TORT PLAINTIFF’S JUDGMENT AGAINST DEFENDANT’S INSURER DISMISSED BY COURT OF APPEALS AS NOT YET RIPE FOR ADJUDICATION

The Fourteenth Court of Appeals in Houston last Tuesday reversed a trial court’s judgment against a liability carrier on ripeness grounds, concluding that absent a judgment against or settlement with the insured, the Plaintiff had no claim against the insurer.  In United Fire Lloyds v. Tippin, No. 14-12-00313- CV, 2013 WL 936303 (Tex. App.—Houston [14th Dist.] March 12, 2013), the plaintiff not only sued the Golden Corral restaurant where her daughter was allegedly injured, but eventually joined United Fire, the restaurant’s insurer, into the lawsuit.

United Fire answered and asserted a number of defenses, moved to sever the contract claim against it from the  negligence  claim  against  Golden  Corral,  and  moved  to  dismiss  for  lack  of  subject  matter jurisdiction.  The trial court denied both motions.  United Fire later filed another motion to dismiss and a motion for summary judgment contending that United Fire had been improperly joined.  These motions were also denied.  The parties then filed cross-motions for summary judgment.  The plaintiff contended that the numerous notices to Golden Corral and the filing of the lawsuit constituted notice to United Fire under the requirement under the medical payments portion of the United Fire policy that the claimant report the claim within a year of the accident.  The trial court agreed, granted summary judgment in favor of the plaintiff, and awarded damages and attorneys’ fees.

The appellate court panel unanimously concluded that the trial court lacked jurisdiction over the plaintiff’s claim against United Fire, and therefore that the judgment must be vacated and the case be dismissed.  In Texas, the court wrote, an injured party cannot sue the allegedly negligent party’s insurance carrier “until … liability has been finally determined by agreement or judgment.”  In this case, there was no judgment against Golden Corral, and the plaintiff admitted that there might never be a judgment.  Thus, the claim against United Fire was not ripe, and must be dismissed.  In a footnote, the Court also rejected the plaintiff’s argument that it could sue United Fire directly for failure to pay under the “medical payments” provision based on the express language of the policy stating that United Fire could not in any situation be brought into a suit for damages against an insured.