CourtListener 10756481•Debora Hughey and Larry Hughey v. Liberty County Mutual Insurance Company
Debora Hughey and Larry Hughey v. Liberty County Mutual Insurance Company
CourtListener 10756481Txctapp1311 de dez. de 2025
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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,
2
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
16
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
17
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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