*1 vаge company Thirty- Fina’s Contracting Servs., at facilities. v. Johnson Coast Gulf trial, days prior designated Inc., one (Tex.App Fina 746 S.W.2d . —Beau Baxter, expert Dr. denied)). witness Charles R. a mont writ specialist Presbyterian Hospital burn at designated Because witness was professor Dallas surgery and a at the practicable Forman as soon as after learn- University of Texas Southwestern Medical Fina, designation ing of his we hold that Center, requested submit Forman abused its discretion in fail- to a medical examination Dr. Baxter. good presented to find Forman cause. mail, designation As the was served testimony trial, expert medical at al- January Forman did not receive it until 6. though he introduced into evidence the rec- January 9, twenty-five On days tri- before treating physicians. ords Based on al, designated expert Forman Baxter as an record, our review the we conclude the witness. After the medical examination excluded evidence cumulative оf report confirmed Forman’s claim records; thus, medical error was shock, he had suffered an electrical Fina 184(b). Tex.R.App.P. not harmless. ‘'undesignated” expert. Baxter as its Tex.R.App.P. grant Pursuant sought When Forman use the favorable and, application of error writ with- report trial, at trial court excluded hearing argument, out oral reference Baxter to Dr. because Forman appeals of the court of reversed and this timely designated had not Baxter as an cause is remanded to trial court for expert good witness and cause had not new trial. permit been shown to under evidence Tex.R.Civ.P. The court 215.5.
affirmed. 858 498. S.W.2d We reverse
and remand to the trial court for new
trial. has, occasions,
This court on numerous
considered the good issue whether cause permit
existed testimony of a witness properly in response identified inter- STATE FARM FIRE & CASUALTY rogatories. These cases present- have not COMPANY, Petitioner, question designation, ed of late howev- v. er, complete but have instead concerned a G.W., Respondents. &S.S. designate1 failure to exclu- involved the of testimony sion of аn individual named No. D-1339. party to the suit.2 We have nonetheless Supreme Texas. Court of recognized designation may late excused certain circumstances: June 1993. sanction was de- neither [The exclusion] Rehearing Sept. 10, Overruled 1993. signed punish litigant nor intended to cannot, who good in the exercise of faith diligence, respond discovery due to a
request timely in a manner. Inc., v. Trailways,
Clark
S.W.2d
(Tex.1989);
(citing
also
see
id.
Co.,
Mfg.
(Tex.1987);
Holiday
Alvarado v. Farah
Yeldell v.
Hills Retirement
Bank,
(Tex.1992);
Sharp
Broadway
Ctr.,
Inc.,
Nat'l
Nursing
(Tex.
Scott R. David Jenson, Antonio, petition- A. San Carol er. Clark, Austin, Nagle, P.
David Mark J. respondents. OPINION HIGHTOWER, Justice. applicability This involves cause a home- injury exclusion of the intentional resulting from the to a claim policy owner’s genital herpes. transmission (State Casualty Company Farm Fire and Farm) brought suit G.W. S.S. seeking declaratory judgment that G.W.’s provide covеr- policy did not homeowner’s him age for the claims asserted trial court rendered S.S. The in favor State Farm. and remanded appeals reversed court meet its holding failed to that State Farm it did because summary judgment burden that G.W. produce conclusive evidence transmit to S.S. 808 intended to explained For the reasons herein, judgment of the affirm the appeals. after en- genital herpes S.S. contracted sexual intercourse gaging in consensual in November 1986. home with G.W. compensate requested that After injuries, for her G.W. notified her Farm, insur- the issuer of his homeowner’s agreed to policy. State Farm investi- ance provide with de- gate the claim and counsel, sign required that G.W. fense “request of services and non-waiver rights agreement.” G.W.'s homeowner’s denial of holding S.S.’ policy included an intentional conclusively exclu- that S.S. failed to show that provision. sion provision, on that Based matter of existed as a law. The questioned State Farm policy whether the court of reversed actually covered claim rejected S.S.’ granting summary judgment trial court *3 S.S.’ settlement for offers amounts within holding to State summary Farm the policy the rejected limits. later State judgment conclusively did not evidence Farm’s offer of employed counsel and show that G.W. intended to transmit the own attorney. against suit S.S. filed G.W. disease to S.S. nor did it indicate that alleging negligently that he transmitted G.W.’s conduct extreme that was so intent genital herpes to her. S.S. and G.W. set- injure can be inferred as a matter of tled and agreement provid- entered into an law. The court of also reversed ing for entry the judgment $1 of million the summary judgment on G.W. and S.S.’ in favor of S.S. and that S.S. would not counterclaims and remanded the cause to execute judgment the G.W. in ex- proceedings. court for further change for the assignment of one-third of any might claims which he have I. State Farm faith adjust- for bad claims argues State Farm that as a matter ment, deceptive practices, trade or Insur- law, genital of of herpes the transmission ance Code After S.S. and violations. is an injury intentional which comes within informed of agreed judg- State Farm the injury the “intentional of exclusion” G.W.’s ment, State Farm instituted this deelarato- policy. Consequently, homeowner’s S.S.’ ry judgment seeking action a declaration claim is not covered G.W.’s home obligated pay that it is not the 1 million f disagree. policy. owner’s We judgment because, among (1) things, other herpes contagious Genital is a disease 5.5.’ claims in underlying the suit fell with- spread through which is sexual in intercourse the provision intentional exclusion and in for which there is no known cure. the See policy and no coverage thus exists Alexander, Note, (2) generally under Louis A. policy, Lia- and G.W.’s in actions failing bility in notify Tort the Sexual Transmis- of S.S.’ lawsuit for entering agreed Herpes and sion into an Disease: Genital and the with- of Law, (1984). out L.REV. 101 knowledge State Farm’s CORNELL breached his duty cooperate Generally, community policy pre- the medical advises under any herpes cluded recovery patients G.W. under infected avoid sexual policy. Subsequently, experiencing State Farm filed a actual intercourse motion for summary symptoms pre- in order to these of the disease grounds. G.W. and S.S. counterclaimed al- vent transmission of disease to their leging Adam, engaged partner. Herpes State Farm in sexual Ervin bad faith practices failing settlement in pay Simplex Infections, in HUMAN Virus INFECTIONS, the claim under the S.S. also filed a HERPESVIRUS CLINI- (Ronald motion for The trial CAL Glaser ASPECTS 23-25 & summary judgment eds., Gotlieb-Stematsky 1982); rendered in favor Tamar J. specific Lesions, of Oriel, State Farm on the that David Genital DIAGNO- not, policy homeowner’s did as a matter SIS AND TREATMENT OF SEXUALLY law, provide coverage of the TRANSMITTED DISEASES 98-99 (William ed., 1983). claims underlying asserted M. McCormack How- ever, suit. The trial years, court’s recent some researchers theory order did not asymptomatic address Farm’s сlaim have identified the i.e., cooperate. shedding, herpes G.W. breached his carrier that a contagious The trial court overruled S.S.’ motion spread the disease even experiencing any and denied G.W. when the individual is 5.5. symptoms. relief on their counterclaim. The H. Fife See Kenneth & Law- court of appeals affirmed the trial rence Corey, Herpes Simplex Virus in Interpreting a similar virus. SEXUALLY TRANSMITTED DISEASES 1990); eds., provision, the court held that (King policy K. et al. “[c]ov- Holmes al., by an act Frequency Merts, erage is intentional Gregory J. M.D. et not avoided Acquisition First-episode Genital In- insured has acted with exclusion unless Simplex Herpes Virus bodily injury. When intent to cause a from fection inju- Symptomatic Asymptomatic Source resulting act itself is intended Contacts, TRANSMITTED not, SEXUALLY exclusion has ry is insurance (1985); F. Roo- DISEASES 37-39 James Id. application.” at 58. court conclud- Acquisition al., Genital ney, M.D. et possibility that an reasonable ed “a Herpes Asymptomatic Sexual contagious compel does actor is from Partner, ENG.J.MED. NEW highly partic- it is certain a conclusion that (1986). 1563-64 result in infection ular act his will *4 Id. another.” policy covering The homeowner’s G.W. following included the
November 19861 “the recognizes This Court provision: injury “intentional exclusion” con probable effect is not the natural and Coverage D not shall EXCLUSIONS — apply: it— sequence produce means which of the follow ordinarily does not an effect which bodily property damage injury or reasonably from anticipated and cannot be by the intentionally caused or at direction means, or the use an effect of the of the Insured[.] produce, not intend the actor did design charged a be with considering applicability the of which he cannot When produced by accidental producing is injury similar exclusions of intentional —it v. Republic Nat’l Ins. Co. means.” resulting claims from the transmission of Life 549, (Tex. Heyward, herpes, recognize S.W.2d 555-56 jurisdictions other 536 1976). “that а resulting recognizes also damage may be unintended The Court the injury effected although leading damage person the to the insured acts through means consider State Farm Fire & would See are intentional. accidental S., casualty, Casualty 589, a Co. v. Irene 138 himself such A.D.2d insured is 171, (N.Y.App.Div.1988); very purpose since of such insurance 526 N.Y.S.2d 173 the indemnity against any fortui Casualty see also State Farm Fire & Co. provide Eddy, 958, tous, undesigned injury.” v. Cal.App.3d Cal.Rptr. unexpected, 218 267 or Re Id. 379, Although language our (Cal.Ct.App.1990) (coverage 386 not 557. at “accidents,” public National necessarily precluded referred to when transmission unforeseen, unexpected, reasoning applies in cases when indepen- was the same conduct). injury policy of the In the intentional dent intentional sexual contains an M.M.D., policy under Milbank Ins. v. B.L.G. & exclusion. An insured a Co. 484 52, relies injury exclusion still (Minn.Ct.App.1992), N.W.2d 53 a Minne- intentional against for indemnity policy provide sota court of considered whеther tuitous, undesigned injury.2 unexpected or B.L.G. “intended” to infect M.M.D. with policy currently insurer was thus whether an 1. The standard "accident” and homeowner's obligated approved expressly pay an insurance for Texas excludes under use in pay dam- sexually policy obligated insurer to transmitted sickness disease from coverage Tex.Reg. ages injury of policy. See to or destruction under the 12 “because of thereof, Insurance, (1987); including property, of loss use 1031-32 State Board 31, 1987) (Mar. (approving at 1. We held Board Order Id. 634 n. caused accident.” sexually voluntary and exclude acts were an amendment to insured’s when the However, disease). injury result policy cov- is the natural transmitted intentional and act, damage ering specifical- did an accident G.W. in November 1986 not of the though ly sexually meaning policy exclude transmitted diseases from of the even within the coverage. unexpected, injury been unfore- have this Id. 635. In seen and unintendеd. party experiencing is not Argonaut Maupin, v. when the infected Southwest Ins. Co. disease, transmitting herpes is (Tex.1973) distinguishable. symptoms is In S.W.2d engaging inter- Argonaut in sexual this natural result Southwest Ins. Court consid- determining Additionally, property we are course. ered whether an was caused considering When whether in wanton, characterized as reckless or injure tended to it wrong. is instructive to is not an intentional In such examine meaning cases the Ordinarily, intent. distinction intent between negligence whether obviously an insured inju intended harm or is a matter of de- ry gree. to result from The line has an intentional act been drawn is question point courts at the of fact. where the known dan- Spoljaric v. Percival Tours, Inc., 432, ger ceases to (Tex.1986) a foreseeable 708 S.W.2d risk (issue person avoid, which a reasonable would uniquely intent is within the realm in the factfinder); becomes mind of the actor a Mullís, Logan v. 605, certainty. substantial (Tex.1985)(intent S.W.2d gener is ally question of fact to be decided AL., W. PAGE KEETON. ET PROSSER jury); Moe, Raby see also 153 Wis.2d AND THE KEETON ON LAW OF TORTS (1990) (insured’s 450 N.W.2d (5th 1984). at 35-36 ed. § injure question fact). intent to This Although undisputed it is in- Court relies on the pro definition of intent tentionally engaged in sexual intercourse (Second) vided in the Restatement of Torts. informing condition, without S.S. of his Indus., Rodriguez Naylor Inc., 763 summary judgment evidence in this case (Tex.1989); Reed Tool Co. does not indicate that G.W. acted with in- Copelin, tent to bodily injury.3 cause S.S. The sum- *5 (Second) Torts, Under the Restatement mary judgment evidence indicates that an insured injure intends to or harm anoth possible G.W. did not believe it was er if he consequences act, intends the of his transmit the disease an le- without active they believes that substantially are cer sion and fails to demonstrate that G.W. (SEC tain to follow. RESTATEMENT engaging knew that in sexual intercourse OND) (1965). OF TORTS 8A Prosser § substantially with S.S. was certain to result provides also insight on the nature of in in transmission of the disease to S.S.4 tent. argues State Farm that G.W. com
[Ijntent is broader
pur-
than a desire or
battery
mitted the intentional tort of
be
pose
bring
physical
about
results.
It
cause S.S.’ consent to the sexual act was
only
extends not
consequences
those
vitiated
the fact the
did
G.W.
not inform
desired,
which are
but also to
herpes.
those
her that he had
The Restatement
which the actor
substantially
believes are
person’s
discusses when a
consent is inef
certain to follow from
person
what the actor
fective so that
is entitled to
hand,
does.... On the other
the mere maintain
tort action that would be
knowledge
appreciation
of a risk— available to him if the consent had not been
something short
given.
(SECOND)
of substantial certain-
RESTATEMENT
OF
ly
not intent. The
(1979).
defendant who TORTS 892B
As an illustration
§
—is
acts in the belief or
consent,
consciousness that
of ineffective
the Restatement ex
causing
the act is
appreciable
an
plains
risk of
that when A consents to sexual in
may
harm to another
negligent,
B,
be
and if
tercourse with
B
A
knows that
is
great
the risk
may
is
the conduct
ignorant
be
of the faсt that B has a venereal
genital herpes
whether the transmission of
pressly
was
controverted
statements.
G.W.’s
In
an "accident”
addition,
or whether G.W.’sacts were inten-
the dissent infers G.W. is a doctor with
tional,
specifically
whether G.W. intention-
However,
special
knowledge
herpes.
medical
ally
bodily injury
by transmitting
caused
to S.S.
doctor,
optome-
G.W.
is not medical
but is an
herpes
significant
to her. This distinction is
provide
eyewear.
trist trained to
corrective
provi-
because the intentional
exclusion
coverage
sion states
that
does not exist for
Although
recognizes
Justice Hecht’s dissent
intentionally
bodily injury,
caused
and does not
person
that a
is considered to have intended
state that
does not exist for intentional
consequences
substantially
those
which are
cer-
acts.
follow,
application
tain to
he muddles the
by seemingly arguing
3. Justice Hecht’s
that
test
dissent
that because
mischaracterizes the
intentional,
by relying
resulting injury
facts of the case
on S.S.’statements in
G.W.’sacts were
evidence which are ex-
was also intentional.
law. Lover
matter of
disease,
liability
injure
tent to
as a
subject
B is
to A for
Chartier,
Id.
e,
idge
battery, an
cmt.
intentional tort.
at
Wis.2d
However,
see
(1991);
illus. 5.
the Restatement
also
also Woida
N.W.2d
explains
may
mistake
indeed
B’s “own
Ins.
North Star Mut.
306 N.W.2d
amounting
prevent his conduct from
(Minn.1981) (inferring
intent when
tort,
is
intentional
there
no knowl-
as when
nature);
Mil
calculated
actions
of a
were
Id.
edge
touching
that a
will be harmful.”
M.M.D., v. B.L.G. &
bank Ins. Co.
Here,
undisput-
be
appears
cmt. c.
at
(refusing
(Minn. Ct.App.1992)
N.W.2d
ed,
issue
or at least there is a fact
concern-
finding
inferred intent without
to address
operating
whether
under
engaged
con
in sexual
defendant
impression
he
mistaken
could
highly
he
knowing
certain that
duct
it was
herpes
symptoms
he had no
transmit
However,
plaintiff).
would infect
Consequently, of the disease.
conclude
“[tjhere
bright-line rule to determine
is no
fact
con-
that an issue of materiаl
exists
as
injure should
inferred
when intent to
cerning
knew at
time
whether G.W.
Rather,
facts:
a matter of
each set of
law.
certainty that
with substantial
he would
case-by-case
ba
‘must be considered
Because an issue
transmit
to S.S.
sis;
harm is
from
likely
to result
more
exists,
material
we hold that
fact
conduct,
likely
certain
the more
intentional
improperly
trial court
rendered
matter
intent to
be inferred as a
harm
”
Chartier,
Loveridge
of law.’
K.A.G. v. Stan
(quoting
N.W.2d
II.
790, 793
ford, 148 Wis.2d
N.W.2d
argues
if
State Farm also
that even
(Ct.App.1988)).
injure
did not
his
intend
conduct,
injure
miscon-
intent to
inferred
This
from
sexual
case differs
disagree.
matter of law.
inferring
We
intent
duct
because G.W.
cases
*6
consenting
adults. Califor-
S.S. were
which infer intent in
Jurisdictions
sexual
specifically refuse to
nia and Minnesota
usually
only
misconduct cases
do so
in in-
injure as a
of law
infer
to
matter
intent
stances of sexual misconduct with minors
voluntary sexual acts of consent-
when the
or
forcible sex acts between adults.5
in the
of
ing
result
trаnsmission
adults
jurisdictions
Those
reason
intent
Casualty
State
Fire &
herpes.
injure
only
be inferred
when
char-
958,
Eddy,
v.
Cal.App.3d
267 Cal.
Co.
218
“degree
acter of
act is such that the
(1990)
infer in-
Rptr. 379,
(refusing to
certainty that
385
injury
the conduct will cause
sufficiently great
justify inferring
in-
tent
the sexual conduct between
because
McGinnis,
90,
Metzger,
425
CAM
v.
N.W.2d
Ins. Co. v.
282 Ark.
666
tote
Lehmann
355
(1984) (infer
stepfather
(Minn.1984) (infer
repeatedly
S.W.2d 689
sexually
intent when
intent when uncle
stepdaughter);
Co.
niece);
Mugavero,
abuses
Allstate Ins.
sexually
v.
assaults
Allstate
W.,
326,
Cal.App.3d
Cal.Rptr.
v. Kim
(Cal.Ct.App.1984)
160
206
609
153,
142,
365
79
N.Y.S.2d
589 N.E.2d
N.Y.2d
581
(infer
involving
intent in case
(1992) (infer
case
child molesta-
intent
in
sexual assault
a child when act
crimi
violates
381,
Williams,
tion); Rodriguez
Wash.2d
v.
107
statute);
Casualty
Fire
nal
Altena v. United
&
(1986) (infer
injure as a
729
intent to
P.2d 627
Co.,
(Iowa 1988) (involved
422 N.W.2d
non-
485
incest);
matter
law when insured commits
adult);
of an
Line
consensual sexual assault
Leeber,
375, 376
Horace
W.Va.
Mann. Ins. v.
180
750,
Berdish,
baugh
Mich.App.
v.
144
376
(intent
(1988)
injure
inferred as
S.E.2d 581
(infer
(Mich.Ct.App.1985)
N.W.2d 400
intent
misconduct case involv-
matter of law in sexual
year
engages
injure
when 21
old
consensual
student);
conduct with
a teacher's sexual
old);
year
14
Co.
sex with
Fireman’s Fund Ins.
v.
Co.,
84, 450
N.N. v.
Mut. Ins.
153 Wis.2d
Moraine
Hill,
(Minn.1982) (infer
314
intent
N.W.2d 834
(intent
(1990)
injure inferred
N.W.2d
sexually
when adult
abuses foster child in his
voluntarily pled guilty to sexual
when insured
care);
Independent
Ins. Co. v.
Horace Mann
minor). But
MacKinnon v.
assault of a
see
Dist.,
(Minn.1984) (infer
School
N.W.2d 413
Co.,
124 N.H.
471 A.2d
Hanover Ins.
engages
when
intent
teacher
sexual relations
(1984) (court
merely be-
to infer
refused
intent
student);
grade
with tenth
State Farm Fire &
nearly
produce
Williams,
cause
certain
(Minn.
the act is
Casualty Co.
N.W.2d
1984) (infer
expectation or
that the actual
professor
and instead held
has noncon-
intent
determinative).
adult);
insured was
sensual sexual contact with disabled
Es
intention of the
adults
rape);
ground
grounds
did not constitute
relied on
the rul-
North Star
R.W.,
138,143
ing, summary judgment
Mut. Ins. Co. v.
431 N.W.2d
will be affirmed
(Minn.Ct.App.1988)
appeal
if
of the theories advanced
(refusing to infer intent
as a
are meritorious.
negligence
matter of law in a
case
involving
adults).
consenting
In this case
Inc.,
Rogеrs v. Ricane Enter.
772 S.W.2d
involving
consenting
intercourse between
(Tex.1989);
see also
v. Brash
Carr
adults, there is no evidence that G.W. knew er,
(Tex.1989).
776 S.W.2d
Con
high degree
with a
of certainty that he
versely, in this
the trial court’s order
genital herpes
would transmit
to S.S. Con- explicitly specifies
ground relied on
sequently, we will not infer intent as a
thus,
summary judgment ruling;
matter of law.
summary judgment
can
be affirmed if
theory
relied oh
the trial court is
meritorious, otherwise the case must be
III.
recognizes
remanded. This Court
argues
State Farm also
specified
“when a trial court has
failing
erred in
to affirm
ground
granting summary
on which it was
summary judgment
ground
on the
judgment, we must remand the cause to
cooperate.
G.W. breached his
allow the trial court to rule on the remain
However,
indepen
we will not consider an
ing grounds.”
Flag-Redfern
Oil
summary judgment ground
dent
speci
852 S.W.2d
484 n. 6
summary judgment
fied in the trial court’s
addition,
grants
In
when a trial court
Although
order.
we decline to affirm the
summary judgment
specific ground,
summary judgment
independent
on an
practice
this Court’s
is to “limit our consid
ground,
prejudicing
we do so without
grounds upon
eration to the
sum
right
reargue
Farm’s
on remand to
those mary judgment
granted and af
grounds
asserted
its
Delaney University
firmed.”
Hous
motion and not addressed
ton,
(Tex.1992);
Dela
specific summary
judgment order.
J.,
ney,
(Doggett,
at 62
concur
summary judgment
The trial court’s
or-
(“When
ring)
granting summary
the order
specific
specified
der was
in that the order
judgment explicitly
states
summary judg-
on which the
therefor,
underlying
and the
motion con
granted.
ment was
granted
The order
independent grounds
tains other
for the
motion,
State Farm’s
relief,
same
can be
*7
motion,
denied S.S.’
only
grounds specified in
affirmed
on the
expressly provided:
Declaratory
order.”);
“a
Veytia
the trial court’s
see also
Judgment
that,
hereby
Setter,
is
entered
(Tex.App.—San
as a mat-
to
asserted
reviewing
When
a
[S.S.].”
appeals
hold that
the
Courts
also
summary judgment granted on general
ground specifiеd
judgment
in a trial court’s
grounds,
this Court considers whether
only
summary
is the
one on which the
by
theories
summary judg-
asserted
the
judgment
Maley
can
affirmed.
v. 7111
be
support
ment movant
summary
will
the
Inc.,
229,
843
Freeway,
Southwest
S.W.2d
1992,
(Tex.App.
[14th Dist.]
— Houston
denied);
a
granting
Canales,
When trial court’s order
sum- writ
In re Estate
mary judgment
662,
specify
(Tex.App.
does not
the S.W.2d
Antonio
— San
Veytia,
granted summary
ground
summary
6. In
the trial court
that
trial
the
court based its
judgment
specific ground.
The court of
judgment motion on and did not discuss the
appeals rejected
ground
that
but considered the
grounds.
Veytia,
merits of the alternate
See
ground urged by
alternate
the movant and not
("The
correctly
appeals
S.W.2d at 305
court of
by
rejecting
addressed
ground
the trial court. After
that
preempt
held that the federal statute did not
well,
the court of
reversed
charges,
usurious late
and we affirm that hold-
and remanded to the trial court. This Court
ing").
affirmed,
only
specific
considered the
Morris,
granted.
gener-
1992, writ);
Philip
judgment
Carlisle v.
MCDONALD,
Inс.,
CIV-
(Tex.App
ally 6 ROY W.
TEXAS
. —Aus
(Rich-
denied).7
IL
PRACTICE 28.5
APPELLATE
tin
writ
Carlisle reasoned
§
PATTON,
1992);
appellate
Orsinger
ard
TIMOTHY
by
be reviewed
an
issues to
TEXAS,
IN
actually presented to
JUDGMENT
court must have been
SUMMARY
PRACTICE,
RE-
by
AND
the trial court. Accord
PROCEDURE
considered
(1992);
VIEW,
David Hittner &
ingly,
8.04
when
§
Liberato,
Lynne
Summary
in
Judgments
party
sought summary judgment
a
has
(1989).
Texas, 20 MARY’SL.J.
ST.
B,
grounds
judgment express-
on
A and
a
adopt
practice
a
Were this Court to
ly granting summary judgment on
affirming
grounds
alternate
even when
on
A,
B,
ground
mentioning ground
without
one
specifically
only
ruled
on
the trial court
can
construed to mean that the
be
required ground,
be
non-movants would
ground
trial
To
court did
consider
B.
those
negate
grounds
appeal,
on
even
all
permit
construe it otherwise would be
ap-
trial court.
not considered
the
encourage
nei-
inference
is
required
pealing party would thus
keep-
ther
nor
warranted
record
the trial court
166a(c).
argue
appeal
on
issues
ing
spirit
Rule
ruled on.
never considered or
Carlisle,
practice of dеclin-
We
this Court’s
believe
recognize that when the
Commentators
grounds
ing
alternate
for sum-
to consider
summary
expressly
judgment
states the
specifi-
trial
mary
when the
court
judgment
ground
granted
on which the trial court
cally
ground
a
continues
rules on different
motion,
precluded
appellate
court
judicious
Af-
procedure.
most
to be the
determining
viability
from
of the other
judgment
an inde-
firming
summary
a
on
grounds
reviewing
stated
the sum-
pendent
specifically
ground not
considered
PATTON,
mary judgment. TIMOTHY
usurps
court
the trial court’s
TEXAS,
SUMMARY JUDGMENT IN
rule
issues
on
PRACTICE,
authority to consider
AND
PROCEDURE
RE-
VIEW,
appellate
(1992);
Jr.,
and denies the
Cayce,
before it
8.04
John Hill
§
court’s
on
Preserving
the benefit of
trial
decision
Appeal:
Error on
A Practical
Texas,
appel-
a
Appeals
practice
Such
results
Guide
Civil
issue.
ST.
for
rendering
MARY’S
n.
decisions on issues
L.J.
77-78
420 late
n.
courts
(1991).
void-
Commentators
trial court and
also note
when not considered
multiple grounds
ing
there are
decision without allow-
summary
the trial court’s
and the
first consider
alternate
specify
order does not
Usurping
trial
au-
grounds.8
on which
judg-
economy,
granted,
promote judicial
ment was
appealing party
thority
does
negate
encouragement
must
all
serves as an
appeal.
For
but instead
reason,
summary judgment movants
suggest
this
to obtain
commentators
that the
ruling
judge
movant
from trial
on a sin-
specific
obtain broad
which can
*8
again
other
theory presented
gle
try
be sustained on
and then
with
issue
appeals,
trial
the court of
the
court
non-movants
alternate theories at
seek to
specify
ground
have the
the same or additional alternate
upon
court
the
then assert
Curry
responses
Clayton,
consid
(Tex.App.—
7.
The Court
by
the error
may
so,
justice
do
and the interests of
do
Tex.R.App.P.
doing the same.
81(b)
require
a remand.
(judgment
appeals);
in the courts of
Tex.
The courts of
are not
full
R.App.P.
(judgment
supreme
180
in the
grounds presented
accord on whether the
Garcia,
Tobin v.
court);
58,
159 Tex.
316
summary judgment movant,
396,
(1958);
S.W.2d
400-01
accord Jones v.
judg
which were not made a basis of the
Strauss,
(Tex.1988).
385
perfor
person
ordeal,
Generally, a
who sues
through this
the result-
parties
obligation whether
parties,
a contractual
loss
mance of
cost and
of time for
party
resources,
a third
judicial
party
I
to the contract or
would as a
waste
today. beneficiary
prove that all contractual
must
give
questions
to the
of law
answers
performance
prerequisite
conditions
summary judgment,
In its motion for
v. Nat’l Coun
were satisfied. See Ratcliff
alleged
Farm
that G.W.
State
breached
955,
Ins.,
Fire
735 S.W.2d
ty Mut.
by failing
cooperate
contract
with State
1987,
w.o.j.).
dism’d
(Tex.App.
writ
— Dallas
against
in its defense
cause
Farm
S.S.’s
con
applies
rule
to insurance
The same
result,
urges
As a
Farm
action.
Id.;
Ins.
Dairyland County Mut.
tracts.
in an
result
the breach
contract should
(Tex.
Roman,
154,
S.W.2d
Co. v.
summary judgment.
its
affirmance of
1973).
provision requiring that
policy
The
immediately
every
In a motion for
de
the insured
forward
recovery,
ground of
mand, notice,
process
based on an alternative
summons or other
must
whether the
being
the trial court
determine
it is a
brought
suit
a claim or
genu-
its
liability
carried
burden to show
precedent
movant
to the insurer’s
condition
existed, accept
issue of material fact
ine
Casu
Filley
under the
See
v. Ohio
(Tex.
844,
to the non-movant
Co.,
the evidence favorable
alty
805 S.W.2d
Ins.
true,
indulge
denied).
infer-
every
reasonable
App. Corpus Christi
writ
—
insurer,
ence in the non-movant’s favor. Nixon
in
notice to
By providing
Co., 690
Property Management
cooperate precludes
Mr.
the for
sured’s
(Tex.1985).
op
548-49
any agreement
S.W.2d
would
mation of
liability
or
impose
upon the insurer
erate to
alleges
In
instant
State Farm
de
a valid
deprive
insurer of
would
contract
that G.W. breached the insurance
fense. McGuire
Commercial Union
by failing
cooperate
insurance
with the
York,
351-
New
431 S.W.2d
Ins. Co. of
company. The
of the con-
relevant terms
shall,
state that
if a
tract
“the insured
brought against
made or a
notify
claim is
suit is
obligation of the insured to
The
insured,
to the
immediately
forward
or de
actually prejudice
must
the insurer
every demand, notice,
company
summons
Id.
prive the insurer of valid defense.
process
or other
him or his
For
353;
received
Ratcliff,
S.W.2d at
see
representative....”
policy
instance,
further
the in
can result when
prejudice
provides
cooperate
that the
after
insured must
not notified
a suit until
surer is
company
See,
of the
during
e.g.,
with the
the defense
is rendered.
Kimble
not,
except
Casualty
Surety
claim and
at his own
“shall
Aetna
cost,
writ
voluntarily
payment,
(Tex.App.
as-
any
make
S.W.2d 846
— Amarillo
denied);
In
at 956.
any obligation,
any
Ratcliff,
incur
ex-
sume
re
Kimble,
prejudice
court held
pense.” There
also a “no action” clause
receive
did not
provides
that no action shall
lie
sulted to the insurer when it
any
judgment was
recovery
until after default
for the
notice
to file for
though
option
obligation
unless “the
to rendered even
claim
insured’s
in
to the
ei-
still
finally
shall have been
determined
a new triаl was
available
result,
As a
by judgment against
insured after
to occur until the after their joins opinion. Assuming truthfully Justice ENOCH this that this ex- counter. objects objects any 1. The Court reliance on S.S.' The Court also overstatement of testimony sug- when it conflicts with G.W.'s. There medical credentials. While I do not G.W.'s significant is no contradiction between their re- gest that G.W. was a medical doctor or an ex- spective accounts of the circumstances. Even if pert herpes, optometrist he is an and does were, objection there the Court’s overlooks the claim to have read on the medical literature fact that S.S. is the claimant here. Her claim subject herpes. certainly stronger can be no than her own testi- mony. entirely appropriate It is to cite it but to hold her to it. might all he motivation, assigned S.S. actions plains not alter the then it does against his homeowner’s insurance fact that all intention- have G.W.’s actions were carrier, Casualty Fire Com- al. right to two- keeping for himself the pany, agree person I Court that a damages recovered thirds of to have conse- considered intended those Farm for bad faith or statuto- quences substantially which are certain to argues State Farm ry violations. follow from his actions. The Court focuses coop- a lack of actions demonstrate G.W.’s substantially certain on whether G.W. was *13 matter of as a law. eration his liaison cause her to that with S.S. would view, grant trial court did not not, The herpes. my in contract This is ground, on this and the Court rather, judgment inquiry. question, the relevant The holds that it considered therefore cannot be substantially certain is whether G.W. was appeal. disagree, I for the reasons set on having sexual S.S. intercourse with dissenting Gonzalez in his forth to her disclosing first his condition without Justice 81(c), Tex.R.App.P., requires opinion. Rule her, if not con- injure would even she did reversing a appeals, the court of G.W., herpes. surprise It tract was no court, trial judgment of the to render been, nor could it have that S.S. was ex- rendered, judgment that should have been tremely upset exposed having been necessary. a remand is This rule unless expo- her knowledge. without The to ren- appeals alone аuthorizes sure, resulted, injuries and whatever were ground urged for sum- judgment der intentionally. caused mary judgment but on not ruled The Court refers like this to encounters encourages trial trial court. The rule one as “the con- voluntary sexual acts of in specific rulings with- courts to be their senting adults”. at 379. This is a Ante remands, risking simply out rather than serious mischaracterization of S.S.’ behav- in summary judgment motions granting exposure ior. S.S. did not consent to in entirety order to their maximize herpes. She was condi- unaware G.W.’s However, I chances of affirmance. would tion, known, and had she she would have appellate far as to go so hold that avoided it. She volunteered and consented always grounds for court should address to their encounter in that she was the sense in the raised motion against not coerced her will. But she did expressly adjudicated. trial court but way. legally significant not consent appears that a If it was abandoned 892B (Second) of ToRts § Restatemеnt court, or fully trial ad- was (1979). dressed, fully argued or has not been To conclude as the Court does may inappropriate to render appeal, it may G.W.’s conduct not have been inten- judgment upon it. tional, view, my defies common sense. egregious as con- In this G.W.’s He have been mistaken about the na- been, appears to have I cannot deter- duct herpes, very ture he was deliberate from the record before us that State mine in his conduct I toward S.S. would hold noncooperation Farm has established its this conduct is not covered G.W.’s point as a matter of At one defense law. homeowner’s claim, State Farm denied of S.S.’ When S.S. tion cooperate her claim but Farm also judgment in the sued nothing G.W., defense of contends that II because G.W. did not agreed he did not defend him for to the rendi- S.S.’ $1,000,- claim. owes breached and it is intimate motion should be remand. [*] subsequent not clear whether [*] view duty to cooperate, granted breach on whether [*] [*] on this was [*] excused. or whether previously ground on Farm’s [*] I 000, provided make no ef- I that the S.S. would believe the any part grant proper. forts to collect of it from him. He court did Accord- trial ingly, I would of the reverse
court of and affirm the I
of the trial court. therefore dissent. POLLACK, OF Sheldon L. ESTATE
Deceased, Petitioner, *14 McMURREY, Respondent.
Loraine
No. D-1325.
Supreme Court of Texas. 30, 1993.
June