Pharr-San Juan-Alamo Independent School District v. Texas Political Subdivisions property/casualty Joint Self Insurance Fund

Supreme Court of Texas

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No. 20-0033

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Pharr–San Juan–Alamo Independent School District,

Petitioner,

v.

Texas Political Subdivisions Property/Casualty Joint Self

Insurance Fund,

Respondent

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On Petition for Review from the

Court of Appeals for the Thirteenth District of Texas

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Argued September 14, 2021

JUSTICE BOYD delivered the opinion of the Court.

The parties in this case dispute whether an automobile-liability

insurance policy requires the insurer to defend and indemnify the

insured against claims for damages arising from an accident involving

the use of a “golf cart.” We hold the insurer had no duty to defend the

insured because the term “golf cart” does not refer to a vehicle “designed

for travel on public roads” and thus does not refer to a “covered auto.”

And because the evidence confirms that the accident in this case did not

result from the use of a vehicle designed for travel on public roads, we

hold the insurer has no duty to indemnify the insured. Although we

disagree with the court of appeals’ reasoning, we affirm its judgment

reversing the trial court’s judgment and remanding the case to that

court.

I.

Background

The Pharr-San Juan-Alamo Independent School District obtained

automobile-liability insurance from the Texas Political Subdivisions

Property/Casualty Joint Self Insurance Fund. The policy requires the

Insurance Fund to indemnify the School District by paying “all sums”

the School District “legally must pay as damages because of bodily injury

or property damage to which this self-insurance applies,” if those

damages are “caused by an accident and result[] from the ownership,

maintenance or use of a covered auto.” [Emphasis added.] According to

the policy’s definitions, the term “auto” means “a land motor vehicle . . .

designed for travel on public roads but does not include mobile

equipment.” [Emphasis added.] The term “mobile equipment” means

certain types of “land vehicles,” including “[b]ulldozers, farm machinery,

forklifts and other vehicles designed for use principally off public roads.”

[Emphasis added.] In addition to the duty to indemnify, the policy

imposes on the Insurance Fund the “duty to defend any suit asking for

these damages.”

This dispute arose when Lorena Flores, acting as next friend of

her minor daughter Alexis, sued the School District and its employee,

Cristoval DeLaGarza, Jr. Flores alleged in her petition that Alexis “was

severely injured after being thrown from a golf cart.” More specifically,

2

Flores alleged that DeLaGarza, while acting within the course and scope

of his employment with the School District, “recklessly and negligently

operated” the “golf cart” when “he suddenly, and without warning,

turned the golf cart abruptly, thereby throwing Alexis Flores from the

vehicle.” The petition did not provide any additional details about the

accident or about the “golf cart.”

The School District requested that the Insurance Fund provide a

defense against Flores’s claims and indemnify the School District

against any resulting liability. The Insurance Fund refused, asserting

that the policy did not provide coverage because a “golf cart” is not

designed for travel on public roads and thus is not an “auto”—and

instead is “mobile equipment”—as the policy defines those terms. When

the parties failed to resolve this definitional dilemma, the Insurance

Fund filed this suit seeking a declaratory judgment that it had no duty

to defend the School District. The School District filed a counter-claim

for declaratory judgment that the policy required the Insurance Fund to

defend and indemnify the School District.1

1 After the Insurance Fund denied a defense, the School District

demanded a defense from the Texas Association of Public Schools Property and

Liability Fund, from which the School District had obtained a general-liability

(as opposed to automobile-liability) insurance policy. The TAPS Fund initially

agreed to provide a defense and filed a plea to the jurisdiction on the School

District’s behalf, asserting that governmental immunity barred Flores’s claim

and the Texas Tort Claims Act did not waive that immunity because the “golf

cart” was not a “motor vehicle.” See TEX. CIV. PRAC. & REM. CODE

§§ 101.021(1)(a), .051 (waiving governmental immunity against claims arising

from the use of a “motor vehicle” or “motor-driven vehicle”). When the trial

court denied the plea, the TAPS Fund withdrew its defense, asserting that the

order “determined that this golf cart was a motor vehicle” and its general-

liability policy did not cover claims arising from motor-vehicle accidents. The

3

Discovery in this suit and in Flores’s suit against the School

District produced additional information about the accident. DeLaGarza

worked for the School District as a certified athletic trainer, and Alexis

was a high-school student who assisted DeLaGarza as part of her

school’s sports-medicine student-trainer program. On the day of the

accident, Alexis and another student trainer were helping DeLaGarza

transport equipment from the school’s field house to a football field.

With DeLaGarza driving the “golf cart” and the students as passengers,

they made several round trips, driving on sidewalks, the parking area,

an on-campus road, the bus-loading area, and the running track. Alexis

testified that DeLaGarza drove the cart “as fast as it could go” and at

one point “jerk[ed] the [steering] wheel to the left,” throwing Alexis from

the vehicle onto the track. DeLaGarza denied that he was driving fast

or that he turned recklessly. In any event, Alexis tore an anterior

cruciate ligament, underwent surgery, and developed an infection that

required her to be hospitalized for several weeks.

School District then re-urged its demand for a defense and indemnity from the

Insurance Fund, but the Insurance Fund again denied the demand and filed

this suit.

The School District later asserted third-party claims against the TAPS

Fund in this suit, but ultimately dismissed those claims after those parties

reached a settlement. When the Insurance Fund learned that the TAPS Fund

had paid to settle the School District’s claims, the Insurance Fund obtained

leave to amend its pleadings to assert the “one-satisfaction rule,” arguing that

it was “entitled to a credit and offset for the full amount” the TAPS Fund had

paid to the School District. The Insurance Fund argues that the trial court

erred by failing to grant that credit, but we need not reach that issue in light

of our holding that the Insurance Fund’s policy does not provide coverage for

Flores’s claims. The TAPS Fund is not a party to this appeal.

4

Discovery also produced additional details about the “golf cart”

DeLaGarza was driving. It was “an older model, electric type commonly

seen on golf courses,” except that it was modified by adding a “wooden

bed” or “platform” to the rear, to hold coolers and other equipment and

supplies. It was a “normal golf cart you would see at a golf course,” was

“not street legal,” and was “used only on campus property, mainly from

the field house to the athletic fields. It travel[ed] mainly on sidewalks,

short internal streets, parking lots and athletic fields and tracks.” “Any

other use of the golf cart was incidental.”

While this case was pending, the court hearing Flores’s suit

against the School District conducted a bench trial, found the School

District liable for Alexis’s injuries, and entered a final judgment

ordering the School District to pay Flores $100,000, the maximum

amount allowed under the Texas Tort Claims Act. See TEX. CIV. PRAC. &

REM. CODE § 101.023(b). Meanwhile, in this case, the Insurance Fund

and the School District filed competing summary-judgment motions

addressing both the duty to defend and the duty to indemnify. 2 Both

2 The procedural background is actually more complicated and involved

several different summary-judgment motions. The Insurance Fund initially

filed a motion seeking summary judgment that it owed no duty to defend or

indemnify the School District. The trial court entered a “final order” denying

that motion and dismissing the Insurance Fund’s claims. The Insurance Fund

appealed, but the court of appeals dismissed the appeal for want of jurisdiction,

holding that the “final judgment” was not final because it did not dispose of the

parties’ claims for attorney’s fees. On remand, the Insurance Fund filed a

second summary-judgment motion, again addressing both the duty to defend

and the duty to indemnify. The School District then filed its counter-claim for

declaratory relief and its own summary-judgment motion addressing only the

duty to defend. After the trial court denied the Insurance Fund’s second

summary-judgment motion, the School District filed a combined traditional

5

parties relied on the insurance policy and on Flores’s petition in the

underlying suit. The School District also filed and relied on additional

documents, including (1) deposition excerpts regarding the “golf cart”

from which Alexis was thrown, (2) print-outs of portions of the website

of E-Z-Go, a golf-cart manufacturer, and (3) a Wall Street Journal article

entitled “Invasion of the Golf Carts; As Electric Vehicles Migrate Onto

Public Streets, Should we be Worried?”

The trial court determined as a matter of law that the policy

requires the Insurance Fund to defend and indemnify the School

District. In a series of orders, it denied the Insurance Fund’s summary-

judgment motions, granted the School District’s motions, and entered a

final judgment requiring the Insurance Fund to pay the School District

the costs it incurred in defending Flores’s suit and the $100,000 it paid

to satisfy the judgment in that suit, plus post-judgment interest. The

Insurance Fund appealed, and the court of appeals reversed, holding

that neither party was entitled to summary judgment on either the duty

to defend or the duty to indemnify. 628 S.W.3d 486, 496 (Tex. App.—

Corpus Christi–Edinburg 2019).

On the duty to defend, the appellate court first held that it could

consider extrinsic evidence (including the testimony regarding the golf

cart involved in Alexis’s accident, the E-Z-Go website, and the Wall

Street Journal article) because the evidence was relevant only to the

insurance-coverage dispute (that is, whether a “golf cart” may qualify as

and no-evidence motion for summary judgment addressing both the duty to

defend and the duty to indemnify. The Insurance Fund then filed a motion for

reconsideration of its second summary-judgment motion or, alternatively, a

third motion for summary judgment.

6

an “auto”) and not relevant to the merits of Flores’s claims against the

School District. Id. at 494. Based on this holding, the court concluded

the trial court correctly denied the Insurance Fund’s summary-

judgment motion because the evidence established that “the term ‘golf

cart’ has an expanded meaning in today’s lexicon,” such that it may

include vehicles that are designed for travel on public roads. Id. at 495.

But the court nevertheless concluded that the trial court erred by

granting the School District’s summary-judgment motion because the

extrinsic evidence “clearly raised a material fact question about the

design of the golf cart” from which Alexis was thrown. Id. at 496. And

finally, because the Insurance Fund had not relied on extrinsic evidence

to support its summary-judgment motion, the court declined to “decide

whether the extrinsic evidence in this case conclusively precludes

coverage.” Id. (emphasis added).

On the duty to indemnify, the court of appeals held that the

School District could not obtain a no-evidence summary judgment

because it bore the burden of proving that the “golf cart” Alexis was

thrown from was an “auto,” rather than “mobile equipment,” and the

evidence created a genuine issue on that fact. Id. at 493–94.

Concluding that neither party carried its summary-judgment

burden on either the duty to defend or the duty to indemnify, the court

of appeals reversed the trial court’s judgment and remanded the case to

that court. The School District petitioned this Court for review, but the

Insurance Fund did not.

7

II.

Duties to Defend and Indemnify

The School District raises two issues in this Court, one addressing

the Insurance Fund’s duty to defend and one addressing its duty to

indemnify. The duty to defend, which “is a creature of contract,”

generally requires a liability insurer “to defend its insured against

claims or suits seeking damages covered by the policy.” Loya Ins. Co. v.

Avalos, 610 S.W.3d 878, 880–81 (Tex. 2020). The duty to indemnify,

which also arises from the contract’s terms, requires the insurer “to pay

all covered claims and judgments against [the] insured.” D.R. Horton-

Tex., Ltd. v. Markel Intern. Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009).

“Whether a claim triggers an insurer’s duty to defend and whether a

claim eventually is covered or excluded for purposes of indemnity are

different questions.” Gilbert Tex. Const., L.P. v. Underwriters at Lloyd’s

London, 327 S.W.3d 118, 133 (Tex. 2010). The “distinct and separate

duties,” Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 822 (Tex.

1997), are not interdependent, see King v. Dall. Fire Ins. Co., 85 S.W.3d

185, 187 (Tex. 2002), and “are rarely coextensive,” GuideOne Elite Ins.

Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 310 (Tex. 2006).

Because the two duties “differ in scope, they are invoked under different

circumstances.” Id.

We have held that a “plaintiff’s factual allegations that

potentially support a covered claim [are] all that is needed to invoke the

insurer’s duty to defend[]; whereas, the facts actually established in the

underlying suit control the duty to indemnify.” Id. So depending on the

factual allegations and the actual facts, “an insurer may have a duty to

defend but, eventually, no duty to indemnify.” Farmers Tex. Cnty. Mut.

8

Ins. Co. v. Griffin, 955 S.W.2d 81, 82 (Tex. 1997). Conversely, “an insurer

may have a duty to indemnify its insured even if the duty to defend

never arises.” D.R. Horton-Tex., 300 S.W.3d at 741. We thus address the

duties separately here, beginning with the duty to defend.

III.

The Duty to Defend

We held long ago that the duty to defend depends not “on what

the facts are or what might finally be determined to be the facts,” but

“only on what the facts are alleged to be.” Heyden Newport Chem. Corp.

v. S. Gen. Ins. Co., 387 S.W.2d 22, 25 (Tex. 1965). To determine whether

the duty existed, we considered only the allegations made within the

petition in the underlying lawsuit and the terms of the insurance policy,

“without reference to the truth or falsity of such allegations and without

reference to what the parties know or believe the true facts to be, or

without reference to a legal determination thereof.” Id. at 24; see also

Argonaut Sw. Ins. Co. v. Maupin, 500 S.W.2d 633, 635–36 (Tex. 1973).

Under this “eight-corners” or “complaint-allegation” rule, 3 the

insurer has a duty to defend if the underlying petition alleges facts that

fall within the scope of the insurance policy’s coverage. King, 85 S.W.3d

at 187. We have applied this rule somewhat liberally in favor of the

insured by resolving “all doubts regarding the duty to defend in favor of

3 The “eight-corners” label derives from the fact that the “four corners”

of “only two documents are ordinarily relevant to the determination of the duty

to defend: the policy and the pleadings of the third-party claimant.” GuideOne,

197 S.W.3d at 308. The “complaint-allegation” label derives from the

requirement that courts determine the duty to defend by looking only to the

allegations in the plaintiff’s complaint or petition, as opposed to evidence

regarding the actual facts. Trinity Universal, 945 S.W.2d at 821.

9

the duty,” id., and by recognizing the duty if the petition alleges facts

that “potentially support a covered claim,” GuideOne, 197 S.W.3d at 310

(emphasis added).

We recently recognized a narrow exception to the eight-corners

rule, allowing courts to consider evidence that the insured colluded with

the plaintiff in the underlying suit to fraudulently create coverage that

otherwise would not exist. Loya, 610 S.W.3d at 881–82. Meanwhile,

other courts have addressed a broader exception, which the United

States Court of Appeals for the Fifth Circuit described as allowing courts

to consider extrinsic evidence “when it is initially impossible to discern”

from the eight corners of the policy and the underlying petition “whether

coverage is potentially implicated and when the extrinsic evidence goes

solely to a fundamental issue of coverage which does not overlap with

the merits of or engage the truth or falsity of any facts alleged in the

underlying case.” Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d

523, 531 (5th Cir. 2004); see also Richards v. State Farm Lloyds, 597

S.W.3d 492, 497 (Tex. 2020) (acknowledging the Northfield exception’s

“widespread use”).

In a separate case we also decide today, we approve something

like this broader exception, holding for the first time that “Texas law

permits consideration of evidence under a standard similar to that

articulated in Northfield.” See Monroe v. BITCO, — S.W.3d —, 2022 WL

—, at *— (Tex. Feb. 11, 2022). We explain in Monroe that the eight-

corners rule “remains the initial inquiry to be used to determine whether

a duty to defend exists.” Id. at ___. But we conclude in Monroe that

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courts may consider extrinsic evidence, in addition to the policy and the

underlying petition,

if the underlying petition states a claim that

could trigger the duty to defend, and the

application of the eight-corners rule, due to a

gap in the plaintiff’s pleading, is not

determinative of whether coverage exists, . . .

provided the evidence (1) goes solely to an

issue of coverage and does not overlap with

the merits of liability, (2) does not contradict

facts alleged in the pleading, and (3)

conclusively establishes the coverage fact to

be proved.

Id. at ___.4

The court of appeals relied on the Northfield exception in this

case, considering extrinsic evidence regarding the “golf cart” from which

Alexis was thrown as well as “golf carts” in general, and concluded that

some “golf carts” are designed for use on public roads but a fact issue

exists as to whether this accident involved such a “golf cart.” 628 S.W.3d

at 495. The School District argues the court of appeals erred by

considering extrinsic evidence. According to the School District, because

Flores’s petition referred only to a “golf cart” without providing any

additional details, and because the term “golf cart” could “potentially”

4 We explained in Monroe that this exception differs from the exception

as the Fifth Circuit described it in Northfield in that (1) the exception applies

only if the underlying petition does not “contain the facts necessary to resolve

the question of whether the claim is covered,” rather than “if it is initially

impossible to discern from the pleadings and policy ‘whether coverage is

potentially implicated,’” (2) the exception does not require that the extrinsic

evidence relate to a “fundamental” coverage issue, and (3) the extrinsic

evidence must conclusively establish the coverage fact at issue. Monroe, —

S.W.3d at ___ (quoting Northfield, 363 F.3d at 531).

11

refer to vehicles that are designed for travel on public roads, the

Insurance Fund had a duty to defend regardless of what any extrinsic

evidence might reveal about the golf cart actually involved in the

accident. The Insurance Fund, in turn, urges us to adopt the Northfield

exception and approve the court of appeals’ consideration of extrinsic

evidence.5

Applying the eight-corners rule, we conclude that Flores’s petition

did not allege a claim for which the policy provided coverage. And we

further conclude that the Monroe exception to the eight-corners rule

does not apply in this case.

5 Initially, the Insurance Fund argues that the School District waived

any complaint about the court of appeals’ consideration of extrinsic evidence

because the School District filed such evidence in support of its summary-

judgment motion and thereby “opened the door to the introduction of

controverting evidence.” In fact, the Insurance Fund contends that this Court

lacks jurisdiction over the School District’s appeal because “a party may not

complain on appeal of the improper admission of evidence if the complaining

party introduced the same evidence or evidence of a similar character.” Serv.

Corp. Int’l v. Guerra, 348 S.W.3d 221, 238 (Tex. 2011). We disagree that any

such waiver would affect our jurisdiction, which extends to any “appealable

order or judgment of the trial courts if the court determines that the appeal

presents a question of law that is important to the jurisprudence of the state.”

TEX. GOV’T CODE § 22.001(a). The School District presented to this Court a

question of law important to the state’s jurisprudence, and thus established

this Court’s jurisdiction over the appeal. Whether procedural hurdles prevent

us from addressing the question does not affect our jurisdiction. See Hughes v.

Tom Green County, 573 S.W.3d 212, 216 (Tex. 2019); see also TEX. R. APP. P.

25.1(b) (“The filing of a notice of appeal by any party invokes the appellate

court’s jurisdiction over all parties to the trial court’s judgment or order

appealed from. Any party’s failure to take any other step required by these

rules, including the failure of another party to perfect an appeal . . . , does not

deprive the appellate court of jurisdiction but is ground only for the appellate

court to act appropriately, including dismissing the appeal.”).

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A. The eight-corners rule

Consistent with today’s decision in Monroe, our “initial inquiry”

is whether Flores’s petition states a claim that could trigger the duty to

defend under the eight-corners rule. Monroe, — S.W.3d at ___. We

conclude it did not.

Flores’s petition alleged that Alexis’s injuries resulted from the

negligent use of a “golf cart.” The term “golf cart” does not appear within

the insurance policy. As with any other contract, see Kelley–Coppedge,

Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998) (“[W]e

interpret insurance policies in Texas according to the rules of contract

construction.”), we determine the meaning of an undefined term as used

in an insurance policy by applying its “ordinary and generally accepted

meaning,” as construed “in context and in light of the rules of grammar

and common usage,” RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113,

118 (Tex. 2015). Here, however, the question involves the meaning of a

term used in a pleading (Flores’s petition), not a term used in the

insurance policy. Nevertheless, because our objective in both instances

is to construe the meaning of an undefined term as used within a legal

context, we will discern and apply the common, ordinary meaning of the

term “golf cart,” in light of the context of its use within Flores’s petition.

To determine the common, ordinary meaning of undefined terms

used in contracts, statutes, and other legal documents, “we typically look

first to their dictionary definitions and then consider the term’s usage

in other statutes, court decisions, and similar authorities.” Tex. State

Bd. of Examiners of Marriage & Fam. Therapists v. Tex. Med. Ass’n, 511

13

S.W.3d 28, 35 (Tex. 2017). Considering these sources here, we conclude

the term “golf cart” does not refer to vehicles designed for travel on

public roads.

Dictionaries consistently define the term “golf cart” to refer to a

motorized cart designed to transport golfers around a golf course. See

Golf cart, DICTIONARY.COM, https://www.dictionary.com/browse/golf-cart

(last visited Feb. 2, 2022) (defining “golf cart” to mean “a small, battery-

powered, three- or four-wheel vehicle used for transporting one or two

golfers and their equipment around a golf course”); Golf cart, WEBSTER’S

9TH NEW COLLEGIATE DICTIONARY 538 (2003) (defining “golf cart” to

mean “a motorized cart for carrying a golfer and his equipment over a

golf course - called also golf car”); Golf cart, MERRIAM-WEBSTER.COM,

https://www.merriam-webster.com/dictionary/golf%20cart (last visited

Feb. 2, 2022) (defining “golf cart” to mean “a motorized cart for carrying

golfers and their equipment over a golf course”); Golf cart,

COLLINSDICTIONARY.COM,

https://www.collinsdictionary.com/dictionary/english/golf-cart (last

visited Feb. 2, 2022) (defining “golf cart” to mean “a small, electric,

carlike vehicle designed to carry two golfers and their golf clubs around

a golf course”).

In the same way, Texas statutes define the term “golf cart” to

mean “a motor vehicle designed by the manufacturer primarily for use

on a golf course.” TEX. TRANSP. CODE § 551.401. By this definition, our

statutes carefully distinguish the term “golf cart” from terms describing

other types of vehicles and devices, including an “electric personal

14

assistive mobility device,”6 a “neighborhood electric vehicle,”7 a “motor-

assisted scooter,”8 a “plug-in hybrid motor vehicle,”9 an “all-terrain

6 See TEX. TRANSP. CODE § 551.201 (defining “electric personal assistive

mobility device” to mean “a two non-tandem wheeled device designed for

transporting one person that is: (1) self-balancing; and (2) propelled by an

electric propulsion system with an average power of 750 watts or one

horsepower”).

7 See id. § 551.301 (defining “neighborhood electric vehicle” to mean “a

vehicle that can attain a maximum speed of 35 miles per hour on a paved level

surface and otherwise complies with Federal Motor Vehicle Safety Standard

500 (49 C.F.R. Section 571.500)”); see also TEX. GOV’T CODE § 2158.001(5)

(defining “neighborhood electric vehicle” to mean “a motor vehicle that: (A) is

originally manufactured to meet, and does meet, the equipment requirements

and safety standards established for ‘low-speed vehicles’ in Federal Motor

Vehicle Safety Standard 500 (49 C.F.R. Section 571.500); (B) is a slow-moving

vehicle, as defined by Section 547.001, Transportation Code, that is able to

attain a speed of more than 20 miles per hour but not more than 25 miles per

hour in one mile on a paved, level surface; (C) is a four-wheeled motor vehicle;

(D) is powered by electricity or alternative power sources; (E) has a gross

vehicle weight rating of less than 3,000 pounds; and (F) is not a golf cart”)

(emphasis added); TEX. HEALTH & SAFETY CODE § 392.001(8) (same).

8 See TEX. TRANSP. CODE § 551.351(1) (defining “motor-assisted scooter”

to mean “a self-propelled device with: (i) at least two wheels in contact with the

ground during operation; (ii) a braking system capable of stopping the device

under typical operating conditions; (iii) a gas or electric motor not exceeding

40 cubic centimeters; (iv) a deck designed to allow a person to stand or sit while

operating the device; and (v) the ability to be propelled by human power alone,”

but not including “a pocket bike or a minimotorbike”).

9 See TEX. GOV’T CODE § 2158.001(6) (defining “[p]lug-in hybrid motor

vehicle” to mean “a vehicle that: (A) draws motive power from a battery with a

capacity of at least four kilowatt-hours; (B) can be recharged from an external

source of electricity for motive power; and (C) is a light-duty motor vehicle

capable of operating at highway speeds, excluding golf carts and neighborhood

electric vehicles” (emphasis added)).

15

vehicle,”10 a “sand rail,”11 a “recreational off-highway vehicle,”12 a

“utility vehicle,”13 and other types of “off-highway vehicles.”14 Unlike

these types of vehicles, and consistent with the dictionary definitions,

our statutes use the term “golf cart” to refer to a vehicle designed

“primarily for use on a golf course.” Id.

10 See TEX. TRANSP. CODE § 551A.001(1) (defining “[a]ll-terrain vehicle”

to mean “a motor vehicle that is: (A) equipped with a seat or seats for the use

of: (i) the rider; and (ii) a passenger, if the motor vehicle is designed by the

manufacturer to transport a passenger; (B) designed to propel itself with three

or more tires in contact with the ground; (C) designed by the manufacturer for

off-highway use; (D) not designed by the manufacturer primarily for farming

or lawn care; and (E) not more than 50 inches wide”).

11 See id. § 551A.001(3) (defining “[s]and rail” to mean “a vehicle, as

defined by Section 502.001, that: (A) is designed or built primarily for off-

highway use in sandy terrains, including for use on sand dunes; (B) has a

tubular frame, an integrated roll cage, and an engine that is rear-mounted or

placed midway between the front and rear axles of the vehicle; and (C) has a

gross vehicle weight, as defined by Section 541.401, of: (i) not less than 700

pounds; and (ii) not more than 2,000 pounds”).

12 See id. § 551A.001(5) (defining “[r]ecreational off-highway vehicle” to

mean “a motor vehicle that is: (A) equipped with a seat or seats for the use of:

(i) the rider; and (ii) a passenger or passengers, if the vehicle is designed by the

manufacturer to transport a passenger or passengers; (B) designed to propel

itself with four or more tires in contact with the ground; (C) designed by the

manufacturer for off-highway use by the operator only; and (D) not designed

by the manufacturer primarily for farming or lawn care”).

13 See id. § 551A.001(6) (defining “[u]tility vehicle” to mean “a motor

vehicle that is not a golf cart, as defined by Section 551.401, or lawn mower

and is: (A) equipped with side-by-side seating for the use of the operator and a

passenger; (B) designed to propel itself with at least four tires in contact with

the ground; (C) designed by the manufacturer for off-highway use only; and (D)

designed by the manufacturer primarily for utility work and not for

recreational purposes” (emphasis added)).

14 See id. § 551A.001(1-d) (defining “[o]ff-highway vehicle” to mean “(A)

an all-terrain vehicle or recreational off-highway vehicle; (B) a sand rail; or (C)

a utility vehicle”).

16

The School District notes, however, that although our statutes

narrowly define the term “golf cart” and generally prohibit registering a

“golf cart for operation on a highway,” TEX. TRANSP. CODE § 551.402(a),

they do permit “golf carts” to be operated in certain master-planned

communities and for limited distances on certain low-speed highways

“for transportation to and from a golf course,” id. § 551.403(a)(1) & (3),

(b).15 And they also permit certain municipalities and counties to allow

“golf carts” to be operated on low-speed highways for any purpose, so

long as they are equipped with headlamps, taillamps, reflectors, a

parking brake, and mirrors. Id. §§ 551.404, .4041. And several other

statutes recognize that “golf carts” may be operated on highways under

certain other circumstances and for other specified purposes. 16

15See also id. §§ 551.4031 (authorizing counties, municipalities, and the

Texas Department of Transportation to prohibit such operation of a golf cart

on a highway based on a determination “that the prohibition is necessary in

the interest of safety”), 601.052(a)(2-a) (providing that the statutory

requirement of liability insurance does not apply to “a golf cart that is operated

only as authorized by Section 551.403”).

16 See, e.g., id. §§ 547.703(d) (requiring a golf cart “operated at a speed

of not more than 25 miles per hour” to “display a slow-moving-vehicle emblem

when it is operated on a highway”), 551.452(a) (permitting the Texas

Department of Motor Vehicles to “issue distinguishing license plates” for a golf

cart “operated by a motor carrier for the purpose of picking up and delivering

mail, parcels, and packages,” if the golf cart is “equipped with headlamps,

taillamps, reflectors, a parking brake, and mirrors, in addition to any other

equipment required by law”), .453 (permitting motor carriers to operate golf

carts bearing such distinguishing license plates “on a public highway that is

not an interstate or a limited-access or controlled-access highway and that has

a speed limit of not more than 35 miles per hour”); .455 (permitting

municipalities and counties to allow motor carriers to operate golf carts

bearing such distinguishing license plates for such purpose “on all or part of a

public highway that: (1) is in the corporate boundaries of the municipality; and

(2) has a speed limit of not more than 35 miles per hour”).

17

According to the School District, these statutes demonstrate that

the term “golf cart” refers to a vehicle that may be “designed for travel

on public roads,” and thus may constitute an “auto” as the insurance

policy defines that term. We disagree. Although these statutes allow a

“golf cart” to be operated on a public road under certain circumstances,

they do not demonstrate that the term “golf cart” includes vehicles that

are designed to be operated on such roads. To the contrary, the extensive

legislation permitting “golf carts” to be operated on public roads under

limited circumstances delineates the exception, not the rule; the

divergence, not the definition. It merely permits a “golf cart”—which it

describes as a vehicle designed “primarily for use on a golf course,”

consistent with the dictionary definitions—to be used on a public road

under limited circumstances.

In addition to the term’s dictionary and statutory definitions, we

find guidance in the way courts from other jurisdictions have

consistently used and construed the term “golf cart,” specifically, to refer

to a vehicle designed for use on a golf course, and not to a vehicle

designed for travel on public roads.17 We agree: the common, ordinary

17 See Progressive Mountain Ins. Co. v. Graybeal, No. 2:11-CV-00176-

WCO, 2012 WL 13018492, at *7 (N.D. Ga. Sept. 20, 2012) (holding that a “golf

cart” was “simply” not a “vehicle ‘designed for operation principally on public

roads’ within the plain meaning of the Policy language”); State Farm Mut.

Auto. Ins. Co. v. Baldassini, 909 F. Supp. 2d 1363, 1367, 1369 (S.D. Fla. 2012),

aff’d, 545 Fed. Appx. 842 (11th Cir. 2013) (holding that insurance policy’s

definition of “car” as “a land motor vehicle with four or more wheels, which is

designed for use mainly on public roads” “unambiguous[ly]” did not include golf

carts, noting that evidence that golf carts may be used on public roads “on a

limited basis” demonstrates that they were not designed for that main purpose,

and stating that city regulations permitting golf carts on roads “shed[] no light”

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meaning of the term “golf cart” necessarily refers to a cart designed for

use on a golf course, not for travel on public roads.

Applying the eight-corners rule, we conclude that the Insurance

Fund had no duty to defend the School District against Flores’s claims

because Flores’s allegation that Alexis was “thrown from a golf cart” did

on the manufacturer’s “intentions when it designed the [golf cart]”); Bailey v.

Netherlands Ins. Co., 615 F. Supp. 2d 1332, 1338 (M.D. Fla. 2009) (“The Court

finds that the golf cart is not an ‘auto’ under the Subject Policy [containing an

identical definition of ‘auto’ as in this case] because it is not designed to be

operated on public roads.”); Dowdle v. Miss. Farm Bureau Mut. Ins. Co., 697

So. 2d 788, 791 (Miss. 1997) (upholding summary judgment on grounds that

“golf carts are recreational vehicles ‘designed for use principally off public

roads’ and are thus excluded under the terms of the [uninsured motorist]

policy” at issue); Truck Ins. Co. v. Corraro, No. NNHCV186082179S, 2019 WL

4898705, at *5 (Conn. Super. Ct. Sept. 6, 2019) (“Clearly, golf carts, which are

designed to be used on golf courses in connection with the recreational sport of

golf, are designed for use off public roads.”); Andrade v. Tradition Golf Club of

Wallingford, LLC, No. NNHCV136039774S, 2014 WL 486818, at *5 (Conn.

Super. Ct. Jan. 9, 2014) (holding that golf cart was not “motor vehicle” under

insurance policy defining “motor vehicle” to exclude “any vehicle or equipment

. . . [d]esigned mainly for use off public roads while not on public roads”);

Herring v. Horace Mann Ins. Co., 795 So. 2d 209, 211 (Fla. Dist. Ct. App. 2001)

(rejecting insurer’s argument that “golf carts are motor vehicles because they

may be used on public roads and because, if properly equipped, golf carts are

capable of being licensed for use on the public highways” because “[a] golf cart,

patently, is designed for operation at low speed on a golf course or for similar

sporting or recreational purposes, or for transportation on private property”);

East v. Labbe, 735 A.2d 371, 373 (Conn. Super. Ct. 1998) (“[T]his golf cart

would not be a motor vehicle for the purposes of General Statutes § 14–293a,

as the vehicle is not suitable for operation on the highway because it is not

designed for such use.”), aff’d, 735 A.2d 370 (Conn. App. Ct. 1999) and 746 A.2d

751 (Conn. 2000); Progressive Cas. Ins. Co. v. Dunn, 665 A.2d 322, 326 (Md.

App. 1995) (“Any engine-driven wheeled vehicle—even an airplane or a

massive earth-mover—can be driven on streets and roads. The test is not

ultimate possibility, however, but whether the vehicle is intended for that

mode of travel. A golf cart, of the kind described in this case, is certainly not

intended for such travel.”).

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not include an allegation that she was thrown from a “vehicle designed

for travel on public roads.”

B. Extrinsic evidence under Monroe

Under today’s decision in Monroe, we must apply the eight-

corners rule to determine whether the Insurance Fund had a duty to

defend the School District against Flores’s claim, and may not consider

extrinsic evidence unless: (1) Flores’s petition alleged “a claim that could

trigger the duty to defend,” (2) a “gap” in her petition leaves us unable

to determine whether coverage exists by applying the eight-corners rule,

(3) the facts the extrinsic evidence would relate to solely concern the

coverage issue and do not overlap with the liability merits, (4) those facts

would not contradict facts alleged in Flores’s petition, and (5) the

extrinsic evidence “conclusively establishes the coverage fact to be

proved.” Monroe, — S.W.3d at ___.

The “fact” at issue here is whether the vehicle from which Alexis

was thrown was “designed for travel on public roads.” We agree with the

court of appeals that this fact relates solely to the coverage issue and

does not overlap with the merits of Flores’s claims: the School District

was liable if DeLaGarza negligently operated the “golf cart” regardless

of whether the “golf cart” was designed for travel on public roads.

But the other Monroe factors do not support the consideration of

extrinsic evidence in this case. This is because a “golf cart,” as we have

explained, is designed for travel on a golf course and not on public roads.

By alleging that Alexis was thrown from a “golf cart,” Flores’s petition

left no “gap” that would prevent us from determining whether the duty

exists. Mere disagreements about the common, ordinary meaning of an

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undefined term do not create the type of “gap” Monroe requires. And in

the absence of such a gap, any extrinsic evidence that Alexis was

actually thrown from something other than a “golf cart” would

contradict the facts alleged in Flores’s petition. Id. at ___. If Flores had

alleged only that Alexis was thrown from a “vehicle,” without any

indication of the type of vehicle or whether it was designed for travel on

public roads, a gap would exist that prevents us from determining the

duty to defend based solely on the petition’s allegations and the policy’s

provisions, and extrinsic evidence proving that the vehicle was or was

not designed for use on public roads would not contradict the general

allegation that the accident involved a “vehicle.” But by pleading that

the vehicle was a “golf cart,” the petition provided all the information

necessary to determine the duty to defend. As a result, the Monroe

exception does not apply, and the eight-corners rule governs the duty to

defend in this case.

C. “Sources” other than “extrinsic evidence”

The School District contends that the exhibits it filed in this

case—particularly the print-outs from the E-Z-Go website and the Wall

Street Journal article—do not constitute “extrinsic evidence” but

instead, like dictionaries, statutes, and court opinions, are permissible

even under the eight-corners rule as mere “source[s] that would aid the

Court in understanding the meanings and usages of words.” We need

not decide whether these “sources” constitute the kind of “extrinsic

evidence” the eight-corners rule bars, however. Even if we do consider

these sources, they do not support the School District’s contentions

regarding the common, ordinary meaning of the term “golf cart.”

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The E-Z-Go website print-outs depict and describe vehicles that

look very much like “golf carts” but are designed for travel on public

roads. But the website nowhere uses the term “golf cart” to refer to these

vehicles. To the contrary, the website provides four separate main

links—labeled “Personal,” “Golf,” “Parts & Accessories,” and “About E-

Z-Go”—and the pages provided by the School District depicting vehicles

designed for travel on public roads appear under the “Personal” link, not

under the “Golf” link. Consistent with the manufacturer’s categorization

of these “personal” vehicles, the website never refers to them as “golf

carts,” but instead refers to them only by their model names (“Freedom

RXV,” “Express S6,” and “2Five”) or as a “low speed vehicle.” Nothing in

the website print-outs indicates that the manufacturer uses the term

“golf cart” to refer to vehicles it designs for use on public roads.

Nor does the Wall Street Journal article establish that the term

“golf cart” includes vehicles designed for travel on public roads.

Although the article’s headline refers to the “Invasion of the Golf Carts,”

the article itself never refers to vehicles designed for travel on public

roads as “golf carts.” It refers to “golf-cart-like vehicles,” “souped-up golf

carts,” “electric cars,” “errand cars,” “city cars,” “low speed vehicles,” and

“neighborhood electric vehicles.” As previously mentioned, the

Transportation Code defines a “neighborhood electric vehicle”

separately from a “golf cart.” Compare TEX. TRANSP. CODE § 551.301

with id. §551.401. The only discussion of “golf carts” in the article notes

that people often operate golf carts “on low-speed roads within

communities that are built around golf courses” and occasionally—and

“sometimes illegal[ly]”—on “short errands” on public roads. The article’s

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distinction between the vehicles it discusses and “golf carts” is consistent

with the common, ordinary meaning provided in dictionaries and the

Texas statute.

Applying the eight-corners rule, we conclude the Insurance Fund

had no duty to defend the School District because Flores’s petition did

not allege a claim that could fall within the policy’s coverage for

liabilities resulting from the use of a vehicle designed for travel on public

roads. Although we disagree with the court of appeals’ reasoning, it

correctly reversed the summary judgment in favor of the School District

on the Insurance Fund’s duty to defend.

IV.

The Duty to Indemnify

Unlike the duty to defend, which depends on pleaded allegations,

“the facts actually established in the underlying suit control the duty to

indemnify.” GuideOne, 197 S.W.3d at 310). So to determine whether the

Insurance Fund had a duty to indemnify the School District against

Flores’s claims, we must consider not whether the term “golf cart” could

potentially include a vehicle designed for travel on public roads, but

whether the vehicle from which Alexis was actually thrown was

designed for travel on public roads.

The trial court held it was, granting summary judgment requiring

the Insurance Fund to indemnify the School District. The court of

appeals reversed, but mostly on a procedural technicality. Specifically,

the court of appeals determined that, on the duty to indemnify, the

School District had filed only a no-evidence summary-judgment motion,

thus placing the burden on the Insurance Fund to submit evidence

proving that the vehicle from which Alexis was thrown was not a

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“covered auto.” Because the insured bears the initial burden of proving

coverage under an insurance policy, see Gilbert, 327 S.W.3d at 124, the

court concluded that the School District could not rely on a no-evidence

motion to obtain summary judgment on that issue. 628 S.W.3d at 493–

94.

The School District argues that the court of appeals erred in this

holding because the coverage dispute in this case ultimately involves an

exclusion to the policy’s coverage, and the insurer—not the insured—

bears the burden of proving that an exclusion applies. See JAW The

Pointe, L.L.C. v. Lexington Ins. Co., 460 S.W.3d 597, 603 (Tex. 2015) (“To

avoid liability, the insurer then has the burden to plead and prove that

the loss falls within an exclusion to the policy’s coverage.”). The School

District notes that the policy defines “auto” to mean a vehicle “designed

for travel on public roads but does not include mobile equipment,” and

then defines “mobile equipment” to mean certain types of “land

vehicles,” including “[b]ulldozers, farm machinery, forklifts and other

vehicles designed for use principally off public roads.” [Emphases

added.] Characterizing the reference to “mobile equipment” as an

exclusion to the coverage the policy otherwise provides, the School

District argues that, to avoid summary judgment, the Insurance Fund

bore the burden to prove that the vehicle from which Alexis was thrown

was “mobile equipment” “designed for use principally off public roads.”

The court of appeals disagreed, holding that the policy’s reference

to “mobile equipment” constitutes part of the definition of the term

“auto” and thus part of the description of the policy’s coverage, rather

than an exclusion to that coverage. 628 S.W.3d at 493. We need not

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resolve that issue here, however, because we conclude that the

summary-judgment evidence conclusively established that the vehicle

from which Alexis was thrown was not “designed for travel on public

roads.” As explained, the policy defines “auto” to mean a vehicle

“designed for travel on public roads but does not include mobile

equipment.” Under this definition, a vehicle may be “designed for travel

on public roads” and yet not be an “auto” because it is also “designed for

use principally off public roads” (or it constitutes “mobile equipment” for

some other reason). But if it is not “designed for travel on public roads,”

it is not an “auto” regardless of whether it constitutes “mobile

equipment.”

Here, the evidence conclusively established that the vehicle from

which Alexis was thrown was not “designed for travel on public roads.”

The undisputed evidence established that it was “an older model,

electric type [golf cart] commonly seen on golf courses,” was a “normal

golf cart you would see at a golf course,” and was “not street legal.” The

School District asserts that some evidence establishes that the vehicle

was “actually used and routinely driven on public roads, including on

the day of this accident,” apparently referring to the route DeLaGarza

took from the field house to the football field where the accident

happened. But even assuming that route included “public roads” and

that the vehicle was “actually used and routinely driven” on them, that

does not establish that the vehicle was “designed for travel on public

roads.” Nothing in the record indicates or even suggests that the vehicle

was anything other than a “golf cart”—that is, “a motor vehicle designed

by the manufacturer primarily for use on a golf course.” T EX. TRANSP.

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CODE § 551.401. Because the School District failed to establish that the

vehicle from which Alexis was thrown was “designed for travel on a

public road,” and thus an “auto,” we conclude, albeit for different

reasons, that the court of appeals correctly reversed the summary

judgment in favor of the School District on the Insurance Fund’s duty to

indemnify.

V.

Conclusion and Disposition

On the duty to defend, we hold the trial court erred by granting

summary judgment for the School District because the allegation in

Flores’s pleading that Alexis was injured when she was thrown from a

“golf cart” did not assert a claim for damages “resulting from the

ownership, maintenance or use of a covered auto.” And on the duty to

indemnify, we hold that the trial court erred by granting summary

judgment for the School District because the summary-judgment

evidence did not conclusively establish that the vehicle from which

Alexis was thrown was a “covered auto.” We thus affirm the court of

appeals’ judgment reversing the trial court’s judgment, but for different

reasons.

Under our reasoning, the Insurance Fund would be entitled to a

summary judgment on both the duty to defend and the duty to

indemnify. The Insurance Fund filed motions for summary judgment on

both duties in the trial court and appealed the trial court’s denial of

those motions, but the court of appeals affirmed. 628 S.W.3d at 495. The

Insurance Fund requests in its brief that this Court reverse the court of

appeals’ judgment and render judgment in favor of the Insurance Fund,

but we cannot grant that relief because the Insurance Fund did not file

26

a petition for review in this Court. See TEX. R. APP. P. 53.1 (“A party who

seeks to alter the court of appeals’ judgment must file a petition for

review.”) We must therefore remand the case to the trial court in

accordance with the court of appeals’ judgment, which we hereby affirm.

Jeffrey S. Boyd

Justice

OPINION DELIVERED: February 11, 2022

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