Reversed and Remanded and Majority and Dissenting Opinions filed July 26, 

2022.

In The

Fourteenth Court of Appeals

NO. 14-20-00562-CV

CORTNEY HILL INDIVIDUALLY AND AS NEXT FRIEND OF D.M., 

Appellant

V.

ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Appellee

On Appeal from the 215th District Court

Harris County, Texas

Trial Court Cause No. 2018-48768

OPINION

Appellant Cortney Hill (“Cortney”), individually and as next friend of her 

son D.M., filed suit against appellee Allstate Fire and Casualty Insurance Company

(“Allstate”) for its failure to pay claims under an automobile insurance policy. 

Allstate filed a traditional and no evidence motion for summary judgment, which 

the trial court granted. In a single issue on appeal, Cortney argues that the trial

court erred in granting summary judgment because she raised a genuine issue of 
2

material fact regarding whether she and D.M. were covered individuals under the 

policy. We reverse and remand.

I. BACKGROUND

The Allstate Policy

In May 2016, Catherine Hill (“Catherine”)—Cortney’s mother—renewed 

her auto insurance policy with Allstate. Regarding uninsured/underinsured 

motorists coverage, the policy protects “covered person[s]” while occupying the 

covered auto:

A. We will pay damages which a covered person is legally 

entitled to recover from the owner or operator of an uninsured 

motor vehicle because of bodily injury sustained by a covered 

person, or property damage, caused by an accident.

B. “Covered person” as used in this Part means:

1. You or any family member; 

2. Any other person occupying our covered auto;

. . . .

With regard to personal injury protection, the following provisions apply:

A. We will pay Personal Injury Protection benefits because of 

bodily injury:

1. resulting from a motor vehicle accident; and

2. sustained by a covered person.

Our payment will only be for losses or expenses incurred

within three years from the date of the accident.

. . .

C. “Covered person” as used in this Part means:

. . .
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2. Any other person while occupying your

covered auto with your permission.

“Occupying” is defined in the policy as “in, upon, getting in, on, out, or off.”

Background Facts

On October 15, 2016, Cortney borrowed her mother Catherine’s car to run 

errands. After receiving Catherine’s approval, Cortney drove out, taking D.M. and 

J.B.—her fifteen-year old “future stepdaughter”—with her. On the way home, the 

car ran out of gas on U.S. Highway 59. Cortney pulled the car over on the right 

shoulder, and then called her future mother-in-law—Evelyn Brown (“Evelyn”)—

for help.

Evelyn filled a gas can and parked behind Cortney on the shoulder. Evelyn

stood between the two vehicles to hand the gas can to Cortney. Because the gas 

tank access was toward the back of the driver’s side on the side of oncoming 

traffic, Cortney was afraid she would get hit by a car while she was filling the gas 

tank, and “pressed [her] body on the car so [she] would be as close as possible to 

avoid the passing cars.” Cortney further claimed her “body was touching the car 

while [she] was holding the gas can.” D.M. was standing between the front door of 

the passenger’s side and the concrete barrier. He was holding the door handle to 

the door when Cortney spotted a rapidly-approaching vehicle driving on the 

shoulder towards them. Cortney yelled for everyone to move. The last thing she 

saw before being knocked unconscious was the approaching car run over her foot 

as it crashed into the back of Evelyn’s car.

When Cortney woke up, she found D.M. standing in almost the same 

position as before the crash. He had laid on the ground when Cortney yelled 

“move, move, move,” and received no injuries as a result of the crash. J.B. was 

lying on the roadway near where she had been standing before, and Evelyn was 
4

lying on top of her. They were all transported to the hospital, but Evelyn died in 

the ambulance.

The Lawsuit

On July 23, 2018, Cortney filed suit against Allstate for breach of contract

and breach of duty of good faith and fair dealing, alleging that Allstate denied or 

delayed payment of the claims under Catherine’s auto insurance policy related to 

the accident. The trial court severed and abated the bad faith and extra contractual 

claims, leaving only the breach of contract claim.

Allstate filed its first traditional and no evidence motion for summary 

judgment, arguing that Cortney and D.M. were not “covered persons” because they 

were not occupying the vehicle at the time of the accident. On May 5, 2020, the 

trial court held a hearing on the motion as to Cortney’s claims only. On May 14, 

2020, the trial court granted a final motion for summary judgment as to all parties, 

dismissing all causes of action with prejudice, without specifying the grounds for 

the ruling.

1 Cortney filed a motion for new trial, which was overruled by operation 

of law. Cortney then filed a timely appeal.

II. ANALYSIS

In a single issue, Cortney argues that the trial court erred by granting the 

motion for summary judgment.

1

In the motion for summary judgment on file at the time the trial granted the motion for 

summary judgment, Allstate argued that Cortney and D.M. were not “covered persons” under the 

policy because they were not family members and they were not “occupying” the vehicle. On 

May 14, 2020, after the issuance of the trial court’s order granting the motion for summary

judgment, Allstate filed a second motion for summary judgment. In this second motion for 

summary judgment, Allstate argued that D.M. was not a covered person under the policy because 

he did not sustain any physical injuries.
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A. STANDARD OF REVIEW

When a party moves for summary judgment on both traditional and noevidence grounds, we address the no-evidence grounds first. See Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see also Carnegie Homes & Constr.

LLC v. Turk, No. 14-16-00260-CV, 2017 WL 3927290, at *3 (Tex. App.—

Houston [14th Dist.] Sept. 7, 2017, no pet.) (mem. op.). On appeal of an order of

summary judgment that does not state the grounds on which it is granted, we will

uphold the judgment on any valid ground in the motions that is properly supported

by the record. See Golden v. McNeal, 78 S.W.3d 488, 491 (Tex. App.—Houston 

[14th Dist.] 2002, pet. denied).

In a no-evidence motion for summary judgment, the movant represents that

there is no evidence of one or more essential elements of the claims for which the

nonmovant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i). The burden

then shifts to the nonmovant to present evidence raising a genuine issue of material

fact as to the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206

S.W.3d 572, 582 (Tex. 2006). Thus, in reviewing a no-evidence summary

judgment, we ascertain whether the nonmovant offered summary-judgment

evidence raising a genuine fact issue as to the essential elements challenged in the

no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206–08

(Tex. 2002).

In our de novo review of a trial court’s summary judgment, we consider all

the evidence in the light most favorable to the nonmovant, crediting evidence

favorable to the nonmovant if reasonable jurors could, and disregarding contrary

evidence unless reasonable jurors could not. Tamez, 206 S.W.3d at 582. The

evidence raises a genuine fact issue if reasonable and fair-minded jurors could

differ in their conclusions in light of all of the summary-judgment evidence.
6

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per

curiam).

The movant for traditional summary judgment has the burden of showing

that there is no genuine issue of material fact and that she is entitled to judgment as

a matter of law. See Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); see also Carnegie

Homes & Constr., 2017 WL 3927290, at *3. When, as in this case, the order

granting summary judgment does not specify the grounds upon which the trial

court relied, we must affirm the summary judgment if any of the independent

summary-judgment grounds is meritorious. See FM Props. Operating Co. v. City

of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Schultz on Behalf of Schultz v. Lone

Star Rd. Constr., Ltd., 593 S.W.3d 750, 754–55 (Tex. App.—Houston [14th Dist.]

2019, pet. denied).

B. APPLICATION

The only question before us is whether Cortney and D.M. were “covered 

persons” under the policy with Allstate. Cortney admits that she and D.M. were not 

the actual policy holders and they were not considered “family members” under 

the policy. The parties’ dispute centers on whether Cortney and D.M. were

“occupying” the covered vehicle within the Allstate policy definition of that term. 

Thus, in our review, we look to see if there is a genuine fact issue regarding 

whether Cortney and D.M. were “occupying” the vehicle during the accident.

Both parties cite to and rely heavily on United States Fid. & Guar. Co. v. 

Goudeau, 272 S.W.3d 603, 606 (Tex. 2008). In Goudeau, the plaintiff parked on 

the shoulder of the tollway, exited his vehicle, and began walking around the front 

towards the retaining wall to assist a stranded motorist. Another vehicle crashed 

into both of the stationary cars, pinning Goudeau against the retaining wall and

crushing his pelvis. See id. at 605. The applicable auto insurance policy defined 
7

“occupying” exactly as it is defined in the present case: “in, upon, getting in, on, 

out or off.” Id. at 606. Goudeau argued that he was “occupying” his vehicle 

because he was “upon it” when he was injured. Id. The Texas Supreme Court 

disagreed, concluding that, in construing insurance policies according to their plain 

language, using “the ordinary, everyday meaning of the words to the general 

public”, Goudeau was not “upon” the vehicle at the time of the accident:

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 “occupying” the vehicle at the time of the collision, even if 

afterwards he ends up partly “upon” it. We cannot ignore the context 

by focusing solely on “upon” and ignoring “occupying.” Construing 

“upon” to include the situation here would “ascrib[e] to one word a 

meaning so broad that it is inconsistent with its accompanying 

words.”

Id. at 606 (internal citations omitted).

Applying Goudeau, Allstate asserts that Cortney’s “incidental contact” with

the vehicle does not equate to her being “on” or “upon” the vehicle. However, we 

find Goudeau to be distinguishable. Goudeau was not in contact with the vehicle at 

all until after the crash; accordingly, the Texas Supreme Court concluded that “the 

plain meaning of ‘occupying’ as defined in this policy cannot be stretched to 

include Goudeau.” Id. at 608. Here, the facts are inapposite; Allstate does not deny

that Cortney had her body pressed against—and was in direct, physical contact 

with—the vehicle at the time of the accident. To determine if this level of contact 

constitutes being “upon” the vehicle, we consider the everyday meaning of the

words in the policy. See id.

The Merriam-Webster Dictionary defines “upon” as “on.” See Upon,

MERRIAM–WEBSTER, http//www.merriam-webster.com/dictionary/upon (last

visited May 13, 2022). In its first three definitions, “on” is defined as “a function

word to indicate position in contact with and supported by the top surface of,” “a
8

function word to indicate position in or in contact with an outer surface,” or “as a

function word to indicate position in close proximity with.” See On, MERRIAM–

WEBSTER, http//www.merriam-webster.com/dictionary/on (last visited May 13,

2022). Because one of the common and ordinary meanings of the word “upon” is 

that of “contact with,” it is reasonable to conclude the parties contemplated a 

construction of the word that would include actual physical contact with the 

vehicle, as occurred here. Further, the policy does not limit or restrict the meaning 

of the word “upon” in defining occupying. Hart v. Traders & General Ins., 487 

S.W. 2d 415, 419 (Tex. App.—Fort Worth, 1972, writ ref’d n.r.e.). Using the

ordinary and everyday meaning of the words in the policy, and viewing the

evidence in the light most favorable to Cortney, the nonmovant, fair-minded jurors

could differ in their conclusions regarding whether Cortney was “occupying” the

vehicle at the time of the accident. See Tex. R. Civ. P. 166a(c); Mayes, 236 S.W.3d

at 755; see also Maldonado v. Travelers Cas. Ins. Co. of Am., No. 2:20-CV-00242-

JRG, 2021 WL 977895, at *3 (E.D. Tex. Mar. 16, 2021) (concluding that

individuals were “occupying” a vehicle when they were in a continuous course of

action of getting on and getting off a covered vehicle to pick up debris off the road

even though the individuals took evasive action and were not physically touching

the vehicle at the time of the accident).

We conclude that Cortney raised a genuine issue of material fact regarding 

whether she was occupying the vehicle at the time of the accident. See Mayes, 236

S.W.3d at 755. Accordingly, the trial court erred in granting summary judgment on 

Cortney’s claim.

We next address whether D.M. was “occupying” the vehicle. The evidence 

indicates that he was holding the handle to the car door when he took evasive 

maneuvers to protect himself by laying on the roadway in close proximity to the 

car. We note once again that the policy does not limit the phrase “getting in” or the 
9

word “upon” in defining occupying. Hart, 487 S.W. 2d at 419. It is reasonable to 

conclude that the parties contemplated a construction of the word “occupying” that 

would encompass the facts here. In other words, using the ordinary and everyday 

meaning of the words in the policy, and viewing the evidence in the light most 

favorable to the non-movant, fair-minded jurors could differ in their conclusions

regarding whether D.M. was in a single course of action that falls within the 

ordinary, everyday meaning of “occupying,” i.e., “getting in, on, out or off,” the 

vehicle, even considering that D.M. took evasive actions and was not physically

touching the vehicle immediately prior to the accident. See Mayes, 236 S.W.3d at

755; Maldonado, 2021 WL 977895, at *3. There is a genuine issue of material fact 

concerning whether D.M. was “occupying” the vehicle. Accordingly, the trial court 

erred in granting summary judgment in relation to D.M.

Allstate additionally argues that we can affirm the judgment as to D.M. for 

an alternative reason. At the summary judgment hearing, Hill objected to the trial 

court’s consideration of the ground that D.M. was not injured based on her 

contention that Allstate failed to provide adequate notice of that ground before the 

hearing. In response, Allstate agreed to postpone consideration of that ground for 

at least another twenty-one days. The trial court then said that “we’ll have to redo 

the D.M. non-bodily injury at another time.” Allstate’s counsel agreed. Given those 

events, it would be improper for us to affirm summary judgment on an alternative 

ground, the consideration of which Allstate, as the movant, agreed to postpone.

The issue of D.M.’s injury or non-injury was not before the trial court when it

ruled.

We sustain Cortney’s sole issue.

2

2 The dissent addresses Allstate’s sham affidavit argument that Allstate raised in its reply

to Hill’s response to Allstate’s motion for summary judgment. However, addressing this

argument is unnecessary because Allstate does not raise the sham affidavit issue on appeal. See
10

III. CONCLUSION

We reverse the trial court’s order granting summary judgment as to both 

Cortney and D.M., and remand to the trial court for further proceedings.

/s/ Margaret “Meg” Poissant

Justice

Panel consists of Justices Jewell, Bourliot, and Poissant. (Jewell, J., dissenting).

Burton v. Prince, 577 S.W.3d 280, 291 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (noting

that appellate courts will not address issues not raised on appeal by the appellant). Furthermore,

Allstate’s argument below that Hill’s affidavit constitutes a sham affidavit because it contradicts

her earlier deposition testimony is “an objection complaining of a defect in form of [her]

affidavit.” Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.—Dallas 2006,

no pet.). Thus, even if Allstate wanted to raise the issue on appeal, the issue is not preserved

because Allstate failed to secure a ruling on its sham affidavit objection. See id.