In Progressive County Mutual Ins. Co. v. Freeman, 694 S.W.3d 924, (Tex. App. [Houston], 2024), the injured claimant was occupying a police patrol car as a member of the Houston Police Department. The tortfeasor who caused the accident had a per person policy limit of $50,000. Because of this, the claimant patrolwoman submitted a UIM claim to her own personal auto insurance issued by Progressive. The claim was denied under Progressive’s “regular use” exclusion. The trial court found the exclusion was contrary to public policy and unenforceable. The Texas Court of Appeals reversed.
Progressive’s UIM coverage had an exclusion for injuries sustained while occupying a vehicle that was owned by or available for regular use of the insured or a relative. The majority opinion for the Court of Appeals observed that “public policy” was not a generic formless basis for striking down policy language that courts disliked. In a unique aspect of the case, the patrolwoman received workers comp benefits. In the summary judgment briefing, the patrolwoman did not identify the amount of workers comp benefits that she had received, thereby not establishing that in the pleadings she suffered a financial loss when the exclusion was applied. Additionally, she had not shown that the regular use exclusion violate Texas public policy. Therefore, the trial court’s judgment in favor of coverage and against the exclusion was reversed.
There was a dissenting opinion. In relevant part, the dissenting opinion noted that there was a split in the country on whether regular use exceptions were enforceable in the UIM context absent specific legislative authorization. The majority of the Court had not identified in any Texas statutes or case law that the exclusion in a UM or UIM policy was enforceable.