Opinion
No. 05-02-01531-CV
Opinion issued July 28, 2003
On Appeal from the 160th District Court, Dallas County, Texas, Trial Court Cause No. 02-04599-H
AFFIRMED
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
MEMORANDUM OPINION
Sherrie Lowe appeals the trial court's summary judgment in favor of Safeco Insurance Company. In four issues, Lowe argues the trial court failed to consider her amended petition, genuine issues of material fact exist whether Lowe timely filed her petition and whether she can bring an action to enforce the contract between Safeco and its insured, and she is entitled to a new trial due to judicial misconduct. We affirm the trial court's judgment.
On November 9, 1999, Lowe was in an automobile accident with an individual insured by Safeco. Safeco paid Lowe $780.27 for damages to her car but refused to pay for Lowe's alleged medical expenses. On May 22, 2002, Lowe sued Safeco, alleging Safeco had breached the duty of good faith and fair dealing, committed fraud, and wrongfully withheld benefits. Safeco answered and argued Lowe's suit was barred by the statute of limitations. Safeco also filed a motion for summary judgment on the grounds that Lowe's direct suit against a third party's insurance carrier is not permitted under Texas law. On July 8, 2002, Lowe filed an amended petition virtually identical to her original petition except for the addition of a section entitled "Bad Faith." However, the "Bad Faith" section was nearly identical to the "Breach of Good Faith and Fair Dealing" section in her original petition. On July 9, 2002, the trial court held a hearing on Safeco's motion for summary judgment. On August 6, 2002, the trial court granted Safeco's motion for summary judgment, and this appeal followed.
In her first issue, Lowe argues her amended petition was "struck down unreasonably and arbitrarily, because the amended pleading was unchallenged by" Safeco. Lowe appears to argue that her amended petition stands in the place of her original petition and raises new arguments not addressed by Safeco's motion for summary judgment. However, the trial court's judgment states that all pleadings on file were considered by the trial court. Goswami v. Metro. Sav. Loan, 751 S.W.2d 487, 490 (Tex. 1988) (leave of court to file amended petition presumed where record silent of any basis to conclude amended petition not considered by trial court). Lowe's amended petition is virtually identical to her original petition with the sole addition of a "Bad Faith" section which restates the "Breach of Good Faith and Fair Dealing" section in her original petition. Thus, nothing in the record indicates the trial court did not consider Lowe's amended pleading, and all of the issues in her amended pleading were raised in her original pleading. Under these circumstances, Lowe has not shown that her amended pleading was "struck down unreasonably and arbitrarily." We overrule Lowe's first issue.
We next address Lowe's third issue in which she argues the trial court erred in granting summary judgment because a genuine issue of material fact exists whether she can bring an action to enforce the contract between Safeco and its insured. The standard of review in a summary judgment case is well settled. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Under Texas law, a tort plaintiff generally has no standing to join a tortfeasor's liability insurer directly in the tort action. See Tex.R.Civ.P. 51(b); Penny v. Powell, 162 Tex. 497, 347 S.W.2d 601, 603 (Tex. 1961); Jones v. CGU Ins. Co., 78 S.W.3d 626, 629 (Tex.App.-Austin 2002, no pet.). A tort claimant has no direct cause of action against the tortfeasor's liability insurer until the insured-tortfeasor is adjudged liable to the tort claimant. Jones, 78 S.W.3d at 629.
It appears from the record that Lowe never sued the individual involved in the car accident in 1999 but instead sought payment directly from Safeco. While nothing prevented Lowe from seeking money from Safeco, her suit against Safeco is barred under Texas law. See Tex.R.Civ.P. 51(b); Penny, 347 S.W.2d at 603; Jones, 78 S.W.3d at 629. Accordingly, the trial court correctly granted summary judgment on this ground. See Nixon, 690 S.W.2d at 548-49. We overrule appellant's third issue. Because of our disposition of Lowe's third issue, we need not address her argument, raised in her second issue, that her claims against Safeco were not barred by the statute of limitations.
In her fourth issue, Lowe argues she was not granted a fair hearing due to the "judicial misconduct and/or discretionary action" of the trial judge. Specifically, Lowe complains the trial judge did not allow her to open and close her argument and made prejudicial and harmful remarks when he said, "You can't sue an insurance company in Texas." We note Lowe is representing herself pro se. From the trial judge's remarks, it appears the judge was attempting to explain the law to Lowe, and his statement in context was correct. See Tex.R.Civ.P. 51(b); Penny, 347 S.W.2d at 603; Jones, 78 S.W.3d at 629. While Lowe may not have appreciated hearing that the law in Texas bars her suit, we cannot conclude the trial judge's correct statement of the law somehow amounted to judicial misconduct. We overrule Lowe's fourth issue.
We affirm the trial court's judgment.