Justice Green's Dissent in
U.S. Fidelity & Guaranty Co. v. Goudeau, No. 06-0987 (Tex. Dec. 19, 2008)(Brister)(same
insurer appearing in two capacities in single lawsuit)
USF&G never made any attempt to distinguish the identity or capacity of USF&G as
defendant from USF&G as intervenor, even after the Goudeaus specifically argued that
the defendant and intervenor are the same company and that the admissions of one
bind the other. As a result, the only conclusion to be had is that behind this intervenor
and defendant lies only one person with one interest: USF&G. Whatever dispute
there is between these two USF&G factions lies entirely within USF&G, and is not
deserving of individualized adjudication in our courts. The principles of fairness
inherent in our rules would not be promoted by allowing USF&G to litigate on summary
judgment a question that it had unequivocally admitted eleven months earlier, albeit
under a different fictional label. Thus, the admission extracted by the Goudeaus should
bind USF&G as both intervenor and defendant. Having admitted that Goudeau was
insured under the auto policy, I would affirm the judgment of the court of appeals and
hold that USF&G could not succeed on its motion for summary judgment.
UNITED STATES FIDELITY AND GUARANTY COMPANY v. LOUIS GOUDEAU; from Harris County; 1st district
(01-04-01168-CV, 243 SW3d 1, 08-31-06)
The Court reverses in part the court of appeals' judgment and renders judgment.
Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice Wainwright,
Justice Medina, and Justice Willett joined.
Justice Green delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Johnson joined.
Green Dissent in U.S. Fidelity & Guarantee Co. v. Goudeau (Tex. 2008)
Argued December 6, 2007
Justice Green, joined by Chief Justice Jefferson and Justice Johnson, dissenting.
Because I would not reach the issue of whether Louis Goudeau was occupying the vehicle when the
accident occurred, I dissent. In the trial court, the insurer admitted to the claimant that he was insured
under the policy. That admission binds the insurer even in an unusual case like this where the insurer
made the admission while purporting to act not as defendant, but as intervenor. Because such an
admission relieves the claimant’s burden of proving insured status, and prevents the insurer from
arguing otherwise, I would hold that the insurer’s motion for summary judgment should have been
United States Fidelity and Guaranty Company (USF&G) provided Advantage Motor, Inc.’s
commercial auto insurance policy, which included underinsured motorist coverage for Advantage’s
automobiles and persons “occupying a covered auto,” and also served as Advantage’s workers’
compensation insurer, which paid Goudeau more than $100,000 under the workers’ compensation
policy’s indemnity provisions. After Goudeau and his wife filed lawsuits against Alex Rodriguez and
USF&G, USF&G answered and denied that Goudeau was an insured under the auto policy. Then,
through separate counsel, USF&G intervened as the Goudeaus’ subrogee to assert claims for
reimbursement with respect to any amount recovered from Rodriguez or defendant USF&G. After
intervention, the Goudeaus served intervenor USF&G with requests for admissions. In its responses,
intervenor USF&G admitted that “Louis Goudeau is an insured for the purposes of underinsured
motorist benefits under USF&G Policy No. DRE3847700.”
The trial court later granted defendant USF&G’s motion for partial summary judgment against the
Goudeaus, rejecting their argument that one of the policy exclusions applied, but accepting their
argument that the auto policy did not insure Goudeau in the first place because Goudeau, who was
outside of the vehicle at the time of the collision, was not “occupying” a covered vehicle. The
Goudeaus settled with Rodriguez for his policy’s $20,000 limit, and the trial court entered an order
apportioning the settlement between the Goudeaus and intervenor USF&G.
The Goudeaus appealed, arguing that defendant USF&G’s summary judgment evidence failed to
prove that Goudeau was not “occupying” the covered vehicle, that defendant USF&G failed to
properly authenticate its summary judgment evidence, and that intervenor USF&G’s responses to the
requests for admission defeated defendant USF&G’s motion. Defendant USF&G reurged its insured-
status argument, as well as the policy exclusion argument. With respect to Louis Goudeau, the court
of appeals reversed, concluding that, “[v]iewing the evidence in the light most favorable to Louis, USF
& G—Defendant did not establish conclusively that Louis was not occupying a covered vehicle.” 243
S.W.3d at 9–10.
Texas Rule of Civil Procedure 198 allows a party to request “that the other party admit the truth of any
matter within the scope of discovery, including statements of opinion or of fact or of the application of
law to fact.” Tex. R. Civ. P. 198.1. Admissions produce two results: they relieve the requesting party’s
burden of proving the admitted matter and prevent the admitting party from disputing the same. See
Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989); Mendoza v. Fid. & Guar. Ins. Underwriters, Inc.,
606 S.W.2d 692, 694 (Tex. 1980); U.S. Fid. & Guar. Co. v. Carr, 242 S.W.2d 224, 228–29 (Tex. Civ.
App.—San Antonio 1951, writ ref’d).
As intervenor, USF&G unequivocally admitted that the USF&G auto policy insured Goudeau.
Because no effort was made to withdraw or limit that admission, Goudeau should prevail against the
intervenor on this question of insured status.
The operation of the relatively simple admissions rule is complicated by the fact that USF&G was
named as both the intervenor and the defendant, and now the defendant is being charged with the
intervenor’s admission. Although the intervenor and defendant were represented by separate
counsel, neither has ever attempted—either in the trial court or in these appellate proceedings—to
clarify this oddity of identification. Defendant USF&G’s motion for summary judgment noted that
Goudeau had received benefits from “the Intervenor in the case, also United States Fidelity and
Guaranty Company.” Throughout the appellate proceedings, defendant USF&G did not dispute that
the same company was litigating as both defendant and intervenor. USF&G’s only argument is that
the intervenor’s admissions cannot bind the defendant because the intervenor is not the same party
as the defendant. At trial, the Goudeaus did not formally challenge the propriety of USF&G’s
intervention, but the Goudeaus did argue that the intervenor and the defendant are the same
company, and that the admissions of USF&G while acting as intervenor bind USF&G while acting as
defendant. I agree.
No person may sue himself. United States v. Interstate Commerce Comm’n, 337 U.S. 426, 430
There is much argument with citation of many cases to establish the long-recognized general
principle that no person may sue himself. Properly understood the general principle is sound, for
courts only adjudicate justiciable controversies. They do not engage in the academic pastime of
rendering judgments in favor of persons against themselves.
Id. This rule stems from the well-established standing requirement of concrete adversity. See United
States v. Nixon, 418 U.S. 683, 692–97 (1974); United States v. Fed. Mar. Comm’n, 694 F.2d 793,
810 (D.C. Cir. 1982). As a result, “courts must look behind names that symbolize the parties to
determine whether a justiciable case or controversy is presented.” Interstate Commerce Comm’n,
377 U.S. at 430; accord United States v. Providence Journal Co., 485 U.S. 693, 708 n.11 (1988);
Nixon, 418 U.S. at 693. Although our admissions rule speaks in terms of each “party,” see Tex. R.
Civ. P. 198.1, our procedural rules as a whole are predicated on the assumption that a person can
serve only as one party in each lawsuit. To hold otherwise would invite our courts to decide cases
without the truly adverse litigants who are necessary to “sharpen the presentation of issues upon
which the [C]ourt so largely depends for illumination.” Massachusetts v. EPA, 127 S. Ct. 1438, 1453
(2007). Moreover, such an interpretation would disrupt the rules’ careful allotment of litigation
procedures and stand as an obstacle to a “just, fair, equitable and impartial adjudication.” Tex. R. Civ.
For the same reason that courts must “look behind names” to establish justiciability, Interstate
Commerce Comm’n, 377 U.S. at 430; accord Providence Journal Co., 485 U.S. at 708 n.11; Nixon,
418 U.S. at 693, the trial court here should have looked behind the party designations of “defendant”
and “intervenor” when it applied the admissions rule. We have consistently applied our rules of
procedure to discourage tactical gamesmanship, see State v. Lowry, 802 S.W.2d 669, 671 (Tex.
1991); Gutierrez v. Dallas Indep. Sch. Dist., 729 S.W.2d 691, 693 (Tex. 1987), and our admissions
rule is no exception, see County of Dallas v. Wiland, 216 S.W.3d 344, 355 n.46 (Tex. 2007). Our goal
in barring parties from introducing proof that contradicts an earlier admission is fairness: “[T]he courts
sense the fact that it would be as absurd, as it manifestly would be unjust, to allow a party to recover
after he has clearly and unequivocally sworn himself out of court.” Carr, 242 S.W.2d at 229 (quoting
Westbrook v. Landa, 160 S.W.2d 232, 233 (Tex. Civ. App.—San Antonio 1942, no writ)) (italics and
quotations omitted); see also Mendoza, 606 S.W.2d at 694.
The record here reflects just such a case. The pleadings of both the intervenor and the defendant are
consistently attributed to USF&G, and there is no indication of any real separation between the
USF&G that administers the auto policy and the USF&G that administers the workers’ compensation
policy. Although, as the Court points out, insurers may stand in different shoes or act in different
capacities, there is no indication that USF&G in this case is anything but a single entity with the power
to sue and be sued only in the name of USF&G. USF&G never made any attempt to distinguish the
identity or capacity of USF&G as defendant from USF&G as intervenor, even after the Goudeaus
specifically argued that the defendant and intervenor are the same company and that the admissions
of one bind the other. As a result, the only conclusion to be had is that behind this intervenor and
defendant lies only one person with one interest: USF&G. Whatever dispute there is between these
two USF&G factions lies entirely within USF&G, and is not deserving of individualized adjudication in
our courts. The principles of fairness inherent in our rules would not be promoted by allowing USF&G
to litigate on summary judgment a question that it had unequivocally admitted eleven months earlier,
albeit under a different fictional label. Thus, the admission extracted by the Goudeaus should bind
USF&G as both intervenor and defendant. Having admitted that Goudeau was insured under the auto
policy, I would affirm the judgment of the court of appeals and hold that USF&G could not succeed on
its motion for summary judgment. See Marshall, 767 S.W.2d at 700; Mendoza, 606 S.W.2d at 694;
Carr, 242 S.W.2d at 228–29.
Because USF&G is bound by its admission of Louis Goudeau’s insured status, I would not reach the
issue of whether Goudeau was “occupying” the vehicle within the meaning of the USF&G policy. I
therefore dissent from the Court’s judgment.
Paul W. Green
OPINION DELIVERED: December 19, 2008
 See Tex. Lab. Code § 417.001(b) (“If a benefit is claimed by an injured employee or a legal beneficiary of
the employee, the insurance carrier is subrogated to the rights of the injured employee and may enforce the
liability of the third party in the name of the injured employee or the legal beneficiary.”).
 The court of appeals affirmed the trial court’s grant of summary judgment as to Tasha Goudeau, 243 S.W.
3d at 5–6, and she does not appeal that decision.
 “[A] party relying upon an opponent’s pleadings as judicial admissions of fact must protect the record by
objecting to the introduction of controverting evidence and to the submission of any issue bearing on the facts
admitted.” Marshall, 767 S.W.2d at 700. The Goudeaus did just that in their reply to defendant USF&G’s
motion for summary judgment, arguing that USF&G was precluded from introducing evidence contrary to the
admission, and that the admission, at minimum, created a material issue of fact.
 See Tex. R. Civ. P. 60 (“Any party may intervene by filing a pleading, subject to being stricken out by the
court for sufficient cause on the motion of any party.”).
 Texas courts look to federal jurisprudence on issues of justiciability. See Neeley v. W. Orange-Cove
Consol. Indep. Sch. Dist., 176 S.W.3d 746, 774 (Tex. 2005).
 If the record were unclear, summary judgment for a movant in USF&G’s position would nonetheless be
improper because the litigant’s true identity is certainly a “material fact” under our summary judgment
jurisprudence. See Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005) (“In a summary judgment motion
brought under Texas Rule of Civil Procedure 166a(c), the moving party has the burden of showing that there
is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.”); see also City
of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005) (instructing that, to review a trial court’s grant of
summary judgment, we “examine the entire record in the light most favorable to the nonmovant, indulging
every reasonable inference and resolving any doubts against the motion”).