Virginia Villarreal v. Texas Farmers Insurance Company d/b/a Farmers Insurance Group--Appeal from County Court at Law No 7 of Bexar County

MEMORANDUM OPINION

No. 04-04-00446-CV

Virginia VILLARREAL,

Appellant

v.

TEXAS FARMERS INSURANCE COMPANY D/B/A Farmers Insurance Group,

Appellee

From the County Court at Law No. 7, Bexar County, Texas

Trial Court No. 287039

Honorable Karen Crouch, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: September 7, 2005

AFFIRMED

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. // E.g., 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.

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.

Sarah B. Duncan, Justice