Public Policy is Vague and Uncertain

Courts Should Not Counter the Work of the Legislature by Use of “Public Policy”

Barry Zalma

May 21, 2024

Transcript

BACKGROUND

Freeman is a police officer with the City of Houston. On February 13, 2018, Freeman was in her police vehicle when she was rear-ended by another car.
Freeman’s expenses from the accident exceeded $50,000. Freeman filed for uninsured/underinsured motorist (“UM/UIM”).

The policy also includes a regular-use exclusion applicable to this coverage which states, in relevant part, as follow: "Coverage under this Part III [regarding UI/UIM benefits] will not apply: ... to bodily injury sustained by any person using or occupying: ... * ... a motor vehicle that is owned by or available for the regular use of you or a relative. (emphasis added)."

Progressive denied Freeman’s claim for UM/UIM benefits. Progressive concluded that Freeman’s police vehicle fell within the exclusion’s definition of a vehicle “available for [her] regular use.”

Freeman sued Progressive.

ANALYSIS

The trial court determined that although the patrol vehicle was available for Ms. Freeman’s regular use, that the “regular use” exclusion as applied in this case violates public policy since it operates to deprive an insured of the protection required by the Texas Uninsured Motorists Statute.

GOVERNING LAW

Texas law requires UM/UIM coverage. The underlying policy behind this statute is the state’s interest in protecting conscientious and thoughtful motorists from financial loss.

The trial court concluded that the “regular use” exclusion as applied in this case violates public policy. Public policy can be a vague and uncertain term.

Freeman failed to met her burden that she has suffered any financial loss. The judgment was reversed.

ZALMA OPINION

Insurance policies are contracts that must be interpreted as written. The trial court felt sorry for Ms. Freeman’s injuries and decided that the public policy of the state of Texas was that the regular use exclusion violated the policy for which the Legislature enacted UM/UIM laws. The Court of Appeals, found that the use of the concept of public policy to reverse a clear and unambiguous statute and policy wording. The Court of Appeals intelligently supported the separation of powers between the Legislative and Judicial parts of the state government.