Justice David Brister

AUSTIN – The Supreme Court of Texas offered sympathy but nothing more to Louis Goudeau, a "good Samaritan" who got run over on the Sam Houston Tollway.

Six of nine justices ruled that Goudeau lost automobile insurance coverage when he got out of his vehicle, because the policy on the vehicle applied only to occupants.

Goudeau worked for Advantage BMW. Driving one of its cars, he stopped on the right shoulder of the tollway to help a driver whose car had hit a retaining wall.

A car driven by Alex Rodriguez slammed into both cars, pinning Goudeau against the wall and crushing his pelvis.

Advantage BMW held policies with United States Fidelity and Guaranty for both auto insurance and workers' compensation. USF&G paid Goudeau more than $100,000 for workers' comp.

Rodriguez paid his policy limit, $20,000.

Goudeau sought further recovery from USF&G in underinsured motorist coverage, and USF&G denied it.

Justices held that an admission of coverage by one of two law firms representing USF&G didn't bind the other firm.

"It is natural to sympathize with a litigant who has suffered harm caused by someone who cannot pay the consequences," Justice Scott Brister wrote.

"But if sympathy were a rule of contract construction, there would soon be no law of contracts left," he wrote.

Justices Nathan Hecht, Harriet O'Neill, Dale Wainwright, David Medina and Don Willett joined Brister.

Chief Justice Wallace Jefferson and Justices Paul Green and Phil Johnson dissented.

"We have consistently applied our rules of procedure to discourage tactical gamesmanship," Green wrote.

"Whatever dispute there is between these two USF&G factions lies entirely within USF&G, and is not deserving of individualized adjudication in our courts," he wrote.

After being denied underinsured motorist payments, Goudeau sued USF&G. The insurer answered through one law firm and intervened through a different firm to assert subrogation of the workers' comp payment.

The workers' comp firm admitted that the auto policy covered Goudeau, and the auto insurance firm did not admit coverage.

USF&G moved for summary judgment on the underinsured motorist claim, and Harris County District Judge Tony Lindsay granted it.

The First District appeals court in Houston reversed Lindsay, requiring only a "causal connection" between vehicle and incident.

The Supreme Court knocked down the First District's standard and upheld Lindsay.

"We have required such a causal connection when deciding whether an uninsured motorist claim 'arises out of' the use of a motor vehicle, but that it not the same question as whether a person was 'occupying' a covered car," Brister wrote.

USF&G appeared in two capacities, he wrote, and a request sent to it in one capacity cannot be used against it in another.

"It is true that USF&G may have had other ways to avoid the situation," he wrote.

"Perhaps it could have intervened in Goudeau's name, thus removing any confusion about who was admitting what," he wrote.

It could have brought a separate subrogation suit, he wrote, or it could have denied coverage while alternatively seeking reimbursement if coverage existed.

Those alternatives wouldn't change the rule that admissions are binding only against the party making the admission, he wrote.

"Requests for admission are a tool, not a trapdoor," he wrote. "Goudeau's attorneys knew perfectly well that defendant USF&G was denying underinsured coverage."

To the minority, double representation sounded fishy.

"Although the intervenor and defendant were represented by separate counsel, neither has ever attempted – either in the trial court or in these appellate proceedings – to clarify this oddity of identification," Green wrote.

"No person may sue himself," he wrote.

He wrote that "our procedural rules as a whole are predicated on the assumption that a person can serve only as one party in each lawsuit."

Lindsay should have looked behind the party designations of intervenor and defendant, he wrote.

Rick Molina and Wesson Tribble represented USF&G. Otto Hewitt III and Alton Todd represented Goudeau.

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