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Le v. Farmers Texas County Mutual Insurance Co.12/28/1995
Judgement affirmed in part and reversed and remanded in part, and Opinion filed December 28, 1995
12/28/1995
OPINION ON MOTION FOR REHEARING
The appellant's motion for rehearing is granted. We withdraw our previous opinion and substitute the following in its place.
May a passenger in a car recover under an uninsured motorist provision or personal injury protection for injuries suffered after a drive-by shooting? We hold the passenger may not recover under the uninsured motorist (UM) provision but may recover under the personal injury protection (PIP) provision.
The plaintiff, Tuan Le, sued three insurance companies, Farmers Texas County Mutual Insurance Company (Farmers), State Farm Mutual Automobile Insurance Company (State Farm), and Allstate Indemnity Company (Allstate) on the UM provisions and sued Farmers and State Farm on the PIP provisions. Tuan Le also sued for extracontractual damages for the insurance companies' failure to timely pay under these policies. We affirm Allstate and Farmers' summary judgments on the issue of UM coverage, but partially reverse State Farm's summary judgement because of its denial of PIP benefits and as to the extracontractual damages related to its failure to pay PIP benefits.
Fact summary
Late in the evening on March 9, 1991, Tuan Le was riding as a passenger in a car on his way home from a movie. Tuan Le was sitting in the back seat on the right-hand side of the car. As the car approached the Dixie Farm Road exit off Interstate 45, Tuan Le heard a banging noise. Tuan Le noticed a light-colored American car with tinted windows pull up alongside. The next thing Tuan Le remembered was a burning sensation. He had been shot under his left arm. The bullet lodged in his spinal cord, causing paralysis from the waist down. Tuan Le testified in a deposition that no one in the car saw a weapon. The two cars did not collide during the incident, and the shooter is not known.
Tuan Le sought UM and PIP benefits from Farmers, State Farm, and Allstate. All claims were denied. Farmers paid PIP benefits late, and State Farm denied the PIP claims. Tuan Le filed suit against them, making the same demands and including claims for extracontractual damages for failing to pay benefits. The trial court abated the issue of extracontractual claims pending resolution of the contractual issues. All the insurance companies filed motions for summary judgment. The trial court granted each insurance company's motion for summary judgment.
The motions for summary judgment
In its motion for summary judgment, State Farm argued it was entitled to summary judgement because drive-by shooting injuries are not covered by the UM or PIP provisions, and State Farm is not liable for extracontractual tort damages for denying Tuan Le's claim because the policy did not cover Tuan Le's claims. State Farm attached a copy of the insurance policy in question to its motion for summary judgment. In its motion for summary judgment, Allstate argued the UM provision did not provide benefits for injuries caused by a drive-by shooting. Allstate attached a copy of the insurance policy to its motion for summary judgment. Allstate also filed a second motion for summary judgment, contending it did not have to pay extracontractual benefits on Tuan Le's UM claims because Tuan Le is not entitled to UM benefits.
In its motion for summary judgment, Farmers argued Tuan Le's UM claim did not fall within its policy provision because the unidentified vehicle made no physical contact with the vehicle in which Tuan Le was riding and Tuan Le's injuries did not arise out of the use of the uninsured mo
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