Elaine Maspero v. Safeco Lloyds Insurance Company--Appeal from 369th District Court of Anderson County

NO. 12-05-00421-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ELAINE MASPERO, APPEAL FROM THE 369TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

SAFECO LLOYDS INSURANCE COMPANY,

APPELLEE ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Elaine Maspero appeals the trial court s final judgment in a lawsuit she brought against Safeco Lloyds Insurance Company for underinsured motorist benefits. In one issue, Maspero argues that the trial court erred by granting Safeco an offset. We affirm.

Background

On November 8, 1999, Maspero was involved in an automobile wreck caused by the negligent conduct of another driver. At the time of the wreck, Maspero was covered by an underinsured motorist policy issued by Safeco. After reaching a settlement with the other driver,1 Maspero sued Safeco Lloyds Insurance Company for underinsured motorist benefits related to the wreck.

The jury found that Maspero s total damages resulting from the wreck were in the amount of $17,128.00. Because this amount was less than the amount Maspero received in settlement from the other driver, Safeco moved for the trial court to enter a take nothing judgment. Maspero objected and sought a judgment awarding her the full amount found by the jury, alleging that Safeco had failed to plead and prove it was entitled to an offset. The trial court entered a take nothing judgment. Maspero filed a motion for new trial, which was denied. This appeal followed.

Review of Final Judgments

In her sole issue, Maspero contends that Safeco was not entitled to an offset because Safeco allegedly failed to properly plead and prove it was entitled to one. Maspero cites Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 936 (Tex. 1980), for the proposition that the right to offset is an affirmative defense, which must be pleaded and proved by the party asserting the defense. Safeco asserts in reply that Maspero failed to present evidence that the tortfeasor who caused the wreck was actually underinsured, a required element of an underinsured motorist claim. Therefore, Safeco argues, Maspero was not entitled to any damages under the law, and Safeco did not need to plead and prove offset.

According to Maspero, the trial court s judgment is predicated on an incorrect conclusion of law that Safeco was entitled to an offset. We review a trial court s conclusions of law de novo. Smith v. Smith, 22 S.W.3d 140, 149 (Tex. App. Houston [14th Dist.] 2000, no pet.). When performing a de novo review, we exercise our own judgment and redetermine each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). We will uphold conclusions of law on appeal if the judgment can be sustained on any legal theory the evidence supports. Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex. App. Houston [14th Dist.] 1996, no writ).

It is a plaintiff s burden in an underinsured motorist claim to prove (1) that an insurance contract existed under which she had underinsured motorist coverage, (2) that her damages are covered damages, (3) that these damages were proximately caused by the negligent act or omission of another driver, (4) that the negligent driver was underinsured, and (5) that all other applicable policy provisions have been satisfied. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex. 2001). Therefore, it was Maspero s burden to put on evidence to support each of these elements at trial. See id.

At trial, Safeco stipulated that an underinsured motorist policy was in force at the time of the wreck and that the negligent acts of the other driver proximately caused the wreck. Maspero put on evidence regarding her damages, including evidence linking these damages to the wreck. Maspero did not, however, put on any evidence to prove that the other driver was underinsured or that all other applicable policy provisions had been satisfied.

Maspero was not entitled to a judgement against Safeco because Maspero did not supply any evidence addressing two essential elements of her case. See id. As such, the trial court s judgment is supported by a correct legal theory. See id. We overrule Maspero s sole issue.

Disposition

We affirm the trial court s judgment.

BRIAN HOYLE

Justice

Opinion delivered March 30, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 Maspero settled her tort claim against the other driver for $20,000.00.