In a case transferred from the Fort Worth Court of Appeals, the Corpus Christi Court of Appeals has affirmed a trial court order granting summary judgment on behalf of the insurer in a UIM coverage dispute.
Debora Hughey and Larry Hughey v. Liberty County Mutual Insurance Company (No. 13-24-00204-CV; December 11,2025) arose from a dispute over underinsured driver benefits. In January, 2022, an intoxicated driver repeatedly rammed his vehicle into the entrance of a gated community, eventually damaging the gate, pushing it open, dislodging it from its track, and leaving the gate to rest against a nearby metal structure.
Hours later, the community HOA President and plaintiff, Deborah Hughey, approached the gate after receiving a notice about the gate’s condition from another resident. Shortly thereafter, police arrived on the scene to inspect the dislodged gate. An hour later, “self-proclaimed gate guy,” Thomas Nelson, went to inspect the broken gate. Plaintiff arrived, and both she and Nelson observed the gate’s motor start to run again. Upon observing the function of the gate’s motor, Nelson cut power to the gate using the gate’s operator box and released the manual foot clutch. Plaintiff was standing close to the gate when Nelson cut power and released the foot clutch. The gate fell onto Plaintiff, causing her injuries. Plaintiff sued the underinsured driver and her insurer, Liberty Mutual, to recover UIM benefits.
Liberty Mutual produced the testimony of a professional mechanical engineer, who opined 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.” While the driver initially caused damage to the gate, the expert contended that “those forces had come to a rest and that the actions taken by Nelson, who was unqualified to repair or work the gate, were the sole proximate cause of [Plaintiff’s] injuries.” Plaintiff’s expert also opined that the gate was at rest until Nelson manipulated the gate’s functions, alleging that “more likely than not, it was Mr. Nelson’s actions that changed the equilibrium and caused the heavy gate to fall.” Liberty had denied Plaintiff’s claim because the UIM policy only covers damages arising “out of the ownership, maintenance, or use of the uninsured motor vehicle.” Liberty argued the drunk driver did not cause the plaintiff’s injuries and therefore Liberty should not cover damages.
Liberty filed a motion for summary judgment, asserting that both experts agreed that Nelson’s actions caused Plaintiff’s injuries, not those of the drunk driver. Plaintiffs responded that genuine issues of material fact remained regarding whether the driver’s action was significant in causing the injuries. Plaintiffs attached as evidence a supplemental affidavit from her expert stating that “[Liberty’s expert] read his report too narrowly and that he did not rule out [the driver’s] conduct as a proximate cause of [Plaintiff]’s injuries.” Plaintiffs’ expert further stated that the driver’s conduct was “a substantial and instrumental factor in causing [Plaintiff]’s injuries.” Additionally, Plaintiffs attached an engineering report from another expert which opined 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 [Plaintiff] placed herself in a dangerous position, and that Nelson was not near the foot pedal before the gate fell.” This expert concluded that Nelson was not responsible for the gate falling on the plaintiff. Liberty filed objections to Plaintiffs’ summary judgment evidence, stating their expert’s affidavit was conclusory and that the engineering report is inadmissible hearsay because the engineer was not deposed. The trial court sustained the objections and granted Liberty’s MSJ. Plaintiffs appealed.
In an opinion by Justice Fonseca, the court of appeals affirmed. The first issue was whether the trial court erred by excluding Plaintiffs’ expert’s affidavit supplementing his report. Liberty argued the affidavit was conclusory because it did not serve as evidence for the UIM coverage issue. The court turned aside this argument, observing that an affidavit is not conclusory because the “affidavit’s conclusory nature does not turn on whether it constitutes evidence of [Plaintiff’s] injuries arising out of use of a motor vehicle, but rather on whether it explains the ‘how and why’ of its opinion. The court found that the affidavit “provided a link between the facts and conclusions” and was thus not conclusory. But to obtain reversal, Plaintiffs must show that error regarding this evidence was “controlling on a material issue dispositive of the case and was not cumulative.” Unfortunately for Plaintiffs, their briefing 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.” Plaintiffs thus “failed to meet the standard necessary to mandate reversal.”
The court of appeals rendered the affidavit non-conclusory, but to obtain reversal, the plaintiffs must show that error regarding this evidence was “controlling on a material issue dispositive of the case and was not cumulative.” Even assuming the trial court erred in sustaining Liberty’s objection to Jackson’s supplemental affidavit, the court held the error was harmless. The affidavit merely reiterated the existence of disagreement between experts as to causation and did not establish that the plaintiff’s injuries arose out of the use of Huckobey’s uninsured motor vehicle. Because the affidavit failed to address the dispositive coverage issue under the UIM policy, its exclusion did not probably cause the rendition of an improper judgment.
With respect to the engineering report, the court of appeals upheld its exclusion. The report was unsworn and therefore constituted inadmissible hearsay. Texas summary-judgment rules require that expert opinions be presented through affidavits or deposition testimony. Because Plank’s report was neither sworn nor otherwise authenticated, the trial court did not abuse its discretion in excluding it from consideration. As a result, Plaintiffs failed to present competent summary-judgment evidence raising a genuine issue of material fact on coverage.
Turning to the central issue on appeal, the court analyzed whether Plaintiffs’ injuries arose “out of the ownership, maintenance, or use” of the drunk driver’s underinsured vehicle, as required to trigger UIM coverage. Texas courts interpret this language to require a causal nexus between the vehicle’s use and the injury, though the vehicle need not be the direct instrumentality of harm. Courts commonly apply a three-factor analysis considering whether: (1) the accident arose out of the inherent nature of the vehicle’s use, (2) the accident occurred within the natural territorial limits of the vehicle’s use and before the use had terminated, and (3) the vehicle itself produced the injury rather than merely furnishing a condition that made the injury possible.
Applying these principles, the court concluded that the causal connection between the drunk driver’s conduct and Plaintiff’s injuries was too attenuated to satisfy the policy’s coverage requirement. Although the intoxicated driving initially damaged the gate, the vehicle had ceased operation hours before the injury occurred. By the time the gate fell, the drunk driver was no longer present, the vehicle was no longer in use, and the forces generated by the collision had come to rest. The court emphasized that the injury occurred only after independent intervening acts, namely, Nelson’s manipulation of the gate’s power and mechanical components.
The court further reasoned that Huckobey’s vehicle did not itself produce the injury but merely created a condition that later contributed to the accident. Texas law distinguishes injuries proximately caused by the use of a vehicle and those resulting from subsequent events that are only indirectly related to prior vehicle use. Here, the gate’s collapse resulted from mechanical adjustments and human intervention occurring well after the vehicle’s involvement had ended. As such, the underinsured vehicle’s role was incidental rather than causative.
Because Plaintiffs failed to demonstrate that the injuries arose out of the use of the drunk driver’s underinsured motor vehicle, UIM coverage was not triggered as a matter of law. Accordingly, even if evidentiary errors had occurred, they would not warrant reversal. The court affirmed the trial court order granting Liberty summary judgment
TCJL Intern George E. Christian researched and prepared the first draft of this article.
