Opinion
NO. 12-11-00262-CV
05-23-2012
BRIAN W. HAYGOOD, APPELLANT v. HAWKEYE INSURANCE SERVICES, INC., APPELLEE
APPEAL FROM THE 114TH
JUDICIAL DISTRICT COURT
SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Brian W. Haygood appeals from the trial court's summary judgment in favor of Hawkeye Insurance Services, Inc. In one issue, Haygood contends the trial court erred in granting the motion for summary judgment filed by Hawkeye. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The summary judgment evidence establishes these facts. On May 17, 2008, Haygood's wife, Julie, was driving a 2004 Nissan Quest SE Minivan when she was struck from the rear by a vehicle driven by Patricia Anderson at a Tyler intersection. Anderson carried car insurance with Old American County Mutual Fire Insurance Company. Hawkeye is the managing general agent for Old American.
The Haygoods' minivan was determined to be a total loss. Over the next two years, Brian Haygood attempted to have Hawkeye pay for the value of the minivan. There were extensive negotiations between Haygood and Hawkeye, but no settlement was reached.
On May 17, 2010, Haygood filed suit against Anderson. On June 21, 2010, he filed suit against Hawkeye, alleging it had breached three oral contracts during their settlement negotiations. Following its answer, Hawkeye filed a combined no evidence and traditional motion for summary judgment, alleging that Haygood did not have standing to bring his suit against it. The trial court granted the motion. Haygood timely filed this appeal.
STANDING
In his sole issue, Haygood contends the trial court erred in granting Hawkeye's motion for summary judgment. Asserting that Hawkeye and the trial court "completely misunderstood" the nature of the claims contained in his petition, Haygood argues that he and Hawkeye had reached a binding oral settlement agreement, which Hawkeye breached. Therefore, he argues, the summary judgment is erroneous because Hawkeye "failed to disprove the existence of facts that establish a binding oral settlement agreement" and "failed to disprove the application of law of the recognition by Texas of the binding effect of oral contracts." He contends that Hawkeye "devoted its summary judgment motion to a legal theory not in play - the need or existence of a written insurance agreement between Hawkeye and Haygood - a position that Haygood never asserted." Finally, he argues that he has standing to sue because he is a party to the oral contracts between Hawkeye and himself. Standard of Review
We review de novo the trial court's ruling on a summary judgment motion. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When a party moves for both traditional and no evidence summary judgments, and our determination of the no evidence summary judgment could make the grounds asserted in the traditional motion moot, we first review the trial court's ruling under the no evidence standard of review. Ford Motor Co. v. Ridgeway, 135 S.W.3d 598, 600 (Tex. 2004). If an appellant failed to produce more than a scintilla of evidence under the no evidence standard, then there is no need to analyze whether an appellee's summary judgment proof satisfied the burden related to traditional summary judgment motions. All Am. Tel., Inc. v. USLD Commc'ns, Inc., 291 S.W.3d 518, 526 (Tex. App.-Fort Worth 2009, pet. denied).
After an adequate time for discovery, a party may move for no evidence summary judgment on the ground that no evidence exists of one or more essential elements of a claim on which the adverse party bears the burden of proof. Martinez v. Hayes Constr., Inc., 355 S.W.3d 170, 177 (Tex. App.-Houston [1st Dist.] 2011, no pet.). The burden then shifts to the nonmovant to produce evidence raising a genuine issue of material fact on the elements specified in the motion. Id. A trial court must grant a no evidence motion for summary judgment unless the nonmovant produces more than a scintilla of probative evidence to raise a genuine issue of material fact. TEX. R. CIV. P. 166(a)(i); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502,
506 (Tex. 2002).
Whether a reviewing court begins by considering all the evidence or only the evidence supporting the verdict, legal sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Martinez, 355 S.W.3d at 178. Applicable Law
A liability policy obligates an insurer to indemnify the insured against a covered loss arising from the insured's own legal liability. Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765, 775 (Tex. 2007). A party injured by the insured is a third party beneficiary of a liability insurance policy. State Farm Cnty. Mut. Ins. Co. v. Ollis, 768 S.W.2d 722, 723 (Tex. 1989). In Texas, however, the general rule is that the third party cannot enforce the policy directly against the insurer until the insured's obligation to pay has been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant, and the company. Angus Chem. Co. v. IMC Fertilizer, Inc., 939 S.W.2d 138, 138 (Tex. 1997); Great Am Ins. Co. v. Murray, 437 S.W.2d 264, 265 (Tex. 1969) (orig. proceeding); see also Owens v. Allstate Ins. Co., 966 S.W.2d 207, 208 (Tex. App.-Dallas 1998, pet. denied) (injured third party cannot sue tortfeasor's liability insurance company directly until tortfeasor's liability has been finally determined by agreement or judgment). Likewise, the insurer's duty to indemnify its insured does not arise until the third party has secured such an agreement or a judgment against the insured. Ohio Cas. Ins. Co. v. Time Warner Entm't Co., L.P., 244 S.W.3d 885, 890 (Tex. App.-Dallas 2008, pet. denied). The public policy basis for this rule is the prevention of the conflict of interest that could arise if a third party claimant were permitted to sue an insurer before obtaining judgment against the insured.Id. at 888-89. We construe this rule as a rule of standing. Id. at 889. Application of Law to Facts
There is no evidence in the record to show that Anderson had either entered into a written agreement with Haygood and Hawkeye as to her liability or that Haygood had a judgment against her. Without either, Haygood does not have standing to pursue an action under Anderson's policy against Hawkeye. Haygood implicitly acknowledges this is the law. However, he contends that he has an oral contract with Hawkeye to pay him for the total loss of his minivan and that is what his cause of action is based upon.
Haygood has failed to understand that having either an agreement with Anderson, Hawkeye, and himself, or a judgment against Anderson, is a condition precedent to his being able to maintain suit against Hawkeye. A condition precedent may be either a condition to the formation of a contract or to an obligation to perform an existing agreement. Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976). Conditions may, therefore, relate either to the formation of contracts or to liability under them. Id. The evidence shows that Hawkeye's duty to indemnify Anderson has not been established either by an agreement or a judgment. Haygood could not have an oral contract with Hawkeye for payment for the total loss of the minivan until he met one of the two conditions. Murray, 437 S.W.2d at 265. There is no evidence in the summary judgment record of either. Therefore, Haygood cannot enforce the policy directly against Hawkeye. See id. Accordingly, the trial court properly granted a no evidence summary judgment motion against Haygood. Rodriquez, 92 S.W.3d at 506. We need not reach the court's ruling on the traditional motion for summary judgment. All Am. Tel., Inc., 291 S.W.3d at 526. Haygood's sole issue is overruled.
DISPOSITION
Having overruled Haygood's sole issue, we affirm the judgment of the trial court.
JAMES T. WORTHEN
Chief Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.