Plaintiff sued her insurer, Progressive, for uninsured/underinsured motorist benefits in connection with an accident in which Plaintiff’s vehicle was struck by a motorist driving a rented vehicle. Progressive filed a motion for summary judgment arguing that the policy excluded UM/UIM benefits when a tortfeasor or policyholder is operating a vehicle owned by a self-insured entity. The trial court denied the motion. Progressive filed motions for reconsideration of the summary judgment order and for a permissive interlocutory appeal. The trial court denied reconsideration but signed an order granting permission for an interlocutory appeal. Progressive filed a petition for permissive interlocutory appeal with the Houston [1st] Court of Appeals. The court of appeals
These are the basic facts in Progressive County Mutual Insurance Company v. Margie Dowdy (No. 01-20-00817-CV). The court of appeals rested its decision on alternative grounds: (1) Progressive did not file its petition 68 for permissive appeal within 30 days after the trial court signed the order to be appealed; and (2) the order to be appealed did not include the trial court’s permission to appeal. Relying on the San Antonio Court of Appeals’ decision in Progressive County Mutual Company v. McCormack (No. 04-21-00001-CV; pet. denied), the court of appeals held that Progressive’s petition was not timely because it was filed more than two months after the trial court entered its motion for summary judgment. Progressive argued that the “order to be appealed” under §51.014(f), CPRC, was the later filed motion for reconsideration, which is not independently appealable as a summary judgment is. In McCormack the 4th Court held under precisely the same facts that the summary judgment order starts the timeclock under TRAP 28.3(c), not the motion for reconsideration. (SCOTX subsequently denied Progressive’s petition for review.) Moreover, TRCP 168 requires the trial court “to issue a written order that includes both an interlocutory order that is not otherwise appealable and a statement of the trial court’s permission to appeal this order” (citing McCormack). As was the case in McCormack, Progressive failed on both counts.
*This article was researched and written by George E. Christian, TCJL’s research intern.
