George Bryant v. Progressive County Mutual Insurance Company and Kristen Winkler ( 2018 )

AFFIRMED; Opinion Filed December 12, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01023-CV
GEORGE BRYANT, Appellant
V.
PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY AND KRISTEN
WINKLER, Appellees
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-16-01385-E
MEMORANDUM OPINION
Before Justices Myers, Evans, and Brown
Opinion by Justice Myers
This case involves extra-contractual claims by an insured against his insurer and claims
adjuster concerning uninsured/underinsured motorist (UIM) insurance coverage. George Bryant
appeals the summary judgment in favor of Progressive County Mutual Insurance Co. and its claims
adjuster, Kristen Winkler. Bryant brings one issue on appeal contending the trial court erred by
(1) denying his motion to compel discovery and for continuance and by granting appellees’ motion
for protection from discovery; (2) denying Bryant’s special exceptions to appellees’ motion for
summary judgment; (3) overruling Bryant’s objections to appellees’ summary judgment evidence;
and (4) granting appellees’ motion for summary judgment. We affirm the trial court’s judgment.
BACKGROUND
On April 14, 2013, Bryant was involved in an accident with Anthony Warlow and suffered
physical injury. Warlow did not have automobile insurance. Bryant had an automobile insurance
policy with Progressive, and the policy included UIM coverage with a policy limit of $100,007.
Progressive tried to contact Bryant after receiving notice of the claim, and it sent a letter to Bryant’s
attorney ten days after the accident.
On April 24, 2014, Progressive offered to settle Bryant’s UIM claim for $15,294, but
Bryant rejected the offer. On July 31, 2014, Progressive offered Bryant $16,000, but he rejected
that offer and demanded the policy limits for UIM coverage.
On October 14, 2014, Bryant filed suit against Progressive and Winkler asserting coverage
on the UIM provisions of the policy and extra-contractual common-law bad-faith claims and
violations of the Texas Insurance Code. On January 21, 2015, the trial court granted the parties’
agreed motion to sever the UIM coverage claim from the bad-faith and insurance code claims and
abated the bad-faith and insurance code claims until after the judgment in the UIM coverage case
became final.
In January 2015, Progressive offered Bryant $25,000 to settle the UIM coverage case, but
Bryant rejected that amount. On July 22, 2015, Bryant informed Progressive that his medical
expenses were $18,346.15 and his lost wages were $18,721. Bryant told Progressive that its
$25,000 offer was $10,000 less than his medical expenses and lost wages and provided no money
for his physical pain and mental anguish. On August 10, 2016, the week before trial, Progressive
offered $40,000, but Bryant rejected the offer and continued to demand the policy limits of
$100,007.
Before trial, the trial court granted Bryant’s motion for summary judgment, concluding that
Warlow was an uninsured driver. The case was tried before a jury in August 2016. During the
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trial, Progressive stipulated that Warlow caused the accident. Bryant argued to the jury that his
medical expenses were $6,244.39, approximately half of what he demanded for medical expenses
in 2015, and that his lost wages were $12,221.04, which was about two-thirds of what he demanded
in 2015. The jury found Bryant’s damages from the accident were $74,965.43 consisting of:
medical expenses of $6,244.39; loss of earning capacity of $12,221.04; pain, suffering, and mental
anguish of $30,000; and physical impairment of $26,500. On September 21, 2016, the trial court
signed the judgment for the damages found by the jury and pre-judgment interest. On October 14,
2016, Progressive delivered a check to Bryant’s attorney for $89,473.90, which was the full
amount of the judgment plus accrued interest.
On December 9, 2016, the trial court removed the abatement order in this case, and Bryant
filed an amended petition. This petition alleged appellees violated the Insurance Code’s
requirements that they investigate Bryant’s claim reasonably, that they misrepresented the terms
of the policy by asserting they did not have the burden of proof on whether Warlow was an
uninsured driver, and that they violated the Prompt Payment Act by not paying the claim within
five days of the judgment. Bryant served appellees with discovery consisting of requests for
admissions, requests for production, requests for disclosure, and interrogatories. On January 26,
2017, appellees filed a motion for summary judgment on Bryant’s extra-contractual claims. They
also filed a motion for a protective order asking that the trial court protect them from having to
answer Bryant’s discovery demands until after the court ruled on the motion for summary
judgment. Bryant filed a motion to compel appellees to respond to his discovery demands, and he
moved for a continuance of the motion for summary judgment to conduct discovery. The trial
court denied Bryant’s motions and granted appellees’ motion for summary judgment.
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SPECIAL EXCEPTIONS TO MOTION FOR SUMMARY JUDGMENT
In his second issue, Bryant asserts the trial court erred by denying his special exceptions to
appellees’ motion for summary judgment. Special exceptions to a summary judgment may be
filed when the summary judgment grounds are unclear. McConnell v. Southside Indep. Sch. Dist.,
858 S.W.2d 337, 342 (Tex. 1993) (plurality opinion). “The purpose of special exceptions focused
upon a summary judgment motion is to ensure the parties and the trial court are focused on the
same grounds.” Stephens & Johnson Operating Co. v. Schroeder, 04-14-00167-CV, 2015 WL
4760029, at *4 (Tex. App.—San Antonio Aug. 12, 2015, pet. denied). Grounds are sufficiently
specific if they “expressly present[] to the trial court” the issue or argument that is the basis for the
relief sought. See TEX. R. CIV. P. 166a(c) (“Issues not expressly presented to the trial court by
written motion, answer or other response shall not be considered on appeal as grounds for
reversal.”); TEX. R. APP. P. 33.1(a) (to preserve an issue for appellate review there must be a
“timely request… that . . . stated the grounds for the ruling that the complaining party sought from
the trial court with sufficient specificity to make the trial court aware of the complaint, unless the
specific grounds were apparent from the context” and a trial court ruling or refusal to rule). We
review a trial court’s denial of special exceptions for an abuse of discretion. Shelton v. Kalbow,
489 S.W.3d 32, 54 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Absent a showing of
injury, the trial court’s ruling on special exceptions will not be disturbed. Gause v. Gause, 496
S.W.3d 913, 919 (Tex. App.—Austin 2016, no pet.).
Bryant brought eleven special exceptions. Only two of these, the first and eleventh special
exceptions, assert vagueness or lack of clarity in the grounds for summary judgment. The
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remaining nine go to the substance of the motion for summary judgment or the admissibility of the
evidence in support of the motion.1 They are not proper special exceptions to the motion.
Appellees moved for summary judgment on the following grounds:
A. Plaintiff’s claims for common law and statutory bad faith fail as a matter of law
because Progressive did not breach the contract.
B. Alternatively, plaintiff’s claims for common law and statutory bad faith fail as a
matter of law because there are no genuine issues of material fact.
C. Plaintiff’s misrepresentation claims fail because the statutory provisions do not
apply to plaintiff’s allegations.
D. Plaintiff’s claims for prompt payment violations fail because such provisions do
not apply to the litigation process or to the liability judgment, and Progressive
complied with the earlier timelines.
After listing the grounds for summary judgment, appellees’ motion for summary judgment
presented extensive argument in support of the grounds.
In the first special exception, Bryant asserted, “Defendant [sic] has failed to clearly set
forth the specific grounds upon which the Motion is sought.” Bryant then set forth the summary
judgment standard that the motion must present the specific grounds for summary judgment and
that the motion succeeds or fails on these grounds alone. See Sci. Spectrum, Inc. v. Martinez, 941
S.W.2d 910, 912 (Tex. 1997). The special exception did not explain how these grounds are vague
1
The remaining “special exceptions” were:
The summary judgment issues are not readily susceptible to being contested or controverted;
the motion for summary judgment is based on allegations outside the pleadings;
the motion for summary judgment is based on legal conclusions, not competent summary judgement evidence;
Taylor Blackmon’s affidavit is not based on personal knowledge;
Taylor Blackmon’s affidavit is conclusory and unsupported by facts;
Taylor Blackmon’s affidavit is a sham affidavit;
the motion for summary judgment relies on evidence not identified as an exhibit or incorporated by reference, the motion
does not identify and authenticate the exhibits relied upon, and appellees did not state they intended to rely upon unfiled
discovery;
appellees’ use of the words “extreme conduct” attempts to impose a higher burden of proof on Bryant; and
the motion for summary judgment contains speculative comments about what a juror could have done in the UIM trial;
None of these “special exceptions” asserted the summary judgment grounds were unclear or otherwise asserted the grounds for the motion for
summary judgment could not be responded to. Even if these were appropriate special exceptions, Bryant has not presented any argument explaining
how the trial court’s denial of the special exceptions harmed him. See TEX. R. APP. P. 44.1; Gause, 496 S.W.3d at 919.
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or unclear. Accordingly, Bryant has not shown the trial court’s denial of this special exception
was an abuse of discretion. Likewise, on appeal, Bryant does not explain how the grounds failed
to inform him of the basis on which appellees sought summary judgment or how the grounds
caused him injury. Therefore, Bryant has not shown that any error in the denial of the first special
exception was reversible error.
In the eleventh special exception, Bryant asserted appellees’ summary judgment ground
that there were no genuine issues of material fact “is not clear on what specific basis Defendants
are moving for summary judgment.” Bryant asserted that appellees’ six pages of argument
concerning this ground were “just a catch all of various conclusory and unsupported allegations
Defendant [sic] wants to raise, but not actual summary judgment grounds that sound more like a
no evidence motion than a traditional motion.” He asserted this part of the motion made
conclusory claims without evidence for fifteen legal and factual issues. We have reviewed the
motion for summary judgment, and it is clear it is a traditional motion for summary judgment
under rule 166a(c) and not a no-evidence motion under rule 166a(i). That Bryant lists the fifteen
legal and factual assertions associated with the ground demonstrates he understood the ground.
His argument in support of the special exception shows he believed the ground was not supported
by adequate evidence, not that the ground was unclear. Thus, this was not a proper special
exception. Moreover, Bryant has not shown how the trial court’s denial of this special exception
harmed him. See TEX. R. APP. P. 44.1; Gause, 496 S.W.3d at 919.
We conclude Bryant has not shown the trial court abused its discretion by denying the
special exceptions or that the denial of the special exceptions constituted reversible error. We
overrule Bryant’s second issue.
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SUMMARY JUDGMENT EVIDENCE
In his third issue, Bryant contends the trial court erred by overruling his objections to
Taylor Blackmon’s affidavit in support of appellees’ motion for summary judgment. Blackmon
was the claims agent for Progressive who handled Bryant’s claim. We review the trial court’s
rulings on objections to summary judgment evidence for an abuse of discretion. Lujan v. Navistar,
Inc., 555 S.W.3d 79, 84–85 (Tex. 2018).
Bryant objected to Blackmon’s affidavit as follows: “As is noted above, the affidavit is
not based on personal knowledge and contains mere conclusions rather than facts.” It appears the
“noted above” statements to which Bryant referred was the “special exception” concerning
Blackmon’s affidavit. In “Special Exception No. 5,” Bryant “objects to [Blackmon’s affidavit] in
that the Affidavit . . . is not based upon personal knowledge,” and “a summary judgment affidavit
must state that it is based on the affiant’s personal knowledge and that the facts are true.” On
appeal, Bryant asserts the statements in the affidavit were not competent summary judgment
evidence because the affidavit “fail[ed] to show how the affiant became familiar with the facts so
as to testify as a witness.”
Blackmon stated in the affidavit:
1. “I am over eighteen (18) years of age, of sound mind, and fully competent
to make this affidavit. The statements contained in this affidavit are true and
correct, and are within my personal knowledge.
2. “I am employed by [Progressive] as a Claim Representative. My
responsibilities include handling Bodily Injury, Uninsured Motorist Bodily Injury
and Underinsured Motorist Bodily Injury claims.
3. “George Bryant’s insurance claim with Progressive arises out of a motor
vehicle accident that occurred on April 13 [sic], 2013, and is known as Claim No.
XX-XXXXXXX. I was assigned to handle Mr. Bryant’s Uninsured Motorist Bodily
Injury claim.
4. “As part of my duties, I reviewed Progressive’s entire file for Claim No.
XX-XXXXXXX from its inception. I am familiar with the contents of the entire claim
file.
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Thus, in paragraph 1, Blackmon averred that the statements in the affidavit are true and that he has
personal knowledge of the statements in the affidavit. Paragraph 2 provided the information
regarding Blackmon’s position at Progressive, and paragraphs 3 and 4 established the basis for his
personal knowledge of the facts asserted in the affidavit—he reviewed the file for Bryant’s claim
as part of his duties as the Claim Representative assigned to handle Bryant’s claim. Bryant does
not explain why this information was not sufficient to establish Blackmon’s personal knowledge
of the statements in the affidavit.
Bryant objected in the trial court that the statements in the affidavit were “mere conclusions
rather than facts.” On appeal, Bryant asserts that conclusory statements are not competent
summary judgment evidence. However, Bryant does not identify which statements in the eleven
paragraphs of Blackmon’s affidavit are conclusory. Bryant’s objection at trial and his argument
on appeal are not sufficiently specific for the trial court or this Court to determine whether any
statements in the affidavit were inadmissible. See Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198,
207 (Tex. App.—Dallas 2005, no pet.); Womco, Inc. v. Navistar Int’l Corp., 84 S.W.3d 272, 281
n.6 (Tex. App.—Tyler 2002, no pet.) (objection that paragraph in affidavit “contains
unsubstantiated legal conclusions” was “itself conclusory” and not sufficiently specific).
We conclude Bryant has failed to show the trial court abused its discretion by overruling
his objections to the affidavit. We overrule Bryant’s third issue.
MOTION FOR SUMMARY JUDGMENT
In his fourth issue, Bryant contends the trial court erred by denying his motion for summary
judgment. In a traditional motion for summary judgment, the movant has the burden of showing
that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.
TEX. R. CIV. P. 166a(c). In deciding whether a disputed material fact issue exists precluding
summary judgment, evidence favorable to the nonmovant will be taken as true. In re Estate of
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Berry, 280 S.W.3d 478, 480 (Tex. App.—Dallas 2009, no pet.). Every reasonable inference must
be indulged in favor of the nonmovant and any doubts resolved in its favor. City of Keller v.
Wilson, 168 S.W.3d 802, 824 (Tex. 2005). We review a summary judgment de novo to determine
whether a party’s right to prevail is established as a matter of law. Dickey v. Club Corp., 12 S.W.3d
172, 175 (Tex. App.—Dallas 2000, pet. denied).
Bryant’s bad-faith claims fall into two categories: (1) failure to investigate reasonably and
(2) misrepresentation. Bryant also brought a claim for violation of the Insurance Code’s Prompt
Payment Act.
Reasonable Investigation
Bryant alleged appellees failed to investigate reasonably and thereby violated common-law
duties and section 541.060 of the Insurance Code by:
failing to attempt in good faith to effectuate a prompt, fair, and equitable
settlement of a claim with respect to which the insurer’s liability has become
reasonably clear;
failing to promptly provide to a policyholder a reasonable explanation of the
basis in the policy, in relation to the facts or applicable law, for the insurer’s
denial of a claim or offer of a compromise settlement of a claim;
failing within a reasonable time to affirm or deny coverage of a claim to a policy
holder; and
refusing to pay a claim without conducting a reasonable investigation with
respect to the claim.
The Insurance Code requires automobile insurers to offer Texas motorists UIM coverage.
TEX. INS. CODE ANN. § 1952.101(b). A motorist is underinsured if the motorist’s liability
insurance is insufficient to pay for the injured party’s actual damages. Brainard v. Trinity
Universal Ins. Co., 216 S.W.3d 809, 812 (Tex. 2006). The UIM insurer has the obligation of
paying the damages the insured is “legally entitled to recover from owners or operators of
uninsured or underinsured motor vehicles . . . for bodily injury, sickness, disease, or death, or
property damage.” INS. § 1952.101(a). The supreme court has interpreted this language to mean
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“the UIM insurer is under no contractual duty to pay benefits until the insured obtains a judgment
establishing the liability and underinsured status of the other motorist.” Brainard, 216 S.W.3d at
818. To establish the liability of the uninsured motorist, “the insured must establish the uninsured
motorist’s fault and the extent of the resulting damages before becoming entitled to recover UIM
benefits.” Wellisch v. United Servs. Auto. Ass’n, 75 S.W.3d 53, 56 (Tex. App.—San Antonio
2002, pet. denied); see Hamburger v. State Farm Mut. Auto Ins. Co., 361 F.3d 875, 880 (5th Cir.
2004) (quoting Wellisch). “Neither requesting UIM benefits nor filing suit against the insurer
triggers a contractual duty to pay.” Brainard, 216 S.W.3d at 818. “Thus, an insurer generally
cannot be liable on bad faith claims arising from its denial or failure to investigate claims that it
has no duty to pay.” In re Am. Nat’l Cty. Mut. Ins. Co., 384 S.W.3d 429, 438 (Tex. App.—Austin
2012, orig. proceeding); see Weir v. Twin City Fire Ins. Co., 622 F. Supp. 2d 483, 486 (S.D. Tex.
2009) (UIM insurer cannot be in bad faith for failing to investigate or pay claim before trial
“because it is the trial of the UIM claim, at which it will be determined who was at fault and the
amount of damages, that constitutes the investigation”). When the trial court signs the judgment
awarding an insured UIM benefits against the insurer, the insurer’s duties of good faith to the
insured end and “the only legal relationship between the parties following entry of judgment [is]
that of judgment creditor and judgment debtor.” Mid-Century Ins. Co. of Tex. v. Boyte, 80 S.W.3d
546, 548 (Tex. 2002) (per curiam) (quoting Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 69
(Tex. 1997)).
Bryant alleged appellees breached their extra-contractual duties to him by making a pretrial
offer to settle the case for less than the amount of his medical expenses and lost wages. However,
as Brainard makes clear, appellees had no duty to make any payment on Bryant’s claim until the
judgment in the UIM case finding Warlow, the uninsured driver, caused Bryant’s damages and the
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amount of those damages. Therefore, the fact that appellees offered Bryant less than the amount
of his medical expenses and lost wages did not breach any duties they owed to Bryant.
Bryant also argues appellees’ pretrial offer to settle the UIM litigation for less than the
amount of his medical expenses and lost wages was evidence of appellees’ failure to make a
reasonable investigation. We disagree. Appellees had no obligation to make any payment or
settlement in this case before the trial court rendered judgment. Furthermore, appellees stated in
their motion for summary judgment that they “cannot be guilty of not performing a proper
investigation of Plaintiff’s UM claim because the investigation of the UM was the trial at which it
was determined who was at fault and the amount of damages.” Bryant asserts this statement “is
not supported by any legal authority.” However, appellees cited Weir, which supports the
statement: “it is the trial of the UIM claim . . . that constitutes the investigation.” Weir, 622 F.
Supp. 2d at 486. Because the trial was the investigation, appellees conclusively established they
did not fail to conduct a reasonable investigation.
Bryant also argues appellees failed to make a prompt, fair, and equitable settlement of the
claim to which their liability was reasonably clear. INS. § 541.060(a)(2)(A). Blackmon testified
appellees never denied coverage, and Progressive affirmed coverage within a reasonable time by
paying the full amount of Bryant’s damages as found by the jury. In Brainard, the supreme court
determined that an insurer’s payment of a UIM claim within thirty days of the signing of the
judgment was a prompt payment. Brainard, 216 S.W.3d at 815 (citing Henson v. S. Farm Bureau
Cas. Ins. Co., 17 S.W.3d 652, 653–54 (Tex. 2000)). Progressive’s liability on the UIM claim was
not “reasonably clear” until the trial court signed the judgment on the claim. Progressive paid the
full amount of the judgment plus accrued post-judgment interest, which was the full amount to
which Bryant was entitled. Therefore, the evidence conclusively proved appellees made a prompt,
fair, and equitable settlement of the claim after their liability became reasonably clear.
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Bryant argues appellees’ liability on the claim became clear before trial because appellees
stipulated that the claim was covered under the insurance policy. At a hearing on the motion to
quash some of Bryant’s discovery requests, appellees’ attorney stipulated “that the policy was in
force, that the premiums were paid up, and that it covers this accident up to whatever the policy
limits were for that.” The attorney also stated he had no evidence that the other driver was insured.
However, this did not establish the amount of Progressive’s liability on the claim because there
was no stipulation as to damages. Bryant’s pretrial demand for medical expenses and lost wages
before trial was over $35,000, yet at the trial, Bryant’s attorney argued the damages for medical
expenses and lost wages were about half that amount, $18,465.43. Furthermore, Bryant does not
explain how any particular amount for physical pain and mental anguish became clear before trial.
Bryant has not shown that Progressive’s liability on the claim became clear before trial.
Concerning Bryant’s allegation that appellees failed to provide Bryant with a reasonable
explanation for denying the UIM claim or refusing an offer to compromise the claim, appellees
presented evidence, Blackmon’s affidavit. Blackmon testified that Progressive never denied
Bryant’s UIM claim. Blackmon also testified that Bryant rejected all of Progressive’s offers to
settle the case for less than the policy limit and that he demanded the full policy limit for UIM
coverage. A compromise involves concessions by both sides. See Vanasek v. Underkofler, 50
S.W.3d 1, 14 n.45 (Tex. App.—Dallas 1999) (“A compromise and settlement is the conclusion of
a claim through a contract in which the parties agree to mutual concessions to avoid resolving their
controversy through litigation.”), rev’d in part on other grounds, 53 S.W.3d 343 (Tex. 2001);
Compromise, WEBSTER’S THIRD NEW INT’L DICTIONARY (1981) (“a settlement by arbitration or
by consent reached by mutual concessions”). Bryant’s demands for the policy limits were not
concessions and therefore were not offers to compromise. Bryant did not present any evidence
that appellees denied the claim or that he offered to compromise the claim. Thus, the evidence
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conclusively establishes that Progressive never denied the claim and never refused an offer to
compromise the claim.
Bryant argues the supreme court’s opinion in USAA Texas Lloyds Co. v. Menchaca, 545
S.W.3d 479 (Tex. 2018), rejects each of appellees’ summary judgment grounds. In Menchaca,
Menchaca’s house was damaged by Hurricane Ike, and she contacted her insurer, USAA. Id. at
485. USAA’s adjuster determined the home suffered damage covered by the policy, but not
enough to exceed the deductible, and USAA denied the claim. Id. Menchaca sued USAA for
breach of the policy and for unfair settlement practices under the Insurance Code. The only
damages she sought were the policy benefits plus attorney’s fees and court costs. Id. The jury
found Menchaca failed to prove USAA breached the policy, but it also found USAA committed
the statutory violation of refusing to pay a claim without conducting a reasonable investigation.
Id. at 485–86. The jury determined Menchaca’s damages were $11,350. Id. at 486. The trial court
disregarded the jury’s answer about breach of the policy and rendered judgment for Menchaca
based on the jury’s findings on the statutory violation and damages. Id. The court of appeals
affirmed. Id. The supreme court used the case as “an opportunity to provide clarity regarding the
relationship between claims for an insurance-policy breach and Insurance Code violations.” Id. at
488. USAA argued that because the jury found the denial of the claim did not breach the policy,
there could be no damages based on the policy benefits for statutory violations. The supreme court
explained that as a general rule, “an insured cannot recover policy benefits for an insurer’s statutory
violation if the insured does not have a right to those benefits under the policy.” Id. at 490. That
is because an insurer cannot act in bad faith by promptly denying a claim that is not covered. Id.
The supreme court acknowledged there can be situations where a statutory violation can cause
damages based on the policy benefits even though the policy did not provide the insured a right to
receive those benefits:
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An insured who establishes a right to receive benefits under the insurance policy
can recover those benefits as actual damages under the Insurance Code if the
insurer’s statutory violation caused the loss of the benefits. Id. at 495.
Even if the insured cannot establish a present contractual right to policy benefits,
the insured can recover benefits as actual damages under the Insurance Code if the
insurer’s statutory violation caused the insured to lose that contractual right. Id. at
497.
If an insurer’s statutory violation causes an injury independent of the loss of policy
benefits, the insured may recover damages for that injury even if the policy does
not grant the insured a right to benefits. Id. at 499.
However, an insured cannot recover any damages based on an insurer’s statutory violation if the
insured had no right to receive benefits under the policy and sustained no injury independent of a
right to benefits. Id. at 500. In Menchaca, the court concluded in a fractured opinion that the trial
court erred by disregarding the jury’s finding that the insurer did not breach the policy, and the
supreme court remanded the case for a new trial.
Unlike Menchaca, this case does not involve the denial of benefits under the policy.
Progressive promptly paid the full amount of the trial court’s judgment that established the
damages caused to Bryant by the uninsured driver. Bryant did not allege that any statutory
violation by appellees caused him to lose policy benefits, to lose a contractual right to policy
benefits he did not receive, or to suffer an injury independent of the loss of policy benefits.
Therefore, to the extent Menchaca is applicable to this case, we apply the general rule and conclude
Bryant is not entitled to additional benefits under the policy as damages for any statutory violation
because he has no right to any benefits beyond the amounts found by the jury, which Progressive
promptly paid.
We conclude Bryant has not shown the trial court erred by granting appellees’ motion for
summary judgment on Bryant’s claims that appellees failed to conduct a reasonable investigation.
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Misrepresentation
Bryant alleged appellees violated sections 541.060 and .061 and 544.003 of the Insurance
Code by:
1. misrepresenting to a claimant a material fact or policy provision
relating to coverage at issue (§§ 541.060(a)(1); 541.061(1));
2. misrepresenting an insurance policy by failing to state a material fact
necessary to make other statements not misleading (§ 541.061(2));
3. misrepresenting a policy by making a statement that would mislead
a person to a false conclusion of a material fact (§ 541.061(3));
4. misrepresenting a policy by making a material misstatement of law
(§ 541.061(4));
5. misrepresenting a policy by failing to disclose a matter required by
law to be disclosed (§ 541.061(5)); and
6. misrepresenting to a claimant pertinent facts or policy provisions
relating to the coverage at issue.2
In a discovery hearing on February 13, 2015, Progressive’s attorney told the court, “I don't have
any evidence that he [Warlow] [is] insured, and I'm just putting him [Bryant] to his burden.”
Bryant also presented evidence that during the proceeding on his no-evidence motion for summary
judgment concerning Warlow’s insurance status, appellees’ lawyer sent a letter to the trial court
stating,
Since Plaintiff has the burden of proof to show that the other automobile involved
in the collision was an uninsured motor vehicle, I cannot stipulate to it on behalf
the Defendant; however, I again confirm that Defendant has no evidence to the
contrary and will not be contesting that issue at the time of trial.
The policy and a statute provide that Progressive had the burden of proving Warlow’s insurance
status.3 Five days after appellees’ lawyer sent the letter, the trial court granted Bryant’s no-
2
Bryant alleged in his petition that this last prohibition is from section 544.003 of the Insurance Code. That statute contains exceptions to
the prohibition against unfair discrimination in section 544.002. See INS. §§ 544.002, .003. Section 544.003 does not appear to prohibit
misrepresentations of pertinent facts or policy provisions.
3
The policy stated, “If we [Progressive] and an insured person do not agree as to whether a vehicle is actually uninsured or underinsured, the
burden of proof as to that issue shall be on us.” (Boldface omitted.) See also INS. § 1952.109 (“The insurer has the burden of proof in a dispute as
to whether a motor vehicle is insured.”).
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evidence motion for summary judgment on Warlow’s insurance status, which meant the court
concluded that Progressive had the burden of proof. See TEX. R. CIV. P. 166a(i) (no-evidence
summary judgment appropriate on issue nonmovant has burden of proving). Appellees asserted
in their motion for summary judgment that the prohibitions against misrepresentations concerning
a policy in sections 541.060 and .061 do not apply to in-court statements by a party’s attorney and
do not apply to representations to anyone other than the claimant of the policy benefits. Appellees
also assert they proved as a matter of law that Bryant could have had no damages from the
misrepresentation of the burden of proof.
The first and sixth of Bryant’s allegations concern misrepresentations to a “claimant.”
Progressive’s attorney’s misrepresentation of the policy was to the trial court. The trial court was
not a claimant, so the letter by Progressive’s attorney and his argument to the trial court
misrepresenting the burden of proof did not violate these provisions.
Appellees also argue their attorney’s misrepresentation of the policy did not harm Bryant.
Bryant alleged his damages were having to bring suit and to retain legal counsel. Bryant filed his
suit in 2014, but the misrepresentations he alleged occurred in 2015 and 2016, after he had retained
counsel and brought suit. Therefore, any statements appellees’ counsel made to the trial court and
Bryant’s counsel during the litigation could not have caused Bryant to retain counsel and bring
this suit.4
We conclude Bryant has not shown the trial court erred by granting appellees’ motion for
summary judgment on his misrepresentation claims.
4
Appellees also asserted that sections 541.060 and .061’s prohibitions on misrepresentations concerning the policy’s provisions apply only
to direct communications between the insurer and the insured and do not apply to communications between the attorneys or the attorneys and the
trial court during litigation. Section 541.060 requires that an actionable misrepresentation be made to a “claimant,” but section 541.061 contains
no such express restriction. Compare INS. § 541.060(a)(1) with id. § 541.061. Appellees’ argue there is no reason for section 541.061 to apply to
misrepresentations during litigation when both sides are represented by counsel because in that situation there is no “disparity of bargaining power
inherent in the insurer-insured relationship as exemplified by the exclusive control that the insurer exercises over the processing of claims,” quoting
Stewart Title Guaranty Co. v. Aiello, 941 S.W.2d 68, 71 (Tex. 1997). Stewart Title concerned the existence of a duty of good faith and fair dealing
on an insurer to its insured in investigating claims and making timely payment on covered losses. Id. The case did not concern interpretation of a
statutory prohibition on misrepresenting a policy. Because we have concluded appellees’ have proved Bryant had no damages from the
misrepresentation, we do not reach the question of whether section 541.061 applies to the policy misrepresentation in this case.
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Prompt Payment of Claims Act Violation
Bryant argues the trial court erred by granting appellees’ motion for summary judgment on
his claim that Progressive violated sections 542.055 and .057 of the Prompt Payment of Claims
Act. See INS. §§ 542.051–.061.
Bryant asserted Progressive violated section 542.055 by not timely acknowledging receipt
of the claim, commencing investigation of the claim, and requesting all necessary items,
statements, and forms from Bryant. Section 542.055(a) provides:
(a) Not later than the 15th day . . . after the date an insurer receives notice of a
claim, the insurer shall:
(1) acknowledge receipt of the claim;
(2) commence any investigation of the claim; and
(3) request from the claimant all items, statements, and forms that the
insurer reasonably believes, at that time, will be required from the claimant.
INS. § 542.055(a). The record shows Bryant notified Progressive of the accident on the day it
occurred, April 14, 2013. Progressive sent a letter to Bryant’s attorney on April 24, 2013, ten days
after the notification of the claim, acknowledging receipt of the claim and requesting specific
information. The letter also marked the commencement of the investigation. Thus, Progressive
proved conclusively that it complied with section 542.055.
Bryant argues there is some evidence showing Progressive violated section 542.057 by
failing to pay his claim within five days of the trial court’s signing the judgment. Section 542.057
provides, “Except as otherwise provided by this section, if an insurer notifies a claimant under
Section 542.056 that the insurer will pay a claim or part of a claim, the insurer shall pay the claim
not later than the fifth business day after the date notice is made.” Id. § 542.057(a). Progressive
paid the claim twenty-four days after the trial court signed the judgment. This Court has held the
deadlines in the Prompt Payment of Claims Act for the payment of claims do not apply to the
litigation process for UIM claims. See DeLagarza v. State Farm Mut. Auto. Ins. Co., 175 S.W.3d
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29, 33 (Tex. App.—Dallas), supplemental opinion on reh’g, 181 S.W.3d 755 (Tex. App.—Dallas
2005, pet. denied). We conclude the trial court did not err by granting Progressive’s motion for
summary judgment on this claim.
Bryant has not demonstrated on appeal that the trial court erred by granting appellees’
motion for summary judgment. We overrule Bryant’s fourth issue.
MOTIONS CONCERNING DISCOVERY AND FOR CONTINUANCE
In his first issue, Bryant contends the trial court erred by denying his motion to compel
discovery and his motion for continuance and by granting appellees’ motion for protection from
his discovery demands. Bryant argues these orders prevented him from conducting discovery
necessary to address issues raised in appellees’ motion for summary judgment. We review the
trial court’s rulings on these motions for an abuse of discretion. See Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150, 161 (Tex. 2004) (motion for continuance); Dillard Dept. Stores, Inc. v.
Hall, 909 S.W.2d 491, 492 (Tex. 1995) (per curiam) (motion to compel discovery); Killingsworth
v. Hous. Auth. of City of Dallas, 447 S.W.3d 480, 496 (Tex. App.—Dallas 2014, pet. denied)
(protection from discovery). “A trial court abuses its discretion when it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Joe, 145 S.W.3d
at 161.
Discovery
Bryant served Progressive and Winkler each with requests for admission (87 to Winkler
and 93 to Progressive) and interrogatories (17 to Winkler and 19 to Progressive), and he also served
them jointly with a request for disclosure (all information under rule 194.2) and a request for
production (33 items). Appellees filed a motion for protection from these discovery requests.
Appellees objected that the discovery was not relevant to this case, using many of the
arguments presented in their motion for summary judgment or because the discovery was relevant
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only to the underlying UIM lawsuit. Appellees also objected that some of the discovery requests
were overly burdensome, were unclear, or required disclosure of appellees’ trade secrets and
proprietary information. Bryant responded by filing a motion to compel appellees to answer the
discovery. The trial court denied Bryant’s motion to compel and granted appellees’ motion for
protection.
As discussed above, Bryant’s extra-contractual claims fail because appellants did not
breach the insurance policy and Bryant did not plead any injury independent of the policy benefits.
Nor did he plead that appellees’ bad-faith acts prevented him from recovering policy benefits to
which he would otherwise have been entitled. Also, because the underlying claim was pursuant
to a UIM policy, appellants had no duty to investigate the claim outside the underlying lawsuit that
established Warlow’s uninsured status and liability and the amount of Bryant’s damages.
Progressive had no duty to pay or offer to settle the claim until the trial court signed the judgment
in the underlying lawsuit establishing the amount of Bryant’s damages and Progressive’s liability
under the UIM policy. The evidence conclusively established Progressive paid this amount
promptly, and we have concluded the Prompt Payment of Claims Act did not apply to
Progressive’s payment after the judgment in the underlying case. And, Bryant had no damages
from appellees’ attorney’s misrepresentation of the burden of proof. In light of these holdings,
none of the discovery Bryant sought in the requests for production and admissions and the
interrogatories was relevant to any of the issues in the motion for summary judgment.
The discovery Bryant sought in his request for disclosure, the information under rule 194.2,
was all information either that Bryant had from the underlying UIM trial (the parties’ names and
addresses), from the pleadings and motions in this case (appellee’s legal theories and witness
statements), or that was not relevant to the motion for summary judgment (damages calculations,
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expert-witness information, insurance, settlements, and responsible third parties). See TEX. R. CIV.
P. 194.2
Also, Bryant does not challenge on appeal appellees’ assertions in their motion for
protective order that one of the requests for production was overly burdensome, eighteen
interrogatories and seven requests for production were overly burdensome and too vague, and
twenty-one interrogatories and ten requests for production sought information involving
Progressive’s trade secrets or proprietary and confidential information. When a trial court issues
an adverse ruling without specifying its reasons for doing so, the appellant must challenge each
independent ground asserted by the appellee supporting the adverse ruling because it is presumed
that the trial court considered all of the asserted grounds. See Oliphant Fin. LLC v. Angiano, 295
S.W.3d 422, 423–24 (Tex. App.—Dallas 2009, no pet.) (“If an independent ground fully supports
the complained-of ruling or judgment, but the appellant assigns no error to that independent
ground, we must accept the validity of that unchallenged independent ground, and thus any error
in the grounds challenged on appeal is harmless because the unchallenged independent ground
fully supports the complained-of ruling or judgment.”); Prater v. State Farm Lloyds, 217 S.W.3d
739, 740–41 (Tex. App.–Dallas 2007, no pet.) (“When a separate and independent ground that
supports a ruling is not challenged on appeal, we must affirm the lower court's ruling.”). Because
Bryant does not challenge the trial court’s rulings on these grounds, he has not shown the trial
court abused its discretion by granting appellees’ motion for protection from discovery and
denying his motion to compel concerning these discovery requests.
We conclude Bryant has not shown the trial court abused its discretion in the discovery
orders.
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Continuance
Bryant argues the trial court abused its discretion by denying his motion for continuance
because a continuance was necessary for him to conduct the discovery he requested from appellees.
We have concluded the trial court did not abuse its discretion by denying Bryant’s motion to
compel appellees to answer the discovery. Therefore, the trial court did not abuse its discretion by
denying Bryant’s motion for a continuance to conduct the discovery.
We overrule Bryant’s first issue.
CONCLUSION
We affirm the trial court’s judgment.
/Lana Myers/
LANA MYERS
JUSTICE
171023F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GEORGE BRYANT, Appellant On Appeal from the County Court at Law
No. 5, Dallas County, Texas
No. 05-17-01023-CV V. Trial Court Cause No. CC-16-01385-E.
Opinion delivered by Justice Myers.
PROGRESSIVE COUNTY MUTUAL Justices Evans and Brown participating.
INSURANCE COMPANY AND
KRISTEN WINKLER, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellees PROGRESSIVE COUNTY MUTUAL INSURANCE
COMPANY AND KRISTEN WINKLER recover their costs of this appeal from appellant
GEORGE BRYANT.
Judgment entered this 12th day of December, 2018.
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