Debora Hughey and Larry Hughey v. Liberty County Mutual Insurance Company

NUMBER 13-24-00204-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

DEBORA HUGHEY AND
LARRY HUGHEY, Appellants,

v.

LIBERTY COUNTY MUTUAL
INSURANCE COMPANY, Appellee.

ON APPEAL FROM THE 211TH DISTRICT COURT
OF DENTON COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices Cron and Fonseca
Memorandum Opinion by Justice Fonseca

Appellants Debora Hughey and Larry Hughey appeal the trial court’s grant of

summary judgment in favor of appellee Liberty County Mutual Insurance Company

(“Liberty”) in a personal injury action. Appellants complain that the trial court erred in

granting summary judgment and in sustaining Liberty’s objections to some of appellants’
summary judgment evidence. We conclude that the trial court’s exclusion of evidence

was not an abuse of discretion and that Liberty proved as a matter of law that appellants

were not entitled to underinsured/uninsured motorist (UIM) benefits, and, accordingly, we

affirm.1

I. BACKGROUND

During the early morning hours of January 23, 2022, between approximately 1:00

a.m. and 3:00 a.m., John Huckobey drove his vehicle while intoxicated and attempted to

enter The Gates of Prestonwood gated community in Carrollton. He allegedly rammed

his vehicle into the community’s gate several times, eventually damaging the gate,

pushing it open, dislodging it from its track, and leaving it resting against a nearby fixed

metal structure angled away from the roadway. Several hours later, Debora Hughey, the

community HOA president, approached the gate after another resident told her about its

condition. She observed it leaning immobile against the metal structure and did not hear

any mechanical noises indicating the gate was attempting to shift. The police arrived at

approximately 8:50 a.m., meeting with Debora at the site to inspect the gate.

About an hour later, Thomas Nelson, a HOA board member and self-proclaimed

“gate guy,” went to inspect the gate. Debora arrived and both observed the gate’s motor

start to run again. Due to this, Nelson went to the gate’s operator box, cut power to the

gate, and released the manual foot clutch while Debora stood close enough to the gate

that it could fall on her. Video of the incident indicates the motor was not running and that

1 This appeal was transferred from the Second Court of Appeals in Fort Worth pursuant to a docket-

equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. We are
required to follow the precedent of the transferor court to the extent it differs from our own. See TEX. R. APP.
P. 41.3.
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the gate was tight against the metal structure.

Liberty’s expert witness, Richard Friedrich, a professional mechanical engineer,

opined via affidavit that Nelson’s actions caused a spring-back effect resulting in the gate

being pulled tight and then springing forward when the clutch was released. The gate

then fell on Debora, causing her injuries. While Huckobey’s driving originally dislodged

the gate, Friedrich opined that those forces had come to a rest and that the actions taken

by Nelson, who was unqualified to repair or work with the gate, were the sole proximate

cause of Debora’s injuries. Appellants’ expert, Gary Jackson, also opined that the gate

was at rest until Nelson started manipulating the operator and “[m]ore likely than not, it

was Mr. Nelson’s actions that changed the equilibrium and caused the heavy gate to fall.”

Both experts ruled out weather as a cause for the gate falling.

Appellants filed suit on May 18, 2022, alleging negligence against Huckobey for

his actions. Because Huckobey was allegedly underinsured, appellants also sued their

own insurer, Liberty, to provide UIM benefits for her damages. Liberty answered denying

liability because it claimed that there was no coverage as the policy only covered

damages arising “out of the ownership, maintenance or use of the uninsured motor

vehicle” and arguing Debora’s injuries did not arise out of use of the uninsured motor

vehicle.

On September 28, 2023, Liberty filed a motion for summary judgment asserting

that both Liberty and appellants’ experts agreed that the cause of Debora’s injuries were

Nelson’s actions with the gate, not the driving of Huckobey, because the displacement of

the gate occurred many hours prior to Nelson’s actions regarding the gate. According to

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Liberty, Nelson’s actions were a new and intervening cause because the conduct from

Huckobey had come to rest. Therefore, the UIM coverage of the policy was not triggered

because Huckobey’s conduct did not proximately cause Debora’s injuries and the injuries

did not arise out of a use of Huckobey’s vehicle. The summary judgment included an

affidavit from Liberty’s expert Friedrich containing his opinions as described above as well

as Jackson’s expert report and deposition testimony.

Appellants responded to the motion for summary judgment by arguing genuine

issues of material fact remained regarding whether Huckobey’s conduct was a significant

factor in causing Debora’s injuries. Appellants presented evidence that the gate motor

was intermittently activating because of Huckobey’s conduct and that the attempts to

repair the gate due to Huckobey's conduct were foreseeable. Appellants also highlighted

that Nelson testified he was unsure whether he had “de-energized” the gate operator prior

to it falling. Appellants further argued the Huckobey’s damage was a substantial factor

and that “but for” his conduct, the gate would have never fallen on Debora.

Of import, appellants attached as evidence to their response a supplemental

affidavit from Jackson stating that Friedrich read his report too narrowly and that he did

not rule out Huckobey’s conduct as a proximate cause of Debora’s injuries. Jackson

further testified that Huckobey’s conduct was a substantial and instrumental factor in

causing Debora’s injuries. Appellants also attached an engineering report from Bradley

Plank opining that the gate gradually moved throughout the morning of the accident due

to the gate operator cycling on and off, that the gate operator was not running in the

instant before the gate fell, that Debora placed herself in a dangerous position, and that

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Nelson was not near the foot pedal before the gate fell. Thus, Plank concluded Nelson

was not responsible for the gate falling onto Debora and was not negligent.

On November 27, 2023, Liberty filed objections to appellants’ summary judgment

evidence. Liberty objected to Jackson’s affidavit as conclusory for opining on ultimate

causation issues without explanation. Liberty objected to Plank’s report as inadmissible

hearsay because Plank was not deposed and his report was not relied upon by other

experts. The trial court denied the summary judgment motion on December 5, 2023.

On March 1, 2024, Liberty filed a motion for rehearing including Jackson’s

deposition testimony wherein Jackson opined he defined proximate causation as “but for”

causation. Appellants responded to the motion for rehearing and attached further

deposition testimony from Jackson stating that over the course of time the gate motor

pulling on the gate changed the gate’s position from leaning to more upright and that as

a result Huckobey’s negligence was a proximate cause of the gate falling. Appellants also

attached deposition testimony from Friedrich wherein he agreed the gate was pulled

closer to the post over the course of the morning.

On March 21, 2024, the trial court granted Liberty’s motion for rehearing and its

motion for summary judgment. The trial court also sustained Liberty’s objections to

appellants’ summary judgment evidence, thus striking the Jackson affidavit and the Plank

report. This appeal followed.

II. DISCUSSION

Appellants assert by way of three issues, which we reorganize as two issues, that

the trial court erred when it granted summary judgment in favor of Liberty and when it

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sustained Liberty’s evidentiary objections. Because the evidentiary issue affects the

summary judgment, we address it first.

A. Evidentiary Objections

Appellants assert that the trial court erred when it sustained Liberty’s objections to

appellants’ expert affidavit and the Plank report and excluded them from evidence.

Appellants presented these as summary judgment evidence to attempt to create a fact

issue preventing grant of summary judgment. Liberty responds that appellants waived

this argument on appeal, and, in any event, the trial court did not err in excluding the

evidence.

1. Waiver

To preserve an issue for appellate review, a party must (1) make a timely request,

objection or motion in the trial court, and (2) obtain a ruling or a refusal to rule on that

request, objection, or motion. TEX. R. APP. P. 33.1(a); Seim v. Allstate Tex. Lloyds, 551

S.W.3d 161, 164 (Tex. 2018). “A basic tenet of appellate procedure is that appellate

courts do not generally consider complaints not raised in the trial court.” Cmty. Initiatives,

Inc. v. Chase Bank of Tex., 153 S.W.3d 270, 281 (Tex. App.—El Paso 2004, no pet.). To

preserve error when the trial court excludes evidence, “the complaining party must inform

the trial court of the purpose for which the evidence is offered and the reasons why the

evidence is admissible.” Id. This principle extends to excluded summary judgment

evidence. See id. The proponent of summary judgment evidence “must inform the trial

court of the purposes for which the evidence was offered and the reasons why it was

admissible.” Id.

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Here, Liberty filed its objections to appellants’ summary judgment evidence and

sought a ruling. Appellants had an opportunity to respond to these objections before the

trial court ruled. The record reflects that appellants did not file a response arguing the

basis for admission of their evidence. Though appellants’ summary judgment response

attached the evidence and argued the purposes for which it was offered, the response

likewise did not offer the reasons why the evidence was admissible. Therefore, Liberty

argues by citation to several cases that appellants’ failure to offer arguments in favor of

admission of their evidence waives the issue on appeal.

Because this is a transferred case, we must follow Fort Worth Court of Appeals

authority. See TEX. R. APP. P. 41.3.2 The most recent Fort Worth Court of Appeals case

on this issue holds that “[the Court] do[es] not believe a party is required to object to the

sustaining of [the] objection in order to complain of the sustaining of the objection on

appeal” and expressly disavowed other Texas appellate court opinions on the issue. See

Miller v. Great Lakes Mgmt. Serv., Inc., No. 02-16-00087-CV, 2017 WL 1018592, at *2

n.4 (Tex. App.—Fort Worth Mar. 16, 2017, no pet.) (mem. op.). Accordingly, we must find

that appellants did not waive this issue on appeal. See id.

2. Standard of Review

“The same evidentiary standards that apply in trials also control the admissibility

of evidence in summary-judgment proceedings.” Seim, 551 S.W.3d at 163. The standard

of review for the exclusion of evidence in summary judgment proceedings is thus abuse

of discretion. Starwood Mgmt., LLC by and through Gonzalez v. Swaim, 530 S.W.3d 673,

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Our Court has no precedent on this issue; therefore, there is no need for discussion on how this
case would be analyzed any differently.
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678 (Tex. 2017). A trial court abuses its discretion “by acting ‘without reference to any

guiding rules and principles.’” Id. (quoting Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex. 1985)). We must uphold the trial court’s evidentiary rulings so

long as “there is any legitimate basis for the ruling.” Gespa Nicaragua, S.A. v. Recom AG,

705 S.W.3d 362, 390 (Tex. App.—El Paso 2024, pet. denied) (quoting Owens-Corning

Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)). Further, we should not

reverse “unless the error probably caused the rendition of an improper judgment.” Id.; see

TEX. R. APP. P. 44.1(a)(1); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54 (Tex.

1995); see also Estate of Doss, No. 13-23-00021-CV, 2024 WL 3199152, at *8 (Tex.

App.—Corpus Christi–Edinburg June 27, 2024, pet. denied) (mem. op.).

3. Jackson Affidavit

The first piece of excluded evidence was Jackson’s affidavit supplementing his

report. Liberty objected to the affidavit as conclusory (1) for opining on causation without

defining proximate causation, (2) for contradicting Jackson’s earlier report, and (3)

because it served as no evidence of injury arising out of use of a vehicle as required to

prevail on a UIM claim. Liberty also asserted there was an overall lack of explanation for

Jackson’s conclusions in the affidavit.

Though appellants assert that Liberty’s second argument is an argument that the

affidavit is a sham affidavit, Liberty argues it was only comparing the affidavit to a sham

affidavit in support of the contention the affidavit was conclusory. “A sham affidavit is one

in which the affiant creates a fact issue with a statement that is contrary to affiant’s prior

sworn statement and made for the purpose of preventing a summary judgment.” Reynolds

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Energy Transp., LLC v. Plains Mktg., L.P., 706 S.W.3d 845, 890 (Tex. App.—San Antonio

2024, no pet.) (citing Lujan v. Navistar, Inc., 555 S.W.3d 79, 85 (Tex. 2018)). If there is

no prior sworn statement, then an affidavit cannot be labeled a sham affidavit. See id.

Because Jackson’s prior expert report is not a sworn statement, the Jackson affidavit

cannot be considered a sham affidavit on those grounds. See id.; see also Carrillo v.

Hirsch, No. 13-00-280-CV, 2001 WL 1002198, at *4 n.4 (Tex. App.—Corpus Christi–

Edinburg Aug. 31, 2001, pet. denied) (“An expert report does not constitute summary

judgment proof absent a jurat, which indicates that the statement’s contents were sworn

to be true before a notary.” (citing City of San Juan v. Gonzales, 22 S.W.3d 69, 72 (Tex.

App.—Corpus Christi 2000, no pet.))). Therefore, we examine only if the affidavit is

conclusory.

Expert affidavits must be probative and raise a fact issue to defeat summary

judgment. Ryland Grp. v. Hood, 924 S.W.2d 120, 121–22 (Tex. 1996). “Conclusory

affidavits are not probative.” Swaim, 530 S.W.3d at 679 (citing Hood, 924 S.W.2d at 121–

22). “To avoid being conclusory, the affidavit must explain ‘how and why the negligence

caused the injury.’” Id. (quoting Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010)). The

expert’s opinion must have a “demonstrable and reasoned basis on which to evaluate” it.

Id. (quoting Elizondo v. Krist, 415 S.W.3d 259, 265 (Tex. 2013)). This includes explaining

the link between the facts relied on and the concluding opinion. Id. We must examine if

the analytical gap between the data and opinion offered is too large. See id. at 680.

Examining Jackson’s affidavit, we cannot say that Jackson failed to explain “how

and why” Huckobey’s negligent conduct might have caused Debora’s injuries. See id. at

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679. Jackson’s affidavit explains that, “but for” Huckobey slamming into the gate, “the

gate would have remained upright in its correct position” and the “gate would not fall even

if Mr. Nelson de-energized the gate controller.” Jackson’s affidavit explained in specific

detail how Huckobey slamming into the gate led to the injuries sustained by Debora. While

Liberty contends the chain of causation was severed by Nelson’s actions, it does not

render Jackson’s affidavit conclusory merely because Liberty disagrees with the

conclusions Jackson reached.

Liberty argues that the Jackson affidavit failed to include a definition of proximate

cause but cites no authority indicating that failure to include a legal definition of proximate

cause renders an affidavit conclusory. Instead, the relevant query is whether the opinion

has a demonstrable and reasoned basis and if the analytical gap between the data and

facts relied upon and the opinion reached is too large. See id. at 679–80. Jackson

explained in his affidavit regarding the sequence of events from Huckobey’s conduct to

Debora’s injuries. Whether this affidavit is enough to create a fact issue regarding

proximate causation is a different issue from the affidavit being conclusory.

Likewise, Liberty’s argument that the Jackson affidavit contradicted his report does

not persuade us that the affidavit is conclusory. For one, Jackson’s affidavit explains why

his report did not expressly discuss Huckobey’s conduct as he took it for granted that

Huckobey was the person who dislodged the gate originally. While Jackson’s report

explained Nelson was a primary cause of Debora’s injuries, the report did not expressly

disavow other possible causes, and the affidavit sufficiently explains how and why

Huckobey’s conduct is another potential cause of Debora’s injuries. See id. It may have

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been a different matter if the Jackson report expressly disavowed Huckobey’s actions as

the cause of Debora’s injuries, but that was not the case here. Even if this could be viewed

as an apparent contradiction, Jackson’s affidavit is not conclusory because it

supplements his opinions in the report. Again, we focus on whether the affidavit provided

a link between the facts and conclusions. See id. at 679.

Finally, Liberty argues that the affidavit is conclusory because it does not serve as

evidence for any of the elements in the UIM coverage issue. We address this issue in

more detail below, but of import here, Liberty cites no authority that an affidavit is

conclusory merely because it fails to create a fact issue on a matter in dispute. Liberty

appears to confuse admissibility of an affidavit with its ability to create a genuine issue of

material fact, which are issues reviewed under different standards. The affidavit’s

conclusory nature does not turn on whether it constitutes evidence of Debora’s injuries

arising out of use of a motor vehicle, but rather on whether it explains the “how and why”

of its opinions. See id. at 679–80. We determine that the affidavit sufficiently explains

itself so as not to be seen as conclusory.

While we have found the affidavit is not conclusory, the query does not end there.

To obtain reversal, appellants had to show that error regarding this evidence was

“controlling on a material issue dispositive of the case and was not cumulative,” and that

it “probably caused rendition of an improper judgment in the case.” TEX. R. APP. P.

44.1(a)(1); Gespa Nicaragua, S.A., 705 S.W.3d at 390. Appellants’ argument on these

two issues is confined to, ironically, a sole conclusory sentence stating, “this erroneously

excluded evidence directly addressed the material fact issue regarding proximate

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causation, thereby precluding the trial court’s order granting summary judgment.”

Appellants did not address why this evidence probably caused the rendition of an

improper judgment by arguing why summary judgment would have been defeated if this

affidavit were part of the record. See id. Accordingly, appellants failed to properly brief

this issue and have failed to meet the standard necessary to mandate reversal. See TEX.

R. APP. P. 38.1(i).

4. Plank Report

The trial court also excluded Plank’s expert report. Liberty objected to the report

on the basis that it constituted hearsay because Plank was not deposed and the report

was not sworn. Liberty argued, without corresponding support, that because Plank was

the expert of a dismissed party that any reports from such experts were hearsay.

A statement constitutes hearsay when it is made out of court and is offered into

evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Exceptions to the

hearsay rule include certain categories of documents, such as business records and

public records. Id. R. 803(6), 803(8). If a statement does not fall within one of these

exceptions, it remains inadmissible. Unsworn expert reports are not valid admissible

evidence. See Moron v. Heredia, 133 S.W.3d 668, 671 (Tex. App—Corpus Christi–

Edinburg 2003, no pet.); see also DeLamar v. Fort Worth Mountain Biker’s Ass’n, No. 02-

17-00404-CV, 2019 WL 311517, at *9 (Tex. App.—Fort Worth Jan. 24, 2019, pet. denied)

(mem. op.); Kolb v. Scarbrough, No. 01-24-00671-CV, 2015 WL 1408780, at *4 (Tex.

App.—Houston [1st Dist.] Mar. 26, 2015, no pet.) (mem. op.); Bayou City Fish Co. v. S.

Tex. Shrimp Processors, Inc., No. 13-06-00438-CV, 2007 WL 4112003, at *3 (Tex.

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App.—Corpus Christi–Edinburg Nov. 20, 2007, no pet.) (mem. op.).

The Plank report attached by appellants to its summary judgment response was

not verified and did not have an accompanying affidavit verifying it. Accordingly, it is not

admissible evidence. See Moron, 133 S.W.3d at 671; see also Kolb, 2015 WL 1408780,

at *4; DeLamar, 2019 WL 311517, at *9. Appellants argue that Liberty’s objection was not

proper because Liberty did not object to a specific statement in the report but cites no

authority that Liberty’s hearsay objection had to be limited to specific statements in the

report. Indeed, the nature of the objection necessitates objection to the entirety of the

report because the entirety of the report is unverified. See Moron, 133 S.W.3d at 671; see

also Kolb, 2015 WL 1408780, at *4; DeLamar, 2019 WL 311517, at *9.

Appellants’ only other argument for admissibility is that the report was a discovery

response by Nelson and therefore was automatically admissible as summary judgment

evidence. But this contention is likewise not supported by any rule, statute, or caselaw.

Assuming appellants are referring to Texas Rule of Civil Procedure 193.7, appellants

misunderstand the rule. Rule 193.7 simply self-authenticates documents produced in

response to discovery requests against the producing party. TEX. R. CIV. P. 193.7. Liberty

did not produce Plank’s expert report. Therefore, the Rule is inapplicable in this context.

See id. It was not an abuse of discretion for the trial court to sustain Liberty’s objection to

the Plank report.

Because it was not an abuse of discretion for the trial court to sustain the objections

to the Plank report, and appellants failed to demonstrate grounds for reversal regarding

Jackson’s affidavit, we overrule appellants’ first issue.

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B. Grant of Summary Judgment

In their next issue, appellants argue that the trial court erred by granting summary

judgment for several reasons, including that there was conflicting evidence on causation,

that Liberty failed to prove there was a new and intervening cause of Debora’s injuries,

and that Debora’s injuries met coverage for UIM benefits. “Because the trial court’s order

does not specify the grounds for its summary judgment, we must affirm the summary

judgment if any of the theories presented to the trial court and preserved for appellate

review are meritorious.” Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216

(Tex. 2003). Because we find the issue dispositive, we begin—and conclude—by

examining UIM coverage.

1. Standard of Review

We review an order granting summary judgement de novo. Travelers Ins. v.

Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We must consider the evidence in the light

most favorable to the nonmovant, crediting evidence favorable to the nonmovant if a

reasonable factfinder could do so and disregarding contrary evidence unless a

reasonable factfinder could not. Mann Frankfort Stein & Lipp Advisors, Inc v. Fielding,

289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference for the

nonmovant and resolve any doubts in his favor. 20801, Inc. v. Parker, 248 S.W.3d 392,

399 (Tex. 2008). The burden is on the movant to demonstrate there are no genuine issues

of material fact and that he is entitled to judgment as a matter of law. Janaki v. C.H.

Wilkinson Physician Network, 624 S.W.3d 623, 627 (Tex. App.—Corpus Christi–Edinburg

2021, no pet.).

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2. UIM Coverage

Debora’s insurance policy with Liberty contained UIM coverage for damages which

“arise out of the ownership, maintenance or use of the uninsured motor vehicle.” Liberty

argued in its motion for summary judgment that she was not entitled to UIM coverage

because her injuries did not arise out of use of the uninsured motor vehicle. Instead,

Liberty asserts her injuries were entirely due to Nelson’s actions.

The Texas Supreme Court has adopted use of a three-prong test to guide in

determining whether injuries arise from the use of a motor vehicle for coverage purposes,

though this is not an absolute test. See Mid-Century Ins. Co. of Tex. v. Lindsey, 997

S.W.2d 153, 157 (Tex. 1999). The factors to examine include: (1) if the accident arose

from the inherent nature of the automobile; (2) if the accident arose within the natural

territorial limits of an automobile and if the actual use of the automobile terminated; and

(3) if the automobile itself produced the injury rather than merely contributed to the

condition that produced the injury. Id.; Lancer Ins. Co. v. Garcia Holiday Tours, 345

S.W.3d 50, 56 (Tex. 2011). As the Supreme Court noted, the third factor is troublesome

due to the difficulty of determining the role a vehicle played in an injury versus other

factors. See Lindsey, 997 S.W.2d at 157.

Moreover, “[f]or liability to ‘result from’ the use of a motor vehicle, there must be a

sufficient nexus between its use as a motor vehicle and the accident or injury.” Lancer

Ins. Co., 345 S.W.3d at 56 (quoting Lindsey, 997 S.W.2d at 157). While there have been

broad interpretations of this language, the Supreme Court has cautioned that “not every

injury capable of connection to the use of an auto is a covered use.” Id. A drive-by

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shooting is a common example of an incidental use of a vehicle because the firearm is

the primary mechanism causing the injury. See id. Thus, we must determine if the vehicle

here was the producing cause of Debora’s injuries. See id. at 57. “To be a producing

cause of harm, the use must have been a substantial factor in bring[ing] about the injury,

which would not otherwise have occurred. And when the vehicle merely furnishes a place

for the accident or injury to occur, it is not a substantial factor, and the causal link is

insufficient to invoke coverage.” Id. (internal citations omitted). Cause in fact does not

exist if an act merely furnishes the condition making injury possible. See W. Invs., Inc. v.

Urena, 162 S.W.3d 547, 551 (Tex. 2005).

Examining all three factors here, we struggle to find that any of them are met.

Simply stated, Debora’s injuries were caused by the community gate falling on top of her

following Nelson’s interference at the gate controller box at least five hours after the

vehicle struck the gate. The parties vigorously debate whether the gate’s position shifted

all morning due to the gate mechanism intermittently activating or whether Nelson cutting

the power and releasing the manual brake caused the gate to fall. And neither party

denies the gate was originally knocked out of place by Huckobey’s truck. But the

undisputed facts show the use of a motor vehicle is too attenuated to prove causation,

and, thus, to trigger UIM coverage.

Starting with the first factor, the gate falling many hours after being hit by the truck

shows Debora’s injuries did not arise out of the inherent nature of the automobile. See

Lindsey, 997 S.W.2d at 157. While the vehicle was in operation when it struck the gate,

it is not apparent that Debora was hurt because the truck struck the gate but rather

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because the gate was released by Nelson’s actions. Both Jackson and Friedrich agree

that Nelson releasing the brake on the gate is what ultimately caused the gate to strike

and hit Debora. The truck crash was the first event that set into motion subsequent

occurrences which did not arise from the inherent nature of the vehicle.

Moving on to the second factor, we find that the harm was not due to use of the

vehicle. See Lindsey, 997 S.W.2d at 157. The accident did not occur within the “territorial

limits” of the vehicle at all, because the truck was gone from the scene for many hours by

the time the gate fell. While the striking of the gate occurred within the “territorial limits” of

the truck, the parties do not dispute the truck striking the gate alone did not cause

Debora’s harm. And, certainly, the use of the truck had terminated by the time the injury

occurred. Therefore, the second factor strongly weighs against UIM coverage.

Finally, under the third factor, the facts in this case seem to be more aligned with

prior decisions finding the vehicle merely contributed to the condition that caused the

injury, rather than directly causing the injury. See Lindsey, 997 S.W.2d at 157. A helpful

case for comparison is Home State County Mutual Insurance Company v. Binning, 390

S.W.3d 696, 699 (Tex. App.—Dallas 2012, no pet.), wherein an assailant caused a rear-

end accident to the victim and subsequently assaulted the victim as they exited the

vehicle. Like here, the plaintiff argued that “but for” the collision he would not have been

subject to the assault. Id. But the Dallas Court of Appeals held that because the vehicle

was merely incidental to the assault and that the plaintiff’s “physical injuries were not

caused by the vehicle itself” but instead by the assault, the injuries did not arise out of

use of the motor vehicle. See id. at 699–700. We have also previously held that the use

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of the motor vehicle was merely incidental to the actual cause of injury in a case where

the defendant was driving a truck and left a gate open allowing cattle that caused an

accident to be released. See State Farm Mut. Auto. Ins. Co. v. Lopez, No. 13-19-00605-

CV, 2020 WL 6878734, at *3 (Tex. App—Corpus Christi–Edinburg Nov. 24, 2020, no pet.)

(mem. op.). Likewise here, the vehicle did not directly cause Debora’s injuries. While the

gate may not have been dislodged without the truck striking it, that does not mean

Debora’s injuries were caused by the truck as it was the gate falling on her that caused

her injuries. The truck was merely incidental to the mechanism of the injury: the gate. See

Binning, 390 S.W.3d at 699–700; see also Lopez, 2020 WL 6878734, at *3.

Because the vehicle here left the scene of the accident many hours prior to the

accident, the truck at most merely helped furnish the conditions that caused the accident.

We therefore find the trial court’s grant of summary judgment proper on the ground that

UIM coverage was not triggered because Debora’s injuries did not “arise out of the

ownership, maintenance or use of the uninsured motor vehicle.” As this was a proper

ground for granting summary judgment, we need not address the other grounds or points

of error here. See TEX. R. APP. P. 47.1. We accordingly overrule appellants’ second issue.

III. CONCLUSION

We affirm the trial court’s judgment.

YSMAEL D. FONSECA
Justice

Delivered and filed on the
11th day of December, 2025.

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