### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00684- CV

P rogre ssive County Mutual In surance Com pany, Ap pellant

v. Edw in E m enike, Appellee

F ROM CO UNTY COURT AT LAW NO . 1 O F TRAVIS CO UNTY NO. C-1 -CV- 16- 0024 71, H ONO RAB LE TO DD T. WO NG, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellee Edwin Emenike sued appellant Prog ressive County Mutual I nsuranc e Company (Prog ressive) afte r it denied E m en ike’s claim for uninsured/under insured motorist benef its under his automobile insu ra n ce p o l icy

. After both parties moved for summ ary judgme nt

on the issue of cover ag e, the trial court g rante d Emenike’s motion for summary judgme nt and denied Prog ressive’ s m otion for summary judgme nt. Be cause the summary -judg ment rec ord establishes

as a matter of law that Emenike’s claim is excluded from covera g e by t h e t er m s of t he poli cy , we will rever se the trial c ourt’s judg ment and re nder judg ment in favor of Prog ressive.

BACK GR OUND The unde rly ing f

acts pe rtinent to this appea l a re undisputed. On or a

bout March 9, 2014, Emenike was driving a white 2006 Dodg e Gra nd Carava

n when he wa s struck head- on by another vehicle. Emenike sustained a head injury as a re s ult of the impact, was transporte d to an ear

by hospital, and later underw ent neurosur g ery to addre ss his injuries. Emenike lat er s et t l ed with the tortfe a s o r d

r iv e r ; h oweve r, Emenike’s bodily injury damag es exceede d the amount available under the tortfea sor driver ’s automobile insuranc e policy

.

At t h e time of the acc ident, Emenike was insured by Prog ressive under a s t an d ar d T e xa s Au to I

n s u r a n c e Po li c y ( th e “ Pr o g r e s s iv e Po li c y ” o r th e “ Po li c y

” )

. E me n ik e o w n e d f

o u r v e h ic le s identified on the Pro gressive Policy ’s decla rations pag e as “cove red autos.” The Dodg e Gra nd Carava n, which Emenike lease d from Austin Cab, I nc. and opera ted as a taxi cab, was not one of the vehicles identified as a “c o v ere d vehicle” on the P olicy

. Neve rtheless, Emenike made a claim on th e Po li c y f

o r u n in s u r e d /u n d e r in s u r e d mo to r is t ( U I M ) b e n e f

it s in th e a mo u n t o f $ 5 0 , 0 5 5

. Pr o g r e s s iv e denied Emenike’s claim for UI M benef its, c iting the Policy ’s exclusion for bodily injury sustained while using or occupy

i n g a m o t o r vehicle, other than a “cove red auto,” that is “ava ilable for the reg ular use” of the insure d.

Emenike filed suit ag ainst Prog ressive alleg ing that his claim for damag es fell within the scope of cover ag e for UI M benef its under the Po l i cy an d that Prog ressive’ s failure to pay his claim constituted a brea ch of contra ct. Emenike subsequently filed a motion for summary judgme nt

on his c laim, a sserting that as a matter of law Prog ressive wrong fully denied his claim beca use the Dodg e Gra

nd Carava

n was not “ava ilable for [hi s] reg ular use.” I n support of his motion, Emenike attache d a copy of a portion of the Policy ; Prog ressive’ s response s t o h i s re q u est s for admission; Austin Cab’s objections and response s to a deposition by written questions, including a co p y of Emenike’s “I ndepende nt Contractor/Dr iver Ag ree ment” with Austin Cab; and excerpt s from his oral deposition. Prog ressive then filed its own motion for summary judgme nt on the cover ag e issue,

2attaching a copy of the entire Policy along with Emenike’s deposition and arg uing that the summary judgme nt rec ord conclusively establishes that Emenike’s claim is barr ed under the Policy ’s “re g ular use” e x clusion.

T he trial court g rante d Emenike’s motion for summary judgme nt and d en i ed Prog ressive’ s motion. This appea l followed. 1

STANDARD OF REVIEW We revie w a trial court’s ruling on summary judgme nt de novo. Traveler’s Ins. Co. v. Joachim , 315 S.W .3d 860, 862 (Tex. 2010). Summary judgme nt is proper when the summary judgme nt evidenc e shows that there are no disputed issue s o f m at er i al fac t and that the m ovant i s entitled to judgme nt as a matter of law. Tex. R. Civ. P. 166a(c ). I n revie wing a trial court’s ruling

on summary judgme nt, we take as true all evidenc e favor able to the nonmovant, and indulge ever y

rea sonable infere nce and resolve all doubts in the nonmovant’s favor

. Provident Life & Acc

. Ins. Co.

v. Knott , 128 S.W .3d 211, 215 (Tex. 2003). When, as in this case , both p ar t i es file competing motions for summary judgme nt on overla pping issues and the trial court g rants one party ’s motion and denies the other, we consider all the summary -judg ment evidenc e and issues prese nted, and, if the trial court err ed, we rende r the judgme nt the trial court should have rende red. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005).

The parties later stipulated in w riting to c erta in f acts that had been left unresolved by the 1 trial court’ s summary -judg ment ruling , including that “[Emenike’s] bodily injury damag es ca

used b y th e c a r c r a s h w it

h th e u n d e r ly in g to r tf e a s o r . . . e xc e e d e d a ll a

v a il a b le , a p p li c a b le li a b il it y c o v e r a g e by more than $50,055.00.” Ba sed on the s tipulated fac ts, the parties filed a joint motion for entry of judg ment. The trial c ourt g rante d the motion and signe d a fina l judgment on Oc tober 5, 2017. 3To the extent resolution of this appea l require s us to interpre t the Prog ressive Policy ,

we interpre t the Policy as we do other contra cts. See Great Am. Ins. Co. v. Primo , 512 S.W .3d 890, 892 (Te x . 2017). That is, we construe insurance policies “using ordinary rules of contra ct interpre tation” t o asce rtain t he parties’ i ntent as reflec ted i n the t erms o f t he poli cy itself

. Nassar

v. Liberty Mut. Fire Ins. Co. , 508 S.W .3d 254, 257 (Tex. 2017) (quoting Gilbert Tex. Constr., L.P.

v. Underwriters at Lloyd’s London , 327 S.W .3d 118, 126 (Tex. 2010)). “When i n t er p re t i n g an insur an ce co n t rac t, we consider all of its parts, rea d all of them toge ther, and g ive eff ect to all of them.” Gree ne v. Farmers Ins. Exc h ., 446 S.W .3d 761, 766 (Tex. 2014) (citing Forbau v. Aetna Life Ins. Co. , 876 S.W .2d 132, 133 (Tex. 1994)).

ANALYSIS I n one issue on appea l, Prog ressive asser ts that the trial court err ed in g ranting Emenike’s motion for summary judgme nt and deny ing Prog ressive’ s motion for summary judgme nt on the over lapping issue of cove rag e.

Part I I I of the Prog ressive Policy is entitled “Un insured/Under insured Motorist Coverag es” a

nd provides:
[P r o g r e s s iv e ] w il l p a

y f o r d a ma g e s th a t a n in s u r e d p e r s o n is le g a ll y e n ti tl e d to r e c o v e r from the owner or opera tor of an uninsured motor vehicle beca use of bodily injury : 1. sustained by

an insured pe rson; 2. cause d by

an ac cident; and 3. ari s i n g o u t of the owner ship, maintenanc e, or use of an uninsured motor vehicle.

4There is no dispute t h at E m en i k e’s claim for UI M benef its falls within the g ener al scope of UI M

cover ag e under this provision. That is, Em en i k e (1 ) i s an insured person under the Policy , (2) “leg ally entitled to rec over [damag es] from” the tortfea sor driver, (3) who sustained bodily injury

as a result of an acc ident arising out of the tortfea sor driver’ s “use of an uninsured motor vehicle.” I nstead, the parties’ cover ag e dispute ce n ters on whether Emenike’s claim is excluded from UI M

cover ag e under

what is commonly

ref err ed to as the “ reg ular use” exclusion. The reg ular-use ex clus ion to UI M benef its is included in the Prog ressive Policy under a provision entitled “Exclusions ” and sta tes, in releva nt part: Coverag e under

this P art I I I [reg arding UI M benef its] will not apply : 1. To bodily

injury sustained by

any person using or occ upy ing:

. . . . d. a mot or vehicle that is o wn ed b y or available for the reg ular use of y ou or a rela tive. This exclusion does not apply to a covere d auto t hat is insured under this Part I I I

.
I nsuranc e policies ty

pically provide some cover ag e to an insured and other s for the occa sional and infreque nt use of vehicles other than vehicles specific ally insured by the policy

. Benjamin v. Plains Ins. Co. , 650 F.2d 98, 101 (5th Cir. 1981) (apply ing Texas law). Conversely , the reg ular-use

e xc lu s ion—a “ty

pical and common policy provision”—“r elieves the in s u r a n c e c o mp a

ny o f th e u n f a ir burden of insuring an automobile not listed on the policy which an insured uses reg ularly but for which the insured pay s no premium.” Francioni, IV v. Hartford Cas. Insur. Co. , No. 15-528-SDDEWD, 2017 WL 1015313, at *3 (M.D. L a. Marc h 15, 2017) (ana ly zing reg ular-use exclusion under
5L ouisiana law); see also National Emblem Ins. Co. v. McClendon , 481 S.W .2d 186, 190 (Tex. Civ.

App.—Texarkana 1972, writ ref’d n.r.e.) (noting that purpose of exclusion rela ting to use of unschedule d autom o b i l es is “to protec t the insurer ag ainst the loss of premiums and ag ainst the incre ases and uncompensa ted hazard resulting from an insured’s use of other automobil es ”) ; cf. Co n li n v . S

ta te F a r m M u t. A u to I n s . Co

. , 8 2 8 S. W. 2 d 3 3 2 , 3 3 7 ( T e x. A p p . — A u s ti n 1 9 9 2 , w r it d e n ie d ) (conc luding that owned- but-unschedule d-vehic le exclu s io n is valid and explaining that “[t] he public policy of this state

. . . does not require that a person be allowed to insure and pay premiums based solely on the risks attendant to one vehicle, and then rec over from the insurer for injuries sustained in or bec ause of

a diffe rent, unsche duled vehicle owned by the insured or

a fa mily member” ). I n th e context of automobile insurance , this Court has rec og nized that the phrase “re g ular use” unambig uously means “a use steady or uniform in course , prac tice or occur renc e, not subject to unexplained or irrational varia tion.” International Serv. Ins. Co. v. W alther , 463 S.W .2d 774, 776 (Tex. Civ. App.—Austin 1971, no writ) (h o l d i ng that employ er- provided vehicle was furnished for reg ular use wher e vehicle was part of pool of vehicles furnished for employ ee’ s use). Thus, automobile insurance policies, such as the Prog ressive Pol icy , distinguish betwee n “re g ular use,” which is not cover ed, and “unusual, temporar y , or sporadic use,” which g ener ally is cover ed. See B enjamin , 650 F.2d a t 100.

I n thi s case , the undisputed summary -judg ment evidenc e establishes that Emenike

was an independe nt contra ctor who lease d the Dodg e Gra nd Carava

n from Austin Cab on a wee kly basis for pur

poses of ope rating his tax i business. At the time of the accident, Emenike had lea sed the Dodg e Gra

nd Carava

n from Austin Cab since J anuar y 2013 and was driving the vehicle three to

6six day s per wee k. Emenike testified in his deposition that at the end of eac h work day h e could

either park the vehicle on the street in front of his home or leave it at Austin C ab ’s h ea d q u arte rs. Be cause a vehicle left at Austin Cab’s headqua rters could potentially be lease d out to another driver, E m enike kept the Dodg e Gra nd Carava

n at his home except when there was a maintenance i s s u e that neede d to be addre ssed. Emenike did not insure the Dodg e Gr an d Carava n, but he had four other vehicles insured with Prog ressive. Acc ording to Emenike, he did not need to use the Dodg e 2 Gra nd Carava

n for persona l err ands. Howeve r, under the terms of Emenike’s contra ctor ag ree ment with Austin Cab, the vehicle was available to him at any t i m e wi t h o ut limit ation, so long as he continued to pay

the lease

. I n his motion for summary judgme nt, and now on appea l, Emenike conce des that the Dodg e Gra

nd Carava

n is not a “cove red auto,” as that term is define d in the Policy , and he does not deny that he was “using or occupy ing” the vehicle wh en the acc ident occur red. I nstead, Emenike emphasizes the fac t that he lease d the Dodg e Gra nd Carava

n on a wee kly basis. Emenike contends that “‘r eg ular use’ vehicles are vehicles that are available for one’s use without char g e, such as a

re l at i v e’s automobile or a company car .” Acc ording to Emenike, “I f one must pay a fee to use a vehicle, that vehicle is, a s a matter of law, not ava ilable for one ’s re g ular use.” Emenike does not cite, nor have we found, any au t h o rity to support his position that application of the reg ular-use exclusion is limit ed to vehicles acquir ed without char g e. Moreove r, Emenike’s interpre tation is not

I n addition, Emenike’s independe nt-contra ctor ag ree ment with Austin Cab mak es cl ear 2 that Austin Cab provides only minimal insurance on its lease d vehicles and, as a result, rec ommends that its contra ctor drivers obtain additional cover ag e, espec ially when using t h e v eh i cl e for persona l purposes.

7supported by the plain lang uag e of the Policy , which makes no distinction reg arding the manner in

or the ter ms under which a

vehicle “ available for . . . r eg ular use” is acquire d. T h e evidenc e shows that at the time of the acc ident Emenike had been driving t h e Dodg e Gra

nd Carava

n three to six day s per wee k and fiftee n to twenty day s per month, for a period of more than a y ear . Viewing the eviden ce in the light most favor able to Emenike, we conclude that nothing in the rec ord sug g ests that his use of the vehicle was “unusual, temporar y , or sporadic.” See id. I n addition, a deter mination that the vehicle was “ava ilable for [Emenike’s] reg ular use” is
not prec luded by the fac t that Emenike obtained the vehicle throug h a wee kly lease arr ang ement. Although the issue of “re g ular use” is g ener ally a question of fac t, see id. (citing Johnson v. H ome Indem

. Co. , 401 S.W .2d 871 (Tex. Civ. App.—Texarkana 1966, writ ref ’d n.r.e.) ), the issue may be decide d as a matter of law when rea sonable people could not differ as to the conclusion to be draw n from the evidenc e. See Cit y of Keller v. W

ilson , 168 S.W .3d 59, 6 0 (T ex . 2 0 0 5 ); see also Hall v. Southern Farm Bureau Cas. Ins. Co. , 670 S.W .2d 775, 776 (Tex. App.—For t Worth 1984, no writ) (af firming summary judgme nt for insurer, concluding that summary -judg ment evidenc e established

as a matter of law that employ er- provided vehicle was furnished for insured’s “re g ular use”)

. I n this

case , we conclude t h at t h e summary -judg ment evidenc e conclusively establishes that the Dodg e Gra nd Carava

n that Emenike was opera ting at the time of the acc ident was a vehicle “ava ilable for [hi s] reg ular u se.” As a result, the trial court err ed in deny ing Prog ressive’ s motion for summary judgme nt and in g ranting Emenike’s motion for summar y judgme nt.

8CONCLUSION Be cause the evidenc e c o n c lu s iv e ly e s ta blishes that Emenike’s claim for UI M benef its is excluded from cover ag e, we reve rse the judgme nt of the trial court and rende r judgme nt in favor of Prog ressive.

__________________________________________ Scott K. Field, Just ice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Reverse d and Rende red Filed: Aug ust 28, 2018 Do Not Publish

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