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Mid Century Insurance Company of Texas v. Lindsey3/13/1997
Mid Century Insurance Company appeals from a summary judgment entered in favor of Richard Lindsey, the plaintiff-appellee. The trial court found that the appellant breached its insurance contract covering the appellee when it failed to pay amounts due under an underinsured motorist provision. The court awarded the appellee $50,000.00, equaling the appellant's liability limit. The appellant brings one point of error, contending that the court erred by denying its motion for summary judgment and entering judgement for the appellee. We overrule this contention and affirm the judgment.
There is no dispute about the facts of the case. The appellant set out many of the facts in its own motion for summary judgement and response to the appellee's motion for partial summary judgment:
"On January 19, 1992, Plaintiffs were seated in a vehicle owned by C.A. (Carol) Lindsey, Plaintiff Richard Lindsey's mother, and insured by Defendant with UM/UIM coverage. Richard Lindsey was seated in the driver's seat. The automobile had been driven to and parked at the spillway located at Lake O' the Pines. A Ford Ranger truck owned by Richard Glenn Metzer was parked in the parking space immediately to the left of the Lindsey vehicle. Mr. Metzer's nine year old son attempted to enter the truck through the truck's sliding rear window. While doing so, the Metzer child accidentally contacted a loaded shot-gun located on a gun rack positioned over the rear window of the truck, causing the gun to discharge. A portion of the buckshot entered the Lindsey vehicle and struck Richard Lindsey in the head, causing injuries. Special damages to Richard Lindsey exceed policy limits purchased by Richard Glenn Metzer for his vehicle."
The appellant has judicially admitted these facts, thereby relieving the appellee of the burden of proving them. Mendoza v. Fidelity and Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980). Additionally, a police report was attached to the appellee's motion for partial summary judgment. The police report indicates that the Metzers were fishing at the Lake O' the Pines spillway at the time of the incident. Their son returned to the truck because he was cold and wanted to retrieve his coveralls. The truck was locked, so the boy tried to crawl in through the back window, causing the shotgun to discharge. The insurance policy in question provided:
"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."
The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.
The policy included Aunderinsured motor vehicle in its definition of uninsured motor vehicle.
The appellant refused coverage for the shooting incident. The appellee and his wife filed suit against the appellant, seeking to recover damages for breach of contract, breach of warranty, violation of the Deceptive Trade Practices Act, violation of various provisions of the Texas Insurance Code, and breach of the duty of good faith and fair dealing. On May 25, 1995, the appellee filed a motion for partial summary judgement on the breach of contract claim. The appellant responded with its own motion for summary judgment. The court denied both motions. The appellee moved for rehearing of its motion and filed a supplemental motion for partial summary judgment, incorporating the previous motion for partial summary judgment. The court then granted partial summary judgement for the appellee on the breach of contract claim. A few
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