Reversed and R e manded and Majority and Dissenting Opinion s filed Ju ly 26 ,

20 2 2

.

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 CA SUALTY INSURANCE COM PAN Y , 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 a nd D.M. we re not “ occupying ” the vehi c le at th e time of the
incid ent and ther efore did not qualify as covered per s on s under the uninsured/underinsured or personal injury pro tection coverages at issue

. I would
affirm the trial court ’ s sum mary judgment dismissing H i ll ’ s claims

.2

A. Hill ’ s claims

The policy defines “occupying ” a s “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.

Examin ing an id enti cal po licy definition in the context of a similar UM/UI M

c laim
, t he Supreme Court of Texas considered whether a claimant “ occupied ” a

v ehi cle by being “ upon ” it

. U.S. Fid elity & Guar. Co. v. Goudeau , 272 S.W.3d 603 (2008). There, a “ Good S amaritan ” s topp ed his car on a freeway to help a
stranded mot or ist. He e xited his car, closed the d oor, and had walked around to the
fr ont when a th ird driver ran into both ca rs and pinned the claimant betw e en them

a nd a retaining wall. Id

. at 604. The issue in Go udea u was wh ether the claimant

was “ upon ” the vehi cle when he was injur ed. The court hel d he was not and, therefore, he was not “ occupying ” t he vehicle at the time of the accident. Id

. at 606.

T he case on whi ch Hill appear s to rely most heavily is Hart v . Tr aders &
Gen eral Ins urance Co

. , 487 S.W.2d 415 (Te x. App.

— Fort Wort h 1972, writ ref ’ d n.r.e.). Hart had come to his brother ’ s assist a nce in a disable d car on the side of the highway a nd was working on the eng ine under the hood when another driver
struck th e ca r

. Like here, the issue w as w h ether Har t was “ occupying ” the vehi cle by being “ upon ” it. The p olicy defin ed “ o ccupy ing ” to mean, “ in or upon or entering in to or alighting from. ” Id

. at 417. After st udying dictionary meanings of

“ upon, ” th e court h e ld t hat
, under the usu al and ordinary m eanin g of the word, Hart

wa s “ upon ” the fender at th e time of his injury. Key to the court ’ s holding was
evidence tha t “ almost all , if not all , of his entire body weight rested upon ” the car ’ s front fender at the tim e of th e injury

. Id

. at 418. Hart was in f act leaning so far3

ove r the fender and under the hood that he could not recall whether h is feet even

r emained touching the groun d. Id

. at 417. I note a decision cited by neither the part ies nor the majority
, Fer gus on v

. Aetna Cas ualty & Sur ety Co ., 369 S.W.2d 844, 845 (Tex. App.

— Wa co 1963, writ ref’d)

. T he Waco Court of Appeals construed the term “occupying” in the context
of a m edical payments provision

. Like Hart , t he policy defined the term “occupying” to be “in or u pon or entering into or aligh ting from an automobile ”

— again
, a definition different from the provision in this case b ut one nonetheless containing the key term “ u pon

. ” In Ferguson , a woman left a beauty shop and walked on a board leading into the parking area , toward her car. Id

. S he slipped, grabbed the handle of a different car for suppor t, fell off the board, and broke both legs. Id

. She argued t hat she was “occupying” the car because she was “ upon ” it by grabbing the door handle , but the W aco co urt dis agreed : We think the lang uage employed in the coverage of the insurance policies reas onably plain and unambiguous; and to say that plaintiff

was “in or upon” the automobile she had her h and on would be placing a distorted meaning, and unreason ably stra ined construction upon the de scribed coverage. If plaintiff h ad been entering or alighti ng from the car she had her hand upon, at the time of her in jury, a different situation would be pres ented. We cannot say she was “in or upon” the car simply because she put her hand upon it to s teady her walk around it on the w ay to her own car from the beauty parlor. Moreover, we reject plaintiff ’ s content ion that ‘ physical contact ’ alone is the test as to w hether an insured is ‘ in or upon ’ an automobile

. I d

. at 84 5

- 46 (em

phasis added)

.
I n t he presen t case, Hill argues that she was “ upon ” the car bec ause she was in physical contact with it after she inserted the ga s can nozzle into the ta nk a nd

“ pressed her body on the car ” to be as close to the car as pos sibl e. Her body was4

“ touch ing the car ” as she was filling the tank. At th at moment, she saw the other
driver ’ s car coming toward the m and screamed to everyone to move away.

I am co nstrained to conclude that Hill ’ s argument is f oreclosed by Fergu son ,

w here t he cou rt held the cla imant was not “ upon ” the car as necessary t o o ccupy it when holding th e car ’ s door handle for support

. Fer guson is “ writ refused ” and
thus carries the imprimatur of sup reme court precedent. See The Greenbook: Tex

. Rules of Form
, app. E (Te x

. Law Review Ass ’ n , 1 3 th ed. 20 1 5) ( i n cases after 1927, “writ refused” denotes that the j udgment of the court of appeals is correct, with “[s]uch cases hav[ing] equal precedent ial value with the Texas Supreme
Court ’ s own opinions ”)

. Hart i s d istingu isha ble because the claimant ’ s entire body weigh t was on top o f the car as he worked unde r the hood. W e ar e bound by Ferguson and Gou deau , as regrettable as that outcome may be on these fa cts

. Hill also argues that she was “ on ” the car. Under a p roper re adin g o f the policy ’ s def

inition, however, the r efere nce to “ o n ” means “ getting on. ” The gerund “ getting ” in the phrase “ getting in, on, out or off ” modifies all the subsequent terms in th e list. See Goudeau , 272 S.W.3d at 606; McDonald v. S.
C ty . Mut. I

ns. Co. , 176 S.W.3d 464, 472 (Tex. App.

— Ho uston [1st Dist.] 20 04, no pet.). Hill present ed no summary judgment evidence that she was “ getting on ” the
car at the tim e of the accident.
For these reasons, the court errs in reversing the ju dgment as to Hill ’ s cl aims.

B. D.M. ’ s claims

Hill al so argue s that a genuine and material fact question e xists whether
D.M. was “ upon ” or “ ge tting in ” the car because , accor ding to Hill, D.M. was in the process of moving back into her car

. Hill says th is is shown b ecause D .M.5

stated in h is declaration that he was holding the do or h andle when Hill shouted at
h im to move away.
Here again, I must reject Hill ’ s contention that D.M. was “ upon ” and thus

occ upying the veh icle by “ holding t he door handle ” whe n Hill shoute d f or hi m to
move away. See Ferguson , 369 S.W.2d at 845

- 46. I have no qua rr el with
d ictionary definitions of “ upon , ” but di c tionaries do not control over supreme court jur isprudence

. In my v iew, Hill ’ s a l ternative argument that D.M. was “ get ting in ” the
vehicle when the accident occurred is insufficient to preclude summary judgment
on this record. Hill again r elies on the fact that D. M. ’ s ha nd was on the door
handle before being told to move awa y. Hill also appears to rely on statements in
her affidavit to the effe c t 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 eviden ce gives rise to a genuine an d material fact issue
for t wo reasons. First
, the two stat ements i n H i ll ’ s affidavit suggesti ng 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 testif ied that her car doors were not open at the moment she s creamed, and that she did not know
whether D. M. was “ getting ready to get in the car ” or “ just walk ing to the car. ”
Allstate alerted the trial co urt to th is inconsistency in its summary

- judgment reply
, invoking the so

- called “ sham a ffidavit rule. ” “ Under Rule 16 6a(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 ex planation for the conflict. ” L ujan v. Navi s tar, Inc. , 555 S.W .3d 79, 87 (Tex. 2018). The statements con tai ned in para graphs 10 and 18
of Hill ’ s affidavit con flict materially with her prior deposition te stimony, and she6

offered no explanation for the inco nsistency. T hus, t he trial cou rt could hav e disregarded those statements as not presenting a genuine fact issue on whether
D.M. was “ getting in ” the car. Id

. T hough t he trial court did not state that it was disregarding th e conflicting portions of Hill ’ s affidavit, it validly could h av e done

so under Lujan . We should indulge the presumption that the t rial court disregarded the conflicting testimony as failing to create a ge nuine fact issue when , as here, the

mova nt cha llenged the conflicting evid ence ba sed on the rule, the summary ju dgment o rder is general in nature and does not state otherwise, and the appellant has not challenged rule ’ s application on appeal.
In any event, cre d iting all th e statements in both Hill ’ s and D.M. ’ s affidavits,
the ev idence viewed in the light most favo rable to the non

- movants does not give rise to a genuine issue of material fa ct that D.M. was “ getting in ” the car at the
relevant tim e. Reading Hill ’ s affidavit and deposition together , she told D.M. to

move awa y from the car before he en tered it
, and th e car do ors undisputedly were not open when Hill told him to move away. S ta nding 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 “ occ u pying ” the car under Texas law. Th is is so

r eg ardless whether D.M

. had just walk ed toward the car
, and even assuming he
intended to enter it

. In its br ief, Allstate asserts a separate re ason why we should affirm the summary j udgment as to D.M. The justices in the ma jority reject this al ternativ e

ar gument, and I agree. Allstat e moved for summary jud gment on D .M. ’ s claim s on the additi onal ground that D.M. suffered no bod ily injury as a result of the
acci dent. Allstate attached the portion of H ill ’ s deposition in which she testified
that D.M. su ffer ed no physical injur ies. Under the policy terms, f or D.M. to be eligible for UM/ UIM or PIP coverages , he must have sustained a “bodily injury” as7

a result of the a ccident. T he Supreme Court of Texas has held that “bodily injury” means “an inj ury to t he p hysical structure of the body ” and not “ purely mental, emotional, or spir itual har m.” 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.

— Au stin Oct. 15, 1998, no pet.) (not designated for publication) ( concluding tha t the trial court properly granted the
d irected ver dicts when there was no physical injury as a resul t of the accident)

. Hill neither respond ed to this ground nor offered contr ove rtin g evidence in
her summary

-

judgment response raising a fact question wheth er D.M. suffered bodily injury a s a result of the a ccident . The trial court ’ s order did not s pecify the

g rounds on which the court rendered judgm ent , and Hill does not co ntest D. M. ’ s lack of injury on appeal

. Because Allstate agreed to postpone cons ideration of this argument , however, I agree with the j u stices in the majo rity that we can not affir m the judg ment as to D.M. on t he ground that he was not injured based on the record

prese nted to us.

/s/ Kevin Jewell Justice

P a nel c onsi sts of Justice s Jew el l
, Bourliot, and Poissant

. ( Po issant, J., majority).