Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-19-00119-CV
INFINITY COUNTY MUTUAL INSURANCE COMPANY,
Appellant
v.
Michael TATSCH,
Appellee
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 12977
Honorable N. Keith Williams, Judge Presiding
DISSENT TO OPINION ON EN BANC RECONSIDERATION
Opinion by: Luz Elena D. Chapa, Justice
Dissenting Opinion by: Patricia O. Alvarez, Justice (joined by Sandee Bryan Marion, Chief
Justice and Rebeca C. Martinez, Justice)
Sitting en banc: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: December 23, 2020
I agree with the majority that this case turns on a policy construction question, but because
the majority misconstrues the policy and fails to render the proper judgment, I respectfully dissent.
Dissenting Opinion 04-19-00119-CV
POLICY’S PLAIN LANGUAGE
Under “PART E—COVERAGE FOR DAMAGE TO YOUR INSURED AUTO,” the
“INSURING AGREEMENT” provision states as follows:
If you pay a specific premium for this coverage, we will pay for loss to your
insured auto, including its factory-installed, permanently attached equipment
which is considered standard for your insured auto, caused by:
1. Collision;
2. Comprehensive; or
3. Fire and Theft with Combined Additional Coverage . . . .
In Part E, loss is defined as “direct and accidental . . . damage to your insured auto.” The
definition reiterates that “insured auto” includes all the “equipment which is permanently installed
at the factory by the original make and model manufacturer and considered standard equipment
for such vehicle” but does not include, e.g., “[e]quipment or alterations installed by a conversion
facility to an auto or camper.” Thus, the policy covers “damage to your insured auto” but
excludes loss “[r]esulting from or caused by . . . [m]echanical . . . breakdown or failure.”
MAJORITY’S INCORRECT SUBSTITUTION
In contravention of the policy’s plain language that “‘Loss’ means direct and accidental
loss of or damage to your insured auto,” the majority improperly inserts one of the insured auto’s
covered components, the engine, in place of the policy’s chosen term, the insured auto.
Based on that erroneous substitution, the majority concludes the policy “does not cover
engine damage resulting from or caused by a machine not working properly.” (Emphasis added).
This is the majority’s crucial construction error, and its analysis continues to an incorrect
conclusion—that remand is appropriate. To justify its conclusion, the majority states “Infinity
produced no expert testimony explaining how the breakdown of the truck or the fuel system
damaged the engine.” But that is the wrong question.
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Dissenting Opinion 04-19-00119-CV
The right question, based on the proper reading of the policy’s plain language, is whether
the damage to the insured auto was caused by mechanical breakdown or failure, and the majority’s
own statement answers the question: “The undisputed evidence establishes the existence of
mechanical failure because the engine and fuel system stopped working properly.” That is
precisely Infinity’s argument: the loss—the damage to the insured auto—is excluded because it
resulted from or was caused by the mechanical failure of the engine and fuel system. Infinity
moved for summary judgment on that basis, and the trial court should have rendered judgment for
Infinity.
CONCLUSION
The policy’s plain language excludes coverage for damage to the insured auto “[r]esulting
from or caused by . . . mechanical . . . breakdown or failure.” And as the majority correctly states,
“[t]he undisputed evidence establishes the existence of mechanical failure.” Therefore, I would
reverse the trial court’s judgment and render judgment for Infinity. Because the majority decides
otherwise, I respectfully dissent.
Patricia O. Alvarez, Justice
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