Letha Bradshaw v. Horace Mann Insurance Company and Lucy K. Wood

11th Court of Appeals Eastland, Texas Memorandum Opinion Letha Bradshaw Appellant Vs. No. 11-03-00290-CV -- Appeal from Jones County Horace Mann Insurance Company and Lucy K. Wood Appellees Letha Bradshaw brought this action against Horace Mann Insurance Company and Lucy K. Wood. She sought to recover uninsured motorist (UIM) benefits under two insurance policies that Horace Mann had issued. Horace Mann and Wood moved for a no-evidence summary judgment. They contended that the policies had been cancelled for nonpayment of premiums before the date of the accident in question. The trial court granted summary judgment to Horace Mann and Wood. We affirm. Background Facts Horace Mann issued Policy Nos. 42-55298290 and 42-55298310 to Bradshaw. Policy No. 42-55298290 covered a 2000 Ford pickup; Policy No. 42-55298310 covered a 1971 van. On January 5, 2001, Bradshaw was involved in a motor vehicle accident while she was driving the 2000 Ford pickup. She contended that, as a result of the accident, she was entitled to recover UIM benefits under both policies. Horace Mann and Wood contended that neither policy was in effect on the date of the accident because the policies had been cancelled for nonpayment of premiums on January 3, 2001. The policy insuring the 1971 van (Policy No. 42-55298310) excluded UIM coverage as follows: For bodily injury sustained while occupying, or when struck by, any motor vehicle or trailer of any type owned by you or any family member which is not insured for this coverage under this policy. Horace Mann and Wood contended that this exclusion applied because Bradshaw’s 2000 Ford pickup was not insured for UIM coverage under Policy No. 42-55298310. Bradshaw contended that this exclusion was invalid. Issues Presented Bradshaw presents four issues for review. In her first three issues, she argues that the trial court erred in granting summary judgment to Horace Mann and Wood. In her fourth issue, she argues that the exclusion in question in Policy No. 42-55298310 is invalid. Standard of Review Horace Mann and Wood sought a no-evidence summary judgment on the ground that there was no insurance policy in effect on January 5, 2001, that would have afforded coverage to Bradshaw. The trial court must grant a no-evidence motion for summary judgment unless the non-movant produces evidence that raises a genuine issue of material fact on the challenged element of his claim or defense. TEX.R.CIV.P. 166a(i). The appellate court reviews evidence presented in response to a motion for a no-evidence summary judgment in the same way it reviews evidence presented in support of, or in response to, a motion for traditional summary judgment: it accepts as true evidence favorable to the non-movant and indulges every reasonable inference and resolves all doubts in favor of the non-movant. Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex.App. - Eastland 2000, pet’n den’d). The appellate court reviews, however, only evidence presented by the non-movant. Rule 166a(i); Hight v. Dublin Veterinary Clinic, supra at 618-19. If the non-movant presents more than a scintilla of evidence on the disputed element, a no-evidence summary judgment is improper. Hight v. Dublin Veterinary Clinic, supra; Denton v. Big Spring Hospital Corporation, 998 S.W.2d 294, 298 (Tex.App. - Eastland 1999, no pet’n); cf. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex.1997), cert. den’d, 523 U.S. 1119 (1998). The Insurance Policies Bradshaw had the summary judgment burden to establish that the policies were in force and effect at the time of the alleged loss. Southern County Mutual Insurance Company v. Dekle, 593 S.W.2d 131, 133 (Tex.Civ.App. - Waco 1979, no writ). To meet this burden, she had to prove the existence of the insurance policies sued upon and her compliance with the terms of the policies (payment of premiums). St. Paul Insurance Company v. Rakkar, 838 S.W.2d 622, 629 (Tex.App. - Dallas 1992, writ den’d). Bradshaw did not produce any summary judgment evidence that she paid the premiums in a timely manner under either of the policies. Therefore, she failed to meet her summary judgment burden of raising a fact issue on whether the policies were in force and effect at the time of the accident in question. On appeal, Bradshaw argues that the summary judgment evidence raised fact issues on the following issues: (1) whether Horace Mann waived its claim that the policies were cancelled, and (2) whether Horace Mann is estopped from claiming that the policies were cancelled. Bradshaw produced summary judgment evidence that, on several occasions, she made premium payments for the policies after the stated due date for the premiums. She contends that a course of dealing existed under which Horace Mann frequently accepted late premium payments from her without cancelling the insurance policies. Based on the course of dealing, Bradshaw asserts that Horace Mann waived its claim that the policies were cancelled and is estopped from claiming that the policies were cancelled. Bradshaw failed to plead waiver or estoppel in the trial court, nor did she raise waiver and estoppel in response to Horace Mann’s and Wood’s motion for summary judgment. Waiver and estoppel are affirmative defenses and, therefore, must be pleaded in the trial court. TEX.R.CIV.P. 94; R.I.O. Systems, Inc. v. Union Carbide Corporation, 780 S.W.2d 489, 492 (Tex.App. - Corpus Christi 1989, writ den’d). By failing to plead her waiver and estoppel defenses, Bradshaw did not preserve error on the defenses. R.I.O. Systems, Inc. v. Union Carbide Corporation, supra. The trial court’s granting of summary judgment to Horace Mann and Wood was proper. Bradshaw’s first three issues are overruled. The Exclusion In her fourth issue, Bradshaw argues that the policy exclusion in question is invalid because it violates public policy. We disagree. Texas courts have held that the exclusion is valid. Berry v. Texas Farm Bureau Mutual Insurance Company, 782 S.W.2d 246, 246-47 (Tex.App. - Waco 1989, writ den’d); Broach v. Members Insurance Company, 647 S.W.2d 374 (Tex.App. - Corpus Christi 1983, no writ); Equitable General Insurance Company v. Williams, 620 S.W.2d 608, 609-11 (Tex.Civ.App. - Dallas 1981, writ ref’d n.r.e.). Bradshaw’s fourth issue is overruled. This Court’s Ruling The judgment of the trial court is affirmed. TERRY McCALL JUSTICE March 24, 2005 Not designated for publication. See TEX.R.APP.P. 47.2(a). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.