Reversed and Remanded and Majority and Dissenting Opinion s filed July 2 6

,

2022.

In The



## Fourteenth Court of Appeals

NO. 14

- 20

- 00562

- CV

CORTNEY HILL INDIVID UALLY AND AS NEXT FR IEND OF D.M.

, Appellant

V.

ALLSTATE FIRE AND CA SUALTY INSURANCE COM PANY , A ppellee

On Ap p e al from the 2 1 5th District Court

Harris County, Texas

Trial Court Cause No. 2018

- 48768

OPINION

Appellant Cor tney Hill ( “ Cortney ” ) , individually and as next frien d of her

son D.M

., filed suit against appellee Allstate Fire and Casualty Ins ura nc e Company

( “ Allstate ”) for its failure to pay claim s under an automobile i nsurance policy.

Allstate fi led a traditional and no evid ence motion for summary judgment, which

the trial court granted. In a single issue on appeal

, Cortney argues that the tr ial

c ourt erred in granting summary judgment because she raised a genuine issue of2

material fact regarding whether she and D.M. were covered individual s under t he

policy. We reverse and remand

.

I. B ACKG ROUND

The Allstate Pol icy

In May 2016, Catherine Hill ( “ C ath er ine ” )

— Cortney ’ s mother

— re newed

her auto insurance policy with Allstate. Rega rding uninsured/underinsured

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

covered auto :

A

. We will pay damages which a covered person i s leg all y

entitled to recover from the ow ner or operator of an uninsured

motor vehicle because of bodily injury sustained by a covered

person , or property damage , caused by an accid ent.

B

. “ Covered pe rson ” as used in this Part means:

1. You or any family m ember ;

2. An y o ther person occupying our co vered auto ;

. . . .

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

A

. We will pay Per sonal Injury Protecti on benefits because of

bodily injury:

1

. resulting from a motor vehicle accident ; and

2. s usta ined 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:

. . .3 2. Any other person while occupying your

cover ed au to w ith your permission.

“ O ccupying ” is defined in the policy as “ in, upon, getting in, on , ou t, or off. ”

Background Facts

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

errands. After rece iving C atherin e ’ s appro v al, Cortney dr ove out , taking D.M. and

J.B.

— her fifteen

- year old “ future stepdaughter ”

— with her. O n the way home, the

car ran ou t of gas on U.S. Highway 59. Cortne y pulled the car over on the ri ght

shoulder , and then ca lled her future mother

- in

- law

— Evelyn Brown ( “ Eve lyn ” )

—

for help

.

Evelyn filled a gas can and parked behind Cortney on the shoul d er

. Evelyn

stood between the two v ehicles to hand the gas can to Cortney. Because the gas

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

traffic

, Cor tney 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 pas s ing car s. ” Cortn ey fu rther claimed her “ body was touching the car

while [she] was h old ing the gas can. ” D.M. was s tanding between the fro nt doo r of

the passen ger ’ s side and the concret e barrier

. He was holding the door handle to

the door when Co r tney s po tted a rapidly

- approaching vehicle driving on the

shoulder towards them

. Cortney yell ed for everyone to move . The last thing she

saw before being knocked uncon scious was the approac hing car run over her foot

as i t crash e d into the back of Evelyn ’ s car.

When Cortney woke up

, she found D.M. standing in almost the same

position as before the cr ash. He ha d laid on the ground when C ortney yelled

“ move , move, move

, ” and received no inju r ies as a result of th e crash. J.B. was

lying on the roadway near where she had been st anding before, and Evelyn was4

lying on top of her. T hey were all transport e d t o the hospital

, b ut Evelyn died in

the ambulance

.

The Law s uit

On July 23, 2018, C ortney filed suit again st Allstate for breach of contract

and breach of duty of good faith and fair dealin g , alleging that Allstate de nied or

delayed payment of the claim s und er Catherine ’ s auto insurance policy related to

the accid e nt

. 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 summa ry

judgment , ar g uing that Cortney and D. M. wer e not “ covered persons ” because they

were not occupyin g the ve hicle at the time of the accident. On May 5, 2020, t he

trial court held a hearing on the motion as to Cortney ’ s claims only

. On May 14,

2020, the tr ial court granted a final m otion f or summary ju dgm ent a s 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, w hich was ov erruled by operation

of law. C o rtney the n filed a t i m ely app eal.

II. A NALYSIS

I n a si n gle issue, Cortney argues that the trial court erre d by granting the

motion for su mmary judgment

.

1 In t he motion for summary judgment on file at the time th e trial granted the motion for

summary judgment, Allstate ar gued that Cortney a nd D .M. were not “ cov ered person s ” under the

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

May 14, 2020, after the issuance of the t ria l court ’ s order granting the m otion for su mmary

judgment, Alls tate filed a se cond motion for s umma ry j udgment

. In thi s second motion for

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

he d id not sust ain any physical injuries.5

A. S TANDA RD OF R EVIEW

When a party moves for summary judgment on both tradit ional and no

evidence grounds, we add res s the no

- evi dence g r ounds first. See Ford Motor Co. v.

Ridgway

, 135 S.W.3d 5 98, 600 (Tex. 200 4) ; 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.)

. O n appeal of an orde r of

summary judgment that does not state the grounds on w hich 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.

— Ho uston

[14th Dist.] 2 002, 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 b urden of proof at trial. Tex

. R. Civ. P. 166a(i). Th e burde n

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

fact as to the elements sp ecified in the motion. Mack Trucks, Inc. v. Tamez

, 206

S.W.3d 572, 582 (Tex. 2006). Thus, i n reviewing a no

- evid ence summ ary

judgment, w e ascer t ain whether the nonmo vant 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.

, 7 3 S.W.3d 193, 206

– 08

(Tex. 2 002).

In ou r d e novo revie w of a t r ial court ’ s summary judgment, we consider all

the evidence in the light most favorable to the nonmovant, cred iting evidence

favorable to the nonmovant if reasonable jurors could, and disregardi ng contrary

evidence unless reasonable jur ors could no t. Tame z

, 206 S.W.3d at 582. The

evidence raises a genuine fact issue if reasonable and fair

- minded jurors could

diffe r in their conclusions in light of all of the summary

- judgment evidence.6

Goodyear Ti re & Rubber Co. v. Mayes

, 23 6 S.W.3d 75 4, 755 (Tex. 20 07) (pe r

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 Fran kfort Stei n & Lipp

Adviso rs, In c

. 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 u pon which the trial

court re lied, we m ust affirm the summar y judgment if any of th e 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

Sta r Rd. Constr., Ltd.

, 593 S.W .3d 750, 7 54

– 55 (Tex. App

. — Hous t o n [14th Dist.]

2019, pet. denied)

.

B. A PPLICATION

The only question before us is whether C ortney and D.M. we re “ covered

persons ” under the policy with Alls tate. Cortney admits that she and D.M

. were not

the actual policy holders and th ey were not cons i der ed “ family members ” under

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

“ occupy ing ” the covered vehicle with in the All state policy definition of that term

.

Thus, in our review, we look to see if there is a ge nu ine f act i ssue re g arding

whe ther Cort ney and D

. M

. were “ occupying ” the vehicle during the accident.

B oth 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 o n

t he shoulder of t h e t ollway , exited his vehicle, and began walking a round the front

towards the retai ning wall to assist a st randed m otorist

. Another vehicle c rashed

into both of th e stationary car s, pinning Goudeau again st the retaining wall and

c rushin g h is pelvis. S ee i d

. a t 605. The applicab le auto insurance policy defined7

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

ou t or off

. ” Id. at 606. Goudeau a rg ued that he was “ occupying ” his vehicle

because he was “ upon it ” when he wa s in j ure d. I d. The T e xas Su preme Court

disagreed, concluding that

, in construing insurance policies according to their pla in

la nguage, using “ the ordinary, everyday meaning of t he word s to the general

public ”

, G oudeau was not “ upon ” the vehi cle a t the ti me of t he accident :

But a dri ver 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 col lision, even if

afterwar ds h e ends up pa rtly “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 inconsist ent with its accompanyin g

wo rds.”

Id. a t 606 (i n tern a l c itations omitted)

.

Applying Goudeau

, Alls tate asserts that Cortney ’ s “ incidenta l contact ” with

t he vehicle does not equate to her being “ on ” or “ upon ” the vehicle

. However, we

find G oudeau to be distinguisha ble

. Goude au w a s n ot in co nta ct with the vehicle at

all until after the crash; a c cordingly, the Texas Supreme Court concluded that “ the

plain meaning of ‘ occupying ’ as d efined in t his policy cann ot be stretched to

includ e Gou d eau

. ” Id. at 608 . Here, the fa cts are in appos ite ; Allsta t e does not deny

that Cortney had her body pressed against

— and was in direct, physica l contact

with

— the vehi cle a t the time of the acci dent

. To determine if this level of contact

constitutes bei ng “ upon ” the vehicle, we con sider t he everyda y mea nin g of the

wo rds in the p olicy. See id.

T he Merriam

- Webster Dic t i onary d efines “u pon ” as “on. ” See Upo n

,

MERRIAM

– WEBSTER

, http//www.merriam

- webster. com/dictionary/ upon (last

visited May 13

, 20 22 ). In its first three definitions, “ o n ” is def ined as “ a func tio n

word t o i ndic ate positi on in c ontact with and supported by the t op surface of

, ” “ a8

function w ord to indicate position in or in contact with an outer surfac e

, ” or “ as a

function wor d to indicate positi on in close proximity w ith

. ” See On

, MERRIAM

–

W EBSTE R

, http//ww w.m erriam

- we bster.com/dictionary/ on (last visited May 13

,

20 22 ). B e cause one of the common and or dinary meanings of the word “ upon ” is

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

construction of the word that wou ld inclu de actual physical contact with the

vehicle , as occurred here. Fur ther

, the policy does not limit or rest rict the meaning

of the word “ upon ” in defining occupying

. Hart v. T raders & G eneral Ins. , 487

S.W. 2d 415, 419 (Tex. App.

— For t Wor th, 1972 , writ ref ’ d n.r.e.)

. Using the

ordinary and everyda y meaning of the words in the p olicy

, and viewing the

evidence in the light most favorable to Cortney, the nonmovant, fair

- minded jur or s

could diffe r i n their conclusions regard ing whether Co rt ney wa s “ occupyin g ” the

vehi cle at the time of the accident

. Se e Tex. R

. Civ. P. 166a(c) ; M ayes

, 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 t ha t

indi viduals wer e “ occ upying ” a vehicl e when they were in a co ntinu ous course of

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

even though the in di viduals took evasive action and were not physically touching

the v eh icle a t the time of the accident )

.

W e conclude that Cortney r ai sed a genuine issue of material fact regarding

whethe r she was occ upying the vehicle at the time of the a c cident

. See M ayes

, 236

S.W.3d at 755

. Accordingly, t he trial court erred in granting summar y judgment on

Co rtn ey ’ s claim

.

W e n ext addr ess w he ther D.M. was “ occupying ” the vehicle. The evidence

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

maneu vers to protect himsel f by laying on t he ro adw ay in c lose proximity to the

car

. We note on ce again that the policy does not limit the phra se “ getting in ” or the9

word “ upon ” in defining occupying

. Hart , 487 S.W. 2d at 419

. I t is reasonable to

conclude that the parties con templat ed a constructio n of the word “ occupying ” that

would encompass the f

acts h ere. In other words, u sing the ordinary and everyday

meaning of the w ords in the p olicy

, and viewing the evidence in the light most

favorable to the non

- movant

, fair

- minded juror s c ould diffe r in t heir con clusions

r egarding whether D.M. was in a si ng le course of a ction that falls within the

ordinary, everyday meaning of “ oc cupying, ” i.e., “ getting in, on

, out or off

, ” the

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

to uch ing the v ehicle immediately prior to the a ccid ent

. S ee M ayes

, 236 S.W.3d at

755 ; M aldonado

, 2021 WL 977895

, at *3

. There is a genuine issue of material fact

concerning wh ether D.M

. was “ occupying ” the vehicle

. Accordingly, t he trial court

erred in granti ng summary judgm en t i n r elation t o D.M.

A l lstat e additionally argu e s that we can af fir m the judg ment as to D.M. for

an alternative reason

. A t the summary judgment he aring, Hill object ed to the trial

court ’ s consider ation of th e ground that D .M. was not inju red based on her

contention that Allstate fail ed to provide adequate notice of tha t ground b efore the

hearing. In response, All state agree d to post pone consideration of that ground for

at least another twenty

- one days. T he trial co urt then said that “ we ’ ll have to re do

the D.M. non

- bodily inju ry at an other time. ” Allstate ’ s counsel agre ed. Given those

events, it would be i mproper for us t o affirm summary judgment on a n alternative

ground

, the consideration of which Allsta te, as the mo vant

, agreed to postpone

.

The is sue of D. M

. ’ s injury or non

- inju ry wa s not bef ore the trial court when it

ruled

.

We sustain Cortney ’ s sole issue

. 2

2 The dissent addresses Allsta te ’ s sham affidavit argument th at Allstate raised in its reply

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

argument is unnecessary because Alls tate does not raise the sham affidavit issue on appeal. See10 III. C ON CLUSION

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

Cortne y and D.M., and re m and t o th e trial court for further proceedings

.

/s/ Ma rga

r et “ Meg ” Poissant

Justice

P a nel c onsi sts of Justice s Jew ell

, Bourliot, and Poissant

. (Jewell, J. , dissent ing).

Burton v. Princ e

, 577 S.W.3d 280, 29 1 (Tex. App.

— Houston [14th Dist.] 20 1 9, 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 constitute s a sham affidav it be cause it co ntradicts

h er 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 ra is e the issue on appeal, the issue is not preserved

because Alls t ate failed to secu re a ruling on its sham affidavit objection. See id.