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Schaefer v. American Manufacturers Mutual

The trial court erred in granting summary judgment on the basis that as a matter of law the appellant is not entitled to recover for diminished value under a personal auto policy.

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OPINION

Gary Schaefer filed a class action suit, on behalf of himself and as representative of all persons similarly situated, complaining of American Manufacturers Mutual Insurance Company (AMM), Kemper National Insurance Companies, Lumbermen’s Mutual Casualty Company, American Motorists Insurance Company, and American Protection Insurance Company (defendants). Schaefer moved for partial summary judgment seeking a holding that the personal auto policies issued in Texas by the defendants cover diminished value as a matter of law. In their response to Schaefer’s motion for partial summary judgment, AMM filed a cross- motion for summary judgment claiming Schaefer is not entitled to payment for diminished value, based upon a bulletin from the Texas Department of Insurance (TDI). Citing Carlton v. Trinity Universal Ins. Co., 32 S.W.3d 454 (Tex. App.–Houston [14th Dist.] 2000, pet. denied), the trial court granted AMM’s motion for summary judgment on the basis that Schaefer “is not entitled to recover `diminution in value’ from [AMM].”

The trial court’s order granting summary judgment in favor of AMM also denied Schaefer’s motion for partial summary judgment and ordered “that Plaintiff’s individual claims against all Defendants are dismissed with prejudice.” However, the record does not reflect a motion for summary judgment was filed on behalf of Kemper National Insurance Companies, Lumbermen’s Mutual Casualty Company, American Motorists Insurance Company, or American Protection Insurance Company. Nor does the record reflect an order granting a severance was entered. Accordingly, we address the merits of Schaefer’s appeal only as to AMM. *fn1

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