Michelle Romans v. Allstate County Mutual Insurance Company ( 2002 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-01-00133-CV ______________________________



MICHELLE ROMANS, Appellant

V.

ALLSTATE COUNTY MUTUAL INSURANCE COMPANY, Appellee

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On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 99-C-0826-202

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Before Morriss, C.J., Grant and Ross, JJ. Opinion by Justice Ross

O P I N I O N

Michelle Romans appeals the trial court's judgment in favor of Allstate Insurance Company. In her petition, Romans alleged that she suffered injuries in an automobile collision with Charnell Moore; that Moore was negligent; that Moore's negligence was the proximate cause of Romans' injuries; that Moore was covered by an insurance policy with a policy limit of $25,000.00; that Moore's insurer paid Romans $25,000.00 under the policy; that Romans was covered by an underinsured motorist policy with Allstate; and that Allstate was liable under that policy for Romans' damages in excess of $25,000.00.

The case was tried to a jury, and at the end of trial, the jury was asked whether Moore's negligence, if any, proximately caused the collision. The jury answered affirmatively. The jury was also asked what sum of money would fairly and reasonably compensate Romans for her injuries, if any. The jury assessed her damages at $14,025.00. Based on the jury's answers, the trial court rendered judgment in favor of Allstate.

At trial, Romans offered evidence that Moore caused the collision, that she (Romans) suffered a back injury in the collision, and that she sustained medical costs associated with her injuries. On appeal, Romans contends the trial court erred in sustaining Allstate's objections to certain exhibits Romans attempted to introduce at trial that, according to Romans, would have provided evidence her damages were greater than the jury ultimately found. Although we do not agree the trial court erred, we need not reach the issue because, as Allstate observes, the trial court's judgment can be upheld on Romans' failure to introduce evidence in support of her breach of contract claim.

No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes the error complained of 1) probably caused the rendition of an improper judgment, or 2) probably prevented the appellant from properly presenting the case to the court of appeals. Tex. R. App. P. 44.1(a). The elements of a breach of contract claim are: 1) the existence of a valid contract; 2) performance or tendered performance by the plaintiff; 3) breach of the contract by the defendant; and 4) damages to the plaintiff resulting from the breach. Taub v. Houston Pipeline Co., 75 S.W.3d 606, 615 (Tex. App.-Texarkana 2002, pet. filed); Frost Nat'l Bank v. Burge, 29 S.W.3d 580, 593 (Tex. App.-Houston [14th Dist.] 2000, no pet.). While Texas law does not require a plaintiff suing under an insurance policy to introduce the entire policy into evidence, the plaintiff must at least introduce the provisions of the policy allowing recovery. Paragon Sales Co. v. N.H. Ins. Co., 774 S.W.2d 659, 661 (Tex. 1989); see Tex. Farmers Ins. Co. v. Murphy, 996 S.W.2d 873, 879 (Tex. 1999).

In the present case, Romans did not present any evidence that she had an insurance policy with State Farm or that the policy contained an underinsured motorist provision. Therefore, even if the trial court erred in excluding the exhibits about which Romans complains, the error did not cause the rendition of an improper judgment because Romans failed to introduce evidence of a valid contract in support of her breach of contract claim.

The judgment is affirmed.

Donald R. Ross

Justice

Date Submitted: July 16, 2002

Date Decided: August 22, 2002

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