Salas’s negligence. Id. at 212. In other words, the definitional exclusion or family exception did not apply; Salas’s vehicle, not Dellasa-la’s, was the “uninsured motor vehicle”; and the UM coverage under Dellasala’s policy was for Salas’s negligence, not Del-lasala’s. Here, the definitional/family use exclusion applies, there is no evidence that anyone except Jerry was at fault, and there is no other vehicle that could be the “uninsured motor vehicle.”
Finally, to the extent Jacob argues that the statutory limitation on his recovery under the liability portion of Jerry’s policy resulting from the family member exclusion distinguishes his liability recovery from a guest’s recovery of the full liability limits stated in the policy, we do not agree that any such distinction leads to a different result. As the First Court of Appeals stated in Charida,
[u]nder Sanford/Johnson, the insurer is obligated to pay insured family members the statutorily imposed minimum limit of liability insurance, and nothing in Johnson encourages the invalidation of the definitional exclusion at issue to award injured family members UIM benefits in addition to the statutorily imposed minimum liability limit. Allstate contends, and we agree, that to allow a family member to collect underinsured motorist benefits above the statutory minimum liability limits would render the supreme court’s holding in Johnson meaningless. According to Allstate, “any family member whose recovery under the liability provisions of a policy was limited to the statutory minimum by the family member exclusion could simply turn to the underinsured motorist portion of the same policy to collect the balance.
259 S.W.3d at 876-77. We conclude that under the plain language of the UIM provision, Jerry’s UIM coverage is not available to pay for damages to Jacob caused by Jerry. See Greene, 446 S.W.3d at 766; Stracener, 777 S.W.2d at 384; Charida, 259 S.W.3d at 875-76; Griffin, 868 S.W.2d at 869; Parekh, 97 So.3d at 439-40. We overrule Jacob’s issue.
State Farm’s Appeal—Coverage under the Umbrella Policy
In its first issue, State Farm argues that the trial court erred in finding that Jacob is entitled to recover benefits under the umbrella policy because the policy unambiguously provides that bodily injuries to an insured are not covered and it is undisputed that Jacob was an insured at the time of the accident. The umbrella policy’s coverage clause provides coverage for damages that exceed the “retained limit” “[i]f a' claim is made or suit is brought against an insured for damages because of a loss for which the insured is legally liable.”
Jerry argues that unlike the family member exclusion in the auto policy, Exclusion 13 is ambiguous with respect to liability claims. He contends that unlike the coverage clause and most of the other exclusions, it does not refer to “loss” and, unlike some of the exclusions, does not use the word “liability.” He argues that while the auto policy expressly excludes “Liability Coverage ... for bodily injury,” the
We do not find this argument persuasive. . The auto policy includes several coverage sections: “Part A-Liability Coverage,” “Part Bl-Medical Payments Coverage,” “Part B2-Personal Injury Protection Coverage,” “Part C-Uninsured/Underinsured Motorists Coverage,” and “Part D-Coverage for Damage to your Auto,” each with its own exclusions. In contrast, the umbrella policy is exclusively a liability policy intended to provide coverage in excess of the underlying limits of liability in the auto policy, not coverage for the insured’s own damages. See C.L. Thomas, Inc. v. Lexington Ins. Co., No. 13-13-00566-CV, 2014 WL 4494516 at *1, 2014 Tex. App. LEXIS 10148 at *2 (Tex. App.-Corpus Christi Sept. 11, 2014, no pet.) (mem. op.) (stating that umbrella policy “covered liability for compensatory damages for personal injuries ... to the extent that such liability exceeded the applicable limits of certain other underlying policies”); Leigh v. Kuenstler, No. 14-08-00245-CV, 2009 WL 3126538, at *1, 2009 Tex. App. LEXIS 7633, at *2-3 (Tex. App.-Houston [14th Dist.] Oct. 1, 2009, no pet.) (mem. op.) (“Although she believed that the umbrella policy would afford coverage for her own medical expenses and damages she sustained as the result of an automobile accident with an underin-sured motorist, Leigh admits that she simply assumed this to be the case. In fact, the umbrella policy afforded coverage only for Leigh’s liability, and not for her own damages.”);. Sidelnik v. American States Ins. Co., 914 S.W.2d 689, 693-94 (Tex. App.-Austin 1996, writ denied) (discussing nature of umbrella policies and stating that umbrella policy provided excess coverage for liability arising from automobile accident); Celestino v. Mid-American Indem. Ins. Co., 883 S.W.2d 310, 311-12 (Tex. App.-Corpus Christi 1994, writ denied) (stating that combined umbrella policy provided excess coverage for automotive liability, general liability, and employer’s liability); see also Fisher v. State Farm Mut. Auto. Ins. Co., 371 Mont. 147, 305 P.3d 861, 865 (2013) (stating that umbrella policy “generally covers claims in excess of the insured’s primary insurance but does not cover claims brought by an insured”). In short, it is well established that,' unlike an auto policy that provides coverages other than liability—such as personal injury protection and medical payments—an umbrella policy is an excess liability policy only, absent express provisions to the contrary, which are not present here. Therefore, there is no need for the policy to specify that an exclusion is to “liability coverage,” as Jerry contends.
Jerry claims that there are five problems with this reasoning: (1) it ignores the language of Exclusion 12, which includes the phrase “claim made or suit brought”; (2) it ignores the actual language of Exclusion 13; (3) it is not illogical for an umbrella policy to exclude health claims; (4) it is common in our society for companies to issue unnecessary warnings; and (5) it ignores the coverage clause. We do not find these arguments persuasive and find Jerry’s reading of Exclusion 13 as a health care exclusion strained, at best. In addition to running contrary to the nature and purpose of umbrella policies, it ignores that the exclusion also excludes “personal injury,” which is defined to include injuries
In its first issue, State Farm also argues that the trial court erred in concluding (1) that “the application of the definition of ‘insured’ in the Umbrella Policy occurs at the time the insured becomes ‘legally liable’ ” and (2) that Jerry became legally liable on the date of the trial court’s judgment. State Farm contends instead that under the terms of the umbrella policy, Jerry became legally liable at the instant that he negligently caused the accident that injured Jacob and that, to apply the definition of insured at any time other than at the time of the accident leads to unreasonable results. We agree. As discussed above, Texas courts have determined residency at the time of the accident in construing coverage for family members under auto policies for UM/UIM benefits, medical payments, personal injury protection, death benefits, and the insurer’s duty to indemnify against a claim by a stranger to the policy under the liability provision. In addition, federal decisions construing umbrella policies under Texas law inform our decision. In State Farm Fire & Casualty Co. v. Lange, in construing an umbrella policy, the Fifth Circuit determined coverage for the policyholder’s son by determining the son’s residency at the time of the accident. 480 Fed.Appx. 309, 310 (5th Cir. 2012) (per curiam). Similarly, in a' case determining coverage under an umbrella policy, the United States District Court for the Western District of Texas stated that whether the policyholder’s son qualified as an insured and whether the insurer had a duty to defend him turned on whether the son’s “‘primary residence’ at the time of the accident was” the policyholder father’s home. State Farm Fire & Cas. Co. v. Neuman, 186 F.Supp.3d 643, 652 (W.D. Tex. 2016).
In light of these decisions and for the reasons stated in our discussion of the determination of residency for purposes of the family member exclusion under the auto policy, we conclude that the determination of Jacob’s residency for purposes of the umbrella policy’s Exclusion 13 is based on Jacob’s residency at the time of the accident. Just as it would defeat the intent of the auto policy family member exclusion to construe it to allow an insured family member to obtain coverage by moving out of the family residence after an accident but before filing a claim, it would also defeat the intent of Exclusion 13 to construe it as allowing an insured family member to obtain coverage by moving out of the family residence prior to a judgment determining the insured to be “legally liable.” Such a construction would render Exclusion 13 meaningless. See Plains Expl., 473 S.W.3d at 305; Charida, 259 S.W.3d at 872-73.
Further, even if we were to accept the trial court’s interpretation of the policy
CONCLUSION
We reverse the trial court’s judgment that Jerry is entitled to coverage for the damages to Jacob under the umbrella policy and render judgment that Jerry take nothing by his claims under the umbrella policy. We affirm the trial court’s judgment in all other respects.
. For clarity, we refer to Jerry and Jacob Johnson by their first names.
. Jerry sued Jacob by and through Stephanie Johnson, Jerry’s wife and Jacob’s mother, as Jacob’s next friend.
. The family member exclusion at issue is contained in standard form Endorsement 593E, issued after the policy was issued. The original policy provision entirely excluded from liability coverage bodily injury to any family member.
. The current minimum amount of motor vehicle liability insurance coverage required to establish financial responsibility for bodily injury is $30,000. See Act of May 15, 2007, 80th Leg., R.S., ch. 1298, § 1, sec. 601.072(a-1)(1), Tex. Gen. Laws 4365, 4365 (codified at Tex. Transp. Code § 601.072(a-1)(1)).
. Jerry disputes that this provision is a "family member exclusion” and contends that it is a health care exclusion instead. As discussed below in our discussion of State Farm’s cross-appeal, we do not find this argument persuasive.
. As discussed below, UIM coverage is contained in the provision for uninsured/underin-sured motorist (UM/UIM) coverage. Because only UIM coverage is at issue here, we refer only to UIM coverage. The umbrella policy does not contain a UM/UIM provision.
. Jacob initially sought additional declarations but ultimately abandoned all but that ' relating to UIM coverage.
. In their joint response to State Farm’s motion for new trial, Jerry and Jacob admitted that "Jacob made a claim before he moved from his parents’ home.” In addition, the summary judgment evidence includes affidavit testimony that Jacob moved out of the family home after suit was filed, and in his briefing, Jerry states that "Jacob was an ‘insured’ when Jerry filed his petition” and that "Jacob made a liability claim before he moved from the home.”
. "Retained limit” is defined in the umbrella policy, in relevant part, as the sum of "the amount paid or payable by any other insurance policy for the loss” and "the amount the insured is required to pay for the loss as provided in the MAINTAINING REQUIRED UNDERLYING INSURANCE section of this policy_”
. In its conclusion of law No. 19, the trial court found that Jerry became legally liable
. Jerry offered as evidence an affidavit from an insurance attorney, with exhibits, outlining the results of research the attorney conducted concerning unavailability in Texas of an auto policy without a family member exclusion. State Farm’s attorney agreed that no "admitted” policy omits the family member exclusion although she was unsure whether such a policy is available through a surplus lines company. Surplus lines insurance is an exception to the general statutory restriction on unauthorized insurers created for consumers who have difficulty obtaining coverage. A surplus lines insurer is not authorized to issue polices in Texas but may become eligible to “place” surplus lines polices through a licensed surplus lines agent, provided the insurer complies with strict capitalization and registration requirements. See generally Tex. Ins. Code §§ 981.001-.222.
. In fact, we observe that in his motion for summary judgment, Jerry asserted an “ultra vires” claim in which he asserted that the Texas Board of Insurance exceeded its authority in prohibiting Texas citizens from purchasing insurance policies without a family member exclusion. He did not, however, join the Board of Insurance or its commissioner as a party defendant.
. Jerry points us to the affidavit of his insurance attorney expert, Jerry’s affidavit testimony that he requested "full coverage polices,” the lack of negotiation involved in the purchase of a form policy, the unequal bargaining power of the parties, and the one-sided nature of the contract. However, even assuming, as Jerry argues and as the Cantu court took as true, that insurance contracts are contracts of adhesion—that is, contracts in which one party has absolutely no bargaining power or ability to change the terms—adhesion contracts are not automatically unconscionable, and we are not persuaded that the evidence Jerry cites proves that the family member exclusion is unconscionable. See Fortis Benefits v. Cantu, 234 S.W.3d 642, 650 n.53 (Tex. 2007).
. Jerry agrees that “liability coverage” is determined at the time of the accident but distinguishes between that determination and the determination of whether the family exclusion applies. However, when Jacob’s "residency” is assessed ultimately determines whether there is “liability coverage,” and we find this to be a distinction without a difference.
. In addition, the record reflects that in arguing that the original policy exclusion language was void, Jerry cited the Texas Supreme Court's holding in Johnson that an exclusion limited to claims exceeding the statutory minimum limits does not violate public policy and acknowledged that many insurers now include such an exclusion.
. In his issue, Jacob also asserts that the auto policy’s family member exclusion is invalid and unenforceable and incorporates Jerry’s arguments on that issue. To the extent Jerry challenges the validity and enforceability of the family member exclusion, we overrule his issue for the reasons stated in our discussion of Jerry’s appeal.
. This portion of the definition of "uninsured vehicle” is commonly referred to as the “definitional exclusion” or, less often, the "family use exception.” See, e.g., Hunter v. State Farm Cty. Mut. Ins. Co., No. 02-07-00463-CV, 2008 WL 5265189, 2008 Tex. App. LEXIS 9481 (Tex. App.-Fort Worth Dec. 18, 2008, no pet.) (mem. op.) (referring to “family use exception”); Charida v. Allstate Indem. Co., 259 S.W.3d 870 (Tex. App.-Houston [1st Dist.] 2008, no pet.) (referring to "definitional ex-elusion”); Farmers Tex. Cty. Mut. Ins. Co. v. Griffin, 868 S.W.2d 861 (Tex. App.-Dallas 1993, writ denied) (same); Rosales v. State Farm Mut. Auto. Ins. Co., 835 S.W.2d 804 (Tex. App.-Austin 1992, writ denied) (same).
. Although Jacob has not accepted the offer, State Farm has agreed to pay the statutory minimum of $25,000 under the liability portion of the auto policy.
. The line of Texas cases interpreting the definitional/family use exclusion involved drivers using their own insured vehicles. See, e.g., Charida, 259 S.W.3d at 874 (holding that vehicle in which daughter passenger was injured was owned by insured father and under plain language of policy was not "uninsured”); Griffin, 868 S.W.2d at 864 (stating that parties stipulated that vehicle was "owned by or available for the regular use of” insured father and concluding that as matter of law vehicle did not qualify as uninsured/underinsured motor vehicle under terms of auto policy); Rosales, 835 S.W.2d at 805 (stating that parties stipulated that vehicle in which passengers were riding when injured was "owned by or available for the regular use of” insured driver).
. The record contains no evidence that Jacob made any allegations that the driver of the semi-truck was at fault or sought any coverage under the truck driver's insurance.
. The parties disagree as to the amount of the retained limit under the umbrella policy in their briefing on State Farm’s second issue, an issue we do not reach because of our disposition of State Farm’s first issue.
. Because our resolution of State Farm’s first issue is dispositive, we do not reach its second issue, in which it challenges the trial court's determination as to the amount for which State Farm is liable under the umbrella policy or its third issue, in which it challenges certain of the trial court’s findings of fact and conclusions of law for reasons that State Farm admits are largely subsumed in its arguments in its first issue.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.