Dallas Fort Worth Insurance Lawyer Blog
Fort Worth insurance attorneys will tell you that you have to read the policy to understand how coverage applies. A good example of this is from the Houston Court of Appeals [1st Dist.]. The style of the case is Oleksy v. Farmers Insurance Exchange. Here is some of the relevant information.
Oleksy went snowmobiling in New York with his friend Paul Pochron and several other people. Pochron was seriously injured when his snowmobile collided with Oleksy’s. Pochron and his wife later sued Oleksy in Fort Bend County. Pochron alleged that Oleksy was a resident of Texas and that the snowmobile accident occurred in New York. The petition did not clearly identify the owner of the snowmobile used by Oleksy.
Oleksy filed a declaratory judgment action against Farmers Insurance, his homeowner’s insurance carrier, seeking a declaration that Farmers has a duty to defend and to indemnify him in the lawsuit filed by Pochron. Although his homeowner’s policy includes an exclusion for personal injuries arising from the use of motor vehicles, Oleksy based his claim for coverage on an exception to that exclusion. The relevant policy provisions are:
Section II– Liability Coverage Coverage C (Personal Liability)
If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which the insured is legally liable. Damages include prejudgment interest awarded against the insured; and 2. Provide a defense at our expense by counsel of our choice even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate.
….
Section II– Exclusions 1. Coverage C (Personal Liability) and Coverage D (Medical Payments to Others) do not apply to:
….
f. bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
(1) motor or engine propelled vehicles or machines designed for movement on land, including attached machinery or equipment;
(2) trailers, semi-trailers or mobile homes;
Which are owned or operated by or rented or loaned to an insured.
However, this exclusion does not apply to:
(1) motor vehicles which are not subject to motor vehicle registration and are:
….
(d) designed and used for recreational purposes; and are:
(i) not owned by an insured; or (ii) owned by an insured while on the residence premises.
Farmers filed an answer, counterclaim, and for declaratory relief seeking a declaratory judgment that Oleksy is not entitled to coverage because the motor-vehicle exclusion applies.
Farmers moved for summary judgment based on the motor-vehicle exclusion in the homeowner’s policy. As summary-judgment evidence, Farmers attached the insurance policy, Pochron’s petition, a copy of the New York statute requiring registration of snowmobiles, and excerpts from Pochron’s deposition and Oleksy’s recorded statement. Farmers argued that the recreational-vehicle exception did not apply because the snowmobile was subject to registration in New York and because Pochron’s deposition and Oleksy’s statement supported an inference that the insured, Oleksy, owned the snowmobile.
Oleksy argued that the question of whether the snowmobile was ” subject to motor vehicle registration” had to be decided pursuant to Texas law which is a statutory choice-of-Texas-law provision. Oleksy thus argued that the exception applied because the snowmobile was not subject to motor-vehicle registration in Texas. He also argued that he did not own the snowmobile based on undisputed evidence that Pochron obtained title to the snowmobile in his own name, maintained possession of it, paid insurance premiums for it, and had an insurance policy that named him as its owner. As summary-judgment evidence, Oleksy attached: the homeowner’s insurance policy; Pochron’s first amended petition; an email from the Texas Department of Motor Vehicles stating that it does not title or register snowmobiles; an affidavit from Pochron in which he avers that he owned the snowmobile in question; and his answers to interrogatories, in which Oleksy denied ownership of the snowmobile.
The trial court granted summary judgment in favor of Farmers, denied Oleksy’s motion, and issued a final declaratory judgment that the insurance policy provided no coverage for the snowmobile accident and that Farmers had no duty to defend or indemnify Oleksy in connection with the Pochron lawsuit. The court agreed Farmers’s motion for summary judgment purported to be a hybrid motion both (1) establishing the applicability of the exclusion as a matter of law and (2) negating the exception because there was no evidence to support it. But its motion relies in part on its contention that snowmobiles are subject to motor-vehicle registration and in part on its contention that Oleksy owned the snowmobile, an argument that it abandoned on appeal. In light of this courts’ conclusion that snowmobiles are not subject to ” motor vehicle” registration under New York or Texas law, the court cannot agree that Farmers conclusively disproved the applicability of the recreational-vehicle exception. Therefore, it was held that the trial court erred in granting summary judgment in favor of Farmers.
Oleksy moved for summary judgment based on the applicability of the recreational-vehicle exception. But his arguments were based on Texas motor-vehicle registration and the question of who owned the snowmobile. In supplemental briefing requested by this court, Oleksy argued for the first time that the New York Vehicle & Traffic Laws establish as a matter of law that snowmobiles are not subject to motor-vehicle registration. But Oleksy did not make that argument in his motion for summary judgment in the trial court. A motion for summary judgment ” must stand or fall on the grounds expressly presented in the motion.” TEX.R. CIV. P. 166a(c) Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.
Summary judgments … may only be granted upon grounds expressly asserted in the summary judgment motion. A court cannot grant summary judgment on grounds that were not presented. A motion for summary judgment must itself expressly present the grounds upon which it is made, and must stand or fall on these grounds alone. As observed by the Supreme Court of Texas, to act otherwise by rendering judgment based on a ground not raised in the trial court may prejudice the nonmovant’s ability to demonstrate that the issue raises a genuine issue of material fact.
The trial court denied Oleksy’s motion for summary judgment, and given the arguments that were made, the court cannot say that it erred in doing so.