United States Fidelity & Guaranty Co. v. Goudeau
Full Opinion (html_with_citations)
delivered the opinion of the Court,
One can imagine few more sympathetic litigants than Louis Goudeau, a âGood Samaritanâ who stopped his car on a Houston freeway to help a stranded motorist. After leaving his car to approach the disabled one, Goudeau was severely injured when a third driver smashed into both cars and pinned him between them and a retaining wall.
There is no question Goudeau can recover from the driver who caused this accident â he already has. But that driver had only $20,000 in insurance. The question instead is whether Goudeau can recover under his employerâs underinsured motorist policy, which applies only if Goudeau was âoccupyingâ his car at the time of the accident. The court of appeals found a fact question on that issue, even though Goudeau had exited his car, closed the door, and walked around the front toward the retaining wall when the accident occurred.
It is natural to sympathize with a litigant who has suffered harm caused by someone who cannot pay the consequences. But if sympathy were a rule of contract construction, there would soon be no law of contracts left. Under the insurance policy here, Goudeau was not âoccupyingâ his car at the time of the accident, so he cannot recover under this policy.
I. The Background
Goudeau worked for Advantage BMW, and was driving one of its cars in the course of his employment. He stopped on the right shoulder of the Sam Houston Tollway to help another driver who had collided with the freewayâs retaining wall. After getting out of his car and walking around the front toward the retaining wall, a car driven by Alex Rodriguez slammed into both parked cars, pinning Goudeau against the retaining wall and crushing his pelvis.
Advantage BMW had two policies with United States Fidelity & Guaranty Company (âUSF & Gâ): a workers compensation policy, and an auto policy with uninsured/underinsured coverage of $1 million. USF & G paid more than $100,000 in benefits to Goudeau and his medical providers under the compensation policy, but denied benefits under the underinsured-motorist policy.
A year after Goudeau filed suit against Rodriguez, the latter tendered his policy limits of $20,000. Goudeau then amended to sue USF & G for breach of the underin-sured-motorist policy. USF & G answered using one law firm, and a few days later intervened using a different law firm to assert its $100,000 statutory subrogation claim against the money Goudeau recovered in the suit.
The trial court granted summary judgment against Goudeau on his underinsured claim. The court of appeals reversed and remanded for trial, finding a fact issue as to whether Goudeau was âoccupyingâ his vehicle.
II. The Policy Question
The underinsured policy here covered certain designated Advantage BMW employees, as well as any others âoccupy
Goudeau concedes he was not âinâ his car when the accident occurred, nor was he in the process of âgetting in, on, out, or offâ of it. He asserts coverage only on the ground that he was âoccupyingâ the car by being âuponâ it when he was injured.
Under the traditional canon of construction noscitur a sociis (âa word is known by the company it keepsâ), each of the words used here must be construed in context.
But a driver who has exited the car, closed the door, walked around the front, and then has the vehicle smashed into him cannot be said to be âoccupyingâ the vehicle at the time of the collision, even if afterwards he ends up partly âuponâ it. We cannot ignore the context by focusing solely on âuponâ and ignoring âoccupying.â Construing âuponâ to include the situation here would âascrib[e] to one word a meaning so broad that it is inconsistent with its accompanying words.â
The court of appeals adopted a test requiring claimants to show only âa causal connection between the incident that caused the injury and the covered vehicle.â
Neither party asks us to look to the law of other states on this question, and a brief review shows why. In deciding whether a person was âoccupyingâ a covered vehicle under an uninsured/underinsured policy, the states have employed a multitude of surrogate tests, including:
⢠a four-pronged test;8
*607 ⢠a three-pronged test;9
⢠a position-of-safety test;10
⢠a severed-relationship test;11
⢠a chain-of-events test;12
⢠a substantial-nexus test;13
⢠a reasonable-relationship test;14
⢠a close-proximity test;15
⢠a vehicle-orientation test;16
⢠a close-proximity or vehicle-use test;17
⢠a close-proximity and vehicle-use test;18 and last but not least,
⢠a plain-and-ordinary-meaning test.19
Under Texas law, we are required to construe insurance policies according to their plain language,
III. The Request for Admission
Alternatively, Goudeau argues (and the dissent agrees) that USF & G admitted coverage in response to a request for admission. But as the court of appeals correctly recognized, the carrier appeared in two different capacities, and a request sent to it in one capacity cannot be used against it in another.
The plaintiffs requested that USF & G admit Goudeau was covered under the un-derinsured motorist policy. But they did not send the request to the lawyer representing USF & G on that policy; they sent it instead to the lawyer representing USF & G as intervenor under the workerâs compensation policy. In the latter capacity, USF & G stood âin the shoes of the insured,â asserting only claims that belonged to Goudeau.
Rule 198 expressly provides that a response to a request for admission can only be used against âthe party making the admissionâ:
Any admission made by a party under this rule may be used solely in the pending action and not in any other proceeding. A matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission.26
The question here is how that rule applies when a party appears in two different capacities.
Although requests for admissions have been in use for more than 60 years, there appears to be only a single case directly answering this question. In Krasa v. Derrico, decided five years after requests for admission were first adopted,
We think Krasa is correct. We have repeatedly held in other contexts that a party appears only in the capacity in which it is named. Thus:
⢠a suit against a government official in an official capacity is not a suit against the official individually;29
*609 ⢠a suit against a partnership is not binding on a partner who was served but not named in his individual capacity;30
⢠a suit is binding against a parent and a minor for whom they appear as next Mend only if the parent was named in both capacities;31 and
⢠a judgment cannot be entered against a trust when the trustee appeared solely in her individual capacity.32
Similarly, while a compulsory counterclaim must be brought against an âopposing party,â
We think this rule must be applied to an insurer who stands in different âshoes.â Insurers issue many policies to people with many conflicting interests. A carrier may represent both parties in an auto accident, stand as both primary and excess insurer,
We agree of course with the dissent that no person may sue himself. But if that rule applies here, USF & Gâs intervention should be dismissed; deeming its admission binding on defendant USF & G has exactly the opposite result. Certainly Goudeau has never raised such an' objection. Even if he had, Texas law requires that the first money recovered in this suit go to USF & G as his compensation carrier.
It is true that USF & G may have had other ways to avoid this situation. Perhaps it could have intervened in Gou-deauâs name,
Requests for admission are a tool, not a trapdoor.
IV. The Evidentiary Objection
Goudeau also objected to the summary judgment on the ground that USF & Gâs evidence was not authenticated. The trial court overruled the objection, and the court of appeals did not reach the issue.
Contrary to Goudeauâs objection, the un-derinsured policy (which showed the policy language) was authenticated by a USF & G records custodian.
V. The Conclusion
Accordingly, we reverse that part of the court of appealsâ judgment concerning Goudeauâs underinsured motorist claim, and render judgment that he take nothing on that claim.
. See Tex. Lab.Code § 417.002. Goudeau raised no objection to USF & G's intervention in his pleadings or summary judgment response.
. 243 S.W.3d 1, 10. The portion of the court of appealsâ judgment affirming summary judgment against Goudeau's former wife Tasha, see id. at 5-6, has not been appealed.
. Fiess v. State Farm Lloyds, 202 S.W.3d 744, 750 (Tex.2006).
. Gustafson v. Alloyd Co., 513 U.S. 561, 575, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995).
. Mid-Century Ins. Co. v. Lindsey, 997 S.W.2d 153, 156 (Tex.1999).
. 243 S.W.3d at 8 (citing McDonald v. So. County Mut. Ins. Co., 176 S.W.3d 464, 471 (Tex.App.-Houston [1st Dist.] 2004, no pet.); McKiddy v. Trinity Lloydâs Ins. Co., 155 S.W.3d 307, 309 (Tex.App.-Dallas 2004, pet. denied); Ins. Co. of the State of Penn. v. Pearson, No. 07-03-0340-CV, 2004 WL 2053285 at *1 (Tex.App.-Amarillo Sept.7, 2004, no pet.); Schulz v. State Farm Mut. Auto. Ins. Co., 930 S.W.2d 872, 875-76 (Tex.App.-Houston [1st Dist.] 1996, no pet.); Fulton v. Tex. Farm Bureau Ins. Co., 773 S.W.2d 391, 393 (Tex.App.-Dallas 1989, writ denied)).
. See Gen. Accident Ins. Co. v. DâAlessandro, 671 A.2d 1233, 1235 (R.I.1996) (requiring (1) causal connection between injury and insured vehicle, (2) reasonably close geographic proximity to vehicle, (3) vehicle-orientation rather than highway-orientation or sidewalk-orientation, and (4) engagement in transaction essential to use of the vehicle); Kentucky Farm Bureau Mut. Ins. Co. v. McKinney, 831 S.W.2d 164, 168 (Ky.1992) (same); Utica Mut. Ins. v.
. See Butzberger v. Foster, 151 Wash.2d 396, 89 P.3d 689, 696 (2004) (rejecting fourth prong of four-prong test).
. See Olsen v. Farm Bureau Ins. Co., 259 Neb. 329, 609 N.W.2d 664, 670 (2000) (holding passenger was in the process of getting out of vehicle until he reached a position of safety away from the car); Joins v. Bonner, 28 Ohio St.3d 398, 504 N.E.2d 61, 63 (1986) (same).
. See Moherek v. Tucker, 69 Wis.2d 41, 230 N.W.2d 148, 152 (1975) (holding plaintiff "had not severed his relationship with the vehicleâ while holding spare tire between cars so one could push the other without scratching their bumpers).
. See Dawes v. First Ins. Co. of Hawaii, 77 Hawaiâi 117, 883 P.2d 38, 53 (1994) (finding coverage as occupancy if insured vehicle "started the chain of eventsâ that resulted in injury).
. See Torres v. Travelers Indem. Co., 171 N.J. 147, 793 A.2d 592, 593 (2002) ("[I]n order to obtain UM coverage where occupancy is in issue, a plaintiff is required to establish a substantial nexus between the insured vehicle and the injury sustained.â).
. See Genthner v. Progressive Cas. Ins. Co., 681 A.2d 479, 482 (Me.1996) (holding attempt to apprehend hit-and-run driver was "directly and reasonably related to the operation and use of the insured vehicleâ); Sayers v. Safeco Ins. Co. of Am., 192 Mont. 336, 628 P.2d 659, 661 (1981).
. See Newman v. Erie Ins. Exch., 256 Va. 501, 507 S.E.2d 348, 350 (1998) (holding child crossing street was not in close proximity to school bus and thus not "occupyingâ it).
. See Miller v. Amica Mut. Ins. Co., 156 N.H. 117, 931 A.2d 1180, 1182-83 (2007); Allstate Ins. Co. v. Graham, 106 N.M. 779, 750 P.2d 1105, 1106 (N.M.1988) (holding claimant "was simply not engaged in a transaction oriented to the use of the [covered auto] at the time of the accidentâ).
. See Nat'l Union Fire Ins. Co. v. Fisher, 692 A.2d 892, 896 (Del.1997) (â[A] person is considered an occupant of the covered vehicle if he or she is either; (a) within a reasonable geographic perimeter of the vehicle or (b) engaged in a task related to the operation of the vehicle.").
. See Simpson v. United States Fid. & Guar. Co., 562 N.W.2d 627, 629 (Iowa 1997) (" 'Courts have examined the relationship between the vehicle and the claimant, both as to geographical proximity and the orientation of the claimant's activities, to decide whether a particular claimant was "occupyingâ the insured vehicle at the time of his or her injuryâ â) (quoting Tropf v. Am. Family Mut. Ins. Co., 558 N.W.2d 158, 160 (Iowa 1997)).
. See Keefer v. Ferrell, 221 W.Va. 348, 655 S.E.2d 94, 99 (2007); Allied Mut. Ins. Co. v. West. Nat'l Mut. Ins. Co., 552 N.W.2d 561, 563 (Minn.1996); Cook v. Aetna Ins. Co., 661 So.2d 1169, 1172-73 (Ala.1995); Marcilionis v. Farmers Ins. Co., 318 Or. 640, 871 P.2d 470, 472-73 (1994).
. Fortis Benefits v. Cantu, 234 S.W.3d 642, 649 (Tex.2007); Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 158 (Tex.2003).
. Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746 (Tex.2006).
. Id. at 752.
. Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765, 774 (Tex.2007).
. Mid-Century Ins. Co. v. Kidd, 997 S.W.2d 265, 274 (Tex.1999); Laurence v. State Farm Mut. Auto. Ins. Co., 984 S.W.2d 351, 353 (Tex.App.-Austin 1999, writ denied).
. Tex.R. Civ. P. 198.3 (emphasis added).
. 193 S.W.2d 891, 893 (Tex.Civ.App.-San Antonio 1946, no writ).
. Texas A & M Univ. Sys. v. Koseogtu, 233 S.W.3d 835, 844 (Tex.2007).
. Kao Holdings, L.P. v. Young, 261 S.W.3d 60, 65 (Tex.2008).
. Am. Gen. Fire and Cas. Co. v. Vandewater, 907 S.W.2d 491, 492-93 (Tex.1995); Orange Grove Indep. Sch. Dist. v. Rivera, 679 S.W.2d 482, 483 (Tex.1984).
. Werner v. Colwell, 909 S.W.2d 866, 870 (Tex.1995).
. Tex.R. Civ. P. 97(a).
. Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 207 (Tex.1999).
. See, e.g., Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765, 768 (Tex.2007).
. See Unauthorized Practice of Law Comm. v. Am. Home Assurance Co., Inc., 261 S.W.3d 24, 40 (Tex.2008).
. See Tex. Lab.Code § 417.002; Texas Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 33 (Tex.2008).
. See Tex. Ins.Code § 1952.101(b).
. Tex. Lab.Code § 417.001(b) ("[T]he insurance carrier is subrogated to the rights of the injured employee and may enforce the liability of the third party in the name of the injured employee or the legal beneficiary.").
. See TexR. Civ. P. 198.3 ("Any admission made by a party under this rule may be used solely in the pending action and not in any other proceeding.â).
. Tex.R. Civ. P. 198.2(b) ("The responding party may qualify an answer, or deny a request in part, only when good faith requires.â).
. Tex.R. Civ. P. 198.3.
. Wheeler v. Green, 157 S.W.3d 439, 443 (Tex.2005).
. See Tex.R. Evid 902(10).
. See Tex.R. Evid. 902(4).