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

D I S S E N T I N G O P I N I O N

I regret I am unable to join the court’s opinion and judgment in this case. I 

would hold that Hill and D.M. were not “occupying” the vehicle at the time of the 

incident and therefore did not qualify as covered persons under the 

uninsured/underinsured or personal injury protection coverages at issue. I would 

affirm the trial court’s summary judgment dismissing Hill’s claims. 
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A. Hill’s claims

The policy defines “occupying” as “in, upon, getting in, on, out or off.” As 

narrowed by Hill here, the determinative question before us is whether Hill was 

“upon” the vehicle when the accident occurred. 

Examining an identical policy definition in the context of a similar UM/UIM 

claim, the Supreme Court of Texas considered whether a claimant “occupied” a 

vehicle by being “upon” it. U.S. Fidelity & Guar. Co. v. Goudeau, 272 S.W.3d 

603 (2008). There, a “Good Samaritan” stopped his car on a freeway to help a 

stranded motorist. He exited his car, closed the door, and had walked around to the 

front when a third driver ran into both cars and pinned the claimant between them 

and a retaining wall. Id. at 604. The issue in Goudeau was whether the claimant 

was “upon” the vehicle when he was injured. The court held he was not and, 

therefore, he was not “occupying” the vehicle at the time of the accident. Id. at 

606.

The case on which Hill appears to rely most heavily is Hart v. Traders & 

General Insurance Co., 487 S.W.2d 415 (Tex. App.—Fort Worth 1972, writ ref’d 

n.r.e.). Hart had come to his brother’s assistance in a disabled car on the side of 

the highway and was working on the engine under the hood when another driver 

struck the car. Like here, the issue was whether Hart was “occupying” the vehicle 

by being “upon” it. The policy defined “occupying” to mean, “in or upon or 

entering into or alighting from.” Id. at 417. After studying dictionary meanings of 

“upon,” the court held that, under the usual and ordinary meaning of the word, Hart 

was “upon” the fender at the time of his injury. Key to the court’s holding was

evidence that “almost all, if not all, of his entire body weight rested upon” the car’s 

front fender at the time of the injury. Id. at 418. Hart was in fact leaning so far 
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over the fender and under the hood that he could not recall whether his feet even 

remained touching the ground. Id. at 417.

I note a decision cited by neither the parties nor the majority, Ferguson v. 

Aetna Casualty & Surety Co., 369 S.W.2d 844, 845 (Tex. App.—Waco 1963, writ 

ref’d). The Waco Court of Appeals construed the term “occupying” in the context 

of a medical payments provision. Like Hart, the policy defined the term 

“occupying” to be “in or upon or entering into or alighting from an automobile”—

again, a definition different from the provision in this case but one nonetheless 

containing the key term “upon.” In Ferguson, a woman left a beauty shop and 

walked on a board leading into the parking area, toward her car. Id. She slipped, 

grabbed the handle of a different car for support, fell off the board, and broke both 

legs. Id. She argued that she was “occupying” the car because she was “upon” it

by grabbing the door handle, but the Waco court disagreed:

We think the language employed in the coverage of the insurance 

policies reasonably plain and unambiguous; and to say that plaintiff 

was “in or upon” the automobile she had her hand on would be 

placing a distorted meaning, and unreasonably strained construction 

upon the described coverage. If plaintiff had been entering or 

alighting from the car she had her hand upon, at the time of her injury, 

a different situation would be presented. We cannot say she was “in 

or upon” the car simply because she put her hand upon it to steady her 

walk around it on the way to her own car from the beauty parlor. 

Moreover, we reject plaintiff’s contention that ‘physical contact’

alone is the test as to whether an insured is ‘in or upon’ an 

automobile.

Id. at 845-46 (emphasis added). 

In the present case, Hill argues that she was “upon” the car because she was 

in physical contact with it after she inserted the gas can nozzle into the tank and 

“pressed her body on the car” to be as close to the car as possible. Her body was 
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“touching the car” as she was filling the tank. At that moment, she saw the other 

driver’s car coming toward them and screamed to everyone to move away. 

I am constrained to conclude that Hill’s argument is foreclosed by Ferguson, 

where the court held the claimant was not “upon” the car as necessary to occupy it

when holding the car’s door handle for support. Ferguson is “writ refused” and

thus carries the imprimatur of supreme court precedent. See The Greenbook: Tex.

Rules of Form, app. E (Tex. Law Review Ass’n, 13th ed. 2015) (in cases after 

1927, “writ refused” denotes that the judgment of the court of appeals is correct,

with “[s]uch cases hav[ing] equal precedential value with the Texas Supreme 

Court’s own opinions”). Hart is distinguishable because the claimant’s entire body 

weight was on top of the car as he worked under the hood. We are bound by 

Ferguson and Goudeau, as regrettable as that outcome may be on these facts.

Hill also argues that she was “on” the car. Under a proper reading of the 

policy’s definition, however, the reference to “on” means “getting on.” The

gerund “getting” in the phrase “getting in, on, out or off” modifies all the 

subsequent terms in the list. See Goudeau, 272 S.W.3d at 606; McDonald v. S.

Cty. Mut. Ins. Co., 176 S.W.3d 464, 472 (Tex. App.—Houston [1st Dist.] 2004, no 

pet.). Hill presented no summary judgment evidence that she was “getting on” the 

car at the time of the accident. 

For these reasons, the court errs in reversing the judgment as to Hill’s 

claims.

B. D.M.’s claims

Hill also argues that a genuine and material fact question exists whether 

D.M. was “upon” or “getting in” the car because, according to Hill, D.M. was in 

the process of moving back into her car. Hill says this is shown because D.M. 
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stated in his declaration that he was holding the door handle when Hill shouted at 

him to move away. 

Here again, I must reject Hill’s contention that D.M. was “upon” and thus 

occupying the vehicle by “holding the door handle” when Hill shouted for him to

move away. See Ferguson, 369 S.W.2d at 845-46. I have no quarrel with 

dictionary definitions of “upon,” but dictionaries do not control over supreme court 

jurisprudence.

In my view, Hill’s alternative argument that D.M. was “getting in” the 

vehicle when the accident occurred is insufficient to preclude summary judgment 

on this record. Hill again relies on the fact that D.M.’s hand was on the door 

handle before being told to move away. Hill also appears to rely on statements in 

her affidavit to the effect that D.M. was “in the process of transferring back into 

my car” and, when Hill screamed, D.M. was “about to enter the car.” 

I disagree that this evidence gives rise to a genuine and material fact issue 

for two reasons. First, the two statements in Hill’s affidavit suggesting that D.M. 

was “transferring” to her car or “about to enter the car” conflict with Hill’s prior 

sworn testimony. In her deposition six months earlier, Hill testified that her car 

doors were not open at the moment she screamed, and that she did not know 

whether D.M. was “getting ready to get in the car” or “just walking to the car.” 

Allstate alerted the trial court to this inconsistency in its summary-judgment reply, 

invoking the so-called “sham affidavit rule.” “Under Rule 166a(c), a trial court 

may conclude that a party does not raise a genuine fact issue by submitting sworn 

testimony that materially conflicts with the same witness’s prior sworn testimony, 

unless there is a sufficient explanation for the conflict.” Lujan v. Navistar, Inc., 

555 S.W.3d 79, 87 (Tex. 2018). The statements contained in paragraphs 10 and 18 

of Hill’s affidavit conflict materially with her prior deposition testimony, and she 
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offered no explanation for the inconsistency. Thus, the trial court could have 

disregarded those statements as not presenting a genuine fact issue on whether 

D.M. was “getting in” the car. Id. Though the trial court did not state that it was 

disregarding the conflicting portions of Hill’s affidavit, it validly could have done

so under Lujan. We should indulge the presumption that the trial court disregarded 

the conflicting testimony as failing to create a genuine fact issue when, as here, the 

movant challenged the conflicting evidence based on the rule, the summary 

judgment order is general in nature and does not state otherwise, and the appellant

has not challenged rule’s application on appeal. 

In any event, crediting all the statements in both Hill’s and D.M.’s affidavits, 

the evidence viewed in the light most favorable to the non-movants does not give 

rise to a genuine issue of material fact that D.M. was “getting in” the car at the 

relevant time. Reading Hill’s affidavit and deposition together, she told D.M. to 

move away from the car before he entered it, and the car doors undisputedly were 

not open when Hill told him to move away. Standing next to the car—even 

touching the door handle—without taking action to open the door and enter the 

car’s interior does not constitute “occupying” the car under Texas law. This is so

regardless whether D.M. had just walked toward the car, and even assuming he 

intended to enter it. 

In its brief, Allstate asserts a separate reason why we should affirm the 

summary judgment as to D.M. The justices in the majority reject this alternative 

argument, and I agree. Allstate moved for summary judgment on D.M.’s claims on 

the additional ground that D.M. suffered no bodily injury as a result of the 

accident. Allstate attached the portion of Hill’s deposition in which she testified 

that D.M. suffered no physical injuries. Under the policy terms, for D.M. to be 

eligible for UM/UIM or PIP coverages, he must have sustained a “bodily injury” as 
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a result of the accident. The Supreme Court of Texas has held that “bodily injury” 

means “an injury to the physical structure of the body” and not “purely mental, 

emotional, or spiritual harm.” Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 

819, 823 (Tex. 1997); see also Ginn v. Tex. Farmers Ins. Co., No. 03-96-00264-

CV, 1998 WL 717120, at *6 (Tex. App.—Austin Oct. 15, 1998, no pet.) (not 

designated for publication) (concluding that the trial court properly granted the 

directed verdicts when there was no physical injury as a result of the accident).

Hill neither responded to this ground nor offered controverting evidence in 

her summary-judgment response raising a fact question whether D.M. suffered 

bodily injury as a result of the accident. The trial court’s order did not specify the 

grounds on which the court rendered judgment, and Hill does not contest D.M.’s

lack of injury on appeal. Because Allstate agreed to postpone consideration of this 

argument, however, I agree with the justices in the majority that we cannot affirm 

the judgment as to D.M. on the ground that he was not injured based on the record 

presented to us.

/s/ Kevin Jewell

Justice

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