Dallas Court of Appeals, No. 05-16-00530-CV (May 24, 2018)
Justices Lang, Brown, and Whitehill (Opinion linked here)
Brian Loncar’s car collided with a City of Dallas fire truck in 2008, and Loncar sued the City and the fire-truck driver for personal injuries. The defendants filed a plea to the jurisdiction that was granted in part and denied in part. While the interlocutory appeal of the jurisdictional ruling was pending, Loncar amended his petition to add claims against Progressive, the primary insurer, and Chubb, the excess insurer, for their refusal to pay on his policies. Ultimately, all claims against the City and its employee were dismissed on governmental immunity grounds, and the Texas Supreme Court denied review. The trial court subsequently granted summary judgment for both insurers, and Loncar appealed.
The appeal turned on the language of the uninsured-motorist provisions in Loncar’s policies. A Texas standard form endorsement to the Progressive policy required the insurer to “pay damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by an insured.” (Emphasis added, internal quotations omitted.) The Chubb excess policy used used a different form, with language similar to that of the primary policy. The Court of Appeals held the plain meaning of both policies was that Loncar could not recover under the uninsured-motorist provisions because he was not “legally entitled to recover” anything from the owner or operator of the fire truck in light of the defendants’ immunity. The Court also rejected several arguments by which Loncar sought to recover under the excess policy even if the primary policy did not cover his damages. (Loncar died of unrelated causes during the appeal; the Court proceeded as if all parties were alive, under Rule 7.1(a)(1) of the appellate procedure rules.)
