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Hartless v. Allstate Texas Lloyds Insurance Co.12/6/2005
not being "put or [brought] into action or service"; it was not being "employ or appl to a given purpose." As described by the court, the bus was nothing more than the place where the student happened to injure herself. Id.
In this case, the aircraft was obviously not being used as an aircraft; not being used as transportation; not being prepared for use; not being prepared for repair; or engaged or employed for its given purpose in any fashion. As in Lindberg, the device was sitting empty, with the motor off, no one was aboard, and it was nothing more than the place where Hartless was injured, not because of the device's actions, but because of the men's actions.
(4) What was the intent of Tucker and Hartless in weighing the aircraft? We recognize that determining the weight of an aircraft is important when deciding the amount of lift needed to safely fly the plane. However, the evidence is that this aircraft could not be flown because the engine block was cracked. Replacing the engine with another Model A engine would make the aircraft authentic, but was not feasible for flight purposes. The evidence was that the only reason to weigh this plane was to satisfy Hartless's curiosity, not to make a judgment as to the power needed to fly the aircraft.
It is at least equally reasonable to conclude that the "arising from use" exclusion does not exclude coverage where the device is merely present, even if some contact by the device is the cause of the injury---where the device is not being used for its given purpose.
Accordingly, this language of the exclusion does not provide a basis to support rendition of summary judgment.
Loading or Unloading
The phrase "loading or unloading" has been addressed a number of times. It means the transfer of goods to or from a vehicle, as well as the operation of transporting goods between the vehicle and the place from or to which they are being delivered. Liberty Mut. Ins. Co. v. Am. Employers Ins. Co., 556 S.W.2d 242 (Tex. 1977). The evidence shows that the aircraft was not being loaded or unloaded with people, goods, or any other items at the time of the accident. The term cannot apply to these facts and could not have served as a basis for the summary judgment.
Accordingly, we must conclude that the trial court erred by granting summary judgment holding that the insurer had no duty to defend. Further, the trial court erred by granting summary judgment on the insurer's duty to indemnify. It is well settled that a trial court is without authority to decide an insurer's duty to indemnify in the absence of a final judgment in the underlying tort action. See Cent. Sur. & Ins. Corp. v. Anderson, 445 S.W.2d 514, 515 (Tex. 1969); Firemen's Ins. Co. v. Burch, 442 S.W.2d 331, 333--34 (Tex. 1968); Gehan Homes, Ltd. v. Employers Mut. Cas. Co., 146 S.W.3d 833, 846 (Tex. App.---Dallas 2004, pet. filed); McFarland, 887 S.W.2d at 491.
Tucker's Motion for Summary Judgment
Tucker also filed his own motion for summary judgment, which was denied. In general, an order granting a summary judgment may be appealed, but an order denying a summary judgment may not. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980). However, an exception to this rule exists when both parties file motions for summary judgment and the court grants one and overrules the other. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958). On appeal, the proper disposition is for the appellate court to render judgment for the party whose motion should have been granted. Members Mut. Ins. Co. v. Hermann Hosp., 664 S.W.2d 325, 328 (Tex. 1984); McLemore v. Pac. Sw. Bank, FSB, 872 S.W.2d 286, 289 (Tex. App.---Texark
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