*1 818 O’CONNOR, Justice, dissenting.
ery, pleadings. damages in excess of the point We of error three on the issue overrule penultimate paragraph from I dissent the exemplary damages inadequate of based majority’s opinion. in the findings. jury rehearing, appel- the In their motion for five, point opin- error defendants of to include our lants asked this Court failing only the court assert that trial erred ion that “the reason the the statement judgment notwithstanding grant property through the ver fell the Memorial sale only their counterclaim for Lyles, dict or new trial on lis and the pendens filed Jack money pendens tortious interference with the earnest lis to block reason the was filed was property. the contract sell Memorial the sale.” counterclaim, requested of although
Their majority challenge the state The does clerk, not included in the the district that it is not correct. ground ment on is provide, burden “[t]he record. Our rules majority it is concede that seems appellant, party seeking re on the correct, with responds its statement view, pre record to see that a sufficient process, part judicial pendens, lis as of the requiring reversal.” sented to show error provides privilege that bars a absolute Tex.R.App.P. 50(d). pleading Without disagree. agree damages. I I with suit for counterclaim, setting we cannot forth their who dissented one Chief Justice Brown validity properly of defendants’ review majority cases relies. of the on which waived claims. We hold defendants Community Meyerland Improve v. Prappas of five. point their error Ass’n, 794, (Tex.App.— 799 1990, denied), I Dist.] Houston writ [14th rehearing, appellants On motion for of agree him that Dallas Court with by this that the facts recited Court contend Rowden, v. Appeals erred in Griffin “only should include a statement 1986, (Tex.App. writ S.W.2d — Dallas property fell the Memorial sale reason n.r.e.), of the cases which ref'd another pendens through was the lis filed Jack majority relies. pendens Lyles, lis and the reason the was filed was to block sale.” appellants majority states judicial process part lis pendens I do not know other avenues relief. privilege resulting absolute bars and the what those could be. arising filing damages from the suit for Prappas Meyerland pendens. v. lis Ass’n, Community Improvement
794, (Tex.App. [14th Dist.] — Houston Rowden, 1990, denied); v. writ Griffin 1985, writ — Dallas RAMIREZ, Appellant, Angelo Loiza Prather, n.r.e.); Kropp ref'd (Tex.Civ.App. Tyler 287-88 — n.r.e.). expound further. decline to ref'd We INSURANCE TRANSCONTINENTAL if, of relief Appellants have other avenues COMPANY, Appellee. claim, pendens wrongfully they the lis filed. Texas, Appeals Court of Dist.). (14th Houston the trial court reverse the
We damages actual and the on the award of A-14-93-00961-CV. reconveyance Chrystell free of 4701 Lane July liens, portion remand that and clear for an election of judgment to the trial court Aug. Rehearing Denied pursuant opinion, to this affirm remedies judgment. the remainder
O’CONNOR, J., dissenting.
820
Magnolia’s compensation carrier. workers’ denial, Although it did not issue a formal compensation bene- pay declined to workers’ fits brought
The claim was
Texas
before the
Compensation
Workers’
Commission
(TWCC).1
23,1990,
February
On
the TWCC
injury in
found that Ramirez suffered an
scope
employment
course
of his
$15,590.23
awarded
to Ramirez. The award
*4
appealed
to the district court and suit
July 1990,
was filed.
Ramirez and TIC
claim;
compensation
settled the workers’
however,
suit a
Ramirez filed
month later
against
duty
good
for breach
13, 1993,
dealing.
January
faith and fair
On
summary judgment,
motion
filed a
for
Sophia
Houston,
Mafrige,
A.
appellant.
for
asserting
it
judgment
that was entitled to
as
Ebanks,
Wallace,
James
B.
D.
John
Hous-
matter
it had
of law because
a reasonable
ton,
appellee.
for
deny
basis to
on
based
information available to it at
the time.
BROWN, C.J.,
Before J. CURTISS
response
supplemental
mirez filed a
re-
ELLIS,
MURPHY and
JJ.
sponse
TIC’s
motion. The trial court
granted
summary judgment
motion
MAJORITY OPINION
1,
July
1993,
appealed.
and Ramirez
BROWN,
error,
J.
point
CURTISS
Chief
Justice.
his sole
Ramirez con-
trial
in granting
tends
court erred
summary
This
judgment
Angelo
is a
case.
summary judgment in favor of TIC “because
(Ramirez),
Loiza
appellant,
Ramirez
sued
genuine issues of material fact
as to
existed
(TIC),
Company
Transcontinental Insurance
[TIC]
had a reasonable basis for
appellee,
duty
good
for breach of the
faith
and [TIC]
benefits
failed to establish
dealing
and fair
in handling his workers’
judgment
it is
entitled to
as matter of law.”
compensation claim. TIC filed a motion for
summary judgment
granted by
and was
The standard of review for sum
brings
point
trial court. Ramirez
one
of mary judgments is well-established. A mov-
asserting
error
trial
court erred
summary judgment
ant
has the burden of
granting
summary judg-
TIC’s motion for
showing
genuine
there is no
issue of
ment.
affirm.
We
judg
material
it is
fact
entitled to
12, 1989, Ramirez,
July
On or about
a ment as a matter of law.
v. Mr.
Nixon
546,
landscape
Magnolia
Property Management
laborer
Gardens
690 S.W.2d
(Tex.1985);
Nursery (Magnolia),
unloading
Montgomery Kennedy,
a truck
548-49
(Tex.1984).
allegedly fell,
309,
striking
injuring
when he
669 S.W.2d
310-11
In decid
right
disputed
of his
side
face. Ramirez claims
whether there is a
fact
material
aggravated
summary
precluding
judgment, proof
that the accident
issue
jaw
joint
true,
temporomandibular
known as
is
favorable to the non-movant
taken as
(TMJ) syndrome.
indulging
every
filed a claim for
the court
infer
TIC,
compensation
resolving any
workers’
benefits with
of the
ence
doubts
favor
1989,
1,
16.01,
repealing
Leg.,
§
1. Section
16.01
act
article
71st
2nd C.S. ch.
changed
name
of the Industrial Accident
Tex.Gen.Laws
reference in
Compensation
Board to the Texas Workers’
statutes
Board
or cases
Industrial Accident
28, 1917,
Leg.,
Act
Commission.
of March
35th
Compensation
now means the Texas Workers'
R.S.,
II,
part
§
ch.
laws
Tex.Gen.
Commission. Id.
269, 281-82,
repealed by Act of December
Nixon,
548-49;
circumstances,
would have denied
690 S.W.2d at
similar
non-movant.
delayed payment.
part
second
Montgomery,
at 310.
right
the test balances the
of the insurer
not whether the
appeal
the issue
is
duty
reject
against its
to inves-
invalid claims
a material
issue of fact
non-movant raised
pay compensable
rather,
tigate and
claims. Id.
summary judgment;
precluding
by establishing
is
part
second
of the test met
proved
the movant
issue whether
actually
no
knew there was
that the
of law.
entitled to
as matter
deny
deny
the claim or
reasonable basis
166a(c);
TexR.Civ.P.
Gibbs v. General Mo
carrier,
payment, or that
on its
based
(Tex.
Corp.,
tors
828-29
investigate, should
known that
1970).
the mov-
appellate
If the
court finds
there was no reasonable basis for denial
burden,
ant has not met its
it must reverse
delay.
Id.2
proceedings.
remand
case for further
Gibbs,
prevail
To
828-29.
test, insurance carriers
Under the
defendant,
judgment,
as the mov-
right
deny
ques
maintain the
invalid
ant,
as a matter of law that
must establish
subject
tionable claims and will
be
genuine
of fact
to one or
issue
liability for
an erroneous denial
claim.
plain
of the essential elements of the
more
*5
words, if
de
Id. “In other
the insurer has
of
Id. at
tiffs cause
action.
828.
later determined
be a valid
nied what is
insurance,
County
claim under the contract of
the
v.
Mut Fire
Arnold National
Co.,
up
(Tex.1987),
respond
damages
in
the
insurer must
actual
Ins.
725 S.W.2d
Lyons v.
duty
policy
to the
limits.”
Millers Casu
Supreme
recognized
Court
a
Texas
(Tex.1993).
Co.,
fairly
alty
in
part
good
deal
Ins.
866 S.W.2d
the
of insurers to
has
long
v. In-
“But as
as the insurer
a reasonable
faith with their insureds.
In Aranda
Am.,
claim,
delay payment
deny
basis to
or
of the
North
surance Co. of
eventually
by
(Tex.1988),
duty
recognized
even if that basis is
determined
212-13
this
erroneous,
by
employee
for
the factfinder to be
the insurer is
in the context of
claim an
Id.
compensa-
not liable for the tort of bad faith.”
arising under a workers’
benefits
is
for
Whether
there
no reasonable basis
insurance contract. The court held that
by
judged
must
the facts before the
duty
part
on the
of workers’
denial
be
“there is
fairly
at the time
handled the claim.
compensation carriers to deal
insurer
injured
Security Nat’l
good
employees in the Viles v.
Ins.
faith with
(Tex.1990);
Lloyds
compensation
State Farm
Ins.
processing of
claims.” Id.
Polasek,
(Tex,App.—
A claimant who asserts that a work
denied).
1992, writ
San Antonio
compensation
has breached its
ers’
carrier
case,
instant
denied benefits to
the
by
duty
good
dealing
refusing
of
fair
faith
questions not
Ramirez because there were
pay
delaying payment
of a claim must
syn
only about whether Ramirez’s TMJ
that:
show
accident,
by the
aggravated
but
drome
(1)
compensation
had
workers’
the
actually oc
also about whether the accident
delay
deny
reasonable basis to
ques
curred.
In other
there were
payment
policy;
of the
of benefits
coverage
tions about
under the insurance
(2)
known
the carrier knew or should have
Supreme Court has
contract. The Texas
for
was no reasonable basis
recently
between a
clarified the distinction
delaying
of
denying
payment
the
the insurance contract
claim for breach of
claim.
duty
good
the
of
and a claim for breach of
[emphasis
original]
at 213.
dealing.
Transportation
faith and fair
(Tex.1994)
Moriel,
part
requires
of
The first
the test
Co.
(opinion
rehearing),
court
objective
rea
on motion for
the
of whether a
an
determination
explained:
compensation carrier under
sonable workers’
assertion,
pass
parts
Aranda test.
Contrary
both
of the
to Ramirez’s
sum-
mary
reply clearly
encom-
motion
good
expert’s
‘A
of
faith and
of an
the
...
breach
the
consisted
damage
testimony
the
dealing
give
will
rise
of windstorm caused
fair
cause
neighbors
and her
that the
separate
any
the claimant
action
tort
is
brick veneer and outside back staircase were
underly-
cause
action
breach
the
visibly damaged after
storm.
Id. at 600-
insurance contract.’ The contract as-
sup-
noted
this
pect
coverage dispute
of a
court
concerns either
claim,
ported
jury’s finding that
claimant’s
proper
the factual
for the
basis
damage
policy
legal interpretation
policy,
was covered
of the
or both.
covered,
as to
If the
then
the carrier was mistaken
its contractual
loss is
the insurer
liability.
obligated
according
Id. at 601.
pay
the claim
of the
terms
insurance contract.
explained
court
that the is-
bad
threshold of
faith
reached when
sue of bad faith focuses not on
accompanied
breach
contract is
valid,
claim was
but on the reasonableness of
independent
merely
tort. Evidence that
rejecting
the claim.
the insurer’s conduct
shows a bona fide
about the insur-
explained
Id. The
court further
evi-
liability on
er’s
the contract does not rise
coverage might
circum-
dence
some
level of bad faith. Nor is bad faith
finding
stances
that an insurer
jury,
established when the
with the benefit
reasonable basis for
lacked
hindsight,
decides that
insurer
claim,
example,
when the
unrea-
insurer
simply wrong about the factual
for its
basis
sonably disregards
coverage.
the evidence of
claim,
proper
denial of the
or about
Id. The court observed that
the claimant
policy.
simple
construction
A
dis-
reports
offered no evidence that the
agreement among experts about whether
objectively
experts
pre-
were not
carrier’s
*6
by
the cause of the loss
one
covered
the
pared, or that
the carrier’s reliance
them
policy,
support
judgment
will not
a
for bad
unreasonable,
other evidence
contrary,
faith. To the
an insured claim-
from which a factfinder could infer that the
prove
bad faith must
that the insurer
carrier acted without a reasonable basis and
no
denying
had
reasonable basis for
that it
knew or should
known that
delaying
claim,
payment of
and
the
that it
a
lacked reasonable basis for its actions.
Id.
knew or should have known that fact.
Likewise,
Dominguez,
the court held
879
at 17 [citations omitted]
S.W.2d
support
no
that there was
evidence to
the
important
previous-
Moriel cites two
cases
jury’s finding that
the insurance carrier
ly
by
upon by
decided
the court and relied
duty
good
breached the
of
faith and fair
Lyons
Casualty
TIC:
v. Millers
Ins.
866 dealing.
Dominguez
observed that the claimant no evi- favor only jury’s the upon that cast doubt carrier’s reli- evidence dence professionals diag- finding, disregarding who all ance on the medical evidence infer- degenerative contrary. as a Dominguez, nosed the condition disease ences 376; own on disabil- Lyons, claimant’s statements at S.W.2d at 866 S.W.2d 600. ity insurance forms his condition was not review is no different here. Because Our work-related. granted in favor insurer, movant, take the we must Lyons Dominguez, both court insured, the non- evidence favorable adopted particularized application of “a our true, movant, every indulging as Lyons, traditional evidence review.” See resolving all in favor of inference and doubts at The court held that 866 S.W.2d the insured. See Union Bankers Ins. Co. v. reviewing legal “when a court is sufficien- Shelton, 1138, 1146, Sup.Ct.J. 1994 WL cy supporting faith the evidence a bad (June 1994) (Justice Cornyn con- finding, its focus should be the relation- curring dissenting opinion); see also ship arguably supporting of the evidence Nixon, addition, at 548-49. finding to the elements of bad bad faith jury’s whether our review involves verdict (cit- Dominguez, faith.” at 376 summary judgment, or a we must focus on 600). ing Lyons, at relates to the ele- “the evidence must relate to tort Dominguez, ments faith. bad issue of no reasonable basis for denial or 376; Hence, Lyons, at at claim, delay just payment Lyons Dominguez are in- we find that coverage.” Dominguez, contract issue of in this case. structive Lyons, (quoting S.W.2d at 378 600). explained The court that “this focus on Lyons, Dominguez, and now Under
the evidence and its relation
the elements
Moriel,
legal sufficiency
of a
review
bad
necessary
bad
to maintain the
faith is
requires
faith claim
that the evidence relied
on the
distinction between
contract claim
as evidence of bad faith
the insured
policy,
delay
and a claim bad faith
*7
claim,
permit
logical
the
‘must be such
infer
that
which
from the
denial of
arises
had no reasonable basis
imposed on
in Arnold
ence that the insurer
tort
we
insurers
delay
deny payment of the claim and
and Aranda.”
Id.3
or should have known it had no
that
knew
Lyons
Ramirez asserts
that
Dominguez,
basis for its actions.’
reasonable
summary
Dominguez
inapplicable
are
to this
(quoting Lyons,
at
they
legal
case because
involved
600). However,
conducting
at
before
S.W.2d
supporting
sufficiency
of the evidence
review
review,
appellate
court must first
such
finding
jury’s
disagree.
of bad faith.
We
an insurance
potential
determine what
basis
jury
that unlike a
or bench
We are aware
may
had for
a claim.
company
trial,
judg
presumption
usual
that
the
the
at
Dominguez, 873
summary
apply to
ment is correct does not
case,
summary
Hall,
judg-
judgments.
Revisiting
In the instant
TIC’s
See Wendall
1)
disability
proof
certifi-
Appeals,
24 St. ment
included:
Standards
Review Civil
(1993).
&
Mary’s
in
from the Latin American Medical
L.J.
cate
denial,
essentially
Supreme
adopted
ap
there was no
the
able basis for
but whether
3. The
Court
Lloyds,
proach
basis for denial. See id. at 284-85
taken
State
Inc.
Pola
reasonable
Farm
added);
sek,
Progressive
(emphasis
also
Antonio
see
Emmert v.
— San
Mutual,
is,
denied).
County
(Tex.App. Tyler
juries do
Dr. was no of recent concluded, The court “we believe that the right trauma to side face in Ramirez’s weight contrary expert opinion necessary the form of a or swelling wound of the soft destroy the carrier’s basis a reasonable tissue and if Ramirez suffered recent question fact under the standard estab- trauma, injury it did not cause acute ” ... lished in Aranda and Arnold .... chronic, change longstanding nature of However, the court added: Ramirez’s condition. In Dr. other Rejaie concluded that Ramirez’s condition expert A conflict between the carrier’s and compensable was not policy. under TIC’s experts may may standing not alone, a be sufficient to ‘bad faith’ allow points Ramirez out that TIC also jury. dentist, go suit to to a possessed addition reports medical from a Dr. conflicting expert opinion, party alleg- Hal Phillips, suggested who that Ramirez’s bring faith must direct aggravated by TMJ the al- bad also was leged therefore, showing compensa- accident and circumstantial evidence that was Guajardo Liberty expert’s questionable ble. Ramirez Mut. opinion cites carrier’s radiological Dr. Phillips have studies. also did not that carrier knew or should Rejaie’s Dr. questionable. dispute or criticize conclusions known that the or impartiality. attack his credentials He Id. simply based much of his on informa- argument, Guajar- Contrary to Ramirez’s find that tion obtained from We expert opin- conflicting not do does hold conclusively established that its reliance automatically as to create fact issue ions Rejaie was a reasonable basis for Rather, Guajardo that a faith. holds bad claim. present only in certain may fact issue be the reasonableness circumstances where Investigation expert on an is serious- the carrier’s reliance expert contends, an ly question opposing called into citing Ramirez Nationwide also Although Guajardo Crowe, 644, 649, or other evidence. Ins. v. n. 1 Mut. Mor- Lyons, Dominguez 1993), decided before [14th Dist.] — Houston for bad agr., it is consistent with standard judgm’t pursuant set aside to sett’l ve\ Court; Supreme (Tex.1993), set forth faith did not is, that the the evidence must demonstrate for denial because the a reasonable basis on certain infor- solely insurance carrier’s reliance wás on evidence that denial based in denying mation a claim is unreasonable pre-existing had a condition. Ra therefore, inju on-the-job a reason- agree does constitute that an mirez and TIC Dominguez, 878 See ry aggravates pre-existing able basis denial. 377; Lyons, at at Compensa see also compensable under the Workers’ McCartney Casualty Act. Aetna Surety 839 n. & Ramirez, Rejaie’s depo citing to Dr. (Tex.1962); 2 State Bar of Texas, see also testimony entry to an in the claim sition Charges PJC 18.01 Texas PatteRn JURY 27, 1989, asserts that file4 dated October (1989). Ramirez, referring deposition Rejaie consti Dr.- did not TIC’s reliance on Powell, testimony adjuster, further Paula he basis for denial because tute fact out TIC was aware of this points syn diagnosing expert not an TMJ the claim. the time handled summary judgment proof, how drome. The ever, Dr. Re- reflects TIC’s reliance on Crowe, judg this court affirmed a
jaie’s ability a reasonable medical constituted their in favor of the claimants on bad entry in the of law. basis as matter claim. at 647. Mr. Crowe faith by Ramirez that Dr. claim file cited states at work and died. Id. suffered heart attack surgeon Rejaie oral referred Ramirez an compensation carrier denied The workers’ however, expert;” he not an “because solely on death certifi the claim based Rejaie not an said that he was never certificate listed cate. The death syndrome. TMJ diagnosing most, cause of death and at the immediate fact, plastic maxillo- he that as a testified pre-exist- that Mr. Crowe had established surgeon, regularly diagnoses facial he carrier, Id. at ing heart condition. Rejaie merely that he syndrome. Dr. stated however, attempt investigate made no syndrome. normally treat TMJ did not aggravat Mr. condition was Crowe’s Ramirez, TIC, scope of
Furthermore,
in the course and
chose
ed
*9
therefore,
compensable.
was
Rejaie.
Rejaie’s
employment
that
and
Dr.
conclusion
Thus,
a work
prohibit
does
syndrome was not work-related
Crowe
mirez’s TMJ
from
compensation insurance carrier
de
of Ra-
ers’
was based on several examinations
pre
solely on
X-rays,
tomogram,
nying coverage
and Dr.
the basis
as well as
mirez
Rather,
merely
existing
re
report.
Phillips
Dr.
did not
condition.
Gillespie’s MRI
carrier,
claim on
denying a
quires
before
question the
of those examinations
results
Judgment
Summary
summary
Discovery As
To
as
tent
Use
4. Ramirez offered TIC's claim file
adjus-
proof through
deposition
Supplemen-
was attached to his
Evidence which
tor,
deposition was offered
166a(d).
Paula Powell. That
Response. See Tex.R.Civ.P.
tal
objection
of In-
Ramirez's Statement
without
in
basis,
investigation
such a
an
record
that these
conduct
which demonstrates
state-
might
untrustworthy
determine
that
be ments
or that TIC’s reli-
condition
are
i.e.,
compensable,
aggravated
inju-
by
ance on them was otherwise unreasonable.
was
an
ry in
scope
employment.
the course and
statements
Ramirez’s co-workers
Phillips’
were in
conflict with Dr.
con-
direct
case,
In the instant
TIC conducted
questions
legitimate
clusion and raised
about
Here,
investigation.
Phillips’
such an
Dr.
veracity
Ramirez’s
and about the basis for
Rejaie’s
Dr.
differed from
in one
opinion.
Phillips’
Dr.
important respect;
that
unfit
Ramirez was
argues, citing
Ramirez
State Farm Fire &
syndrome aggra
for work
as a result
TMJ
Simmons,
Casualty Co. v.
There was additional suspect. proof that Ramirez’s claim was not bad faith. rendered and the Besides co-workers’ statements Rejaie conflicting conclusions Drs. Evidence Other proof
Phillips, that Ramirez did there nearly until not seek medical treatment Lastly, Ramirez contends Also, alleged month after the accident. attorney, Kor- affidavit from his Ronald J. Employer’s Injury not manik, Notice of filed regarding raises a fact issue hand, August until 1989. On the other for That TIC had reasonable basis denial. summary judg- in the there are documents supple affidavit was to Ramirez’s attached proof suggest Ramirez could response. Mr. claimed to mental Kormanik recent have suffered a trauma work. compensation mat be an workers’ However, Phillips’ infor- reports, like Dr. represented compen Ramirez his ters mation about cause of Ramirez’s represented claim. also Ramirez sation He contained in those documents is based attorney of in his bad faith claim and was the him- questionable provided by facts Ramirez response filed to record when Ramirez Further, if involved self. even Ramirez was Summary Judgment. TIC’s Motion work, Rejaie was of the in an accident at Thus, Mr. wit Kormanik was interested change not that the accident did ness. See General Prod. Co. v. Black Coral longstanding, chronic nature of Ramirez’s Inv., (Tex.App . —Hous syndrome. importantly, this con- More n.r.e.) (an ton writ ref'd [14th Dist.] merely flicting regarding coverage who be bene- interested is one would witness liabili- a bona about TIC’s shows fide of a fitted some manner the outcome contract, ty on the insurance not bad faith. other). Ra in favor one side or the suit Moriel, 879 at 17. TIC was See following portion cites of the affi mirez to give to an erroneous answer entitled davit: coverage subjecting question of without itself Ange- reviewing discovery in the After liability Lyons, faith. to for bad I lo Loiza file am of the Ramirez at 600. company no reason- that the insurance had Finally, points out that TIC was Ramirez Angelo denying able basis for benefits that Ramirez missed time at work and aware and, company Loiza the insurance Ramirez contemplated by surgery doctors. knew, known, that have should fact, however, That does mean that TIC’s such reasonable basis contrary, investigation was unfair. To the Angelo benefits Loiza merely suggests that Ramirez’s objections to the TIC filed written may TIC compensable been affidavit, asserting that it con Kormanik investigation needed conduct make was incom legal tained conclusions and investiga- Nor is TIC’s that determination. proof. summary judgment petent Rejaie un- faulty tion or its reliance objec ruling those failed to obtain informa- simply because medical that error tions. Ramirez contends might re- Phillips from Dr. have been Ramirez, preserved. According to ceived first.5 Both doctors treated raises a uncontroverted and the affidavit is obligated to the conclu- and TIC was obtain fact as to whether material issue of determining whether to sions of each before good faith fair deal its breached deny delay benefits. We find 166a(b). ing. condi- See Tex.R.Civ.P. investigation of the cause Ramirez’s mean, inadmissible, hearsay even attorney, it does not Ronald of Ramirez’s affidavit true, Kormanik, ignored Phillips' conclusions repeatedly told if that TIC that TIC him states Rather, merely sup- shows acted faith. in bad that it did not have medical information or, attempts investigate Ramirez's port TIC's non-work status when in fact proof suggests, indicating Phillips, as the from Dr. medical information status, uncertainty when about apparently there was confusion been sent to non-work had medical information. TIC received certain TIC. Aside the fact that this statement is
829 Objections judgment to in the form of error affirm the of the trial defects be trial of affidavits must raised in the court. court. 166a(f). However, objections
Tex.R.Civ.P. may ELLIS, Justice,
defects the substance affidavits be dissenting. appeal. raised for the first time on Schultz Finding myself disagreement with the Acceptance Corp., 704 v. General Motors I majority panel, respectfully of the members 797, 1985, (Tex.App. S.W.2d 800-801 — Dallas my file dissent. writ) (Justice concurring); no Howell Habern A is no rea about Bank, v. Commonwealth Nat’l 479 S.W.2d support sonable of a claim basis to the denial 99, 1972, (Tex.Civ.App. 100-101 — Dallas jury. Lyons ais fact issue for the See v. writ). objection An to an affidavit on Co., 597, Casualty Millers Ins. 866 S.W.2d grounds legal that it states conclusion (Justice (Tex.1993) Doggett dissenting); 603 one that to a relates defect of substance. Crowe, Nationwide Mut. Ins. v. Moores, 832 (Tex.App.— Bell v. S.W.2d 749 644, (Tex.App. [14th Dist.] 648 — Houston denied); 1992, Dist.] Houston [14th writ 1993), judgm’t pursuant set aside to settl’t Schultz, Habern, 801; 704 at 479 S.W.2d (Tex.1993); agr., 863 462 Common S.W.2d Thus, complaint S.W.2d TIC’s about Thomas, Lloyds wealth Ins. Co. v. 825 properly the Kormanik affidavit is before this 1992), 135, — Dallas court. judgm’t pursuant agr., set aside to settl’t quoted portion The above (Tex.1993). S.W.2d 486 Kormanik legal affidavit states a conclusion case, summary judgment In this TIC has incompetent summary judgment proof. and is showing genu- burden of that there is no Snider, 54, See Anderson v. ine issue of fact it material is enti- (Tex.1991) (eonclusory statements made tled judgment as a of law. matter See an witness are insufficient Co., Property Nixon v. Management Mr. summary judgment). Likewise, statements (Tex.1985). 546, addition, 548-49 by Mr. Kormanik in the remainder of his non-movant, proof favorable to the Rejaie self-pro affidavit that Dr. “a was mirez, true, indulging is taken as the court non-expert,” fessed to prop TIC “failed every resolving any reasonable inference and erly claim,” investigate this that it was doubts favor id. “impossible for Ramirez to TIC in assist its case, Phillips’ opinion Dr. investigation” instant in the of a absence formal syndrome controversion, aggravat that Ramirez’s TMJ nothing opin are more than scope ed in the ions course and having and conclusions no foundation in employment and the discussed, circumstances under the record. As we summary brought which that judgment TIC’s proof conclusively establishes that Rejaie attention is sufficient to raise a fact issue as qualified diagnose Dr. Ra Rejaie to whether TIC’s reliance on Dr. mirez’s proper a reasonable basis Ramirez’s ly investigated Ramirez’s claim. Neither Guajardo Liberty claim. See Mut. Ins. statements of nor conclusions affi Co., (Tex.App. Corpus summary competent judgment davits are — denied) Id.; (opinion Christi writ on motion proof. Roofing Charter Co. Tri-State rehearing). (Tex.App.— denied). Houston [14th Dist.] Powell, adjustor, Paula testified at Rejaie’s opinion, deposition We hold her that she was uncertain about Gillespie’s report, MRI and the statements of when TIC received the first medical informa- Phillips. copy Ramirez’s co-workers a reason- established deny report, stating able basis for TIC to Phillips’ Ramirez’s claim Dr. initial that Ra- therefore, situations,” judg- that TIC was entitled to work mirez “should avoid reflects September bad faith as a Ramirez’s mat- that was sent TIC on ter law. Because the reasonable to infer that proper, point we overrule sole medical from Dr. received information *12 facts, Septem- investigation in it focused it’s on Phillips shortly after it sent these Yet, 1889, 27, entry relaying history in to ber. the October Ramirez’s candor his curiously Phillips, claim that TIC told than on TIC’s file notes Dr. rather the substance attorney Phillips’ it have medi- Ramirez’s that did not Dr. conclusion or his clinical find- support ings. conducting investigation, “non- that cal to Ramirez’s After information time, explaining that had noth- work status.”1 At TIC TIC never issued a formal denial report why more verbal from Dr. Ré- claim than a to Ramirez his was denied. jate. report, That verbal as documented Therefore, conflicting that I would hold file, part: pertinent TIC’s claim states in opinion, medical the circumstances surround- Réjate Dr. called back and advised his information, ing the medical receipt of opinion clmt’s not [sic] [sic] [sic] resulting investigation and the manner of the related incident and he’s not [sic] to work is suffi- pay refusal benefits this case disabled from work due to his condition— cient to raise a fact issue as whether TIC’s “aggravate” TMJ you [sic] he can doubts it did not reliance the information before already provide [sic] exists —he will basis for Ra- constitute reasonable report stating however [sic] knew mirez’s TIC why he he [sic] is not an it did have a rea- should known that Morgan Dr who [sic] clmt will referred Guajardo, sonable basis. See [emphasis tell it sees it. added] as he I the sum- Accordingly, would reverse 365. Rejaie’s Clearly, thought Dr. mary judgment remand in favor TIC and opinion regarding the cause of Ramirez’s proceedings consistent this case for further syndrome qualified by his TMJ limited opinion. with this expertise concerning syndrome. TMJ This supported by Rejaie’s deposi- fact is Dr. own ordinarily testimony that he did syndrome. TMJ fact that Dr. treat The ability Réjate possessed diagnose the not, suggests, problem majority as the does FANT, Appellant, Danny conclusively reliance establish Rejaie’s Ra- as to the cause of Texas, Appellee. The STATE of was a basis. mirez’s condition 9, also reflected the October knew as No. A14-94-00013-CR. file, entry Mor- in it’s claim that Dr. Texas, Appeals of (Dr. Court of Phillips Dr. Mor- gan’s office was with (14th Dist.). Houston surgery gan) perform wanted to proof estab- July 1994. Rejaie’s lishes TIC was aware of Aug. 4, 1994. Rehearing Denied expertise and that knew that a limited syn- expertise with the to treat TMJ doctor Discretionary 1994. Review Granted Oct. drome had concluded work-related and that surgery require mirez which would would aware of him. Because TIC was disable Further, pre-hearing Febru was not until adds sus- conference Ronald Kormanik's affidavit about what picion ary affidavit states in Kormanik's statement TIC’s conduct. That Mr. pertinent part: up to that time is inadmissible TIC told him requiring an hearsay, but is a "defect form” company repeatedly told me insurance 166a(f); objection. they Dolenz hearing prior pre conference [the] Tex.R.Civ.P. 83-84, A.B., (Tex.App.— n. 2 to status, did not have medical Mr. denied). not make TIC did Dallas being however the file in an off-work therefore, hearsay objection and the state Phillips such shows sent records pur probative its value explaining ment does not lose company insurance status, off-work (citing poses summary judgment. See id. furthermore that I sent same Tex. 802). company. fax to the insurance information R.Civ.Evid