Court of Appeals of Texas,
Houston (1st Dist.).
Jennifer A. VALENTINE and Michael J. Valentine, Appellants,
SAFECO LLOYDS INSURANCE COMPANY, Appellee.
July 18, 1996.
Rehearing Overruled Sept. 4, 1996.
Published in Part Pursuant to Tex.R.App.P. 90.
Attorneys & Firms
*641 Howard M. Kahn, Houston, for Appellants.
David L. Miller, Houston, for Appellee.
Before HUSTON–DUNN, TAFT, JJ.
Appellants, Jennifer A. Valentine and Michael J. Valentine, appeal from a summary judgment granted in favor of appellee, Safeco Lloyds Insurance Company (Safeco). This case requires us to decide: (1) whether the summary judgment is final despite not dealing with all of appellants’ causes of action; and (2) whether an employee who sues her employer for negligence may recover from her uninsured/underinsured motorist (UIM) coverage for injuries beyond the coverage of worker’s compensation. We affirm.
Jennifer Valentine was employed as a driver for United Parcel Services (UPS). As Valentine was loading her UPS truck one day, she fell off the back bumper and was injured. She alleged the accident was caused by UPS’s negligence in failing to properly repair the bumper. For her injuries, Valentine recovered $30,000 in worker’s compensation benefits. Valentine sued UPS’s automobile liability insurer, Liberty Mutual Insurance Company, and her own uninsured motorist carrier, Safeco Lloyds Insurance (Safeco). The trial court granted summary judgment in favor of both insurers and denied a motion for summary judgment by Valentine. Valentine appeals only the summary judgment granted in favor of Safeco.
Whether All Causes of Action Addressed
In point of error three, Valentine argues the trial court erred in granting Safeco’s motion for summary judgment because Safeco’s motion addressed only Valentine’s contract claims under the insurance policy, but did not address her claims under the Deceptive Trade Practices Act (DTPA).1 To be a final, appealable summary judgment, the order granting the motion must dispose of all parties and all issues before the court. Id. at 592. If the judgment grants more relief than requested, it should be reversed and remanded, but not dismissed. Id.
In this case, the trial court granted a partial summary judgment in favor of Safeco on April 11, 1995. On September 21, 1995, Valentine filed a motion for the trial court to enter final judgment “with all deliberate speed.” The trial court signed a final judgment on October 4, 1995. The final judgment dismissed Valentine’s claims against several other parties and ordered that Valentine take nothing from Safeco “as described in this court’s Interlocutory Partial Summary Judgment in favor of defendant Safeco Lloyd’s Insurance Company.” The final judgment also contained a Mother Hubbard clause.
The record does not show that Valentine complained to the trial court about her outstanding DTPA claims. In fact, she requested the trial court to enter a final judgment even though her DTPA claims had not been addressed by Safeco. Because Valentine moved for final judgment without alerting the trial court to her outstanding DTPA claims, she has waived her right to complain about them on appeal. TEX.R.APP.P. 52(a).
We overrule point of error three.
*642 Scope of UIM Coverage
In points of error one, six, seven, and eight, Valentine contends the trial court erred by granting Safeco’s motion for summary judgment. Specifically, Valentine contends the trial court erred by not concluding that UPS was underinsured as a matter of law, or that Valentine had raised a fact issue about UPS’s underinsurance.
A. Standard of Review
Summary judgment is proper only when a movant establishes there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Bangert, 881 S.W.2d at 565–66.
In its motion for summary judgment, Safeco contended: (1) the incident complained of by Valentine was not within the scope of the UIM coverage provided to Valentine; (2) the “regular use” exclusion precluded coverage; and (3) coverage was excluded because the vehicle was being used to carry goods for a fee.2 Because the trial court’s order does not state the grounds on which summary judgment was granted, we will affirm the summary judgment if any of the theories advanced is meritorious. Jones v. Legal Copy, Inc., 846 S.W.2d 922, 924 (Tex.App.—Houston [1st Dist.] 1993, no writ).
In its motion, Safeco argued that Valentine’s UIM coverage was not triggered in this situation because UPS was not a “negligent, financially irresponsible motorist.”3 In support of this position, Safeco introduced proof that UPS carried liability insurance on the truck as well as worker’s compensation insurance for its employees. Valentine responds by arguing that even though UPS carried liability insurance, she was unable to collect under its policy because her sole remedy against the negligence of her employer is worker’s compensation benefits. The $30,000 Valentine received in worker’s compensation benefits was insufficient to cover her actual damages. Valentine argues UPS was thus underinsured and she should be allowed to collect the difference from her own UIM carrier.
The issue we must decide is whether an employee’s UIM coverage is available to an employee injured through the negligence of her employer while occupying the employer’s vehicle in the course and scope of her employment, after the employee collects worker’s compensation benefits. No Texas case discusses an employee’s ability to access her own UIM coverage to supplement her worker’s compensation benefits when the employee is injured through the fault of the employer while occupying the employer’s vehicle. However, the overwhelming majority position nationwide is to preclude coverage under the employee’s UIM policy.4
*643 In Id. at 507–08. Because worker’s compensation law barred a legal recovery from the employer, the employee’s widow was not entitled to invoke the coverage of the employee’s UIM coverage. Id.
In Id. at 646–47. The plaintiff was not “legally entitled to recover” from her co-employee, and worker’s compensation benefits were her exclusive remedy. Id.
In Id. at 132–33.
Valentine argues that she is legally entitled to recover from UPS and cites Id. at 24–25.
The key difference between Boris and the present case is that Boris involved a third-party tortfeasor, whereas in this case the alleged tortfeasor is the employer. The plaintiff in Boris was legally entitled to recover damages from the third-party tortfeasor; however, Valentine is not legally entitled to recover damages from UPS.
Finally, Valentine relies on Hamaker v. American States Ins. Co., 493 S.W.2d 893, 895–97 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n.r.e.), in which this Court invalidated a clause that allowed a UIM carrier *644 to offset the damages it paid the insured by the amount the insured had recovered through worker’s compensation. However, Hamaker does not address the issue presented by this case. In Hamaker, the existence of UIM coverage was not in question, only the amount of benefits recoverable. The case at bar presents a more fundamental issue: Is the insured entitled to invoke her UIM coverage at all if she is precluded from suing her employer?
The insurance policy in the present case, like the policies in Dodson, Cormier, and Kough, provides that Safeco will “pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle.” (Emphasis added.) Under TEX.LAB.CODE ANN. art. 408.001 (Vernon 1996), Valentine is not “legally entitled to recover” from UPS; she is limited to collecting worker’s compensation benefits. Therefore, coverage under Safeco’s policy is not available.
TEX.INS.CODE ANN. art. 5.06–1(1) (Vernon 1981) (emphasis added). We believe this manifests the legislature’s intent to require, as a prerequisite to UIM coverage, that the insured be entitled to sue the tortfeasor for damages. We do not believe the legislature intended UIM benefits to be available under these facts.
We also agree that UPS is not a “financially irresponsible motorist.” On the contrary, UPS maintained automobile liability insurance that met the statutory requirements and provided worker’s compensation insurance. The law requires nothing more.
Finally, we note that TEX.INS.CODE ANN. art. 5.06–1(6) (Vernon 1981). To allow an employee to collect from his UIM carrier under these circumstances would destroy the insurer’s right of subrogation against the tortfeasor. Because Valentine has no right to recover damages from UPS, Safeco would not be able to recover from UPS, through subrogation, after it paid Valentine.
We hold that Valentine’s claims do not fall within the scope of the UIM coverage provided by Safeco’s policy as a matter of law. Therefore, the trial court did not err by granting Safeco’s motion for summary judgment.
We overrule points of error one, six, seven, and eight.
The remainder of this opinion does not meet the standards for publication pursuant to TEX.R.APP.P. 90(c) and thus is ordered not published.
Because the trial court properly granted summary judgment on one of the grounds asserted by Safeco, we need not address Valentine’s remaining points of error,5 and decline to do so.
We affirm the trial court’s judgment.
Unpublished Text Follows
Sufficiency of Summary Judgment Proof
In point of error two, Valentine complains that the affidavit of David Miller, Safeco’s attorney, is insufficient summary judgment proof. When Safeco filed its motion for summary judgment, it attached a copy of the insurance policy at issue in this case. David Miller filed an affidavit in which he stated, “Attached is a true and correct copy of the automobile insurance policy applicable in the above-referenced suit.” Valentine contends the affidavit is not based on personal knowledge and states a legal conclusion.
A party must object to the form of summary judgment evidence and place the objections before the trial court, or its objections will be waived. Fox Elec. Co. v. Tone Guard Sec., Inc., 861 S.W.2d 79, 81 (Tex.App.—Fort Worth 1993, no writ). Because Valentine did not object to Safeco’s summary judgment evidence or obtain a ruling from the trial court, her complaint is waived.
Furthermore, we note Valentine attached the pertinent portions of her Safeco policy as part of her summary judgment evidence. The material was thus properly before the trial court.
We overrule point of error two.
Valentine’s Motion for Summary Judgment
In point of error nine, Valentine contends the trial court erred in failing to grant her motion for summary judgment. Safeco says Valentine waived any complaint regarding denial of her motion for summary judgment by limiting her appeal to the order granting Safeco’s motion for summary judgment.
Valentine’s notice of appeal is expressly limited to Safeco’s motion for summary judgment. It would have been possible for Valentine to appeal both rulings. See Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). However, by giving limited notice of appeal, Valentine confined herself to appealing only the trial court’s granting of Safeco’s motion for summary judgment.
We overrule point or error nine.
We affirm the trial court’s judgment.
End of Unpublished Text
TEX.BUS. & COM.CODE ANN. § 17.41 (Vernon 1987).
Safeco waives this third ground on appeal.
In discussing the purpose of requiring UIM coverage, the supreme court stated the legislature’s intent was to protect conscientious motorists from financial loss caused by negligent, financially irresponsible motorists. See Francis v. International Serv. Ins. Co., 546 S.W.2d 57, 61 (Tex.1976).
See Torres v. Kansas City Fire & Marine Ins. Co., 849 P.2d 407, 411 (Okla.1993) (the uninsured motorist carrier does not stand in the tortfeasor’s shoes so that coverage is allowed even if the insured would not be legally entitled to recover from the uninsured motorist because of exclusivity of worker’s compensation).
The points of error we do not address attack the trial court’s granting summary judgment: by applying the “regular use” exclusion (points four and five); by concluding appellant is not a “covered person” (points 10 and 11); and by concluding a “hit” or “collision” is necessary for UIM coverage (point 12).