OPINION
Appellants Thomas Carter, Mary Carter, and Ed Carter appeal from a take nothing summary judgment. In five points, the Carters argue that the trial court erred in granting State Farm’s summary judgment motion because (1) it lacked specificity; (2) it was based upon an incorrect legal premise; (3) State Fаrm did not conclusively establish the necessary factual predicate; (4) State Farm mischaracterized the Carters’ insurance code claims and failed to establish any basis for summary judgment on the claims actually pled by the Carters; and (5) the motion was granted as to Ed Carter and Mary Carter’s claims even though State Farm did not address their claims in its motion for summary judgment. We will affirm.
Factual and ProceduRal Background
On April 25, 1997, Thomas Carter, Kari Brunson, Jeff Goodman, Michelle Keeffe, and Craig Derrick were traveling west on 1-30 in an Isuzu Amigo. At the same time, Jennifer Puterbaugh was traveling west on 1-30 at a high rate of speed weaving through traffiс and struck the Isuzu from behind. The collision caused the death of Kari Brunson and injured the
On May 15, 1997, State Farm sent a letter to Thomas Carter’s attorney suggesting that the potential claimants to the Keeffe policy meet for a settlement conference. The attorney replied that a settlement conference was premature because Thomаs Carter and Jeff Goodman were still receiving medical treatment for the injuries they sustained and they did not yet know the extent of their damages. State Farm notified Carter’s attorney on June 9,1997, that State Farm had received a demand for $50,000 from Kari Brunson’s estate and that they had to decide that day whether or not to pay the demand. State Farm accepted the demand of Brunson’s estate and paid out policy limits of $50,000, leaving only $50,000 available for any remaining claims. State Farm notified the potential claimants of that settlement by letter.
Carter and Goodman then demanded $50,000 each to settle their claims. State Farm replied that it stood by its decision to pay Brunson’s estate $50,000 and again encouraged Carter and Goodman to participate in the settlement conference scheduled for August 29, 1997. At the conference, the attorney representing Carter refused to consider settling his claim for less than $50,000, and Goodman said he wanted no settlement on Keeffe’s policy, at that time, because he had uninsured motorist coverage under his own policy. State Farm settled Keeffe’s and Derrick’s claims by paying $35,000 to Keeffе and $10,000 to Derrick. State Farm then unconditionally tendered a check for $4,000 to Carter and a check for $1,000 to Goodman.
On May 1, 1999, the Carters filed suit alleging State Farm had breached the duty of good faith and fair dealing; violated insurance code article 21.21 and the Deceptive Trade Practices Act (DTPA); and breached the contract of insurance to which they were third party beneficiaries. State Farm filed a motion for summary judgment claiming it was entitled to judgment as a matter of law on each of the claims because State Farm had not violated any оf its contractual, statutory, or common-law duties toward Carter.
Standard of Review
In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c);
Calvillo v. Gonzalez,
In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the non-movant is accepted as true.
Harwell v. State Farm Mut. Auto. Ins. Co.,
The summary judgment will be affirmed only if the record establishes that the mov-ant has conclusively proved all essential elements of the movant’s cause of action or
The Evidence
In their first point, the Carters argue that the trial court erroneously granted State Farm’s motiоn for summary judgment because it lacked specificity. Nevertheless, State Farm’s motion specifically set out the grounds for which it is entitled to summary judgment. State Farm contended that there was no breach of contract; that there was no breach of the duty of good faith and fair dealing; and were no statutory violations. State Farm asserted that there was no breach of contract because State Farm’s settlement of the claims presented by Keeffe, Derrick, and Brunson’s estate were reasonable, even though the settlements depleted most of the uninsured motorist coverage available under Keeffe’s policy. The Carters urge us to consider only whether State Farm’s actions were reasonable as to the Carters’ claims, not whether State Farm reasonably settled the other claims. We cannot do that. An insurance company does not breach its contract by settling with covered persons, even when the settlement depletes or exhausts the policy proceeds.
Lane v. State Farm Mut. Auto. Ins. Co.,
Mоreover, State Farm asserted that there was no breach of the duty of good faith and fair dealing because State Farm’s settlement of the Keeffe, Derrick, and Brunson’s estate claims was reasonable. In response to State Farm’s motion for summary judgment, the Carters did not produсe evidence that State Farm breached the duty of good faith and fair dealing. In order to establish liability for breach of the duty of good faith and fair dealing Thomas Carter must show that State Farm denied or delayed payment of his claim when liability to pay was reasonably clear, аnd that State Farm knew or should have known it was reasonably clear.
Universe Life Ins. Co. v. Giles,
Finally, State Farm also presented evidence that negates the Carters’ extra-contractual claims. State Farm’s summary judgment motion asserted that its actions did not constitute violations of article 21.21 of the insurance code and the DTPA because the factual basis for the Carters’ statutory claims was the same as that used for the common law bad faith claim and should fail as a matter of law.
See Lane,
The Legal PREMISE
In their second point, the Carters argue that the trial court erroneously granted State Farm’s motion for summary judgment because it was based on an incorrect legal premise. The Carters assert that State Farm was relying on one of three alternative theories in its assertion that it breached no duty owed the Carters: the “we’ve fully performed” defense; the “we’re excused” defense; and the “we don’t have that duty” defense. The Carters cоntend that State Farm should have investigated their claim because investigation would have shown that State Farm’s settlements were not reasonable. However, settlements that result in the exhaustion of policy limits excuse further performance by the insurer on behalf of the other insureds.
See Am. States Ins. Co. of Tex. v. Arnold,
Factual PRedicate
In their third point, the Carters argue that the trial court erroneously granted State Farm’s motion for summary judgment becаuse State Farm did not meet its burden of conclusively establishing the necessary factual predicate. The Carters contend that even if the court finds that State Farm was excused from acting reasonably or did in fact act reasonably towards the Carters, State Farm still failed to conclusively establish that it acted reasonably towards the other claimants. It is clear that when an insurer can demonstrate that its settlements in one of several competing claims was reasonable, there is no violation even if the settlement exhausts the policy proceeds available for the other insureds.
Soriano,
Claim Characterization
In their fourth point, the Carters argue that the trial court erroneously granted State Farm’s motion for summary judgment on the insurance code claims because State Farm mischaracterized the Carters’ claims and thereafter failed to establish any basis for summary judgment on the claims actually pled by the Carters. The Carters state that State Farm mischarac-
The evidence establishes that State Farm offered to settle with Thomas Carter and that his attorney stated it was too early to settle. In addition, the uncontro-verted evidence establishes that, at the settlement conference, the Carters’ attorney refused to settle Thomas Carter’s claims for less than $50,000, the remainder of the policy limits, which would leave State Farm with no funds from Keeffe’s policy with which to settle with the remaining two claimants. We hold that State Farm did not violate article 21.21 sеction 4(10)(a)(vi) because it has established that it did not refuse or delay an offer of settlement. We overrule point four.
Ed and MaRY CarteR
In their final point, the Carters argue that the trial court erroneously granted State Farm’s motion for summary judgment as to Ed and Mary Carters’ claims against State Farm because State Farm did not address those claims in their motion. In their original petition, Ed, Mary, and Thomas Carter were all listed as the plaintiffs. Ed and Mary Carters’ claims, like Thomas Carter’s claims, arise out of the manner that State Farm settled the claims under Keeffe’s UM/UIM policy. The policy clearly stated that State Farm would “pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person.” (Emphasis omitted). However, Ed and Mary Carter listed their dаmages solely as the loss of consortium of their son, Thomas, due to the injuries he suffered in the accident. They could not list any bodily injuries that they sustained as a result of the accident and subsequent settlements because they were not involved in the accident. Their claims arise solely out of the bodily injuries sustained by Thomas Carter. Loss of consortium damages are not bodily injuries, and declaratory or summary judgments for insurers have been upheld in similar cases.
See McGovern v. Williams,
Conclusion
Having carefully considered all of Appellants’ points, we have overruled each. We affirm the trial court’s judgment.