OPINION
This is аn appeal from a summary judgment granted appellee, Lumbermens Mutual Casualty Company. Appellant, Leeroy Coleman, sued appellee for breach of duty of good faith and fair dealing in the handling of his workers’ compensation claim.
Appellant alleges that he suffered almost total deafness in both ears on February 20, 1986, while employed with Petro Chemical Services. Before the accident, Petro Chеmical had purchased a workers’ compensation insurance policy from appellee. Following the accident, appellant states that he sought treatment from a Dr. Mindell, who determined that аppellant’s hearing loss could have occurred in the scope and course of his employment. Appellant was also examined by a Dr. Waldron, a physician chosen by appellee, who concluded that it was possible appellant’s hearing loss was sustained under his working conditions; however, because no previous hearing test had been performed, he could not say if appellant’s injuries resulted frоm that one exposure. Appellant states that, after appellee received each of the reports from Doctors Mindell and Waldron, appel-lee refused to pay him compensаtion benefits.
On March 11, 1987, the Industrial Accident Board (IAB) made an award to appellant, and found that he suffered a loss of hearing in both ears beginning February 21, 1986. Appellee appealed the IAB’s award to the district court. On September 20, 1988, appellant filed a separate suit against appellee alleging breach of good faith and fair dealing in its settlement practices. On January 29, 1988, an agreed settlement was reаched in the first suit, and appellant recovered $25,000 from appellee.
Appellee moved for summary judgment in the breach of good faith suit. Appellant filed his response to the motion for summary judgment, alleging that there were genuine issues of material fact.
In appellant’s only point of error, he alleges that the trial court erred in granting summary judgment to appellee, because there were genuine issues of mаterial fact.
On review of a motion for summary judgment, the movant has the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law.
Smiley v. Hughes,
The judgmеnt encompassing the settlement agreement, stated that, in the court’s opinion, the extent of the injuries was uncertain and incapable of satisfactory ascertainment.
Appellee moved for summary judgmеnt in the second case, asserting in its motion that based on the settlement agreement and judgment in the prior case, the liability of appellee to make the compensation payments was uncertain, giving it а right to withhold payments. It attached as a part of its motion for summary judgment, a *447 copy of the judgment in the prior suit, and appellant’s affidavits.
Appellant filed his response to the motion for summary judgment, alleging that there were genuine issues of material fact. He contended, in his response to the motion for summary judgment, that the documents in support of the court’s judgment were ambiguous. Appellant also included a copy of thе IAB’s award letter, a letter from Dr. Mindell, appellee’s answers to appellant’s interrogatories, and his affidavit.
The “fact section” of appellant’s response to the motion for summary judgment cannot be considered as proof to defeat a summary judgment. This section of appellant’s pleading contains findings that were allegedly made by Doctors Mindell and Waldron in regards to appellant’s injuries. Neither the mоtion for summary judgment nor the pleadings constitute summary judgment proof.
City of Houston v. Clear Creek Basin Auth.,
Appellee’s summary judgment proof consists of the prior judgment concerning appellant’s workers’ compensation claims, appellant’s prior sworn affidavit, and the agreement for settlement. Appellant’s summary judgment proof consists of appel-lee’s answers to interrogatories, in the pri- or case, and his affidavit.
A workers’ compensation claimant who asserts that a carrier breached its duty of good faith and fair dealing by refusing to pay, or dеlaying payment of a claim, must establish: (1) the absence of a reasonable basis for denying or delaying payment of the benefits of the policy; and (2) that the carrier knew or should have known that there was no rеasonable basis for denying tjhe claim or payment of the claim.
Aranda v. Insurance Co. of North America,
In
Izaguirre v. Texas Employers’ Ins. Ass’n,
Under the doctrine of judicial estop-pel, a party is estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary to the assertion sought to be made.
Long v. Knox,
Appellant contends that the summary judgment evidence in this case must be viewed according to the standard in the Aranda case. Appellee urges, citing Iza-guirre, that an affidavit, signed by appellant in the prior proceeding, establishes a reasonable basis for delaying the payment of the benefits of the policy, because appellant judicially admitted in the prior proceeding that the liability of the carrier was indefinite, uncertain, and incapable of being satisfactorily established and, therefore, appellant’s bad faith cause of action against appellee fails as a matter of law.
Appellant’s affidavit in support of the former judgment is distinguishable from the affidavit filed in the Izaguirre case. The relevant language in appellant’s affida *448 vit, used to settle the compensation suit, is as follows:
Your affiant further states that there is a bona fide dispute between him and the insurance company as to the nature and extent of his injuries; that he has received treatment and advice from a doctor and is not relying upon any statement by any doctors selected by the insurance company; and that the .extent of the injuries is uncertain and incaрable of satisfactory ascertainment.
In appellant’s affidavit attached to his response to the motion for summary judgment, he stated that:
When I signed the affidavit of settlement in my workers’ compensation cаse.... I assumed that those papers were for settlement in my worker’s compensation case. I also thought the language used in the compensation settlement papers and the compensation judgment meant that the insurance company and I were only settling the compensation case. I thought that the statement in the affidavit that, a bona fide dispute between me and the insurance company as to the nature and extent of the injuries, meant that the insurance company disputed my claim.... I did not take those words to mean that the insurance company was right to dispute my claim and right in its refusal to pay me compensation. If I had known that is what they meant by those words and other words in the settlement papers I never would" have signed them.... But I would not have signed those papers if I thought that they had anything to do with my second case.
Appеllant contends in his response that his affidavit in the prior case merely asserts that there is a bona fide dispute as to the nature and extent of the injuries, and as to the fact that the extent of the injuries is uncertain and incapable of satisfactory ascertainment. Appellee relies on the Iza-guirre case, and argues that appellant should be estopped from asserting a position contrary to the one taken in his prior affidavit in the former proceeding. In the Izaguirre case the release stated:
I understand and agree that the liability of said Insurance Carrier is indefinite, uncertain, and incapable of being satisfactorily established....
Appellant’s statement wаs made in an affidavit in a former proceeding under oath. However, appellant's affidavit stated that a “bona fide dispute existed as to the nature and extent of the injuries.” In the Izaguirre case, there is no such language, as in this case, that a bona fide dispute existed between the claimant and the insurance carrier. In Izaguirre, it is clear from the language used that the claimant agreed that the liability of the insurance company was indefinite, uncertain, and incapable of being satisfactorily established, and therefore established a reasonable basis for the carrier delaying the claim. However, in this case, appellant’s affidavit, in response to the motion for summary judgment, contends that the statement is not a judicial admission. Furthermore, appellant’s statement in the prior affidavit is subject to various interpretations, and as such raises a question of fact.
Also, the opinion of the judge, in the prior case, does not preclude appellant from bringing his “bad faith” claim. The court stated in the judgment that:
[T]he court is of the opinion that the liability of the plaintiff is uncertain, indefinite and incapable of being satisfactorily established....
The doctrine of collateral estoppel precludes relitigation of identical issues or facts of law that were aсtually litigated and essential to the judgment in the prior suit.
Van Dyke v. Boswell, O’Toole, Davis & Pickering,
Appellant’s only point of error is sustained.
*449 The judgment of the trial court is reversed, and the cause is remanded.