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Avelon v. Nationwide Mut. Ins.

Court of Appeals of Texas, Fifth District, Dallas
Jan 14, 2003
No. 05-02-00082-CV (Tex. App. Jan. 14, 2003)

Summary

In Avelon, the insured rented a vehicle from Avelon and failed to return it. Avelon sued the insured for breach of contract and obtained a default judgment.

Summary of this case from Lee v. USAA Casualty Insurance

Opinion

No. 05-02-00082-CV.

Opinion issued January 14, 2003.

Appeal from the County Court at Law No. 3, Dallas County, Texas, Trial Court Cause No. cc-99-12607-c.

AFFIRMED.

Before Justices MORRIS, JAMES, and FITZGERALD.


MEMORANDUM OPINION


Avelon, Inc. D/B/A Acquest Automobile Leasing and Sales appeals the trial court's granting of summary judgment in favor of Nationwide Mutual Insurance Company, Inc. Avelon asserts one point of error, arguing in general the trial court erred in granting the summary judgment. Under this point, Avelon specifically argues there was coverage under the policy issued by Nationwide to the insured and the insured complied with the terms of the policy. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.1. We affirm the trial court's summary judgment.

Michelle McCoy, insured by Nationwide, rented a vehicle from Avelon while her car was being repaired. When McCoy failed to return the vehicle to Avelon, claiming the vehicle had been stolen, Avelon sued McCoy for breach of contract. Avelon obtained a default judgment on April 13, 1999. In the present action, Avelon brought suit against Nationwide to recover the amount awarded to it in the underlying action against McCoy. The court granted Nationwide's motion for summary judgment, and Avelon appeals.

This Court reviews a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Foreness v. Hexamer, 971 S.W.2d 525, 527 (Tex.App.-Dallas 1997, pet. denied). When reviewing a traditional summary judgment, we apply well-known standards. See Tex.R.Civ.P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392, 394 (Tex.App.-Dallas 1998, no pet.). The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. See Tex.R.Civ.P. 166a(c); McIntyre v. Wilson, 50 S.W.3d 674, 679 (Tex.App.-Dallas 2001, pet. denied). The non-moving party may respond by presenting evidence creating a fact question. See Puga v. Dona Fruit Co., 634 S.W.2d 677, 680-81 (Tex. 1982); Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877, 886 (Tex.App.-Dallas 2000, pet. denied), cert denied, 533 U.S. 951 (2001).

In its summary judgment motion, Nationwide argued the allegations of the underlying action did not fall within the coverage provided under its policy, specifically arguing the breach of contract claim did not fall within the insuring agreement of the policy. Avelon alleged Nationwide was liable for an underlying lawsuit against Nationwide's insured because Nationwide promised to pay sums its insured became obligated to pay as damages caused by an occurrence. The underlying lawsuit, however, was an action for breach of contract because the insured failed to timely return the vehicle to Avelon as promised. Although Avelon goes to great length to argue a theft would be an occurrence under the policy, Avelon does not offer any evidence creating a fact question as to whether a breach of contract action is covered under the policy. Because the underlying action was one for breach of contract, we need not decide if theft of a rental car is an occurrence under the policy.

We have reviewed the language Avelon argues provides coverage, and we find no language providing coverage for damages resulting from an insured's breach of contract. Avelon first directed us to language in Part A of the policy, the part applying to liability coverage. In Part A, the policy states Nationwide will pay damages "for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident." Avelon argues an act of theft could be considered an "auto accident." However, Avelon does not explain how an insured's act of breach of contract could be considered an "auto accident," and in our review of the policy we find no coverage for a breach of contract action under Part A.

Avelon next argues Part D of the policy provides coverage. We likewise find none there. Avelon argues the rented vehicle was covered in the policy as an "insured vehicle" as " your covered auto." In Part D, the part of the policy applicable to "damage to your auto," the policy states Nationwide will pay for "direct and accidental loss to your covered auto." However, in this section, the policy states Nationwide will not pay for loss to any vehicle "while used as a temporary substitute for a vehicle you own which is out of normal use because of its breakdown; repair; servicing; loss; or destruction." The vehicle at issue was being used as a temporary substitute for the vehicle McCoy owned because the vehicle McCoy owned was being repaired. Therefore, we find no coverage under Part D of the policy for the breach of contract involving the rented vehicle.

Based on our review of the policy language, we conclude Nationwide established as a matter of law it was entitled to summary judgment. See McIntyre, 50 S.W.3d at 679. In its response, Avelon did not present evidence creating a fact question on whether coverage for breach of contract existed under the policy. See Turner, 18 S.W.3d at 886. Accordingly, we conclude Nationwide was entitled to judgment as a matter of law, and we hold the trial court did not err in granting summary judgment. We overrule Avelon's sole point of error.

We affirm the trial court's judgment.


Summaries of

Avelon v. Nationwide Mut. Ins.

Court of Appeals of Texas, Fifth District, Dallas
Jan 14, 2003
No. 05-02-00082-CV (Tex. App. Jan. 14, 2003)

In Avelon, the insured rented a vehicle from Avelon and failed to return it. Avelon sued the insured for breach of contract and obtained a default judgment.

Summary of this case from Lee v. USAA Casualty Insurance
Case details for

Avelon v. Nationwide Mut. Ins.

Case Details

Full title:AVELON, INC. D/B/A ACQUEST AUTOMOBILE LEASING AND SALES, Appellant v…

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 14, 2003

Citations

No. 05-02-00082-CV (Tex. App. Jan. 14, 2003)

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