Opinion
No. 04-04-00446-CV
Delivered and Filed: September 7, 2005.
Appeal from the County Court at Law No. 7, Bexar County, Texas, Trial Court No. 287039, Honorable Karen Crouch, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Virginia Villarreal appeals the summary judgment in her suit against Farmers Insurance Group. We affirm the trial court's judgment.
After Villarreal was injured in an automobile accident, she obtained a default judgment against the driver of the other car, Joe Jason Carreon, Jr., and its owner, Paul Arocha. After the trial court's plenary power over the default judgment expired, Villarreal served notice of the judgment on Carreon's and/or Arocha's insurer, Farmers, and filed this action alleging she was a third-party beneficiary of, and entitled to recover under, the insurance contract pursuant to Allstate Ins. Co. v. Watson, 876 S.W.2d 145, 150 (Tex. 1994). Farmers moved for summary judgment on the ground that Carreon and Arocha breached the notice of suit provision by failing to give Farmers notice that a suit had been filed against them, they had been served with citation, or a default judgment had been rendered against them; therefore, Farmers argued, there was no coverage for the accident. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 171-72 (Tex. 1995) ("hold[ing] that the insurer is not bound by the judgment against the insured because the insured failed to comply with the notice of suit provision of the insurance policy"). The trial court granted Farmers's motion; and this appeal ensued.
Part E of the policy, "Duties After An Accident or Loss" and Endorsement 593D to the policy, both provides:
We must be notified promptly of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses. If we show that your failure to provide notice prejudices our defense, there is no liability under the policy.
. . . .
A person seeking any coverage must: . . . [p]romptly send us copies of any notices or legal papers received in connection with the accident or loss.
1. Villarreal first argues the trial court erred in granting a summary judgment against her because the "no coverage" provision is void as against public policy. However, this provision has been upheld under established Texas law for too long for this Court to now hold it is void as against public policy. See, e.g., Harwell, 896 S.W.2d at 173-74; Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95, 96-97 (Tex. 1955). If such a drastic step is to be taken, it must be taken by the supreme court.
2. Villarreal next argues the trial court erred in granting a summary judgment against her because Susan Neely's affidavit is "insufficient in that she states that she had no knowledge of the legal papers in the underlying lawsuit" and "purports to attribute her perception (or lack thereof) to the whole company." We again disagree. As the claims adjuster assigned to Villarreal's claims, Neely testified that she is over twenty-one years of age; she has personal knowledge of the facts stated in her affidavit; and neither she nor Farmers received notice from its insured that a suit had been filed, citation had been served, or a default judgment had been rendered. Because Neely's testimony is "clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted," it is competent to prove the facts stated. Tex. R. Civ. P. 166a(c).
3. Finally, Villarreal argues the trial court erred in granting a summary judgment against her because Farmers waived the "no coverage" provision. However, Villarreal failed to raise waiver as an issue in her response to Farmers's motion and therefore failed to preserve this issue for review. See Tex. R. Civ. P. 166a(c) ("Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal."). Villarreal argues she preserved the waiver issue in her motion for a new trial; but this attempt at preservation came too late. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979) ("Thus, both the reasons for the summary judgment and the objections to it must be in writing and before the trial judge at the hearing. ") (emphasis added).
The trial court's judgment is affirmed.