Frederking v. Cincinnati Insurance Company

Filing 30

ORDER DENYING 28 Motion for Reconsideration Signed by Judge Xavier Rodriguez. (mgr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
RICHARD BRETT FREDERKING,
Plaintiff,
v.
THE CINCINNATI INSURANCE
COMPANY, INC.,
Defendant.

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Civil Action No. SA-17-CV-651-XR

ORDER
On this date, the Court considered the status of the above captioned-case. After careful
consideration, the Court hereby DENIES Plaintiff’s Motion for Reconsideration. Docket no. 28.
On March 27, 2018, this Court granted Defendant’s motion for summary judgment and
denied Plaintiff’s counter-motion for summary judgment. Docket no. 25. This Court held that the
insurance policy at issue does not afford coverage for the punitive damages award attributed to
Sanchez’s gross negligence.
Plaintiff seeks reconsideration of this Court’s Order. The Court recognizes this is a
difficult case. Mr. Frederking was injured when his vehicle was struck by an intoxicated driver,
Carlos Xavier Sanchez. A trial was held in state court. That jury found that Mr. Sanchez was
grossly negligent and awarded Mr. Frederking $207,550 in punitive damages plus interest. 1 The
issue, however, is whether the policy held by Sanchez’s employer covers this punitive damages
award.

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The actual and compensatory awards made by the jury have been paid by the insured and are not an issue in this
case.

1

Defendant is only required to indemnify an insured for an “accident” or “occurrence.” 2
Sanchez’s conduct of driving while intoxicated, found to be grossly negligent in the underlying
lawsuit, resulted in a car collision with Plaintiff in which Plaintiff was injured. Plaintiff argues
in his motion for reconsideration that Sanchez’s decision to drink and drive may have been
deliberate, but the harm he caused was dependent on further negligence and was thus caused by
an accident.
Mr. Frederking relies upon Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828
(Tex. 2009). In that case Mr. Gibbons fled from police, drove at excessively high speeds, and
collided with the Tanners. The Texas Supreme Court reviewed an exclusion3 in Gibbons’
insurance policy and determined that the insurer did not establish as a matter of law that its
insured intentionally caused the family's injuries. The Texas Supreme Court also stated: “At the
outset, however, we emphasize this critical point: ‘intentionally’ as used in the exclusion speaks
to the resulting damage or injury, not to the actions that led to it. That is, the language is effectfocused and not cause-focused, voiding coverage when the resulting injury was intentional, not
merely when the insured’s conduct was intentional. A contrary reading of the exclusion—that
reckless acts absent deliberate injury are sufficient to forfeit coverage—‘would render insurance
coverage illusory for many of the things for which insureds commonly purchase insurance.’”
Tanner, 289 S.W.3d at 831.
In this case, however, we are not interpreting an exclusion. The Court must decide
whether the policy as written provides coverage for punitive damages awarded in the underlying
2

“Occurrence” under the policy means: a. An accident, including continuous or repeated exposure to substantially
the same general harmful conditions, that results in “bodily injury” or “property damage” . . . .
3
The exclusion in Tanner reads as follows: “Property damage or bodily injury caused intentionally by or at the
direction of an insured, including willful acts the result of which the insured knows or ought to know will follow
from the insured's conduct.”

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lawsuit. Thus, the analysis in Tanner related to a specific policy exclusion that is not included in
the insurance policy at issue here, and does not guide this Court in applying Texas law to this
case.
This Court initially concluded that Sanchez’s collision with Mr. Frederking and
Frederking’s resulting injuries were the natural and expected result of a driver operating a
vehicle while intoxicated. “An accident is generally understood to be a fortuitous, unexpected,
and unintended event.” Lamar Homes, Inc. v. Mid–Continent Cas. Co., 242 S.W.3d 1, 8 (Tex.
2007). “[A] deliberate act, performed negligently, is an accident if the effect is not the intended
or expected result; that is, the result would have been different had the deliberate act been
performed correctly.” Bishop v. USAA Texas Lloyd's Co., No. 09-14-00445-CV, 2016 WL
423564, at *2 (Tex. App. Feb. 4, 2016).
In the underlying lawsuit, the jury concluded that Sanchez acted with gross negligence,
which required the jury to find that Sanchez had “actual, subjective awareness of the risk
involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare
of others.” TEX. CIV. PRAC. & REM. CODE § 41.001(11). The Court has been unable to locate a
case that involves facts similar to this case. Although the Court concedes that other cases with
differing facts have reached an opposite result, the Court remains convinced that Sanchez’s
grossly negligent conduct required actual, subjective awareness of the risks involved, and is not
an “accident” under the terms of the policy. The Court further remains convinced that Sanchez’s
conduct cannot be held to be an “accident” under the policy because Plaintiff fails to show that
the result “would have been different” had the deliberate act—the act of driving while
intoxicated—been performed correctly.

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CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Reconsideration (Docket no. 28) is
hereby DENIED.
It is so ORDERED.
SIGNED this 31st day of May, 2018.

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XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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