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Gilbert v. Reynoso11/2/2005
Court composed of Glenn B. Gremillion, J. David Painter, and James T. Genovese, Judges.
AFFIRMED.
Plaintiffs, Billie Jean Gilbert and Joseph Gilbert, appeal the trial court's judgment granting a motion for summary judgment in favor of Defendant, Progressive County Mutual Insurance Company. Finding that there is no genuine issue of material fact with respect to the Progressive policy's exclusion of Marlow S. Reynoso from coverage, we affirm the ruling of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
On April 23, 2003, Gladys Hernandez ("Hernandez"), a Texas resident, submitted an application for automobile insurance with Progressive County Mutual Insurance Company ("Progressive") with respect to a 1989 Honda Accord DX and a 1995 Lincoln Towncar EX. Hernandez and her boyfriend/common law husband, Marlow S. Reynoso ("Reynoso") were listed as drivers on the policy. However, on May 1, 2002, Hernandez, as the policy owner, deleted the Lincoln Towncar from the policy and executed a form to exclude Reynoso as a driver under the policy. The form executed by Hernandez was approved and authorized by the Texas Department of Insurance and provided as follows:
515A. EXCLUSION OF NAMED DRIVER AND PARTIAL REJECTION OF COVERAGES
This endorsement forms a part of Policy No. 38010526-0 issued to Gladys V. Hernandez by the Oscars Ins. Agency (Name of Insurance Company) at its Agency located (city and state) Houston Texas and is effective from 2:20 p.m. (12:01 A.M. Standard Time). (The information above is required only when this endorsement is issued subsequent to preparation of the policy.) This endorsement forms a part of the policy to which attached, effective from its date of issue unless otherwise stated herein.
WARNING READ THIS ENDORSEMENT CAREFULLY!
This acknowledgment and rejection is applicable to all renewals issued by us or any affiliated insurer. However, we must provide a notice with each renewal as follows: "This policy contains a named driver exclusion."
You agree that none of the insurance coverages afforded by this policy shall apply while Marlon Reynoso (The Excluded Driver) is operating your covered auto or any other motor vehicle. You further agree that this endorsement will also serve as a rejection of Uninsured/Underinsured Motorists Coverage and Personal Injury Protection Coverage while your covered auto or any other motor vehicle is operated by the excluded driver. Acknowledged by (s) Gladys Hernandez (Your signature). By (s) Oscar A. Rivas (Duly Authorized Representative).
FORM 515A - EXCLUSION OF NAMED DRIVER AND PARTIAL REJECTION OF COVERAGES Texas Standard Automobile Endorsement Prescribed March 18, 1992.
Hernandez's insurance agent communicated this information to Progressive on May 1, 2002 and Progressive issued the changed policy reflecting the deletion of the Lincoln Towncar and excluding Reynoso as a driver effective May 2, 2002. Attached and made a part of that policy was Form 515A, as it appears above.
On July 4, 2002, Reynoso drove the Honda Accord to Calcasieu Parish, Louisiana, and was involved in an automobile accident with Billie Jean Gilbert and Joseph Gilbert ("the Gilberts"). Ms. Gilbert was driving and Mr. Gilbert was a passenger. The Gilberts filed suit in the Fourteenth Judicial District Court for personal injuries and property damages allegedly sustained in the accident. Reynoso and Progressive were named as defendants. Progressive answered the suit and asserted that it did not provide coverage for this accident based on the exclusion of Reynoso as a driver executed by the policy owner, Hernandez. Progressive then move
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