Opinion filed September 30, 2020
In The
Eleventh Court of Appeals
__________
No. 11-18-00259-CV
__________
JOE TORRES, Appellant
V.
STATE FARM COUNTY MUTUAL INSURANCE
COMPANY OF TEXAS, Appellee
On Appeal from the 118th District Court
Howard County, Texas
Trial Court Cause No. 51508
MEMORANDUM OPINION
This is an appeal in a Stowers action brought against State Farm County
Mutual Insurance Company of Texas. See G.A. Stowers Furniture Co. v. Am. Indem.
Co., 15 S.W.2d 544, 547–48 (Tex. Comm’n App. 1929, holding approved). In the
first part of a bifurcated proceeding, the trial court submitted a single issue to the
jury asking it to determine if State Farm’s insured, Edward Aguilar,1 intentionally
1
We will refer to State Farm’s insured, Edward Aguilar, as “Aguilar” and to his wife, Patricia
Aguilar, as “Patricia.”
caused injury to the claimant, Joe Torres. The jury answered this question in the
affirmative. The trial court entered a “take nothing” judgment against Torres based
upon the jury’s affirmative finding. Torres challenges the trial court’s judgment in
two issues on appeal. We affirm.
Background Facts
The incident giving rise to this case occurred between 4:00 a.m. and 5:00 a.m.
on the morning of July 8, 2012. Following a family birthday party, the family carried
the party over to a family member’s house and continued to celebrate into the wee
hours of the morning. At this point, most of the attendees, including Aguilar, were
intoxicated. Around 3:00 a.m., Aguilar and his wife, Patricia, decided to leave the
party.
On the way to their vehicle, the couple got into a disagreement over who
should drive. This resulted in a physical altercation between the couple. Aguilar
slapped Patricia across the face, and Patricia “went back at him.” Torres and Jose
Pesina heard the argument and intervened, tackling Aguilar to the ground and
holding him there. While Torres and Pesina were holding Aguilar on the ground,
Patricia continued hitting and kicking Aguilar until she was pulled away from him.
After about ten minutes, Torres and Pesina released Aguilar. Aguilar then
walked to the vehicle and drove off. But instead of leaving, Aguilar turned the
vehicle around and drove back toward the house, running up over the curb and
straight at Patricia. Aguilar struck Patricia, Torres, and David Garza with the
vehicle. Aguilar then left the scene.
Soon after the incident, Torres made a claim with State Farm for his injuries.
Aguilar’s State Farm Auto Policy provides up to $30,000 for “bodily injury or
property damage for which any covered person becomes legally responsible because
of an auto accident.” However, under the policy’s exclusions, State Farm does “not
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provide Liability Coverage for any person . . . [w]ho intentionally causes bodily
injury or property damage.”
Approximately four months after submitting his claim to State Farm, Torres
made a written demand on State Farm, stating that, if State Farm did not pay the
Auto Policy limits, Torres would seek an excess judgment against Aguilar and
accept an assignment of Aguilar’s rights against State Farm.
In July 2013, Torres and Patricia filed suit against Aguilar for their injuries
from the accident. They alleged that their injuries from the accident were caused by
Aguilar’s negligence. Torres and Patricia were represented by the same attorneys in
the negligence lawsuit.
During the pendency of the negligence action, State Farm filed a declaratory
judgment action against Aguilar. State Farm alleged that it had neither a duty to
defend Aguilar nor a duty to indemnify him for any claims asserted by Torres and
Patricia. State Farm relied on the following exclusion in its automobile policy
insuring Aguilar: “We do not provide Liability Coverage for any person . . . [w]ho
intentionally causes bodily injury or property damage.”
State Farm and Aguilar2 resolved the declaratory judgment action without a
trial on the merits. Instead, they entered into an agreed judgment that provided as
follows:
JUDGMENT
ON THIS, the 21 day of October, 2014, came on to be heard the
above entitled and numbered cause, and Plaintiff, State Farm Mutual
Automobile Insurance Company of Texas, by and through its attorney
of record, and Defendant, Edward Aguilar, appeared by and through his
attorney of record; and the parties announced to the Court that all
matters and things in controversy between such parties have been
compromised and settled insofar as the case styled Cause No. 49216;
2
Aguilar was represented in the declaratory judgment action by an attorney that also represented
Torres at trial in this Stowers action.
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Joe Prado Torres and Patricia M. Aguilar v. Edward Aguilar; In the
118th District Court in and for Howard County, Texas.
IT IS ORDERED, ADJUDGED AND DECREED by the Court
that there is no coverage for the claims of Patricia Aguilar against
Edward Aguilar in Cause No. 492163;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
by the Court that State Farm Mutual Automobile Insurance Company
will provide coverage for the claims made by Joe Torres in Cause No.
49216 in accordance with the coverages and monetary limits provided;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
by the Court that State Farm Mutual Automobile Insurance Company
owes no duty to defend or indemnify Edward Aguilar in Cause No.
49216 from injuries claimed or sustained on July 7 and 8, 2012, by
Patricia Aguilar, and that there is no coverage for Edward Aguilar under
the then existing State Farm policy for Patricia Aguilar’s claims.
The agreed judgment was signed by the trial court. Aguilar’s attorney signed the
judgment under a heading entitled “APPROVED AS TO FORM AND
CONTENT.” State Farm’s attorney signed the judgment under a heading entitled
“APPROVED AS TO FORM ONLY.”
Patricia subsequently nonsuited her claims against Aguilar in the negligence
lawsuit. Torres’s claims against Aguilar in the negligence lawsuit proceeded to trial.
Aguilar was defended in the negligence lawsuit with counsel provided by State
Farm. The jury returned a verdict against Aguilar in favor of Torres for over $1.7
million. State Farm subsequently tendered a $30,000 payment to Torres based on
Aguilar’s automobile policy with State Farm. However, Torres rejected the $30,000
payment.
Aguilar assigned all of his causes of action against State Farm to Torres.
Torres then filed the underlying Stowers action against State Farm. Torres also
3
Cause No. 49216 is the negligence lawsuit described above.
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asserted claims for bad faith, violations of the Texas Insurance Code, negligence,
and gross negligence.
State Farm interpleaded the $30,000 Auto Policy limit into the registry of the
court. State Farm also filed a motion for summary judgment, arguing that the agreed
judgment in the declaratory action precluded Torres’s Stowers claim. State Farm
also sought dismissal of Torres’s other claims. The trial court denied State Farm’s
motion for summary judgment on Torres’s Stowers claim, finding that the issue of
coverage was for the jury to decide. However, the trial court granted State Farm’s
motion for summary judgment on Torres’s other claims.
The trial court bifurcated the Stowers trial, finding that the first phase of trial
should solely determine the question of coverage for Aguilar’s conduct under the
“intentional injury” exclusion of the State Farm policy. Therefore, the trial court
only submitted one question to the jury: “Do you find from a preponderance of the
evidence that Edward Aguilar intentionally caused injury to Joe Torres?” Based
upon the jury’s affirmative finding, the trial court entered a take-nothing judgment
on Torres’s Stowers claim. Torres subsequently filed a motion to disregard the jury’s
verdict and a motion for a new trial. The trial court denied both motions. Torres
then filed this appeal.
Analysis
A Stowers cause of action arises when an insurer negligently fails to settle a
claim covered by an applicable policy within policy limits. Seger v. Yorkshire Ins.
Co., 503 S.W.3d 388, 395 (Tex. 2016); see G.A. Stowers Furniture, 15 S.W.2d at
547.
To prove a Stowers claim, the insured must establish that (1) the claim
is within the scope of coverage; (2) a demand was made that was within
policy limits; and (3) the demand was such that an ordinary, prudent
insurer would have accepted it, considering the likelihood and degree
of the insured’s potential exposure to an excess judgment.
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Seger, 503 S.W.3d at 395–96 (citing Am. Physicians Ins. Exch. v. Garcia, 876
S.W.2d 842, 849 (Tex. 1994)). This appeal concerns the first element—was Torres’s
claim within the scope of coverage of State Farm’s policy? “[A]n insurer has no
duty to settle a claim that is not covered under its policy.” Garcia, 876 S.W.2d at
848.
In his first issue, Torres asserts that the trial court erred by denying his request
to disregard the jury’s verdict. Torres contends that collateral estoppel bars
relitigating the issue of coverage because the agreed judgment in the declaratory
judgment action conclusively established coverage for Aguilar for the claims made
by Torres. We disagree.
We review a trial court’s denial of a motion to disregard jury findings as a
legal sufficiency challenge. Davis v. Nat’l Lloyds Ins., 484 S.W.3d 459, 467 (Tex.
App.—Houston [1st Dist.] 2015, pet. denied); see City of Keller v. Wilson, 168
S.W.3d 802, 823 (Tex. 2005). The “trial court may disregard a jury finding only if
it is unsupported by evidence . . . or if the issue is immaterial.” Spencer v. Eagle
Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994). Torres asserts that the issue
submitted to the jury was immaterial because it was resolved against State Farm in
the declaratory judgment action. “A question is immaterial when it should not have
been submitted, or when it was properly submitted but has been rendered immaterial
by other findings.” Id.
Collateral estoppel, or issue preclusion, bars the relitigation of an issue of fact
or law that was actually litigated, was determined by a valid and final judgment, and
was essential to the judgment. Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575,
579 (Tex. 2001); Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex.
1990). Collateral estoppel applies when the parties in the prior action were
adversaries and the party against whom collateral estoppel is asserted had a full and
fair opportunity to litigate the issue in the prior suit. Petta, 44 S.W.3d at 579; Eagle
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Props., 807 S.W.2d at 721. Because collateral estoppel is an affirmative defense,
Torres had the burden of proving its applicability. See Bridgestone Lakes Cmty.
Improvement Ass’n v. Bridgestone Lakes Dev. Co., 489 S.W.3d 118, 127 (Tex.
App.—Houston [14th Dist.] 2016, pet. denied).
Collateral estoppel may apply to an agreed judgment because “an agreed
judgment is accorded the same degree of finality and binding force as a final
judgment rendered at the conclusion of an adversary proceeding.” McCray v.
McCray, 584 S.W.2d 279, 281 (Tex. 1979). However, because collateral estoppel
is only available in a subsequent action where there has been full and fair litigation
in the previous suit of the same factual issues, a final judgment agreed to by the
parties serves as an estoppel only as to those facts actually and necessarily decided.
Torchia v. Aetna Cas. & Sur. Co., 804 S.W.2d 219, 223 (Tex. App.—El Paso 1991,
writ denied).
Torres’s claim of collateral estoppel requires an analysis of the agreed
judgment from the declaratory judgment action. “An agreed judgment should be
construed in the same manner as a contract.” Gulf Ins. Co. v. Burns Motors, Inc., 22
S.W.3d 417, 422 (Tex. 2000). The interpretation of an unambiguous consent
judgment, like the interpretation of an unambiguous contract, is a matter of law for
the court. See Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996).
Our primary concern is to ascertain the true intentions of the parties as expressed in
the instrument. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). We examine
and consider the entire writing in an effort to harmonize and give effect to all of the
provisions of the contract so that none will be rendered meaningless. Id.
The relevant portion of the agreed judgment between State Farm and Aguilar
states that “State Farm Mutual Automobile Insurance Company will provide
coverage for the claims made by Joe Torres [in the negligence lawsuit] in accordance
with the coverages and monetary limits provided.” Torres asserts that this language
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bars the trial court from relitigating the issue of coverage because the phrase “will
provide coverage” conclusively establishes that State Farm agreed to cover Torres
under Aguilar’s Auto Policy.
A Texas liability insurance policy imposes two distinct duties: the duty to
defend and the duty to indemnify. Farmers Tex. Cty. Mut. Ins. Co. v. Griffin, 955
S.W.2d 81, 82 (Tex. 1997); Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819,
821–22 (Tex. 1997). An insurer’s duty to defend its insured is distinct and separate
from its duty to indemnify. Griffin, 955 S.W.2d at 82 (citing Cowan, 945 S.W.2d at
821–22)). Generally, the duty to defend is determined by comparing the facts
alleged in the underlying lawsuit with the policy terms without regard to the truth or
falsity of the allegations. GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church,
197 S.W.3d 305, 308 (Tex. 2006) (“Under the eight-corners or complaint-allegation
rule, an insurer’s duty to defend is determined by the third-party plaintiff’s
pleadings, considered in light of the policy provisions, without regard to the truth or
falsity of those allegations.” (citing Argonaut Sw. Ins. Co. v. Maupin, 500 S.W.2d
633, 635 (Tex. 1973))). Conversely, the duty to indemnify is controlled by the “facts
actually established in the underlying suit.” Pine Oak Builders, Inc. v. Great Am.
Lloyds Ins. Co., 279 S.W.3d 650, 656 (Tex. 2009) (quoting GuideOne, 197 S.W.3d
at 310); accord Cowan, 945 S.W.2d at 821; see D.R. Horton-Tex., Ltd. v. Markel
Int’l Ins. Co., 300 S.W.3d 740, 744 (Tex. 2009) (“The insurer’s duty to indemnify
depends on the facts proven and whether the damages caused by the actions or
omissions proven are covered by the terms of the policy.”). Thus, an insurer may
have a duty to defend but no duty to indemnify. Griffin, 955 S.W.2d at 82.
Torres relies on the agreed judgment’s use of the word “coverage” to support
his claim of collateral estoppel. “Coverage” can mean one of three things: the duty
to defend, the duty to indemnify, or both. Warrantech Corp. v. Steadfast Ins. Co.,
210 S.W.3d 760, 768 (Tex. App.—Fort Worth 2006, pet. denied). Here, the agreed
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judgment states that State Farm will provide coverage for Torres, but that statement
is limited by the words “in accordance with the coverages and monetary limits
provided.” By its reference to the monetary limits, the provision does not bind State
Farm to pay any sums in excess of the policy limit of $30,000, which would be the
case if Torres’s claim of collateral estoppel were correct. Furthermore, the provision
limits State Farm’s obligations by the “coverages . . . provided,” which indicates that
the question of State Farm’s duty to indemnify Aguilar remained to be decided.
The provisions of the agreed judgment pertaining to Patricia’s claims support
our interpretation of the agreed judgment. The agreed judgment provides that State
Farm has no duty to defend or indemnify Aguilar for Patricia’s claims, thereby
conclusively addressing State Farm’s liability for her claims. Conversely, the
provision addressing Torres’s claims indicates that State Farm’s liability for his
claims will be in accordance with the State Farm policy.
There is no dispute that State Farm’s policy contained an exclusion from
coverage if Aguilar acted intentionally. The question of whether Aguilar acted
intentionally was not decided by the agreed judgment in the declaratory judgment
action. Thus, the agreed judgment did not serve as an estoppel to a later
determination of coverage based upon the intentional injury exclusion. Accordingly,
the trial court did not err by overruling Torres’s motion to disregard the jury’s
finding that Aguilar intentionally injured Torres. We overrule Torres’s first issue.
In his second issue, Torres contends that the trial court committed reversible
error by submitting a defective instruction as to what constitutes an intentional
injury. He asserts on appeal that the instruction was defective under Tanner v.
Nationwide Mutual Fire Insurance Co. because it permitted the jury to find
intentional injury based on voluntary and intentional acts rather than on a deliberate,
intentional injury. See 289 S.W.3d 828, 831 (Tex. 2009). However, Torres did not
preserve this complaint for appellate review.
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The Texas Rules of Procedure establish the preservation requirements to raise
a jury-charge complaint on appeal. Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex.
2014). The complaining party must object before the trial court and “must point out
distinctly the objectionable matter and the grounds of the objection.” Id. (quoting
TEX. R. CIV. P. 274); see TEX. R. APP. P. 33.1(a). Under Rule 274 of the Texas Rules
of Civil Procedure, “[a]ny complaint as to a question, definition, or instruction, on
account of any defect, omission, or fault in pleading, is waived unless specifically
included in the objections.” TEX. R. CIV. P. 274. “As a general rule, preservation
requires (1) a timely objection ‘stating the grounds for the ruling that the
complaining party sought from the trial court with sufficient specificity to make the
trial court aware of the complaint, unless the specific grounds were apparent from
the context,’ and (2) a ruling.” Burbage, 447 S.W.3d at 256 (quoting TEX. R.
APP. P. 33.1). Ultimately, the test asks “whether the party made the trial court aware
of the complaint, timely and plainly, and obtained a ruling.” Id. (quoting State Dep’t
of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992).
The question submitted by the trial court provided as follows:
JURY QUESTION NO. 1:
Do you find from a preponderance of the evidence that Edward
Aguilar intentionally caused injury to Joe Torres?
You are instructed that a person intentionally causes injury to
another if the acts of that person were voluntary and intentional, and the
injury was the natural result of the act.
You are instructed that intoxication neither excuses nor creates
intent to cause injury. A person’s acts are not rendered involuntary or
unintentional because of intoxication.
When making a determination of whether Edward Aguilar acted
intentionally, it is only necessary that Edward Aguilar intended to injure
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some person by his act. It is not essential that the injury be to the one
intended.
Answer “Yes” or “No”:
Answer: _________________
Torres asserts on appeal that the second paragraph is erroneous under Tanner. At
the charge conference, Torres objected as follows:
We have one objection, Your Honor, to the . . . second paragraph
of the Jury Question No. 1. And that is where the Court defines
“intentionally causes injury.”
Our objection is based on the Tanner versus Nationwide opinion
and several other Texas Supreme Court cases that have held that a term
is given its plain and ordinary meaning unless it is specifically defined
otherwise in the policy.
The term “intentional” or “intentionally” is not a defined term in
the State Farm policy that’s the basis of this lawsuit. And so, therefore,
we object to any additional definition that the Court is providing for the
term “intentional” or “intentionally.”
The trial court overruled that objection.
While Torres cited Tanner in making his objection to the charge, he did not
object on the basis that the instruction in the second paragraph was erroneous under
Tanner. Instead, his objection was that the term “intentionally” should not be
defined in any manner. Torres did not preserve the complaint that he asserts on
appeal because he did not point out the alleged error in the instruction so that the
trial court had an opportunity to review the contention he now presents.
Moreover, we conclude that the trial court’s instruction was not erroneous
when viewed in its entirety. “We review a trial court’s decision to submit or refuse
a particular instruction under an abuse of discretion standard of review.” Thota v.
Young, 366 S.W.3d 678, 687 (Tex. 2012) (quoting In re V.L.K., 24 S.W.3d 338, 341
(Tex. 2000)). The test for abuse of discretion is whether the trial court acted in an
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arbitrary and unreasonable manner or whether it acted without reference to any
guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241–42 (Tex. 1985).
The first paragraph of the instruction presented the “call” of the issue: Did
Aguilar “intentionally cause[] injury” to Torres? There is no question that this part
of the instruction complied with Tanner’s mandate that the focus is on the resulting
injury, not to actions that led to it. Tanner, 289 S.W.3d at 831 (the exclusion
precludes coverage “when the resulting injury was intentional, not merely when the
insured’s conduct was intentional”). The remaining paragraphs addressed the fact
that Aguilar’s intoxication did not preclude a finding that he deliberately injured
Torres4 or that his intent to cause injury to Patricia would be sufficient for the
intentional injury exclusion to apply. We overrule Torres’s second issue.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
September 30, 2020
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.5
Willson, J., not participating.
See Bishop v. USAA Tex. Lloyd’s Co., No. 09-14-00445-CV, 2016 WL 423564, at *2 (Tex. App.—
4
Beaumont Feb. 4, 2016, no pet.) (mem. op.) (The intent to commit an assault is not negated by any voluntary
consumption of alcohol.).
5
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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