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CASE NO CV IN THE SUPREME COURT OF TEXAS

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CASE NO CV IN THE SUPREME COURT OF TEXAS Powered By Docstoc
					                             CASE NO: 01-10-00104-CV


                                     IN THE
                            SUPREME COURT OF TEXAS
                                 at Austin, Texas
                                ________________



DEANNA and PHILLIP HOFSTETTER, INDIVIDUALLY and as JUDGMENT CREDITORS
              and TURNOVER ASSIGNEES of MARIA I. BENITIZ

                                      Petitioners,

                                           v.

                           LOYA INSURANCE COMPANY.

                                        Respondent
     ____________________________________________________________________
    DEANNA and PHILLIP HOFSTETTER, INDIVIDUALLY and as JUDGMENT
         GREDITORS and TURNOVER ASSIGNEES of MARIA I. BENITIZ
                       APPENDIX TO PETITION FOR REVIEW
    _____________________________________________________________________
    From the 1st Judicial District Court of Houston, Texas Cause No. 01-10-00104-CV
    _____________________________________________________________________


                                 MICHAEL W. LEE
                                 Texas State Bar No. 12144225
                                 770 S. Post Oak Lane, Suite 360
                                 Houston, Texas 77056
                                 713-961-2927, 713-993-0700 (Fax)
                                 Email: lawmwl@gmail.com

                                                     ATTORNEY FOR PETITIONERS




August 30, 2011
                                     IDENTITY OF PARTIES



        Pursuant to Texas Rule of Appellate Procedure 53.2(a), the undersigned counsel of record

for the Petitioners DeAnna and Phillip Hofstetter, Individually and as Judgment Creditors

and Turnover Assignees of Maria I. Benitiz v. Loya Insurance Company certifies that the

following is a complete list of all parties:




Petitioners:    DeAnna and Phillip Hofstetter
                Counsel for Appellants:
                MICHAEL W. LEE
                Texas State Bar No. 12144225
                770 S. Post Oak Lane, Suite 360
                Houston, Texas 77056
                713-961-2927
                713-993-0700 (Fax)


Respondent: Loya Insurance Company
            Counsel for Appellee:
            ALOYSIUS PETER THADDEUS, JR.
            Dietz & Associates
            11900 N. 26th Street, Suite 200
            McAllen, Texas 78504




                                                  (i)
                            TABLE OF CONTENTS

                                                                          PAGE

IDENTITY OF PARTIES AND COUNSEL                                           i

TABLE OF CONTENTS                                                         ii

INDEX OF AUTHORITIES                                                      iv

STATEMENT REGARDING CITATION TO RECORD                                    v

STATEMENT OF THE CASE                                                     vi

STATEMENT OF JURISDICTION                                                 vii

ISSUES PRESENTED                                                          viii

STATEMENT OF FACTS                                                        1

SUMMARY OF ARGUMENT                                                       3

ARGUMENT6

     I.    THE LOWER COURTS’ DISREGARD OF EDWARDS                         6
           REQUIRES REVIEW AND REVERSAL

           A.    EDWARDS CONTROLS THE ISSUE ON APPEAL;                    6

           B.    APPELLANTS PLED, PROVED AND BRIEFED WANT OF              8
                 CONSIDERATION AS A DEFENSE TO THE RESTRICTIVE
                 ENDORSEMENT;

           C.    ALLOWING LOWER COURTS TO IGNORE RULINGS OF THE COURT     9
                 UNDERMINES THE JUDICIAL FUNCTION.

     II.   THE LOWER COURTS’ HOLDINGS CONFLICT WITH THE RULE IN BLACK     10

           A.    THE TEXAS MOTOR VEHICLE SAFETY RESPONSIBILITY ACT        10
                 (“ACT”) REQUIRES REVERSAL OF THE COURT HOLDINGS BELOW;

           B.    THIS COURT PROPERLY CONSTRUED THE ACT IN BLACK;          11

                                      (ii)
                                                                            PAGE


            C.    THE LOWER COURTS ADOPT AN INTERPRETATION OF THE STATUTE   12
                  MISLEADING THAT ALLOWS UNINSURED DRIVERS TO OBTAIN AND
                  USE PROOF OF INSURANCE CARDS.

     III.   THE ERROR COMMITTED BELOW ENDORSES A SCHEME DESIGNED TO         13
            FRUSTRATE THE EFFORTS OF THE TEXAS DEPARTMENT OF INSURANCE
            AND TEXAS JURISPRUDENCE REGARDING THE UNINSURED MOTORIST
            CRISIS.

            A.    THE UNINSURED MOTORIST CRISIS IS ACCELERATING;            13

            B.    EMBRACING THE ERROR COMMITTED BELOW ALLOWS THE            13
                  UNSCRUPULOUS TO CIRCUMVENT THE ACT AND THE TDI
                  ENFORCEMENT MECHANISMS.



CONCLUSION and PRAYER                                                       14

CERTIFICATE OF SERVICE                                                      15




                                       (iii)
                                 INDEX OF AUTHORITIES

TEXAS CASES:                                              PAGE

1.   Black v. Victoria Lloyds Ins. Company,               3,4,10,11
     797 S.W.2d 20 (Tex. 1990);

2.   McFadden v. American United Life Ins. Co.,           8
     658 S.W.2d 147, 148 (Tex.1983);

3.   Travelers Indemnity Co. v. Edwards,                  3,6,7,8
     462 S.W.2d 533 (Tex. 1970);

4.   Trinity Universal Ins. Co. v. Aetna Life Ins. Co.,   6
     876 S.W.2d 132, 133 (Tex. 1994);

5.   Wright v. Rodney Young Ins. Agency,                  10
     905 S.W.2d 293, 296 (Tex.App.—Ft. Worth 1995,
     no writ.

TEXAS CONSTITUTION:

1.   Article 5, Sec.1 & Sec. 3                            9


STATE STATUTES:

1.   Government Code Sec. 22.001(a)(2);                   3

2.   Government Code Sec. 22.001(a)(3);                   4

3.   Government Code Sec. 22.001(a)(6);                   5

4.   Texas Insurance Code Sec. 554.002;                   8

5.   Texas Transportation Code Sec. 601.053;              10

6.   Texas Transportation Code Sec. 601.072(c);           10

7.   Texas Transportation Code Sec. 601.081;              10

8.   Texas Transportation Code Title 7, Subchapter D,     4,10
     Sec. 601.071 through 601.088

                                              (iv)
                         STATEMENT REGARDING CITATIONS




       References to the page number of the Clerk’s Record of the District Court proceedings

below will be referred to by the notation: “Tr. at ____‖.



       References to the Opinion authored by the First Court of Appeals which the Appellants

seek review shall be cited as “Opinion at ____‖. Opinion shall be found at Appendix Tab 2.




                                                   (v)
                                STATEMENT OF THE CASE




1.     Appellants brought suit under a contract of insurance. Appellants are judgment creditors

and turnover assignees of Ms. Maria I. Benitiz. Appellants sought recovery of money damages

based upon breach of contract and violations of the Texas Insurance Code.

2.     Appellants brought suit in the 129th Judicial District Court of Houston, Harris County,

Texas. The Judge was the Honorable Michael J. Gomez. Defendant moved for Summary

Judgment.

3.     This is an appeal from a Final Judgment granting Summary Judgment signed by Judge

Gomez on November 3, 2009. Appellants appealed to the First Court of Appeals on January 29,

2010. The First Court of Appeals rendered Opinion on April 28, 2011.

4.     The Opinion was signed by Judge Harvey Brown. Justices Terry Jennings and Laura

Carter Higley participated in the decision. The citation is Deanna and Phillip Hofstetter,

Individually and as Judgment Creditors and Turnover Assignees of Maria I. Benitiz, Appellants,

v. Loya Insurance Company, Appellee, No. 01-10-00104-CV. The Opinion is contained in the

Appendix at Tab 2.

5.     The First Court of Appeals affirmed the trial court judgment. The Appellants’ Motion for

En Banc Consideration was denied on July 18, 2011. There are no motions pending in the Court

of Appeals at this time.




                                               (vi)
                     STATEMENT OF JURISDICTION



The Government Code grants jurisdiction to the Supreme Court of Texas as follows:


A.     Government Code sec. 22.001(a)(2) – This Petition seeks review of the Opinion
       because the Opinion conflicts with prior holdings of the Texas Supreme Court.
       See Black v. Victoria Lloyds Ins. Company, 797 S.W.2d 20 (Tex.1990);
       Travelers Ins. Co v. Edwards, 462 S.W. 2d 533 (Tex. 1970);

B.     Government Code sec. 22.000(a)(3) – The issue presented for review requires
       construction of Title 7, Subchapter D, Texas Transportation Code (the Texas
       Motor Vehicle Safety Responsibility Act);

C.     Government Code sec. 22.001(a)(6) – The Opinion constitutes error of such
       importance to the jurisprudence of the State of Texas that is requires correction.




                                       (vii)
                                   ISSUES PRESENTED




1.   Whether this Court’s holding in Travelers Indemnity Co. v. Edwards, 462 S.W. 2d 533
     (Tex. 1970 remains good law;


2.   Whether this Court’s holding in Black v. Victoria Lloyds Insurance Co., 797 S.W.2d 20
     (Tex. 1990) remains good law;


3.   Whether there is any jurisprudential, practical or other basis for this Court to abandon the
     well-reasoned and well established rule announced in Edwards;


4.   Whether there is any basis for allowing the First Court of Appeals’ misstatement of law
     to become part of Texas Jurisprudence given that this Court’s holding in Black is that
     Summary Judgment is not available in this precise situation;


5.   Whether this Court should embrace a scheme by which insurers may provide a so-called
     “Proof of Liability Insurance Card” that in fact violates the spirit of the Texas Motor
     Vehicle Responsibility Act and voids the operation of the Texas Department of
     Insurance’s TexasSure Program.




                                            (viii)
                                  STATEMENT OF FACTS



1.     This Petition for Review arises from a Summary Judgment. The suit is one for

enforcement of a policy of insurance. Defendant moved for Summary Judgment on the basis on

so called form 515A Named Driver Exclusion.

2.     This appeal examines the prerequisites for proper formation of a form 515A exclusion.

Loya sold its policy of insurance to a head of a household, Ms. Benitiz. Ms. Benitiz is the

mother of four (4) sons. At the time of the purchase of insurance the Benitiz household had two

(2) individuals residing in the household, Ms. Benitiz and her son Juan Revuelta.

3.     Ms. Benitiz normally and customarily operated a Honda Civic DX. See Tr. at 00100. Mr.

Revuelta was the normal and customary driver of a Toyota Corolla. See Tr. at 00100.

4.     Loya sold Ms. Benitiz a policy of insurance to cover these vehicles in the Benitiz

household. Loya charged and collected from Ms. Benitiz premiums commensurate with the

operation of each vehicle. Tr. at 00098. Ms. Benitiz speaks, writes and understands only

Spanish. Id. Loya had Ms. Benitiz execute policy documents written only in English. Id. It is

undisputed that Loya did not make any discount, return any premium payment or provide

consideration of any kind for the execution of the form 515A exclusion. See Tr. at 00100.

5.     Loya issued to Mr. Revuelta a so called “proof of insurance card.” See Tr. at 00108. The

card purported to meet the requirements of the Texas Motor Vehicle Safety Responsibility Act.

The card stated, in both English and Spanish, that the insurance for operation of the Corolla met

the minimum standards for liability insurance in the State of Texas. Loya does not dispute that

“while it represented to Mr. Revuelta that the [Corolla] was insured, Loya now represents to this

Court that the vehicle was uninsured.” Tr. at 00091.
6.      On or about July 15, 2007, the Hofstetters were injured as a result of a motor vehicle

collision with the Corolla. The Hofstetters brought suit against Ms. Benitiz and Mr. Revuelta.

Their suit for damages was reduced to a judgment on or about May 5, 2008. Subsequent to the

entry of a Final Judgment the Hofstetters obtained a Turnover Order.

7.      The Hofstetters brought suit against Loya asserting the rights obtained as judgment

creditors and turnover assignees. The Hofstetters asserted, among other things, breach of

contract and violations of the Texas Insurance Code. Among the Hofstetters’ asserted causes of

action were those for misrepresentations regarding the policy terms and coverage at issue.

8.      Loya sought Summary Judgment. The sole basis for Summary Judgment was the

existence of a so-called form 515A Named Driver Exclusion.1 The Hofstetters challenged the

validity of the exclusion on numerous grounds. Specifically, the Hofstetters properly raised and

briefed issues concerning misrepresentation, want of consideration and violation of the Texas

Motor Vehicle Safety Responsibility Act.

9.      In its Motion for Summary Judgment, Loya did not plead or produce any evidence

regarding consideration to support the restrictive endorsement. The Hofstetters consistently

sought a judicial determination regarding the issue of want of consideration. The issue as set

forth in the Edwards opinion is now ripe for this Court.




1
 The term exclusion is used interchangeably with the term endorsement. See, e.g., Tr. at 00121. For purposes of
application and construction of a policy of insurance an “exclusion” from coverage is a synonym for a restrictive
endorsement. The operation of either acts as a modification to the insurance bargain itself.
                                 SUMMARY OF ARGUMENT


       Review of this Summary Judgment is appropriate because of a direct conflict with

previous rulings of this Court. Petitioners cite two (2) cases:

       (1) Travelers Indemnity Co. v. Edwards, 462 S.W.2d 533 (Tex. 1970).

       (2) Black v. Victoria Lloyds Insurance Co., 797 S.W.2d 20 (Tex. 1990);

Grant of Summary Judgment below conflicts with those holdings. Accordingly, this matter

requires review by the Texas Supreme Court.

       In addition, the lower courts misconstrued the Texas Motor Vehicle Responsibility Act

(“Act”). These twin infirmities, disregarding precedent and reinterpreting the act poses a grave

risk to Texas jurisprudence

               JURISDICTION UNDER GOVERNMENT CODE SEC. 22.001(A)(2)

1.     THE OPINION CONFLICTS WITH THE RULE IN EDWARDS - In 1970 this Court considered and

settled the rule governing this dispute. See Travelers Indem. Co. v. Edwards, 462 S.W. 2d 533

(Tex. 1970). Edwards announced the following rule: ―The restrictive endorsement was a

subsequent limitation of the completed contract provisions in the policy and as such should have

been supported by additional consideration.‖ The lower courts granted Summary Judgment by

holding that no additional consideration need be pled, adduced or proven – that the mere

existence of a restrictive endorsement is sufficient to excuse contract performance. The lower

courts simply chose to overrule Edwards.

2.     THE OPINION CONFLICTS WITH THE RULE IN BLACK - In 1990, this Court provided teaching

on the construction of the Act in the context of the availability of Summary Judgment. See Black

v. Victoria Lloyds Ins. Company, 797 S.W.2d 20 (Tex. 1990). The lower courts holdings conflict

with this Court’s construction of that statute. The Black Court overruled Summary Judgment in
a situation identical to the one presented here. A combination of an issuance of a so-called

“proof of liability insurance identification card” stating that coverage was available in

conformity with the Act, combined with misrepresentations to the driver and policyholder raise

sufficient issues of fact to preclude Summary Judgment.

                  JURISDICTION UNDER GOVERNMENT CODE SEC. 22.001(A)(3)

3.      THIS CASE REQUIRES CONSTRUCTION OF THE TEXAS MOTOR VEHICLE SAFETY RESPONSIBILITY

ACT - In 1951 the Texas Legislature enacted the Texas Motor Vehicle Responsibility Act

[hereinafter cited as “Act”]. See Act of June 28, 1951, 52nd Leg., R.S., ch. 498, Section. 1 et seq.,

1951 Tex. Gen. Laws 1210. In 1981, the Legislature amended the Act to create a compulsory

liability insurance scheme applicable to all Texas drivers. See Act of June 17, 1981, 67th Leg.,

R.S., ch. 800, Section 1, et seq., 1981 Tex. Gen. Laws 3053. The Act was codified in 1995. The

Act is now found at Texas Transportation Code Section 601.071 et seq. This case involves

construction of that Act.

4.      This Court, in Black, previously considered proper construction and application of the

Act. It did so in the context of a Summary Judgment. In Black this Court held that Summary

Judgment was not proper based on exclusionary language in an automobile liability policy.

Central to the Court’s reasoning was the issuance of a so-called “proof of insurance” card [issued

in conformity with the language of the Act] combined with the nature of the insurer’s

representations to the policyholder. Precisely the same elements exist in this case. The Opinion

below asserts that the mere existence of the restrictive endorsement sufficient to support

Summary Judgment. Black holds directly to the contrary. Review by this Court is appropriate to

resolve this conflict.
                JURISDICTION UNDER GOVERNMENT CODE SEC. 22.001(A)(6)

5. CORRECTION OF THE ERROR BELOW IS OF FUNDAMENTAL IMPORTANCE TO THE JURISPRUDENCE OF

THE STATE OF TEXAS –   Citizens of the State of Texas are under the impression that drivers are

subject to a compulsory liability insurance requirement. Texas law enforcement, as well as the

Texas Department of Insurance, participates in promoting this concept. However, the rulings of

the courts below subvert this basic concept. Unless corrected the lower courts allow a

mechanism by which motor vehicle operators may avoid criminal liability as prescribed by

statute even in the absence of any real insurance. Petitioners respectfully suggest that a court of

law ought not be in the business of endorsing a subterfuge with such widespread ramifications.
                                                 ARGUMENT


I.      THE LOWER COURTS’ DISREGARD OF EDWARDS REQUIRES REVIEW AND REVERSAL

        A.       EDWARDS CONTROLS THE ISSUE ON APPEAL.

        This Court ruled on the issue that should control this case. See Travelers Indem. Co v.

Edwards, 462 S.W.2d 533 (Tex. 1970). Edwards settled the question of whether a restrictive

endorsement to a Texas Personal Auto Policy is valid in the absence of consideration2

independent of premiums paid for the policy. See Edwards 462 S.W.2d at 534-35. Here, the

Defendant sought and obtained Summary Judgment solely on the basis of a restrictive

endorsement. Defendant failed to plead or prove the exchange of consideration “to support the

restrictive endorsement.”

        In Edwards, the facts mirror those presented here. In Edwards, an insurer sold a policy

of insurance to a specific driver. The insurer sought and obtained a signature on a separate

document. That separate document was a “student restrictive endorsement.” See Edwards at

534. Here, an insurer sold a policy of insurance to Ms. Benitiz. The insurer then sought and

obtained a signature on an independent document. Ms. Benitiz signed a form 515A “Named

Driver Exclusion.” See Tr. at 00038.

        In both cases the insurer argued that the existence of the restrictive endorsement

precluded liability under the policy. In both cases the party suing under the contract pled and

contended that the endorsement “failed for want of consideration.” See Edwards at 534. The

Texas Supreme Court then considered the sufficiency of consideration necessary to support a

2
  The Edwards Court did not define the term “consideration”. However, the context makes clear that the court used
the term in its legal sense. That is, the Court assumed that the term “consideration” conveyed the legal concept that
a contract or a modification to a contract required a conveyance of something of value as a means of evidencing the
meeting of the minds of the parties to the bargained for terms. Policies of insurance are contracts. Principles of
contract law control judicial inquiry into the validity and construction of insurance policies. See Trinity Universal
Ins. Co. v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994).
restrictive endorsement. The Court held that “the student restrictive endorsement was a

subsequent limitation of the completed contract provision in the policy and as such should have

been supported by additional consideration." Id. at 524-35. The Texas Supreme Court

specifically noted that “no monies were paid to [the policyholder] when he signed the

endorsement and that the premium was the same as it would have been had the endorsement

been attached when the policy was issued.” Id. at 534.

       In the present case not only was the premium the same as it would have been, the courts

below noted and the record establishes, that Loya, Defendant here, actually sought and obtained

from the policyholder premiums in addition to that necessary to secure the requested coverage.

See Tr. at 00100; see also Opinion at p.11 (the Hofstetters assert, ―that Loya failed to adjust or

discount Benitiz’ premium to reflect the excluded driver provision.‖). The Texas Supreme Court

further rejected any other attempt to find that the conduct of the parties established a substitute

for independent consideration. The Court held that forbearance of the exercise of the right of

cancellation does not rise to the level of consideration sufficient to support the restrictive

endorsement. See Edwards at 535.

       The bedrock principle upheld by this Court is that the contract for insurance is distinct

from the bargain to exclude coverage. The Court, in a situation directly on point with that which

exists here, noted that payment of premium for the policy proves the absence of the independent

consideration necessary to support the restrictive endorsement:

               “Petitioners also contend that the original policy premium was
               consideration for the endorsement. Paragraph I of the Form 208,
               Student Restrictive Endorsement, states:

               1.      In consideration of the premium at which this policy is
                       written, it is agreed that no insurance is afforded under
                       this policy to any student other than the one named
                       below.
               As we read the above it shows on its face that there was no
               additional consideration for the endorsement…with no
               consideration to support the Student Restrictive Endorsement the
               attempted modification of the policy was ineffective.” (emphasis
               in original).

See Edwards 462 S.W.2d at 535. This Court concludes: “William T. Edwards [the permissive

driver] was an insured under the policy and petitioners are liable on the judgment entered

below.” Id.

       B.      APPELLANTS PLED, PROVED AND BRIEFED WANT OF CONSIDERATION AS A DEFENSE
               TO THE RESTRICTIVE ENDORSEMENT.

       In Plaintiffs’ pleadings and argument below the Hofstetters sought a holding from a court

of law in the State of Texas in conformity with the Texas Supreme Court holding of Edwards.

Plaintiffs pled want of consideration. See Tr. at 0080. Plaintiffs’ brief to the trial court raised

want of consideration. See Tr. at 0091.     Appellants specifically brought to the attention of the

courts below the holding of Edwards. See Motion for Rehearing and Motion for En Banc

Reconsideration.

       In contradistinction, Defendant insurer never sought to prove any “additional

consideration” to support the restrictive endorsement. This contravenes fundamental precepts of

statutory and Summary Judgment practice in two aspects. First, the Texas Insurance Code places

the burden of pleading and proving all elements of proper formation and enforceability of an

endorsement on the insurer. See Tex. Ins. Code Section 554.002(West 2009). Second,

established Summary Judgment practice requires the party seeking Summary Judgment to come

forward with evidence to establish their affirmative defense. See McFadden v. American United

Life Ins. Co., 658 S.W.2d 147, 148 (Tex.1983). Loya sought Summary Judgment on the basis of

the so-called exclusion. The burden was always on Loya to show that the 515A restrictive

endorsement met all of the requirements set forth in Texas law in order for such restriction to be
valid. Here, Loya failed to plead, brief or prove sufficiency of consideration.

       C.      ALLOWING LOWER COURTS TO IGNORE RULINGS OF THIS COURT UNDERMINES THE
               JUDICIAL FUNCTION.

       The Constitution of the State of Texas establishes that the Texas Supreme Court is final

authority regarding issues that come before trial and appellate courts in the State of Texas. See

Texas Constitution at Article 5, Sec. 1 & 3. The theory behind such structure is that there is to be

a body for rendering a final resolution of an issue.

       Here, the First Court of Appeals simply ignores the express holding of this court. The

Opinion acknowledges that the Hofstetters properly raised the issue of want of consideration.

The Opinion notes, “the [Hofstetters] assert that Loya failed to adjust or discount Benitiz’

premiums to reflect the excluded driver provision.” See Opinion at page 11. The Opinion

continues by making the following statement, “The cases relied on by the Hofstetters do not

state a rule requiring any discount in exchange for an excluded driver endorsement nor can we

find any cases creating such a rule.” Id.

       In fact, the rule relied on by Petitioners is the rule of this Court. The named driver

exclusion failed for want of consideration. The Opinion writes a new rule at odds with the

holding of this court. It does so by simply ignoring pertinent, specifically on point, controlling

authority.

       If this Court fails to correct the error below, it gives carte blanche to courts such as the

First Court of Appeals to change Texas law. Should Texas courts wish to adopt such a

fundamental change in the law regarding the proper formation and modification of policies of

insurance, Petitioners respectfully suggest that this forum is the appropriate place for

examination of the legal principles and consequences of such an action.

II.    THE LOWER COURTS’ HOLDINGS CONFLICT WITH THE RULE IN BLACK.
       A.      THE TEXAS MOTOR VEHICLE SAFETY RESPONSIBILITY ACT (“ACT”) REQUIRES
               REVERSAL OF THE COURT HOLDINGS BELOW.

       In 1951 the Texas Legislature passed the Act. In 1981 the Legislature amended the Act

to impose a compulsory liability insurance duty on all Texas drivers. See Act of June 17, 1981,

67th Leg., R.S., ch. 800, et seq., 1981 Tex. Gen. Laws 3053. The purpose of the Act set forth both

by the Legislature and as acknowledged by the courts, is to provide third party motorists

protection from the negligent operation of motor vehicles. See, e.g., Wright v. Rodney D. Young

Ins. Agency, 905 S.W.2d 293, 296 (Tex.App.—Ft. Worth 1995, no writ). The Act requires,

among other things, that motorists not only purchase and maintain liability insurance but they

carry with them, in any motor vehicle, proof of such liability insurance. It is the law of the State

of Texas that motorists provide to law enforcement personnel valid proof of insurance.

       The Act requires any operator of a motor vehicle to provide to a peace officer, upon

request, evidence of financial responsibility. See Texas Transp. Code Sec. 601.053. The Act

requires the Texas Department of Insurance (“TDI”) to prescribe a standard proof of motor

vehicle liability insurance form. Id. at Sec. 601.081. The operative language requires the form

to state that the policy complies with the required minimum amount of liability insurance. Id. at

Sec. 601.081. The form must also include the make and model of each covered vehicle. Id.

       The Department of Insurance is further charged with the duty to establish an outreach

program to encourage compliance with the financial responsibility requirements. Id. at Sec.

601.072(c). The TDI has implemented a program it calls the “TexasSure program”. That

program provides a database to law enforcement to monitor the validity of the insurance. See

Appendix at Tab 6-D. The TDI promotes a slogan that “if you’re not covered, you’ll be

discovered.” See Appendix at Tab 6-E.
        Proper construction of the purpose the Legislature intended, then, requires that the proof

of insurance cards have substantive meaning. The program is intended to provide evidence of

actual insurance and not the mere possession of a card the meaning of which can later be

disavowed. This, of course, lay at the heart of this Court’s holding when faced with a similar

situation.

        B.    THIS COURT PROPERLY CONSTRUED THE ACT IN BLACK.

        This Court ruled that Summary Judgment on behalf of an insurer is not available in a

situation such as the one presented by this appeal. See Black v. Victoria Lloyds Ins. Company,

797 S.W.2d 20 (Tex. 1990). In Black this Court held that the existence of proof of insurance

issued in conformity with the Act along with questions concerning the representations made to

the policyholder operate to bar grant of Summary Judgment. That is precisely the situation here.

        In Black, an insurer sought excuse from performance under a contract of insurance on the

basis of exclusionary language. The insurance company issued a “proof of liability insurance

card” to the policyholder. Id. at 22.   “The card was a separate and distinct card which was also

to be carried in the [the insured’s] pickup truck.” See Black 797 S.W.2d at 23. This Court noted

that there was no indication in the insurance card that [the insured] did not have liability

insurance coverage for personal use of his pickup truck. Id. This Court further emphasized that

the proof of insurance card was to be made available to a law enforcement officer. Id at 24. This

Court concluded that there were issues of material fact concerning misrepresentation which

precluded Summary Judgment based on the “combined effect of the issuance and contents of the

insurance card and the policyholder’s affidavit.” Id. at 25

        Here, precisely the same situation applies. Loya issued a proof of insurance card. See Tr.

at 00108. Fact issues remain regarding the representations to the policyholder. See Tr. at 00063
and 000109.    Summary Judgment is inappropriate.

       C.      THE LOWER COURTS’ ADOPT AN INTERPRETATION OF THE STATUTE THAT ALLOWS
               UNINSURED DRIVERS TO OBTAIN AND USE MISLEADING PROOF OF INSURANCE
               CARDS.

       In order to uphold Summary Judgment the lower courts disregarded the framework put in

place by the Act and the TDI. Specifically, the First court of Appeals creates, from whole cloth,

a new rule. See Opinion at p. 12. The Court states, “The act does not require an insured to

notify family members that they have been excluded from coverage on a policy.”

       Under this novel construction of the statute individuals charged by law with the duty of

carrying valid insurance may, instead, operate a motor vehicle without any real insurance.

Moreover, the operator may do so without knowledge of the empty nature of the proof of

insurance card carried with the vehicle. Most critically, the Opinion now allows a proof of

insurance card to effectively fool law enforcement personnel. Unless corrected the courts of the

State of Texas will have given blessing to a mechanism by which drivers can carry insurance

cards that evade their responsibility under the Act but which do not evidence any real insurance.

Such a situation invalidates the very purpose of the Act.

III.   THE ERROR COMMITTED BELOW ENDORSES A SCHEME DESIGNED TO FRUSTRATE THE
       EFFORTS OF THE TEXAS DEPARTMENT OF INSURANCE AND TEXAS JURISPRUDENCE
       REGARDING THE UNINSURED MOTORIST CRISIS.

       A.      THE UNINSURED MOTORIST CRISIS IS ACCELERATING.

       The Texas Department of Insurance reports that despite its best efforts the number of

vehicles being operated on Texas roadways that are “uninsured” is actually increasing. See

Appendix at Tab 6-B (stating that ―DPS noted that in one major city, 4 in 10 drivers presented

fraudulent insurance cards to the officers‖). As part of its mission assigned by the Act, the

Texas Department of Insurance was charged with designing and implementing a system to
inform the motoring public of their duty to maintain proof of financial responsibility. See the Act

at Sec. 601.072. A response to the duties imposed on the Texas Department of Insurance was the

creation of the so-called “TexasSure program.” See Appendix at Tab 6-D. Under this system,

the TDI promulgated the following slogan: “If you’re not covered, you’ll be discovered.” See

Appendix at Tab 6-E. The purpose of the so-called TexasSure program is to allow regulating

authorities, such as peace officers investigating motor vehicle collisions, to access a data base.

This data base, theoretically, provides up to date information on the status of the motorist

regarding the insurance accompanying the motor vehicle. However, at this point the Texas

Department of Insurance states that it has no provision to require that the so-called proof of

insurance card list excluded drivers. See Appendix at Tab 6-C.

       B.      EMBRACING THE ERROR COMMITTED BELOW ALLOWS THE UNSCRUPULOUS TO
               CIRCUMVENT THE ACT AND LAW ENFORCEMENT MECHANISMS.

       The present case presents a precise setting for this Court to rule on the insurance scheme

endorsed below. Mr. Revuelta was the primary driver of a vehicle. Fred Loya issued a proof of

insurance card that listed a vehicle as an insured vehicle. See Tr. at 00108. Mr. Revuelta was

assured, by Loya, that he was a covered person under the policy. See Tr. at 00107. Mr. Revuelta

operated the vehicle on the assumption that he had complied with all appropriate statutes

regarding proof of financial responsibility. See Tr. at 00108

       Mr. Revuelta’s negligence was the cause of a collision. A peace officer investigated the

collision. Mr. Revuelta was not issued a citation for failure to show proof of financial

responsibility. Loya issued a proof of financial responsibility for just that purpose.

       However, despite these trapping of compliance with the statute, the position of Loya is

that no valid insurance exists. Thus, the court is confronted with the proposition of whether it

can allow a system in which insurers can convey to so-called policyholders proof of financial
responsibility cards which in fact prove no such thing.



                                CONCLUSION AND PRAYER

       Summary Judgment was improper. Petitioners respectfully request this Court reverse the

grant of Summary Judgment and remand to the trial court.
                                                     Respectfully submitted,


                                                     BY:_____________________________
                                                       MICHAEL W. LEE
                                                       Texas State Bar No. 12144225
                                                     770 S. Post Oak Lane, Suite 360
                                                     Houston, Texas 77056
                                                     713-961-2927
                                                     713-993-0700 (Fax)
                                                     ATTORNEY FOR PETITIONERS
                                                     DeANNA and PHILLIP HOFSTETTER


                               CERTIFICATE OF SERVICE

       I, Michael W. Lee hereby certify that on the 30th day of August 2011, a true and correct
copy of the foregoing was mailed via first class, United State mail, postage paid to the Clerk of
the Court and forwarded to all counsel of record as listed below via first class, United States
Mail, Certified Mail, Return Receipt Requested, Facsimile and/or Hand Delivery.

Aloysius Peter Thaddeus, Jr.
Dietz & Associates
11900 N. 26th St., #200
Edinburg, Texas 78539
                                                            __________________________
                                                            MICHAEL W. LEE
                                  CASE NO: 0l-10-00104-CV


                                           IN THE
                                 S{JPREME COURT OF TEXAS
                                       at Austin, Texas
l-




      DEANNA and PHILUP HOFSTETTER, INDIVIDUALLY and as JUDGMENT CREDITORS
                    and TURNOVER ASSIGNEES of MARIA I. BENITIZ

                                            Petitioners,

                                                 v.

                                LOYA INSTJRANCE COMPANY.

                                           Respondent

          DEANNA and PHILLIP HOFSTETTE& INDIVIDUALLY and as JUDGMENT
             GREDITORS and TURNOVER ASSIGhIEES of MARIA I. BENITIZ
                       APPENDIX TO PETITION FOR REVIEW

         From the I't Judicial District Court of Houston, Texas Cause No. 0l-10-00104-CV




                                      MICHAEL              LEE,
                                      Texas State Bar No. 12144225
                                      770 S. Post Oak Lane, Suite 360
                                      Houstor, Texas 77056
                                      7 13 -961 -2927, 7 13 -993 -0700 (Fax)
                                      Email : lawm wL@gmai l.com

                                                                  ATTORNEY FOR PETITIONERS




     August 30, 20ll
                 TABLE OF CONTENTS -APPENI}IX



                        NECESSARY CONTENTS


TAB   1.    Judgment of Trial Court

TAB   2.    Opinion of the Court of Appeals

TAB   3.    Texts of Statute and Required Documents:

       A.   Texas Transportation Code Title 7, Subtitle D, Subchapter D;
            (Section 601"071 through 601 ,088)

       B.   Declarations Page for Contract of Insurance;

       C,   Restrictive Policy Endorsement




                         OPTIONAL CONTENTS


TAB   4.    Edwards v. Travelers Indemnity Ins. Co.;

TAB   5,    Blackv" Victoria Lloyds Ins. Co.;

TAB   6.    Texas Department of Insurance Documents:

       A.   TDI document dated April 25,2011;

       B.   TDI web page inforrnation regarding TexasSure.com;

       C.   TDI document dated July   ll,20Il;
       D.   Download frorn www.texassure.corn,

       E.   Copy of automobile registration renewal notice
'\


     1
                                                                         Y_l
                                                                         I
                     HoJ.sjrETTE&
   I}GANNA and PHILLIP
                                   cAUsE No.        zoos44e94
                                                           IN
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   U\TDIVIDUALLY ANI' ASJUI'GMENT                     9
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                                       FINAL JUDGMENT

         came on to be heard the Defendant Loya Insumnce company's Motion for

  Summary Judgment. The parties appeared by and through their ailorneys
                                                                        of record. The
  court having considered the Motion, the summary judgment evidence presented,
                                                                               all
 respo$es on file, has ordered that the motion be granred and that the plaintiffshould
                                                                                       takc

 nothing by their claims-

        IT Is TI{EREFORE ORDERED, ADJUDGED AND DECREED,                            rhat the

 Plaintiffs, DeAnna Hofstetter and Phil Hofstetter take norhing by their suit
                                                                              and that the

 Defendant Loya Insurance Co. recover its costs

        The court orders execution to issuc for this judgment. The court denies all relief

. notgrantcdinthisjudgmcnt. -fltti5 ,s The                      -01r.^\ f rrtl @l
r.t J)ggocqruf ot( oV,,:. as.c,\
        Signed for entry on this rhe
                                                          ?^t+id,
                                                                         ^L,A ir   a-ppc<(^,bln,
                                       &iday of

                                                 JUDGE PRSIDING




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                                                                                               Page   I of 14

           g
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                                                                                                            $

           Opinion issued April 2g,ZAIh

                                                     B-



                                                          In The
                                               @ourt of €[S$esls
                                                      For The
\E


                                           fi irst @ istrict of 6,exns
\-                                             NO. 01-10-00104_cv

                 DEANNA AND PHILLP
                                   {WIpT"TER, INDIVIDUALLY AND AS
               JUDGMENT CREDITORS AND TURNb';il
                                                    ASSTCNEES OF IVTARIA I.
                                 BENITIZ, Appellants
lrht


                                                           v.
I

                                LOYA INSURANCE COMPANY, Appefiee


                                 On Appeal from the l29th District Court
                                          Harris County, Texas
                                    Triat Court Case wb. ZOO8_ 44gg4


                                       VIEMORANDUM OPINION
                This appeal concerns the applicability             of an excluded driver endorsement
       provision in an auto insurance policy.
                                              DeAnna and phillip Hofstetter appeal
                                                                                   the trial
       court's traditionar summary judgment in
                                                favor of Loya Insurance company.       They
       contend that the endorsement provision
                                              was procured by misrepresentations
                                                                                 and was not


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         enforceable. They also assert that the testimony of the policyholder
                                                                              was not credible and
         cannot support summary judgment.

               We affirm.

                                                  Background
               While driving a car owned by his mother, Juan Revuelta hit the Hofstetters car
        causing damages. Revuelta's mother, Maria Benitiz, insured that car
                                                                            and two other
        vehicles with Loya Insurance Company and had renewed that policy
                                                                         two times before
        the accident and once afterwards. In her initial policy, two renewals
                                                                              before the accident,
        and one renewal after the accident, Benitiz signed an endorsement
                                                                          to the policy in which
        she agreed that "none      of the insurance coverage afforded by this policy,, applied while
        Revuelta was "operating your covered auto or any other motor
                                                                     vehicle.,, The exclusion
       appeared on a separate page and included the       following language: *515A. EXCLUSION
       OF NAMED DRIVER              & PARTIAL REJECTION OF COYERAGES . . . wARNINGI
       READ THIS ENDORSEMENT CAREFULLY!'

              The Hofstetters sued Revuelta and Benitiz for negligence. Loya
                                                                             denied coverage
       and refused to provide a defense. The trial court found           in favor of the Hofstetters,
       awarded damag€s, and rendered a turnover order granting thern
                                                                     any rights held by
       Benitiz or Revuelta to sue under the Loya policy.

              The Hofstetters then sued Loya for breach of contract, violations
                                                                                of the Insurance
       Code, and negligence. Loya moved for a traditional summary judgment
                                                                           on the ground
      that the policy expressly excluded Revuelta as a covered driver.
L_-
                                                                       As summary judgment
      evidence, Loya attached the endorsement           to the original policy, the renewals, and
      excerpts from Benitiz's deposition testimony. The policy            is written in English   and
      Benitiz speaks Spanish primarily.           In her deposition, Benitiz     testified that Loya


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               explained the policy's terms to her in
                                                      Spanish when she purchased it and at
                                                                                           each of
         the renewals. Benitiz stated that she
                                                had the opportunity to ask questions and
                                                                                          that she
         understood the policy.

                The Hofstetters responded by citing other portions
                                                                   of Benitiz,s deposition
         testimony' Benitiz testified that she believed
                                                        the car itself to be insured even if the policy
        did not cover Revuelta' They also contended
                                                           that her credibility had been called into
        doubt' They also relied on Revuelta's deposition
                                                              testimony that Loya told him he was
        covered by the policy, but removed from
                                                      coverage after the accident. The trial
                                                                                                  court
        granted the summaryiudgrnent motion
                                                 and the Hofstetters      appealed.

                                              Summary Judgment
             In one issue, the Hofstetters argue the trial
                                                           court erred in granting Loya,s sunmary
       judgment motion' They contend
                                             they raised a fact issue on whether Loya
                                                                                             made
       misrepresentations to procure the driver
!'                                                 exclusion. They also contend that Benitiz,s
       deposition testimony is not credible
                                            and cannotsupport summaryiudgment.
       A.     Standard of Review

              we review a hial court's summary judgment de
                                                           novo. Travelers Ins. co.                       v.
       Joachim,315 S'w'3d 860, 862 (Tex. 2010).
                                                  Under the traditional standard for summary
      judgment' the movant has the
                                   burden to show that no genuine issue of
                                                                           material fact exists
      and the trial court shourd grant judgment
                                                as a matter         of law. TEX. R. cIV. p. l66a(c);
      KPMG Peat Marwick v. Harrison cnty. Hous.
                                                   Fin. corp., 9gg s.w.zd 746,74g(Tex.
      1999)' A defendant moving for faditional
                                               summary judgment must conclusively
                                                                                  negate
     at least one essential element of each of the
                                                   plaintiffs causes of action or conclusively
     establish each element of an affirmative
                                               defense. sci. spectrum, Inc. v. Martinez, 941
     s'w'2d 910' 911 (Tex' lggT). The motion must state
                                                           the specific grounds relied upon for



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         summary judgment. See TEX. R. CIV. P. l66a(c). When reviewing a
                                                                         5ttmmary
  judgment motion, we must (1) take as true all evidence favorable
                                                                   to the nonmovant, and
  (2) indulge every reasonable inference and resolve any doubts in the nonmovant's
                                                                                   favor.
  Yalence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); provident
                                                                               Life
  Accid. Ins. Co. v.    Knott,l28    S.W.3   d2ll,2l5   (Tex. 2003).

         Once a defendant moving for summary judgment establishes all of the elements
                                                                                                        ol
  an affirmative defense as a matter of law, the burden of production shifts to the
                                                                                    non-
  movant to defeat the defendant's affirmative defense. See EPGT Tex. pipeline, L.p.
                                                                                                        v.

 Harris Cnty- Flood Control Dist.,176 S.W.3d 330, 335 (Tex. App.-Houston
                                                                             [lst Dist.]
 2004' pet. dism'd). The non-movant's response will defeat a facially vatid affirmative

 defense   if it (l)   demonstrates that the motion's legal position regarding the affirmative

 defense is unsound, (2) raises a fact issue on the elements of the affirmative
                                                                                defense, or

 (3) sets forth a counter-affirmative defense to the affrrmative defense.t
                                                                           ,r" TEX. R.
 CIV. P. 94; see also Walters v. Cleveland Reg'l Med. Ctr.,307 S.w.3 d zgz,295 (Tex.
 2010) (holding that when movant defendant proved statute               of limitations   affirmative
 defense burden shifted         to   non-movant   to raise fact issue on lack of         reasonable
 opportunity to discover and bring suit within limitations period); G.C. Bldgs.,
                                                                                 Inc. v. RGS
 Contractors, fnc-, 188 S.W.3 d.739, 742 (Tex. App.-Dallas 2006, no pet.) (stating
                                                                                   that             if
 defendant establishes affirmative defense        in a summary judgment motion, ..the       burden
then shifts to the party opposing the motion to raise a genuine issue of material
                                                                                  fact or
show the defendant's legal position is unsound"); Head v. U.S. Inspect
                                                                       DFW,               Inc., lS9
S.W-3d 731,740 (Tex.           App.-Fort Worth 2005, no pet.); Resolution Trust Corp.               v.

Ammons,836 S.W.2d 705, 710 (Tex. App.-Houston                  flst Dist.] Lggl,no writ) (stating
that a plaintiff may defeat defendant's summary            judgment *by raising a fact issue on



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        each element        of its counter-affirmative defense"). If the non-movant    asserts a

counter-affirmative defense to overcome the established affirmative defense, the non-

movant must provide summary judgment evidence to raise a fact issue for each element

of the counter-affirmative defense. See Rabe v. Dillard's finc.,214 S.W.3d 767,768
(Tex. App.-Dallas20O7, no Pet.).

B.      Excluded Driver Affirmative Defense

         An exclusion from coverage is an affirmative defense. See TEX. INS. CODE
ANN. $ 554.002 (West 2009); see also Lone Star Heat Treating Co. v. Liberty Mut. Fire

Ins. Co., 233 S.W.3d 524, 526 (Tex. App.-Houston [l4th Dist.] 20A7, no                        pet.).

 Therefore, Loya bore the burden of proving that the parties agreed to the exclusion.          .See


McFadden v. Am. United Life Ins. Co., 658 S.W.2d 147, 148 (Tex. 1983) (stating that

insurance company moving             for summary judgment did not satis$ its burden to
demonstrate as rnatter         of law that claim was excluded under insurance policy). As
 summary judgment evidence of the policy exclusion, Loya attached the original excluded

driver provision, each of the renewals, and Benitiz's testimony identifying her signature.

         The Hofstetters argue that we must strictly construe the policy against the insurer,

 but that rule only applies      if the policy is ambiguous. An exclusion of coverage must be
 expressed in clear and unambiguous language.          Nat'l (Jnion Fire Ins. Co. of Pittsburgh,

Pa. v. Hudson Energt Co., Inc.,811 S.W.zd 552,555 (Tex. 1991). Only when a policy

 "is   susceptible   of more than one      reasonable interpretation" does a court "reso[ve the

 uncertainty    by adopting the construction that most favors the insured." Id.                The

 Hofstetters do not allege any ambiguity           in the policy. The policy clearly excludes
 coverage for any operations of the vehicle by Revuelta and in capitalized letters informs

 the policyholder of the driver exclusion. Loya, therefore, satisfied its burden of proof as



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          the movant to demonstrate its affirmative defense
                                                             that Revuelta was excluded
    from coverage' The burden of proof then shifted to
                                                       Hofstetters to raise a fact issue on
   that exclusion or to come forward with proof of
                                                   its own claim to negate that exclusion.
   C.     Fraudulent Inducement

          The Hofstetters next argue that Loya's fraud made
                                                            the exclusion provision
   unenforceable' The elements of a fraudulent misrepresentation
                                                                 claim include proof by
   the plaintiff that      (l)   the defendant made a material misrepresenration; (2)
                                                                                           the
   representation was false; (3) the defendant knew
                                                    the representation was false when made
   or made it recklessly without any knowledge of the
                                                        truth and as a positive assertion; (4)
  the defendant made the representation with the
                                                 intention that       it should be acted upon; (5)
   the representation was in fact justifiably relied upon;
                                                           and (6) damage to the plaintiff
  resulted' see Grant Thornton LLP v. Prospect High
                                                       Income Fund,314 s.w.3 d,gl3,g23
  (Tex. 2010); see also Ernst & young, L.L.p. paciJic
                                                   v.       Mut. Life Iw. co.,sl s.w.3d
  573' 575 (Tex' 20a\. As a general rule, a party is not
                                                          bound by a contract procwed by
  fraud' Formosa Plastics C*p. |ISA v. Presidio Eng'rs
                                                          & Contractors, lnc.,960 S.w.2d
  41, 46 (Tex. l99s); see arso schrumberger
                                                Tech. c*p. v. swawon, g5g s.w.2d l7r,
  179(Tex.1997).

         1.    Misrepresentations to Revuelta

      Revuelta testified that he believed the policy
                                                     covered his conduct while driving his
 mother's car and that someone at Loyatold
                                             him he was covered. Revuelta stated that:
      Q. Did anyone at Fred Loyalnsurance, when you went to make a payment,
      ever tell you were on the policy?

        A. Yes.   They told rne I was on it, but then I was taken
                                                                  off.
        a'Was it before the accident with the Hofstetters
                                                          that you were told you
       were taken offl



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         A. No. It was when that happened, right after it happened.

         Q. After   it happened, you were told you were not on the policy?

         A. Yea.

  This testimony constitutes the only evidence of a misrepresentation of his status as an

  excluded driver and amounts to some evidence that Loya made a misrepresentation to

  Revuelta. Granted, Revuelta testified shortty after the above exchange that:
       Q: okuy. when you went to make a payment, did anyone there tell you
       that you were-that it was your policy or that you were on th" policy?

        A: No. I guess they just accepted        a payment,   ffid that's it, I   guess they just
        looked at it as a normal transaction.

 This second statement contradicts his other deposition testimony, but that conflict may

 create a fact issue. See Wheeler v. Yettie Kersting Mem'l Hosp.,866 S.W.z               d   32, 50 (Tex.

 App.-Houston [lst Dist.] 1993, no writ) (stating internal inconsistencies in deposition
 testimony may raise fact issue at summary judgment). Reading the evidence in the light

 most favorable     to the Hofstetters as the nonmovants, they presented ,.more than a
 scintilla of evidence" establishing that a misrepresentation was made to Revuela.                     See

 Ford Motor Co. v. Ridgway,l35 S.W.3d 598, 600 (Tex. 2004).

         Rewelta, however, was not           a   party to the insurance contract signed by his
 mother. A false representation made indirectly to a third parfy and later relied on by the

defrauded pafty may constitute fraud under certain circumstances. ,See Bp Am. prad.
                                                                                    Co.
v. Marshall,288 S.W.3d 430, 44445 (Tex. App.-San Antonio 2008, pet. granted)
(holding misrepresentations made            to one sibling acting as agent for all              siblings
constituted misrepresentations         to all      siblings).   *[A]     person who makes               a

misrepresentation is liable to the person or class of persons the maker intends or .has



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 reason to expect'    will act in reliance upon the misrepresentation." Ernst & Young,5l
 S.W.3d at 578. "Even an obvious risk that a misrepresentation might be repeated to                     a

 third party is not enough to satisfy the reason-to-expect standard; rather, the alleged

 fraudfeasor must 'have information that would lead a reasonable man to conclude that

 there is an especial likelihood that      it will   reach those persons and    will   intluence their

 conduct."' Id. at 580 (quoting Restatement (Second) of Torts $ 531 cmt. d (1977))
 (emphasis added).

        To show indirect misrepresentation, the Hofsteuers must show Loya intended that

 the statement made to Revuelta reach Benitiz and induce her to sign the excluded driver
            T2J
 provision. A statement made to a son paying       his mother's car insurance bill would
 have an especial likelihood to reach the mother and influence her conduct regarding that

 insurance. The Hofstetters, however, did not argue here or at the trial court that the

alleged misrepresentation to Revuelta was communicated to Benitiz or that Benitiz relied

on that misrepresentation in signing the                   endorsement. Instead          of   indirect

misrepresentation, the Hofstetters argued that both mother and son believed the car to be

insured while driven         by Revuelta. Thus, they have not raised an issue on              indirect

misrepresentation to Benitiz through misrepresentations made to Revuelta.

       2.     Misrepresentations to Benitiz

       The Hofstetters next assert that they raised a fact issue that Loya mislead Benitiz

into believing that the policy provided coverage to her son because the car itself was

covered by the    policy. Th"y     assert Benitiz does not    read write or understand English
and was dependent on Loya to explain the English policy to            her. Benitiz testifred       that

Loya explained the policy in Spanish when she purchased the policy and at                         each

renewal. When Loya asked who she believed to be insured on the policy, she replied,



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              *well' I was
                                 it was only me." she stated that her son .owas
                             -                                                  not named on the
       policy," but at the same tirne stated that
                                                    the policy covered the car      if   she gave him
       permission to drive it. In follow-up
                                            questions, she testified:
             Q. And did you understand that the insurance did not appry
                                                                               to your son?
             A.   Yes.


       In response to questions from the Hofstetters,
                                                       she testified:
              Q. It was yoyl.Tderstanding, based on what Fred Loya Insurance
                                                                                  told you,
                                   drove ti'ot" cars thev were coveied for
                                                                           collisions they
             $11f f:T"""1ittren
            A. No.

            Q. Were you given an opportunity to ask questions          about what you were
            signing?

            A.   Yes.

            Q. And did you understand what you were signing?
            A:   Yes

                         understood that your son Revuelta was
           S*-flyou
           lnsurance policies?
                                                               not covered by these

           A.    Yes.


 Benitiz also testified, however, that she
                                           reported Revuelta,s accident to Loya ..not
 because I knew my son was insured
                                    but because my           car was insured by the insurance.,,
 Her testimony when read in its most favorable
                                                light, and giving all reasonable inferences
 to the nonmovan! is that she believed her
                                           car was covered regardless of who was
                                                                                    driving
 it.

          Benitiz's testimony does not raise a fact issue on
                                                             fraud. Fraud requires proof of an




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          aftirmative misrepresentation, not simply a misunderstanding by           a party. See
 orion Ref, Corp. v. UoP, 259 S.w.3d 749, 77112 (Tex. App.-Houston [lsr Dist.]
 2007, pet. denied) (stating misunderstanding and other evidence do not amount to

 actionable misrepresentations). The Hofstetters did not offer any summary judgment

 evidence that Loya made an affirmative misrepresentation to         Benitiz. She never testified
 regarding the substance of the explanations given by Loya about the terms of her policy.

 The source of her misunderstanding was not addressed in her deposition. Benitiz may

 have believed that the exclusion only applied         if Revuelta did not have her consent          to

 drive or believed that the policy covered the car and not the driver. Her belief is

 immaterial unless it was based on a misrepresentation by Loya.

          3.      Witness Credibilify

          The Hofstetters contend that Benitiz's deposition testimony is not credible because

 of   intemal inconsistencies and conflicts with Revuelta's testimony and Loya                       s

 documents. Th"y rely on Casso v. Brand,776 S.W.zd 551, 558 (Tex. lg8g), which

 stated   "If   the credibility of the affiant or deponent is likely to be a dispositive factor in

the resolution of the case, then summary judgment is inappropriate." Casso deatt with

the testimony of an interested witness and the requirement that their testimony be "clear,

positive, and direct, otherwise credible and free from contradictions and inconsistencies,

and could have been readily controverted,." See TEX. R. CIV. P. t66a{c); Ccuso, 776

S.W.2d at 558; CEBI Metal Sanavi Ve Ticaret A.S. v. Garcia,l08 S.W.3             d 464,465 (Tex.
App.-Houston         [4th Dist.]   2003, no pet.) (holding testimony of workplace supervisor

not sufficient to support summary judgment when his negligence was at issue, and
movant presented no other evidence of facts surrounding accident).

       Benitiz is not an interested witness to the suit between the Hofstetters and Loya.



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           Even   if
                   we consider her to be an interested witness indirectly,
                                                                           that interest favors
    the Hofstetters who are suing on her claims
                                                    under the policy and seeking to collect
    damages from Loya instead of from her and
                                                her son.
           More importantly, Loya established the existence
                                                            of the exclusion even without
    Benitiz's testimony' An affidavit from Loya's record's
                                                                   custodian attested to the excluded
    driver endorsement in the original policy and the
                                                        three renewals, one signed after the
   accident' The Hofsteffers did not object to that
                                                    evidence. It then became their burden to
   raise a fact issue thatLoya procured the policy
                                                     by fraud. see Black v. victoria Lloyds
   Iw' co'' 797 s'w'2d 20,25 (Tex. lgg0) (stating that policyholder
                                                                                     successfully raised
   fact issue on insurance company's summary judgment
                                                      motion arguing policy exclusion).
   Even   ifwe only give weight to the portion of Benitiz's
                                                                  testirnony that supports the
   Hofstetters, i'e' the testimony that she believed
                                                     the policy covered         the car while Revuelta
  drove it, they still failed to present evidence
                                                  of any misrepresentation by Loya.
        The Hofstetters contend that other evidence
                                                                  iri the record undermines              the
  credibility of Benitiz's testimony and raises
                                                         a fact issue on fraud. The remaining
  evidence they rely on, however, fails to demonstrate
                                                          any affirmative misrepresentation by
 Loya to Benitiz on the excluded driver provision.
                                                        They assert that Loya documents raise
 a fact issue' First, they allege that the policy
                                                  shows evidence of other fraud in that Loya
 charged a premium on a fourth car. Taking
                                                   this evidence as true, the inclusion of an
 extra car does not equate to a misrepresentation
                                                      by Loya regarding the excluded driver
 provision' second, they assert that Loya
                                            failed to adjust or discount Benitiz,s premium
 to reflect the excluded driver provision.
                                           The cases relied on by the Hostetters
                                                                                          do not state
a rule requiring a discount in exchange
                                        for an excluded driver endorsement, nor can
                                                                                    we
find any cases creating such a rule. see wright
                                                 v. Rodney D. young Ins. Agency,905


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       s.w.2d 2g3, 296 (Tex. App.-Fo* lVorth 1995, no writ); see also Emmert                    v'


Progressive cnty. Mut. Ins. Co., 882 S.W.zd 32, 34 (Tex.            App.-Tyler         1994, writ

                                                                      raises a fact issue
denied). Neither of these arguments undermines Benitiz's testimony or

as to fraudulent inducement on the excluded    driver provision.

       The Hofstetters also assert that inconsistencies between Benitiz and Revuelta's

testimony raise a fact issue on fraud and Benitiz's credibility- Even           if we assume the
testimony     to be    inconsistent, neither deposition demonstrates              an   actionable

misrepresentation. Both Benitiz and Revuelta believed that the Loya
                                                                    policy covered the

                                                                             was never
 accident with the Hofstetters. But the source of Benitiz's misunderstanding

 identified   in the summary judgment record and the only evidence of                      Loya's

 misrepresentations is the indirect statement to Revuelta.
                                                                                      to
       The Hofstetters finally argue that the excluded driver endorsement is contrary
                                                                            onto the road
 the Texas Motor Vehicle Safety Responsibility Act because it sends drivers

 who do not know that they are uninsured. see generally TEX. TRANSP- CODE ANN'                      $


 601.001   et seq. (west 1999). The purpose of the Texas Motor Vehicle safety
 Responsibility   Act ..was to protect potential claimants from         losses resulting from

 automobile accidents by requiring that all drivers obtain automobile liability
                                                                                insurance-"

 Wright,905 S.W.Zd at 295. The act does not require an insured to notify family
 members that they have been excluded from coverage on a policy nor does
                                                                                        it prohibit

 insurers from excluding drivers with their insured's approval. Numerous courts
                                                                                have

 held that the named driver exclusion is not against Texas public policy. Id- at 296;

 Zamora v. Dairyland County Mut. Ins. Co.,930 S.W.zd 73g,74L (Tex' App'--{orpus
                                                                                 Cnty'
 Christi 7gg6,writ denie d); Valdez v. Safeway Managing Gen' Agencyfor State and
                                                              *2 (Tex. App.-Houston
 Mut. Fire Ins. co., No. 01-g4-00196-cv, 1995 WL 7L4t4, at


                                                                                          41281201t
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       flst Dist.] Feb.23,1995, no writ) (not designated for publication);       W.   Alliance Ins.

Co. v. Albarez,380 S.W.2d ?10, 715 (Tex. Civ.       App.-Austin     1964, writ   refd   n.r.e.).




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                                                                                       Page 14   of   14




                                             Conclusion
          Loya established conclusive proof of its affirmative defense
                                                                       of exclusion under the
   auto insurance policy and the Hofstetters failed to raise
                                                             a fact issue on their claim of
   fraud' 'We ovemrle the Hofstetter's sole issue on appeal and affirm
                                                                        the judgment of the
   trial court.




                                                Harvey Brown
                                                Justice

  Panel consists of Justices Jennings, Higley, &nd Browrl.


  u      denlicguLteeff&mtitiuddfifnnsp tlmso0G rehsHidrmtuepqfffonrafiu$dnftfrge
         affirmative defense does not barthe plaintiffs claim._,See                           mp
                                                                    Tex. Beef Caule Co. v. Green,
         921 s'w'2d 2a3,, 212 (Tex. tlgoi (stating ttrai amrmative
                                                                         oefenses are matters of
         avoidance and defining such defenies). -when a defendant
        judgment based on an affirmative defense,                           moves for summary
                                                        the plaintiff can counter with its own
        "counter-affirmative defense', to that defense. '
 w
        accidnrtitiflherdu@ ,hst@i€vrtddsraturcbldeo4iherttFsitryr
        reliance in the renewals.
                                                                               6\rb   sbitfcirdahe




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    A
   TRANSPORTATION CODE CHAPTER 601. MOTOR VEHICLE SAFETY RESPO...
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             driver's l-icense or vehicle registration unless the person
             new
   establishes financial responsibility for the remainder of the two-year
   period beginning on the date the evidence of financial responsibility
   was requj-red.

  Acts 1995, 74th Leg., ch. 165, Sec. L, eff. Sept.. \, 1995                                       Arnended by
  Acts 1997, 75th Leg., ch. 1423, Sec.19.0g, eff. Sept. 1,                                       L9g1 .


         sec- 601.057. EVIDENCE THAT DOES NOT FULFTLI REQUIREMENTS;
  susPENsroN- rf evidence filed with the department does not cont,inue
  to fulfill the purpose for which it was required, t,he departmenl shall
  suspend the driver's license and al1 vehicle registrations or
  nonresident's operating privilege of the person who filed the evidence
  pending the filing of other evidence of financi_a] responsibility.
  Acts 1995, 74th Leg. , ch. 165, Sec. .J_, ef f . Sept. L, 1995.

   SUBCHAPTER          D.   ESTABLISHMENT OF FTNANCIAL RESPONSIBILTTY THROUGH MOTOR
                                   VEHTCLE LIABILITY INSURANCE

       sec- 601-071. MoroR vEHrcLE LrABrLrry TNSURANCE;
 REQUTREMENTS. For purposes of this chapter, a motor
                                                       vehicle liability
 insurance poJ-icy must be an owner's or operator,s pori-cy that:
             (1) except as provided by section 601-0g3, is issued by an
 insurance company authorized to write motor vehicle liability
 insurance in this state,.
             (2) is written to or for the benefit of the person named
 in the policy as the insured; and
            (3) meets the requirements of this subchapter.
Acts !995,74th Leg., ch. 165, Sec. I, eff. Sept. 1,                                       1995


        For expiration of subsections (a) and (d), see subsecti_on                                  (d)
        Sec. 60L.O'72. MINIMUM COVERAGE AMOUNTS, EXCLUSIONS. (a)
Effective April 7, 2oo!t t.he rninimum amounts of motor vehic]e
riabi-lity insurance coverage required to establish financial
responsibility under this chapter are:
             (1) $25,000 for bodily injury
                                           fo or death of one person in


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            one accident;
            (2J $50,000 for bodily injury to or death of two or more
persons in one accident, subject to t.he amount provided by Subdivision
 (1) for bodily injury to or death of one of the personsi and
            (3) $25r 000 for damage to or destruction of property of
others in one acci-dent.
       {a-1) Effective January 1-, 2OIL, the minimum amounts of motor
vehicLe liability   insurance coverage required to establish financial
responsi-bi11ty under this chapter are:
            (1) $30,000 for bodily injury to or death of one person in
one accidenti
            (21 $60,000 for bodily injury to or death of two or more
persons in one accident, subject to the amount provided by Subdivision
 (1) for bodily injury to or death of one of the persons; and
            t3) $25,000 for damage to or destruction of property of
others in one accident.
       (b) The coverage required under this section may exclude, with
respect to one accident:
            (1) the first $250 of liability for bodily injury to or
death of one personi
            {2) the first $500 of liability for bodily injury to or
death of two or more persons, subjecL to the amount provided by
Subdivlsion (1) for bodily injury to or death of one of the personsi
and
             (3) the first $250 of l-iability for property damage to or
destruction of property of others.
       (c) The Texas Department of Insurance shall establish an
outreach program to inform persons of the requirements of this chapter
and the ability to comply with the financial responsibility
requirements of this chapter through motor vehicle liability   insurance
coverage. The commi-ssioner, by rule, shal-1 establish the requirements
for the program. The program must be designed to encourage compliance
with the financial responsibility requirements, and must be made
avail-able in English and Spanish
       {d} Subsection {a) and this subsectj-on expire December 31, 2010.
Acts 1995, 74th Leg., ch. l-65, Sec. L, eff . Sept. 1,                       1995.
Amended by:
          Acts 2007, 80th Leg., R.S., Ch. 1298, Sec. 1-, eff . September                L,



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                2007.


           Sec. 601 . 073. REQUIRED pOLICy TERMS . {a ) A motor vehic]_e
   liability insurance poJ.icy must state:
                (1) the name and address of the named insured;
                (21 the coverage provided under the policy;
                (3) the premium charged for the policy;
              (4) the policy period; and
              (5) the limits of liabi_1iry.
          (b) The policy must contain an agreement or endorsement that
  the insurance coverage provided under the policy is:
              (1) provided in accordance with the coverage required by
 this chapter for bodily injury, death, and property damage; and
              (2, subject to this chapter.
         (c) The liability of the insurance company for the insurance
 required by this chapter becomes absolute at the time bodily injury,
 death, or damage covered by the poricy occurs. The policy may not be
 canceled as to this liabifity by an agreement between the insurance
 company and the insured that is entered into after the occurrence of
 the injury or damage. A statement made by or on behalf of the insured
or a violation of the policy does not void the policy.
         (d) The policy may not require the insured to satisfy a
judgment for bodiry injury, death, or property damage as a condition
precedent under the policy to the right or duty of the insurance
company to make payment for the injury, death, or damage.
        (e) The insurance company may settle a claim covered by the
policy. rf the settlement is made in good faith, the amount of the
settlement is deductible from the amounts specified in Section 601.072.
        {f) The pori.cy, any written applicatlon for the policy, and any
rider or endorsement that does not confl-ict with this chapter
constitute the entire contract between the parties.
        (g) Subsections (c)-(f) apply to the policy without regard to
whether t.hose provisions are stated in the policy.

Acts 1995, ?4th Leg., ch. 165, Sec. 1, eff. Sept. 1,                                            1995.

      Sec. 6oL.014. oprroNAl, TERMS. (a) A motor vehict-e liability
insurance policy may provide that the insured shall- reimburse the


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        insurance company for a payment that, in the absence of this
  chapter, the insurance company would not have been obligated to make
  under the terms of the policy.
        (b) A policy may allow prorating of the insurance provided
  under the policy with other coll_ectible insurance.
  Acts 1995, 74th Leg., ch. L65, Sec. 1, eff. Sept. 1,1995.

        sec. 601.075. pRoHrBrrED TERMS. A motor vehicle liability
 insurance policy may not insure against liability:
             (1) for which the insured or the insured's insurer may be
 held liable under a workers' compensation law;
             {21 for bodily injury to or death of an employee of the
 insured while engaged in the employment, other than domestic, of the
 insured, or in domestic employment if benefits for the injury are
 payabJ-e or required to be provided under a workers t compensation law,.
 or
            (3) for injury to or destruction of property owned by,
 rented to' in the care of, or transported by the insured.
 Acts 1995, 74th Leg., ch. 165, Sec. L, eff. Sept. L,                                  1995.

      sec. 601.076. REQUTRED TERMS: owNER's polrcy. An owner's
motor vehicLe liability  insurance policy must:
            (1) cover each motor vehicle for which coverage is to be
granted under the policy; and
            {2) PaY, on behalf of the named insured or another person
who, as insured, uses a covered motor vehicle with the express or
implied permission of the named j-nsured, amounts the insured becomes
obligated to pay as damages arising out of the ownership, maintenance,
or use of the motor vehicle in the United States or Canada, subject to
Lhe amounts, excluding interest and costs, and excl-usions of Section
 60r .072    .


Acts L995,74th Leg., ch. 165, Sec. 1, eff. Sept. 1,                                    1995.

     Sec. 60L.077. REQUIRED TERMS: oPERATOR's PoLIcY. An
operator's molor vehicle liability insurance policy must pay, on
behalf of the named insured, amounts the insured becomes obligated to

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                                                  SAFETY RESPO... page 17 of 54


            pay as damages arising out of the use by the insured
                                                                   of a motor
   vehicle the i-nsured does noL own I sub j ect to the same territorial-
   l irni ts, payment limi ts , and exclusions as for an owner's policy
                                                                          under
   Section 601 .01 6.
   Acts 1995, 74th Leg., ch. L65, Sec. L, eff. Sept. 1_,1995.

        Sec. 601.078. ADDITIONAL COVERAGE. (a) an insurance policy
  that provides the coverage required for a moLor vehicle liabi-lity
  insurance policy may also provi-de lawful coverage in excess
                                                               of or in
  addition to the required coverage.
         (b) The excess or additional coverage is not subject
                                                               to this
  chapter.
        (c) rn the case of a poricy thal provides excess or
                                                             additional
  coverage, the term "motor vehicre liabirity insurance poricy,,
                                                                  applies
  only to that part of the coverage that is required under this
  subchapter.

  Acts 1995, 74th Leq., ch. 165, Sec. l, eff. Sept. 1,                    1995.

       sec' 601'079' MULTTPLE PolrcrEs. The requirements for a
                                                                  motor
 vehicle liabil-ity insurance policy may be satisfied by
                                                         a combinat,ion
 of policies of one or more insurance companies if the policies
                                                                 in
 combination meet the requirements.

 Acts 1995, ?4th Leg., ch. 165, Sec. L, eff. Sept. !,
                                                                         1995.

        sec- 601.o8o. TNSURANCE BTNDER. A binder issued pending
                                                                  the
 issuance of a motor vehicle liability insurance policy satisfi-es the
 requirements for such a policy.

Acts     1   995,   ?4   Lh Leg. , ch.     1   65, Sec. I, eff. Sept. 1, 1995.

          Sec.      601 . 0B 1 .
                     STANDARD PROOF OF MOTOR VEHICLE LTABILITY
INSURANCE FORM. A standard proof of mot.or vehicle liability
                                                               insurance
form prescribed by the Texas Department of rnsurance
                                                      must include:
           t1) the name of the i_nsurer;
           {21 the insurance policy number,.
           (3) the policy period,.


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TRANSPORTATION CODE CHAPTER60I. MOTORVEHICLE SAFETY RESPO... Page 18 of 54


            t4) the name and address of each insured;
            (5) the policy limits or a statement that the coverage of
the policy complies with the minimum amounts of motor vehicle
liability lnsurance required by this chapter; and
            (6) the make and model of each covered vehicle.
Acts L995, ?4t.h Leg., ch. L65, Sec- L, eff . Sept. 1,                                   1995'


        Sec. 601.082. MOTOR VEHICLE IIABIIITY INSURANCE;
CERTIFICATION. If evidence of financial responsibility is required                                       Lo
be filed with t,he deparLment under this chapter, a motor vehicle
liability insurance poticy that j-s to be used as evidence must be
certified under Sect,ion 601-.083 or 601.084 .
Acts 1995, 74th Leg., ch. 165, Sec- I, eff . Sept. L, l-995'

     Sec. 601.083. CERTIFICATE OF MOTOR VEHICLE LIABILITY
INSURANCE. (a) A person may provide evidence of financial
responsibifity by filing with the department the certificate of an
insurance company authorized to wrj-te motor vehicle liability
insurance in this slate certifying that a motor vehlcle liability
insurance policy for the benefit of the person reguired to provide
evidence of financial responsibility is in effect.
        (b) The certificate must state the effective date of the
policy, which must be the same date as Lhe effective daLe of the
certificaLe.
        (c) The certifi-cate must cover each motor vehicle owned by the
person required to provide the evidence of financial responsibility,
unless the policy is issued to a person who does not own a motor
vehicle
      (d) A motor vehicle may not be registered in the name of a
person requi-red to provi-de evidence of financial responsibility unless
the vehicle is covered by a certificate-
      (e) If a person files a certificate of insurance to establish
financial responsibility under Section 601.153r the certificate must
state that the requirements of Section 601.L53(b) are sati-sfied.
Acts 1995 , l|tjr Leg., ch. 165, Sec. L, eff . Sept. 'J., 1995.                                  Amended by
Acts 199?, 75th Leg., ch- L1B, Sec. Lt eff' Sept' It ].997'


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                                                                                  ':i    ,:



    TRANSPORTATION CODE CHAPTER 601. MOTOR VEHICLE
                                                   SAFETY RESPO... page 19 of 54




          Sec. 601.084. NONRESIDENT CERTTFICATE. (a) Subject Lo
   subsection {c), a nonresident owner of a motor vehicle that is
                                                                     not
   registered in this state may provide evidence of financiar
   responsibifity by filing with the departnent the certificat.e of
                                                                       an
   insurance company authorized to transact busi-ness in the state
                                                                     in
  which the vehicre is registered certifying that a motor vehicle
  liability insurance policy for the benefit of the person required
                                                                          to
  provide evidence of financial responsibility is in effect.
          (b) subject to subsection (c), a nonresident who does not
                                                                        own a
  motor vehicre may provide evidence of financiar responsibirity
                                                                    by
  filing with the department the certificate of an insurance company
  authorized to transact business in the state in which the nonresident
  resides.
          {c) The department shal1 accept the certificate of an insurer
  not authorized to transact business in this state if the certificate
  otherwise complies with this chapter and the insurance company:
              t1) executes a power of attorney authorizing the
 department to accept on its behaLf service of notice or process
                                                                      in an
 acti-on arising ouL of a motor vehicle acci-dent in this state,.
                                                                    and
              (2) agrees in writing thaL its policies will be treated
                                                                           as
 conforming to the raws of this state relating to the terms
                                                               of a motor
 vehicfe liability insurance policy.
         (d) The department may not accept a certificate of an insurance
 company not authorized to transact business in this
                                                        state during the
 period that the company is in default in any undertaking
                                                             or agreement
 under this section.
 Acts 1995, 74th Leg., ch. ]-65, Sec. L, eff. Sept. Lr                                                 Lggs

      Sec. 601-085. TERMINATION OF CERTIFIED pOLICy. (a) rf an
insurer has certified a poricy under secti-on 601.083 or 601 . 084,
                                                                    the
poricy may not be terminated before the sixth day after
                                                         the date a
notlce of the termination is received by the department except
                                                                 as
provided by Subsection (b).
      (b) A policy that is obtained and certified terminates a
previously certified policy on the effective date of the certification
of a subseguent policy.


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      Acts 1995, 14th Leg., ch. 165, Sec. I, eff. Sept. L,                                                       1995.

           SCC. 60]..086. RESPONSE OF INSURANCE COMPANY IF POLICY NOT IN
      EFFECT. An insurance company that is notified by the department of an
      accident in connection with which an owner or operator has reported a
      motor vehicle liability  insurance policy with the company shall advise
      the department if a policy is not in effect as reported.
     Acts 1995, 74th Leg., ch. L65, Sec. j_, eff. Sept. \,1995.

             Sec. 601-.088. EFFECT ON CERTAIN OTHER POLICTES. (a) This
     chapter does not apply to or affect a policy of motor vehicle
     liability insurance required by another raw of this state. rf that
     policy cont,ains an agreement or is endorsed to conform t.o the
     reguirements of this chapter, the policy may be certified as evidence
     of financial responsibility under this chapter.
             (b) This chapter does not apply to or affect a policy that
     insures only the named insured against liability resulting from the
     maintenance or use of a motor vehicle that is not owned by the insured
     by persons who are:
                  (1) employed by the insured; or
                  {2) acting on the insured's behalf.
     Acts l-995, 74th Leg., ch. l_65, Sec. l, eff . Sept. L, 1995.

                      SUBCHAPTER                      E.   ALTERNATIVE METHODS OF ESTABLISHING FINANCTAL
                                                                   RESPONSTBILITY

           Sec. 60L.L2l. SURETY BOND. {a) A person may establish
     financial responsibility by filing with the department a bond:
                (1) with at least two individual sureties, each of whom
I   otns rea] property in this state that i-s not exempt from execution
    under the constitution or laws of this statei
                (2) conditioned for payment, in the amounts and under the
    same circumstances as required under a motor vehicle liability
    j-nsurance policy;
                (3) that is not cancelable before the sixth day after the
'   date the department receives written notice of the cancelLation;


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                                OIrD AI.IERICAII COIIlnff UUfm[I,
                                   FIRA I}ISTIRE}TCE CUUPEIrr
                                                                                                                    THE eAt           llsco            Gof,ilPAlff        ES
                              6210 CarlFbell 8,oad., SuLto                        2OO
                                DalLas, Texas 7SZ4g                                                                MGA Agency lnc.
                        (L COUl{ff UIInteIr IIISURANCB C€!,I9Alnfl                                                 3333 Lee Parkuray, Suite 1100
                                                                                                                   Dallas, Texas 75219
                    PERSOI.IAL AUTO

       Named lnsured and Addross                                                                         Policy   l{umber o3oecnoottlr.s-02
                                                                                                         pgllrryperlod: Fron O3_O1_40O7 To 09_01_200?
             ERrx BAs.prEr{
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             HOOSTON, 11x 7701{                                                                          lnsur€d as staGd hqreln. .
                                                                                                         Agsnt Atac AFFoRDABI,E              rilgrRANcE                 A{06?9
                                                                                                                   3203 Ft{ 1960 ilESr
           EIIDORSEXENT       DATE     : O4-25-ZOO?                                                                l{oOSi:rON' TX 77A68
        NDD     T   DR VER,
      Arrlo          sar Make                                                             lD Numbsr                                   Tsrr.       Drivsr Class
           01       2492 FORN                                                             1FTRPO7242Y\8'34501                           o1             EE               10
           a2       200s CI{EII|ROLET                                                     !G1AL52?45?512250                             o1             G{               15

       Canerage is pnordded      wtre@                                 am   shor,rrn for Bre col/€rags
                                                                                                                                                  Pramiums
                       Coveragss                                                  Umib of Llability                                   Auto    t        Auto    z        Auto    r
      A         IJABIUTY COVERAGE
                Bodlly lnJury Uabiltty                                            $ zo, oz9          each person                  $      ag  oo$
                                                                                                                                              .             Lzz. oo $
                                                                                  $lo,ozg            each acsident
                Property Darnage Llabllity                                        $ 15 , A29         each accident                $     101. Oo$            138. oo$

       B        TTJIEDICAL PAYilIE      NTS COVERI\GE                             $                  each Ferson                  $                $               $
       I
      B         PERSONAL INJURY PROTECTION                                        $                  each person                  $
                                                                                                                                                   A
                                                                                                                                                   +               $
      ?         COVERAGE
      c         U}IINSUREDT U$DERI NSURED MOTORISTS
                Bodlly lnJury Liabitlty                                           $                  each person                  $                $               $
                                                                                  $                  each accldent
                trroperty Darnage Llabllity                                       $                  each accldent                $                $               $

      D         COVERAGE FOR DAfifiAGE TO YOUR AUTO Auto                                 r       Auto    Z        Auto   r
      .         Other than Collislon
                Actual Cash Value unless otherwise stated

                Collislon
                                        Less Deducthle                            $ l.ooo$           r,ooo$                       $ eq.oo$                  rB?.oo$
                Actual Cash Value unliss otherwtsa staled

      523C RENTAL RF|MBURSEI!,IENT GoVERAGE
                                                 Less Deduc{lble                  $ r,ooo$    r,ooo $                             $ z0t.oo$ {es.oo$
                                                                             $ 20 per day $6OO Maxlmurn
      5e4A Tolrytltc AND |-.ABOR COST                                        $ +O Per Dlsablement                                 $$$
                 SPECIAL EQUIPMENT
                                                                                                                                  $$$
      Forrn numbers of endorsernents attached to pollcy                                         Subtotal by Vehlcle               $ qcl oo$ s4z-0o$
           l{GA- 100,                                                                                        ATPF Fee             $    1oo
                                                                                                             Pollcy fee           S 16. oo
                                                                                                    Total Premlum                 $   1,{70.oo
    Customary 0perators                             Ucense      No-      Excl.        SR-?z Customary Operators                         License No-            Excl.    SR-ZZ
   ERTT. BASTIEN                                      0112581     t
   HIIJq.DI     SJ    PAC                             24381524


      Loss Payee iay        loss under part o ls payaile as lnleresl rnay sppoar to fie named hstrod and:
       02 Hrs FINAI|CIAr rNe.                     po 80x 1680{8                           IRVING                             TX 7sOI6

                     dsscribod ara princlpally gara               at the above addrgss unlegs oth


   y",g_!_TS:_T,!tP:                    y*   *    tnstattrnntravm
   tlr rlsra0mdil paym€Ilt dan lg trDhblbd by olher rule
                               ls                                     or by staMe
   lssued: o{ -26 -zoo          t                                                                                                                              1 Page of t
tJSiSlCrsl
                                                                                                                                                                                GA|N 0222
\


    c
                                                                                           ,:.   t9?:-639-{335       PiGE: 9o.l iJF o13




               firE &Arilfc{l ccltfrrrj${llEs                                          OLI} AIIIERICAN COUNTY MUTUAL FIRE IIISURANCE COIIIPAf,IY

                                                                                           POLTCY NUMBER: 03OAGR03rt7654-00
 Xrtrltlgmt llc.
 foiol   rgr&&t
                                                                                           PRODUCER       NO A4g5zs
 Drrtql tx?Eilt
 TahrhareF{!!*tfil                                                                                               AAEC AFFORDASI-€ IT'ISTIRAIICE
                                                                                                                 3Zs3 Filt t9E0lfiJEST
                                                                                                                 Housroil   Tx ?7088

 REtECflOil Or UNITISUFEIyU]IDER${S|,.IRED lilOTORrsT COITERACE,                                                                    $IJURY PROTEGTIO}T
 Ar raqr*cd bf Affdt 5 0F1. Trnr lnrurstca Cds. ar gmgndsd, I han bgan                 The urdgtdgned trucby rr{e$ Personal        ln}{
                                                                                                                                    Prroteclbn h accedsus uli$
 dnen ltu qptnily lo Rr$aee Uninrssdlurdorhsred Molorlstr Cwarggs                      lb tight of ralac{loa Fro'd.led h Adiclg 5 O$'3   d lhe Teps
                                                                                                                                                lngurancs Code il iE
 in anrqrdr $ b tha aulqnob[r fiab]|fftf covuragt firrff.r I harn m $ig po@ I          glto tlrfuood ln accordtnce wilh sgU artide thal unlsss lbo urderdEred
 haro also becn glrrfl $a dght b tdscl Uninsr.redrUn&&Errrad illolorisl                requeets such coverage h untfug- 3ugt coverage need not be provlded kr o
                                                                                       tequeets                         3uqt                nol ba                hr
 Gowrqpn lolkm*                                                                        urpnl€snsr{al lo a reos"rat  **i,.ffi11;:
  II   I hGrebf nlsdl,rnhsurednlnderin$ned ilolsrisl Covuaga in ilr Br{irsty

  2  I truubf tqlad tftfirsrEdnhrdErlnsrred itolorEt Coroagc wilh       rspedr   to    nOunfs Srgnalure
  Pmpsrly llamge tbblfty Cavangc
                                                                                                            STATEMENT OF HO COifi'IERCTAL USE
  Tb rclat;Eon ffitld sbow shst .Fly an llilr pdief snd on atr future                  I t€rabf cerlily lhal the rafiids{G'} lnsurcd by $n poliey appl'ed for arE not used
  nne$tals of cudr pof,ry, arul an g[ andorsomenls bacauss of a cfiange in             hr any commerciel or business purposes" I wltl not u6e my whbh ln lhe course
  rnffdc fr Eoysragp. sr bocsssg of an hlempllon d correrags, rmlesc I notrf           of rny cmployment or rvtilc I arn sslf-omployad This slalemar{ ls rnade brthr
                                                                                       tr rpeie of lndt dng lhe lnsurancc co{npany lo lssue lhe ctrrsrage torwldch I
                                                                                       havr applied and url[ form pegdqrp,opptlcatioo
                                                                                       ,[ri11fi,i#gjLiu,"'
                                5t5A Ot{   AtL t{Oll-DRl1/ERS                          I hereby maf.e appfcalion forlrrsurance lo
         51sA EXCUTSIOI{ OF }!A$EO DRfVeRS AlrD F RTIAL netECnON OF                    Old American County Mutual Fire lnsuranca Gompany
       Ct)\TERTGES oR UUST SllfltICOrrFLEfE h|AuE OF E(CLUDED DRrlnER                  I hareby apoht ttm Predrled and Sec.'atary ol tha Cornpany, or ether ol fiem.
                                      r/uARltrilG                                      or [r* suerstott h offrca. whh fu! por*m ln slth6 to appolrt or lo substilute, lo
  Ttds acftnousladgstrcnl end rcpclbtr ls appllcaHa lo all rwreluals lgsued by us or   bc  fs urdarslgnred's lavsfid ?rg.! and Eilomay ln fEci anil sald attomey ls
  arry af5fatcd insursr Haf;?ver,1rts must provide a nolica with eacfi reneurd as      haFby aulhorized and empourercd to aflend any pdlsyholder meathE. cr any
  tslftnrci *thls p$ct srtialng a namsd tlrttsr exduslon.'                             adfotlmmerrt{s} lhereof and lo represerd. uole and otfie$r,tsa scl for tha
  You egrac Srat nona of ths hsurance covaragsr afiordEd by lhls policy shail          undorsbqed rters porsmally presont This proxy slra[ continua h lb'$s lsrthe
  aprplywila                                                                           lullpariod ottho polieyand any rana*al rneraof. unlegs soonsrrercked ln
                                                                                       vatirqg end shal bs herocable lor lhe fufi perbd permitted by kvr I ageg to bo
  The Frcftrded Ddrer{s}t[AhnA PAC                                                     gonmod by lhe provlslons of Chapter l?. Arlide 17. Texas lnsiliancg-Code of
                                                                                       195t there is no contlngent liabilitlf the pollcy lorvrtrlcfr t am apptylng is non
  ls opcralhg !'ot r covared aulo ot eny olher rnobr wtricle You lirrthr agrrea lhal
  ftir ardoreerneirtrff dro ran c as a retecliol of UninsursdrunderinsurBd
                                        Protcclion Coverage rrtrlte )our   cwered'.    j;ffi:f;.:;^i*^",.&l[
                                   opsraled by the exdudad driwr
                                                                                       Dare_#_tffi;                                         r,r,, €t lQ ?n.Y'
  rqdstswte.Jgc*



lhltlltapCyloft?Company.l*a_Potcfofinanralrce acaslffihhfrbapptlcallarmftobaslsoflh€sblemcnlsconbincdfturh                                llgreofsuctin&mati{rnbfsls!
9mq€&tgquqldttalEll.ltaftdse0tgro.oltudrktyCor4cy.oatroydtdrbctumedtolh!companyfsirrsu'ftier,tturros.orfmyp"emiun                               nui!fibrre
lstnlhoaodbrrybanhhrlsudlpo0cyvritrbanulendroldrndnbcornrag!iln!bertrorded            lrrndsrcl&d;rqttinohqrtymeybairacidnh-.ritp,"rfi;- --
apdcalol hbmrfioct cwcroftg c$aader. gdnord rrtrtalioa gt son l charsclslslhs ahd moda of hihg, Upor, ulitten retirr:st eidtiota montratioo rii o ti
nabf!andrcoFol$rllpqtlorf,bmsdc.tlttoFovidsd lhrcet.rurhodaslhecorpanyloobtdnfiomitresrabgcoiyotUa-Vrr,iueneponsArrsotn
vdhider Rspod!    otr al &tvcrr tslcd trerdn Shoutd a Molor Vetrdc Repo4 dtrr96e qi16 lho infonnation fumtshed on thb spblca&tn ooii Jftoirafng             O*iiiitO".
bc oetermlnat, I horeby csrrentto psy sny resuharrl            premium




Tha undcnlgned heoby uarards and               lhal b thc best of his                      mallon contnlned hemin k correcl the stialemenle hgrsin ars Llose ol lhe
applcailvfro lus sqned  thls app[eatlon in my presenca. and lhgl lhe                                     ars rslslning a dupllca{a signedcorry hsreof I am tegalyquallfied
        ltfi applhaUon orr lhs behgtf of the apptican!
lo subnit




olorqrrl'q                                                                  P^cFiorr
\


    4
                         TBAvELEBs      *:HH":rgH*                        ?'   EDwAn'Its     rer'    535

       sionsinthepolicy,andassuchshouldhavcAswereadthcaboveitshowsonits
       beensupPortedbyadditi,onalconsideration.facethatthercwasnoaddiliotnlconsidcr.
               Nat. ins. c". ;. Tezgue, ?37 ation for the cndorsemcnt.
                                                                         Similar recitats
       l;;;;
                                 epp. is22; opinioo of considcration have bcen hcld ineffectivc
       5-w. 24g (Tex. comm. p."iti"
                   'Wackcrlc            Empl,oyer's in Southern Farm Burcau Casualty Ins' Co'
                 ,            ".                               states, 395 F.zd 176 (8th Cir.
       iiii-r_'.,'ztg F.zd t @th Gr.), ""rt. _au- v. _uaitcd wackcrlc v. Pecific Employer's
       "i"ri"ol
             -3];       gss, 75-s.Ct. eea: 99 I-Ed" 1968) aad
       ;;,         u.s.
       fin OgSSr; Annot., 52 A'L'f.Z| VS fns' Co" orfrc' With no considcration
       (tss7,.
                                                                                              to

                                                           il:tr'tl"":#ltr *ffiffiJ:l"lT;
                                                                              Williarn T' Ed-
                                                          was
                                                           poticy          ineffcctivc' '
         tU   Petitioners contcnd that Travelcrs' wards' III' was an insurcd undcr thc pol-
                                   -'igl"
       forbearance to c*erc'""'tit        of
  ,f
                                             """'
                                          endorse- icy and Petitioners
                                                                       are liable on the iudg'
                 corsideratit;-;";;i;
       cellation was                                       ment entered below'
  :s
       ment Waiving th" q;i;;o"-tight           l'"t
  .o
       ieen held to be sufficient considcration  for T'he courts bdorr rcndercd judgmcnt
  h
       it i. typ" of poticy alteration. Sce Massa- based on the setttements and ordcred that
  ]    .hos.G Botding & Itrs. Co. v. Ftorencc' plaintiffs recovcr $39p97.50 from Travct-
 rd
       ire s.w. 471 (Tex.civ.App'-El Paso irs rndemnity company and $75,000'00
       1919, no writ). We agrcc that forbear- from Mission Insurance Company. In
  l-                                                                                   rc-
       ance- can be iufficient considcration
                                              as a forming the trial court judgmcnt tle
 st    general rule of law but we can not tct Court of Civil Appeals ruted that Travclers
 rs    Ihe rute control a case without some re' owcs interest on the combincd obtigation
 rl-   lated evidence to bring the rule into play' of both companies undcr the "Supple-
 le    There is no evidencc of forbearancc.in mentary Palrmcnts" clause in its policn
 ul    this case. All communications regarding citing Plasky v. Gulf lasurancc C,o., 160
 ld    the Student Rcstrictive Endorsement forms Tex. 612, 335 S.W.zd 581 (1960), and
 u-    are contained in the TranscripL In none Baucum v. Great American fns' Co', of
 ds    is there thc sligbtest hint that cancellation New York, 370 s.w2d 861 (Tcx.sup.
 nt    of the policy might rcsult from failure to 1963). In both of those cases thcrc wcre
       sign the forms. Thc evidence onty shows             judgments against       thc insurcds.   Thcrcin
       that Travelers made repeated attetnpts for          fics the distioguishing clemcnt which rc-
                                                                              'tlre Court of Civil Ap-
 as
       four months to obtain thc signed forms, but         vcals the crror of
 ed
       there is no cvidence to show that they had          peals.
lrn
       detcrmined to canccl Norman McVcan's
ad
       policy if bc did not sign.-- O" .,n:.b.l"i:
                                                     t3l Under..part l-Liability" Traveters
he
       of tbis rccord we are unable to tto]d th:t  pri.ised to ,,defend any srift agaitttt tlrz
rat
       Travelers refrained from exercist-ng :t" insored or in the altcrnativc, aftcr in-
       cancellation right in consideration for the vestigation, make .rsettlement oI any claim
iue
)ut                            restriction.                                                     ,,Sup
       insured's signing thc                               or      as it deems expedicnt.o Thc
                                                                cr,=r',
5e-
rds                                                        plcnrcntary Pa5rments" causc further prom-
:tts      t?i Petitioners also contend that thc            iscs:
vi-    original policy premium was consideration
of     for the endorsement. Paragragh I of the To p"& in addition to the applicablc
 to    Form 208, Student Restrictivc Endorse- limits of liability:
       ment states:
                                                  (a) all expenses incurred by the com-
nal
             In consideration of the premium at
       ' l. which this poticy is wiittcn, it is
                                                      pany, atl costs taxed against thc in-
                                                     'sured in any s*ch s|,dt and all intcr-
ent
             agreed that no insurance is affordcd     est on the cntirc amount of any
ent
rvi-          under this poticy to any student ot   reil              judgmcnt therein which accrues aft-
              than the one named below.                               er entry of the judgmcnt and bc-
536    Tex.           462 SOUTE W:ESTEBN BEPOBTER' 2'1 SEBIES

      forc the cornPanY has Paid or ten-        and after date   of judgment against      Mis-
      dered or deposited in court that part
                                                sion." 451 S.W'€d at 318-
      of the judgment which does not ex-           Thc judgment of the Court of Civil Ap
      ceed the limit of the comPany's lia-      peals will be rcformed in accordanee with
      biltty thereon; * :l' * [All etn-         this opinion and as so reforrned is af-
      phasis ours.]                             firmcd. One-third of thc cost of the ap
  .'suchsuit''intheabovequotedclause            pcal hcrcin shall be taxcd again$t petitioncr
refers to any suii against an insured and       Travelers Indemnity Cornpann onc-third
the clause goes on to obligate thc insurer      against petitioner Mission Insurance C,om-
                                                pany and one-third against respondents'
to gay costs and interest on a' judgment
        thu insured. This record does not
"gritttt that any judgment was entered
indicate
against an insured. Edwards, the insured
hir€, has scttled the claims in his behalf'
The onty law suit involved is Edwards
againit the ins*rers- The only judgment
involved is against Travelers and Mission'
Aswereadthepolicies,ifthcsesettlements
were reduced io judgments against Ed-                 fllru. Kant N. IIUNT' Pttlllonrr,
wards, Travelers would owe interest on                               V.
the entire $114,?917-50 until the comPany
had paid or tendered or deposited in court      Tlrc CITY OF SAN AHTOT{IO' Fcr$ondrnl'
that part of the judgment which does not                      No. B-2{}7.
exceed the limit of the company's liability
                                                          Supreme Court of lfexng-
thereon. See l{ome fndemnity Co' v' Mun-
 cy, 4g S.W.Zd 3tZ (Tex.Civ'App'-Tyler                         tr'eb. S, lYIl.
t*9, writ ref'd, fl. r- e.).   Since the in-
surcd has settled and no showing has been
made that the settlements were reduced to
                                                     Horneowner brought action against
judgment, Travelers owes hirn nothing un-       city contesting validity of ordinance rczon-
ier the Supptementary Payments       Clause'    ing and reclassifying two lots. The l3lst
Therefore, it was error to hold that Travel-    Judicial District Court, Bexar County, Eu-
€rs owes interest on the cntirc judgment'       gene C, Williams, J., held ordinance to be
                                                void and the city ap1rcaled. The San An-
  [4] We do uPhold thc assessment               tonio Court of Civil Appeals, Fourth Su-
against Travelersof interest on thc amount      preme Judicial District, 45S S-W.Zd 952,
oi the judgment against it- Vernon's Ann'       revers€d the District Court judgmer.rt' and
Tex.Rev.Civ.Stat. art- 5A72 $962), states       horneowner brought error- The Suprcme
that alt judgments in this statc shall bear     Court, McGec, !., hcld that changes, within
intcrest   at the rate of six Per cent   Per    zone permitting structures or uses other
annum from and after the datc of the judg-      than single-famity dwellings, from onc pcr.
menl A judgment of $39,297.50 has been          mitted use to parking lots, anothcr pcrmit-
rendered against insurer Travelers Indem-       ted use, did not constitute such a matcrial
niqy Company and the statutory interest on      changc of conditions as could justify re-
that judgrnent runs from March 20,      1969'   zoning part of an adjacent single-fanily
the date of the trial court judgment-           dwelting zone to permit uses other than
                                                single-family dwellings.
  No question of pre-judgment interest as
damages is before this Court nor has Ed-            Judgrnentof Court of Civil Appeals
wards cornplained of the Court of Civil Ap-     rcveised; judgmcnt of trial court af-
peals' holding "awarding no interest from       firmed.
                                       TBAVSI,E&$ I$DEIIINTY OOIIPA}T:T V. EDWABIIS                          Tex.     533
                                                            Cltc ee {{12 8.11'.2d 6ift
                                                                           2. lnguranss @al44t5)' 435.9
 ;es.-All
     in writ-    TlrcTRAvELEnslHDE'llNlTYcolilPANY                              wherc student restrictive endorsement
 .rd or      a             ct al., PctltlonGrE'                            form stating that irr consideration of premi-
 !€, shall                                 V.                              um at which poticy was written, f,o insttr-
                                                                           ance was afforded trnder policy to any stu-
 ntion of         w'. T. EDWARDS, Jr. ct al., Rctpondcnts'
                                                                           dent other than student who endorsed form
                                      No. B-2O75.
                                                                           showcd on its face that there wes no
 'lcasc
            of                 Sttprerne Court of 'fcxBs'                  additional consideration for endorsement,
 leration.
                                     NoY. 25, 19?0-
                                                                           endorsement was not valid oil thcory that
 ook, 100                                                                  original golicy premiurn was consideration
                                                                           for endofsernent, and fcllow student of in-
     its copy                                                              sured who was driving insured's vehiclc
                      Action to recover on automobile liabil-              with instrred's permission when insured    was
 :ellation,
 'e termi-       ity policy. The District Court, No' 161' Ec-              killed in collision with another vehicle   was

 l    action     tor County, R- L- McKim, J', entered iudg-                omnibus insured under insured's policy'
 bsequent
                 rnent adverse to insurers, and they appeal-
                 €d. The El Paso court of civil Appeals,                   3, lnruranco €=598.f
                 Eighth Suprerne Judicial District' Ward'                          Insuredwhosettledwiththirdparties          tl
                                                                                                                              .,
                                                 S'WZd 313'
 respect-        J., reformed and a{firmed, 451                            for                      of automobile col-
                                                                                   darnages arising out
                 br inrurer's petition for writ of error'that
                                                          the
                                                                           lision and who made no showing that                i
                 Supreme    Court, Flamilton, I', held                     settlernents were reduced to judgment was           L
                                                                                                                               I
 error           whtre student restrictive endors€ment form
                                                                                                                               .:
            is
                                                                           owed nothing by insurers as interest on
                 stating that in consideration of premiurn at              settlement sums under supplementary pay-
'that     ap-    which policy was written, ro insurance was                ments clause of policy. vernon's Ann.civ.
contract         afforded under policy to any student other                St. art. 5W2.
and pro-         than student who endorsed form showed on                                                                    l$
s    of   said   its face that there was no additional con-                4. I nlcrort e=39(3)
 strits re-      sideration for endorsetnent, endorsement                      Assessment against insurers of interest
'uary      2?,   was not valid on theory that original pol-                            of judgment from date of judg-
                                                                           on amount
                 icy premium was consideration for endorse-                       against insurers in additional in-
                                                                           ment
                 *.*t, and fellow student of insured who                   sured's action against thern to recover un-
novo re-         was driving insgred's vehicle with insurerfs
to dcter-        permission when insured was kilted in col-
                                                                           der automobile liability policy was proP€r'
                            another vchicle wa$ omnibus                    Vernon's Ann.Civ.St- art-      5A72,
rnctusion        iitiot with
3,   T.C.n.      insurcd under insured's PolicY'                                               --#
.ndulging
                          Reformed and affirmed'                             Turpin, Smith, DYer, Hardie & Harman'
 coruect-                                                                  Max N. Osborn' Stubbeman' McRae, Sealy,
The evi-                                                                   Laughtin & Browder, Charles Tighe and
wise, and
                 l.   I   nlurancG €:e144(S)                               James G. Noland, Midland, for petitioncrs'
. There-
ior is re-           Where there was no evidence that in-                      Shafer, Gilliland, Davis, Bunton & Mc-
                 surer which made repeated attcmpts for                     Collum, '\il'.   O. Shafer and Ray Stoker'
                 four rnonths to obtain signed student re-                  !r.,   Odessa,   for resPondents.
af f irmed.
                 strictive endorsement form from       insured
d against        deterrnined to cancel insured's automobilc                    HAMILTON, Justice'
                 liability policy i f he did not sign endorse-
                 me nt, insurer's forbearance to exercise                      This is a suit bY William T.       Edwards,

                 right of cancellation did not constitute                   Jr, and William T. Edwards, II1, plaintiffs-
                 consideratiorr for endorsement and endorse-                respondents, as third party bencficiarics to
EAR,       J.,   rnent was invalid-                                         enforce contracts  of insurance written by
534     Ter           48? SOUTE W.ESTEBN $UPOE,TEB, 2d SERIES

dcfendants-petitioners Travelers Indemnity      wrote the agent a letter purPorting to en-
Company and Mission fnsurance ComPany'          close thc signed forms butin fact he failed
The case was tried before a court without       to include thetn.
a jury on stipulated facts- The trial court       Norman McVean was killed on Dccembcr
rendered judgment against the defendants        17,1965, when his car, driven by William T.
for arnounts paid by plaintiffs in scttlement   Edwards, UI, a feltow studcnt, collided with
of claims made against William T. Ed-           a vehicle being driven by Mrs. Ruth Wilson.
wards, III, for damages resulting from an       Aftcr the accident the Student Resrictivc
autornobile collision. Af firmin& the El        Forms were picked up by the Travelers
Paso Court of Civil Appeals reformcd thc        agent from L. T. Miller's office where they
amount of the judgment, taxing intercst         had remained sincc they had been signed.
against Travelers Indemnity Company on
thc cntirc judgmcnt from the date of thc          Claims against Edwards arising out of
judgmcnt in the trial court- 45f S,W'.zd        thc accident wcre scttled with the claimants
313. We affirm the Court of Civil Appeals       in amounts of $100,000 for the injuries to
judgment against defendants for         the     Mrs. Ruth Wilson, $I0,COO for the dcath
arnount there rendered but reform the judg-     of a minor child, Mary Jane Wilson, $3,-
ment as to the liability for interest-          000 for the death  of Mrs. O. L Stamps, and
                                                $1,297.50   for property damage to thc Wil-
  Dcfendants sold automobile liability in-      son automobile.
surance policies to Norman E McVean, t
student at Southern Methodist tlniversity.        Edwards has brought this action against
Travelers, in a standard Texas family auto-     Travelcrs and Mission contending that he is
rnobile policn providcd coverage for bodily     an ornnibus insured under the McVcan pol-
injury tiability limitecl to the sum of $25,-   icy since he was driving the car "with the
000 per person in any one accident and $50,-    permission of the named insuredr" Norman
000 total for any one accident. Property        McVean. Travelers and Mission contend
damage liability was limited to $10,000-        that their liability is precluded by thc Stu-
Missionrs policy rilas writtcn to indernnify    dent Restrictive Endorsement.         Edwards
the insured   in accordanci with the insur-     contends the endorsement failed       forwant
ing agreements of the Travelers policy and      of consideration.
to cover losses in excess of those covered        Thc parties stipulated that no money was
by Travclers up to $75,000 Per person and       paid to Norman McVean when he signed
$?50,000   for one   accident'
                                                the    endorsernent   and that the    prerniurn
  The policies \rere issued on July 28, 1965,   was the sam€ as       it   would have been had
and soon thereafter Travelers wired the         the endorsernent been attached when the
selling agent reguesting that he have Nor-      policy was issued. Travelers claimed that
man McVean sign a Student Restrictive           it was not the normal practice to issuc
Endorsement    form. The purpose of      this   policics covering student operators without
endorsernent was to exclude any student as      requiring the Student Restrictive Endorsc-
an insured except Nortnan McVean. Trav-         rnents as part of the policies but Blwards
elers made the request three times and          reserved thc right to object to thc Court's
{inally the agent informed Travelers that       consideration  of this contention- A provi-
the forms woulcl be signed when Norman          sion   in the policy preserved the right of
was horne   for the Thanksgiving    holidays'   cancellation by' the insurer after notice to
Norman was away at school and the agent         the policyholder.
was acting on the promise of L. T. Miller,
an officer in a comPany owned by Nor-             The entire premium for the original
man's   father. Norman returned to        his   policy was paid in advance. The Studcnt
home in Odessa during the Thanksgiving          Restrictive Endorsernent was a subsequent
holidays and signcd the forrns' L T. Miller     lirnitation of the completed contract provi-
                                     TR,A.!IEITEA.8     IIfDEl[$Iff     OOIIPAIIIT v- EDWARIIS                      Iox.    533
                                                           Cttc er {@ g.Tt'.2d 6gl
ggg.-fitl                                                               2. lnrunnsr €:la144(6), {353
i in writ-        TIrO   TRAVELEIilS INDETIINTTY CO*IPAHY                    Whcrc studcnt rcstrictive endorsemcnt
ord or a                        it al., Palltlontrg'                    form stating that in consideration of premi-
ise, shall                               Y.                             um at which policy was written, tlo insur-
lntion of          !V. T. EDIVARDS, Jr. ct     ll., Ilttpondttrtl       ance was afforded under policy to any stu-
                                                                        dcnt other than student who cndorsed form
                                    Itlo. 9-2075.
                                                                        showcd on its face that thcre was no
:tcase of
                             $uPreme Court of 'fexng.                   additional consideration for endorscmcnt,
tleration.
                                  Nov. ?ti' ,97O.                       endorscment was not valid on thcory that
rook, 100
                                                                        original policy premium was                considcration
                                                                        for cndorsetnent, and fellow $udcnt of in-
 its copy                                                               sured who was driving insured's vehiclc
;eltation,            Action to rccover on automobilc liabil-          with insttred's perrnission when insurcd wag
re termi-        ity policy. The District Court, No. 16l, Ec'          killed in cotlision with another vehiclc was
l action         tor County, R. L. McKim, J., entered judg-            omnibus insurcd undcr insurcd's policy.
bseqttent        rnent adverse to insur€rs, and thcy appcal-
                 ed. The El Paso Court of Civil Appeals,               3. lnrurenc! €=598,1
                 Eighth Suprerne ]udicial District, Ward,                   Insured who settlcd with third parties
    rcspect-
                 J., reforrned and affirmed, 451 S.W'zd 313'           for damagcs arising out of automobile col-
                                                                                                                                     t(
                                                                                                                                    't
                                                                                                                                    *
                 On insurer's petition for writ of error, the          lision and who made no showing that                           :
                 Supreme Court, I{amilton, I., held that               setttements were reduced to judgment was                       t(
    ctror   is   where student restrictive endorsement forrn           owed nothing by insurers as intcrest on                        '!

                 stating that in considcration of premium at           settlement sums under supplcmentary gay-
that ap-         which policy was written, ro insurance was            ments ctause of policy. Vernon's Ann.Civ.
contract         afforded under policy to any student othcr            St. art.      5A72,
rnd pro-         than student who endorsed form showcd on
r of said        its face that therc was no additional con-            4. Intcrut €a39(3)
                                                                                                                                   l$,
suits re-        sideration for endorsement, endorsement
                 was not valid on theory that original pol-                  Assessment against insurers of intercst
rary    22,
                                                                       on amount of judgment from date of judg-
                 icy prernium $/as consideration for endorsc-
                 mentn and fellow student of insured wtro              ment against insurers in additional in'
lovo r€-         was driving insured's vehiclc with insurcd's          sured's action against them to rccover un-
o deter-         permission when insured was killed in col-            der automobile tiability policy was proper.
nclusion         lision with another vehicle was omnibus               Vernon'g Ann.Civ.St. art. SA7?.
,   T,C,n.       insurcd under insured's      PolicY.                                        .---.-{F-


tdulging
corrcct-             Reforrned and affirmed.                             Turpin, Smith, Dyer, Hardie & Harman,
                                                                       Max N, Osborn, Stubbeman, McRae, Sealy,
lhe evi-
                                                                       Laughlin & Browder, Charlcs Tighe and
'ise, and
 There-          l. lnrurens6 @=l4f(5)                                 James G. Noland, Midland, for pctitioncrs.
rr is re-            Where there was no cvidence that in-                Shafer, Gilliland, Davis, Bunton & Mc-
                 surer ryhich madc rcpeated attcmpts for               C"ollum, 1Af. O. Shafcr and Ray Stokcr,
ffirrned.
                 four rnonths to obtain signed student re-             Ir., Odcssa, for respondcnts.
agairrst
                 strictive endorsement form from           insured
                 deterrnined to cancel insured's automobilc               HAMILTON,             Justice.
                 liability policy i{ hc did not sign endorse-
                 ment, ingurer's forbearance to exercisc                 This is a suit by William T. Edwards,
                 right of cancellation did not constitutc              Jr. and lViltiam T. Edwards, III, pleintiffs-
                 consideratiorr for endorsement and endorse-           respondents, as third party bcncficiaries to
AR,     J.,      ment was invalid                                      enforce contracts             of   ingurarrce writtcn by
                   482 SOTXXE WEgTEn$              ngPoa,IE& 2d sESIgg
634    Tex.

defendants-petitioners Travclcrs Indemnity          wrote the agcnt     z letter PurPorting to cn-
                                                    closc thc signed forms but    in fact hc failed
Company and Mission fnsurance CornPany'
The case was tried before a court without           to include them.
a jury on stipulated facts' The trial court           Norman MeVcan was killcd on Deccmbcr
,"na.r.d judgrnent against the defendants           17, 1965, when his car,drivcn by William T'
for amotrnts paid by plaintiffs in scttlement       Edwerds, III, a fellow studcnt, coltidcd with
of claims rnade against Witliam T' Ed-              a vehiclc bcing driven by Mrs. Rutfu Witson.
wards, III, for damages resulting from an           After thc accidcnt the Studcnt Rcstrictivc
automobile collision. Af firmin& the El             Forms wcre pickcd uP         by t'hc Traveltrs
Paso court of civil Appea,ls reformcd the           agent frornL. T. Millcr's office where thcy
amount of the judgrnent, taxing intercst            had rcrnaincd sincc thcy had been signcd'
against Travcters Indemnity Company on
th. tntirc judgmcnt frorn thc datc of the             Claims against Edwards ariring out of
judgmcnt t.n thc trial court' 451 S'W'zd            the accidcnt wcrc scttlcd with the claimantr
rrg. we affirm the court of civit Appeals           in arnounts of $100,000 for thc injuries to
judgment against defendants for             the     Mrs. Ruth Wilson, $I0,COO for the dcath
amount there rendered but reform the
                                      judg-         of a minor child, Mary Jane Wilson, $3,-
ment as to the tiability for interesl               000 for thc dcath of Mr3- O. L Stamps, and
                                                    $lr87.SO for groperty damage to thc Wil'
  Defcndants sold autornobile liability in-         son automobile.
surancc policics to Norrnan E McVcan' a
student at Southern Methodist tfniversity'            Edwards has brought this action against
Travelers, in a standard Tcxas family auto-         Travclcrs and Mission contending that he is
rnobile trnticn providcd covcrage for bodily        an omnibus insured undcr the McVcan pol-
injury ii"titity limited to the sum al $25'-        icy since he was driving thc car "with the
000 per person in any one accident and $50'-        permission of the named insuredr" Norman
000 total for any one accident' Propcrty            McVcan. Travelers and Mission contend
damagc tiability was limitcd to $10,000.            that thcir liability is prccludcd by thc stu-
Mission's policy was written to indcmnify           dcnt Restrictive Endorscment.          Edwardg
thc insurcd in accordanci with the insur-           contcnds the cndorsement failed       for want
ing agrcements of the Travelers policy and          of consideration.
to cover losscs in cxcess of those covercd            Thc parties stipulated that no rnoncy was
by Travelers uP to $75,000 Per Person and           paid to Norman McVcan when he signcd
$250,000 for one accident.                          the endorsement and that the premium
  The policies were issued on July ?8, 1965'        was the sarne as it would have been had
and soon thereafter Travelers wired the             the endorsement bcen attachcd whcn thc
sclling agent requesting that he have Nor-          policy wa3 issued. Travelers clairncd that
rnan McVean sign a Student Restrictive              it   walr not the normal practice      to   issuc

Endorsernent   form. The     purPose   of   this    policies covering student operators without
endorsement was to exclude any student as           icquiring the Studcnt Restrictive Endorsc'
an insured except Norman McVean' Trav-              mcnts as part of the policics but Edwards
elers rnade the regucst thrce times and             r€scrved the right to objcct to the C.ourt's
finalty tfte agcnt inforrned Travelers that         consideration of this contention. A provi-
the forms woultl be signcd when Norman              sion in the policy preserved thc right of
was home for the Thenksgiving holidayr'             canccltation by' the insurer after notice to
Norrnan was away at school and the agent            the policyholder-
was acting on the promise of L. T. Miller,
an officcrin a company owned by Nor-                     The cntire prcmium for thc original
                                                    policy was paid in advancc. Thc Student
mants father. Norrnan returned to his
horne in Odessa during thc Thanksgiving             Restrictivc Endorsernent was a subscquent
holidays and signcd the forms. L' T' Miller         lirnitation of the complcted contract provi-
                                                        OOTIPAilY ?' EDWAN'D8
                              TA.AVIEI,EBS I}TDE![$ITY g'11'2d
                                                                                                       Tor.   535
                                                     Cttc ar td!        6il1


           sion: in the poticn and as such
                                           ghould       havc - As wc read the above it shows on its
                                                       facc that therc was no adtlii'ioaal conrider-
           bccn suplprtcd by additif,J-considcration. ation tor thc cndorscrnsrt' Similar rccitals
           Amcrican     Nat Ins. C.." ". i".guc, ZSZ of consideration havc bccn held incffcctivc
           s.u/- 24S (Tcx. comm. ige.
                                            ruai.g"...
                                                                    Farm Burcau crsualty rns' Go'
           adoptcd);    wackcrte ,. i,"1iit-s-ploy"rt in Southcrn
                                                       v'          Statcs' 395 FZd 176 (8th Cir'
           Ins. Co., 2lg F-kd r t&i-iit'l' ""tt' 1t;      -Unitcd Wac&erlc v' Pacific Emplovct's
            ,.ici!,349 U.s. 955, ,5 ;;.lil:
                                               el inq !968)   and
                                                    pS                           rrfrc'
                                                                         With no considcrstiotr to
           tvg $g55r; Arnol,':ii' iJ;xZa                           Ins' Co"
           (tss7r.                                                 ""tff':.:t'^"::ffs :ffiill;:",,TT;
                                                                   policy was ineffcctive. ' \4/illiam T' Ed-
             fuPetitionerscontendthatT.raveters'
                                          right of car-            wards, flf, was an insurcd under thc pol-
           forbcarance to exercise the                             icy and pctitioncrs are liable on the iudg-
           ccllation was consideration for thc endorse-            ment cntered below.
           *.rr,. Waiving the cancellation right has for                                                  judgmcnt
           been held to be strfficient considcration                 Thc courts below rcndered
           iiit      of policy 'altcration' Scc Massa-
                   typc                                            based on the scttlernents and ordercd that
           chuscirs Bonding     & Ins'   Co'   v'   Ftorence'      plaintiffs recovcr s39p97.50 from Travel-
           216 S.'W'. 471 (Tex'Civ'App'-El
                                                        Paso       ers Indemnity Company and V5,000'00
           1919, no writ)- We agree that -forbear-                 frorn Mission fnsurancc Company' In rc-                 l
                                                                                                                           t
           ancecanbesufficientconsiderationaga                     forming the trial court judgmcnt thc
           general rule of law but we can not let                  court of civil Appeals rulcd that Travclers
           the rule control a case witftout some
                                                 f€-               owes interest on the cornbined obligation
           latedevidencetobringtheruleintoplay.                    of both companies undcr thc "Supplc-
           There is no evidence of forbearance . in                mentary Palrment3t' clause        in its polrcy'
           this case. All cornmunications regarding                citing itlaslqlt Y. Gulf fnsurance C-o', 160
           the Studcnt Restrictivc Endorsement
                                               forms               Tex.- 612, 335 S.W-zd 581 (1960)' and              |{
           are contained in thc Transcript' In none                Baucum v. Great American Ins. C"o', of
           is there the stightest hint that cancellation           Ncw York, 37A S-'W-zd 863 (Tcx'SuP'
           of the policy might result frorn faiturc to             1963). fn both of those cases there wcre
           sign th; forms. Thc evidence only shows                 judgrncnts against the insureds. Thercin
           that Travelers made rcpeatcd attempts for               lics thc distinguishing elcrncnt which rc'
                                                                                      'the C,ourt of Civil Af
      i
           four months to obtain the signcd forms' but             veals thc cror of
      I    there is no evidence to show that thcy had              1rcats.
      t    dctermined to cancel Norman McVcan's
      t    policy if he did not sign. On the basis                        Under "Part l-Liability' Travelcrs
                                                                      t3l
           of this record we are unable to hold that                        to "defetd otty stti/' ogoinst ll*
      I

                                                                   promisea
      t    Trayelers refrained from exercising its                 instred or in the alternative, after in-
      e
           cancellation right in consideration        for   the
                                                                   vestigation, make "settlement of any claim
      .t
           insured's signing the restriction.                      or cril as it deems expedicnt." Thc "Sup'
      .s
                                                                   glementary Paymcnts" causc further Prom-
      '3     tzl Pctitioners also contend that thc                 ises:
      l-   original poticy premium wa$ consideration
           for the endorsement. Paragraph I aI thc                    To g?y, in addition to the aPPlicable
      'f   Form 2A8, Student Restrictive Endorse-                     limits of liability:
      o
           ment states:
                                                                      (a) all expenses incurrcd by the colr'
                  1. Inconsideration of the prerniurn at                  pany, atl costs taxcd against the in-
      rl                                                                  sured in any s*ch Ettit and all intcr-
                    which this PolicY is writtcn, it is
.lt                 agrecd that no insurance is afforded                  est on the entire arnount of any
      rt                                                                       judgmcnt thercin which accructl aft-
      i-            under this poticy to any student other
                    than the one nam€d below.                                  er entry of thc judgmcnt and bc-
  536      Tox.           482 gOUTE                    ATPOBTE& 2'T STBIES

          fore the cornpany                             and aftcr datc of judgmcnt against Mis-
          dered or deposited                            sion." 451 S.Wrd at 318.
          of the judgment                                  Thc judgmcnt of the Court of Civil Ap-
          ceed the limit of                             peals will bc reformed in accordancc with
          bility thereon r *                            this opinion and 13 so reformcd b af-
          phasis ours.]
                                                        finncd" . Onc-third of the cost of the ap
   "Such suit" in the above quoted clause               pcal hcrcin shall bc taxcd against pctitioner
 rcfers to any suii against an insured and              Travelers Indernnity Compann onc-tftird
 the ctause goes on to obligate the insurer             against petitioncr Mission fnsurancc &rn-
 to pay costs and interest on a judgmcnt                gany and one-third against rcspondcnts.
 against thc insured, This rccord does not
 indicatc that any judgrnent was entercd
 against an insured. Edwards, the insurcd
 hcre, has scttled thc claims in his behalf.
 The only law suit invotved            is   Edwards
 againit the irs*rers. Thc only judgmcnt
 involved is against Travelcrs and Mission.
 As we read the policies,    if   these settlemcnts
 werc reduced     to
                   judgmcnts against Ed-
 wards, Traveters would owe interest on                         fttrr. Krnt N. HUllT, Pttttlonor,
 the cntire $l14t97.50 until thc cornPany                                      Y,
 had paid or tendered      or deposited in court        Tlrc CITY OF SAl{ ANTOilIO, Rorpondmt
 that part  of the judgrncnt which docs not                               ilo. B-C402.
 exceed   the limit of the company's liability
 thereon, Sec llome fndemnity Co. v. Mun-                         Supreme Court       of Texs8.
 cy, &9 S.WZd 312 (Tex.Civ.App.-Tyler                                    I'eb, g,   lftl.
 1tr9, writ ref'd, n. r. e,). Sincc the in-
sured has settted and no showing has been
made that the settlcrncnts werc rcduccd to                 Homeowner brought action agaiust
judgrncnt, ?ravelers owes hirn nothing un-            city contcsting validity of ordinance rceon-
der thc Supplcmentary Payments Clause.                ing and reclassifying two lots. Thc l3lst
Thereforg it was error to hold that Travel-           Judiciat District Court, Bcxar Countn Eu-
ers olves interest on thc entire judgment.            gene C. Williams, I., hcld ordinancc to be
                                                      void and the city ap1rcalcd. The San An-
  I+l Wc do uphold thc                 assessment      tonio Court of Civit Appeals, Fourth Su-
against Travclers   of interest on the amount         preme Judicial District, 458 S.W.zd 952,
of thc judgment against  it. Vernon's Ann.            reversed the District Court judgm€$t, and
Tex,Rey.Civ.Stat. art. 5072 (1962)-, states           homeowncr brought error. Thc Suprcme
that all judgments in this Statc shall bear           Court, McGeer I., held that changc;, within
intcrcst at thc rate of six pcr ccnt per              zone pcrmitting strusturer or uscs other
annum from antl after the date of thc judg-           than singlc-family dwcllings, from onc pcr-
ment. A judgment of $39397,50 has been                mittcd usc to parking lots, anotiher permit-
rendered against insurer Travelers Indcm-             td usg did not constitute such a materiat
nity f,ompany and the statutory interest on           changc of conditions as could justify re-
that judgment runs from March m, 1969,                zoning part of an adjacent single-fanily
the date of the trial court judgment.                 dwetling zone to pcrmit uscs othcr than
                                                      single-family dwcllings.
  No qucstion of pre-judgmcnt interest as
damag* is before this Court nor has Ed-                   Judgmcnt of Court of Civil Appeals
wards cornplained of the Court of Civil Ap-           rcversed; judgment of trial court af-
peals' hotding "awarding no intcrest from             firmed.
\_


 5
  Black v. Victoria Lloyds Ins. Co., 797 SW 2d20 - Tex Supreme Court 1990 -                                                             page
                                                                            Google                                              Sc...           I of 7

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                                                                                                                                            ,ro
                                                                  797 S.W.zd 2A (19901

                                Randal F. BLACK, C.O. Daniel and Lisa Jeanine Sudderth,
                                                   Petitioner:s,
                                                         v.
                                VICTORIA LLOYDS INSURANCE COMPANY, Respondent.

                                                                       No. C€80S.

                                                               Suprerne Court of Texas.

                                                               September 12. 1990.
                                                       Reheadng Ovemrled November 14, 1990.

                   21      '2t W. James Kronzer, Mary Jensen, Kathlyn A. Knoblocfr, Jimmy tMlliamson" Houston, for
                           petitioners.

                          Michael C. Neel, Charles Seymore, Mark D. Wlson, Houston, for respondenl


                          OPINION
                          HIGHTOIA/ER, Justice.

                          This summary iudgment case involves the issuance of an insurance "identification
                                                                                                                  card,.
                          pursuant to artide 6701h of ttre Revised Civil Statutes of Texas to
                                                                                                a statutorii/ exempt
                          "ownef whose liability insurance policy excluded              r"f,en the vehicle was not being
                                                                              99v.erage
                          used exclusively for business. After an accident which o&uneO while Lisa Jeanine
                                                                                                                   Sudderth
                          {Sudderth) was using the vehicle on a personal '22 matter. nespondent Mcloria Lloyds
                          lnsurance company (victoria Lloyds) denied co.verage. petitionlrs Randal F. Black (gtack),
                         9-'O pa$el (Daniel) and Suddertn Rteo suit and assideo severat causes of action against
                         Victoria Lloyds and olhers. \fictoria Uoyds filed a rnotion for summary judgrnent
                                                                                                               asserting that
                         there was no misrepresentation as a matter of law, that there was no insriane
                                                                                                               coverage for
                         the accident and that Black and Sudderth had no standing. The trial court gianieO
                                                                                                                 Mctoria
                         Lloyds' motion for summary judgment and rendered judgfred against ehjt, Daniel
                                                                                                                   and
                         Sudderth. The court of appeabbmrmed. 769 S.w.d gag.            r;iile
                         we reverse the judgment of the murl of appeals and remand the cause to
                                                                                                reasons exptained herein,
                                                                                                       {he trial murt for
                         further proceedings.

                          The issues before lhis courl are (1) whether there are genuine issues of
                                                                                                   material fact
                         conceming misrepresentation g{ th9 liability insurance coverage for personil
                         preclude summary judgment, {2) whelher tirere are genuine iiues
                                                                                                        ,s" wtrich
                                                                                              of material fact
                         concerninO walygr of the Po.!icy's. permissive personit use exclusion whicn precluce
                                                                                                               summary
                         iudgment and (3) whether Mctoria Lloyds' m6tion for summary judgment taiteo to aodress alt
                         of the asserted causes of action.

                         ln 1982, Daniel and Stateride Trucking, lnc. dlbla Wood Erothers Transfer, lnc.
                                                                                                             {t4firod
                         -llothers) entered into a "lease" arangement in vrfrich Daniet;'leased,. his pickup'truck to
                         Wood Erothers for Daniel's use in conducting Wood Brolhers'bJsiness.
                                                                                                        Wood grothers
                         Plr.c.haged a policy of liability instrance frornVictoria Lloyds whicfr rnet tfreiequirements
                         artide 911b of the Revised Civil Statutes of Texas for Daniel's truck. ffre pofi-&-excluded of
                        coverage lrhile the automobile is not being used exdusively in the business
                                                                                                    of the named
                        insured and overa route the named insured is authorized to serve by federal
                                                                                                    or puotic
                        aythority...-" Wood Brothers deducted the amount of the insurance premiums
                                                                                                    for Daniel,s
                        pickup truck from Daniel's pay checks. Daniel did not rqu"iioiiedepe
                                                                                               a coptof Wood
                        Brothers' insurance policy prior to the arcident.

                        Atter proof was furnished to the Texas Railroad Comrnission that Wood Brothers
                                                                                                             canied the
                        minimum liability insurance required by article 91lb, the Railroad Commission
                                                                                                          issued a motor
                        carrier permit or certificate to Wood Brotfrers.tll Tne permit or ertificate, known
                                                                                                            as a .cab
                        card," was delivered to Daniel to be carried in his pickup kuck as proof of compliine
                                                                                                                  with
                        artide 911b.

                        Pursuant to article 670lh of the Revised Civil Statutes of Texas, Victoria
                                                                                                      Lloyds issued
                        insurance cards to Wood Brothers for distribution to all of its drivers includin!
                                                                                                          ine orivers of its
                        "leased" vehicles. Daniel received a Victoria Lloyds'insunance cardf?l "23    ft;   Wood
                        Brothers- This insurance card was a separate and distinct card whicfr was
                                                                                                       also to be ca'ied
                        i1.Q3ni9t's   pickup truck. There is no indication in the insurance card that Daniel
                                                                                                             dou, not have
                        liability insurance coverage for personal use of his pickup truck. ihe insurance card
                                                                                                                 does not
                        state flat the coverage was lirnited to the use of th6 vehicte for business purporo
                                                                                                                only. ln
                        addition to the deduction of the premiums for insurance required by articli gitb,
                                                                                                              Wood




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  Black v. Victoria Lloyds Ins. Co., 797 SW 2d2A - Tbx Supreme Court lgg0 - Google                                             Sc...   pageZ of 7



                       Brothers also deducted the amount of insurance premiums for medical and hospitalization
                       insurane for Daniel and his family and for raorker's compensation insurarne ioi Oaniel anO
                       other drivers of his Plckup truck. However, since Wood Eirothers did not purchase a poticy of
                       cotlision insurance which would cover Daniel's prckup trud<, Daniel purcfraseC a mllision
                       insurance policy from another sour@.

                        ln October, 1982, Sudderth, Daniel's daughter, was involved in an aecidenl wilh Black while
                       driving her fathe/s pickup truck on a personal matter. After Mctoria Lloyds denied coverage,
                       Black sued Sudderth. Daniel, Wood Erolhers and Victoria Lloyds. Afteirealignment of the
                       parties and severane of a portion of the lawsuit,[3] B|ack, Sudderth and Daniel asserted
                       causes of aclim against Victoria Lloyds for breach of conlracl violations of the Texas
                       Deceptirc Trade Pradices'-€onsumer Protection Act (DTPA) and sec{ion Z1.Z1of lhe Texas
                       lnsurance Code (including rules and regulations promulgated by the State Board of
                       lnsu9n99), negligence, gross negligence. fraud and breach sf iuty of gmd fairr and fair
                      dealing. Victorig Lloyds filed a rnotion for summary judgment assertinglnat there \,yas no
                      misrepresentiation as a matter of law, that there was no insurance coverage for the accident
                      and that Black and Sudderth trad no standing. The trial court gr:anted the irotion for surnmary
                      iudgrnent. The courl of appeals affirmed, holding that issuance of the insurance card cannot
                      constitute a misrepresentation as a matter of law, that Sudderth and Black could not claim
                      "persons injured" status under section 16 of article 21.21of the lnsurance Code. lhat there
                      was no insurance coverage on the occasion in qr.estion and that there was no negligence or
                      bad faith.


                      l.
                      Black, Sudderth and Daniel argue that there are genuine issues of material fact oncerning
                      misrepresentation of-!!e liability insunnce covefrage for personal use whicfr preclude
                      summary judgment. We agree.

                     The standards for reviewing a motion for sumrnary judgment are well established. The
                     movant has the burden of showing that there is no genuine issue of material fact and that it is
                     entitled to judgrnent as a matter of law- MrldP. tt4:t Jores. 71o s.w.2d 59. 60
                                                                                                      {re{"19.84J. ln
                     deciding whether there is a disputed material fact issue pr
                     evidence favorable to the nonmovant will be taken as true- NixonT. Mr. pr;oerfui
                                                                              . Everffiasonable infercnce rnust be
               24    indulged in favor of the nonmovant and any doubts resolved in its faror. "24 Continental
                     casrnq coro. v- samedan_ofl cgp.. ZS1 $.try.zc 499. fol          frex.lg88).
                      Article 6701h requires that no motor vehlcle may be operated in Texas'unless a policy of
                      automobile liability insurance in at leasl the minimurn artounts to provide evidene of
                                                                                                        -
                      financial responsibilily ... is in effect...." TEX.REV.CIV.STAT.ANN. art. 6701h, 1A
                                                                                                           s       {Vernon
                      Supp'1990)- "{EJvery owner and/or operato/A1... shall be required, as a condition of driving,
                      to fumish, upon request, evidence of financial responsibility io a law enforcement ofiicer.."-ot
                      to anothe_r person involved in an aocident." TEX.REV.CM.STAT.ANN. art. 6201h, 18
                                                                                                                 S
                      !V9rn9n Supp'1999) (emphasis added). Satisfactory evidence of financiat tesponsiOitity
                     includes a '\rritten instrurnenf issued by a liability insurer stating the name of tne insuier. the
                     insurance policy number, the policy period, the nime of the insu-reO and the pofby limits or a
                     sfafement that the covenge of the policy nmplies with the required minimum amount of
                      tiability insurance. /d. Proof of financial responsibilig is defined as "[plroof of ability to respond
                     in damages for liability, on account of accidents ... arising out of theownership, maintenance
                     or use of a motor vehicle...." TEX.REV. CIV.STAT.ANN. art. 6701h, 1(10) (Vernon
                                                                                                S
                     Supp.tssol.tll

                     Black. Sudderth and Daniel assert that the article 6701h insurance card togetheruffi Daniel's
                     opposing summary judgment affidavit raise a fact issue concerning misrefesentation of the
                     liability insurance coverage provided by Mctoria Lloyds for the drivers of \iVood Brothers,
                     leased rrehicles. lt is undisputed that the insurance iarcl was the only represent'ation made by
                     {ctoria loyds to Daniel conceming the scope of insurance 6gvetag'e. Tfre insurance card
                    given to Daniel by Wood Erothers simply states: "THIS POLICY CdfUpltES WTH THE
                     COf\{PULSORY AUTO t-{t tS OF THE STATE OF TEXAS." Nothing in tne insurance card or
                    the requirements of article 6701h distinguishes between liability insurance for business or
                    personal use. The insurane card does not restrict liability insurance coverage to business
                    use or exclude personal use. lt gives no indication that Daniel does not have-liability
                    insurance coverage for personal use of his truck. For example, the insurance card does not
                    state that it-only applies when the truck is used for busine.ss p{rrposes onty.l0l Furthermore,
                    there is no indication on lhe insurance card or olhenvise tnai Oirniel was 6xempt irom the
                    requirernents of article 6701h.

                    ln response to Vietoria Lloyds rnotion for summary judgment, Black. Sudderth        r2S
                                                                                                             and Daniel
                    pleaded that the issuance and contents of the insurarrce card were false and misleading
                                                                                                                  and
                    subrnitted Daniel's affidavit vt/hich stated that (1) it was his understanding from his'
                    @n\€rsations with Wood Brothers, the payment of premiums, and from ihe insurance card
                    issued by Mctoria Lloyds, that the liability insuranoe policy he purchased would cover
                    accidents involving his truck trvhether.it wa9 being usbd for Uudiness or personal use, (Z) he
                    u/as a\,vare that Texas law required hirn to have liability insurance on hii t1rck for personal
                    and business use and he believed that the information on the insurance card confirmed his
                    prior understanding from Wood Brothers that he was purchasing liability insurance for
                    personal as well as business use, (3) it was his purpose in purchasing iiaO1ity insurance to
                    obtain lia.bility coverage for the vehicle whether il was used for busindss or pirsonal use as
                    required by the "nerff agto lau/' {i.a,.a$cp 6701h}, {a) because of Mctoria Ltoydg
                    misrepresentation that "complete liability insurance" had been provided, he dii not purchase




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  Black v. Victoria Lloyds Ins. Co.,797 SW 2d20 - Tex: Supreme Court lgg0 - Google                                             Sc...   page 3   of   Z



                         any other liability insurance on the truc*, and (5) if he had been informed that personal use of
                         the truck was not insured, he would have purcfrased additional insurance to piovide coyerage
                         for personal use as required by liaw.

                        Although Daniel lacked liability insurance coverage for personal use of his trucfi, his
                        insurance card was sufficient evirJence of linancial responsibility to have omplied with the
                        requirements of article 6701h.EI Undoubtedly, presentment of the insurane card to a law
                        enforcement officer would indicate that the operator of the truck has "a policy of autornobile
                        liability insurance in at leasl lhe minirnum amounts to provide evidence of firiancial
                        resPglq!ry{L.rt9 ln1ury against potential losses which may arise out of the oper:ation of that
                        vehide." TEX.REV.CIV.STAT.ANN. art. 67O1h, $ 1A (Vem6n Supp.t990). W; find that the
                        combined effed of the issuance and mntents of the insurarrce card and Daniel's affidavit
                        raises a fact issue conceming misrepresenlation of fre liability insurane coverage for
                        personal use. As a result, we hold that there are issues of rnaterial fact concerning
                        misrepresentation which preclude sum mary judgmen. l9l


                         ll.
                        Black, Sudderth and Daniel argue that there are genuine issues of material fact conceming
                        waiver of the policy's permissive personal use exclusion whictr preclude surnmary juOgmeit.
                        We agree.

                        The general provisions of the insurance policy provided ooverage for persons using or
                        operating an owned or hired automobile with the permission of the named insured.t9l .26
                        tlowever, several endorsemsnlst8l to fie insurane plicy altered the general provisions lo
                        exclude coverage "while the autornobile is not being used exclusively in the business of the
                        named insured and over a route tfre named insured is authorized to serve by federal or public
                        authority...." This is the "permissivepersonal use exclusion." Black, Suddertir and Daniel
                        assert that the issuance and contents of the insurance card raise fact issues conceming
                        whether Victoria Lloyds waived the policy provisions excluding sverage for permissivJ
                        personal use of Daniel's rrrehicle. lf Vicloria Lloyds waived the policy's permissive personal
                        use exclusion, the general provisions of the insurance policy woutO be "reinstated, and
                        Sudderth would arguably be covered.

                        An agent with authority to trind the insurer conceming sverage rnay waive exclusionary
                        provisions of an insurance policy by a laler representation at varianie with the written t6rms
                        glthe policy See Eo{al,Gtqbe /nsul'pn=ce Co. v. 8,ar Consu/fants. Jnc.. Sz7 S.W.2d 088. 693
                        !r,"I l'ez?I lsy-lpfrrfgg   gsyl;x k      _yr3s.#,   1   9L
                        *Tgr-U-9-qgl#it-ritgl'.rr_qr_*5lr?rc_{ge;r,fip_ffi                   :?j,_i-@__$,wJi"-g'-1.   _g_q
                        n$.n-Summit Generalngendy:-lriC        foti6diliffiiilsffance-cjiAiii Wboc-ffoihdrsfo'i-**
                     distribution to drivers of "leased" vehicles suctr as Oaniel. Victoria Lloyds does not dispute
                     that Summit General Agency, f1"., its attorney-in-fact, had authorily t6 bind it concerning
                     coverage. ln response to Victoria Lloyds' motion for summary judghent, Black, Sudderth and
                     Daniel pleaded that Vic{oria Lloyds waived the policy provisi6ris exctuOing mverage for
                     pennissive personal use of Daniel's vehicle by a later representation in thl insurance card
                     that was at variance with the written terms of the policy.

                     Black, Sudderth and Daniel submitted the insurance card and Daniel's affidavit $/hich stated,
                     among other lhings, that (1) he was aware that Texas law required hirn to have liability
                     insurance on his truck for personaland business use, (2) he believed that the information on
                     the insurance card confirmed his understanding that hi was purchasing "cornplete liability
                     insumnce' and {3} it was his understanding from the insuranb carO mit the insurance policy
                    mvered his lruck for business and personal use. The insurance card issued to Daniel O'oes -
                    not distinguish between liability insurane for business or personal use. The issuance and
                    mntents of the insurance card and Daniel's affidavit raise fact issues concerning whether
                    Victoria Lloyds waived the pdicy provisions excluding coverage for personal us! of Daniet,s
                    vehide by a later representalion in the insunance carO nat was at viriance with the written
                    terms of the pollcy" Therefore, we hold that there are issues of material fact corrceming
                    waiver '27 of the policy's permissive personal use exclusion which preclude $rmrnary
                    iudgment

                    I   ll.
                    Black, Sudderth and Daniel argue lhat Victoria Lloyds' rnotion for sumrnary judgment failed to
                    idenlify or address all of their causes of action. we agree.

                    Black, Sudderth and Daniel asserted causes of action against Victoria Lloyds for breach of
                    contrad, vidations of the DTPA and the lnsurance Code-, negligence, grois negligence,
                    fraud, and breach of duty of good faith and fair dealing. VictoiiiLtoyOs; moticn ior'"u*mary
                    iudgment asserted that there were no misrepresenlations as a matier of law. mat Urere wai
                    no insurance coverage for the amident and that Black and Sudderth had no standing to sue
                    for rnisrepresentation and fraud. Although lfre mstion for summary judgment stateO that it
                    "embraces all causes of ac{ion asserted by Plaintiff and Cross-claiman-ts," the motion failed to
                    identify or address the causes of action for violations of tfre DTPA and the lnsurance Code,
                    negligence, groT negligence and breach of duty of good faith and fair dealing or their
                    elements. The trial court granted the motion for summary judgment concernirig all causes of
                    ac{ion asserled against Mcloria Lloyds.

                   Rule 166a of the Texas Rules of Civil Procedure provides that the "rnotion for summary
                   iudgment shall stale the specific grounds therefor ..." and that sumrnary judgment "shall be




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Blackv. Victoria Lloyds Ins. Co., 797 SW 2d20 - Tex: Supreme Court 1990 - Google Sc... Page4of 7


                    rerdered forthwith if ... the moving party is entitled to judgment as a matter of law on the
                   issues expressly set out in the motion or in an answer or any other response." TEX.R. CIV.P.
                    166a- A summary judgment movant may not be granted judgment as a matter of law on a
                   cause of action not addressed in a sumrnary judgment proceeding. Chessher v.
                    Sggfhwesfeq Betl lelepfione Co.. 658 S*W.2d 5Q3. 564 ffe.x.1989). The movant must
                   establish his entitlement to a summary judgment on the issues expressly presented to the
                   trial ccrurt by mndusively establishing all essential elements of his cause of action or defense
                   as a matter of law. Citv of Houston v. Clear Creek Basin &tthoritv. 589 S.WZil 671. 678
                   {Tex.19791. Summary judgment for defendant is proper when lhe evidence establishes that
                   there is no genuine issue of material fact cpncerning one or more of the essential elements of
                   plaintiffs cause of action, Gi60s v. General Mofors Coro.. 450 S.W.2d 927. 828. ffex,197O1.
                   I



                   or when eacfi element of an affirmative defense to plaintiffs cause of adion is established as
                   a rnatter of law, Mgnfsomery v. Kennedy. 669 S.W-2d 309. 31Lffex.1983]. Hcnrever, in
                   order to condusivety establish the requisite essential element or elements, the motion must
                   identifu or address the cause of action or defense and its elernents. Sine Victoria Lloyds
                   motion for sumrnary judgment failed to identify or address lhe causes of action for violations
                   of the DTPA and the lnsurane Code. negligence. gross negligence and breach of duty of
                   good faith and fair dealing or their essential elements, we hold that the granting of summary
                                                                                111
                   iudgment onceming these €uses of action v,ras enor.f

                   For the reasons explained herein, we reverse the judgment of the murt of appeals and
                   remand the cause to the trial court for further proceedings.

                   Dissenting opinion by HECHT, J., joined by PHILLIPS, C.J., and GONZ4rLEZ and COOK, JJ.

                   HECHT, Justice, dissenting.

                   lA/hen Lisa Jeanine Sudderth ran her fathefs pickup into Randal Black's car she had no idea
                   wtrether she was insured. ln fact, she was not. But her falher, C.O" Daniel, bdieved she was,
                   and he had an "identification card" which his employer had given him that he thought said she
                   was, although it did not €xactly say that. So the Court bndudes from this that an insurance
                   smpany whicfr never had any dealings with Suddedh or Daniel should be .28 put to trial to
                   decide whether it may nevertheless be liable to them and Black for actual and punitive
                   damages for breach of contract, violations of the Texas Deceptive Trade Practices-Consumer
                   Protection Aet and the Texas lnsurane Code, negligene. gross negligence, fraud, and
                   breacfi of the duty of good faith and fair dealing. lf there is a fact issue in this case, then I
                   question how any claim against an insurance @mpany, no matter how frivolous, can ever be
                   dismissed by sumrnary judgment. I dissent.

                   Daniel's em$oyer, Wood Brothers, bought a liability insurance policy from Victoria Lloyds
                   covering various trucks used in its business, including Daniel's pickup, which he leased to
                   Wood Brothers. The policy covered Daniel's pickup only when it was being used on Wood
                   Brothers business. This is the policy Wood Brothers wanted and paid for. Victoria Lloyds
                   gave Wood Brothers a number of small identification cards which it believed Wood Brothers
                   needed to comply with section 18 of the Texas Safety Responsibility Act, TEX"
                   REV.CIV.STAT.ANN. art 6701h, S 18 (Vemon Supp.199O).11J Each card measufed about ?'
                   x 4', referenced a policy number and expiration date, named Wood Brothers as the insured,
                   and stated on the back, among other things: "THIS POLICY COMPLIES W|TH THE
                   COMPULSORY AUTO I,{WS OF THE STATE OF TEXAS". Wood Brothers gave Daniel one
                   of the cards but did not say anything to him about whether the card indicated that his truck
                   was @vered when it was not being driven on Wood Brothers' business.

                   Daniel and Victoria Lloyds ne\rer had any contact until after Sudderth's accident. Victoria
                   Lloyds did not give Daniel the identification card; Victoria Lloyds gave the eard to llltrod
                   Brothers and Wood Brothers gave it to Daniel. This fact is most important because the
                   statement in the card as a representation by Victoria Lloyds to Wood Brothers and its drivers
                   while engaged in its business was absolutely true. Had Victoria Lloyds made the sarne
                   representation about this poli,cy to anyone else, it would not have been true. Victoria Lloyds
                   did not rnake the representation to Daniel; Wood Brothers did. lf Wood Erothers had told
                   Daniel that the statement on the card applied to hirn only while he was driving his truck on
                   Wood Brothers' business, then the statement would have been true. But Wood Brothers did
                   not explain the card to Daniel.

                   The Court implies that Victoria Lloyds intended that Wmd Brothers give the cards to its
                   drivers, suggesting, I suppose, that Victoria Lloyds is responsible for Wood Brothers' failure to
                   explain the cards to its drivers. The Court states: "Victoria Lloyds issued insurance cards to
                   Wood Brothers for distribution to all its drivers". Supra a122. This statement is only half-true:
                   lhe summary judgment record establishes without contradiction that Mctoria Lloyds issued
                   cards to Wood Brothers for distribution lo its drivers for use in their employment Specifically,
                   Victoria Lloyds representative testified at his deposilion in response to questions by opposing
                   counsel:

                          Q, All right. And the purpose of you giving the card to Wood Brothers '29 was to
                          distribute it to the hired vehicles, right?

                          A. For the purpose of while they worked for Wood Erothers,

                          Q. I understand your position on lhat....

                   There is no basis in the allegations of tte parties or the summary judgrnent record for holding
                   Mctoria Lloyds respnsible for ltVood Srothers' distribution of the identification cards. lA/hat if




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                     l/\rood Brothers had given cards to customers or friends, or iust passed thern out on the
                     street? Would eadr recipient be entitled to conclude tfrat he was suddenty covered by a
                     liabili$ insurance policy that he had newr seen issued by Victoria Ltoyds, a company that he
                     did not even know existed? Could anyone who happened to come upon a stray card-file a
                     daim with Victoria Lloyds arxd when it was denied, sue for negligence, statutory viotations,
                     fratd and bad failh? ln the ontext of this case, wfrat if Daniel had given the cald to Sudderth
                     lo use rvhile driving her own car?

                     I suppose even this Court uould have to strain to extend its bearer-bond notion of these
                     simple little identification cards quite that far. The Court s view strikes me a little like holding
                     the State of Texas liable ior a drive/s negligence because it licensed him to drive, or holding
                     a bank liable to pay a bouned cneck because it represented that the issuer had an open
                     aeount. Perhaps that is wtty the Court repeats tfrat it is the c,ard and Daniel's affidavit-eacfr
                     lime stressing that bolh must be taken together-that raise a facl issue in this case. The
                     Court leaves the impression, although it never dearly states, that the card itself in this case
                     does not raise a fact issue as to whether Victoria Lloyds is liable on the claims asserted.

                      It is hard to see, however, horr Daniel's affidavit contributes to raising a fact issue. lt
                     establishes tfiat the ryemiums for the coverage of his pickup were deducted from his pay, but
                     this shows only that Daniel paid for his own business insurane. Daniel never paid for liability
                     insurance overing the personal use of his truck, and he does not claim otherwise. Daniel
                     asserts that a Wood Brothers employee told him that the company liability policy covered his
                     personal use of his pictup (although his deposition testimony was mostly to the contrary). but
                     he never asserts that Mctoria Uoyds told him so, and Wood Brothers' r€presentation. if-it was
                     made, is not even alleged to be attrihrtable to Victoria Lloyds. Daniel says he was never told
                     that personal use of his pickup raas nol covered by the policy. and that if he had been, he
                     would have purchased his oranr liability insurance; but surely Victoria Lloyds had no duty to go
                     around telling its insured's employees one by one as they came and went from time to time-
                     that they were nof covered by ote of its poficies. Daniel stresses in his affidavit that he
                     believed he was covered by the Victoria Lloyds policy. But horv can Daniel's subjective,
                     unexpressed belief, however sincere, alter the fact that he was never insured?

                     The Court seems to say this: if you pay someone for some kind of insurance and he gives
                     you a card that says you are insured, but you nevercontad an insurer or an agent and you
                     never see a poliry, but you still believe in your heart that you are insured, then you may very
                     well be insured. This Cartesian theory of insurance --rl believe, therefore I am insured'-is
                     not only far-fetched, it is completely unworkable. \Mrat are the limits of the coverage the
                     Court thinks Daniel might have? The minimum statutory limits that the card refered to? The
                     limits of Wood Brothers' policy? The limits Daniel wishes he had, or that Black hopes he had?
                     lAthat are the lerms of this imaginary policy? The standard terms. whatever those are? The
                     terms Daniel thought he had? At the trial of this case, will the jury be asked to make up some
                     terms and limits and coverages for this made-up policy? Or is it all much sirnpler? Will the jury
                     simply be asked to award punitive damages against Victoria Lloyds for allowing Daniel to
                     believe he was insured wfren he was not? The Court does not atternpt to answer any of these
                     questions.

                    The Court reiterates thai there are fact issues in this case that must be tried, but I am at a
                    loss t'o see what they are. The Court mentions two: "concerning misrepresentation of the
                    liability insurance coverage '30 for personal use", supfa a122, and "concerning whether
                    Mcloria Lloyds waived the policy provisions excluding coverage for personal use of Daniel's
                    vehicle by a later representation in the insurance care that was at variance with the written
                    terms of the policy", supra at 26. These facts are not in dispute. Mctoria Lloyds never made
                    any slatement to Daniel, and it never made a false statement to Wood Erothers- No basis has
                    been alleged in the pleadings, raised in the summary judgment record, or suggested by the
                    Court for holding Mctoria Lloyds liable for Wood Brothers' statements and omiisions anO
                    Daniefs subjective belief. lf Vic{oria Ltoyds should have done something more or difierent, the
                    Court should say so.

                    lf there are fact issues in this case, could there ever be sucfr a case in which there were not
                    fact issues? How could these facts be changed to entitle Victoria Lloyds to surnmary
                    iudgment? The Courl put these \ery guestions to petitioners' counsel. Wtrat if Vicforia Lloycts
                    had stamped the card, "Not Valid for Personal Use"?

                           COUNSEL: On the facts of this particutar case, that may have done il. But
                           again, we'd have to look at the entire record to see if the conduc{ of lhe
                           insurance company's is misleading, because questions of wfrether or not
                           something is a misrepresentation, or a question of whether it's misleading, or a
                           question of whether ifs ne$igence, is just so inherently an issue of fact that it's
                           hard to ever resolre it by summary judgrnent....

                    tl/hat if Victoria Lloyds had added to the card something to the effect, "See policy for detail$'?

                           COUNSEL: That is exactly the point. The point is, if {hey had done that, woutd
                           that conduct have been negligent or not? Would they then have provided
                           qnough information to discharge lhe burden of a reasonably prudent person?
                           That is a question of fact that should be resolved by the trier of fact, not
                           resolved by summary judgment

                    Well. then, what if Victoria Lloyds had given Daniel the entire policy, all27 pages of it? Would
                    lhat fact entitle Mctoria Lloyds to summary judgment? ls there any way to get a summary
                    iudgment in a case like this?




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                               COUNSEL: I would be hard pressed- gs s l:r -.',.:;'r,vhrr v,,o,ks               . plaintiff$
                               side of the bar-l v*ould be hard pressed to f ,rr,: arr insrrrance '          ,;,ny who
                               gave somebody an insurance policy by them 5r'7ing. well, this '            ' ' is
                               confusing so thereforc it's inherently rnisleac'n1;. I mean-so rr , , 'ad just
                               given the policy, I think, I fail to see how that's going to-that's !. ,',,'--I to be hard
                               to make a misleading argumenL Perhaps the'r' could then eng,: ? other
                               candud. And in fact-see,$s nol just the lar':uage of the polir: i ', ihe
                               condugt: not only the issuance of lhe card, t" il the omission tc .              :e fact. lfs
                               all that conduct that we are claiming raises a fact issue on the mr:-,'-:ading
                               aspect of their transaction.

                     Petitioner$ counsel muld not imagine even one scc'rr' .-i,: in which su       judgment uould
                     be proper. Ginen the Court's view. I cannot eilher. Uni:ss the Court m, ', to abolish
                     summary judgments against plaintiffs who sue insurance companies i,i r :,.dses, it sftould
                     attempt wfrat petitioners have faile*-to exptain ho'l sumrnary judgrl'"; ci irld be granted.l?l

                     I dissent.

                     PHILLIPS, C.J., and GONZALEZ and COOK. JJ-, jcriri in tttis dissentirt,: t:',;iiofl.

                     tllTo tacoive a p€rm{t or certifca{e of public convenienca and nocessity r.nder article 911b, a nrotor canier mus( fib boncls
                     and/or inrrrrance policies wilh tho Texas Railroad Corrnission. The bands and/or insuranc.o i 'i ,'s musl provide lhal the
                                                                                                                     '
                     obligorwifipay--{othesxtontoflhofacaarnotrnloflhobondsandicrir,:urancepolicies-.';,                                     , -ntswhichmaybe
                     recoversd againsl tho mtor canier based upon varbus clainrs and arisrng out of the                actr"rai   t,r'       ,' ,:n of the motor Cafrigf-
                     TEX.REV.CIV.STAT.ANN. art. 911b, $ 13 {Vemon 1964)-


                     El The inguranca card provided: {FRONT} VHsia Uoyds Houslon. Texas lD€NTlFlCATlOf'{ C iRD Policy Number Gt A
                     O55O  Expir€s tl20/E3lnstrred 1) $,bod Brofh€rs Transfer, lnc. 2) Slalewide Trucking 2410 Cn''r]'nerce Hsuslon. Tgxas
                     77003  fuont SUMMIT GENERAL AGENCY. lNC. (8AC$ THIS POLICY COMPLIES IMTH Ti't: COMPULSORY AUTO
                     I-AI/US OF THE   STATE OF TE)(AS lF YOU HAVE AN AUTOMOBILE ACCIDENT 1. Stay car,', nO NOT leave the sceoe.
                     2. Do not dscuss the accidgnt with anyone but the polics of an aulho, r?ed represenlalive c,f      . :a Lloyds. 3- Be sure lo
                     obtain: The ournar and drive/s ntno. addre3s, li€nse number. bolil pl;lte arrd driver's liqe--.u.' 'rler, lheir insuranca
                     company. name and addre:s of initred pofsons and extent of iniury and wilnesses' names ar,           irresses. 4. Wrile dovrn
                     tha de{ails- 5. As soon as possible. notify your 8gen1 or lhe lnsurance Company. 1-7131527-0"{.i'i, 3131 W. AlabSme.
                     Houslon. Texas ff098-


                     [3] Afier 8*ack Rlod suit, Sudderth and Dertiel liled a cross-adion 3qairrrl lhe other defenri:;rrq. ] :" parlies were realigned
                     and lha cross-adbn was sover€d so that Blact. Suddorth and Daniel were aligned against Vt'o,>d Brolhers and Mdoda
                     Ltcyds. Eventually. Wood Brothors ras nonsuiled. The aulo collision cas€ againsl Sudderlh ar, J Daniel proceeded lo lrial
                     and a jury awarded Alactt jsdgmenl against Suddsrth. This cause consists of lhe -cross-action" a?ainst Victoria Lloyds.


                     gl Ssdion 1(8)   of article 6701h   deltnes'ownof as

                     A person wtro holds the legal tille od a molor vehide. or in lhe event a molor vehicle is lhe subiecl of an agreenrcr{ lor lhe
                     conditional sale orlaase theraof with lhg tigtrl of purchase upon perforrnanc€ ol lhe concitinnc ir-.rpcl in lhe agreamenl and
                     with an inrnodiats dgrht of possession vssted in the conditional vendec cr lessee or in lhe ev!. ' :. moflgagor of a vehic'g is
                     entiiled lo possossion. lhen sucfi condition*l vendes or lessee or morlgagor shall be deemed thc owner for lhe purposes of
                     this Act.


                     TEX-REV.CIV-STATiNN. arl.670th. S 1{8) {Vemon Supp.1990}. Seclion 1(7) of a{cle 6701h defines'operalof as'[el
                     vsry p€fson wfio is in actual physical control of a motor vahide.' TEX.REV.CIV.STAT.ANI.I. arl. 6 7:01h. S 1{7} {Vamon
                     Supp.189O).


                     plHorrever, any rnolorv€hide subject lo sedion t3 of artida 911b is €xempl from the re(lurr::,:'-j;rrs of seclion 1A of afticle
                     670lh. TEX-REV. CIV-STAT-ANN. art.670lh. SS 14. 33 (Vemon 1977 & Supp.l990)- Danier. e r an operator of a leased
                     tnrdc. had insuranca covorago ar required by sedion 13 of artide      9 1 1 b.   but was exempl fror n         1r   ,   requirernents of arlide
                     6701h.


                     EI The dissant inviter lho Court to spealate concaming facl scenarios under which Mctoria Lli'ytls might be entitled to
                     nnrnary iudgment. For example. what if Mdoria Lbyds addsd a stalernenl lo lhe insurance card such as 'Not Valid for
                     Personal Use' or -Seo policy for dotails' or rvtrat if Mctoria Uoyds had given Oaniel the snlire policy? ln addition, lhe
                     dissant invites lhe Courl I'o advisa Vidoria Lloyds lvhat it should do lo be entitled to sumrnary iudgrnenl on remancl. For
                     orarnplo. "[ilf Mctoria Lbyds should havo done sornelhing tnono or di{ferent. lhs Court should say so" and the Court should
                     'explain hor srrnrnary jtrdgment cndd bs grentad.'Pago 29.3O (Hecht. J.. dissenting). For obvious reasons. rue dedine lo
                     consider fact scenarios not before the Court or to adviso Vic{oria Lloyds on wtral il should do on rernand lo be entitled to
                     summaryiudgmenl.


                     [lSodion    1(10] of artida 6701h in effect at lhe lime of the accident defrned "proof of linanciai responsibility" as follows:


                     Proril of at{lity lo respond in damages for liability. on accounl of accidents occuning subseque r'; to the effeclive date of said
                     proof. arfsing otrt of the ownership. mahlenance or use of a motof vehicle. in the amount o{ Ten Thousand Dcflars
                     {$1O.OOO} because of bodlly injury to or dsath of one person in any one accidsnl, and. subjecl to said fimil for ona person. in
                     tho arnounl of Turenty Thousand Dollars ($2O.0OO) tocause of bodily injury to or dealh of lwo (2) or more persons in any
                     ono accident, and in lhe snouflt of Fivs Thousand Dcillars ($5,0001 becauso of injury to or destruction of property of otherl
                     in any one accidonl.


                     TEX.REV.CIV.STAT.ANN. art.6701h. S 1(10) (Vemon 1977).


                    El Th€ dissenl stales thal the efed of tho Court s opioion is, arnong oiher things, thal no clairn against an insuranc,
                    company, no mallet how frivolous. may ever be dismissed by summary jrrdgrnenl and lhal su'-rlr: 1ry judgments against
                    plaintiffs wtp sue insurance conpanies are abolished. Page 30 {Hecht. J., dissenting}. Contrary ro the dissenfs
                    conclusions, lhe Court determined lhai under tle feas and dralmslances in lhiscase, there are genuino issues ot matedal
                    fact urtlich preduda surnmaryidgmant. Tha Court has nol abof,shed Surnmary iudgrnents against plaintifls wfro sue
                    lnrnrancs compaoies or delermined thal no daim agninst an in$rraqce cornpany .nay sver be dismissed by sunrnary
                    iudgrnsnt.


                    El Th€'Parsons lnsuref provision of lhe insuraoca pofay provides in perlinent parl as follows:

                    Esch ol thg fo$owing is an insufod under this insurence to the ordent set         fiorth balo'v:




                    (c) any ofrter person wtrile using an owned automobils or a hired aulofiobile with lhe permission of lhe named insurad.
                    providod his ac{ual operation or (f he ir not operating) his olher actual use lhereof is within lhe scop€ of suctt pormission,...
 Black v. Victoria Lloyds Ins. Co., 797 SW 2d2A -                                         Tc.':               u:rrcrne                        ur,t 1990 - Google Sc... Page 7 of 7


                       tl0l Aulomotib ondorsement TX-0617'Truc*men-Gross Receir''                      --' '1'naoe      Rasis'F--             :     i'^ .',er-t;nent parl'


                      1. VlJlth respecl to lhe inswance for bo<lily iniury liabW and for pr'                  {amage      liability           i.     )   .tt1   this   endrsemont th€
                      ?ersons lnsured" provision of lhe pollcy is replaced by tre follo.^




                      None of the tcilorving is an insurcd:


                      (i) any pacron or organizalion.     ff   arly agenl oronployae thereo{. o: ' :'. ii,,,;1 1hu named         rr;          .i    .ji -n enployee thereo{
                      engagedinthebusinessdttansporlingpropertybyautomobile {o'': i ii.rrred insured or , , ;ih;rs underanyof lhe
                      follouiing conditions   :



                      tU if tfrs borlily injury or proporty darnagn occunr while srrdt autr:,,'               , nol being use,i               'isiv ly         ;n the buciness of firo
                      narnsd insurod afid ovara rouls lh€ narned insuf€d is authorize,J           ,          : by federal or p.                   . '     :,riiy....


                      Aulomobile endorsament TX-0G21 Truckrne*Hired Adomobiles'                         ''t-, les in perlinenl       1,



                      ll is agreed thal the insuranca wilh respec{ tg o{vned aulomobiles          ;.    '   '! lo the   mainlena              )r (!:?, induding loading ard
                      unloading of hkad autornobilos. :ubFcf lo lhe folkmricg provisions:




                      (d) The insurance dggs nol covef ai an insured. lhe orrrner o( an'i ';' -: :':' lcf ',vhcm lhe n , 'J insured iS a su6.li53ee)                              Of a
                      hired automotile, {r any agenl or employee of suttt owoef or lessee, if !i'e bodily iniury oroerty damago occrrrs:

                      (f ) wftile lhe automobile is not being usod sxclusivaly in ths busini-                :he narned     insurr:            'l   o',-.r a roula the narned
                      inrured is authorized lo servs by lederal or public authorily....


                      fl ll As a result ol ihe disposilion of the olher issues. our consider? , 'r of the alleged lack                        :anding of Blac* anct
                      Sudderth is premature. Ih{rs. ure elpross no opinion oo this issue.


                      [!,1 Thar   slatule provides in perlinent part:


                      ta) On and afler January t, 19E2. cvery ownar and/or operalor in li;" ljlale of Texas $halt : .:,1ui rr.J, as a condilion of
                      driving. lo fumish, upon roqucgt, ovidsnce of financial responsibility lo a lawenforcement oirr...e of the State of Taxas orany
                      gubdivision ltprsof. or agent of the Departmenl, or lo angther person involved in an accidt ,r                      r




                      {b} Thg fo$owing svidencs of financial responsitlility salislies lhe rr.: 'rrire: renl of         Subsecti.:'           } of t,.rs seclion:




                      (2) a written inskurnent issued by a liability insurEr lhat furcludes:


                      {A} lh€ narne of lhe insursr;


                      {8} lhe ingurance poh{;y rnrmbeq

                      tClth€ pdicy perM;

                      (D) the   narp of lhe insurad; and

                     (E) lha poftqy limits or a slatemenl thal tho coverage ol the policy       .             i   with ihe mini:.,             -           | sf liability insurance
                     required by this Act....


                     trl Ttte Cftrl calls this concsm about the irnpact of ils decision on s.,: rrr>ary judgrnent prai                         si-le' ,Jtalion and dgctin€S to
                     consider it for "obvious roasons". Supla al 24. Those unstated r€as. :r.:r rrrusl nol have bee                              Du:. lo lhe Cot rt wfian il
                     questioned counsel exlensively qt lhs subjed at oral efgumsnt. na, ; ,. lhey obrious to rr,                                 . i :1 -ot awafs lhst it is
                     impropor brlhe Court lo consider the effecl of its docisionr on lhe 1.. v ire5pilg the Courl'.                               ,-'r; .= iirdt il haS nOt
                     ebolishod surnmary judgm€nls in suilc agairut ingurance companies, it does not off6r eilhp                                rjxarnple of an explanatiOn
                     of how a surnmary judgrnenl m[ht ba approfiate.




                                                  Go to Gooole Homq - About_Gggcr , - t.FoulSogg!.

                                                                                    @2Ol1Googl':




http : l/scholar. google. comlscho lar case?case:l009094Ai 5643 C521 i i;r.:en&as                                                                                                     sdt:2&a... 8/I7/?01 I
\


    I
A
              Texas Departrnent of lnsurance
              Consumer protection - Public Education,
                                                       Mail Code                       111--l A
              333 Guadalupe. p. O. Box 149091, Austin,
              ulww,tdi.state.tx,us                     Texas                    TBT1   4-g0g1



  .April 25, 2011



  MICHAELW LEE
  ATTORNEY AT LAW
  770 SOUTH POST OAK STE 360
  HOUSTON TX 77056


  Re   TDI Request No.114744
 Request forhforthation concernihg: TTi*i Loya
                                               lnsuhindiirario bto Rrnerican county
 lnaurance company regarding nori-engiiin speaking                                  Fire
                                                    mernbers, poricies
 Dear Michael W. Lee:

 Thank you tor your request for information to the
                                             Texas
 are no codes to pull out the information regarding Department of lnsurance (TDl). There
                                                    poiicies sotc to non-English speaking
 rnernbers-

 Please note that complaints Resolution is handling
                                                    your complaint and will respond
 to procedure                                                                       accordingly

The Texas Department of lnsurance processes pubric
                                                           information requests in a decentralized
rnanner' lf your open records request ieeks intoriiition
respond to its portion of the request. lf charges
                                                           iroii'r"uur"l divisions, each crivision will
                                                  were incurreo in procesling your request,
receive notification from Agency counseldine                                                  you wil
                                                  l"g"iil;il;fiance      Division of rDt.
our goal is to provide prompt and courteous service
                                                    to all of our customers, so if I may
rtllr"i.riX'i'"tib?,..H31i1"".0"
                                  noi hesitate        6   ;;ft  me at (srz) s0s-7621 or
                                                                                         be of


Sincer ely,




Jesusa Haygood
Texas Department of lnsurance
Consurner Protection Division
512-305-762'l
 Page2
 Mlchael Lee
July I 1, 2Ol   t


Texas Liabilitv lnsurance Cards

You expressed concern relating to information contained on the Texas Liability lnsurance
card {lD card). Title 28, Texas Administrative code, Ss.204 (TAc Ss.2M), iequires the
Texas Uability lnsurance Card to include the name and address of each insured or
covered person; however, the rule does not currently require excluded drivers to be
indMdually named on the card. The Department is considering the possibility of revising
this rule to provide for indicating certain coverage limitations u-nder an individual's motor
vehicle liability policy, including the listing of excluded drivers. This rule curently ouflines
the options an insurer has in providing the information on the lD card in Spanish.

Spanish policv forms and endorsements

There are no lnsurance Code statutes that require insurers to provide policy forms or
endorsements in Spanish. Curently, if an insurer files insurance policy forms or
endorsements that are translated into Spanish or another foreign language, the
Department requires the filing insurer to provide a certification from the translation firm to
the effect that the policy form or endorsement is a true and accurate translation of the
previously approved English version. The filing company is also required to include a
statement that the English version will be used for coverage questions and/or any
disputes.

lnsurance code, chapter 522., consumer lnformation in spanish, requires the
commissioner to develop or adopt an information sheet in the Spanish language to
provide a general explanation of the terms most cornmonly used in the Texas perional
automobile insurance policy and to make it available to the public. This information
sheet is intended to provide only a general explanation of insurance terms used in the
Texas personal automobile insurance policy and is not intended to alter any rights,
obligations, or responsibilities of the contracting parties. You may access various
consumer publications         in spanish on the               Department's website          at:
http://www.tdi.state.tx.us/pubs/tdipubsl .hlml.

The Department encourages the filing of complaints if it is believed that an insurer,
agent, or adjuster has acted improperly. Cornplaints may be filed online at:
htto://www.tdi.state.tx.us/consumer/cpoortal.html. The complaint form is available in both
English and Spanish.

We hope the information in this letter is helpful. Thank you for allowing the Texas
Department of lnsurance to provide you with this information.

Best Regards,



LeSlie Hurley, Manager
Personal Lines Division
Property & Casualty Program

Enclosures
\_


 B
      Texassure vehicle lnsurance verification
                                               - what if I decide to drive without             insurance?         page       I of I

     Skipts.legsrreor!




    Texassure vehicle rnsurance verifi cation
    If I Decide to Drive              Without fnsurance?
                                                              ay   severe pgn{ges for doing so. First
                                                                    vv1,rs yglralrllsl
    ffiHf,m"H:X,Hlf"Xrj,,1.u::jjd^"^Llnj*tjYe                                                         time ofrenders
                                                                                                                are
    :l}:*'r::lf r 7oB: hlbl fpso, pruJcourr costs, and may be assessed additiional fees as authorized by Transportation
    Code Chapte     *yl.to
    up to gr,ooo and a two (z) year drivet                                                rn. Repeat offenders face fines of
                                             li"***   r*pension.


                           fHfiH ,ff#:,,:ilifi:H:il#::"T:';|:,:,il::*L":dence                  of nnanciar responsib'ity      ,,




   """LxT.'ff:J,Ti::




http :/lwww. texassure.   com/drivewithout.hffirl
                                                                                                              8na/20t    I
\


    c
fftN
ffi{m Texas& Department of lnsurance
\Y           casuarty program personar Lines Division,
         |J9q"rtv                           -
         3il3 Guadalupe. P. O. Box 149.104, Austin, Texas 7AZ|4-91O4
                                                                             Ma1 code 104-1A
         512-3?2-2266 lelephone . S'12-490-tO1 5 lax . www.tdi.state.tx.us

         July 1 1, 2011



         Michael Lee
         770 South Post Oak, Suite 360
         Houston, TX TIOS6

         RE: Your letter of April2T, 2O11

         Dear Mr. Lee:

        Your letter of April 27,2011 to various legislators has been refened to me for review
                                                                                              and
        response.

        Our records indicate the Texas Department of lnsurance (Department) Gonsumer
        Protection Division. rece-ived your April 14,2011 leiler on April 15,'2011. bn npril iS,
        2o71, a letter (enclosed) was mailed to you advising that th6 Department ooes
                                                                                          ndt nave
        "codes to pull out the informatiort regarding policies sold to non-English speaf<int
        members"- This means that the Department does not have a specific fray to'identi{
        those complaints that involve issues relating to individuals that do not speak English.

        TDI staff also advised the Departrnent's Complaints Resolution Section was handling
        your complaint and would respond accordingly. The Complaints Resolution Sectioi
        investigated the issues raised in y9u1 April 14th lefter relating tb Freo LoyJ lnsurance
                                                                                                 Co.
        and Old American County Mutual Fire lns. Co. You weie notified on tvtay 2g, ZO71
        (response enclosed) regarding the section's review and investigation of your cbmplaint.

        W9 offer the following additional information related to the various topicsfissues you have
        raised:

        Named Driver Exclusions

        Named driver exclusions hive existed since the 1940s. A named driver exclusion may
        be used in accordance with Texas lnsurance Code, S551.104(d) which recogniies the
        use of named driver exclusions under certain circumstiances relating -to policy
        cancellation.

       A named driver exclusion may also be used for other reasons. For example, if there is a
       hj0h risk driver in the household an insurer that might not otherwise prbviOe iou"r"g.
       may agree to issue a policy with the attachment of a named driver exclusion that
       specifically excludes the high risk driver. Named driver exctusions may enable motor
       vehicle owners with family members having poor driving records to proture affordable
       insurance, rather than obtaining coverage from an assigned risk pool it a greater cost or
       not purchasing automobile insurance at all.
\


    D
                                                               TexasSure.com

    The Texas Deparlrnent of lnsurance invited a smalt group of insurance industry communicatione people
                                                                                                            to a meeting
    today to discuss the Financial Responsibitity Verification Program and to discuss a state.wide orireach program.
    Following are sorne of the more important issues whlch were discussed.

        .    Ile lesting phase is still sdreduled for June 2fi)8 in Travis, tMliamson and small portion of Hays Counties Texas.
             DPS has assigned 36 Troopen to the program in ltrese Counties. They have 'in*ar'databassacoess
                                                                                                                     and/or radio
             access to check license lags as lhey do on every routine stop. The database will be integrated into these       routine
             decks to show if he vehlcle is insured. Citations for uninsured will range from $250 - $350 for 1a offense and g1,0{X}
             ftn second offense.

             During a stop DPS will give the driver tlre 'benefit of ttre doubf if they have a valid id card handy
                                                                                                                   but their inlormdir:n
             does not matdt up in he database. They will, houerrer, do additional investigalion on ttre vehicie and
                                                                                                                         ddver info to
             ensure that the driver has valid insurance.


             Unless tlrere is legislative mandate, participation in ttre program will remain optional for local law enforcement
                                                                                                                                   agencies
             and municipalities across the slate now and in the future. Cities and municipalities also still have
                                                                                                                    tre option of ffing
             ddvers wtro do not show proof of insurance. DPS and TDI botr stated they have received          nrr..rr    iriquirir. nornfi.
             other law enforcement agencies and most are very interested in lhe progrim.

             DPS noted that in one major city, 4 in 10 ofdrivers presented faudulent insurance cards to the officers.


             On June 3 ttre Texas Deparlment of Public Safety and the Texas Deparlment of Transporlation will laundr
                                                                                                                       a campaign
             in Austin to announce a 60-day test phase. Later ttrey will launch a 4 ureek state-wide media campaign
                                                                                                                    in 6 m€dil
                                                                                                                                       "
            ma*ets. The vehicles for the ad campaign will be radio, billboards, sorne public seruie announcemenls, posten and
            eamed media. Tvn Austin{ased advertising agencies have been retained to contact the campaign.




iTDI has dropped he name oJ the prqgram from FRVP to Vehlcb lnsurance Verification and Texassure.
                                                                                                           They have a Web site
wttidt is Texassure.com. TDI accepted SllS's offer to post lhis link on our website. They will also provide us with
                                                                                                                    dates and
locations of media events so we can get that infonnalion to members and posl on our website as well.


TDI has developed a brochure and a bi-lingual premium notice stuffer which will be abcxrt one-third of a page.
                                                                                                               Their limiled
budget prevents $em from offering insuren copies of hese, but they will provide us witr art work which'vd wil
                                                                                                                distribute to our
Members. TDI welcomes any assistance frorn insurers in making ttre puUic arrrnre of the program.

To{ also h|9 a postg,T Texassure in .pdf format that will be placed in state agencies and can be reprinted by insurance
                                                                                                                        agents
an{ placed in agent offices, claims offices and common areas within insvrancecompanies. SllS w{ll procure ihese docpments
an{make them available to members.

'   TDI repoded they have a 99     pacent matdt rate and the remaining people in ttre I
                                                                                        fercent category that are not "malches" in
the database will be receiving a letter ftom DPS.


'TDI   seems most interested in induding various industly groups in their outreach program and SllS will most
                                                                                                              certainly be a part
of the efiort.
\


    t
    I
                                                                                                                     7fu&                             qpa!
                                                                                                               we iust want to thank iou for being a Registerec] 'rexan
                                        trPutTexas in                                                          Texas in your corner." Your registrltion                  and arways rememb"rinh -Ftt
                                                                                                                                                         fee hetpr *o'Ju,ti.ffi;;intain Texas,roads
                                                                                                               bridges' About a third of your ree stays in your
                                           your corner.                                                        forget in rnany counties you can renew
                                                                                                               ve lr icl e reg
                                                                                                                                                                                                       and
                                                                                                                                                                i,o** county for rocal road projects. Don,t
                                                                                                                                                           online at wwutexas.gov. To learn
                                                                                                                               istration, go to www-TxDMugov or www.re                         more about
                                                                                                                                                                                            g   isteredtexan.com.



                                                                                                                                            ' Wmromffiffirumrff,e
                                                   ,,1
                                                                                                                                                    REQUIRED PROOF OF INSURANCE
                   ITDERSTAND|NG REMARKS oN
                   RENEWAL NOTICE
                   You     rnly not be sbre to rsnew your vehicre registr:ation,if,,,the
                   front of this retrewal notice tras iny of these
                                                         .i,
                                                                                                          d;;il'          :.
                                                                                                                                     ,


                           "LEGAL RESTRATNT - CONTACT t.xD{UtV,,                                                                                    ln Texas' ''if you're not covered. you'il
                                                               'regtstiation                                                                                                                   be discovered." RegrsteretJ Texans
                          There is a probrenr with=                                                                                                 rrtusl carry the state's minirnum amount
                                                    v"oilu;l;.               aha7o.
                          titte resord: you rnusr contact.rh;-;;;;';;il;rnent,:of:
                                                                                                                                                                                                of insurance coverage. The state,s
                                                                                                                                                    dat:rbase elcctrirnirurliy tracks whetirer your
                                                                                                                                                                                                     insurance rs up-to-date.
                          Motor Vehicfes, (S1?) 46S-f611.
                                                                                                                                                    For nrore information, ga to www.Texassure-corn
                          *COUNTY                                                                                                                                                                   or www.TxDfurv.gov.
                                                     SCOFFLAW: {County Name;:,
                          Your-county notified ur                                  irt"t you o** .fi,* cougfy, for a fine,                         when you renew by mail. you still rnust .sencl
                                                                                                                                                                                                  a copy of your insurance
                                                                                                                                                   card' when you renew online at
                         lX      r"^'   :l:trt           1t
                                                               i   s
                                                                       Ia
                                                                            s   t 9 :: . io n ra cr'riu-r,:-iil;ifc;;_,t1      i:;                 autonratically
                                                                                                                                                                                        www.texas.gov. the database will
                                                                                                                                                                  check your insurance status.
                         .,ClTy
                               SCOFFLATA|: (City Narne)i,                                                                                          TEXAS VEHICLE EIVIISSIONS TESTING
                         The city-nanted notlfied us ttrit you have
                         warrant for failure to appear in court for
                                                                       an outstanding                                                              AND DRIVER LICENSE IS$UANCE
                                                                    a traffic uiol;ti"ri,,,,                                                       Vehicle enrissions tesling is .r:quirerJ in
                         or owe mgneY for RerI Light Ganrera                                                                                                                                   designated J-exas counties. The
                 :.      the. county                          l
                                                         tax office                              "i"riti"n.:
                                                                                   or: municipal court ih, tfie::ciii,
                                                                                                                      itu"f;;6i"',,,               Texas Departme*t of pubric safety (Dpsi
                                                                                                                                                                                                arJnrinisters the program.
                         indicated.                                                                                                      ,,:l
                                                                                                                                            ,


                                                                                                                                                   DPS alsa issues ancJ renews the rex.as
                                                                                                                                                                                          Driver License.
                        "TC$             - EMISSION.S PRGtri                          NOI{-COMPL|ANC€,                                            To find a certifierJ vehrcle lrrspection
                        The.}exascommissiononEnvironment"':a;iff(TcEa)                                                                                                                     $tation or renew your driver license.
                                                                                                                                                  go to www.txdps.state.tx.us
                       requires, yo$r vehicre to
                                                    B:lss emission$. t;;i;g-;
                       register'your vehicre, you must show it:passeu;i*isii";;                                                      .

                       tesring. by raking atr orisinat v*r,ille iid;;ilr;'                                                                        FEDERAL HEAYY VEHICLE USE TAX
                       which is'given to you ar a certifiua                d;;;,                                                                  owners of heavy comrnercial vehrcles weighing
                                                           v#icb il$#;;
                       $tation, to your rocar county tax o*i**. F;; -;;
                                                                                                                                                                                                  55.000 pounds or rnore
                                                                                                                                                  mtlsl :;hovr proOf thrrt tirey comply with
                                                                                                                                                                                             the Federal Heavy Use Ta.*"
                       informatio', go to wwrv.tceq;stat'e:tx,'s                                                                                  requirernents  in order to be eligible ror registration.
                       295_AM1.
                                                                 or cail {s8s}
                                                                                                                                                  NOTICE OF FEDERAL MOTOR CARRIER
                      .'DPS -
                              EMISSIONS PRGM NON*COMPLIANCE"                                                                                                                      SAFETY
                                                                                                                                                  AND HAZARDOUS MATERIAL REGULATIONS
                       rhe rnI?.? Dapartnrun*-ui p"oiiJ#6i#$J                                                                                    Payment of your requirerl registration
                                                                         senr !{ou a                                                                                                    fee is a declaration of knowledge
                      letter                            ::four vehi,alels ernissions
                            ,wi,th,jnqtrtctions to havd
                      tested. yoii must tako an origilrar vehiJ",
                                                                                                                                                 that rexas has aclopted and enforces the
                                                                                                                                                                                             Fecterat Mor"r'#rri#'*ll",u
                      Report,. whitih 'is given to you at
                                                                          r"-p".rj""                                                             Re-qulations and Hazardous 'Jrlaterial
                                                                                                                                                                                           Regulations and              it is yclur
                                                               a certifie:d vehicle                                                              (tegistrant'si oblig:rtion to be fan'riliar
                                                                                                                                                                                             with ail applicabpi requirenrents.
                      lnspaction $tation, to your tocat county tu*
                                                                             i;;rJ;
                      to register your vehicle.                                                             "*i"u                                This obligation applies to owners of:
                                                                                                                                                   " vehicles {incr*cring Farm Vehicres} weighing ovar
                      For nrore  information on enrissions testing and rrelricle                                                                                                                       r0,000 pounds
                                                                                                                                                    ' vehicles tran.sporti*g {f or rnore        passengers
    '--*-*""-"*-   '-inspection.-gfilo-.wttw..txdpsistato Jx.usor-"ontactJtre{tF,L--__-
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                                                                                                                                                      wrvw.TxDMV.gov.                                                            "i



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