This appeal presents the issue of what are proper jury questions in an unfair claims settlement practices case. Charles Spencer d/b/a Natural Furniture Store, and his wife, Sharon Spencer, sued Eagle Star Insurance Company of America (Eagle Star) for damages for alleged unfair claims settlement practices. The Spencers sued under several theories of liability, including breach of contract, violаtions of article 21.-21 of the Texas Insurance Code and rules and regulations promulgated thereunder, violations of the Texas Deceptive Trade Practices Act, and breach of the common-law duty of good faith and fair dealing. The dispositive issue in this appeal is whether the jury’s affirmative answer to Question 1(A), as worded, is sufficient to support a cause of action under Texas law. The trial court concluded that it wаs not and rendered a take-nothing judgment, from which the Spencers appeal. We will affirm the trial court’s judgment.
Because the outcome of this appeal does not turn on an evidentiary issue, an abbreviated summary of the facts is all that is required. The Spencers purchased an insurance policy from Eagle Star covering their family business, the Natural Furniture Store, against fire and other perils. The policy also providеd business interruption coverage. On February 19, 1986, a fire destroyed the business. The Spencers made a claim on the Eagle Star policy for both loss of contents and loss of earnings. In July, after conducting an investigation into possible arson, Eagle Star paid the $70,000 policy limit on “contents” loss. Eagle Star did not offer payment on the business interruption coverage, however, until September 23, and did not unconditionally tender a paymеnt of $27,994 until March 10, 1987. In the meantime, the Spencers filed this suit to recover additional damages for the delay in payment.
The case was submitted to the jury on seven questions. Question 1(A) and its accompanying definition stated as follows:
Was the handling of the Spencers’ claim for loss of earnings by Eagle Star an unfair practice in the business of insurance?
“Unfair practice” means any act or series of acts which is arbitrary, without *839 justification, or takes advantage of a person to the extent that an unjust or inequitable result is obtained.
Answer “Yes” or “No”
ANSWER: Yes
In answer to Question 1(B), the jury failed to find that Eagle Star’s handling of the Spencers’ claim was unconscionable. In answer to Question 2, the jury found that the handling of the claim was a producing cause of damages. In answer to question 3, the jury failed to find that Eagle Star’s handling of the claim was done “knowingly.” The remaining questions related to damages оr attorney’s fees.
In response to Eagle Star’s post-verdict motion for judgment or, alternatively, for judgment notwithstanding the verdict, the trial court concluded that Question 1(A) “does not support a judgment against the Defendant under our law,” and rendered a take-nothing judgment.
THE VAIL CASE
In five points of error, the Spencers assert that Question 1(A) did support a cause of action, and therefore a judgment, against Eagle Star. The Spencers arguе strongly that this case is controlled by the Texas Supreme Court’s decision in
Vail v. Texas Farm Bureau Mutual Insurance Co,
Article 21.21, section 16(a) of the Insurance Code provides as follows:
Any person who has sustained actual damages as a result of another’s engaging in an act or practice declared in Section 4 of this Articlе or in rules or regulations lawfully adopted by the Board under this Article to be unfair methods of competition or unfair or deceptive acts or practices in the business of insurance or in any practice defined by Section 17.46 of the Business & Commerce Code, as amended, as an unlawful deceptive trade practice may maintain an action against the person or persons engaging in such acts or praсtices.
Tex.Ins.Code Ann. art. 21.21, § 16(a) (Supp. 1989). The Supreme Court discerned in section 16(a) three categories of behavior that would result in liability to an insurer: (1) the practices declared to be unfair in section 4 of article 21.21; (2) conduct defined in Board rules or regulations as “unfair or deceptive acts or practices in the business of insurance”; (3) any practice defined by section 17.46 of the DTPA as an unlawful deceptive tradе practice.
The first category, concerning practices declared in article 21.21, section 4 to be unfair, relates primarily to unfair competition between insurance companies and was not addressed.
The second category was conduct defined in State Board of Insurance rules or regulations as unfair or deceptive acts or practices in the business of insurance. With respect to that category, the court held that Board Order 18663
1
permits recovery
*840
from an insurer for damages resulting from “either (1) a practice that is unfair or deceptive
as defined
by the Insurance Code or by other rules or regulations promulgated by the State Board of Insurance; or (2) a practice
determined
pursuant to law to be an unfair or deceptive practice in the insurance business.”
Regarding practices “determined pursuant to law” to be unfair or deceptive, the court held that it was empowered to make such a determination, and that its holdings in
Arnold v. National County Mutual Fire Insurance Co.,
The third category of behavior identified in
Vail
as resulting in liability under article 21.21, section 16 of the Insurance Code was any practice defined as an unlawful trade practice by section 17.46 of the Texas Deceptive Trade Practices Act, Tex.Bus. & Com.Code Ann. §§ 17.41-17.63 (1987). The court held that this would include not merely the laundry-list items from section 17.-46(b), but also
unlisted
practices pursuant to section 17.46(a).
The Supreme Court in Vail also held that the Vails had pleaded and proved a cause of action under section 17.50(a)(4) of the DTPA, which provides as follows:
A consumer may maintain an action where any of the following constitute a producing cause of actual damages:
‡ ⅜ ⅜ * ⅝ ⅛
(4) the use or employment by any person of an act or practice in violation of Article 21.21, Texas Insurance Code, as amended, or rules or regulations issued by the State Board of Insurance under Article 21.21, Texas Insurance Code, as amended.
Tex.Bus. & Com.Code Ann. § 17.50(a)(4) (1987). The court did not separately analyze the Vails’ causes of action under section 17.50(a)(4) of the DTPA, presumably because any such discussion would have been largely repetitive of what had already been said in connection with article 21.21, section 16 of the Insurance Code.
QUESTION 1(A)
In Vail, the Supreme Court was concerned with whether the Vails had pleaded and proved a cause of action. In the present case, on the other hand, the primary dispute does not revolve around pleadings and proof. Rather, the disposi-tive issue is whether the jury’s affirmative answer to Question 1(A) is sufficient tо support a judgment.
The Spencers assert that the substance of the jury’s finding in response to Question 1(A) “is identical to the substance of the jury finding in Vail.” We disagree. In Vail, Special Issue No. 4 asked the following:
Do you find from a preponderance of the evidence that the defendant intentionally failed to exercise good faith in the investigation, processing, and denial of the claim made the basis of this lawsuit? Answer: “We do.”
In the present case, Question 1(A) does not ask whether Eagle Star failed to exercise good faith. Instead, it аsked whether the jury found Eagle Star’s handling of the Spencers’ claim to be “an unfair practice in the business of insurance.” The accompanying instruction defined “unfair practice” to mean “any act or series of acts which is arbitrary, without justification, or takes advantage of a person to the extent that an unjust or inequitable result is obtained.” The use of the disjunctive “or” in the definition allowed the jury to answer Question 1(A) “yes” if they bеlieved that Eagle Star’s handling of the Spencers’ claim was “arbitrary” or if they believed it was “without justification” or if they believed it “[took] advantage of a person to the extent that an unjust or inequitable result [was] obtained.”
The Spencers argue that the affirmative finding to Question 1(A) supports liability under at least three causes of action recognized in Vail: (1) “unfair settlement practices under article 21.21-2”; (2) “breach of the duty of good faith and fair dealing as an unlisted unfair prаctice under Board Order 41060 (formerly Board Order 18663)”; and (3) “failure to settle as an unlisted deceptive trade practice.” We will examine each of these theories.
First, the Spencers argue that the jury’s answer to Question 1(A) supports liability as a finding of unfair settlement practices under article 21.21-2. As dis *842 cussed previously, the Supreme Court in Vail held the list of practices contained in article 21.21-2 to be practices “defined” as unfair or deceptive and, therefоre, to fall within the reach of section 4(a) of Board Order 18663. However, none of the practices listed in article 21.21-2 is even remotely suggestive of the acts included in Question 1(A): arbitrary, without justification, or takes advantage of a person to the extent that an unjust or inequitable result is obtained. By itself, article 21.21-2 does not confer a private cause of action; nor were any of the individual practices listed in article 21.21-2 included in Question 1(A). Accordingly, an affirmative answer to Question 1(A) does not support a cause of action through or under article 21.21-2.
Second, the Spencers assert that the answer to Question 1(A) establishes liability as a breach of the duty of good faith and fair dealing as an unlisted unfair practice under Board Order 18663. As discussed above, a practice which has been “determined pursuant to law” to be an unfair or deceрtive practice in the business of insurance is actionable under section 16 of article 21.21 of the Insurance Code.
Vail,
Finally, the Spencers argue that the answer to Question 1(A) supports liability as an unlisted deceptive trade practice under section 17.46(a) of the DTPA. As discussed above, a practice not listed in section 17.46(b) of the DTPA may still be actionable as an “unlisted practice” under section 17.46(a). However, when an unlisted practice is alleged, “the plaintiff must obtain a finding that the act or practice occurred
and that it was deceptive.” Vail,
THE STERLING CASE
In a supplemental brief, the Spencers argue that the recent case of
Stewart Title Guaranty Co. v. Sterling,
Do you find from a preponderance of the evidence that Stewart Title Guaranty Co. *843 engaged in any unfair claims settlement practice with respect to Dawson Sterling?
Answer “Yes” or “No”
ANSWER: Yresl
You are instructed that the term “unfair claims settlement practice” is defined as any onе of the following acts or omissions:
(a) Misrepresenting to W. Dawson Sterling pertinent facts or policy provisions relating to coverages at issue.
(b) Not attempting in good faith to effectuate prompt, fair and equitable settlement of claims submitted in which liability has become clear.
(c) Compelling W. Dawson Sterling to institute suit to recover amounts due under his policy by offering substantially less than the amounts ultimately recovered in suit brought by him.
(d) Failing to provide promptly to W. Dawson [Sterling] a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of the claim.
The Spencers assert that the issue submitted in Sterling is “very similar” to Question 1(A) and supports its submission. We disagree. Although the interrogatory itself is similar, the heart of both questions is in the instructions defining the crucial terms “unfair claim settlement practice” and “unfair practice.” In Sterling the definition encompassed four specific acts. The first three of those acts were obviously taken directly from sections 2(a), 2(d), and 2(e) of article 21.21-2 of the Insurance Code. Accordingly, they clearly fall into the category of acts described in Vail as having been defined as unfair or deceptive. To that extent, we think the issue was properly framed. 3 On the other hand, the instruction that accompanied Question 1(A) in the present case defined “unfair prаctice” in vague and general terms. The phrases “arbitrary,” “without justification,” and “takes advantage of a person to the extent that an unjust or inequitable result is obtained” do not describe acts that have been defined in Texas law as being unfair or deceptive.
Another issue submitted in
Sterling
asked merely, “Do you find from a preponderance of the evidence that Stewart Title Guaranty Co. engaged in any improper trade practice with respect to the business of insurance?”
PRESERVATION OF ERROR
Finally, the Spencers argue that the objections made by Eagle Star to the wording of Question 1(A) were too general to preserve the error asserted by Eagle Star. If this were an appeal by Eagle Star from a judgment in favor of the Spencers, such an argument might have merit. However, this is not such an appeal. The trial court granted Eagle Star’s post-verdict motion for judgment, and it is the Spencers who are appealing. Accordingly, the sufficiency of Eagle Stаr’s objections to the charge is not in issue. Since, as we have held, an affirmative answer to Question 1(A) does not support an award in favor of the Spenc-ers under Texas law, the question was immaterial. The jury’s answer to an immaterial issue may properly be disregarded by the trial court, even on its own motion.
*844
Intertex, Inc. v. Cowden,
CONCLUSION
The affirmative answer to Question 1(A) does not constitute a finding that Eagle Star committed an act defined as, or determined pursuant to law to be, an unfair or deceptive practice in the business of insurance; nor does it constitute a finding of the commission of an unlisted deceptive trade practice. Accordingly, Question 1(A) does not support a cause of action under Texas law for unfair claims settlement practices. It was therefore an immaterial issue, and the trial court did not err in disregarding the jury’s affirmative answer. The Spenc-ers’ points of error are overruled.
The judgment of the trial court is affirmed.
Notes
. Section 4 of Board Order 18663, later amended by Board Order 41060 and now codified in *840 28 Tex.Admin.Code § 21.3 (West July 21, 1988), provides as follows:
(a) ... No person shall engage in this state in any trade practice that is a misrepresentation of an insurance policy, that is an unfair method of competition, or that is an unfair or deceptive act or practice as defined by the provisions of the Insurance Code or as defined by these sections and other rules and regulations of the State Board of Insurance authorized by the Code.
(b) Irrespective of the fact that the improper trade practice is not defined in any other section of these rules and regulations, no person shall engage in this state in any trade practice which is determined pursuant by law to be an unfair method of competition or an unfair оr deceptive act or practice in the business of insurance.
. Section 2 of article 21.21-2 provides as follows:
Any of the following acts by an insurer, if committed without cause and performed with such frequency as determined by the State Board of Insurance as provided for in this Act, shall constitute unfair claim settlement practices:
(a) Knowingly misrepresenting to claimants pertinent facts or policy provisions relating to coverages at issue;
(b) Failing to acknowledgе with reasonable promptness pertinent communications with respect to claims arising under its policies;
(c) Failing to adopt and implement reasonable standards for prompt investigation of claims arising under its policies;
(d) Not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims submitted in which liability has become reasonably clear;
(e) Compelling policyholders to institutе suits to recover amounts due under its policies by offering substantially less than the amounts ultimately recovered in suits brought by them;
(f) Failure of any insurer to maintain a complete record of all the complaints which it has received during the preceding three years or since the date of its last examination by the commissioner of insurance, whichever time is shorter....
(g) Committing other actions which the State Board of Insurance has definеd, by regulations adopted pursuant to the rule-making authority granted it by this Act, as unfair claim settlement practices.
. The fourth act contained in the
Sterling
instruction came not
from
article 21.21-2, but from section .003(9) of Board Order 41454, 28 TAC § 21.203(9) (West 1988). The Supreme Court in
Vail
expressly recognized, however, that Board Order 41454 could not be relied on in a situation such as this because the Order contains a prerequisite that the insurer must have engaged in the act with "such frequency as to indicate a general business practice.”