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SOUTHLAND LIFE INSURANCE CO. v. Estate of Small , 34 Tex. Sup. Ct. J. 457 ( 1991 )


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  • 806 S.W.2d 800 (1991)

    SOUTHLAND LIFE INSURANCE COMPANY, Petitioner,
    v.
    The ESTATE OF Martha SMALL, et al., Respondents.

    No. D-0569.

    Supreme Court of Texas.

    March 27, 1991.

    *801 Paul D. Clote, Houston, David E. Cowen, Galveston, for petitioner.

    Jimmy Williamson, Houston, for respondents.

    PER CURIAM.

    At the time of her non-work-related injury, Martha Small was employed by Mandel-Kahn Company and covered under a group health insurance policy issued by Southland Life Insurance Company. When she was dismissed by her employer six months after the accident, the insurer ceased payment of all medical expenses thereafter incurred.

    Small then filed suit against Southland Life, Mandel-Kahn, and others alleging breach of contract, breach of the duty of good faith and fair dealing, fraud, negligence, gross negligence, intentional infliction of emotional distress, and violations of the Texas Insurance Code, Deceptive Trade Practices Act (DTPA), and Employees' Retirement Income Security Act (ERISA). The trial court granted Southland Life's motion for summary judgment based upon several non-ERISA related defenses. On appeal, for the first time, Southland Life additionally urged that all of Small's claims were preempted by ERISA. Rejecting this assertion as having been waived by its nonpresentation to the trial court, the court of appeals reversed and remanded. 797 S.W.2d 74.

    The claims remanded to the trial court are among those defined as relating to an employee benefit plan and thus are preempted by ERISA. Gorman v. Life Ins. Co. of North America, 1991 WL 7964 (Tex.1991); Cathey v. Metropolitan Life Ins. Co., 805 S.W.2d 387 (Tex.1991). Under Gorman and Cathey, the court of appeals erred in holding that the preemption claim had been waived, since this defense is jurisdictional and can be raised initially on appeal. Pursuant to Tex.R.App.P. 170, we grant Southland Life's application for writ of error and, without hearing oral argument, a majority of the Court reverses the judgment of the court of appeals and renders judgment in favor of Southland Life.