the Estate of Franklin Johnny Gajewsky v. John Hancock Life Insurance Company, Reobert B. Charron D/B/A Charron Agency and the City of Houston

Affirmed and Memorandum Opinion filed May 3, 2005

Affirmed and Memorandum Opinion filed May 3, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00748-CV

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THE ESTATE OF FRANKLIN JOHNNY GAJEWSKY, Appellant

V.

JOHN HANCOCK LIFE INSURANCE COMPANY, ROBERT B. CHARRON D/B/A CHARRON AGENCY, AND THE CITY OF HOUSTON, Appellees

On Appeal from the Probate Court No. 1

Harris County, Texas

Trial Court Cause No. 336,766-401

M E M O R A N D U M   O P I N I O N

This case involves a dispute over the proper amount of life insurance proceeds. The Estate of Franklin Johnny Gajewsky appeals from summary judgments granted to John Hancock Life Insurance Company, Robert B. Charron d/b/a Charron Agency, and the City of Houston in the Estate’s lawsuit against them.  The Estate sued the appellees alleging breach of contract and violation of article 21.21 of the Texas Insurance Code.  On appeal, the Estate contends that the existence of material issues of fact precludes summary judgment.  We affirm.

Factual Background

Franklin Gajewsky retired from his employment with the City of Houston in 2002. As a City employee, he was covered by a group life insurance policy underwritten by John Hancock.  Under the terms of the policy in effect at the time of Gajewsky’s retirement, the City paid the premiums for “basic life” coverage for each employee, providing coverage in an amount equal to the employee’s annual salary, rounded to the nearest $1,000.  At the time of his retirement, Gajewsky’s annual salary was $36,000.  Also under the policy, employees were entitled to obtain additional or supplemental coverage by paying additional premiums.  The summary judgment record is somewhat inconsistent on this issue, but it appears that Gajewsky declined the additional coverage on the two occasions he was permitted to enroll.^[1]

The group policy provided that a retiree could elect to continue basic life coverage of $5,000 if the retirement date was on or after January 1, 1990.^[2]  The policy also contained a “conversion privilege” that permitted employees to convert the group policy to an individual policy upon retirement.  In order to effect conversion, a retiree was required to submit a written application and pay the first month’s premium directly to John Hancock within 31 days following the date of retirement. The policy resulting from conversion could not be for greater coverage than the employee had at the time of retirement (either $36,000 or $77,000 for Gajewsky).  The rates for the converted policy would be based on the rates currently used by John Hancock at the time of issuance.

On January 8, 2002, prior to retirement, Gajewsky completed a City of Houston Retiree Basic Life Insurance Form (hereinafter “the Form” or “the Basic Life Insurance Form”).  On the Form, Gajewsky checked a box next to the following statement:  “I have elected to retain $5,000 basic life insurance coverage for myself.  I authorize my Pension System to deduct the monthly premium for the coverage from my pension check.”

Approximately four months later, Gajewsky received a Notice of Conversion Privilege (hereinafter “the Notice”) provided to him by the City.^[3]  The Notice contains a “Part A” and a “Part B.”  Part A, which was to be completed by a “life administrator or human resources liaison,” indicates that as of October 1, 1998, Gajewsky was enrolled in $36,000 in “Basic Coverage” and $41,000 in “Voluntary Coverage.”^[4]  It further states that group coverage would terminate on April 15, 2002.  Part B is entitled “Request For Quotation To Be Completed By Person Requesting Conversion Information.”  It contains blanks for personal information and the amount of coverage the person wishes to convert.  It specifies that “[y]ou can convert all or any portion of your coverage” and “[u]pon receiving this form, we will send you coverage information, premium rates and application/enrollment forms.”  Part B was not filled in.  The reverse side of the Notice also instructs that “[y]ou can convert any amount up to the benefit level you had under the group plan.”  It states that “[t]o receive a costs and benefits quotation” the employee needs to “[c]omplete all information” in Part B.  It further states that “[c]onversion rights will expire unless the completed form is mailed to The John Hancock Houston Charron Agency” within 31 days of the date on which group coverage terminates or 15 days from the date the retiree receives the Notice, whichever is later. Lastly, the Notice states that any questions on how to complete the Notice should be directed to “the Charron Agency.”^[5]

Although Gajewsky apparently did not fill in any information on the Notice and the record does not contain an application for conversion coverage (as was required for conversion by both the group policy and the Notice), the Estate contends that Gajewsky did file an application.^[6]  In support of this assertion, the Estate filed affidavits by David Nitsch, Gajewsky’s son-in-law.

Gajewsky retired in April 2002.  On April 15, 2002, the Houston Municipal Employees Pension System informed him by letter that $1.25 would be deducted from his monthly pension check for life insurance premiums.  Gajewsky died on January 1, 2003.  Subsequently, John Hancock tendered a check to his beneficiary, his daughter, in the amount of $5,001.71.

The Estate sued John Hancock, Charron, and the City, claiming initially that each of the defendants breached their agreement with Gajewsky.  Charron and the City filed motions for summary judgment, and the trial court granted the motions.  John Hancock filed its motion for summary judgment, but before the court ruled on it, the Estate amended its pleadings to allege a violation of article 21.21 of the Insurance Code.  Then, in succession, the court granted John Hancock’s original motion, John Hancock filed a second motion contesting the Insurance Code allegation, and the court granted the second motion.

John Hancock

On appeal, the Estate contends that the trial court erred in granting summary judgment favoring John Hancock on both the breach of contract and article 21.21 claims.  We address each contention in turn.

In its Third Amended Original Petition, the Estate pleaded breach of contract against John Hancock.  In order to prove a breach of contract, a plaintiff must demonstrate:  (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 sustained by the plaintiff as a result of the breach.  Renteria v. Trevino, 79 S.W.3d 240, 242 (Tex. App.—Houston [14th Dist.] 2002, no pet.).  Specifically, the Estate alleged that (1) Gajewsky entered into a written agreement with John Hancock, (2) John Hancock was obligated under the agreement to convert the insurance policy to an individual plan, and (3) John Hancock failed to fulfill its obligations, including the obligation to pay $77,000 in life insurance proceeds upon Gajewsky’s death.^[7]

John Hancock filed a no-evidence motion for summary judgment, alleging that the Estate could produce no evidence that Gajewsky activated the conversion privilege or that John Hancock breached any obligation to Gajewski.^[8]  We utilize the normal standards in reviewing the grant of a no-evidence summary judgment. See Tex. R. Civ. P. 166a(i); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).

In its response to the motion, the Estate made numerous conclusory arguments, claiming that there was a contract regarding insurance policies, premiums were withheld from Gajewsky’s pension checks, the defendants were obligated to convert the group policy to an individual policy, Gajewsky submitted a timely application for conversion, John Hancock failed to pay the correct proceeds, and John Hancock failed to provide competent summary judgment evidence. Attached to the response was (1) an affidavit by David Nitsch, Gajewsky’s son-in-law, (2) the letter from the Pension System informing Gajewsky that $1.25 was being withheld from his monthly check for life insurance, and (3) the Notice of Conversion Privilege form.  On appeal, the Estate also makes an argument based on Gajewsky’s completion of the Basic Life Insurance Form, which was attached to John Hancock’s motion.  We discuss each item in turn.

At the beginning of his affidavit, Nitsch avers generally that he has personal knowledge of the facts stated in the affidavit.  He then says that he “discussed these facts with employees and agents of the City of Houston and with Frank Gajewsky.”  Beyond this general, introductory statement, Nitsch provides no basis for his statements in the affidavit.  Nitsch avers

Per the terms of the Group Policy, Franklin Johnny Gajewsky submitted a written application and paid the first month’s premium within the 31 days after the date of his retirement and timely paid all other premiums due.  The City and John Hancock were aware that Gajewsky was paying insurance premiums on the $77,000 life insurance policy.

Franklin Johnny Gajewski never received any notice of conversion rights. The City failed to give adequate notice by failing to sign and date the notice of conversion.  John Hancock was aware that Gajewsky did not receive meaningful and effective notice of the conversion.  However, in spite of the City’s failure to provide the forms, Franklin Johnny Gajewsky did provide an application to convert his group life policy to the City.

Franklin Johnny Gajewsky and Defendants entered into a contract (the “Contract”) in connection with the issuance of insurance policies to Gajewsky as an employee and a retiree.  Monthly premiums were withheld from the Gajewsky’s [sic] monthly pension check to pay for the insurance.  Upon retirement, certain insurance rights vested and Defendants became obligated to convert the policies to individual plans.  Defendants failed to fulfill their obligation and ignored Plaintiff’s [sic] rights and Defendants’ duties to Plaintiff [sic].  Defendants Hancock and Charron were designated by the City as agents for the City.

On Franklin Johnny Gajewsky’s death, Defendants failed to pay to Gajewsky’s beneficiaries $77,000 which was the face amount of the policy. Plaintiff is entitled to recover from Defendants . . . the sum of $77,000 . . . .

To constitute valid summary judgment proof, an affidavit must be made on personal knowledge, set forth facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Tex. R. Civ. P. 166a(f). The mere recitation that the affidavit is based on personal knowledge is inadequate if the affidavit does not positively show a basis for such knowledge.  Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761-62 (Tex. 1988); Leavings v. Mills, ___ S.W.3d ___, ___, 2004 WL 1902536, at *7 (Tex. App.—Houston [1st Dist.] 2004, no pet. h.); Trostle v. Combs, 104 S.W.3d 206, 214 (Tex. App.—Austin 2003, no pet.).  Furthermore, affidavits consisting only of conclusions are insufficient to raise an issue of fact.  Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Skelton v. Comm’n for Lawyer Discipline, 56 S.W.3d 687, 692 (Tex. App.—Houston [14th Dist.] 2001, no pet.); see also New Times, Inc. v. Isaacks, 146 S.W.3d 144, 165 (Tex. 2004) (holding affidavits were not conclusory when they provided detailed explanations and descriptions of factual assertions).  Nitsch’s affidavit is comprised of legally and factually conclusory statements (e.g., “Upon retirement, certain insurance rights vested and Defendants became obligated . . . ,” “Gajewsky submitted a written application”) and contains no attempt to show a basis for those conclusions.^[9]  Accordingly, the trial court did not err in holding that this affidavit amounted to no evidence capable of defeating summary judgment.

The letter from the Pension System demonstrates only that $1.25 was being deducted from Gajewsky’s monthly pension check.  It does not support the conclusion that Gajewsky filed an application to convert the group policy to an individual policy in the amount of $77,000, particularly in light of the undisputed evidence that he elected to retain the $5,000 basic life coverage indicated on the Basic Life Insurance Form and that he was informed that an amount would be deducted from his pension check for this retained coverage.^[10]

Regarding the Notice of Conversion Privilege, while it may constitute some evidence that there was a contract at one time between Gajewsky and somebody for insurance, it is no evidence that John Hancock was obligated to convert the group policy to an individual policy upon Gajewsky’s retirement, that such conversion occurred, or that John Hancock breached any contract with Gajewsky.  To the contrary, the Notice explicitly states that “[t]o receive a costs and benefits quotation” the employee needed to “[c]omplete all information” in Part B, and “[u]pon receiving this form, we will send you coverage information, premium rates and application/enrollment forms.”  It further states that “[c]onversion rights will expire unless the completed form is mailed . . . within a specified number of days.”  Part B of the Notice was left blank, and the Estate offered no evidence suggesting that Gajewsky took any of the steps necessary to convert the group policy to an individual policy in the amount of $36,000 or $77,000.

On appeal, the Estate further suggests that Gajewsky’s completion of the Retiree Basic Life Insurance Form effectively converted the group policy to an individual policy.  The Estate highlights the fact that both the Form and the Notice of Conversion Privilege mentioned basic life insurance coverage.^[11]  The Estate’s argument fails for several reasons.  To begin with, the Basic Life Insurance Form clearly was intended to apply to the $5,000 in basic life coverage that the group policy indicates a retiree can retain upon retirement.  At no point does it reference any amount greater than that, nor does it reference conversion of group life insurance to an individual policy. Second, the Estate admits that the Form was completed four months prior to Gajewsky’s receipt of the Notice, so Gajewsky could not reasonably have believed that this earlier document fulfilled the requirements of the request for quotation and subsequent application for conversion mentioned in the later Notice.^[12]  Third, the Notice repeatedly states that the retiree may convert up to the amount of coverage that he had upon retirement, and it states that benefits may not be the same as they were before retirement.  Thus, even if the Form is considered an application for conversion, it was an application to convert only $5,000 in coverage.  There is no dispute in this case regarding the $5,000 in coverage. John Hancock admits it owed Gajewsky’s beneficiary $5,000, and it has tendered payment of that amount.^[13]  Accordingly, the Estate’s argument that the Form effectively converted the policy is without merit.

Because the Estate failed to present any evidence that a contract for conversion existed between Gajewsky and John Hancock, John Hancock breached any such contract, or the Estate suffered damages due to any such breach, the trial court did not err in granting summary judgment favoring John Hancock on the breach-of-contract cause of action.  See Tex. R. Civ. P. 166a(i); Group Life & Health Ins. v. Brown, 611 S.W.2d 476, 477-79 (Tex. Civ. App.—Tyler 1980, no writ) (holding there was no evidence that decedent had coverage or was induced to believe that she had coverage when there was no evidence that decedent had completed a conversion application).

In its Fourth Amended Original Petition, the Estate alleged that John Hancock violated article 21.21 of the Texas Insurance Code by (1) making a representation that misled Gajewsky to a false conclusion regarding insurance, or (2) failing to state material facts that were necessary to prevent information that had been provided from becoming misleading.  See Tex. Ins. Code Ann. art. 21.21, § 4 (Vernon Supp. 2004).  John Hancock filed a second motion for summary judgment asserting, among other things, that there was no evidence that (1) any statements or representations misled Gajewsky to false conclusions, (2) John Hancock had any duty to provide additional information, (3) it failed to state any material facts necessary to render information not misleading, or (4) it failed to fulfill any obligation to Gajewsky.  The trial court granted the motion.

The Estate specifically contends that the fact that the Basic Life Insurance Form mentioned $5,000 in basic coverage and the Notice of Conversion Privilege mentioned $36,000 in basic coverage was misleading and caused Gajewsky to believe that he had converted the group policy to an individual policy (at least in the amount of $36,000) by completing the Form.  This argument is substantially similar to the argument made on appeal in regard to the breach-of-contract claim.  It also fails for the same reasons: (1) the Form clearly applied only to the $5,000 basic life coverage a retiree was permitted to retain under the group policy and does not reference any greater amount or any conversion of group life to an individual policy; (2) Gajewsky could not reasonably have believed that the Form he completed four months earlier met the requirements of the request for quotation and application for conversion specified in the Notice; and (3) the Notice repeatedly states that the retiree may convert up to the amount of coverage that he had upon retirement; thus, even if the Form is considered an application for conversion, it was an application to convert only $5,000 in coverage, an amount which is not in dispute.

Because the Estate failed to present any evidence that (1) any statements or representations misled Gajewsky to false conclusions, or (2) John Hancock had any duty to provide additional information to render previous information not misleading, the trial court did not err in granting summary judgment on the Estate’s article 21.21 claims.  See Tex. R. Civ. P. 166a(i).

The City of Houston

Next, we consider the summary judgment favoring the City of Houston.  In its Third Amended Original Petition, the Estate pleaded breach of contract against the City.  Specifically, the Estate alleged that (1) Gajewsky entered into a written agreement with the City, (2) the City was obligated to convert the insurance policy to an individual plan, (3) the City failed to fulfill its obligations, including the failure to pay proceeds after Gajewsky’s death, and (4) Charron and John Hancock were designated agents of the City.

The City filed a traditional and no-evidence motion for summary judgment. See Tex. R. Civ. P. 166a(c), (i).  In the motion, the City asserted, among other things, that (1) the group policy required that a written application for conversion be submitted within 31 days after retirement, (2) the City provided Gajewsky with notice of his right to convert the group policy to an individual policy, and (3) Gajewsky did not apply to convert his policy.  The motion also asserted that the Estate could produce no evidence that Gajewsky applied to convert his policy and thus created a contract.  In its reply to the Estate’s response, the City emphasized that the Estate could not prove the existence of a contract. See Renteria, 79 S.W.3d at 242 (stating elements of breach of contract cause of action).

The City attached numerous documents to its motion, including the affidavit of Gerri Walker; a copy of the group policy; the Basic Life Insurance Form; the Notice of Conversion Privilege; and a copy of the letter from John Hancock transmitting insurance proceeds of $5,001.71 to Gajewsky’s beneficiary.

In its response, the Estate again made numerous conclusory statements substantially similar to those made in response to John Hancock’s motion.  Attached to the response, the Estate provided another affidavit by Nitsch.  Again, this affidavit mostly reiterates the conclusory statements made in the response and provides no basis for the factual assertions made.  Accordingly, it constitutes no evidence of those assertions.  See Trostle, 104 S.W.3d at 214 (holding that mere recitation that an affidavit is based on personal knowledge is inadequate if the affidavit does not positively show a basis for such knowledge); Skelton, 56 S.W.3d at 692 (holding that affidavits consisting only of conclusions are insufficient to raise an issue of fact).

As discussed in detail above, the summary judgment record establishes (and the Estate acknowledges) that to obligate anyone to convert or aid in converting the group policy to an individual policy, Gajewsky had to submit a written application for conversion and make the first premium payment within 31 days of his retirement.  As also discussed above, in relation to the summary judgment favoring John Hancock, the Estate has produced no evidence that Gajewsky completed or filed such application or that the group policy was converted to an individual policy; thus, the Estate has failed to provide any evidence of the existence of a contract obligating the City to convert the policy, aid in converting the policy, or pay proceeds.  See Brown, 611 S.W.2d 476, 477-79.  Accordingly, the trial court did not err in granting summary judgment favoring the City.^[14]

Robert Charron

Lastly, we consider the summary judgment favoring Robert Charron.  In its Third Amended Original Petition, the Estate pleaded breach of contract against Charron.  Specifically, the Estate alleged that (1) Gajewsky entered into a written agreement with Charron, (2) Charron was obligated to convert the insurance policy to an individual plan, (3) Charron failed to fulfill his obligations, including failing to pay proceeds after Gajewsky’s death, and (4) Charron was an agent of the City.^[15]  In his motion for summary judgment, Charron asserted, among other things, that (1) he did not have a contract with Gajewski to obtain life insurance for him, and (2) at the time of Gajewsky’s retirement, he (Charron) was no longer in the business of assisting City employees in converting their life insurance coverage. The trial court granted summary judgment without specifying the grounds therefor.  We utilize the normal standards in reviewing this grant of traditional summary judgment.  See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop.  Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  A defendant, as movant, is entitled to summary judgment if he (1) disproves at least one element of plaintiff’s theory of recovery, or (2) pleads and conclusively establishes each essential element of an affirmative defense thereby rebutting the plaintiff’s cause of action.  Buck v. Blum, 130 S.W.3d 285, 288 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

In an affidavit attached to his motion for summary judgment, Charron averred that prior to August 1, 2000, he was a general agent for John Hancock, and, as such, part of his duties involved helping City employees to convert their group life insurance into individual policies.  He retired as an agent for John Hancock on August 1, 2000, and since that time has not had any dealings with City employees wanting to convert life insurance.  He acknowledged that his agency’s name and phone number were printed on the back of the Notice Gajewsky received, but he said that it was not a working number on April 15, 2002.  He further stated that neither he nor anyone from his agency (1) entered into a written contract for the issuance of life insurance with Gajewsky, (2) dealt with Gajewsky at any time concerning the conversion of his insurance, or (3) withheld or received money from Gajewsky’s pension check for any insurance.  Lastly, he averred that Gajewsky never requested any assistance from anyone at his (Charron’s) agency in converting insurance.

Testimonial statements by an interested witness may be the basis for a summary judgment when the statements are clear, positive, and direct, otherwise credible and free from contradiction and inconsistency, and could have been readily controverted.  Tex. R. Civ. P. 166a(c); Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989).  We find the statements in Charron’s affidavit to be clear, positive, and direct.  He specifically states that by the time the Estate claims he became obligated to convert Gajewsky’s policy, he (Charron) had been retired from such work for two years. On that basis, and his personal knowledge, he states that he did not enter any contract with Gajewsky regarding conversion of his policy.  We also find that the statements are otherwise credible and free from contradiction and inconsistency.  Although, obviously, Gajewsky himself was unavailable to controvert Charron’s statements, we find that the statements, if untrue, could have been readily controverted by documentary or testimonial evidence establishing that Charron had not retired or was in fact obligated to aid Gajewsky in converting his policy.

In its response, the Estate made numerous conclusory arguments, including that whether Charron was retired is a fact question, that Charron is still receiving commissions from his direct and residual involvement in the sale of insurance to “Plaintiff [sic],” that a fact issue exists “regarding . . . Gajewsky’s allegations [sic] that he and Defendants entered into a written contract,” and that Charron and the City “represented to Plaintiff [sic]” that Charron was the agent for the City and John Hancock.  Attached to the response was another affidavit by Nitsch.  The response also references the Notice of Conversion Privilege on which it states that if the retiree had any questions, he or she may call the Charron Agency.

Nitsch’s affidavit merely repeats the factual and legal conclusions contained in the Estate’s response.  Although he avers that it is based on personal knowledge, Nitsch fails to show a basis for such knowledge.  Accordingly, we find that the trial court did not err in determining that Nitsch’s affidavit was insufficient to controvert Charron’s affidavit.  See Trostle, 104 S.W.3d at 214; Skelton, 56 S.W.3d at 692.

Further, the fact that the Notice of Conversion Privilege contained Charron’s name does not by itself constitute evidence that Charron was not retired or had an obligation to help Gajewsky convert his policy.  There is no evidence that Charron gave permission for his name to be on the Notice or was even aware that his name was still listed.  Further, there is no evidence that Charron and Gajewsky had any contact related to the conversion of the policy or otherwise, or that Gajewsky wanted or attempted to convert the group policy into an individual policy.

Because the Estate failed to offer any evidence to controvert Charron’s affidavit, the trial court did not err in awarding summary judgment favoring Charron on the breach of contract claim.  See Tex. R. Civ. P. 166a(c).^[16]

The trial court’s judgment is affirmed.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed May 3, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

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^[1]  The record contains two enrollment forms on which Gajewsky declined additional coverage; it also contains the affidavit of Gerri Walker, Division Manager for the Employee Benefits Division of the City’s Human Resources Department, in which she states that Gajewsky declined the additional coverage.  However, the record also includes a Notice of Conversion Privilege, discussed in detail in the text, on which it was written that at the time of his retirement Gajewsky was enrolled in $41,000 in “voluntary coverage.”  At oral argument, counsel for the City suggested that this entry was the result of a clerical error.

^[2]  If the retirement date was before January 1, 1990, the retiree could elect to continue $2,000 or $5,000 in basic coverage, depending on how the employee enrolled in the life insurance benefit.

^[3]  In her affidavit, Walker states that the Notice was given to Gajewsky on April 15, 2002; however, there is no other evidence that he received it on this date, and it has a stamped “received” date of April 3, 2002.  This date appears to be the day the City’s benefits department received the Notice, so it would appear unlikely that Gajewsky received it after that date.  The Estate acknowledges, however, that Gajewsky completed the Retiree Basic Life Insurance Form some four months before he received the Notice of Conversion Privilege.

Gajewsky signed the Notice below the following statement:  “I acknowledge that the City of Houston notified me of my privilege to convert all or part of the life insurance coverages for which I enrolled. This notice was given to me within 31 days of my termination of employment.” 

^[4]  The Notice was supposed to be signed and dated by the administrator or liaison but was not.

^[5]  The record contains two versions of the reverse side of the Notice.  One version, provided by the Estate in its discovery responses, indicates that to obtain a quote, a retiree should contact “John Hancock Life Insurance Co.” in Albuquerque, New Mexico.  The other version, attached to the City’s motion for summary judgment, indicates that to obtain a quote, a retiree should contact “The John Hancock Houston Charron Agency.”  There is neither an explanation in the record for this discrepancy, nor any clear indication of which version was actually on the reverse side of the Notice signed by Gajewsky (the front sides appear identical even in regard to handwriting).

^[6]  In its responses to the motions for summary judgment, the Estate asserted generally that Gajewsky filed an application.  In its appellate brief, the Estate suggests that the Basic Life Insurance Form Gajewsky completed four months prior to receiving the Notice was an application for conversion.  Both the general and the specific argument will be addressed below.

^[7]  Most of these allegations were made in general form against the named “Defendants,” which included John Hancock, Charron, and the City.

^[8]  Essentially, John Hancock contested the evidence on contract existence, breach, and damages.  On appeal, John Hancock acknowledges that a contract existed obligating it to pay $5,000 in life insurance proceeds upon Gajewsky’s death, but it denies that a contract existed obligating it to convert the group policy to an individual policy or to pay proceeds beyond $5,000.  As mentioned, John Hancock tendered $5,001.71 to Gajewsky’s beneficiary after his death.

^[9]  As mentioned, Nitsch states generally that he “discussed these facts” with Gajewsky and representatives of the City, but he does not claim that this is how he learned any of the purported facts.  We also note that large portions of the affidavit are verbatim copies of portions of the Estate’s pleadings.

^[10]  On appeal, the Estate suggests that upon receiving the Pension System’s letter, Gajewsky could have reasonably believed that he had done all that he was required to do to convert his $77,000 in group coverage to an individual policy.  However, the Estate offers no basis on which Gajewsky could have believed that the $1.25 deducted monthly was for more than the $5,000 he elected to retain in the Basic Life Insurance Form.  Indeed, a coverage election form from 1997 (in which he waived coverage) indicates that the premium for $72,000 in coverage would have been $52.56 paid bi-weekly (or $105.12 per month).

^[11]  The Form referred to $5,000 in basic life coverage, whereas the Notice referred to $36,000 in basic life coverage.

^[12]  The group policy specifically states that the retiree must submit a written application and pay the first month’s premium directly to John Hancock within 31 days following the date of retirement.

^[13]  In making its argument, the Estate relies on several cases holding that when an insurer collects and retains premiums it is estopped from denying the existence of an insurance policy.  See Union Nat. Bank of Little Rock v. Moriarty, 746 S.W.2d 249, 252 (Tex. App.—Texarkana 1987, writ denied); Farmers Mut. Protective Ass’n of Tex. v. Pack, 465 S.W.2d 228, 230 (Tex. Civ. App.—Austin 1971, writ ref’d n.r.e.); Am. Ins. Co. v. Parker, 377 S.W.2d 213, 215 (Tex. App.—Austin 1964, writ ref’d n.r.e.).  These cases are inapposite here.  John Hancock does not deny that Gajewsky retained $5,000 in coverage, and nothing in these cases supports the Estate’s argument that he converted $36,000 or $77,000 in coverage.   Indeed, at least one of the cases, Moriarty, states that estoppel cannot be used to “change, rewrite and enlarge” the coverage.  746 S.W.2d at 252.  Thus, even if it could be said that John Hancock was estopped to deny coverage, that coverage would only be in the amount of $5,000 as requested by Gajewsky.

^[14]  On appeal, although the Estate discusses alleged conduct by the City in relation to the article 21.21 claims against John Hancock (discussed above), the Estate does not argue that the trial court erred in granting judgment favoring the City in light of the article 21.21 claims in the Fourth Amended Original Petition.  At oral argument, counsel for the Estate explicitly denied that it was challenging the summary judgment as to the article 21.21 claims against the City.

^[15]  Despite asserting agency as a fact, the pleading raised no liability claims based on the purported agency.

^[16]  The Estate does not contend on appeal that the trial court erred in granting summary judgment in Charron’s favor on the alleged Insurance Code violations.